(IJcrnfll &U1 ^rI|onl Idibraty Cornell University Library KF 8816.A2 1884 Rules of Federal practice xonslsting of 3 1924 020 170 902 Cornell University Library 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/cu31924020170902 RULES OF FEDERAL PRACTICE: CONSISTINO OP THK RULES OF THE SUPREME COURT OF THE UNITED STATES, AND ORDERS OF THE SUPREME COURT IN REFERENCE TO APPEALS FROM THE COURT OF CLAIMS; THE RULES PRESCRIBED BY THE SUPREME COURT Fon THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES IN EQUITY AND IN ADMIRALTY; TOOETITEII WITH THE RULES OF THE COURT OF CLAIMS, AS THE SAME RESPECTIVELY EXISTED ON MARCH 1, 1884. TO WniCn AKK ADDED CROSa-EEFERENCES TO THE RULES, NOTES OF COGNATE STATUTES, AND REFERENCES TO JUDICIAL DECISIONS. EDITED BT EDWARD K. JONES, or THE NEW YORK BAR. NEW YORK: GEORGE S. DIOSSY, PUBLISHER. 231 BROADWAY. 1884, V>V?3?^ Entered according to Act of Congjess in the year 1883, By Edward K. Jones, In the Office of the Librarian of Congress at Washington. Entered according to Act of Congress in the year 1884, Br Edward K. Jones, In the 06Sce of the Librarian of Congress at Washington. ADYEETISEMENT. The obvious utility and importance of the following rules of practice induces me to add to them and publish in this form matter gathered originally and mainly for my Own private reference. Special care has been taken in the faithful rendition of the rules, and in the references to their original authority. It is trusted, also, that the notes of statutes and decisions will be found equally full and accurate. EDWAED K. JONES. Nkw Yoek, March 20, 1884. FEES OF THE CLERK OF THE SUPREME COURT OF THE UNITED STATES. In pursuance of the Act of Marcli 3, 1883, autliorizing and empowering this court to prepare a table of fees to be charged by the clerk of this court, the following table is adopted : For docketing a case and filing and indorsing the trans- cript of the record, five dollars. For entering an appearance, twenty -five cents. For entering a continuance, twenty-five cents^^ For filing a motion, order, or other paper, twenty-five cents. For entering any rule, or for making or copying any record or other paper, twenty cents per folio of each one hundred words. For transferring each case to a subsequent docket and in- dexing the same, one dollar. For entering a judgment or decree, one dollar. For every search of the records of the court, one dollar. For a certificate and seal, two dollars. For I'eceiving, keeping, and paying money in pursuance of any statute or order of court, two per cent, on the amount so l-eceived, kept, and paid. i'or an admission to the bar and certificate under seal, ten dollars. For preparing the record or a transcript thereof for the printer, indexing the same, supervising the printing, and dis- tributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, fifteen cents per folio. For making a manuscript copy, of the record, when required under Kule 10, twenty cents per folio, but nothing in addition for supervising the printing. For issuing a writ of error and accompanying papers, five dollars. For a mandate or other process, five dollars. For filing briefs, five dollars for each party appearing. For every copy of any opinion of the court or any justice thereof, certified under seal, one dollar for every printed page, but not to exceed five dollars in the whole for any copy. January 7, 1884. RULES EuLB l.—Tlie Clerh* (1.) The clerk of this court shall reside and keep the office, at the seat of the National Government, and oierk to reside ana he shall not practice, either as attorney or Governm'lntf &c* '"*' °' counselor, iu this court, or in any other court, while he shall continue to be clerk of this court. (2.) The clerk shall not permit any original record or paper to be taken from the court-room, or from original records not to ^ be removed, except to be the. office, without an order from the court, printed under Kuie x. except as provided by rule 10. See Snp. Ct. Eule 10. First paragrapli promulgated Feb. 3, 1790, as original rule 1, 1 Cranch, xv; republislied, 1 Wlieaton, xv; again republished, 1 Peters v; revised and corrected December Term, 1858, 31 How. v. Second paragraph promulgated August 7, 1790, as original rule 12, 1 Cranch, xvi ; republished in 1 Wheaton, xv ; again republished 1 Pe- ters, vii ; supplemented by original rule 34, promulgated February Term, 1835, 1 Peters, ii ; revised, corrected and made part of this rule, December Term, 1858, 21 How. T ; amended October Term, 1882, 106 U. S. vii ; again amended Jan. 7, 1884. Statutory Provisions. Rev. Stats, eec. 368.] The Attorney General shall exercise general supervisory powers over the accounts of the clerks, etc., of the United States cotirts. Sev. Stats, sec. 677.] The Supreme Court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions. Ben. Stats, sec. 678.] One or more deputies of the clerk of the Supreme Court may be appointed by the court on the application of the * See schedule (jfClerk'a/ees on opposite page. 3 SUPREME COURT RULES. clerk, and may be removed at the pleasure of the court. — In case of the death of the clerk, deputy or deputies continue in office and act as clerk in his name until new clerk appointed and qualified. — For default or misfeasances of deputy in clerk's life time or after his death, clerk, estate and sureties liable, and his executor or administrator to have same remedy as clerk if committed in his lifetime. Rev. Stats, sec. 679.] Records, etc., of old Court of Appeals to be kept in office of clerk, and copies furnished upon application, and same to be evidence, etc. Ben. Stats.' sec. 748.] Clerk, assistant, or deputy, etc., not to act as solicitor, proctor, attorney, or counsel in any cause in courts of the United States. Bev. Stats, sec. 749.] Violation of preceding section punished by striking from roll of attorneys, on complaint, notice and hearing. [jf- Sev State, sec. 794.] Clerk and deputies before entering office to take oath or affirmation. (Form prescribed.) Rev. Stats, sec. 795.] Clerks of all courts to give bond to be fixed and sureties approved by court, conditioned, etc. — 'New bond may be required. — Bond to be entered on journal and deposited. — Copy of entry to be proof of execution. See Act Feb. 33, 1875, 18 Stat. L., 333. Rev. Stats, sec. 798.] Clerk to present an account of moneys each session of court. — Statement prescribed. — Account and vouchers to be filed. See Act Feb. 33, 1875, 18 Stat. L., ZdB. Rev. Stats, sec. 5504.] Clerks and other officers of courts failing to deposit moneys of court with the Treasurer, or other depositary, or who retain or embezzle same, punished by fine and imprisonment ; but money may be delivered on security under direction of court. Rev. Stats, sec. 5505.] Receiving loan or deposit of money belonging to court from any clerk or other officer of court, is embezzlement, and punished, etc. Act Mar. 3, 1875, sec. 1, 18 Stat. L. 479.] Embezzling, stealing or purloining money, property, record, vouchers, etc., is felony, and punished, etc.. Same Aot, sec. 2, Same place.] Receiving or concealing money, property, record, voucher, etc., punished, etc., and receiver may be tried before or after conviction of principal. Act Mar. 3, 1883, 33 Stat. L. 631.] Clerk not to retain of his fees and emoluments more than six thousand dollars per annum for his own com- pensation, over and above necessary clerk hire and incidental expenses certified by court or justice appointed for that purpose, and audited, etc., by officers of Treasury. — Surplus of fees, etc., to be paid into Treasury. — Act for compensation of clerk for attendance in court repealed. — Supreme Court to prepare table of clerk's fees, but, until same is prepared, copy- ing and recording not to exceed fourteen cents per folio. Decisions. The appointment of clerks being vested in the courts, and there being no provision of law for their removal, their offices are to be held during SUPREME COTJET ETJLES. 3 good behavior, subject to the will or discretion of the court appointing them, by which they may be removed at pleasure. Ex parte Hennan, 13 Peters, 330. A clerk temporarily appointed during the absence of the regular incumbent, is an officer de facto, although it should appear that the court had no power to make such tepaporary appointment, and his acts as clerk must be regarded as valid so far as they may concern other per- sons interested in them. Cooke «. Halsey, 16 Peters, 71. The appointment of a new clerk and notice of the fact to the old incumbent is a removal of the latter, at least as far as his rights are con- cerned. Ex parte Hennan, 13 Peters, 380. I A deputy clerk authorized by general rule to act the same as the principal, or who is especially directed so to do in the presence of the judge, is empowered to administer an oath, and such oath is binding. TJ. S. V. Nichols, 3 McLean, 33. A clerk guilty of no neglect in superintending his deputy is not liable for the honest error of judgment of such deputy, provided he be a person of good understanding and correct demeanor, and capable of performing with propriety and correctness the duties of deputy clerk. Patons v. Lee, 3 Cranch 0. O. 646. The clerk being required by the Act of Mar. 3, 1883, to pay into the Treasury all fees and emoluments of his office over and above his com- pensation as fixed by law and his necessary clerk hire and incidental expenses, it is proper that, for his protection, his fees should be paid in advance, if demanded. Steever v. Kickman, 3 Sup. Ct. Eep. 67. EuLB II. — Attorneys and Counselors. (1.) It shall be requisite to the admission of attorneys or counselors, to practice in this court, that Admission of attorneys they shall have been such for three years a°d <=-"««'<>-■ past in the supreme courts of the States to which they respec- tively belong, and that their private and professional char- acter shall appear to be fair. (3.) They shall respectively take and *"'"'• subscribe the following oath or afiBrmation, viz : I, , do solemnly swear, [or affirm,] that I will demean myself as an attorney and counselor of this court, uprightly and accord- ing to law ; and that I will support the Constitution of the United States. First paragraph promulgated Feb. 5, 1790, as original 2, 1 Cranch, xv ; le- pnblished, 1 Wheaton, xv ; again republished, 1 Peters, vi ; revised and corrected, December Term, 185S, 21 How., v. Second paragraph promulgated Feb. 5, 1790, as original mle 4, 1 Cranch, xv, amended as rale 6, Feb. 7, 1791, 1 Cranch, xv; repub- lished 1 Wheaton, xiv ; again republished 1 Peters vi ; revised, corrected and made part of this rule, December Term, 1858, 21 How. v ; amended December Term, 1864, a Wall, vu ; amendment rescindfid December Term, 1866, 4 Wall. vu. '4 SUPREME COTTET RULES. JToto.— Original rale 3, promulgated February 5, 1790, 1 Cranch, xv, providing that counselors Bliould not practice as attorneys, nor attorneys as counselors, of this court, and original rule 14, promulgated August 12, 1801, 1 Crancli xvii, providing that counselors might be admitted as attorneys on taking the usual oath, were abrogated on the revision and correction ot the rules at the December Term, 1858, 21 How. y. Statutory Provisions. Bev. Stats, sec. 747.] In all courts of the United States parties may plead and manage their causes personally or by attorneys and counsel duly qualified to conduct causes therein. Sev. Stats, sec. 823.] Attorneys, solicitors and proctors may charge reasonable- compensation in addition to statutory fees, as may accord with general usage, or he agreed between the parties. Mev. Stats, sec. 824.] Taxable costs of solicitors, attorneys, and proctors. (Act June 33, 1874, chap. 469, sec. 7, 18 Stat. L. 253, extends this section to Utah Territory.) Itev. Stats, sec. 983.] Attorneys, proctors, etc., unreasonably and vexatiously multiplying proceedings required to pay costs. Jlev. Stats, sec. 983.] Costs and disbursements, how taxed. (Act June 23, 1874, chap. 469, sec. 7, 18 Stat. L. 253, extends this section to Utah Territory.) Bev. Stats, sec. 4064.] Attorney, solicitor or other person suing out process of arrest, imprisonment or attachment against any foreign minis- ter acknowledged by the President, or against domestic or domestic ser- vant of same, punished by fine and imprisonment. Set. Stats, sec. 5498.] OflBcers connected with Executive Depart- ment of the Government, or with Senate or House of Representatives, not to be attorneys to prosecute claims against the United States. Violation of this provision punished. Act Feb. 15, 1879, 30 Stat. L. 393.] Women admitted to highest court of State, Territory, or District of Columbia for three years, and of good standing and character, shall, on motion, etc., be admitted to Supreme. Court of the United States. Decisions. The Supreme Court will not refuse to admit to its bar an attorney and counselor who may have been stricken from the roll of attorneys of another court for a contempt committed therein, provided the applicant for admission to the Supreme Court is otherwise qualified. Me parte Tillinghast, 4 Peters, 108. The authority of an attorney to appear in a suit may be questioned, and the court in a proper case will require him to produce his authority. Standefer*. Dowlin, 1 Hempst. 309; King of Spain v. Oliver, 2 Wash. C. C. 439. But when an attorney of a court of record appears in an action for one of the parties, hLs authority, in the absence of any proof to the con- trary, will be presumed, and a record which shows such an appearance will bind the party until it is proved that the attorney acted without authority. Hill v. Mendenhall, 31 Wall. 458. StrPEEME COURT RULES. 5 On the death of an attorney of record, or counsel, papers cannot be served on his executoi', or on his former law partner, unless such part- ner previously appears on the record. The character and duties of an attorney do not devolve on his executor, nor can the courts notice law partnerships or other private arrangements between members of the bar. Bacon v. Hart, 1 Black, 38. The court may strike an attorney from the rolls for fraudulent con- duct, although not criminally punishable. U. S. v. Porter, 3 Oi-anah C. C. 60. The court has power to either suspend an attorney from practice for a limited time, or to expel him altogether. Mc parte Burr, 2 Granch a O. 379. In case of complaint against an attorney the charge must be pre- ferred under oath. & parte Burr, 9 Whmton, 539. But it is otherwise where the attorney himself invites an investiga- tion; and if the court supends or dismisses him upon proofs under oath, the proceedings are not irregular for want of a sworn preliminary charge. lb. The Supreme Court has not jurisdiction to reverse by mandamus the action of a district or circuit court in removing an attorney, &c., from office. Tillinghast v. Conkling, unreported, but cited and effect stated by Tanet, C. J., in Mc parte Lecombe, 19 Sow. 13. The client may change his attorney, and, upon application, a rule will be granted to that end, saving, however, the lien of the attorney on papers or moneys in his hands as security for his disbursements and fees. Jn, re Paschal, 10 Wall. 483. An attorney cannot be disbarred for misbehavior without an oppor- tunity of defense or explanation. Mo parte Bradley, 7 Wall. S64. But it is not necessary that formal allegations should be made. All that is requisite is that notice should be given to the attorney of the charge made against him, and an opportunity given for explanation and defense. Randall v. Bingham, 7 Wall. 533. A refusal by the courts of a State to admit a woman to practice does not violate any provision of the Constitution of the United States, or amendments. Bradwell v. State, 16 WaU. 130. Attorneys and counselors are officers of the court, and responsible to it for professional misconduct. They hold their office during good be- havior, and can only be deprived of it for misconduct, ascertained and declared by the judgment of the court, after opportunitj' to be heard has been given. Ex parte Garland, 4 Wall. 321. The obligation assumed by attorneys when admitted to the bar is not only to observe courteous demeanor in court, but includes abstaining out of court from insulting language y,nd offensive conduct towards judges personally for their judicial acts. Therefore, a threat of personal chastisement by an attorney to a judge out of court for his acts as judge during the trial of a cause pending is good ground for disbarring such attorney. Bradley «. Fisher, 13 Wall. 335. Under the constitution and laws of the United States, a court of the 6 SUPREME COURT RULES. TJDited States is without power to admit women to the bar, and a woman is without legal capacity to take the ofiSce of attorney and counselor. Lockwood V. U. S., 9 Ct. of Claims, 346. (But see Act Feb. 15, 1879, 30 Stat. L. 293, supra.) An attorney cannot be disbarred for refusing, in the presence of the court, to make answer in writing to a rule, upon the ground of so pun- ishing such refusal as a contempt. Bx parte Robinson, 19 Wall. 505. Nor can an attorney be disbarred, even for misconduct in open court, without giving him notice of the grounds of complaint against him, and an opportunity to be heard. Ih. The power to disbar an attorney can only be exercised when there has been such misconduct as shows him to be unfit to be a member of the profession. lb. The appearance of counsel specially for a corporation, and moving to dismiss the petition of an individual creditor for the appointment of a receiver of its property, does not preclude him from subsequently appearing for the trustee of the bondholders in proceedings to foreclose mortgages given by the corporation. Shaw ». Bill, 95 XT. 8. 10. Although a client can change his attorney whenever he pleases, sub- ject to the attorney's lien, such lien does not extend so far as to enable the solicitor to stay or delay the proceedings in the suit. Isaacs v. Abraham, 6 Reporter, 737. The participation of an attorney in a riot and inciting the lynching of a man is a sufficient ground for striking his name from the roll. Es parte Wall, 3 Sup. Ct. Hep. 669. The striking of the name of an attorney from the roll not being a criminal pi'oceeding, indictment and trial by jury are not necessary, although the grounds for such dismissal are criminally punishable, lb. In case the attorney is dealt with by the court by striking his name from the roll on the ground that he has been guilty of a criminal offense rendering him unfit to longer remain in his office of attorney, such dis- missal will not be disturbed by the Supreme Court because no indict- ment and trial were had previously to such dismissal, lb. EuLE III. — Practice. This court considers the former practice of the courts of Practice of king's bench king's bench and of chancerv, in England, and cliancery in Bng- jx ,t ,t . .. ,. » ., ■ Jand. as anording outlines for the practice of this court ; and will, from time to time, make such alterations therein as circumstances may render necessary. Promnlgated Ang. 8, 1791, as original rule 7, 1 Cranch, xvi ; republished, 1 Wheaton, xlv ; again republished, 1 Peters, vi ; revised, corrected and made rule 3, December Term, 1858, 21 How. v ; amended Jan. 7, 1884. EtTLB IV. — Bill of Exceptions. The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the SUPREME COTJRT RULES. 7 charge of the court at lavsre to the iurv bui of exceptions not . , T , . ° ■" •; to contain charge to in trials at common law, upon any general jury at large. exception to the whole of such charge. Bat the party except- ing shall be required to state distinctly tlie several matters of law in such charge to which he excepts ; and those matters of' law, and those only, shall he inserted in the. bill of exceptions, and allowed by the court. Promulgated as rule 4 on revision at December Term, 1858, SI How. vi. Statutory Provisions. Rev. Stats, sec. 953.] A bill of exceptions shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause, without any seal of court or judge annexed thereto. JRev. Siais. sees. 649, 700.] Issues of fact in civil cases may be tried by circuit court without a jury, if parties stipulate in writing. Findings to be general or special, and to have same effect as verdict of jury. The rulings of the court in progi'css of trial, if excepted to and duly pre- sented by bill of exceptions, may be reviewed in Supreme Court on error or appeal; and, when finding special, review may extend to sufficiency of facts found to support judgment. Act Feb. 16, 1875, 18 Stat. L. 315.] Causes in admiralty reviewed only upon a record containing findings of fact and conclusions of law, and upon such rulings of the Circuit Court, excepted to at the time, as may be presented by a bill of exceptions, prepared as in actions at law. decisions. A bill of exceptions ought to state that evidence was offered of the facts upon which the opinion of the court was requested. Vasse v. Smith, 6 Craneh, 226. Though a bill of exceptions may be drawn up and signed after the trial, the exceptions must be taken at the trial, and, when signed, must purport on their face to have been so taken, and to have been then allowed and signed. Walton ®. U. S., 9 Wheaton, 651. It is unnecessary and irregular to set out the evidence in a bill of ex- ceptions when no exception was taken to its competency or sufficiency. Pennock v. Dialogue, 2 Peters, 1. The practice of bringing the whole charge of the court below before this court reprobated. Carver v. Jackson, 4 Peters, 1 ; Crane v. Crane, 5 lb. 190. The law requires a bill of exceptions to be tendered at the trial. If it be drawn up afterwards, it should be done immediately, and during the term . To sign it after the term is matter of consent or special order of the judge. Bradstreet v., Jackson, 4 Peters, 102. If the party intends to take a biU of exceptions, he should give n otice 8 STJPREME COURT RULES. to the judge at the trial ; and if he does not file it at the trial, he should move the judge to assign a reasonable time within which he may- file it. lb. The Supreme Court will not order a judge to sign a particular bill of exceptions which he returns as not conformable to the truth. lb. The Supreme Court has power to issue a mandamus to a judge of a circuit court commanding him to sign a bill of exceptions. Crane v. Crane, 5 Peters, 190, It is the duty of a party excepting to evidence to point out the part excepted to, so that the attention of the court may be drawn to it. If the exception covers any admissible evidence, it is properly overruled. Moore v. Bank Metropolis, 13 Peters, 302. A naked statement on the record that the reading of a disposition, or copy of a record, was objected to, without disclosing the nature or ground of the objection, is nugatory, and wholly ineffectual in a court of error. Camden «. Doremus, 5 How. 515. The record must show that an exception was taken at the trial at the stage when its cause arose, but the time and manner of placing the ex- ception on the record may be regulated by the practice of the courts below. Turner v. Yates, 16 How. 14. An allegation that the charge of the court, the verdict of the jury, and the judgment below "are each against and in conflict with the con- stitution and laws of the United States," is too general and indefinite to be considered. Maxwell ■». Newbold, 18 How. 511. Rulings of the court below in admitting or rejecting evidence can be brought to this court for revision only by a bill of exceptions. Suy- dam ®. Williamson, 20 How. 437. Where there is a biU of exceptions, the writ of error does not operate only upon that part of the record. Wherever an error is apparent on the record, it is open to revision, whether it be made to appear by a bill * of exceptions or in any other manner, lb. A bill of exceptions should contain only so much of the evidence as is necessary to present the legal question raised. When moie than this is inserted in the bill, it is an irregularity, to be condemned as a departure from established practice, inconvenient and embarrassing to the court. Johnson v. Jones, 1 Black, 309 ; Lincoln ». Claflin, 7 Wall. 133, Where a series of propositions are embodied in the instructions of the. court, which are excepted to in mass, the exception must be overruled if any one proposition be sound, lb. Where a bill of exceptions fairly discloses the fact that exceptions were taken at the proper time, the right to review will not be defeated by a misuse of words or because the bill was unskillfuUy drawn. Simp- son V. Ball, 8 Wall. 460. Where a paper is not incorporated in the bill of exceptions it must be annexed to it, or so marked by means of identification mentioned in the bill as to leave no doubt that it is the one referred to ; otherwise it will be disregarded. Leftwitch ii. Lecanu, 4 Wall. 187. It is the duty of counsel, excepting to propositions submitted to a SXJPEEME COUKT EULES. 9' jury, to except to such propositions distinctly and severally; and al- though the court may err in some of the propositions, yet if they are excepted to in mass, the exception will he overruled, provided one of the propositions he correct. Rogers v. The Marshal, 1 Wall. 644 ; Harvey v. Tyler, 3 Wall. 338. The court reprehends the practice of making hills of exception a sort of abstract or index to the history of the case, and so of obscuring its merits. Evans v. Patterson, 4 Wall. 224. To be of any avail, exceptions must be drawn up so as to present distictly the ruUng of the court upon the points raised, and must be signed and sealed by the presiding judge. Unless so signed and sealed, they do not constitute any part of the record which can be considered by an appellate court. Young ». Martin, 8 Wall. 354. (But see Beh. Stats. sec. 953, supra.) The special finding of facts mentioned in the act providing for trials without jury {Rev. Stats, sees. 649, 700, supra), is not a mere reporl; of the evidence, but a finding of those ultimate facts on which the law must determine the rights of the parties. If the finding of facts be general, only such rulings of the court, in the progress of the trial, can be re- viewed as are presented by a bill of exceptions. Norris v. Jackson, 9 WaU. 125. In such a case the bill of exceptions cannot he used to bring up the whole testimony for review any more than in a trial by jury. lb. Objections to the admission or rejection of evidence, or to such rul- ings or propositions of law as may be submitted to the court, must in such cases be shown by bill of exceptions, lb. If the parties desire a review of the law in such cases, they must ask the court to make a special finding which raises the question, or get the court to rule on the legal propositions which they present. lb. (See also Flanders v. Tweed, 9 Wall. 425 ; Coddington v. Richardson, 10 Wall. 516 ; Dirst ». Morris, 14 Wall. 484 ; Dickenson «. Planters' Bank, 16 Wall. 350 ; Insurance Co. c. Folsom, 18 Wall. 337 ; Town of Ohio ». Marcy, 18 Wall. 543.) Under the Act of Congress authorizing the trial of facts by the circuit court without a jury (Bev. Stats., sees. 649, 700), the court must itself find the facts in order to authorize a writ of error. A statement of facts signed by counsel and filed after the judgment is insuflicient. Bethell V. Mathews, 13 WaU. 1. A plaintiff in error cannot take advantage of exceptions in his own favor, even if erroneous. Bethell v. Mathews, 18 Wall. 1. A hill'of exceptions which alleges that the instructions of the court laid too large a stress upon the testimony of a particular witness should embody the testimony at length, or so refer to it as to make it a part of the record. Otherwise the court must presume that it justified the in- struction. Russell V. Ely, 3 Black, 575. Neither the rulings of the court in admitting or excluding evidence, nor the instructions given by the court to the jury, are a part of the record 10 ' STTPREME COURT EtTLES. ' I on appeal, unless made so by a proper bill of exceptions. Storm v. U. S., 94 D. S. 76 ; Insurance Co. v. Lanier, 95 O". S. 171. A bill of exceptions cannot be taken on the trial of a feigned issue directed by a court of equity, or, if taken, can only be used on a motion for a new trial made to that court. Johnson «. Harmon, 94 U. S. 371. The judge's notes do not constitute a bill of exceptions. They are but memoranda f om which a formal bill of exceptions may afterwards be drawn up. Pomeroy ». Banlc of Indiana, 1 Wall. 592. Where a bill of exceptions does not show what answer was made to a question put to a witness, error cannot be assigned upon the question, Lovell ». Davis, 101 U. 8. 541. The power to reduce exceptions taken at the trial to form, and have them signed and filed is confined, under ordinary circumstances, to the term at which the judgment was rendered. Muller v. Ehlers,91 U. S. 249 ; Whalen «. Sheridan, 5 Fed. R. 486 ; S. C, 10 lb. 661. State statutes and rules have no application to bills of exception in the courts of the United States. Whalen v. Sheridan, 5 Fed. B. 436 ; S. C, 10 lb. 661. Poverty or pecuniary embarrassment is not a sufl5cient excuse for de- lay in filing a bill of exceptions. Whalen v. Sheridan, 5 Fed. R. 486 ; S. C, 10 lb. 661. But the court, in the exercise of its sound discretion to prevent mani- fest hardship, may relax the rule requiring a bill of exceptions to be (served, settled and signed within the prescribed time. Coe v. Morgan, 13 Fed. iJ. 844 ; U. S. ». Breitling, 20 How. 252 ; Marye ». Strouse, 5 Fed. B. 495. Exceptions reserved at the trial of a cause may, within such time thereafter during the term as the judge shall deem reasonable, be reduced to form and presented to him for signature, and they are not waived by suing out a writ of error before his signature is obtained. Hunnicutt v. Peyton, 102 U. 8. 833. Where, under such circumstances, bills of exception are signed dur- ing the term, it is not necessary, to render them effective, that they be ante-dated, or ordered to be filed mme pro tunc, as of a time during the trial, lb. The rule that where any portion of the charge to the jury is correct an exception to the entire charge will not be sustained, reaffirmed, and held to apply to a general exception taken to the report of a referee. Boogher ». Insurance Co., 103 U. 8. 90. The court condemns the practice of setting out in the bill of excep- tions the entire charge of the court below, instead of confining it to such parts as are the subject of exception. U. S. v. Rindskopf, 105 U. 8. 418. Under the Act of Feb. 16, 1875 (18 Stat. L. 315, swpra), the finding of facts by the circuit court in admiralty cases is conclusive ; and only rulings upon questions of law can be reviewed by bill of exceptions. The Abbottsfcrd, 98 U. 8. 440 ; The Benefactor, 102 U. 8. 214. The findings which, in admiralty causes in the circuit court, the Act SUPREME COIJET ETTLES. ' 11 of Feb. 16, 1875 (18 Stat. L. 315, supra), requires, are in the nature of a special verdict, and constitute a part of tlie record. The law arising thereon will therefore be determined here, although no exception thereto ■was taken. The S. C. Tryon, 105 TT. 8. 267. But a bill of exceptions is required to reserve for review the rulings below upon questions of law arising during the progress of the trial, lb. The said act is constitutional. The Francis Wright, 105 U. 8. 381. The court condemns the practice of drawing up bills of exception ■which, so far from being prepared as in actions at law, are framed, as if possible, to secure a re-examination of the facts, lb. A refusal to make any finding as to a disputed fact, or a finding ■without any evidence to support it, if duly excepted to, may, as a ques- tion of law, be reviewed in the Supreme Court, lb. If one of a series of propositions presented to a court as one request for a charge to the jury is unsound, an exception to a refusal to charge the entire series cannot be maintained. Beaver v. Taylor, 93 U. 8. 46. An exception to the entire charge of the court, or, in gross, to a series of propositions therein contained, cannot be sustained if any por- tion of the matter thus excepted to is sound, lb. An exception to such portions of a charge as are variant from the requests made by a party, not pointing out the variances, cannot be sus- tained, lb. The omission of the judge to instruct the jury on a particular aspect of the case, however material, cannot be assigned as error unless his attention was called to it with a request to instruct upon it. Mutual Life Ins. Co. ■». Snyder, 93 U. 8. 393. When the record shows that an exception was taken and reserved at the trial, it is not necessary that the bill of exceptions be drawn out in form and signed or sealed by the judge, before the jury retires ; but it may be so signed or sealed at a later period ; and when filed nunc pro tune, pursuant to order, brings the case within the settled practice of courts of error. Stanton ». Embry, 93 U. 8. 548. Writs of error to the Supreme Court of the District of Columbia, being governed by the same rules and regulations as are those to the circuit courts, the practice in relation to bills of exception is the same. lb. Exceptions to the charge of the court which are in general terms, and do not clearly and specifically point out the objectionable part of it, cannot be sustained as a ground for reversing the judgment. K. E. Co. V. Varnell, 98 U. 8. 479. Where error is assigned upon instructions given, and those refused, the bill of exceptions must set forth so much of the evidence as tends to prove the facts out of which the question is raised to 'which the instruc tions apply. When, therefore, the bill of exceptions embodies only the instructions given and those refused, this court will not reverse the judg- ment. Worthington v. Mason, 101 U. 8. 149. This court will not pass upon the charge below where the bill of ex- ceptions does not set forth the evidence and there is nothing to show 12 STTPEEME COURT EULES. that the question of law to which the charge relates is involved in the issue. Jones v. Buckell, 104 U. S. 554. A bill of exceptions in admiralty must be based on exceptions taken to the rulings at the time they Were made; Kichardson ». The Ship Havre, 4 Fed. R. 748. '\ Where no exceptions were taken during the trial, in an admiralty cause, the only paper which can be signed on appeal is the record of the proceedings, embodying the requests on both sides, aird also the findings and the written opinion of the court, and the exceptions filed showing the dates of the several proceedings, lb. EuLE V. — Process. (1.) All process of this court shall be in the name of the SeMdInt!" °™^ "' President of the United States, (3.) When process at common law or in equity shall issue Against state, how ^S'^''^^^ ^ ^*^*^' ^^^ ^^"^^ ^^^" ^^ ^®^^^*^ °^ served. • the govemor, or chief executive magistratCj and attorney-general of such State. (3.) Process of subpcena, issuing out of this court, in any When snbpffinaineqai- suit in equity, shall be scrved on the de- pearance*. ^"™ ' '^^' fendant 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, the complainant shall be at liberty to proceed ex parte. First paragraph promulgated Feb. 5, 1790, as original rule 6, 1 Cranch, xx ; repub- lished 1 Wheaton," xiv ; again republished, 1 Peters, vi ; revised and corrected Decem- ber Term, 1858, 21 How. vi. Second paragraph promulgated August 12, 1796 but, owing to the omission of the clerk to engross the same with the other rules, was not pub- lished in the reports until 3 Peters, xvii ; revised and made part of this rule, Decem- ber Term, 1S58. 81 How. vi. Third paragraph promulgated August 12, 1796, as original rule 10, 1 Cranch, xvi ; republished 1 Wheaton, xv ; again republished 1 Peters, vi ; revised, corrected, and made part of this rule, December Term, 18S8, 21 How. vi. Statutory Provisions. Rev. Stats, sec. 911.] All writs and processes issuing from the courts of the United States to be under seal of the court and signed by the clerk ; and those issuing from the Supreme and circuit courts to bear teste of the Chief Justice, or senior Associate, when office of Chief Jus- tice is vacant. iJe». Stats, sec. 913.] All process issued from the United States courts shall bear teste the day of issue. Rev. Stats, sec. 917.] Supreme Court may prescribe the forms of writs and other process, etc., not inconsistent with law, in equity and ad- miralty, for the circuit and district courts. STTPEEME COURT RUXES. 13 Bm>. Stats, sec. 4063.] Process against the person or property of foreign minister or domestic, or domestic servant, void. (See Bev. Stats, sec. 687.) r ; Bev. Stats, sec. 4064.] Penalty for suing out or issuing process against foreign minister or seiTant. JSea. Stats, sec. 4065.] The two preceding sections do not apply to case of process against a citizen of the United States in the service of a public minister founded on debt contracted before entering such service ; nor to any domestic servant of such minister, ynless name of servant is registered in Department of State and transmitted to Marshal of Dist. Col. before such process issues. Bev. Stats, sec. 5394.] Stealing, taking away, altering, falsifying, or avoiding record, writ, process, or other proceeding in courts of United States, causing reversal or avoidance of any judgment, etc., punished. Decisions. A State having been duly served with process and not appearing, the court, at the next term after the return term, made an order that judg- ment by default should be given against the State, unless an appearance should be entered or cause shown by the first day of the next term. Chilsom ■». Georgia, 3 Dull. 419. Service of process on the Governor and Attorney- General of a State, is service on the State. Id. (See also Grayson v. Virginia, 8 Dall. 330.) A subpcena in equity to a State is to be served sixty days before the return day, and if the State do not appear on the return day the plaintiff may proceed em parte. Grayson v. Virginia, 8 Dall. 320. Where a subpoena to a State was not served sixty days before the return day thereof, as required by the rules of this court, a new subpoena was awarded returnable to the next term. New Jersey v. New York, 3 J'eters, 461. A subpoena having been duly served and the State failing to appear, a rule was entered that the complainant be at liberty to proceed ex parte, and that if the State, being duly served with the rule, should not appear and answer on the second day of the next term, the court would hear the cause ex parte. New Jersey v. New York, 5 Peters, 284. An order that a party appear and answer before a day certain, is complied with by filing a demurrer. New Jersey v. New York, 6 Peters, 333. If the defendant, having been duly served with process, does not choose to appear, or withdraws the appearance on leave, the complainant may proceed ex parte. K. I. v. Mass., 13 Peters, 657, 755. The court will not apply, to suits between States, the same rules as to time of answering which govern suits between individuals. R. I. v. Mass., 13 Peters, 23. In a suit between two States the Supreme Court has original jurisdic- tion, without any further act of Congress regulating the mode and form in which it shall be exercised. Kentucky «. Ohio, 34 Sow. 66. 14 SUPBEME COURT ETJLES. ' A suit by or against tlie Governor of a State, as such, in liis oflBcial capacity, is a suit against the State. Id. A bill purporting to enjoin the President of the United States from carrying into effect an act of Congress will not be permitted to be filed in this court. Mississippi v. Johnson, 4 Wall. 475. Though there is no general rule of court in regard to the matter, •when a party desires to file a bill in original jurisdiction in equity, it has been usual to hear a motion in his behalf for leave to do so. This mo- tion, except under peculiar circumstances (as when a bill is asked to be filed against the President of the United States), is heard only on the part of the complainant. Georgia ii. Grant, 6 Wall. 241. The motion for leave to file a bill in original jurisdiction will be heard on the usual motion day, and only on the part of the complainant, and the court will require that ten printed copies of the bill shall be filed with the clerk before the hearing. Id. Though the rules made by the Supreme Court for the government of the practice of the circuit courts in equity are undoubtedly binding on the latter, they were not intended to deprive them of power to give time to appear and answer in special cases. Poultney v. City of Lafayette, 12 Peters, 473. The Supreme Court cannot enlarge or diminish the jurisdiction of the courts of the United States by any rule of practice, but it has power over their process and mode of procedure in equity and admiralty. The St. Lawrence, 1 Blaek, 522. (See also Noonan «. Lee, 3 Black, 499.) Process cannot be served upon a foreign minister. U. S. v. Benner, 1 Baldw. 334. (See also Ux parte Cabrera, 1 Wash. G. 0. 332 ; U. S. v. Lafontaine, 4 Cranch, C. O. 173.) EuLB VI. — Motions. — Motion day. (1.) All motions to the court shall be reduced to writing. Motions to be in writ- ^'^^ ^^^^^ contain a brief statement of the "■e- facts and objects of the motion. (2.) One hour on each side shall be allowed to the argu- Argnment. mcnt of a motion, and no more, without , special leave of the court, granted before the argument begins. (3.) No motion to dismiss, except on special assignment No motion to aismiss ^iJ ^^^ coTirt, shall be heard, unless previous without notice. notice has been given to the adverse party, or the counsel or attorney of such party. (4.) All motions to dismiss writs of error and appeals, ex- Motions to dismiss to cept motions to docket and dismiss under ea iS'^eicept Snto ^^^""^ ^' ^'^^'^ ^^ Submitted in the first "lie 9- instance on printed briefs or arguments. STTPEEME COURT RULES. 15 If the court desires further argument on tlat subject, it will be ordered in connection with the hearing on the merits. The party moving to dismiss shall serTC notice of the motion, with a copy of his brief or argU- Notice of three weeks, , , J. !•.•«.■ except where opposite ment, on the counsel tor plaintifc m error party resides west of or appellant of record in this court, at least tydays. three weeks before the time fixed for submitting the motion, in all cases, except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice shall be at least thirty days. Affidavits of the deposit in the mail of the notice and brief to the proper address of the counsel to be served, duly post-paid, at such time as to reach him by due course of mail, the three weeks or thirty days before the time fixed by the notice, will be regarded as prima-facie evidence of service on counsel who reside without the District of Columbia. On proof of such service, the motion will be considered, unless, for satisfactory reasons, further time be given by the court to either party. (5.) There may be united with a motion to dismiss a writ of error or an appeal, a motion to affirm on , ' , Motion to afflm may the ground that althougli the record may he united with motion show that this court has jurisdiction, it is manifeet the writ or appeal was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. (6.) The court will not hear arguments on Saturday, (un- less for special cause it shall order to the no armament on sat- contrary,) but will devote that day to the "'^''^" other business of the court. The motion day shall be Monday of each week; and motions not required by Motion day; prefer- the rules of the court to be put on the docket *"'=''• shall be entitled to preference immediately after the reading of opinions, if such motions shall be made before the court shall have entered upon the hearing of a case upon the docket. See Supreme Court Eules 9, 16, 18. Pirat paragraph promulgated January Term, 1838, as original rule 51, 13 Peters, iv ; revised and made rule 6, December Term, 1858, 21 How. vi. Second paragraph pro- mulgated December 18, 1876, 93 U. S. vii. Ttiird paragraph promulgated December Term 1867, 6 Wall. v. Fourth paragraph promulgated May 6, 1872, 13 Wall. xi. Fifth paragraph promulgated May 8, 1876, Wall. vii. Sixth paragraph promulgated February Term, 1824, 9 Wheaton, iv ; -republished as original rule 83, 1 Peters, xi ; amended January Term, 1845, 3 How. v ; revised and made rule 27, December Term, 1858, 21 How. XV ; amended and made partof this rule December 14, 1874, 20 Wall. xv. 16 SXJPEEME COUET KULES. Decisions. , A collusive suit presented for the purpose of securing the opinion of the court will be dismissed on motion. Lord v. Veazie, 8 How. 251. The advantage of expiration of the limitation for bringing a writ of error or appeal may be taken by motion to dismiss. Brooks v- Norris, 11 Sow. 204. Where the record states that an appeal from a decree was taken in open court, no evidence dehors the record, can be received to impeach its verity on a motion to dismiss the appeal for want of jurisdiction on the ground that the case has not been regularly brought up. Hudgins «. Kemp, 18 How. 530. A motion to dismiss is to be heard on the record as it stands. If the record is defective the error must be suggested and a certiorari moved for to bring up a correct transcript. lb. The Supreme Court will not, on motion, dismiss an appeal taken on the ground of want of jurisdiction of the court below. Such a question is a proper one for appeal and for argument when regularly reached. Nelson «. Leland, 23 How. 48. An appeal will be dismissed on motion if it appears that one of the parties has purchased or succeeded to the rights of the other, pending the appeal. Cleveland «. Chamberlain, 1 Black, 419. A dismissal by agreement of the parties will not be set aside on mo- tion of the attorney for the defendant who claims a lien for his costs. Piatt 11. Jerome, XQ How. 384. Want of jurisdiction and irregularity of the writ of error are the only grounds for dismissal; and the court will not, on motion, dismiss the writ on the ground that there is no error on the face of the record. This is matter to be argued when the case is reached. Hecker v. Fowler, 1 Black, 95. Where want of jurisdiction is patent, or can be readily ascertained by an examination of the record in advance of an argument, in its order, qn the merits, this court will entertain and act upon a motion to dismiss for want of jurisdiction. Semple ». Hager, 4 WaU. 431. Error may be shown by bill of exceptions, or by demurrer to pleadings, or it may appear by an agreed statement of facts, or by special verdict. But even when all these are wanting, a motion to dis- miss will not be entertained. Their absence only shows that there is no error in the record, and the party will be entitled to judgment of atflrmance when the case is reached. N. O. R. R. v. Morgan, 10 Wall. 256. When a case is within the jurisdiction of the court, and there has been no defect in removing it from the subordinate court to this, the court will not dismiss the case on motion in advance of the regular call of the docket. The Eutaw, 13 WaU. 186. A case will not be dismissed on motion simply because the court may be of opinion that it has been brought here for delay only. The authority of the court to adjudge damages under Rev. Stats., sec. 1010, SUPREME COURT RULES. .17 and rule 33 of this court, is the only power to prevent frivolous appeals and -writs of error. Amory v. Amory, 91 U. S. 356. Where a party sued out a writ of error and also obtained the allowance of an appeal and duly filed a transcript of the record, the court will not, on motion, dismiss the cause, but when it comes to be heard will de- termine whether it is properly here by appeal or by writ of error. Hurst «. HoUingsworth, 94 U. S. 111. This court, where it manifestly has no jurisdiction over the matter in controversy, will entertain a motion to dismiss even before the return day, although the former practice was otherwise. Ex parte Russell, 13 WaU. 671 ; Thomas s. Woodbridge, 23 Id. 288 ; Clark v. Hancock, 94 U. 8. 493. Although under this rule the plaintiff in error or appellant may, with a motion to dismiss, unite a motion to affirm, still, where there is no color of right to a dismissal, the case being clearly within the juris- diction of the court, a motion to affirm merely will not be sustained. Whitney ». Cook, 99 W. S. 607. Motions to dismiss will not be decided before the record is printed, ■when there is any question about facts upon which the motion rests. In order to get a decision before printing, the motion papers must present the case in a way which will enable the court to act understandingly without referring to the transcript on file. National Bank ». Insurance Co., 101 U. S. 43. Where the appellee has a color of right to dismissal, he may unite with a motion to dismiss a motion to affirm. Hinckley v. Morton, 103 U. 8. 764 Where the record is euch as to furnish a sufficient color of right to dismissal to justify the court in entertaining with a motion to dismiss a motion to affirm, although the grounds for dismissal be removed by further showing, the motion to affirm will be granted when it is manifest that the writ was sued out for delay. Micas ». Williams, 104 U. 8. 556. A writ of error will not be dismissed by reason of a failure to annex thereto or return therewith an assignment of errors pursuant to Rev. Stats., section 997. If an assignment is filed in accordance with the re- quirements of rule 21, it will ordinarily be enough. School District of Ackley v. Hall, 106 U. 8. 428. Where, under the circumstances of the case, it may be that an appeal ■was well taken, the court may postpone the consideration of a motion to dismiss until the hearing on the merits. Mayer v. Walsh, 1 8iip. Ct. Eep. 417. E0LB VII. — Law Library. — Conference-room. (1.) During the session of the court, any gentleman of the bar having a case on the docket, and wishing counsel may take books ,1 T 1 • ji 1 TV, from the library ; reyu- to use any book or books in the la-w-library, lation. shall be at libei'ty, upon application to the clerk of the court, to receive an order to take the same (not exceeding at any one 18 SUPREME COTJRT RULES. 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. It shall be the duty of the clerk to keep, in a book for that purpose, a record of all books so delivered, which are to be charged against the party receiving the same. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof, and also one dollar per day for each day's detention beyond the limited time. (3.) The clerk shall deposit in the law library, to be there Clerk to dpposit in law carcfully preserved, one copy of the printed library printed record _ . i •,, i i ji l in every case. rccord m every casc submitted to the court for its consideration, and of all printed motions, briefs, or arguments filed therein. (3.) The marshal shall take charge of the books of the Marshal to take char^ court, together with sucli of the duplicate of books of court: con- t . . r\ t , i i i ference-room. law-books as Oongress may direct to be trans- ferred 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 therefrom by any one except the justices of the cxiurt. First paragraph promulgatei January Term, 1833, as original rule 40, 7 Peters, ir; revised and made part of this rule, December Term, 1858, 21 How. vi. Second para- graph promulgated October 25, 1875, 91 V. S. vii; amended January 7, 1884. Third paragraph promulgated on revision of rules, December Term, 1858, 21 How. vii. Statutory Provisions. Eev. Stais. sec. 81.] Library of Congress arranged in two depart- ments, general library and law library. JRev. Slats, sec. 83.] Incidental expenses of law library paid out cf appropriations for library of Congress. Hev. Stats, sec. 84.] Librarian of Congress to purchase books for the law library under direction and pursuant to catalogue of Chief Justice of Supreme Court. Rev. Slats, sees. 93 and 94.] Certain persona enumerated entitled to take boolis from library. i?e». Stats, sec. 95.] Supreme Court Justices to have free access to law library, and authorized to make regulations for use of the same when court is sitting ; but cannot restrict persons othei-wise authorized to take books from the library or using books in same manner as general library. Rev. Slats, sec. 96.] Ten copies Statutes at Large, by Little, Brown & Co., to be for use of Justices of the Supreme Court. Rev. Stats, sees. 96 .ind 97.] Journals and documents printed by Con- gress and printed copies of their own journals to be deposited in the library, SUPREME COUKT KULES 19 Act June 19, 1878, 20 Stat. L. 171.] Stealing, defacing, injuring, mutilating, tearing or destroying book, pamphlet, etc., of library of Con- gress, etc., etc., punished. EuLE VIII. — Writ of error, Return, and Record. (1.) The clerk of the court to -which any writ of error may- be directed shall make return of the same, „ ^ , .^ , Bctam to writ of error. by transmitting a true copy of the record, and of the assignment of errors, and of all proceedings in the case, under his hand and the seal of the court. (2.) In all cases brought to this court, by -writ of error or appeal, to review any judgment or decree, the copy of opinion of f-^, , ,, , , T. , , . - , court to be tranemitted clerk of the court by which such judgment with record. or decree was rendered shall annex to and transmit with the record a copy of the opinion or opinions filed in the case. (3.) No case will be heard until a complete record, con- taining in itself, and not by reference, all the canee not heard until papers, exhibits, depositions, and other "■^'"^d complete, proceedings which are necessary to the hearing in this court, shall be filed. (4.) WheneTer it shall be necessary or proper, in the opinion of the presiding judge in any circuit court, original papers. or district court exercising circuit court jurisdiction, that original papers of any kind should be inspected in this court upon writ of error or appeal, such presiding judge may make such rule or order for the safe-keeping, transporting and re- turn of such original papers as to him may seem proper ; and this court will receive and consider such original papers in con- nection with the transcript of the proceedings. (5.) In cases where final judgment is rendered more than thirt-y- days before the first day of the next -wiien writ of error •'„,. ,,_ ., » t -L *■"! citation return- term of this court, the writ ol error and cita- able. tion, if taken before, must be returnable on the first day of said term, and be served before that day ; but in cases where the 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. (6.) The record in causes of admiralty and maritime juris- diction, when under the requirements of law Record in admiralty the facts have been found in the court below, ""<' °"'"'™'' ^^'''■ and the power of review is limited to the determination of 20 BUPEEMB COTJET RULES. questions of law arising on the record, shall be confined to the pleadings, the findings of fact and conclusions of law thereon, the bills of exceptions, the final judgment or decree, and such interlocutory orders and decrees as may be necessary to a proper review of the case. See Sup. Ct. Eoles 9, 23, 89, 33. See also rules relating to appeals from Court of Claims and Admiralty rule 52. First paragraph -promulgated February 13, 1797, as original rule 11, 1 Cranch, xvi ; republished 1 Wheaton, xv ; again republished, 1 Peters, vii ; revised and made part of this rule, December Term, 1858, 21 How. vii; amended January 7, 1884. Second para- graph promulgated as an amendment to this rule, April 28. 1873, 15 Wall. v. Third para- graph promulgated February Term, 1833, 8 Wheaton, vi; republished as original rule 30, 1 Peters, x; revised and made part of this rule, December Term, 1858, 21 How. vii. Fourth paragraph promulgated February Term, 1817, 2 Wheaton, vii ; republished as original rule 25, 1 Peters, ix ; revised and made part of this rule, December Term, 1858, 21 How. vii. Fifth paragraph promulgated December Term, 1867, G Wall. vi. Sixth paragraph promulgated May 2, 1881, as an addition to this rule, 103 U. S. xiii. Statutory Provisions. Sev. Stats, sec. 997.] There shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation to the adverse party. (The assignment of errors may be omitted if made in the brief as re- quired by rule 31.) School Dist.' •». Hall, 106 U. S. 438. Bev. Stats, sec. 998.] When issued by a circuit court to a district court, citation to be signed by judge of district, circuit or Supreme Court, and at least twenty days' notice given. Sev. Stats, sec. 999.] When issued by Supreme Court to circuit court, citation shall be signed by judge of circuit or Supreme. Court, and at least thirty days' notice given ; and when issued to State court, cita- tion shall be signed by Chief Justice, judge or chancellor of State court, in which judgment rendered, or Justice of Supreme Court, and at least thirty days' notice given. Mev. Slats, sec. 1003.] Wi'its of error shall be prosecuted from final judgments of district courts acting as circuit courts in same manner as from final judgments of circuit courts. Jtev. Stats, sec. 1003.] Writs of error from Supreme Court to State court issued and prosecuted in same manner, and to have same effect as if the judgment or decree complained of rendered in United States court. Eev. Stats, sec. 1004.] Writs of error returnable to Supreme Court may be issued by clerks of circuit court, or by clerk of Supreme Court, under seal, and when issued to be according to form heretofore transmitted to clerks of circuit courts. Hev. Stilts, sec. 1011.] No reversal in Supreme or circuit court for error in ruling any plea in abatement, except to jurisdiction, or for any error of fact. Bev. Stats, sec 1013.] Appeals from United States courts subject to same rules, &c., as writs of error. STTPKEME COTJET EULES. 21 Bev. Stats, sec. 698.] Upon appeal in equity, admiralty and prize causes, a transcript of tlie record, and copies of proofs and of such entries and papers on file as may be necessary to hearing, shall be trans, mitted to Supreme Court ; and Supreme Court or court below may order original documents or other evidence to be sent up, in addition to copy of record, or in lieu of copy or part thereof ; but no new evidence is re- ceived in Supreme Court except in admiralty and prize causes. (But as to admiralty causes, see Act Feb. 16, 1875, 18 Stat. L, 315, post.) Bev. Stats, sec. 750.] In equity and admiralty causes, only tlie proc- ess, pleadings and decree, and such orders and memorandums as may be necessary to show the jurisdiction of the court, etc., shall be entered on the final record. (But as to admiralty causes, see Act Feb. 16, 1875, 18 Stat. L. 315, post.) Aet Feb. 16, 1875, sec. 1, 18 Stat. L. 315.] In admiralty cases, the circuit courts, shall find the facts and con«lusions of law upon which judgment is rendered, and shall state the facts and conclusions of law separately, and, in finding facts, a jury of not less than five nor more than twelve may, upon consent, etc., be empaneled to render verdict, as in cases at common law, such verdict to bo entered of record and to stand as the finding of court upon which judgment shall be entered; and the review of Supremo Court shall be limited to questions of law arising on record, and such rulings, excepted to at the time, as may be presented by a bill of exceptions prepared as in actions at law. Same Aet, sec. 2, same place.'] In patent causes, in equity, the circuit courts may, subject to such regulations as may be prescribed by the Su- preme Court, empanel a jury of not less than five nor more than twelve, and submit to them such questions of fact as may be deemed expedient, and the verdict shall be treated and proceeded on the same as issues sent out of chancery. Bev. Stats, sec. 1005.] Supreme Court may allow amendment of writ of error when mistake in teste of writ, or seal wanting, or writ return- able wrong day, or when defective statement of title of action or parties, if defect can be remedied by reference to accompanying record, and in all other particulars of form, provided defect has not prejudiced, and amendment will not injure, defendant in error. Bev. Stats, sec. 1006.] Amendment of form or substance may be al- lowed by Supreme Court in prize causes. (See Rev. Stats, sec. 463G.) Bev. Stats, sec. 1008.] Writ of error must be brought or appeal taken within two years from entry of judgment, decree or order, except in cases of infants, insane or imprisoned persons, when writ or appeal may be taken within two years, exclusive of term of disability. (See Bev. Stats, sec. 635.) Bev. Stats, sec. 1009.,] Appeals in prize causes must be taken within thirty days from rendering of decree, unless court previously extends time ; but Supreme Court may allow appeal if any notice or intention to appeal be filed with the clerk of the district court within such thirty days. (See Kev. Stats, sees. 695, 4686.) 22 SUPEEME COURT EITLES. Decisions. Only final judgments can be reviewed in tlie Supreme Court. If anything remains to be done the judgment is not final, and a writ of error or appeal Will n6t lie. Rutherford v. Fisher, 4 Dall. 23 ; Boyle ®. Zacharie, 6 Peters, 648 ; Callan v. May, 3 Black, 541 ; Gregg v. Forsyth, 3 Wall. 56 ; Sparrow «. Strong, 3 Id. 103 ; Baxter e. Forsyth, 5 Id. 190, But if the decision below disposes of the case, a review can be had notwithstanding a defect or irregularity in the judgment. Wilson «. Daniell, 3 Ball. 401 ; N. O. v. Morgan. 10 Wall 356 ; Rogers v. Burling- ton, 3 Id. 654. Where the dispute between the parties is terminated as to all the merits of the cause, and nothing remains but to carry the judgment or decree into execution, it is final for all the purposes of an appeal. Win- throp Iron Co. v. Meeker, 3 Sup. Ot. Bep. 111. A writ of error may be amended by filling the blank left for the re- turn day. Mossman ». Higginson, 4 Ball. 13. The parties must be so described on the record as to show that the court has jurisdiction, lb. If the writ of error is not returned at the proper term it becomes a nullity. Blair v. Miller, 4 Ball. 21. If a writ of error be served before the return day, it may be returned afterwards, even at a subsequent term ; and the appearance of the de- fendant in error waives all objection to the irregularity of the ret\irn. Wood V. Lide, 4 Craneh, 180. A return to a writ of error certified by the clerk of the court which pronounced the judgment, and authenticated by the seal of the court, is in conformity to law, and brings the record regularly before this court. Worcester v. Georgia, 6 Peters, 515. A case cannot be heard upon a record containing only an agreed statement of facts, without any of the proceedings below except the judgment. Keene v. Whittaker, 13 Peters, 459. A writ of error must be made returnable to the first day of the term. If made returnable at any subsequent day it is erroneous, and will be dismissed on motion. And in this respect it cannot be amended. Ins. €o. ■». Mordecai, 31 How. 195 ; Porter v. Foley, Id. 393. The writ of error, or the allowance of appeal, together with a copy of the record and the citation, when a citation is required, must be re- turned to the next term of this court after the writ is sued out or the ap- peal allowed ; otherwise the writ of error or appeal becomes void, and the party desiring to invoke the appellate jurisdiction will be obliged to resort to a new writ or appeal. U. S. ■». Hoge, 3 Bow. 534 ; U. S. ii. Vallobolos, 6 M. 90; U. S. «. Curry, Jd. 113 ; Steamer Virginia v. West, 19 Id. 183; Mesa «. U. S., 3 Black, 731; Castro v. U. S., 3 Wall. 46. A citation, with due return, or waiver by general appearance or other- wise, is indispensible to jurisdiction on appeal. Alviso v. U. S., 5 Wall. 834; Bacon v. Hart, 1 Black, 38; Garrison ». Cass Co., 5 Wall. 823. Cases cannot be brought within the appellate jurisdiction of this court SUPREME COURT EULES. 23 by agreement of the parties, and -without an appeal allowed or writ of error served. Washington Co. v. Durant, 7 WaU. 604. Though no citation appears in the record, it may be proved aliunde, that one was issued. Innerarity «. Byrne, 5 Sow. 395. Where an inspection and comparison of written documents is material to the decision of a cause, this court will order the original papers to be sent up from the court below. The Elsineur, 1 Wfieaion, 439. Where a state court is composed of a chief justice and associates, writs of error to such court must be signed by the chief justice ; and if signed by one of the associates only, it will be dismissed for want of jurisdiction. Bartemeyer v. Iowa, 14 WaU. 26. All parties against whom a joint judgment or decree is rendered must join in the writ of error or appeal, or it will be dismissed, except suf- ficient cause for non-joinder be shown. Williams «. Bank, 11 Wfieaton, 414; Owings v. Kincannon, 7 Peters, 399 ; Masterson v. Herndon, 10 Wall 416 ; The Protector, 11 Wall. 83 ; Hampton «. Kouse, 13 Id. 187 ; Simpson v. Greelej', 30 WaU. 153. Cases in equity are heard upon the proofs sent up with the record. No new evidence can be received in the Supreme Court, nor can the pleadings be amended. Blease v. Garlington, 93 U. S. 1 ; Pacific R. R. Co. of Mo. ». Ketchum, 95 U. S. 1. An appeal, although allowed out of term, is not avoided by the non-service of a citation; but this court will impose such terms upon the appellant as, under the circumstances, may be legal and proper. Day- ton V. Lash, 94 U. S. 113. (Distinguishing Vallobolos ®. U. S., 6 How. 90; U. S. V. Curry, Id. 113; City of Washington ®. Dennison, 6 Wall. 496, supra.) Where a writ of error is defective in the statement of the parties thereto, the right to amend is not absolute under sec. 1005, Rev. Stats. ; but the court, in its discretion, may allow the requisite amendment to be made, upon such terms as it may deem just. Pearson ». Yewdall, 95 U.,S. 394. Unless allowed in open court during the term at which the decree was rendered, an appeal will be dismissed if no citation has been issued and the appellee does not appear. Vansant ». Gas Light Co., 99 U. S. 313. A writ of error made returnable to a day different from the return day fixed by statute as the day on which the term commences, will be dismissed. Carroll v. Dorsey, 30 Ifow. 304; Ins. Co. v. Mordecai, 21 Id. 195; Porter v. Foley, Id. 398 ; Agricultural Co. ■». Pierce Co., 6 Wall. 346. The return day of the writ of error may be amended, but the court ■will require a new citation to be issued and served, Nat. Bank v. Banlc of Commerce, 99 U. S. 608. For the purpose of an appeal to, or writ of error from, this court, the transcript of the record is sufficiently authenticated if it be sealed with the seal of the court below, and signed by the deputy clerk thereof in the name of and for his principal. Garneau v. Dozier, 100 U. S. 7. Papers properly belonging to the flies of a court should not be re- 24 SUPREME COURT RULES. moved therefrom except in cases of positive necessity. When, there- fore, an appeal is taken, no order for the transmission of such papers ought to be made unless the actual inspection of them as originals is re- quired to enable the appellate court to give them their full and just effect in the determination of the suit. Craig v. Smith, 100 U. S. 326. Where, on an appeal, papers have been improperly sent here, the order of the court below will be closely examined, to determine whether they are included in its teims. Jb. Where the record is not complete, or properly certified, the court may, in its discretion, allow further time to the appellant to supply such omissions, and in default thereof dismiss the cause. li. B. Co. v. Schutte, 100 U. S. C44. A citation is not required where the appeal is taken and perfected in open court during the term at which the decree complained of is rendered. But the rule is otherwise where, at a subsequent term, tlie appeal is allowed, although the solicitors of the appellee be present. The court will not, however, dismiss the cause for the non-service of a citation in the latter case, but terms will be imposed upon the appellant and a citation be required. E. R. Co. v. Blair, 100 U. 8. 661. An appeal will be dismissed where it appears from the record, taken as a whole, that the amount actually in controversy is not sufficient to give this court jurisdiction. Gray v. Blanchard. 97 U. S. 121 ; Banking Association v. Insurance Association, 103 U. 8. 121 ; Parker v. Morrill, 106 V. S. 1. An appeal is tlie only mode by which the appellate jurisdiction of this court can be exercised in equity suits, brought in the courts of the United States, and it does not he before a final decree has been rendered. Hayes v. Fischer, 103 U. 8. 121. Neither the charge of the court below, if no exception was talcen thereto before the final submission of the case to the jury, u'or the grant- ing or refusing a new trial, is subject to review in the Supreme Court. Railway Co. ■». Heck, 103 U. 8. 120. Where salvors united in a claim for a single salvage service, jointly rendered by them, the owner of the property is entitled to an appeal where the gross sum decreed is in excess of five thousand dollars, al- though the circuit court deemed it proper to apportion the recovery among the salvors, and on such apportionment less than that sum was awarded to each claimant. The Connemara, 103 U. 8. 754. A writ of error will not be dismissed for want of jurisdiction by reason of a failure to annex thereto or return therewith an assignment of errors, pursuant to the requirements of sec. 997, Rev. Stats. School Dist. of Ackley v. Hall, 108 U. 8. 438. (See Sup. Ct. Rule 21, par. 4.) The mere fact that the plaintiff in error had accepted the amount awarded in the decree brought up by writ of error does not estop him from prosecuting the writ of error and procuring a reversal of the decree. U. S. i>. Dashiel, 3 Wall. 688 ; Embry v. Palmer, 2 8up. Ct. Rep. 25. No judgment or decree of a State court can be reviewed in the Su- preme Court unless the writ of error is filed in the court which rendered SUPREME COURT EULES. 25 the judgment or decree ■within two years after the entry thereof. Cum- mings ». Jones, 104 TT. S. 419; Scarborough «. Pargond, 3 8up. Ct. Bep. 877. The omission from a certificate of division of the words " upon the request of either party or their counsel," where neither party challenges the jurisdiction of this court, is not a fatal omission. U. S. «. Harris, 106 U. 8. 629. Where, in a case tried hy the court below, the record does not affirmatively show a written stipulation waiving a jury, the questions decided at the trial cannot be re-examined in the Supreme Court on writ of error. County of Madison v. Warren, 106 U. 8. 623. In the case of a special finding in admiralty, with conclusions of law, the question is not whether the statement of facts made by the circuit court might be true as a conclusion of fact, but whether, upon the facts found, it must be true as matter of law. Sun Mutual Ins. Co. v. Ocean Ins. Co., 1 8up. Ct. Rep. 583. In admiralty, distinct decrees in favor of or against distinct parties, growing out of the same transaction, cannot be joined to give this court jurisdiction. Ejh parte B. & O. R. R. Co., 106 TJ. 8. 5. The facts found by the circuit court in admiralty cases are con- clusive hpon the Supreme Court. The only question that can bo con- sidered is whether the facts found support tlie conclusions of law and the decree. The Abbottsford, 98 U. 8. 440 ; The Benefactor, 103 U. 8. 314; The Adriatic, 103 U. 8. 730 ; The Annie Lindsay, 104 U. 8. 185 ; The Francis Wright, 105 V. 8. 381 ; Sun Mutual Ins. Co. ». Ocean Ins. Co., 1 Sup. Ct. Rep. 583. In order to justify this court in returning a cause in admiralty to the circuit court for the finding of facta required by the Act of Feb. 16, 1875 (18 Stat. L. 315, supra), it must appear that the omission to make such finding is attributable to the court, and not to the parties. The S. S. Osborne, 104 U. 8. 183. Decrees rendered in admiralty prior to the Act of 1875 (18 Stat. L. 315, svpra) but not heard in the Supreme Court until after the act went into effect, will be determined according to the practice before the act was passed, and new evidence will be received. The Richmond, 103 V. S. 540. Questions of fact cannot be re-examined on writs of error. Miles ». U. S., 103 U. S 304. The Act of 1875 (18 Stat. L. 315, supra) relating to appeals in ad- miralty, does not vary the practice requiring the record transmitted to the Supreme Court to contain the testimony, etc., as required by admiralty rule 53. The Alice Taintor, 14 Blatch. 335. Where the amount involved in an admiralty suit is not sufficient to permit a review by the Supreme Court, a general finding of facts is suf- ficient under the Act of 1875 (18 Stat. L. 315, supra). 1365 Vitrified Pipes, 14 Blatch. 374. If an appeal is allowed in open court and security taken, no citation is neciissary ; but if the security is not given until after the term is over, 26 SUPREME COCTET EULES. a citation must be issued and served. Sage v. R. R. Co., 96 U. 8. 715 ; Haskins v. St. L. & S. E. Railway Co., 3 Sup. Ct. Bep. 73. If the writ of error is not made returnable on a particular day, the defendant is entitled to a dismissal, unless the court, on motion, grants leave to amend the defect. Evans v. Brown, 3 Sup. Ct. Bep. 83. EuLB IX. — Docketing Cases. (1.) In all cases where a writ of error or an appeal shall be brought to this court from anyg'udgment or p)ainTiff"m error, or decree rendered thirty days before the com- '^'^^'' *° ' mencement of the term, it shall be the duty of the plaintiff in error or appellant to docket the case 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 commencement of the term, it shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court within the fipst thirty days of the term ; and if the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the case docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the case, and certifying that such writ of error or appeal has been duly sued out and allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the case and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court. (2.) But the defendant in error or appellee may, at his option, docket the case and file a copy of anf ia e"rfor,''or appei- the record witli the clerk of the court ; and '^^' if the case is docketed, and a copy of the record filed with the clerk of this court by the plaintiff in er- ror 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.) Upon the filing of the transcript of a record brought Appearance of counBei. ^^P ^y ^'''^ °^ ^rror or appeal, the appearance of the counsel for the party docketing the case shall be entered. SUPREME COURT RULES. 27 (4.) In all cases where the period of thirty days is men- tioned in this rule it shall be extended to _. , ., ' . . . Time as to writs of Sixty days in writs of error and appeals error and appeals from J, ~ , . » . ^ Pacific states and tcr- irom California, Oregon, Nevada, Washing- ritories. ton. New Mexico, Utah, Arizona, Montana and Idaho. See Sup. Ct. Eule 32. First paragraph promulgated February Term, 1821, as original rule 32, 6 WTieaton, ■ri ; republished as rule 29, 1 Peters, ix ; amended January Term, 1835, 9 Peters, vii ; again amended December Tprm, 1853, 16 How. ix ; revised and made part of this rule, December Term, 1858, 21 How. viii. Second paragraph promulgated December Term, 1853, as part of original rule 63, 16 How. ix ; revised and made part of this rnle, De- cember Term, 1858, 21 How. viii. Third paragragh promulgated December Term, 1867, 6 Wall. V ; amended January 7, 1884. Fourth paragraph promulgated December Term, 1853, as part of rule 63, 16 How. ix; revised and made part of this rule, December Term 1858, 21 How. viii ; amended March 10, 1855, 2 Wall. viii. Statutory Froviaions. Re's. Siats. sec. 1013.] Where appeal is duly taken by both parties from circuit or district court to Supreme Court, the transcript of record filed by either party may be used on both appeals, and both shall be heard as if records had been filed by each. Decisions. The rule to dismiss a writ of error for not filing the record within the first six days of the term does not apply to cases where the transcript shall have been filed at any time before the motion to dismiss. Bing- ham 1). Morris, 6 Orandi, 99; Pickett v. Legerwood, 7 Peters, 144. The rule as to dismissing causes for failure to file the record applies to admiralty suits. The Jonquille, 6 Wheaton, 452. After an appeal has been dismissed for informality in prosecuting it a party may have another appeal, provided the limitation to appeal has not expired. Yeaton v. Lenox, 8 Peters, 133; Steamer Virginia v. West, 19 Eow. 183. Where a motion to docket the cause is made after default, under this rule, and simultaneously a motion to docket and dismiss is made by the defendant in error, the court will allow the case to be docketed, and not dismissed. Owings v. Tiernan, 10 Peters, 34. The defendant in error cannot have the case docketed and dismissed without producing the certificate of the clerk of the court below, al- though a transcript of the record has been lodged with the clerk of this court by the plaintiff in error. West v. Brashear, 13 Peters, 101 ; Mc- Comb V. Armstead, 10 Id. 407. The production of the original writ of error and citation is sufficient, on a motion to docket and dismiss, without a certificate of the clerk of the court below. Amis v. Pearle, 15 Peters, 311. A judgment of dismissal is nisi only, during the term, and in the exercise of a sound discretion the court may, and, unless injurious to some substantial right of the defendant, will, reinstate the case. Gwin v, Breedlove, 15 Peters, 384. 28 SUPREME COURT RULES. A cause cannot be docketed aad dismissed upon the cerliflcate of the clerk of the court below unless all the names of the parties to the record are distinctly set forth. Holliday v. Batson, 4 iToM. 645; Smith v. Clark, 13^010. 21. Where the record is not filed by the appellant within the time pre- scribed by the rules of this court, and the appellee files a copy of it, the appeal will be dismissed on his motion. United States «. Fremont, 18 Eow. 30. The motion to dismiss for the want of jurisdiction, and the motion to dismiss for the want of prosecution, are diiferent and distinct in their character; the one only dismisses the appeal and allows a second, but the other bars it. lb. (See also Castro ®. U. S., 3 Wall. 46.) A certificate of the clerk of the court below that he cannot make out the record in time to enable the plaintiff in error to comply with this rule is not a sufficient cause for an extension of time within which to do so. Sturgess ®. Harold, 18 Eow. 40. If an appeal is taken after the commencement of the term of the Supreme Court, the appellant is not bound to file the record until the next term. Stafford ». Union Bank of La., 16 How. 135. When an appeal has been docketed and dismissed, the same cannot again be docketed without a new appeal. Rogers ®. Law, 31 Hum. 526. An appeal must be prosecuted by filing the record within the term next after the appeal is taken; otherwise it will be dismissed. Misa «. U. S., 2 Black, 731; Castro ». U. S., 3 Wall. 46. The practice is for the clerk to enter the appearance of the attorney- general without special direction in every case in which the United States is a party. Brown v. U. S., 3 Peters, 459. As the appellant whose appeal has been dismissed for not filing a transcript of the record has the whole term within which to file it and move to reinstate the cause, the clerk cannot give a certificate of dis- missal during the term. Bank of the United States v. Swan, 3 Peten, 68. To docket and dismiss a cause under this rule, it must appear from the certificate of the clerk of the court below that the judgment or decree was rendered thirty days before the first day of the next t&m of this court. Rhodes ». Steamship Galveston, 10 How. 144. A plaintiff in error cannot be compelled to file the record. The court can only dismiss the cause in case of default. Boyd i>. Scott, 11 How. 293. A motion to docket and dismiss, when granted, is not an affirmance of the judgment below. It remits the cause to the lower court for pro- ceedings to carry the judgment into effect. U. S. v. Gomez, 23 How. 336. If it afterwards appears that no appeal had been taken when proceed ings to docket and dismiss were had, the court will rescind the order of dismissal and revoke the mandate, lb. If no motion to dismiss be previoxisly made, the record may be filed and the cause docketed at any time within the term. Sparrow v. Strong B Wall. 97. SUPREME COUET EULES. 29 An appeal from California -will be dismissed if the record is not filed within the first sixty days of the next term. German ®. U. S. , 5 Wall. 825. An appeal or writ of error which does not bring to this court a trans- cript of the record before the expiration of the term to which it is re- turnable is no longer valid. Edmonson v. Bloon^shire, 7 Wall. 306. Where the United States is a party, delay in filing record may be excused where the Government is obliged to trust conduct of cases in re- mote parts of country to subordinate agents. U. S. ». Vigil, 10 Wall. 433. An appeal will be dismissed where, at the term to which it is return- able, the transcript was, through laches of appellant, not filed, or cause docketed in this court. Appellee may move to dismiss at any time before hearing, or court may dismiss of its own motion. Grigsley v. Purcell, 99 TT. 8. 505. Counsel who enter their appearance under this rule will be held re- sponsible for all that such entry implies until they are relieved by sub- stitution, or otherwise. Alvord ». U. S., 99 U. S. 594. Where a return was duly made to a writ of error, and a transcript of the record lodged in clerk's oflice, and a citation had been issued and served in time, but the cause was not docketed nor fee bond given until about a year afterwards, Held, as no motion to dismiss had been mean- time made, a motion at present term must be denied. Edwards ». U. S., 103 U. S. 575. EuLE X. — Security for Clerk's fees. — Printing Records. — Attachment for Cleric's fees. (1.) In all cases the plaintiff in error or appellant, on docketina: a case, and filing the record, shall „ .^ , , , , , '^ ' ° Secnnty for clerk's fees. enter into an undertaking to the clerk, with surety to his satisfaction, for the payment of his fees, or other- wise satisfy him in that behalf. (3.) The clerk shall cause an estimate to be made of the cost of printing the record, and of his fee for Estimate and payment preparing it for the printer and supervising °^ ""^^ °' pnntmg. the printing, and shall notify to the party docketing the case the amount of the estimate. If he shall not pay it within a reasonable time, the clerk shall notify the adverse party, and he may pay it. If neither party shall pay it, and for want of such payment the record shall not have beeiT printed when a case is reached in the regular call of the docket, after March 1, 1884, the case shall be- dismissed. (3.) Upon payment by either party of the amount estimated by the clerk, twenty-five copies of the record ^ ^^^.^^ ^^ ^^ ^^^^^_ shall be printed, under his supervision, for the use of the court and of counsel. 30 SUPEEME COURT RULES. (4.) In cases of appellate jurisdiction the original transcript on file shall be taken by the clerk to the printer. But the clerk shall cause copies to be made for the printer of such original papers, sent up under Eule 8, Section 4, as are necessary to be printed ; and of tiae whole record in cases of original jurisdiction. (5.) The clerk shall supervise the printing, and see that the Clerk to supervise and pnnted copy is properly indexed. He shall distribute. distribute the printed copies to the justices and the reporter, from time to time, as required, and a copy to the counsel for the respectire ptirties. (6). If the actual cost of printing the record, together with y, . , , , the fee of the clerk, shall be less than the Eefand of advance. . amount estimated and paid, the amount of ' the difference shall be refunded by the clerk to the party pay- ing it.' If the actual cost and clerk's fee shall exceed the estimate, the amount of the excess shall be paid to the clerk before the delivery of a printed copy to either party or his counsel. (7.) In case of reversal, affirmance, or dismissal, with costs, „ ,, ^ , , the amount of the cost of printing the record Cost to be lazed. ^ " and of the clerk s fee shall be taxed against the party against whom costs are given, and shall be inserted in the body of the mandate or other proper process. (8.) Upon the clerk's producing satisfactory evidence, by Attachment for Clerk's affidavit or the acknowledgment of the par- '"^^^^ ties or their sureties, of having served a copy of the bill of fees due by them, respectively, in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties, respectively, to compel pay- ment of the said fees. See Snp. Ct.EuIes 1, 11, 24, 32. First paragraph promulgated February Term, 1808, i Cranch, 537 ; republished 1 Wheaton, xvii; again republished 1 Peters, viii; amended January Term, 1831, 5 Peters, viii (see that vol., p, 734); revised and made part of this rule, December Term, 1858, ■21 How. viii; amended May 8, 1876, 91 TJ. S. vii. Second, third, fourth, fifth, sixth and seventh paragraphs promulgated January 7, 1884. Eighth paragraph promulgated Febru- ary Term, 1808, 4 Cranch, 537; republished, 1 Wheat, xviil, and 1 Peters, viii; revised, and made part of this rule, December Teru^, 18^, 21 How. is. Statutory Provisions. Act Mar. 3, 1877, 19 Stat. L. 344.] There shall be taxed against the los- ing party, in the Supreme Court and the Court of Claims, the cost of print- ing the record, to be collected by the clerk and paid into the treasury. BUPEEME COUET RULES. 31' Decisions. Each party, whether plaintiff or defendant, is liable for the clerk's fees due from each respectively, and an attachment may issue against either. Caldwell v. Jackson, 7 Cranch, 376. Tlie clerk may refuse to docket a cause if no fee bond is filed or he is not otherwise satisfied by the party as to the payment of his fees; arid the cause will be dismissed if this requirement is not fulfilled. Owings V. Tiernan, 10 Peters, 447 ; West «. Brashear, 13 2d. 401 ; Van Rens- selaer V. Watt, 7 Sow. 784. Where the court has no jurisdiction of a cause it cannot award costs, or order execution for them to issue. The Mayor ■». Cooper, 6 Wall. 247. Where, by reason of the failure of the appellant to enter into an undertaking to the clerk for the payment of his fees, or otherwise satisfy him in that behalf, the appeal has, upon motion of the appellee, been docketed and dismissed, the court will not, on motion of the appellant, at a subsequent term, set aside the order of dismissal and grant leave to file the record and docket the cause. Selma and Meriden R. R. Co. V. Louisiana Nat. Bk. of N. O., 94 U. S. 253. The clerk may, for his protection, demand that his fees be paid in advance. Stever «. Rickman, 3 Sup. Ct. Bep. 67. If the party prosecuting the cause fails, after demand, to pay the clerk's fees in time to enable him to cause the record to be printed in due season, the writ of error or appeal will be dismissed for want of prosecution, unless sufllcient cause be shown to the contrary, lb. (See in re amendments to rules 1 and 10, 1 Sup. Ut. Bep. 135.) EuLB XL — Translations. Whenever any record transmitted to this court upon a writ of error or appeal shall contain any docu- Translations to be made ■^ ■*■ .of documents, etc, in ment, paper, testimony, or other proceedings foreign language. in a foreign language, and the record does not also contain a translation of such document, paper, testimony, or other proceeding, made under the authority of the inferior court, or admitted to be correct, the record shall not be printed ; but the case shall be reported to this court by the clerk, and the court will thereupon remand it to the inferior court, in order that a translation may be there supplied and inserted in the record. Promulgated December Term, 1851, aa original rule 60, 18 How. xi ; revised and made rule 11, December Term, 1858, 21 How. ix. EtTLE XII. — Further proof. (1.) In all cases where further proof is ordered by the court, the depositions which shall be taken shall be by a 32 SUPREME COUET EULES. Furtuer proof by dep- Commission, to be issued from this court, or °'*'"°°*- from any circuit court of the United States. (3.) In all cases of admiralty and maritime jurisdiction, In admiralty and rnari- where new evidence shall be admissible in time cases. .j-j^jg QQurt, 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 com- mission 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-interrogatories, within twenty days from the service of such notice : Provided, hoiv- Orai testimony. ever, That nothing in this rule shall pre- vent any party from giving oral testimony in open court in cases where by law it is admissible. First paragrapli promulgated February Term, 1816, as original nile 35, 1 Wheaton, xis ; republisiied as rale S4, 1 Peters, vlii; revised and made part of rule 13, December Term, 1838, 31 How. ix. Second paragraph' promulgated February Term, 1817, 3 Wheaton, vii ; republisiied as rule 36, 1 Peters, ix ; revised and made part of this rule December Term, 1868, 21 How. j... Statutory Provisions. Bev. Stats, sec. 698.] On appeals in equity and admiralty, and in' prize cases, a transcript of the record, copies of proofs, and of entries and papers necessary, shall be transmitted to Supreme Court, and original papers may be ordered to be transmitted also. On such appeals no new evidence shall be received except in admiralty and prize causes (Note. — No new evidence can now be received in admiralty causes on the instance side of the court. See Act Feb. 16, 1875, 18 Stat. L. 315, post.) Sev. Stats, sec. 863.] The mode of proof in equity and admiralty causes shall be according to rules prescribed by the Supreme Court. Bev. Stats, sec. 917.] Supreme Court may regulate the taking and obtaining of evidence in equity and admiralty, in the circuit and district courts. Act Feb. 16, 1875, sec. 1, 18 Stat. L. 815.] The circuit courts, in admiralty causes, on the instance side, shall separately find the facts and conclusions of law, and the review of the Supreme Court shall be limited to questions of law arising on the record, and to rulings duly excepted to and presented by a bill of exceptions. SaTne Act, sec. 2, same place.] In patent causes in equity, circuit courts may submit any question of fact to a jury of not less than five TK^t more than twelve, whose verdict shall have the same effect as in cases of issues out of chancery. (Construed, Watt v. Starke, 101 U. B. 347.) SirPKEME COTJET EULES. 33 Decisions. This court will grant a commission to take new evidence to be used here in cases of violation of embargo. Hawthorne t>. United States, 7 Cranch, 107. It is not a matter of course to make an order for further proof in this court in a prize cause, and such order will not be made when there is reason to believe the applicant has suppressed important evidence. The St. Lawrence, 8 Crancli, 434. But the rule is otherwise when the evidence not produced in the court below is shown to support the applicant's title, and there is no reason to suppose it was kept back unfairly in the court below, lb. Further proof inconsistent with that already in the case will be re- fused. The Euphrates, 8 Cranch, 385. When it did not distinctly appear that enough had been done to amount to a capture, an order for further proof was made by the court, sua sponie. The Grotius, 8 Cranch, 456. Sec, also. The Adeline, 9 Cranch, 244 ; The Samuel, 1 W/imton, 9 ; The Fortuna, 8 W/imton, 236 ; The Atalanta, 3 Wheaton, 409. When merits plainly appear, it is the settled practice of this court in admiralty to allow a new allegation to be filed, and for this purpose to remand the cause to the circuit court. The Adeline, 9 Cranch, 344. New evidence offered in this court is open to all legal objections. The Samuel, 1 Wheaton, 9. If the parties have been guilty of fraud, misconduct, or illegality, in a prize cause, further proof will not be allowed. The Dos Hermanos, 2 WJieaton, 76. Parties who have had thejbenefit of plenary proof in the court below cannot have an order for further proof here except under very special circumstances, lb. It is the practice of this court, in prize cases, to hear the cause in the first instance upon the evidence transmitted by the circuit court, and to decide upon that evidence whether it is proper to allow further proof. The London Packet, 2 Wheaton, 371. Depositions to be used as further proof in this court must be taken under a commission, lb. Depositions taken as further proof in one prize cause cannot be in- voked in another. The Experiment, 4 Wlieaton, 84. In cases of original jurisdiction, in equity, where a State is a party, it maybe referred to a commissioner to take proof. Pa. v. Wheeling and Belmont Bridge Co., 9 How. 647 ; Florida ». Georgia, 17 How. 478. Where it appeared that witnesses in the court below had been cor- rupted, the court ordered a commission to take testimony as to that fact. The Western Metropolis, 12 Wail. 389. This court cannot, after an appeal in equity, receive new evidence ; nor can it on motion set aside a decree of the court below and grant a rehearing. Roemer v. Simon, 91 TT. 8. 149. Cases in equity on appeal are heard upon the proofs sent up with the 3 34 SUPREME COTIET ETJLE8. record. No new evidence can be received. Blease v. Garlington, 93 U. 8. 1. Since the passage of the act of Feb. 16, 1875 {supra), the findings of fact in admiralty causes by the circuit court, on the instance side, are conclusive, and the review of the Supreme Court is limited to questions of law. The case stands precisely as if the facts had been found by the verdict of a jury. No new evidence can, therefore, be received. The Abbottsford, 98 U. S. 440 ; The Benefactor, 103 U. S. 214 ; The Adri- atic, 103 U. 8. 730 ; The Annie Lindsley, 104 U. 8. 185 ; The Francis Wright, 105 U. 8. 391. EuLE XIII. — Objections to evidence in the record. In all cases of equity or admiralty jurisdiction, heard Objections to deposi- in this court, no obiection shall hereafter tion, deed, grant, and " . . other exhioits, ia equity be allowed to bo taken to the admissibility and admiralty causes, . ■ , to be taken below. 01 any deposition, deed, grant, or other ex- hibit, 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. Promulgated February Term, 1834, 9 Wheaton, iv; republished as rule 32, 1 Peters, x; revised and made rule 13, December Term, 1858, 21 How. x. Decisions. Unless objection is made to evidence in the court below, it will be presumed to have been admitted by consent. The Pizarro, 2 Wlieatqn, 237. A party should be confined by a court of errors to the specific ob- jection to evidence taken at the trial below. Hinde ii. Longworth, 11 Wheaton. 199. Technical objections not brought to the notice of the court below will be disregarded on appeal. Harrison v. Nixon, 9 Peters, 483. This court will examine a deed not put in evidence below when the parties consent. Boone ». Chilis, 10 Peters, 177. Where a deed was objected to in the court below on the ground of fraud, but no specific grounds of objection were made, this court can- not inquire into the correctness of the objection. Thomas v. Lawson, 21 Moid. 331. Where none of the evidence is objected to below, and no exception, taken to the findings, objection cannot be made in this court. R. R. Co. ■V. Lindsay, 4 Wall. 650. KuLE XIV. — Certiorari for diminution of the record. No certiorari for diminution of the record will bo here- certiorari for diminu- after awarded in any case unless a motion tion of record not to ,, „ , ,, , , . .,. , ,, issue without 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 SUPREME COURT RULES. , 35 such certiorari must be made at the first Motions tor, when to be term of the entry of the case ; otherwise the ™*'**' same will not be granted, unless upon special cause shown to the court, accounting satisfactorily for the delay. Promulgated February Term, 1824, 9 Wheaton, iv; repablished as rule 81, 1 Peters, X ; revieed and made rule 14, December Term, 1858, 21 How. x. Statutory Provisions. iJea. Stats, sec. 713.] The Supreme, circuit and district courts may issue writs of scire facias, and all writs not specifically provided for by statute, necessary to the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. Decisions. The clerk of the court to which a certiorari is directed should make return to the same under his hand and the seal of the court. Fenemore ®. United States, 3 Ball. 360, note. The return need not be made by the judge. Stewart i). Ingle, 9 Wheaton, 536. A certiorari will be awarded upon a suggestion that the citation has been served, but not sent up with the transcript of the record. Field v. Milton, 3 Cranch, 514. Where the record omits a part of the charge of the judge embraced in an exception, the plaintiff in error may obtain a certiorari upon pro- ducing a properly certified copy of the exception. Stimson v. West- chester R R. Co., 3 Ecv>. 553. Where there appears to be an omission in the record of an import- ant paper, which may be necessary for a correct decision of the case of the defendant in error who has no counsel in court, the court will, of its own motion, order the case to be continued and a certiorari to be issued to bring up the missing paper. Morgan ■». Curtenius, 19 How. 8. The court will award a certiorari when diminution of the record is suggested, even at the third term, if the delay be accounted for ; out the hearing will not be postponed. Clavk ». Hackett, 1 Blade, 77. If a party is dissatisfied with the record as returned by the clerk, he has his remedy by certiorari. U. S. «. Gomez, 1 WaU. 690. On a mere petition for a certiorari, the court, according to its regular and better practice, will decline to hear the case on its merits, even though the counsel for the petitioner produce a copy of the record ad- mitted on the other side to be a true one. It will wait for a return, in form, from the court below. Me parte Dugan, 2 Wall. 134. A writ of error should be directed to the court rendering fl nal judgment and in which the record remains, although it may not be the highest court of the State, and although a higher court may have exercised a revisory jurisdiction over points in the case, and certified its decision to the court below. And the omission in the record of these matters and the action of the higher court upon them, does not make a case for a certiorari on account of diminution. McGuire v. The Commonwealth, 3 WaU. 383. 36 StrPEEME COtTRT EtJLES. It being made to appear, by a certificate of the clerk of the circuit court that there was a clerical error in the transcript of the record re- turned to this court, the error was allowed to be amended here without returning the transcript to the court below, and without a certiorari. Woodward «. Brown, 1 Peters, 1. A certiorari for diminution of the record was allowed under special circumstances, and where the cause had been continued until the next term, although the motion for it was made after more than one term had passed since the entry of the case, and contrary to a rule of "the court. Stearns «. U. S., 4 WaU. 1. The writ of certiorari, being properly used to bring up outbranches of the record or other documents or writings omitted, is not properly asked where it is desired to have the Court of Claims supply certain sup- posed defects in its conclusions deducible from the evidence before it. U. S. t>. Adams, 9 Wall. 661. Where the only defect in a transcript sent to this court is that the clerk has not appended to it his certificate that it contains the full record, a certiorari is not the proper remedy for relief to the plaintiff in error. Leave should be asked to withdraw the transcript in order that the clerk below may append his certificate. Hodges «. Vaughan, 19 Wall. 13. On an allegation of deficiency in the record, the deficiency, if any, may be supplied by certiorari. A motion to dismiss on such an allega- tion will be denied. The Kio Grande, 19 Wall. 178 ; Missouri, K. & T. Railway Co. v. Dinsmore, 2 Sup. Ct. Hep. 9. If the Court of Claims grants a new trial pending an appeal to this court, it vacates the judgment and resumes control of the case and the parties, and no certiorari will be granted to compel that court to send here proceedings subsequent to the appeal. U. S. v. Young, 94 U. S. 258. A cause in admiralty will not be returned to the court below for the finding of facts required by the act of Feb. 16, 1873 (18 Stat. L. 315), unless it appears that the omission to make such finding is attributable to the court, and not to the parties. The S. S. Osborne, 104 IT. 8. 183. Although upon the face of the decree it appears that the case was dis- posed of on demurrer to the bill, and, therefore, the evidence is not nec- essary for a hearing in this court, a certiorari may be granted where the record has not been printed, and the parties do not agree in their statements of what it contains. Missouri, K. & T. RaUway Co. v. Dinsmore, 2 iSup. Ct. Sep. 9. EuLB XV. — Proceedings on death of a party. (1.) WheneTer, pending a writ of error or appeal in this Death of party ; repre- cotirt, either party shall die, the proper rep- ted, etc. resentatives in the personalty or realty of the deceased party, according to the nature of the case, may Toluntarily 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 SUPREME COTTET BTJLES. 37 parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order, that unless such representatives shall begome parties within the first ten days of the ensuing term, the party moving 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 judgment or decree reversed if it be erroneous : Provided, however, that a copy of every such order shall be printed in some newspaper of general circulation within the State, Territory or District, from which the case is brought, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. (3.) When the death of a party is suggested, and the rep- resentatives of the deceased do not appear 1 , , . , 1 T J, , , , , , Abatement of case. by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate. (3.) When either party to a suit in a circuit court of the United States shall desire to prosecute a writ Death of party before of error or appeal to the Supreme Court of writ of error or appeal. the United States, from any final judgment or decree, ren- dered in the said circuit court, and at the time of suing out such writ of error or appeal the other party to the suit shall be dead, and have no proper representative within the juris- diction of the court which rendered such final judgment or decree so that the suit cannot be revived in that court, but shall have a proper representative in some State or Territory of the United States, the party desiring such writ of error or ap- peal may procure the same, and may have proceedings on such judgment or decree superseded or stayed in tlie same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the commencement of the term to which such writ of error or appeal is returnable, the plaintiff in error or appellant shall make a suggestion to the court, supported by afiSdavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered said judgment or decree, so that the suit 88 SUPREME OOTTET EULES. could not be reyived in that court, and that said party had a proper representative in some State or Territory of the United States, and stating therein the name and character of such representative, and the State or Territory in which such repre- sentative resides ; and upon such suggestion he may, on mo- tion, obtain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintifE in error or appellant shall be entitled to open the record, and, on hearing, have the judg- ment or decree reversed, if the same be erroneous : Provided, however, that a proper citation, reciting the substance of such Citation to representa- oi'ut 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 argu- ment. (3.) Only two counsel will be heard for Two counsel. each party on the argument of a case. (3.) Two hours on each side will be allowed for the argu- ment and no more, without special leave of Two tours on each side the court, granted before the argument between couubci. 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 closing arguments. First paragrapli promulgated on revision of the rules at December Term, 1858, 21 How. xiii. Second paragraph promulgated February Term, 1812, as original rule 23, 1 Wheaton, xviii ; republished 1 Peters, 9 ; revised and made part of rule 21, December Term, 1838, 21 How. xii ; again republished May 1, 1871, 11 Wall, ix ; again republished November 16, 1872, 14 Wall. 11 ; again republished and made part of this rule Janu- ary 7, 1884. Third paragraph promulgated December Term, 1849, as original rule 53, 8 How. T ; revised and made part ol rule 21, December Term, 1858, 21 How. xii ; amended May 1, 1871, 11 Wall, ix ; republished November 16, 1872, 14 Wall, xi; revised and made part of this rule, January 7, 1884. EuLE XXIII. — Interest, (1.) In cases where a writ of error is prosecuted to this court, and the judgment of the inferior court interest where judg. is affirmed, tlie interest shall be calculated of error, and levied from the date of the judgment below until the same is paid, at the same rate that similar judgments bear interest iu the courts of the State where such judgment is rendered. 46 STJPEEME COUET KTTLES. 2. In all cases where a writ of error shall delay the pro- Where writ of error ceedinafs on the iud£rment of the inferior taken for delay, dam- , i , ti , , , -, ages to be awarded. court, and shaJl appear to have been sued out merely for delay, damages at a rate not exceeding ten per cent., in addition to interest, shall be awarded upon the amount of the judgment. 3. The same rule shall be applied to decrees for the pay- Same rule in equity, meut of money in cases in equity, unless nnless otherwise , . - ,, .,. , ordered. otherwise Ordered by this court. 4. In cases in admiralty, interest shall not be allowed No interest in admiralty nnlcss specially directed by the court. cases, unless, etc. tr J J First paragraph promulgated as original rule 62, December Term, 1831, 13 How. v ; revised and made part of rule 23, December Term, 1S58, 21 How. xiii. Second para- graph promulgated February Term, 1803, as original rules 17 and 18, 1 Cranch, xvii ;, republished, 1 Peters, xxiv ; again republished, 1 Wheatpn, xvii ; revised, corrected and made part of this rule, December Term, 1858, 21 How. xiii; amended May 1, 1871, 11 Wall. X. Third paragraph promulgated as original rule 62, December Term, 1851, 3 How. V ; revised and made part of this rule, December Term, 1858, 21 How. xiii. Fourth paragraph promulgated January 7, 1884. Statutory Provisions. Bev. Stats, sec. 966.] Interest allowed on all judgments in civil causes in circuit and district courts, to be levied with execution of 'judgment, in cases where same allowed by law of State in which court held, same to be calculated from date of judgment and at rate allowed by State law. Mev. Stats, sec. 1010.] Where judgment is affirmed on writ of error in Supreme Court or a circuit court, damages for delay shall be adjudged to respondent, together with single or double costs, at the court's discre- tion. Decisions. This rule applies to cases inectuity as well as actions at law. Perkins «. Fourniquet, 14 Eow. 328. But it does not apply to admiralty cases. Hemmenway «. Fisher, 20 Eow. 255. (See Himley e. Rose, 5 Cranch, 317; The Santa Maria, 10 Wheaion, 481.) If the writ of error or appeal be taken for delay, damages will be awarded at the rate of ten per cent., to be computed from the date of the judgment in the court below. Kilborn v. State Savings Institution, 22 Mow. 503; Sutton v. Bancroft, 33 Mow. 320; Jenkins i). Banning, 'iZMow. 455; Prentice ». Pickersgill, 6 Wall. 511; Ins. Co. «. Huchberger, 12 Wall. 164; Hennessey v. Sheldon, 12 Wall. 440. Although a case will not be dismissed on motion simply because the court may be of opinion that it was brought here for delay only, it will not hesitate to exercise its power to adjudge damages where it finds that its jurisdiction has been invoked merely to gain time. Amory ». Amory 91 U. S. 356. More than ten per cent, damages cannot be awarded under this rule, but the court may give less. Eailway Co. ■». Foley, 94 U. S. 100. The court declares that it will, by the assessment of damages, sup- StrPEEME COUET EULES. 47 I press the evil of resorting to its jurisdiction on frivolous grounds. Whitney «. Cools, 99 U. 8. 607. Interest may be awarded under this rule when a judgment is affirmed against a collector of customs for moneys exacted by him as duties. Schell 1). Cochran, 3 WaU. 837. (See White v. Arthur, 10 Fed. R. 80.) EuLE XXIY— Costs. (1.) In all cases where any suit shall be dismissed in this court, except where the dismissal shall be for costs:— ondismiBsai-. want of jurisdiction, costs shall be allowed to the defendant in error or appellee, unless otherwise agreed by the parties. (3.) In all cases of aiSrmance of any judgment or decree in this court, costs shall be allowed to the de- -when jnagment or fendant in error or appellee, unless otherwise '^^"^^ afflrmea. ordered by the court. (3.) In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff waen judgment or in error or appellant, unless otherwise ordered ^'^'^^''^ reversed. by the court. The cost of the transcript of the record from the court below shall be a part of such costs, and be taxable in that court as costs in the case. (4.) JSTeither of the foregoing sections shall apply to cases where the United States are a party ; but in Euie not to apply to 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 cierk to issue mandate mandate, or other proper process, in the o° ii'smissai. 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 And to insert costs. 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. (7.) Note. — Paragraph 7 contains a schedule of the clerFs fees, which, for convenience of reference, is inserted opposite page 1. First paragraph promnlgated as original rule 45, January Term, 1838, 12 Peters, vii; revised and made part of rule 24, December Term, 1S58, 21 How. xv. Second paragraph promulgated as original rule 46, December Term, 1888, 12 Peters, vii ; revised and made part of this rule, December Term, 1858, 21 How. xiv. Third paragraph pro- mulgated as original rule 22, February Term, 1810, 1 Wheaton, xviii ; republished, 48 STTPKEME COURT KTJLES. 1 Peters, ix ; amended and made rule 47, December Term, 1838, 12 Peters, vii ; re- vised and made part of this rule, December Term, 1858, 81 How. xiv ; amended April 18, 1864, 1 Wall. v. Fourth paragraph promulgated as original rule 48, December Term, 1838, 12 Peters, vii ; amended and made part of this rule, December Term, 1838, 21 How. ziv. Fifth paragraph promulgated as original rule 49, December Term, 1838, 12 Peters, vii ; revised and made part of this rule, December Term, 1838, 21 How. ziv. Sixth paragraph promulgated as original rule 50, December Term, 1838, 13 Peters, vii; revised and made part of this rule, December Term, 1858, 21 How. xiv. Statutory Provisions. Act Mar. 8, 1883, chap. 143, 23 Stat. L. 631.] The Supreme Court is empowered to prepare a table of fees to be charged by the clerk there- of, and until same is prepared the fees for recording or copying any paper or record shall not exceed fourteen cents per folio. Decisions. Costs will be allowed upon the dismissal of a writ of error for want of jurisdiction, if the original defendant be also defendant in error. Winchester v. Jackson, 3 Cranoh, 514. If judgment is reversed for want of jurisdiction, costs are not given. Montalet«. Murray, 4 Oranch, 46; Strader «. Graham, 18 How. 602; The Mayor «. Cooper, 6 Wall. 247, In all cases of reversal, if this court direct the court below to enter judgment for the plaintlH in error, the court below will, of course, enter the judgment with the costs of that court. McKnight v. Craig, 6 CraTieli, 183. The court does not give costs where a cause is dismissed for want of jurisdiction. Inglee «. Coolidge, 3 Wheaton, 368; Mclver v. Wattles, 9 Wwaion, 650. If a judgment or decree is reversed, except for want of jurisdiction, the plaintiff in error or appellant recovers costs in this court. Bradstreet ■B. Potter, 16 PeUrs, 317. The United States never pay costs. U. S. ■». Barker, 3 Wheaton, 395 ; U. S. V. Boyd, 5 How. 29. No judgment or decree for costs can be rendered directly against the United States. The Antelope, 13 Wheaton, 546. The mandate of the Supreme Court to the court below must be its guide in executing the judgment or decree on which it is issued. West V. Brashear, 13 Peters, 51. On an appeal from a decree of the court below, by which a mandate of this court was construed and applied, this court will examine the mandate and the proceedings upon which il was founded, and determine whether it was correctly construed. Mitchell v. U. S., 15 Peters, 52. If the court below executes the mandate in accordance with its terms, no further rev.ew can be had in the Supreme Court. U. S. «. Fremont, 18 How. 30. If the court below to which the mandate is sent does not proceed to execute it, or disobeys and mistakes its meaning, the party aggrieved SrrPEEME COUET EITLES. 49 may, by motion for a mandamus, at any time, bring the errors or omis- sions before this court for correction. U. S. v. Fossatt, 21 Sow. 445. EuLE XXV. — Opinions of the court. (1.) All opinions delivered by the court shall, immediately upon the delivery thereof, be handed to the opinions of the conrt clerk to be recorded. And it shall be the Xy\ bl'dluveiedto duty of the clerk to cause the same to be '^p"''"- forthwith recorded, and to deliver a copy to the reporter as soon as the same shall be recorded. (3.) The original opinions of the court shall be filed with the clerk of this court for preservation. originals to be preserved. (3.) Opinions printed under the supervision of the justices delivering the same, need not be copied by when printing of opin- the clerk into a book of records, but at the S th^erS n^ot'^'lfe- end of each term the clerk shall cause such '■«<=<"'^«d- printed opinions to be bound in a substantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded within the meaning of this rule. First paragraph adopted on revision of the rales at December Term, 1858, 31 How. Jriv. Second paragraph promulgated March 14, 1834, 8 Peters, vii ; revised and made part of this rale December Term, 1868, 21 How. xiv. Tliird paragraph added April 23, 1883 (not reported). Statutory Provisions. Eev. Stats, sec. 677.] The Supreme Court shall have power to ap- point a reporter of its decisions. Sev. Stats, sec. 681.] The reporter shall cause the decisions of the Supreme Court to be printed and published within eight months after they are made, and deliver three hundred copies of the volumes to the Secretary of the Interior. In any year, when so directed by the court, he shall cause a second volume to be published. Bev. Stats, sees. 498, 683.] Distribution of copies delivered to Secre- taiy of the Interior regulated. Act Aug. 5, 1882, cnap. 389, 22 Stat. L., 354.] The reporter shall receive an annual salary of four thousand, five hundred dollars, when one volume is published, and an additional sum of one thousand, two hundred dollars, when a second volume is published in any year by direc- tion of the court ; and the said reporter is annually entitled to clerk hire in the sum of one thousand, two hundred dollars, and to oflSce rent, stationery and contingent expenses in the sum of six hundred dollars. The volumes of decisions which said court shall hereafter pronounce shall be furnished by the reporter to the public at a sum not exceeding two dollars per volume, and the number of volumes now required to be delivered to the Secretary of the Interior shall be furnished by the re- porter without charge. 50 ' SUPEEME COURT EULES.' EuLE XXVI. — Call and order of the dochet. (1.) The court, on the second day in each term, will com- caii of docicet to pro- mence calling the cases for argument in the term.°^ Order in which they stand on the docket, and proceed from day to day during the term, in the same order (except as hereinafter provided) ; and if the parties, or either of them, shall be ready when the case is called, the same will be heard ; and if neither party shall be ready to proceed in the argument, the case shall go down to the foot of the docket, unless some good and satisfactory reason to the contrary shall be shown to the court. (2.) Ten cases only shall be considered as liable to be Ten cases each day. called on each day during the term, includ- ing the one under argument. (3.) Criminal cases may be advanced, by leave of the court. Criminal cases may be q^ motiou of either party, advancsd on motion. ■* -^ (4.) Cases once adjudicated by this court upon the merits, ,. ^. , J and again brought up by writ of error or Cases once adjudicated '^ ° '^ :: may be advanced. appeal, may be advanced by leave oi the court on motion of either party. (5. ) Revenue and other cases in which the United States are J iv, TT concerned, which also involve or affect some Revenue and other U. ' s. cases advanced. matter of general public interest, may also, by leave of the court, be advanced on motion of the Attorney- General. (6.) All motions to advance cases must be printed, and must contain a brief statement of th'e matter Motions to be printed. -^^^-^^^^^ ^j^j^ ^-^^ ^.g^go^s for the application. ' (7.) No other case shall be taken up out of the order on No other cases will be the docket, or be sct dowD f or any particular fo/a'pirtfcuiM day™ day, exccpt Under special and peculiar cir- cumstances, to be shown to the court. Every case which Causes called and pas- shall have been called in its order and passed^ dS'cke". ^" '° '°°' °' 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. (8.) Two or more cases, involving the same question, may, Cases involving same by the leavc of the court, be heard together; euestion may be heard -,,,-, , i j wgether. but they must be argued as one case. SUPREME COUET EULES. 51 (9.) Ifj after a case has been passed under circumstances which do not place it at the foot of the cases passed ana not docket, the parties shall desire to have it IS" ^be" rdnstoted^by heard, they may file with the clerk their '=°"'"''' °'' ^'<=- joint request to that effect and the cause shall then be by him reinstated for call, ten cases after that under argument, or next to be called at the end of the day the request is filed. If the parties will not unite in such a re- when parties do not quest, either may move to take up the case, SeTup ™ moTonol and it shall then be assigned to such place ""^ °* "'^'"■ upon the docket as the court may direct. (10.) 'No stipulation to pass a cause without placing it at the foot of the docket will be recognized as stipulations paerine binding upon the court. A case can only «=*»^'^« °°' recognized. be so passed upon application made and leave granted in open court. See Supreme Court Kule 32. First paragraph promulgated March 1830, 3 Peters, xvl ; revised, corrected and made part of this rule, December Term, 1858, 21 How. xv. Second paragraph promulgated March 1830, 3 Peters, xvi ; revised and made part of this rule, December Term, 1858. Third paragraph promulgated December Term, 1866, 4 Wall. vii. Fourth paragraph promulgated January 7, 1884. Fifth paragraph pfomnlgated December Term, 1866, 4 Wall, vii. Sixth paragraph promulgated May 3, 1375, 21 Wall. f. Seventh paragraph promulgated March, 1830, 3 Peteys, xvi ; revised and made part of this rule, December Term, 1858, 21 How. xv. Eighth paragraph promulgated December Term, 1866. Wall; vii. Ninth and Tenth pararaphs promulgated January 18, 1875, SO Wall. xvl. Statutory Provisions. Sev. Stats, sec. VIO.] Writs of error to State courts in criminal cases shall have precedence in the Supreme Court of all cases to which United States is not a party, excepting cases which the court may decide to be of public importance. Hev. Slats, sec. 949.] When a State is a party, or the execution of the revenue laws of a State is en-joined or stayed in any suit in any court of the United States, such State or the party claiming under the revenue laws of a State, the execution whereof is enjoined or stayed, shall be en- titled, on showing sufficient reason, to have the cause heard at any time after it is docketed, in preference to any civil cause between private parties. Decisions. After a case has been reached, and, neither party appearing, sent to the foot of the calendar, it will not, in view of the brief period of the unexpired portion of the term, and considering the presence of counsel in other cases, be taken up for argument until it is again reached in its order. Barry v. Mercier, 4 How. 574. The only cases which will be taken up out Of their regular order on B2 SUPREME COTTET RULES. the docket are those where the question in dispute 'will embarrass the operations of Government while it remains unsettled. U. S. ■». Fossatt, 21 How. 445. The ordinances of municipal corporations laying taxes cannot be re- garded as revenue laws of a State, so as to entitle causes involving ques- tions affecting such ordinances to preference in this court. Davenport City «. Dows, 15 Wall. 390. A cause will not be advanced for argument on the ground that it has no merits. Amory v. Amory, 91 U. S. 356. A motion to advance a criminal cause made on behalf of the United States must state the facts in such manner that the court may judge whether the Government will be embarrassed by delay. U. S. v. Nor- ton, 91 U. B. 558. A case in which the execution of the revenue laws of a State has been enjoined, will not be advanced, unless it sufficiently appears that the operations of the Government of the State will be embarrassed by de- lay. Hoge v. Rich, and Dan. R. R. Co., 93 U. 8. 1. A cause involving private interests only will not be advanced for hearing in preference to other suits on the docket. Sage v. Central R. R. Co. of Iowa, 93 U. 8. 412. In view of the crowded state of the docket, the court announces its determination to enforce rigidly the rule requiring causes to be ready for hearing when reached. Hurley v. Jones, 97 V. 8. 318 ; Alvord v. U. S., 99 U. 8. 593. An action against a tax collector for alleged wrongs done the plaint- iffs while engaged in the collection of taxes due the State, and when he is not restrained from discharging any of his official duties, is not a case entitled to advancement under paragraph 4 of the above rule, or under sec. 949, Rev. Stats. Poindexter v. Greenhow, 3 8up. Ot. Bep. 8. Paragraph 4 of the above rule relates only to revenue cases, and cases in which the United States are concerned, which also involve or affect some matter of general public interest. Even these cannot be advanced except in the discretion of the court, and on motion of the Attorney- General, lb. EuLE XXVII. — Adjournment. The court will, at every term, announce on what day it Adjonmment of court will adjoum, at least ten days before the announced in advance, y^^^ ^j^j^j^ ^j^^^ ^^ g^^^ ^p^^^ . ^^^ ^^^ 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. Promnlgated January Term, 1838, 12 Peters, viii ; revised and made rule 28 on re- Tision of rules, December Term, 1858, 21 How. xv. (Note. Enle 37 of 1858 having been made part of rule 6, Dec. 14, 1874, 20 Wall, xv, this rule became No. 27.) ■ STJPKEME COURT BULES. 63 Statutory Provisions. Bev. Slats, sees. 684, 685, 686.] Sessions of Supreme Court.— Terms. — Adjournments for want of quorum. — Preparatory orders made by less than a quorum. EuLE XXVIII. — Dismissing cases in vacation. Whenever the plaintifE and defendant in a writ of error pending in this court, or the appellant and Di^^i^sing cases iava- appellee in an^appeal, shall, in vacation, by <=*'^™ ^^ consent, their attorneys of record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed as to costs, and shall pay to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dismissed, and to give to either party requesting it a copy of the agreement filed ; but no mandate or other process shall issue without an order of the court. Promulgated at December Term 1857, 30 How. iv; revised and made mle 29 Decem- . ber Term, 1858, 21 How. xvi. ( Note. Eule 87 of 1858 having been made part of rule 6, December 14, 1874, 20 Wall, xv, rule 28 became No. 27, and this rale became No. 28. ExTiE XXIX. — Supersedeas. Supersedeas bonds in the circuit courts must be taken, with good and sufficient security, that the gnpersedeas bonds in plaintifE in error or appellant shall prose- ^[S^'g'oodandsX'ient cute his writ or appeal to effect, and answer security, all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is Extent of indemnity, 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 fol- lows the event of the suit, as in real actions, replevin, and in suits on mortgages ; or where the property is in the custody of the marshal under admiralty process, as in case of capture or seizure ; or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, in- demnity in all such cases is only required in an amount suf- ficient to secure the sum recovered for the use and detention 54 STJPEEME COURT EITLES. of the property, and the costs of the suit, and ''just damages for delay," and costs and interest on the appeal. Promulgated December Term, 1867, 6 Wall. v. Statutory Provisions. Eev. Stats, sec. 1000.] Every justice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States or by direction of any department of the Grovernment, take good and suf-' ficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, when the writ is a supersedeas and stays execution, or all costs only, where it is not a supersedeas. Sev. Stats, sec. 1001.] No bond, obligation, or security required from the United States in such cases. Costs against United States pro- vided for out of contingent fund of department conducting proceedings. Sev. Stats, sec. 1007.] In cases where writ of error may be super- sedeas, the defendant may obtain same by serving the writ of error by lodging a copy thereof for the adverse party in the clei-k's office where the record remains, within sixty days, Sundays exclusive, after render- ing judgment, and giving the security required on the issuing of citation. But if stay of proceedings is desired, he may, having served the writ of error as aforesaid, give the security required within sixty days after judg- ment, or afterwards by permission of a justice or judge of the appellate court. And in cases where writ of error may be a supersedeas, execu- tions shall not issue until the expiration of ten da3's. decisions. This court, in the exercise of its appellate power, cannot issue a supersedeas to stay proceedings on a judgment unless the writ of error ■was sued out within ten days after judgment, as prescribed by the statute. Hogan 41. Ross, 11 Soto. 294. (Note. At the time of thisdecist- ion the limitation was ten days instead of sixty, as now provided.) A second writ of error, sued out more than ten days after entry of judgment, cannot operate as a supersedeas, lb. ; Saltmarsh v. Tuthill, 12 Sow. 387. (Note. At the time of these decisions the limitation was ten days instead of sixty, as now provided.) An appeal does not supersede the execution of a decree, unless a bond to secure the whole amount of the debt is given within ten days, though the property is in the hands of a receiver. Stafford v. Union Bk. of La.^ 16 How, 135. (Note. At the time of this decision the limitation was ten .days instead of sixty, as now provided.) A supersedeas of a decree in chancery can only be had by giving.a bond pursuant to the statute. Adams v. Law, 18 Bow. 144'. If no appeal bond is taken, the appeal will be dismissed . Boyce «. Grundy, 6 Peters, 777. The ten days given by the 23d section of the Judiciary Act (now ex- tended to sixty days, Rev. Stats., sec. 1007), to take a writ of error and SUPREME COURT RULES. 55 obtain a supersedeas, ruDS from the day when judgment is entered in the court where the record remains ; and when judgment is given in the highest court of a State and the record is returned to an inferior court with an order to enter judgment there, they run from the day when judgment is so then entered. Green v. Van Buskerk, 3 Wall. 448. A writ of error or appeal does not operate as a supersedeas unless the security is given within ten days after judgment or decree ; but the party may, nevertheless, without a supersedeas, sue out his writ of error or take his appeal at any time within the statutory period of limitation, by_ giving security to cover costs. Hodgins v. Kemp, 18 Sow. 531. {Note. The limitation is now extended to sixty days. Rev. Stats, sec. 1007.) Though a decree may have been entered mine pro tunc, the rights of the parties with respect to an appeal are determined by the date of the actual entry, or of the signing and filing of the final decree. Rubber Co. ■». Goodyear, 6 WaU. 153. The question of the suiBciency of an appeal bond is to be determined in the first instance by the judge who signs the citation ; but after the allowance of the appeal it becomes cognizable here. lb. It is not required that the security be in any fixed proportion to the amount of the decree, but only that it be sufllcient. lb. If the writ of error be not sealed until eleven days after the judg- ment, it cannot operate as a supersedeas. City of Washington v. Denni- son, 6 WaU. 495. (Decided before Rev. Stats, sec. 1007.) The writ of error cannot be amended to insert a day within the time limited for a supersedeas, after that time has expired. Hodge v. Wil- liams, 33 Sow. 87 ; City of Washington «. Dennison, 6 Wall. 495. To make a writ of error a supersedeas, it is indispensable that the requirements of the act of. Congress be strictly fulfilled. It is not enough that the writ be issued and served, but a copy of the writ must be lodged for the adverse party, within ten days, Sundays exclusive, after judgment or decree. R. R. Co. ». Harris, 7 Wall. 574 ; O'Dowd V. Russell, 14 WaU. 403. (Decided before Rev. Stats, sec. 1007.) Since the passage of the act of June 1, 1873 (Rev. Stats, sec. 1007), the supersedeas bond may be executed within sixty days after the rendi- tion of the judgment, and the writ of error may be served at any time before, or simultaneous with, the filing of the bond. Telegraph Co. «. Eyser, 19 Wall. 419 ; Board of Commissioners v. Gorman, 19 WaU. 661. But this does not prevent an execution from being issued after the lapse of ten days. The supersedeas, by filing the bond within sixty days, stays further proceedings, but it does not interfere with what has been already done. Board of Commissioners ■». Gorman, 19 WaU. 661. In calculating the lapse of time, the date of the entry of judgment governs, and not the date when the judgment was read to and signed by the judges. Jb. Unless an appeal is perfected, or a writ of error sued out and served within sixty days, Sundays exclusive, after the rendition of the judg- ment complained of, it is not within the power of a justice of this 56 ' SUPREME COURT RULES. court to allow a supersedeas. Kitchen v. Randolph, 93 U. S. 86. { Re- viewing numerous cases.) To make a nunc pro tune order effectual for the purposes of a super- sedeas, it must appear that the delay was the act of the court, and not of the parties, and that injustice will not be done. Sage v. Central R. R. Co. of Iowa, 93 U. S. 413. A supersedeas is not obtained by virtue of any process issued by this court, but it follows as a matter of law from a compliance by the appel- lant with the provisions of the act of Congress. But if the court below is proceeding, through mistake or otherwise, to execute its judgment or decree notwithstanding the supersedeas, we may, under sec. 719, Rev. Stat, issue an appropriate writ to restrain that action. The Slaughter House Cases, 10 Wall. 273 ; Goddard v. Ordway, 94 U. 8. 673. The security required upon writs of error and appeals, including the bond necessary for the supersedeas, must be taken by the judge or jus- tice. The power cannot be delegated to the clerk. O'Reilly v. Edring- ton, 96 U. S. 734 ; Haskins v. St. L. & S. E. R. R. Co., 3 Sup. Ct. Bep. 73. The provision of sec. 1007, Rev. Stats., forbidding the issuance of execution until after the expiration of ten days from the rendition of judgment, in cases where a writ of error may operate as a supersedeas, has reference only to the judgments of courts of the United States. It was not the intention of Congress to interfere with the practice of the State courts as to executions until a supersedeas should be actually per- fected. Doyle v. Wisconsin, 94 U. S. 50. A supersedeas will be vacated when the approval of the bond there- for was obtained by fraud and perjury ; and if it appears that the appel- lant had knowledge of such fraud and perjury, a new bond will not be accepted. R. R. Co. ■». Schutte, 100 U. S. 644. The power of a justice or judge below over an appeal and the se- curity necessary for a supersedeas, is, in the absence of fraud, exhausted when he takes the security and signs the citation. From that time the control of the supersedeas, as well as the appeal, is transferred to this court. Draper v. Davis, 103 U. B. 370. The amount of the supersedeas bond as well as the sufficiency of the security, are matters to be determined by the judge below. The discre- tion thus exercised by him will not be interfered with by this court. Jerome «. McCarter, 31 Wall. 17. If, however, after the security has been accepted, the circumstances of the case, or of the parties, or of the sureties on the bond, have changed, so that security which at the time it was taken was "good and suffic- ient" does not continue to be so, this court, on proper application, may so adjudge and order as justice may require, lb. See also Williams v. Claflin, 103 U. 8. 753. A bond is not sufficient for the purposes of either an appeal to this court or a supersedeas, if the obligors are not thereby bound for the pay- ment of costs, should the appellant fail to make bis plea good. Seward V. Corneau, 103 U. 8. 161. SUPREME COTTET EXILES. 67 This, however, does not necessarily avoid the appeal, but the Supreme Court may impose such terms on the appellant as, under the circumstances, shall seem to be proper, lb. Where, after the allowance of an appeal, the required supersedeas bond was duly approved and the cause entered in the Supreme Court, the court below had no longer any control over the decree, and its sub- sequent order vacating that allowance is void. Keyser «. Farr, 105 U. S. 365. The time within which a writ of error must be served in order to operate as a supersedeas, must be computed from the date of the judg- ment which is the subject of review. Wurts «. Hoagland, 105 V. S. 701. If the appeal is allowed in open court the security may be taken by the court and no citation is necessary; but if the security is not given until after the term is over, a citation must be issued and served. Sage V. R. R. Co., 96 U. S. 715 ; Haskins ii. St. L. & S. E. R'y Co., 3 Sup. a. Rep. 73. EuLE XXX. — Rehearing. A petition for rehearing after judgment can be presented onlv at the term at which i udgment is entered. How rehearing applied / , . , , ill- 4.1, „ lof, and wlien granted. unless by special leave granted durmg the term ; and must be printed, and briefly and distinctly state its grounds, and be supported by certificate of counsel ; and will not be granted, or permitted to be argued, unless a justice who concurred in the judgment desires it, and a majority of the court so determines. Promnlgated January 7, 1884. EuLB XXXI. — Form of printed records and Iriefs. All records, arguments, and briefs printed for the use of the court must be in such form and size Form and size of print , , , -, , . T ed records and briefs. that they can be conveniently bound together 60 as to make an ordinary octavo volume. Promalgated December 19, 1879 100 V. S. ix. EuLE XXXII.— Writs of error in causes removed from State courts. (1.) Writs of error and citations under section 5 of the act of March 3, 1875, " to determine the juris- ^^^^^^^Ztl^^^t diction of the circuit courts of the United f -h^a.^f.V'rltnS- States, and to regulate the removal of causes |bie^X\hi» twrty^days from the State courts, and for other pur- before return day. 58 SUPEEME COUET ETJLES, poses/' for the review of orders of the circuit courts dismiss- ing suits, or remanding suits to a State court, must be made returnable within thirty days after date, and be served before the return-day. (2.) In all cases where a writ of error or appeal is brought Plaintiff in error or to this court Under the provisions of that appellant to docket and , ,, , ,, , , ^ ,, -i ■ , ■ ai • file record within thirty- act, ifc shall be the duty 01 the plaintiii m six days after date of ,, n j_ ^ t i i. _li •writ, or, etc. error or the appellant to docket the case and file the record in this court within thirty-six days, after the date of the writ of error, or the taking of the appeal', if there shall be a term of the court pending at that time, and if not, then during the first six days of the next term. If It defaait made, mo- default be made in this particular, proceed- tion to dismiss may be. it, -,-,■■ had. mgs to pocket and dismiss may be. had as m other cases. (3.) All. such cases will be advanced on motion, and heard Such cases may be ad- Tuider the rules prescribed by rule 6 in viinced under the rules, regard to motions to dismiss writs of error and appeals. (4.) As soon as such a case is docketed and advanced, the Record to be printed rccord shall be printed, unless the parties unless- parties other- ,■■,,,,■, , n ^i ,n • wise consent. stipulate to the Contrary, and file their stipulation with the clerk. (5.) In all cases where a period of thirty days is included Double time in cases iu the time fixed by this rule, it shall be from Pacific States. extended to sixty days in writs of error and appeals from California, Oregon, or Ifevada, See Sup. Ct. Eules-8, 9, 10, 26. - Promulgated Jan. 16, 1882, 104 tJ. S; ix; amended Jan. 7, 1884. '] Statutory Provisions. Act March 3, 1875, ch. 137, sec. 5, 18 Stat. L. 472.] The order of a circuit court, dismissing or remanding a cause removed thereto from a 'State court, shall be reviewable by the Supreme Court on writ of error or appeal as the case may be. SUPEEME COURT EULES. 69 Decisions. This rule applies only to writs of error and appeals under the pro- visions of sec. 5 of the act of March 3, 1875. Poindexter v. Greenhow, 3 Sup. Gt. Rep. 8. Before the passage of the act of March 3, 1875, sec. 5 {supra), a writ of error did not lie to review an order of the circuit court remanding a cause to the State court. The remedy was by mandamus to compel action. Ins. Co. v. Comstock, 16 Wall. 370 ; E. R. Co. v. Wiswall, 33 Wall. 507. But since the passage of that act, the Supreme Court has jurisdiction to review by writ of error an order of the circuit court dismissing a cause, or remanding it to the State court from which it may have been removed. Hoadley «. San Francisco, 94 U. S. 4 ; Ayers ®. Chicago, 101 U. 8. 184. A writ of error is the proper mode for reviewing in the Supreme Court the order of a circuit court remanding a cause removed thereto from a state court, and it lies without regard to the value of the matter in dispute. Babbitt v. Clark, 103 U. 8. 606. Rule XXXIII. — Models, diagrams and exliibits. All models, diagrams and exhibits of material placed in the custody of the marshal for the inspection of Models, diagrams, and ,, J. ii 1 • J! L ^ exhibits must be re- the court on the hearing of a case, must be moved within one 1 1 1, ii_ i- ■j.i_- i.1. month after cause de- taken away by the parties withm one month cided. after the case is decided. When this is not done, it shall be the duty of the marshal to notify the counsel in the case, by mail or otherwise, of the requirements of this rule ; and if the articles are not removed within a reasonable time after the notice is given, he shall destroy them, or make such other dis- position of them as to him may seem best. Promulgated November 13, 1882, 106 U. S. Tii. 61 EULES OF THE SUPREME COURT OF THE UNITED STATES GOVERNING APPEALS FEOM THE COURT OF CLAIMS. Etjle L In all cases hereafter decided in the Court of Claims in ■whicli, by the act of Congress, such appeals are allowable, they shall be heard in the Supreme Court upon the follow- ing record, and none other : (1.) A transcript of the pleadings in the case, of the final judgment or decree of the court, and of such Transcript or pleadings, interlocutory orders, rulings, judgments, in&catory^"roceed- and decrees as may be necessary to a proper ™^^' review of the case. (3.) A finding by the Court of Claims of the facts in the case established by the evidence in the nature Findings of fact and of a special verdict, but not the evidence conclusions of law. establishing them ; and a separate statement of the conclusions of law upon said facts, upon which the court founds its judg- ment or decree. The finding of facts and conclusions of law to be certified to this court as a part of the record.* See Ct. CI. Eules 12,' 18. Kale promulgated December Term, 1863, 3 Wall. vii. Second paragrapli amended October 37, 1873, 17 Wall. xvii. Kule extended to certain claims, May 7, 1883, 2 Sup. Ct. E. vi. (See below.) * Ordered (May 7, 1883),— That Eule 1, in reference to appeals from the Court of Claims be, and the same is hereby, made applicable to appeals in all cases heretofore or hereafter decided by that court under the jurisdiction conferred by the act of June 16, 1880 c. 243, " to provide for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction on the Court of Claims to hear the same, and for other purposes."— 2 Sup. Ct. K. vi. 62 APPEALS FEOM THE COUET OF CLAIMS. Statutory Provisions. Bev. Stats, sec. 707.] An appeal to the Supreme Court shall be al- lowed, on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dol- lars, or where his claim is forfeited to the United States by the judgment of said court, as provided in section one thousand and eighty-nine.* Bev. Stats, sec. 708.] All appeals from the Court of Claims shaU be taken within ninety days after the judgment is rendered, and shall be allowed under such regulations as the Supreme Court shall direct. Decisions. In bringing appeals from the Court of Claims to the Supreme Court, the record must be prepared strictly according to these rules. De Groot V. U. S., 5 Wall. 419. Only such statement of facts is to be sent up as may be necessary to enable this court to decide upon the correctness of the propositions of law raised below. This statement is to be presented in the shape of facts found by the Court of Claims to be established by the evidence in such form as to raise the question of law decided. It should not include the evidence in detail, lb. The right of a party to appeal to this court from a judgment of the Court of Claims when the amount involved exceeds $3,000, depends upon such party's own volition, and is not dependent on the discretion, of the court. U. S. 11. Adams, 6 Wall. 101. When a party signifies his intention to appeal in any appropriate mode within the ninety days allowed for taking an appeal, the limitation of time then ceases to affect the case. lb. It is not a ground for dismissing an appeal from the Court of Claims, that the statement of facts found below is not a sufficient compliance with the rules of the Supreme Court. But this court will of its own motion, while retaining jurisdiction, remand the record to the Court of Claims for a proper finding, lb. A finding which merely recites the evidence in the case is not a com- pliance with this rule, lb. An appellant in a cause brought up by appeal from the Court of Ckiins has a right to have his appeal dismissed notwithstanding the op- position of the other side. Latham's and Deming's Appeal, 9 Wall. 145. This court will not, after hearing and deciding an appeal, stay the mandate and reform its decree, upon the allegation of error in a finding by the Court of Claims, so that the party alleging the error may cause the same to be corrected, and have the cause heard again. U. S. v. Adams, 9 Wall. 554. Certiorari is not proper where it is desired to have the Court of Claims supply supposed defects in its conclusions deducible from the evidence before it. The proper way is to obtain an order, on motion, * Tliis is an error in the Kev. Stats. The section referred to is 1086.— Editor. APPEALS TEOM THE OOUKT OF CLAIMS, 63 requiring the court below to make return as to the existence or non- existence of such facts. But this court cannot give directions as to ■what findings shall be made, or how the Court of Claims shall proceed to make up its findings on the points sought to have certified. U. S. v. Adams, 9 Wall. 661. The making and pendency of a motion for a new trial in the Court of Claims, is not a sufficient ground for dismissal of an appeal previously taken. But if the motion for a new trial be granted, the appeal may be dismissed. U. S. v. Ayres, 9 Wall. 608. If an act of Congress confers upon the Court of Claims jurisdiction of an additional class of cases, an appeal will lie to this court in such cases although the act specially conferring such jurisdiction is silent on that point. Me parte Zellner, 9 Wall. 24A. If the finding-of the Court of Claims be rather one of law when pur- porting to be of fact, this court wUl re-examine such finding. Meade v. U. S., 9 Wall. 691. After a case from the Court of Claims has been dismissed, a motion to reinstate it will be denied, notwithstanding the consent of the other side, if the party seeking to have it reinstated be guilty of laches. Deming's Appeal, 10 Wall. 351. An appeal does not lie to this court from an order of the Court of Claims refusing a new trial. (The proper practice stated.) Mc parte Hussell, 13 WaU. 664. The omission of the Court of Claims to find facts as the party alleges them to be, will not justify the bringing of all the evidence on the sub- ject before this court; but on a refusal of that court to make any find- ing on the subject the Supreme Court may remand the case for such finding. Mahan v. U. S., 14 Wall. 109. When the Court of Claims, on a claim embracing several items, rejects some but allows others, against which allowance the United States alone appeal, this court will not consider the items rejected and against whose rejection the claimant has not appealed, except so far as may be necessary for a proper understanding of the items allowed. U. S. V. Hickey, 17 Wall. 9. , A claim referred to the Court of Claims by special act of Congress to ascertain particular facts to guide the Government in the execution of a treaty, is not a case that can be reviewed by the Supreme Court on ap- peal. Me parte Atocha, 17 Wc^l. 439 . Section -707 Eev. Stats., gives a right of appeal to this court from cases referred by special act of Congress to the Court of Claims, in the absence of a provision to the contrary. A right of appeal though not given in terms by the act may be inferred from its general character and particular indications. Vigo's Case, 31 Wall. 648. Where this court, on an appeal from the Court of Claims, reverses the judgment and remands the cause ' ' for further proceedings in conformity with law and justice," there is nothing to prevent the Court of Claims from setting aside its former proceedings, and trying the case de novo. Ex pwrte Medway, 33 WaU. 504. 64 APPEALS PROM THE COURT OF CLAIMS. An act of Congress extending the jurisdiction of the Court of Claims, does not dispense with the existing rules regulating appeals to this court. U. S. ■». Clark, 94 V. 8. 73. The finding of facts by the Court of Claims is in the nature of a special verdict, and conclusive in this court, unless impeached for some error of law appearing in the record. U. S. v. Smith, 94 TJ. B. 214. The Court of Claims, in estimating damages, must he governed by the proofs submitted ; but it is not required to set forth the elements of the calculation by which it arrives at its final result. The court may, however, be asked by either party to state whether a particular item of charge or damage is included in its finding, and if so, to what amount. U. S. «. Smith, 94 U. 8. 314. The Court of Claims, by granting a new trial after rendering judg- ment, and pending an appeal to this court, vacates the judgment, and resumes control over the case and the parties. U. 8. v. Young, 94 IT. 8. 258. In such case a writ of certiorari will not be granted to compel the court to send here the proceedings subsequent to the appeal ; but the ap- peal will be dismissed. lb. After judgment shall have been finally rendered by the Court of Claims, the proceedings in which the new trial was obtained may be brought here by appeal for review. Ih. When the Court of Claims sends here as part of its findings all the evidence on which a fact essential to the judgment there rendered was found, from which it appears that there was no legal evidence to estab- lish such fact, the judgment will be reversed. TJ. S. «. Clark, 96 Z7. 8. 37. The judgment of the Court of Claims as to the legal effect of the ultimate circumstantial facts of the case, is, if the question is properly presented, subject to review here ; and when the rights of the parties depend upon such circumstantial facts alone, and there is doubt as to the legal effect of them, it is the duty of that court to frame its findings so that the question as to such effect shall be presented by the record. U. S. e. Pugh, 99 £7. 8. 265. EULE II. In all cases in wliich judgments or decrees have heretofore been rendered, where either party is by law Appeal, how taken, and entitled to an appeal, the party desiring it "P"" what heard, shall make application to the Court of Claims by petition for the allowance of such appeal. Said petition shall contain a dis- tinct specification of the errors alleged to have been committed by said court in its rulings, judgment, or decree in the case. The court shall, if the specification of alleged error be correctly and accurately stated, certify the same, or may certify such alterations and modifications of the points decided and alleged APPEALS FROM THE COUET OF CLAIMS. 65 for error as, in the judgment of said court, shall distinctly, fully, and fairly present the points decided by the court. This, with the transcript mentioned in Eule 1, (except the statement of facts and law therein mentioned,) shall consti- tute the record on which those cases shall be heard in the Supreme Court. KoTE.— iDasmuch as this rale applies only to eases before its adoption in 1866, it ia now obsolete. Promulgated December Term, 1865, 3 Wall. vii. EULB III. In all cases an order of allowance of appeal by the Court of Claims, or the chief-justice thereof in va- Allowance of appeal cation, is essential, and the limitation of time essentiai.-Limitation. for gi-anting such appeal shall cease to run from the time an application is made for the allowance of appeal. See Ct. CI. Eale 18. Promulgated December Term, 1865, 3 Wall. viii. Statutory Provisions. Bev. Slats, sec. 708.] All appeals from the Court of Claims shall be taken within ninety days after the judgment is rendered. Decisions. The allowance of an appeal to this court by the Court of Claims, does not absolutely and of itself remove the cause from the jurisdiction of the latter court, so that no order revoking such allowance can be made. JSx parte Roberts, 15 Wall. 384. A party may, in cases involving over $3,000, exercise his right to ap- peal to this court from the Court of Claims of his own volition, and independently of any discretion of that court. U. S. v. Adams, 6 Wall. 101. When the party desiring to appeal signifies his intention to do so in any appropriate mode within the ninety days allowed for taking an ap- peal, the limitation ceases to affect the case. lb. The Court of Claims, by granting a new trial after rendering judg- ment, and pending an appeal to this court, vacates the judgment and resumes control of the case and the parties. U. S. ®. Young, 94 U. S. 258. Rule IV. In all cases in which either party is entitled to appeal to the Supreme Court, the Court of Claims Findings to be aied. shall make and file their finding of facts, and their conclu- sions of law therein, in open court, before or at the time they enter their judgment in the case. See ct. Cl. Enle 18. Promulgated December Term, 1869, 9 Wall. viii. 66 APPEALS FKOM THE COUET 03? CLAIMS. Decisions. ^The 4th and 5th rules regulating appeals from the Court of Claims were designed to enable a party to secure a finding of fact on any point material to a decision by that court. Mahaa v. V. S., 14 WaU. 109. But the failure of the Court of Claims to find the fact as a party alleges it to be will not justify the bringing of all the evidence on that subject before this court, though on a refusal of that C0:urt to make any finding on the subject, the Supreme Court may remand the case for such finding. lb. EULE V. In every such case, each party, at such time before trial Each party shall sub- ^^^ '^^ such form as the Gourt may prescribe, mit requests to find. gj^^jj g^^^^^^j^ ^^ j^, .^ rgq^est to find all the facts which the party considers proven and deems material to the due presentation of the case in the finding of facts. See Ct. CI. Rules 18, 18. Promulgated December Term, 1869, 9 Wall, vii ; amended January 29, 1879, 97 TJ. S. Tiii. Seoisions. The 4th and 5th rules regulating appeals from the Court of Claims •were designed to enable a party to secure a finding of fact on any point material to a decision by that court. Mahan v. U. S., 14 WaU. 109. A request for findings should embrace all the facts deemed material, and should be made at the trial. Neal ». U. S. , 14 Ut. Olms. R. 477. Requests for additional findings should be distinct and concise, and reference should be made in the margin to the pages of the record con- taining the evidence. Raines®. U. 8., 11 Ct. Clms. B. 648. A request should not be made to amend or alter a finding already made, but an additional finding should be asked, lb. 67 RULES OF PRACTICE FOR THE COUETS OP EQUITY ,THE UNITED STATES.' EULE I. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, co«rt aiwsys open for answers, and other pleadings ; for issuing fi'mg pleadings, etc. and returning mesne and final process and commissions ; and for making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to hearing of all causes upon their merits. Fromnlgated March 2, 1842, 1 How. xli. * The Snpreme Court may from time to time prescribe, in any manner not incon- sistent with any law of the United States, the forms ot writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evi- dence, of obtaining discovery, of proceedings to obtain relief, of drawing up, entering and enrolling of decrees, and of proceedings before trustees appointed by the court, and generally to regulate the whole practice to be used in suits in equity or admiralty by the circuit and district courts. Jiev. Stats, sec. 917. The several circuit and district courts may from time to time, and iu any manner not inconsistent with any law of the United Stales, or with any rule prescribed by the Su- preme Court nnder the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regu- late their own practice as maybe necessary or convenient for the advancement of justice and the prevention of delays in proceedings. Mev. Stats, sec. 918. The rules of the Supreme Court have the force and effect of law, when not in con- flict with any act of Congress. Gaines v. Travis, 1 Adb. Ad. 432 ; The Illinois, 1 Brown Ad. 13 ; The Delaware, Olcott, 240 ; The Young America, 1 Newb. 107 ; Ward v. Cham- berlain, 2 Black, 430 ; Gray v. Chicago, I. & N. B. K. Co., I Woolw. ,63 ; Pierpont v. 6S EULES OF PBACTICE IN EQUITY. KULE II. The clerk's office shall be open and the clerk shall be in Clerk to attend first attendance therein, on the first Monday of Monday of every month. g^gj.y month, for the purposc of receiving, entering, entertaining, and disposing of all motions, rules, orders, and other proceedings, which are grantable of course and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. Promulgated March 2, 1842, 1 How. xli. Rule III. Any judge of the circuit court, as well in vacation as in Orders, etc., in vacation, term, may, at chambers, or on the rule-days at the clerk's office, make and direct all such interlocutory orders, rules, and other proceeding, preparatory to the hear- ing 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. Promulgated March 2, 1842, 1 How., xli. Fowls, 3 Woodb. <& M.SB; The St. Lawrence, 1 Slack, 522 ; Steam Stone Cutter Co. v Jones, 13 Fed. S. 567. The circuit courts cannot make rules in equity which will conflict with the rules pre- scribed by the Supreme Court. Story v. Livingston, 13 Peters, 359 ; Bank v. White, 8 Peters, 862 ; Gaines v. Keif, 15 Peters, D ; Bein i>. Heath, 12 Hcno. 168. Courts may change their practice without promulgating written rules. Uniform modes of proceeding continued for a series of years as much constitute their rales as those formally established by order, and when the question is whether the court has changed its rules its own adjudications furnish the evidence. Duncan v. U. S., 7 Peterst 435 i U. S. V. Stevenson, 1 Al>b. U. S. 495. A court has power to suspend its rules and except a particnhiT case from their opera- tion. U. S. V. Breitling, 80 Bow. 862 ; Eussell v. McClellan, 3 Woodb. & M. 157 ; Kua- Bell ». McClellan, 3 V/oodb. & M. 359. The equity practice of the federal courts, when not controlled by an act of Congress or the rules prescribed by the Supreme Court, is, in general, regulated by the chancery practice of England as it existed prior to the adoption of what are known as the '• new rules." Goodyear v. Prov. Eub. Co., 8 Cliff. 351 ; Gaines v. Eelf, 15 Peters, 9 ; Story V. Livingston, 13 Peters, 359. Rules in equity are framed with reference to speeding a cause before hearing, and do not apply afterwards. Allen r. Mayor, 7 Fed. B. 483. RULES OF PEACTICE IK EQUITY, 6S EULE IV. All motions, rules, orders, aad other proceedings, made and directed at chambers, or on rule-days at ^ntry ot orders, rules the clerk's office, whether special or of course, ^""^ '"'""'"'■ shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the day when they are made and directed; which book shall be open at all office-hours to the free inspec- tion of the parties in any suit in equity, and their solicitors. And, except in cases where personal or other Notice, notice is specially required or directed, such entry in the order- book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order-book, touching any and all the matters in the suits to and in which they are parties and solicitors. And notice to the 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 otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders, or other proceedings not requiring personal service on the parties, in their discretion. Promulgated March 3, 1842, 1 How. zlii. KULE V. All motions and applications in the clerk's office for the issuing of mesne process and final process to Motions, etc., granted enforce and execute decrees ; for filing bills, "^ <='<^^'^'°' ™'"^^«- answers, pleas, demurrers, and other pleadings ; for making amendments to bills and answers ; for taking bills pro conf esso ; for filing exceptions ; and for other proceedings in the clerk's office which do not, by the rules hereinafter prescribed, require any allowance or order of the court or of any judge thereof, shall be deemed motions and applications gran table 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. Promnlgated March 2, 1842, 1 How. xlii. EULE VI. All motions for rules or orders and other proceedings, which are not grantable of course or without notice, J^b^fofco^^e."'" ^'"'*' 70 EDLES OF PRACTICE IN EQUITY. shall, unless a different time be assigned by a judge of the court, be made on a rule-day, and entered in the order-book, and shall be heard at the rule-day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then 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 refused, in his discretion. Promulgated March 2, 1843, 1 How. xliii. Decisions. Special motions, unlike those grantable of course, require allowance by the judge, and previous notice to the adverse party. U. S. «. Par- rott, 1 MeAlUster, 447. A motion to appoint commissioners to take testimony abroad is not a motion grantable of course. Ih. A motion to produce a paper in the possession of the plaintiff, which is necessary to enable the defendants to plead, may be granted in the ■ discretion of the court, although no notice has been given. Bronson « Kensey, 3 McLean, 180. But where the possession of a paper is desired to be used in evidence a notice is necessary. Ih. Previous notice of a motion for the appointment of a receiver is not necessary when counsel for the opposite party are present in court. McLean «. The Lafayette Bank, 3 McLean, 508. There is no appeal from an interlocutory order, and as such order can be reviewed only on appeal from the final decree, circuit courts should take care not to make what should be mere intermediate orders so operate as to be final, thus compelling an immediate appeal before the actual ter- mination of the litigation. Forgay ». Conrad, 6 How. 201. The rule requiring notice is salutary, and will not be dispensed with. Gray v. Chicago, I. & N. E. R. Co., 1 Woolw. 63. Proceedings to punish for contempt in violating an injunction must be upon notice, lb. Rule VII. The process of subpoena shall constitute the proper mesne Subpoena,, attachment, proccss in all suits in equity, in the first in- Bequestration. stance, to require the defendant to appear land answer the exigency of the bill; and, unless otherwise pro- vided 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 j of possession, as the case may require, shall be the proper pro- RULES OF PRACTICE IN EQUITY. 71 cess to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. PromJugated March 2, 1842, 1 How. xliii. Statutory Provisions. Sev. Stats, sec. 660.] Ko process in any circuit court shall abate or be rendered invalid by reason of any act changing the time of holding such court ; but the same shall be deemed returnable to the term next after the return day thereof. Bev. Stats, sec. 787. J It shall be the duty of the marshal in each district to attend the district and circuit courts when sitting therein, and to execute, throughout the district, all lawful precepts directed to him and issued under the authority of the United States ; and he shall have power to command all necessary assistance in the execution of his duty. Bev. Stats, sec. 790.] The marshal and deputy shall have power after removal from ofl3ce, or expiration of term, to execute all process in their hands at time of removal or expiration of term. Bev. Stats, sec. 911.] All writs and processes issuing from courts of the United States shall be under the seal of the court from which issued, and shall be signed by the clerk thereof. Bev. Stats, sec. 913.] AH process issued from the courts of the United States shall bear teste from the day of such issue. Bev. Stats, sec. 922.] When the marshal or his deputy is a party in any cause, the writs and precepts therein shall be directed to such dis- interested person as the court or any justice or judge thereof may appoint, and the person so appointed may execute and return them. Bev. Stats, sec. 948.] Any circuit or district court may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process, when the defect has not pejudiced, and the amendment will not injure, the party against whom issued. Be-o. Stats, sec. 4063.] Process against foreign ministers and their domestics void. Bev. Stats, sec. 4064.] Penalty for suing out or issuing process against foreign minister or domestics. Bev. Stats, sec. 4065.] In what cases process may issue against per- sons in service of foreign ministers. Decisions. Upon a supplemental bill in chancery, a subpoena is not required un. less new parties are made. Shaw v. Bill, 95 U. S. 10. The jurisdiction of the court over parties is acquired only by a service of process, or their voluntary appearance. Herndon v. Ridgeway, 17 How. 424. EULE VIII. Final process to execute any decree may, if the decree be solely for the payment of money, be by a Execution, writ of execution, in the form used in the circuit court in suits at common law in actions of assumpsit. If the decree 72 RULES OF PRACTICE IN EQUITY. 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, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of at- tachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full com- pliance with the decree and the payment of all costs, or upon a special order of the court, or of a judge thereof j upon mo- tion and affidavit, enlarging the time for the jierformance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. Promulgated March S, 1842, 1 How. xliii. See statutory provisions noted under Equity Bale 7. EULE IX. "When any decree or order is for the delivery of possession. Writ of assistance. upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. Promulgated March 2, 1842, 1 How. xliv. See statutory provisions noted under Equity Rule 7. Decisions. The power of a court of chancery to put a purchaser of mortgaged premises into possession hy a writ of assistance, extends only to the parties to the suit and those coming in as parties. Thompson v. Smith, 1 Dill. 458. The writ of assistance is the appropriate process to issue from a court of equity to place a purchaser of mortgaged premises in possession, as against parties who are bound hy the decree and who refuse to obey the same. Terrell «. Allison, 21 Wall 389. EULE X. Every person, not being a party in any cause, who has ob- person. not parties, twined an Order, or in whose favor an order how affected by orders, gj^g^ji j^j^^g j^ggn made, sball be enabled to EULES OF PRACTICE IN EQUITY. 73 enforce obedience to such order by the same process as if he were a party to the cause ; and every person, not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party in the cause. Promulgated March 2, 1842, 1 How. xliv. See statutory provisions noted under Equity Bale 7. llXTLE XL No process of subpoena shall issue from the clerk-'s office in any suit in equity until the bill is filed in when subpoena to the office. '^^''^■ Promulgated March 3, 1842, 1 How. xliv. See statutory provisions noted under Equity Eule 7, Decisions. Service of process is necessary to enable a court to exercise jurisdic- tion. Walden «. Craig, 14 Pete-n, 147 ; Shelton ». Tiffin, 6 How. 163 ; Boswell V. Otis, 9 Sow. 33S. The circuit and district courts liave no authority to send process into any other district than that in which they are located. Toland v. Sprague, 13 Peters, 300 ; Bx parte Graham, 3 Was?t. C. U. 45G ; Lincoln V. Tower, 2 McLean, 473. (See Rev. Stat., sees. 739, 740, 741, 743.) EULE XII. "Whenever a bill is filed, the clerk shall issue the process of sub- poena thereon, as of course, upon the appliea- L,B„e and return of pro- tion of the plaintiff, which shall be returnable "'^^■ into the clerk^s office the next rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At Memorandum to defend- the bottom of the subpoena shall be placed '^°'' a memorandum, that the defendant is to 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 separate suupcena may . , , T issue where more than defendant, a writ of subpoena may, at the one defendant, election of the plaintiff, be sued out separately for each de- fendant, except in the case of husband and wife defendants, or a joint subjiosna against all the defendants. Promulgated March 2, 1B42, 1 How. xliv. See statutory ^provisions noted under Equity Eule7. 74 RULES OF PRACTICE IN EQUITY. EULB XIII. The service of all suboenas shall be by a delivery of a copy Hode of service, thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, ■with some adult person who is a member or resident in the family. Promulgated March 2, 1843, 1 How., xlv; Amended May 3, 1875, Bl Wall. v. See statutory provisions noted under Equity Rule 7. Statutory Provisions. Act Mar. 3, 1875, ch. 137, sec. 8, 18 Stat. L. 472.] In suits to en- force lien upon, or claim to, or to remove incumbrance, lien or cloud upon real or personal property, service, by order of the court, may be made on defendant wherever found, or by publication. — Time to appear prescribed. — Judgment to affect property only. — Defendant may appear within year, and reopen case. (Compare Rev. Stat. sec. 738.) Mev. Stats, sec. 739.] Except as otherwise provided, no civil suit shall be brought against an inhabitant of the United States outside the district in which he resides or is found at time of service. Sbv. Stats, sec. 740.] If State contains more than one district, suits not of local nature against single defendant, must be brought in district where defendant resides ; but if there be two or more defendants residing in different districts of the State, suit may be brought in either district and process may run to marshal of other districts. — ^Endorsement by clerk. — When writ returned all to constitute one suit, etc. Bev. Stats, sec. 741.] In suits of local nature process may be served on defendant in another district in same State. Bev. Stats, sec. 743.] When land lies in different districts of same State, process may ran into both. Seoisions. The practice under the statute authorizing the court to exercise juris- diction over the property of absent defendants should be such as to secure personal sei'vice whenever practicable ; and the order directing the ab- sent defendants to appear and plead should be made by the court in term. Bronson ». Keokuk, 3 Dill. 499 ; S. C, 7 West. Jur. 330. Shares of stock are not " personal property "%ithin the meaning of the act authorizing service by publication. Kilgore ■». N. O. Gas Light Co., 2 Woods, 144. A party temporarily in a district in which he does not reside cannot be served with process so as to give the court jurisdiction. Smith v. Tuttle, 5 Siss. 159. Nor can a party who has been enticed or inveigled into the district by contrivances and machinations, be lawfully served. Union Sugar Refin- ery V. Matthiessen, 2 Gliff. 804 ; Steiger i>. Bown, 4 i'M B. 17. Nor can service be made on a non-resident party attending a trial of a EULES OF PRACTICE IN EQUITY. 75 suit in the circuit court to which he is a party. Parke v. Hotchkiss, 1 WaU. Jr. C. C. 367 ; Juneau Bank ». McSpedan, 5 Biss. 64. A corporation cannot be served and made a party in any other dis- trict than a district of a State in which it was created. Myers v. Dorr, 13 Blateli. 32. The statute (Rev. Stats, sec. 739), providing that no civil suit shall be brought against an inhabitant of the United States outside the district in which he resides oris found at the time of service of process, does not affect the general jurisdiction of the court, but only confers a personal exemption or privilege upon a defendant, which can be waived, and is waived by a general appearance in ths action. Robinson v. National Stockjwd Co., 1 Fed. B. 361; S. C, 30 Blatch. 513; Irvine v. Lowry, 14 Peters, 393 ; Flanders v. Ins. Co., 3 Mason, 158; Kitchen v. Straw- bridge, 4 Wash. C. 0. 84 ; Kelsey v. Penna. R. R., 14 Blatch. 89. A foreign corporation doing business in another State may, as a con, dition to the exercise of its franchises within such State, consent to be "found" there for the purpose of being sued, within the meaning of the act of Congress. Ex parte SchoUenberger, 96 U. 8. 389 ; R. R. Co. V. Harris, 13 WaU. 65 ; Robinson v. National Stockyard Co., 12 Fed. B. 361; S. C, ZQ Blatch. 513. The objection that the defendant is a foreign corporation, and there- fore cannot be served with process outside the State of its domicil, can- not be raised by demurrer. If process was irregularly served the remedy is by motion to quash. Robinson v. National Stockyard Co., 13 Fed. R. 361 ; S. C, 30 Blatch. 513. Service of process is necessary to enable a court to exercise jurisdic- tion. Walden «. Craig, 14 PeUrs, 147 ; Shelton v. Tiffin, 6 Eow. 163 ; Boswell V. Otis, 9 How. 336. The circuit and district courts have no authority to send process into any other district than that in which they are located. Toland ■». Sprague, 13 Peters, 300 ; Fx parte Graham, 3 Wash. 0. G. 456 ; Lincoln «. Tower, 3 McLean, 473. (But see statutes noted supra.) In cases of injunction to stay proceedings at law and in cross-suits in equity, where the opposite party is a non-resident, the court will direct service to be made on the attorney for the absent party. Eckert V. Banerl, 4 Wash. G. G. 370 ; Ward v. Seabring, Id. 472 ; Ward v. Seabry, Id. 436 ; Seegee i). Thomas, 3 Blatch. 11 ; Doe «. Johnston, 3 McLean, 333 ; Hitner v. Luckley, 3 Wash. G. G. 465 ; Dunn i). Clark, 8 Peters, 1 ; Lowenstein v. Glidewell, 5 Dillon, 335 ; CreUin v. Ely, 7 Saw- yer, 533. Service under the above rule does not require the copy of the subpoena to be left with a person in the dwelling house, but is satisfied by doing so at the door, outside the dwelling. The Phoenix Ins. Co. v. Wulf , 1 Fed. B. 775. A suit to set aside a decree of foreclosure is not so far a continuation of the original foreclosure suit as to authorize service on persons out- side the jurisdiction of the court. Pacific R. R. «. Mo. Pacific Railway Co., 8 Fed. B. 773. 76 ETJLES OF PRACTICE IN" EQtTITT. Parties may waive service of process and appear voluntarily. Nel- son J). Moon, 3 McLean, 319. If an attorney appears without authority such appearance does not confer jurisdiction. Shelton ■». Tiffin, 6 How. 163. After the defendant has heen brought into court, the process has ful- filled its office, and its subsequent loss wiU not affect the judgment or the regularity of the proceedings. York & Cumberland R. R. ». Myers, 18 How. 346. If a court exercises over the property of a non-resident, on whom no process has been served, any jurisdiction not conferred by law, its act is void and not voidable. Boswell v. Otis, 9 Sow. 168. If a defendant is privileged from service of process, he should at once move to set it aside, otherwise the privilege will be held to have been waived. Matthews «. Puffer, 10 Fed. B. 606. A non-resident person attending in another State as a witness or as a party, is privileged from service af process while in such State. Juneau Bank v. McSpedan, .5 Biss. 64 ; Brooks -d. Farwell, 4 Fed. B. 167. And a party attending a regular examination of witnesses before an examiner in chancery in another State is also exempt from process while there. Plimplon ». Winslow, 9 Fed. B. 365 ; 8. C, 20 Blatch. 83. After a defendant has appeared and demurred it is too late to object to the jurisdiction for want of sufficient service of process. Hale ». Continental Life Ins. Co., 12 Fed. B. 359. Delivery of a copy of a subpoena to the husband of a defendant, in the lower room of a building occupied as a store, and above as a dwell- ing, is a good service upon the wife. Phcenix JIut. Ins. Co. ». Wulf, 9 Biss. 385 ; S. C, 9 Beporier, 535. A return of a subpoena which declared that the subpoena had been handed to a person at the domicil of the defendant, and who resided at said domicil, the defendant being absent, was held insufficient. Von Eoy ». Blackman, 3 Woods, 98. If the service is made by leaving a copy of the subpoena at the dwell- ing house or usual place of abode of the defendant, the return must show that the copy was handed to a member of or resident in the family of the defendant, lb. If a person declines to receive from an officer a paper presented for service, the officer may deposit it in any convenient place in the presence of the party, and the service will be good. Norton v. Meader, 4 Sawyer, 603. When a bill is brought to obtain a new trial of a cause at law in the same court, service of process may be made on the attorney of the oppo- site party, even if he be a non-resident. Minn. v. St. Paul, 2 Wall. 633 ; Oglesby v. Attrill, 14 Fed. B. 214. Service of process cannot be made on the attorney in fact of mort- gagees, in a suit to set aside a mortgage, when new parties are sought to be introduced. Bowen ». Christian, 16 Fed. B. 729. Parties cannot be designated by fictitious names, and a service of a RULES OF PEACTIOE IH EQUITY. 77 subpcena on such persons will be set aside. Kentucky S. M. Co. v. Day, 3 Saw. 468. Under this rule, before it was amended in 1875, service could be made upon the wife by serving a copy of the subpoena upon the husband, when they were sued together ; but the rule now requires personal service on each defendant, or leaving a copy for each at his or her usual place of abode, with some adult member of the family. O'Hara ». MacConnell, 93 U. 8. 150. Service of a subpoena may be made on the attorney of the opposite party in a suit in equity to restrain an action at law, when the opposite party resides out of the jurisdiction. The Cortes Co. v. Thannliauser, 30 Blatch. 59 ; S. C, 9 Fed. B. 336. EULE XIV. Whenever any subpoena shall be returned not executed as to any defendant, the plaintifE shall be en- Alias subpoena, titled to another subpoena, toties quoties, against each defend- ant, if he shall require it, until due service is made. Puomnlgated March 2, 1842, 1 How. xlv. Sec statutory provisions noted under Equity Rule 7. EuLE XV. The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by service of process, by some other person specially appointed by whom. the court for that purpose, and not otherwise. In the latter case, the person serving the process shall make aflSdiavit there- of. Promulgated March 2, 1842, 1 How. xlv. See statutory provisions noted under Equity Enle 7. Rule XVI. Upon the return of the subpcena as served and executed upon any defendant, the clerk shall enter the cause to be docketed suit upon his docket as pending in the court, ""''''"" "^ '"''?'*'"'■ and shall 'state the time of the entry. Promulgated March 8, 1342, 1 How. xlv. decisions. Courts have the power to permit an amendment of the return of both mesne and final process, and that power is freely exercised in the interest of justice, especially when the amendnent will not affect the rights of third parties. The Phenix Ins. Co. v. Wulf, 9 Biss. 385 ; S. C, 9 Beporter, 535 ; 1 Fed. B. 775. 78 RULES OF PRACTICE IIT EQUITY. The return of an officer touching any fact about which he was bound to malie return, is conclusive on the parties to the suit and their privies, and it is no exception to the rule that the return necessarily involves an opinion. Von Roy v. Blackman, 3 Woods, 98. Rule XVII. (1.) The appearance-day of the defendant shall be the rule- day to which the subpoena is made return- Appearance-day. able, 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 re- turnable. (2.) The appearance of the defendant, either personally or by his solicitor, shall be entered in the order- .. Entry of appearance. book on the day thereof by the clerk. Promulgated March 2, 1842, 1 How. xlvi. Statutory Provisions. Hev. Stats, sec. 747.] In all courts of the United States the parties may plead and manage their causes personally, or by the assistance of such counsel and attorneys-atlaw as, by the rules of the said courts, re- spectively, are permitted to manage and conduct causes therein. Decisions. An appearance by attorney cures all irregularities in the original process. Gracie v. Palmer, 8 Wlieaton, 699 ; Knox ». Summers, 3 Granch, 496 ; Ferrar v. U. S., 8 Peters, 459. A voluntary appearance to a bill of review dispenses with the necessity of service of process. Carrington v. Brents, 1 McLean, 174. A corporation may appear by attorney in the same manner as a pri- vate person, and the authority of the attorney will in both cases be pre- sumed. Osborn v. Bank of United States, 9 Wheaton, 738. If there has been no service of process and an appearance has been entered by attorney without authority, the court does not acquire juris- diction. Shelton v. Tiffin, 6 How. 163. An objection to the service of process out of the district is waived by the entry of a general appearance. Flanders «. Etna Ins. Co., 3 Mas. 158 ; Segee «. Thomas, 3 BlatcJi. 11 ; Harrison v. Eowan, 1 Peters 0. O. 489. An appearance does not preclude a party from moving to dismiss for the want of jurisdiction, or on any other ground, except irregularities in the proceedings. U. S. v. Gates, 6 How. 605. After appearance and answer a defendant cannot at the hearing ob ject that the bill contains no prayer for process, or that he was not erved. Segeo v. Thomas, 3 Blatch. 11. EULES OF PRACTICE IN EQUITY. 79 A defendant who appears and puts in an answer waives all irregu- larities in the form and service of the subpoena. Goodyear v. Chaffee, 3 Blateli. 268. One of several defendants may move the dismissal of a bill for non- prosecution against an absent defendant who does not, and is not com- pellable to, appear. But the court may grant further time. Piquet v. Swan, 5 Mason, 561. A corporation does not waive an objection to the jurisdiction of the court by appearing and pleading to the jurisdiction. Deeper «. N. Y. Belting, &c. Co., 11 Batch. 76. A permission to a defendant to withdraw a general appearance with- out prejudice to the plaintiff does not deprive him of the benefit of such general appearance in curing irregularities. Creighton v. Kerr, 20 Wall. 8. Appearing by counsel and moving to dismiss for want of jurisdiction on other grounds, is a waiver of a non-resident's privilege to be sued in his own district. Jones «. Andrews, 10 Wall. 327. An appearance after decree, and moving to strike off the cause on the ground that no process was served, does not waive previous defects of service. Dorr v. Gibboney, 3 Hughes, 882. Eflb XVIII. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a ^i,^„ anewpr.piea, or judge of the court, upon motion for that demurrer due. purpose, to file his plea, demurrer, or answer to the bill, in the clerk's ofiSce on the rule-day next succeeding that of enter- ing his appearance. In default thereof the plaintiff may, at his election, enter an order (as of course) Default. in the order book, that the bill be taken pro confesso ; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order if the same can be done without an answer, and is proper to be decreed ; or the plaintiff, if he requires any dis- covery or answer to enable him to obtain a Attachment at election 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 answer, or other- wise complying with such order as the court or a judge there- of may direct, as to pleading to or fully answering the bill. 80 KTTLES OF PRACTICE IN EQUITY. within a period to be fixed by the court or judge, and under- taking to speed the cause. See Equity Eules 46, B5. Promulgated March 2, 1842, 1 How. xlvi ; amended October 28, 1878, 97 U. S. viii. decisions. If, after a demurrer has been overriiled, any of the defendants fail to answer within the time limited by the court, the bill may be taken pro confesso as to them. Suydam v. Beals, 4 McLean, 12. A decree taken pro confesso before the expiration of the time given to the defendant to answer, is irregular and will be set aside. Fellows •v. Hall, 3 McLean, 487. See also Fellows «. Hall, 3 McLean, 281. A rule for an answer when process has not been regularly served, and a decree pro confesso for want of an answer, are irregular. Treadwell V. Cleaveland, 3 McLean, 283. The omission to enter a formal order that the bill be taken pro con- fesso, will not affect the validity or reularity of the final decree. Linder V. Lewis, 1 Fed. B. 378. If one of several defendants make default, his default and a formal decree pro confesso may be entered: but no final decree on the merits can be made until the case is disposed of as to the other defendants. The defaulting defendant is simply out of court and can take no further part in the case. And if the bill is dismissed on the merits, it must be dis- missed as to the defendant in default as well as the others. Frow v. De La Vega, 15 Wall. 552. Where a decree pro confesso is entered, the only question for the con- sideration of the court on appeal is whether the allegations of the bill are sufficient to support the decree. Masterson «. Howard, 18 Wall. 99. It is error to render a final decree for want of appearance at the first rule-day after service of a subpoena. O'Hara ». McConnell, 93 U. 8. 150. If a defendant obtains time to answer he may still file a deraurreu ■within the time allowed to answer. N. J. ». N. Y., 6 Peters, 323. The only effect of a decree pro confesso is to enable the case to be pro- ceeded with ex parte. Unless followed by a final decree, it settles no rights. Lockhart v. Horn, 3 Woods, 542. EULB XIX. When the bill is taken pro confesso the court may proceed Decree on default- to.a dccrec at any time after the cxpiration reopening. ' ^f. ^^irty days from and after the entry of the order to take the bill pro confesso, and such decree ren- dered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown, upon motion and affidavit of RULES OF PEACTICE IN EQUITY. 81 the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaint- costs on reopening and i£E m the suit up to that time, or such part other conditions, thereof as the court shall deem reasonable, and unless the de- fendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. See Equity Rules 46, 55. Promulgated March 8, 1843, 1 How. xlvi ; amended Oct. 88, 1878, U. S. viii. decisions. A judgment by default irregularly entered may be set aside without an affidavit of merits, but if regular, an afiSdavit is required. Sbeep- shanks v. Boyer, 1 Baldwin, 462; Kemball v. Stewart, 1 McLean, 333; Jenlis V. Garretson, 4 McLean, 358. It is error to render a final decree for want of appearance at the first rule-day after service of a subpoena. O'Hara v. McConnell, 93 JJ. 8. 150. When the defendant has appeared by solicitor, notice of an applica- tion for a decree, after an order pro confesso, must be given to such solicitor. Bennett v. Hcefner, 17 Wall. 341. The court has no power to set aside a decree pro confesso, and reopen the case, after the term at which such decree was rendered. Linder«. Lewis, 1 Fed. B. 378. EULE XX. Every bill, in the introductory part thereof, shall contain introductory part of bills; ^^e names, placcs of abode, and citizenship ^°'™- of all the parties, plaintifEs and defendants, by and against whom the bill is brought. The form, in sub- stance, shall be as follows: "To the judges of the circuit court of the United States for the district of : A. B., of , and a citizen of the State of , brings this his bill against 0. D., of , and a citizen of the State of , aud E. P., of , aud a citizen of tlie state of . And thereupon your orator complains and says that, &c." Promulgated March 2, 1843, 1 How. xlvii. Decisions. Persons cannot be made parties to a bill by designating them by ficti- tious names in the introductory part of the bill, or in the prayer for pro- cess. Kentucky S. M. Co. ■». Day, 3 Saw. 468. Legal and equirable causes of action cannot be joined at law or in equity in the United States courts. Stafford Nat. Bank «. Sprague, 8 Fed. B. 377 ; Montejo v. Owen, 14 BlatcA. 334, 6 82 KTJLES OF PRACTICE IN EQUITY. KULE XXI. The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the ^^at may be omitted common confederacy clause of the bill, aver- ftom piaiutire bin. ring 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 defend- ant 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 defendant 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, pjaintifl may state by counter-averments, at his option, any ■"»"«>^ "f "^oidance. matter or thing which he supposes 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 Prayer of bin. himself entitled, and also shall contain a prayer for general relief ; and if an injunction, or a writ of ne exeat regno, or any other special order, pending the suit, is required, it shall also be specially asked for. See Equity Eule 5, and statutory provisions and decisions noted thereunder. Promulgated Marcb 2, 1343, 1 How. xlvii. Statutory Provisions. ifeo. Stats, sec. 717V] Writs of ne exeat may be granted by Supreme and circuit courts, and the judges tliereofrespoclively; but suit in equity must be first commenced, and proof furnished that defendant intends quicljly to depart from the United States. Decisions. The bill must contain a sufBcient matter of fact to maintain the plaint- iff's case. Harrison v. Nixon, 9 Peters, 483. The complainant is not required to set forth the minute facts of his case, general averments of precise facts being usually sufflcient. Dunham •c. Railway Co., 1 Bond, 443. Sufficient equity must appear on the face of the bill to warrant the court in granting the relief praj-ed. Harding r. Handy, 11 Wheaton, 103. It is not necessary that the bill should allege or specifically describe ali tlic evidence ; but it must contain allegation.'s broad enough to cover the evidence relied on. Nesmith v. Calvert, 1 Woodb. & M. 34. ETJLES OF PRACTICE IN EQUITY. 83 A bill may be framed -witli a double aspect, so that if the court de- cides against the plaintiil in one view of the case, it may aft'ord him re- lief in another. Hobson v. McArthur, 16 Peters, 183. But the alternative case must be the foundation for the same relief. Shields V. Barrow, 17 Soio. 130. Under a prayer for general relief other relief may be afforded than that specifically prayed, but the same must accord with the case made by, the bill. English v. Foxall, 3 PeUrs, 595 ; Walden v. Bodly, 14 Peters, 156. Under a prayer for general relief, such relief only will be granted as the case made by the bill and proofs, will warrant. Hobson «. McArthur, 16 Peters, 183. If specific relief be prayed, the court cannot grant other relief whiph is inconsistent with or different from that specially asked, although there be a prayer for general relief. Wilson v. Graham, 4 Was7i. O. 0. 53. A prayer for general relief is a prayer for any relief the court can give (except by injunction,) upon the facts alleged in the bill. Chicago, St. L. & N. O. R. R. Co. ■». McComb, 3 Fed. R. 18. In a final decree, when the facts stated in the bill and established or admitted at the hearing justify it, a writ of ne exeat respublica may be pro- vided for, even though there be no prayer in the bill for the writ. The authorities indicate that the writ may also be issued, upon a proper ap- plication, after final judgment or decree. The limitation of the above rule only applies when the application, for the writ is made "pending the suit." Lewis v. Shainwald, 7 Sawyer, 403. EULE XXII. If any persons^ other than those named as defendants in the bill, shall appear to be necessary or prop- Parties oat of jurisdiction. er parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And as to per- sons who are without the jurisdiction and Prayer in such cases. 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. See Equity Enles 47, 48, 49, 60, 51, 54. Promulgated March 3, 1843, 1 How. xlviii. KULB XXIII. The prayer for process of subpoena in the bill shall contain the names of all the defendants named in Prayer for subpoena. the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall, 84 KULES OF PKACTICE IN EQUITY. state the fact, so that the court may take order thereon, as Justice may require upon the return of the process. If an in- Prayer for provisional junction. Or a Writ of ne exeat regno, or any remedy need not be re- , . , . f peated. other Special order, pending the suit, is asked for in the prayer for relief, that shall be suiSBcient, with- out repeating the same in the prayer for process. Promulgated March 3, 1842, 1 How. xlviii. decisions. When a defendant appears generally in a suit, he waives his right to object that he was not named as a defendant in the prayer for aub- pcBna. Baerk v. Imhaeuser, 8 Fed. B. 459. One defendant cannot object that others are improperly named or omitted in the prayer for process, lb. EULE XXIV. Eyery bill shall contain the signature of counsel annexed Signature of counsel ; *° ^*' which shall be Considered as an affirma- how considered. ^jqjj q^ ]jjg pg^,.)- x,h&t, upou 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. See Equity Kule 31. Promulgated March 3, 1&43, 1 How. xlviii. Decisions. A bill must be signed by counsel or it is demurrable. But a signing on the back is sufficient. Dwight ®. Humphreys, 3 McLean, 104. A bill filed without the signature of the plainlifE or counsel, will be ordered to be taken off the files. But having been taken off and signed it may be restored. Roach ». Hulings, 5 Crancli C. C. 637. The answer must also be signed by counsel. Davis v. Davidson, 4 McLean, 136. A printed name of counsel is not his signature. Niglitingale x. Ore- gon Central R. R. Co:, 2 Saw. 338. When an attorney, who is also a counselor of the court, signs the bill as "solicitor for complainant," it is a sufficient compliance with this rule. Stinson ». Hildrop, 8 Bissell, 376. EULB XXV. In order to prevent unnecessary costs and expenses, and Taxable costs for bill to promote brevity, succinctness, and direct- and answer, limited. ^^^^ ^^ ^^^ allegations of bills and answers, the regular taxable costs for every bill and answer shall in no BULES OF PRACTICE IN EQUITY. 85 case exceed the sum which is allowed in the State court of chancery in the district, if any there be ; but if there be none, then it shall not exceed the sum of thi-ee dollars for every bill or answer. Promulgated March 2, 1842, 1 How. xlix. EtJLE XXVI. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no bhis not to contain un- unnecessary recitals of deeds, documents, orsclSiourmau'er!''' contracts, or other instruments, in haec verba, or any other im- pertinent matter, 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 im- ^ ,. ■' •'"f, ,.„ ' ,, Exception for; refer- pertinence or scandal ; and if so found by enc*"; costs. him, the matter shall be expunged at the expense of the plain- tiff, 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 costs on report favor- the bill is not scandalous or impertinent, the "i"" '<> plaintiff. plaintiff shall be entitled to all costs occasioned by the refer- ence. Promulgated March 2, 1642, 1 How. xlix. Decisions. It is not necessary to specify particulars of infringement of letters- patent. A general averment that the defendant has infringed is suffici- ent to put him upon his answer. Turrell v. Cammerrer, 3 Fisli. Pat. Oas. 463. Exceptions for impertinence will not be allowed, unless it is clear that the matter excepted to cannot be material to the plaintiff's case. Wells V. Oregon Ry. & N. Co., 15 Fed. B. 561. Matters are not necessarily Impertinent because they are such as the court will judicially take notice of. lb. It is not necessarily impertinent to a bill for an injunction to refer to recent adjudications of the question involved in similar cases by other courts, lb. Exceptions for impertinence are only allowed where it is apparent that the matter excepted to is not material or relevant, or is stated with needless prolixity. If it may be material, the exception will not be al- lowed,- as that would leave the defendant without remedy, but the alle- gation will be allowed to remain in the answer and the effect thereof, if found to be true, determined on the final hearing. Chapman v. School District, 1 Deadi/, 108. 86 EULES OF PRACTICE IN EQUITY. KULE XXVII. ITo order shall be made by any judge for referring any bill, Exception to be in writ- answer. Or pleading, or other matter or pro- iul "lsfg^na^fng°°parts cceding, depending before the court, for objected to. scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the par- ticular passages which are considered to be scandalous or im- pertinent ; nor unless the exceptions shall be filed on or before the next rule-day after the process on the bill shall be return- able, or after the answer or pleading is filed. And such order. Abandonment of order, when obtained, shall be considered as aban- doned, unless the fi^i-ty 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. Promulgated March 2, 1843, 1 How. xlix. EULE XXVIII. The plaintifE shall be at liberty, as a matter of course, and When bills amended of 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 mat- ters afterwards, such as filling blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as he may do of course) after a copy has When costs to be paid been SO taken, before any answer or plea or defendant, and copy fur- ., x _li i -n n i n, , ,, , nished. demurrer to the bill, he shall pay to th6 de- fendant the costs occasioned thereby, and shall, without delay furnish him a fair copy thereof, free of expense, with suitable references to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish, in like manner, to the defendant, a copy of the whole bill as amended ; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. See Equity Euloa 39, 43, 45, 46. Promulgated March 2, 1&42, 1 How. 1. Rule XXIX. After an answer, or plea, or demurrer is put in, and before Am.endmentbyieaveof replication, the plaintiff may, upon motion Court i costs ; terms, qj. petition, without notice, obtain an order RULES OF PRACTICE IN EQUITY. 87 from any judge of the court to amend his bill on or before the next succeeding rule-day, upon payment of costs or -without payment of costs, as tho court or a judge thereof may in his discretion direct. But after replication filed, the plaintiff shall not be permitted to withdraTv it and to amend his bill, except upon a special order of a judge of the court, upon mo- tion 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 amend- ment is material, and could not with reasonable diligence havo been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. See Equity Eules 88, 43, 45, 46. Promulgated March 2, 1842, 1 How. 1. Statutory Provisions. Eei). Stats, sec. 954.] No summons, writ, declaration return, process or other proceedings in civil causes in United States courts, shall be abated, etc., for any defect or want of form; but such court shall pro- ceed and give judgment according as the right of the cause and matter of law shall appear to it, without regarding any such defect or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and w^nt of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or plead- ings, upon such conditions as it shall, in its discretion and by its rules, prescribe. Decisions. The court should not allow a new and wholly different cause of ac- tion to be made by amendment. Shields u. Barrow, 17 How. 130. Amendments can only be allowed when the bill is found defective (a) in proper parties; (i) in its prayer for relief; (c) in the omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself; or (d) for putting in issue new mat- ters to meet allegations in the answer, lb. In a suit for infringement of a patent, if the defendant sets up a license, and the complainant would give evidence of its abandonment, the bill must be amended, as under rule 45, a special replication is not permitted. Wilson V. Stotley, 4 McLean, 375. An amendment cannot be allowed which would in effect amount to the institution of a new and materially different suit either as to parties or right of action. Goodyear ». Boon, 3 Blateh. 266. ^ An amendment of the bill cannot be allowed after a bill has been long 88 KTJLES OF PRACTICE IN EQUITY. pending and the answer and replication have been filed and depositions taken, unless the complainant at least shows that he could not have made it at an earlier stage of the cause. Boss v. Carpenter, 6 McLean, 383. Leave to amend after hearing is property refused, if the proposed amendment would present a new case. Snead «. McCoul, 12 ITow. 407. An amendment may be allowed after deciding against the bill on demurrer. The power is unquestionable upon general principles and is supported by the act of 1789 (Rev. Stats, sec. 954, supra). Hunt -o. Rous- manier, 3 Mas. 343. The court may, for the purpose of avoiding unnecessary delay, enter- tain a motion to amend at the same time that exceptions to the bill are filed. Kettredge v. Clairmont Bank, 3 Story G. G. 590. On the reversal of a decree because the bill by itself, or in connection with the answer, did not make out a full case, directions are given as to the requisite amendments, and leave given to^ introduce new parties. Harris'on.D. Nixon, 9 Peters, 483. (See also Esthe «. Lear, 7 Peters. 130.)" If the amendment does not introduce other defendants, no new sub- poena need issue; and if no new fact is introduced and the merits are not affected, the plaintiff may proceed without answer to the amendment. Longwortli v. Taylor, 1 McLean, 514. Amendment of the bill will not have the effect of dissolving an in- junction previously granted. Read v. Consequa, 4 Wash. G. G. 174. Amendment of the bill by leave of the court, instead of special repli- cation, is the proper mode of pleading new matter. Dupouti v. Mussy, 4 WasJi. G. C 138. In a bill for specific pcrformanre, if the contract be not set out with exactness, amendment may be allowed on easy terms, if the substance of it appeals ; and so of mistakes of form in pleading the statute of frauds. Tufts ». Tufts, 3 Woodb. & M. 456. The objection that a person made defendant in forclosure is not a necessaiy party may be obviated by amendment. Dwight v. Humph- ries, 3 McLean, 104. An objection that a party is joined as complainant over whom the court has not jurisdiction may be met by an amendment, if he be not a necessary party. Conolly «. Taylor, 3 Peters, 55C. In the absence of binding rules to the contrary, a court of equity has power, after a cause has been heard and a case for relief made out, (but not the case disclosed by the bill,) to allow an amendment of the plead- ings on terms that the party not in fault has no reasonable cause to ob- ject to. Nealo V. Neales, 9 Wall. 1. It is gross irregularity to hear a case, without imposing terms, on an amended bill filed after replication, without leave of the court. Wash. R. R. «. Bradleys, 10 Wall. 399. A complainant is bound by an admission of fact contained in his bill, unless he obtain leave to amend before the hearing. Provost «. Gratz, 3 Wash. G. G. 454. Amendments should rarelj', if ever, be permitted so changing the char- KULES OF PEACTICE IN EQUITY. 89 aeter of the pleadings as to make substantially a new case, after the cause has been heard. Waldon v. Bodly, 14 Peters, 156. Staleness of the demand in suit affords no ground for refusal of an amendment of a bill. Fisher «. Rutherford, 1 Baldw. 88. An amendment was allowed on final liearing, making a different case, when, on the pleadings and proofs as they stood, the relief prayed could not be granted, it appearing that the proposed amendment harmonized with the whole case in its essential features and did not change the sub- ject matter. Battle v. Mut. Life Ins. Co., 10 Blatch. 417. An amendment seeking to add new parties will be refused after repli- cation and proofs, if it appear that the plaintiff might have amended before. Clifford v. Coleman, 13 Blatch. 210. An amendment will be allowed after final hearing, although it may change the character of the bill, if the cause was tried as it must have been had the bill been originally as amended. Tremaine v. Hitchcock, 23 WaU. 518. After a decree and accounting an amendment will be denied which seeks to recall an admission in the answer. Ruggles v. Eddj'', 11 Blatch. 524. Amendments denied under the peculiar circumstances of the cases. "Webster Loom Co. v. Higgins, 13 Blatch. 249; Roberts i\ Buck, 6 Fish. Pat. Oas. 335. Amendments regularly made under this rule connot be avoided by a motion to strike from the record, or to set aside the order granting them. Lichtenauer v. Cheney, 8 Fed. li. 876. New matter arising since the bill was filed cannot be inserted by amendment. Mason v. Hartford, P. & F. R. R. Co., 10 Fed. R. 334. If an amendment, in effect, makes a new ease, the court will grant a motion to take it from the files. Oglesby v. Attrill, 14 Fed. R. 314. EULE XXX. If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after Abandonment of order, 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 h;ive abandoned the same, and the cause shall proceed as if no application for" any amendment had been made. See Equity Kules 43, 45, 46. Promalgated March 2, 1843, 1 How. IL EULE XXXI. No demurrer or plea shall be allowed to be filed to any bill, unless Unon a certificate of counsel, that in Demurrer or plea not '^ , „ . IT- ■ L J- to be filed, except upon his opinion it is well founded in point OI certificate ot counsel. law, and supported by the affidayit of the defendant ; that it 90 KITLES OF PKACTICE IN EQUITY. i is not interposed for delay ; and, if a plea, that it is true in point of fact. See Equity Rule 24. Promulgated March 2, 1842, 1 How. li. Decisions. If a plea is filed without the certificate of counsel, and the plaintiff files a demurrer to it, and the cause is brought on for argument on the insufliciency of the plea, the want of a certificate is waived. A motion should have been made to talce the plea from the files, or it might be dis- regarded entirely. Goodyear ». Toby, 6 Blaieh. 130. When this rule is not complied with, the demurrer will be disregarded although it may otherwise be good. Secor v. Singleton, 9 Fed. B. 809. A decree pro confesso may be entered after the filing of a demurrer which does not comply with this rule. Ih. A plea may be disregarded, if it contain mere conclusions of law, or lacks the affidavit and certificate required by this rule. Nat. Bank v. Insurance Co., 104 U. 8. 54. EULE XXXII. The defendant may at any time before the bill is taken for Defendant may plead, confessed, or afterward with the leave of or part of bill. the court, dcmur or plead to the whole bill, or to part of it, and he may demur to part, plead to part, and answer to the residue ; but in every case in which the bill Plea when bill charges 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. See Equity Enles 36, 37, 39, 44. Promulgated March 2, 3842, 1 How. li. Decisions. The office of a demurrer is to raise the question of the right to main- tain the suit, admitting all the allegations to be true ; and the court will not, therefore, examine aliunde what facts might or might not defeat the suit, for this is the office of a plea or an answer. Ocean Ins. Co. v. Fields, 3 Story C. 0. 59. A demuri-er operates as an admission, for the purposes of tlie demur- rer, that all the allegations of the bill, well pleaded, are true. Foote «. Linck, 5 McLean, 616 ; Grifflng «. Gibb, 3 Black, 519 ; Woodworth ». Edwards, 3 Woodb. & M. 130 ; Bayorque v. Cohen, 1 McAll. 113. A defendant may, in his answ^er, insist upon the same cause of de- murrer after his demurrer has been overruled. The William Penn, 3 Wash. C. G. 484. EULES OF PEACTICE IN EQUITY. 91 A demurrer to the whole bill cannot be sustained if any independent part of the bill be good so as to entitle the plaintiff to relief. Livingston V. Story, 9 Peters, 632 ; Atwill v. Ferrett, 3 Blatch. 39. Nor will a formal protestation accompanying the demurrer prevent the overruling of a general demurrer, if any separable part of the bill be good. Atwell V. Ferritt, 3 Blateh. 39. Laches may be taken advantage of by demurrer. Maxwell v. Ken- nedy, 8 How. 210. A defendant who relies upon a statute for his defense should not de- mur, but plead the statute, and the court will take judicial notice of it. Grifflng ». Gibb, 3 Black, 519. If the bill shows that the plaintiff's case is within the statute of limi- tations, and does not show facts bringing it within any exception of the statute, a demurrer will lie. Wisner ». Barnet, 4 Wash. C. C. 631. If an agreement concerning lands is not alleged to have been in writ- ing, the advantage of the statute of frauds may be taken by demur- rer. Randall ». Howard, 2 Black, 585. If the demurrer is overruled, tlie defendant may still have leave to answer on payment of costs. Woodworth «. Edwards, 3 Woodb. & M. 130. (See Equity Rule 34.) A defendant is not bound to put his defense by way of answer, but he may, if it be a subject for a plea, avail himself of that form, thereby sav- ing the expense of examining witnesses and also the delay. Wilson ». Graham, 4 Wash. 0. O. 53. All defenses by way of abatement, or going to the jurisdiction, being preliminary in their nature, must be taken advantage of by plea, and not by answer, which necessarily admits the right and capacity of the party to sue; Livingston v. Story, 11 Peters, 351. An objection for want of parties is not matter of abatement, but goes in bar of the whole bill. If the defect be fatal it may cither be pleaded or relied on in the answer. Tobin e. Walkinshaw, 1 McAll. 26. A plea in bar must extend to every part of the bill. Piatt v. Oliver, 1 McLean, 395 ; Lewis v. Baird, 3 Id. 56. A plea in bar denying only part of the material facts averred in the bill is defective, because a mere denial of facts is proper for an answer, but not for a plea. Milligan v. Milledge, 3 Cranch, 220. A plea may be good in part and bad as a whole. Kirkpatrick v. White, 4 Wash. 0. 0. 595. If want of jurisdiction is not apparent on the record, an alleged defect can only be taken advantage of by plea. Fremont v. Merced Mining Co., 1 McAll. 267. Objections to jurisdiction, for the want of parties, of equity in the bill, or that there is a remedy at law, may be made at the hearing, or on ap- peal. Such objections need not be made by demurrer or plea, or taken in the answer. Baker v. Biddle, 1 Baldw. 394. Contra, Nesmith e. Cal- vert, 1 Woodb. & M. 34. If leave is given to appear and answer the bill, a demurrer will be a compliance. K. J. ■». N. Y., 6 Peters, 823. 93 EXILES OF PRACTICE IN EQUITY. Upon a hearing of an issue upon a plea, no question arises as to the sufficiency of the plea in point of law. It is only necessary to be proved in point of fact. Hughes v. Blake, 1 Mas. 515. A defendant may meet the complainant's bill by several modes of de- fense. He may demur, answer and plead to different parts of the bill. But the defendant must answer the proper matter, and demur to the improper matter specifically; and if he demur to the whole, the demurrer is bad if part of the bill be good. Livingston «. Story, 9 Peters, 632. If the defendant answer to the same matter covered by his plea, the latter overrules the former. Ferguson?;. 0'E.iirsi, 1 Peters O. C. 493; Stearns v, Page, 1 Story O. 0. 304. (See Equity Rule 37.) When one defense is made by answer and another by plea, such plea •will be ordered to stand as an answer, the plea, in such case, being con- sidered as part of the answer, and with the permission of the court, may be excepted to. Lewis v. Baird, 3 McLean, 56. If a plea is only to some part of the bill, the defendant must either answer or demur to the residue. Ferguson «. O'Hara, 1 Peters O. C. 493. A demurrer to a part of the bill followed by an answer as to the rest is not deemed ovrruled or withdrawn. Pierpont «. Fowle, 2 Woodb. <& M. 23. The objection that a court of equity has not jurisdiction because the complainant has an adequate remedy at law, should be taken by plea or answer. It is too late to raise it for the first time on appeal, unless the matter objected to is apparent on the face of the bill. Wylie i). Coxe, 15 Mow. 415. Matters of abatement should be pleaded and not set up in the answer; but an objection of the want of proper parties should be suggested by the answer. (See Equity Rule 53.) U. S. i). Gillespie, 6 Fed. R. 803. If a foundation is laid in the bill for some of the discovery and relief prayed, a demurrer to the w;hole bill will be overruled. Buerk b. Im- haeuser, 8 Fed. E. 457. A demurrer for want of parties must name the proper parties. Dwight V. Cent. Vt. R. R. Co., 9 Fed. E. 785. When a defendant both answers and demurs, but takes no testimony in support of his answer, leave will not be granted to take proofs upon overruling the demurrer, if the time for taking testimony as prescribed by Equity Rule 69 has expired. Orendorf v. Budlong, 12 Fed. E. 24. A demurrer only admits matters of fact positively alleged, and not conclusions of law or more pretences and suggestions, nor the correct- ness of the ascription of a purpose to parties when not justified by the language used and facts positively alleged. Dillon e. Bernard, 21 Wall. 430; Taylor v. Holmes, 14 Fed. B. 498, A demurrer to the whole bill, and, at the same time, an answer to the whole bill, is a waiver of the demurrer. Adams v. Howard. 9 Fed. E. 347. A special demurrer to a part of the bill must point out witn certainty the part demurred to. This Is not only necessary for reasons of conven- RULES OF PRACTICE IN EQUITY. 93- ience, b\it, unless the demurrer had this precision, there must be great uncer. tainty in the judgment, if the demurrer is sustained. Atwell t>. Terrett, 2 Blatch. 39 ; The Chicago, St. L. & N. O. R. R. Co. ». McComb. 2 Fed. B. 18. A demurrer lies merely to matter apparent on the face of the bill. The Chicago, St. L. & N. O. R. R. Co. v. McComb, 1 Fed. B. 18. A defendant cannot demur to the whole bill, plead to the whole bill, and answer the whole hill at the same time. Crescent City Live Stock, L. & 8. H. Co. ■». Butchers Union Live Stock, L. & S. H. Co., 12 Fed. B. 225. Where jurisdiction properly appears on the face of the bill, it can only be questioned by plea setting fortli facts to overcome the allegations in that respect contained in the bill. Wickliffe v. Owings, 17 How. 47; Pond 4>. Vermont Valley R. R. Co., 12 Blatch. 282. If a demurrer covers the whole bill and is good as to part only, it will bo overruled. Heath v. Erie R. R. Co., 8 Blatch. 347. A demurrer to the whole bill setting up, that some of the relief prayed is not cognizable in equity, will be overruled if some of the relief prayed is proper. Brandon Mfg. Co. v. Prime, 14 Blatch. 871. A demurrer being proper only for defects apparent on the face of the bill and exhibits, the complainant will not be allowed to fortify the case by invoking facts that do not appear from the bill itself. Phelps v. McDonald, 2 McArthur, 375. Demurrer for the want of equity is improper in case the bill is good in substance, and the objection is that for some technical reason the relief sought cannot be obtained in that suit. Nicholas v. Murray, 5 Sawyer, 320. When there is a demurrer to the whole bill, and also to a part, and the latter only is sustained, the proper decree is to dismiss so much of the bill as seeks relief in reference to the matters adjudged to be bad, over- rule the demurrer as to the residue, and direct the defendant to answer thereto. Powder Co. ®. Powder Works, 98 U. 8. 126. Where it appears by the complainants bill that the remedy is barred by lapse of time, or that by reason of his laches he is not entitled to re- lief, the defendant may demur. Nat. Bank v. Carpenter, 101 U. S. 567. The above rule permits a demurrer to a part of the bill, a plea to a part, and an answer as to the residue. If implied!}^, this forbids a de- murrer to the whole bill, and, at the same time, an answer to the whole bill, the plaintiii's remedy is by moving to strike out either the answer or the demurrer, or to compel the defendant to elect which he will abide by. By going to argument on the demurrer the plaintiff waives the benefit of the objection, and Equity Rule 37 applies. Hayes v. Dayton, 8 Fed. B. 702. The demurrer of one defendent cannot be held to overrule the plea of another defendant. Dakin v. Union Pacific Railway Co., 5 Fed. B. 665. A plea to a bill in equity, that there are divers and sundry persons whose names are known to and ascertainable by the plaintiffs and not by the defendants, not setting forth any names, and not accompanied by an 94 ETJLES OP PRACTICE IN EQUITY. answer, but accompanied by a demurrer for want of parties, is not a good plea. Dwight v. Central Vermont R. R. Co. 20 Blateh. 300. A defendant cannot demur to the whole bill and also answer the whole bill, especially where the answer sets up everything that is in the demurrer; and he will, on motion, be compelled to elect between his de- murrer and his answer. Adams v. Howard, 20 Blateh. 38. EULE XXXIII. The plaintiff may set down the demurrer or pled, to be Argument of plea or arguedj Or he may take issue on the plea. If, demurrer. , upon an issue, thc facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. See Equity Enle 38. Promulgated March 2, 1843 1 How. li. Decisions. If the plea is unexceptionable in form and nature, the complainant must either set it down for argument, or he must reply to it and put in issue the facts relied on in the plea. By setting down the plea for argu- ment, he admits the truth of all facts alleged in the plea, and merely denies their sulBciency. If, on the other hand, he replies to the plea de- nying the facts therein stated, he admits that, if they are true, they are sufficient ; and if they are proved to be true the bill must be dismissed. R. I. V. Mass., U Peters, 210 ; Myers v. Dorr, 13 Blateh. 22. Where issue is taken on the plea, no question arises as to its sufficiency in point of law. Hughes v. Blake, 1 Mas. 515; S. C, 6 Wheaton, 458. A replication to a plea is an admission of its sufficiency. Hughes ». Blake, 6 lieaton, 453. If a replication is interposed to a plea, the parties proceed to an ex- amination of witnesses in the same way as in case of a replication to an answer. (See Equity Rules 66, 67, 68, 69.) Reissner v. Anness, 13 Off. Qaz. Pat. 7. Where the plea sets up facts which may be a defense, a motion to strike it off will be saved for the hearing to be then treated as the testi- mony may warrant. WiUiams v. Empire Transportation Co., 6 Reporter, 673. In a case where judgments are pleaded in bar, the court may, on mo- tion, refer the pleas to a master to ascertain the truth of the same. The Emma Silver Mining Co. (Limited) ». The Emma Silver Mining Co. of N. y., 1 Fed. B. 39. A demurrer to a plea involves the sufficiency of the bill, as well as of, the plea; and if the bill cannot be maintained as to a material fact, the defect must be remedied by amendment. Beard v. Fowler, 2 Bond, 13. A special replication, in reply to a plea or demurrer, setting up new matter and matter arising since the bill was filed, cannot be allowed, and may be struck ofE on motion. Mason v. Hartford, P. & F. R. R. Co., 10 Fed, B. 334. EXILES OF PRACTICE IN EQXJITT.' 95' EULE XXXIV. If, upon the hearing, any demurrer or plea is overruled, ' the plaintifE shall be entitled to his costs in „ ^ ,-1 ^ Costs on overruling plea the cause up to that period, unless the court "'' demurrer. shall be satisfied that the defendant has good ground, in point of law or fact, to interpose the same, and it was not interposed Vexatiously or for delay. And, upon Ihe Defendant to answer; overruling of any plea or demurrer, the de- *«'""!«• fendant 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 judg- ment of the court, be reasonably done ; in default whereof, the bill shall be taken against him pro confesso, and the matter thereof proceeded in and decreed accordingly. Fronalgated March 2, 1843, 1 How. lil. Decisions. If the defendant do not answer within the time assigned for that purpose by the court on overruling a demurrer, a decree pro confesso may be talien. Suydam -e. Beals, 4 McLean, 13. Notwithstanding the defendant demur and Iiis demurrer is overruled, he may insist upon the same matter in his answer. Crawford v. The William Penn, 3 Wash. G. O. 484. If the demurrer is overruled, the defendant may still have leave to answer on payment of costs. Woodworth v. Edwards, 3 Woodb. & M. 130. When there is a demurrer to the whole bill, and also to part, and the latter only is sustained, the proper decree is to dismiss so much of the bill as seeks relief in reference lo the matter adjudged to be bad, over- rule the demurrer to the residue, and direct the defendant to answer thereto. Powder Co. v. Powder Works, 98 V. 8. 136. On overruling a demurrer, leave must be given to answer. Wooster V. Blake, 7 Fed. B. 816. KuLE XXXV. If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. Costs on allowance of ..... ,. demurrer or plea; But the court may, m its discretion, upon amendment, motion of the plaintiff, allow him to amend his bill, upon such terms as it shall deem reasonable. Promulgated March 2, 1843, 1 How. lii. 96 ETJLES OF PEACTICE IN EQUITT. Statutory Provisions. Jiev. Stats, sec. 954.] Any court of the United States may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and hy its rules, prescribe. decisions. The court may permit an amendment of the bill after sustaining a demurrer. The power is unquestionable upon general principles and comes within tk(e act of 1789 (Rev. Stats, sec. 954, si/pra). Hunt v. Rousmanier, 3 Mas. 343. The complainant is not entitled, as a matter of right, to amend his bill after a demurrer thereto has been sustained ; but the court may, in its discretion, grant him leave to do so upon such terms as it shall deem reasonable. National Bank v. Carpenter, 101 U. 8. 567. , An order refusing a complainant the privilege of amending, after a demurrer to the bill has been sustained, cannot be reviewed by the Supreme Court, unless the record shows what amendment is pro- posed. Jl). After a demurrer to a bill is allowed, the right to amend rests in the discretion of the court, and leave to amend will not be granted unless it is necessary to promote or attain the ends of justice. Dow ell «. Apple- gate, 7 Saw. 333 ; S. C, 8 Fed. It 698. EuLB XXXVI. No demurrer or plea shall be held bad and overruled upon sufflciencyof demurrer argument. Only because such demurrer or plea "'^P''"'- shall not cover so much of the bill as it might by law have extended to. See Equity Rule 44. Promulgated March 2, 1843, 1 How, lii. Rule XXXVII. No demurrer or plea shall be held bad and overruled upon Demurrer or pies good argument. Only because the answer of the exSto parTof eSme defendant may extend to some part of the '^it"- same matter as may be covered by such de- murrer or plea. See Equity Eules 33. 44. Promulgated March 3, 1843, 1 How. lii. Secisiona. Where the defendant pleads and also files a general answer, if the answer contains more than is strictly applicable to the support of the plea, it overrules the plea. Stearns v. Page, 1 Story O. C. 304. EULES OF PEACTICE IN EQUITY. 97 Generally if a defendant answer to the same matter covered by his plea, and which, in his plea, he contends he is not bound to answer, the latter overrules the former. Ferguson v. O'Hara, 1 Peters 0. 0. 493. A demurrer and an answer may, under the above rule, be put in to the whole bill., (The cases of Stearns v. Page, and Ferguson v. O'Hara supra, held to be overruled by the adoption of this rule.) Hayes «. Dayton, 8 Fed. B. 702. EuLE XXXVIII. If the plaintlfE shall not reply to any plea, or set down any plea or demurrer for argument on the rule- Dismissal of wii on J 1 ii ' ni -I .1 , failure to reply to day when the same is nled, or on the next piea, oreetdownpiea succeeding rule-day, he shall be deemed to ad- ment.'""™'^ orargu- mit the truth and sufficiency thereof, and his bill shall bo dis- missed as of course, unless a judge of the court shall allow him further time for the purpose. See Equity Kale 33. Promulgated March 2, 1843, 1 How. iii. Practice. If asuit is dismissed for defect of pleadings, or parties, or a misconcep- tion of the form of proceeding, orthewant^of jurisdiction, or was disposed of on any ground not going to the merits, the Judgment will not bar an- other suit. Grubb«. Clayton, ^Hayw. 378 ; Waldena. Bodley, 14Peter«, 156 ; Huges ». U. S., 4 Wall. 352. Rule XXXIX. The rule, that if a defendant submits to answer he shall answer fully to all the matters of the bill. Defendant need not an- . swer when he may pro- shall 110 longer apply in cases where he tect himself by piea. might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all Matter in bar may be , .... ., , J „ insisted upon iu an- cases by answer to insist upon all matters oi swer. defense (not being matters of abatement, or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar ; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or defense. Thus, for example, a bona fide purchaser, for a valuable consider- Example. ation without notice, may set up that defense by way of an- swer instead of plea, and shall be entitled to the same protec- .7 98 EULES OF PKACTICE IJST EQUITY. tion, and shall not be compellable to make any further answer or discovery of his title than he tvouM be in any answer iis support of such plea. See Equity Rnle 32, E9, 60, 61, 6S, 63, 64, 65. Promulgated March 2, 1^, 1 How. liii. Decisions. It Ls an established rule of equity pleading, tbat tlie defendant may meet the complainant's bill by sevei'al modes of defense. He may demur, answer and plead to different parts of the bill; so that if a bill for dis- covery and relief contain proper niattei* for the one and not for the other, the defendant should answer the proper and demur to the improper mat- ter. Livingston v. Story, 9 Peters, 632. If one defense is made by answer and another by plea, the latter wil! be ordered to stand for an answer. In such case the plea is considered as part of the answer, and with the leave of the court, may he excepted to. Lewis V. Baird, 3 McLean, 56. Matters of abatement, sncb as want of jurisdiction, incapacity of com- plainant to sue, etc., must be availed of by plea and not by answer. Wylie B. Coxe, 15 ITow. 415; Woods. Mann, 1 Sumn, 578; The Isaac Newton, Am. Ad. 11 ; Wyckliffe ®. Owings, 17 How. 47; U. S. v. Gil- lespie, 6 Fed. R. 803. The defendant is bound to answer in direct and unequivocal terms as to the state of his mind with regard to every fact stated in the bill. Brooks ». Bryam, 1 Story G. C. 296; Taylor v. Luther, $Siimn. 228. An answer denying that the defendant has any knowledge of the facts charged, without adding tliat he has no information or belief of them, is defective. Bradford v. Geiss, 4 TPfltsA. O. C. 513. A defendant cannot in his answer introduce new matter in the nature of a cross bill, and require the plaintiff, and others under whom he claims, to answer It. Hubbard v. Turner, 2 McLean, 519"; Morgan v. Tipton, 3 Id. 339; Ford «. Douglas, 5 How. 43. . A bill charging the defendant with liaWlity for the act of an agent done in behalf of the defendant, in order to be fully met, must deny the authority of the agent and any subsequent ratification. Clark «.'Van Riemsdyk, 9 Cranch, 153. Where a defendant has answered generally to a matter, denying par- ticular knowledge, he may, after acquiring particular information, file a supplemental answer introducing the new matter. Castor jr. Wood, 1 Baldw. 389; Suydam v. Truesdale, 6 McLean, 459. In a pica of purchase for valuable consideration without notice of plaintiff's title, it m-'st be alleged that the person who conveyed was seized, or pretended to be seized, at the time of purchase. Flagg v. Mann, 3 Sumn, 580, 557. Any affirmative relief sought by a defendant must be by cross-bill, and cannot be granted on facts stated in the answer. Chapin v. Walker, ^Fed iJ. 794. RULES OF PRACTICE IN EQUITY. 99 Allegations of the bill neither admitted or denied by the answer must be proved by the complainant. Rogers v. Marshall, 13 Fed. B. 59. EULE XL. It shall not hereafter be necessary to interrogate a defend- ant specially and particularly upon any state- interrogatories notne- ,„ , ; J.1, 1 -n 1 ,, , . , - cessary, unless plaintiff ment in the bill, unless the complainant de- wishes discovery, sires to do so to obtain a discovery. Adopted December Term, 1850, 10 How. v. repealing the rule as then existing. Former role promulgated March 2, 1842, 1 How. liii. Practice. Interrogatories are not to be framed and limited upon the theory that everything stated in the bill is precisely and in every detail true. Chi- cago, St. L. & N. O. R. R. Co. V. McComb, 3 Fed. B. 18. EULE XLI. (1.) The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as Numbering and speci- may be from each other, and numbered con- fe?*to"be"nsweriHy secutively 1, 2, 3, &c. ; and the interroga- each defendant. tories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say : "The defendant (A. B.) is required to answer the . interrogatories numbered respectively 1, 2, 3," &c. ; and the oflSce copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such defendant shall require to be furnished with a copy of the whole bill. (2.) If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer Answer as evidence. under oath with regard 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 hearing on bill and answer only ; but may nevertheless be used as an aflSdavit, 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 100 EULES OF PRACTICE IN EQUITY. defendant from becoming a witness in his own behalf under section 3 of the act of Congress of July 2, 1864* First paragraph promulgated March Z, 1843, 1 How. liv. Second paragraph added May 6, 1872, 13 Wall. ii. Decisions. Answers not responsive to the bill, and not sustained by other proof, are of no avail as evidence. Boach v. Summers, 20 Wall. 165. The rules in equity require defendants to answer only such interroga- tories as they are specifically required to answer by note to the bill. Buerk v. Imhaeuser, 10 Fed. R 608. Where the complainant sets down the cause for hearing on bill and answer, it is an admission that everything well pleaded in the answer is true. Parton v Prang, 2 Off. Oaz. Pat. 619. The complainant must overcome the denial of the defendant respon- sive to the bill, by the testimony of witnesses to the fact, or by witnesses and strong corroborating circumstances. Burr ». Meyers, 2 McArihur, 524. But the rule requiring the complainant to overcome the denials of the answer does not extend to so much of the answer as is not directly responsive to the bill. Seitz ®. Mitchell, 94 U. S. 580. When the answer is responsive to the bill, the allegations therein must to entitle the complainant to relief, be sustained by the testimony of two witnesses, or of one witness corroborated by circumstances which are equivalent in weight to the testimony of another witness. Vigel ■». Hopp, 104 U. 8 441. A defendant has a right to make oath to his answers, although it is waived by the plaintiff's bill. Holbrook v. Black, 8 Law Bep. N. 8. 89. EULE XLII. The note at the foot of the bill, specifying the interrogato- Note as to interroga- rics whlch each defendant is required to tories treated ae part of ^^^^^^^ ^j^^^, ^^ 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 filedj shall be considered and treated as an amendment of the bill. See Equity Eales 28, 29 and 30. I'romnlgated March 2, 1842, 1 How. liv. Practice. The defendant is bound to answer only such interrogatories as, by the note at the foot of the bill, he is specifically required to answer. If the * Bev. Stats. Bee. 858. EULES OF PRACTICE IN EQUITY. note at the fgot of the bill is omitted the interrogatories may be dis- regarded. Buerk v. Imhaeuser, 10 Fed. H. 608. Rule XLIII. Instead of the words of the bill now in use, preceding the interrogating part thereof, and beginning Form of words preced- with the words: "To the end therefore," {,V§.-t-™satir.gpartor 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 respec- tive corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, infor- mation and belief, full, true, direct, and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer ; that is to say — " 1. Whether, &c. "2. "Whether, &c." Promolgated March 2, 1842, 1 How. liv. EULB XLIV. A defendant shall be at liberty, by answer, to decline answering any interrogatory, or part of an Defendant need not an- . , , *^ „ , 1-11 Bwer interrogatories if interrogatory, from answering which he demurrer would lie. might have protected himself by demurrer ; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer. See Ecinity Eules 32, 36, 37. Promulgated March 2, 1842, 1 How. Iv. EuLE XLV. N"o special replication to any answer shall be filed. But if any matter alleged in the answer shall make No special repUca- » ,■.•,•«., T 1 • 1 -n Won required: amend/- it necessary for the plaintiff to amend his bill, ment of biii. he may have leave to amend, the same with or without pay- ment of costs, as the court, or a judge thereof, may in his dis- cretion direct. See Equity Eules 28, 29, 80, 46, 66. Promulgated March 2, 1812, 1 How. Iv. 102 EULE3 OE PEACTICE IS EQtTITTr decisions. Where the defendant in his answer sets up new matter, and the com- plainant desires to give evidence to avoid or explain it, he must obtain leave to amend, as the above rule forbids a special replication. "Wilson i). StoUey, 4 McLean, 275 ; Marsteller ®. McLean, 7 Grancli, 156. If the answer requires the complainant to vary his case, it cannot be dode by replication, but must be by amendment of his bill. Vattier ». Hinde, 7 Peters, 253. Where the statute of limitations is relied on in tlie answer, the com- plainant, in order to bring his case within an exception of the statute, must amend his bill, for the new matter cannot be set up in his replication. Piatt «. Vattier, 9 Peters, 405 ; Taylor a. Benham, 5 How, 233. Where the plaintiff finds it necessary, from the answer, to prove new matter, it is necessary for him to amend his bill. But if, notwithstand- ing this, he puts in a special replication which may serve the purpose of a general replication, the new and special matter may be rejected as sur- plusage, and the replication stand as a general one. Duponti ». Mussy, 4 Wash. C. 0. 138. An objection that an amended answer was not filed by leave of the court cannot be first made in the Supreme Court. If objection is not made in the court below, it is waived. Clements «. Moore, 6 Wall. 299. EuLE XLVI. In every case where an amendment shall be made after to case of amendment, answer filed, the defendent shall put in a "ment'ai answeTb; ^ew or Supplemental answer on or before th^ next rule-day ; default, jjg.vt succeeding rule-day after that on which the amendment or bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court ; and upon his de- fault, the like proceedings may be had as in cases of an omis- eion to put in an answer. See Sqnity Bules 18, 19, 38, 39, 30. I FromnJgated March 3, 1842, 1 How Ir. EuLE XLVII. In all cases where it shall appear to the court that persons, Tm, „ .• . ^.^ h. who might otherwise be deemed necessary When parties may be o •' omitted. Qj. proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion pro- ceed in the cause without making euch persons parties ; and ROLES OF PRACTICE IN EQUITY. 103 in such cases the decree shall be without prejudice to the rights of the absent parties. See Equity Kale 23. Promulgated March 2, 1812, 1 How. Iv. Statutory Provisions. Bev. Slats, see. 787.] Where Ihere are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within tlie district within which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties that are prop- erly before it; but the judgment or decree rendered therein shall not con- clude or prejudice other parties not regularly served with process nor voluntarily appearing to answer ; and non- joinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not con- stitute matter of abatement or objection to the suit. Act Mar. 3, 1875, ch. 137, sec. 8, 18 Stat. L. 470.] When in any suit commenced in any circuit court of the United States,' to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the dis- trict where the suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer or demur, by a day certain to be designated, which order shall bo served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or when such personal service is not prac- ticable, such order shall be published, in such manner as the court may direct, not less than once a week for six consecutive weeks; and in case such absent defendant shall not appear, plead, answer or demur wisiiin the time so limited, or within sucu further time, to be allowed by the court in its discretion, and upon proof of the service or publication of such order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and pro- ceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said dis- trict ; but such adjudication shall as regards such absent defendant or de- fendants without appearance, affect only the property which shall have been subject to the suit and under the jurisdiction of the court thei-ein •within such district. And when a part of said property shall be within another district of the same State, the suit maybe brought within either district. Provided, however, that a defendant or defendants, not actually personally notitied, may, upon entering his appearance within one year from judgment, obtain an order setting aside the judgment, and permit, ting him to defend, on payment of costs. (Compare Rev. Stats, sec. 738 and see decisions under Equity Rule 13.) 104 KULES OF PRACTICE IN EQUITY. Decisions. If a joint interest is vested in the defendants in a suit in equity, ■with absent parties, the court has no iurisdiction ; if the interest is sejjarable the jurisdiction attaches. Tobin v. Walkinshaw, 1 McAU. 26. The act of February 28, 1839 (Rev. Stats, sec. 737, supra) does not allow the courts to dispense with parties really essential to the merits of the con- troversy. Shields v. Barrow, 17 How. 130 ; Greene v. Sisson, 2 Ouri. C. 0. 171 ; Winter v. Ludlow, 8 Phila. 464 ; Tobin v. Walkinshaw, 1 McAU. 26. The act has wrought no change in the jurisdiction of the circuit courts as respects the character of parties ; it only obviates difHcultiea arising from inability to join or serve those not liable to be sued, or not •within reach of process. The Commercial and Railroad Bank of Vicks- burg v. Slocomb, 14 Peters, 60. A corporation may be sued in the State of its domicil, although some of its stockholders are not citizens of such State. Louisville, C. & C. R. R. Co. B. Letson, 2 How. 497 ; Rundle v. Del. & Raritan Canal Co., 14 How. 95. Where no relief can be given without faking an account between an absent parly and one before the court, though the defect of parties may not defeat the jurisdiction, strictly speaking, yet the court will not make a decree in favor of the complainant. Hagan v. Walker, 14 Bow. 29. Where It is the object of the bill to procure a sale of land and subject the proceeds to the payment of the complainant's debt, a prior incum- brancer is a necessary party : but when the existence of the prior incu m brance is admitted, and the complainant seeks only a sale, subject thereto, the court may, and, in case where his joinder would defeat the jurisdiction, will, decree such sale in the absence of tlie prior incum- brancer. 2b. When proper parties are not within the jurisdiction, and. a deci-ee may be m,ade without affecting their interests, the plaintiff is excused from joining them. Union Bank of Louisiana v. Stafford, 12 How. 337. The act of Februsu'y 28, 1839 (Rev. Stats, sec. 737, supra) does not enable a court of the United States to proceed in equity, in the absence of a party whose interests must necessarily be affected by the decree. Northern Indiana R. R. Co. v. Mich. Cent. R. R. Co., 15 How. 233. Neither the act of February 28, 1889 (Rev. Stats, sec. 737, .inpra) nor the 47th equity rule, enables the court to make a decree in the absence of an indispensible party, whose rights must necessarily be affected by such decree. Shields ». Barrow, 17 How. 130. The above act relates solely to the non-joinder of persons who are not within the reach of the process of the court. It does not affect any case where persons, having an interest, are joined because their citizenship is such that their joinder would defeat the jurisdiction, and, so far as it touches suits in equity, we understand it to be no more than a legislative aflSrmance of the rule previously established in Cameron v. McRoberts, 3 Wheaion, 591, Osborn v. Bank U. S., 9 Wheaion, 738, and Harding d. Handy, 11 Wfieato7i, 133. lb. ^ RULES OF PRACTICE IN EQUITT. 105 While the above act removed all difficulty as to jurisdiction between competent parties regularly served with process, it does not displace that principle of jurisprudence that no court can adjudicate directly upon a person's right, without the party being actually or constructively before the court, lb. The 47th equity rule is only a declaration of the effect of the above act of Congress and the previous decisions of this court on the same subject ; and it remains true, notwithstanding the act and the rule that a circuit court can make no decree affecting the rights of an absent party, and can make no decree between the parties before it, which so far involves or depends upon the rights of an absent person, that com- plete and final justice cannot be done. lb. Neither the act of Congress nor the 47th rule in equity enables a cir- cuit court to make a decree in a suit in the absence of a party whose rights must necessarily be affected by such decree, and the objection may be taken at any time upon the hearing, or in the appellate court. Coiron v. Millandon, 19 How. 113. The act of 1839 (Rev. Stats, sec. 737, supra) was intended so to modifj- the jurisdiction of the circuit court as to make it more practical ana effective. Where one or more defendants sued are citizens of the State and jointly bound with citizens of other States who do not voluntarily appear, the plaintiff has a right to persecute his suit against those served ■with process, but the judgment of decree does not prejudice other paties not served, and whodo not appear. Clearwater ». Meredith, 21 How. 489. Part owners or tenants In common in real estate of which partition is sought, have such an interest, inseparable from each other, that if they all cannot be subjected to the jurisdiction of the court, the suit cannot be maintained. Barney ». Baltimore City, 6 WaU. 280. In a suit brought to enforce a lien on lands situated within the district where the suit is brought, the court may acquire jurisdiction over a citizen of another State provided he be served in the state whore the suit is pending. Ober ». Gallagher, 93 U. 8. 199. In a suit by heirs at law to set aside a conveyance obtained from their ancestor by fraud and imposition, a final decree cannot be taade without the presence of all the heirs as parties, if they are within the jurisdiction ; but if some of them are not within the jurisdiction, and cannot be brought before the court, the court may make a decree saving the rights of the absent heirs. Harding v. Handy, 11 Wlieaion, 103. A new party made necessary by reason of some act occurring after the commencement of the suit, must be brought before the court by an original bill in the nature of a supplemental bill, inasmuch as the action is deemed original as to the new party. Winter v. Ludlow, 3 PJiila. 464 ; 8. C, 16 Leg. Int. 333. But if the liability or rights of a new party do not arise after the com- mencement of the suit, they may be brought in by amendment. Dwight t. Humphreys, 3 McLean, 104 ; Shields v. Barrow, 17 How. 130 ; Btory'a Eq. Plead. 541 ; Douglas v. Butler, 6 Fed. B. 338. If the bill contains no allegations against defendants whose names 106 RULES OF PRACTICE IN" EQUITY. have been inserted by way of amendment, the bill must be dismissed as to them. Andrews v. Solomon, 1 Peters C. G. 356. The general rule as to parties in cliancery is that all ought to be made parties who are interested in the controversy. But there are qualifications of this rule arising out of public policy and the necessities of particular cases. The true distinction appears to be as follows : 1 When a person will be directly affected by a decree, he is an indispensible party, unless the parties are too numerous to be brought before the court, when the case is subject to a special rule. (See Equity Rule 48.) 3. When a per- son is interested in the controversy, but will not be directly affected by a decree made in his absence, he is not an indispensible party, but should be made a party if possible, and the court will not proceed to a decree with- out him it he can be reached. 3. Where he is not interested in the con- troversy between the immediate litigants, but has an interest in the sub- ject matter which may be conveniently settled in the suit, and thereby prevent further litigation, he may be a party or not, at the option of the complainant. Williams «. Bankhead, 19 Wall. 563. See Shields «. Bar- row, 17 How. 130 ; Robertson s. Carson, 19 Wall. 94. In a bill in equity by one distributee of an intestate's estate against au administrator, it is not indispensible that the other distributees be joined as parties, if the court is able to proceed to a decree and do justice to the parties before it, without injury to absent parties equally interested. Payne ■». Hook, 7 ji\asK. 425. Parties beyond the jurisdiction may be dispensed with if they are merely formal ; and although deemed necessary, if within the jurisdic- tion, yet if they cannot be reached with process, the suit will be main- tained if a decree can be made without necessarily involving their rights. Abbotts. Ameii can Hard Rubber Co., 4 Blatch. 489; Bunce «. Galla- gher, 5 Blatch. 481 ; Carson i>. Robertson, 2 Am. L. J. 113 ; Gray «. Lar- rimore, 3 Abh. XI. S. 543. But the court will not proceed in the absence of a party whose interests will be affected by the decree. Florence S. M. Co. v. Singer Mfg. Co., 8 Blatch. 113 ; Gray v. Larrimore, 2 Abk U. S. 543 ; Bank ii. CarroUton R. R., 11 WaU. 624. Whenever the making of a person a party would oust the jurisdiction, he may be dispensed with, if a decree can be made without his presence. The Cole Silver Mining Co. v. Virginia & Gold Hill Water Co. , 1 Saw. 470. A party interested may, on his motion or petition, J)e made a party by amendment of the bill. Scott v. Mansfield, C. & L. M. R. R. Co., 5 Am. L. Bee. 436. But a complainant cannot be compelled to add new parties to his suit, if he chooses to assume the responsibility of their not being made parties. Searles v. Jacksonville, P. & M. R. R. Co., 3 Woods, 621. Persons against whom no relief is prayed, and whoso interest cannot be injuriously affected by the suit, need not be joined as parlies. Van Bokkelen ■». Cook, 5 Saw. 587. Where infants have a contingent interest in a policy of insurance, ETJLES OF PEACTICE IN EQUITY. 107 they are necessary parties to a bill to set aside tlie policy. Equitable Life Ins. Co. v. Patterson, 1 l^ed. B. 136. If a party whose presence before the court is necessary cannot be sub- jected to its jurisdiction, the suit canuot be maintained. First Nat. Bk. of Hannibal v. ■Smith, 6 Fed. B. 215 ; Dormitzer v. Illiaois & St. L. Bridge Co., Id. 217. A corporation is a necessary party to a suit for collecting moneys due for unpaid assessments of its stock, or for capital once paid in but afterwards improperly divided. lb. A corporation is a necessary party defendant in a suit to enforce a judgment' against it by compelling contribution from its stockholders. "Walsh V. Memphis, C. & N. R. R. Co., 14 Fed. R. 797. All parties interested in or entitled to litigate the same question are necessary parties and must be joined if they can be brought before the court. Taylor v. Holmes, 14 Fed. B. 498. Absent parties are not bound by any decree the court may make without their presence in a cau.se in which they are interested. Coann V. Atlanta Cotton Factory, 14 Fed. B. 4. In a suit by one partner to set aside partnership transactions all the Other partners are necessary parties. Bell «. Donohue, 17 Fed. B. 710. Rule XLVIII. Where the parties on either side are very numerous, and cannot, without manifest inconvenience and -v^iicn parties very nn- oppressive delays in the suit, be all brought ™^™"^- before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having suf- ficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But,, in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties. PromtUgated March 2., 1843, 1 How. Ivi. Decisions. Where the parties are very numerous or not all known, and the rigorous application of the rule requiring all to be joined would impede the purposes of justice, the court may dispense with some, and allow one or more to sue for themselves and for the benefit of the rest. Mande- ville V. Riggs, 3 Peters, 483 ; West «. Randall, 3 Mas. 181 ; Piatt v. Oliver, 3 McLean, 367 ; Smith ». Swornstedt, 16 Sow. 388. The above rule expressly reserves the rights of absent parties, and if they are dispensed with on account of being very numerous, the decree will not prevent such absent parties from afterwards litigating the same question. Coann v. Atlanta Cotton Faptory, 14 Fed. B. 4. 108 EULES OF PEACTICE IN EQUITY. EtJLE XLIX. In all suits concerning real estate which is vested in trus- Trnstees may sue alone, tees hj devise, and such trustees are com- petent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially in- Persons beneficially in- tcrcsted in such personal estate ; and in such terestedmaybeomitted. ^ases 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 con- sideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. Promulgated March 2, 1842, 1 How. Ivi. Decisions. Creditors need not be joined as parties in a suit by an executor against a devisee of lands charged with the payment of debts, for an account of the trust fund. Potter v. Gardner, 12 Wheaton, 498. A devisee of land in another jurisdiction need not be joined in a suit against an executor to obtain an account and payment of a legacy. West V. Smith, 8 How. 403. Although it is a general rule that all persons having distinct interests must be joined as parties, yet where the interest of A. is involved in that of B., and A. has the legal title, so that the other interest may be asserted in his name, it is not necessary to bring both before the court. Ilopkerk V. Page, 2 Brock. 20. In a suit by a distributee of the estate of a decedent to recover a dis- tributive share', the mere fact that the administrator is ordered to account before a master does not make parties all who are entitled to distribution, nor authorize a decree in their favor. If such persons do not appear before the master no decree can be made for or against them, because they would not be bound thereby ; and if they should appear they could not controvert matters outside the accounting. This must be done by proper pleadings and a regular hearing before the court. Hook «. Payne, 14 Wall. 253. Where a suit, brought by a trustee to recover trust-property, or to reduce it to possession, in no wise affects his relations with his cestuis que trust, it is unnecessary to make them parties. Carey v. Brown, 92 V. S. 171. KULB L. In suits to execute the trusts of a will, it shall not he Heir at law need not be necessary to make the heir at law a party ; «o elects" '* '' '" ' but the pLiintifE shall be at liberty to make "RULES OF PRACTICE IN EQUITY. 109 the heir at law a party where he desires to haye the will estah- lished against him. Promulgated March 2, 1842, 1 How. Ivi. KULE LI. In all cases in which the plaintiff has a joint and seyeral demand against several persons,, either as joint and several debt- principals or sureties, it shall not be neces- "^^ sary 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 seyerally liable. Promulgated March 2, 1842, 1 How. ItI. Practice. In an action against an administrator, charging fraud in the settle- ment of his accounts and seeliing a payment of the amount due from the administrator to the heirs, his sureties may be joined as defendants with the administrator. Payne v. Hooli, 7 WaU. 425 ; Hook v. Payne, 14 WaU. 353 ; Donohue «. Roberts, 1 Fed. li. 449. EULE LII. "Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the supgeetion of defect of plaintiff shall beat liberty, within fourteen parties by answer. days after answer filed, to set down the cause for argument upon that objection only ; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order book, in the form or to the effect following, (that is to say :) " Set down upon the defendant's objection for want of parties." And where the plaintiff shall omission to set canse ■^ 1 , 1 n 1 down for argument on not SO set down his cause, but shall proceed objection. 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. Promulgated March 2, 1842, 1 How. Ivii. decisions. An objection for want of parties is not a matter in abatement, but goea in bar of the whole bill. If the defect be fatal, it may be relied on by way of plea, or in the answer. Tobin v. Walkinshaw, 1 McAU. 26. no EULES OF PRAOTIOE IN EQUITY. If parties are not properly joined, and the bill should be dismissed for that cause, it should be without prejudice. House fl. Mullen, 33 Wall. 43. Where the bill is dismissed because an absent defendant is an indis- pensible party, it should be without prejudice. Kendig v. Dean, 97 U. a. 433. The above rule makes provision for such a speedy disposition of all suggestions in regard to defective parties that nothing is gained and no necessity exists for a plea. U. S.' «. Gillespie, 6 Fed. B. 803. EULB LIII. If a defendant shall, at the hearing of a cause, object Objection for want of t^"'*' ^ suit IS defective f 01" Want of parties not parties at hearing. having by plea Or answer taken the objection, and therein specified by name or description of parties to whom the objection applies, the court (if it shall think fit) shall be at liberty to make a decree saving the rights of tlie absent parties. Promnlgated March 2, 1843, 1 How. Ivii. , Secisions. The objection of misjoinder of parties should be taken by demurrer if apparent on the face of the bill, and if not apparent from the bill, then by plea or in the answer. It is too late to urge a formal objection of that kind, the first time, on the hearing of the cause. Story «. Liv- ingston, 18 Peters, 859, 875. An objection for want of parties must be taken by plea or answer, and the name or description of the parties who should be brought before the court must be specified. Segee ». Thomas, 3 Blateh. 11. The objection that parties whose rights would necessarily be affected by the decree have been omitted may be taken at any time, at the hear- ing, or in the appellate court. Corron v. Millandon, 19 How. 130. An objection that some of the plaintiffs have no interest in the suit cannot be first made at the hearing. Bowman v. Wathen, 3 McLean, 376 ; affirmed, 1 Sow. 189. If a person not a party may be affected by the decree, and this ap- pears at the final hearing, the court, instead of dismissing the bill, will usually retain the cause in order that he may be made a party. Winter r>. Ludlow, 3 Phila. 464 ; S. C, 16 Leg. Int. 333. Inasmuch as the cause may be ordered to stand over in order that new parties may be made, a want of parties is not necessarily fatal even at the hearing. But this is not a matter of course and is rarely done, un- less where, as to the new parties, the cause may stand upon the bill and answer of those who have already appeared. West®. Randall, 3 Mas. 181. If the cause have merits, and no decree can properly be made for want of a necessary party, the Supreme Court will remand it in order to have such party brought in. Lewis v. Darling, 16 How. 1. EULES OF PEACTICB IK EQTTITT. Ill The court is not bound to take notice of an interest acquired in the subject matter of the suit pending litigation ; but it is common to permit one becoming interested in the questions involved in the suit during its pendency, to come in and protect his interest, if application is made with- in a reasonable time. Mechanics' Bank of Alexandria v. Seton, 1 Peters, 299, 310 ; The Jenny Lind, 3 Blatch. 513. Where a misjoinder of parties is apparent on the face of the bill, an objection should be made by demurrer or answer, or it will be deemed to be waived. Bunco v. Gallagher, 5 BlatcJi. 481. A demurrer is proper to reach a defect arising from the fact that a party is joined as plaintiflE who has no interest in the subject matter of the suit. Hodge v. North Mo. K. R. Co., 1 Billon, 104! The want of pi'oper parties is not a sufficient ground for dismissing the bill. The suit should stand over that new parties may be made. Mil- ligan V. Milledge, 3 Cranch, 230. Where want of parties is not relied on in the answer, it cannot avail at the hearing unless the case is one in which the court cannot proceed to a decree between the parties before it, without prejudice to the absent parties. Wallace's Sons «. Holmes, 5 Fish. Pat. Cas. 15 ; S. C, 9 Blatch. 65. An objection that new parties have been introduced into the cause without order of the court cannot be first made in the Supreme Court. Myers v. Fenner, 5 WaU. 205. Where the want of parties does not appear on the face of the bill, the objection must be made by plea or in the answer, and cannot be made for the first time in the Supreme Court. Carey v. Brown, 92 IT. 8. 171. An objection that the dcfeniiants to an amended bill were all neces- sary parties to a supplemental bill filed in the same cause, cannot be first made in the Supreme Court. McBurney «. Carson, 99 U. S. 567. The objection of the want of parties may be taken at any time in the progress of the cause, and even in the appellate court ; but the objec- tion wiU be disregarded if it appears that the parties are not necessary, or if, although convenient, and under some circumstances necessary, they cannot be made without ousting the jurisdiction of the court. Carson v. Robertson, 1 Chase Bea'ns, 475. If there is a party on the record over whom the court has not juris- diction, and who is not necessary to the proceedings, the bill will be dis- missed as to that party, and retained as to the others. Vose v. Reed, 1 Woods, 647. The court will not make a decree the execution of which would affect the rights of a party not before it, or throw a cloud upon his title. If such absent party is necessary to a decree, the bill will be dismissed withorft prejudice. Young «. Cushing, 4 Biss. 456. Courts of equity are always unwilling to turn a complainant out of court on an objection for want of proper parties made at the final hear- ing. If a new party is deemed necessary to be made, leave will general- ly be granted that the cause stand over for that purpose. The Town- send Savings Bank of New Haven v. Epping, 8 Woods, 390. 112 EULES OF PEACTICE IN EQUITY. An obiection for want of parties ought not to prevail at the hearing on appeal, except when the party is indispensibly necessary. Mechanics- Bank of Alexandria v. Seton, 1 Peters, 399. Where after a cause had been set for hearing the defendant was in- fonned that the jjlaic iff was a nominal one, and that the real plaintifl was a citizen of the same State with the defendant, and he immediately filed a cross-bill charging that fact, and asking a discovery, it vras held that the original suit ought not to be heard until the cross-bill was an- swered. Young V. Pott, 4 WasJi. C. 0. 531. EULB LIV. Where no account, payment, conveyance, or other direct nominal parties need relief is sought against a party to a suit, not appear unless re- , i ■ ■ r , n , quired. not being an iniant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill ; but he may appear and answer at his op- tion ; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plantiff 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. Promulgated March 2, 1S42, 1 How. ivii. decisions. The court will not suffer its jurisdiction to be ousted by the mere joinder or non-joinder of formal parties, but will rather proceed without them and decide upon the merits of the case between the parties who have the real interests before it, wherever it can be done without pre- judice to the rights of others. Wormley ». Wormley, 8 W?teat. 421. There is a distinction between active and passive parties, the former being such as are so involved in the subject in dispute that no decree can be made without their presence, while the latter are such that complete relief can be given to those who seek it, without affecting their interests. Joy 1). Wirts, 1 Wash. G. G. 517. No one need be made a party against whom, if brought in, the plaint, iff could have no decree. Van Reimsdyke v. Lane, 1 Gall. 371, 630 ; S. C, 9 Granch, 153. Where, although, one is clearly interested in the subject-matter of the suit, nothing is asked of him by the bill, and his rights are not put in issue, and nothing can be required of him by the decree, it is not neces- sary to make him a party. Society for the propagation of the Gospel V. Town of Hartland, 3 Paine, 536. RULES OF PRACTICE IN EQUITY. 113 KULE LV. "Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not injunction when asked „, . 1 • J 1 T 1 granted of course on enter his appearance, and plead, demur, or default, answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled as of course, upon motion, without notice, to such injunction. But special in- junctions shall be grantable only upon due B„t Bpeci.. Parker, 1 Woodb. & M. 280 ; Lawrence v. Bow- man, 1 McAH. 419. On an application for an injunction, affidavits may be heard in behalf of both parties. Wilson ». Stolley, 4 McLean, 372. The plaintiff must rest on the case stated in the bill, where a motion for an injunction is made, but affidavits may be used to show more par- ticularly the matter which the bill alleges, and reference may be made to collateral matters which tend to explain, support or strengthen it ; and the plaintiff may in the sanae way contradict the statements of the de- fendant's affidavits. Cooper v. Matthews, 6 Law Sep. A13 ; Brooks v. Bicknell, 3 MaLeaii, 250. In patent cases a preliminary injunction will be refused if the com- ETJLES OF PRACTICE IN EQUITY. 115 ptainant's title is denied, unless long possession and previous recoveries be shown. Perry v. Parker, 1 Woodb. & M. 280. Mere apprehension of a threatened wrong is not enough to warrant the granting of a preliminary injunction, but the danger or impending loss must be shown. Jenny ®. Grace, 1 Craneh C. O. 443 ; Blackburn v. Stannard, 5 Law Rep. 350. The complainant is not entitled as a matter of right to file further affidavits in answer to those of the defendant, except in case of surprise. Day V. Boston Belting Co., 6 Law Bep. JT. 8. 339. The principles governing the courts in granting or refusing a pre- liminary injunction considered in the following cases : Little v. Gould, 2 Blateh. le.'i, 184 ; Sanders v. Logan, 3 Pittab. 241 ; Am. Nicholson^ Pavement Co. v. City of Elizabeth, 4 Fish. Pat. Cos. 189 ; Fattier v. Whitney, 1 Low. 87 ; Middlings Purifier Co. v. Christian, 4 Dill. 448 ; Andrews v. Spear, Jd. 473. On an application for a provisional injunction to restrain the infringe- ment of letters patent, the court, or a judge out, of court in the second circuit, has power to permit the complainant on such motion, when the defendant sets up a license in his defense, to put in proofs in rebuttal of the proofs offered by the defendant, but the defendant cannot replj' to such rebutting proofs by further proofs on his part. Day «. New Eng- land Car Spring Co., 3 Blateh. 154. A mere denial of the equitj' of the bill by the answer, will not pre- vent the court from looking into the law and facts of the case, on a motion for a special injunction, and granting or refusing it, according to its discretion. Clum ». Brewer, 2 Ourt. C. C. 506. An answer although filed before its time will be treated as an answer, and not merely as an affidavit, on a motion for a preliminary injunction. Brooks ». Bickwell, 3 McLean, 350. Matter of avoidance in an answer responsive to the bill on a motion for an injunction, will be deemed as the aflidavit or sworn statement of the defendant. Tobin v. Walkinshaw, 1 McAU. 36. On a motion for an injunction, the defendant may be permitted to show that the bill on its face is materially defective. Wilson «. Stolley, 4 McLean, 272. The granting or dissolving of an injunction rests in the sound dis- cretion of the court, and on the justice and equity of each particular case. Tucker v. Carpenter, 1 Hempst. 440 ; Nelson a. Robinson, lb. 464. After the dissolution of an injunction, if the testimony developes a case for reinstating it, it will be accordingly restored. Tucker ». Car- penter, 1 Hempst. 440. The form of the injunction bond should be to answer all damages which the defendant may sustain in consequence of the granting of the injunction. Bein v. Heath, 13 How. 168. An injunction allowed in the circuit court by a district judge expires at the commencement of the term next succeeding its allowance. Gray V. Chicago, &c. R. R. Co., 1 Woolw. 63. 116 EULES OF PRACTICE IS EQTTITr. The judges of the Supreme Court have power to grant injunctions in vacation which do not expire with the vacation, lb. Where the answer to the bill praying an injunction denies all the material allegations of the bill, a preliminary injunction will be refused. Shoemaker v. National Mechanics' Bank, 1 Hughes, 101. Under the statute (Rev. Stat. sec. 719, supra) prohibiting a Supreme Court justice from granting injunctions except within the circuit to which he is allotted, save in the case where the application cannot be heard by the circuit or district judge, &c., the absence of the circuit or district judge is equivalent to inability, and in such case the Supreme Court justice may hear an application for an injunction wherever he may be. Searles ®. Jacksonville, P. & M. R. R. Co., 3 Woods, 621. A court of the United States cannot enjoin proceedings in a State court. Diggs 11. Wolcott, 4 Oranch, 179 ; Peck v. Jenness, 7 Eow. 613. Except in cases provided by the bankrupt law, the courts of the United States are prohibited from enjoining proceedings in a State court. Haines «. Carpenter, 91 TI. 8. 254. But a suit to enjoin the execution of a judgment of a State court, originally brought in the State court and afterwards removed into the United States circuit court on the petition of one of the parties, may be maintained after such removal, and the injunction previously ob- tained may be continued or dissolved in the discretion of a federal court. Rev. Stats, sec. 730 (supra) does not apply to such cases. Watson V. Bordurant, 3 Woods, 166 ; Smith v. Schwed, 6 Fed. B. 455. An injunction will not be granted nor a receiver appointed pending a plea to the jurisdiction of the court ; but to guard against dilatory pleas and irreparable mischief thereby, an immediate trial of the plea will be ordered. Ewing v. Blight, 3 WaU. Jr. 139. An injunction obtained in the State court previously to the removal of the cause into the United States circuit court, will not be dissolved after removal on the ground that the bill was insuflSciently verified. Smith V. Schwed, 6 Fed. B. 455. Where an injunction is asked for on the ground of fraud, the facts constituting the fraud must be clearly and positively averred on the knowledge of the complainant, or some other person cognizant of them of his own knowledge. Allegations on information and belief are not sufficient. Brooks v. O'Hara, 8 Fed. B. 529. Disobedience to an injunction is a contempt of court ; and it is none the less a contempt that the defendant was advised and believed that he did not so disobey. Atlantic Giant Powder Co. v. Dittmar Powder Mfg. Co., 9 Fed. B. 316. In order to bind persons by injunction they should be served with notice of the injunction. In re Gary, 10 Fed. B. 622. An injunction will be issued in a proper case, although the defendant offers to give bond and security to pay damages. Mc Williams Mfg. Co. V. Blundell, 11 Fed. B. 419. In doubtful cases an injunction will not be granted prior to the final KULES OF PBACTICE IN EQUITY. 117 hearing. Illingworth ». Spaulding, 9 Fed. R. 154 ; Cross «. Livermore, Id. 607 ; Marks v. Corn, 11 Fed. B. 900. A motion to dissolve a temporary restraining order obtained ex^arfe may be made before answer. Metropolitan G. & S. Exchange v. Oliicago Board of Trade, 15 Fed. B. 847. Section 730, Rev. Stat, {supra) prohibiting the granting by a federal court of an injunction to restrain pi-oceedings in a State court, applies only to cases pending or commenced before the jurisdiction of the federal court attached. So that an injunction may properly issue restraining parties from bringing a suit in a State court. Live Stoclc Association v. Orescent City Co., 1 Aii. U. S. 388 ; Fisli v. Union Pacific R. R. Co., 10 Blatch. 518 ; The State Lottery Co. v. Pitzpatrick, 3 Woods, 323. On the dissolution of an injunction the court may in its discretion assess the damages, or remit the party aggrieved to his remedy at law. Russell «. Parley, 105 U. S. 433 ; Lea d. Deakin, 13 Fed. B. 514. EULE LVI. Whenever a suit in equity shall become abated by the death of either party, or by any other event, when suit in eqnity ,, - . -, i 1 'n fl • abates, bill of revivor the same may be revived by a bill of revivor, may be flied. 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 suggestion of the facts, the proper process of subpcena shall, as of course, be issued by the clerk requiring the proper representatives of the other party to ap- pear 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. See Sup. Ct. Eule 15, and decisions thereunder, and Equity Eules 11, 12, 13, 14, 15, 16, 47. Promulgated March 2, 1842, 1 Hovf. Iviii. Statutory. Provisions* Bev. Stats, sec. 955.] When either of the parties, whether plaintiff, petitioner or defendant, dies before final judgment, the executor or ad- ministrator may, if the suit survives, prosecute or defend to final judg- ment. The defendant shall answer, and the cause will be heard and detei-mined, and judgment rendered for or against the executor or admin- istrator. If the executor or administrator neglects or refuses tro become a party twenty days after being served with a scire facias, the court may nevertheless render judgment against the deceased party. The executor or administrator on becoming a party is entitled to a continuance until the next term. 118 KTJLES OF PEACTICE IN EQUITY. JRev. Stats, sec. 956.] Where one of several plaintiffs or defendants dies, in an action which survives to or against the other, the vfrit or action shall not abate ; but, upon suggestion on the record, the action shall proceed in favor of or against the surviving party. Decisions. The statute construed. Hatch ®. Eustes, 1 Gall. 160 ; Mackie v. Thomas, 7 Wheaton, 530 ; Green v. Watkins, 6 Id. 260 ; Clarke v. Mat- hewson, 12 Peters, 164 ; Griswold «. Hill, 1 Paine C. C. 483 ; McCoul ©. Lecamp, 2 Wheaton, 111 ; Eichards v. Maryland Ins. Co. 8 Oranch, 84 ; Pltzpatrick ■». Domingo, 14 Fed. B. 126. See also Thomas v. Police Jury, 14 Fed. B. 390, and note at end of case. The death of a party does not abate a suit in equity. Fisher ». Ru- therford, 1 Baldw. 188. An abatement is merely an interruption of a suit in equity until now parties are made. Hoxie v. Carr, 1 &iimner, 173. A bill of revivor is not the commencement of a new suit, but a con- tinuance of the old one. Clarke v, Mathewson, 12 Peters, 164. The sole questions before the court on a bill of revivor are the compe- tiency of the parties, and the correctness of the frame of the bill to revive. General objections to the original bill will be reserved. Bettes v. Dana, 2 Sumner, 383 ; Oliver ». Decatur, 4 Cranch O. 0. 592. A bill of discovery cannot be revived, if the complainant dies after answer. Horsburg v. Baker, 1 Peters, 232. All the testimony which might have been used if no abatement had happened, may be used after the legal representatives of the original party are brought in. Vattier v. Hinde, 7 Peters, 252. The right to a continuance to the next term is given only to the rep- resentative of the deceased party. Griswold «. Hill, 1 Paine G. G. 483 ; Wilson v. Codman, 3 Cranch, 103. If a party die after a cause has been removed from a State court, the proper parties to be brought in must be determined by the practice of the federal court. Suydam v. Ewing, 2 Blatdh. 359. On the death of a party, the suit will not be revived under the ahove rule, unless an order is made to that effect, and in case of failure to pro- cure such order a demurrer will be sustained. Atterbury ». Gill, 13 Off, Gaz. Pat. 276. New matter cannot be incorporated into a bill of revivor. Mason v. Hartford, C. & F. R. R. Co., 10 Fed. B. 384. The revivor of a suit in equity by or against the representative of a deceased party is a matter of right. Fitzpatrick v. Domingo, 14 Fed. B. 216. EULE LVII. "Whenever any suit in equity shall become defective from ' Supplemental biu, when any event happening after the filing of the ^^^°^^- hill, (as, for example, hy change of interest RULES OF PRACTICE IN EQUITY. 119 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 parby. And if leave is granted to file such supplemental bill, the Defendant to demur, ,»,.,,,. -. plead or answer by next aeiendant shall demur, plead, or answer mie-day. thereto, on the next succeeding rule-day after the supple- mental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court. Promnlgated March 2, 1843, 1 How. lix. Decisions. It is not necessary that the petition for leave to file a supplemental bill shoald embrace the averments intended to be inserted in the supple- mental bill, but only that it should advise the opposite party and the court of the ground on which the relief is applied for. Parkhurst v. Kinsman, 1 Blaich. 73. I All that the court inquires into on an application for leave to file a supplemental bill is whether probable cause exists for granting the leave, and whether the petition states facts and circumstances which, if prop- erly pleaded, would sustain a supplemental bill. iS. A supplemental bill may be filed at any stage of the cause, even after decree. lb. The court will deny a motion for leave to file a supplemental bill ■which seeks to make a change in the essential character and objects of the suit. Snead v McCoul, 13 How. 407. New oral testimony, tending merely to corroborate evidence on the one side or contradict evidence on the other, on points already in issue, is not sufficient foundation for a supplemental bill. Jenkins i). Eldridge, 3 Story C. C. 399. Ko new evidence is a sufficient foundation for a supplemental bill, unless it be of such a nature as would, if unanswered, require a reversal of the decree, lb. Leave to file a supplemental bill is never granted after an interlocutory decree, where the party might, by due diligence, have introduced the new matter in the original cause, lb.; Mosgrove v. Kountze, 14 Fed. B. 815. New parties made necessary by an event happening after the filing of tha original bill, may be brought before the court by supplemental bill. Chester v. Life Association of America, 4 Fed. R. 487. A bill of revivor cannot be amended by the insertion of new matter happening since it was filed. Mason v. Hartford, P. & P. R. R. Co., 10 Fed. B. 334. A supplemental bill will not be allowed merely because the complain- 120 EULES OF PRACTICE IN EQUITY. ant does not wish to continue some of the parties. Mosgrove « Kountze, 14 Fed,. R. 315. Upon filing a supplemental bill, a subpoena is not required unless new parties are made. A rule to answer the supplemental bill directed to the parties already served is sufficient. Shaw v. Bill, 95 IT. S. 10. EULE LVIII. It shall not be necessary in any bill of revivor or supple- mental bill to set forth any of the state- statements in original ... suit need not be set ments m the original suit, unless the special fortii circumstances of the case may require it. Promnlgated March 2, 1842, 1 How. lix. EuLE LIX. Every defendant may swear to his answer before any jus- tice or judge of any court of the United g.f^^ ^^om answer 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 be- fore any judge of any court of a State or Territory. See Equity Kules 39, 91. Promulgated March 2, 1843, 1 How. lix. Statutory Provisions. Sev. Stats, sec. 725.] The courts of the United States shall have power to administer all necessary oaths. Act August 15, 1876, chap. 304, 19 Stat. L. 206.] Notaries public are authorized to take acknowledgments, afSdavits, etc., to be used in the United States courts, with same effect as commissioners of the circuit courts. Decisions. An answer or other pleading cannot be ti-eated as a nullity because not properly verified. The practice is to apply for an order setting it aside for irregularity. Ewing v. Blight, 3 Phila. 576 ; S. C, 12 Leg. Int. 335. I If the verification does not show the authority of the officer before whom taken, it is irregular. Addison v. Duckett, 1 Cranch G. 0. 349. The signature of counsel must be attached to an answer. Davis », Davidson, 4 McLean, 136. Ettlb LX. After an answer is put in, it may be amended, as of course, ETJLES OF PRACTICE IN EQUITY. 121 in any matter of form, or by filling up a ^o^^'.rbef^e'iepiica- 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 answer. But after replication, or such setting down for a hearing, it shall not After replication. 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 sepa- rately engrossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom. Promulgated March a, 1843, 1 How. lix. Statutory Provisions. JElev. Stats, sec. 754.] The courts of the United States may at any- time permit leither of the parties to amend any defect in the process or pleadings, upon such conditions as they may, in their discretion, or by rules, prescrihe. Decisions. Applications to amend an answer are in the discretion of the court, and are viewed more favorably than applications to substitute a new an- swer. Castor «. Wood, 1 Baldw. 289. If the defendant request leave to amend by alleging new matter in- consistent with the original answer, the court will require very cogent reasons for granting it. Smith ». Babcock, 3 Sumner, 583. An application for an amendment seeking to set up a new defense which, with due diligence, might have been inserted in the answer, must be supported by good cause. The India Eubber Co. v. Phelps, 8 Blaich. 85. An amendment which repeats what was contained in the answer al- ready filed without varying the defense, may be treated as impertinent. Grier «. Gregg, 4 McLean, 203. Leave to amend an answer will be denied, if the new fact sought to be introduced was known to the defendant at the time the answer was filed. Cross «. Morgan, 6 Md. R. 241. If the general replication treats an answer as denying matter alleged in the bill, leave will not bo given to amend the answer unless suflBcient reason be shown. Gardner v. Grossman, 11 Fed. B. 851. Where a defendant has answered generally to a matter, denying par- ticular knowledge, he may, after acquiring particular information, file a supplemental answer introducing the new matter. Castor v. Wood, 1 Ba:idw. 289 ; Suydam t. Truesdale, 6 McLean, 459. 123 RULES OF PRACTICE IN EQUITY. 1 KULB LXI. ■1 After an answer is filed on any rule-day, the plaintiff shall When exception to au- ^^ allowed Until the next succeeding rule- 8wer to be filed. ^j^y ^q gjg j^ ^^g clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court, or a judge thereof ; and, if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. See Equity Eule 39. Promulgated March 2, 1842, 1 How. Ix. Decisions. Pleadings in equity are viewed without regard to form, and excep- tions are never allowed if made under circumstaaces calculated to efEect surprise. Surget v. Byers, 1 Hempst. 715. The complainant may file exceptions to the answer for insufficiency, even after he has excepted for impertinence. Patriotic Bank e. Bank of "Washington, 5 Cnmch O. G. 603. The fact that that the defendant docs not answer an immaterial alle- gation of the bill does not furnish a ground for exception to the answer. Hardeman ■». Harris, 7 How. 736. Exceptions to an answer should state the charges in the bill, and the interrogatory applicable thereto, if any, to which the answer relates, and then the terms of the answer if full, so that the court may at once per- ceive the ground of the exception, and ascertain its sufficiency. Brooks v. Byam, 1 Story, 396. Where one defense is made by answer and another by plea, the latter will be ordered to stand for an answer, and as the plea in such case is treated as part of the answer, it may, with the permission of the court, be excepted to. Lewis «. Baird, 3 McLean, 56. If an amended answer contain the same matter set up in the original answer without varying the defense, it may be excepted to for imperti- nence, and referred to a master. Grier «. Gregg, 4 McLean, 303. The courts give the answer a liberal construction on the hearing of exceptions. Griswold t). Hill, 1 Paine, 390. If the plaintiff is not satisfied with the answer to an interrogatory, it is the special office on an exception, and not of a demurrer, to raise the question whether the answer is sufficient. The Chicago, St. L. & N. O. R. R. Co. V. Macomb, 2 Fed. S. 18. An exception is not the only way to test the sufficiency or regularity of an amended or supplemental answer. If the pleading be irregular or contain improper matter, it may be ordered off the files. AUis v. Sto- well, 5 Fed. R. 203. A substantive defense, not responsive to the plaintiff's inqury in his bin, is not the subject of an exception. That form of objection applies ETJLES OF PRACTICE IN EQUITY. 123 only to an insuflBcient discovery, or to scandal and impertinence. Adams V. Bridgwater Iron Co., 6 Fed. R. 149. There is no regular autliorized method of pleading, like a demurrer, to test the legal validity of part of an answer ; but possibly, on motion, some order might be taken to dispose of part of the case in the first in- stance, if it should be found that great delay and expense might thereby be avoided, lb. EULE LXII. When the same solicitor is employed for two or more de- fendants, and separate answers shall be filed, costa for separate an- , ^ swers not allowed to or other proceedings had, by two or more oi samo solicitor. the defendants separately, costs shall not be allowed for such separate answers, or other proceedings, unless a mastei', upon reference to him, shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. See Equity Eule 39. Promulgated Marcli 3, 1842, 1 How. Ix. EuLE LXIII. Where exceptions shall be filed to the answer for insufiB- ciency, within the period prescribed by these Exceptions to be set rules, if the defendant shall not submit to down for argument. the same and file an amended answer on the next succeeding rule-day, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule-day thereafter, before a judge of the court, and shall enter, as of course, in the order- book, an order for that purpose ; and if he shall not so set down the same for a hearing, the exceptions shall Abandonment. be deemed abandoned, and the answer shall be deemed suffi- cient ; provided, however, that the court, or any judge there- of, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. See Equity Eule 39. Promulgated March 2, 1843, 1 How. Ix. Practice. Exceptions must be set down on a rule-day for hearing before the court. A reference of such exceptions on a day not a rule-day, and to a master instead of a judge of the court, is, unless cured by some subse- quent action by the court, an abandonment of the exceptions. La Vega V. Lapsley, 1 Wood», 438. 124 eules of peactice in equity. Rule LXIV. If, at the hearing, the exceptions shall be allowed, the de- New answer if excep- fendant shall bo bonnd to put in a full and tions allowed; default, complete answev thereto on the next suc- ceeding rule-day ; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such excep- tions 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 defend- ant, when he is in custody upon such writ, shall not be dis- charged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or Judge may direct. See Equity Eule 39. Promulgated March 2, 1843, 1 How. Ixi. EuLE LXV. If, upon argument, the plaintiff's exceptions to the answer Prevaiiiug party entitled shall be Overruled, or the answer shall be '°™^'^- adjudged insufficient, 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. See Equity Eule 39. Promulgated March 2, 1843, 1 How. Ixi. Rule LXVI. Whenever the answer of the defendant shall not be except- General replication to ed to, Or shall be adjudged Or deemed suffi- ce aied by rme-day sue- . 1 1 • -jK n n ?i 1 ceeding answer ; issue, cient, the plaintiff shall file the general 'repli- cation thereto on or before the next succeeding rule-day there- after ; and in all cases where the general replication is filed, the cause shall be deemed, to all intents and purposes, at issue, without any rejoinder or other pleading on either side. If the Dismissal of suit for plaintiff shall omit or refuse to file such re- waut of replication. plication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dis- missal of the suit ; and the suit shall thereupon stand dis- missed, unless the court, or a judge thereof, shall, upon mo- tion, for cause shown, allow a replication to be filed nunc pro EXILES OF PRACTICE IN EQUITY.' 125 tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. See Equity Rule 45. Promulgated March 2. 1848, 1 How. Ixi. i Decisions. If the complainant does not file the general replication, the answer is to be taken as true, and no evidence can be given by the complainant to contradict it. Gallagher ». Roberts, 1 Wash. O. C. 330 ; Peirce v. West, 1 Peters G. C. 351. But where the complainant sets the , cause down for hearing on bill and answer, he may afterwards obtain leave to file a general replication and take testimony. Pierce v. West, 1 Peters C. O. 351. Where the answer is such as to reqnire the complainant to make new allegations, it cannot be done by replication, but must be by amendment of the bill. Vattier v. Hinde, 7 Peters, 253. A replication to a pleading is an admission of its legal sufficiency as a defense, if true. Hughes v. Blake, 6 W7ieaton, 453 ; S. C, 1 Mas. 515. If a statute is pleaded in the answer, and the complainant desires to bring himself within an exception of the statute, he must amend his bill. Otherwise the existence of the exception is not in issue. Piatt v. Vattier, 9 Peters, 405 ; Taylor v. Benham, 5 How. 233 ; Marsteller v. McClean, 7 CrancJi, 156. The practice now is, when the plaintifE finds it necessary, from the answer, to prove new matter, to amend his bill. Duponti v. Mussy, 4 Wash. C. O. 128. If a special replication containing all the essential qualities of a gen- eral replication, be filed, it will, notwithstanding the rule forbidding the filing of special replications, (Equitj' Rule 45,) be treated as a general re- plication, the special matter being rejected as surplusage, lb. After a cause is finally heard on bill and answer, and the bill is dis- missed, leave will not be given to the complainant to file a general repli- cation and take testimony, where no mistake or inadvertence is sug- gested. Bullinger v. Mackey, 14 Blatah. 355. Where a cause is submitted for final decree on pleadings and proofs, and it transpires that no replication was filed, but the evidence was taken as if it had been filed, the court will still try the case on its merits, and will allow a replication to be filed at once. Jones v. Brittan, 1 Woods, 667. If the replication is not filed in time, an order may be entered, of course, in the clerk's office, without application to or action by the judge, dismissing the bill for such want of replication. Robinson ii. Satterlee, 3 Saw. 134. The dismissal of a bill for the want of a replication is final unless set aside by the court on application duly made within the proper time, and pursuant to the rule. lb. A motion to set aside 'the dismissal of a bill for neglect to file the 126 EULES OF PKACTICE IN EQUITY. ' ■T general replication, made nearly five years after the entry of tho oixler of dismissal, without excusing the delay, will be denied. lb. The complainant must reply to the separate answer of each defend- ant, without reference to the state of the cause or of the pleadings with regard to any other defendant. Coleman v. Martin, 6 Blatch. 391. The replication must be a general one, as Equity Rule 45 abolishes special replications, lb. It is an irregularity to go to a hearing without a replication to the answer. Washington R R. v. Bradleys, 10 WaU. 399. A general replication denies every allegation in the answer not re- sponsive to the bill. The defendant must, therefore, prove such allega- tions. Humes «. Scruggs, 94 U. 8. 23. When an equity cause was heard upon bill, answer and proofs, the want of a formal replication cannot, on appeal, be assigned for error. Nat. Bank ». Ins. Co., 104 U. 8. 54. A cause will not be dismissed for want of a replication to an amended answer, where a motion is pending to strike such answer from the files. Allis V. Stowell, 5 Fed. B. 203. Although a replication is filed without leave, after the expiration of the time for filing, it may still, in the discretion of the court, be ordered to stand. Fishcher v. Hayes, 6 Fed. R. 76 ; S. C, 19 Blatch. 36. The purpose of a general replication is to put in issue new matter set up in the answer ; but a complainant does not thereby deprive himself of the benefit of admissions in the answer. Cavender d. Cavender, 8 Fed. B. 641. A special replication setting up new matter, will, on motion, be or- dered stricken out. Mason v. Hartford, Prov. & F. R. R. Co., Id Fed. R. 334 Rule LXVII. (1.) After the cause is at issue, commissions to take testi- wheti commissions to ^^^1 ^^j be taken out in vacation as well takln^'outTTnSgt ^s in term, jointly by both parties, or sever- tories ; notice. ^j |jy either party, upon interrogatories, filed by the party taking out the same in the clerk's office, ten days' notice thereof being given to the adverse jDarty to file cross-interrogatories before the issuing of the commission ; and if no cross-interrogatories are filed at the expiration of the time, Commissioners, the Commission may issue ex parte. In all cases, the commissioner or commissioners shall be named by the court, or by a judge thereof.* * Ordered, Tliat the sixty-seventli rule governing equity practice he so amended as to allow the presiding judge of any court exercising jurisdiction, either in term time or in vacation, to vest in the clerk of said court general power to name commissioners to take testimony in like manner that the court or judge thereof can now do by the said sixty- seventh rule. (December Term, 1854, 17 How. vii.) I RULES OF PRACTICE IN EQUITY. 127 ' (2.) Either party may give notice to the other that he de- sires the evidence to be adduced in the cause Evidence may be taken to be taken orally, and thereupon all the party, witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court, the examiner to be furnished with a copy of the bill and answer, if any ; and such examination shall take place in the presence of the parties, ^„^ examination to ba or their agents, by their counsel or solicitors, conducted. and the witnesses shall be subject to cross-examination and re- examination, and which shall be conducted as near as may be in the mode now used in common-law courts. The depositions taken upon such oral examinations shall be Depositions to be tairen ,, , . .,.,,, . . down in writing by ex- taken down in writing by the examiner in aminer ; form, etc. the form of narrative, unless he determines the examination shall be by question and answer in special instances ; and, when completed, shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend ; provided, if the witness shall refuse to sign the said deposition, then the examiner shall sign the same ; and the examiner may, upon all examinations, state any special matters to the court as he shall think fit ; and any question or questions which may be objected to shall be Examiner not to rnie on noted by the examiner upon the deposition, objections to questions. but he shall not have power to decide on the competency, ma- teriality, 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. (3.) In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the ex- Refusal of witness to aminer, or by counsel or solicitor, the same '^"end or be sworn. practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. (4) Notice shall be given by the respective counsel or so- licitors, to the opposite counsel or solicitors, J^„°tfgi°f^«™»J^°° or parties, of the time and place of the ex- side. amination, for such reasonable time as the examiner may fix by order in each cause. (5.) When the examination of witnesses before the exami- 128 EULES OF PKACTICE IN EQUITY. original deposition, to ^er is Concluded, the original deposition, an- te filed. thenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record, in the same mode as prescribed in the thirtieth section of act of Congress, September 24, 1789.* (6.) Testimony may be taken on commission in the usual Testimony may also be yfa,y, by Written interrogatories and cross- taken by written in- . / , . j_- j. j.i l • terrogatories. interrogatories, on motion to the court m term time, or to a judge in vacation, for special reasons satis- factory to the court or judge. (7. ) Where the evidence to be adduced in a cause is to be conrtmay assign time t^ken Orally, as provided in the order passed for taking testimony, j^j; ^j^g December term, 1861, f amending the 67th General Rule, the court may, on motion of either party, assign a time within which the complainant shall take his evi- dence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply ; and no further evidence shall be taken in the cause, unless by agreement of the parties, or by leave of court first obtained, on motion, for cause shown. See Equity Eules, 68, 69, 70, 71, 78, 79, 80, 81, 91. First paragraph promulgated March S, 1843, 1 How. Ixii ; amended December Term, 1854, 17 How. vii. Second, third, fourth, fifth and sixth paragraphs promulgated De- cember Term, 1861, 1 Black, vi. Seventh paragraph promulgated December Term, 18G9, 9 Wall. vii. Statutory Provisions. Rev. Stats, sec. 862.] The mode of proof in causes of equity shall be according to the rules now or hereafter piescribed by the Supreme Court, except as herein specially provided. Sev. Stats, sec. 917.] The Supreme Court shall have power to pre- scribe from time to time, and in a manner not inconsistent with any law of the United States, the modes of taking and obtaining evidence, of obtaining discovery, etc., in suits inequity by the circuit and district courts. Bev, Stats, sec. 858.] No witness shall be excluded on account of color, or in any civil action because he is a party to or interested in the issue tried ; but in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither parly shall be allowed to testify against the other, as to any trans- action with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by * Eev. Stats, sec. 865, noted under Equity Eule 70, post, i Vide paragraphs 2, 8, 4, 5 and 6 of this rule. EULES OF PRACTICE IN EQUITY. 129 the court. la all other respects the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses. Bev. Stats, sec. 876.] Subpoenas for witnesses required to attend any court of the United States, in any district, may run into any other dis- trict, provided in civil causes the witnesses living out of the district where the court is held do not live at a greater distance than one hundred miles. (See Rev. Stats, sec. 870, post.) Bev. Stats, sec. 868. J How witnesses subpoened to appear before com- missioner; — punishment for disobedience. (See also Equity Eule 78.) Sev. Stats, sec. 869.] Subpcena duces tecum to witness before com- missioner ;^-punishment for disobedience. Bev. Stats, sec, 870.] No witness under two preceding sections re- quired to attend out of county of his residence, nor more than forty miles from his residence ; and not guilty of contempt for non-attend- ance unless his fees are paid or tendered on service of subpoena. decisions. ' The previous statute allowing the oral examination of witnesses in open court in equity causes was not expressly repealed until the adoption of Rev. Stats, sec. 862, providing that the mode of proof in such cases should be as prescribed by the Supreme Court, except as otherwise pro- vided. Blease v. Garlington, 93 U. S. 1. While this court does not say that, even since the Rev. Stats., the cir- cuit courts may not in their discretion, under the operation of existing ^ rules, permit the examination of witnesses orally in open court upon the hearing, it does say that they are not now by law required to do so. (Overruling Sickles v. Gloucester Co., 3 WaU. Jr. 186.) lb. If witnesses are examined orally at the hearing, the testimony pre- sented in that form must be taken down, or its substance stated in writ- ing and made a part of the record, or it will be entirely disregarded on appeal. lb. An examiner may be appointed outside as well as within the juris- diction of the court. N. C. R. R. Co. ■». Drew, 3 Woods, 693. All the interrogatories annexed to a commission, including the gen- eral interrogatory, must be substantially answered, or the deposition can- not be read. Ketland v. Bissett, 1 Was7i. 0. 0. 144 ; Dodge v. Israel, 4 Jd. 333 ; Richardson ®. Golden, 3 Id. 109 ; Rhodes v. Selin, 4 Id. 715. If interrogatories refer to records which speak for themselves, they need not be answered. Bell b. Davidson, 3 Wash. O. O. 338. Under equity rule 67 as amended, if neither party gives notice that he desires the evidence to be taken orally, then the testimony may be taken by commission, as formerly, even where the witnesses are within the reach of the subpoena of the court. BischofEscheim v. Baltzer, 10 Fed. B. 1. A party may cross-examine a witness orally in a foreign county although the other party chooses to send out written interrogatories. Jb. (But see Stein v. Bowman, 13 Peters, 309.) After a party has given notice that he desires the evidence to be ad- 9 130 RULES OF PKACTICE IK EQTJITT. duced in the cause to be taken orally, the testimony is not, except for special reasons, to be taken otherwise, and by analogy, where testimony in a foreign couctry can be taken orally, it ought not, except for special reasons, to be taken otherwise. lb. If the defendant will not pay the examiner's fees and take up and file the proofs taken on his behalf, the plaintiff may do so. But no order can be made compelling the defendant to do so, Frese «. Biedenfeld, 14 BMcli. 402. The method in equity of taking testimony of witnesses within the jurisdiction is either by an examination in open court, or upon a commis- sion with written interrogatories annexed, unless dispensed with by the parties, when the examination is made by deposition, waiving the com- mission and written interrogatories. Bronson «. La Crosse & M. K. K. Co., 9 Am. Law Beg. 350. Oral testimony will not be received at the hearing of a cause, unless to prove exhibits referred to by the bill or answer. De Butts v. Bacon, 1 Cranch G. 0. 569. Where the complainant examines the defendant, he does not thereby estop himself from denying the truth of the evidence given by the re- spondent. Rison 13. Cribbs, 1 Dillon, 181 . Where the proofs taken on the part of the defendant are not filed be- cause the examiner's fees are not paid, the plaintiff cannot compel the defendant to pay the fees, but the cause may proceed without the testi- mony in behalf of the defendant, or the plaintiff may be entitled to have it filed on paying such fees himself. Frese ». Biedenfeld, 14 Blateh. 402. It is not a ground for suppressing a deposition that the interrogatoi-ies were shown to the witness before he was called upon to testify. North Carolina R. B. Co. v. Drew, 3 Woods, 691. But if the answers of witnesses are prepared in writing by their coun- sel in advance, it will be fatal to the deposition, lb. Where a suit in equity is set down for hearing on the pleadings, no testimony having been taken, the plaintiff cannot on the hearing intro- duce in evidence documents which are not made, by proper reference, a portion of the bill. Robinson Tobacco Co. v. Philips, 20 Blateh. 569. Testimony of parties, if competent when the depositions were taken and filed, remains competent, and the subsequent death of a party, and the continuation of the suit by an administrator, do not affect its use on the trial. Scheidley «. Aultman, 18 Fed. B. 666. EuLE LXVIII. Testimony may also be taken in the cause, after it is at Testimony may also be issue, bv deposition, according to the acts of taken under acts of *-r. ■ Congress. , Uongress.* 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-examination of the witness, either under * Hev. Stats., sees. 866, 868, 869, 870, 871, 878, 873, 875. '^ KULES OF PRACTICE IN EQUITY. 131 a commission or by a new deposition taken under the acta of Congress, if a court or a judge thereof shall, undet all the cir- cumstances, deem it reasonable. See Equity Rule 70. Promulgated Mareli 2, 1842, 1 How. Ixii. Statutory Provisions. BeD. Stats, sec. 866.] In any case when it is necessary to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage ; and any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matters that may he cognizable in any court of the United States. Bev. Stats, sec. 867.] Any court of the United States may, in its dis- cretion, admit in evidence in any cause before it any deposition taken in perpetuam rei memoriam, which would be admissible in a court of the State where such cause is pending. JRei). Stats, sec. 868.] How witnesses subpoenaed to appear before commissioner ; — punishment for disobedience. Bev. Stats, sec. 869.] Subpoena duces tecum to witnesses before com- missioner ; — punishment for disobedience. Bev. Stats, sec. 870.] No witness under two preceding sections required to attend out of county of his residence, nor more than forty miles from his residence ; and not guilty of contempt for non-attendance unless his fees are paid or tendered on service of subpcena. Bev. Stats, sec. 871.] Depositions in the District of Columbia in suits pending elsewhere. Bev. Stats, sec. 873.] Same subject ; where no commission nor notice. Bev. Stats, sec. 873.] Same subject ; manner of taking and trans- mitting depositions. Bev. Stats, sec. 875.] Letters rogatory in cases in which the United States are parties or interested. (See also Eev. Stats, sees. 4071, 4073, 4073, 4074.) Bev. Stats, sec. 876.] Subpoenas to witnesses to run into another district, if witness does not reside at greater distance than one hundred miles. (See Rev. Stats, sec. 870, supra.) Decisions. Depositions may be taken under a dedimus postestatem under Rev. Stats., sec. 866, "according to common usage," now, as at any time hitherto, in a suit in equity. The words "common usage," in regard to a suit in equity, refer to the practice in courts of equity. BischoflEscheim v. Baltzer, 10 Fed. B. 1 ; S. C, 20 BlatcJi. 239. The provision of equity rule 68, for taking testimony in an eq lity 132 EXILES OP PRACTICE IN EQTJITT. base, after it is at issue, by deposition, according to the acts of Congress, is still in force, lb. The sections of Key. Stats, relating to the taking of depositions de bene esse do not apply to the taking of testimony under a dedimus pro- testatem. Jones v. Oregon Cent. R. R. Co., 3 8aii. 533. The testimony of a witness may be taken in perpetuam rei memoriam in a patent cause, although no suit has been commenced, and the party moving for the deposition cannot bring his rights to a judicial determi- nation. N. y. & Balto. Coffee Polishing Co. ■». N. Y. Coffee Polishing Co., Limited, 20 BlatcTi. 174 ; 8. C, 11 Fed. R 813. Where testimony in a foreign country can be taken orally, it ought not, execpt for special reasons, to be taken otherwise. BischofEscheiBi V. Baltzer, 30 Blatch. 339 ; S. C, 10 Fed. B. 1. The plaintifE in an equity suit having applied for an order for a com- mission to examine himself on written interrogatories to be annexed to the commission, on an aflSdavit showing that he expected to prove by himself the material averments of the bill, or many of them, the court allowed the defendant to cross-examine him orally, lb. EuLE LXIX. Three montlis, and no more, shall be allowed for the taking Limitation of time for of testimony after the cause is at issue, unless taking testimony. ^j^g ^^^^.^^ ^^ ^ j^^gg thereof, shall, upon special cause shown by either party, enlarge the time ; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of Publication of deposi- the Commissions and depositions containing *""'^' the testimony into the clerk's office, publi- cation 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 circum- stances ; but, by consent of the parties, publication of the testimony may at any time pass into the clerk's office, such consent being in writing, and a copy thereof entered in the order-books, or indorsed upon the deposition or testimony. See Equity Kule 67, par. 7. \ Promulgated March 2, 1842, 1 How. Loi. Decisions. A deed or other documentary exhibit may be put in evidence after publication of the depositions. Kesmith v. Calvert, 1 Woodb. & M. 34. The practice in regard to enlarging time for taking depositions, and reopening case for further testimony after publication; with reasons for same, stated at length. Wood ». Mann, 3 Sumner, 316. )^ The three months allowed by the above rule for taking testimony has EULES OF PRACTICE IN EQUITY. 133 reference to the taking of testimony 'by both parties. Ingle v, Jones, 9 WaU. 486. Where a plaintiff has taken his testimony within the three months allowed, the bill will not be dismissed. Sergeant v. First Nat. Bank, 7 Beporter, 331. If the defendant will not pay the examiner's fees and take up and file the proofs taken on his behalf, the plaintiff may do so. But the de- fendant cannot be compelled by order to do so. Frese v. Beidenfeld, 14 BlaUh. 403. Testimony taken after the three months limitation has expired may still be admitted at the hearing, in the discretion of the court. Fisher «. Hayes, 6 Fed. B. 76. Equity rule 69 is imperative that no testimony taken after the time allowed shaU be read at the hearing. Wooster v. Clark, 9 Fed. B. 854. The time to take testimony will be extended when such testimony, if admissible, will apply equally to other cases in which the time to take proofs has not expired, Wooster v. Howe Mach. Co., 10 Fed. B. 666. Rule LXX. After any bill filed and before the defendant hath answered the same, upon aflSdayit made that any of when testimony de J.1 1 • J. -o!) -t 1 1 • a bene ease may be taken; the plaintiff s witnesses are aged and infirm, notice, or going out of the country, or that any one of them is a sin- gle witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a com- mission to such commissioner or commissioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to tlie adverse party of the time and place of taking his testimony. See Equity Eules 67, 68. Promulgated Marcli 2, 1842, 1 How. Ixiii. Statutory Provisions. Bev. Stats, sec. 863.] Depositions de bene esse may be taken when witness lives at a greater distance than one hundred miles, or bound on a voyage to sea, or about to go out of the United States to a greater dis- tance than one hundred miles from place of trial, or when ancient and infirm ; — before whom deposition may be taken ; — notice ; — same in case of proceedings in rem ; — ^witnesses compelled to appear same as in court. (As to persons before whom depositions may be taken see Rev. Stats, sees. 1750, 1778, and Act Aug. 6, 1876, ch. 304, 19 Stat. L. 206.) Bev. Stats, sec. 864.] Witness to be sworn ; — testimony to be reduced to writing by magistrate, or witness in magistrate's presence, and by no other person ; — ^to be subscribed by deponent. Bev. Stats, sec. 365.] Magistrate to retain deposition until delivered with his own hand into court, or transmit the same under seal and with 134 ETTLES OF PBAOTICE IK EQUITY. certificate of reasons for taking, and in such case same to remain under seal until opened in court. But deposition cannot be read unless causes of taking proved to exist at time of trial. Decisions. Depositions de bene esse being in derogation of the common law should be so taken as to comply strictly with all the requisites of the statute, or the testimony cannot be used. Bell v. Morrison, 1 Peters, 351 ; Harris v. Wall, 7 Eow. 693 ; Allen i>. Blunt, 2 Woodb. & M. 121 ; Carrington v. Stimpson, 1 Curt. 487. It is not necessary to state the names of all the parties to the suit in the caption of the depositions. Egbert v. Citizens, Ins. Co. of Mo., 7 Fed. B. 47. If the captioil shows that the distance from the place of trial is more than one hundred miles, and the same is true in fact, and known to the parties, it is a sufficient statement of the reason for taking the deposi- tion, lb. The adverse party may place the deponent on the stand as a witness though his deposition de bene esse has been regularly taken. White- ford «. Clark Co., 13 Fed. B. 837. Depositions de bene esse under Rev. Stat. sec. 863, cannot be taken in a foreign country. The proper course is by commission, and the cases appear to allow an oral examination of witnesses. Cortes ». Tannhauser, 18 Fed. B. 667. ' EuLB LXXI. The last interrogatory in the written interrogatories to take Form of last interro- testimony now coHimonly in use shall in the s*'"'^- future be altered, and stated in substance thus : " Do you know, or can you set forth, any other matter or thing which may be a benefit or 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." Promnlgated March 2, 1842, 1 How. Ixiii. EtJLE LXXII. Where a defendant in equity files a cross-bill for discovery Defendant muetanswer Only against the plaiutifE in the original bill, pilfflreq^ed^toan! the defendant to the original bill shall first ?overyT™e''of 'anewCT answer thereto before the original plaintiff to cross-bui. gjjg^y ^jg 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. ETTLES OF PEACTICE IN EQUITY. 135 in the same manner and under the same restrictions as the answer praying relief may now be read and used. Promnlgated March 2, 1843, 1 How. Ixiv. Decisions. A cross-bill is brought by the defendant against the plaintiff in the same suit, or against other defendants, or against both, touching the matters in the original bill. Its object is to obtain a discovery in defense of the original bill, or to obtain full relief to all parties as to the matters alleged in the original bill. It is auxiliary to the original suit and depend- ent upon it, and should, therefore, not introduce new and distinct matters not embraced in the original bill. Ayres ». Carver, 17 Mow. 591. If the purpose of a cross-bill be different from that of the original bill, it cannot be maintained, although it contain matters having connec- tion with the same general subject. Cross «. De Valle, 1 WaU. 5. A defendant must answer the original bill before filing a cross-bill. Allen 1/. Allen, 1 Hempst. 58. A cross-bill cannot be used to introduce new parties into the cause. Shields -e. Barrow, 17 Mow. 130. A cross-bill should ordinarily be heard with the original bill. Ayres V. Carver, 17 Mow. 591. It is irregular to file a cross-bill without leave of the court, and such a proceeding may be set aside. Bronson v. La Crosse R. R. Co., 2 Wall. 283. Where the parties are all before the court full justice may generally be done without requiring the defendants to file a cross-bill. Bank v. Union Bank of Tenn., 13 Mow. 57. (See Young «. Pott, 4 WasU. 521 ; Carnochan «. Christie, 11 Wlieaton, 446.) A defendant cannot introduce matter in the nature of a cross-bill by his answer. Hubbard ». Turner, 2 McLean, 519 ; Morgan v. Tipton, 3 Id. 339 ; Ford ®. Douglas, 5 Mow. 143 ; Mo. v. Iowa, 7 Mow. 660. A petition "by way of cross-bill," which makes nobody defendant, prays for no process, and under which no process is issued, is a nullity. Washington R. R. v. Bradleys, 10 Wall. 299. A cross-bill must grow out of the matter alleged in the original bill, and is used to bring the whole matter in dispute before the court, so that there may be a complete decree touching the subject matter of the suit. Ex parte R. R. Co., 95 U. S. 221. In cases where the cross-bill is filed to restrain proceedings at law, and also where the defendant in the cross-bill resides beyond the jurisdiction of the court, service of the subpoena may be made on the defendant's at- torney. Lowenstein v. Glidewell, 5 DUlon, 335 ; S. C, 6 Reporter, 454. The dismissal of an original bill by the plaintiff does not put a cross- i)ill out of court. lb. A cross-bin is properly filed to establish an equitable title, when the legal title is in the complainant. Brandon Mfg. Co. v. Prime, 14 Blatch. 371. 136 RULES OF PRACTICE IN EQTTITT. Other parties than the defendants to the original bill may be joined in the cross- bill. 26, If a cross-bill is filed by one defendant without notice to the others, it ■will be stricken from the files. Webster Loom Co. v. Short, 10 Off. Qcm. Pat. 1019. Any affirmative relief sought by a defendant in equity must be by cross-bill, and can never be granted upon facts stated in the answer. Chapin «. Wallier, 6 Fed. B. 794. In a suit by a corporation a cross-bill for discovery cannot be sus- tained against an officer of the corporation when he did not derive the information sought in his official capacity. McComb v. Chicago, St. L. & N. O. R. Co., 7 Fed. B. 426. Instead of filing a bill or cross-bill for discovery, either party may now during the progress of the cause by affidavit and motion require the opposite party to produce books or papers pertinent to the subject under inquiry. Coit ». N. C. Gold Amalgamating Co. , 9 Fed. B. 577. A controversy between co-defendants to a bill in equity cannot be the matter of a cross-bill, unless its settlement is necessary to a complete de- cree upon the case made by the original bill. Weaver ®. Alter, 3 Woods, 152. Etoe LXXIII. Every decree for an account of the personal estate of a Account of personal testator or intestate shall contain a direction estate of decedant. j. i_i j. ±. i -j.* j» t j. i. ^ to the master to "whom it is referred to take the same to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, un- less the court shall otherwise direct. Promnlgated March Z, 1843, 1 How. Ixlv. EuLB LXXIV. Whenever any reference of any matter is made to a master Party procnring refer- to examine and report thereon, the party at ence to proceed by next , ., . . ,\,, ,, rule-day. whose instance or for whose benefit the reference is made shall cause the same to be presented to the master for hearing on or before the next rule-day succeeding the time when the reference was made ; if he shall omit to do Default. so, the adverse party shall be at liberty forth- with to cause proceedings to be had before the master, at the costs of the party procuring the reference. Promulgated March 2, 1843, 1 How. Mv. Decisions. A complex or intricate account ought always to be referred to a mas- ter'. St. Colombe ®. U. S., 7 Peters, 635 ; Harding v. Handy, 11 Wheaton,- 103 ; Jewett v. Cunard, 3 Woodb. & M. 277. RtTLES OF PRACTICE IX EQUITY. 137 The order of reference need not particularly empower the master to take testimony, for that is implied, if necessary. Story v. Livingston, 13 Peters, 359. A cause may be referred back to a master. Union Sugar Refinery v. Mathieson, 3 Cliff. 146 ; Magic Ruffle Co. v. Elm City Co., UBlatch. i09. Practice before master in patent cases stated. Kerosene Lamp Heater Co. «. Fisher, 1 Fed. B. 91. Practice before master, generally, as to examining parties, stated. Foote V. Silby, 3 Blatch. 504. The issues made by the pleadings must be settled by a decree before a reference to a master can be had. Ward ». Paducah & M. R. R. Co.; 4 Fed. B. 863. Rule LXXV. Upon every such reference, it shall be the duty of the mas- ter, as soon as he reasonably can after the procedure before mas- same is brought before him, to assign a time **'• and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his. dis- cretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment ; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be ■at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reasons for any delay. See Equity Bale 77. Promulgated March 3, 1843, 1 How. Ixiv. Rule LXXVI. In the reports made by the master to the court, no part of any state of facts, charge, affidavit, deposi- Report of master, what tion, examination or answer brought in or omitted from, etc. used before them shall be stated or recited. But such state of facts, charges, affidavits, deposition, examination, or answer shall be identified, specified, and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, or answer were so brought in or used. Promulgated March 3, 1843, 1 How. Ixv. 138 KULES OF PRACTICE IN EQUITY. EuLE LXXVII. The master shall regulate all the proceedings in every hear- Anthority of maBter. ing before him, upon every such reference ; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the refer- ence ; and also to require the production of all books, papers, writings, vouchers, and other documents applicable thereto ; and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon 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 re- quiring 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. Promulgated Match 2, 1842, 1 How. Ixv. Decisions. The practice before masters as to examining parties stated. Foote v. Silby, 3 Blaich. 507. Practice before masters in patent cases stated. Kerosene Lamp Heater Co. «. Fisher, 1 Fed. M. 91. An oral examination before a master without a previous agreement of the parties waiving written interrogatories, is irregular. Van Hooli v. Pendleton, 3 Blatch. 85. But if a party is notified of an oral examination, and acquiesces in it, he waives his right to require written interrogatories, lb. The oath of a party as to items of the account ought not to be receiv- ed, if from their nature they are capable of full proof. Harding v. Handy 11 Wheaton, 103, 137. Witnesses who liave been examined before the court cannot be again examined before the master witliout order, and then only as to other mat- ters. Jenkins «. Eldredge, 3 Story C. O. 299. A complainant does not preclude himself from taking a decree by ex- amining the defendant before a master. Jenkins «. Greenwald, 1 Bond, 126, 133. The above rule prescribes a simple and expeditious practice, and refer- ence to the practice of the English chancery is no longer necessary. Hatch «. Indianapolis & S. R. R. Co., 9 Fed. B. 856. Masters have no right to review, reject or disregard the decision, order EULES OF PRACTICE IN EQUITY. 139 or direction of the court contained in tlie decretal order by which they are appointed, but they are bound to follow all such orders and direc- tions. Felch V. Hooper, 4 Cliff. 489. EuLE LXXVIII. Witnesses who live within the district may, upon due no- tice to the opposite party, be summoned to Attendance of wit- , „ , . . . nesees before commis- appear beiore the commissioner appointed to eioners, masters and 1 1 , , . , „ , examiners, how com- take testimony, or beiore a master or ex- peiied. aminer appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court ; and if any witness shall refuse to appear or give evidence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an at- tachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But nothing herein contained shall prevent the examination of witnesses viva voce when produced in open court, if the court shall, in its discretion, deem it advisable. Promulgated March 3, 1843, 1 How. Ixvi. Decisions. A witness who has been examined in the cause before the court can- not be examined before the master without leave of the court. Gass v. Stinson ; Jenkins v. Eldredge, 3 Story G. 0. 299. If leave is granted to examine a witness before a master who has been already examined before the court, his testimony must relate to new matters. Jb. A court of equity will not sit to try causes by the examination of wit- nesses in open session. Such is not the proper construction of equity rule 78. North Carolina R. R. Co. v. Drew, 3 Woods, 691. This rule only reserves the power in the court to verify documents set out in the pleadings, or to establish some fact of a formal character which may have been inadvertently omitted in the evidence, and which does not require an extended examination. In other words, the seventy-eighth rule does not alter the English practice on the subject. The substantial evidence in the case must be taken according to equity rule sixty-seven. lb. 140 KULES OF PRACTICE IN EQUITY."^ 1 EuLB LXXIX. All parties accounting before a master shall bring in their Parties acconndng respective accounts in the form, of debtor form. and creditor; and any of the other parties who shall not be satisfied with the accounts so brought in shall Examination viva voce, >e at liberty to examine the accounting *'"=■ party yiva voce, or upon interrogatories, in the master's office, or by deposition, as the master shall direct. Promulgated March 2, 1848, 1 How. Ixvi. Practice. The old mode of proving an account item by item is abolished by this rule. PuUian «. Pullian, 10 Fed. S. 23. KULB LXXX. All affidavits, depositions, and documents which have Evidence previously been previously made, read, or used in the used in conrt may be '■ '' . . read before master. court, upon any proceeding in any cause or matter, may be used before the master. Promulgated March 8, 1842, 1 How. jxvi. KuLB LXXXI. The master shall be at liberty to examine any creditor or Master may examine other pcrson coming in to claim before him, creditor or other claim- . .... . . ant. either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to require. The evidence upon such examinations shall be Evidence to be taken t^keu down by the master, or by some other ■^o""- person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if necessary. Promulgated March 8, 1842, 1 How. Ixvi. EuLE LXXXII The circuit courts may appoint standing masters in Appointment of mas- chanccry in their respective districts, both *^™- the judges concurring in the appointment ; and they may also appoint a master pro hac vice in any par- ticular case. The compensation to be allowed to every master Compensation. in chauccry for his services in any particular case shall be fixed by the circuit court, in its discretion, hav- ' EULES OF. PRACTICE IN EQUITY. 141 ing regard to all the circumstances thereof, and the compen- sation 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 compen- Not to retain report, .._, but may have attach- sation ; but, ■when the compensation is allow- ment for ws fees. ed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time pre- scribed by the court. Fromnlgated March 2, 1842, 1 How. Ixvli. Statutory Provisions. Act Mar. 3, 1879, chap. 183, 20 Stat. L. 415.] No clerk of the dis- trict or circuit courts of the United States, or their deputies, shall be ap- pointed a receiver or a master in any case, except where the judge of said court shall determine that special reasons exist therefor to be assigned in the order of appointment. Practice. Special services of a master should be compensated by special allow- ance. Erie Railway Co. ■». Heath, 10 Blatch. 314. Rule LXXXIII. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of -^here master's report the return shall be entered by the clerk in *» "e returned. the order-book. The parties shall have one month from the time of filing the report to file exceptions Time to file exceptions. thereto ; and, if no exceptions are within that period filed by either party, the report shall stand confirm- Report confirmed, if no ed on the next rule-day after the month is exceptions. expired. If exceptions are filed, they shall stand for hearing before the court, if the court is then in ses- Hearing of exceptions sion, or, if not, then at the next sitting of ^''"^■ the court which shall be held thereafter, by adjournment or Otherwise. Promulgated March 2, 1843, 1 How. Ixvii. Decisions. Like a verdict of a jury, the report of a master relates only to facts, and as to them will not be reconsidered or set aside, unless some clear mistake or abuse appears. Mason ■». Crosby, 3 Woodb. & M. 258. Although the presumption is in favor of the report of a master, it 142 RULES OF PEACTICE IN EQUITY." may nevertheless be examined by the court. Webb v. Powers, 3 Woodb. & M. 497. If the master has erred in some respects, it will afford no ground fof setting aside or recommitting his report, if the errors complained of do not appear to have produced results materially different from what would have otherwise happened. Mason v. Crosby, 3 Woodb. & M. 258. The master cannot, even with the consent of the parties, go into mat- ters not embraced in the suit and referred to him. Gordon ®. Hobart, 2 Story O. a 243. Questions arising upon accounts will not be determined previous to the incoming of the master's report, when they must be brought before the court on exceptions regularly taken. Vanderwick «. Summed, 2 Wash. C. a 41. If no exceptions are taken by the parties, the court, at the hearing, will notice only such errors as appear from the face of the report itself. Himley v. Rose, 5 Cranch, 313. Exceptions should be taken before the master, in order to save time and give him an opportunity to correct his errors and reconsider his opin- ions, and if a party neglect this rule he cannot afterwards except to the report, unless the court be dissatisfied with the report and refer it back with leave to the party to take exceptions. Story v. Livingston, 13 PeUrs, 359. At the final hearing on exceptions to a master's report the whole case is open for revision, and if the court changes its opinion previously formed, it may overrule the interlocutory decree and the proceedings under it. Fourniquet v. Perkins, 16 How. 82 ; PuUiam v. PuUiam, 10 Fed. S. 53. Exceptions to a master's report are in the nature of a special demurrer and the party objecting must point out the errors, otherwise the report will be treated as correct. Story v. Livingston, 13 Peters, 359. The court does not investigate the items of an account, or review the whole mass of testimony taken by the master. Therefore, the exceptions are regarded by the court only so far as they are supported by the spe- cial statements of the master, or by direct references to particular por- tions of testimony on which the party excepting relies. Harding v. Handy, 11 Wlteaton, 103. It is not necessary for the court to formally allow or disallow the ex- ceptions, if the record shows that they were all considered and acted on. Oliver v. Piatt, 3 How. 333. Exceptions to a master's report are not required to be so full and specific as a special demurrer, it being only necessary that the exception should point out the finding and conclusion of the master, and when so made it brings up all questions of fact and law relative to that subject. Foster ■». Goddard, 1 Black, 500. Exceptions mnst point out article by article, the parts of the report excepted to. Green v. Bishop, 1 Gliff. G. O. 186. If the master makes a ruling which the party intends to contest, an exception should be taken on the spot, and, though it need not there be ETTLES OF PEACTICE IN EQUITY.' 143 drawn up in form, it should be taken by giving notice to the master whose duty it is to note the same in his minutes. The Troy Iron & Nail Factory v. Corning, 6 BlatcJi. 328. The practice of excepting to the rulings of the master on the admis- sion or rejection of evidence, considered. lb. "When a master, on reference, has followed the order of the judgment and enforced its directions, no objection can be taken on appeal to what he has done, when the appeal arises upon exceptions to his report, and not on objection to the original judgment under which the reference to him was made. New Orleans v. Gaines, 15 Wall. 634. The practice with regard to mkking up of master's reports and hear- ing arguments thereon and exceptions thereto, considered. Hatch ». Indianapolis & S. R. K. Co., 9 Md. M. 856. Courts of equity may, in certain cases, give the parties a new hearing but nothing of that kind will be allowed in a hearing on exceptions to a master's report. Fitch v. Hooper, 4 Cliff. 489. Exceptions to the report of the master should be precise and raise well defined issues. When they are vague and general, and require of the court the performance of duties which properly belong to the master and counsel, they will be overruled. Stanton v. Alabama & C. R. R. Co., 3 Woods, 506. The presumptions are in favor of the findings of the master, and they wUl not be disturbed, unless shown to be erroneous. Lockhart i). Horn, 3 Woods, 543. EuLE LXXXIV. And^ in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, costs to prevent excep- the party whose exceptions are overruled tions for frivolous causes. shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs ; the cost to be fixed in each case by the court, by a standing rule of the circuit court. Promulgated March 2, 1843, 1 How. Ixviii. EuLE LXXXV. Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, clerical and other mis- ° '' _L n n takes, how and when may, at any time before an actual enroll- corrected. ment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. See Equity Eules 5, 8, 9, 10. Promulgated March 2, 1843, 1 How. Ixviii. ;i44 RULES OF PEACTICE IN EQUITY. Decisions. A decree "wiU not be amended after four years have elapsed since its rendition. Coleman v. Neill, 11 Md. S. 461. Though the court cannot change the essential parts of a decree after the term at which it was entered, yet it has power subsequently to amend the decree as to the mode of its execution. Turner v. The Indianapolis B. & "W. R. R Co 8 Bm aafi., EuLE LXXXVI. In drawing up decrees and orders, neither the bill, nor What to be omitted answer, nor other pleadings, nor any part from decree. 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 Form. substance, as follows : " This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz :" [Here insert the decree or order.] See Equity Eales 5, 8, 9, 10. Promulgated March 2, 1842, 1 How. Ixviii. Decisions. By the practice in England, the decree always recites the substance of the pleadings and facts upon which the court basis its decree, but the practice is otherwise in the United States. Whiting «. Bank U. 8., 13 Peters, 6. A decree is final which disposes of the whole subject, gives all the relief contemplated, and leaves nothing to be done by the court. On the other hand a decree which leaves anything to be done by the court, is interlocutory. These are the only two classes of decrees. Ryan v. Mc- Leod, 9 Seporter, 493. Where a bill is dismissed without prejudice, the complainant is not barred from bringing a new bill against other parties on the same claim, or against the same parties, on new or additional facts. Kimball v. The County of Mobile, 3 Woods, 555. EuLE LXXXVI]. Guardians ad litem to defend a suit may be appointed by Guardians ad litem and the court. Or by any judge thereof, for infants proc ein amis. ^^ other pcrsons who are under guardian- ship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami ; subject, however, to such ETJLES OF PRACTICE IN EQUITY. 145 orders as the court may direct for the protection of infants and other persons. Promulgated March 2, 1842, 1 How. Ixviii. Decisions. The husband may properly be joined as prochein ami in a bill by the ■wife to be relieved of a contract by her on the ground of disability to contract. Bein v. Heath, 6 Eow. 228. The duty of watching over the interests of infant defendants devolves in a great degree on the court. Bank TJ. S. v. Ritchie, 8 Peters, 138. The guardian appointed is usually the nearest relative not interested in the matter in suit. Jb. It is not proper to appoint a guardian at litem on motion of the ad- verse counsel, without bringing the minors into court, or issuing a com- mission to make the appointment, lb. A decree should not be rendered upon the answer of a guardian ad litem consenting to a decree without other evidence. lb. In a suit by a married woman, her husband should be joined in all cases when they have no antagonistic interests ; but if their interests are opposed, she should file her bill by her next friend, and make her hus- band a party defendant. Birn v. Heath, 6 Sow. 248 ; Douglas v. Butler, 6 Fed. B. 228. But if the bill by the wife join her husband as complainant when he ought to be a defendant, the practice is not to dismiss the bill, but to give permission to the wife to amend by adding a next friend, and make the husband a defendant. Douglas v. Butler, 6 Fed. R. 228. A married woman must sue and be sued jointly with her husband, except when she claims a right in opposition to him, in which case her prochein ami, with her consent, may sue on her behalf, and her husband be made a defendant. Taylor ». Holmes, 14 Fed. B. 498. A decree will be reversed if rendered against a woman who is shown by the bill to be both a minor and feme covert, when no appearance by or for her has been entered, and no guardian ad litem appointed. O'Hara ®. MacConnell, 93 U. B. 150. KULE LXXXVIII. Every petition for a rehearing shall contain the special matter or cause on which such rehearing is petition for rehearing, applied for, shall be signed by counsel, and iiow framed, the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person. No rehearing shall be granted after the term ^o rehearing after at which the final decree of the court shall term, when appeallies. have been entered and recorded, if an appeal lies to the Su- preme Court. But if no appeal lies, the Aliler in other cases. 10 146 ETJLES OF PRACTICE IN EQUITY. petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. Promulgated March a, 1842, 1 How. Izix. Decisions. A rehearing is not a matter of right, but rests in the sound discretion of the court. Daniel ®. Mitchell, 1 Story, 198. A rehearing is only allowed where some plain omission or mistake has been made, or where matter material to the decree has been over- looked. Jenkins v. Eldredge, 3 Story, 399 ; Emerson «. Davies, 1 Woodb. M. 21; Tufts ». Tufts, 3 Id. 436. Where, after an interlocutory decree, a rehearing is asked because of newly discovered evidence, it will be granted on filing a supplemental bin, if the evidence would entitle the party to relief on a bill of review, or a supplemental bill in tne nature of a bill of review, after a final decree, but not otherwise. Baker «. Whiting, 1 Story, 218 ; Jenkins v. Eldredge, 3 Id. 399. A rehearing will not be granted on the ground of newly discovered evidence where it is merely cumulative upon the facts already in issue and litigated. lb. A rehearing in equity will be granted for very nearly the same reason as a new trial at law. Bently v. Phelps, 3 Woodb. & M. 403. If the rehearing is sought on newly discovered evidence, and it seems to be cumulative, and not to have been introduced before, on account of neglect, the application will be denied. lb. In a case where no appeal lies to the Supreme Court, a rehearing may be granted if the petition is filed before the end of the next term after the final decree. Clarke i>. Threlkeld, 2 Vranch G. C. 408. A rehearing will not be granted on the mere certificate of counsel as to the sufficiency of the reason for it. Emerson b. Davies, 1 Woodb. & M. 31 ; Tufts V. Tufts, 3 Id. 436. Mistake of law or error of judgment on the part of counsel as to pertinency of force of evidence, furnishes no ground for a rehearing. Baker v. Whiting, 1 Story, 318. A party is not entitled to a rehearing on the ground of newly disdov- ered evidence, if he had knowledge of the evidence before the decree, or might, with reasonable diligence or enquiry, have obtained it. Ih. A rehearing will not be granted on the ground that sufficient atten- tion and argument was not given to the evidence or a particular portion of it. Hunter i). Town of Marlborough, 3 Woodb. & M. 168, 305. An application for a rehearing generally must state that new testi- mony has been discovered since the opinion was pronounced, or give some reason which constitutes a good ground for a new trial at law. lb. A rehearing will not be granted because some of the evidence on the other side to a point was not specially referred to in the opinion of the court, if it was argued by counsel on both sides and considered by the court. Bently ». Phelps, 3 Woodb. & M. 408. RULES OF PRACTICE IN EQUITY. 147 A rehearing cannot be granted after the term at which the decree was rendered in a case when an appeal lies to the Supreme Court. Roemer V. Simon, 91 U. S. 149 ; Scott v. Blaine, 1 Baldw. 387 ; Barker ». Stowe, 16 Off. Gaz. Pat. 807. The Supreme Court cannot set aside a decree and grant a rehearing. Roemer v. Simon, 91 U. S. 149. An application for a rehearing must be made to the court that ren- dered the decree, lb. A rehearing may be granted at any time before a final decree. Reeves V. Keystone Bridge Co., 9 Off. Oaz. Pat. 885. The practice where a rehearing is sought before final decree is to file a petition for leave to make a supplemental bill, setting forth the newly discovered evidence, and for a reheaiing of the cause at the time when the supplemental bill may be ready for hearing ; and the court must be satisfied that the omission to sooner produce the evidence is not due to negligence, and it must also appear that the new evidence is material. lb. The granting or refusal of a rehearing is in the sound discretion of the court, and furnishes no ground for an appeal. BufSngton «. Harvey, 95 U. 8. 99. An aflidavit in support of a motion for a rehearing which slates that every effort was made to obtain the testimony sought to be introduced but the party " was not aware that he could do so," and which fails to state what efforts were made, or that the party visited any of the places mentioned or saw any of the persons named in the proposed new testi- mony, is insufficient, lb. A rehearing in a suit for infringement of a patent will not be granted because on the final hearing, the defendant was not prepared with proper expert testimony ; nor because he has discovered that an earlier patent than complainant's has been reissued since the hearing ; nor for newly discovered evidence, except on proof that the party could not, by due diligence, have obtained it for the hearing. Hitchcock v. Tremaine, 5 ^h. Pat. Cases, 537. After the term at which a final judgment or decree is entered, the courts of the United States have no power to open the judgment or de- cree and grant a rehearing, or let a defendant in to answer, unless at the time the judgment or decree is entered some order is made virtually keep- ing the judgment open for further relief or proceedings. Linder v. Lewis, 1 Fed. B. 378. A petition signed and verified by the solicitor of a corporation asking for a rehearing on the ground of newly discovered evidence, denied for insufficiency under the circumstances of the case. Page v. Holmes Burglar Alarm Telegraph Co., 3 Fed. B. 330. An application for a rehearing should not be made ex parte. Giant Powder Co., 5 Fed. B. 197. If the petition for a rehearing be filed during the term, the court will retain jurisdiction over the case, and may subsequently decide on the application. Ih. 148 RULES OP PRACTICE IN EQUITY. The practice on an application for a rehearing considered, lb. When it is clear that the proposed new evidence on a motion to re- open a case will not change the result, a rehearing will not be granted. Adair v. Thayer, 7 Fed. R. 920. Unless the proposed new evidence would vary the case, and probably lead to a different result, a rehearing will be denied. McClosky ■». Du- Bois, 9 Fed. R. 38 ; Munson v. The Mayor, 11 Fed. R. 72. Where the defendant does not state that the evidence sought to be introduced on a rehearing was not accessible at the trial, or that it was not Imown to him, or that it is material, a rehearing will be denied. Vermont Farm Machine Co. ''*"'ry- sonam only. Promulgated December Term, 1844, 3 How. Ti. Statutory Provisions. Bev. Stats, sec. 4596.] Seamen punished for assault upon master or mate. Bev. Stats, sec. 5346.] Assault with dangerous weapon upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay within the admiralty jurisdiction, punished. Decisions. The owners of a ship are liable for all the torts of the master, when they involve a breach of the passenger contract, and are done while act- ing within the scope of his employment. But only the actual, and not 180 ETJLES OF PRACTICE IN ADMIRALTY. punitive, damages can be recovered where the owner is innocent of any participation in the tort. McGuire v. The Golden Gate, 1 MeAll. 104. Where a tort is a continued act and not separable, and a portion is com- mitted on land and the remainder on the high seas, the jurisdiction of it attaches to the common-law courts. But if the tortious act originates in port, and is not a perfected wrong until the vessel leaves port, it is a continuous act and travels with the tort-feasor and the injured party during the whole voyage, and comes within the jurisdiction of the ad- miraltjf. The Yankee, 1 McAU. 467. In a libel for a marine tort, the libeUant must set forth in a distinct allegation each separate and distinct wrong on which he intends to rely. Pettingill v. Dinsmore, 2 Ware, 213 ; 8. G., 2 If. Y. Leg. Ois. 119. If the libeUant intends to rely on general ill treatment and oppression on the part of the master in aggravation of damages, it must be pro- pounded in a distinct allegation, to enable the master to take issue upon it in his answer, lb. Where a master is prosecuted in the admiralty for punishing a sea- man, he may be permitted, in justification or mitigation of damages, to show that the seaman was habitually careless, disobedient, or negligent iu his conduct, but the same must be set forth in his answer. Jb. A claim for assault and battery cannot be joined with one for wages in a suit in rem against the vessel. The Guiding Star, 1 Fed. R. 347. EULE XVII. In all suits against the ship or freight, founded upon a snita fonnded on mari- mere maritime hypothecation, either express time hypothecations, ^r implied, of the master, for moneys taken up in a foreign port for supplies of repairs or other necessaries for the voyage, without any claim or marine interest, the libel- lant may proceed either in rem, or against the master or the owner alone in personam. Promnlgated December Term, 1844, 3 How. vi. Decisions. A libel is informal under this rule if it proceed against both vessel and the owners. Dean v. Bates, 2 WoocO). & M. 87. Drafts on the owner of a vessel do not bind her, unless the debt for which they were given by her master is a lien on her, although they ex- press on their face that they are " recoverable against the vessel, freight and cargo." The Woodland, 104 U. 8. 189. A person signing a stipulation to release a vessel seized in a foreign port for supplies does not, by paying a decree subsequently rendered, acquire a lien on the vessel. The Robertson, 8 Biss. 180. Advances of money in the home port of a vessel, even though for EULES OF PRACTICE IN ADMIRALTY. 181 necessaries, do not give the advancers a lien as against other attaching creditors. The E. A. Barnard, 2 Ved. R. 712. The master of a vessel can neither sell nor hypothecate the cargo, ex- cept in case of urgent necessity ; and he can only lawfully do what is directly or indirectly for its benefit considering the situation in which it has been placed by the accidents of the voyage. The Julia Blake, 107 XI. S. 418. Rule XVIII. In all suits on bottomry bonds, properly so called, the suit shall be in rem only against the property gnits on bottomry hypothecated, or the proceeds of the prop- '"'"'*'■ erty, in whosesoever hands the same may be found, unless the master has, without authority, given the bottomry bond, or by his fraud or misconduct has avoided the same, or has sub- tracted the property, or 'Unless the owner has, by his own mis- conduct or wrong, lost or subtracted tlie property, in which latter cases the suit may be in personam against the wrong- doer. Promulgated December Term, 1844, 3 How. vii. Decisions. A libel is informal under this rule if it proceeds against both vessel and owners. Dean v.. Bates, 3 Woodh. & M. 87. A suit cannot be maintained in the admiralty to enforce the surren- der or avoidance of a mortgage of a ship, on the ground that it has not been duly prosecuted, or the claim under it not seasonably made. This is a subject of chancery jurisdiction. Ih. A bottomry bond executed in a foreign country, between subjects of a foreign country, will be enforced in the admiralty courts of the United States, where the ship is within their jurisdiction. The Jerusalem, 2 Qall. 190 ; The Packet, 3 Mamh, 255. The assignee of a bottomry bond may maintain a suit in the admi- ralty either in his own name or in the name of his assignor. Burk «. The Brig M. P. Eich, 1 Cliff. 308. To support a bottomry bond, evidence of actual necessity for repairs and supplies is required, and, if the fact of such necessity be left un- proved, evidence is required of due inquiry and of reasonable grounds of belief that the necessity was real and exigent. The Grapeshot, 9 WaU. 139. It is essential to a bottomry bond that payment of the sum secured be conditioned on the safe arrival of the vessel. The Bark Edward, 10 Ben. 668. A master cannot pledge his vessel by giving a bottomry bond for re- pairs when the owners of the vessel are present at the place where the 182 RULES OF PRACTICE IN ADMIRALTY. repairs are made, or when he has funds of the owners for the purpose. Patton V. The Randolph, 1 Oilp. 457. A suit on a bottomry bond must be by proceedings in rem against the property hypothecated, or tlie proceeds, except in the cases excepted by admiralty rule 18 ; and a libel in rem may be a proceeding against the property by arrest oi^ by attachment. Snow & Burgess v. Scrap Iron, 11 Fed. B. 517. EULE XIX. In all suits for salyage, the suit may be in rem against the s t for iva e property saved, or the proceeds thereof, or in personam against the party at whose request and for whose benefit the salvage service has been performed. Promulgated December Term, 1844, 3 How. vii. Statutory Frovisiona. Eev. Stats, sec. 4535.] Seamen cannot abandon claims for salvage. Decisions. Where the depositary of saved property has rendered himself liable for the lien of salvors, he may be proceeded against in admiralty, although not within the terms of this rule. Gates v. Johnson, 11 Monthly Law Bep. N. 8. 279. In order to sustain an appeal to the Supreme Court in a salvage case, the appellant must show that his individual interest is of an amount sufficient to confer jurisdiction. Spear v. Place, 11 How. 522. The true principle in all cases of salvage is adequate reward accord- ing to the circumstances of the case. No reason, therefore, can be as- signed for fixing an uniform rule for saving derelict property at "not more than half or less than a third of the property saved." Post v. Jones, 19 How. 150. Where there was a contract for raising a sunken vessel upon certain stipulations, the party who raised the vessel cannot abandon it, and ob- tain salvage in a court of admiralty. Bondies v. Sherwood, 23 IIow. 214. The court declines to decide whether in suits for salvage, the suit may be in rem and in personam jointly. The question is still an open one. lb. A court of admiralty will not order a salvage suit to be set aside or to be stayed because there is pending in a court of law an action of replevin for the salved property, brought by the owner against the salvor, and in which the salvor's lien upon the property may be determined. A Raft of Spars, 1 Abb. Ad. 291. No claim for salvage can be made by the crew of a vessel upon the ground that by their services she is brought through a storm into port sound in hull. Miller v. Kelly, 1 Abb. Ad. 564. An action for compensation for salvage services rendered to a vessel cannot be mamtained in personam against the master, unless it was per- formed for hia benefit, lb. UTILES OF PRACTICE IN ADMIRALTY. 183 A court of admiralty has jurisdiction to carry into effect tlie decree of another admiralty court awarding salvage. The Centurion, 1 Ware, 477. A lien exists for salvage services upon the property saved, and pos- session is not necessary to give it validity. Eads i). The H. D. Bacon, 1 J^ewb. Ad. 374. An intention to abandon a lien for salvage, and a resort to the owners for payment, will not be inferred except from the most unequivocal acts on the part of the salvors. lb. Admiralty courts have never put the compensation for salvage services upon the basis of pay for work and labor ; but a liberal compensation is always allowfed in proportion to tlie benefit received by the owners. 75. A corporation organized for the purpose of employing vessels to be used in saving wrecked vessels and their cargos, is entitled to recover sal- vage, even though the persons employed by it are to have no share in it. The Comanche, 8 Wall. 448. A suit for salvage cannot be abated on the objection of claimants that others as well as the libellants are entitled to share in the compensation. The remedy of such others is to become parties to the suit, or to make a claim against the proceeds, if any, in the registry of the court. Jb. The defense that the services for which salvage is claimed were rendered under an agreement for a fixed sum payable in any event, is waived, unless set up in the answer, with an averment of payment or tender, lb. Nothing short of a contract for a fixed sum payable at all events, whether successful or unsuccessful, will bar a meritorious claim for salvage. Jb. A salvage service is none the less so because it is rendered under a contract which regulates the mode of ascertaining the compensation to be paid, but makes the payment of any compensation contingent upon substantial success, lb. Decrees in salvage cases will not be disturbed as to their amount, un- less for a clear mistake, or gross over allowance by the court below, lb. A libel may be filed for salvage in the name of the master and owners of the salving vessel, although the master may make no claim in his own behalf, but, on the contrary, may disclaim. The Blackwall, 10 Wall. 1. A tug towing, under the direction of the fire department of a city, fire engines commonly used on land, into a harboi- where a vessel is on fire, and laying alongside of the burning vessel while the engines throw water upon her, is entitled to salvage, the fire being successfully extinguished. And the owners of the tug will not be deprived of salvage because the representatives of the fire department have not made a claim for salvage. lb. A vessel owned by a corporation may be entitled to salvage, the ves- sel being otherwise a salvor, lb. Non-prosecution of their claims by one set of salvors enures to the benefit of the owners of the vessel, and not to that of other salvors w.ho do prosecute their claims, lb. 184 BULES OF PRACTICE IN ADMIRALTT. Personal property of the United States on board of a vessel for trans- portation from one point to another, is liable to a lien for salvage senrices rendered in saving the property. Such lien cannot be enforced by the courts in a suit against the United States, nor by a proceeding in rem ■when the possession of the property can only be had by taking it out of the actual possession of the officers or agents of the government. But it may be enforced by a proceeding in rem vehere the process of the court can be enforced without disturbing the possession of the government, ■which, being thus compelled to appear in court to assert its claim, must discharge the lien before the property will be delivered to it. The Davis, 10 Wall. IS. Salvors cannot in the same libel proceed in rem against a vessel and in personam against the consignees of her cargo. The true construction of the 19th admiralty rule forbids the joinder of a suit in rem with a suit in personam. The Sabine, 101 U. S. 384. Salvage should be regarded in the light of compensation and reward, not in the light of prize. Murphy v. The Ship Suliote, 5 Fed. R. 99. Where the owners of a salving vessel sue in their own behalf, without joining the master and crew, who are entitled to share in the compensa- tion, the proper practice is to determine the entire amount, and apportion it between the vessel, master and crew, and to have the share of the master and crew paid into the registry to await their application there- for. The Leipsic, 5 Fed. R. 108. Courts of admiralty have jurisdiction of an action to compel distribu- tion by one co-salvor, who has obtained the entire salvage compensation, among the other co-salvors entitled. McOonnochie v. Kerr, 9 Fed. B. 50. Attachments in rem to enforce a lien for salvage may be su.stained in admiralty against the property of a foreign government, if it be not at the tinie of seizure in the public service, or in the possession of any officer of the government, but in the hands of a private bailee. Long v. The Tampico, 16 Fed. R. 491. EULE XX. tn all petitory and possessory suits between part owners or Petitory and possessory adverse proprietors, or by the owners of a suits between part own- , • •, ,^ e -iii ers, etc. sliip, or the _ majority thereoi, against trie master of a ship, for the ascertainment of the title and deliv- ery of the possession, or for the possession only, or by one or more part owners against the others to obtain security for the return of the ship from any voyage undertaken withoiit their consent, or by one or more part owners against the others to obtain possession of the ship for any voyage, upon giving security for the safe return thereof, the process shall be by an arrest of the ship, and by a monition to the adverse party or parties to appear and make answer to the suit. Promnlgated December Term, 1844, 2 How. vii. •*' 'etjles of peactice in admiealtt. 185 Decisions. ' Proceedings by the purchaser of a ship at marshal's sale to obtain possession, should be by arrest of the ship and admonition to the adverse party to appear and make answer. Blanchard v. The Cavalier, 38 Hunt's Mer. Mag. 335. A part owner may sustain a petitory suit agninst a merel}' fraudulant possessor, without joining the other part owners. The Friendship, 3 Curt. 0. a 426. Material-men cannot interfere in a petitoiy or possessory suit and en- force a lien which they may have upon the vessel. The Taranto, 1 Sprague, 170. An attachment of the vessel at common law is no obstacle to a decree in a petitory or possessory suit. lb. A court of admiralty has no authority to decree the possession of a ship to her general owners on their libel alleging that the charterers have failed to fulfill the contract on their part, tlie charter being one which gave possession and control of the ship to the charterers for a time cer- tain, with no condition of forfeiture on a breach. The Prometheus, 1 Lowell, 491. The fact that the master claims a lien on the vessel furnishes no ground for his refusal to deliver the vessel to her owners, and if he does refuse the court may order such delivery. Muir v. The Brig Brisk, 4 Ben. 253. In case of a dispute between part owners of a steamboat as to her employment, a court of admiralty will not decree a sale of the whole boat at the instance of the minority interest. Lewis v. Kinney, 5 Dill. 159. Nature of the stipulation which the majority interest, wishing to em- ploy the boat, may be required to give for the protectiim of the minority interest, discussed. lb. The courts of the States have concurrent jurisdiction with the courts of the United States over suits for the possession of ships, even where the title of one of the parties was derived under a marshal's deed. Daily V. Doe, 3 Md. JR. 903. Though a bond or stipulation with sureties, obtained by libel in the admiralty from the other part owners, is necessary to secure to the dissent- ing part-owner the preservation of his interest in the vessel unimpaired, it is not essential to his exemption from personal liability where he has disclaimed all interest in the voyage by express notice of dissent, and has never ratified or adopted it as his own. Scull v. Raymond, 18 Fed. R. 547. The process under the above rule must be in rem and in personam. The S. C. Ives, 1 Newb. Ad. 205. Rule XXI. In all cases of a final decree for the payment of money, the libellant shall have a writ of execution, in Enforcement of decrees the nature of a fieri facias, commanding the ' "^ P^yn^^"' "^ >"oney. 186 EXILES OP PRACTICE IN ADMIRALTY. marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate, of the defendant or stipulators. See Admiralty Rules 41, 47. Promulgated December Term, 1844, 3 How. vii ; amended December Term, 1861, 1 Black, 6. Statutory Provisions. Sev. Stats, sec. 966. \ Interest allowed on iudgments in circuit and district courts at rate allowed by law of State where court is located. Rev. Stats, sec. 967.] Judgments in circuit and district courts cease to be liens on real estate and chattels in same manner and at like periods as in courts of State where located. Mev. Stats, sec. 985.] Executions to run into all the districts of a State Seij. Stats, sec. 986.] Executions in favor of United States to run in every State and Territory. Jiev. Stats, sec. 987.] Execution stayed in circuit court on conditions. Rev. Stats, sec. 988.] When judgment debtor entitled to a continu- ance of one term. Rev. Stats, sec. 990.] Imprisonment for debt abolished where same abolished by laws of State, and all modifications, conditions and restric- tions adopted. Rev. Stats, sec. 991.] Discharge from arrest or imprisonment on mesne or final process according to law of State. Rev. Stats, sec. 993.] Privileges of jail limits same as by laws of State. Rev. Stats, sec. 993.] Goods taken on fieri facias, how appraised. Hev. Stats, sec. 994.] Death of Marshal after levy or after sale. Rev. Stats, sec 995.] Moneys paid into court, where and how de- posited. Rev. Stats, sec. 996.] How moneys deposited to be withdrawn. Decisions. The real estate of a surety is subject to an execution in the admiralty. The Kentucky, 4 Blatch. 448. Since the adoption of admiralty rule 48 (now 47) there has been no imprisonment for debt in the admiralty where the law of the State has abolished it ; but independently of that rule, the same result is eiTected by the acts of 1839 and 1841 (Rev. Stats, sec. 990). lb. No execution can issue until the entry of a formal decree awarding a recovery to the libellant. Harris v. Wheeler, 8 Blatcli. 81. Execution issues against stipulators summarily upon decree rendered against their principals ; and no notice is required of a decree other than by taking steps to enforce it. Gaines v. Travis, 1 Abb. Ad. 433. A decree cannot be enforced by sequestration, the only mode being that prescribed by admiralty rule 31. The Blanche Page, 16 Blatch. 1. ETJLES OF PKACTICE IN ADMIEALTT. 187 Stipulators for a definite amount are only bound to make good the liability of their principal to that amount, unless they have been guilty of default and contumacy, when they may be held for costs and interest occasioned by such default. The Wanata, 95 U. 8. 600, and cases cited. Goods in the possession of a collector of customs and detained for the payment of duties, may be sold subject to the rights and claims of the government for such duties and expenses. 250 Tons of Salt, 5 Fed. R. 216. Admiralty rule 21 does not authorize a personal execution against the claimants in a suit in rem except against such as have signed the stipu- lation given to release the vessel. Atlantic Mut. Ins. Co. ■». Alexandre, 16 Fed. R. 379. KULE XXII. All information^ and libels of information upon seizures for any breach of the revenue, or navigation, informations and libeis or other laws of the United States, shall state ofnavfgat'loS'awJ.'etc* the place of seizure, whether it be on land or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and the district within which the property is brought and where it then is. The information or libel of information shall also propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture, and to give notice to all persons con- cerned in interest to appear and show cause at the return-day of the process why the forfeiture should not be decreed. Promulgated December Term, 1844, 3 How. viii. Decisions. This rule, in connection with admiralty rules 26, 30, 34, and 36, and the practice thereunder, discussed and construed. U. S. «. 25 Barrels of Alcohol, Id Int. Bev. Rec. 17. If the offense charged is an act done with intent to do a thing unlaw- ful or prohibited, the intent and knowledge are substantive parts of the offense, and must be averred in a libel of information in the admiralty. The Schooner Hoppet v. The U. S., 7 CraJicJi, 389. If the seizure be voluntarily abandoned and the property restored before the libel or information be filed and allowed, the district court has no jurisdiction. ■ The Brig Ann, 9 G)-anch, 389. The same technical nicety is not required in a libel or information for a forfeiture, as in indictments at common law. It is sufficient if the 188 RULES OF PRACTICE IN ADMIRALTY; offense be described in the words of the law, and so set forth that, if the allegations be true, the offense must be within the statute. The Samuel, 1 Wlieat. 9. The seizing officer is a party to the suit under the government for ■whom he acted, and is liable for trespass if the suit is dismissed, unless he obtaia the certificate of probable cause provided by the statute. Gelston 0. Hoyt, 3 Wlieat. 246. It is usually sufficient to charge an offense in the words of a statute ; but great particularity is required when the statute is so general as to describe a whole class of persons, and the legislature intended a subdi- vision of that class. The Mary Ann, 8 Wlieat. 380. A libel of information being found insufficient to support a decree, out the evidence tending strongly to prove a violation of tlie law, the Supreme Court remanded the case, with directions to allow an amend- ment, is. An Information is sufficient if it pursues the words of the law, and the charge may be stated in the alternative, if eacli alternative constitutes an offense which is a cause of forfeiture. The Emily and The Caroline, 9 Wheat. 381. If an information in the admiralty clearly set forth an offense within the statute, it is sufficient, although it does not conclude contra formam statuti. (But see the rule above.) The Merino, 9 Wlieat. 391. A count describing an offense in the words of one statute, but alleg- ing it to be an offense against another and different statute, is bad in substance. lb. If a seizure is made on the high seas, or on waters within the juris- diction of a foreign State, the district court for the district into which the property is brought has jurisdiction. lb. The jurisdiction of the district courts over causes of seizure does not attach, unless it is alleged and proved that the property proceeded against was openly and visibly seized prior to the commencement of such pro- ceeding, either within the district where the proceeding is had, or upon the high seas and afterwards brought within the distiict. An objection to the proceeding based upon these grounds may be made in the circuit court, although not taken in the district court. The Fideliter, 1 Abb. IT. 8. 577. A libel for a forfeiture must be particular and certain in all the ma- terial circumstances which constitute the offense ; but, if informal, it may be amended by leave of the court. The Caroline, 7 Oranch, 496 ; S. C, 1 Broch. 384. If the master is joined as a defendant in a suit in rem for a forfeiture, the suit will be discontinued as to him inasmuch as he is entitled to a trial by jury. U. S. ■». The Queen, 11 Blateh. 416. Matters of defense need not be alleged in the libel. The Aurora v. The U. S., 7 Oranch, 382 ; The Margaret, 9 Wlieat. 43,1. In suits in admiralty for penalties enforceable in rem (or violation of the navigation laws, the jurisdiction depends upon the fact and place of seizure, and these must be averred in the libel. U. S. v. One Kaft of Timber, 13 Fed. R. 796. RULES OF PRACTICE IK ADMIRALTY. 189' KULE XXIII. I All libels in instance causes, civil or maritime, shall state the nature of the cause ; as, for example, that it is j.^^^ ^f ]ij,g,g ;„ j^. a cause, civil and maritime, of contract, or of stance causee. tort or damage, or of salvage, or of possession or otherwise, as the case may be ; and, if the libel be in rem, that the property is ■within the district ; and, if in personam, the names and occu- pations and places of residence of the parties. The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer dis- tinctly and separately the several matters contained in each article ; and it shall conclude with a prayer of due process to enforce his rights, in rem or in personam (as the case may re- quire), and for such relief and redress as the court is compe- tent to give in the premises. And the libellant may further require the defendant to answer on oath all Defendant may be re- ■*■ . T T 1 1 • j_ 1 • quired to answer inter- interrogatories propounded by him touching rogatories. all and singular the allegations in the libel at the close or con- clusion thereof. See Admiralty Eules 38, 33. Promnlgated December Term, 1844, 3 How. viii. Decisions. The libel should always by suitable averments show the iurisdiction of the court. Boon ■». The Hornet, Crabbe, 426. Libels should bring all the parties before the court by inserting their names, and should propound the subject matter in articles with certainty and precision, and with averments admitting of distinct answers. The Schooner Boston, 1 Sumner, 339. In causes of damage, the libel should state each distinct act of injury in a distinct article with reasonable certainty of time and place. Tread- well «. Joseph, 1 Sumner, i>90. A libel is informal if it proceed against both the vessel and the owners. Dean v. Bates, 3 Woodb. & M. 87. Every libel for a tort must contain on its face sufficient averments as to place, to show that it is within the admiralty jurisdiction ; otherwise it must be dismissed. Thomas v. Lane, 3 Sumner, 1. It is not necessary to state matters of defense in a libel. The Aurora V. U. S., 7 Granch, 382; The Margaret, 9 'Wheat. 4SA. It is especially important in collision cases that the pleadings should set out clearly and distinctly, though briefly, the facts relied on ; and the court has power, at any stage of the proceedings, to require the par- 190 RULES OF PRACTICE IN ADMIRALTY. ties to supply defects in the pleadings, although counsel can make such corrections only by exceptions filed. The Havre, 1 Ben. 395. Though the owner of a boat and cargo lost by collision has received payment of a part of his loss, he may still maintain a libel, and it is not fatal to his suit that the libel states it to be in behalf of the underwriter. Fritz «. Bull, 12 How. 466. There are no technical rules of variance or departure in pleadings in admiralty. De Nemours ». Vance, 19 How. 163. The rule is well established that a consignee may sue in a court of admiralty, either in his own name as agent, or in the name of his princi- pal. McKinlay ». Morrish, 21 How. 343. An insurer to whom the assured has abandoned the property insured and who has paid the loss, becomes entitled to the rights of the assiired and can maintain a suit in his own name. Mut. Safety Ins. Co. ■». The Cargo of the Ship George, 1 Olcott, 89. An indorsee of a bill of lading may sue in his own name in the ad- miralty. The Schooner Mary Ann Guest, 1 OlcoU, 498. The agent of absent owners may libel in his own name, as agent, or in the names of his principals. Houseman ». The Cargo of the Schooner North Carolina, 15 Peters, 40. A suit in rem for a marine tort may be prosecuted in any district ■where the ofEending thing is found. The Propeller Commerce, 1 Black, 574. The general course of admiralty procedure in this country requires a sworn libel as a foundation for process of arrest or attachment. Martin v. Walker, 1 Abb. Ad. 579. An omission to state some facts in the libel, which prove to be ma- terial but cannot have occasioned any surprise, will not be allowed to work injury to the libellant on appeal, if the court consider the omission as undesigned. The Quickstep, 9 Wall. 665. A libel for collision must state the facts constituting the alleged fault. To allege that the offending vessel " was so carelessly, negligently, un- skiUfuUy and recklessly navigated that," etc., is not sufficient. The H. P. Baldwin, 3 Abb. U. 8. 357. See also Mc Williams «. The Steam Tug Vim, 2 Fed. B. 874. The rule^ of pleading in admiralty do not require all the technical precision which is required at common law, but they require that the cause of action should be clearly set forth, so that a plain and direct issue may be made. Jenks «. Lewis, 1 Ware, 51. In a libel for a marine tort the libellant must set forth in a distinct allegation each separate and distinct wrong on which he intends to rely, and for which he claims damages. Pettingill v. Dinsmore, 3 Ware, 313 ; S. C, 3 N. Y. Leg. Obs. 119. In suits in rem all persons having claims of a like nature against the thing, may join in a single libel for the purpose of having that question decided, whether the claims arise from tort or contract. The Young Mechanic, 3 Ware, 58. RULES OP PRACTICE IK ADMIRALTY. 191 When two libels are filed where one only is required, costs in one only •will be allowed. The R. P. Cliase, 3 Ware, 294. An action for a joint tort against two or more persons, cannot be united with an action for a tort against one separately. Roberts i). Skol- field, 3 Ware, 184. A libel suflBoient under the general maritime law is sufficient in cases arising upon the lakes. The Illinois, 1 Brown Ad. 497. It is unnecessary to aver that the vessel in question is engaged in navigation, or capable of being so employed, lb. It is every day's practice to allow suits in the admiralty to be brought in the name of the assignee of a chose in action. Cobb «. Howard, 3 BlatcJi. 534. Where a supplemental libel is filed before return of process, it be- comes part of the pleadings without further notice to the respondent, and he is bound to answer it. Thomas v. Graj', 1 Bl. & How. 493. A libel filed by the owners of a cargo damaged by collision must con- tain averments showing unequivocally and with reasonable certainty that the libellants had sucli a general or special right of property in the cargo, that by its loss or injury they have suffered damage. Minturn ®. Alexandre, 5 Fed. B. 117. EULB XXIV. Ill all informations and libels in causes of admiralty and maritime jurisdiction, amendments in mat- Amendment of infor- ters of form maybe made at any time, on "-^"o"- "^i I'beis. motion to the court, as of course. And new counts may be filed, and amendments in matters of substance may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose. And where any defect of form is set down by the defendant upon game, where exceptions special exceptions, and is allowed, the court to form allowed. may, in granting leave to amend, impose terms upon the libel- lant. Promulgated December Term, 1844, 3 How. viii. Statutory Provisions. i?««. 8taU. sec. 948.] Circuit and district courts may at any time al- low amendments of process, in their discretion, and upon terms. Rev. Stats, sec. 954.] General power of courts of the United States to allow amendments. Decisions. An amendment by inserting a new substantive defense will be disal- lowed where the statute of limitations has run against it. The Schooner Harmony, 1 Oall. 134. 193 EULES OIT PRACTICE IN ADMIRALTY. The circuit court in cases of appeal is very cautious in admitting new matters of defense or allegation to be introduced, where the facts on ■which they rest are not new, or newly discovered, but were known at or before the hearing in the district court. CofQn ». Jenkins, 3 Btory, 108i An amendment may be made in the circuit court so as to make a claim for damages caused by a vexatious appeal. Weaver v. Thompson, IWaU. C. a 343. If a sentence of forfeiture be reversed for a defective libel, the cause will be remanded to the circuit court, with directions to allow an amend' ment. The Brig Carolina ». U. S., 7 Oranch, 496. A libel defective for want of substantial averments may be amended after reversal of the cause on appeal. The Schooner Anne«. U. S., 7 Craneh, 570. When merits plainly appear, it is the settled practice of tlie Supreme Court, in admiralty, to allow a new allegation to be filed, and for this purpose to remand the cause to the circuit court. The Adeline, 9 Oranch, 344 ; The Mary Ann, 8 Wieat. 380. The circuit court may, upon appeal, allow, by way of amendment, the introduction of a new allegation into an information in admiralty. The Edward, 1 Wheat- 361 ; The Mariana Flora, 11 Wheat. 1. A cause in admiralty will be remanded to the circuit court for an amendment of the pleadings, unless they contain at least some general allegation of the necessary facts to enable the court to proceed. The Divina Pastora, 4 Wlieat. 53. An amendment in an appellate court cannot introduce a new subject of litigation. Houseman v. The Cargo of the Schooner North Carolina, 15 Peters, 40 ; The John Jay, 3 Blatch. 67. The Supreme Court will not allow an amendment by the insertion of a claim for interest so as to make the matter in dispute sufficient to sup- port the jurisdiction. Udall v. The Ohio, 17 How. 17. If a libel improperly join a proceeding in rem with one in personam, an amendment may be allowed. Newell v. Norton, 3 Wall. 357. If a cause be brought on the prize side of the court, a condemnation for a forfeiture cannot be given on the instance side ; but the record may be remanded for an amendment. U. S. v. Weed, 5 Wall. 63; The Watch- ful, 6 Wall. 91. A libel may be amended on motion by striking out unnecessary and impertinent allegations. Am. Ins. Co. b. Jolmson, 1 Bl. c6 How. 1. Where the claimant flies exceptions to the libel, the libellant may move to amend without submitting to the exceptions. The Western Metropolis, 38 How. Pi: 383. The name of a party who has lost his interest in the suit may be stricken out by amendment. The Falcon, 4 Blatch. 367. An amendment will not be permitted in a collision case, whereby the suit will be turning from a proceeding in rem into one in personam. The Zodiac, 5 Fed. B, 330. Amendments are allowed, in the discretion of the court, at any time until the termination of the cause. The Edwin Post, 6 Fed. B. 306. EULES OF PRACTICE IN ADMIRALTY. ' 193 Amenilments of mere form will not entitle the respondent to costs. Olson V. the Edwin Post, 6 Fed. R. 314. An amendment may be allowed, even when the cause is in the hands of a commissioner. The Reuben Dowd, 9 .Bias. 458. Admiralty and revenue causes are amendable in the circuit court, even in matters of substance. Warren ti. Moody, 9 Fed. B. 073. A suit upon a maritime contract commenced by a libel in rem cannot be turned into a suit in personam by amendment, without new process in personam or a general appearance by the respondent. The Monte A., 12 Fed. B. 331. A case on appeal proceeds de novo in the circuit court, and the court may permit amendments to the pleadings. The Morning Star, 14 Fed. B. 866. Etjle XXV. In all cases of libels in personam, the court may, in its dis- cretion, upon the appearance of the defend- Defendant may be re- ant, where no bail has been taken, and no ?orOTttoa^u™exlffins*e8'iS attachment of property has been made to s'^iteiip"«<'°'"i- answer the exigency of the suit, require the defendant to give a stipulation, with sureties, in such sum as bhe court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudication thereof, or by any interlocutory order in the progress of the suit. See Admiralty Rale 35. Promulgated December Term 1844, 3 How. ix. Decisions. The pracliccrof the English admiralty, and the former practice in the district court for the Southern District of New York, in respect to security in suits in personam, reviewed in connection with the eSect of the adop- tion of the above rule. Gardner ». Isaacson, 1 Abb. Ad. 141. The court will not require the defendant to give a stipulation to the action under pain of imprisonment, in a case in which he is not liable to arrest. La. Ins. Co. ». Nickerson, 3 Low. 310. Security for costs will be required in actions in perspnam of all par- ties prosecuting or defending the suit. Kawson ». Lyon, 15 Fed. B. 831. Rule XXVI. In suits in rem, the party claiming the property shall verify his claim on oath or solemn afiBrmation, claimant to verify hia stating that the claimant by whom or on '="'™- whose behalf the claim is made is the true and bona-fide owner, and that no other person is owner thereof. And where the 13 194 EITLES OF PEACTICE IN ADMIRALTY. When claim is made by claim is put in by an agent or consignee, he BiKnee."""* " shall also make oath that he is duly author- ized thereto by the owner ; or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawful bailee thereof for the owner. And, upon put- ting in such claim, the claimant shall file stipulation for costs. , . , , . . , , , . . , a stipulation, with sureties, in such sum as the court shall direct, for the payment of all costs and ex- penses which shall be awarded against him by the final decree of the court, or, upon an appeal, by the appellate court. See Admiralty Eules 10, 11, 34, 35. Promulgated December Term, 1844, 3 How. ix. decisions. After a claim has been admitted, the libellant must file an exceptive allegation, in order to put in issue the claimant's right to appear. U. S. V. 423 Casks of Wine, 1 Peters, 547. Nature of the claimant's formal claim, and what it should contain, discussed. The Adeline, 9 Ovaneh, 344. An appearance and claim waives objections to irregularity of the process to compel appearance. The Merino, 9 Wheat. 391. The court will not, upon a summary application of a claimant, in- quire into damages caufed by an unfounded arrest of his ship. The libellant has a right at any stage of the cause to discontinue the same, and the only penalty to which he can be subjected is the payment of costs. The Brig Oriole, 1 Oleott, 67. Where the attorney in fact of an owner appears as claimant in the absence of the owner, the owner may afterwards, on coming into the jurisdiction, be allowed to make claim and defend in his own name. The Bark La wrens, 1 Abb. Ad. 803. The above rule in connection with admiralty rules 23, 30, 34 and 36, and the practice thereunder discussed and construed. U. S. v. 35 Barrels of Alcohol, 10 Int. Bev. Eea. 17. A court of admiralty may order a ship libelled to be delivered to the general owners, if the charterers who are entitled to possession refuse to claim her. The Prometheus, 1 Imw. 491. A motion to strike the claim and answer from the files, on the ground that it appeared on the hearing that the claimant had no interest in the prope.ty at the time the answer was filed, will not be entertained. The Prindiville, 1 Brown Ad. 485. If the claim is not put in. issue, and the libellant goes to a hearing upon the merits without objection, it is an admission that the claimant is rightly in court, lb. A party will not be permitted to amend his claim by setting forth that at the time the cause of action arose he was the true and bona-flde ' RULES OF PRACTICE IK ADMIEALTT. 195 owner, and had agreed with the present owner to discharge all liens against her. lb. The right of a party to appear and defend a suit in rem must be put in contestation, if at all, before the hearing, and then only by way of ex- ception, if the disability appear on the face of the claim, or an exceptive allegation putting the right in issue, if it does not so appear. lb. The owner of the property should make the claim and answer if pos- sible. But the court may permit this to be done by a representative. Matter of Stover, 1 Curt. C. 0. 201. Claims in prize causes should be made by the parties themselves, if within the iurisdiction, and not by mere agents, inasmuch as the captors have a right to the answers of the claimants on oath. The Schooner Lively. 1 Oall. 314 Objection to the right of a claimant to intervene in an admiralty cause must be taken by preliminary exception to his competency. Tlie objec- tion will not be heard after the cause is at issue and brought to a hearing. Thomas v. The Steamboat Kosciusco, 11 N. T. Leg. Obs. 38. A consul may make claim in behalf of subjects of his county in prize causes. The London Packet, 1 Mas. 14. (See also the Ship Adolph, 1 Curt. C. G. 87.) A person becoming interested in the subject of the litigation during its pendency may be permitted to come in and protect his interest, if ap- plication is made within a reasonable time. The Jenny Lind, 4 Blaich. 518. No one can intervene and defend a suit in rem unless it appears by the answer and claim that he has a lien or proprietory interest in the ves- sel seized. The R. W. Skillinger, 1 Flippin, 436. A "claimant" under the above rule is one who assumes the position of a defendant, and demands a redelivery to himself of the property seized. This is different from an "intervenor " under admiralty rule 34, the latter being one who seeks only the protection of his interest in the property, or the payment of his claim, in the ultimate disposition of the case. The Two Marys, 13 Fed. R. 152. A person may have his election to appear as a claimant or merely as an intei-venor ; but having made claim and given bond for the libellant's demand, he has not a right, as a matter of course, afterwards to change _ his position to that of an intervenor merely, lb. The owner of property seized in a suit in rem is not recognized un- til he comes in, makes, claim, and defends. The J. W. French, 13 Fed. B. 916. EULB XXVII. In all libels in causes of civil and maritime jurisdiction, whether in rem or in personam, the answer verification and form of of the defendant to the allegations in the '"'**''^''- libel shall be on oath or solemn aflBrmation ; and the answer shall be full and explicit and distinct to each separate article 196 EULES OF PRACTICE IN ADMIKALTT. and separate allegation in the libel, in the same order as num- bered in the libel, and shall also answer in like manner each interrogatory propounded at the close of the libel. See Admiralty Eule 48. Promulgated December Term, 1844, 3 How. ix. decisions. The answer should meet each material allegation of the libel with an admission, a denial, or a defense. The Schooner Boston, 1 Sumner, 338. When a defense is put in byway of justification, it must admit the facts. Treadwell v. Joseph, 1 Sumner, 390. ' The answer of the respondent on oath in reply to interrogatories doea not constitute positive evidence in his own favor. Its true effect is either to furnish evidence for the other party, or, in a case doubtful in point of proof, to turn the scale in favor of the respondent. Cushman V. Eyan, 1 Story, 91. The answer should be verified by oath. Gamwell v. Skinner, 3 GaU. 45. There are no technical rules of variance or departure in pleading in the admiralty. Dupont de Nemours v. Vance, 19 Bow. 163. Answers to special interrogatories are considered as analogous to the decisory oath of the civil law, and no more evidence for one party than the other, and will not be conclusive for either, where the weight of the other proof in the case preponderates against the fact sworn to, or when, by self-contradiction, suspicion attaches to the fidelity of the answers. The L. W. Goldsmith, 1 Mwb. Ad. 123. The rule prevailing in the chancery courts, that the answer of the de- fendant, when responsive to the bill, is equal to two disinterested wit- nesses, or to one witness with other circumstances of equivalent force, does not prevail in the admiralty courts. Eads v. The H. D. Bacon, 1 Ifewb. Ad. 274. Nor does the same rule prevail even when the answer is responsive to interrogatories propounded. Jb. Where a master of a vessel is sued iu the admiralty for punishing a seaman, if he intends to rely upon proof that the seaman was habitually careless, disobedient, or negligent in his conduct, such matter must be set up in the answer. Pettingill v. Dinsmore, 3 Ware, 313. If the defendant wishes to recoup damages against the libollant, such damages must be alleged in his answer and be accompanied with an ap- propriate prayer for relief. The Reuben Doud, 9 Bits. 458. It M'ould seem that an allegation in an answer that the respondent is "ignorant " of the matter alleged in the libel, is sufficient. The City of Salem, 10 Fed. li. 843. New matter in an answer constituting a defensive allegation should be articled and pleaded separately, and not blended with the response to any article of the libel. The Whistler, 13 Fed. B. 395. iEULES OF PRACTICE IN ADMIKALTY.l 197 BULE XXVIII. The libellant may except to the sufficiency, or fullness, or distinctness, or relevancy of the answer to the articles and interrogatories in the libel ; ^»^p«'"'»'<"'"»^«'- and, if the court should adjudge the same exceptions, or any of them, to be good and valid, the court shall order the de- fendant forthwith, within such time as the court shall direct, to answer the same, and may further order the defendant to pay such costs as the court shall adjudge reasonable. See Admiralty Hale 36. Promulgated December Term, IS-H, 3 How. ix. Decisions. Exceptions to a pleading in the admiralty have the effect of a de- murrer, and also of a motion to make the pleading more definite and certain. The Transport, 1 Ben. 86. Formal objections cannot be entertained at the hearing. Furness ». Magown, Ole. 55. EULE XXIX. If the defendant shall omit or refuse to make due answer to the libel upon the return-day of the process, or Default in making an- other day assigned by the court, the court shall ^""^'' .pronounce him to be in contumacy and default ; and thereupon the libel shall be adjudged to be taken pro confesso against him, and the court shall proceed to hear the cause ex-parte, and ad- judge therein as to law and justice shall appertain. But the court may, in its discretion, set aside the default, getting aside default, and, upon the application of the defendant, o" payment of costs, admit him to make answer to the libel, at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave therefor. See Admiralty Rule 40. Promulgated December Term, 1844, 3 How. x. Decisions. Upon a motion to vacate an order pro confesso, and for leave to answer, the respondent must satisfactorily account for laches, and ex- hibit by answer or affidavit a meritorious defense. Scott ». The Young America, 1 Newh. Ad. 107. If the defendant refuses to answer any interrogatory propounded by order of the court, the charge in the libel to which the interrog- atory relates will be taken pro confesso. The David Pratt, 1 Wave, 495. .' 198 KULES OF PEACTICE IN ADMIRALTY.' If it appears that the defendant has neglected to put in an answer through ignorance of the practice of the court, and is at the time of the hearing absent, the court is not precluded from receiving any evi- dence which his counsel may offer as amicus curiae, lb. A default in a revenue case establishes the fact alleged in the in- formation, and justifies a decree of condemnation. Miller v. U. S., 11 WaM. 268. RtTLB XXX. In all cases where the defendant answers, but does not When further answer answer fully and explicitly and distinctly to may be compelled. ^-q ^^^ matters in any article.of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court may, by attachment, compel the defend- ant to make further answer thereto, or may direct the matter of the exception to be taken pro confesso against the defendant, to the full purport and effect of the article to which it purports to answer, and as if no answer had been put in thereto. Promulgated December Term, 1844, 3 How. i. EULB XXXI. The defendant may object, by his answer, to answer any Defendant need not an- allegation or interrogatory conta'ined in swer matter which will it, tv i i ■ i, -n i • x _ criminate him, etc. the libel which Will cxpose liim to any prosecution or punishment for a crime, or for any penalty or any forfeiture of his property for any penal offense. Promulgated December Term, 1844, 3 How. ^. Statutory Provisions. Bev. Stats., sec. 860.] Pleadings, discovery or evidence in judicial proceedings not to he used in criminal proceedings^ except prosecutions for perjury. Decisions. The above rule is to be interpreted as carrying into effect the fifth amendment of the Constitution, and the corresponding rule of law for- bidding the compulsory disclosure of liability to a pecuniary forfeiture or penalty. Pollock «. The Laura, 5 Fed. B. 133. Since the passage of the act of l^eb. 25, 1868 (Rev. Stats., sec. 860), preventing evidence in judicial proceedibgs from being used in criminal prosecutions, the privilege of the witness of not being compelled to an- swer incriminating questions will no longer be upheld. U. 8. v. Mc- ,Ca.rthY, 18 Fed. B. 87. TIULES OF PEACTICE IN ADMIRALTY. 199 Rule XXXII. The defendant shall have the right to require the personal answer of thelibellant upon oath or solemn Defendant may proponnd affirmation to any interrogatories which he lant™^* °"^^ may, at the close of his answer, propound to the libellant touching any matters charged in the libel, or touching any matter of defense set up in the answer, subject to the like ex- ception as to matters which shall expose the libellant to any prosecution, or punishment, or forfeiture, as is provided in the thirty-first rule. In default of due answer by the libel- lant to such interrogatories, the court may adjudge the libellant to be in default, and dismiss the libel, or may compel his an- swer in the premises, by attachment, or take the subject-matter of the interrogatory pro confesso in favor of the defendant, as the court, in its discretion, shall deem most fit to promote public justice. See Admiralty Kale 23, 33. Promulgated December Term, 1844, 3 How. x. Decisions. Each party has a right to require the personal answer of the other, under oath, to any interrogatories touching the matter in issue. The David Pratt, 1 Ware, 495 ; Gammell v. Skinner, 3 Oall. 45. Answers to special interrogatoi'ies are considered as analogous to the decisory oath of the civil law, and no more evidence for one party than the other, and will not be conclusive for either, when the weight of the other proof in the case preponderates against the fact sworn to, or when, by self contradiction, suspicion attaches to the fidelity of the answers. The L. B. Goldsmith, 1 Newb. Ad. 133. EULE XXXIII. Where either the libellant or the defendant is out of the COUntrV. or unable, from sickness or other where either party absent •" .or sick, etc., answer to casualty, to make an answer to any inter- interrogatories may be •' IX- !.• I dispensed with, era com- rogatory on oath or solemn amrmation at mission may be awarded, the proper time, the court may, in its discretion, in further- ance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defend- ant when and as soon as it may be practicable. See Admiralty Kales 23, 33. Promulgated December Term, 1844, 3 How. xi. 200 EULES OF PEACTICE IN ADMISALTY.' Rule XXXIV. If any third person shall interyene in any cause of admir- How third parties may alty and maritime jurisdiction in rem for his interveue. q^jj interest, and he is entitled, according to the course of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable al- legations, to which, if admitted by the court, the other party or parties in the suit may be required, by order of the court, to make due answer ; and such further proceedings shall be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervener shall be Security to abide decree, required, upon filing his allegations, to give and pay costs, etc. g, stipulation, with Sureties, to abide by the final decree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court. See Admiralty Rules 26, 35. Promulgated Dpcfimber Term, 1844, 3 How. xi. Decisions. This rule, together with admiralty rules 33, 36, 30 and 36, construed and applied. U. 8. v. 35 Barrels of Alcohol, 10 Int. Rev. Bee. 17. A mortgagee of a ship may come In and defend his interest in the ship sued, but can rely only on defenses open to the owner of the ship. The Chieftain, Brown. & Lush. 104. An insurer of a ship may intervene and defend (on terms), if he shows a substantial interest which may be prejudiced by the plaintiff proceed- ing to judgment. The Regina del Mare, Brown & Lush. 315. An underwriter, who has accepted an abandonment which divests the original claipant of all interest, may be admitted to intervene and be- come the dominus litis in a suit in rem. The Brig Ann C. Pratt, 3 Curt. C. a. 340. But underwriters to whom an abandonment is made, but which has not been accepted, will not be permitted to defend. The Ship Packet, 3 Mas. 355 ; The Schooner Boston, 1 Sumner, 338 ; The Ship Henry Ew- banli, 1 Sumner, 400. A creditor who has attached the thing in suit against the owner be- f oie seizure, may intervene in a proceeding for a forfeiture. The Mary Ann, 1 Ware, 104. A mortgagee of a vessel has a right to intervene in an admiralty suit for the protection of his interest. The Old Concord, 1 Brown Ad. 370. Material-men cannot intervene in a petitory or possessory suit, to en- force a lieu which they may have on the vessel. The Taranto, 1 Sprague, 170. EXILES OF PEACTICE IN ADMIRALTY. 201 An " intervenor," under this rule, is one who, -without demanding the redelivery of the property seized, seeks only the protection of his interest in it, or the payment of his claim in the ultimate disposition of the case. The Two Marys, 13 Fed. R. 153 ; S. C, 16 Fed. B. 697. EuLB XXXV. The stipulations required by the last preceding rule, or on appeal, or in any other admiralty or mari- aii stipulations to be given time proceeding, shall be given and taken Seflm.™ ""'"''"^ *° in the manner prescribed by rule fifth as amended. See Admiralty Eules 5, 6. Promulgatea December Term, 1844, 3 How. xi; amended May 6, 1872, 14 Wall. xi. EuLB XXXVI. Exceptions may be taken to any libel, allegation or answer for surplusage, irrelevancy, impertinence, „ „ T 1 J 'i! J! , Exceptions to form. or scandal ; and if, upon reference to a master, the exception shall be reported to be so objectionable, and allowed by the court, the matter shall be expunged, at the cost and expense of the party in whose libel or answer the same is found. See Admiralty Eule 28. Promulgated December Term, 1844, 3 How. xi. Decisions. This rule, together with admiralty rules 33, 36 and 30, construed and applied. U. 8. v. 25 Barrels of Alcohol, 10 Int. Bev. Bee. 17. Exceptions will he held to have been waived on appeal if not found or noted on the record. The Vaughan and Telegraph, 14 Wall. 258. Formal objections to the suit cannot be taken on the final hearing. Furness ». The Brig Magoun, Olc. 55. The nature and office of exceptions defined. The California, 1 Saw. 463. Exceptions cannot be taken after joining issue upon the libel, and fil- ing a cross libel. The Fifeshire, 11 Fed. B. 743. Exceptions for insufficiency and impertinence are taken for entirely different causes, and therefore should not be taken to the same matter either conjunctively or disjunctively. The Whistler, 13 Fed. B. 295. EuLE XXXVII. In cases of foreign attachment, the garnishee shall be re- quired to answer on oath or solemn affirma- Garnishee to answer in- tion as to the debts, credits, or effects of the te"ogat<"ies ;■ refusal. defendant in his hands, and to such interrogatories touching 202 EULES OP PEACTICE IN ADMIKALTY. the same as may be propounded by the libellant; and if he shall refuse or neglect so to do, the court may award com- pulsory process in personam against him. If he admits any Effects in his hands to debts, or Credits, or effects, the same shall be held subject to event ,,-.-.. -,, ttii_l j.i of suit. be held in his hands, liable to answer the exigency of the suit. See Admiralty Kale 2. Promulgated December Term, 1844, 3 How. xi. Decisions. On default of one summoned as garnishee, the libellant is not entitled, under the above rule, to have execution in personam against him. The compulsory process provided for by the rule is only to compel an answer. McDonald v. Renncl, 11 Law. Rep. IT. 8. 157. It is the right and duty of the garnishee to put in an answer, and the libellant has not a right to contest it. Shorey v. Kennel, 1 Sprague, 418. If the garnishee makes default, execution does not, in the first in- stance, go against him personally, or his property, but only against the debts, effects or credits of the principal in his hands, and upon such de- fault the libellant may have compulsory process to compel an answer. lb. If the libellant does not need a disclosure from the garnishee, but can satisfy the court by affidavits that the garnishee has debts, effects, or credits in his hands, the libellant may have execution against them, with out an answer having been put in. lb. Practice in cases of garnishment discussed. *lb.; Smith v. Miln, 1 Abb. Ad. 373 ; Gushing v. Laird, 4 Ben. 70 ; The Oliver A. Carrigan, 7 Fed. B. 5,07. The answer of the garnishee is not conclusive as between two attach- ing creditors. Dent v. Radman, 1 Fed. B. 882. Where persons summoned as garnishees are adjudged by the court to have a fund of the principal defendant in their hands, they cannot ap- peal until there is an award of execution against them, and then they must appeal from the last decree only. Gushing v. Laird, 107 V. S. 69. EuLB xxxviir. In cases of mariners' wages, or bottomry, or salvage, or the In snite in rem, freight, other proceedings in rem, where freight or etc., attached may be , ^ ° brought into court. other proceeds of property are attached to or bound by the suit, which are in the hands or possession of any person, the court may, upon due application, by petition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should* not be brought into court to answer the exigency of the suit ; and if no sufficient cause be shown, the court may order EULES OF PRACTICE IN ADMIEALTT. 203' the same to be brought; into court to answer the exigency of the suit, and, upon failure of the party to comply with the order, may award an attachment, or pther compulsive process, to compel obedience thereto. See Admiralty Rule 8. Promulgated December Term, 1844, 3 How. xii. Decisions. Seamen have a paramount lien on the freight earned by the voyage for the payment of their wages, and this lien will be enforced as against the sheriif who has previously attached the freight under process issued from the State court. The Sailor Prince and her Freight, 1 Ben. 284. It is not a good defense to a petition that freight may be brought into the admiralty court to answer the exigency of suits for mariner's wages and materials which are a charge on the freight, that the consignee be- fore the libels were filed, was summoned as trustee or garnishee of the ship-owner in a court of common law. The Caroline, 1 Low. 173. Freighters have not, under ordinary circumstances, a right to give bail for freight which they acknowledge to be due, but should pay the same into court. The Freight Money of the Monadnock, 5 Ben. 357. Money to secure contribution in general average, deposited to obtain the release of cargo, may be brought into court under the above rule in a suit for salvage. The Queen of the Pacific, 18 Fed^ B. 700. EuLE XXXIX. If, in any admiralty suit, the libellant shall not appear and prosecute his suit, according to the course pismiseai of suit it •■^ ' 1 m 1 T T libellant fails to prose- and orders of the court, he shall be deemed cute. in default and contumacy ; and the court may, Upon the ap- plication of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs. Promulgated December Term, 1844, 3 How. xii. Practice. Where, under the rules of the court, the defendant has an equal right with the libellant to move the trial of a cause, delay on behalf of the libellant in bringing it to hearing will not authorize the dismissal of the libel. The Mariel, 6 Fed. B. 831. EuLB XL. The court may, in its d,iscretion, upon the motion of the defendant and the payment of costs, res- Default of^dejendan^™ eind the decree in any suit in which, on any time within ten days. account of his contumacy and default, the matter of the libel 204 EULEs' OP peactioe: in; admiralty' shall have been decreed against him, and grant a rehearing thereof at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premises as the court may direct. See Admiralty Eule 29. ' Promnlgated December Term, 1844, 3 How xii. Decisions Although a default he irregularly taken against a defendant and an order of reference ohtained thereon, the subsequent appearance of the defendant before the commissioner, without objection to the proceedings and taking adjournments, will be held a waiver of the irregularity. Gaines «. Travis, 1 Abh. Ad. 397. Upon a motion to vacate an order pro confesso, and for leave to an- swer, the respondent must satisfactorily account for his laches, and ex- hibit by answer or aflBdavit a meritorious defense. Scott v. The Propeller Young America, 1 Newb. Ad. 107 ; Northrup d. Gregory, 2 Abb. TJ. B. 503. A motion to open a decree entered by default must be made within ten days after entry ; otherwise it must be denied. Northrup v. Gregory, 2 Abb. U. a. 503. It seems that a court of admiralty has no general power, at least after the expiration of the term, to set aside a final decree on the ground of oversight, inadvertance or mistake. The Illinois, 1 Brown Ad. 13. The ten days allowed by admiralty rule 40 for setting aside a decree, are restrictive, and a motion made after this time cannot be entertained. lb. A summaiy rehearing on motion can be granted only during tiie term at which the decree was made. Snow v. Edwards, 3 Low. 373. In cases of default, the summary jurisdiction to rehear is limited to ten days irrespective of terms of court, lb. j After the term has passed in ordinary cases, and after ten days in de- faulted cases, the court can entertain a libel of review, lb. KULB XLI. All sales of property under any decree of admiralty shall Sales by marshal, and ^6 made by the marshal or his deputy, or disposition of proceeds. ^^^iGV proper officer assigned by the court, where the marshal is a party in interest, in pursuance of the orders of the court ; and the proceeds thereof, when sold, shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law. See Admiralty Eules 1, 21, and statutes and decisions noted thereunder. Promulgated December Term, 1844, 3 How. xii. EULES OF PRACTICE IN ADMIRALTY. 205 Decisions. If, after a sale by the marslial, the purchaser obtains possession of the property without paying the price, the court will enforce by sum- mary process either a redelivery of the property in speciie, or the pay- ment of the purchase money. The Phebe, 1 Ware, 363. A vessel sold under a final decree in a proceeding in rem is sold free and clear of all incumbrances upon the vessel. All liens or incimibrances upon the vessel are by such sale transferred from the vessel to the pro- ceeds, and if the purchaser holds a mortgage against the vessel, his claim may also be allowed out of the proceeds. In Re Surplus and Remnants of the Steamboats Syracuse, McDonald and Ohio, 9 Ben. 348. It is the duty of the marshal to bring the proceeds of sale into court, with an account. The Avery and Cargo, 2 Oall. 308. And if the sale be made on credit, in pursuance of the decree, and security be taken, the papers executed as security may be required to be brought into court. Walls «. Thornton's Adm'r, 2 Brock. 423. Goods in the hands of a collector of customs to secure the payment of duties may be sold by the marshal at the suit of a private creditor, subject, however, to the payment of duties and expenses due the gov- ernment. 250 Tons of Salt, 5 Fed. B. 216. To invalidate the sale of a vessel on the ground of fraud, it must ap- pear that the proceedings were both collusive and fraudulent, and that the purchaser was cognizant of the fraud. The Garland, 16 Fed. B. 283. EULE XLII. All moneys paid into the registry of the court shall be de- posited in some bank designated by the Moneys to be deposited court, and shall be so deposited in the name {JJ, jo'iat order'of jifdge of the court, and shall not be drawn out, *"* ''^'■^• except by a check or checks, signed by a judge of the court and countersigned by the clerk, stating on whose account and for whose use it is drawn, and in what suit and out of what fund in particular it is paid. The clerk cienc to keep a book con- ^ '■ , • • taming account of checks, shall keep a regular book, contammg a etc. memorandum and copy of all the checks so drawn and the date thereof. See Admiralty Eiile 43. Promalgated December Term, 1844, 3 How. xiii. Decisions. Where moneys belonging to the registry of the court are withdrawn from it without authority of law, the court can, by summary proceed- ings, compel their restitution ; and any one entitled to the moneys may apply to the court by petition for a delivery of them to him. Osborn «. U. S., 91 U. 8. 474 206 RULES OF PltiCTICE IN ADMIEMLTY. In disposing of a fund in its registry, it is competent for a court of admiralty to require proof of tlie right of a claimant to any part of the same. Dent v. Radmann, 1 Fed. B. 883. EULE XLIII. Any person having an interest in any proceeds in the reg- Petition for distribution istry of the court shall have a right, by of proceeds in the regis- , . . ., t j • x try of court. petition and summary proceeding, to inter- vene pro interesse suo for a delivery thereof to him ; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to de- cree therein according to law and justice. And if such peti- costs in case of dismissal, tion or claim shall be deserted, or, upon a or on default. hearing, be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party. Sec Admiralty Rule 43. ]?romnlgated December Term, 1844 3, How. xiii. Decisions. When a vessel is arrested by a lieu creditor, all other such creditors may intervene by summary petition without having the vessel arrested again, and have their claims allowed. The Young Mechanic, 3 Ware, 58. Money in the registry of a court attached in a suit in personam may be applied to the satisfaction of any decree obtained in such suit. Boyd ■». Urquhart, 1 Sprague, 423. The court will not, on the application of a creditor, appropriate a sum of money in court decreed to be paid to the iibellant, to the satis- faction of a debt due such creditor from the Iibellant. Brackett ». The Hercules, Oilp. 184. An administrator appointed in another State, who has not taken out letters within the jurisdiction of the court, may intervene in behalf of his intestate, in a suit in rem against a vessel which was the property of the intestate at his death. The Boston, 1 Bl. & H. 309. The right to proceed against surplus proceeds holds good where a party has the right to sue in personam, though not in rem, ou the ground that the court has jurisdiction of the parties, and that the subject or fund is already under its control. The Stephen Allen, 1 Bl. & H. 175. The district court in admiralty has the right to exercise equity powers in the distribution of a surplus arising from a sale under decree to par- ties entitled to such surplus, whether by federal or state law ; and it is immaterial whether such parties have maritime liens. The reason is, because there is a fund in court which cannot be taken out except by the court's order, and parties having rights in the vessel can only exercise them by coming into court. The Skylark, 5 Bisa. 251. EULES OF PRACTICE IN ADMIEALTT. 207 Libels or petitions against a vessel are heard in any order in which they are brought up. Until all libels and petitions are heard, the pro- ceeds are not distributed except to those having an undoubted priority, such as seamen and salvors ; and this not without notice to all others. The Fanny, 3 Low. 508. One who obtains the first decree has no priority over others whose liens are in themselves of equal degree wilh his. Ih. But in case of a collision, where one of two parties injured institutes proceedings against the vessel in fault, and at his own expense prosecutes his suit to condemnation of the vessel, or of the proceeds of her sale in the registry, another party injured by the same collision, who has con- tributed nothing to the litigation to establish the vessel's liability, but has stood by during that contest, and taken no part in it, cannot share in the proceeds of the sale of the vessel, until the claim of the first party is satisfied in full. Woodworth v. Insurance Co., 5 Wall. 87. Under the above rule, the party entitled to remnants or sui-plus in court, can only obtain it by petition or motion, and any one having an interest has a right to intervene pro interesse suo, whether his application involves thQ settlement of partnership accounts or not. The L. B. Goldsmith, 1 Newi. Ad. 133. A lien created by state law may be satisfied from proceeds in the reg- istry. The Mary Zephyr, 6 Saw. 437. Any person having a specific lien on, or vested right in, a surplus fund in court, may apply by petition for the protection of his interest under the 43d admiralty rule. The Lottawanna, 31 Wall. 558. t The district court can marshal the fund in its registry only between lienholders and owners. The Edith, 94 U. 8. 518. Where a libel is not filed until after the report classifying claims is made, it should be postponed until after all other claims are paid. The City of Tawas, 3 Fed. B. 170. Rules for the marshalling and payment of claims stated. lb. Where the owner and mortgagee of a ship both appear and file an- swers, it is competent for each to claim in his answer, or by separate petition, that the proceeds, after the payment of the libellant's claim, be paid to him. The Ship Panama, Olc. 343. EuiE XLIV. In cases where the court shall deem it expedient or neces- sary for the purposes of justice, the court Reference to commis- may refer any matters arising in the pro- «i°°«''^- gi-ess of the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report therein. And such commissioner or commissioners shall have and poss- ess all the powers in the premises which p^^ers of commission- are usually given to or exercised by masters ers on reference. in chancery in reference to them, including the power to ad- 208 RULES OF PEACTICE IN ADMIRALTY. minister oaths to and to examine the parties and witnesses touching the premises. Promulgated December Term, 1844, 3 How. xiii. I Decisions. If damages are assessed in gross by commissioners, without any speci- fication of items, the decree ■will be reversed, although the report of the commissioners was not excepted to in the court below. Murray v. The Charming Betsy, 3 Graneli, 64. It is not necessary to take exceptions to the report of the commis- sioner, if the errors appear upon the face of the report. Himely «. Rose, 6 Vranck, 313. The report of a commissioner can be reviewed in the Supreme Court only in so far as specific objections appear by the record to have been taken to it in the court below. The Ship Potomac, 2 Black, 581. Parties excepting to tlie report of a commissioner should state with reasonable precision the grounds of their exceptions, with the mention of such other particulars as will enable the court to ascertain, without unreasonable examination of the record, what the basis of the exception is. Ex gr. : If the exception be that the commissioner received " im- proper and immaterial evidence," the exception should show what the evidence was. If, that "he had no evidence to justify his report," it should be set forth what evidence he did have. If, that "he admitted the evidence of witnesses who were not competent," it should give their names, and specify why they were incompetent, what they swore to, and why their evidence ought to have been rejected. The Commander in Chief, 1 Wall. 43 The report of the commissioner has not the effect of a verdict. The court may not concur in his conclusions upon the facts reported, and may modify or wholly reject it. Sturgis v. Clough, 1 Wall. 369. Objections to the amount of damages as reported by a commissioner and awarded by the court, will not be entertained in the Supreme Court, where it appears that neither party excepted to the report of the com- missioner. The Vanderbilt, 6 Wall. 225. An objection to the regularity of a commissioner's report cannot be brought forward by exception to the report, but should be raised by motion founded on the irregularity. The Columbus, 1 Abb. A.d. 37. An exception to a commissioner's report draws in question only the reasons upon which the report is founded, lb. The legality or propriety of an order of reference cannot be im- peached upon exception to the report. The Rhode Island, 1 Abb. Ad. 100. Where upon reference to a commissioner, there is a conflict of testi- mony upon a question of fact, the court will adopt the conclusion of the commissioner, unless there is a palpable preponderance of evidence against it. Holmes v. Dodge, 1 Abb. Ad. 60. EULES OF PBACTICB IN ADMIRALTY. 209 The commissioner's report should state facts and conclusions, and not detail the evidence at length. The Trial, 1 Bl. & H. 94. The practice of calling in sea-faring men to assist the judgment of the court, has never been sanctioned in this country. The Waterloo, 1 Bl. & R. 114. The report of a commissioner will not be disturbed, unless it be shown that he is wrong. Taber v. Jenny, 1 Sprague, 315. The propriety of the action of a commissioner in refusing to allow a person to be sworn to contradict testimony previously given, cannot be raised by an exception to the report, but must be raised by an applica- tion to the court before the report is made. The E. 0. Soranton, 4 Ben. 127. Nor can objections to the admission of evidence before a commis- sioner be raised by exception to his report. The Transit, 4 Ben. 138. Objections taken to the rulings of a commissioner as to the admission of evidence in the' course of a reference to ascertain damages, may be brought up for review on exceptions, after the report is made, or, if necessary, may be brought up on a certificate of the commissioner pend- ing the reference. The Brigantine Beaver, 8 Be?i. 594. A case mainly involving an accounting may properly be referred to a commissioner. Shaw v. Collier, 18 Eow. Pr. 338 ; S. C, 4 Blateh. 370. EuLE XLV. All appeals from tlie district to the circuit court must be made while the court is sittinff, or within when and how appeals ° to the circuit court are to such other period as shall be designated by be taken. the district court by its general rules, or by an order specially made in the particular suit ; or in case no such rule or order be made, then within thirty days from the rendering of the decree. See Sap. Ct. Eules 8, 39, and statutes and decisions noted thereunder. See also Admiralty Rules 49, 50, 52. Promulgated December Term, 1844, 3 How. xiii. Statutory Provisions. ReD. Stats, sec. 681. J Appeals from district court to next term of circuit court allowed in admiralty causes, where matter in dispute exceeds fifty dollars exclusive of costs. R&v. Stats, sec. 633.] Copies of proofs, entries and papers to be cer- tified to appellate court. Rev. Stats, sec. 693. J Appeals in equity and admiralty causes from circuit to Supreme Court, where the matter in dispute exceeds two thous- and dollars exclusive of costs. (Note.— By the Act of Feb. 16, 1875, ch. 77, sec. 3, 18 Stat. L. 316, the matter in dispute necessary to a review by the Supreme Court is raised to five thousand dollars, exclusive of costs.) Bev. Stats, sec. 695.] Appeals in prize causes from district to Su- 14 210 BtTLES OF PRACTICE IN ADMIKALTT. preme Court, where the matter in dispute exceeds two thousand dollars exclusive of costs, and without reference to matter in dispute on certifi- cate of the district judge. (Note.— By the Act of Feb. 16, 1875, ch. 77, sec. 3, 18 Stat. L. 316, the matter in dispute necessary to a review by the Supreme Court is raised to five thousand dollars, exclusive of costs.) Rev. Stats, sec. 701.] Supreme Court may affirm, modify or reverse decree of circuit court or district court in prize causes, and shall remand the cause to inferior court for execution. Rev. Stats, sec. 968.] If libellant recovers less than three hundred dollars on appeal, exclusive of costs, he shall not be allowed, but may be compelled to pay costs. Rev. Stats, sec. 1000.] Bond to be given on appeal from circuit to Supreme Court. Rev. Stats, sees. 1005, 1006.] Amendments may be allowed by Su- preme Court. Rev. Stats, sec. 1007.] Supersedeas to be obtained by serving writ of error within sixty days after judgment, and giving security ; and where a supersedeas may be obtained, execution shall not issue within ten days. Rev. Stats, sec. 1008.] Time within which writs of error to be taken from circuit to Supreme Court. Rev. Stats, sec. 1009.] Time within which appeals in prize causes to be taken to Supreme Court. Rev. Stats, sec. 1010.] Damages and costs on affirmance by Supreme Court. Rev. Stats, sec. 1011.] No reversal in Supreme Court, or circuit court, for error in ruling plea in abatement, or for error in fact. Rev. Stats, sec 1013.] Appeals from circuit courts and from district courts acting as circuit courts, to be subject to same rules, regulations, etc., as writs of error. Rev. Stats, sec. 1018.] Where both parties appeal to Supreme Court, one record sufficient. Act Feb. 16, 1875, 18 Stat. L. 315.] Circuit courts to find facts and law separately in admiralty causes. — Jury may try issues of fact by con- sent of parties. — Review by Supreme Court to be limited to questions of law, and rulings excepted to and presented by bill of exceptions. (See Rev. Stats, sec. 698.) Decisions. The only mode of reviewing, in the Supreme Court, causes of admir- alty and maritime jurisdiction, is by appeal, and the regulations respecting writs of error apply to such appeals. The San Pedro, 2 Wh. 132. If a circuit court entertain an appeal from a district court without jurisdiction, the Supreme Court, on appeal, will reverse the decree of the circuit court. U. S. v. Norse, 6 Pete7-s, 470. An appeal bond, approved by the court is sufficient, though signed by only part of the appellants. Brockett «. Brockett, 3 Sow. 238. A petition to open a final decree filed and taken into consideration by EUIES OF PRACTICE IIT ADMIRALTY. 211 the court at the same term in which the decree was made, suspends the decree, so that the time allowed to supersede it hy appeal, does not begin to run until the petition is disposed of. lb. Though a decree has been entered as of a prior date, the rights of the parties in respect to an appeal are determined by the date of the actual entry, or of the signing and filing of the final decree. Rubber Co. ». Goodyear, 6 Wall. 153. Where the district court, sitting in admiralty, allowed an appeal from its decree to the next circuit court, although the same was not prayed for in writing in accordance with its rules, the jurisdiction of the circuit court at once attached, notwithstanding the failure of the clerk of the dis- trict court to deliver the appeal and record to the clerk of the circuit court within the time required by its rules. The S. S. Osborne, 105 U. 8. 447, Garnishees can appeal only from a final decree awarding execution, against them. Gushing v. Laid, 107 U. 8. 69. On an appeal to the circuit court from a decree of the district court in admiralty, no citation is necessary, but only a written notice by the proctor to the proctor of the adverse party. The Ellen, 4 BlatcTi. 107. No summary judgment can be entered in the circuit court within ten days after rendering a decree in cases which may be appealed to the Su- preme Court. The New Orleans, 17 Blatch. 216 ; The Jesse William- son, Id. 230. But if no appeal lies to the Supreme Court, summary judgment may be rendered without waiting for ten days to expire. The Blanche Page, 17 Blatch. 231. In the admiralty, an appeal supersedes altogether the decree of the court below, and the case is to be tried in the appellate court as if no de- cree had been passed in the court from which the appeal is taken. Steamer Saratogas. 438 Bales of Cotton, IWoodn, 75 ; The Morning Star, 14 Fed. R. 866. An appeal in admiralty from the district to the circuit court in effect vacates the decree of the district court, and a new trial in all respects, and a new decree, are to be had in the circuit court. The latter must execute its own decree, and the district court has nothing' more to do with the case. The Lucille, 19 Wall. 73. An order of the circuit court merely afllrming the decree of the dis- trict court, and nothing more, is not such a decree as the circuit court should render, and is not a final decree from which an appeal lies to this court, lb. It is error and ground for reversal for a circuit court to affirm a de- cree of the district court in admiralty, and at the same time dismiss the appeal. The Lpttawanna, 30 Wall. 301. Where an appeal is taken to the circuit court from the decree of the district court in a proceeding in rem, the property or its proceeds follows the cause into the former court, lb. A new trial will be denied in the district court in admiralty causes, when the parties are entitled to a new hearing on the facts in the circuit court. Mainwaring v. The Bark Carrie Delap, 1 Fed. B. 880. 212 Rt7LES OF PRACTICE IN ADMIKALTY. Admiralty causes arising on the lakes can be reviewed by the Supreme Court only by appeal, although tried by jury. Boyd v. Clark, 13 Fed. B. 908. Additional testimony in admiralty causes may be taken on both sides in the circuit court on appeal, and the court may allow amendments to the pleadings. The Morning Star, 14 Fed. B. 866. The denial of a motion to quash an execution made by a stipulator against whom execution has issued, is not a final decree from which an appeal will lie. The Elmira,- 16 Fed. B. 133. Where a party appeals, the appeal opens the whole case. The party cannot be allowed to claim the benefit of the decree below, and, standing secure on that, try his fortunes in the circuit court. The Hesper, 18 Fed. B. 696. EuLE XLVI. In all cases not provided for bj the foregoing rules, the District and circuit district and circuit courts are to regulate practice. the practice of the said courts respectively, in such manner as they shall deem most expedient for the due administration of justice in suits in admiralty. Fiomnlgated December Term, 1844, 3 How. xiii. Statutory Provisions. Bev. Stats, sec. 918.] The several circuit and district courts may make rules not inconsistent with law, or the rules prescribed by the Su- preme Court. Decisions, Power of the circuit courts to establish rules, discussed and explained. Beers «. Haughton, 9 Peten, 339 ; The City of Hartford, 11 Fed. B. 89 ; The Monte A., 13 Fed. B. 331. EuLB XLVII. (1.) In all suits in personam, where a simple warrant of la cases of arrest, bail arrest issues and is executed, bail shall be to be taken in accord- in i, ,, ., ancewitii laws oi State, talsen by the marshal and the court in those cases only in which it is required by the laws of the State where an arrest is made upon similar or anal»gous process issuing from the State courts. (3.) And imprisonment for debt, on process issuing out of Imprisonment for debt the admiralty court, is abolished in all cases is abolished by State. Where, by tlie laws of the state in which the court is held, imprisonment for debt has been, or shall be EULES OF PRACTICE IN ADMIBALTT. 213 hereafter, abolislied, upon similar or analogous process issuing from a State court. See Admiralty Kules 2, 3, 21, and statutes and decisiona noted thereunder. Originally rule 48, promulgated December Term, 1850, 1 How. v. Decisions. The acts of Congress adopting statutes of the States refer only to such as are already in existence, and do not apply to future legislation. In Re Freeman, 3 Curt. 0. 0. 491 ; Campbell ». Hadley, 1 Sprague, 470. A surety, both under the statute and the above rule, is exempt from liability to imprisonment on execution issued by the district court in admiralty, in all cases where he would be exempt on like process issued from a court of the State in which the district court is held. The Ken- tucky, 4 Blaich. 448. EuLE XLVIII. (1.) The twenty-seventh rule shall not apply to cases where the sum or value in dispute does not exceed Modification of admir- fifty dollars, exclusive of costs, unless the "ity^'e^T. district court shall be of opinion that the proceedings pre- scribed by that rule are necessary for the purposes of justice in the case before the court. (3.) All rules and parts of rules heretofore adopted, incon- sistent with this order, are hereby repealed Repeal of inconsistent and annulled. , ™"=«- Originally rule 49, promulgated December Term, 1850, 10 How. vi. EuLB XLIX. Further proof, taken in a circuit court upon an admiralty appeal, shall be by deposition, taken before how further proof taken some commissioner appointed by a circuit ™ "^^^ " court, pursuant to the acts of Congress in that behalf, or be- fore some officer authorized to take depositions by the thirtieth section of the act of Congress of the 24th of September 1789,* upon an oral examination and cross-examination, unless the court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a commis- sion to issue to take such depositions upon written interroga- tories and cross-interrogatories. When such deposition shall be taken by oral examination, a notification from .the magis- trate before whom it is to be taken, or from the clerk of the * Eev. Stats, sees. 861, 863, 864, 865, 866. 214 ETJLES OF PEACTICE TS ADMIBALTT. court in which such appeal shall be pending, to the adverse party, to be present at the taking of the same, and to put in- terrogatories, if he think fit, shall be served on the ad- verse party or his attorney, allowing time for their attendance after being notified not less than twenty-four hours, and in addition thereto, one day, Sundays exclusive, for every twenty miles' travel ; provided, that the court in which such appeal may be pending, or either of tlie judges thereof, may, upon mo- tion, increase or diminish the length of notice above. required. See Admiralty Kale 50. Originally rale 50, Promulgated December Term, 1851, 13 How. vi. Statutory Provisions. Bev. Stats, sec. 863.] The mode of proof in admiralty causes to bs according to rules prescribed by Supreme Court. Hm. Stats, sec. 917.] The Supreme Court may make rules for taking and obtaining evidence in admiralty causes. Bev. Stats, sec. 863.] When and how depositions de bene esse may be taken. Bev. Stats, sec. 864.] Witness to be sworn and his deposition re- duced to writing by himself or magistrate. Rev. Stats, sec. 865.] Transmission of depositions de bene esse to the court. ifo». Stats, sec. 866.] Depositions under. a dedimus potestatem, and in perpetuam, etc. Decisions. Depositions cannot be used on the trial of a suit in admiralty, which were taken in another suit concerning the same subject-mattter, where the party against whom they are offered was not a party to the suit in which they were taken, nor privy to any such party, and had no right to cross-examine the witnesses. Rutherford v. Geddes, 4 WaU. 330. Nor can depositions be read in admiralty, any more than at common law, without some sufficient reason being shown why the witness was not produced at the hearing. lb. Additional testimony may be taken on both sides in the circuit court, and the court may protect the rights of the parties where amendments are allowed. The Morning Star, 14 Fed. B. 866. KULE L. When oral evidence shall be taken down by the clerk of the Oral evidence taken district court, pursuant to the abovc-men- used on appeal. ' tioned section of the act of Congress, and shall be transmitted to the circuit court, the same may be used in evidence on the appeal, saving to each party the right to EULES OF PRACTICE IN ADJIIEALTY. 215 take the depositions of the same witnesses, or either of thenij if he should so elect. See Admiralty Eules 49, 51. Originally rule 51, promnlgated December Term, 1851, 13 How. vi, EULE LI. When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libellant. No replication eiiaii be -, T , . , . 1 , allowed to new facta and no replication, general or special, shall alleged by defendant. 1, n - -D J. •?!.• 1, i- i-i. ±1 B"' libellant may be allowea. liut withm such time after the amend, answer is filed as shall be fixed by the district court, either by general rule or by special order, the libellant may amend his libel so as to confess and avoid, or explain or add to, the new matters set forth in the answer ; and within such time as may be fixed, in like manner, the defendant shall Defendant to answer answer such amendments. ^"""^ amendments. See Admiralty Bale 24. Originally rnle 52, promnlgated December Term, 1854, 17 How. vi. Practice. The practice before the adoption of the above rule wa.s to require the libellant to reply or otherwise put upon the record, matter supposed to be in avoidance of new matter alleged in the answer. Gladding v. Con- stant, 1 Sprague, 73 ; Tabor v. Jenny, M. 315. EULE LII. (1.) The clerks of the district courts shall make up the records to be transmitted to the circuit Hecords on appeal, courts on appeals, so that the same shall ^'"'t t° «<»>t*i°- contain the following : a. The style of the court. i. The names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has taken place. c. If bail was taken, or property was attached or arrested, the process of the arrest or ataohment and the service thereof ; all bail and stipulations ; and, if any sale has been made, the orders, warrants, and reports relating thereto. d. The libel, with exibits annexed thereto. e. The pleadings of the defendant, with the exhibits an- nexed thereto. 216 EULES OF PBACTICE IJST ADMIRALTY. /. The testimony on the part of the libellant, and any ex- hibits not annexed to the libel. g. The testimony on the part of the defendant, and any exhibits not annexed to his pleadings. h. Any order of the court to which exception was made. i. Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report was not ex- cepted to, only the fact that a reference was made, and so much of the report as shows what results were arrived at by the assessor, are to be stated. j. The final decree. k. The prayer for an appeal, and the action of the district court thereon ; and no reasons of appeal shall be filed or inserted in the transcript. The following shall be omitted : a. The continuances. i. All motions, rules, and orders not excepted to which are merely preparatory for trial, c. The commissions to take depositions, notices therefor, their captions, and certificates of their being sworn to, unless some exception to the deposition in the district court was founded on some one or more of these ; in which case, so much of either of them as may be in- volved in the exception shall be set out. In all other cases it shall be sufficient to give the name of the wit- ness, and to copy the interrogatories and answers, and to state the name of the commissioner, and the place where and the date when the deposition was sworn to ; and, in copying all depositions taken on interrogatories, the answer shall be inserted immediately following the question. (2.) The clerk of the district court shall page the copy of Clerk to page, index the record thus made up, and shall make an and certify copy. j^^g^ thereto, and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transcript of the record of the district court in the cause named at the beginning of the copy made up pursuant to this rule ; and no other certificate of the record shall be needful or inserted. (3.) Hereafter, in making up the record to be transmitted EXILES OF PKACTICE IN ADMIRALTY. 217 to the circuit court on appeal, the clerk of oierk shaii aiso om't the district court shall omit therefrom any "rocto'rs/"''""''' "' of the pleading, testimony or exhibits which the parties by their proctors shall by written stipulation agree may be omitted ; and such stipulation shall be certified up with the record. As to record to be transmitted on appeal to Supreme Coiwt, see Sup. Ct. Kuie 7, par. 6. OriginalJy rule 53, promulgated December Term, 1854, 17 How. vi ; third paragraph added May 2, 1881, 103 U. S. xiii. Statutory Provisions. Bev. Stats, sec. 698.] Transcripts on appeals in causes of admiralty and maritime jurisdiction, prescribed. Bev. Stats, sec. 750.] Final record in admiralty causes, what to con- tain. Bev. Stats, sec. 1013.] Where both parties appeal to the Supreme Court, one record sufficient. Decisions. The record transmitted to the circuit court under the above rule be- comes a part of the record of the cause in that court, and if there be an appeal to the Supreme Court, such record must, as a whole, be trans- mitted to that court, notwithstanding the act of Feb. 16, 1875 (18 Stat. L. 315), requiring the circuit court to make findings of fact, and limiting the review of the Supreme Court to questions of law. The Alice Tainter, 14 Blaieh. 225. Notwithstanding the failure of the clerk of the district court to deliver the record into the circuit court within the time required by rule, the jurisdiction of the circuit court, nevertheless, attaches. The S. 8. Os- borne, 105 U. 8. 447. EULE LIII. Wheneyer a cross-libel is filed upon any counter-claim, aris- ing out of the same cause of action for which security on flUng cross- the original libel was filed, the respondents '"''*'• in the cross-libel shall give security in the usual amount and form, to respond in damages, as claimed in said cross-libel, unless the court, on cause shown, shall otherwise direct ; and all proceedings upon the original libel shall proceedings stayed un- be stayed until such security shall be given. «'»'"« i« given. Originally rule 54, promulgated December Term, 1868, 7 Wall. v. Decisions. The answer of the defendants should not, even by stipulation, be re- garded as a cross-libel. The respondents should file their cross-libel, take 218 EULES OF PBA.OTIOE IS ADMIRALTY. out process, and have it served in the usual way. Ward v. Chamberlain, 21 Sow. 573. Where there has been a change of interest in the res, since the matters stated in the libel occurred, and the claimant insists that the former owner should be held to answer the libellant's claim, such former owner may file a cross-libel, and the libellants' proceedings will be stayed until security is given. The Geo. H. Parker, 33 Jnt. Rev. Bee. 83. It is at the election of a defendant to rely upon a set-off by way of re- coupment, or to file a cross-libel. But by recoupment, the defendant can only diminish the libellant's claim ; whereas by cross-libel he may obtain judgment against the libellant. Snow ». Carruth, 1 Sprague, 334. See the Sapphire, 18 Wall. 51. And if a cross-libel is filed, the co.urt may, in its discretion, ^tay pro- ceedings in the first suit until an appearance be entered, and other steps taken in the second suit. Nichols ». Tremlett, 1 Sprague, 361. ' The object of the above rule is to compel the apperance and giving of security by a respondent in a cross-libel in personam, in cases where it does not appear proper that he should be relieved from giving such security. Hence, in a cross-libel in rem there must be a seizure within the jurisdiction, upon which the usual security must follow. The Steamer Bristol, 4 Ben. 55. The 53d admiralty rule, requiring the respondents in a cross-libel to give security to respond in damages as claimed in the cross-libel, applies as well to actions in rem as to those in personam. The Toledo, 1 Brown Ad. 445. A cross-libellant must act with promptness in applying for security. And if he waits until the eve of the trial, when witnesses are summoned, and the case is ready to proceed, the motion will be denied. The Geo. H. Parker, 1 Flippin, 606. Damages by way of recoupment may be awarded to a defendant in order to reduce or extinguish the claim of the libellant, although no cross-libel is filed. But the defendant should allege his injuries in his answer, and appropriately pray for relief. And an amendment may be allowed for this purpose, although the case is in the hands of a commis- sioner. The Reuben Dowd, 9 Biss. 458. A cross-libel for salvage in a suit for collision, does not arise out of the same cause of action, and security cannot be required of the libel- lant. Crowell V. The Schooner Theresa Wolf, 4 Fed. R. 153. A cross-libel cannot be sustained to enforce a new subject-matter in- troduced into the litigation by strangers to the original suit. The 53d admiralty rule clearly indicates that parties other than the original parties cannot be joined either as libellants or respondents in a cross- libel. The Ping-On v. Blethen, 11 Fed. B. 607 ; S. C, 7 Saw. 483. After a cross-libel in personam has been filed in a suit in rem, and issue joined, it is too late for the cross-libellant to object that the orig- mal libellant has no admiralty lien. The Fifeshire, 11 Fed. B. 743. The words " same cause of action," contained in the above rule, are not limited to the same legal demand, but are used in a more general EULES OF PRACTICE IN ABMIKALTT. 219 sense, meaning the same transaction, dispute or subject-matter which has been the cause of the action being brought, and include those cases of cross-libels where the question in dispute is identical in both, the de- fense in the one suit being the ground of the claim in the other. Via- nello D. The Credit Lyonnais, 15 Fed. B. 637. Respondents in a cross-libel will be required to give security where the vessel in the original libel is in custody, as well as where she has been released on bond or stipulation. And the respondents will not be allowed at their own option to submit to a stay of proceedings and at the same time hold the vessel in custody indefinitely under the original libel ; but if the refusal is willful, the court may discharge the vessel upon the claimant's own stipulation, if he be unable to give security to release her. Or the court may order her to be sold. Empresa Maritima A Vapor V. North & S. A. N. Co., 16 Fed. B. 503. Rule LIV. When any ship or vessel shall be libelled, or the owner or owners thereof shall be sued, for any em- proceedings under the bezzlement, loss, or destruction by the ?o"iimifthe^iab1iVof master, officers, mariners, passengers, or p'JoTed°Ma'r' f^'issi" any other person or persons, of any property, '•^^^- ^^^-^^^ l^f goods, or merchandise, shipped or put on ^^'''< 4288,'4289.)' board of such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter, or tiling, loss, damage, or forfeiture done, occasioned, or- incurred, without the privity or knowledge of such owner or owners, and he or they shall desire to claim the benefit of limitation of liability provided for in the third and fourth sections of the said act above re- cited,* the said owner or owners shall and may file a libel or petition in the proper district court of Petition to be flied by the United States, as hereinafter specified, emption. setting forth the facts and circumstances on which such limita- tion of liability is claimed, and praying proper relief in that behalf ; and thereupon said court, having caused due apprais- ment to be had of the amount or value of interest of owner to be _ . , , « ■ T appraised and paid into the interest of said owner or owners, respec- court, or security given, tively, in such ship or vessel, and her freight, for the voyage, shall make an order for the payment of the same into court, or for the giving of a stipulation, witli sureties, for payment thereof into court whenever the same shall be ordered ; or, if * Eev. Stats, sees. 4283, 4284, 4385. 220 RULES OF PEACTICE IK ADMIRALTY. Or traatee may be ap- the Said owner Or owners shall so elect, the pointed, and interest ., ,t„-,i , i • ^ transferred to him. said court shall, Without such appraisement, make an order for the transfer by him or them of his or their interest in such Tessel and freight, to a trustee to be appointed by the court under the fourth section of said act ;* and, upon compliance with such order, the said court Monition to issue to shall issue a monitiou against all persons persons claiming dam- _ . . ^ „ . , , ages; time. claiming damages for any such embezzle- ment, loss, destruction, damage, or injury, citing them to appear before the said court and make due proof of their re- spective claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same ; and public notice of such monition shall be given Public notice to be ^s in other cases, and such further notice ^™''' served through the post-oflBce, or other- wise, as the court, in its discretion, may direct ; and the Further prosecutions Said court shall also, ou the application of may be restrained. ^.j^g ^^^^ owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims. See Admiralty Eule 58. Originally rule 55, promulgated May 6, 1872, 13 Wall. xii. Statutory Provisions. Bev. Stats, sec. 4282.] Owners of vessels not liable for losses by fire, unless caused by design or neglect of such owner. JEieii. Stats, sec. 4283.] Liability of owner of vessel for loss or de- struction of property shipped, or for damages by collision, or other loss or damage without his privity or knowledge, not to exceed his interest. Bev. Stats, sec. 4284.] Persons suffering injury, damage or loss to be paid pro rata, and may take proceedings to apportion same. Bev. Stats, sec. 4285.] Transfer of interest to trustee. Bev. Stats, sec. 4386.] When charterer deemed owner within mean- ing of above provisions. Bev. Stats, sec. 4287.] Remedies reserved against master, officers and seamen, notwithstanding they may be part-owners. Bev. Stats, sec. 4288.] Inflammable materials not tobe shipped, with- out note in writing describing same ; — penalty. But this section not to apply to vessels used on rivers or inland navigation. Bev. Stats, sec. 4289.] Preceding sections not to apply to owners of any canal boat, barge or lighter, or of any vessel used in rivers or inland navigation. * Eev. Stats, sec. 4385. EULES OF PEAOTIOE IN ADMIRALTY. 221' Decisions. The statute limiting tlie liability of ship-owners, construed in the fol- lowing cases : Walker v. Transportation Co., 3 Wall. 150 ; The City of Hartford, 11 Blatcli. 290 ; The Whistler, 3 Saw. 348 ; Norwich Co. v. Wright, 13 WaU. 104 ; Aliens. McKay, 1 Sprague, 319 ; The City of Nor- wich, 1 Ben. 89 ; Thorp v. Hammond, 13 Wall. 408 ; Thomassen v. Mark Whitwell, 9 Ben. 403 ; The Scotland, 105 U. 8. 34 ; The Wanata, 95 U. S. 600 ; The Benefactor, 103 U. 8. 339 ; Providence & N. Y. S. 8. Co. V. Hill Mf'g Co., 3 Sup. a. B. 879 ; In re The Long Island North Shore Passenger & Freight Trans. Co., 5 Fed. B. 509; The Mamie, 5 Fed. B. 813, affirmed on appeal, 8 Fed. B. 367 ; The Alpena, 8 Fed. B. 280 ; The Marie, and Elizabeth, 11 Fed. B. 530 ; S. C, 13 Fed. B. 627 ; The Favorite, 13 Fed. B. 313 ; Thomassen v. Whitwell, 13 Fed. B. 891 ; In re Leonard, 14 Fed. B. 53 ; The North Star, 106 U. 8. 17 ; Propeller Niagara v. Cordes, 21 How. 26 ; Moore ». Transportation Co., 31 Sow. 1. The practice and proper course of proceeding under the act pointed out. Norwich Co. v. Wright, 13 Wall. 104. The Supreme Court had the power to make the 55th (now the 54th) rule in admiralty, notwithstanding the statute prohibiting the granting of injunctions to stay proceedings in the State courts. In re Provi- dence & New York Steamship Co., 6 Ben. 124. Proceedings by a ship owner under the act limiting his liability superside all suits brought by persons suffering injury or loss, and this is so without the issuance of an injunction from the court in which such proceedings are instituted. Providence & N. Y. S. S. Co. v. Hill Mf'g. Co., 3 Sup. Ct. B. 379. The court reaffirms the authority of Congress to pass the act limiting the liability of shipowners. lb. The court also reaffirms its own authority to adopt the rules in ad- miralty prescribing the manner in which proceedings under the act shall be conducted. lb. A shipowner may take advantage of the proceedings provided for by the third section of the act (Rev. Stats, sec. 4283) and of the admiralty rules on that subject, In cases of suit for loss or damage by fire. lb. Where actual total loss occurs, there is no need of formal abandon- ment to entitle the owners to the benefits of the limited lia/bility act. The Peshtigo, 2 Flippin, 466. The owners of foreign as well as domestic vessels may claim the benefit of the statute limiting the liability of ship-owners ; and the stat- ute extends to acts done on the high seas as well as in waters of the United States. The Scotland, 105 IT. 8. 24. See Thomassen v. Mark Whitwell, 9 Ben. 403. Ship-owners may avail themselves of the benefit of the statute limit- ing their liability by answer or plea, as well as by the form prescribed by the rules, at least so far as to obtain protection against the libellants or plaintiffs in the suit. The rules were not intended to restrict them, but to aid them in bringing into concourse those having claims against them 222 EULES OF PRACTICE IN ADMIRALTY. arising from the acts of the master or crew. The Scotland 105 IT. S. 34, (Overruling Thomassen ». Mark Whitwell, 9 Ben- 458.) If the ship-owner pleads the statute, a decree may be made requiring him to pay into court the limited amount for which he is liable, and dis- tributing such amount ratably amongst the parties claiming damages. Such a proceeding would be an appropriate proceeding under the statute. lb. It is not necessary that the ship-owner should surrender and transfer the ship, in order to obtain the benefit of the law. That is only one mode of relief. He may plead his immunity, and abide a decree against him for the value of the ship and freight as found by the proofs, lb. Leave of the court is not necessary to institute proceedings for limita- tion of liability under the statute. Thomassen v. Mark Whitwell, 9 Ben. 458. A ship-owner, who on the trial of the original issue contests all liability whatever, is not thereby precluded from afterwards claiming the benefit of the statute limiting his liability. But in the proceedings to obtain ex- emption, the decree in the main suit is conclusive and forms the basis the pro rata share of the respective parties injured. The Benefactor, 103 U.S. 339. On filing a petition for limited liability, the libellants, until final ac- tion shall be had thereon, should be restrained from enforcing any de- cree, lb. Proceedings for limitation of liability, if not instituted until after a party has obtained satisfaction of his demand, are ineflEectual as to him. A return of the money should not be compelled, nor, in general, should relief be granted, except upon condition of compensating the party for costs and expenses by reason of delay in filing the petition, lb. The owner of a vessel may, before he is sued, institute appropriate proceedings to obtain the benefit of the statute limiting his liability. Ex parte Blayton, 105 IT. S. 451 ; The Alpena, 8 Fed. B. 280. But it seems that if such owner fails to institute proceedings imtil after suit has been brought by the party injured, then he must com. mence them in the same district as that in which such suit was brought. The Alpena, 8 Fed. E. 280. A stay of proceedings may be ordered after decree until the owners of the offending vessel have the opportunity of filing a petition for limi- tation of liability. The Maria and Elizabeth, 11 Fed. B. 520. The owners of the vessels are liable, in cases of proceedings for the limitation of their liability, to the costs of the litigation, and for the in- terest on the assessed value of the vessel. The Favorite, 13 Fed. R. 313 ; S. C, 11 Bisa. 383. Although possession of the vessel pending the proceedings to obtain limitation of liability is not necessary ; still, the district court where those proceedings are instituted has power to order the sale of the vessel when she is held under process of another court, and will exercise that power when necessary to prevent the diminution of the property by ex- penses and fees. The Mendota, 14 Fed. R. 858, EULES OP PRACTICE IN ADMIRALTY. 233 Rule LV. Proof of all claims which shall be presented in pursuance of said monition shall be made before a com- same ;^roof of claims. missioner, to be designated by the court, subject to the right of any person interested to question or controvert the same ; and, upon the completion of said proofs, the commissioner shall make report of the claims so proven, and upon confirma- tion of said report, after hearing any exceptions thereto, the moneys paid or secured to be paid into court as aforesaid, or the proceeds of said ship or vessel and freight, (after payment of costs and expenses) shall be divided pro rata amongst the several claimants, in proportion to the Distribution. amount of their respective claims, duly proved and confirmed as aforesaid, saving, however, to all parties any priority to which they may be legally entitled. See Admiralty Eule 58. Originally rale 56, promulgated May 6, 1873, 13 Wall. xiii. Practice. The pro rata distribution under the statute (Rev. Stats, sec. 4384) when there is not suflacient to pay all claimants in full, relates to a dis- tribution among those whcse losses arise out of the same state of facts, and has no reference to other liens. The Marie and Elizabeth, 13 Fed. M. 627. EULE LVI. In the proceedings aforesaid, the said owner or owners shall be at liberty to contest his or their liability same; owner at liberty or the liability of said ship or vessel for said '°'=™"^^' """"'y- embezzlement, loss, destruction, damage, or injury, (inde- pendently of the limitation of liability claimed under said act,) provided that, in his or their libel or petition, he or they shall state the facts and circumstances by reason of which ex- emption from liability is claimed ; and any person or persons claiming damages as aforesaid, and who shall ^°^aPfg''^°°tg'*'™°s have presented his or their claim to the com- qontest petition, missioner under oath, shall and may answer such libel or petition, and contest the right of the owner or owners of said ship or vessel, either to an exemption from liability, or to a limitation of liability under the said act of Congress, or both. See Admiralty Eule 58. Originally rule 57, promulgated May 6, 1873, 13 Wall. xiil. 324 KULES OF PRACTICE IN ADMIRALTY. JDecisions. A person claiming damages cannot contest the right of the ship- owner to exemption from liability, without presenting his claim to the commissioner, as above provided ; but he may contest the jurisdiction of the court without so doing. In re Providence & New York Steam- ship Co. ,. 6 5ere. 258. A shipowner who on the trial of the original issue contests all liability, is not thereby precluded from aftei'wards claiming the benefit of the statute limiting his liability. The Benefactor, 103 U. 8. 239. When a petition for limited liability is filed after decree rendered against the vessel, the question of liability is res adj\idicata, and the los- ing party cannot again try the case on its merits. The Benefactor, 103 U. 8. 239 ; The Maria and Elizabeth, 13 Fed. B. 637. EtJLB LVIT. The said libel or petition shall be filed and the said pro- same; petition may be ccedinsTS had in any district court of the filed m district where .^. . r^ . ' . , vessel libeled, etc. United States in which said ship or vessel may be libeled to answer for any such embezzlement, loss, de- struction, damage, or injury ; or, if the said ship or yessel be not libeled, then in the district court for any district in which the said owner or owners may be sued in that behalf. If the If vesspi sola, proceeds ship havc already been libeled and sold, the to represent same. proceeds shall represent the same for the purposes of these rules. See Admiralty Enle 58. Otiginaily rale 68, prdmalgated May B, 1872, 13 Wall. xiii. I Decisions. The district courts sitting in admiralty have jurisdiction of cases arising under the act limiting the liability of ship-owners. Norwich Co. ». Wright, 18 WaU., 104. Proceedings to obtain limitation of liability niay be instituted in a district where a fund or claim equitably representing the vessel is in liti- gation, though the petitioners reside in another district. In re Leon- ard, 14 Fed. R. 53. KULE LVIII. All the preceding rules and regulations for proceeding in The fonr preceding cascs where the owuer or owncTS of a ship courts" of '*the''united or vessel shall dcsire to claim the benefit of limitation of liability provided for in the act of Congress in that behalf, shall apply to the circuit courts of KtJLES OP PRACTICE IN ADMIEAITT. 225 the United States wliere such cases are or shall be pending in said courts upon appeal from the district courts. See Admiralty Eules 54, 55, 56, 57. Promulgated March 30, 1881, 103 U. S. xiii. Memorandum. The reasons which induced the Supreme Court in adopting this rule are stated in the case of The Benefactor, 103 U. 8. 239. EULE LIX. In a suit for damage by collision, if the claimant of any vessel proceeded against, or any respondent m collision case, third proceeded against in personam, s,hall, by pe- f„"by p^tu^onoTpaf" tition, on oa,th, presented before or at the a'leady sued, time of answering the libel, or within such further time as the court may allow, and containing suitable allegations showing fault or negligence in any other vessel contributing to the same collision, and the particulars thereof, and that such other vessel or any other party ought to be proceeded against in the same suit for such damage, pray that process be issued against such vessel or party to that end, such pi-ocess may be issued, and, if duly served, such suit shall proceed as if such vessel or party had been originally proceeded against ; the other parties in the suit shall answer the Answer of such other petition ; the claimant of such vessel or such i""^*"^^' ^"=- new party shall answer the libel ; and such further proceed- ings shall be had and decree rendered by the court in the suit as to law and justice shall appertain. But every such peti- tioner shall, upon filing his petition, give a security for costs, dam- stipulation, with suflScient sureties, to pay *°^^' ^"^^ to the libelant and to any claimant or new party brought in by virtue of such process, all such costs, damages, and ex- penses as shall be awarded against the petitioner by the court upon the final decree, whether rendered in the original or appellate court ; and any such claimant or new party shall give the same bonds or stipulations which are required in like cases, from parties brought in under process issued on the prayer of a libellant. See Admiralty Eules 5, 8, 9, 11, 15, 26, i!7, 32, 35. Promulgated October Term, 1882. 15 226 EULES THE COURT OF CLAIMS. Rule I. — Attorneys and Counsel. (1.) Suits may be commenced by the claimant in person. Suits, by whom com- 01' through his attorney in fact, or an at- menced. Power of at- ° . / . torney to be filed. torney 01 this court. If the claimant is rep- resented by an attorney in fact, the power must be filed with the clerk, and its execution must be proved or acknowledged before an officer authorized to take acknowledgments of deeds. * In suits brought in Court of Claims, Attorney General to transmit petition in cer- tain cases, etc., to Departments, ofiicers, etc. — To be furnished with information ; what statement to contain. One statement may be used in other cases of same class. Rev. Stats, sec. 188. Appeals from judgment of Court of Claims to Supreme Court regulated. Kev. Stats, sec. 70r. Time and manner of taking appeals from Court of Claims to Supreme Court. Rev. Stats, sec. 708. The Court of Claims shall consist of one Chief Justice, and four Judges, appointed by the President by and with the advice and consent of the Senate, and to receive an annual salary of four thousand five hundred dollars. Rev. Stats, sec. 1049. The Court of Claims shall have a seal with such device as it may order. Rev. Stats, sec. 1059. Court rooms, etc., to be provided by Speaker of the House of Representatives, etc. Rev. Stats, sec. 1051. The court shall hold one annual session at the City of Washington, beginning on the first Monday of December. Rey. Stats, sec. 1053. Three judges shall constitute a quorum, and the concurrence if three shall be nec- essary to the decision of any cause. Act June 83, 1874. 18 Stat. L. 252. (See Rev. ' Slats, sec. 1052.) Court to appoint a chief clerk, an assistant clerk, if deemed necessary, a bailiff and a messenger. Rev. Stats, sec. 1053. Salaries of clerks, bailiff and messenger. Rev. Stats, sec. 1054. Chief clerk shall give bond in form and amount to be approved by the court. Rev. Stats, sec. 1055. Chief clerk may disburse, under direction of the court, the contingent fund ap- propriated to its use. Rev. Stats. 1056. Reports to Congress, copies for Departments, etc. Kev. Stats, sec. 1057. RULES OF THE COURT OP CLAIMS. 227 (2.) Any person of good moral character, wlio has been admitted to practice in the Supreme Court of Admission of attorneys the United States, or in the highest court of irS^ercouit"an°din the District of Columbia, or in the highest ''*''"^'"'- court of any State or Territory, may be admitted, on motion Members of Congress not to practice in the conrt. Eev. Stats, sec. 1058. Jnrisdiction ; — Of claims founded on statutes or contracts, or referred by Congress ; — Of set-offs and connter claims of the ITnited States ;— Of relief to disbursing officers for loss, etc. ;— Of claims for captured and abandoned property ;— Not to extend to de- struction of property by Army, etc., in suppression of rebellion. Eev. Stats, sec. 1059. Private claims in Congress when transmitted to Court of Claims. Rev. Stats, sec. 1060. Judgment for set-off, or counter-claim, how enforced. Rev. Stats, sec. 1001. Decree on account of paymasters, etc., how allowed and credited. Rev. Stats, sec. 106S. Claims referred by Departments, how transmitted and what to contain. Rev. Stats. sec. 1063. Procedure in cases transmitted by Departments to be same as in other cases. Eev. Stats, sec. 1064. Judgments in cases transmitted by Departments, how paid. Rev. Stats, sec. 1065. Claims growing out of treaties not cognizable in Court of Claims. Rev. Stats, sec. 1066. Claims not to bfe prosecuted by parties having suits in other courts respecting same against persons acting for the United States. Eev. Stats, sec. 1067. Citizens or subjects of foreign governments affording similar privileges may sue in the Court of Claims. Rev. Stats, sec. 1068. Proceedings must he commenced in Court of Claims within six years after claim accrued, except in cases of disability enumerated. Eev. Stats, sec. 1069. Court may establish rules of practice, punish contempts, etc. Rev. Stats, sec. 1070. Judges and clerljs of the conrt may administer oaths and affirmations, take ac- knowledgments, etc. Rev. Stat^. sec. 1071. Petition of claimant to set forth matters enumerated, and be verified. Eev. Stats. sec. 1072. Petition to be dismissed, if issue found against claimant as to allegiance, etc. Rev. Stats, sec. 1073. Burden of proof and evidence as to loyalty to be upon claimant. Eev. Stats, sec. 1074, Court shall have power to appoint commissioners to take testimony. Eev. Stats. sec. 1075. Power of court to call upon Departments for information. Eev. Stats, sec. 1076. When claimant does not show ground for relief, court may not authorize testimony to be taken. Rev. Stats, sec. 1077. Witnesses not excluded on account of color. Eev. Stats, sec. 1088. Parties and persons interested excluded as witnesses. Rev. Stats, sec. 1079. Conrt may order examination of claimant, at instance of attorney appearing in be- half of the government. Eev. Stats, see. 1080. Testimony to be taken where deponent resides. Rev. Stats, sec. 1081. Witnesses, how compelled to attend before commissioners. Rev. Stats, sec. 1083. Cross-examination to be allowed to the government. Rev. Stats, sec. 1083. Commissioner to administer oatb or affirmation to witnesses. Rev. Stats, sec. 1084. Fees of commissioners, by whom to be paid. Eev. Stats, sec. 1085. Claims to be forfeited, if claimant practices fraud, and it shall be the duty of court to make specific finding aa to same. Eev. Stats, sec. 1086. Court may grant new trial on motion of claimant. Eev. Stats, sec. 1087. New trial may be granted on motion of the government. Eev. Stats, sec. 1088. Judgments to be paid out of appropriations for private claims. Eev. Stats, sec. 1089. 228 ETJLES OF THE COUET OP CLAIMS. in open court, to practice as an attorney and counselor of this court. He may also be admitted at chambers, in vacation, by any member of the court, on its being shown by his affidavit or otherwise, that he has been admitted to practice in any of the aforesaid courts, and is still entitled to practice therein. • (3.) There shall be but one attorney of record for the Only one attorney of claimant in anv case at any one time ; but a record allowed. Changes -, . . , •, , -, j ■, i-j permitted. Claimant may be permitted to change his at- torney, on such conditions as the court may prescribe. A firm of attorneys will be regarded as the attorney of record. (4.) Petitions, pleadings, and motions on the part of the Interest allowed if judgment in favor of claimant is appealed from, etc. Kev. Stats. sec. 1090. No interest allowed on claims prior to judgment. Eev. Stats, sec. 1091. Payment of judgment to be full discharge to government. Eev. Stats, sec. 1093. Final judgment against claimant to be bar of further claim. Eev. Stats, sec. 1093. Assignment of claims against the United States before issue of warrant for pay- ment, void. After issue of warrant, what to recite. Eev. Stats, sec. 3477. Contracts of Secretaries of War, Navy and Interior to be in writing,, signed, etc. Eev. Stats, sec. 3744. (See Eev. Stats, sees. 512-515.) Jurisdiction of Court of Claims not to extend to claims for destruction of prop- erty in the suppression of the rebellion. Act July 4, 1854, sec. 1, 13 Stat. L. 381. Claims of certain loyal citizens for quartermaster's stores, how to be settled. Same Act, sec. 3. Claims of certain loyal citizens for subsistence furnished to the Army, how to be settled. Same Act, sec. 3. Act July 4, 1864 (three last paragraphs) extended to the counties of Berkely and Jefferson, in West Virginia. Joint Eesolntion, June 8, 1866, 14 Stat. L. 560. Claims for supplies, etc., talsen or used by the Union troops, or for injuries caused by them in a State, etc., declared in insurrection, or, etc., not to be settled— Tennessee and West Virginia excepted. Act Feb. 31, 1867, 14 Stat. L. 397. Protection to oflScers acting for the United States during the rebellion against suits, etc. (Note. — The Statutory Provisions referred to in the body of this act may be found respectively in Eev. Stats, sec. 629, par. 13, and sees. 643, 645, 646, 934, 989.) Act July 27, 1868, sec. 1, 15 Stat L. 243. No action in the name of an alien to be maintained in the courts of the United States for losses sustained by reason of the rebellion, except where a corresponding right to prosecute claims against the government of such aliens is accorded to citi- zens of the United States. Same Act, sec. 3. Meaning of the "captured and abandoned property act," declared. — Proviso as to judgments. Same Act, sec. 3. Claims for steamboats impressed into service not excluded from settlement, under Act Feb. 19, 1867 (noted above.) Joint Eesolntion, Dec. 33, 1869, 16 Stat. L. 368. (See Joint Eesolntion, Mar. 3, 1871, 16 Stat. L. 600.) Cost of printing records in Court of Claims, how to be paid for. Act Mar. 31, 1877, 18 Stat. L. 344. Jurisdiction of Court of Claims to hear and settle outstanding claims against the District of Columbia. Act June 16, 18S0, 21 Stat. L. 384. (Note.— Time extended by Act Mar. 3, 1883, ch. 95, 23 Stat. L. 469.) Cases depending before Congress may be referred to the Court of Claims. Act Mar. 3, 1883, 23 Stat. L. 485. EULES OF THE COUET OP CLAIMS. 229 claimant will be signed by the attorney of j,^„,,,^ „f ,,,„^ ^o record ; pleadings and motions on the part ^'s° pleadings, &o. of the United States, by the Assistant Attorney General. (5.) Attorneys of record, or the claimant if he appear in person, will, on commencing or appearing Post-offlce address of in a suit, register with the clerk of the court 11*™* be regi'steied"" a post-office address, to which all notice required by these rules or ordered by the court may be addressed. (6.) Counsel, other than the attorney of record, may be heard on either side at the trial or in any counsel, stage of the proceedings but shall not be entitled to iile plead- ings, give notices, or make motions. See Sup. Ct. Kule 2, and statutes and decisions note* thereunder. Statutory Provisions. . Mev. Stats, sec. 1058.] Members of either House of Congress shall not practice in the Court of Claims. Decisions. A party to a cause in the Court of Claims may change his attorney, although such attorney holds a power of attorney irrevocable on its face, and coupled with an interest In the recovery. But the attorney has a lien for his disbursements, and for any contingent fees and costs agreed upon. Carver's case, 7 Ot. 01. 499. Where suit has been brought in the name of a firm for property al- leged to be the property of the firm, an individual partner cannot sub- sequently come into court and ask to have his own attorney associated on the record with the attorneys of the firm. Bellocque et al. ■». U. > S., 8 a. a. 493. Under the constitution and laws of the United States, a woman can- not be admitted to practice at the bar of this court, and she is without legal capacity to take the office of attorney. In re Belva A. Lockwood, 9 Ct. CI. 346. A new party joined in a suit, having a distinct or adverse interest, may appear by his own attorney ; but where an executor, administrator or assignee succeeds the original claimant, betakes the suit as he finds it, and can only change the attorney on the usual terms. Johnson's case, 11 Ct. 01. 734. The lien usually assured to the original attorney in orders of sub- stitution does not create a right. It merely protects a right if there be one. If a contract between an attorney and the party be void, the order- does not make it valid. It merely protects vaUd rights if they exist. . lb. . , . . A retired officer of the army cannot be an attorney for claimants in the Court of Claims, inasmuch as he is an officer of the United States 230 ETJLES OF THE COUKT OF CLAIMS. within the meaning of Rev. Stats, sec. 5498. In re R. W. Tyler, 18. Ct. CI. 25. EuLE II. — The Petition. (1.) Suits will be commenced by petition, Terified in the Filing of petition ana of manner provided by law, and filed in the tenia. ' ofiBce of the clerk. The clerk will note the day of the filing of the petition thereon. Within twenty days thereafter, the claimant will file in the clerk's office twenty- five printed copies of such petition and note of filing. (2.) The petition must set forth : a. The title of the action, with the full christian and surnames of all the claimants. I. A plain, concise statement of the facts and circum- stances, giving place and date, free from argumentative and impertinent matter. c. The prayer, in which the claimant must state distinct- ly the amount for which he demands judgment, or the relief for which he prays. (3.) When the claimant cannot state his case with the re- imperfcct petition, when ^"^^^^^^ particularity without an examination may be filed. of papers in onc of the Executive Depart- ments, and has been unable to obtain a sufficient examination of such papers on application, he may file a petition stating his claim as far as is in his power, and specifying as definitely as he can the papers he requires in order to enable him to state his claim. The court will thereupon call upon the proper Department for such information or papers as it may deem necessary ; and when the same are furnished, the pe- tition may be amended, and the amended petition shall be printed and filed, and may take the place of the original petition. (4.) If the claimant be an executor, administrator, guard- Appointment of execa- ian, or other representative, appointed by a tor, &o., how proved. judicial tribunal, a duly-authenticated copy of the record of the appointment must be filed with the pe- tition at the commencement of the action. (5.) If the claim be founded upon an act of Congress, or Acts and regulations to ^po^i ^ regulation of an Executive Depart- be specified. mQui, the act and the section thereof upon EULES OP THE COURT OF CLAIMS. 28 1 ■which the claimant relies must be specified^ and the particular regulation of the Department must be stated in terms. (6.) If the claim be founded upon an express contract with the United States, such contract must be set ^ . . ^ „ , . . . . Contracts, how Btated. forth in the petition, and, if it be in writing, must be annexed thereto. If it be founded upon an implied contract, the circumstances upon which the claimant relies to prove a contract must be specified. If it consist of several matters or items, each must be separately stated. (7.) If the petition be verified by the attorney at law or other agent of the claimant, a power of at- Agent verifying petition , i_i ■ • 1 • i_ 1 ii -13 musst liave power of at- torney authorizing him to make the veriii- tomey. cation must be filed with it. (8.) If a claimant desire to amend his petition at any time he must set forth in his motion the specific , in-n xi.n j- i Amendment of petition, amendments desired. If the motion be , allowed, he must within twenty days thereafter file a copy of the petition, with the amendments properly incorporated therein, unless the court order otherwise. (9.) If the claimant die pending the suit, his death may be suggested on the record, and his proper Death of ti^e claimant. representative may, on motion, and on filing a duly-authenticated copy of the record of his appointment as executor or administrator, be admitted to prosecute the suit. See Ct. CI. Rales 15, 22. Statutory Provisions. Rev. Stats, sec. 1073.] Petitions to contain matters enumerated, and to be verified. Bev. Stats, sec. 1073.] Petition to be dismissed if issue found against claimant, as to allegiance, etc. liev. Stats, sec. 1077.] If petition does not show ground for relief, testi- mony will not be taken. Bev. Stats, .sec. 955.] Proceedings on death of a party before judg- ment in any court of the United States. ' B&B. Stats, sec. 956.] Same where one of several parties dies, and the cause of action survives. Decisions. The Court of Claims cannot by rule require parties to present their claims to an executive department before suing in that Court. Clyde ». U. 8., 13 WaU. 38; reversing S. C, 7 Ot. CI. 363. It is unnecessary for a claimant in the Court of Claims under the cap- 232 KULES OF THE COURT OE CLAIMS. tiired and abandoned property act, to prove loyalty to the Union during the late war, inasmuch as the President's proclamation of Dec. 25, 1868, grants a pardon to all participants in the rebellion. Pargouud a. U. 8., 13 Wall. 156 ; S. C, 7 Ot. CI. 280. (See Klein's case, 7 Vt. 01. 240.) And such pardon extends to aliens domiciled in the United States during the rebellion. Carlisle «. U. S., 16 Wall. 147. (See Collie's case, 9 Ut. CI. 431.) Where a claimant neglects to verify his petition, the defendants should move to dismiss it for irregularity ; they cannot take advantage of tha ommission as a jurisdictional defect. Griffin's Case, 13 Ct. CI. 257. EuLE III. — Pleas. (1.) Demurrers to petitions and general traverses thereof __ , . . must be filed within two months after the fil- When pleas mnst be fi''"!- ing of the petition ; and pleas averring special defense, set-ofE, or counter-claim, within one month after the claimant places his case on the notice-book. (3.) When the Attorney-General demurs to the petition, „ ^ , _. he must set forth the grounds of the de- Grounds of demurrer. ° , murrer specially; but if the ground be that the petition does not allege facts suflScient to consti- tute a cause of action, that objection may be stated gcn- T J X , erally. If the demurrer be sustained, the Judgment on demurrer. . ■' , ' claimant may, of right, amend his peti- tion, within such time as the court may direct ; but if ho decline to amend, judgment will be rendered dismissing the petition. If the demurrer be overruled, the defendants may, of right, plead to the petition, within such time as the court may direct ; but if they decline so to plead, judgment will be rendered for the claimant according to the j)rayer of t!ie petition ; or the court will order an assessment of damages, as the Attorney-General may elect. (3.) Within one month after the filing of a set-off or RepUoation to set-off, countcr-claim by the defendants, the claim- "■ ant must answer the same by ^ replication under oath ; in default whereof the court may, after ten days' notice by the defendants to the claimant, order that the set- off or counter-claim be considered as admitted. (4.) When the Attorney-General pleads, under section 1086 Plea of fraud. °^ '^^^^ Revised Statutes, that the claimant has praticed or attempted to practice fraud, he shall set forth the facts with suflacient particularity to enable EULES OF THE COURT OF CLAIMS. 233 the claimant to answer the same in detail ; and the claimant shall, within two months after the filing of said plea, reply to the same with like particularity, under oath. Rule IV. — Motions. (1.) Motions will be heard in the first instance before a Judge at chambers ; but he may direct the Motions to be am heard same to be heard in open court. They must "■' <=''^™''«'''*- come to him through the clerk's office, and, when acted upon, will be returned there by him. (3.) Motions must be in writing, signed by the attorney of record, and must give the title and number of the case and the term at which they are made ; and in no case shall the clerk enter the motion unless this rule be complied with. (3.) No order will be entered by the clerk unless it be directed from the bench, or be reduced to when orders to be enter- writing and marked "Allowed" by the ed of record. Chief Justice or one of the Judges. (4.) The clerk will not file any paper unless it be properly indorsed with the title and number of ;tli p^^^^^ ^^ ^^ .^^^^^^^ suit and the name of the attorney filling it. before filing. EuLB V. — Service of N'otices. (1.) Parties filing petitions, pleadings and motions, ex- cept motions for calls on Departments, must service made through at the same time leave Avith the clerk written tion of time.' notice thereof, addressed to the attorney of the adverse party with postage prepaid, and the clerk will mail the same and note the fact on the general docket. All other notices to ad- verse parties may be served in like manner. ' The clerk's entry on his docket will be prima facie evidence of the service. In the computation of time, the day of the service will be ex- cluded, and the day on which a party is required to appear, or on which an act is required to be done, will be included. Rule VI. — Witnesses. (1.) When a petition is filed, either party may proceed to take testimony, notwithstanding that issue Evidence may be taken of fact has not been joined or that issue on before issue joined, demurrer may be pending 234 KtriiES OF THE COURT OF CLAIMS. (2.) Unless the court order a witness to testify orally on Testimony to be by de- the trial, the evidence of witnesses must be positions. Officers who may take depositioas. by deposition, taken either before a com- missioner of the court, or a judge of a court of the United States, or a judge of a court of record in a State or Territory of the United States, or a commissioner appointed by a circuit court of the United States, or a notary public. (3.) When a witness can be conreniently examined before wiien depositions may a judge of this court, either party, at any be talcen before a judge ^. ° . ,,, .,. *' •' of this court. time prior to the examination, may moye for an order directing that his deposition be so taken. (4.) If a witness, having been duly summoned, and his „ ^. . ^ fees tendered him, shall fail or refuse to ap- Proceedings against ^ witness in contempt, pear and testify before any officer authorized to take his testimony, a rule upon him will be issued by the court, on motion, to show cause why a fine should not be im- posed upon him, and, if he fail to show sufficient cause, he shall be fined not exceeding one hundred dollars. (5.) The fees of witnesses shall be such as are now, or may hereafter be, prescribed by Congress, and shall Fees of witnesses. , • n i ii i j_ i • , n be paid by the party at whose instance the witnesses appear. (6.) The court may remand any case to the docket, and „_ , order a witness or a claimant to be produced Witness may be exam- ^ ined in court. before the court or one of the Judges there- of for examination. See Ct. CI. Enles 7, 8, 9, 10, 11. Statutory Provisions. Bev Stats, sec. 1078.] Witnesses not excluded in Court of Claims on account of color. Bev. Siats. sec. 1079.] Parties and persons interested in claims exclud- ed as witnesses. Bev. Stats, sec. 1080.] Claimant may be examined at the instance of the attorney on behalf of the government. (Note. — Parties can testify in their own behalf in cases referred by Congress or Executive Depart- ment under act Mar. 3, 1883, 23, Stat. L. 485.) Bev. Siats. sec. 1081.] Testimony to be taken where witness resides. Bev. Stats, sec. 1082.] How witnesses compelled to attend before com- missioners. Bev. Stats, sec. 1083.] Cross-examination of witnesses on behalf of the government. Bei>. Stats, sec. 1084.] Commissioner to administer oath orafiarmation to witnesses. KtlLES OF THE COURT OF CLAIMS. 235 Decisions. Where an agent acting without authority of his principal, but in his name, does an act which the principal never ratifies, and such agent afterwards flies a petition in the Court of Claims for relief, he is regard- ed as the principal, and is debarred from testifying in his own behalf. Stoddart's case, 4 Ot. 01. 511. Trustees of a corporation are competent witnesses for the corporation in a suit in the Court of Claims. Hebrew Congregation's case, 6 Ot. VI. 341. A surety who has guaranteed the performance of a contract as to which a breach is alleged and damages are claimed, is incompetent as a witness for the claimant. Wood's case, 10 Ot. 01. 395. Creditors of an estate cannot be witnesses in a suit prosecuted by an administrator, where whatever may be recovered will go to increase their dividend. Henegan's case, 17 Ot. 01. 155. The statute excluding parties from being witnesses in their own behalf in the Court of Claims was intended to do no more than restore in that court the common law rule excluding parties as witnesses ; and hence they can testify to such matters as may be permitted under the common law rule. V.S.v. Clark, 96 U. S. 37. The deposition of a witness who Is not a party to the action, although interested therein, may be taken on the part of the United States to de- feat a claim. Kulb v. U. S., 18 Ot. CI. 40. The right of the government to examine the claimant as a witness can- not be extended to any other person ; and the claimant can be held re- sponsible only for his own non-attendance as a witness. Macaulay's case, 11 Ot. 01. 575. The government may call as a witness before trial, the assignor of the claim in suit, or a person interested in the event, and may withhold the testimony at the trial, as it may that of a claimant. lb. It is no objection to the competency of a witness for the government in the Court of Claims that his interest is adverse to that of the claimants, and that a judgment against them may have the effect of establishing bis right to the money claimed. Bradley «.U S., 104 TJ. 8. 443. EuLB VII. — Depositions on Written Interrogatories. (1.) Depositions obtained in foreign countries must be taken on written interrogatories, sent out under a Depositions in foreign special commission issued by the clerk. De- coumries. positions may be taken in like manner within the United States, by consent of parties, or when authorized by the court, or by a Judge in vacation. The written interrogatories must be filed in the clerk's office, and notice thereof given to the adverse party. Within fifteen days after such notice, the ad- verse party may file objections to any of the interrogatories, specifically stating the grounds of objection ; and may eithei 236 ETJLES OF THE COUET OF CLAIMS. file cross-interrogatories, or a notice that he will cross-examine the witnesses orally ; which notice shall be attached to and sent out with the special commission. If he file cross-interro- gatories, the other party may, within fifteen days thereafter, file objections thereto, specifically stating the grounds of ob- jection. No objections to an ihterrogatory or a cross-interro- gatory will be considered at the trial unless taken before the commission issues. (2. ) When a deposition is taken upon written interrogatories Parties not to be pres- and Written cross-interrogatories, neither ent at taking. ^j^^ Attomey-Geueral, nor the claimant, his agent or attorney, nor any other person, shall be present at the examination of the witness ; which fact shall be certified by the ofiicer taking the deposition ; who shall, in such cases, propound the interrogatories and cross-interrogatories to the witness in their order, and reduce his answers to writing as nearly as practicable in his precise words. See Ct. 01. Eule 6, and etatutes and decisions noted thereunder ; and also Ct. 01. Eules 8, 9, 10, 11. Rule YIIL— Depositions on Oral Examination. (1.) The party proposing to take depositions on oral ex- Notice for taking de- aminatiou shall cause fifteen days' notice to positions on oral ex- - . ^ amination. be given thereof to the other party. The notice must be in writing, and state the names of the witnesses to be examined, the day of the month, the hour, and the place of taking deposition. When the claimant proposes to take a deposition, and the witness resides more than five hundred miles from Washington, or when the defendants propose to take the deposition, and the witness resides more than five hundred miles from the claimant or his attorney, one day's further notice shall be given for every additional hundred miles. (3.) If the claimant proposes to take a deposition in the i^to bVtotentn Was™ ^^^^ °^ Washington, three days' notice shall '°ston. be sufficient ; and a like notice by the de- fendants shall be sufficient when the claimant's attorney re- sides in the city of Washington. (3.) When a deposition is taken by oral examination, each Questions and answers question propounded to the witness must be to bG rGCorfipd recorded, and his answers must be taken down, as nearly as may be, in hi§ own words. EULES OF THE COrKT OP CLAIMS. 237 (4.) No general objectiou to any question shall be noticed by the ofBcer : but where an obiection is , -r- Ti , , -I 1,1 J. Objections to questions. made on specmcaily stated grounds, the oi- ficer shall record the same in direct connection with the ques- tion objected to. (5.) When depositions are taken on notice, as provided in section 1 of this article, if both parties are "^^^^ witnesses not . ^ named in the notice present or represented at the time and place may be examined. specified in the notice, either party may, after the examination of the witnesses produced under tlie notice, be entitled to pro- duce ana examine other witnesses ; but in order thereto one day's notice must be given to the adverse party, or his attor- ney, there present. See Ct. CI. Eule 6, and statntes and decisions noted tlieunder ; and also Ot. CI. Bules 7, 9, 10, 11. EuLB IX. — General Provisions as to Depositions. (1.) Witnesses must be sworn or affirmed, before any ques- tions are put to them, to tell the truth, the of ^^f. oath. General whole truth, and nothing but the truth, rela- ""enogatories. tive to the cause in which they are to testify ; and each wit- ness shall then state his name, his occupation, his age, if under twenty-one years, his place of residence ; whether he has any, and, if any, what interest, direct or indirect, in the claim which is the subject of inquiry ; and whether, and in what de- gree, he is related to the claimant. At the conclusion of the deposition, the witness shall state whether he knows of any other matter relative to the claim in question ; and if he do, he shall state ib. The testimony of the witness when com- pleted shall be read over to him, and be signed by him in the presence of the officer. (2.) The officer should so connect the sheets of the depo- sition that they cannot be tampered with, g^^^^^^ ^^ depositions and should return them sealed together. He >"'«' p"' together. should sign, and make the witness sign, each sheet ; and gen- erally he should spare no pains to return to the court the exact evidence he has taken. All exhibits should be carefully marked so as to be capable of immediate identification, and, when practicable, should be attached to the deposition under seal. (3.) The officer must state, in the caption of the deposi- 238 RULES OF THE COTTET OF CLAIMS. ' capUon of deposition, tion, the cause in which it -was taken, the place and date of taking, the name of the witness, the party by whom called, and the names of the parties and counsel present. And in the body of the deposition must also be shown by whom the witness was examined and cross-examined. (4.) In his return the officer must show that the witness What the officer's return was properly swom or affirmed, and that must show. ^i^g answers were taken down in his pres- ence, and read over to and signed by the witness. (5.) The officer must inclose the commission, depositions, Eetarn of deposition. and exhibits in a packet, under his seal, and direct the same to the clerk of the court at Washington, and deposit the packet in the post-office, or in an express- office, or he may transmit the same by a messenger, whose name shall be by him indorsed on the packet. (6.) If the officer's fees be not paid at the time of taking Officer's fecsto bo paid the deposition, he should indorse on the out- before opening the dep- .■■-,, i j. ii, j. ji i, • osition. side of the packet the gross amount of his fees and disbursements, and inclose inside a detailed state- ment thereof. The packet must not be opened nntil the party for whom the depositions were taken deposits with the plerk the amount indorsed thereon. The clerk will then open the packet, and tax the officer's charges at the rate hereinafter provided, and immediately transmit to him the amount taxed, returning the overplus, if any, to the party. The money will be transmitted by draft or registered letter, and the clerk will retain his vouchers therefor. (7.) The fees shall be three dollars a day for attending to Fee list. take the depositions, and twenty cents a folio of one hundred words for taking and returning it ; but this per diem allowance is limited to one day for a deposition or series of depositions taken in the same case. Short-hand reporters, acting as special commissioners, will receive, in addition to these fees, ten cents a folio for writing out the de- position from their notes. (8.) Any permanent commissioner charging in excess of Excessive charges, the prescribed fees, except under a previous written agreement with the parties, will be deemed guilty of improper and illegal conduct, and his commission will be re- voked. (9.) Objections to the notice, or the form and manner of EULES OF THE COUKT OF CLAIMS. 239 taking or returning the testimony, must be objections to notice, made in writing, and filed within one month mS *"■ ''"'™ '" "' after notice of the filing of the deposition, or they will be con- sidered as waived. See Ct. 01. Enle 6, and statutes and decisions noted thereunder ; and also Ct. CI. Eules 7, 8, 10, 11. Statutory Provisions. Rev. Stats, sec. 1075.] Court of claims have power to appoint com- missioners to take testimony, prescribe their fees, and to issue com- missions. Bev. Stats, sec. 1085.] Fees of commissioner for taking testimony, by whom paid. EuLE X. — Evidence Certified from the Be'partments. (1.) The Attorney-General may offer in evidence properly certified information and papers from any Attorney- General may Executive Department, without calling for papers from Departments. the same under the provisions of section 1076 of the Eevised Statutes. A call for such information and papers will be made at a claimant's request, on the approval of a Judge in cham- bers. On the receipt of an answer to the call, the clerk will notify the claimant's counsel and the Attorney-General by post. (2.) All information or papers furnished by an Executive Department in response to a call, or through objections to papers, the Attorney-General, is subject to objection ^"^•' '"''™"' "'^'°*^'^- by either party according to the rules of evidence at the com- mon law ; but neither party will be required to produce the originals of such papers, or to prove their execution, unless within one month after the return is filed the party objecting to such papers enter of record in the clerk's office a written denial of their genuineness. (3.) Whenever it is charged in a petition that a contract has been made or other liability incurred omdai character of offl- through an ofiEicer or agent of the United <:«. when to be proved. States, other than the head of an Executive Department or the chief of a bureau, the claimant will be required to prove that such person was an officer or agent of the United States, by the certificate of the proper Executive Department, or by other legal and suflQcient evidence. 340 RULES 01" THE COUET OP CLAIMS. (4.) Any information or papers ceritified from any Execu- offlciai papers filed in tive Department, and filed in any cause, may ?n ImrtiiCT."*^ ^ °^^ be used and applied in any other pending cause to which the same may be applicable or pertinent. To entitle such information or papers to be so used, copies there- of must be filed in such other cause before the same shall have been placed on the trial docket. See Ct. CI. Eule 6, and statutes and decisions noted thereunder; an4 also Ct. CI. Kule 7, 8, 9, 11. Statutory Provisions. Rev. Stats, sec. 188.] Attorney-General may call upon Departments for information, etc. Bev. Stats, sec. 1076.] Power of the Court of Claims to call upon De- partments for information. EuLE XI. — Production of Original Papers by the Claimant. (1.) The court may, at the instance of the Attorney-Gen- order for production of ^ral, Order any claiment, his agent or attor- papers by claimants. -n^j, to produce in court, or before any ofBcer authorized to take depositions, any letters, papers, deeds, documents or other writings in his possession or subject to his control, in any way relating to the claim sued upon ; and any claimant, his agent or attorney, who, after due notice, refuses to produce such letters, papers, deeds, documents, or other writings, when in his power to do so, shall be subject to attachment for contempt ; and, if he persist in such refusal, the court will direct the petition to be dismissed. See Ct. CI. Eule 6, and statutes and decisions noted thereunder ; and also Ct. 01. Eules 7, 8, 9, 10. Rule XII. — Briefs and Requests for Findings of Fact. (1. ) The claimant may at any time give notice to the At- ciose of claimant's torney-Gcneral that his proof is closed, by P™°'- an entry to that effect in the notice-book in the clerk's ofSce. If the Attorney-General shall not with- in two months thereafter file a request for further time to take proof, the claimant may, at any time after the expiration of that period, have the case placed on the trial list. RULES OF THE COURT OF CLAIMS. 241 (3.) The clerk shall not place a case on the trial list until the claimant files in the clerk's office twenty- p^i„ted copies of five printed copies of a brief stating the f.^Z^f'toHL^^ points of law on which he relies, with refer- '» ''® ^'^'^• ences to authorities, and twenty-five printed copies of the requests for facts required by Rule V of the "Eegulations prescribed by the Supreme Court of the United States under which appeals may be taken from the Court of Claims." (3.) Such requests must be in the following terms : " Tlie claimant, considering (he facts hereinafter „ « , , •^ J J Form or requests for set forth to ie proven, and deeming ihem ma- findings. terial to the due presentation of this case in the findings of fact, requests the court to find the same, as follows.'" Following this request must be a statement, in the form of distinct numbered propositions, of the facts which the party desires to have found ; and each proposition must be so prepared, with respect to its length, subject, and phraseology, that the court may conveniently pass upon it ; and they must be so arranged as to present a concise statement, in order and logical sequence, of the whole case, as the party desires it to appear in the findings of fact. Subjoined to each proposition must be references to the pages of the record containing the evidence relied on in its support ; but no evidence must be set out. Documents which may enter into the findings of fact need not be presented in the statement, but may be referred to therein by the pages of the i-ecord. (4.) The Attorney-General, within one month after the fil- ing of the claimant's brief and request, must nefenaant's brief and file his brief and request for findings of fact ■■<«i"est. and should indicate the requests on the claimant's part to which no objection is made. Such request must be in form and substance like that required of the claimant by the next preceding section. (5.) If the claimant neglect for two years after filing his petition, to close his proof and give notice to when Attorney-Gen- f ' '^ -J, J.- 1 era! may put case oa the Attorney-General, as required by section 1 tiie trial list. of this article, the defendants may place the case on the trial list. (6.) Whenever, in any case which the when cases involving claimant has not put on the trial list, it shall t^'' GoremmCTrmay be shown to the court that an early decis- defeSdante.'"*' "'' "^ 16 242 "RULES OF THE C0t7ET OF CLAIMS. ion thereof is important to the interests of the GoTern- ment, the case may, in the discretion of the court, be placed on the trial list by the defendants. See Bttles 1, 4, 5, Sup. Ct. Bales governing appeals from the Coart of Claim;, and statutes and decisions noted thereunder. Efle XIII. — Trials and other Proceedings in Court. (1.) When the defendants' brief and request are filed the When case to be held casc will be Considered as ready for trial, ready for trial. and, whcn reached, a continuance will not be ordered, except by consent of parties, or for good cause shown. (3.) The tibial docket will be made up monthly. Cases will Trial docket. go upon it in the order in which notices of trial have been filed. (3.) The peremptory call of the trial docket will begin on When trial docket to be the Tuesday after the first Monday of each '^"^'*- month during the term. (4.) Jio case will be heard for trial unless the printed plead- Kecord to be made up ings, cvidencc, and briefs be made up in in book form. -^^^^ ^^^^ together and paged consecutively, and a copy thereof furnished to each member of the court at the hearing ; and all citations from, or reference to, such plead- ings, evidence, and briefs must be by the consecutive paging of such book. (5.) "When, in any case, the record shall be made up in Table of contents, book form, as required in the next preced- ing section, the chief clerk Avill make, cause to be printed, and prefix to each copy of the record so made up, a table of the contents thereof, with references to the page where each docu- ment and each piece of evidence may be found. (6.) The law docket will be taken up on Monday of each Law docket. Week during the term. EuLE XIV. — Printing. (1.) The testimony and briefs will be printed. In printing Depositions, how to be the testimony, the notices and the ofiicer's ''"'"'' ■ captions and certificates will be omitted ; but to each deposition there must be prefixed a title in the following form : Deposition of for claimant [or de- fendant, as the case may be], taken at , ore the EULES OF THE COURT OF CLAIMS. 243 day of , 18 — ; claimant's counsel, ; defendant's counsel, . (3.) "Where an answer of a Department is printed as evi- dence, the call for the same must be printed caiis on Departments therewith. to be printed. (3.) Before printing a return made to a call on a Depart- ment, the chief clerk will withhold from the J,,, ., -ij-ii rti.-, Matternot to be printed. copy lor the printer, 1st, all papers of which copieshaye been previously printed in the record of thecase ; and for this purpose he will compare the two copies, and if variations are found he will take the directions of a Judge in chambers before sending the return to the printer ; 3d, all certificates of authenticity and certificates of acknowledgment ; 3d, all papers which both parties agree to omit ; 4:th, all papers which a Judge in chambers orders to be omitted. In each case the chief clerk will make a memorandum of the omission in the copy for tlie printer, verified by his initials. (4.) If the claimant objects to printing information or pa- pers so returned, and the Attorney-Greneral ,,1 .1 -iiii 11 Objections to printing. requests to have the same printed, the clerk will note a memorandum of such request in the copy for the printer, with his initials attached; and when such information or papers are printed, the same will be regarded as evidence ofEered on the part of the defense. All information and papers transmitted from a Department in reply to a claim- ant's call, and not thus objected to by him within ten days after return of the call, will be regarded as evidence ofEered by the claimant. (5.) The printed papers required by these rules must be in long primer type and in royal octavo , . . ° -^ •"■ 1 J! 1 Type and eize of page. pages, and the style and number of the case must be prefixed to all printed papers and to records 5f evi- dence. (6.) No deposition, return, or record on file shall be taken from the custody of the clerk by a claimant i'«PS"fj„t«-,^°;^» or his attorney, but either may attend at the office. clerk's office, and prepare his evidence for the press in the form and manner before prescribed. "When the evidence is complete and ready for the printer, the chief clerk will have it printed at the Public Printing Office. 244 EULES OF THE COURT OF CLAIMS. EuLE XV. — Limitation. (1.) n it appear on the face of the petition that the claim When petition may be first accrued morc than six years before the yeare'.^^" "^ "° ^^ petition was filed, the claimant must aver therein the existence and period of duration of some disability, recognized by law, -which prevented his filing his petition within that time ; in default whereof, it will be considered that no such disability existed, and the petition may be dis- missed on motion. (3.) If the claimant, in avoidance of the bar of limitation. When petition may be aver in his petition the existence and dura- fhr^rs."" ''" "' tion of any such disability, and it thereby appears that, after the disability ended, more than three years had elapsed before the petition was filed, the petition may be dismissed on motion. (3.) If upon the face of the petition it does not appear If petition does not whcn the claim first accrued, the court may cme'a,it''mast"bfmad; require the claimant to make the petition certain. definite and certain in that regard, and in default thereof may dismiss the suit. (4.) Averments in regard to the time when a claim first Averments as to time accrued, or in regard to an alleged disability fali^by^senerartrav- 0* t^c claimant, will be held to be put in «'^«- issue by the defendant's general traverse. See Ct. 01. Kule 2. Statutory Provisions. Bev. Slats, sec. 1069.] Claims barred unless petition filed in Court of Claims, or transmitted to it by Senate or House of Representatives within six years after claim first accrued, except in cases enumerated. Decisions. The limitation prescribed by statute within which a suit must be brought in the Court of Claims does not begin to run if there be no per- son in existence when the claim accrues who is qualified to sue upon it. Therefore, where a contractor dies before the claim accrues, and ad- ministration on his estate does not take place until afterward, the statute will not begin to run until an administrator is appointed. Fulenweider'a Case, 9 Ct. CI. 403. Where a disbursing officer is seeking relief for lost funds, the statute of limitations does not run against him from the time of the loss, but from the time he is oflBcially held responsible for the loss. Clark's Case, 11 Ct. CI. 698; Scott v. U. S., 18 M. 1. ' EULES OF THE COURT OP CLAIMS. 215 When it appears by the record of a case that more than six years had elapsed between the time the claim accrued and the filing of the petition, and nothing appears by the record to take the case out of the statute, the petition will be dismissed. Mrs. Campbell's Case, 13 Ct. CI. 108. It is not necessary that the statute of limitations be pleaded, for the court is bound to take notice of it, and will enquire whether it appears rom the face of the petition, or by evidence, that the period limited by law had expired before the petition was filed. Kendall ». U. B., 14 Ct. CI. 133. If the statute of limitations began to run during the lifetime of the claimant, its operation will not be arrested by his death. Sierra v. U. S., 9 Ct. CI. 324. The petition may be amended, and the claimant may present an amended petition, although more than six years have elapsed since the claim accrued. Griffin v. U. S., 13 Ct. CI. 257; Devlin v. U. S., 13 Id. 266. The limitation prescribed by statute within which suits must be brought in the Court of Claims does not bar claims referred by the head of an executive department, provided they were presented for settlement at the proper department within six years after they first accrued. U. St. V. Lippitt, 100 U. 8. 663; Green ». U. S., 18 Ct. CI. 93. In computing the six years' period of limitation, the time when the claimant was unable to sue by reason of participation in or aid to the rebellion must be included. Kendall v. U. S., 107 V. 8. 133. The petition in the Court of Claims is bad on demurrer when it appears therefrom that the claimant's right of action against the United States is barred by the lapse of time. lb. Acknowledgments and promises by executive officers of the govern- ment do not bind the United States where they are not made under ex- press or implied authority of Congress. Such acknowledgments and promises do not prevent the operation of the statute of limitations appli- cable to cases in the Court of Claims. Leonard i>. U. S., 18 Ct. CI. 383. The statute of limitations by its express terms, does not run against claims accrued after insanity, but it does run against all claims pre- viously accrued, lb. KuLB XVI. — Discontinuance. Where fraud or set-ofE is pleaded, the claimant shall not, without leave of the court, discontinue his No discontinaance y»j.>;iivj>^u ^^^,^ , ^ when fraud or set-ofE 13 suit. In other cases he may do so, either pleaded. in open court, or, with the approval of a Judge, in vacation. EuLB 'SNW.—New Trial. (1.) A new trial will not be granted where, upon the whole 246 EUXES OF THE COXJET OF CLAIMS.' New trial, ^'hen not to ^ase, justice has been done between the begranted. parties and the judgment is substantially right, although there may haVe been some mistakes com- mitted at the trial. (3. ) A motion by a claimant for a new trial may be founded GrouDds of motion by ^V°^ ^ne or moro of the following grounds : claimant for new trial, igj;^ jji-poj. qJ f^ct ; 2d, Error of law ; and 3d, Newly-discovered OTidence. It must be made at the term in which the judgment is rendered, and before the commence- ment of the long vacation. (3.) A motion founded upon an error of fact must specify Motion founded on er- with minutencss the fact or facts which are ror of fact, wliat to ■,!•-, ■, specify. regarded as erroneously found or erroneously omitted to be found by the court, with full reference to the evidence which is relied on to support the motion. (4.) A motion founded upon error of law musb specify with Motion founded on er- like miuutcness the points upon which the ror of law, what to -, , ■, t -,-, , epecify. court IS supposed to havo erred, with refer- ences to the authorities relied upon to support the motion. (5.) A motion upon the ground of newly-discovered evi- Motion founded on dencc will not be entertained unless it ap- newly-diecovered cvi- ,i,,, it -, • ■, dence. pear tl^at the newly-discovered evidence came to the knowledge of the claimant or his attorney after the trial and before the motion was made ; that it was not for want of due diligence that it did not sooner come to his knowledge ; that it is so material that it would probably pro- duce a different judgment if the new trial were granted ; and that it is not cumulative. Such motion must be accompanied by the affidavit of the claimant or his attorney of record, set- ting forth — . a. The facts in detail which the claimant expects to be able to prove, and whether the same are to be proved by witnesses or by documentary evidence. d. The name, occupation, and residence of each and every witness whom it is proposed to call to prove said facts. c. That the said facts were unknown to either the claim- ant or his attorney of record, and, if other counsel was employed at the trial, were unknown to such counsel, until after the close of the trial. (J: The reasons why the claimant and his attorney of record and his said counsel could not have discovered RULES OF THE COURT OF CLAIMS. 247 said evidence before the trial, if due diligence had been used. (6.) If the court desires to hear argument upon a motion by a claimant for a new trial, the motion when argument to be will be ordered to the law docket ; other- °'-'^<":'^^- ■wise decision will be announced from the bench without hear- Statutory Provisions. Bev. Siats., sec. 1087.] When new trial may be granted on motion of claimant. Bev. Siats., sec. 1088.] When new trial may be granted on motion of government. Decisions. A claimant has no right to demand a new trial for a mistake in the findings of fact ; but the error will be corrected as long as the pro- ceedings are under the control of the court. Calhouii!). U. S., 14 Ct. 01. 193 ; Neal v. U. S., Id. 47. A new trial will not be granted on the ground of newly-discovered evidence, if, b3' the use of due diligence such evidence might have been discovered in time for the first trial. Garrisons. U. S., 2 Gt. CI. 383 ; Armstrong v. U. S., 6 Id. 226 ; Dreson «. U. S., Id. 237 ; Bramhall v. U. S., M. 238. A new trial will not de granted on newly-discovered evidence, unless it appears that it will produce a diilerent result. Bramhall v. U. S., 6 Ct. CI. 338 ; Garrison v. U. S., 2 Id. 382. In what cases new trials will be granted on motion of the govern- ment based upon newly-discovered evidence. Ford v. U. S., 18 Ct. CI. 63. A new trial will not be granted when tlio motion therefor indicates t/iat the party malting it desires only to reargue the whole case upon the facts and law exactly as they were presented at the trial, without any in- dication that he has any thing new to offer. Roche ii. Dist. Col., 18 Ct.Cl. 389 ; Power «. U. S., Id. 493. Rule XVIII. — Appeals. (1.) Application for appeal to the Supreme Court of the ■United States from any judgment or decree Application for ap^ieais; of this court must be in writing, and signed iiowm^de. by the claimant or his attorney of record, if the appeal bo on his behalf; or, if taken by the United States, it must be signed by the Attorney-General or his Assistant. (3.) Such application, if made when the court is not in ses- 248 KtTLES OF THE COUET OF CLAIMS. To be filed in cierk-s sion, musfc be filed with the clerk, and the office, when. ^g^j-g ^f filing the same must be indorsed upon it Hnd noted upon the general docket. See Eales 1, 3, 4, 5, of Snp. Ct. Enles governing Appeals from Court of Claims, and statutes and decisions noted thereunder. Statutory Provisions. Rei). Stats, sec. 707.] In what cases appeals may be taken to the Supreme Court. Bev. Stats, sec. 708.] Time and manner of taking appeals. Rule XIX.— ClerFs Office. (1.) During term time the clerk's office must be kept open every day, except Sundays and holidays, from Hoars of clerk's office. „ , , . , i i x i 9^ A. M. to 4 P. M., or to such later hours as the court may be in session or in conference. During the Christmas holidays, the office may be closed at 1 p. M., and in vacation at 3 p. m. (2.) "When the court is in session, both the chief clerk and the assistant clerk will be at the office during Attendance of clerks. ,v> -t -r , ■ ,i office hours. In vacation they may arrange their hours to suit each other and the public business. (3.) The chief clerk will have charge of the journal of the ^ ,. ^ u- . , , court, of the law and trial dockets, of the Duties of cliief clerk. ' ' ' printing, and of the preparation of the tables of contents of the records of each case ; and he will also pre- pare the annual return to Congress. (4.) The assistant clerk will attend to office business, and Duties of assistant ^^i'l ^i^^e charge of the general docket, the "'"'^- notice book, and the giving of notices under these rules. (5.) In the absence of the cliief or the assistant clerk, his duties will be temporarily performed by the Provision for absence. • other. (6.) Anyone wishing to see any j)apers on file in the elerk's Papers on file, ho-w officc will apply tlicrefor to the chief or obtained for examina- . , i i i .n j_ i n j. ji • lion by parlies. assistant clerk, who Will take them irom their place of deposit, and return them thereto when done with ; and no such papers can be taken out of the clerk's office, except by authority of the court, or of one of the members thereof. RULES OF THE COURT OF CLAIMS. 249 Rule XX. — Withdrawal of Papers, Papers shall not be withdrawn from the files except on motion for good cause shown, and upon such terms as the court or a judge may ^«*'^™™"'f ?"?"»• order. Rule XXI. — Extension of Time. The time named in these rules for the doing of any act may be extended on motion for good Extension of time. cause shown. Rule XXII. — Departmental and Congressional Cases. (1.) Cases involving controverted questions of fact or law in any claim or matter, transmitted to the oases transmitted by court under the provisions of section 2 of 3°ct''to"'li;me*°uie3™a8 the act of March 3, 1883, entitled "An "tier cases. Act to afford assistance and relief to Congress and the Execu- tive Departments in the investigation of claims and demands against the government," shall be proceeded with in like man- ner, and subject to the same rules, so far as applicable, as other cases in the court under its general jurisdiction, except as herein provided. (2.) When a case is so transmitted the clerk shall examine the papers and send notice thereof by mail Persons directly inter- . ested to be notified by to every person, whose post-omce address is cierk. given, who appears therefrom to be directly interested, therein, and to the Attorney-General, noting the fact ou the records, and specifying the names of the parties notified, and the date of notice. (3.) Within two months after mailing of such notices, or within such further time as the court may to aie petition witMn allow, any person directly interested in the ^° """'' ^' case may appear as a party therein, by filing his petition, under oath, setting forth concisely and specifically his interest and claim. (4.) Any person claiming to bo indirectly interested in any Question involved in such case may, by leave Persons indirectly in- ^ . ., Till forested may appear of court, be permitted to appear ana be heard and bo heard. on the one side or the other, as his interest may require, upon filing a petition, under oath, setting forth specifically and 250 KDLES OF THE COURT OF CLAIMS. concisely how he claims to be so interested, and submitting the questions raised to the decision of the court. (5.) If no claimant, directly or indirectly interested, appears If no person interested and files his petition within said two months, Sm'afset^cSedown the Attorney-General, or Assistant Attorney- '°'^ '™'- General charged with defending the Goyern- ment in this court, may set the case down for trial upon such evidence as he may submit. (6.) When a case is ti-ansmitted to the court by either In cases transmitted Housc of Congrcss, or a c jmmittec thereof, from Congress, clerk to , ,, n , i- p • i t ■ i • Bend notices to parties. Under the first sectiou of Said act, involving the investigation and determination of facts in any claim or matter, the clerk shall examine the papers and send notice by mail to every person, whose post-ofSce address is given, who appears therefrom to be directly interested therein, and to the Attorney-General, noting the fact on the record and specify- ing the names of the parties notified and the dates thereof. (7.) Within two months after the mailing of such notices, Persons interested may Or within such further time as the court may fiiing'petitions!^ '^' ^ allow, any person directly interested in the case may appear as a party therein, by filing his petition, under oath, setting forth concisely and specifically his claim cases to be nroceeded and interest. Thereafter the case shall be riid* under°'the saml procecded with, in like manner, and subject '""'®'- to the same rules, so far as applicable, as other cases in the court under its general jurisdiction. Statutory Provisions. Act Mar. 3, 1883, ch. 110, 23 Stat. L. 485.] Claims pending before eitlier House of CongresSjOr committees, or before Executive Departments, may be referred to Court of Claims for examination and report. aENEEAL INDEX. [Note. — The References in parentheses are to the Rules.'] Page ABATEMENT— Of causes in Supreme Court, when representative of deceased party fails to appear -witliin time limited (Sup. Ct. 15) 37 In cases of, in equity, bill of revivor may be filed (Bq. 56) 11 ACCOUNT— Of personal estate of decedent, in equity (Eq. 73) 136 ACCOUNTING— See Master. ADJOURNMENT— Of Supreme Court, wtien announced in advance (Sup. Ct. 37) 53 ADMIRALTY CAUSES— See Pbocbss. Record in, in Supreme Court (Sup. Ct. 8) 19 How further proof taken in, in Supreme Court (Sup. Ct. 13) 33 Objections to exhibits in, waived in Supreme Court, unless taken below (Sup. Ct. 13)... 34 ADMISSION OP ATTORNEYS AND COUNSELORS— See Attokneys and Counselors. ADVERSE PROPRIETORS OP VESSELS— Suits between (Ad. 30) , 184 AFFIRMATION- May be taken in lieu of oath, in equity (Bq. 91) 150 AMENDMENT— Of bills in equity, when allowed of course (Bq. 38) 86 When not of course (Eq, 39) 86 Abandonment of order allowing (Eq. 30) 89 Of plaintiff's bill, if necessary by reason of matter in answer (Eq. 45) 101 By libellant in admiralty to confess or avoid new matter in answer (Ad. 51) 215 By libellant, defendant to answer amendments (Ad. 51) 315 Of petition in Court of Claims (Ct. CI. 2) 230 252 GENERAL INDEX. Page ANSWER IN ADMIRALTY— Verification and form of (Ad. 27) 195 Modification of requirement (Ad. 48) 213 Exceptions to (Ad. 28) 197 Default in maliiog answer (Ad. 29) 197 Setting aside default on payment of costs (Ad. 29) 197 Wlien f urtlier, may be compelled (Ad. 30) 198 Matter that would criminate defendant may be omitted from (Ad. 31) 198 Exceptions to, for matter of form (Ad. i!6) 201 New matter in, considered denied by libellant witliout rep- lication (Ad. 51) 215 But libellant may amend, etc (Ad. 51) 215 Defendant to answer amendment (Ad. 51). . . . 215 ANSWER IN EQUITY— Of defendant, when to be filed (Eq. 18) 79 Bill taken pro confesso, on default (Bq. 18) 79 Or attachment may issue to compel answer, at election of plaintiff (Eq. 18) 79 Defendant need not answer when he may protect himself by plea (Eq. 39) 97 Matter in bar may be insisted on in, by defendant (Eq. 39) 97 Example (Eq. 39) 97 When, and what part of, evidence (Eq. 41) 99 Not to prevent defendant from becoming a witness in his own behalf (Eq. 41) 99 Suggestion of detect of parties by (Eq. 53) 10 Effect of plaintiff's omission to set down objec- tion for argument (Eq. 52) 109 Court at liberty to dismiss bill (Bq. 53) 109 To supplemental bill, when to be filed (Eq. 57) 119 Before whom sworn to (Eq. 59) 120 In what respects may be amended of course, before replica- tion filed, or cause set down on bill and answer (Eq. 60) 120 After replication or setting down (Eq. 60) 121 Amendments may be required to be sepa- rately engrossed, etc. (Eq. 60) 121 When exceptions to, may be filed (Eq. 61) 123 If no exception filed, answer deemed sufficient (Eq. 61) 122 Exceptions to, when to be set down for argument (Eq. 63) 123 Abandonment of exceptions, provided, etc.(Eq. 63) 133 New, if exceptions allowed (Eq. 64) 124 Remedy of plaintiff on default (Eq. 64) 124 Prevailing party on exceptions to, entitled to costs (Eq. 65) 124 Of defendant, must be filed before he can require plaintiff to answer cross-bill for discovery (Eq. 72) 134 GENEEAL INDEX. 253 APPEAL- ^*^* When taken for delay, damages awarded in Supreme Court (Sup. Ct. 23) '..... 45 Supersedeas bonds on, to Supreme Court (Sup. Ct. 39) 53 From Court of Claims to Supreme Court, Upon what record heard (Ot. CI. App. 1) 61 How taken (Ct. CI. App. 3) 64 Allowance of (Ct. CI. App. 8) 65 Limitation (Ct. CI. App. 3) 65 Requests to find (Ct. CI. App. 6) , 66 Finding to be filed (Ct. CI. Ajp. 4) 65 How application for made (Ct. CI. 17) 247 To be filed in clerk's office, when (Ct. CI. 17) 247 Suspension or modification of injunction pending, to Su- preme Court (Eq. 93) 151 In admiralty, from district to circuit courts (Ad. 45) 209 Further proof in circuit court (Ad. 49) 213 How oral evidence taken down by clerk of district court used (Ad. 50) 214 Eecord, what to contain (Ad. 53) 315 Clerk to page, index and certify copy of record (Ad. 53) 216 What matter may be omitted from record (Ad. 53) 216 APPEA.RANCE— Of defendant to process in equity in Supreme Court (Sup. Ct.5) 12 Of counsel for parties docketing cases in Supreme Court, when to be entered (Sup. Ct. 9) 26 No, of plaintifE when case is called in Supreme Court (Sup. Ct.l6) f 40 Of defendant (Sup. Ct.l7) 40 Of either party (Sup. Ct. 18) 41 Of defendant in equity. When (Eq. 17) 78 Entry of, by clerk (Eq. 17) 78 APPELLANT— To docket case in Supreme Court (Sup. Ct. 9) 26 Brief of in Supreme Court (Sup. Ct. 21) 42 Entitled to open and conclude case in Supreme Court, ex- cept, etc. (Sup. Ct. 22) 45 APPELLEE— When case in Supreme Court to be docketed by (Sup. Ct. 9) 26 Brief of in Supreme Court (Sup. Ct. 21) 43 ARGUMENT— Of pleas and demurrers in equity (Eq. 38) 94 254 GEITEEAL index/ Pag9 AUQUMENT— continued. Of causes in Supreme Court — When causes maybe submitted on printed argu- ments (Sup. Ct. 20) 41 Not received after cause submitted, except (Sup. Ct. 20) 41 Order of argument (Sup. Ct. 23) 45 Only two counsel to be heard (Sup. Ct. 32). . . . 45 Two hours allowed on each side, etc. (Sup. Ct. 22) 45 ARREST— ^ In admiralty causes, when (Ad. 2) ' 156 Bail in such cases (Ad. 3) 159 Summary execution against sureties in bail (Ad. 3) 159 Warrant not to issue in certain cases without special order (Ad. 7) 163 Bail to be taken according to State law (Ad. 47) 213 ASSIGNMENT OF ERRORS— In cases in Supreme Court, or counsel not heard (Sup. Ct. 21) 43 ATTACHMENT— To compel payment of clerk's fees in Supreme Court (Sup. Ct. 10) 29 When to issue against defendant in equity to compel appear- ance (Eq. 7) 70 To compel answer (Eq. 18) 79 la admiralty cases (Ad. 2) 156 Dissolution of (Ad. 4) 160 Security on dissolution to be kept good (Ad. 6) 163 ATTORNEYS AND COUNSELORS— Admission of, to Supreme Court (Sup. Ct. 2) 3 Oath or alBrmation, form (Sup. Ct. 2) 3 Clerk of Supreme Court not to practice (Sup. Ct. 1) 1 May take books from library of Supreme Court, etc. (Sup. Ct.7).... 17 Suits in Court of Claims may be commenced by attorney (Ct. CI. 1) 226 Power of attorney to be filed (Ct. CI. 1) 226 Admission of, in Court of Claims (Ct. CI. 1) 227 Only one attorney allowed (Ct. CI. 1) 228 Changes permitted (Ct. CI. 1) 228 To sign pleadings, etc. (Ct. CI. 1) 229 Post-offlce address to be registered (Ct. CI. 1) 239 Counsel may be heard on either side (Ct. CI. 1) 239 BAIL— How taken in admiralty causes (Ad. 3) 159 Reduction of (Ad. 6) '. 103 GENERAL INBEX. 255 BAIL — continued. Bond or stipulation to be kept good (Ad. 6) 163 To be taken according to law of State (Ad. 47) 213 BILL IN EQUITY— Must be filed before subpoena issued (Eq. 11) 73 When taken pro confesso (Bq. 18) 79 Introductory part of (Bq. 20) 81 What may be omitted f rom (Eq. 21) 83 Matter of avoidance may be stated in (Bq. 31) 83 Averment of, when parties out of the jurisdiction (Eq. 23). 83 Prayer for subpoena (Eq. 33) 83 For provisional remedy (Eq. 23) 88 To be signed by counsel (Eq. 34) 84 Unnecessary, impertinent or scandalous matter in (Eq. 36). 85 Amendment of, when of course (Bq. 38) 86 When not of course (Bq. 39) 86 Abandonment of order allowing (Bq. 30) 89 Interrogatories need not be inserted, unless, etc. (Eq. 40). . 99 Specification and numbering of interrogatories (Bq. 41) 99 Note as to interrogatories part of bill (Bq. 42) 100 Form of words preceding interrogating part (Bq. 43) 101 When defendant need not answer interrogatories (Bq. 44). 101 May be amended because of new matter in answer (Bq. 45) 101 New or supplemental, in case of amendment (Bq. 46) 103 When to be filed; default (Eq.46) 103 When parties may be omitted from (Eq. 47) 103 Decree in such cases (Bq. 47) 102 When parties very numerous (Eq. 48) 107 Decree in such cases (Bq. 48) 107 Trustees may sue alone (Eq. 49) 108 Persons beneficially interested may be omitted (Eq. 49) 108 Heir at law need not be made party to (Eq. 50) 108 Joint and several debtors, as parties (Eq. 51) 109 Supplemental bill, when may be filed (Eq. 57) 118 ; Need not state matter in original bill (Eq. 58) 130 After filing of bill, testimony de bene esse may be taken (Bq. 70) 133 Averments of bill in suits by stockholders (Eq. 94) 151 BILL OP EXCEPTIONS— Duty of Circuit and District Courts in allowing (Sup. Ct. 4) 6 Not to contain charge of court at large (Sup. Ct. 4) 6 But party to state parts objected to (Sup.Ct.4) 6 Only those parts inserted (Sup. Ct. 4) 6 In admiralty causes, part of record on appeal (Sup. Ct. 8) 19 BILL OF REVIVOR— May be filed when principal suit abates (Eq. 56) 117 256 GENEEAL INDEX. Page BILL OF REVIVOR— (»re<4«Me(f. Need not contain statements in original suits (Eq.^8) 120 BOND — See Supeesedeas. Bonds and stipulations in admiralty— See Bail ; Attach- ment ; Arrests. How and before wliora giv-en (Ad. 5) 161 BOOKS — See Law Library. BOTTOMRY BONDS— Suits on (Ad. 18) 181 Freight attached or bound by suit may be brought into court (Ad. 38) 203 BRIEF— Provisions as to, in Supreme Court (Sup. Ct. 21) 42 Form, size, etc. (Sup. Ct. 31) 57 In Court of Claims (Ct. CI. 12) 141 CERTIFICATE OF COUNSEL— Demurrer or plea in equity not to be filed without (Eq. 31) 89 Contents of certificate (Eq. 31) 89 CERTIORARI FOR DIMINUTION OF RECORD— ' How obtained in Supreme Court (Sup. Ct. 14) 34 CHANGE OF INTEREST IN CONTROVERSY— See Supple- mental Bill. CIRCUIT COURTS— As courts of equity, always open, etc. (Eq. 1) 67 Clerk of, to attend first Monday of every month, etc. (Eq. 2). 68 Judge of, may make orders in equity causes in vacation (Eq. 3) 68 Clerk of, to enter orders, etc., in equity granted of course (Eq. 2) 68 Orders granted by judge at chambers (Eq. 4). . . . 69 Motions granted by clerk (Eq. 5) 69 To issue process, when bill is filed (Eq. 12) 73 To enter appearance of defendant (Eq. 17) 78 Further rules in equity may be made by (Eq. 89) 148 Appeals to, in admiralty causes (Ad. 45) 209, May regulate practice in admiralty, when (Ad. 46) 212 Further proof in, on appeal in admiralty causes (Ad. 49). . . 213 Oral evidence taken down by Clerk of Dis- trict Court (Ad. 50) 214 Record on appeal to, in admiralty causes (Ad. 52) 215 Clerk of District Court to page index, and cer- tify (Ad. 52) 216 Matter may be omitted from by consent (Ad. 52) 216 Rules regulating proceedings by shipowners to obtain lim- itation of liability, apply to (Ad. 58) 224 CITATION— Service of in cases in Supreme Court (Sup. Ct. 8) 19 GENEEAL INDEX. 257 Page CITATIO'E— continued. On writs of error in cases removed from State courts (Sup. Ct. 33) 57 CLAIMANT— In admiralty causes, may have ship delivered to him on giving security, etc. (Ad. 11) 165 If security not given, ship may be sold (Ad. 11) 165 Claimant to verify his claim (Ad. 26). 193 When agent, etc., claimant (Ad. 26) 193 Stipulation for costs (Ad. 26) 193 In Court of Claims, wlien address to be registered (Ct. CI. 1) 229 May be required to produce original papers (Ct. CI. 11) 240 Brief of, when and number of copies to be filed (Ct. CI. 12) 241 CLERK— Of Supreme Court, to reside and keep office at seat of Na- tional Governnient, etc. (Sup. Ct. 1) 1 Not to practice as attorney or counselor (Sup. Ct. 1) 1 Not to permit original records to be taken from the court (Sup. Ct. 1). . 1 To keep record of books taken from law library by counsel (Sup. Ct. 7). 17 To deposit copy of record, etc., of cases in law library (Sup. Ct. 7). . . 17 Fees of, how secured (Sup. Ct. 10) 29 Payment of fees enforced by attach- ment (Sup. Ct. 10) 29 Schedule of fees (inserted opposite first page of Sup. Ct. Rules) iv To supervise printing and distribution of record (Sup. Ct, 10) 29 To insert costs in mandate (Sup. Ct. 24) 47 Duty of a? to opinions of court (Sup. Ct. 25) 49 Of Circuit Courts— See Circtjit Coukts. Of District Courts, to keep accounts of money drawn out (Ad. 43) ;.... 305 To prepare record on appeal in ad- miralty causes (Ad. 53) 215 To page, index and certify copy (Ad. 53) ., 316 To omit matter stipulated (Ad. 53) 316 Of Court of Claims, office hours (Ct CI. 19) 348 258 GENERAL INDEX. I ' Page CLERK — continued. Of Court of Claims, attendance of chief and other clerks (Ct. CI. 19) 348 Duties of chief clerk (Ct. CI. 19) 348 Duties of assistant (Ct. 01. 19) 348 Provision for absence (Ct. 01. 19) 348 How papers in clerk's office examined (Ct. 01. 19) 348 Not be withdrawn, except, etc. (Ct. 01. 30) 348 COLLISION— Suits for damages by (Ad. 15) 178 Third parties may be brought in, in cases of (Ad. 59) 334 Answer of such other parties (Ad. 59) 334 Security for costs, damages, etc (Ad. 59). . . . 234 CONSENT TO PASS CAUSE— See Stjpubmb Court. COMMISSION— See Evidence. COMMISSIONERS— In Court of Claims, See Evidence. Reference to, in admiralty causes (Ad. 44) t , , . . . 207 Powers of on reference (Ad. 44) 207 CONGRESS— Cases in Court of Claims, referred by (Ct. 01. 23) 349 CONTEMPT— See Witness. COSTS— In Supreme Court — See schedule of clerk's fees opposite page 1 of Supreme Court Rules. Miscellaneous provisions as to costs (Sup. Ct. 34) 47 To be inserted in mandate (Sup. Ct. 24) 47 In equity, on reopening default (Eq. 19) 80 For pleadings, limited (Eq. 25) 84 In cases of scandal and impertinence (Eq. 26). . . 85 On amendment of bills, of course (Eq. 28) 86 Not of course (Eq. 39). . 86 On overruling plea or demurrer (Eq. 34). '. 95 On allowance of plea or demurrer (Eq. 35) 95 When same solicitor appears for several defend- ants (Eq. 63) 133 To prevent frivolous exceptions to master's report (Eq. 84) 143 In admiralty, defendant to give stipulation for, in suits in personam (Ad. 35) 193 Stipulation for, on interposing claim (Ad. 26) 193 On setting aside default (Ad. 39) 197 Security for, by third persons intervening (Ad. 34) 300 On dismissal of petition for proceeds in registry (Ad. 43) 306 On flUng cross-libel (Ad. 53) 217 GENERAL INDEX. 259 COSTS— continued. ^^^ Security for, by defendant in collision cases on asking that third parties may be brought in (Ad. 59) 334 CORPORATIONS— Suits in equity, against, by stockholders, what bill must show (Eq. 94) 150 COUNSEL— See Attoenets and Counselors. In Supreme Court, appearance of, for party docketing case (Sup. Ct. 9) 36 Only two heard on each side on argument (Sup. Ct.23) 45 Only one, when no appearance by one of the parties (Sup. Ct. 21) 44 In Court of Claims, may be heard, but not entitled to file pleadings or make motions (Ct. CI. 1 ) 239 CROSS-BILL— Defendant cannot require plaintiff to answer, before answering original bill (Eq. 73) 134 Use of answer to (Eq. 73) , 134 CROSS-LIBEL— Security to be given by defendant on filing (Ad. 53). ...... . 317 COUNTERCLAIM— In Court of Claims, when pleas averring, to be filed (Ct. CI. 3) 333 COURT OF CLAIMS — See Appeals ; Attobnkts and Counsbl- OHS; Brief; Claimant; Clerk ; Counter- claim ; Death of a party ; Demurrer; Departmental and Congressional CASES; Discontinuance ; Evidence; Pil- ' ING OF papers ; Findings; Limitation; Motions ; Notice ; Orders ; Petition; Pleading; Record; Replication; Set- off; Special Defense; Traverse; Ttmal; Withdrawal of papers; Wit- nesses. Suits in, how commenced (Ct. CI. 1) 326 DAMAGES— When writ of error or appeal taken to Supreme Court for delay (Sup. Ct. 23) 45 DEATH OF A PARTY— In Supreme Court, proceedings in case of (Sup. Ct. 15) 36 In Court of Claims (Ct. CI. 2) 331 In Equity, bill of revivor may be filed (Bq. 56) 117 DEFAULT— Of defendant to process in equity in the Supreme Court (Sup. Ct. 5) 12 Of defendant in equity (Eq. 18) 79 260 GENEEAL INDEX. Page TtEFAWT—eoniinued. Decree in such case (Eq. 19) 80 Setting aside default (Eq. 19) 80 Of plaintiff in equity' in not replying, etc., to plea or de- murrer (Eq. 38) 97 Of defendant in admiralty, of answer (Ad. 29) 197 Setting aside default (Ad. 39) 197 Setting aside decree on default (Ad. 40) 303 Of libellant in admiralty in prosecuting suit (Ad. 39) 303 DECEDENTS' ESTATES— Accounting in such cases (Eq. 73) 136 DECREE— Clerical and other mistakes in, how corrected (Eq. 85) 143 What to be omitted from, in equity (Eq. 86) 144 Form of, in equity (Eq. 86) 144 In foreclosure cases (Eq. 93) j 150 In admiralty, enforcement of (Ad. 31) 185 Sales under, to be by marshal, etc. (Ad. 41). . 304 Disposition of proceeds (Ad. 41) 204 DEFENDANT— See Pleading. DEMURRER— By defendant in equity, when to be filed (Eq. 18) 79 In equity, not to be filed except on certificate of counsel (Eq. 31) 89 Argument of, in equity (Eq. 83) 94 Defendant to answer on overruling (Eq. 34) 95 Sufficiency of (Eq. 36) 96 In equity, good, although answer extends to matter de- murred to (Eq. 37) 96 Default of plaintifE in equity in setting down, etc. (Eq. 38) 97 If demurrer lies, defendant may not answer interrogatories (Eq. 44) 101 When defendant to file demurrer to supplemental bill (Eq. 57) 118 In Court of Claims, to petition (Ct. CI. 3) 333 Grounds of (Ct. CI. 8) 332 Judgment on (Ct. CI. 3) 333 DEPARTMENTS— Cases referred to Court of Claims by (Ct. CI. 33) 349 DEPOSITIONS— See Evidence. DIAGRAMS— Exhibits, diagrams, etc., in Supreme Court, to be removed after decision of cause (Sup. Ct. 33) 69 DISCONTINUANCE— See Dismissal. Not allowed in Court of Claims when fraud or set-off pleaded (Ct. CI. 16) 245 DISMISSAL— Docketing and dismissing causes in Supreme Court (Sup. Ct. 9) 26 GENERAL INDEX. 261 DISMISSAL— continued. ^^°'' In Supreme Court, when plaintiff fails to appear (SuJ). Ct. 16) 40 When neither party appears when case called (Sup. Ct. 18) 41 When neither party ready at second term (Sup. Ct. 19) 41 By consent during vacation (Sup. Ct. 28) 53 Of bill in equity, when plaintiff omits to reply, or, etc., to plea (Eq. 38) 97 For want of replication (Eq. 66) 134 Of suit in admiralty, if libellant fails to prosecufe (Ad. 39). 203 DISCOVERY— Cross-bill for, need not be answered before defendant an- swers original bill (Eq. 72) 134 DISTRICT COURTS— Appeals from to circuit courts in admiralty cases (Ad. 44). . 209 May regulate practice in admiralty when (Ad. 45) 212 DOCKETING— Of causes in Supreme Court (Sup. Ct. 9) 26 DOCKET— Call of, in Supreme Court (Sup. Ct. 26) 50 DOCUMENTS IN FOREIGN LANGUAGE— See Transla- tions. EQUITY — See Cibotjit Court; Supkemb CorRT. ESTATE OP DECEASED PERSON- See Decedents' Estates. ERRORS— See Assignment of Errors. EVIDENCE— In Supreme Court, when further proof ordered (Sup. Ct. 13) 31 Objection to exhibits in equity and admiralty causes to be taken in court below (Sup. Ct. 13) 34 Exhibits, etc., must be removed after hearing of cause (Sup. Ct. 33) 59 In equity, answer to bill and interrogatories, when evidence (Eq. 41) 99 When commissions may issue to take testimony (Eq. 67) 126 Interrogatories (Eq. 67) 136 ]Srotice(Eq. 67( 126 Commissioners (Eq. 67) 126 May be taken orally at option of either party (Eq. 67) 127 How examination conducted (Eq. 67) 127 Depositions to be taken down in writing, etc. (Eq. 67) 137 Examiner not to rule on objections, etc. (Eq. 67) 127 262 GENERAL INDEX. ^ Pago EVIDENCE— MwimMfidf. Eefusal of witness to attend, or be sworn (Eq. 67) 127 Notice (Eq. 67) 127 Depositions to be filed (Eq. 67). , 128 Court may assign time for taking (Eq. 67) 138 May be taken on -written interrogatories (Eq. 67) 128 May be taken by depositions under Act of Con- gress (Eq. 68) 130 Limitation of time for taking (Eq. 69). 133 Wlien testimony (fe bene esse maybe taken (Eq. 70) 133 Notice (Eq. 70) 133 I Form of last interrogatory (Eq. 71) 134 Use of answer to cross-bill for discovery as (Eq. 72) 134 Compulsory attendance of witnesses before ex- aminers, masters, etc. (Eq. 78). 139 Examination of parties before Master (Eq. 79).. 140 Evidence used in court may be used before Mas- ter (Eq. 80) 140 Master may examine creditor, or otlier claimant (Eq. 81) 140 Evidence before Master to be taken down (Eq. 81) 140 In admiralty, further proof in Circuit Courts (Ad. 49) 213 Oral evidence taken down by clerk of District Court how used on appeal (Ad. 50) 214 In Court of Claims. — (See Court of Claims rules 6, 7, 8, 9, 10, 11,12, 13 and 14) 333-343 EXAMINERS— See Evidence. Evidence in equity to be taken before (Eq. 67) 137 EXCEPTION— See Bill of Escbptions. In equity, for scandal, impertinence, etc., in bills (Eq. 36) 85 To be in writing, etc. (Eq. 37) 86 Default (Eq. 37) 86 Exceptions to answer (Eq. 61) 133 To be set down for argument, etc. (Eq. 63) 123 Abandonment of (Eq. 63)...'. 123 If allowed, new answer to be filed (Eq. 64) 124 Prevailing party entitled to costs (Eq. 65) 134 Exception to Master's report (Eq. 83) 141 If no exception, report confirmed (Eq. 83) 141 Hearing of exceptions (Eq. 83) 141 Costs to prevent frivolous exceptions (Eq. 84). . 141 In admiralty, when allowed amendment may be made (Ad.24) 191 Exception to answer (Ad. 38) 197 When exception allowed, further answer com- pelled, or, etc. (Ad. 30) 198 Exception to form of pleadings (Ad. 36) 201 . GENERAL INDEX. 263 PaRe EXECUTION— In Equity, in foreclosure cases (Eq. 92) 150 In admiralty, against bail (Ad. 3) 159 In cases of attachment (Ad. 4) 160 Enforcement of decrees by (Ad. 21) 185 FIERI FACIAS— To enforce decrees in admiralty (Ad. 21) 185 FILING OF PAPERS— In Court of Claims, to be endorsed before (Ct. CI. 4) 233 FINDINGS— In Court of Claims (Ct. CI. App. 5) 66 Form of on part of claimant (Ct. CI. 12) 241 Of defendant, -when to be filed ; from, etc. (Ct. CI. 12) 241 FORECLOSURE— See Execution ; Decree. FOREIGN LANGUAGES— See Translations. FREIGHT— Attached in admiralty may be brought into court (Ad. 28) 203 FARTHER PROOF— See Evidence. GARNISHEE— In admiralty, money of defendant may be attached in hands of, (Ad. 37) 201 May be required to answer interrogatories (Ad. 37) 201 Refusal to answer (Ad. 37) 201 Effects in hands of, to be held to await event of suit (Ad. 37) 201 GUARDIANS AD LITEM— "When appointed in suits in equity (Eq. 87) 144 HEARING— In Supreme Court, not to be had until record complete (Sup., Ct. 8) 19 Case dismissed when plaintiff does not appear at, (Sup. Ct. 16) 40 IMPERTINENCE— See Exception. IMPRISONMENT FOR DEBT— Abolished in admiralty according to laws of State (Ad. 47). 212 INFANTS— See Guakdians Ad Litem ; Peochbin Amis. INFORMATION— For breach of revenue and navigation laws (Ad. 22) 187 Amendment of (Ad. 34) 191 Where exceptions to form allowed (Ad. 24). . . 191 INJUNCTION— To stay proceedings at law, when granted of course (Eq. 55) 113 Special, to be on notice (Eq. 55) 113 264 GENERAL INDEX. Page INJUNCTION— co?!«i«Mei. How long to continue when granted in vacation (Eq. 55) 113 Suspension or modification of, pending appeal (Eq. 93) 151 INTEREST— In cases in Supreme Court Sup. (Ct. 33) 45 INTERROGATORIES— Not necessary, unless complainant seeks discovery (Eq. 40) 99 Numbering and specification of (Eq. 41) 99 Answer to, as evidence (Eq. 41) 99 Note as to, part of bill (Eq. 43) 100 Form of words preceding (Eq. 43) 101 Defendant need not answer, if demurrer would lie (Eq. 44) 101 Depositions in equity on written (Eq. 67) 136 Form of last interrogatory (Eq. 71) 134 Defendant in admiralty may be required to answer (Ad. 33) 189 Need not answer sucii as would criminate, etc. (Ad. 31) 198 Libellant in admiralty may be required to answer (Ad. 33) 199 Answer to, in admiralty, wben may be dispensed with, etc. (Ad. 33) 199 Garnishee in admiralty to answer (Ad. 37) 301 INTERVENING— In suits in admiralty, by third parties (Ad. 34) 300 Security to abide decree, pay costs, etc. (Ad. 34) 300 ISSUE— When causes in equity deemed at (Eq. GG) 134 JUDGMENT— See Interest. LAW LIBRARY— Of Supreme Court, regulations concerning (Sup. Ct. 7) 17 LIBEL— In admiralty, no process until filed (Ad. 1) 153 Form and contents of, for breach of Revenue and Navigation laws (Ap. 33) 187 Form of in other oases (Ad. 2;J) 189 Amendment of (Ad. 34) 191 Same where exceptions allowed (Ad. 34) 191 Exceptions to, for matters of form (Ad. 36). . . 301 LIMITATION- Of Appeal from Court of Claims to Supreme Court (Ct. CI. App. 3) 65 Of suits in the Court of Claims (Ct. CI. 15) 343 When petition may be dismissed by reason of (Ct. CI- 15) 243 LIMITATION OF LIABILITY— See SnirowKEKS. GEKEEAL INDEX. 265 MANDATE— ^^^^ In nature of procedendo, when case dismissed in Supreme Court (Sup. Ct. 34) 47 Costs to be inserted in (Sup. Ct. 34) 47 MARINERS' WAGES— Suits for, in admiralty (Ad. 13) 179 Freight attached, may be brought into court (Ad. 38) ~ 303 marshal- To serve process in equity (Eq. 15) 77 To serve process in admiralty, etc. (Ad. 1) 153 Duty of in cases of seizure in admiralty (Ad. 9) 163 Execution to issue to, in admiralty (Ad. 31) 185 Sales under decrees to be made by, in admiralty (Ad. 41). . 304 Disposition of proceeds (Ad. 41) 304 Of Supreme Court, to take charge of books, etc. (Sup. Ct, 7) 18 MATERIALMEN— Suits by, in admiralty (Ad. 13) 169 MASTER— Duty of in taking account of personal estate of deceased person (Eq. 73)'. 130 Party procuring reference to, when to proceed (Eq. 74). . . . 136 Default (Eq. 74) 136 Procedure before (Eq. 75) 137 Report of, what to be omitted from (Eq. 76) 137 Authority of master to regulate proceedings (Eq. 77) 138 Attendance of witnesses before, how compelled (Eq. 78). . . 139 Parties accounting before, to produce accounts ; form (Eq. 79) 140 Examination of witnesses ma voce before (Eq. 79) 140 Evidence used in court may be used before (Eq. 80) 140 Examination of creditor.or other claimant by (Eq. 81).. .. 140 Evidence before, to be taken down (Eq. 81) 140 Appointment of (Eq. 83) 140 Compensation of (Eq. 83)---- 240 Not to retain report, but may have attachment for fees (Eq. 82) 141 Return of report (Eq. 83) 141 Time to file exceptions to (Eq. 83) , 141 Confirmed, if no exceptions (Eq. 83) 141 Hearing of exceptions (Eq. 83) 141 Costs to prevent frivolous exceptions (Eq. 84) 143 MASTER'S REPORT— See Master. mesne PROCESS— See Process. MONITION— See Process. MODELS— Models, exhibits, etc. , to be removed after cause decided in Supreme Court (Sup. Ct. 33) , 59 266 GENERAL INDEX. Page MOTIONS— In Supreme Court (Sup. Ct. 6) 14 In Equity, what grantable of course (Eq. 5). 69 Not of course (Eq. 6) 69 In Court of Claims, hearing, etc. (Ct. CI. 4) 233 NAVIGATION LAWS— Libels and informations for breach of, in admiralty (Ad. 32) 187 NEW TRIAL— In Court of Claims (Ct. CI. 17) 245 NOTICE— See Evidence. What deemed sufBcient of entry of orders in equity (Eq. 4) 69 To be given of seizure in admiralty (Ad. 9) 163 Service of, in Court of Claims (Ct. CI. 4) 333 OATH— Affirmation in lieu of, in equity (Eq. 91) 150 OPINIONS— Of court below, part of record in Supreme Court (Sup. Ct. 8) 19 Of Supreme Court, record of, etc. (Sup. Ct. 25) 49 ORDERS— In equity, may be made in vacation (Eq. 3) 68 Entry of, in equity (Eq. 4)... 69 Notice (Eq. 4) 69 Grantable of course, in equity (Eq. 5) 69 Not grantable of course (Eq. 6) 69 Persons not parties, how affected by, in equity (Eq. 10). ... 73 In Court of Claims (Ct. Ct. 4) 233 ORIGINAL PAPERS- When to be transmitted to Supreme Court (Sup. Ct. 8) 19 I'ARTIES— Persons not, how affected by orders in equity (Eq. 10) 73 In equity, when out of jurisdiction of court (Eq. 22) 83 When may be omitted (Eq. 47) 102 Decree in such cases (Eq. 47) 102 When very numerous (Eq. 48) 107 Decree in such cases (Eq. 48) 107 Trustees may sue alone (Eq. 49) 108 Persons beneficially interested may be omitted (Eq. 49) 108 Heir at law need not be made party (Eq. 50). , . . 108 Joint and several debtors (Eq. 51) 109 Suggestion of defect of, in answer (Eq. 52) 109 Omission of plaintiff to set down objection for argument (Eq. 53) 109 Objection for want of, at hearing (Eq. 53) 110 Nominal, need not appear or answer (Eq. 54). ... 113 GENEEAL INDEX. 267 Page TAHTim— continued. Bill ot revivor, on death of (Eq. 56). 117 Change of interest of (Eq. 57) 118 PARTY, DEATH OP— See Death of Pakty. PART-OWNERS— Petitory and possessory suits between, in admiralty (Ad.20) 184 PENALTY— Defendant in admiralty need not answer matter exposing him to (Ad. 31) 198 PERISHABLE PROPERTY— Seized under process in admiralty, may be sold (Ad. 10). .. 164 PETITION— See Pleading; Pbocbeds of Sales. PILOTAGE— Suits for, in admiralty (Ad. 14) 176 PLAINTIFF IN ERROR— See Docketing of Causes; Appeab- ANCB; Argument ; Brief. PLEA— Of defendant in equity, when to be filed (Eq. 18) 79 Not to be filed without certificate of counsel (Eq. 31) 89 When bill charges fraud (Eq. 33) 96 Plaintifl: may take issue on, or, etc. (Eq. 83) 94 Defendant to answer, on overruling (Eq. 34) 95 Sufficiency of (Eq. 36) 96 Good, although answer may extend to same matter (Eq. 37) 96 Default of plaintiff in replying to, or, etc. (Eq. 38) 97 When defendant may protect himself by, he need not answer (Eq. 89) 97 When defendant to file, to supplemental bill (Eq. 57) 118 In Court of Claims, when to be filed (Ct. CI. 3) 233 Plea of fraud (Ct. CI. 8) 233 PLEADING— See Amendment; Bill in Equity; Answer; Plea; Demurrer ; Cross-Bill ; Libel. In equity, defendant may plead, answer or demur to whole or part of bill (Eq. 33) 90 In Court of Claims, petition to be filed, contents, etc. (Ct. CI. 2) 230 When petition dismissed (Ct. CI. 15). . 243 Petition in Congressional and Depart- mental cases (Ct. CI. 32) 349 PRACTICE- In Supreme Court, outlines of (Sup. Ct. 3) 6 In equity, in cases not provided by rules (Eq. 90) 149 In admiralty, when to be regulated by circuit and district courts (Ad. 46) 213 268 GENEEAL INDEX. ' Page PRESIDENT— Process in Supreme Court in name of (Sup. Ct. 5) 12 PRINTED ARGUMENTS^ Submission of causes on, in Supreme Court (Sup, Ct. 20). . 41 PRINTING— See Evidence; Bkibfs ; Record. PROCESS— See Execution. In Supreme Court, to be in name of President (Sup. Ct. 5). 12 Against State, how served (Sup. Ct. 5) 13 Service 60 diiys before return, in equity (Sup. Ct.5) : 12 Appearance of defendant (Sup. Ct. 5) 12 Default (Sup;; Ct. 5) 12 In equity, subpoena to constitute mesne (Eq. 7) 70 When attachment may issue (Eq. 7) 70 Sequestration (Eq. 7) 70 Writ of assistance (Eq. 7) 70 " " " (Eq.9) 72 Issue and return of (Eq. 12) .• 73 Service of (Eq. 13) 74 Service of, by whom (Eq. 15) 77 In admiralty, not to Issue until bill filed (Ad. 1) 153 Service of (M. 1) 153 Of what to consist in suits in personam (Ad. 2) 156 Monition to person in possession of ship's tackle, etc. (Ad. 8) 162 Form of process in rem (Ad. 9) 163 PROCEEDS OF SALES— In admiralty, to be deposited in registry (Ad. 41) 204 How kept (Ad. 42) 205 Petition for distribution (Ad, 43) 200 Costs on dismissal (Ad. 43) 206 PROCHEIN AMIS— When suits in equity may be brought by (Eq. 87) 144 PRO CONFESSO— See Bill in Equity ; Llbel ; Decree. RECORD— In Supreme Court, not to be removed from court (Sup. Ct. 1) 1 Copy of, in each case to be deposited in law library (Sup. Ct. 7) 18 Cause not heard until complete (Sup. Ct, 8). . . 19 In admiralty cases (Sup. Ct. 8) 19 Printing and distribution of (Sup. Ct. 10) 29 Form and size of (Sup. Ct. 31) 57 In Circuit Courts, on appeal in admiralty causes (Ad. 52). . 215 Duties of clerk of District Court respecting (Ad. 52) 215 GENERAL INDEX. 269 IfECOlXD— continued. ^^^^ In Court of Claims, how to be made up (Ct. CI. 13) • 343 REFERENCE— See Commissionee ; Master. REHEARING— In Supreme Court, wlicn granted (Sup. Ct. 30) 57 In Equity, when and how obtained (Eq. 88) 145 REGISTRY OF COURT— In admiralty, proceeds of sales to be deposited in (Ad. 41) 304 How moneys kept (Ad. 43) 305 Petition for distribution (Ad. 43) 206 REMOVED CAUSES— Writs of error in cases of orders remanding, to State Courts (Sup. Ct. 33) 57 REPAIRS— See Materialmen. Suits in Admiralty in cases of hypothecations for (Ad. 17) 180 REPLICATION— In equity, no special, to be filed (Eq. 45) 101 Amendment of answer before (Eq. 60) 120 After (Eq. 60) 120 Genera], when to be filed (Eq. 66) 124 Dismissal of suit -for want of (Eq. 66) 134 In admiralty, no general or special, allowed (Ad. 51) 315 In Court of Claims, to set-off, when to be filed, etc. (Ct. CI. 3) 333 REPORT — See Commissioner; Master. REPRESENTATIVE OF DECEASED PARTY— May be admitted in causes in Supreme Court (Sup. Ct. 15) 36 Citation to (Sup. Ct. 15) 36 return- To process in equity, in Supreme Court (Sup. Ct. 5) 13 Of writ of error, etc. (Sup. Ct. 8) 19 REVENUE LAWS— Libels and informations in admiralty for breach of (Ad. 33) 187 REVIEW— Of admiralty causes in Supreme Court, upon what (Sup. Ct. 8) 19 REVIVOR— See Bill of Revivor. RULES— Further, in eqtiity, how and when made in Circuit Courts (Eq. 89) 148 Practice of High Court of Chancery, in cases not provided for by equity rules (Eq. 90) 149 SAILORS— See Mariners' Wages. SALE— In admiralty, of perishable goods (Ad. lO) 164 270 GENERAL INDEX. Page SALE — eoniinued. Of ship, if claimant does not e;ive security (Ad. 11)..... 164 To be made by marshal (Ad. 41) 204 Disposition of proceeds (Ad. 41) 303 SALVAGE— Suits for in admiralty (Ad. 19) 183 Freight attached may be brought into court (Ad, 38) 203 SCANDAL— See Exception. SECURITY— See Attachment ; Bail. For fees of clerk of Supreme Court) Sup. Ct. 10) 29 In admiralty, by third parties intervening (Ad. 34) 300 How given (Ad. 35) 201 By respondents in cross-libel (Ad. 53) 217 In collision cases, -when third parties brought in (Ad. 59) 234 SEIZURE- See Akrest. SERVICE— See Marshal. In Supreme Court, of process against State (Sup. Ct. 5) 12 Service of citation (Sup. Ct. 8) 19 Of process in equity, how made (Eq. 13) 74 By whom (Eq. 15) 77 Cause to be docketed when made (Eq. 16) 77 Of process in admiralty, by whom (Ad. 1) 153 SHIP— May be delivered to claimant, on security in case of seizure (Ad. 11) 166 SHIP OWNERS— Proceedings in admiralty to obtain limitation of liability (Ad. 54) 219 Proof of claims, etc. (Ad. 55) 333 Owner may contest liability (Ad. 56) 333 Who may contest petition of owner (Ad. 56). 323 Where petition may be filed (Ad. 57) 224 If vessel sold, proceeds represent same (57). 234 Rules apply to circuit courts (Ad. 58) 234 SHIP'S TACKLE, ETC.- In possession of third parties, how obtained (Ad. 8) 163 SETT-OFF— la Court of Claims, when pleas averring may be filed (Ct. CI. 3) 283 SPEEIAL DEFENSE— In Court of Claims, when pleas averring, to be filed (Ct. CI. 3) 233 STATE— Service of process on, in Supreme Court (Sup. Ct. 5) 13 GENERAL INDEX. , 271 Page STIPULATIONS— See Bonds and Stipulations. STOCKHOLDERS— Suits in equity by, against corporation (Eq. 94) 151 SUBPCENA— See Process ; Service. In equity, to constitute mesne process (Eq. 7) 70 Not to issue until bill filed (Eq. 11) 73 Separate to several defendants (Eq. 12) 73 Alias subpoena (Eq. 14) 77 Cause docketed on return of served, (Eq. 16) 77 Prayerfor (Eq. 33) 83 SUPERSEDEAS— On appeal to, or writ of error from, Supreme Court (Sup. Ct. 29) 53 SUPPLEMENTAL BILL— See Bill in Equity. SURETIES — See Attachment ; Bail ; Execution. Execution against in cases of bail in admiralty (Ad. 3). . . . 159 In cases of attachment (Ad. 4) 160 SUPPLIES— See Materialmen. Suits upon hypothecations for (Ad. 17) - 180 SUPREME COURT — See Adjournment ; Attorneys and Coun- selors ; Clerk ; Dismissal ; Law Library ; Mo- tions ; Opinions ; Record. Call of docket (Sup. Ct. 36) 50 TESTIMONY— See Evidence. THIRD PARTIES— In admiralty, may intervene in suits (Ad. 34) 200 Security (Ad. 34) 200 TRANSLATIONS— Of documents in foreign language in Supreme Court (Sup. Ct. 11) 31 traverse- To petition in Court of Claims, when to be filed (Ct. CI. 3). 333 TRIAL — See New Trial ; Record. In Court of Claims, when attorney-general may move (Ct. CI. 12) 341 When cases ready for, trial docket, etc. (Ct. CI. 18) 243 Of causes referred by CongTess or departments (Ct. CI. 33) 249 VERIFICATION— See Bill ; Answer ; Libbl ; Oath. WAGES— See Mariner's Wages. WARRANT OP ARREST— See Arrest. WITHDRAWAL OF PAPERS— In Court of Claims, not allowed, except, etc. (Ct. CI. 30). . 248 WITNESS— See Evidence. . In equity, attendance of before commissioners, masters and examiners, how compelled (Eq. 78) , 139 272 GENERAL INDEX. Page WITKESS— continued. In Court of Claims, proceedings against for contempt (Ct. CI. 6) 234 Fees of (Ct. CI. G) 234 May be examined in court (Ct. CI. 6) 234 WRIT OF ASSISTANCE— When to issue (Eq. 7 and 9) 70, 73 WRIT OF ERROR — See Removed Causes • Rbtukn ; Supersedeas.