(Jornpll ICam i>rI|onl ICibrary Cornell University Library KFD1729.5.S8A2 1888 Practice and procedure of the Supreme Co 3 1924 024 642 393 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/cu31924024642393 THE PRACTICE AND PROCEDURE OP THE SUPREME COURT OF THE District of Columbia Being a Colx.ec'Tion op its Rules and of the Federal AND Maryland Statutes affecting the Practice AND Procedure of the Court, Topically Arranged and Annotated. FRANKLIN H. MACKEY WASHINGTON, D. C. THE I 4. Assistant clerks may perform duties of clerk 11 5. Account of moneys in court to be stated 11 6. Fees, when payable H 7. To make semi-annual report of fees — maximum compen- sation ■ . . . • II 8. Table of fees to be exposed to public view 11 9. Miscellaneous statutory provisions 12 CHAPTEE IV. THE MARSHAL. 1. His appointment and duties generally 12 2. Term of oflace 13 3. May appoint deputies 13 4. Forbidden to practice as attorn^ 13 5. Marshal's bond 13 6. Suits on marshal's bond 14 7. Marshal's bond to remain after judgment as further se- curity 14 8. Limitations of suits on marshal's bond 14 9. May levy executions issued by justices of the peace . . 15 10. Summary proceeding for failure to pay over small sums 15 11. May demand his fees in advance, except in certain cases 15 12. In case of death, deputies to continue 15 13. May execute process in their hands when removed . . 16 14. When the marshal or his deputy is a party to or inter- ested in a cause 16 15. Service of process 17 CHAPTEE V. THE DISTRICT ATTORNEY. 1. Appointment 17 ANALYSIS OP THE CONTENTS. Xl 2. Term and oath of 17 3. Duties of 17 4. May administer oaths and affirmations 17 5. Compensation of >, 18 CHAPTEE YI. E'ORMS OF ACTIONS IN tTSB. 1. The common law classification still detained 18 2. The forms of action in rise . 19 3. Special proceedings in use ............ 19 4. Dower unde nihil habet 20 ■5. Of the pleadings and practibe .......... 20 CHAPTEE Vll. LIMITATIONS OF ACTIONS. ■1. To what actions limitations apply . . 2l 2. Time within which they must be brought ...... 22 3. Saving as to persons under disability ........ 22 4. Saving as to persons beyond seas repealed 22 6. Absentees in certain cases not to have benefit of the statute . ................. 23 6. Proviso in favor of those leaving suflflcient effects, etc . 24 7. Similar provisions of the Act of 1765 24 8. To run only from time of return of suph persons .... 24 9. Saving where judgment is reversed or arrested .... 24 10. Limitations as to bills and specialties ........ 25 11. Administration and testamentary bonds 26 12. In suits on such bonds, proviso as to disabilities ... 26 13. Bonds of guardians ................ 26 14. Arbitrators, if cause be referred to, in what cases statute not to run 26 15. Claims against decedents' estates ......... 27 16. In certain suits against stockholders 27 17. In stilts fof recovery of unlawful interest 27 18. On mechanics' liens 27 19. On marshals' bonds .............. 28 20. Penalties and forfeitures under laws of the United States . 28 21. Under customs revenue laws . 29 22. Miscellaneous notes 29 23. The running of the statute ........... 29 24. Savi;ngs in favOr of infants, femes covert^, etc .... 30 25. What other matters prevent or suspend the running of the statute 30 26. When new cause of action is introduced by amend- ment ....>..-............ 30 XU ^ ANALYSIS OF THE CONTENTS. 27. Bonds and other specialties, when pleadable 30 28. Merchants' accounts 31 29. Trusts 31 30. Limitations as to realty 31 31. Saving as to persons under disabilities 32 32. Limitations in criminal suits 32 CHAPTBE VIII. ATTORNEYS. 1. Admissions to the bar 33 2. The application 33 3. Who may be admitted 33 4. Students 33 5. Oath to be taken 34 6. Court may regulate terms of admission 34 7-. Parties may plead their own causes 34 8. Oflacers forbidden to practice as attorneys 34 9. Deliveryof court papers to attorneys 34 10. Members of the bar not to be sureties 34 11. Nature of the office of attorney 34 12. Power of court over attorney's misconduct 35 13. His employment and authority — appearance 35 14. Appearance without authority 35 15. Appearance by unlicensed attorney 35 16. Authority to accept service 35 17. Power to compromise , . . 36 18. May issue execution 36 19. His authority to instruct officer 36 20. Attorney and client 36 21. Attorney's liability for negligence 36 22. Discharge, compensation and lien 36 CHAPTEE IX. TERMS OF THE COURT AND CERTAIN MISCELLANEOUS RULES. 1. Terms of the court, when held 37 2. Trials when another term intervenes . 38 3. All terms are terms of the supreme court 38 4. Quorum — division of opinion 38 5. Court to regulate period of holding terms 39 6. Three general terms to be held annually 39 7. Special terms, by whom to be held 39 8. District court, when terms of to be held 39 9. Criminal terms, when to be held 39 10. When criminal court may sit as circuit court 39 ANALYSIS OF THE CONTENTS. xiii 11. Two terms of circuit court may be held at same time . . 39 12. Circuit court may sit as a criminal court 40 13. When a term ends 40 14. Return, appearance, or rule day 40 15. Orders at chambers 40 16. Order Book, what to be entered therein 41 17. The minutes of the court 41 \ CHAPTER X. AMENDMENTS. 1. Amendments may be made at any stage of a cause . . 41 2. Statutory provisions, Act of 1789 42 3. What may be am.ended generally 42 4. Instances — stating new cause of action 42 5. Bill of particulars 43 6. Amending description of parties 43 7. Changing names and adding parties 43 8. Formal variance 43 9. Amending pleas . . . , 43 10. Amendment of verdict 43 11. Amendment of judgment 43 12. Amendments in special proceedings 44 13. Provisions of Maryland Act of 1785 44 14. The construction given the above act 44 CHAPTEE XI. COMMENCEMENT OF SUIT— PABTIES. 1. Commencement of suit 45 2. Deposit to secure costs 45 3. Affidavit of inability to make deposit 45 4. Maryland Act of 1796 — security for costs 46 6. Similar provision of Rule 86 46 6. "When leave of court required to commence an action . 46 7. Parties to actions — who aj?e not 47 8. Fictitious names 47 9. Plaintiffs, joinder of 47 10. The rule as to joinder of plaintiffs 47 11. In torts 48 12. Objections to plaintiff's right to sue, how taken. ... 48 13. Lis Alibi pendens 48 14. Foreign guardians and committees of lunatics may sue, when 48 15. Foreign executors and administrators 48 16. Executors not qualifying to be omitted as parties ... 49 17. Married women 49 siv ANALYSIS OF THE CONTENTS. 18. Foreign corporations • 19. Suits by and against limited partnership 20. Defendants, who may not be 21. Non-residents to be sued, how 22. When one or more of several defendants cannot be served 23. Joinder of defendants CHAPTBE XII. THE ACTION OP EJECTMENT. 1. Fictions in ejectment abolished < • 2. What declaration in to contain 3. Landlord or other claimant may be admitted to defend 4. The proof in ejectment ...,..,.•-•■ 5. Where plaintiff claims under a foreclosure sale . . . 6. Attorning to strangers 7. Adverse possession — declaration of defendant . . . S. Outstanding title 9. Mesne profits . 10. Measure of damages 11. How estimated CHAPTER XIII. FORCIBLE ENTRY OR DETAINER, 1. The complaint and summons . 2. How summons shall be, served 3. Proceedings when defendant pleads title 4. Same subject — provisions of rule twelve 5. Appeals where plea of title has not been entered, how prosecuted 6. Undertaking with surety to be given 7. Trial of the appeal, assessment of damages CHAPTEE XIY. PROCESS— ATTACHMENT BEFORE JUDGMENT. 1. Process, the summons, form of 2. How tested 3. To bear teste from day of issue 4. Attachment before judgment — provisions of rule 15 . . 5. Provisions of the statute 6. When the writ may issue 7. The supporting afSdavits ANALYSIS OP THE CONTENTS. XV 8. How the writ may be quashed ^ . 62 9. Discharge of attached property 63 10. Sale of attached property 63 11. Final judgment 63 12. Cases in which attachment will not lie ...... . 63 13. Appeal 63 CHAPTEE XV. ATTACHMENT FOR RENT. 1. Remedy by distress abolished 64 2. Lien on tenants' chattels substituted therefor .... 64 3. How lien to be enforced . 64 4. Attachment, how sued out— affidavit — form of writ — provisions of rule 16 64 5. In what cases landlords may have the writ 65 6. Miscellaneous decisions 67 CHAPTEE XVI. THE ACTION OP REPLEVIN. 1. Form of the declaration 68 2. Affidavit to be filed with declaration, averments of . . 69 3. Undertaking to be given, form of 69 4. Form of writ of replevin 69 5. Officer to retain the property three days before de- livery to plaintiff, in order, etc 70 6. Proceedings in case of eloignment 70 7. When goods are seized, but defendant cannot be found, publication 70 8. After publication, proceedings in default of appear- ance . . .' 71 9. Where defendant appears, plea . 71 10. Damages, how ascertained 71 11. Where judgment is for defendant 71 12. Damages when things are eloigned 71 13. Judgment in such case 71 14. Property taken under revenue laws irrepleviable ... 72 15. The Maryland Act of 1785, ch. 80, sec. 14 72 16. The construction given the Act of 1785 72 17. Writ of capias in withernam 73 CHAPTEE XVII. SPECIAL REMEDIAL VTRITS— CERTIORARI, HABEAS CORPUS, ETC. 1. Applications for, how made 75 XVi ANALYSIS OP THE CONTENTS. 2. Proceedings to remove a justice of the peace, how com- menced and heard 3. Certiorari on ground of concurrent jurisdiction, what affidavit to state 4. Notes of decisions— quo warranto 5. — Mandamus 6. — Certiorari 7. — Prohibition 8. — Habeas corpus^ nature of the writ 9. Statutory provisions 10. Application for the writ 11. Allowance and direction of the writ 12. Time of return 13. Form of return 14. Body of the party to be produced 15. Day for hearing 16. Denial of return, counter allegations, amendments . . 17. Hearing and determination 18. Notes of decisions 19. Appeals, when allowed 20. Practice on appeal to general term 21. Appeal to the supreme court ' 22. How taken 23. Extradition CHAPTEE XVIII. SERVICE OP PROCESS. 1. By whom writs and process to be served 2. Copy of declaration, etc., to accompany writ 3. How writs to be tested 4. To be under seal of the' court 5. Shall bear teste from day of issue 6. Assistant clerk may sign writs 7. How served in case of death of marshal 8. Marshal, when removed or term expires, may execute . 9. When the marshal or his deputy is a party 10. Capias on mesne process abolished in actions ex con- tractu 11. Fees of marshal 12. Marshal may demand fees in advance for serving . . . 13. Process against foreign ministers and their servants . . 14. Stealing or altering process 15. Obstructing service of process 16. Process against corporate educational institutions . . . 17. Against foreign corporations ANALYSIS OP THE CONTENTS. XVil 18. Against the District of Columbia 86 19. When one or more of several defendants cannot be served 86 20. Fraudulent service 86 21. Effect of appearance 87 22. Unauthorized appearance by attorney 87 23. Process against members of Congress 87 24. Witnesses attending Congressional committees .... 87 25. Process at instance of United States 87 26. Service by publication — provisions of Eule 20 ... . 87 27. Summons to be iirst returned not to be found .... 87 28. In what papers order to be published — Washington Law Reporter 88 29. Form of order 88 30. Length of time to be published 88 31. Proof of publication -88 32. Copy of notice to be mailed defendant — afiidavit ... 88 33. Statutory provisions 89 34. Statute to be strictly complied with 89 S5. Effect of substituted service 89 CHAPTEE XIX. THE PLEADINGS. 1. Issues of fact agreed 91 2. Order of pleading . . . . ' 91 3. All pleadings to be signed 91 4. Copies of pleading to be served 91 5. Time for pleading may be enlarged 92 6. Construction of pleadings 92 7. Averring Written instruments 92 8. Making profert, when unnecessary 92 9. Demanding and giving oyer 92 10. The declaration — to state only substantive facts ... 92 11. What declaration should show generally 93 12. Matters of evidence 93 13. With bill of particulars annexed 93 14. Alleging special damage '. 94 15. Declaration against a married woman 94 .16. Declaring on official bonds . . . . , 94 17. By an assignee 94 18. Upon statutes 94 19. On a copyright 94 20. On a patent right 94 21. Counts 95 22. Notice to plead 95 23. Pleas shall set forth the true defence 95 24. No formal conclusion or prayer for judgment necessary . 95 XViii ANALYSIS OE THE CONTENTS. 25. Afadavit to accompany plea to scire facias and actions on judgment ^ 26. Dilatory pleas ^^ 27. Exception to the rule of waiver ^^ 28. Objections which may be J)leaded in abatement .... 96 29. Lis alibi pendens " 30. Statute of limitations ^'^ 31. Executors, etc., not bound to plead the statute .... 97 32. Plea of non est factum 97 33. Special pleas ^'^ 34. Failure of consideration 98 35. Accord and satisfaction 98 36. Set-off 98 37. Form of ^^ 38. Judgment on 98 39. Mutual judgments may be set off 98 40. Must be against real party to the suit 98 41. Attorney's lien subject to the right of set-off 99 42. Sei^off of joint debts 99 43. Set-off of unliquidated damages 99 44. Set-off as against assignees 99 45. Set-off against a suit of the United States 99 46. To what cases the right does not extend 100 47. Recoupment 100 48. Rule as to the application, rejoinder, etc. — time for filing 100 49. Special replications and rejoinders' 101 50. To plea of the statute of limitations 101 51. When replication may show equitable title 101 52. To plea of general performance 101 53. The replication de injuria 101 54. Rejoinder • 101 55. Joinder in issue — simplified form of 101 56. Demurrer — form of — the marginal note 102 57. No joinder in demurrer necessary 102 58. What the demurrer admits 102 59. Special demurrers virtually abolished 102 60. Court not restricted to the m^arginal note 102 61. Frivolous demurrers 103 62. Proceeding on appeal when judgment sustaining demur- rer is reversed 103 63. Plea puis darrien — how pleaded — affidavit 103 64. Time for replying to 104 65. This plea a waiver of prior pleas 104 66. Rule as to prolixity in pleadings 104 67. Simplified forms — declarations, form of, commencement and conclusion • . . . . 104 68. On simple contracts, money counts combined .... 104 69. Money counts separate , 105 70. Counts on bills and notes 105 ANALYSIS OF THE CONTENTS. XIX 71. Plea, commencement and conclusion of 106 72. Forms of replications 106, 73. —of rejoinder 107 74. — of demurrer 108 CHAPTER XX. PREPARING FOR TRIAL— DOCUMENTARY EVIDENCE- DEPOSITIONS. 1. Notice to admit documents . • 109 2. Production of books and writings Ill 3. Tlie motion to be in writing Ill 4. Copy of the order to be served Ill 5. Complying with the order Ill 6. Time to produce may be enlarged . . Ill 7. Penalty where plaintiff fails to produce Ill 8. The like when defendant fails to produce Ill 9. Penalty for failing to produce 112 10. Presumption against party refusing to produce .... 112 11. Examination of parties^nspection of documents . . 113 12. Inspection of documents in opponent's hands .... 113 13. In what cases inspection may be had 113 14. To enable party to prepare pleadings 113 15. Copies of department records and papers 113 16. Copies of records, etc., in office of solicitor of the treas- ury 114 17. Instruments, etc., of comptroller of the currency . . . 114 18. Organization certificates of national banks 114 19. Transcripts from the books, etc., of the treasury . . . 114 20. Copies of records, etc.; of general land office 114 21. Copies of records, etc., of patent office 115 22. Copies of foreign letters-patent 115 23. Printed copies of specifications and drawings of patents . 115 24. Extracts from the journals of Congress 116 25. Copies of records, etc., in offices of United States consuls, etc 116 26. Transcribed records of certain federal courts 116 27. When original records are lost or destroyed 116 28. Same subject 116 29. Notice in proceedings to restore lost or destroyed records, how given 117 30. Force and effect of court papers restored or supplied . . 117 31. Authentication of legislative act, and proof of judicial proceedings of States, etc 118 32. Proofs of records, etc., kept in offices not pertaining to courts . 119 33. Copies of foreign records relating to land titles in United States 120 XX ANALYSIS OF THE CONTENTS. 34. Copy of license and certificate to be evidence of mar- riage 120 35. Original protest of notary to be prima /acie evidence . 120 36. Certificate to be like evidence 120 37. Exemplified copies of debts of record — the Maryland Act ofl785, ch. 46 ■ 120 38. Certified copies of the record of foreign deeds, etc. . . 120 39. Foreign probate of instruments not of record 121 40. Where the witnesses to such instrument are dead, how probated, etc 121 41. Depositions of non-resident witnesses, how taken • . . 122 42. Provisions of rule sixty-three • . . . 123 I 43. Form of the commission '. . 123 44. Depositions de bene esse 123 45. Cannot be used in another suit 125 46. The statute must be strictly pursued 125 47. Notice, to whom given 125 48. Mode of taking depositions de bene esse ....... 125 49. Transmission to the court of depositions de bene esse . . 126 50. Depositions under a dedimus potestatem and inperpetuam, , etc 126 51. Depositions in perpetwam, etc., admissible at discretion of the court ■ . 126 52. Depositions under a dedimus potestatem, how taken . . 126 53. Subpcena duces tecum under a dedimus potestatem . . . 127 54. Witness under a dedimus potestatem 127 CHAPTER XXI. NOTICE OP TRIAL— THE CALENDAR. 1. Notice of trial 128 2. Form of notice of trial 128 3. Statutory provision ■ . . . 128 4. Miscellaneous decisions 129 5. Note of issue • 129 6. The clerk to enter the cause upon the calendar .... 129 7. The trial calendar 129 8. When cause to be re-noticed for trial . . 129 9. The law calendar 129 10. Issues of law, how noticed for trial 129 11. Transferring the cause from law to trial calendar . . . 130 CHAPTER XXII. REFERENCE TO ARBITRATORS. 1. When causes may be referred 130 2. Copy of award to be served 130 ANALYSIS OF THE CONTENTS. XXI 3. When award is not returned within eight months . . . 131 4. Proceedings in case of death of either party ..... 131 5. Judgment on award and effect of - . . . 131 6. Exceptions, time for filing and grounds of . . . • . . 131 7. Limitations not to run if arbitrators die, etc 132 8. Provisions of the Maryland act of 1785 132 9. What may be referred 133 10. How reference must be made — its terms 133 11. Duty of the arbitrators 134 12. Calling in an umpire 134 13. Death of party pending the arbitratibn 135 14. The award should be final 135 15. Filing the award 135 16. Effect of the award 135 17. Setting aside the award 136 18. Appeal, when it lies 137 19. Construction of awards 137 CHAPTER XXIII. REFERENCE TO AN AUDITOR. 1. When causes may be referred to an auditor, proceed- ings 138 2. Filing the report, exceptions 138 3. Issues made by exceptions, how to be tried 139 4. In what cases exceptions may be overruled 139 5. Statutory provisions, Maryland Act of 1785, ch. 80, sec. 12 139 6. Notes of decisions 139 CHAPTER XXIY. OF OONTINtTANOBS. ' 1. The Maryland Act of 1721 142 2. Absence of witnesses 143 3. Continuance for delay, how prevented 143 4. Continuance to complete depositions 144 5. Where, by reason of death, new parties are made, or to be made . ., 144 6. Admission of facts to avoid continuance 144 7. Continuance to await return of commissions, Maryland Act, 1794 145 8. Notes of decisions 145 9. Delay to prosecute cause 145 10. Absence of parties 145 11. Absence of counsel 145 XXll ANALYSIS OF THE CONTENTS. 12. Absence of witness 146 13. Absence of documentary evidence 147 14. Stipulating against abatement 147 15. Eefusal of application not ground of exception .... 147 16. Supplemental affidavits 147 17. Continuance in suits against delinquents for public money, when may be granted 147 CI-IAPTEE XXV. "WITNESSES. 1. Interested parties may testify 147 2. Exceptions . 148 3. Competency of husband and wife to testify for or against each other 148 4. No witness to be excluded on account of color .... 149 5. In actions by and against executors, etc 149 6. Notes of decisions 149 7. Subpoenas for, to run into another district 150 8. Witnesses for United States, subpoenas for 150 9. Attachment of witnesses 150 CHAPTEE XXYI, OBTAINING A JURY— CHALLENGES. 1. List of jurors 151 2. Names, how selected 151 3. How placed in jury-box 152 4. Custody of jury-box 152 5. Drawing jurors 152 6. Juries for criminal term 152 7. Juror^in capital cases 152' 8. Jurors for circuit court 152 9. Additional names, when drawn 152 10. Re-sealing jury-box 152 11. Talesmen may be challenged who have served within a year 153 12. Names of persons drawn but not serving to be returned to jury-box 153 13. If jurors do not attend, deficiency, how supplied . . . 153 14. When panel is incomplete ' 153 15. How summoned when all names have been drawn . . . 153 16. Vacancies, how filled I54 17. Marshal to notify persons drawn I54 18. Notice to be served . , . ig^ ANAYSIS OF THE CONTENTS. xxiii 19. Marshal's return 154 20. Juror failing to attend, penalty 154 21. Penalty where officer colludes 155 22. Penalty where clerk colludes 155 23. Jurors not to be excluded on account of race or color . . 155 24. Qualifications of jurors 155 25. Compensation of jurors 155 26.. Who may be excused 156 27. Who are exempt from jury duty 156 28. " Long Panels" and " Struck Juries" 156 29. How challenges shall be tried • . . . 157 30. The time for challenging 157 31. The right to challenge 157 32. Interrogating the jurors 157 33. Grounds of challenge, interest 158 34. Relationship 158 35. Dependence of juror on party 158 36. Dependence of party on juror 159 37. Intimate acquaintance 159 38. Having an opinion 159 39. Opinion as to an incidental question 159 40. Prejudice 159 41. Exceptions 159 42. Disqualified juror sitting 159 43. Peremptory challenges, three only allowed 160 44. When interposed 160 45. Talesmen, statutory ground of challenge to 160 CHAPTEE XXVII. THE TRIAL AND ITS INCIDENTS. 1. Consolidation of causes 161 2. Separating causes of action 162 3. Court may compel election of causes of action, or of de- fences, when they are inconsistent 162 4. On non-appearance of either party, case to be dismissed. 163 5. When plaintiff fails to appear 163 6. When defendant fails to appear 163 7. Repleader 163 8. Issues of fact to be tried before a single justice .... 163 9. — May, by consent, be tried by the court without a jury 163 10. In such cases, bill of exceptions, etc., to be allowed . . 163 11. Trial by jury — Constitutional provision 164 12. Mode of proof in common law actions 165 13. Moving to dismiss for insufficiency of pleadings . ... 165 14. Amending to defeat the motion 165 [15. Plaintiff may have judgment, when 166 XXIV ANALYSIS OF THE CONTENTS. 16. The right to open and close 165 17. Opening the case to the jury 165 18. Directing a verdict against plaintiff, on opening state- ment of counsel 166 19. Separating the witnesses 166 20. Examining witness on the voir dire 166 21. Incompetency of witness on ground of conviction of felony 167 22. The order of proof 167 23. Relevency and competency of testimony 168 24. In cases where fraud is in issue 168 25. Account books and memoranda 168 26. Shop books 168 S7. Admissions and declarations — res gestw 168 28. Agency ..." 169 29. Bill of particulars 169 30. Burden of proof 169 31. Depositions as evidence 169 32. Documents 170 33. Handwriting 170 34. Experts 170 35. Impeaching one's own witness 170 36. Intent 171 37. Judicial notice . ... 171 38. Leading questions 171 39. Mailing letter 172 40. Reasonable time ... 172 41. Receipts . 172 42. Statutes of limitations — new promise ....... 172 43. Usage 172 44. Variance 172 45. Receiving evidence conditionally . . 172 46. Limits of cross-examination 172 47. Cross-examination of party 173 48. Re-opening to let in evidence 173 49. Withdrawing ajuror , . . . 173 50. Right of sur-rebuttal 173 51. Non-suit, involuntary .... 173 52. — Voluntary, when allowed and when not ' 173 53. Dismissing action against one of several . .... 173 54. Demurrer to evidence 174 55. Charging the j ury — general rules as to 174 56. Hypothetical questions .... . 174 57. Commenting upon the evidence 175 58. Written instruments 175 59. Oral contracts 175 60. Palsus in uno 175 61. Directing verdict I75. ANALf SIS OS' THE CONTENTS. SXV CHAPTEE XXVIII. THE VERDICT. 1. When for plaintiflf, form of 671 2. When for defendant, form of 176 3. When there are several counts, and some are found for plaintiff and the rest for defendant 176 4. SufiSciency of verdicts 177 5. Amendment of verdicts 177 6. Special verdicts, how stated 177 7. — Parties may prepare them > . . 177 '8. — Form and sufficiency of 177 9. Verdict subject to opinion of court, form of . > . . > 178 CHAPTEE XXIX. NEW TRIALS— BILLS OF EXCEPTIONS. 1. Grounds of motion for new trial 179 2. To be stated in Writing, and made within four days after verdict ." . 179 S. New trial for errors of law 179 4. The motion^ When Upon bills of exceptions, Where flled andlieard 179 5. May be heard before the bills of exceptions are prepared — appeal 179 6. For insufficient evidence or excessive damages — a;ppeal . 180 '7. Same subject — statutory provisions . 180 8. Appeal 180 9. Bills of exceptions and case stated — statutory provi- sions 181 10. In what cases to be heard in general term in first in- stance ... 181 11. Construction of thie foregoing statutory provisions . . 181 12. These provisions bieing adopted from the New York Code, are to be construed as there understood .... 182 13. Miscellaneous decisions 182 14. When motion for new trial to be deemed overruled . . 183 15. Bill of exceptions and case may be combined 183 16. No motion for new trial to suspend entry of judgment . 183 17. Exceptions, how taken 184 18. Bill to be settled before close of term 184 19. kow settled . - 184 ■20. If not settled, new trial to be granted 185 21. The filing and settling to be noted on the minutes . . . 185 XXVi ANALYSIS OF THK CONTENTS. 22. Rules respecting the preparation of bills of exceptions . 185 CHAPTEE XXX. ARREST OF JUDGMENT. 1. The filing and hearing of the motion 18S 2. The motion must state reasons relied on 186 3. Notes of decisions ■ • 187 4. The Maryland Act of 1763 187 CHAPTEE XXXI. JUDGMENT, 1. All judgments are as of the supreme court 188i 2. When judgment is for plaintiff or defendant 189 3. Judgment to be awarded without distinction of debt from damages 189^ 4. No supersedeas or stay of execution in, final judgments . 190 5. Judgment by default, where defendant fails to appear — how set aside 190 6. In suits on verified open accounts — no inquiry of dam- ages where suit goes by default 190 7. The afadavit in such cases 190 8. Judgment by default on attachment where goods, etc., in hands of third person have been seized 191 9. Where credits have been attached 191 10. In proceedings in rem against absent defendant . . . 191 11. In actions ex contractu 191 12. Of the plaintiff's affidavit under Seventy-third Rule . . 192 13. Of the defendant's affidavit 19a 14. Where declaration contains but one cause of action, and part of the sum claimed is admitted to be due .... 19S 15. Where declaration contains several causes of action . . 193 16. By whom the affidavit may be made 193 17. Of the jurat 193 18. Default may be had against such of several defendants as fail to appear in actions ex contractu 194 19. Unliquidated damages, in what cases court may award inquiry 194 20. How inquiry to be executed 194 21. Manner of executing inquiry under Maryland Act . . . 194 22. Judgment by default on bonds, etc., to be for sum due in equity 195 23. Default in replevin, how taken 196 24. — In ejectment 195 25. Judgment on verdict in case of set-ojBf 195 INlLf sis OB' THE CONTENTS. XXVii 26. In actions for the penalty of a bond, etc. — provisions of Maryland Act of 1785 196 27. When judgment shall be without costs 196 58. To what cases Rule Seventy-nine applies 196 29. Judgment against administrators or executors .... 198 So. How rendered on auditor's report of assets 198 81. Provisions of the Maryland Act upon 'v^hich the foregoing rule is founded ■ 198 ^^2. Judgment on an award 199 33. Interest on judgments 200 34. Setting off judgments 200 35. Judgments against partners 200 36. Judgments for rent with tacit lien of landlord, how en- forced 200 S7. Against married Women 200 38. Against constables failing to pay over money collected . 200 59. Against revenue oflftcers 200 40. Judgnlent for costs, what to include ........ 201 41. Judgment in case of death of parties 201 42. Powers of attorney to confess judgments forbidden . . 201 43. Notes of decisions 201 44. The lien of the judgment , . . . . 201 45. Entering judgment " satisfied " 202 46. When judgment is satisfied by Sutety, assignment of . . 202 47. Vacating judgment — the motion to vacate 202 48. — How made and served 203 49. In what cases affidavits are necessary 203 50. Counter affidavits 203 61. Vacating during the term 203 52. —After term has expired 203 53. Appeal from the order, when it lies and when not . . . 203 54. Notes of decisions 204 55. Reinstating cause .... * ^ . . 204 CHAPTER XXXII. COSTS. 1. All costs of clerk payable immediately 205 2. Where several actions are brought, instead of one, costs may be limited to one 205 3. Attorney liable for costs vexatiously increased .... 205 4. Costs in suits brought to the use of third parties . . 206 5. What costs may be taxed 206 6. Witness fees _ 206 7. Officers of the court not allowed witness fees 207 8. Costs of copies of court papers 208 9. Costs of proof of documents which party has refused to XX^111 AISTALTSIS OP THE COITTENTS. admit ■ 20S 10. Attorneys' docket fees 20& 11. Printers' fees 209 12. Meaning of "folio" 209 13. Costs in copyright suits 209 14. Costs in suits for infringements of patents 209 15. Costs in a prosecution on a penal statute ...... 210 16. Notes of decisions 210t CHAPTEE XXXIII. APPEAL TO GENERAL TERM. 1. On appeal, court may aMrm, reverse, or modify judg- ment, etc. , 21Z 2. Perfection of appeal ; bond 212' 3. In what cases supersedeas is allowed — form of bond or undertaking ; . . . 212 4. Enlarging time for filing undertaking 213 5. No undertaking necessary if supersedeas not intended . 213- 6. Statutory provisions — general term may regulate ap- peals ^ . . . . 214> 7. Any party aggrieved may appeal, when , 214 8. Quorum — divided court— re-argument 214 9. Appeals in patent cases 21& 10. — Habeas Cotpus 215 11. Hearing before general term — printing record and briefe. 21& 12. Briefs to be exchanged before argument 216. 13. Motion to dismiss for failing to print record 21S 14. Frivolous appeals 216- 15. Notes of decisions — what can be considered by appel- late court 217 16. Appeals to Supreme (Jorurt of United States . . . , , 219' CHAPTEE XXXIV. EXECUTION. 1. If judgment not suspended, superseded, etc., esscution to issue ■ 2201 2. No stay of execution on final judgments 221 3. Execution may issue at any time during life of judgment 221 4. Fieri facias — form of 221 5. Habere facias — form of 221 6. Retorno habendo — form of 222 7. Special writs of execution may issue when necessary . . 222 8. What may be levied on under a fieri facias 222 9. The exemption laws ,,,, 223. ANALYSIS OF THE CONTENTS. XXix 10. Waiver of exemption law inoperative 224 11. Remedy when exempt property is levied on 224 12. What other property may not be taken in execution . . 224 13. Issuing writ prematurely 225 14. Issuing writ after death of a party 225 15. Alias and pluries executions 225 16. The lien of the fl.. fa 225 17. Landlord to be paid his rent due before removal of goods 226 18. Death of marshal after levy or sale — statutory provision. 226 19. Time of making sale 227 20. What right and title passes 227 21. Validity of the sale 227 22. Fraudulent sale 228 23. Application of proceeds 228 24. The return 228 25. Form of writ of attachment 229 26. Interrogatories to garnishee 229 27. Condemnation, judgment of 229 28. Statutory provisions — Maryland Act, 1715, ch. 40, sec. 7 . 229 29. Capias ad satisfaciendum — statutory provisions .... 231 30. Proceedings upon the arrest 231 31. Who exempt from this process 231 32. Debtor not to be admitted to bail pending trial .... 231 33. Scire facias on judgment — form of 231 34. Nature of a scire facias 232 35. Where a new person is to be benefitted or charged by the execution 232 36. Marriage of female plaintiff or defendant 233 37. Scire facias against terre tenants 233 38. Pleading to scire facias — demurrer 233 39. Plea, what defences may be set up 233 CHAPTEE XXXV. MOTIONS. 1. All motions to be recorded and filed 234 2. Notice of motion, when requisite 234 3. Enumerated motions, what are 235 4. Motions may be ordered to be heard in general term in the first instance 235 5. Statutory provisions 235 6. All objections should be embodied in one motion . . . 236 7. Serving copies of motion 236 8. How far the relief moved for may be granted .... 236 9. Renewing the motion 236 XXX ANALYSIS 01" THE CONTENTS. 10. Appeal 237 11. Practice on motion in special matters 237 CHAPTER XXXVI. OF MONEY PAID INTO COURT. 1. Where and how deposited and disbursed ...... 237 2. Statutory provisions 237 3. Clerk to keep account, etc., of money in court .... 238 4. Similar statutory provisions 238 CHAPTER XXXVII. CHANGE OF PARTIES BY DEATH, MARRIAG-E OR CON- TRACT. 1. Successor in interest may be substituted on motion — ^how and when the motion may be made 239 2. Death of party when cause is pending in general term — how successor in interest may be substituted .... 239 3. Provisions of the Revised Statutes of the United States as to death of party 240 4. — Where one of several plaintiffs or defendants dies . . 241 5. Provisions of the Maryland Act as to death of parties . 241 6. Executors and administrators to conform to the fore- going provisions 244 7. Change of parties by death in actions of replevin ■ . . 244 8. Death of party to whose use suit is brought 245 9. Death of party in actions by or against partners . . . 245 10. — In actions of ejectment 245 11. Death of party in actions to recover realty where suc- cessor in interest is an infant 245 CHAPTER XXXVIII. OF SOME MISCELLANEOUS RULES. 1. Approval of bonds 246 2. When surety becomes insufficient — remedy 246 3. Members of the bar not to be sureties 246 4. Affidavit to accompany plea to scire facias on judgment, etc 247 5. Rates to be paid for advertising when done under au- thority of the court 247 6. Rules regula,ting sales by trustees 247 ANALYSIS OF THE CONTENTS. XXXi 7. — Auctioneer's charges 248 8. Duty of clerk in filing papers 248 CHAPTEE XXXIX JUSTICES OF THE PEACE— JURISDICTION— APPEALS, ETC. 1. Term and oath of office 250 2. General powers and duties 250 3. Rules and forms to be prescribed by supreme court . . 250 4. Jurisdiction 250 5. Not to exercise criminal jurisdiction 251 6. May issue warrants returnable to police court .... 251 7. Justices to keep docket, etc 252 8. Liability for failure to do so 252 9. Copy of summons to be served on defendant 252 10. Non-residents to give security for costs • . 252 11. Original writs 252 12. Removal of causes 252 13. Witnesses . 252 14. Trial and judgment 252 15. Interest on judgments 253 16. Opening the judgment 253 17. Renewal of judgments 253 18. Parties may demand a trial by jury 253 19. Venire 253 20. Qualifications of jurors 253 21. Talesmen 254 22. Oath of jurors 254 23. Trial 254 24. Constable's oath 254 25. Verdict 254 26. Judgment and execution 254 27. Fieri facias 254 28. Executions may be levied by marshal 254 29. Property subject to execution 254 30. Execution upon copy of judgment 255 31. Plaintiff's receipt 255 32. Judgments, how made a lien 255 33. Stay of execution 255 34. How entered 255 35. "When no stay shall be allowed 256 36. Expiration of supersedeas 256 37. Appeals — debt or demand must exceed five dollars . . 256 38. Undertaking to be given, except where District of Co- lumbia is appellant 256 39. Provisions of the statute 256 40. Within what time such undertaking must be given , . 256 XXXll ANALYSIS OP THE COKfTENTS. 41. Stay of execution witliout appeal 257 42. Approval of security 257 43. Papers to be filed in clerk's office 257 44. Certiorari in case of refusal or neglect to file 257 45. Cause to be docketed — summoning the appellee . . . 257 46. Similar provisions of rule 109 258 47. How cause to be titled on the docket 258 48. When appellee fails to appear 258 49. Similar provisions of rule 112 258 50. Where appellant neglects to pay marshal's fee .... 258 51. When appellant fails to prosecute appeal 258 52. Similar provision of the statute 259 53. Hearing the appeal 259 54. When tried upon merits, how heard 259 55. Trial by jury at election of parties 259 56. Appeal not prayed to next term, not to be dismissed, un- less, etc 259 57. Certiorari in cases of concurrent jurisdiction 259 58. Commission of justice void, when 260 59. Removal by supreme court 260 60. Dockets to be delivered to clerk, when 260 61. Penalty for neglect 260 62. Pees, how established 260 63. President to appoint fifteen justices of the peace — term of office— act of June 7, 1878 260 64. To have same jurisdiction as their predecessors .... 261 65. To close up unfinished business of their predecessors . . 267 66. Disposition of records, etc., on termination of oflEice . . 262 67. Term of justices in office at time o/ passage of this act, to end, when 262 68. Retiring justices to deposit their records with clerk, who may give transcripts thereof , . 262 69. Supreme court to fix and approve bonds of justices of the peace 262 70. Repealing cause 262 CHAPTER XL. CONSTABLES. 1. Supreme court may appoint twenty constables— terra of office, etc • 263; 2. Duties of constables 263 3. Oath and bond 263 4.. Supreme court to fix amount and form of bond, etc. . . 263 5. Renewal of bond 264 6. Service of process 264 7. Failure to pay over moneys, penalty 264 8. Fee& and commissions . . . , 264 ANALYSIS Of THE CONTENTS. Xxxiii PART II. CRIMmAL PROCEDURE. CHAPTBE L THE CRIMINAL COURT; JTTRISDlOTlON OP, AND TERMS. 1. The criminal court a branch of thB supreme court . . . 267 2. Jurisdiction 267 3. To be held, by whom 267 4. Jurisdiction to cause arrests, hold to bail, etc 268 5. Terms of the criminal court 268 6. Justices holding circuit court may hold sittings for trial of criJninaLcases 268 '7. When criminal court may sit as a circuit court . . , . 269 CHAPTEE 11. LIMITATIONS. 1. Capital oifences , . . 269 '2. Offences not capital 269 3. Fleeing from justice 270 4. Crimes against the customs and revenue laws . ' . . . 271 CHAPTEE III. THE ARREST. 1. Constitutional provision 272 2. Justices of the peace may issue warrants in certain cases. 273 3. Power of the judge of the police court to issue warrants, etc 273 4. Police force to have common law powers of constables . 273 fi. May execute warrants without any backing or endorse- ment thereof 274 6. Arresting without warrant 274 XXXIV ANALYSIS OF THE CONTENTS. 7. Authority to arrest in cases of suspected felony . . . 274 8. Authority to search and arrest in special cases .... 274 9. Penalty for neglecting to make arrests 275 10. Duty of private detectives making arrests 275 11. By whom the warrant may be issued 275 12. Issuing the warrant 276 13. Executing the warrant — preliminary examination . . . 276 14. The commitment 277 15. The mittimus . ' 277 16. When several indictments are against same person, one writ sufflcient 278 17. Copy of writ to be jailer's authority 278 18. Rescue of prisoners — penalty 278 19. Allowing prisoner to escape — penalty ....... 278 CHAPTER IV. BAIL. 1. Excessive bail not to be required 279 2. Who may take bail 279 8. Bail in cases not capital 280 4. — In capital oases 280 5. Judge of the police court may take bail 280 6. The recognizance 280 7. Forfeiting the recognizance — liability of sureties . . . 281 8. When and by whom penalty of recognizances may be re- mitted 282 9. Surrender of accused persons by their bail 282 10. Additional bail to be given in certain cases ..... 283 11. Liability of principal to surety who was paid the forfeit- ure 283 12. Procuring false bail — penalty for 284 CHAPTER V. THE GRAND AND PETIT JURIES. 1. Drawing jurors 284 2. Who to constitute the grand and who the petit jury . . 285 3. Writs of venire, how issued and served . ,' 285 4. Foreman of grand jury 285 5. Special oath as to duelling to be administered to grand jury 285 6. Discharge of grand juries , 285 7. Mixed juries 285 ANALYSIS OP THE CONTENTS. XXXV 8. Challenges 286 9. When defendant exceeds his challenges 286 10. Corrupting or intimidating juries— penalty 287 CHAPTER VI. WITNESSES lisr CRIMINAL CASES. 1. Subpoena, form of; attendance under 288 2. Subpoenas to run into any district 289 3. Witnesses for defendant in criminal trials ...... 289 4. Where parties are unable to pay fees of witnesses . . . 289 5. Recognizance of witnesses 289 6. Detained witnesses to be provided with suitable accom- modations . .' 290 7. Recognizance of witnesses may be required at any time on application of district attorney . , 290 8. Defendants made competent witnesses 290 9. Accused or convicted persons competent and compella- ble to testify in certain cases 291 10. Persons convicted of perjury incompetent witnesses . . 291 11. —So of subornation of perjury 291 12. Testimony of witnesses before Congress not to be used against them in criminal proceedings 291 13. Pleadings, disclosures, etfc, of a party or witness not to be used against him in criminal proceedings .... 292 14. Deffendants in capital cases to have compulsory process for witnesses 292 15. District attorney and assistants may administer oaths to witnesses in criminal cases 393 16. No writ necessary to bring witness ftom jail 293 17. Corruptly influencing or intimidating witnesses — pen- alty 293 18. Commissions for .taking testimony in criminal cases . . 293 19. Who may be commissioners 293 20. What commission must state 294 . 21. Notice to district attorney 294 22. Contents of notice 294 . 23. Service of notice and copy 294 24. Cross-interrogatories 294 25. Commission 294 26. Duties of commissioner 295 27. Exhibits 295 28. Certificate and return 295 29. No deposition to be excluded for unimportant deviations from foregoing directions 295 30. Conrt.may .establish further rules 295 XXXVl ANALYSIS OF THE CONTENTS. CHAPTEE VII. INDICTMENTS— PRESENTMENTS— INFORMATIONS. 1. Infamous crimes to be prosecuted only by presentment or indictment 296 2. What are infamous crimes 296 3. All indictments to run in name of United States — conclu- sion of 297 4. Indictments and presentments to b© concurred in by at least twelve grand jurors 297 5. Cbarges which may be joined in one indictment shall be so joined 297 6. What offences may be joined in one indictment .... 297 7. What offences may not be joined 298 8. Repugnant counts 298 9. Indictment not to be deemed insufficient for defect of form only 298 10. Indictments and informations cannot be amended . . . 302 11. Indictment for perjury — averment — statutory provision . 302 12. — For subornation of perjury — similar provisions . . . 303 13. — For perjury before a court martial 303 14. Presentments 303 15. Informations 304 CHAPTEE VIII. PROCEEDINGS BETWEEN INDICTMENT AND TRIAL, 1. The arraignment — prisoner standing mute 304 2. Pendency of a prior indictment 305 3. Waiving the reading of the indictment 305 4. Quashing the indictment 305 5. Demurrer to the indictment 306 6. Judgment on the demurrer 306 7. Plea of former jeopardy 306 8. In capital cases accused may demand that counsel be assigned him, etc 306 9. In capital cases list of witnesses to be delivered with copy of indictment before trial '. 306 CHAPTEE IX. TRIAL BY JURY. 1, Constitutional provision 308 2. Duty of district attorney to prosecute 309 ANALYSIS OF THE CONTENTS. XXSVll 3. Separate trials 309 4. Presence of prisoner 309 5. To be confronted with the witness — exception to the rule 309 6. The right to open and close 310 7. Onus probandi 310 8. Compelling party to disclose what he expects to prove by a witness 310 9. Introducing new evidence after the closing of the case . 310 10. Statutory provision in prosecutions for libel 311 11. Rulings in criminal cases and abortion 311 12. Accomplice — principle and accessory 311 13. — Mere presence not of itself sufficient 311 14. — The degree of credit to be given — corroboration of . . 312 15. Corroboration need not extend to whole testimony . . 312 16. Autrefois acquit 312 17. Bigamy 312 18. Character 313 19. Confessions 313 20. Court giving its opinion upon the facts * . 313 21. Coverture as a defence to crime 313 22. Declarations 313 23. Discharge of jury, power of court over during trial . . 314 24. — Discretionary power to, does not mean arbitrary choice 314 25. — Instance 314 26. Evidence, weight and effect of 314 27. Indictment, objections to, at the trial 314 28. Insanity as a defence 314 29. — Traits of character as indicia of ....,..-. . 315 30. — Rebutting, evidence of 315 31. — Inability to resist wrong . . • 315 32. — Barbarity of the killing, not of itself evidence of . . 315 33. Ignorance of law 315 34. Intent, design, etc 315 35. Larceny, " Bunco games" may be 315 36. Murder 315 37. Penal Statutes— rule of construction 316 38. " Reasonable doubt," what is 316 39. Threats 316 CHAPTEE X. VERDICT; SENTENCE; EXECUTION. 1. Verdict of less offence than charged 317 2. Verdict against one or more of several joint defendants . 317 3. Sealed verdict ' 318 4. Sentence— cruel and unusual punishments 318 XXXVm ANALYSIS OF THE CONTENTS. 5. Whipping and the pillory abolished 319 6. Cumulative sentences 319 7. Costs of prosecution, when to be paid by defendant . . 319 8. Court may add to judgment of death that body be de- livered for dissection 319 9. When execution of sentence may be postponed .... 320 10. Judgments for fines, how collected 320 11. When sentence is to penitentiary, how executed . . . 320 12. When sentence of juvenile offenders is imprisonment, how executed 321 13. Benefit of clergy abolished 322 14. Punishment of death to be by hanging 322 15. Warden of jail to execute judgment of death 322 16. Place of execution 322 17. Ofllcers required to attend 322 18. Who may be present 323 19. Who shall not be allowed to witness executions .... 323 20. Capital cases carried to the Supreme Court of the United States — execution to be postponed 323 CHAPTER XI. SUMMARY TRIALS FOR CERTAIN OFFENCES AGAINST NAVIGATION LAWS. 1. When summary trials may be had 324 2. Complaint and answer 324 3. Amendments and adjournments 325 4. Challenges to jurors 325 5. Limit of sentences 325 6. Recovery of penalties and forfeitures under navigation laws 325 CHAPTER XII. EXTRADITION. 1. Fugitives ftorm the justice of a foreign country .... 326 2. Evidence on the hearing 327 3. Subpoena of witnesses for defence 32S- 4. Witness fees, costs, etc., how paid 328 5. Evidence on the hearing, further provisions 329 6. Repeal in part of section 5271, R. S. U. S 329' 7. Surrender of the fiigitive 329. 8. Time allowed for extradition 329 9. Continuance of provisions limited ......,,. 330 ANALYSIS OF THE CONTENTS. XXxix 10.' Protection of the accused 330 11. Powers of agent receiving offenders delivered by a for- eign government 330 12. Penalty for opposing agent, etc. 331 13. Interstate extradition, constitutional provision .... 331 14. Duty of chief justice in interstate extradition cases . . 381 15. In case of absence, etc., of chief justice, senior associate justice to act 331 16. Fugitives from justice of a State or Territory 332 17. Penalty for resisting agent, etc 332 18. What ard extradictable crimes . '. 332 19. Who are fugitives from justice 332 20. Arrest before demand made 333 21. The demand 333 22. Duty of executive upon whom the demand is made . . 333 23. The defendant must be charged with crime 334 24. SufB^ciency of the indictment 334 25. The affidavit 334 26. Authentication of the papers 334 27. Extradition may be refused if accused be already held on a criminal charge in jurisdiction where found . . . 335 28. Jurisdiction of the court to inquire on habeas corpus into the cause of detention 335 29. Guilt or innocence not to be investigated on habeas corpus 336 30. Extradition to the District of criminal fleeing there- from 336 31. Arrest of deserting seamen from foreign vessels .... 336 32. Powers of foreign consuls over disputes between seamen 337 33. Arrest of seamen on application of consul 337 34. Commitment and discharge 338 CHAPTER XIII. DISOHARG-E OF POOR CONVICTS. 1. Proceedings before the commissioner 339 2. Form of application for discharge 340 3. Mandate to jailer for production of convict 340 4. Oath of convict 340 5. Certificate of discharge 341 CHAPTER XIV. THE POLICE COURT. 1. Police court established . 342 xl ANALYSIS OP THE CONTENTS. 2. —Judge of, how appointed, term of office, salary , . . 344 3. Oath of judge 344 4. Terms of court • . . . 344 5. Rooms for holding court 344 6. Salaries of judge and officers, how paid . 345 7. In case of absence or disability of judge, who to dis- charge duties of 345 8. Oath and compensation of substituted judge 345 9. Jurisdiction of the police court 345 10. Power of judge to issue process for arrests 346 11. Judge may examine and commit 346 12. General powers of court 346 13. Power to punish contempts 346 14. Enforcement of sentences 346 15. Rules and regulations , 346 16. Seal — acknowledgements and oaths 347 17. Clerk, appointment and salary 347 18. Deputy 347 19. Bond and oath of clerk 347 20. Power of, to administer oaths and affirmations .... 347 21. Clerk to charge no fees 347 22. Number of bailiffs and compensation of 347 23. May act as deputy marshals for service of process . . . 347 24. Prosecutions to be by information 347 25. Process for violation of District laws 348 26. Process in other cases 348 27. Form of process 348 28. Marshal's fees 348 29. What cases United States Attorney to prosecute . . . 348 30. Fees of , 348 31. What cases attorney of the District to prosecute . . . 348 32. Fees of witnesses 349 33. Appeals 349 34. Bond on appeal 349 35. — Stay of proceedings on appeal 349 36. Papers to be sent to supreme court 349 37. Appellants failing to recognize 349 38. Appeals, how certified 349 39. Appeals in cases of offences against municipal laws . . 349 40. Deposit for costs— docketing appeal 350 41. Proceedings on failure to prosecute appeal 350 42. Fines, penalties, costs, and forfeitures, how collected . . 350 43. Disposal of moneys collected 350 ANALYSIS OP THE CONTENTS. xli PART III. EQUITY PRACTICE. CHAPTEE I. GENERAL REQ-ULATIONS. 1. When suits in equity may be sustained 353 2. Instances in which equity will grant relief 353 3. Instances where it will not 355 4. Court to be deemed always open for preparation of causes 357 5. Order book 357 6. Pleadings and papers to be legibly written 357 7. Oaths and afiirmations 357 8. Form for verifying bills, etc 357 9. AiHdavits 358 10. Bills and petitions to be filed before being presented . . 358 11. Costs of copies of papers on file 358 CHAPTEE 11. PARTIES. 1. Proceeding without parties 358 2. Who are necessary parties 359 3. Who are not necessary parties 360 4. When very numerous all need not be made parties . . 361 6. One or more suing for the benefit of many 361 8. Reasons for omitting parties must be averred in the bill . 362 7. Cases in which beneficiaries may be dispensed with . .' 362 8. How objection for want of parties should be taken . . 362 9. Proceedings where want of parties is suggested in the answer 363 10. Omitted parties, saving for, in decree 363 CHAPTEE in. ORIGINAL BILLS, MATTER AND FRAME OF. 1. Every bill to be divided into paragraphs, etc 364 2. Form of the introductory part of a bill 364 Xlii ANALYSIS OF THE CONTENTS. 3. The confederacy, cliarging and jurisdiction clauses to be omitted 365 4. Reasons for omitting parties to be averred 365 5. Matter of bill to be brief and pertinent 365 6. What averments necessary, and how to be stated . . . 365 7. Bill of interpleader, what necessary averments .... 366 8. To stay proceedings at law, what to be averred .... 366 9. Impertinence in bills and other pleadings 366 10. Scandalous matter, what is 367 11. Scandalous or impertinent matter may be expunged on motion 367 12. Multifariousness ^67 13. Instances of multifariousness 368 i4. Instances of bills not multifarious 368 15. How objection for multifariousness may be taken . . . 369 16. Framing bill with a double aspect 369 17. The prayer for relief • 369 18. The prayer for process 370 19. BiD to be signed by counsel 370 20. Verification of the bill 370 21. No bill or petition to be presented until iiled 371 22. Docketing the suit 371 CHAPTEE lY. THE "WRIT OF SUBPCENA. 1. Process in equity 371 2. Form of the writ of subpcena 372 3. Issuing the writ 372 4. By whom to be served 373 5. How to be served 373 6. Service on an infant 373 7. Service on a lunatic 374 8. Service where defendant has no family, and personal service cannot be effected 374 9. Service in other cases — by publication, etc 374 10. The return of subpcena 374 11. Renewal of subpoena 375 CHAPTEE V. APPEARANCE. 1. Time of appearance 375 2. Entry of appearance 375 3. Effect of appearance 375 4. Conditional appearance 376 ANALYSIS OF THE CONTENTS. xliii 5. Appearance by married ■woman 376 6. Appearance by infant ............. 376 7. Appointing guardian ad litem to appear and defend . . 376 8. Appearance by lunatics, idiots, etc 376 9. Default in appearance — decree pro confesso 376 10. Setting aside decree pro confesso . . . . , 378 CHAPTEE VI. DEMURRERS AND PLEAS. 1. Demurrers and pleas to be accpmpanied by certificate of counsel . 379 2. By what time to be filed 379 3. Demurring or pleading to whole or part of the bill . . 379 4. What may be objected toby demurrer 380 5. Demurrers to discovery must be special 380 6. Speaking demurrers 380 7. Several causes of demurrer 380 8. Separate demurrers 380 9. Demurrer cannot be good in part and bad in part . . . 380 10. — When coupled with an answer 381 11. Demurring ore tenus • . . . 381 12. Causes of demurrer must be co-extensive' 381 13. Defence by plea 381 14. But one defence to be made by plea 382 15 . Demurrer or plea will be taken as suflBcient if not set down for argument or replied to 382 16. Argument of demurrers and pleas ; taking issue on the plea 383 17. Costs on overruling ; time for answering 384 18. Costs on allowing — amending 384 CHAPTEE VII. THE ANSWER. 1. Within what time answer must be filed — default . . . 385 Z. Nominal party, when to answer, when not 385 3. Disclaimers 386 4. Defence by answer instead of plea 386 6. Frame of the answer 386 6. Manner of answering complainant's case and stating the defence 387 7. Separate answers, cost of 388 8. Answers of infants or other persons under guardian- ship , 388 9. Answer of an infant residing out of the District . . . 388 Xliv ANALYSIS OF THE CONTENTS. 10. Answer of a married woman 389 11. Answer of a lunatic 389 12. Answer of a corporation 390 13. Answers in special cases 390 14. Signing the answer 390 15. Verifying" the answer 390 16. When taken abroad, how verified 390 17. In what case the answer need not be verified 391 CHAPTBE VIII. EXCEPTIONS TO THE ANS"WER— REPLICATION. 1. Within what time exceptions must be filed 391 2. Answersof infants, lunatics, etc., cannot be excepted to . 392 3. Matter and frame of exceptions 392 4. Exceptions, when answer is coupled with a demurrer or plea 392 5. Submitting to the exceptions, amended answer .... 393 6. Within what time exceptions must be set for hearing or be deemed abandoned 393 7. Allowance of exceptions — putting in answor — attachment to compel 393 8. Costs of exceptions 394 9. The replication ; time for filing 394 10. Special replications abolished — form of general replica- tion 394 11. If replication be not filed in time bill to be dismissed, un- less, etc 394 CHAPTEE IX. AMENDED AND SUPPLEMENTAL BILLS AND ANSWERS; CROSS-BILLS AND BILLS OP REVIVOR. 1. Amending bills before and after copy taken out .... 395 2. Amending bill after answer, plea or demurrer .... 397 3. — After replication 397 4. When leave to amend bill will be deemed abandoned . . 398 5. Answering the amended bill 39S 6. Amending the answer 399 7. Supplemental bills 399 8. Supplemental answers 401 9. Oross-bill for discovery only 402 10. Maryland Act of 1785, ch. 2, sec. 21 402 11. Cross-bills generally 402 12. In what" cases dismissal of bill by plaintiff carries the cross-bill with it 404 ANALYSIS OF THE CONTENTS. xlv 13. Bills of revivor 404 14. The practice when a bill of revivor becomes necessary . 405 15. Bills of revivor and supplement 406 16. Bills in the nature of a bill of revivor 406 17. Suit not to abate if party die after cause set for hearing . 406 18. Death or masrriage of party after final decree . . • . . 407 19. Not necessary to set forth in bill of revivor statements in original suit 408 CHAPTER X. INJUNCTIONS, NB EXEATS AND BECBIVBRS. 1. Preliminary injunction or restraining orders, how al- lowed 409 2. In what cases an undertaking will be required — form of . 410 3. Preliminary injunctions and ne exeats not to be granted ex parte, unless prayed for and bill verified 411 4. When not ex parte, day to be fixed for hearing .... 411 5. When to stay proceeding at law — averments of bill — order to be made 411 6. Principles upon which an injunction issues to stay pro- ceedings at law 411 7. Injunction to stay proceedings upon a judgment . . . 413 8. Principles upon which the injunction issues 413 9. Damages for satisfaction of interest on a forthcoming bond 413 10. In what cases damages to be in the discretion of the court , 413 11. Suits at issue, to recover land or chattels, not to be stayed unless undertaking be given 414 12. Affidavits may be filed with bill or answer 414 13. Injunctions not to be granted against assessment or col- lection of taxes 414 14. Motion to dissolve or discharge 415 15. Not dissolved unless answer verified 415 16. Miscellaneous provisions of revised statutes of United States 416 17. Preliminary injunctions not appealable 416 18. Receivers . , 416 19. How and when appointed 417 20. Who may be receiver 417 21. When title vests in receiver 418 22. Order appointing receiver not appealable 418 CHAPTER XI. INTERLOCUTORY PROCEEDINGS. 1. Interlocutory Orders, how obtained 418 Xlvi ANALYSIS OP THE CONTENTS. 2i Motions grantable of course 419 3. Motions not grantable of course — notice of, how given . 419 4. Afifldavits in support of motions, and in opposition to . 419 5. Certifying motions to the general term 420 6. Motions not involving the merits of the case not appeal- able 420 7. Security for costs ■ 420 8. Consolidation of causes 421 9. Production of books and papers 422 10. Electing to proceed at law or in equity 423 11. Payment of money into court 424 12. Sending issues to a court of law 425 13. Attachments for contempt 425 14. Sequestration 425 CHAPTEE XII. TAKING- THE TESTIMONY. 1. Manner of taking the testimony of resident witnesses — proceedings 420 2. Proceedings where a witness refuses to attend .... 427 3. Subpoena duces tecum 428 4. Notice of time and place of examination to be given • . 428 ' 5. Depositions when concluded, how transmitted .... 428 6. Depositions of non-resident witnesses, how taken , . . 428 7. Interrogatories and answers 429 8. Objections to the depositions .... * 429 9. Right of parties to be present and to file additional inter- rogatories, etc 430 10. Court may limit the time for taking testimony .... 430 11. Immediately upon return of testimony, clerk may make publication 431 12. Testimony de bene esse 431 13. Form of last or general interrogatory 431 CHAPTEE XIII. REFERENCE TO THE AUDITOR. 1. Creation of the office of auditor 432 2. Within what time matters referred to the auditor are to be presented him 432 3. Auditor to assign time and place for proceeding and to notify parties 433 4. Powers and duties of the auditor on the reference . . . 433 5. Witnesses before the auditor 434 6. Form of accounting before the auditor 435 7. Documentary evidence 435 8. Creditor or claimant may be examined 435 ANALYSIS OF THE CONTENTS. xlvii 9. Compensation of the auditor 437 10. Exceptions to report of the auditor 437 11. Cost of frivolous exceptions 437 CHAPTER XIY. HEARING- AND DECREE. 1. Setting causes for hearing -...'' 438 2. Where to be heard 438 3. Answer when evidence on the hearing 438 4. Drawing the decree, form and substance of ,. . . . . 439 5. Decrees to enforce liens 440 6. Decrees confirming sales 440 7. Clerical mistakes in decrees, how amended . . .^ . . 440 8. Decrees for account of personalty of deceased persons, what to contain 441 CHAPTEE XV. EXECUTION OP DECREE. 1. Execution of decree for payment of money . .... 442 2. Execution of decree for specific act 442 3. Decree may stand for a conveyance 443 4. Similar provisions of the revised statutes of the District . 443 5. Writ of assistance ' 443 CHAPTEE XYI. REHEARING AND REVIEW. 1. Petition for rehearing, what to contain 444 2. Not to be granted after lapse of term if appeal lies to Supreme Court of the United States 445 3. If no appeal lies, may be admitted at any time before end of next term 445 4. Principles upon which a rehearing is granted 445 5. Bill of review, within what time to be filed 446 6. The proviso of section 1008, R. S. U. S 446 7. Principles applicable to bills of review 446 8. What the petition for leave to file should state .... 448 9. Hearing of the petition for leave to file 448 CHAPTEE XVII. SALE OP INP ANT'S ESTATES AND OP ESTATES OP TENANTS POR LIFE. 1. Guardian may file petition for sale of infant's estate . . 449 2. What petition must state . 449 Xlviii ANALYSIS OF THE CONTENTS. 3. Parties defendant, who to be made 449 4. Evidence required before decree 450 5. Requisites to render decree of sale lawful 450 6. Costs 450 7. No sale where will forbids it 450 8. Guardian not to purchase 450 9. Manner of sale 450 10. Proceeds, how to be tavested and applied 451 11. Security to be required 451 12. In case of infant's death, proceeds to be considered as real estate 451 13. When court may confirm contract of guardian for sale of infant's realty* 453 14. Sale of estate of tenant for life 453 15. Application, how made 454 16. Parties defendant, who must be 454 17. Evidence, how taken 454 18. Disposal of proceeds . , 454 CHAPTEB XVIII. PROOESDINGS 'WHERB LANDS ARE HELD INTRUST, ETC., BY INFANTS AND PERSONS NON COMPOTES MENTIS. 1. Infants and persons non compotes mentis, seized of lands in trust, or bound, etc., may be decreed to convey . . 455 2. In case of infants, guardian must consent to decree, and infant may show cause after coming of age 456 3. Representatives and others interested in such estates may have specific performance, etc. ........ 458 4. Infants to be bound by such conveyances 458 5. Manner of decreeing sale of mortgaged premises of in- fants, and persons non compotes mentis 459 6. Bond in such cases to be given, condition of 460 CHAPTEE XIX. PROCEEDINGS TO SELL DECEDENT'S REAL ESTATE TO PAY DEBTS. 1. Land descended or devised to a minor or person non compos mentis may be sold to pay debts of deceased, when personalty insufficient 461 2. Parties to creditor's bill 463 3. Allegations of the bill 463 4. Limitations as a defence to creditor's bill 463 5. Chancellor may appoint trustee to make such sale . . . 463 6. Manner of making and confirming such sales, bond of trustee, etc. 46S ANALYSIS OF THE CONTENTS. Ixix 7. Terms of such sales 465 8. Distribution of proceeds 465 9. How far infants may disturb decree after coming of age . 465 10. Miscellaneous decisions under the statute 466 CHAPTEE XX. SALES OF EQtriTABLE TITLES. 1. Equitable titles may be sold for same causes and in same manner as legal titles 467 2. When descended or devised to infants, may be sold to pay debts of ancestor or devisor 468 3. Sale of equitable titles to satisfy judgments or decrees . 468 CHAPTEE XXI. STATUTORY PROVISIONS RESPBCTI3SrC3- TRUSTEES AND ESTATES OF PERSONS DYING- WITHOUT HEIRS. 1. Testamentary trustees may be required to give security 469 2. Trustees may be appointed in certain cases 470 3. Death without heirs of persons having contracted for the sale of lands and not having conveyed the same — pro- ceedings . . . . ' 470 CHAPTEE XXII. IDIOTS AND LUNATICS. 1. Power of court over the persons and estates of idiots and lunatics 471 2. Court may direct their confinement 472 3. May direct a sale of their property for their support . . 473 4. Same subject — further statutory provisions 473 5. Proceedings on such sales — bond of trustee, etc. . . . 474 6. Disposition of Proceeds 474 CHAPTEE XXIII. PARTITION. 1. Who may have partition 475 2. Parties, to partition suits 475 3. In such suits court to exercise general equity powers . . 475 4. In what cases court may decree sale and division of pro- ceeds ' 475 5. Terms of -such sales ....■..■..- 475 1 ANALYSIS OP THE CONTENTS. 6. Manner of appointing guardian and taking answer of non-resident infants in partition suits 476 7. Commission may, by consent, be directed to one instead of three 476 CHAPTBE XXIV. MECHANICS' LIENS. 1. Who may have the lien 477 2. Time and place of filing the notice 478 3. Priority of liens— exceptions 478 4. When lien to have priority — extent of 479 5. Proceedings to enforce the lien — averments of the bill — parties, etc 479 6. Decree of sale and distribution of proceeds 480 7. Decree in case of more than one building 480 8. Joint claimants , 480 9. Time within which suit must be commenced — all parties to be heard before final decree 480 10. Different suits against same building to be consolidated 481 11. In what cases court may order survey 481 12. When satisfaction of claim to be entered — penalty if not entered 481 13. Discharging lien by filing undertaking with sureties — proceedings 482 14. Liens in special cases 482 15. Liens upon personal property 482 16. Kepeal provisions 483 CHAPTEE XXY. DIVORCE. 1. Jurisdiction in divorce . 484 1 o. General rule as to proceedings 484 2. Applications for— how made 485 3. Causes for which a divorce a vinculo may be granted . 485 4. Causes for which a divorce from bed and board may be granted 490 5. Limitation when cause of complaint arose out of the District 490 6. Allegations of the petition 491 7. — In case of adultery 492 8. — Where petitioner was under age of consent .... 494 9. — Where petitioner's consent was procured by fraud . . 495 10. — Where the marriage was contracted during peti- tioner's lunacy 493 ANALYSIS OP THE CONTENTS. li 11. Verification of the petition 496 12. Filing the petition and issuing summons 496 13. Answer of the defendant 496 14. Non-resident and absent defendants, how notified . . . 497 15. Provisions of rule eighty-nine as to such notice .... 498 16. When cause maybe heard in default of defendant's ap- pearance . • 499 17. No divorce to be granted without proof— admissions in answer not evidence 500 18. How proof to be taken 500 19. In what case evidence of petitioner may be received in suits for divorce from bed and board ....... 500 20. No divorce cause to be heard unless calendared — testi- mony to be filed in "publication cases" thirty days be- fore calendaring cause for hearing 501 21. Decree when marriage is dissolved on account of former marriage 501 22. Legitimapy of issue in such cases 501 23. When marriage dissolved on account of lunacy, issue to be deemed legitimate 501 24. In other cases decree not to affect legitimacy of issue . . 501 25. Court may decree alimony and retain right of dower to wife 502 26. Alimony pendente lite 503 27. Custody and maintenance of children 503 28. Wife's maiden or previous name may be restored . . . 503 29. Adultery of wife after divorce from bed and board — pro- ceedings 503 30. Suits for alimony alone 504 CHAPTEE XXVI. USEFUL TABLES. 1. Table of commissions to trustees 505 2. Allowance in lieu of dower 505 lii ANALYSIS OF THE OONBTNTS. PART IV. PATENT PRACTICE. CHAPTEE I. APPEALS FROM THE COMMISSIONER OF PATENTS. 1. Jurisdiction on appeal 511 2. When an appeal lies 511 3. When an appeal does not lie 513 4/ Notice of appeal to be given the commissioner .... 512 5. Time within which appeal must be taken 512 6. Reasons of appeal 512 7. What will be heard on appeal .'.... 513 8. Proceedings on appeal 513 9. Determination of the appeal and its effect 513 10. Form of the petition in appeal cases 514 11. Petition to be filed, and case docketed 514 12. Minute-book— orders, how entered therein 514 13. Cases, how numbered on the docket and designated . . 515 14. When appeals to be called for trial 515 15. Preservation of opinions of the court 515 16. Copies of papers, how procured 515 17. Hearing of appeal, how regulated • . . 515 CHAPTEE II. REMEDY IN EQUITY FOR REFUSAL OF PATENT— D'T- TERFERBNCE SUITS. 1. Remedy by bill in equity for refusal of patent .... 516 2. Proceedings to invalidate patent for interference, etc. . 617 CHAPTEE III. INFRINGEMENT SUITS. * 1. Jurisdiction in infringement suits and other controversies over patent 518 ANALYSIS OP THE CONTENTS. liii 2. Damages for inftingement, how recovered at law ... - 519 3. Who may and who may not sue at law 519 4. Who should and who should not be made defendants . 520 5. The declaration, requisites of 520 6. Defences specially authorized by statute ...... 521 7. The notice of defence " 524 8. When notice is unnecessary 525 9. Evidence 525 10. Damages 526 11. Disclaimer where specification is too broad— costs . . . 526 12. Power of court to grant injunctions and assess damages . 527 13. General nature of the jurisdiction 527 14 Preliminary injunction, when granted 529 15. Who are necessary parties plaintiff 529 16. Who should be joined as defendants 530 17. Averments of the bill 530 18. MultifaMousness 531 19. Plea 531 20. Answer 531 21. Amending answer 532 22. Cross-bills 532 23. Court may submit questions of fact to a jury 532 24. The right to recover profits 532 25. The reference for an account 533 26. Interest on profits 533 27. Statutory recovery of damages in equity 583 28. Costs 534 liv ANALYSIS OF THE CONTENTS. PARX V. RULES OF ADMIRALTY PRACTICE. Jurisdiction in admiralty ; preliminary note 537 Rule 1. Issue of process 538 Rule 2. Service of process 538 Rule 3. Return of process 538 Rule 4. Form of process in personam 538 Rule 5. Arrest of property — for what sum 539 Rule 6. Attachment and garnishment 540 Rule 7. Dissolution of attachment 540 Rule 8. Seizure, process in cases of 541 Rule 9. Tackle, etc, in possession of third person .... 541 Rule 10. Property attached to or bound by suit — how brought into court 541 Rule 11. Delivery of arrested property to claimant .... 542 Rule 12. Delivery on payment into court 542 Rule 13. Perishable goods 543 Rule 14. Suits for mariners' wages 543 Rule 15. Suits for pilotage 545 Rule 16. Suits by material men ibr supplies, repairs, etc. . 545 Rule 17. Hypothecation, suits for 546 Rule 18. Actions on bottomry bonds, in rem and in personam, . 546 Rule 19. Salvage, actions for 547 Rule 20. Collisions, suits to recover damages for 548 Rule 21. Assault or beating, suit for 549 Rule 22. Petitory and possessory suits 549 Rule 23. Seizures, informations and libels on 550 Rule 24. Instance causes, libels in 551 Rule 25. Amendments of informations and libels .... 553 Rule 26. Verification of claim 554 Rule 27. Neglect of libellant to proceed with dispatch . . . 555 Rule 28. Answers in civil cases 555 Rule 29. Exceptions to answer, costs of 556 Rule 30. Failing to answer— pro confesso — setting aside de- fault — costs 557 Rule 31. Rehearing after default 657 Rule 32. Attachment to compel further answer pro confesso , 557 Rule 33. Where answer wiU criminate, defendant may ob- ject 558 Rule 34. Interrogatories in answer 558 Rule 35. New matter in answer, amending libel to meet . . 558 Rule 36. Answer on oath to interrogatories ; when dispensed with ; commission to take answer 559 ANALYSIS OF THE CONTENTS. Iv Rule 37. Cross-libel, security by respondents in 559 Rule 38. Intervention, stipulation, with sureties to be given. 559 Rule 39. Exceptions to libel or answer, grounds of ... . 560 Rule 40. Limited liability of ship-owners, proceedings to se- cure 561 Rule 41. Proof of Claims 562 Rule 42. Contest of liability by owners 563 Rule 43. Moneys paid into court 563 Rule 44. Claim of proceeds in registry 563 Rule 45. Appraisers 564 Rule 46. Reference to commissioners 564 Rule 47. Reference to auditor 565 Rule 48. Reference to assessors 565 Rule 49. When the report of the auditor or assesors may be confirmed 565 Rule 50. Failure to take proceedings on the report .... 566 Rule 51. Bonds and stipulations, what to contain .... 566 Rule 52. How taken 566 Rule 53. Reducing penalty — new surety 566 Rule 54. Increase of surety — motion for 567 Rule 55. Costs — security for, in suits in personam .... 567 Rule 56. — Security for, in suits in rem 567 Rule 57. Exceptions in favor of seamen and salvors .... 568 Rule 58. Deposit instead of stipulation . . . ' 568 Rule 59. Costs to be paid before delivery 568 Rule 60. Execution ■ 569 Rule 61. Sales 569 Rule 62. Notice of sale 569 Rule 63. Appeals 569 PART I. LAW AND GENERAL PRACTICE. PRACTICE AND PROCEDURE OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. CHAPTER I. JURISDICTION. 1. Creation and title of the Court. 2. General jurisdiction. 3. Effect of the repealing clause of the revised statutes. 4. Amount required to give ju- risdiction. 5. Jurisdiction in suits for di- vorce. 6. Over non-residents, how exer- cised. 7. .Under copyright and patent laws. 8. As a court of bankruptcy. 9. On appeal from Commissioner of Patents. 10. In cases of false claims against the United States. 11. Appellate jurisdiction over inferior courts. 12. To entertain application for change of name. 13. Criminal jurisdiction. 14. Notes of decisions. 15. Power of court to adopt rules. 16. Force and effect of rules of court. 1. Creation and Title of the Court. — The first section of the act of March 3, 1863, (12 Stat., 762,) enacts that ''there shall be established in the District of Columbia a court, to be called the Supreme Court of the District of Columbia." 2. General Jurisdiction. — The supreme court shall possess the same power and exercise the same jurisdiction as the circuit courts of the United States. E. S. D. C, sec. 760. Said court shall have cognizance of all crimes and of- fences committed within said District and of all cases in law 2 PRACTICE AND PEOCEDTTEE OP THE and equity between parties, both or either of which shall be resident or be found within said District and also of all actions or suits of a civil nature at common law or in equity, in which the United States shall be plaintiffs or complainants ; and all seizures on land or water, and all penalties and forfeitures made, arising or accruing under the laws of the United States ; and any one of the justices may hold a criminal court for the trial of all crimes and offences arising within the District. R. S. D. C, sec. 763, as amended by act of February 27, 1877, Rich, Suppl., 279, 19 Stat., 253. 3. Effect of the Kepealing Clause of the Revised Statutes. — The act of February 27, 1801, gave to the late circuit court of the District "all the powers by law vested in the circuit courts of the United States." These courts at that date derived their powers from the act of February 13, 1801. The latter act, having been repealed by the act of March 8, 1802, the circuit courts became relegated to the more limited jurisdiction derived from the act of 1789; but it was held in Kendall v. United States, 12 Peters, 524, that the jurisdiction already conferred upon the Circuit Court of the District was not in any manner affected by that repeal. So that until the day on which the late circuit court was legislated out of existence, it continued to exercise, in addition to its common law jurisdiction, the powers and jurisdiction derived from the act of February 13, among which was cognizance " of all actions and suits, matters or things, cognizable by the judicial authority of the United States under and by virtue of the Constitution thereof." The fact that this provision is not contained in the act of 1789 led the Supreme Court, in the case just cited, to hold that the late circuit court f this District was the only court of the United States vested with all the judicial power which a court of the United States is capable of exercising under the Constitution. These extensive powers were inherited by and passed to the Supreme Court- of the District of Columbia by virtue of the act of March 3, 1863, the third section of which declares that " the Supreme Court, organized under this act, shall possess the same powers and exercise the same jurisdiction as is now possessed and exercised by the Circuit Court of the District of Columbia." Thus the law remained until the 22d of June, 1874, when the Revised Statutes relating to this District went into effect. The last section of this revision declares that, "All acts of Congress passed prior to the first day of December, one thousand eight hun- dred and seventy-three, relating to the District of Columbia, any portion of which is embraced in the foregoing revision, are hereby repealed ; and the section applicable thereto shall be In force in lieu thereof." If now, with reference to this repeal provision, we examine the full text of the act of March 3, 1863, and compare it with the sections of the revision "applicable thereto," it will at once be seen how much of STJPEEME COURT, DISTEICT OP COLUMBIA. 3 the original act has been omitted by the revisers. Thus, in addition to the other omitted portions, neither the clause giving to this court its distinctive title as "the Supreme Court of the District of Colum- bia," nor that making it the successor to the jurisdiction and powers of its predecessor, the late circuit court, have been retained. It is well known that the act of February 28, 1877, amending section 763 of the Revised Statutes relating to the District, grew out of the supposed effect of this omission to strip the court of one of its largest powers, that of issuing the writ of mandamus against the Executive Depart- ment of the Government. I think, however, it can clearly be shown that it had no such effect, and that the jurisdiction of the court was in no way impaired by that omission ; and this even without resorting to the principle declared in Kendall v. United States, that after a court has been organized and gone into operation under an act of Congress, the repeal of that act cannot affect the jurisdiction once given, any further than is provided by the repealing act^a principal which might well be applied in considering the effect of this general repealing clause, for only by inference can it be said to affect the jurisdiction given by the original act, while, on the other hand, any such infer- ence might well be considered as rebutted by section 89 of the revi- sion, which declares that the judicial courts of the District "are to remain as organized until abolished or changed by act of Congress." How ineffectual was the omission of this third section to impair the vested powers of this court, is showli by the decision in United States V. Schurz, 102 U. S., 378. In that case the Attorney-General, relying upon this omission, strenuously contended that since the revision the jurisdiction of this court was no longer to be measured by that of its predecessor, but by the more limited jurisdiction of the circuit courts of the United States. But to this the court replied that, the right to isgue the writ could well be rested upon the common law powers of this court, powers not only unimpaired by the revision, but expressly retained by it in sections 92 and 760. Those two sections were taken from the act of February 27, 1801, and the revisors, said the court, " merely separated the diiferent sections of that act," and placed part of it in section 760 and part of it in section 92. " Neither provison," the court said, "is repealed, and we think that both of them are re- tained with the construction placed on them by this court in Kendall V. United States and the subsequent cases." The effect of this decision becomes apparent when we remember that in Kendall v. United States, the construction placed by the court on that portion of the act of February 27, as is contained in section 760 of the revision, is that the " circuit courts " referred to were those created by the act of February 13, 1801, and not those vested with the more limited jurisdiction derived from the subsequent act of March 8, 1802, which, as we have seen, repealed the act of Februry 13, and re-established the judiciary act of 1879. Plainly, therefore, section 760, in declaring that the " supreme court shall possess the same pow6:rs and exercise the same jurisdic- tion as the circuit courts of the United States," is to be construed as 4 PEACTICE AND PEOCEDITIIE OF THE meaning the circuit courts referred to by the act from which that sec- tion was taken. See United States v. Bowen, 100 U. S., 508. So that whatever would have otherwise been the effect of the repeal provi- sion upon this omission by the revisors of that portion of the act of March 3, 1863, which vested in this court the powers and jurisdiction of the late circuit court, the decision in Schurz v. United States makes it clear that sections 92 and 760 have reserved to it all the powers and all the jurisdiction vested in its predecessor by the act of February 27, 1801, ^nd, therefore, that it may still be said, without reference to any construction which may be placed upon the act of February, 1877, that the supreme court of the District of Columbia is the only court of the United States endowed by Confess with all the judicial power capable of being granted under the Constitution to a Federal court. 4. Amount Required to give Jurisdiction.— The Justices of the supreme court shall not hold original plea of any debt or damage in cases within the jurisdiction given to justices of the peace, which shall not exceed fifty dollars, exclusive of costs. E. S. D. D., sec. 769. Note. — Justices of the peace have jurisdiction "in all civil cases where the amount claimed to be due for debt or damages arising out of contracts, express or implied, or damages for wrongs or injuries to persons or property, does not exceed one hundred dollars, except in cases involving the title to real estate, actions to recover damages for assault, or assault and battery, or for malicious prosecution, or actions against justices of the peace or other oflacers for misconduct in office^ or in actions for slander, verbal or written." R. S. D. C, sec. 997. It follows, therefore, that in the cases excepted, the jurisdiction of the supreme court is not limited by the amount in controversy. Two separate causes of actions [of the same nature] amounting to- gether to more than fifty dollars, if joined in one declaration, will give jurisdiction, although neither amounts to fifty dollars. Ridg- way V. Pancost, 1 Cr. 0. C, 88. 5. Jurisdiction in Suits for Divorce, — The supreme court shall have jurisdiction of all applications for divorce. E. S. D. C, sec. 766. Note,— See R. S. D. C, sees. 731-749, also Equity Rules, Title Di- vorce. As to the power of this court to enforce its decrees in divorce cases, see Strait v. Strait, 9 Rep., 109 ; Fries v. Fries, 1 Mac A., 291. 6. Over Non-Residents, How Exercised. — No action or suit shall be brought in the supreme court by original process against any person who shall not be an inhabitant of, or found within, the District, except as otherwise specially provided. E. S. D. 0.,«ec. 767. The supreme court has power to proceed in all common SUPREME COURT, DISTRICT OF COLUMBIA. 5 law and chancery causes instituted before it, in which, either of the parties reside without the District, in the same way that non-residents were proceeded against in the general court or in the supreme court of chancery in the State of Maryland, on the third day of May, eighteen hundred and two. E. S. D. C, sec. 768. See "Publication." 7- Under Copyright and Patent Laws. — The Supreme Court has jurisdiction of actions, suits, controversies and cases, as well in equity as at law, arising under the copyright and patent laws, and for damages for the infringement of any patent by action on the case, in accordance with the provisions of sections forty-nine hundred and nineteen, forty-nine hundred and twenty, and forty-nine hundred and twenty-one, of chapter one. Title LX of the Eevised Statutes of the United States, "Patents, Trade-Marks and Copyrights." E. S. D. C, sec. 764, as amended by act of Feb. 27, 1877, Eich. Suppl. 279, 19 Stat., 254. Note.^-The provisions of the sections of the Revised Statutes of the United States above enumerated relate to the practice, pleadings and proofs in suits for infringement of patents. See Pleadings, post. 8. As a Court of Bankruptcy. — AH the jurisdiction, power, and authority conferred upon and vested in the district courts of the United States, by Title LXI, ' ' Bankruptcy, ' ' of the Eevised Statutes of the United States, are conferred upon and vested in the Supreme Court when the bankrupt resides in the district. E. S. D. C, sec. 765. [SeeE. S. U. S., sees. 563, 4972, et seq.] Note. — The provisions of the Revised Statutes of the United States, Title LXI, " Bankruptcy," having been repealed by the act of June 7, 1878 (20 Stat., 99), this provision is necessarily inoperative. 9. On Appeal from Commissioner of Patents. — The Supreme Court, sitting in banc, shall have jurisdiction of and shall hear and determine all appeals from the decisions of the Commis- sioner of Patents, in accordance with the provisions of section forty-nine hundred and eleven to section forty-nine hundred and fift.een, inclusive, of chaiiter one. Title LX, of the Eevised Statutes of the United States, "Patents, Trade-Marks and Copyrights." E. S. D. C, sec. 780, as amended by Act of February 27, 1877, Eich. Suppl., 279. IfQte. — See R. S.,U. S., p. 958, and the rules of this court as to patent cases, post. The powers and jurisdiction of-.this court in patent cases are the same, as well in equity as at law, as those of the ■ circuit courts of the United States. Cochrane v. Deener, 94 U. S., 780. t> PRACTICE AND PEOCEDXTEE OF THE 10. In Cases of False Claims Against the United States.— The Supreme Court is also given "full power and jurisdiction to hear, try and determine cases arising under sections 3490 of the Eevised Statutes of the United States," — "Liability of per- sons making false claims against the United States. " See E. S. U. S., sec. 3491. 11. Appellate Jurisdiction Over Inferior Courts, — The Su- preme . Court has also appellate jurisdiction over justices of the peace and the police court. See sections 773 and 774-779 E. S. D. C. 12. To Entertain Application for Change of Name. — See sec- tions 833-838, E. S. D. C. 13. Criminal Jurisdiction. — See Criminal Procedure, post. 14. Notes of Decisions. — The Supreme Court of the District of Columbia is a court of the United States. Embry v. Palmer, 107 U. S., 3. And a general law of the United States relating to such courts is applicable to it. Noerr v. Brewer, 1 Mac A., 507. And its judgment, when suit is brought thereon in any State of the Union, is, under the legislation of Congress, conclusive upon the defendant, except for such cause as would be sufficient to set it aside in the courts of the District. Embry v. Palmer, 107 U. S., 3. But although a court of the United States, it differs materially in form and jurisdic- tion from a Circuit or District court. Phoenix Life Co. v. Grant, VI Wash. Law Rep., No. 42. The courts of the District of Columbia have a like jurisdiction in trespass upon personal property with the courts of England, and in the States of the Union ; and in the absence of statutory provisions, are to be governed by the principles of the com- mon law applicable to such cases. McKenna v. Fiske, 17 Pet., 245, Jurisdiction over charitable trusts, see Ould v. Washington Hosp. for Foundlings, 1 Mac A., 541. Jurisdiction where a fiind is in the Treasury of the United States, MacManus v. Standish, 1 Mackey, 147. For jurisdiction in Mandamus, Prohibition and other special proceed- ings, see those titles in the Index, and see also Chapter I, "The justices of the court." 15. Power of the Court to Adopt Rules,— The Supreme Court in general term shall adopt such rules * * * as it may deem necessary for regulating the practice of the court, and from time to time revise and alter such rules * * * ." E. S. D. C, 770. 16. Force and Effect of Rules of Court.— The rules of practice of • this court must be its guide whenever they extend to any subject, although their terms may differ from those prescribed on the same matter by the Supreme Court of the United States for other Federal tribunals. Mac Arthur J., in Phoenix Mut. Life Ins. Co. v. Grant, Wash. Law Rep., Vol. VI, No. 42. And so this court has refused to* STTPREME COTJET, DISTEICT OP COLUMBIA. 7 follow the rule applied by the Supreme Court of the United States concerning references to an auditor to state an account, while matters of fact amounting to a defence were in issue. Ins. Co. v. Grant, 3 Mac A., 42. Rules of practice for transacting the business of the courts are a law to the courts. Golden v. Prince, 3 Wash., 313. And when established by virtue of an act of Congress they have the force of a statute. Scott v. The Young America Newb. Adm., 107. It is not necessary that any court, in establishing and changing its practice, should do so by written rules. A practice may be estab- lished by a uniform mode of proceeding for a number of years, and thus form the law of the court. Duncan v. United States, 7 Pet., 435, FuUerton v. Bank of the United States, 1 Pet., 604, 613. The courts cannot enlarge or diminish their own jurisdiction by a rule of practice, but they have power over their own process and mode of procedure. The St. Lawrence, 1 Black., 522. Changes in a rule cannot defeat a suit previously commenced. The St. Lawrence, 1 Black., 522. A rule of practice prescribed by a court of justice, is for the govern- ment of suitors, counsel and officers of the court in the conduct of causes and proceedings ; and though it controls those persons, it does not control the discretion of the court itself so as to deprive it of power to secure the trial of causes on their merits, on proper show- ing. Bank v. Bassieux, 1 Hughes, 387. CHAPTER II. THE JUSTICES OP THE OOtTRT. 1. Number of justices and how appointed, 2. Order of precedence. 3. Salary. 4. The oath of office. 5. Prohibited from practising law. 6. Resigning, entitled in certain cases to salary for life. 7. Statutory powers of the jus- tices. 8. —When holding a District Court. 9. To administer official oaths to United States officers. 10. To give certificates for en- trance to Insane Hospital in certain cases. 11. To direct the taking of depo- sitions in suits pending else- where. 12. To take bail in criminal cases. 13. In cases of extradition, duty of chief justice. 1. Number of Justices aud How Appoiuted.— The court, as organized by the act of Marcli 3, 1863, originally consisted of a cMef justice and three associate justices. Subsequently, by 8 PEACTICE AND PEOCEDUKB OP THE the act of June 21, 1870 (16 Stat. , 160), the associate justices were increased to four, and again by the act of February 25, 1879 (20 Stat., 320), to five. The justices are appointed by the President, by and with the advice and consent of the Senate, and hold their offices during good behavior. Sec. 750, E. S. D. C. 2. Order of Precedence. — In the Supreme Court of the United States, the order of precedence among the associate justices is according to the date of their commissions, or when the commissions of two or more of them bear the same date, according to their ages (R. S. U. S., sec. 674.) There is no statute regulating this matter with the Supreme Court of the District of Columbia, but by common consent and usage the same rule of precedence has been adopted and fol- lowed. 3. Salary. — By the first section of the act of March 3, 1863, the salary of each of the justices was fixed at three thousand doUars, but now by the second section of the act of June 1, 1866 (R. S. D. C, sec. 751), the chief justice receives an annual salary of four thousand five hundred dollars, and the associate justices an annual salary of four thousand dollars each, payable quarterly, at the Treasury of the United States. 4. The Oath of Office. — Each justice, before he enters upon the duties of his office, shall take the oath prescribed to be taken by judges of the courts of the United States. Sec. 752, E. S. D. C. The oath is to be found in sec. 712, R. S. U. S., and is as follows : "I, , do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as , according' to the best of my abilities and understanding, agreeably to the constitution and laws of the United States: So help me God." 5. Prohibited from Practising Law.— It shall not be lawful for any judge appointed under the authority of the United States to exercise the profession or employment of counsel or attorney, or to be engaged in the practice of the law. And any person offending against the prohibition of this section shall be deemed guilty of a high misdemeanor. E. S. U. S., sec. 713. 6. Resigning, Entitled in Certain Cases to Salary for Life.— When any judge of any court of the United States resigns his office, after having held his commission as such at least ten years, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the same salary which StrPKEME COltJET, DISTRICT OF COLtTMBlA. 9 was by law payable to Mm at the time of his resignation. E. S. U. S./ sec. 714. 7- Statutory Powers of the Justices. — The justices of the Su- preme Court shall severally possess the powers and exercise the jurisdiction possessed and exercised by the judges of cir- cuit courts. E. S. D. C, see 761. 8. —When Holding a District Court.— Any one of the justices may hold a special term, with the same powers and jurisdic- tion possessed and exercised by district courts of the United States. See. 762, E. S. D. C. See E. S. U. S., sec. 551, et seq. 9. To Administer Official Oaths to United States Officers. — All oflEicial oaths required by law to be taken by officers of the United States, may, in the District, be administered and certi- fied by any one of the justices of the Supreme Court of the Dis- trict. E. S. D. C, sec. 771. 10. To Give Certificates for Entrance t» Insane Bospital in Cer- tain Cases. — See the sections of the Eevised Statutes below given, for the circumstances under which any of the justices of this court may give certificates for the admission of insane per- sons to the government hospital for the insane, and to ap- prove bonds given for the delivery therefrom of insane persons. E. S. U. S., sees. 4845, 4846, 4856. 11. To Direct the Taking of Depositions in Suits Pending Else- where.^ — See the provisions of the statute (E. S. U. S., sec. 871, et seq.) upon this subject and also "Depositions." 12. To Take Bail in Criminal Cases.— For the power of any justice of this court to take bail in criminal cases, see Criminal Procedure, post. 13. In Cases of Extradition, Duty of Chief Justice.— See Crimi- nal Procedure, post. 10 PEACTICE ANTD- PBOCEDtTRE OF THE CI-IAPTEE III. THE clerk: of the court. 1. How appointed. 2. To give bond with sureties, 3. Oath of the clerk. 4. Assistant clerk may perform. duties of clerk, 5. Account of moneys in court to be stated. 6. Fees, when payable. _ 7. To make semi-annual report of 8. Table of fees to be exposed to public view. 9. Misoellaneaus statutory pro- visions. 1. How Appointed, — ^The Supreme Court sliall have power to appoint a clerk, who sliall take the oath, and give a bond with sureties, in the manner prescribed by law for clerks of district courts of the United States. E. S. D. C, sec 915. 2. To Give Bond with Sureties. — The clerk of every court [of the United States] shall give bond, in a sum to be fixed and with sureties to be approved by the court which appoints him, faith- fully to discharge the duties of his office, and seasonably to re- cord the decrees, judgments, and determinations of the court of which he is clerk; and a new bond may be required when- ever the court deems it proper that such bond should be given. A copy of every bond given by a clerk shall be entered on the journal of the coTirt for which he is appointed, and the bond shall be deposited for safe keeping as the court may direct. A certified copy of such entry shall be prima facie proof of the execution of such bond and of the cohtents thereof. E. S. U. S., sec. 795. Liability of clerk for errors of deputy, see Patons v. Lee, 2 Cr. C. C, 646. 3. Oath of the Clerk. — The clerk of the supreme court, and every clerk and deputy clerk of a circuit or district court, shall, before he enters upon the execution of his office, take an oath or affirmation in the following form: "I, A. B., being appointed a clerk of , • , do solemnly swear (or afBrm) that I will truly and faithfully enter and record all the orders,, decrees, judgments, and proceedings of the said court, and that I will faithfully and impartially discharge and per- form all the duties of my said office, according to the best of my abilities " and understanding. So help me God." The words "So help me God" shall be omitted in all cases where , BXJPltEME COTTET, DISTEICT OF COLtrMBIA. 11 an affirmation is admitted instead of an oath. E. S. U. S., sec. 794. 4. Assistant Clerks may Perform Duties of Clerli. — Any of %b.e duties of the clerk may be performed, in his name, by any of the assistant clerks in his of&ee ; and such assistants may sign the name of the clerk to any process, certificate, or other official act required by law or by the praictice of the court to be performed by the «lerk, and may authenticate said signa- ture by af&xing the seal of the court thereto, "when the impress of the seal is necessary to its authentication. In such cases the signature shall be, " , clerk, by ..,.,.., assistant clerk." E. S. D. C, sec. 916. 5- Account of Moneys in Court to be Stated.— At each regular session of any court of the United States, the clerk shall pre- sent to the court an account of all moneys remaining therein, or subject to its order, stating in detail in what causes they are deposited, and in "what causes payments have been made ; and said account and the vouchers thereof shall be filed in the court. E. S. TJ. S., sec. 798. 6. Fees, When Payable. — AH costs and fees for services rendered by the clerk, and chargeable to others than the tJnited States, shall be payable immediately after the services are performed, and shall be collected by such rules and regu- lations, not incompatible with law, as may be prescribed by the court, but shall in no case be paid by the United States. E. S. D. C, sec. 921. 7. To Make Semi- Annual Report of Fees— Maximum Compen- sation. — The clerk of the Supreme Court of the District of Columbia shall make to the Attorney- General his semi-annual report of fees and emoluments in the same manner and under the same regulations as clerks of the other courts of the United States, under and in accordance with section eight hundred and thirty-three of the Eevised Statutes, the maximum of whose compensation, after the payment of office expenses, and other allowances granted by the Attorney-General, shall not exceed the maximum of three thousand five hundred dollars, and the balance of said fees and emoluments of his office shall be paid into the Treasury, according to the provisions of sec- tion eight hundred and forty-four of the Eevised Statutes. Act of March 3, 1883, 222 Stat., 631. 8. Table of Fees to be Exposed to Public View.— By sec. 899, 12 PEACTICE AKD PEOCEDTXRE OP THE E. S. D. C, it is made the duty of the clerk to make a table of his fees in dollars and cents, according to law, and to keep a copy thereof, at all times, exposed to public view in his of&ce. &. Miscellaneons Statutory ProTisioii8.^-There are various sections^ of the Revised Statutes relating to the District, making it incumbent upon the clerk to perform certain statutory duties which have no re- lation, strictly speaking, to his duties as clerk of the court. A mere reference to the more importantof these special matters, with the sec- tion of the Statute where they will be found is, thereforci all that is deemed necessary. To record certificates of partnership, sec, 493. To designate newspapers for publication of partnership notices, sees. 497, 517. To record notices of dissolution of partnership, sec. 617. To record notices of building hens, sec. 695, To issue marriage licenses, sec. 719. To keep a record of marriages, sec. 721, To furnish copies.of docket entries of justices of the peace in certain cases, 919. For Clerk's Fees, see sec. 828, R. S. U. S, CHAPTEB IV. THE MARSHAL, 10, 11. 1. His appointment and duties gen- erally. 2. Term of office. 3. May appoint deputies. 4. Forbidden to practice as attor- ney. 5. Marshal's bond. 6. Suits on marshal's bond. 7. Marshal's bond to remain after judgment as further security. 8. limitations of suits on mar- shal's bond. 9. May levy executions issued by justices of the peace. 1. His Appointment and Duties Generally.— There shall be » marshal for the District, who shall be appointed for the same Summary proceeding against for failure to pay over small sums. May demand his fees in ad- vance, except in certain cases, 12. In case of death, deputies to continue. 13. May execute process in their hands when removed. 14. When the marshal or his dep- uty is a party to or interested in a cause. 15. Service of process. DISTEIOT OF COLUMBIA. 13 term, take the same oath, give a bond with sureties in the same manner, and have generally, within the District, the same powers, and perform the same duties, as provided for marshals of the United States. E. S. D. C, sec. 910. Note. — The marshal of the District is put on the same foottng with respect to his duties and powers as other marshals of the United States. Levy Court v. Ringgold, 5 Pet., 454. By the nineteenth rule of court, " Every writ, process or notice issuing out of the clerk's of- fice of this court, shall be served by the marshal for the District of Columbia, or his deputy if required, except in cases in which the mar- shal is a party, when such writ or process shall issue to the coroner of said District." See Process. 2. Term of OiBce. — Marshals shall be appointed for a term of four years. E. S. U. S., sec. 779. 3. May Appoint Deputies. — Every marshal may appoint one or more deputies, who shall be removable from office by the judge of the district court, or by the circuit court for the district, at the pleasure, of either. E. S. U. S., sec. 780. Note. — For the oath of office to be taken by the marshal and deputy marshals, see R. S. U. S., see. 782. A deputy marshal is an ofiicer for whose appointment, qualification and removal, the laws of the United States expressly provide. The E. W. Qorgas, 10 Ben., 469. A mar- shal may appoint a special bailiff to execute a particular process, (U. S. v. Jailer, 2 Abb. U. S., 265), and the person appointed by him is an oflScer de facto. Hyman v. Charles, 12 Fed. Rep., 856. Independently of any rule of court or statute, a marshal or sheriflf may direct a par- ticular ministerial act with the performance of which he is charged, to be performed by another acting for him and under his authority and upon his responsibility. The E. W. Gorgas, 10 Ben., 467. But see In re Spencer, Mac A. & Mack., 433. 4. Forbidden to Practice as Attorney.— The marshal and his depti- ties are forbidden by sees. 748 and 749, R. S. U. S., to act within the district for which he is appointed as a solicitor, proctor, attorney or counsel in any cause depending in the courts of said district, or in any district for which he is acting as such oflEicer, and in case of any marshal or deputy marshal so acting, he shall be recommended by the court for dismissal from office. 5. Marshal's Bond. — Every Marshal, before he enters oh the duties of his office, shall give bond before the district judge of the district, jointly and severally with two good and suffi- cient sureties, inhabitants and freeholders of such district, to be approved by said judge, in the sum of twenty thousand dollars, for the faithful performance of said duties by himself and his deputies. Said bond shall be filed and recorded in the office of the clerk of the district court or circuit court 14 PEACTICE AND PEOCBDXJEE OF THE sitting witliin the district, and copies thereof, certified by the cleric, under the seal of the said court, shall be competent evidence in any court of justice. E. S. TJ. S., sec. 783. Ifote.— A marshal is not qualified until he gives the bond required, and until it is approved by the proper ofiicial. Jackson v. Simonton, 4 Or. C. C. As to extent of marshal's liability on his official bond for misfeasance of his deputy, acting in good faith, see Rogers v. The Marshal, 1 WaU., 644. e.^Suits on Marshal's Bonds.— In case of a breach of the condition of a marshal's bond, any persons thereby injured may institute in his own name and for his sole use a suit on said bond, and thereupon recover such damages as shall be legally assessed, with costs of suit, for which execution may issue for him in due form. If such party fails to recover in the suit, judgment shall be rendered and execution may issue against him for costs in favor of the defendant; and the United States shall in no case be liable for the same. E. S. U. S., sec. 784. Note. — An action for the breach of a marshal's bond may be brought in the name of the United States for the benefit of the party whose interests are affected. U. S. v. Davidson, 1 Biss., 483. A declaration for the breach should not claim the entire penalty, but only the damages sustained. Adler v. Newcomb, 2 Dill., 45. See Sperring v. Taylor, 2 McLean, 362. If an execution creditor ' seeks to charge the sureties, he cannot proceed summarily, but must pro- ceed according to law. Grim v. Breedlove, 2 How., 29 ; Grim v. Bar- ton, 6 How., 7. The t9,king by a marshal, upon a writ of attachment or mesne pro- cess, against one person of the goods of another, is a breach of the condition of his official bond, for which his sureties are liable. Lam- mon V. Feusier, 111 U. S., 17. 7. Marshal's Bond to Remain after Judgment as Further Security. — The said bond shall remain, after any judgment rendered thereon, as a security for the benefit of any person injured by breach of the condition of the same, until the whole penalty has been recovered ; and the proceedings shall always be as directed in the preceding section. E. S. TJ. S., sec. 785. 8. Limitations of Suits on Marshal's Bond. — No suit on a marshal's bond shall be maintained, unless it is commenced within six years after the right of action accrues, saving, nevertheless, the rights of infants, married women, and insane persons, so that they sue within three years after their dis- abilities are removed. E. S. TJ. S., sec. 786. SUPEEME COXJET, DISTEICT OE COLUMBIA. 15 Jfote. — This limitation does not apply to an action on the marshal's bond brought by the United States. U. S. v. Rand, 4 Sawyer. Nor does the limitation run against a claim to proceeds of a marshal's sale suspended by appeal until after affirmance of the decree. Mont- gomery V. Hernandez, 12 Wheat., 129. 9. May Levy Executions Issued by Justices of the Peace. — The marshal, or Ms deputies, may execute and levy execu- tions issued by jiistices of the peace, for small debts, out of court, when the same are put into their hands for that pur- pose, and for executing or levying such executions are entitled to the same commission, and no more, as allowed to constables in such cases. E. S. D. C, sec. 912. Note. — A commission of five per cent, shall be allowed each con- stable for every sum on executions by him levied. R. S. D. C, sec. 1040. 10. Summary Proceeding for Failure to Pay Over Small Sums. — Where the marshal shall have received money'on any judgment or execution, not exceeding twenty dollars, by virtue of the preceding section, and shall fail or omit to pay the same to the plaintiff, or his agent, when thereto demanded, or shall omit or fail to return any execution within the time limited for such return, it shall be lawful for the Supreme Court of the District, on motion made, five days previous notice being given to the marshal, to enter judgment, instan- ter, against him for the amount so received, with interest and costs. E. S. D. C, sec. 913. 11. May Demand his Fees in Advance, Except in Certain Cases. — The marshal, in all civil cases, may demand and receive payment of his fees before serving any process, except in cases in which the United States may be a party, or of fieri facias, or where the court or any justice thereof may order suit to be instituted without prepayment of costs. E. S. D. C, sec. 914. See Duy v. Knowlton, 14 Fed. Rep., 107 S. C, sub nam, Ray v. Knowlton, 11 Biss., 360. 12. In Case of Death, Deputies to Continue.— In case of death of any marshal, his deputy or deputies shall continue in office, unless otherwise specially removed, and shall execute the same in the name of the deceased, until another marshal is appointed, as provided in this chapter, and duly qualified. The defaults or misfeasances in office of such deputies in the meantime shall be adjudged a breach of the condition of the 16 PRACTICE AND PEOCEDTJBE OF THE bond given by the marshal who appointed them; and the executor or administrator of the deceased marshal shall have like remedy for the defaults and misfeasances in office of such deputies, during such interval, as he would be entitled to if the marshal had continued in life and in the exercise of his said office until his successor was appointed and duly quali- fied. E. S. TJ. S., sec. 789. 13. May Execute Process in their Hands When Removed.— Every marshal or his deputy, when removed from office, or when the term for which the marshal is appointed expires, shall have power notwithstanding to execute all such precepts as may be in their hands respectively at the time of such removal or ex- piration of office ; and the marshal shall be held responsible for the delivery to his successor of all prisoners who may be in his custody at the time of his removal, or when the term for which he is appointed expires ; and for that purpose he may retain such prisoners in his custody until his successor is appointed and duly qualified. E. S. U. S., sec. 790. Note.— The word " execute" in this section includes making return to the process executed. Gushing v. Laird, 4 Ben., 70; Stewart v. Hamilton, 4 McLean, 534. If execution is issued to him he may make a levy after his removal. Byers v. Fowler, 12 Ark., 218. And if he make a levy prior to removal he may sell the property after his re- moval, Id. Doolittle v. Bryan, 14 How., 563. If he make a levy after his removal, a sale by his successor is irregular, but valid in a collateral proceeding. Byers v. Fowler, supra. Process must be regarded as still in the hands of the outgoing marshal uniilatrue return, conform- ing to the facts, is made, and a marshal may amend his return after he has ceased to hold ofSce. Gushing v. Laird, 4 Ben., 70. See Rich v. Henry, 4 Mackey, 155. The removal of a marshal is complete as soon as the new marshal qualifies, even though no notice of the removal is given to the old marshal. U. S. v. Bank Hemp., 460; Overton v. Gorham, 2 McLean, 509, but see Bowerbank v. Morris, Wall., sr., 119. 14. ^\lien the Marshal or his Deputy is a Party to or Inter- ested in a Canse. — ^When the marshal or his deputy is a party in any cause, the writs and precepts therein shall be directed to such disinterested person as the court or any justice or judge thereof may appoint, and the person so appointed may execute and return them. E. S. U. S., sec. 922. Note.— By rule nineteen, in cases in which the marshal is a party the writ or process must be issued by the coroner. So when the marshal is incapable from interest or otherwise of serving any particular pro- cess, it is usual to direct it to the coroner, (Md. Act, 1794, ch. 54, sec. 5,) and if the coroner be also incapacitated the writ is then directed to BTJPREME OOTJET, DlST:feIOT OF COLtrM:BIA. 17 an elizor chosen by the court or one of the judges. (Md. Act, 1794, ch. 64, sees. 5 and 6.) 15. Service of Process.— As to the duties of tlie marshal in the service of process, see post, Process, and see, also, Execu- tion and the index to this volume, title, Marshal. CHAPTER V. THE DISTRICT ATTORKEY. 1. Apj)ointm6nt. 2. Term and oath of. 8. Duties of. May administer oaths and affir- mations. Compensation of. 1. Appointment.^'There shall be appointed an attorney of the TJnited States for the District, who shall take the oath and perform all the duties required of district attorneys of the United States. E. 8. D. C, sec. 904. 2. Term and Oath of. — District attorneys shall be appointed for a term of four years, and their commissions shall cease and expire at the expiration of four years from their respec- tive dates. And every district attorney, before entering upon his offtce, shall be sworn to a iaithful execution thereof. H. S. TJ. S., sec. 769. 3. Duties of. — It shall be the duty of every district attorney to prosecute, in his district, all delinquents for crimes and offences cognizable under the authority of the United States, and all civil actions in whicli the United States are concerned, and, unless otherwise instructed by the Secretary of the Treasury, to appear in behalf of the defendants in all suits or proceedings pending in his district against collectors, or other officers of the revenue, for any act done by them, or for the recovery of any money exacted by or paid to such officers, and by them .paid into the Treasury. E. S. U. S., sec. 771. 4. May Administer Oaths and Affirmations. — The district attorney, and every assistant or deputy duly appointed by him, is empowered to administer oaths or affirmations to witnesses in criminal cases, and in all cases where a justice of 3 18 PRACTICE AKD PEOCEDTJEE OF THE the peace is autLorized to do so ; and if any person to wliom such oath or affirmation shall be administered shall wilfully and falsely swear or affirm touching any matter or thing material to the point in question whereto he shall be examined, he shall be deemed guilty of perjury,, and upon conviction thereof shall be sentenced to suffer imprisonment and labor in the penitentiary, for the first offence for a period of not less than two nor more than ten years, and for the second offence for not less than five nor more than fifteen years. E. S. D. C, sec. 905. 5. Compensation of.— The compensation of the district attor- ney shall not exceed six thousand dollars per annum. E. S. D. C, sec. 909. Ifote. — It is not deemed necessary to insert here the various sec- tions of the Federal Statutes, relating to the office of United States District Attorney, as their provisions pertain more to the duties of this officer in the prosecution of revenue cases, the conduct of his office, and his relations with the Department of Justice, than to his business in the courts, and a knowledge of them can be but of little practical use to the general practitioner. It would, therefore, be foreign to the purpose and object of this volume to incumber its pages with these special provisions, especially as they are so easy of access in the Federal Statutes. CHAPTEE VI. FORMS OF ACTIONS IN USE. 1. The common law classification ^ still retained. 2. The forms of action in use. 3. Special proceedings in use. 4. Dower unde nihil habet. 5. The pleadings in dower. 1. The Common Law Classification Still Retained.— A brief reference to the remedies in use in the District of Columbia may not be here out of place. ISTotwithstanding the simplified and abbreviated forms which may now be resorted to by parties in their pleadings, it must not be supposed that the common law classification of actions has been abolished in this District. The nature of the relief obtainable in assumpsit, debt, eject- ment, covenant, trespass, etc., is still recognized by the court, SUPREME COURT, DISTRICT OE COLUMBIA. 19 and to that extent these actions yet remain in all their marked and characteristic features. The refined and technical distinc- tions as to the forms of the pleadings which existed at common law have happily, to a great extent, become mere matters of curious learning, but the line of demarkation between actions ex contractu and ex delicto, between assumpsit and covenant, debt and trover, remedies for the recovery of real estate, and remedies to enforce a mere money demand or to redress wrongs and injuries is still retained. Parties, however, may simplify their pleadings, and are not only encouraged by the court but directed by its rules to avoid the prolixity of the old forms and to state only the substantive facts. 2. The Forms of Actions in Use. — Many of the common-law forms have, however, become obsolete. Those which may be resorted to in practice are ejectment, debt, covenant, detinue, trespass, trespass on the case, replevin, assumpsit, and trover. The last two actions, although, strictly speaking, but two of the many forms of trespass on the case, have become so fre- quent in practice that they are now generally regarded as distinct forms, as much so as debt or covenant. Perhaps, also, may be mentioned the now unusual action of dower, of which a few brief observations will presently be made. The statutory modifications of ejectment and replevin will also be noticed in special chapters. But it is not the scheme of these pages to explain the general practice in any of these various actions, since that may be found in any reliable book of com- mon-law pleading and practice. This, however, is not to be taken as meaning that our rules of court, the statutes relating to procedure, and the decisions growing out of them, are not to be frequently consulted, for the very purpose of much of this volume is to furnish the practitioner with the means of readily referring to what are, in many instances, vitally important pro- visions affecting the practice in these actions, and to examine which is often as necessary to the old as to the younger lawyer who would avoid pitfalls. It is only meant that there will be found no such radical changes as is sometimes supposed to ex- ist and as in many of the States have been brought about by the adoption of codes. 3. Special Proceedings in Use.— Besides these common-law forms there are a number of special proceedings or remedies, either common-law or statutory, which are more or less fre- quently resorted to in our practice. Of these there may be 20 PRACTICE AND PEOCEDUEB OP THE mentioned mandamus, certiorari, proMbition, quo warranto, scire facias, habeas corpus, attachment, and the statutory pro- ceedings known as forcible entry and detainer. All of these will be noticed in their proper place. 4. Dower Unde Nihil Habet.— Although now rare in prac- tice, there is nothing in our laws or modes of procedure to prevent this action being resorted to. Indeed, in view of the completeness of the remedy afforded by it where the husband died seized, it is a matter of comment that our court of equity should entertain jurisdiction in cases where formerly this com- mon-law action was invariably adopted, the statute expressly forbidding Federal courts to entertain jurisdiction in any case where a plain, adequate, and complete remedy may be had at law. (Sec. 723, R. S. U. S.) The action lies where a widow claims the specific recovery of her dower in cases where she has been deprived of the whole of it. Eiddle v. Trimble, 8 Gill, 211 ; Keefer v. Young, 2 H. & J., 53 ; Same v. Martin, /&., 55 ; Hammond v. Higgins, lb., 445. At common law she could not claim damages in this action for the detention of her dower interest. Brice v. Hobb, 47 Md., 389. But by the statute of Merton she may recover damages from the time of demand made, provided the husband died seized of the land. Coke Litt., 32a. See Poe's Plead., sec. 48 ; Evans' Prac, 48. 5. Of the Pleadings and Practice.— The declaration need merely aver the marriage and death of the husband. The seizen of the husband is presumed, and, therefore, need hot be specially averred. The defendant, however, may deny the seizen by a common traverse. Evans' Prac, 175. The land in which dower is claimed should be specifically described, and then the declaration should conclude with a demand for the third part of the same as dower. See Evans' Harris, 238, for forms. Evans says that damages should not be claimed, but there seems to be no reason why they should not be in all cases coming within the statute of Merton — ^that is in all cases where the husband died seized. The suit should be against the party in possession of the land, who, if he be a tenant of a third party, may call upon him to defend. The declaration and summons are served as in ejectment, and the further proceedings are very similar to that action. There is no general issue, but the de- fences intended to be relied on must be specially pleaded. The practitioner will find the further procedure in this action as adapted to this jurisdiction treated of at length in Poe's Plead- ings and Evans' Practice, to which he is referred. SUPEEME COTTET, DISTEIOT OF COLTJMBIA. 21 CHAPTER VII. LIMITATIONS OF ACTIONS. 1. To what actions limitations apply. 2. Time within which they must be brought. 3. Saving as to persons under disability. 4. Saving as to persons beyond se^s repealed. 5. Absentees in certain cases not to have benefit of the statute. 6. Proviso in favor of those leav- ing sufficient effects, etc. 7. Similar provisions of the act of 1765. Statute to run only from time of return of such persons. Saving where judgment is re- versed or arrested. 10. Limitations as to bills and specialties. 11. Administration and testamen- tary bonds. 12. In suits on such bonds, proviso as to disabilities. 13. Bonds of guardians. 14. Arbitrators, if cause be re- ferred to, in what cases stat- ute not to run. 8. 9. 15. Claims against decedents' es- tates. 16. In certain suits against stock- holders. 17. In suits for recovery of un- lawful interest. 18. On mechanics' liens. 19. On marshals' bonds. 20. Penalties and forfeitures un- der laws of United States. 21. Under customs-re Venue laws. 22. Miscellaneous notes. 23. The running of the statute. 24. Savings in favor of infants, femes coverts, etc. 25. What other matters prevent or suspend the running of the statute. 26. "When new cause of action is introduced by amendment. 27. Bonds and other specialties, when pleadable. 28. Merchants' accounts. 29. Trusts. 30. Limitations as to realty. 31. Saving as to persons under disabilities. 32. Limitations in criminal suits. 1. To what Actions Limitations Apply. — All actions of trespass quare clausum /regit, all actions of trespass, detinue, sur-trover, or replevin for taking away goods or cliattels, all actions of account, contract, debt, book, or upon tbe case, other than such accounts as concerns the trade or merchandise be- tween merchant and merchant, their factors and servants which are not residents within this province, all actions of debt for lending, or contract without specialty, all actions of 22 PEACTICE AND PEOCEDXJEE OP THE debt for arrearages of rent, all actions of assault, menaces, bat- tery, wounding and imprisonment, or any of them, [which] shall be sued or brought by any person or persons within this province, at any time after the end of this present session of assembly, shall be commenced or sued within the time and limitation hereafter expressed, and not after. Md. Act, 1715, ch. 23, sec. 2. 2. Time within which they must be Brought. — That is to say, the said actions of account, and the said actions upon the case, upon simple contract, book debt, or account, and the said actions for debt, detinue and replevin for goods and chat- tels, and the said actions for trespass quare clausumfregit, within three years ensuing the cause of such action, and not after, and the said actions on the case, for words and actions of tres- pass, of assault, battery, wounding, and imprisonment, or any of them, within one year from the time of the cause of such action accruing, and not after. Md. Act, 1715, ch. 23, sec. 2. 3. Saving as to Persons under Disability. — If any person en- titled to any the action or actions aforesaid shall be, at the time of any such cause of action accruing, within the age of one and twenty years, feme covert, non compos mentis, impris- oned, [or beyond the seas,] that then such person or persons shall be at liberty to bring the said action or actions within the respective times before limited, after their coming to, or being of full age, sound memory, at large, [or returned from beyond the seas,] as other persons having no such impediment might or should have done. Md. Act, 1715, ch. 23, sec. 3. Note. — That portion of the above section which is inclosed in brackets is repealed. See next paragraph. 4. Saving as to Persons beyond Seas Repealed.— All excep- tions in favor of parties beyond the District, which may by laws in force March third, eighteen hundred and sixty-five, be relied on in any action or proceeding brought in the District, are repealed and abrogated. E. S. D. C, sec. 466. Sete Hogan v. Kurtz, 91 U. S., 773. All exceptions in favor of parties beyond the District of Co- lumbia, which may, by existing laws, be replied or relied on in any action or proceeding brought in the said District, are hereby repealed and abrogated: Provided, That this section shall not affect the right of parties in actions now pending. Act of Congress, February 28, 1887, sec. 2. STJPEEME COtrUT, DISTEICT OF COLUMBIA. 23 Note.— Hogan v. Kurtz, above cited, in which section 466, R. S. D. C, wSis recognized and enforced, was an action to recover realty. There is thus far no reported case in which the application of this section to personal actions has been considered. This fact has per- haps led many to suppose that the act applied only to real actions, and it has been so held, I believe, in a case recently tried in the Cir- cuit Court. One of the reasons given for this view of the law, is the fact of the section in question being found in Chapter Fourteen of the Revised Statutes relating to the District, entitled "Convey- ances of Real Estate," and the further fact of its being placed not only in this chapter, but under the sub-heading ' ' Quieting Land Titles, "has been supposed to lend strength to this construction. It was probably this view of the law which led to the introduction and passage of the Act of February 28, 1887, above given. But in this construction of section 466, the provisions of section 1296, R. S. D. C, and section 5600, R. S. U. S., seem to have been lost sight of. In the latter section it is declared, that " No inference or presumption of a legislative con- struction is to be drawn by reason of the Title under which any par- ticular section is placed." Before the enactment of the Revised Stat- utes relating to the District, the effect of the first of these repeal pro- visions came directly before the General Term in the unreported case of Weeks' administratrix v. Godey, Law, No. 5884, the only question raised by the pleadings being whether the act applied to personal ac- tions, and it was held that it did. Weeks' administratrix had brought her action upon an account to recover $503.20 due from the defend- ant to plaintiff's intestate. Plea that the alleged cause of action did not accrue within three years before suit brought. Replication "that the plaintiff and her intestate were residents of the State of Maine, that neither the plaintiff nor her intestate have ever been or were within the District of Columbia at the time or since the alleged cause of ac- tion arose against the defendant, and that the defendant has never been within the State of Maine since the alleged cause of action arose, but is now, and ever has been since the date of the sale and delivery of the merchandize, a resident of the city of Georgetown, in the District of Columbia, * * * and so their rights are saved to them on this behalf." To this replication the defendant demurred, and the case being sub- mitted to the court the replication was declared bad in substance and the demurrer sustained. On appeal to the General Term this ruling was sustained. M. G. T., Oct. 3, 1871. 5. Absentees in Certain Cases Not to Have Benefit of the Stat- ute. — 'No person or persons whatsoevever, absenting themselves out of this province, or tliat shall remove from county to county, after any debt contracted, whereby the creditor or, creditors may be at an uncertainty of finding out the said per- son or persons, or Ms or their effects, shall have any benefit by the limitation or restriction in this act specified. (See next paragraph.) Md. Act, 1715, ch. 23, sec. 4. 24 PEACTICE AND PEOOEDtJEE OE THE 6. Proviso in Favor of Those Leaving Sufficient Effects, etc.— And it is the true intent and meaning hereof that this act, or anything herein contained, shall not be construed, reputed, or taken to prejudice or debar any person removing himself or family from one county to another for his conveniency, or any person leaving this province for the time and term in this act limited, from the benefit thereof, he leaving effects suflacient and known for the payment of his just debts, in the hands of some person or persons who will assume the payment thereof to his creditors, anything in this act contained to the contrary hereof in anywise notwithstanding. Md. Act, 1715, oh. 23, sec. 5. 7. Similar Provisions of the Act of 1765,— If any person or persons liable, or that hath or have been, or shall or may be liable to any action, or that hath or have been, or shall or may be absent out of this province, at the time when the cause of action hath arisen or accrued, or shall or may arise or accrue against him, her, or them, he, she or they, shall have or re- ceive no benefit or advantage of or from the said recited act, Md. Act, 1765, ch. 12, sec. 2. 8. To Run Only Prom Time of Return of Such Persons.— The person or persons that hath, have, or hath or have had, or that shall or may have such cause of action as aforesaid, shall com- mence or prosecute the same after the presence in this province of the person or persons liable thereto, within the time or times limited in and by the said recited act. Md. Act, 1765, ch. 12, sec. 3. Notes of Decisions.— The acts of 1715 and 1765 are to be taken together, and to be so construed as to effect the obvious intention that limitation should not run in favor of debtor absent from the State when actioa accrues. Hysinger v. Baltzells, 3 G. & J., 158. But if any time after, debtor by Ms presence affords opportunity to bring suit, limitations begin to run from that date. Id. A secret or concealed presence not sufficient. Id. It must be such presence that creditor by ordi- nary diligence may serve writ. Id. 9. Saving Where Judgment is Reversed or Arrested. — And nevertheless, be it enacted. That if in any the said actions or suits, judgment be given for the plaintifi", and the same be re- versed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ- er bill; or if any the said actions shall be brougjit by original,, StrPBEME COTIET, BISTEICT OP COLUMBIA. 25 and the defendant therein be outlawed, and shall after reverse the outlawry, that in all such cases the party plaintiff, his heirs, executors or administrators, as the case shall require, may commence a new action or suit, from time to time, within a year after such judgment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after. Stat. 21, James 1, chap. 16, sec. 4. Kote. — Where a party brought suit and died before judgment, his executor, by an equitable construction of the statute, was allowed to bring a new action within a year or within a reasonable time after the death of the testator ; and so where a, feme sole brought an action Within the time and married, she and her husband might bring a new action within the equity of the statute, and vice versa. See MuUikin v. Duval, 7 G. & J., 355; Alex. Brit. Stat., note to sec. 4, p. 463. By the 1st and 2d sections of the act 1785, actions do not abate by the death of a party, but the executor or personal representative, etc., may enter a suggestion of the death, and that he is the legal represen- tative of the deceased, and the action goes on. See rule 118, " Change of parties by death," etc., and notes thereto. In an action of tres- pass, q. c, /., judgment was reversed, plaintiff brought a new action Within one month, and on the" point saved as to this section judgment was given for him. Drane v. Hodges, 1 H. & MoH., 518. In assump- sit on a promissory there was a replication of a former suit in which the judgment was arrested. Schnertzell v. Chapline, 3 H. & McH., 439. See 2 Harr. Ent., 353, for the form of the rephcation ; Lynch v. Lambe Oro. Car., 294. But where the suit is struck off at the instance of the plaintiff, the section does not apply. Cawood v. Whetcroft, 1 H. & J., 103 ; Alex. Brit-. Stat., 464. 10. Limitations as to Bills and Specialties.— K^o bill, bond, judgment, recognizance, statute merchant, or of the staple, or other specialty whatsoever, except such as shall be taken in the name or for the use of our sovereign lord the king, his heirs and successors, shall be good and pleadable, or admitted in evidence against any person or persons of this province, after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action above twelve yeajrs' stand- ing; saving to all persons that shall be under the above-men- tioned impediments of infancy, coverture, insanity of mind, imprisonment, [or being beyond the sea,] the fall benefit of all such bills, bonds, judgments, recognizances, statute merchant, or of the staple, or other specia,lties, for the space of five years after such impediment removed, anything in this act before mentioned to the contrary notwithstanding. Md. Act, 1765, ch. 23, sec. 6, [Words in brackets repealed.] 4 26 PEACTICB AND PEOCEDTJEE OP THE Notes of Decisions. — The judgments referred to by the foregoing sec- tion are judgments of a court of record; judgments of justices of the peace are barred after three years' standing. See Minor v. Walker, reported in Thompson's Digest, p. 320. Quare, whether the provision of section 1022, R. S. D. 0., giving judgments of justices of the peace, when amounting to twenty dollars, and when docketed in the Su- preme Court of the District, the same force and effect as to lien and execution, as judgments of this court, brings them within the provi- sions of the statute of limitations as to judgments of a court of record. The expression "twelve years' standing" means twelve years' stand- ing without any proceeding taken to enforce the judgment. Thomp- son V. Beveridge, 3 Mackey, 170. The twelve years run from the date of the return of the last fl.fa. issued, if no other proceeding has since been taken to enforce the judgment. Thompson v. Beveridge, supra, and see Horsey v. Beveridge, 4 Mackey, 291. This sixth sec- tion does not apply to suits in chancery or to mortgages, trust-deeds, or other equitable liens on real estate; these can only be barred when they are of twenty years' standing. Peters v. Suter, 2 Mac A., 516; Bank v. Guttschlick, 14 Pet., 19. See further notes upon this statute under " Bonds when pleadable," &c., this chapter, post. 11. Administration and Testamentary Bonds. — All actions upon administration and testamentary bonds, shall be com- menced within twelve years after the passing of the said bonds, and not after. Md. Act, 1729, ch. 24, sec. 21. 12. In Suits on such Bonds — Proviso as to Disabilities. — Nothing in this act shall be construed to bar any person within the age of twenty-one years, feme covert, non compos mentis, or imprisoned, [or persons beyond seas, j from bringing an action or actions within six years after their coming to or being of fall age, uncovert, sound memory, at large, [or returned from beyond seas, J upon any administration or testamentary bond. Md. Act, 1729, ch. 24, sec. 22. [Words in brackets repealed.] 13. Bonds of Guardians.— The Maryland Act of 1798, chap. 101, » sub. ch. 12, sec. 4, provides that the bond of a guardian "shall be recorded, and be subject to be put in suit, and be in all respects on a footing with a bond given, by an executor or administrator." This act places the bonds of guardians on the same footing withtestar mentary and administration bonds, as to the time within which suit must be brought, viz., twelve years after the passage thereof. State V. Green, 4 G. & J., 381 ; Groot v. Hitz, 3 Mackey, 247. 14. Arbitrators— Statute not to run in case of Death or Re- fusal to Serve.— If any cause which hath been referred, or which shall hereafter be referred, by virtue of this act, either of the parties, or any of the arbitrators to whom the same is SUPKEME COtTRT, DISTEICT OE COLUMBIA. 27 or shall be referred, hath died, or shall happen to die before any award was or shall be made, or if the arbitrators, or any of them, have refused or shall refuse to act, or if after an award made the same hath been or shall be set aside, that then all that space of time from the impetration of the original writ in such cause, until the death of the party or arbitrator, or refusal to act, or setting aside such award, shall not run, be had, reckoned, or estimated, as part of the time limited for the bringing or prosecuting such suit, and that this act shall and may be taken advantage of, in bar of the act of limitation, without any special replication, anything to the contrary hereof notwithstanding. Md. Act, 1778, ch. 21, sec. 10. 15. Claims Against Decedent's Estates. — If a claim be ex- hibited against an executor or administrator, which he shall think it his duty to dispute or reject, he may retain in his hands assets proportioned to the amount of the claim, which assets shall be liable to other claims, or be delivered up or dis- tributed as hereafter mentioned, in case the claim be not established ; and if on any claims exhibited and disputed as aforesaid, the creditor or claimant shall not, within nine ■months after such dispute or rejection, commence a suit for recovery, the said creditor or claimant shall be forever barred; and the executor or administrator may plead this act in bar, together with the general issue, or other plea proper to bring the merits of the cause to trial ; and on any dividend to be made nine months after such dispute or rejection and failure to bring suit, the executor or administrator may proceed to pay, or distribute, as if he had not^ knowledge or notice of such claim, or as if it did not exist. * * Md. Act, 1798, ch. 101, sub ch. 8, sec. 16. j , 16. In Certain Suits Against Stockholders. — For limitations affect- ing certain classes of claims against stockholders organized under the general incorporation laws, see R. S. D. C, sec. 575. 17. In Suits for Recovery of Unlawful Interest. — Suits to re- cover back unlawful interest must be brought within one year after such unlawful interest shall have been paid or taken. E. S. D. C, sec. 716. 18. On Mechanics' Liens.— That any person wishing to avail himself of the provisions of this act, whether his claim be due or not, shall file in the of&ce of the clerk of the Sui)reme Court of the District of Columbia, during the construction or within three months after the completion of such building or repairs, 28 PEACTICE AND PEOCEDTJEE OF THE or tlie placing therein or adjacent thereto of any engine, ma- chinery, or other thing as aforesaid, a notice of his intention to hold a lien upon the property declared by this act liable to such lien for the amount due or to become due to him, spe- cifically setting forth the amount claimed. The clerk aforesaid shall file and record such notice in a book provided for that purpose. Act of July 2, 1884, sec. 2 (Stat. 1883, 1884, p. 64.) That any person entitled to a lien under this act may com- mence a suit to enforce the same at any time within one year from and after filing a notice aforesaid or the completion of said building or repairs, but no final adjudication shall be had until all persons who shall become interested in the building subject to such lien under the provisions of this act shall have an opportunity to be heard in said suit, provided such interest was vested at the time said suit was brought, or be accjuired within three months thereafter, and such persons shall in- tervene in said suit within said term, of three months. Id., sec. 7. 19. On Marshals' Bonds, see p. 14, sec. 8, infra. 20, Penalties and Forfeitures Under Laws of the United States. — Ifo suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States, shall be maintained, except in cases where it is other- wise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture ac- crued: Provided, That the person of the offender, or the prop- erty liable for such penalty or forfeiture, shall, within the same period, be found within the United States; so that the l^roper process therefor may be instituted and served against such person or property. E. S. U. S., sec. 1047. Notes of Decisions. — This section applies to an action of debt, and to informations and indictment to recover a penalty. Adams v. "Wood, 2 Cranch ; Stimpson v. Pond, 2 Curt., 502. It does not apply to criminal prosecutions when the penalty may be death or imprison- ment. U. S. V. Brown, 2 Low, 267. It does not apply to actions on a bond, or for the penalty named in the bond. Raymond v. U. S., 14Blatchf., 51. "Penalty" is a fixed pecuniary mulct incurred for violation of a law. In re Lansburg, 11 Int. Rev. Rec, 150. And the limitation applies to suits to recover such penalty, as well as fines and forfeiture accruing under the laws of the United States or not, unless specifically excepted. U. S. v. Maillard, 4 Ben., 459. In re Lansburg, supra, and whether the action be in rem or in personam. Hatch V. The Boston, 3 Fed. Rep., 807. A fraudulent concealment of STJPEEME COURT, DISTRICT OF COLUMBIA. 29 the cause of action will not prevent the running of this statute. U. S. V. Maillard, supra. 21. Under Customs Revenae Laws. — No suit or action to recover any pecuniary penalty or forfeiture of property accru- ing under the customs revenue laws of the United States shall be instituted unless such suit or action shall be commenced within three years after the time when such penalty or forfei- ture shall have accrued: Provided, That the time of the absence irom the United States of the person subject to such penalty or forfeiture, or of any concealment or absence of the property, shall not be reckoned within this period of limita- tion. Act of June 22, 1874, sec. 22, 18 Stat., 190. Note. — See In re Lansburg, 11 Int. Rev. Rec, 150, supra. 22. Miscellaneous Notes.— A plea of the statute of limitations is now regarded with the same respect as other legal defences. Hence, where a demurrer has been overruled with leave to plead, the statute may be set up. Knoedler v. Meloy, 2 Mac A., 239. The lex fori con- trols the statute of limitations. Willard v. Wood, 4 Mackey, 538 ; ' McElmoyle v. Cohen, 13 Pet., 312 ; Townsend v. Jemison, 9 How., 407. So whether an instrument be a specialty or in parol. Willard v. Wood, 4 Mackey, 538. The statute of limitations may be pleaded by one tenant in common against the claim of his co-tenant to be reim- bursed for taxes upon the common property. Sturgis v. HoUiday, Mac A. and Mack., 385. For cases ui which the statute of limitations may be Interposed to a claim of the District of Columbia, see Dist. of Col. V. W. & G. R. R., 1 Mackey, 615. As respects public rights, the District is not within ordinary limitation statutes. Id. Charges or assessments for street Improvements are not within the statute of limitations. Id, In an action to recover damages for injuries to property, recovery can only be had for such injuries as were incurred during the period not covered by the statute. Herring v. The District, 2 Mackey, 87. The retention by an administrator of a sum of money, with the assent of the Orphan's Court, to pay several claims, among which was the claim of plaintiff, is not sufficient to remove the bar of the statute when pleaded by the administrator in a suit afterwards brought by the plaintiff upon the claim. Market Company v. Beck- ley, 4 Mackey, 163. When one is barred by the statute from suing on a contract in his own name, he cannot remove the bar by taking out letters of administration, and suing- in his representative character. Campbell v. Wilson, 2 Mackey, 496. 23. The Running of the Statute. — The statute begins to run on the day after the cause of action accrues. Baker v. Ramsburg, 4 Mac- key, 1. As a general rule, when the statute begins to run, no subsequent transfer of title to the cause of action arrests its operation ; thus if it has commenced to run against a party in his lifetime, it continues to run against his administrator ; if it has commenced to run against an administrator, it wiU continue to run against the 30 PEACTICE AND PEOCEDTTEE OF THE administrator de bonis non. Campbell v. Wilson, 2 Mackey, 496, If disability does not exist at time action accrues, no subsequent dis- ability will interrupt the ninning of the statute. MacDonald v. Hovey, 110 U. S., 619; Hogan v. Kurtz, 94 U. S., 773. Disabilities cannot be piled one on another. Mercer v. Selden, 1 How., 37; Thorp V. Eaymond, 16 How., 247 ; Hogan v. Kurtz, 94 U. S,, 773. 24. Saving's in Favor of Infants, Femeg Coverts, etc.— Limitations begin to run against ward in favor of guardian as soon as he becomes of age. Green v. Johnson, 3 G, & J., 395; see State v. Green, 4 G. & J., 381. As to femes covert, see Knight v. Brawner, 14 Md., 1, and for other oases, in which this saving clause is considered, see Welch V. The State, 5 H. & J., 369; Boyd v. Harris, 2 Md. Ch- Dec, 214. 25. What Other Matters Prevent or Suspend the Rnnning of the Statute.— Fraud ; otherwise if there is no fraud. Belt v. Marriot, 9 Gill, 338; Wilcox v. Plummer, 4 Pet., 172; Wood v. Carpenter, 101 U. S., 135. No person in esse competent to sue when action accrues, Cawood V. Westcroffc, 1 H, &. J,, 103 ; Lewis v. Broadlwell, 3 Mac- Lean, 568. Bringing suit with direction to clerk to issue process, whether such process is issued or not. Bank v. Lyles, 10 G. &. J., 326. An injunction. Little v. Price, 1 Md. Ch. Dec, 182, See Wat- kins V. Dorsett. While debt is attached by an alleged creditor of plaintiff. Mattingly v. Boyd, 20 How., 128. 26. When Ifew Cause of Action is Introduced by Amendment. — The amendment of a declaration, so as to state for the first time a cause of action, is equivalent to bringing a new suit as of the date of the amendment, and if the statutory period of limitation has elapsed, the action will be barred, notwithstanding the original declaration was filed within the statutory period. Johnson v. The District, 1 Mac- key, 427, overruling Maillard v. Bank, 3 Mac A., 54. 27. Bonds asd Other Specialties, Triien Pleadable*— When suit is brought within twelve years, obligation' may be given in evidence after twelve years. Hammond v. Denton, 1 H. & McH., 200. Limitations do not run from the date of the bond, but irom the time limited for payment. Glassgow v. Porter, 1 H. & G., 109. A bond from executors is a testamentary bond. State v, Boyd, 2 G. & J., 365. Payment of interest on a bond, or even an express acknowledgment of the debt,, will not revive the remedy upon a bond barred by the act. Carrol v. Warring, 3 G, & J., 491, But an action lies on the promise, and the bond may be offered as proof of consideration, Lamar v. Munroe, 10 G. & J., 50 ; Young v. Mackall, 4 Md., 362. The act of 1798' places guardians' bonds on same footing with testamentary bonds. The State v. Green, 4 G, & J., 381 ; Groot v. Hitz, 3 Mackey, 247. The act of 1715 excepted such bills, etc., "as shall be taken in the name of our sovereign lord the king," from its operation. The State succeeding to the rights of sovereignty, stood at the Declara^ tion of Independence in the place of the king, and when she surrendered certain powers- of sovereignty to the United States, the STJPEEME COURT, DISTRICT OF COLUMBIA. 31 exception also applied to that government. Booth v. United States, 11 G. &. J., 873. 28. Merchants' Accounts. — Exception in favor of merchants' ac^ counts applies as well to actions of assumpsit as of account. Mande- viUe V. Wilson, 5 Cranch, 15. Unnecessary that declaration should aver money to be due on open account between merchants. Mande- ville V. Wilson, 5 Oranch, 15. To bring a case within the exception of merchants' accounts, the items must not all be on one side ; the account must be one that concerns the trade of merchandise, and be between two merchants. Spring v. Gray, 6 Pet., 151 ; Bank v. Bank, 10 G. &. J., 439 ; Bank v. Bank, 10 G. & J^ 422. There must be an open and running account, not liquidated demands on bills and notes. Toland v. Sprague, 12 Pet., 300. 29. Tmsts. — As long as a fund is held professedly and admittedly as a trust, no lapse of time precludes the beneficiary from claiming it. Campbell v. Wilson, 2 Mackey, 496. But the moment there is some breach of duty or adverse claim by the trustees, the statute commences to run. Campbell v. Wilson,' 2 Mackey, 496; Marr v. Kubel, 4 Mackey, 577. It is doubtful whether the law of trusts, as a bar to the stainte, applies to the case of money collected by an attorney for his client, since such moneys are not intended to be held in trust, but are to be paid over promptly. Campbell v. Wilson, 2 Mackey, 496. 30. Limitations as to Realty. — For quieting of men's estates, and avoiding of suits, be it enacted, etc. : That all writs of Formedon in Descender, Formedon in Bemainder, and Formedon in Reverter, at any time hereafter to be sued or brought, of, or for any manors, lands, tenements or hereditaments, where- unto any person or persons now Hath, or have any title, or cause to have or pursue any such writ, shall be sued and taken within twenty years next after the end of this present session of Parliament : And after the said twenty years ex- pired, no person or persons, or any of their heirs', shall have or maintain any such writ, of or for any of the said manors, lands, tenements or hereditaments; and that all writs of Formedon in Descender, Formedon in Remainder, Formedon in Reverter, of any manors, lands, tenements, or other heredita- ments whatsover, at any time hereafter to be sued or brought by occasion or means of any title or cause hereafter happen- ing, shall be sued and taken within twenty years next after the title and cause of action first descended or fallen, and at no time after the said twenty years ; and that no person or persons that now hath any right or title of entry into any manors, lands, tenements or hereditaments now held from him or them, shall thereinto enter, but within twenty years 32 PRACTICE AND PEOOEDTTBE OF THE next after the end of tMs present session of Parliament, or within twenty years next after any other title of entry accrued; and that no person or persons shall at any time hereafter, make any entry into any lands, tenements or hereditaments, but within twenty years next after his or their right or title, which shall hereafter first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and dis- abled from such entry after to be made ; any former law or statute to the contrary notwithstanding. Stat. 21, James 1, ch. 16, sec. 1. Note. — This is the statute of limitations as to realty in this DiBtrict, Keefe v. Bramhall, 3 Mackey, 568 ; and see the note to this statute in Alexander's British Statutes, 464. 31. Saving as to Persons Under Disabilities. — ^Provided. nevertheless, that if any person or persons that is or shall be entitled to such writ or writs, or that hath or shall have such right or title of entry, be, or shall be at the time of the said right or title first descended, accrued, come or fallen, within the age of one and twenty years, feme- covert, non compos mentis, imprisoned [or beyond the seas,] that then such person and persons, and his and their heir and heirs, shall or may, not- withstanding the said twenty years be expired, bring his action, or make his entry as he might have done before this act ; so as sueh person and persons, or his or their heir or heirs, shall within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, [or coming into this realm,] or death, take benefit of, and sue forth the same, and at no time after the said ten years.. Stat. 21, James 1, ch. 16, sec. 2. [Words in hrackets repealed.] 32. Limitations in Criminal Suits. — See Criminal Proced ure, post. STJPEEME COURT, DISTKICT OP COLUMBIA. 33 CHAPTER VIII. ATTORNEYS. 1. Admissions to the bar. 2. The application. 3. Who may be admitted, 4. Students. ^ 12. Power ofcourt over attorney's misconduct. 13. His employment and author- ,-;- — itsLs-anBearaojce. . Admissions to the Bar. — Each applicant for examination for admission to the bar shall file with the clerk an application in writing, in which he shall state, under oath or affirmation, his name, age, and residence, with what attorney he has studied law, or in what law school, and when, and for what length of time he has so studied ; and also what books he has read ; and upon the filing of such application it shall, without farther order of the court, be referred td the committee for examina- tion for their action. 5 M. G. T., 566. May 21, 1887, Note. — The above rule was promulgated after these pages were in press. Z. The Tipplication.— All appiicatroBg- tor aannssiffff to tne bar shall be made to the court in general term. Eule 1. 3. Who May be Admitted.— Applicants for admission, who have been admitted to practice law in the Supreme Court of the United States or in the highest court of any State or Terri- tory, may, upon satisfactory evidence of good moral character, and after examination as to fitness, or, in the discretion of the court, without such examination, be admitted to the bar, pro- vided the members of the bar of this court are admitted to the bar of the highest court of such State or Territory upon the same terms. Id. 4. Students. — N'o student shall be admitted until after such examination and proof of good moral character, and that he has studied at least three years under the direction of some competent attorney. Diligent study in any law school shall, to the extent thereof, be computed as part of said three years. 5 34 PRACTICE AND PROCEDURE OF THE 5- Oath to be Taken. — Applicants for admission must take the subjoined oatli: I, , do solemnly af&rm (swear) that I will de- mean myself as an attorney and counselor of this court, up- rightly and according to law; and that I will support the Con- stitution of the United States. Id. 6. Court May Regulate Terms of Admission.— The Supreme Court of the District of Columbia has an inherent right to regulate the terms of admission to its bar and to prescribe by its rules the oath to be taken. Ex parte Magruder, 6 Am. Law/ Reg. (N. S.), 294. 7. Parties May Plead Their Own Causes. — In all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein. E. S. U; S., sec. 747. 8. OflBcers Forbidden to Practice as Attorneys. — N^o clerk, as- sistant or deputy clerk, of any territorial, district, or circuit court, or of the Court of Claims, or the Supreme Court of the United States, or marshal or dejDuty marshal of the United States within the district for which he is appointed, shall act as a solicitor, proctor, attorney, or counsel in any cause de- pending in either of said courts, or any district for which he is acting as such officer. E. S. U. S., sec. 748. 9. Delivery of Court Papers to Attorneys. — The clerk may deliver any paper, except bonds or undertakings, belonging to the files of this court, in any cause, to any practicing attor- ney of this court appearing in such cause, upon the receipt of such attorney containing a memorandum of the papers so delivered ; and such attorney shall be held responsible, as an officer of this court, for the safe custody of all such papers and for the return thereof to the clerk's office on demand of the clerk. Such papers shall not be delivered to any person not an attorney as above provided, nor shall a paper in a cause, in any event, be delivered to a party ~ to such cause. Eule 117. 10. Members of the Bar not to be Sureties.— See Eule 127. 11. IVatnre of the Office of Attorney. — Attorneys and counselors are not officers of the United States; they are officers of the court ad- mitted as such by its order. Being once admitted he does not hold his office as a matter of gra-ce or favor. The right conferred upon him to appear for suitors and to argue causes is something more than a SXJPKEME COXJKT, DISTRICT OP COLUMBIA. 35 mere indulgence revocable at the pleasure of the court, or at the com- mand of the legislature. It is a right of which he can only be de- prived by the judgment of the court for moral or professional delin- quency. Ex parte Garland, 4 Wall., 378; Ex parte Robinson, 19 Wall., 512. 12. Power of Court Over Attorney's Misconduct. — All courts have power to disbar attorneys who are guilty of professional misbehavior^ but this is distinct from the power to punish for contempt. Bradley V. Fisher, 13 Wall., 335. Judicial inquiry is not restricted to his offi- cial acts. Ex parte Burr, 2 Cr. 0. C, 379. But when called upon to answer for one specific contempt he cannot be punished for another and distinct oifence, nor for misbehavor as attorney generally. Ex parte Bradley, supra. For a fraud, although not of a public nature or indictable, he may be stricken from the rolls. United States v. Por- ter, 2 Cr. O. C, 64. Charges for removal should be sworn to, but the oath may be waived. Ex parte Burr, supra. The proceedings for re- moval, not being criminal or triable by jury, the offence need not be set out with the highest degree of certainty. Id. Ex parte Cole, 1 McCrary, 405. The order removing him is not appealable. Ex parte Bradley, supra. But the discretion of the court Is not unlimited; it is regulated by law, and if exercised with manifest injustiqe is subject to correction. Ex parte Biiidlej, supra. Merely because an attorney has been disbarred by one court for contempt, is not ground for refus- ing his admission to another. Ex parte Tillinghart, 4 Peters, 108. 13. His Employment and Authority — Appearance.— An attorney's authority to appear for a litigant is always presumed. Osborn v. Bank, 9 Wheat., 829 ; Hill v. Mendenhall, 21 Wall., 454, and this although he acts for a corporation, Id., and the record of appearance will bind the party until it is proved that he acted without authority. Id. Thus, in a suit on a judgment on a plea of nul iiel record, evidence of attorney's want of authority is inadmissable. It must be specially pleaded. Id. Where the reqord shows his appearance, the judgment can only be attacked on this ground by a direct proceed- ing ; in a collateral one, it cannot be controverted. Landes v. Brant, 10 How., 371. 14. Appearance Without Authority.— It seems that an attorney who appears without authority is liable for damages. Field v. Gibbs, Pet. C. C, 158. 15. Appearance by Unlicensed Attorney.— Where an attorney not admitted to practice, brings suit for a party, the proceeding will not be dismissed for that reason, but an order will be made or notice to the party declaring that the alleged attorney will not be recognized. In re O'Halloran, 8 Ben., 128. 16. Authority to Accept Service. — An appearance and waiver of process by a regular practicing attorney is prima facie the act of the party, but if unauthorized the judgment is void ; and the attorney may show that his appearance was unauthorized. Shelton v. Tiffin, 6 How., 186. 36 PRACTICE AND PEOCEDTJEB OF THE 17. Power to Compromise. — An attorney authorized to collect has no authority to compromise, and his entry of satisfaction will not bind his client beyond the sum actually received. Pierce v. Brown, 8 Bias., 534 ; Holker v. Parker, 7 Cranch, 436. But the client may by acquiescence ratify the act of his attorney. Mayer v. Foulk- rod, 4 Wash., 571 ; Erwin v. Blake, 8 Pet., 18. 18. May Issue Execution. — An attorney may sue out execution, and accept satisfaction of a judgment. Erwin v. Blake, 8 Pet., 18 ; Bank v, Geary, 5 Pet., 113. 19. His Authority to Instruct Offleer. — He has complete authority to control the remedy which the law gives to secure or collect the debt, and his instructions to the officer as to the execution of process will bind the client. Eogers v. The Marshal, 1 Wall., 651. 20. Attorney and Client.— What facts will show relation of. Rogers v. Marshal, 3 McCrary, 76. Degree of skill required of attorneys, see Bank v. Ward ; see 100 U. S., 195. Purchase from client of subject matter of litigation, see Rogers v. Marshal, 3 McOrary, 76 ; Galpin v. Page, 18 Wall., 373 ; Wright v. Tibbetts, 91 U. S., 252 ; Man- ning V. Hayden, 5 Sawyer, 380. Privileged communications. Chirac v. Reinecker, 11 Wheat., 294 ; Ins. Co. v. Shaefer, 94 U. S., 457 ; Oliver V. Cameron, Mac A. & Mack., 237. Knowledge of attorney knowledge of client. May v. LeClaire, 11 Wall., 233 ; Rogers v. Pal- mer, 102 U. S., 264; Polk v. Cosgrove, 4 Biss., 440; Hoover v. Wise, 91 U. S., 304. Not liable for error of judgment. 1 Story, 236. Con- tingent fees, when sustained. Trist v. Child, 21 Wall., 448 ; Stanton V. Haskin, 1 Mac A., 558. Champerty. Ibid; Stanton v. Bmbrey, 93 r. S., 548; McPherson v. Cox, 96 U. S., 415. 21. Attorney's Liability for Negligence. — General rule. Spangler V. Sellers, 5 Fed. R., 882 ; Campbell v. Brown, 2 Woods, 350. Negli- gence of, without fraud, not ground to arrest judgment. Wynn v. Wilson, Hemp., 699. Omission to plead. Wetzell v. Buzzard, 2 Or. C. C, 253; Bank v. Eliason, Id., 630. 22. Dischai'ge— Compensation and Lein.— Before judgment, the parties to a pending suit may settle it between themselves, without considering either the wishes or the interests of the attorneys. Lemont v. Railroad Company, 2 Mackey, 502. Although he was employed upon a contingent compensation. In re Paschal, 10 Wall., 483. As attorney in the cause he has a lien on moneys collected therein for his fees and disbursements in the cause, and also in any suit or proceeding brought to recover other moneys covered by the same retainer. In re Paschal, 10 Wall., 483. But his lien is limited to the funds in the particular case in which the services were ren- dered. In re Wilson, 12 Fed. Rep., 235. And then only when it comes into the hands of the attorney himself. Adams Ex. Co. v. Adams, 1 Mac A., 643. The lien is upon the interest of his client in the judgment, and is subject to an existing right of set-off in the other party. Bank v. Eyre, 3 McCrary, 175. A motion to pay into court the moneys coUected wUl not be granted, but the parties will STJPEEME COUET, DISTRICT OP COLUMBIA. 37 be left to their action, if the attorney is guilty of no had faith or improper conduct, and has a fair set-off against his client, which the latter refuses to allow. In re Paschal, 10 Wall., 483. CHAPTEE IX. TERMS OF THE COURT, AND CERTAIN MISCELLANEOUS RULES. 1. Terms of the court, when held. Rule 2. 2. Trials when another term intervenes. 3. All terms are terms of the Supreme Court. 4. Quorum — Division of opinion. 5. Court to regulate period of holding terms. 6. Three general terms to be held annually, 7. Special terms, by whom to be held. 8. District Court, when terms of to be held. 9. Criminal Terms, when to be held. 10. When Criminal Court may sit as Circuit Court. 11. Two terms of Circuit Court mav be held at same time. 12. Circuit Court may sit as a Criminal Court. ' 13. When a term ends. 14. Return, appearance, or rule day. Rule 3. 15. Orders at Chambers. Rule 4. 16. Order Book, what to be entered therein. Rule 5. 17. The minutes of the court. , Rule 6. 1. Terms of the Court, When Held.- shall be held as follows : Of the GEliTEEAL TEEM, on the -The terms of the court 4th Monday of Jantjaet. 4th Monday or April.. 1st Monday op October. Of the CIECUIT COUET, on the 4th Monday op January. ,2d Monday op May., which term shall not continue beyond the 2d Saturday in July, except to finish a pending trial. (See Strong v. The District, 3 Mac A., 499.) 3d Monday of October. Of the DISTEICT COUET, on the 1st Monday of June. , 1st Monday of December. 38 PEACTICE AND PEOCEDTJEE OP THE Of the CEIMIIvrAL COUET, on the -1st Monday of Maech. 3d Monday of June. 1st Monday of Decembee. Of the SPECIAL TEEMS, on the 1st TtlESDAY of every month, except August, in which mouth there shall be no term of court. Eule 2. 2. Trials When Another Term Intervenes.— When, at ^ny term of the court, a jury shall be imj)aneled to try any cause or any issue ok issues joined in any cause, and it shall happen that no verdict shall be found, nor the jury otherwise discharged be- fore the day appointed by law for the commencement of the next succeeding term, the court shall proceed with the trial by the same jury in every respect as if such term had not com- menced; and all subsequent proceedings to final judgment, if such judgment shall be rendered, shall be entered and have legal effect and operation as of the term at which the jury shall have been impaneled. E. S. D. C, sec. 807. See Strong- V. The District, 3 Mac A,, 449. 3. All Terms are Terms of the Snpreme Court. — The several general terms and special terms of the Circuit Courts, District Courts, and Criminal Courts authorized by law are declared to be, severally, terms of the Supreme Court of the District of Columbia; and the judgments, decrees, Sentences, orders, proceedings, and acts of the. General Terms, Special Terms, Circuit Courts, District Courts, and Criminal Courts rendered, made, or had, are and shall be deemed judgments, decrees, sentences, orders, proceedings, and acts of the Supreme Court, but nothing contained in this section shall affect the right of appeal as provided by law. E. S. D. C, sec. 753. 4. Quorum — Division of Opinion. — ''Any three [now two, see below] of the justices of the Supreme Court may hold a general term, and any one of them may hold a special term. E. S. D. C, see. 754. Two of the justices, sitting at general term, shall constitute a quorum for the transaction of business ; but when the two justices shall be divided in opinion, the same shall be noted upon the minutes of the court, and thereupon and within four days thereafter either party in such cause may file with the clerk of the court a motion in writing to have such cause reargued before, three or more justices.. BUPEEME COXJRT, DISTRICT OP COLUMBIA. 39 But no justice shall sit in general term to hear an apj)eal from any judgment, or decree, or order, wMcli lie may have rendered at the special term. Act of February 25, 1879, sec. 2 (20 Stat., 320), Eich. SuppL, 418. Note. — A justice, having no previous connection with a case, except to grant at Special Term a preliminary Injunction on ex parte affidavits, is not thereby disqualified to sit upon the final hearing of the ease in General Term. Walter v. Ward, 3 Mackey, 65. 5. Court to Regulate Period of Holding Terms. — The Su- preme Court shall have power, by rule of court, to regulate the periods of holding its terms, as also the periods of the special terms, at which issues of fact, triable by a jury, or by the court, are to be tried, and to fix the number of such terms, and to alter the same from time to time, as public convenience may require. E. S. D. C, sec. 755. 6. Three General Terms to be Held Annually. — At least, three [general] terms of the Supreme Court shall be held annually. E. S. D. C, sec. 756. 7. Special Terms, by Whom to be Held. — The special terms shall be held by one of the justices of the Supreme Court at such time as the court in general term shall appoint. E. S. D. C, sec. 757. 8. District Court, When Terms of to be Held.— The special ternji held as the United States District Court for the District of Columbia, shall be holden on the first Monday in December and June in every year. E. S. D. C, sec. 758. 9. Criminal Terms, When to be Held.— The special term held as the criminal court shall be holden on the first Monday in March, the third Monday in June, and the first Monday in December in each year. E, S. D. C, sec. 759. 10. When Criminal Court may sit as Circuit Court. — The jus- tice of the District of Columbia, holding a criminal term for said District, may, when not engaged in the proper business of the criminal term, hold sittings of the circuit court, and employ the petit juries drawn for the criminal term in the trial of such cases depending in said circuit court, as the justice presiding therein may assign to him for that purpose ; and the business done at such sittings shall be recorded in the minutes of the circuit court. Act of June 23, 1874 (18 Stat. 204), Eich. SuppL, 92. 11. Two Terms of Circuit Court may be Held at Same Time.— 40 PEACTICE AND PEOCEDUBE OF THE The general term may order two terms of the circuit court to beheld at the same time, whenever, in their judgment, the business therein shall require it ; and they shall designate by an order of the court, the time and places of holding the same, and the justices by whom they shall respectively be held -, and shall make all necessary orders for a division of the docket between the justices holding such term 5 and petit juries shall be drawn therefor, in the same manner as is pro- vided for in such circuit court, at least ten days before the commencement of any such sitting. Act of February 25, 1879 (20 Stat., 320), Eich. SuppL, 419. 12. Circuit Court may Sit as a Criminal Court.— Any justice of the Supreme Court of the District of Columbia, holding a term of the circuit court for said District (whenever the con- dition of the business in such circuit court and in the criminal court, in the opinion of the general term of said supreme court, may render it proper and expedient so to do), may hold sittings for the trial of such criminal cases depending in the criminal court as the justice presiding therein may assign for that purpose, and may employ the petit juries drawn for such circuit court for such trials ; and such sittings may be held during the regular sessions of the criminal court, or, in the recess thereof, during the term of such circuit courts and the business done at such sittings shall be recorded in- the minutes of the criminal court. Act of June 8, 1880 (21 Stat., 166), Eich. SuppL, 538. 13. When a Tei'm Ends»— The first day of a terra orf tMs court, but not its duration, is fixed; the term ends whenever the coTirt adjourns^ sine die, and is then determined for all purposes. United States v. Guiteau, 1 Mackey, 551, The terms of the circuit court may be pro- longed by adjournment for the purpose of settling bills of exception. Johnson v, Douglass, 2 Mackey^ 36, See Enle 62. 14. Return, Appearance, or Rule Day.— The first Tuesday of every month, except August, shall be the return day of pro- cess, appearance day of parties, and the day on which rules or orders may be made in the clerk's office to speed any cause- depending in the court. And the term return day, appear- ance day, or rule day always designates the first Tuesday of the month to which it relates. Eule 3. 15. Orders at Chambers. — An order obtained from a justice at chambers shaE not be presumed to be known to the- SXJPEEME COTJET, DISTEICT OF COLUMBIA. 41 opposite party without proof of previous actual notice of tlie application to the party or his attorney. Eule 4. Note. — To get rid of an order improperly made by a judge at chambers, the remedy is by motion to the court to set it aside, not an appeal. Bank v. Spencer, 15 How. (N. Y.), 14 ; Culver v. HoUister, 17 Abb. (N. Y.), 405. 16. Order Book— What to be Entered therein.— A book shall be kept in the clerk's office, to be called the Order Book, in which the clerk shall cause to be entered every interlocu- tory rule or order made or taken in a cause preparatory to its trial on the merits, except such as shall be made in special or general term, which are to be entered in the minutes of the court. Eule 5. 17. The Minntes of the Court. — The minutes of the court are, in effect, a journal of its proceedings while sitting, entered or recorded in due legal form by the clerk, and signed by the justice or justices presiding. Eule 6. STote. — In the District of Columbia, the docket entries of the old circuit court is the record, and is entitled to the same consideration as a formal record. Washington, etc. v. Sickles, 24 How., 333 ; Bank V. Benning, 4 Cr. C. C, 81. CHAPTEE X. AMENDMENTS. 7. Changing names and adding parties. 8. Formal variance. 9. Amending pleas. 10. Amendment of verdict. 11. Amendment of judgment. 12. Amendments in special pro- ceedings. 13. Provisions of Maryland Act of 1785. 14. The construction given the above act. 1. Amendments May be Made at Any Stage of the Cause. — In any stage of a cause all such amendments may be made as 1. Amendments may be made at any stage of a cause. 2. Statutory provisions — Act of 1789. 3. What may be amended gene- rally. 4. Instances — Stating new cause of action. 5. Bill of particulars. 6. Amending description of par- ties. 42 PEACTICB AND PEOCEDUEE OF THE may be necessary for the purpose of determining in the exist- ing suit the real question in controversy between the parties, whether the defect or error be that of the party applying to amend or not. Eule 7. 2. Statutory Provisions— Act of 1789.— No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, corrected, quashed or reversed for any defect or want of form; but such court shall proceed and give judgment ac- cording as the right of the cause and matter in law shall ap- pear to it, without regarding any such defect or want of form, except those which, in cases of demurrer, the party demur- ring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demur- ring so expresses ; and may at any time permit either of the parties to amend any defect in the process or pleadings, uj)on such conditions as it shall in its discretion and by its rules prescribe. E. S. U. S., sec. 954 (24 Sept., 1789, ch. 20, sec. 32, vol. 1, p. 91.) 3. What may be Amended Generally. — This act is sufficiently com- prehensive to embrace every conceivable step to be taken in a cause, from the emanation of the writ down to the judgment. Thus ver- dicts, though not mentioned, are virtually included. Roach v. Hul- lings, 16 Pet., 319. It embraces causes of appellate, as well as original jurisdiction. Smith v. Jackson, 1 Paine, 486 ; Anonymous, 1 Gall., 22. The allowance and refusal of amendments in the pleadings are mat- ters within the soujid discretion of the court. Wright v. HoUings- worth, 1 Pet., 165; U. S. v. Buford, 3 Pet, 12. And it cannot be cor- rected or controlled by mandamus. Jackson v. Smith, 1 Paine, 453 ; Ex parte Bradstreet, 7 Pet., 634. And is not a subject of exception or review on appeal or writ of error. McGlinchy v. United States, 4 Cliff., 312. Amendments of the pleadings may be made down to the time the jury retires. Abrams v. De Wandalaer, 2 Mac A., 342. 4. Instances — Stating New Cause of Action. — The amendment of a declaration, so as to state for the first time a new cause of action, is equivalent to bringing a new suit as of the date of the amendment ; and if the statutory period of limitations has elapsed, the action will be barred, notwithstanding the original declaration was filed within the statutory period. Johnston v. The District, 1 Mackey, 427. A declaration may be amended by leave of court introductive of a new cause of action, provided the amendment corresponds in character with the original count in a kindred cause, admitting the same plead- ing and defence, and might have been included in the declaration originally filed. Gregg v. Grier, 4 McLean, 208 ; Dougherty v. Bent- STTPREME OOtTET, DISTRICT 03? COLUMBIA. 43 ley, 1 Or., 219; Walden v. Craig, 9 Wh., 576; Day v. Chism, 10 Id., 449. But see Johnston v. The District, supra, as to the effect of intro- ducing a new cause of action. 5. Bill of Particulars. — On a new trial being granted, plaintiff may be allowed to amend his bill of particulars. Fague v. Corcoran, 3 Mackey, 199. e. Amending Description of Parties. — Where a defendant, sued as administrator of A. B., pleaded that he was not administrator, but executor, it was held that it was proper to allow the plaintiff to amend the writ and declaration by strUiing out administrator and inserting executor. Randolph v. Barrett, 16 Pet., 138. So the name of a wife may be stricken out where the husband and wife sue jointly, but the husband should sue alone. Moore v. Carter, Hemp., 64, V. Changing' Names and Adding Parties. — But leave will not be granted to change the name of one of the plaintiffs in the writ. Oome- gys V. Robb., 2 Or. 0. C, 141. Nor to amend by making new parties to the action. Morris v. Barney, 1 Or., 245. It will, however, be granted on a plea of misnomer, to amend the writ and declaration. iNelson v. Parker, 3 McLean; 379; Randolph v. Barrett, 16 Pet., 138. So a declaration in the name of a firm may be amended by inserting the names of members of the firm. Tibbs v. Parrott, 1 Or. O. C, 177; and a plaintiff before trial, niay amend his writ and declaration by striking out the name of one of the defendants in order to avoid a technical rule, that if all the defendants are not proved to have made the contract, a verdict must be fonnd for all, though some of the de- fendants did so contract. Toly v. Olaflin, 3 Sum, 379. 8. Formal Variance. — A formal variance, such as suing the defend- ant as " Biddle," instead of " Briddle," niay be amended at any time. Scull V. Briddle, 2 Wash. O. C.,200; Craig v. Brown, Pet. 0. C, 139. 9. Amending Pleas. — Amendments of pleap at the trial are not gen- erally permitted, unless the court is satisfied of the justice of the de- fence. Allen V. Magruder, 3 Or. C. C, 6; Childs v. Long, 1 Wall., J., C. C, 305. And as to when amendments of defective pleadings will he allowed, see Garland v. Davis, 4 How., 131; Glark v. Sohier, 1 Wood & M., 368. 10. Amendment of Verdict*— The language of the statute (sec. 954) is sufficiently comprehensive to embrace verdicts, though a verdict eo nomine is not specified in the statute. Roach v. Hulings, 16 Pet., 319; Matttieson v. Grant, 2 Ho^., 263; Garland v. Davis, 4 Id., 131, So leave was given to amend a verdict in replevin after the jury had retired and another cause tried. Arquelles v. Wood, 2 Or. C. O., 579. 11. Amendment -of Judgment.— No power is given by statute to amend judgments, except as to defects and matters of form. 1 Story, 310. Amendment of a judgment supplying the name of a plaintiff ■was made four years after the rendition of the judgment. Coelle v. Lockhead, Hempt, 194. But that which entered into and became a 44 PRACTICE AND PEOCEUTJEE OF THE part of the judgment of the court cannot be changed after the term, although a clerical mistake in the entry may be amended. Brush v. Bobbins, 3 McLean, 468; Medford v. Dorsey, 2 Wash. C. C, 443^ Pierce V. Turner,! Or. C. C, 433. 12, Amendments in Special Proceedings, — A clerical error in a scire facias may be amended, Taylor v. Wharfleld, 2 Cr. C. C, 248, as welt as the return, Mandeville v. McDonald, 3 Or. O. C, 631, and in an at- tachment, Birch V. Butler, 1 Or. 0. C, and a judgment for a fine neg- lected to be stricken out on the order of a judge. Ex parte Smith, Id., 127; and an omission to show, in an information in the nature of a quo warranto, that the offices usurped are corporate offlces. Canton V. Ingle, 4 Id., 438. 13. Provisions of Maryland Act of 1785.— The courts of law shall have full power and authority to order and allow amend- ments to be made in all proceedings whatsoever before verdict, so as to bring the merits of the question between the parties fairly to trial; and if amendment is made after the jury is sworn, a jury shall be withdrawn; and in all cases where amendments are made, the adverse party shall have time allowed him, in the discretion of the court, to prepare to support his case upon the state of the proceedings so amended, and such costs shall be allowed the party against whom such amendment may be made as the court shall think just. Md. Act, 1785, ch. 80, sec. 4. 14. The Construction Given the Above Act. — In Strong v. District of Columbia, 3 Mac A., 503, the court, construing this section of the statute, said, " In our opinion the requirement in this section, that ' a juror shall be withdrawn,' where 'amendment is made after the jury is sworn,' is mandatory, and the party against whom the amend- ment is made has an absolute right to a continuance in the case re- ferred to, which the court is not at liberty to refuse. And we also think that the words in the next paragraph, ' in the discretion of the court,' refer only to theextent of the time to be allowed by the court, and that the requirement, that 'time shall be allowed' is just as mandatory in its character as that in the previous paragraph." Ac- cordingly it was held error for the court to refuse a continuance to the defendant upon the filing by the plaintiff of amended exceptions to the auditor's report. 8tjpii:em:e court, disteict of Columbia. 45 CHAPTEE XI. COMMENOEMBITO OF STTIT— PABTIES. 13. Lis Alibi pendens. 14. Foreign guardians and com- mittees of lunatics may sue, when. 15. Foreign executors and admin- istrators. Executors not qualifying to be omitted as parties. Married women. Foreign corporations. Suits by and, against limited partnerships. Defendants, who may not be. 21. Non-residents to be sued, how. 22. When one or more of several defendants cannot be served. 23. Joinder of defendants. 16. 17. 18. 19. 20. 1. Commencement of suit. 2. Deposit to secure costs. 3. Afftdavit of inability to make deposit. 4. Maryland Act of 1796-Security for costs. 5. Similar provision of Rule 86. 6. When leave of court required to commence actions. 7. Parties to actions — Who are not. 8. Fictitious names. 9. Plaintiffs, jpinder of. 10. The rule as to joinder of plaintiffs. 11. In Torts. 12. Objections io plaintiff's right to sue, how taken. 1. Commencement of Suit.— Every civil action shall be com- menced by filing in tlie clerk's office a libel of information, bill, petition, or declaration, as tlie case may be, and in case of appeal from a justice of the peace, justice's papers and a transcript of Ms docket shall be filed on making the deposit required by law, or without such deposit, upon an order vf the court, or of one of the justices ; whereupon the clerk shall immediately enter the case upon the proper docket, in the order of such filing, and number it accordingly. Eule 8. 2. Deposit to Secure Costs. — At the commencement of every suit in the Supreme Court of the District, the plaintiff ishall deposit at least eight dollars with the clerk, to be appropriated toward the cost of the suit ; and if the plaintiff recover against the defendant a judgment with costs, and the costs do not amount to eight dollars, the overplus shall be paid back to the plaintiff by the clerk. E. S. D. C, sec. 917. 3. Affidavit of Inability to Make Deposit.— Where the plaintiff •desires to commence the suit without making the deposit required by law, an affidavit of his inability is sometimes required. 46 PEACTICE AND PEOCEDUEE 01" THE 4. Maryland Act of 1796— Security for Costs.— In all cases where suits may hereafter be brought by any person or per- sons, non-residents of this State, or who may remove out of the State after the bringing of such suit or suits, the defendant or defendants against whom such, suit may be commenced, or his, her or their attorney, may lay a rule, at or before the trial court, on such plaintiff or plaintifis, or his, her or their attorney, to give security for all costs and charges that the said defendant or defendants may be put to in case such plaintiff or plaintiffs shall be non-suited, or judgment be given against them, and in case of non-compliance with such rule, judg- ment of non-suit shall be entered; provided nevertheless, that if any defendant or defendants shall lay a rule on any plaintiff or plaintiffs for security for costs at the trial court, that then and in such case the court granting said rule, may, at the instance or motion of the plaintiff or plaintiffs, by his, her, or their counsel, in their discretion continue said cause until the next term. Md. Act, 1796, ch. 43, sec. 12. 5. Similar Provision of Rule 86. — ^The defendant in a suit brought by a non-resident plaintiff, or by a plaintiff who becomes a non-resident after the suit is commenced, may lay a rule at or before the trial on the plaintiff or his attorney, to give security for all costs and charges that he may be put to in case the i>laintiff be non-suited, or judgment be given against him ; and in case of non-compliance with the rule, judgment of non-suit shall be entered. But if the rule be laid at the trial term the court may, in its discretion, on the plaintiff's motion, continue the case until the next term. Eule 86. Notes. — The granting' of a motion that a non-resident plaintiff be required to give security for costs, under the act of Maryland of 1796, ch. 43, sec, 12, is a matter of discretion for the court. "Wash, Law Eep., vol. VI, No. 10. When a motion that plaintiff give security for costs is improv- idently granted, the plaintiff's' remedy i3 to move to set it aside. If he does not do so the order remains in force, and when the case is called for trial, the plaintiff should on motion be non-suited, unless a continuance be granted. Anderson v. Smith, 2 Mackey, 1. 6. When Leave of Court Required to Commence an Action.— An action cannot be brought against a Receiver -without leave of court. Barton v. Barbour, 6 Wash. Law Rep., No. 25. Nor against a lunatic or his committee. Re Hellen, r; Paige, 199 ; Clark v. Dunham, 4 Denio,^ 262 ; Williams v, Cameron, 26 Barbour, 172, But see Robertson v.- STJPEEME COXJBT, DISTRICT OF COLUMBIA. 47 Lain, 19 Wend., 650. Such a judgment, however, is not void. Stem- berg v. Schoolcraft, 2 Barb., 153; and see Griswold v.jMiller, 15 Zd., 650; 2 Paige, 422. The committee of an habitual drunkard. Hall v. Taylor, 8 How. (N. Y.), 428; Pierson v. Warren, 14 Barb., 488. 7. Parties to Actions, Who are Not.— A person named as defendant, but not served with process, is not a party to the action. Robinson V. Frost, 14 Barb., 536; Steigeis v. Gross, 7 Mo. R., 261; Norton v. Hayes, 4 Denio, 245. An exception is said to be the case of a married woman. Foot v. Lathrop, 53 Barb., 183, A guardian ad litem is not a party. Brown v. Hull, 16 T. R., 673; Jarvis v. Boyd, 5 Porter (Ala), 388; Sinclair v. Sinclair, 1 NewPrao. Gas. (N. Y.), 179; Millink V. Collier, 14 Jurist, 612. 8. Fictitious Ifames. — Proceedings fraudulently taken in fictitious names are void. Sampeyreac v. United States, 7 Pet., 222. But an action may be brought by a party in the name by which he is known, although that is not his true name. Cooper v. Burr, 45 Barb., 10. 9. Plaintiffs, Joinder of. — Where a contract is joint and not sev- eral, all the obligees who are alive mus;t generally be joined as plain- tiff, even though the money to be recovered is not for the joint bene- fit of all the plaintiffs. Fani v. Tesson, 1 Black, 309. But if any of them be dead a suggestion of that fact is sufficient to show a right to sue in the name of the survivors. Id. The transferree of a contract, by which the defendant promises to receive certain stock from A., or order, and pay therefor, may sue thereon in his own name. Reed v. Ingraham, 3 DalL, 505. Action on a contract must be in the name of the principal when agency is disclosed. Oelricks V. Ford, 23 How., 49. If a bill be indorsed to the Treasurer of the United States, the United States may maintain suit thereon in its own name. Dugan v. U. S., 3 Wheat., 172. So in all suits where the United States is the real plaintiff, the proceedings should be in its name unless otherwise ordered by Congress. Benton v. Woolsey, 12 Pet., 27. If the interest and cause of action of promises under an agreement be severed, each may maintain an action against promisor. Beckwith v. Talbot, 95 U. S., 289. But where the contract is joint and not several, all the obligees who are alive must be joined. See Fani v. Tesson, supra. In action on a covenant in an agreement between the covenantor and S. and such other parties as he may as- sociate with him under ijhe name of "S. & Co.," and signed "S. & Co." all those who are partners at the time of the signing of the agreement may join. Seymour v. R.R. Co., 106 U.S., 320. Where de- fendant has made a contract with plaintiffs in their own name, though it also recites that they are acting for certain others, he cannot plead that they have no title to maintain the action. Stott v. Rutherford, 92 U. S., 107. 10. The Rule as to Joinder of PlaintilBfs. — The rule as to joinder in actions is, that where the legal interest is joint the parties cannot sever in their action, unless the interest is first severed, because if they might do so, the court could not know for which plaintiff to give 48 PEACTICB AND PEOCEDTJEE OP THE judgment. But where the reason ceases, the observance of the rale is dispensed with; and therefore, if one of two persons having a joint interest in a claim or demand receives his proportion, the other may sue alone for his share, as this amounts to a severance. Sawyer v. Steele, 4 Wash., 227. 11. In Torts. — The general owner of property has an action of tort against the wrong doer for injuries to it while in the hands of a bailee. N. J. Steam Nav. Co. v. Bank, 6 How., 344. 12. Objections to Plaintiff's Right to Sue, How Taken. — A defend- ant can object to a non-joinder of plaintiffs by demurrer, or under a plea of the general issue, or on motion to arrest the judgment. Fa- ni V. Tesson, 1 Black, 309; Wallis'v. Dilley, 7 Md., 337. If an action is brought by one who has no right to sue, the objection may be taken at the trial; but if the plaintiff becomes incapable while the suit is pending, the disability must be pleaded. Yeaton v. Lynn, 5 Pet., 224. One who has no meritorious defence to a suit cannot show that the nominal plaintiff is not the real party in interest, Linn v. Robertson, 6 Wall., 277. 13. Lis Alibi Pendens. — The pendency of a prior suit in a State court is not a bar to a suit in the Supreme Court of this District by the same plaintiff against the same defendant for the same cause of action. Stanton v. Embrey, 93 U. S., 548. 14. Foreign Guardians and Committees of Lunatics may Sue, When. — ^It shall be lawful for any person, appointed the committee of a lunatic, or the guardian of a minor or lunatic, by tlie proper authority in any State or Territory of the United States, to institute and prosecute to final judg- ment any suit or action in the courts of the District, as he might have done if his authority as such guardian or com- mittee had been derived from the proper tribunals of the District. B. S. D. C, sec. 951. 15. Foreign Executors and Administrators. — ^Be it enacted, etc. , That from and after the passage of this act it shall be lawful for any person or persons, to whom letters testamentary or of administration have been or hereafter may be granted by the proper authority, in any of the United States or the Territories thereof, to maintain any suit or action, and to prosecute and recover any claim in the District of Columbia, in the same manner as if the letters testamentary or of administration had been granted to such person or persons by the proper authority in the said District ; and the letters testamentary or of administration, or a copy thereof, certified under the seal of the authority grar.ting the same, shall be sufficient evidence to prove the granting, thereof, and that the person or STTtEEME COtJET, DISTRlCJT OE COLtTMBlA. 49 persons, as the case may be, hath or have administration : Provided, nevertheless, That the Supreme Court of the District of Columbia shall have the power, and such power is hereby- given to the said court, upon petition of any one interested, to require from such person or persons the security now required by law in like case from a resident administrator or executor. Act of February 28, 1887, section 1. Note.— Excepting the proviso, this is a re-enactment of section 11 of the act of June 24, 1812, which by inadvertance was omitted from the Revised Statutes. See. 16. Executors not Qnalifyitig to be Omitted as Parties.— It shall not be necessary, in any suit at law or equity brought by ■or against an executor, executrix or executors, to make a party of any executor or executrix named in the will, who shall not also be named in the letters testamentary, but the making him, her or them, a party or parties by mistake, shall not vitiate any proceeding for or against the proper party or parties. Md. Act, 1798, ch. 101, sub. ch. 3, sec. 9. 17. Married Women. — Any married woman can sue and be sued in her own name, in all matters having relation to her sole and separate property, in the same manner as if she were unmarried. See R. S. D. C, sec. 729. H ote. — For a summary of the cases determining the property and contract rights of married women in the District of Columbia, see Wash. Law Bep., vol. 15, p. 5. 18. Foreigrn Corporations. — An action can be brought in this court against a foreign corporation only when it has an established place of business in the district, and the process can be served upon the agent or other person by it employed to conduct such business as it is engaged in here. Dallas v. Railroad Co., 2 Mac A., 146. 19. Suits By and Against Limited Partnership. — In any ac- tion or suit brought on any contract or engagement of the part- nership, or to enforce any liability of the same, the general part- ners whose names shall be used in the firm or business shall be the only necessary defendants; and any judgment or decree re- covered against such defendant shall have the same leg-al effect and operation, and execution thereon shall be enforced and have like effect against the partnership assets, as if the judg- ment or decree had been recovered against the general part- ners. R. S. D. C, sec. 505. All suits respecting the business of the partnership shall be brought by and against the general partners only, subject 7 50 PHACTICE ASB PEOOEDTJEE OF THE to the provision of section five hundred and five, except in those cases in which provision is made in this chapter, that special partners shall be deemed general partners, and special partnerships general partnerships, in which cases all persons so becoming general partners may be joined with those origi- nally general partners in any suit brought against such part- nerships. E. S. D. C, sec. 513. 20. Defendants, Who May N»t be.— No action or suit shall be brought in the Supreme Court by original process against any person who shall not be an inhabitant of, or found within, the District, except as otherwise specially provided. E. S. D. C, sec, 767. See Publication, post. 21. Non-Residents to be Sued, How.— The Supreme Court has power to proceed in all common law and chancery causes instituted before it, in which either of the parties reside with- out the District, in the same way that non-residents were proceeded against in the general court or in the Supreme Court of Chancery in the State of Maryland on the third day of May, eighteen hundred and two. E. S. D. C, sec. 768. 22. When One or More of Several Defendants Cannot be Served. — ^When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabi- tants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may enter- tain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly 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 constitute matter of abatement or objection to the suit. E. S. U. S., sec. 737. Ifotes of Decisions. — Thus one of several executors may be sued. United States v. Backus, 6 McLean, 443. And so of partners, some of whom are not residents of the district. Imbush v. Farwell, 1 Black, 556. 23. Joinder of Defendants. — Where money is payable by two or more persons, jointly or jointly and severally, as by joint obligers, covenanters, makers, drawers, or endorsers, all or any of the parties by whom the money is payable may be included in the same declaration at the option of the plaintiff. Eule 9. SUPREME COTJET, BISTEICT OP COLUMBIA. 51 Note. — This rule is taken from section 827 of the Revised Statutes of the District, which is as follows : " Where money is payable by two or more persons jointly or severally, as by joint obligors, cove- nantors, makers, drawers, or endorsers, one action may be sustained, and judgment recovered against all or any of the parties by whom the money is payable, at the option of the plaintiff. But an action against one or some of the parties by whom the money is payable may, while the litigation therein continues, be pleaded in bar of an- other action against another or others of said parties." See Burdette V. Bartlett, 95 U. S., 697. Under this section the legal representative of the maker, and the legal representative of the endorser of a promissory note, may be joined in one action. Keyser v. Fendall, 5 Mackey, 47. Where two or more defendants are sued jointly, a count in the same declaration against one of them alone upon his several liability cannot be sustained. Brown v. Lee, 19 Fed. Rep., 630. CHAPTEE XII. THE ACTION OF EJECTMENT. 1. Fictions in ejectment abolished. 2. What declaration in to contain. 3. Landlord or other claimant may be admitted to defend. 4. The proof in ejectment. 5. Where plaintiff claims under a foreclosure sale. 6. Attorning to strangers. 7. Adverse possession — Declara- tions of defendant. 8. Outstanding title. 9. Mesne profits. 10. Measure of damages. 11. How estimated. 1. Fictions in Ejectment Abolished. — All fictions in the pleadings in the action of ejectment within the District are abolished ; and all actions for the recovery of real estate shall be commenced in the name of the real party in interest, and against the party claiming to own or be possessed thereof. E. S. D. C, sec. 809. Note. — This< act, though it abolishes all fictions in the action of ejectment, does not abolish that action, nor convert it into a writ of right, nor is there any other provision iri the act making any other alteration in the form of the action, than that it shall be commenced in the name of the real party in interest, and against the owner or the party in possession. Hogan v. Kurtz, 94 U. S., 773. 2. What Declaration in to Contain.— In ejectment the decla- 52 PRACTICE AND PEOCEDUEE OF THE ration shall be in the name of the real party in interest against the party claiming to own or be possessed of the land at the commencement of the suit, and the declaration shall specifically set forth the nature and extent of the estate claimed by the plaintiff in the premises. Under separate counts the plaintiff may unite in his declaration an action of ejectment and an ac- tion for mesne profits. Eule 10. 3. Landlord or other Claimant may be Admitted to Defend.— When the suit is against a tenant by a plaintiff claiming ad- versely to the tenant's landlord, the latter may be admitted to defend with or instead of the tenant ; and any other person not named in the declaration may be allowed to defend on filing an affidavit, showing that he is in possession of the land, either by himself or his tenant. Id. 4. The Proof in Ejectment.— In ejectment in this District the gen- eral rule is, that in making proof of record title the plaintilf must go back to the original source and show a grant either from the State of Maryland or the United States ; and if then there should be a hiatus in the chain of title, twenty years' possession in conformity with the deeds will raise a presumption of the missing links. But when both parties claim title from the same source, it is not necessary to go be- yond that source. Thus when the plaintiff 1 as failed to trace title from the State of Maryland or the United States, and the defendant, instead of resting upon that defect, goes on with his evidence, and in the course of it shows that he is claiming from the same source as the plaintiff, the defect in the plaintiff's proof will be cured. Anderson V. Smith, 2 Mackey, 275. 5. Where Plaintiff Claims under a Foreclosure ^ale. — In ejectment, when the plaintiff derives his title through a sale made by a trus- tee, by reason of default under a deed of trust given to secure the payment of a sum of money, it is not necessary that the plaintiff shall afSrmatively establish by parol evidence all the preliminaries show- ing the authority of the trustee to sell, such as the default, the regular advertisement of the sale of the property, etc. If the debt is due ac- cording to the terms of the deed of trust and the trustee conveys in professed execution of the trust and by way of foreclosure, he passes the legal title to the grantee for all the purposes of an ejectment suit. If he has acted in violation of his trust, the remedy against him is in equity. O'Day v. Vansant, 2 Mackey, 273. 6. Attorning to Strangers. — The attornment of a tenant to a stranger shall be void, and shall not affect the rights of the landlord, unless it be made with the consent, express or im- plied, of the landlord. E. S. D. C, sec. 683. Note. — Where the landlord lets the tenant into possession, and the SUPREME COURT, DISTRICT OF COLUMBIA. 53 tenant afterwards surrenders the property to a stranger, the latter on ejectment brought by the landlord, can only defend by showing title in himself. Housam v. Kunecke, 4 Mapkey, 297. 7. Adrerse Possession — Declaration of Defendant. — In an action of ejectment, the declarations of the defendant made by him at a period after twenty years from the time he claimed to have taken adverse possession, are to be submitted to the jury in respect of the nature of such possession. Dudley v. Brown, 3 Mac, 280. 8. Outstanding Title. — Where a defendant in ejectment sets up an outstanding mortgage belonging to a stranger to the record, in which he does not claim to be interested, it must be a present and subsisting mortgage; otherwise it will be presumed to have be- come extinguished. King v. Parkhill, 1 Mac A., 28. And where the mortgage was executed and recorded more than forty years before the commencement of the action the court can so rule without the aid of a jury. Id. But where an assignment under the insolvent law in force in this District in 1814 vested the property of the insolvent in the trustee, the court will not presume, even after the lapse of fifty years, that his debts were paid without a record to the property as- signed, or that a reconveyance of this property was ever made to the insolvent or to his heirs at laws. Such an assignment is an outstand- ing title, and a good bar to an action of ejectment brought by the heirs at law of the insolvent. Varden v. Todd, 1 Mac A,, 602. Where the trustee has no right of possession save in behalf of the cestui que trust, and thi latter conveys his entire interest to another pending an ejectment suit, brought in the name of the trustee In be- half of the cestui que trust, and includes in the conveyance his inter- est in the mesne profits claimed of the defendant in the pending suit, the trustee has no longer a right of action. Mackall v, Bichards, 1 Mackey, 444. 9. Mesne Profits. — In an action for trespass for mesne profits, the statute of limitations bars the plaintiff from recovering damages beyond the rental value of the premises for a longer period than three years prior to the commencement of the suit. Meloy v. Johnston, 2 Mac A., 202. And in such action the plaintiff is not entitled to recover counsel fees paid by him for prosecuting the ejectment suit. He is entitled to taxable costs only. Id. The plaintiff can recover mesne profits, in the nature of damages, ■only from the time of the demise laid in the declaration in eject- ment, not having proved other title thereto. Hylton v. Brown, 2 Wash., 165. When the term of the plaintiff in ejectment expires before the trial, although possession of the property cannot be recovered, yet he may proceed for damages for the trespass, and for the mesne profits. Brown v. Galloway, Pet. C. Ct., 291. 10. Measure of Damages. — The rule for the measure of damages is the fair rental value of the property. If this cannot be ascer- 64 PRACTICE AND PEOCEDUEE OP THE tained, then the fair actual value of the property while in possession of the defendant, if prudently and judiciously managed. Campbell V. Brown, 2 "Woods, 349, and see 4 Woods, 213. In an action of trespass for mesne profits, the statute of limitations bars the plaintiff from recovering damages beyond the rental, value of the premises for a period longer than three years prior to the com- mencement of the suit. Meloy v. Johnston, 2 Mac A., 202. In such action the plaintiff is not entitled to recover counsel fees paid by him in prosecuting the ejectment suit. He is entitled to taxable costs only. Id. 11, How Estimated. — The account for rents and profits should be taken and stated as follows : The rent or income should be ascer- tained for each year separately, and upon the amount so ascer- tained for each year, interest should be computed down to the time when the account closes, so that there may be interest upon each yearly sum falUng due, but no interest on interest, Gaines v. New Orleans, 4 Woods, 213. See 15 Wall., 634. The amount expended by the defendant while in the occupation of the premises for necessary repairs and legal taxes ought to be deducted from the gross rents or the value thereof, and the balance is the damage which the plaintiff has sustained, and which he is entitled to recover. Semple v. Bank, 5 Sawyer, 394, and see Stork V. Starr, 1 Sawyer, 15. CHAPTER XIII. PORCIBr.B ENTRY OR DETAINER, 1. The complaint and summons. 2. How summons shall be served. 3- Proceedings when defendant pleads title, 4, Same subject — provisions of rule twelve. 5, Appeals where plea of title has not been entered, how" prosecuted. 6. Undertaking with surety t<* be given. 7. Trialof the appeal, assessment of damages. 8-. Notes of Decisions, I. The Complaint and Summons.— When forcible entry is made, or when a peaceabL; entry is made and the possession unlawfully held by force,, or when possession is held without SXJPBEME COURT, DISTRICT OF COLUMBIA. 55 right, after the estate is determined by the terms of the lease by its own limitation, or by notice to quit, or otherwise, on written complaint on oath of the person entitled to the prem- ises, to a justice of the peace, charging such forcible entry or detainer of real estate, a summons may be issued to a proper officer, commanding the person complained of to appear and show cause why judgment should not be rendered against him. E. S. D. C, sec. 684. 2. How Summons Shall be Served. — The summons shall be served like other writs of summons at least seven days before the appearance of the party complained of. E. S. D. C, sec. 685. Note. — The next section of this statute provides for the proceed- ings before the justice of the peace, in case no plea of title is entered, in which case it is declared that " If it appears by default or upon trial that the complainant is entitled to the possession of the prem- ises, he shall have judgment and execution for the possession and costs ; if the complainant becomes non-suit, and faUs to prove his right to possession, the defendant shall have judgment and execution for his costs." On the other hand, if a plea of title to the premises be entered by the defendant, the justice is directed to certify the proceedings to this court in the manner and under the conditions provided for in the succeeding section, which is as follows : 3. Proceedings When Defendant Pleads Title. — If, upon trial, defendant pleads title to the premises in himself, or in another person under whom he claims the premises, he shall recognize in a reasonable sum to the complainant, to be fixed by said justice, with sufficient sureties, conditioned to pay all interven- ing damages and costs and reasonable intervening rent for the premises; and the complainant shall in like manner recognize to the defendant conditioned to enter the suit at the next term of the Supreme Court of the District, and pay all costs adjudged against him ; and thereupon the proceedings shall be certified to said court by the justice. If either party neglects so to rec- ognize, judgment shall be rendered against him as on non-suit or default, and execution shall issue accordingly. E. S. D. C, sec. 687. 4. Same Subject— Provisions of Rule Twelve. — In every pro- ceeding instituted before a justice of the peace, under section 684, chapter 19, of the Eevised Statutes of the United States, re- lating to the District of Columbia, if, upon the trial, the de- fendant, to avail himself of the provisions of section 687 of the said Eevised Statute^, wishes to plead title to the premises in him- 56 ^ PBACTICE AND PEOCEDTJEE OP THE self, or in anotlier person under whom he claims the premises, the justice of the peace shall require the plea to be in writing, and to be sworn to by the defendant. The plea shall be in the following or equivalent form: Before , a justice of the peace in and for the District of Columbia, the day of , 18 — , A. B., Plaintiff, V. [ No. C. D., "Defendant. Now comes the defendant in his proper person, and, denying that he held the premises as in the written complaint of plaintiff alleged, says that the title to the said premises is in himself, [or in ■ -, under whom defendant claims the said premises] ; and that the said title hereby claimed is not derived from any letting of the prem- ises by the plaintiff, [or by those under whom the plaintiff claims, J and is not derived from any forcible entry or forcible detainer. 0- D., Defendant Sworn and sabscribed before me, the day of — — , 18 — . — — , J- P- Any plea of title not made as above required the justice shall treat as a nullity. Unless the plea of title be made as by this rule required, the proceedings before the justice shall not be suspended; but the justice shall go on with the trial and render judgment in the matter, as the right of the case may require. Upon a plea of title being made by the defendant in con- formity with this rule, and iipon the proceedings being certi- fied to this court by the justice, the cause shall be docketed by the clerk, and placed on the trial calendar in the same man- ner, and subject to the same rules, as appeals from a justice of the peace, except that either party may have errors of law in the rulings or instructions of the justice presiding reviewed in the general term as in other cases. The plaintiff shall, during the first five days of the term of the Circuit Court occurring next after the pleading of title be- fore the justice, file in said court a declaration making a de- mand for the possession of the premises, and with a descrip- tion thereof, as in ejectment, and serve the defendant with a copy thereof, and the case shall be deemed then at issue. In any such declaration a general demand shall be sufficient to warrant an assessment of damages and intervening rent, as provided in section 690 of said Revised Statutes. Eule 12. Note. — The foregoing rule relates, as has been seen, only to cases where a plea of title is entered by the defendant; where, however. SUPREME COURT, DISTRICT OF COLUMBIA. 57 he does not plead title, but goes to trial on some other issue or issues, and the judgment is against him, he may take the case to the Supreme Court by appeal, as provided by the succeeding sections of the act, which are as follows : 5. Appeals where Plea of Title has not been Entered — How Prosecuted. — Either party against whom judgment is rendered by a justice of tlie peace, may appeal from such judgment to the Supreme Court of the District, in the same manner as appeals are taken to the court in other cases, and such appeals shall be tried in the same manner, and further proceedings had therein, according to the practice in appeals in other cases. R. S. D. C. , sec. 688. 6. Undertaking with Surety to be Given. — In case of an appeal by a defendant, he shall, in addition to the bail re- quired in other cases, recognize in a reasonable sum to the complainant, to be fixed by the justice, with sufficient sure- ties, conditioned to pay all intervening damages to the leased property resulting from waste and intervening rent for the premises. R. S. D. C, sec. 689. Note. — This court will compel the justice of the peace by manda- mus to issue a writ of restitution in execution of the judgment which he hais rendered, where no undertaking has been given by the defendant within the time prescribed by the rules of court in case of appeal. Kirk v. Cole, 3 Mac A., 71. And such an appeal, when brought here, will be dismissed. The magistrate has no discretion which will authorize him to allow an appeal after the' expiration of the time required by rules of court, within which an undertaking may be given. Id. 7. Trial of the Appeal — Assessment of Damages. — On the trial of the suit in the Supreme Court of the District, if the jury find for complainant, they shall assess the damages and intervening rent, and in case of default the same shall be assessed by the court. E. S. D. C, sec. 690. Notes of Decisions. — A proceeding under the landlord and tenant act is not an action of ejectment, and the plaintiff may recover possession, although only showing an equitable title. Fiske v. Bigelow, 2 Mac A., 427. "In several of the States it has been decided that in order to authorize the institution of summary proceedings to recover the possession of land, the relation of landlord and tenant must be shown to have existed between the parties by agreement. The statutes, however, under which these decisions have been made, differ from the one in force in this District. They do not undertake to create a new kind of tenancy, and a remedy to enforce it. They generally provide for cases of forcible and unlawful entries upon land, and for a wrongful holding over by a tenant after the expiration of 8 58 PRACTICE AND PEOCBDXJEB OF THE the time for ■which the premises have been leased to him. The language used in the present Act of Congress is more comprehensive, for it was evidently their design, in addition to these cases, to de- clare that where a person is in possession of land belonging to another without lease or agreement, he is to be deemed a tenant by sufferance, and that upon his being served with a notice of thirty days to quit, he is liable in the summary process furnished 'by the second section of the act. We hold, therefore, that these proceed- ings may be maintained in this District, against a person in posses- sion of real estate, although the conventional relation of landlord and tenant does not exist between] the parties." Luohs v. Jones, 1 Mac A., 348. And see Spalding v. Hall, xi Wash. Law Rep., 658. On a certification to the General Term of a motion to quash a writ of certiorari, in a landlord and tenant proceeding, the court has no power tq require the defendant to enter into an undertaking with surety to pay the intervening rent and damages occasioned by the delay in hearing the motion. Insurance Co. v. llosmer, 1 Mackey, 297. An appeal lies to the General Term from an order of the circuit court, striking out a plea of title in a landlord and tenant case, and remanding the same to the justice of the peace for trial on the merits. Waggaman v. Randall, 2 Mackey, 160. When a defective plea of title is stricken out by the circuit court and the cause re- manded to the justice of the peace, the defendant may then file a new or amended plea of title. Id. CHAPTEE XIV. PROCESS— ATTACHMENT BEFORE JUDGMENT. 1. Process, the summons, form of. 2. How tested. 3. To bear teste from day of issue. 4. Attachment before judgment. Provisions of Rule 15. 5. Provisions of the statute. 6. When the writ may issue. 7. The supporting affidavit. 8. How the writ may be quashed. 9. Discharge of attached prop- erty. 10. Sale of attached property. 11. Final judgment. 12. Cases in which attachment will not lie. 13. Appeal. 1. Process, The Snminons, Form of. — The writ for compelling tlie defendant's appearance shall be a summons in the follow- ing form: SUPREME COURT, DISTRICT OF COLUMBIA. 59 In the Supreme CorRT of the District op Columbia, the DAY OF , 18—. A. B., Plaintiff, ■) V- [ At Law. No. — . C. D., Defendant. } The President of the United States to the Defendant, Greeting: You are hereby commanded to appear in this court on the first day of its special term occurring twenty days after service of this writ on you, to answer the plaintiff's suit, and show why he should not have judgment against you for the cause of action stated in his declaration. Witness, , Chief Justice. , Clerk. Said writ shall be returnable into the clerk's oiHce on the next rule-day occurring twenty days from the time of the issu- ing thereof. Eule 16. 2. How Tested. — Writs and process issued out of the Su- preme Court may be tested in the name of any justice of the court. E. S. D. C, 781. 3. To Bear Teste from Day of Issue. — All process issued from the courts of the United States shall bear teste from the day of such issue. E. S. U. S., sec. 912. For Service of Process, see Rule 19 and notes thereto. 4. Attachment Before Judgment. — Provisions of Rule 15. — Besides this summons, a writ of attachment and garnishment may be issued — Whenever the plaintiff, his agent or attorney, shall file in the clerk's office, whether at the commencement or during the pendency of the suit, an affidavit (supported by the testimony of one or more witnesses) showing the grounds upon which he bases his action*, and setting forth that the plaintiff has a just right to recover against the defendant what he claims in the declaration; and also stating either — 1. That the defendant is a non-resident of the District ; or, 2. That the defendant evades the service of ordinary process by concealing himself, or by withdrawing from the District temporarily; or, 3. That he has removed, or is about to remove, some of his property from the District, so as to defeat just demands against him. And shall also file his (the plaintiff's) undertaking, with sufficient surety or sureties, to be approved by the clerk, to * In the Statute (R. S. D. C, sec 782) the word is "affidavit." 60 PEACTICE AND PEOCEDURE OF THE make good all costs and damages which the defendant may- sustain by reason of the wrongful suing out of the attachment. (14 Stats., 54; E. S. D. C, sec. 782.) The form of the plaintiff's undertaking may be as follows: In the Supreme Couet op the Distkict op Columbia, the — - DAY op , 18 — . A. B., Plaintiff, ) V. y At Law, No. — . CD., Defendant. ) The plaintiff and , his surety, hereby undertake, for them- selves and each of them, their and each of their heirs, executors, and administrators, to make good all costs and damages which the de- fendant may sustain by reason of the wrongful suing out of the at- tachment this day issued against said defendant. When the said affidavits and undertaking have been filed, the clerk shall issue the writ of attachment and garnishment as follows: In the Supbeme op the District op Columbia, the day OP , 18—. ;.} A. B., Plaintiff, V. \- At Law. No. C. D., Defendant. The President of the United States to the Marshal for said District, Greeting : You are hereby commanded to attach, seize, and take into your custody the defendant's lands, goods, chattels, and credits, which shall be found in this District, to the value of dollars and cents, the amount of the plaintiff's demand against the defendant, as shown by his affidavit, duly supported and filed, and claimed in his declaration ; and the further sum of dollars and cents, for the costs and charges which may accrue in the premises ; and the same, so attached, safely keep, subject to the orders of the court, un- less the defendant deliver to you, to be filed herewith, his undertak- ing, with sufficient surety or sureties, to satisfy and pay the final judgment of the court against him. And, should you attach the de- fendant's goods, chattels, or credits in the possession of any other person, you shall warn him to appear before said court on the first day of its special term occurring twenty days after service of this writ on him, to show cause why said goods, chattels, and credits so at- tached should not be condemned and execution thereof made. Witness , Chief Justice. . Clerk. If the defendant shall replevy [wish to discharge] the prop- DISTRICT OF COLUMBIA. 61 erty from tlie custody of the marshal under section 784, he shall file an undertaking as follows: In the Supreme Court of the District of Columbia, the DAY OF , 18—. A. B., Plaintiff, ] V. [^ At Law. No. — . 0. D., Defendant.) The defendant and , Ms surety, hereby undertake for themselves and each of them, their and each of their heirs, executors and administrators, to satis:fy and pay the final judgment of the court against them in consideration of the discharge from the custody of the marshal of the thing seized by him upon the attachment sued out against said defendant on the day of , 18 — , in the above- entitled cause. In all cases of attachment the plaintiff may exhibit inter- rogatories in writing to the garnishee concerning the property of the defendant in his possession or charge, or by him due or owing at the time of serving such writ of attachment, or at any other time, and the garnishee shall file his answer under oath to such interrogatories within ten days from the date of the ser- vice of such interrogatories upon him. And if such garnishee shall neglect or refuse to so do, then, at the time of rendering judgment against the defendant when he has been summoned, or after due notice by publication when he has been returned not to be found, the court shall adjudge that he has in his possession property of the defend- ant to an amount sufi&cient to pay the debt, interests, and damages of the plaintiff, and costs ; and execution shall issue as in other cases of condemnation of property or credits in the hands of garnishees, provided a copy of this rule be served with such interrogatories. And if it shall appear from the garnishee's answer to in- terrogatories, or by verdict of a jury, that he has in his possession goods or credits of the defendant, then, at the time of rendering judgment against the defendant, or after due publication against him, as aforesaid, judgment may be ren- dered condemning said property or credits, and execution may issue thereon as in other cases of condemnation. The plaintiff may exhibit the following INTEERO&ATORIES TO BE ANSWERED BY THE GARNISHEE. 1. Whether he is or was at the time of the garnishment indebted to the defendant? If so, how, and in what amount? 2. Whether he has now, or had at the time of serving the 62 PRACTICE AND PEOCBDXTRE OP THE notice, or has had at any time between the date of service and the time of answering, any goods, chattels or credits of the defendant ? And such other interrogatories as the plaintiff may think proper to propound within the limits of this rUjle. Rule 15. 5. ProTisions of the Statute. — The following is the full text of those sections of the Revised Statutes of the District upon which the fore- going rule is based : . 6. When the Writ May Issue. — Writs of attachment and garnishment shall be issued by the clerk without any authority or warrant from any judge or justice, whenever the plaintiff, his agent or attorney, shall file in the clerk's office, whether at the commencement or during the pendency of the suit, an affidavit, supported by the testimony of one or more witnesses, showing the grounds upon which he bases his affidavit, and also setting forth that the plaintiff has a just riglit to recover against the defendant what he claims in the declaration, and also stating either, first, that the defendant is a non-resident of the District ; or, second, that the defendant evades the service of ordinary process by concealing himself or by with- drawing from the District temporarily ; or, third, that he has removed or is about to remove some of his property from the District, so as to defeat just demands against him ; and shall also file his (the plaintiff's) undertaking, with sufficient surety, to be approved by the clerk, to make good all costs and damages which the defendant may sustain by reason of the wrongful suing out of the attachment. E. S. D. C, sec. 782, 7. The Supporting AfBdaTits.— The supporting aflldavit of the wit- ness for an attachment which states that a sum is justly due and owing the plaintiff, as "affiant verily believes," is not sufficient under section 782, R. S. D. O. The witness must testify to the truth of the grounds upon which the plaintiff bases his affidavit. Newman V. Hexter, Mac A. & Mack., 88 ; and see this case for a discussion as to the character of the affidavits required to support an attach- ment under the provisions of the statute. 8. How the Writ May be Quashed.— If the defendant, his agent or attorney, shall file an affidavit traversing the plain- tiff's affidavit, the court shall determine whether the facts set forth in the plaintiff's affidavit are true, and whether there was just ground for issuing the writ of attachment ; and if the facts do not sustain the affidavit, the court shall quash the writ of attachment or garnishment ; and this issue may be STJPEEME COURT, DISTRICT OF COLUMBIA. 63 tried by a judge at chambers on three day's notice. E. S. D. C, sec. 783. 9. Discharge of Attached Property.— The thing attached shall not be discharged from the custody of the officer seizing it until the defendant shall deliver, either to the officer or to the clerk, to be filed in the cause, his undertaking, Avith sufficient surety, to satisfy and pay the final judgment of the coart against him. E. S. D. C, sec. 784. (See form, p. 61.) Note.— Where property is attached on the ground that the defend- ant evades the service of ordinary process, judgment of condemna- tion should be rendered, although it appear that service of process yas afterwards obtained on the same day, unless the defendant obtain an order quashing the writ, or supersede it- with surety as provided by the statute. Giddings v. Squier, 4 Mackey, 49. 10. Sale of Attached Property.— If the defendant fail to execute such undertaking, the court may sell the thing attached whenever it is satisfied that it is in the interest of the parties it should be sold before final judgment. E. S. D, C, sec. 785. 11. Final Judgment. — In case the defendant be found liable to the plaintiff's claim, in whole or in part, the final judg- ment shall be that the plaintiff recover against the defendant and his sureties. E. S. D. C, sec. 786. (See Eules 70-72.) For process by publication in attachment proceedings, see Rule 20 and notes. 12. Cases in Which Attachment Will Not Lie. — Process of attach- ment will not lie to garnishee the salaries due from the District government to its officers ; and this on the ground of public con- venience and necessity. Derr v. Luby, 1 Mac A., 187 ; Brown v. Fin- ley, 3 Mac A., 77 ; Pettier & Stymus Mfg. Co. v. Taylor, 3 Mac A., 4. Real property in the possession of one who has in good faith pur- chased and paid for it but has failed to record the conveyance, is not liable to attachment in a suit by a creditor against the absconding vendor, when it appears that as between the vendor and vendee the entire equity in the property has passed to the latter ; the statute regulating attachment proceedings permits the plaintiff to attach only the property of the defendant, not the property of some one else. The United States v. Howgate, 2 Mackey, 408. 13. Appeal. — An order quashing an attachment is appealable to the General Term. United States v. Ottman, 3 Mac A., 73. The United States, when a plaintiff in a civil action, is entitled to the writ of attachment, and is relieved by section 1001, R. S., from giving the usual undertaking in such cases. Id. 64 PEAOTICE AND PEOCEDUEE OF THE CHAPTEE XV. ATTACHMENT FOR RENT. 1. Remedy by distress abolished. 2. Lien on tenants' chattels sub- stituted therefor. 3. How lien to be enforced. 4. Attachment, how sued out— Af- fidavit— Form of writ. Rule 16. 5. In what cases landlord may have the writ. 6. Miscellaneous decisions. 1. Remedy by Distress Abolished.— The power claimed and exercised as of common riglit by every landlord, of seizing, by Ms own authority, the personal chattels of his tenant for rent arrear, is abolished. E. S. D. C, sec. 677. 2. Lien on Tenants' Chattels Substituted Therefor.— The land- lord shall have a tacit lien upon such of the tenant's personal chattels, on the premises, as are subject to execution for debt, to commence with the tenancy and continue for three months after the rent is due, and until the termination of any action for such rent brought within the said three months. E. S. D. C, sec. 678. 3. How Lien to be Enforced. — This lien may be enforced: First. By attachment, to be issued upon affidavit that the rent is due and unpaid; or, if not due, that the defendant is about to remove or sell all or some part of said chattels; or. Second. By judgment against the tenant and execution, to be levied on said chattels or any of them, in whosoever hands they may be found; or. Third. By action against any purchaser of any of said chat- tels, with notice of the lien, in which action the plaintiff may have judgment for the value of the chattels purchased by the defendant, but not exceeding the rent, arrear, and damages. E. S. D. C, sec. 679. 4. Attachment, How Sued Out— Aflldavit— Form of Writ- Provisions of Rule 16. — In case a landlord files his declaration to recover rent, he may sue out an attachment at the time of filing said declaration, or afterwards, pending the suit, to en- force his lien upon such of his tenant's personal chattels upon the premises as are subj ect to execution for debt. But the clerk shall not issue this attachment unless the plaintiff file in his office, as a step in his action, an affidavit to the effect — STJPEEME COUET, DISTRICT OF COLUMBIA. 65 That the rent claimed is due and unpaid ; or, if not due, that the defendant is about to remove or sell all or some of said chattels. In cases where the plaintiff is absent or is a corporation, such affidavit may be made by the agent or attorney of the plaintiff. Thereupon the clerk shall issue a writ of attachment, as- follows : In the Supbemb Coukt of the District of Columbia, the DAY of , 18—. A. B., Plaintiff, '\ V. [■ At Law. No. — . C. D., Defendant. ) The President of the United States to the Marshal for said District, Greeting : You are hereby commanded to attach, seize, and take into your custody such of the defendant's personal chattels as are subject to the plaintiff's lien for rent of the premises held by the defendant as plain- tiff's tenant, to the value of dollars and cents,- the amount of the plaintiff's demand against the defendant for said rent, as shown by the plaintiff's affidavit in the cause, and as claimed in his declaration. And should you attach said chattels in the hands of any other person, warn him to appear before said court, at its first special term after service of this writ on him, to show cause why said chattels, so attached, should not be condemned towards satis- faction of the plaintiff's demand. Witness, , Chief Justice. , Clerk. 5. In what Cases Landlords may liaye the Writ. — In the case of "Wallach v. Ohesley, 2 Mackey, 209, the Court, through Mr. Justice Cox, thus interprets the act of Congress abolishing distress and giv- ing this rem.edy by attachment : "The act provides in the first section for the abolition of the com- mon law right of the landlord to destrain for rent. That right, as we know, was the right to seize the goods of either the tenant or a stran- ger upon the very land itself. It was a right incident to a reversion. It related to the land. It involved no power of seizing the tenant's chattels anywhere but on the land. There was a statutory extension of this right in favor of landlords, to +he effect, that if the goods had been clandestinely removed by the tenant, they might be pursued within a period of thirty days by the landlord. But with that excep- tion, the power of the landlord was confined to the chattels of the ten- ant on the land. That right is abolished by the first section of the act of Congress in question. As a substitute for this right so abol- ished, it is provided that the landlord shall have a tacit lien on such of the tenant's chattels on the premises as are subject to execution for debt, to commence with the tenancy and continue for a limited pe- riod. It then goes on to provide how this lien shall be enforced. It 9 66 PEACTICE AND PEOCBDUEE OF THE does not give the landlord a lien without any means of enforcement. It provides for several conditions of things : first, when the rent is due ; and, next, when the rent is not yet matured. When the rent is due, the lien may be enforced by an attachment issued upon an afii- davit that the rent is due and unpaid. There is no trouble about that. But it will occur to anybody, that the tenant may, just before the maturity of his rent, and in order to avoid compulsory payment of it, remove his chattels or change the property in them. To meet that contingency, it is further provided that, even before the rent is due, if the landlord will make affidavit that his tenant is about to remove or sell all or some part of his chattels, the attachment may issue, and those are the only two cases provided for in the statute, in which an attachment is the remedy intended. "It is provided further, as we all know, that a lien may also be en- forced by the landlord by obtaining a judgment against the tenant, and issuing an execution which can be levied on the goods in who- soever hands they may be found ; and the landlord is also authorized to sue the purchaser, and get judgment against him to the extent of the rent in arrear. "Now, the language that the tenant is 'about to remove,' clearly applies to a case where the goods have not yet been removed from the premises, and is inapplicable to a case where the goods have been removed from the premises. It is contended for the tenant here that the words 'or sell,' are limited to the same condition of things, and, we think correctly. So that the statute should be interpreted as if it read 'that the landlord shall have a tacit lien on the tenant's chat- tels on the premises, and when his debt is not yet due, it may be en- forced by attachment on affidavit that the defendant is about to remove or sell all or some part of the chattels on the said premises. But after they have been removed from the premises, the remedy is that provided in the second clause of section 679, that is, by judg- ment against the tenant, and execution to be levied upon such chat- tels, or any of them, in whosoever hands they may be found. And there seems to be sufficient reason for the distinction. As we have already stated, the common law right of distraining was confined to the chattels upon the premises. It was an exceptional, and a very oppressive one, in many cases ; and the remedy by attachment given by this statute as a substitute for that, is itself an extraordinary and exceptional right, varying from the course of the common law, and there is reason enough for heading that that remedy, which is a judicial seizure, as the other was a private seizure, of the debtor's property, before any judgment, should be confined to the condition of things in which the relation of landlord to the tenant, and of both to the property subject to the right, was unchanged. But if the property has been once removed from the premises and may have gotten into other hands, there ought to be a judicial determination of the cause of action before this extreme remedy can be resorted to, of a seizure before any hearing upon the merits of the claim. "We think, therefore^ that after the particular chattels have bqen StTPEEMB COTJET, DISTRICT OP COLUMBIA. 67 removed from the premises, the landlord whose debt is not yet due, has no right to an attachment for recovery, but must resort to a judgment an d execution." 6. Miscellaneous Decisions. — A landlord can claim ,the lien con- ferred by the statute for rent due and in arrear, and also for any in- stalment of rent, although the tenant has occupied the premises only for a part of the time during which said instalment is accruing. Thus where the lease is for a period of several years, and the rent is payable monthly, and the tenant is about to remove his goods and chattels from the leased premises, the landlord may issue his attach- ment for rent in arrear, and for rent which will be due and payable for the month during a part of which the tenant occupied the prem- ises. Joyce V. Wilkening, 1 Mac A., 567. The lien attaches at the commencement of the tenancy to the ten- ant's chattels then on the premises, and continues to attach to them into whosoever hands the chattels may come during the time al- lowed by the act for instituting proceedings, unless the lien is dis- placed by the removal of the chattels, or by the sale of them by the tenant in the ordinary course of mercantile transactions. It is not ' displaced by a sale of the stock in mass, while they remain in mass, to a person who knew that the premises weife leased, and continues to occupy them, selling in the ordinary way the goods. Fowler v. Eapley, 16 Wall., 328, and see Webb v. Sharp, 13 Wall., 14. The landlord's lien for his rent is upon the goods of the tenant, and not upon the goods of other persons which are upon the demised premises. Johnson v. Douglass, 2 Mackey, 36. Where the tenant's goods are encumbered by a chattel trust prior to being placed upon the demised premises, the landlord's lien fastens upon the goods subject to the trustee's paramount right of property and possession. Id. But wheiwthis is satisfied or displaced it is good against all subsequent encumbrances. Heatman v. Sharp, 3 Mac A., 90. But see Gibson v. Gautier, 1st Mackey, 35, where it was held that although a fraudulent sale of goods be set aside, they are neverthe- less liable to the landlord's lien for rent due by the fraudulent vendee to the landlord, upon whose premises they have been kept, and this notwithstanding there are judgment creditors of the vendor whose executions issued before the landlord's writ of attachment. The landlord's lien for rent, if it exists at the time he commences proceedings in attachment, continues until the termination of those proceedings, and his lien is not destroyed by the fact that at the time of issuing his attachment the goods were in the custody of the mar- shal, under a levy made at the instance of an execution debtor. Gib- son V. Gautier, 1 Mackey, 35. Where the goods and chattels of the tenant have been sold by vir- tue of an assignment, the landlord's claim upon the fund, to the ex- tent of t\-ree month's rent, has priority over the claims of simple con- tract creditors. Fox v. Davidson, 1 Mackey, 102. Where an attachment is issued for rent, part of which is due and 68 PRACTICE AND PROCEDTTEE OW THE part not due, and there is no averment as required by the statute, in the aflSdavit upon which the attachment was issued, that the tenant was about to remove the goods, etc., the attachment will be void as to the rent not due, but will be allowed to stand as to the rest. Gross v. Goldsmith, 4 Mackey, 126. A landlord may lose his lien by conduct which misleads bona fide purchasers for value. White v. Freedman's Bank, 1 Mac A., 509, and see this case and Beal v. White, 4 Wash. Law Bep., No. 15, for further rulings on this subject. As to what property is exempt from attachment, see Exemptions, note to rule 91, post. Justices of the peace have jurisdiction to issue an attachment for rent under the provisions of section 679, B. S. D. C. Gross v. Gold- smith, 4 Mackey, 126. CHAPTEE XVI. THE ACTION OF REPLEVIN. 1. Form of the declaration. 2. Affidavit to be filed with declaration, averments ofc 3. Undertaking to be given, form of. 4. Form of writ of replevin. 5. Officer to retain the property three days in order, etc. 6. Proceedings in case of eloign- ment. 7. When goods are seized, but defendant cannot be found. 8. After publication, proceedings in default of appearance. 9. Where defendant appears, plea. 10. Damages, how ascertained. 11. Where judgment is for defend- ant. 12. Damages when things are eloigned. K. Judgment in such case. 14. Property taken under revenue laws irrepleviable. 15. The Maryland Act of 1785, ch. 80, sec. 14. 16. The construction given the act of 1785. 17. Writ of capias in withernam. 1. Form of the Declaration. — The declaration in replevin shall be in the following or equivalent form : "The plaintiff sues the defendant for (wrongly taking and detaining) (unjust- ly detaining) his, said plaintiff's, goods and chattels, to wit: (describe them) of the value of f— . And the plaintiff claims that the same be taken from the defendant and delivered to him ; or, if they are eloigned, 'that he may have judgment of their said value, and all mesne profits and damages, which he estimates at $— , besides cost." E. S. D. C, sec. 814. STIPEEME COUET, DISTEICT OF COLUMBIA. 69 2. Affidavit to be Filed with Declaration, Averments of.— At tlie time of filing his declaration in replevin, tlie plaintiff, of Mmself, or by Ms agent or attorney, must file an afBdavit, made before the clerk, stating : 1. That according to afEiant's information and belief the plaintiff is entitled to recover possession of the chattels pro- posed to be replevied, being the same described in the de- claration. 2. That the defendant has seized and detains, or detains the same. 3. That said chattels were not subject to, such seizure or detention, and were not taken upon any writ of replevin. 3. Undertaking to be Given, Form of. — The plaintiff shall also, at the same time, enter into an undertaking with surety approved by the clerk in the following form : In the Supbemb Ooubt op the District op Coltjmbia, the — — DAY OF , 18 — . A. B., Plaintiff. I V. [-At Law. No. — . C. D., Defendant. J The plaintiff, and , his surety, appear, and, submitting to the jurisdiction of the court, hereby undertake for themselves, and each of their heirs, executors and administrators, to abide by and perform the judgment of the court in the premises, which judg- ment may be rendered against all the parties whose names are hereto . afllxed. 4. Form of Writ of Replevin. — Upon filing said undertak- ing the clerk shall issue a writ of replevin, as follows : In the Supreme Court of the District of Columbia, the DAY of , 18—. A. B., Plaintiff. ■) V. [■ At Law, No — ^. 0. D., Defendant J The President of the United States to the Marshal of said District, Greeting : The plaintiff in this action having entered into an undertaking, with surety as required by law, you are hereby commanded to take the goods and chattels claimed by the plaintiff, to wit : [describe thern] from the defendant, and deliver the same to the plaintiff. And warn the defendant to appear in said court, at the first special term thereof occurring twenty days after service of this writ, and answer said action, and that if he make default in so doing, the plaintiff may proceed to judgment and execution. Witness , Chief Justice of said court. 70 PEAOTIOE AND PROCEDUEE OF THE 5. Officer to Retain the Property Three Days before Deliv- ery to Plaintiff, in Order, etc. — Property taken by the marshal or coroner under a writ of replevin shall be retained by him for three days before delivering the same to the plaintiff, in order that the defendant, or other person claiming an interest therein, may present objections, either to the special term or a justice of the court, to the sufficiency of the security on the undertaking ; and, if the justice acting in the matter shall deem said undertaking insufficient, he may order such pro- perty to be retained by the marshal or coroner for a further short time, to be designated in said order, within which an undertaking to be approved by such justice shall be filed, in default of which the officer shall return the property to the person from whom it wa#taken. Eule 17. Note. — Sections 2, 3, 4, 5, and 6, of the foregoing, constitute Rule 17 of the court. With some slight verbal changes sections 2, 3, and 4 are an exact transcript of sections 815 and 816 of the Revised Statutes relating to the District, excepting of course the form of the under- taking. For purposes of comparison those sections are here given : Sec. 815. At the time of filing the declaration in replevin, the plaintiflf, his agent or attorney, shall file an affidavit, sworn to before the clerk, stating : 1. That, according to afSant's information and belief, the plaintiff is entitled to recover possession of [the] chattels proposed to be re- plevied, being the same described in the declaration. 3. That the defendant has seized and detains, or detains the same. 3. That said chattels were not subject to such seizure or detention, and were not taken upon any writ of replevin. Sec. 816. The plaintiff shall, at the same time, enter into an under- taking with surety, approved by the clerk, to abide by and perform the judgment of the court in the premises. 6. Proceedings in Case of Eloignment. — If the officer's re- turn of the writ of replevin be, that he has served the defen- dant with copies of the declaratiori, notice to plead and summons, but that he could not get possession of the goods and chattels sued for, the plaintiff may prosecute the action for the value of the same and damages for detention ; or he may renew the writ in order to get possession of the goods and chattels themselves. E. S. D. C, sec. 817. 7. When Goods are Seized but Defendant Cannot be Found- Publication. — If the officer's return be, that he has taken possession of the goods and chattels sued for, but that the defendant is not to be found, the court may order that the defendant appeaa? to the action by some fi^ed day j and of this SUPREME COURT, DISTRICT OF COLUMBIA. 71 order the plaintiff shall cause notice to be given by publica- tion in some newspaper of the District at least three times, the first of which shall be at least twenty days before the day fixed for the defendant's appearance. E. S. D. C, sec. 818. 8. After Publication, Proceedings in Default of Appear- ance.' — If the defendant fails to appear, the court may proceed as in case of default after personal service. R. S. D. C, sec. 819. 9. Where Defendant Appears— Plea.— If the defendant ap- pear, he may plead not guilty, in which case all special mat- ters of defence may b6 given in evidence, or he may plead specially. E. S. D. C, sec. 820. 10. Damages, How Ascertained.— ^Whether the defendant plead, and the issue thereon joined is found against him ; or his plea is held bad on demurrer ; or he make default after personal service, or after publication, the plaintiff's damages shall be ascertained by the jury trying the issue, where one is joined, or by a jury of inquest, where there is no issue of fact ; and the damages shall be the full value of the goods, if eloigned by the defendant, including, in every case, the -loss sustained by the plaintiff by reason of the detention ; and judgment shall pass for the plaintiff accordingly. E. S. D. C, sec. 821. Note. — How judgment by default in replevin is to be taken, see Rule 76. 11. Where Judgment is for Defendant.— If the issue be found for the defendant, or the plaintiff dismiss or fail to prosecute his suit, the judgment shall be that the goods, if delivered to the plaintiff, be returned to the defendant with damages, or on failure, that the defendant recover against the plaintiff and his surety the damages by him sustained, to be assessed by the jury trying the issue ; or, where the plaintiff dismisses or fails to prosecute his suit, by the jury of inquest. R. S. D. C, sec. 822. 12. Damages when things are Eloigned.— If the defendant has eloigned the things sued for, the court may instruct the jury, if they find for the plaintiff, to assess such damages as may compel the defendant to return the things. E. S. D. C, sec. 823. 13. Judgment in such Case. — The judgment in such cases shall be that the plaintiff recover against the defendant the 72 PEACTICE AND PROCEDUEE OF THE value of the goods as found, to be discharged by the return of the things, with damages for detention, which the jury shall also assess. E. S. D. C, sec. 824. See Thompson v. Carbery, 2 Or. C, C, 39; Wood v. May, 3 Cr. C. C, 172. 14. Property Taken nnder Revenue Laws Irrepleviable. — All property taken or detained by any officer or other person, under authority of any revenue law of the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law, and subject only to the orders and decrees of the. courts of the United States having jurisdictiop thereof. E. S. U. S., sec. 934. Note. — Whether a demand is necessary in the case of a mere deten- tion under claim of right before replevin can be maintained, qumre. Bridget v. Cornish, 1 Mackey, 29. Replevin is a proper remedy when the exempt property of an exe- cution debtor has been levied on. , Wallingsford v. Bennett, 1 Mackey, 305. 15. The Maryland Act of 1785, eh. 80, sec. 14.— In all cases of replevin hereafter to be issued and executed, the court to which such replevins are returned, respectively, shall have full power and authority, upon- a motion being made by the defendant for a return of the property taken in consequence of such replevins, to inquire into the circumstances and manner of the.defendant's obtaining possession of such property, and if it shall appear that such possession was forcibly or fraudu- lently obtained, or that the possession first being in the plain- tiff was got or retained by the defendant without proper au- thority or right derived from the plaintiff, then the court may refuse to order a return to the defendant until a judgment is given in the action. 16. The Construction &iven the Act of 1785.— "The construction given this act by a long course of practice, is, that unless in the ex- cepted cases, the court may order a return ; but the application within the sphere of our observation is rarely pressed." Evan's Prac, 238. When the court awards a return, it is always upon the defendant en- tering into bond with security to be approved by the court, condi- tioned for the return of the property, if the same be adjudged by the court. Id. The form of the award may be seen in 2 Evans' Harris, 324, and that of the bond in 1 Evans' Harris, 47. Upon filing the bond, a writ of retorno habendo is issued (for form see 2 Evans' Harris, 456); and obedience to which may be enforced by the process in withernam. Evans' Practice, 238 ; see also Poe's Practice, sec. 432. StrPEEME COUET, DISTEICT OP COLUMBIA. 73 For the method of proceeding in making the motion and on the hearing, which is by witnesses, see Evans' Practice, 237. On a motion for a return of property to the defendant, in an action of' replevin, the court does not take into consideration the right of property. Montgomery v. Block, 4 H. & McH., 391. See OuUum v. Bevans, 6 H. & J., 471. The court, at the return of the writ, is commanded to entertain the question of possession as a prelim.inary question, independent en- tirely of the title, and to return the property to the defendant in re- plevin, unless it shall appear that his possession was forcibly or fraudu- lently obtained, or that the possession first being in the plaintiff was got or retained by the defendant without proper authority or right derived from the plaintiff. The whole matter of fraud may, on that preliminary inquiry, be investigated as fully as in equity. Glenn v. . Fowler, 8 G. &J., 340. Under this act, where the party from whom the goods were taken is reinstated in his possession by executing a bond, and a bond is given for the restoration of the specified goods, and these goods are delivered to the marshal on the writ de retorno habendo, issued on a judgment recovered, this is a satisfaction of the obligation, though the goods were not in like good order as when the bond was executed. If the obligor has injured them, or culpably suffered them to become injured while they were in his possession, a recovery cannot be had against him on the bond, if the marshal have once taken possession. The marshal's possession is that of the obligee in the bon^. Any redress for such injury must be had by a separate proceeding. Douglass v. Douglass, 21 Wall., 98. .17. Writ of Capias in Withernam.-^Besides the writ of replevin the plaintiff may have the writ of capias in withernam as auxiliary to en- forcing his right to pi-operty wrongfully taken from him. Although this writ seems to have fallen into disuse in this District, there is no reason why it may not in a proper case be resorted to. Its efQciency as a remedy was well known to the common law, and its use in Mary- land is explained in Evans' Practice, and still better by Mr. Poe in his treatise upon the practice of the courts of that State. Of this writ he says, section 436, " Where the goods cannot be found, the only return which the sheriff can properly make is ^eloigned.' When this return is made, the plaintiff, upon motion seasonably addressed to the court, may obtain what is called a writ of capias in withernam, which directs the sheriff to seize other goods and chattels of the defendant to the value of the goods eloigned. Under this writ it is lawful for the sheriff to take the goods mentioned in the original writ of re- plevin, and to deliver them to the plaintiff; and although at one time it seems that the object of the writ in withernam, was chiefly to compel the appearance of the defendant, nevertheless, the practice in Maryland authorizes the sheriff to deliver to the plaintiff the other goods taken under the writ in withernam, to be held by him irre- pleviable, until the goods sued for are delivered up. Indeed the writ so provides. It operates as ' distress against distress — one being 10 74 PEAOTICE AND PEOCBDUEB OF THE taken to answer the other by way reprisal.' (3 Bl. Com., 148.) It is not a proceeding in the replevin, but is designed as a punishment on the taker or distrainer of the goods mentioned in the replevin, for his improper conduct in putting them out of the way, so that the replevin cannot be proceeded in. And the goods taken in withernam may be held until those sued for are forthcoming. Accordingly where to a writ of replevin for "a colt" the sheriff returned "eloigned," and thereupon a writ of capias in withernam was issued, under which the sheriff seized and delivered to the plain- tiff "one bay horse," and the defendant then voluntarily appeared and pleaded to the action, and the verdict was in favor of the plaintiff, it was held that the writ in withernam was a proceeding separate and distinct from the replevih, and that the defendant was not entitled to a judgment for a return of the goods taken in withernam, because of the failure of the sheriff to summon him, his voluntary appear- ance to the action having cured such omission. Swan v. Shemwell, 2 H. & G., 285. It was also held, in this case, that if the defendant before the return of the withernam, appears to the writ of replevin, and offers to plead non cepit the withernam will be stayed ; but this effect it is submitted will not be produced, if, upon being duly sum- moned, he delays making his appearance until after such return. Regularly the defendant should be summoned to appear to the re- plevin suit, before the writ in withernam, can properly issue, because the return of " eloigned" is no evidence that he (the defendant) had either taken the plaintiff's goods or removed them ; and manifestly, before his own goods should be liable to be taken from him and delivered to the plaintiff, upon the assumption that he had taken or removed the plaintiff's goods, he should be notified of the action and have an opportunity to appear and plead that he had not taken or removed them. But if, without summons, he voluntarily appears and pleads after the return to the withernam, and the verdict is against him, he has no ground of complaint, for he is not injured, and is not entitled to have his goods returned. The writ of capias in withernam can only be justified when the defendant has, in the first instance, taken the plaintiff's goods, or has afterwards re- moved or detained them. Therefore, when the return of the sheriff shows that the goods of the plaintiff have been eloigned, and the defendant, after being duly summoned, fails or refuses to appear and plead that he did not take or remove them, it may not unfairly be assumed that he is responsible for their removal beyond the reach of process, and in such case there is manifest justice in subjecting to seizure his own goods of equivalent value, as a means of compelling him to appear. But until he is afforded an opportunity to deny his participation in the alleged taking or removal of the plaintiff's goods, the injustice of seizing his goods by way of reprisal for their loss or disappearance, is equally manifest ; and hence the propriety of requiring him to be summoned to the action of replevin before the distinct and separate proceeding in withernam can be resorted to." See also Evans' Practice, 106, and for a form of the writ, see 2 Evans' Harris, 499. SUPKEME COURT, DISTICT OF' COLUMBIA. 75 CHAPTEE XVII. SPECIAL REMEDIAL -WRITS— CERTIORARI, HABEAS CORPUS, ETC. 3. 10. Applications for, how made. Rule 18. Proceedings to remove justice of the peace, how commenced and heard. Rule 18. Certiorari on ground of con- current jurisdiction, what af- fidavit to state. Notes of decisions — Quo war- ranto. — Mandamus. — Certiorari. — Prohibition. — Habeas corpus, nature of the writ. Statutory provisions. Application for writ. 11. Allowance and direction of the writ. 12. Time of return. 13. Form of return. 14. Body of the party to be pro- duced. 15. Day for hearing, 16. Denial of return, counter alle- gations, amendments. 17. Hearing and determination. 18. Notes of decisions. 19. Appeals, when allowed. 20. Practice on appeal to general term. 21. Appeal to the supreme court. 22. How taken. 23. Extradition. 1. Applications for, How Made.— Motions or applications for special remedial writs, sucli as writs of quo warranto, man- damus, certiorari, supersedeas, etc., shall be heard by the circuit or criminal court, or before one of the justices at cham- bers, or in special term, but not until a petition, verified by affidavit, and stating the grounds of the application, has been filed and docketed. But the justice to whom the application is made may order it to be heard in the general term in the first instance. Motions to quash, set aside, or dissolve any of said writs may be heard in the same manner. Eule 18. 2. Proceedings to Remove a Justice of the Peace, How Com- menced and Heard.— Proceedings to remove a justice of the peace must be commenced by filing and docketing, on the criminal side of the court, to be heard in the general term, an information by the district attorney, in the name of the United States, against the officer, setting forth the grounds of the complaint, and supported by the affidavit of the relator or informer. Id. 76 PRACTICE AND PBOCEDURE IN THE 3. Certiorari on Ground of Concurrent Jurisdiction — What Afadavit to State. — Hereafter, no certiorari shall issue to bring up a cause pending before any justice of the peace, on the ground of concurrent jurisdiction, unless the petitioner there- for shall present and file with the petition his affidavit, stating that his application is not for the purpose of delay, but solely because he believes he has a just and meretorious defence to the plaintiff's claim, either in whole or in part, and if to a part only, then to take what thereof. Id. 4. Notes of Decisions— Quo Warranto.— The remedy by information in the nature of a quo warranto, though criminal in form, is in effect a civil proceeding. Ames v. Kansas, 111 U. S., 449. An information for a quo warranto, to try the title to an office, cannot be maintained except at the instance of the Government. The consent of individ- ual parties wiH not give j urisdiction. Wallace v. Anderson, 5 Wheat. , 291, and see Johnson v. Jumel, 3 Woods, 69, and see, also, sec. 629, R. s. u. s. 5. — Mandamus. — For the jurisdiction of this court to issue the writ, see Kendall v. U. S.', 12 Peters, 524, and United States v. Schultz, 102 U. S., 378, and cases there cited. It is not proper to file the petition in the General Term. The rule requires that it shall be presented to a justice in Special Term or in Chambers, when it can be afterwards certified to the General Term. IT. S. ex rel Worden v. Chandler, 2 Mackey, 527. The rule to show cause why the writ should issue is not grantable as of course ; the court, in the exercise of its discretion, will refuse the preliminary order where the petition itself shows that flirther proceedings would be a waste of time, and would ultimately prove futile. Especially will this be the case where the grounds upon which the respondent refuses to act in the manner required by the petition are set forth in the petition, and appear to the court sufficient to justify his refiisal. Id. Before this court will award a mandamus against an executive offi- cer, the petition must disclose : 1. That the party applying has a clear legal right to the relief he claims, and that he cannot obtain it by any other proceeding. 2. That there exists a clear legal duty on the part of the official against whom the writ is asked, which he refases to perform. 3. That the duty which is thus claimed and imposed is one ministerial in its character, and in no degree discretionary. Id. And see to the same effect, U. S. ex rel. Henderson v. Edmunds, 3 Mackey, 142. The attorney and counsel of the party in interest cannot act as the relator. The action must be brought in the name of the owner of the thing claimed, who alone can be recognized as the claimant. U. S. ex rel. Worden v. Chandler, mpra. A party who has only a partial Interest in the amount claimed has no authority, to the exclusion of ' all other claimants similarly circumstanced, to use the name of the United States in an application to the court to dispose of the whole amount. Id. See the case of Secretary v. McGarrahan, 9 Wall. 298 SUPREME COTJET, DISTRICT OF COLUMBIA. 77 and Wash. Law Rep., Vol. V, No. 15, and cases there cited 'on the jurisdiction of this court to issue writs of mandamus to executive offi- cers of the Government. This court will not issue a mandamus to compel the Commissioner of Patents to issue a patent. An appeal is the proper remedy. Hull v. Commissioner, 2 Mac A., 126. Where a board of managers of an incorporated company hold their offices as a several interest, it would seem to be a safe rule that they should not be joined as relators in a proceeding for the writ of mandamus. U. S. ex. rel. Edwards v. McKelden, Mac A. & Mack., 162. Upon a motion to quash an alternative writ of mandamus, the petition on which it was allowed may be considered, if it be referred to in, such writ by the words "as by their complaint hath been stated ^ to the court here." Id. When an act of Congress imposes upon an officer of the Govern- ment the performance of a purely ministerial duty upon which de- pends the rights of individuals, it is no sufficient answer on a man- damus proceeding against him, to set up a contrary direction by the President. The decision in Angarica de la Rua v. Bayard, 4 Mackey, 310, is to be understood as relating solely to the facts of that case. U. S. ex rel White v. Bayard, 5 Mackey. Where money is in the custody of the Department of State to which the petitioner has a clear legal right, and by an act of Congress the Secretary is directed to pay it over to him, mandamus will lie against the Secretary to compel its payment. Id. The return by a defendant in mandamus must deny with distinct- ness and certainty the material averments of the petition, otherwise those averments will be taken as true. Id. 6. — Certiorari. — The writ of certiorari is the appropriate remedy to review the proceedings of a subordinate tribunal which has pro- ceeded or is proceeding to judgment without jurisdiction. In a case where the police court has no jurisdiction the writ may issue to review such proceedings, although the statute provides for an appeal where,there is to be a retrial of the case. Bates v. District of Colum- bia, 1 Mac A., 433. The Supreme Court of the District of Columbia has jurisdiction concurrently with Justices of the Peace when the claim or demand exceeds the sum of |50, and as there is no provision for the removal of such cases by appeal into this court after a jury trial, the proper way is to bring them here by certiorari to be tried in the first instance, and the writ will lie for that purpose. Coleman v. Freedman, 1 Mac A., 160. A motion to quash a writ of certiorari is not a non-enumerated motion within the meaning of section 800, R. S. D. C, and it may be heard by any of the justices of the court at chambers. Rile 19 [now Rule 18] is not a violation of that statute. Maxwell v. Cress- 78 PEACTICE AND PEOOEDURB OP THE well, 3 Mac A., 374. A writ of certiorari issued to remove proceed- ings before a magistrate under the landlord and tenant act will be quashed, where it appears that the justice is not exceeding his juris- diction. 3 Mac A., 422. Certiorari to Police Court, see Hoiles v. United States, 3 Mac A., 370. The writ may be used in aid of a habeas corpus. Id. On the hearing of a motion to quash, it is irregular to read an ex parte afiidavit of the magistrate before whom the case was tried. If the return is defective,' there must be a motion for a further or amended return to the writ. Washington Market Co. v. Summy, 3 Mac A., 59. When an inferior court is proceeding beyond or without its jurisdic- tion, certiorari is the proper remiedy, but not for mere matters of form and procedure ; and it seems that the writ ought never to issue where there is a right of appeal, unless the jurisdiction is called in question, or unless some specific reason is shown why the writ should issue, as that a party has lost his right of appeal through mistake or inad- vertance or the Uke. The District v. The Gas Light Co., 3 Mackey, 343. The writ of certiorari may be used in connection with a habeas corpus, to being before the court for review, the proceedings which took place before a United States Commissioner upon the examina^ tion and commitment of a prisoner charged with a crime against the laws of the United States. In re Martin, 5 Blatchf., 303 ; Hoiles v. United States, supra. Certiorari is properly used to bring up to a court of error, on an allegation of dimunition of the record or other documents and writings in the court below, which have not been previously certified or sent. United States v. Adams, 9 Wall., 661; Wash- ington Market Co. v. Summy, supra. As to the use of the writ for this purpose, see Elmore v. Grymes, 1 Pet., 469; Morgan v. Garle- nius, 19 How., 8 ; Stearns v. United States, 4 Wall., 1 ; Sweeney v. Lomme, 22 Wall., 208. 7. — Prohibition. — For the nature and effect of the writ of prohibi- tion, see U. S. V. Hoffman,' 4 Wall., 152. It is a preventive rather than a corrective remedy, and issues only to prevent the commission of a future act and not to undo an act al- ready performed. High on Ex Rem, sec. 166 ; U. S. v. Hoffman, 4 Wall., 158. It does not issue when an appeal lies. Waite's Actions and Defences, 256. And see Wales v. Whitney, 114 U. S., 570, and Smith V. Whitney, 116 U. S., 167, where it appears that where the court has no appellate jurisdiction over the tribunal sought to be pro- hibited, it cannot issue the writ. See Smith v. Whitney, 4 Mackey, 535. Whether this court has jurisdiction to issue the writ to a court- martial, see Smith v. Whitney, 116 U. S., 167. 8. —Habeas Corpus, Nature of the Writ.— The writ of habeas corpus is a common law writ, and may be issued by any justice of this court at chambers and in vacation. In re Zango Poole, 2 Mac A., 583. See STJPEEME COURT, DISTEICT OF COLUMBIA. 79 Ex Parte WatMns, 3 Pet., 193. The reader will find a large number of authorities as to the law and practice in habeas corpus proceed- ings, in Desty's Federal Procedure (6th ed.), page 381, et seq. 9. Statutory Provisions.— In the case of George Taylor, 3 Mac A., 426, it was held that the provisions of the Revised Statutes of the United States, Title " Habeas Corpus," applied to this court. So much of the act, therefore, as relates to the course of proceeding are here inserted : 10. Application for the Writ. — Application for a writ of habeas corpus shall be made to the court, or justice, or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or author- ity, if known. The facts set forth in the complaint shall be verified by the oath of the person making the application. E. S. U. S., sec. 754. S^ote. — The usual course of practice is for the court on application to issue the writ, and on its return to hear and dispose Of the case ; but where the cause of imprisonment is fully shown by the peti- tioner for the same, the court may consider and determine the mat- ter upon the facts stated, and determine from them whether the court should discharge the prisoner. iJa; Par ie .Mulligan, 4 Wall., 2. See U. S. V. Lawrence, 4 Or. CO., 518. The person filing the petition may be some person other than the prisoner. In re Hoyle, 12 Ohio. L. J., 279. An order directed by the Secretary of the Navy to a subordinate, commanding him to confine himself within certain limits, is not such a restraint of personal liberty as will be reached by a writ of habeas corpus, the party is not under restraint, except that so far as he chooses to obey the order. In re Wales, 4 Mackey, 38. So the validity of an order of arrest cannot be inquired into unless there has been an act- ual imprisonment under it. Id. Mere moral restraint is not enough. Wales V. Whitney, 114 U. S., 564, affirming the case just above cited. 11. Allowance and Direction of the Writ. — The court, or justice, or judge to whom such application is made shall forth- with award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is deitained. E. S. U. S., sec. 755. 12. Time of Eeturn. — Any person to whom such writ is directed shall make due return thereof within three days thereafter, unless the party be detained beyond the distance of twenty miles ; and if beyond that distance and not beyond 80 PRACTICE AND PEOCEDURE OF THE a distance of a hundred miles, within ten days ; and if beyond the distance of a hundred miles, within twenty days. E. S. U. S., sec. 756. 13. Form of Return. — The person to whom the writ is directed shall certify to the court, or justice, or judge before whom it is returnable, the true cause of the detention of such party. E. S. U. S., sec. 757. Note. — If the party to whom the writ is directed fails to make return, attachment may issue without an alias or pluries writ. U. S. V. Bollman, 1 Cr. O. C, 373. The return should be signed by him to whom it is directed. Seavey v. Seymour, 3 Cliff., 439. And if the return be false or evasive, he may be committed for a contempt. U. S. V. Davis, 5 Cr. C. C; U. S. v. Williamson, 4 Am. Law Reg., 5. If the respondent is present in court, he may be directed to answer interrogatories without issuing a writ of attachment. U. S. v. Green, 3 Mason, 482. 14. Body of the Party to be Produced.— The person making the return shall at the same time bring the body of the party before the judge who granted the writ. E. S. U. S., sec. 758. 15. Day for Hearing. — When the writ is returned, a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party j)etitioning requests a longer time. E. S. U. S., sec. 759. Note. — It is the duty of the person making the return to bring in the body, or if that has passed beyond his control, to declare, so far as he knows, what has become of him. U. S. v. "Williamson, 4 Am. Law Reg., 5 ; and simply declaring that the person is not in his power, custody or control, unless all the material facts are stated, will not effect a discharge. U. S. v. Green, 3 Mason, 482. Pending the ex- amination, the party is, detained under the authority of the writ, and may be bailed out from day to day or remanded to jail. Ex parte Kaine, 14 How., 103. 16. Denial of Return, Counter-Allegations, Amendments. — The petitioner or the party imprisoned or restrained may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case. Said denials or allegations shall be under oath. The return and all sug- gestions made against it may be amended, by leave of the court, or justice, or judge, before or after the same are filed, so that thereby the material facts may be ascertained. E. S. U. S., sec. 760. Note.— See Seavey v. Seymour, 3 Cliff., 439.- Ex parte Kaine, 10 N. Y. Leg. Obs., 257. Under this section no pleading is required SUPREME COUET, DISTEICT OF COLUMBIA. 81 after the traverse to the return. The new matter averred therein is to be deemed at issue. In re Leary, 10 Ben., 198. 17. Hearing and Determination. — The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require. E. S. U. S., sec. 761. 18. ITotes of Decisions. — On a habeas corpus it can only be in- quired whether there is sufficient probable cause for believing that the person charged has committed the offence stated in the warrant. U. S. V. Johns, 4 Dall., 412. Proceedings in habeas corpus are civil proceedings, even when instituted to arrest a crim^inal prosecution and secure personal freedom. Ex parte Tom Tong, 108 U. S., 556. The discharge by the writ of habeas corpus from imprisonment under a process does not discharge party from imprisonment under any other process which may issue. Ex parte Milburn, 9 Pet., 704. Although the writ is one of right, it is not granted of course, but only upon probable cause shown. United States v. Lawrence, 4 Or. C. O., 518. Upon a return of a warden of the jail that he holds the prisoner by direction of the marshal, the court will look into the order directing the marshal to arrest and imprison the petitioner. In re Marsh, Mac A. & Mack., 32. And where the order does not express or limit the period of imprisonment it is void upon its face, and the prisoner may be discharged. Id. Errors of law in the trial of a prisoner, the court having jurisdiction to imprison him, cannot be inquired into on habeas corpus. Ex parte Yarbrough, 110 U. S., 651. Ex parte Bigelow, 113 U. S., 328. A previous decision under one writ is no bar to issuing any number of other successive writs by any court or magistrate having juristiotion. Ex parte Kaine, 3 Blatchf., 1. If a commitment is irregular the court may discharge the prisoner from it, but may commit him de novo if there is sufficient evidence for that purpose. Ex parte Bennett, 2 Or. O. 0., 612. A discharge from the process under which he is imprisoned discharges him from confinement under that process alone. Ex parte Milburn, 9 Pet,, 704. The next section, sec. 762, provides for cases when persons are im- prisoned under the laws of any State, etc., and has no application to this District. 19. Appeals, when Allowed.— From the final decision of any court, justice, or judge inferior to the circuit court, upon an application for a writ of habeas corpus, or upon such writ when issued, an appeal may be taken to the circuit court for the district in which the cause is heard — 1. In the case of any person alleged to be restrained of his liberty in violation of the Constitution or of any law or treaty of the United States. ' 11 82 PRACTICE AND PEOCEDtJEE OF THE 2. In the case of any prisoner wlio^ being a subject or citi- zen of a foreign State, and domiciled therein, is committed or confined or in custody by or under the authority or law of the United States, or of any State, or process founded thereon, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, order, or sanction of any foreign State or Soveignty, the validity and effect whereof de- pend upon the law of nations, or under color thereof. E. S. U. S., sec. 763. 20. Practice on Appeal to General Term. — From the final decision of one of the justices of that court upon the hearing and determina- tion of a habeas corpus discharging the prisoner, an appeal may be taken to the General Term at the instance of the Attorney General of the United States. In re Geo'rgq Taylor, 3 Mac A., 426. Upon an appeal from a decision of a judge of this court discharging a writ of habeas corpus and remanding the prisoner, the General Term will review the case upon its merits. In re Marsh, Mac A. & Mack., 32. 21. Appeal to the Supreme Court. — From the final decision of such circuit court an appeal may be taken to the Supreme Court in the cases described in the last clause of the preced- ing section. E. S. U. S., sec. 764. 22. How Taken. — The appeals allowed by the two preced- ing sections shall be taken on such terms and under such regu- lations and orders, as well for the custody and aj)pearance of the person alleged to be in prison, or confined, or restrained of his liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return there- to, and other proceedings as may be prescribed by the Su- preme Court, or in default thereof, by the court or judge hear- ing the cause. E. S. U. S., sec. 765. Note.— The act of March 3, 1865, restored to this court appellate jurisdiction in habeas corpus cases over the decisions of the Supreme Court of the District of Columbia. Wales v. Whitney, 114 U. S., 564. 23. Extradition.— For this subject see Criminal Phocbduee. SUPEEME COTJET, DISTEICT OF COLUMBIA. 83 CHAPTEE XVIII. SEKVICB OF PROCESS. 1. By whom, writs and process to be served. 2. Copies of declaration, etc., to accompany writ. 3. How writs to be tested. 4. To be under seal of court. 5. Shall bear teste from day of issue. 6. Assistant clerk may sign writs. 7. How served in case of death of marshal. 8. Marshal, when removed or term expires, may execute. 9. When the marshal or his de- puty is a party. 10. Capias on mesne process abol- ished in actions ex contractu. 11. Fees of marshal. 12. Marshal may demand fees in advance. 13. Process against foreign minis- ters and their servants. 14. Stealing or altering process. 15. Obstructing service of process. 16. Process against corporate edu- cational institutions. 17. Against foreign corporations. 18. Against the District of Colum- bia. 19. When one or more of several defendants cannot be served. 20. Fraudulent service. 21. Effect of Appearance. 22. Unauthorized appearance by attorney. 23. Process against members of Congress. / 24. Witnesses attending Congres- sional committees. 25. Process at instance of the United States. 26. Service by publication — Pro- visions of Rule 20. 27. Summons to be first returned not to be found. 28. In what papers orders to be published. 29. Form of order. 30. Length of time to be published. 31. Proof of publication. 32. Copy of notice to be mailed defendant — AflBdavit. 33. Statutory provisions. 34. Statute to be strictly complied with. 35. Effect of substituted service. 1. By Whom Writs and Process to be Served.— Every writ, process, or notice issuing out of tlie clerk's office of this court shall be served by the marshal for the District of Columbia, or his deputy, if required, except in cases in which the marshal is a party, when such writ or process shall issue to tlie coroner of said District, and the return shall be prima facie evidence of the facts it states. Rule 19. Note. — The service of the process of subpoena issuing out of this court must be by the marshal or some one previously designated by the court ; the act of the deputy marshal in serving it is to be con- 84 PRACTICE AND PROCEDURE OF THE sidered, under the law permitting the marshal to appoint deputies, the act of the marshal, and the latter must sign the return. In re Spencer, Mac A. & Mack., 433. For the form of the writ of sum- mons, see Rule 14. 2. Copy of Declaration, etc., to Accompany Writ. — Every writ issued out of the clerk's office to require the defendant's appearance to answer to an action, shall be accompanied with a coijy of the declaration and affidavit, if any, and of the notice thereto subscribed ; and the defendant shall be served with said coiDies, and the return shall show the fact. Eule 19. Note. — Copies of pleadings served on the adverse party should be perfect copies, including signatures, jurat, etc., and the party served has a i^ght to presume that the copy served is a correct copy. But where the original is correct, and the copy defective, the party serv- ing the copy may be allowed to serve an amended copy on payment of costs occasioned by the irregularity. Littlejohn v. Munn, 3 Paige (N. Y.), 200. 3. How Writs to be Tested. — Writs and process issued out of the Supreme Court may be tested in the name of any jus- tice of the court. E. S. D. 0., sec. 781. 4. To be Under Seal of the Coui't. — AH writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof. >i= * * ^ * The seals of said court shall be provided at the expense of the United States. E. S. U. S., sec. 911. Note. — Process which the law requires to be under the seal of the court, is void on its face if issued without seal. Ins. Co. v. Hallock, 6 WaU., 556. 5. Shall Bear Teste From Day of Issue. — AH process issued from the courts of the United States shall bear teste from the day of such issue. E. S. U. S., sec. 912. 6. Assistant Clerk may Sign Writs. — Any of thfe duties of the clerk may be performed, in his name, by any of the assist- ant clerks in his office ; and such assistants may sign the name of the clerk to any process, certificate, or other official act re- quired by law or by the practice of the court to be performed by the clerk, and may authenticate said signature by affixing the seal of the court thereto, when the impress of the seal is necessary to its authentication. In such cases the signature shall be, " , clerk, by' , assistant clerk." E. S. D. C, sec. 916. SUPEEMB COUET, DISTRICT OP COLUMBIA. 85 7. How Served in Case of Death of Marshal.— In case of the death of any marshal, his deputy or deputies shall continue in office, unless otherwise specially removed, and shall execute the same in the name of the deceased, until another marshal is appointed, as provided in this chapter, and duly qualified. E. S. U. S., sec. 789. 8. Marshal, when Removed or Term Expires, may Execute. — Every marshal or his deputy, when removed from office, or when the term for which the marshal is appointed expires, shall have power, notwithstanding, to execute all such pre- cepts as may be in their hands respectively, at the time of such removal or expiration of office. * '* * * R. S. U. S., sec. 790. 9. When the Marshal or his Deputy is a Party. — When the marshal or his deputy is a party in any cause, the writs and precepts therein shall be directed to such disinterested person as the court or any justice or judge thereof may apijoint, and the person so appointed may execute and return them. E. S. U, S., sec. 922. See page 17, infra. 10. Capias on Mesne Process Abolished in Actions ex Con- tractu. — N'o person shall be held to bail in the District in any action of debt, assumpsit, or other action founded on or arising out of any contract or agreement, or in any suit or proceeding in equity brought or prosecuted for enforcing the payment of any debt, or of any sum or sums of money due or claimed to be due by reason of any contract or agreement. E. S. D. C, sec. 791. 11. Pees of Marshal. — For provisions as to fees for service of pro- cess, see R. S. D. 0., sees. 897 and 911 ; also R. S. U. S., sees. 828 and 829. 12. Marshal may Demand Pees in Advance for Serving. — The marshal, in all civil cases, may demand and receive payment of his fees before serving any process, except in cases in which the United States may be a party, or of fieri facias, or where the court or any justice thereof may order suit to be instituted without prepayment of costs. E. S. D. C, sec. 914. 13. Process Against Foreign Ministers and their Servants. — Writs of process against, void. E. S. U. S., sec. 4063. Penalty for suing out or executing such service. E. S. U. S., sec. 4064. When process may issue against persons in service of foreign ministers. E. S. U. S.^ sec, 4065. 86 PBAOTICE AND PEOCEDUEE OF THE 14. Stealing or Altering Process.— Penalty for. E. S. U. S., sec. 5394. 15. Obstructing Service of Process.— Penalty for. E. S. U. S., sec. 5398. 16. Process Against Corporate Educational Institutions.— AH process against any such corporation [institutions of learning] shall be by summons, and the service of the same shall be by leaving an attested copy thereof with the president, secretary, or treasurer, or ^t the office of the corporation, at least sixty days before the return day thereof E. S. p. C, sec. 531. 17. Against Foreign Corporations.— In actions against foreign corporations doing business in the District, all process may be served on the agent of such corporation or person conduct- ing its business, or, in case he is absent and cannot be found, by leaving a copy at the principal place of business in the District, and such service shall be effectual to bring the corporation before the court. E. S. D. C, sec. 790. Note.— Under this section an action can be brought in this court against a foreign corporation, only when it has an established place of business in the District, and the process can be served upon the agent or other person by it employed to conduct such business as it is engaged in here. Dallas v. Railroad, 2 Mac A., 146. 18. Against tlie District of Columbia.— In suits hereafter commenced against the District of Columbia, process may be served on any one of said commissioners, until otherwise pro- vided by law. Act of June 20, 1874, 18 Stat., ch. ^37, sec. 2; Eich. Suppl., 54. 19. When One or More of Several Defendants Cannot be Served. — When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabi- tants of nor found within the District in which the suit is brought, and do not voluntarily appear, the court may enter- tain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it ; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer ; and not joinder of parties who are not inhabitants of nor found within the District, as afore- said, shall not constitute matter of abatement or objection to the suit. E. S. U. S., sec. 737. 20. Fraudulent Service. — Service of summons may be set aside SUPREME COUET, DISTRICT OF COLUMBIA. 87 when it appears that defendant has been fraudulently enticed within the jurisdiction. Steiger v. Bonn, 4 Fed. Rep., 17 ; 5 Fed. Rep., 394 ; Blair v. Turtle, 1 McCrary, 372 ; Union Sugar Refining Co. v. Mat- thieson, 2 Cliff., 304. 21. Effect of Appearance. — Appearance cures any defects in the service of process. Farrar v. United States, 3 Pet., 459. But illegal- ity of service is not waived by the special appearance of the defend- ant to move that the service be set aside ; nor by his answering to the merits after such motion is denied. Such illegality is considered as waived only when he, without having insisted upon it, pleads in the first instance to the merits. Harkness v. Hyde, 98 U. S., 476. 22. Una'uthorized Appearance by Attorney. — Where there was no service of process against the defendant, and an attorney appeared without authority, Held, that the judgment was a nullity. Shelton V. Tiffin, 6 How., 163. 23. Process against Members of Congress. — A member of Congress is at all times as liable to service of process, as any other individ- ual, except that during his attendance on the sessions of Congress, and in going and returning, he is privileged from arrest in any pri- vate suit or action. Merrick v. Giddings, Mac A. & Mack., 55. 24. Witnesses Attending Congressional Committees. — The privilege of a witness in attendance upon a Congressional committee is not higher than that of any member of Congress ; he may therefore be served with a summons as defendant in a suit commenced in this court. Wilder v. Welsh, 1 Mac A., 566. 25. Process at Instance of United States. — The process of subpoena and the process of execution at the instance of the United States may run from this District into any of the United States. In re Spencer, Mac A. & Mack., 433. 26. Service by Publication — Provisions of Rule 20. — Publica- tion may be substituted for personal service of process upon any defendant who cannot be found, in suits for partition, divorce, by attachment, for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens and all other liens against real or personal property, and in all actions at law or in equity which have for their immediate object the enforcement or establishment of any lawful right, claim, or deman(i to or against any real or personal property within the jurisdiction of the court. Eule 20. 27. Summons to be First Returned " Not to be Found."— IS^o order for the substitution of publication for personal service shall be made until a summons for the defendant shall have been issued and returned '' not to be found." Id. Note. — These two sections constitute in heec verba, sections 787 and 788 of the Revised Statutes, relating to the District. 88 PEACTICE AND PEOOEDTJKE OF THE 28. In what Papers Order to be Published— Washington law Reporter. — Hereafter all notices whicli relate to proceedings in the Supreme Court of the District of Columbia, the publication of which is required, by law or by rules of court, or by any order of court, shall be published in the "Washington Law Re- porter, during the time required by law, in addition to any other papers which may be specially ordered, or which may be selected by the parties. Id. 29. Form of Order. — In such case the following is the form of the order of court which is to be published : In the Supreme Court of the District op Columbia, the - — DAY OP , 18 — . A. B., Plaintiff, ") V. V At Law, [In Equity.] No. — . CD., Defendant. J On motion of the plaintiff, by Mr. , Ms attorney, it is ordered that the defendant cause his appearance to be entered herein on or before the first rule day occurring forty days after this day ; other- wise the cause will be proceeded with as in case of default. The ob- ject of this suit is [here state it briefly.] A true copy. Test : , Clerk. Note. — See section 789 R. S. D. C, of which this portion of the rule is acopy, except that the words, " The object of the suit," etc., is not in the statute. 30. Length of Time to be Published. — Every such order shall be published at least once a week for three successive weeks, or oftener, or for such further time as may be specially or- dered, and the first insertion thereof shall be forty days before said rule day. Id. 31. Proof of Publication. — The proof of the publication shall be an affidavit of the publisher, editor, agent, manager or superintendent of the paper, accompanied by a copy of the order as published, which afftdavit shall state how many, and at what, times the order was published in the paper. Id. 32. Copy of Notice to be Mailed Defendant— Affidavit.— No order, judgment, or decree shall be passed upon such proof of publication unless the plaintiff, his agent or attorney, shall file in the cause au affida-\'it showing either that at least twenty days previous to applying for such order, judgment or decree, he mailed, post-paid, a copy of said advertisement, directed to the party therein ordered to appear, at his last-known place of residence, or that he has been unable to ascertain the last STJPKEME COUET, DISTRICT OF COLUMBIA. 89 place of residence of said »party, and that he has diligently songht to inform himself of the same. Id. ' Note.— Foregoing provisions from 25 to 31, inclusive, constitute rule 20 of th^ court. 33. Statutory Proyisions. — There are other Federal Statutes upon the subject of publication against absent defendants, which, but for the foregoing provisions, would seem to be applicable to this court. As the matter is, however, at this time doubtful, they are merely referred to for purposes of comparison. They will be found as follows: Section 737, R. S. U. S.; 18 U. S. Stats., 472 ; 1 Rich. Suppl. Rev. Stats., 176. 34. Statute to be Strictly Complied with. — When a personal service of process, is not made, the requisites of the statute authorizing a sub- stitute for ih must be strictly complied with. Halsey v. Hurd, 6 Mc- Lean, 14 ; Brown v. Wood, 6 J. J. Marsh, 11, 14 ; 2 Pet., 201 ; Lingan v. Henderson, 1 Bland, 236. And the court will not indulge in presump- tions to supply apparent defects or failures to meet the requirements of the statute. Hartley v. Bojmton, 17 Fed. Rep., 872. Every fact necessary to the exercise of jurisdiction must affirmatively appear in the mode prescribed by the statute. Cissel v. Pulaski County, 3 McCrary, 446. But where the statute requires notice to non-resi- dents to be given by publication, and a judgment or decree is passed affecting the property subject to the jurisdiction of the court without the publication of the required notice, the decree or judgment, though erroneous, is not void, and a purchaser at a sale under such a decree or judgment would take a valid title, although the judgment might afterward be reversed for its errors in a higher court. Fraser v. Prather, 1 Mac A., 213. 35. Effect of Substituted Service. — ISTotice by publication to non- resident defendants does not confer jurisdiction over them of itself, but if the subject of the suit be property lying within the jurisdiction of the court, a decree after such notice would bind such property. Fraser v. Prather, 1 Mac A., 213. Service by publication merely is not sufficient to give jurisdiction to determine the personal rights or obligations of the defendant. Pennoyer v. Neff, 95 U. S., 714. Such service upon a non-resident is effectual only where, in cqn- neetion with process against the person for commencing the action, property within the State is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such proj)- erty, or of affecting some interest therein ; in other words, where the action is in the nature of a proceeding in rem. Pennoyer v. Nefif, 95 U. S., 714. Shares of stock in an incorporated company are not "personal property within the District" within the meaning of Rev. Stat. U. S., sec. 738, authorizing service of process by publication or other constructive service upon non-residents, in suits to enforce claims 12 90 PRACTICE AND PEOCEDTJEE OF THE against "real or personal property within the district whera the suit is brought. ' ' Ealgour v. New Orleans Gas Light Oo. , 2 Woods, 144. CHAPTBE XIX. THE PLEADINGS. OF PLEADINGS GENEBALLY. 1. Issues of fact agreed. Rule 21. 2. Order of pleading. Rule 22. 3. All pleadings to be signed. Rule 23. 4. Copies of pleadings to be serv- ed. Rule 24. 5. Time for pleading may be en- larged. Rule 25. 6. Construction of pleadings. 7. Averring written instrument. 8. Making profert, when unneces- sary. 9. Demanding and giving oyer. THE DECLAKATION. 10. To state only substantive facts. 11. What declaration should show, generally. 12. Matters of evidence. 13. With bill of particulars annex- ed. 14. Alleging special damage. 15. Declaration against a married woman. 16. Declaring on oflicial bonds. 17. -By an assignee. 18. Upon statutes. 19. On a copyright. 20. On a patent right. 21. Counts. 22. The notice to plead. THE PLEA. 23. Shall set forth the true defence. 24. No formal conclusion or pray- er for judgment necessary. 25. Aflfldavlt to accompany plea to scire facias and actions on judgments. 26. Dilatory pleas. 27. Exception to the rule of waiver. 28. Objections which may be pleaded in abatement. Lis alibi pendens. Statute of limitations. Executors, etc., not bound to plead the statute. Plea otnon est factum. Special pleas. Failure of consideration. Accord and satisfaction. Form of. 38. Judgment on. 39. Mutual judgments may be set off. Set-off must be against real party to the suit. Attorney' s lien subject to right of set-off. 42. Set-off of joint debts. 43. Set-off of unliquidated dam- 40, 41 44. Set-off as against assignees. 45. Set-off against a suit of the United States. 46. To what cases the right does not extend. 47. Recoupment. THE REPLICATION, ETC. BEJODTDEE, 48. Rule as to replication, rejoin- der, etc. — Time for filing. SUPEEME COURT, DISTEICT OP COLTJMBIA. 91 49. Special replications and re- joinders. To plea of the statute of limi- tations. When replication may show equitable title. To plea of general perfor- niance. The replication de injuria. Rejoinder. JOINDER IN ISSUE, Simplified form of. DEMUBEEB. Form of— The marginal note. No joinder in demurrer neces- saxy. ^ 58. What the demurrer admits. 59. Special demurrers virtually abohshed. 60. Court not restricted to the marginal note. 61. Frivolous demurrers. 50. 61. 62. 53. 64. 55. 66. 57. 62. Proceedings when judgment sustaining demurrer is re- versed. PLEA PUIS DABBIEN. 63. How pleaded— Afladavit. Rule 32. 64. Time for replying to. Rule 33. 65. This plea waiver of prior pleas. EXAMPLES OP SIMPLIPIED POEMS. 66. Rule as to prolixity in plead- ings. 67. Declarations, form of, com- mencement and conclusion. 68. On simple contracts, money counts combined. 69. Money counts separate. 70. Counts on bills and notes. 71. Plea, commencement and con- clusion of. 72. RepUcation. 73. Rejoinder. 74. Demurrer. PLEADINGS GENERALLY. 1. Issues of Fact Agreed. — After return of service of the declaration and summons, if the parties to the action are agreed as to any matter of fact in the case, they may state the same in writing for trial. Rule 21. 2. Order of Pleading. — The order of pleading shall be : 1. To the jurisdiction. 2. To the disability of the plaintiff. ) a hafpniPnt 3. To the disability of the defendant. J ^""^T^ement. 4. To the declaration. 5. In bar. All pleas in abatement shall be accompanied by an affidavit of the defendant, his agent or attorney, as to the truth thereof Eule 22. (See dilatory pleas, notes to Rule 27.) 3. All Pleadings to be Signed.— Every pleading shall be signed by the party or by counsel, showing, in this way, whether the party appears in person or by attorney, and not alone by stating the fact in the body of [the] pleading. Eule 23. 4. Copies of Pleading to be Served. — If the defendant ap- pear, he shall demur or plead, and serve a copy of such plead- ing upon the opposite party, or his attorney, on or before the 92 PEAOTICB AND PEOCEDXJEE OF THE first day of the first special term of the court occurring twenty days after service of the process ; otherwise the plaintiff may have judgment by default. And a copy of every subsequent pleading shall be served by the party filing it on the opposite party; or his attorney, within two days after filing the same. Eule 24. (See note 2, p. 84.) 5. Time for Pleading may be Enlarged. — Upon application of either party, for good cause shown, the court may enlarge the time of pleading, and may excuse a failure to plead with- in the prescribed time. Eule 25. 6. Construction of Pleading's. — The general rule of construction is, that if a plea has on the face of it two intendments, it shall be taken most strongly against the party offering it. United States v. Linn, 1 How., 104 ; 17 Pet, 88. , 7. Averring Written Instruments. — It is not necessary to set forth the words of a deed or other written instrument. It is sufficient to state the substance and legal effect. But whatever is alleged should be truly alleged. Ferguson v. Harwood, 7 Cranch, 408 ; Whitaker v. Branson, 2 Paine, 209 ; Wheeler v. McCormick, 8 Blatchf., 267. 8. Making Profert when Unnecessary, — Where matter in a deed is stated as inducement only, and the party suing is neither a party or privy to the deed, a profert is unnecessary. Duvall v. Craig, 2 Wheat., 45. In a suit upon a bond, where the bond is filed as a public record, it is unnecessary to make profert of it. U. S. use of Alexander v. Ritchie, 3 Mackey, 162. If the plaintiff, although he names himself as administrator, sues in his own right, he need not make profert of the letters of administra- tion, and is not bound to give oyer of them. Biddle v. Wilkins, 1 Pet., 686. A former judgment is not pleaded with a profert, but a profert is tendered in reply to the plea or replication of nul tiel record. Burnham v. Webster, 2 Ware, 236. For practice as to profert and oyer generally, see Evan's Practice, 116 and 206. 9. Demanding and Gfiving Oyer. — The legal effect of a profert of papers is, that they are presumed to be in court, and the opposite party has a right to know their contents, and oyer will be granted on his application. Hammer v. Klien, 1 Bond, 590. Oyer of a deed set forth in the first count of a declaration does not make the deed part of the record, so as to apply it to other counts in the declaration. Hughes v. Moore, 7 Cranch, 176. In an action upon a bond for performance of covenants in another deed, oyer of such deed cannot be craved ; the defendant and not the plaintiff must show it, with a profert of it, or an excuse for the omission. Sneed v. Wister, 8 Wheat., 690 ; 1 Chit. PL, 302. THE DECLARATION . 10. To State only Substantive Facts. — The declaration shall SUPREME COXJKT, DISTRICT OF COLUMBIA. 93 state only the substantive facts necessary to constitute the cause of action, without unnecessary verbiage, and with sub- stantial certainty. Eule 26. Note. — For other rules in regard to the declaration in various ac- tions, see Rules 9, 10, 11, 12, 13, 16 and 17. 11. What Declaration should Show Generally.— The declaration ought always to show a title in the plaintiff, and that with convenient certainty. It ought to state all matters that are of the essence of the action, without which the plaintiff fails to show a right in point of law to ask for the judgment of the court in his favor. If his title depends on the performance of certain acts, he must affirm the performance of such acts. But if enough is stated to show title in the plaintiff and with sufficient certainty to enable the court to give judgment, but the declaration is less explicit than might have been required, the defect will be cured by verdict. Gray- v. James, Pet. 0. Ct., 476. A declaration is a statement of facts which in law give the plaintiff the right to recover. It is materially defective if, to lay the foundation of a recovery, the proof must go further than the allegations it con- tains. Stanley v. Whipple, 2 McLean, 35. It need not in, general anticipate and answer matters of defence, but is sufficient, on the demurrer, if it alleges a prima facie case. Hammer v. Kaufman, 2 Bond, 1. Note. — When the suit is brought upon an open account, verified by an afiidavit either of the plaintiff or his agent, "that the amount claimed by the , plaintiff is justly payable by the defendant to the plaintiff, and the defendant fails to defend the suit, the plaintiff may have judgment final by default for the amount, with interest from the day specified in the declaration, without an inquiry of damages." R. S. D. C, sec. 825. See Judgment by Default, post. The better way, however, is to prepare the aflSdavit under the 73d Rule, which enables the plaintiff in any action ex contractu (suits against personal representatives excepted) to have judgment final if the defendant fail to file with his plea a counter afladavit, showing a defence to the ac- tion. The provisions of Rule 73 and the decisions under it, will be found under the title. Judgment by Default. As its object is to facilitate proceedings arid prevent defences for delay, the careful lawyer will familiarize himself with its provisions before filing his declaration, or putting in his plea. 12. Matters of ETidence. — A declaration which states the facts necessary to be stated to make a case, is not demurrable, because it contains matters of evidence. The latter is merely surplusage. U. S. use of Alexander v. Ritchie, 3 Mackey, 162. 13. With Bill of Particulars Annexed.— When the declaration con- sists of the common counts with a bill of particulars annexed, no re- covery can be had for services not included among the items of charges contained in the bill of particulars. The latter defines the applica^ tion of the common counts, and is a part of the pleading under our 94 PRACTICE AND PROCEDURE OF THE system. Fague v. Corcoran, 3 Mackey, 199. But the court Djay, on a new trial being granted, allow an amendment of the bill of particu- lars so as to include such a charge. Id. 14. Alleging Special Damage. — In actions of contracts, or tort, damages which materially and necessarily arise from the breach or gravamen need not be stated, as they are covered by the general damages laid in the declaration. Special damages, not necessarily implied, cannot be recovered, unless specially stated ; and although the plaintiff has given evidence of special damages, without objection by the defendant, yet the defendant may object to their allowance on the trial. Bas v. Steele, 3 Wash., 381. The allegation, "where- by the plaintiff was subjected to great inconvenience and injury," is not an allegation of special damage. Roberts v. Graham, 6 Wall., 578. 15. Declaration Against a Married Woman. — In a suit instituted under the Married Woman's Act against a mai'ried woman, the decla- ration or complaint should show that she is a married woman having a separate estate, and that she has, by reason of some contract having relation to it, become liable to satisfy a judgment against her out of that estate ; the judgment against her is not a personal one purely, but one to be satisfied out of her separate estate,' and the record should show this ; otherwise the judgment is void. Offutt v. Dangler, 5 Mackey, 313. 16. Declaring on Official Bonds. — The declaration should aver that the principal was appointed to be and became such officer, as he is described in the condition of the bond. United States v. Jackson, 104 U. S., 41. 17. By an Assignee. — In general, an assignee's declaration should aver the assignment by which he holds. But the omission of such an averment may be supplied by amendment. Railroad Co. v. McHenry, 17 Fed. Rep., 414 ; 16 Fed. Rep., 195. 18. Upon Statutes. — In a declaration upon a statute where there is an exception in the enacting clause, it must be averred that the de- fendant is not within the exception. [2 Chitt., 582 ; 1 Dorn & E., 144 ; 6 Id., 559 ; 1 East, 646.] Walker v. Johnson, 2 McLean, 92. But see MuUer v. United States, 4 Ct. of 01., 61. 19. On a Copyright.— In a suit for the infringement of a copyright, the declaration must set out in detail the substantial requirements of the copyright laws. Music Co. v. Paper Co., 19 Fed. Rep., 758. 20. On a Patent Eight.— The distinction between suits on copy- rights and on patent rights is, that the latter are prima facie good by reason of the quasi judicial proceedings touching the novelty and usefulness of the invention had before the Patent Office previous to issuing the patent, and of which novelty and usefulness it is evidence ; but in respect to copyrights, the Librarian of Congress simply makes a record of the title and the receipt of the copies, and has no power SUPEEMB COXJB.T, DISTEICT OF COLUMBIA. 95 to adjudicate upon the right. Music Co. v. Paper Co., 19 Fed. Rep., 758. 21. Counts. — When a special contract remains open, the plaintiff's remedy is on the contract, and he must set it forth specially in his declaration. But if the contract has been put an end to, or is fiilly performed, an action for money had and received lies to recover any payment that remains due. Canal Co. v. Kuapp, 9 Pet., 541 ; Per- Mns V. Hart, 11 Wheat.,- 237. See Magarity v. Shipman, 2 Mackey, 334. If the plaintiff fails to prove the special contract as stated in his declaration, but shows a duty on the defendant to pay, in money, an amount due, he may recover on the general counts. In such case the facts of the special contract may be gone into to show the amount due. Ames v. Le Rue, 2 McLean, 216. Though counts in a declaration be abandoned, they are not for aU purposes to be considered as stricken from the record. As matters of reference in subsequent counts, th^ are held good. Jones v. Van Zandt, 5 McLean, 214. Whenever the same plea may be pleaded and the same judgment given on two counts, they may be joined in the same declaration. StockweU V. United States, 3 Clifford, 284. Where two or more defendants are sued jointly, a count in the same action agaiast one of them alone, upon his several Uability, can- not be sustained. Brown v. Lee, 19 Fed. Rep., 630. Note. — ^For examples of simpUfled forms of declarations and other pleadings, see post, close of this chapter. 22. Notice to Plead. — A notice to plead shall be subscribed to every declaration in the following form : The defendant is to plead hereto on or before the first day of the first special term of the court occurring twenty days after service hereof; otherwise judgment. P. Q., Attorney for Plaintiff. Except this notice to plead, subscribed to the declaration, no rule to plead or demand of plea shall be necessary . Eule 13 . PLEAS. 23. Shall Set Forth the True Defence.— Every plea shall set forth the true defence upon which the defendant supposes he may defeat the plaintiff's action. It may deny all, or any particular material allegation of the declaration, or it may confess and avoid; and so of the replication to the plea. Eule 27. 24. No formal Conclusion or Prayer for Judgment Neces- sary. — No formal conclusion or prayer for judgment shall be necessary in any pleading. Eule 28. 96 PRACTICE AND PROCEDURE OF THE Note.— By the provision of the 73d Rule of court, when the action is ex contractu, and the plaintiff has filed with his declaration an afil- davit, "setting out distinctly his cause of action, and the sum he claims to be due, exclusive of all set-offs and just grounds of defence, and shall have served the defendant with copies of his declaration and of said affidavit," he will be entitled to judgment for the amount claimed, unless the defendant file with his plea a counter affidavit, " specifically stating in precise and distinct terms the grounds of his defence, which must be such as would, if true, be sufficient to defeat the plaintiff's claim in whole or in part." Where, therefore, the plain- tiff has filed an affidavit under this rule, care must be taken that the plea is accompanied with a sufficient affidavit of defence. As to what will constitute a sufficient affidavit, see Judgment by Default. 25. Affidavit to Accompany Plea to Scire Facias and Actions on Judgment.— In cases of scire facias on judgment, and in actions oru judgments from a State court or a court of the United States, any plea thereto shall be treated as a nullity, unless an affidavit accom- pany the plea showing a defence' to the action. See Scieb Facias. 26. Dilatory Pleas. — That dilatory pleas are waived by pleading to the merits, see Conrad v. Atlantic Ins. Co., 1 Pet , 386, 450 ; Society, etc., V. Paulet, 4 Pet., 480 ; Yeaton v. Lynn, 5 Pet., 223 ; BaUey v. Dozier, 6 How., 23 ; Sheppard v. Graves, 14 How., 505, 512. A plea to the merits and in abatement should not be united. If they are, the matters in abatement will be deemed waived. Sheppard v. Graves, 14 How., 505 ; Spencer v. Lapsley, 20 How., 264. 27. Exception to the Rule of Waiver. — Although a plea in bar ad- mits the jurisdiction, the court has power to permit the defendant to withdraw it and plead in abatement a denial that the averments relied on to show jurisdiction were true, if it be shown by affidavit that such averments were false and fraudulent. Eberly v. Moore, 24 How., 147. 28. Objections which maybe Pleaded in Abatement. — Marriage of a female plaintiff, pending the suit, does not of itself abate the suit ; the objection can only be made available by plea in abatement. Chirac V. Remicher, 11 Wheat., 280. Persons served with process as repre- senting an alleged corporation may plead in abatement, in their own names, the non-existence of such corporation. Kelly v. Mississippi Cent. R. Co., 1 Fed. Rep., 564 ; 2 Plippen, 581. In Federal courts, the existence of foreign, as well as of domestic, corporations can be de- nied only by special plea in abatement or bar or notice. Union Cement Co. v. Noble, 15 Fed. Rep., 502. Where the subject matter of the controversy is not within the jurisdiction of the court, the excep- tion may be taken under, the general issue without pleading in abate- ment. Maissonnaire v. Keating, 2 Gall, 325. 29. Lis Alibi Pendens. — The pendency of a prior suit in a state court is not a bar to a suit in the Supreme Court of this District by the same plaintiff against the same defendant for the same, cause of action. Stanton v. Embrey, 93 U. S., 548. DISTEICT OP COLUMBIA. 97 30. Statute of Limitations. — Where the statute of limitations pro- vides that an action upon certain species of contracts must be brought within three years, and upon others within two years, a plea of the limitation of two years, which does not allege that the cause of action was of the latter class, is bad. Lyon v. Bertram, 20 How., 149. In modem practice a plea of the statute of limitations is regarded as equally entitled with other legal defences. It may be interposed under general leave granted to plead "as advised," after demurrer overruled, and wiU not be stricken out upon affidavits that plaintiff had a good cause of action. Knoedler v. Meloy, 2 Mac A., 239. If the statute of limitations is pleaded and the plea is overruled, it cannot be put in again by the same parties or their privies. Fisher V. Eutherford, Baldw., 188. "What demands are subject to the limitations prescribed by act of March 3, 1863, (12 Stat., 755), and May 11, 1866 (14 Stat., 46), and requisites of a plea under those acts, see Mitchell v. Clark, 110 U. S., 633. 31. Executors, etc., not Boand to Plead the Statute. — It shall not be considered as the duty of an executor or administrator to avail himself of the act of limitation to bar what he sup- poses to be a just claim, but the same shall be left to his honesty and discretion. Act of Md., 1798, ch. 101, sub-ch. 9, sec. 9. * See also Limitations of Actions, Chapter Vn. 32. Plea of Non Est Factum. — The plea of rwn est factum shall not be received in any action brought, or hereafter to be brought, unless the party for whom such plea shall be ten- dered verify the same by affidavit or aflSirmation as the case may be, to the truth thereof, or unless the defendant, being heir, executor or administrator, of the person alleged to have made the deed, obtain leave from the court, upon showing just cause, to put in such plea. Act of Md., 1785, ch. 80, sec. 3. Xote. — A special plea of non est factum, which merely sets out an alteration of the instrument made after its signature, without the knowledge, consent or authority of the defendant, is insufficient ; for the alteration may have been made by a stranger, yet without the knowledge or authority of the plaintiff. United States v. Linn, 1 How., 104 ; 17 Pet., 88. Matters in avoidance of a sealed instrument must be pleaded specially. Greathouse v. Dunlap, 3 McLean, 303 ; Maine Ins. Co. v. Hodgson, 6 Cranch, 206. 33. Special Pleas. — A special plea, the averments of which amount only to the general issue, is bad. Matthews v. Matthews, 2 Curt., 105 ; Halstead v. Lynn, 2 McLean, 226 ; Dibble v. Duncan, Id., 553 ; 6 McLean, 401. A special plea must contain a single good defence to all that it pro- 13 . 98 PRACTICE AND PEOCEDUEE OF THE fesses to answer. One which sets up several defences is bad. Cook V. Tribune Asso., 5 Blatchf., 352. 34. Failure of Consideration.— This plea should allege distinctly and with precision the actual consideration, and that there never was any other ; and where the plea alleges a partial failure of con- sideration, it should set forth to what extent and wherein there has been a failure. Where fraudulent representations are relied upon they should be fully stated, with all necessary incidents of time and circumstances, and also that the party entered into the contract relying upon such representations. Grunninger v. Philpot, 5 Biss,, 82. 35. Accord and Satisfaction.— This plea must aver the payment and receipt in satisfaction. Maze v. Miller, 1 Wash., 328 ; United States v. Clark, Hempst., 315. 36. Set-off. — Mutual debts between the parties to an action, or between the testator or intestate of both parties, or either party, may be set off against each other by plea in bar, whether the said debts be of the same or a different nature ; and if either debt arose by reason of a penalty, the exact sum to be set off shall be stated in the plea. E. S. D. C, sec. 810. See Act of Md., 1785, ch. 46, sec. 7. 37. Form of. — The plea of set-off may be : That the plain- tiff, at the commencement of the suit, was, and still is, indebted to the sum of dollars, for , as appears by the par- ticulars of said debt, hereunto annexed ; and he is willing that the same may be set off against the plaintiff's demand. E. S. D. C, sec. 811. 38. Judgment on. — And upon the trial of an issue upon the plea of set-off, judgment shall be for the balance found due, whether to the plaintiff or defendant, with costs. E. S. D. C, sec. 812. 39. Mutual Judgments may be Set Off.— Mutual judgments recovered in the court may be set off against each other, on motion of either party; and the court shall award execution for the balance found due against the party chargeable there- with. E. S. D. C, sec. 813. 40. — Must be Against Real Party to the Suit. — A set-off should be a substantial demand by a real party interested in the payment of ' that which is the subject matter of the action ; whether the party appears upon the record or not is immaterial, if it be shown that he is the real party interested ; and the court will go outside of the record to find the real party. Oil Company v. Barbour, 2 Mackey, 4. The same rule applies in cases of recoupment. See Recoupment, post. Whether defendant may set off illegal interest paid against the amount due upon a promissory note, qusere. Kendall v. Vander- SUPREME COXIET, DISTRICT OE COLUMBIA. 99 lip, 1 Mackey, 110. But where the illegal interest was paid by a third party, for whose accommodation the note was made, the accommodation maker cannot, when sued upon the note, set off the illegal interest paid by such third party. Id. 41. Attorney's Lien Subject to Right of Set-Ofif.— An attorney's lien upon a judgment is subject to an existing right of set-off in the other party to a suit. Winterset v. Eyre, 3 McCrary, 175, and cases there cited. See Barrick v. Geyer, 5 Mackey, 32. 42. Set-Oflf of Joint Debts. — Joint debts cannot be set off against separate debts nor separate debts against joint debts. Thus set-off cannot be adjudged between a separate debt due from a partner, and a joint debt due from a partnership. Young v. Black, 7 Cr., 565 ; Jackson v. Robinson, 3 Mason, 138 ; Vose v. PhUbrook, 3 Story, 335 ; House V. Sheppard, 2 Sumn., 409. 43. Set-Off of Unliquidated Damages. — The general rule is that a demand for unliquidated damages cannot be the subject of .a set-off. But it may be pleaded by way of recoupment. See Oil Company v. Barbour, 2 Mackey, 4 ; Armstrong v. Brown, 1 Wash., 43 ; DeTastett V. OrousiUat, 2 Id., 132 ; Cheongno v. Jones, 3 Id., 359 ; Thomas v. McOonnell, 3 McLean, 381. A debt payable in future cannot be set off against a present de- mand. Scott V. Jones, 1 Brock. Marsh, 244. A sei>off must be between demands by and against the plaintiff in the same right. Wright v. Rogers, 3 McLean, 229. 44. Set-Off as against Assignees. — An off-set which a debtor ac- quired against his creditors before he received notice that the latter had assigned the demand against him, may, as a general rule, be set off in equity against the demand when sued by the assignee. Other- wise of an off-set acquired after such notice was received. Brashear V. West, 7 Pet,, 608 ; George v. Tate, 102 U. S., 564. See also Stuart V. Anderson, 6 Cr., 203 afllrming, 1 Cr. C. 0., 568. The right of a defendant in an action prosecuted by a nominal plaintiff for the benefit of a third person to have a set-off, depends on whether his demand is a proper set-off as against the real beneficiary, not as against the nominal plaintiff. Corser v. Craig, 1 Wash., 424 ; Berger v. Williams, 4 McLean, 125. In an action on account stated evidence to establish an indepen- dent claim assigned to the defendant after the settlement of the ac- count, by way of set-off, was held admissible. Vayton v. Brenell, 1 Wash., 467. An open account assigned without the consent of the debtor, held not a proper set-off in a suit by the debtor against the assignee. RoUins V. TritcheU, 5 Am. Law Rec, 247 ; 14 Bankr. Reg., 201. 45. Set-off against a Suit of the United States.— A claim against the government which has been duly presented to the accounting officers, accompanied by proper vouchers for allowance, but has been by them rejected, or a claim which is not required to be pre- sented to them, may be submitted in an action by the government 100 PRACTICE AND PEOCEDTJEE OF TH]p against the claimant as a set-off ; and on proper proof of a sum due the claimant the demand of the government against him may be reduced accordingly (1 Stat., 514). United States v. Wilkins, 6 Wheat., 135, and see 7 Pet., 128 ; 8 Pet., 150; 9 Pet., 319; lOPet., 125; 15 Pet., 336, 377 ; 103 U. S., 667. The privilege of setting off a disallowed claim against a suit by the government has been held to extend to claims arising out of trans- action's independent of the demand of government in suit, if of the nature to render them proper subject of set-off against it. U. S. v. Wilkins, 6 Wheat., 135. The following are instances to which the right extends : To an officer's claims for extra compensation for extra services which he had performed. U. S. v. Fillebrown, 7 Pet., 28. To an officer's claim for commissions or disbursements made by him. U. S. V. McDaniel, 7 Pet., 7 ; 15 Pet., 336. To a claim for costs accrued against government in a previous suit. U. S. v. Ringold, 8 Pet., 150. To equitable claims, general as well as legal. Gratiot v. United States, 15 Pet., 336 ; United States v. Collier, 3 Blatchf., 325. To an officer's claim for salary due. Fendall v. United States, 12 Ct. of CI., 305. To an officer's claim for fees ; as against a proceeding in behalf of the United States to attach him for not paying over money col- lected on execution. U. S. v. Mann., 2 Brock., Marsh 9. 46. To what Cases the rigrht does not Extend. — To a claim which de- fendant acquired by purchase. U. S. v. Robeson, 9 Pet., 319. For unliquidated damages, U. S. v. Buchanan, 8 How., 83 ; Ware v. U. S., 4 Wall., 617 ; U. S, v. Williams, 5 McLean, 133. To claims which should have been presented to the proper accounting officer, with proper vouchers, etc. Ware v. U. S., 4 Wall., 617 ; U. S. v. Gilmore, 7 Wall., 491 ; U. S. v. Lamon, 3 Mac A., '204. Claims of iadependent origin when the suit is to recover a tax. U. S. v. Pacific R. R., 4 Dill., 66 ; Apperson v. Memphis, 2 Flippin, 363. 47. Recoupment. — The general rule applies in cases of recoupment as in set-off, that the demand must be against the real jiarty interested in that which is the subject of the action, whether he appears upon the record or not. Thus in action by A against B and C, the defend- ants to recoup the plaintiff's demand, it was shown that D, who was not a party to the record, was a partner of B and C in the original contract, and was interested in the reduction of plaintiff's demands, and that he had suffered in common with B and C the damage sought to be recouped. Held, that the recoupment was admissible. Oil Com- pany V. Barbour, 2 Mackey, 4. THE REPLICATION, EEJOINDEK, ETC. 48. Rule as to the Replication, Rejoinder, etc.— Time for Fil- ing.— After plea filed and served, the plaintiff shall reply ; and after replication filed, the defendant shall rejoin, and so on till issue is joined, within ten days after the last pleading filed, excluding the day of such filing ; otherwise, on motion ■SXJPEEMB COUET, DISTRICT OP COLUMBIA. 101 and notice thereof, tlie suit may be dismissed or judgment taken by default, according as tlie failure was by the plaintiff or defendant. Eule 29. 49. Special Replications and Rejoinders. — It is necessary that the facts of the plea should be traversed by the replication, unless matters in avoidance be set up. It is not sufficient that the facts alleged in the replication are inconsistent with those stated iii the plea. An issue must be taken on the material allegations of the plea. United States V. Buford, 3 Pet., 12 ; Jones v. Hays, 4 McLean, 521. 50. To Plea of the Statute of Limitations.— Where the statute of limitations is pleaded, and the plaintiff desires to bring himself within its savings, he must, in his replication, set forth the facts specially. Miller v. Mclntire, 6 Pet., 61. 51. When Replication may Show Equitable Title. — Though in Eng- land a court of law protects the title of an equitable owner of a chose in action, sued on in the name of the legal owner, by refusing to re- ceive a plea which is in fraud of his rights, yet they will not allow these rights to be shown by way of replication to what is a good plea in bar of the action of the plaintiff, nor admit them to be relied on at the trial. The law of the United States courts is otherwise, and the ' proper practice is, to reply the equitable title and notice thereof to the defendant, and thus show the asserted bar to be in fraud of his rights ; and when this is shown, the bar is adjudged insufficient. 1 Wheat., 232 ; 1 Wash., 474 ; 1 Curt., 239 ; Brown v. Hartford Ins. Co., 11 L. Eep., N. S., 726. 52. To Plea of General Performance.— A replication to a plea of general performance, in an action on a bond, should assign a special breach. An omission to do so must be taken advantage of by de- murrer, and is cured by verdict. Minor v. Mechanics' Bank, 1 Pet., 46-70. 53. The Replication de injuria.— The replication of de injuria, in- terposed to a special plea justifying the seizure and conversion of property by defendant, puts in issue the material averments of that plea, and throws upon the defendant the burden of proving as much of the plea as constitutes a defence to his action. Erskine v. Horn- bach, 14 Wall., 613. 54. Rejoinder. — The rejoinder must answer the replication and ten- der an issue on a single point. If it is double, it is demurrable. United States v, Compton, 3 McLean, 163. Note. — As to repleader, see Rule 50. JOINDBE IN ISSUE. 55. Simplified Form of.— The joinder in issue may be— The plaintiff joins issue upon the defendant's first plea. The defendant joins issue upon the plaintiff 's replication to the first plea. And this form of joinder shall be deemed to be a denial of 102 PKACTICE AND PEOCEDURE OF THE the substance of the pleading to which it relates and an issue thereon. Rule 30. DEMUKEEE. 56. Form of— The Marginal Note.^ — The form of a demurrer shall be as follows, or to the like effect : The defendant says that the declaration, [indictment, or other pleading, as the case may be, J is bad in substance. And in the margin thereof some substantial matter of law, intended to be argued, shall be stated, and a demurrer without such statement, or with a frivolous statement, may be set aside by a justice at chambers or by the court, and leave given to enter judgment as for want of plea ; provided that no final judgment shall be entered in a criminal case against any de- fendant upon overruling his demurrer to any indictment ; but the judgment in every such case shall be that he answer over, unless he elect to stand on his demurrer. Eule 31. 57. No Joinder in Demurrer Necessary. — It shall not be neces- sary to file a joinder in demurrer, but the filing of a demurrer shall be considered as making an issue of law. Id. 58. What the Demurrer Admits. — A demurrer is a confession of such facts only as are well pleaded. Commercial Bank v. Buckner, 20 How., 108. And it never admits the law arising on those facts. United States v. Arnold, 1 Gall., 348 ; 9 Oranch, 104 ; 3 McLean, 241. The plaintiff abandons his demurrer by pleading over after the de- murrer has been overruled. Young v. Martin, 8 Wall., 354 ; Stanton V. Embrey, 93 U. S., 548. The rule that upon a demurrer judgment will be rendered against the party committing the first fault in pleading, applies only to sub- stantial defects. The fault must be one that is bad upon general de- murrer. Other exceptions to the rule stated. Jackson v. Rundlet, 1 Woodb. & Min., 381. 59. Special Demurrers Tirtnally Abolished.— This court will not listen to any mere matters of form on demurrer. They were at com- mon law subject to special demurrer, and by the rules of this court all special demurrers are virtually abolished. U. S. use of Alexander v. Ritchie, 3 Mackey, 162. Examine Parsons v. Parker, Wash. Law Rep., Vol. IV, p. 145. 60. Court not Restricted to the Marginal Note.— Upon a general demurrer the court is not confined to t^e point noted in the margin. If it finds the pleading bad on other grounds, the demurrer will be sustained. Hines v. The District, Mac A. & Mack., 144. The statement must be something more than a mere repetition of the demurrer, thus "that the matters disclosed by the plea contain no justification" is insufiicient. Ross v. Robinson, 3 DowL, 779, SUPREME COURT, CISTRICT OE COLUMBIA. 103 61. FriTOlous Demurrers. — In applying to set aside a demurrer as frivolous, the question is not whether the objection be trivial or insignificant, but whether it be frivolous and palpably unfounded. If there be a fair doubt whether the objection stated be good, how- ever trifling the error, if the defendant be not under terms to plead issuably (Nanney v. Kenrick, 1 Dowl., 609), the judge or court will not interfere on this rule. Dalton v. Mclntyre, 1 Dowl., N. 8., 76. But see Atwood v. Latney, 4 Mackey, 186. A statement of the matter to be argued will not be deemed frivo- lous, if the point raised by it be arguable ; but if it be obviously frivolous, or be in direct opposition to some decided case, or amount to saying nothing, the demurrer will be set aside. Papineau v. King, 2 Dowl., N. S., 226. The application may be made after ob- taining time for joining in demurrer. Cutts v. Surridge, 9 Q. B., 1015, but not after joinder. Norton v. Mackintosh, 7 Dowl., 529 ; and see Lane v. Ridley, 10 Q. B., 479. 62. Proceeding on Appeal, when Judg'ment Sustaining Demurrer is Eeyersed. — Where the judgment of the circuit court sustaining a demurrer is overruled on appeal, the cause will be remanded for further proceedings to be had therein, as if the court below had overruled the demurrer, and subject to additional pleadings or an amendment of the existing ones, according to the rules and practice of the circuit court, and upon such terms as it may impose. United States V. Boyd, 15 Pet., 187. PLEA PUIS DARREIN. 63. How Pleaded— Affidavit— Rule 32.— If a matter of defence lias arisen since tlie last pleading iiled, the party may plead the same in addition to his former defence, in the following form : , In the Supbeme Oouet of the District of Columbia, the DAY OF , 18 — . A. B., Plaintiff, ) V. V At Law. No. ^. C. D., Defendant, j The defendant says that after the alleged claim accrued, and after the last pleading in this action, that is to say, on the — — day of , 18 — , the plaintiff by deed [or otherwise as the law may permit} re- leased the defendant from the said alleged claim. Unless the court or a justice shall otherwise order, the plea must be accompanied with an affidavit of the truth of it, which may be in the following form : In the Supeemb Court of the District of Columbia, the DAY OF , 18 — . A. B., Plaintiff, ) V. [ At Law. No. — . C. D., Defendant.) The defendant makes oath and says that the plea hereunto an- nexed is true in substance and fact. 104 PEACTICE AND PROCEDURE OE THE 64. Time for Repl}'ing to. — The plaintiff shall reply within five days after service of the plea upon him ; and the defend- ant shall rejoin within two days after service of the replica- tion; otherwise judgment. Id. (Incorrectly numbered 33.) 65. This Plea a waiver of Prior Pleas. — A plea of puis darrein con- tinuance is a waiver of the prior pleas, and the only question is whether the plaintiff's claim has been paid since the original pleas were filed. Campbell v. The District of Columbia, 2 Mac A., 533 ; Yeaton v. Lynn, 5 Pet., 223. EXAMPLES OP SIMPLIFIED . FORMS. 66. Rule as to Prolixity in Pleadings. — Prolixity and un- necessary verbiage shall be avoided in all pleadings. Eule 129. 67. Declarations, Form of, Commencement and Conclnsion. In the Supreme Court or the District of Columbia, the DAY OF , 18—. .A. B., Plaintiff. \ V. I At Law, No. — . C. D., Defendant. J The plaintiflF sues the defendant for — [here state the cause of ac- tion, and conclude as follows, or to the like effect :] Andjthe plaintiff claims $ , with interest thereon from the day of , 18 — , besides costs. [Or, if the action is for the recovery of specific goods, say — ]. And the plaintiff claims a return of said goods, or their value, and § for their detention. If the cause of action accrue to or against the parties in some spe- cial character, for example, as executor, or administrator, 'or trus- tee, or assignee, in bankruptcy or otherwise, or as a corporation, partners, or surviving partner, or as a husband and wife, it will pro- mote brevity and clearness to state such character in the title of the cause, thus : A. B., Executor of Deceased, Plaintiff, "I At T a C. D., Administrator of , Deceased, Defendant. J " The plaintiff sues the defendant for [state the cause of action, and conclude as above.] The special character in which the plaintiff su.es shall not be considered to be in issue or necessary to be proved, unless, by specific plea under oath as to the truth thereof, the same be denied. 68. On Simple Contracts, Money Counts ComMned.— These may be combined in a single count, as pointed out by Williams, 2 Saunders, E., 121 c, n. 2, Stephens on PI., 33— London, 1860— thus : For money payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendant ; and for work done SUPREME COURT, DISTRICT OP COLUMBIA. 105 and materials provided by the plaintiff for the defendant at his re- quest; and for money, lent by the plaintiff to the defendant; and for money paid by the plaintiff for the defendant at his request ; and for money received by the defendant for the use of the plaintiff ; and for money found to be due from the defendant to the plaintiff on accounts stated between them. And the plaintiff claims | , with interest from the day of , 18 — , according to the particulars of demand hereto annexed. And the plaintiff may recover the whole or any part of his claim, on any one of the considerations stated. 69. Money counts Separate. Fob Goods Sold. — For goods bargained and sold by the plaintiff to the defendant. Fob Goods Sold and Dblivbbbd.— For goods sold and delivered by the plaintiff to the defendant. Foe Money Lent.— For money lent by the plaintiff to the defend- ant. Fob Money Paid.— For money paid by the plaintiff for the de- fendant at his request. Foe Money Recefved.- For nioney received by the defendant for the use of the plaintiff. Foe Intbeest. — For interest upon moneys due and owing from the defendant to the plaintiff, and for forbearance of interest by the plaintiff at the defendant's request, of moneys due and owing by him to the plaintiff. On an Account Stated. — For moneys found to be due from the defendant to the plaintiff on accounts stated between them. 70. Counts on Bill and Notes. Holder of Note Against All the Paeties.— That the defend- ant , [the maker,'] on the day of , 18 — , by his promissory, note, now overdue, promised to pay to the defend- ant , [payee,] [or order,] | — {two] months after date, and the said payee endorsed the Said note to the defendant , who endorsed it to the defendant , who endorsed it to the plaintiff, and the sai^ note was duly presented for payment and was dishonored, whereof all of said endorsers each had notice, but the said defendants did not, nor did either of them, pay the same. HoLDBE OF Bill Against All the Paeties.— That , on the day of , 18 — , by his bill of exchange, now over- due, directed to the defendant , [drawee,] required him to pay to the defendant — , [payee,] [or order,] | [two] months after date, and the said [payee] endorsed the said bill to , who endorsed it to — , who endorsed it to the plaintiff, and the said drawee accepted the said bill, which was duly 14 106 PRACTICE AND PKOCEDURE OF THE presented for payment, and was dishonored, whereof the defendants had due notice, but did not pay the same. Payee Against Maker of Note. — That the defendant on the day of , 18—, by his promissory note, now overdue, promised to pay to the plaintiff | [two] months after date, but did not pay the same. The Like on Note Payable on Demand. — That the defendant on the day of 18 — , by his promissory note, now over- due, promised to pay to the plaintiff | on demand, but did not pay the same. The Like on a Note Payable at a Banker's.— That the defend- ant on the day of , 18 — , by his promissory note, now overdue, promised to pay to the plaintiff at Messrs. Riggs & Co.'^ bankers, Washington, [as in the note,~\ | , [two] months after date, but did not pay the same. Indorsee Against Maker op Note. — That the defendant, on the day of , 18 — , by his promissory note, now overdue, promised to pay to , or order, | , Itwo} months after date ; and the said endorsed the same to the plain- tiff ; but the defendant did not pay the same. 71. Plea, Commencement and Conclnsion of. In the Supreme Court op the District op Columbia, the DAY OP , 18 — . A. B., Plaintiff, ) V. y At Law. No. — . C. D., Defendant.) 1. The defendant says, {state first defence or plea.] 2. And for a further plea the defendant says, [state the second de- fence orplea.l 3. And for a further plea the defendant says, [state the third de- fence or plea, and so on.] > If the plea is to part only of the declaration, say — And for a flirther plea to [stating to what it is pleaded}, the defendant says. Eoery second and subsequent defense or plea must be written in a separate paragraph and numbered. Note. — See Rules 73 and 121 as to when the plea must be accom- panied by afiidavit, and see sec. 32, p. 197. 72. Replication. In the Supreme Court op the District op Columbia, the DAY OP , 18—. A. B., Plaintiff, -\ V. [■ At Law. No. — . C. D., Defendant.) The plaintiff joins issue upon the defendant's [first plea], [so much of the first plea as alleges that, etc.,] [specifying what or what part.] To Plea Containing New Matter. For example : STJPEEME COTJKT, DISTRICT OP COLUMBIA. 107 1. To Plea of Release.— That the alleged release is not the plain- tiff's deed, [wasprocured by defendant' s fraud.'] 2. To Plea of Set-off.— That the alleged set-off did not accrue within three years before this suit. 3. To Plea of Self-defence.— T^hat the plaintiff was possessed of land whereon the defendant was trespassing and doing damage, Whereupon the plaintiff requested the defendant to leave the said land, which the defendant refused to do, and thereupon the plaintiff gently laid his hands on the defendant in order to remove him, doing no more than was necessary for that purpose, which is the alleged first assault by the plaintiff. 4. To Plea of Right of Way.— That the occupiers of the said land did not for twenty years before this suit enjoy as of right and with- out interruption the alleged way. To Plea of no such Recobd.— That there is not any record of the said recovery [recogmzance] [writ] in the said plea mentioned re- maining in the said court, [said Circuit Court of Montgomery County, in the State of Maryland,] as in the said plea alleged. Replication Confessing Past of a Plea op Payment.- And as to the defendant's second plea, except so far as it is pleaded and relates to the sum of $ , parcel of the money claimed, the plaintiff confesses and admits that the defendant did satisfy and discharge by payment, as in the said plea alleged, the plaintiff's claim as to the said sum of | , parcel, etc., and the plaintiff says that he will not farther prosecute his suit against the defendant as to said sum of I , parcel, etc., and as to the residue of the defendant's second plea the plaintiff takes issue thereon. Replication Admitting Part of a Plea op Set-off. — The plain- tiff takes issue on the defendant's second plea, except so far as relates to the sum of | , parcel of the amount in which the plaintiff is therein alleged to be indebted to the defendant ; and as to that plea, so far as it relates to those sums, parcels, etc., the plaintiff admits that he was and is indebted to the defendant in the sum of | , parcel of the money in which he is, in that plea, alleged to be in- debted, and the plaintiff is willing to set off the said sum of | , parcel of the money claimed by him, against the said sum of f- in which he was and is so indebted to the defendant, and he does set off the same accordingly, and says that he will not further prosecute his claim or suit against the defendant for or in respect of the same. In the Supreme Court of the District op Columbia, the DAY OF , 18—. 73. Rejoinder. A. B., Plaintiff, ) V. V At Law. No. — . C. D., Defendant. ) The defendant joins issue upon the plaintiff's replication to the defendant's [pteas,] [first plea,] [second plea,] [as the case may be.] 108 PEACTIOE AND PEOOEDTJEE OP THE 74. Demurrer. In the Supebmb Ooubt of the District of Columbia, the DAY OF , 18 — . A. B., Plaintiff, ) V. [■ At Law, No. — . C. D., Defendant. J The defendant [plaintiff] says that the declaration [plea] is bad in substance. [Insert in the margin, or below the demurrer, the following:] Note. — One of the matters of law intended to be argued is that, etc. [State the ground of the demurrer concisely.] CHAPTBE XX. PREPARING FOR TRIAL— DOOtJMENATRY EVTDENOE— DEPOSITIONS. 2. 3. 4. 5. 6. 8. Notice to admit documents. Rule 33. Production of books and writ- ings. Rule 34. The motion to be in writing. Copy of order to be served. Complying with the order. Time to produce may be en- larged. Penalty where plaintiff fails to produce. The like where defendant fails to produce. Penalty for failing to produce. Presumptions against party refusing to produce. 11. Examination of parties. Rule 35. 12. Inspection of documents in opponent's hands. Rule 35. In what cases inspection may be had. — To enable party to prepare pleadings. Copies of department records and papers. 9, 10, 13, 14. 15, 16. Copies of records, etc., in office of Solicitoi; of the Treasury. 17. Instruments, etc., of Comp- troller of the Currency. 18. Organization certificates of National banks. 19. Transcripts from books of the Treasury. 20. Cofjies of records, etc., of Gen- eral Land Office. 21. Copies of records, etc., of Pat ent Office. 22. Copies of foreign letters-pat- ent. 23. Printed copies of specifications and drawings of patents. 24. Extracts from the journals of Congress. 25. Copies of records, etc., in offi- ces of United States consuls etc. 26. Transcribed records of certain Federal courts. 27. When original records are lost or destroyed. 28. Same subject. SUPREME COURT, DISTRICT OP COLUMBIA. 109 29. Notiioe in proceedings to re- store lost or destroyed rec- ords, how given. 30. Force and effect of court pa- pers restored or supplied. 31. Authentication of legislative acts, andproof of judical pro- ceedings of States, etc. Proofs of records, etc., kept in offices not pertaining to courts. Copies of foreign records re- lating to land titles in United States. Copy of license and certificate to be evidence of marriage. Original protest of notary to he prima fade evidence. Certificate to be like evidence. Exemplified copies of debts of record. Certified copies of the record of foreign deed, etc. Foreign probate of instru- ments not of record. Where the witnesses to such instruments are dead, how probated. 32, 33, 34. 35. 36. 37. 38. 39. 40. 41. Depositions of non-resident witness, how taken. 42. Provisions of rule sixty-three. 43. Form of the commission. 44. Depositions de bene esse. 45. Cannot be used in another suit. 46. The statute must be strictly pursued. 47. Notice, to whom given. 48. Mode of taking depositions de bene esse. 49. Transmission to the court of depositions de bene esse. 50. Depositions under a dedimus potestatem and in perpetuam, etc. 51. Depositions inperpetttam, etc., admissible at discretion of the court. 62. Depositions under a dedimus potestatem,, how taken. 53. Subpoena duces tecum under a dedim,us potestatem. 54. Witness under a dedimus po- testatem. 1. Notice to Admit Documents. — Either party may call on the other party by notice to admit any document, saving all just exceptions. lii case of neglect or refusal to admit, the cost of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial the justice certify that the refusal to admit was rea- sonable. Eule 33. (Incorrectly numbered 34.) See Eule 84. The following or the like in substance, shall be the form of a notice to admit : In the Supreme Court of the Disteict of Columbia. A. B., Plaintiff, ) V. [• At Law. No. — . C. D., Defendant. J Take notice that the plaintiff [defendant] in this cause proposes to adduce in evidence on the trial thereof the several documents here- under specified, and that the same may be inspected by the defend- ant, [plaintiff,] his attorney or agent, at , on the , day of , 18—, between the hours of and ; and that the said defendant [plaintiff] will be required to a,dmit that such of said documents as 110 PEACTIOE AND PEOCEDTJEE OF THE are herein specified to be originals were respectively written, signed, or executed as they purport, respectively, to have been ; that such as are specified as copies are true copies ; and such documents as are stated to have been served, sent or delivered, were so served, sent or delivered, respectively, saving all just exceptions to the admissibility of all. such documents as evidence in this cause. Dated this day of , 18—;. Attorney for Plaintiff. To Mr. , Attorney for Defendant. ORIGINALS. Description of Documents. Date. COPIES. Description of documents. Date. Original or duplicate served, sent or delivered, when, how, and by whom. If tlie party to whom the notice is addressed make the ad- mission, it may be endorsed on or subscribed to the notice, as follows : I consent to make the admission required in the within notice. [January — , 18 — .] Plaintiff's [Defendant's] Attorney or Agent. I consent to admit the documents numbered 1, 2, 3, 4 in the within notice. [Jan'y — , 18 — .] If the admission be special, it may be made in a separate paper, as follows : In the Supkeme Court of the District of Columbia, the DAY OF , 18—. A. B., Plaintiff, ^ v.. [• At Law. No.—. CD., Defendant. J I do hereby, as the attorney [agent] for the above mentioned de- fendant, [plaintiff] agree to admit in evidence, on the trial of the cause, the paper writing hereto annexed, marked A, as and to be a true copy of [state of what but more fully than in the notice ;] and I do also hereby agree, as such attorney, to admit in evidence on such trial the paper writing hereto annexed, and maxked B, as and to be a true copy, etc. StrPEEME COURT, DISTRICT OP COLUMBIA. Ill 2. Production of Books and Writings. — A party to an ac- tion at law, haying in his possession or power boolcs or writ- ings containing evidence pertinent to the issue, may be re- quired by order of the court to produce the same on the trial, on motion and due notice thereof being given, in cases and under circumstances where parties might be compelled to pro- duce the same by the ordinary rules of proceeding in chan- cery. Eule 34. 3. The Motion to be in Writing. — The motion must be made in writing, filed in the cause, and it must set forth a descrip- tive list of the books and writings to be produced. Id. 4. Copy of the Order to he Served. — If the court order the production of the books and writings specified in the motion, a copy of the order and list, made by the clerk and duly certi- fied, shall be served on the party in question two days before the day on which he shall be required to produce the books and writings. Id. 5. Complying with the Order. — It shall be deemed a com- pliance with the order to file the books and writings in the clerk's office by the time therein specified. Id. 6. Time to Produce may be Enlarged.— On application of the party served with the notice to the court, or to a justice in vacation, the time to comply with the order may be en- larged. Id. 7. Penalty where Plaintiff fails to Produce.— If a plaintiff fail to comply with such order, the court may, on motion, give the like judgment for the defendant as in case of non- suit. Id. 8. The Like when Defendant fails to Produce.— If a defend- ant fail to comply, the court may, on motion, give judgment against him by default. Id. Notes of Decisions.— This rule embodies the provisions of the act of Congress, Sept. 24, 1789, ch. 20, see. 15 (1 Stat., 821), and of sec. 724 of the Revised Statutes. The statute is explained in Merchant's Nat. Bank V. State Nat. Bank, 3 Cliff., 201. This statute is merely cumu- lative, and is not adopted as a remedy for a bUl of discovery. Bry- ant V. Layland, 6 Fed. Rep., 125. Giving notice to produce books or writings is not enough. The proper course is to move the court for an order ; and it is only upon a failure to comply with such order that the court can give a judg- ment as on default. Thompson v. Selden, 20 How., 194 ; Bank v. Kurtz, 2 Cr. C. C, 342 ; Macomber v. Clark, 3 Id., 847 ; Dunham v. 112 PEACTICE AND PEOGEDTJEE OP THE Riley, 4 Wash., 126 ; Barr v. Steele, 3 Wash., 381 ; Mays v. Carbury, 2 Or. 0. C, 336. On a motion for the production of a paper, a. prima facie case of its existence and materiality must be made out, and the court will then pass an order nisi, leaving the opposite party to produce, or show cause at the trial, where alone the materiality can be finally decided, lasigi V. Brown, 1 Curt., 401. But see Hylton v. Brown, 1 Wash., 398. The fact that a bill of discovery has been filed and answered, but the papers not produced, is not a bar to a motion for a production of books and papers. Id. The party may be required to produce the book or writjng before the trial. Central Bank v. Tayloe, 2 Or. C. C, 427. As to proceedings for a discovery of documents in an action at law, see Jacques v. Collins, 2 Blatchf., 23. In that case it was held that it was only requisite that the cause should be at issue ; that the court should be satisfied that the evidence required to be disclosed wUl be pertinent to such issue ; and that the circumstances should be those in which a discovery would be decreed in chancery. That the petition need not contain the formalities of a bill of dis- covery in chancery. If it contains a notice to the opposite party of the time and place of making the application, and a plain designa- tion of the documents sought for it is sufficient. See also on the re- quisites and sufficiency of aflldavit and notice. Lowenstein v. Cary, 12 Fed. Rep., 811, and note. A corporation may be compelled to produce its books and papers in evidence, which may be necessary to the rights of litigants, and considerations of inconveniepce mtist give way to the paramount rights of parties to the litigation. Wertheim v. R. R., 15 Fed Rep., 716, and note. If the purpose is to obtain a judgment of default on failure to pro- duce, the applicant is bound to give the opposite party notice that he shall move the court for an order upon him to produce the papers or on failure to do so, to award a judgment or non-suit, as the case may require. Barr v. Steele, 3 Wash., 381. And he must obtain the order that they shall be produced, but the order need not be absolute when moved for, but may be to show cause at the trial. Dunham v. Riley, 4 Wash., 126 ; lasigi v. Brown, 1 Curt., 401. If to a notice to produce certain letters relating to moneys re- ceived in a certain transaction, the party on oath answering says he has not a particular letter in his possession, and after diligent search could find none such, it is sufQcient to prevent offering secondary evidence of its contents. Vasse v. Mifflin, 4 Wash. G. C, 519. 9. Penalty for Failing to Produce.— The statute has so far changed the common law as to inflict upon the party who disobeys an order to produce papers, the penalty of a non-suit or default instead of merely letting in the opposite party to parol proof lasigi v. Brown, 1 Curt., 401. 10. Presumptions against Party Refusing' to Produce.— A party who refases on request to produce a document shown to be within his con- StrPEEME COURT, DISTEICT OF COLUMBIA. 113 trol, thereby raises a presumption that if produced it would have tended to support the evidence which the other party, in the absence of the document, is compelled to rely upon, and this rule applies even where there is no question of best and secondary evidence. Clifton V. U. S., 4 How., 242. Discovery cannot be used against party in criminal proceedings. See 860 E. S. U. S. 11. Examination of Parties— Inspection of Documents.— Dur- ing tlie preparation of a suit either party may have leaye, on application to the court, or one of the justices, upon reason- able notice, to examine his adversary, orally or by interroga- tories, on oath or affirmation, before an examiner or commis- sioner of the court ; but the answers obtained shall not be read on the trial, unless the party has died or become permanently sick. Eule 35. 12. Inspection of Documents in Opponent's Hands. — Either party may obtain leave, in like manner, to inspect material documents in the hands of his opponent, or to examine him, so as to discover whether such documents exist. Id. * The leave specified in the two preceding paragraphs must be applied for upon affidavit, showing the materiality of the ex- pected disclosures or documents. Id. 13. In what Cases Inspection may be had. — The court will control proceedings for the inspection of papers of adverse party within such limits as to secure substantial justice. Geyger v. Geyger, 2 Dallas, 332. The right to an inspection to discover evidence is not to be con- founded with the production of books, etc., as evidence on the trial. Lefferts v. Brampton, 24 How. (N. Y. Prac. B.), 25. As to the extent to which a corporation may be required to submit its books to in- spection, see Johnson v. Mining Co., 2 Abb., N. S., 413; "Walker v. Granite Bank, 19 Abb., 11. The granting or refusing the order rests very much in the discretion of the court. Keeler v. Dusenbury, 1 Duer, 660 ; White v. Monroe, 33 Barb., 650. 14. To enable Party to Prepare Pleadings. — To warrant an order for inspection to enable plaintiff to prepare his complaint, " strong aiH- davits," showing the necessity for the discovery, will be required. Keeler v. Dusenbury, 1 Duer, 661 ; 44 Barb., 64. An order, requir- ing the plaintiff to produce or give copies of papers to enable the de- fendant to answer, will not be made when it is manifest that the de- fendant has no defence which he cannot set up in due legal form, to raise the proper issues, without the aid of such papers. Mora v. McCrady, 2 Bosworth, 669. 15. Copies of Department Records and Papers.- Copies of any 15 114 PEACTIOE AND PEOCEDTJEE OF THE books, records, papers, or documents in any of the Executive Departments, authenticated under the seals of such Depart- ments, respectively, shall be admitted in evidence equally with the originals thereof. E. S. U. S. , sec. 882. Notes.— The words " papers or documents " mean only such as are made by an officer or an agent of the Government in the discharge of his official duty. Block v. U. S., 7 Ct. of 01., 406. And a copy of such is not compej,ent evidence, unless it was the duty of the officer to file the original. ' Id. Where the Government is the adverse party, certi- fied copies must be procured^ as a mere notice to produce the original is not sufficient. Barney v. Schneider, 9 Wall., 248. They must be authenticated under the seal of the Department. Chadwick v. U. S., 3 Fed. Eep., 753. And the mode of aiithentication prescribed by stat- ute must be strictly pursued. Block v. U. S., 7 Ct. of CI., 406. 16. Copies of Records, etc., in OiBce of Solicitor of the Treas- ury. — Copies of any documents, records, books, or papers in the office of the Solicitor of the Treasury, certified by him un- der the seal of his office, or, when his office is vacant, by the officer acting as solicitor for the time, shall be evidence equally with the originals. E. S. U. S., sec. 883. 17. Instruments, etc., of Comptroller of the Currency.— Every certificate, assignment, and conveyance executed by the Comptroller of the Currency, in pursuance of law, and sealed with his seal of office, shall be received in evidence in all places and courts ; and all copiies of papers in his ofiBice, certified by him and authenticated by the said seal, shall in all cases be evidence equally with the originals. An impression of such seal directly on the paper shall be as valid as if made on waix or wafer. E. S. U. S., sec. 884. 18. Organization Certificates of National Banks. — Copies of the organization certificate of any national banking association, duly certified by the Comptroller of the Currency, and authen- ticated by his seal of office, shall be evidence in all courts and places within the jurisdiction of the United States of the exist- ence of the association, and of every matter which could be proved by the production of the original certificate. E. S. TJ. S., sec. 885. [See see: 5135.] 19. Transcripts from the Books, etc., of the Treasury.— When ad- missible as evidence in suits against persons accountable for pubUc money, see R. S. U. S., sec. 886. 20. Copies of Records, etc., of General Land OlHce.— Copies of any records, books, or papers in the General Land Office, SUPREME COTJET, DISTEICT OF COLUMBIA. 115 authenticated by the seal and certified by the Commissioner thereof, or, when his office is vacant, by the principal clerk, shall be evidence equally with the originals thereof And lit- eral exemplifications of any such records shall be held, when so' introduced in evidence, to be of the same validity as if the names of the officers signing and countersigning the same had been fully inserted in such record. E. S. U. S., sec. 891. [See sees. 2469, 2470.J 21. Copies of Records, etc., of Patent Office.— Written or printed copies of any records, books, papers, or drawings be- longing to the Patent Office, and of letters-patent, authenti- ticated by the seal and certified by the Commissioner thereof, shall be evidence in all cases wherein the originals could be evidence ; and any person making application therefor, and paying the fee required by law, shall have certified copies thereof E. S. U. S., sec. 892. Notes. — An exemplification of a patent and the specification is admis- sible in evidence, although the drawing is not exemplified. Peck v. Farrington, 9 Wend., 44 ; but a copy of the specification alone is not competent, the proper evidence being the patent itself duly authen- ticated. Davis V. Gray, 17 Ohio St., 330. A transcript of certain documents on file in the Patent Office is competent, although not a transcript of the whole proceeding. Fahey v. Harding, 1 Fed. Rep., 174. A certified copy of an assignment is prima fade evidence of the genuineness of the original. Lee v. Blandy, 1 Bond., 361 ; Parker v. Haworth, 4 McLean, 370. But a certified copy of a transfer not re- quired by law to be recorded is not legal proof of the transfer. Sher- man v.,Ohamplain Co., 31 Vt., 162. 22. Copies of Foreign Letters-Patent.— Copies of the specifi- cations and drawings of foreign letters-patent, certified as pro- vided in the preceding section, shall be prima facie evidence of the fact of the granting of such letters-patent, and of the date and contents thereof. E. S. U. S., sec. 893. Note. — Authenticated copies of foreign letters-patent are prima facie evidence of the granting thereof. Schoerken v. The Swift Co., etc., 7 Fed. Rep., 470. 23. Printed Copies of Specifications and Drawings of Pat- ents. — The printed copies of specifications and drawings of patents, which the Commissioner of Patents is authorized to print for gratuitous distribution, and to deposit in the capitols of the States and Territories, and in the clerk's offices of the district courts, shall, when certified by him and authenticated 116 PEACTICE AND PROCEDURE OF THE by the seal of his oflce, be received in all courts as evidence of all matters therein contained. E. S. U. S., sec. 894. 24. Extracts from the Journals of Congress.— Extracts from the Journals of the Senate, or of the House of Eepresentatives, and of the Executive Journal of the Senate when the injunc- tion of secrecy is removed, certified by the Secretary of the Senate or by the Clerk of the House of Eepresentatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court. E. S. U. S., sec. 895. 25. Copies of Records, etc., in Offices of United States Con- suls, etc. — Copies of all of&cial documents and papers in the office of any consul, vice-consul, or commercial agent of the United States, and of all of&cial entries in the books or records of any such office, certified under the hand and seal of such officer, shall be admitted in evidence in the courts of the United States. E. S. U. S., sec. 896. Wote. — See some notes to this section in Desty's Fed. Procedure, (6 ed.) p. 484. 26. Transcribed Records of Certain Federal Courts.— The tran- scripts into new books of certain records, etc., made by the clerks of the district courts in the several districts of Texas, Florida, Wiscon- sin, Minnesota, Iowa, and Kansas, and by the clerks of the circuit and district courts for the western district of North Carolina, axe made evidence equal with the originals, by sees. 897 and 898 of K. S. U.S. 27. When Original Records are Lost or Destroyed.— When the record of any judgment, decree, or other proceeding of any court of the United States is lost or destroyed, any party or person interested therein may, on application to such court, and on showing to its satisfaction that the same was lost or destroyed without his fault, obtain from it an order authoriz- ing such defect to be supplied by a duly certified copy of the original record, where the same can be obtained ; and such certified copy shall thereafter have, in all respects, the same effect as the original record would have had. E. S. U. S., sec. 899. 28. Same Subject. — When any such record is lost or de- stroyed, and the defect cannot be supplied as provided in the preceding section, any party or person interested therein may make a written application to the court to which the record STJPEEME COTJET, DISTRICT OF COLUMBIA. 117 belonged, verified by affidavit, showing sucb loss or destruc- tion ; that tbe same occurred without Ms fault or neglect ; that certified copies of such, record cannot be obtained by him ; and showing also the substance of the record so lost or de- stroyed, and that the loss or destruction thereof, unless sup- plied, will or may result in damage to him. The court shall cause said application to be entered of record, and a copy of it shall be served personally upon every person interested therein, together with written notice that on a day therein stated, which shall not be less than sixty days after such service, said application will be heard ; and if, upon such hearing, the court is satisfied that the statements contained in the application are true, it shall make and cause to be entered of record an order reciting the substance and effect of said lost or destroyed record. Said order shall have the same effect, so far as concerns the party or person making such application and the persons served as above provided, but subject to intervening rights, which the original record would have had, if the same had not been lost or destroyed. E. S. U. S., sec. 900. 29. Notice in Proceedings to Restore Lost or Destroyed Re- cords, How Given. — In any proceedings in conformity with law to restore the records of any court of the United States which have been or may be hereafter lost or destroyed, the notice required may be served on any non-resident of the dis- trict in which such court is held anywhere within the jurisdic- tion of the United States or in any foreign country ; the proof of service of such notice, if made in a foreign country, to be certified by a minister or consul of the United States in such country, under his official seal. E. S. U. S., sec. 902, as amended, 20 St., 277. 30. Force and Effect of Court Papers Restored or Supplied. — A certified copy of the official return, or any other official paper of the United States attorney, marshal, or clerk, or other certifying or recording officer of any court of the United States, made in pursuance of law, and on file in any depart- ment of the government, relating to any cause or matter to which the United States was a party in any such court, the record of which has been or may be lost or destroyed, may be filed in the court to which it appertains, and shall have the same force and effect as if it were an original report, return, paper, or other document made to or filed in such court ; and 118 PRACTICE AND PEOCEDUEE OF THE in any case in whicli the names of the parties and the date and amount of judgment or decree shall appear from such return, paper, or document, it shall be lawful for the court in which they are filed to issue the proper process to enforce such decree or judgment,' in the same manner as if the original record remained in said court. And in all cases where any of the files, papers, or records of any court of the United States have been or shall be lost or destroyed, the files, re- cords, and papers which, pursuant to law, may have been or may be restored or supplied in place of such records, files, and papers, shall have the same force and effect, to all intents and purposes, as the originals thereof would have been entitled to. B. S. U. S., sec. 903, as amended, 20Stat., 277 ; Rich. Suppl., 403. 31. Authentication of Legislative Act and Proof of Judicial Proceedings of States, etc. — The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any State or Terri- tory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenti- cated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken. E. S. U. S., sec. 905. Notes. — The Federal courts will take judicial notice of the juris- prudence and public laws of the several States. Drawbridge Co. v. Shepherd, 20 How., 227. And of those formerly prevailing. U. S. v. Perot, 98 U. S., 428. And of notarial seals. Pierce v. Indseth, 106 U. S., 546 ; 9 Pet., 625. And of a private act, if the State court could. 12 WaU., 226. A record must be authenticated according to the form used in the State whence it comes ; and the only evidence of this fact is the certificate of the presiding judge. Craig v. Brown, Pet. C. C, 354. And it should state that the attestation is in due form of law. Trigg V. Conway, Hemp., 538. A certificate by one styling himself "one of the judges" of a court is not sufiBcient. Stewart v. Gray, Hemp., 94'; Gardner v. Linds, 1 Or. C. C, 78. The seal of the court must be annexed to the record itself. It is not enough SUPREME COTJE,T, DISTEIOT OP COLUMBIA. 119 that it is annexed to the judge's certificate. Turner v. Waddington, 3 Wash. C. C, 126. But the record of the court which has no seal may be admitted on such statement in the judge's certificate. Mor- gan, v. Curtenius, 4 McLean, 366. If the record be duly certified under the act of 1790, no evidence is admissible that the attestation is not in due form. Ferguson v. Harwood, 7 Cranch, 408. If the record is properly proved, such proof is of the same nature as an inspection by the court of its own record, and shall have such faith and credit as it has in the State court whence it was taken. Mills v. Duryee, 7 Cranch, 481 ; McElmoyle v. Cohen, 13 Pet., 312 ; Public Works v. Columbia College, 17 Wall., 521. The Federal courts will give to the judgments of the State courts only the same faith and credit which the courts of other States are bound to give them. Pennoyer v. Neff., 95 U. S., 714. 32. Proofs of Records, etc., Kept in Offices not Pertaining to Courts. — All records and exemplifications of books, which may be kept in any public office of any State or Territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation of the. keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the Grovernor, or Secretary of State, the Chancellor or Keeper of the Great Seal of the State, or Terri- tory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or, if given by such Governor, Secretary, Chancellor, or Keeper of the Great Seal, it shall be under the great seal of the State, Territory, or country aforesaid in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Territory, or country, as afore- said, from which they are taken. E. S. U. S., sec. 906. Notes. — A copy of the record of proceedings of a court is not within this section. Torlton v. Briscoe, 1 A. K. Marsh, 67. Thus a judg- ment of a justice of the peace. Snyder v. Wise, 10 Pa., 157. Nor the record of a will when it appertains to a court ; otherwise if it 120 PEACTICE AND PEOCEDUEE OF THE does not so appertain. Ewing v. Savory, 4 Bibb., 424; Smith v. Redden, 5 Har. (Del.), 321. 33. Copies of Foreign Records Relating to Land Titles in United States. — How obtained and wlien admissible as evi- dence, see E. S. U, S., sec. 907. 34. Copy of License and Certificate to be Evidence of Mar- riage. — A copy of any license and certificate, recorded in the record book of the clerk's office, and certified by the clerk, under his hand and the seal of the court, shall be competent evidence of the marriage! E. S. D. C, sec. 723. 35. Original Protest of Notary to be Prima Facie Evidence. — The original protest of a notary public, under his hand and offi- cial seal, of any bill of exchange or promissory note for non- acceptan6e or non-payment, stating the presentment by him of such bill of exchange or note for acceptance or payment, and the non-acceptance or non-payment thereof, and the service of notice on any of the parties to such bill of exchange or promis- sory note, and specifying the mode of giving such notice, and the reputed place of residence of the party to whom the same was given, and the post-office nearest thereto, shall he prima facie evidence of the facts contained therein. E. 8. D. C, sec. 988. 36. Certificate to be Like Evidence. — The certificate of a no- oary public, under his hand and seal of office, drawn from his rec- trd, stating the protest and the facts therein recorded, shaU be evidence of the facts in like manner as the original protest. E. S. D. C, sec. 989. 37. Exemplified Copies of Debts of Records.— The Maryland Act of 1785, ch. 46. — An exemplication of the record under the hand of the keeper of the same, and the seal of the court or office where such record may be made, shall be good and suffi- cient evidence in any court of this State to prove any debt of record made or entered in any other of the United States, or in any foreign country whatever. Sec. 1. 38. Certified Copies of the Record of Foreign Deeds, etc.— A copy of the record or register of any deed, will, or other in- strument of writing, which the laws of the State or country where the same may be executed require to be recorded or reg- istered, and which have been or shall be recorded or registered agreeably to such laws, under the hand of the keeper of such record or register, and the seal of the court or office in which such record or register has been or may be made, or a copy of SUPKEMB COURT, DISTRICT OP COLUMBIA. 121 any deed, will or other instrument of writing lodged for safe keeping in any ofBce or court, agreeably to the laws of the State or country as aforesaid, and certified as aforesaid, shall be good and sufficient evidence in any court of this State to prove such deed, will or instrument of writing. Md. Act, 1785, ch. 46, sec. 2. Note.— By the Maryland act of 1798, ch. 101, sub. ch. 2, sec. 4, an at- tested copy, under the seal of offloe, of any will, testament or codicil recorded in any ofifice authorized to record the same, shall be admitted as evidence in any court of law or equity, provided that the execution of the original will or codicil be subject to be contested until a pro- bat hath been had according to the said act. 39. Foreign Probate of Instruments not of Record. — Where any deed, will, bond, bill, note, or other instrument of writing, hath been or shall be executed in any other of the United States, or in any foreign country, and to give validity to which recording or registering is not or shall not be made neeesssary, proof to the execution of such deed, will, .bond, bill, uote or other instrument of writing, by the oath or af&rmation, as the case may be, of the subscribing witnesses to the same, or any of them, taken before any court, judge or justice or other offi- cer of the State or cotintry where such deed, will, bond, bill or instrument, hath been or may be executed, having authority by law to administer an oath or af&rmation, as the case may be, and a certificate under seal from the governor, chief mag- istrate, or a notary public of such State or country, that the court or officer before whom such oath or affirmation, as the case may be, shall be taken, hath authority to administer such oath or affirmation, as the case may be, and that such oath or affir- mation as aforesaid hath been duly made before such court, judge, justice, or other officer, shall be good and sufficient evi- dence in any court of this State to prove any such deed, will, bond, bill, note, or other instrument. Md. Act, 1785, ch. 46, Sec. 3. 40. Where the Witnesses to such Instrument are Dead, How Probated, etc. — And if all the witnesses to any deed, will, bond, bill, note, or other instrument of writing aforesaid, have died or shall die before the execution of such deed, will, bond, bill, note, or other instrument of writing, be proved as afore- said, then proof, by a credible witness, to the handwriting of the party making such deed, will, bond, bill, note, or other instrument of writing, or to the handwriting of the subscrib- ing witnesses to the saine, or of any of them, taken and certi- fied as aforesaid, shall be good evidence for the purpose afore- 16 122 PEACTICE AND PEOCEDTJEE OF THE said ; provided always, that in case any suit shall be brought in any court of this State, upon any such instrument of writ- ing, proved as aforesaid, to recover any sum of money, or other valuable thing specified therein to be due, the party bringing such suit shall, at or before the first imparlance court, make oath or affirmation, as the case may be, before some judge or justice of this State, or before some court, judge, justice, or officer of the State or country where such instrument in writing hath been or shall be executed, having authority as aforesaid, and to be certified as aforesaid, that such instrument of writing was duly executed by the person therein mentioned to have executed, the same, and that the debt, or other valuable thing appearing to be due by such instrument of writing, or any part thereof, except what is credited, is not paid, or in any manner satisfied, by discount, account in bar, or otherwise, to the knowledge or belief of the party bringing such suit, but that the whole Of the money or other thing specified to be paid or delivered by such instrument of writing, or such part thereof as shall be stated in such oath or affirmation, as the Case may be, to be due, remains unpaid, according to the best of the knowledge and belief of the party bringing such suit ; and provided also, that nothing in this act shall be taken or construed in any manner to alter or re- peal the laws now in being establishing the mode for convey- ing lands, tenements or hereditaments, within this State, by persons residing or being without the State ; and provided also, that every creditor of a deceased person, and any execu- tor or administrator of a creditor, on suit by them, or any of them, shall make oath or affirmation as the law now directs. Md. Act, 1785, ch. 46, sec. 3. Note. — The practice under the foregoing section, so far as it relates to suits upon instruments of writing, has become practically obse- lete^ the same object being attained in a much easier and speedier way by an affidavit under the 73d Rule, which see. The same may be said of the remaining sections of the act, which provide for the admission in evidence of probated accounts, made either within or without the District ; they are entirely superceded by the provisions of the 73d Rule. For this reason it is unnecessary to give them here. 41. Depositions of Noii-Besident Witnesses, How Taken.— So much of the Sixty-Third Rule of Equity practice as is given below, has been made a general rule of practice for aU the branches of the court. 3 M. G. T., 72. The practice in obtaining the testimony of non-resident SUPREME COXIET, DISTEICT OP COLUMBIA. 123 witnesses for use in a pending suit is now almost altogether under this rule. Its provisions are so simple that except under special circum- stances, when a resort to the provisions of section 863 of the Revised Statutes of the United States, providing for the taking of depositions de bene esse may be necessary, no practitioner thinks of availing him- self of the statutory provisions. 42. Provisions of Rule Sixty-Three. — Where the testimony of non-resident witnesses is desired by either party, the court in term time, or any justice in vacation, may, on motion des- ignating the names of such witnesses, appoint an examiner to take such testimony, to whom the clerk shall thereupon issue a commission under the seal of the court ; and said testimony shall be taken on written interrogatories and cross-interroga- tories, which interrogatories shall be filed in the clerk's office at least ten days before the issue of such commission, so that the adverse party may have opportunity to file cross-interroga- tories. But the court or justice, for special cause shown, may direct that such testimony shall be taken orally. Eule 63. 43. Form of the Commission. In the Supebmb Coukt of the District of Columbia, the DAY OF , 18—. commission to take depositons. A. B., Plaintiff, ) V. V At Law. [Equity] Docket. No. — . CD., Defendant. ) The President of the United States to . Greeting : Know you, that in confidence of your prudence and fidelity, you have been appointed, and by these presents you are invested with power and authority to examine as a witness — for the — -■ — in the above-entitled cause, upon the interrogatories annexed to this commission ; and, therefore, you are hereby commanded, at a certain day and place, or certain days and places to be appointed by you, to cause said witness — to come before you, and then and there examine , on oath or afiirmation, upon the said interrogatories, and re- duce testimony into writing to be signed by said witness — ; and, having so done, annex the same to this writ, closed up under your seal, and make return thereof into said court with all convenient speed. Witness : , Chief Justice. , Clerk. By , Assistant Clerk. 44. Depositions de Bene Esse.— The testimony of any witness may be taken in any civil cause depending in a district or cir- cuit court by deposition de iene esse, when the witness lives at 124 PEACTICE AND PEOCEDUEE OF THE a greater distance from the pMce of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. The deposition may be taken before any judge of any court of the United States, or any commis- sioner of a circuit court, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or su- perior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public, not being of counsel or attor- ney to either of the parties, nor interested in the event of the cause. Seasonable notice must first be given in writing by the party or his attorney proposing to take such deposi- tion, to the opposite party or his attorney of record, as either may be nearest, which notice shall slate the name of the wit- ness and the time and place of the taking of his deposition ; and in all cases in rem, the person having the agency or pos- session of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in ; and whenever, by reason of the absence from the district and want of an attorney of record or other reason, the giving of the no- tice herein required shall be impracticable, it shaU be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and direct. Any person may be compelled to appear and depose as pro- vided by this section, in the same manner as witnesses may be compelled to appear and testify in court. R. S. U. S., sec. 863. Tfote.— The conditions under which a deposition de bene esse may be taken, are — 1. When the witness lives more than one hundred miles from the place of trial ; 2. Or is bound on a voyage to sea ; 3. Or is about to go out of the United States ; 4. Or out of the district to a greater distance from the place of trial than one hundred miles before the time of trial ; 5. Or is ancient or infirm. To entitle the deposition to be read upon the trial, it must be shown— 1. That the witness is dead ; 2. Or gone out of the United States ; SUPREME COURT, DISTRICT OP COLUMBIA. 125 3. Or at a greater distance than one hundred miles from the place where the court is sitting ; 4. Or that by reason of age, sickness or bodily infirmity, he is una- ble to travel or appear at court. Harris v. Wall., 7 How., 693 ; The Patapsco Ins. Co. v. Southgate, 5 Pet., 604 ; The Samuel, 1 Wheat., 9 ; Weed V. Kellogg, 6 McLean, 44 ; Bowie v. Talbot, 7 Or. C. C, 247. A witness cannot be compelled to attend for exam.ination de bene esse, although he is found at a place more than one hundred miles from the place of trial, if he ordinarily resides within that distance, and is only casually absent from home, unless he is going to sea or is aged or is infirm, etc. Ex parte Humphrey, 2 Blatch., 288. 45. Cannot be Used in Another Suit.— Depositions incorporated into the record in one suit are not admissible in another suit, where the witnesses are competent and can be procured. Tafian v. Beardsley, 10 Wall., 427 ; Rutherford v. Geddes, 4 Id., 220. 46. The Statute Must be Strictly Pursued. — It is necessary to esta,b- lish that all the requisites of the law have been complied with before the testimony is admissibje. Armstrong v. Brown, 1 Wash. O. C, 43 ; Thorpe v. Summons, 2 Or. CO., 195. But a party may waive any provision intended for his benefit, and will be presumed to have done so if he refrains from objecting at a time when the objection might have been removed. Shute v. Thompson, 15 Wall., 151 ; York Company v. R. R., 3 Wall., 113. 47. Notice, to Whom Giyen. — Notice must be given in all cases where there is an attorney of record. Buddicum v. Kirk, 3 Or., 293. And if directed to a party may be served on the attorney. Barrel v. Limington, 4 Cr. 0. 0., 70. Personal service is not necessary. Car- rington v. Stimson, 1 Curt., 437. Notice to an attorney would not be good, if he could not be present at the taking, without being absent at the comm.encement of the court. Bell v. Nimmon, 4 McLean, 539. 48. Mode of Taking Depositions de Bene Esse.— Every per- son deposing as provided in the preceding section, shall be cautioned and sworn to testify the whole truth, and carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or by himself in the magis- trate's presence, and by no other person, and shall, after it has been reduced to writing, be subscribed by the deponent. E. S. U. S., sec. 864. Note. — The practitioner will find a large collection of authorities on the procedure under this section in Desty's Federal Procedure, 6th e'd., and the same may be said of the succeeding sections upon this subject, which are given below. The occasion for resorting to these provisions of the statute now arise so rarely in this court, the practice being almost always under Rule 63, or by stipulation, that it is not deemed necessary to do more than to give the Statute, with a reference to where the authorities are collected. 126 PEACTICE AND PEOCBDTJEE OP THE I 49. Transmission to the Court of Depositions de Bene Esse.— Every deposition taken under tlie two preceding sections shall be retained by the magistrate taking it, until he delivers it with his own hand into the court for which it is taken ; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. But unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or im- prisonment, he is unable to travel and appear at court, such depositions shall not be used in the cause. E. S. TJ. S., sec. 865. 50. Depositions under a Dediinus Potestatem and in Perpet- uam, etc. — In any case where it is necessary, in order to pre- vent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take deposi- tions 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 be cognizable in any court of the United States. And the provisions of sections eight hundred and sixty -three, eight hundred and sixty-four, and eight hundred and sixty-five, shall not apply to any deposition to be taken under the authority of this section. E. S. U. S., sec. 866. 51. Depositions in Perpetuam, etc., Admissible at Discretion of the Court. — Any court of the United States may, in its dis- cretion, admit in evidence in any cause before it any deposi- tion taken in perpetuam rei memoriam, which would be so admissible in a court of the State wherein such cause is pend- ing, according the laws thereof. E. S. U. S., sec. 867. 52. Deposition under a Dedimus Potestatem, How Taken. — When a commission is issued by any court of the United States for taking the testimony of a witness named therein at any place within any district or territory, the clerk of any court of the United States for such district or territory shall, on the application of either party to the suit, or of his agent, issue a subpoena for such witness, commanding him to appea* SirPEEME COURT, DISTRICT OP COLUMBIA. 127 and testify before the commissioner named in the commission, at a time and place stated in the subpoena ; and if any witness, after being duly served with such subpoena, refuses or neglects to appear, or, after appearing, refuses 'to testify, not being privileged from giving testimony, and such refusal or neglect is proven to the satisfaction of any judge of the court whose clerk issues such subpoena, such judge may proceed to enforce obedience to the process, or punish the disobedience, as any court of the United States may proceed in case of disobe- dience to process of subpoena to testify issued by such court. E. S. TJ. S., sec. 868. 53. Subpeena Duces Tecum under a Dedimus Potestatein. — "When either party in such suit applies to any judge of a United States court in such district or territory for a subpoena com- manding a witness, therein to be named, to appear and testify before said commissioner, at the time and place to be stated in the subpoena, and to bring with him and produce to such com- missioner any paper or writing or written instrument or book or other document, supposed to be in the possession or power of such witness, and to be described in the subpoena, such judge, on being satisfied by the affidavit of the person appl jj^ing, or otherwise, that there is reason to believe that such paper, writing, written instrument, book, or other document is in the possession or power of the witness, and that the same, if pro- duced, would be competent and material evidence for the party applying therefor, may order the clerk of said court to issue such subpoena accordingly. And if the witness, after being served with such subpoena, fails to produce to the commis- sioner, at the time and place stated in the subpoena, any such paper, writing, written instrument, book, or other document, being in his possession or power, and described in the subpoena, and such failure is proved to the satisfaction of said judge, he may proceed to enforce obedience to said process of subpoena, or punish the disobedience in like manner as any court of the United States may proceed in case of disobedience to like pro- cess issued by such court. When any such paper, writing, written instrument, book, or other document is produced to such commissioner, he shall, at the cost of the party requiring the same, cause to be made a correct copy thereof, or of so much thereof as shall be required by either of the parties. E. S. U. S., sec. 869. 54. Witness under a Dedimus Potestatum,— l^o witness shall 128 PRACTICE AND PEOCEDXJEE OE THE be required, under the provisions of either of the two pre- ceding sections, to attend at any place out of the county where he resides, nor more than forty miles from the place of his resi- dence, to give his deposition ; nor shall any witness be deemed giiilty of contempt for disobeying any subpoena directed to him by virtue of either of the said sections, unless his fee for going to, returning from, and one day's attendance at the place of examination, are paid or tendered to him at the time of the service of the subpoena. E. S. U. S., sec. 870. CHAPTEE XXI. NOTICE OF TRIAL.— THE CALENDAR. 8. When causes to be re-noticed for trial. 9. The law calendar. 10. Issues of law, how noticed for trial. 11. Transferring the cause from law to trial calendar. 1. Notice of trial. 2. Form of notice of trial. 3. Statutory provision. 4. Miscellaneous decisions. 5. Note of issue. 6. Clerk to enter cause upon the calendar. 7. Trial calendar. 1. Notice of Trial. — At any time after issue joined, and at least ten days before the sitting of the court at which the cause stands for judgment or trial, either party may give notice of trial. Eule 36. 2. Farm of IVotice of Trial. In the Supeeme Ooubt of the District of Columbia, the DAY OF , 18 — . A. B., Plaintiff, \ V. [■ At Law. No. — . CD., Defendant, i Take notice that the issue joined in this cause will be tried at thei next term of this court. P. Q., Attorney for Plaintiff. To Mr. P. D., Attorney for Defendant. 3. Statutory Provision. — ^In all civil actions in the courts of the United States either party may notice the same for trial. See. 950, E. S. U. S. SUPREME COtJET, DISTKICT OP COLUMBIA. 129 4. Miscellaneous Decisions. — The day of service is to be excluded, and the first day of the court included. Dayton v, Mclntire, 5 How. Pr. (N. Y.), 117. If no notice of trial be given, or the notice be irregular or insufllcient, and the plaintiff proceeds to trial and obtains a verdict, the court on application of the defendant will set the verdict aside. 15 Johns., 399 ; 1 Oaines R., 154. But not if the attorney or party was not misled by the defect. 3 Oaines, 86, 133 ; 4 Oow., 60 ; 11 Wend., 178. And for the purpose of the inquiry, the court will look not only at the face of the notice, but to other circumstances. Where there is an is- sue of fact, as well as of law, one notice will be sufficient, if the cause is regularly placed upon the calendar, and, of course, it will generally be expedient to have the demurrer disposed of first. Knoed- ler V. Mefoy, 2 Mac A., 241. 5. Note of Issue. — The party giving the notice of trial shall furnish the clerk, at least seven days before the sitting of the court, with a note of the issue containing — 1. The title of the action ; 2. The names of the attorneys ; and 3. The time.when the last pleading was filed. Enle 37. As amended October 13, 1886. 5 M. G. T., 451. 6. The Clerk to Enter the Cause upon the Calendar. — The clerk shall thereupon enter the cause upon a calendar, accord- ing to the date of the issue. But any case may, by consent of the parties or their counsel, be placed on the calendar at any time before the commencement of a term or afterwards, with the assent of the court. Eule 38. 7. The Trial Calendar. — All cases involving issues of fact shall be placed on a calendar to be called a trial calendar, and shall be tried by jury at a circuit court or, by consent of par- ties, by a justice, either at a circuit court or special term. Eule 39. 8. When Cause to be Renoticed for Trial.— A case once placed on the trial calendar, if not called for trial at the first term, shall not stand for trial on the next trial calendar, unless a new notice of trial be given and note of issue furnished, as aforesaid. Eule 40. As amended April 26, 1886. 5 M. G. T. 9. The Law Calendar. — AH cases involving issues of law shall be placed on a separate calendar, to be called the law calendar, and shall then be for hearing without notice, at such times as may be appointed therefor by the justice holding the circuit court or a special term. 10. Issues of Law, How Noticed for Trial.— The notice of 17 130 PRACTICE AND PKOCEDUEE OE THE trial ill such cases may refer either to a special term or the circuit court, and when such cases are once placed on the calendar they shall remain on the same, without additional notice, until the issues of law are disposed of. Id. 11. Transferring the Cause from Law to Trial Calendar.— When said issues of law are determined, and, by further plead- ing, an issue of fact is arrived at, pending a term of the circuit court or less than ten days before the commencement of a term, the case may be transferred to the trial calendar of such circuit court by order of the justice holding the same, on mo- tion of either party. Id. CHAPTEE XXII. RBPERENOB TO ARBITRATORS. 9. What may be referred. 10. How reference must be made, its terms. 11. Duty of the arbitrators. 12. Calling in an umpire. 13. Death of party pending the arbitration. 14. The award should be final. 15. FiUng the award. 16. Effect of the award. 17. Setting aside the award. 18. Appeal, when it lies. 19. Construction of awards. 1. When causes may be referred. 2.' Copy of award to be served. 3. When award is not returned within eight months. 4. Proceedings in case of death of either party. 5. Judgment on award and effect of. 6. Exceptions, time for filing, and grounds of. 7. Limitations not to run if arbi- trator die, etc. 8. Provisions of the act of 1785, chap. 80, sec. 11. 1. When Causes may be Referred. — A cause at issue, whether upon the trial calendar or not, may, by consent of the parties, by an order of court, be referred to arbitration ; and if the refer- ence be ordered after the commencement of the trial, the jury shall be discharged and the cause shall be continued until the award is returned; Rule 47. 2. Copy of Award to he Served. — The party in whose favor the award is given shall cause a copy thereof to be delivered to the adverse party, or his attorney, at least three days before moving for judgment thereon ; and no judgment shall be en- tered but upon the order of the court, nor, unless by consent, till the court is satisfied of the service of a copy of the award, SUPREME COtrUT, DISTRICT OF COLTTMBIA. 131 as aforesaid, by the party's aflfi davit, or by return of tlie mar- shal, or by admission of the opposite party. Id. 3. When Award is not Returned within Eight Months. — If no award is returned within eight months after the reference, the court may order the referee to return it, or give his reasons for not returning it, or may vacate the reference and proceed with the cause as if no reference had been made. Id. 4. Proceedings in Case of Death of Either Party. — If either party die before award is returned and judgment thereon, the arbitrator may proceed to malie an award, after reasonable notice to the person succeeding to the interest of or represent- ing the deceased, in the thing or matter in contest, not being a minor ; and a judgment upon such award shall be good and sufficient, notwithstanding such death. Id. .Note.— The fall text of the Maryland Aots of 1778, ch. 21, sec. 8, and of 1785, ch. 80, sec. 11, upon which the above rule is based, is as follows : 5. Judgment on Award and Eifect of.— If any cause, instituted, or hereafter to be instituted, in any of the courts of this State, shall, by rule of court, and by the consent and agreement of the parties thereto, be submitted and referred to the award and arbitrament of any person or persons, it shall, and may be, lawful to and for such court to give judgment upon the award of the person or persons to whom such submission and reference shall be made as of the court to which such award shall be returned, and to award execution thereon, in the same manner as they might do upon verdict, confession, or non-suit, and that such judgment shall have the same effect, to every intent and purpose, as any judgment upon verdict or confes- sion would have. Md. Act, 1778, ch. 21, sec. 8. 6. Exceptions, Time for Filing and Grounds of. — Such award shall remain seven days in the general court during their sit- ting, if returned to the general court, or four days in the respective county courts during their sitting, if returned to any county court, after the return thereof, before any such judgment shall be entered up ; and if it shall appear to the justices of the court to which any such award shall be re- turned, within the respective times aforesaid, that the same was obtained by fraud or malpractice, in or by surprise, im- position, or deception of the arbitrators, or without due notice to the parties, or their attorney or attorneys, it shall and may 132 PRACTICE AND PEOCEDljEE OE THE be lawful for the said court to set aside such award, and refuse to give judgment th-ereon. Id., sec. 9. 7. Limitations not to Run if Arbitrators Die, etc.— If [in] any cause which hath been referred, or which shall hereafter be referred, by virtue of this act, either of the parties, or any of the arbitrators, to whom the same is or shall be referred, hath died, or shall happen to die before any award was or shall be made, or if the arbitrators, or any of them, have refused or shall refuse to act, or if after an award made the same hath been or shall be set aside, that then all that space of time from the impetration of the original writ in such cause, until the death of the party or arbitrator, or refusal to act, or set- ting aside such award, shall not run, be had, reckoned, or estimated, as part of the time limited for the bringing or prosecuting such suit, and that this act shall and may be taken advantage of, in bar of the act of limitation, without any special replication, anything to the contrary hereof not- withstanding. Id., sec. 10. 8. Provisions of tlie Act of 1785.— AH causes referred by consent of parties and rule of court, shall be continued until an award is returned, and if a death of either of the parties happen before an award returned and judgment thereon, such cause shall not abate by the death, but upon reasona- ble notice to the person or persons succeeding to the interest of or respecting the deceased in the thing or matter in con- test, and not being a minor, the arbitrators shall proceed to a determination, and return their award, upon which judg- ment may be entered by the court, and such judgment shall be good and sufficient in law, notwithstanding the death of either of the parties ; and in case any arbitrator or arbitra- tors appointed by the parties upon any reference aforesaid should die, or refuse to act, the court from which such cause was referred shall, upon motion of either of the parties, ap- point an arbitrator or arbitrators in the stead of those dy- ing or refusing to act, and any arbitrator or arbitrators so appointed shall have the same power and authority to decide the matter in question, as if appointed by the parties ; and if an award be not returned within eight months after, the cause may be referred as aforesaid, the court from which such cause shall be referred may, by order, compel the arbitrators to return their award, or give their reasons for not returning SUPEEMB COTJET, DISTEICT OF COLUMBIA. 133 an award, or the court may, in their discretion, lipon motion of either of the parties, reinstate' the cause, and take such order therein as they may think proper, to have the same fairly tried in court, in the same manner as if such cause never had been referred j and in all cases where awards may be made upon references aforesaid, the party in whose favor the award is given shall cause a copy thereof to be delivered to the adverse party or his attorney, at least three days before judgment is moved for upon such award, and the clerk of the court shall not enter judgment upon any award returned, without a motion to and direction from the court, and the court shall always have satisfactory iDroof by the party's own oath, or affirmation, as the case may be, or otherwise, that a copy of the award hath been delivered to the adverse party or his attorney as aforesaid before judgment shall be directed to be entered on any award. Md. Act, 1785, ch. 80, sec. 11. Notes. — Consent of parties is necessary under the constitution, to a reference of the issue in a common law suit for trial. Howe Machine Co. V. Edwards, 15 Blatch., 402 ; U. S. v. Eathbone, 2 Paine, 578. References to persons no way connected with the bench, to hear and determine all the issues in a case, are ancient and usual ; and in the Federal courts, as in others, proper if the case referred be of a kind for assistance of that sort. Heckers v. Fowler, 2 Wall., 123. An attorney as such may submit a case to arbitration. . White v. Davidson, 8 Md., 186 ; Farmer's Bank v. Sprigg, 11 Md., 389. 9. What may be Referred. — All matters of litigation, whether of law or of equity jurisdiction ; whether claims for specific articles Of property, real, personal, or mixed ; or sums of money ; whether such claims be by the party who (in the suit pending, or in the case to be made a rule of court by written agreement) may be plaintiff or de- fendant, can be subjects of reference. Phillips v. Shipley, 1 Bland, 516. 10. How Keferenee Must be Made— Its Terms.— The reference to be effectual must be made by consent of the parties and by an order of court. When a reference is made of a suit pending, the rule of court recites and evidences the consent of the parties and the terms of the submission, and is often the only evidence of the agreement, which in such cases are not required to be in writing. Phillips v. Shipley, 1 Bl., 516. But in order to avoid misapprehension, the precise terms of the reference should be reduced to writing, signed by the respective parties or their atttorneys, and filed in the cause ; and upon the agreement, there should be an order of court, duly signed, directing the reference as agreed on by the parties. Ordinarily there should be a clause in the submission, stipulating that in the event of either of the parties successfully disputing the validity of the award, or 134 PRACTICE AND PEOCEDtTRE OP THE moving the court to set it or any part of it aside, the court shall have power to remit the matters referred, or any of them, to the recon- sideration of the arbitrators making the award, in order to prevent the reference from absolutely failing. Poe's Practice, sec. 139 ; Harry- man V. Harry man, 43 Md., 140. Where there are only two arbitra- tors the submission should provide, in terms, for the naming by the arbitrators thus selected of a third person, in case of their disagree- ment ; and experienced practitioners usually insert a clause requiring this selection of a third person to be made before the hearing is begun. Poe's Practice, sec. 130 ; Eidge v. Martin, 6 H. & J., 403. When a pending cause was referred by the court to one as " special referee," with directions to take and return the testimony adduced, and to report aU the material facts "with his conclusions of law and his recommendations," and the report was under seal, and was unaccom- panied by a final finding and professed to be nothing more than a "recommendation," it was held not to be an award under the Mary- land Act of 1785, and Ruje 53 [now Rule 47] of this court. Strong v. Barbour, 1 Mackey, 209. So an agreement of the parties by their attorneys to refer a pending cause to a special referee, "whose award, when approved by the court, is to be its judgment," is not within the Maryland Act. Belmont v. Railroad Co., 3 Mackey, 357. Where a cause is referred to referees by stipulation of counsel, the provisions of the stipulation, in regard to objections which may be taken by the parties to the award, will control the court in examin- ing, the award. Strong v. The District, 4 Mackey, 53. 11. Duty of the Arbitrators. — The reference being made, and a time and place fixed for the hearing, the parties appear either by themselves or counsel. If the question submitted be merely one of law, the arbitrators are not bound to hear argument, although it is customary for them to do so. When the question is one of fact, witnesses are produced, but there is no law to compel the attend- ance of unwilling witnesses. The witnesses are usually sworn, al- though unless required by one of the parties, they need not be, nor can a witness who gives false testimony be punished for perjury, as the arbitrators have no authority of law to administer an oath. Evans' Prac, 345 ; Poe's Prac, sec. 143. 12. Calling in an Umpire.— Where arbitrators are authorized, on their differing in opinion, to call in a third person, they may call him in immediately, and before they differ. Rigden v. Martin, 6 G. & J., 403 ; Alex. Oanal Co. v. Swann, 5 How., 83. And this is manifestly the preferable course. Lutz v. Linthicum, 8 Pet., 178; Poe's Prac, sec. 140. There is a difference between a submission which authorizes an umpire to be appointed, and one which allows a third person to be called in on a disagreement of the referees. When an umpire takes charge of a case, and the award is to be made by him alone, the origi- nal arbitrators are divested of all power to proceed in it. In the other case the three are to act conjointly, and the award of the three or any SXJPEEME COUET, DISTKICT OF COLUMBIA. 135 two is binding. Lutz v. Linthicum supra. But the award is not vitiated by the arbitrators joining with the umpire in making it ; nor is it if the umpire join with them, when in fact they did not differ Id. West V. Stiger, 4 H. & McH., 490. 13. Death of Party Pending the Arbitration.— The death of either or both of the pa,rties before the award and judgment thereon, does not put an end to the reference or abate the suit ; but after reason- able notice to the successor in interest of the deceased, provided he be not a minor, the arbitrators shall proceed to a determination and award, and where the award has been returned the court has power to enter a judgment upon it, notwithstanding the death of either of the parties. Md. Act, 1785, ch. 80, sec. 11 ; Poe's Prac, sec. 149 ; Price V. Tyson, 2 G. & J., 475 ; Tillord v. Fisher, 3 H. & McH., 121. 14. The Award Should be Final. — An award ought to settle finally and conclusively the whole matter referred. It is contrary to the principles of a general reference that the court should take the award as far as it goes and supply all omissions by its decree. The award ought to be, in itself, a complete adjustment of the controversy sub- mitted to the arbitrators. Strong v. Barbour, 1 Mackey, 209 ; Archer V. Williams, 2 H. & G., 67 ; Parr v. Dary, ICr. O. C, 440. A party cannot be deprived of the right to have his case passed upon by a jury, unless waived by a regular reference to arbitrators, and its equivalent obtained by a proper final award. Strong v. Bar- bour, 1 Mackey, 209. 15. Filing the Award. — When the arbitratrators have made up their award, the proper practice is to file it in court, and notify both parties that it has been returned. Poe's Prac, sec. 152. But they may re- tain it until the payment of their fees, for which they are understood to have a lien upon it. Evans' Prac, 347. All the arbitrators must join in the award, unless the submission provide that a majority may decide. Harryman v. Harryman, 43 Md., 144. Where the award is required to be made by the arbitrators under seal, the omission of the seal is fatal to its validity. Strong v. Bar- bour, supra; Price v. Thomas, 4 Md., 514; Grove v. Swartz, 45 Md., 227. A reference "to hear and determine all the issues" in a case does not require the referee to report them all. It is answered by his reporting the sum due, after hearing all the issues. Strong v. Bar- bour, supra. Under the act of 1785, the award must be returned within eight months after the reference, or the arbitrators may be called on by the court to show their reasons for not returning it, and the court may reinstate the cause and provide for its trial as if no reference had been made. Price v. Tyson, 2 H. & G., 475. 16. Effect of the Award. — If conformable to the law and the rules regulating the subject, it is of equal force with a decision of a compe- tent tribunal, needing only the formal ratification of the court to 136 PRACTICE AND PEOCEDUEE OE THE stand as a judgment of the tribunal itself. Strong v. Barbour, 1 Mackey, 209. 17. Setting Aside the Award.— The party against whom the award is made may, within the period limited, attack the award in either of two modes : 1st, by exceptions ; 2d, by motion to set it aside. Ex- ceptions are filed when the error, defect or objection isapparent upon the face of the award ; and in such case no evidence, afftdavit or oath is required in support of the exception. A motion to set aside the award is always founded on facts not apparent on its face, and re- quires therefore to be sustained by affidavits in support of the exte- rior facts averred as grounds of objection to the award. Dorsey v. Joeflfray, 3 H. & McH., 121 ; Ing. et al. v. The State, 8 Md., 287 ; Crom- well V. O wings, 6 H. & J., 10 ; Ebert v. Bbert, 5 Md., 353. Both of these measures of attack m^ay go on at one time and may be heard together. If the award exceed the submission, or be not certain and final, or, when required to be under seal, if it be not, or if there be any plain mistake of law or fact apparent on the face of the award, all these are matters of exception. On the other hand the only grounds for attacking the award by motion to set aside are, in the language of the act, if the award " was obtained by fraud or mal- practice, in or by surprise, imposition or deception of the arbitrators, or without due notice to the parties or their attorney or attorneys." 2 B. & P., 371 ; 1 Dall., 487 ; 2 Vern., 485 ; 1 Gill & Johns., 488 ; 3 Cr. 0. C, 244, 669. Ex parte affidavits, as has been stated, maybe filed in support of this motion, and counter affidavits may also be received. Evans' Prac., 350; Poe's Prac, sec. 155. The court may hear and de- termine the case on these affidavits, or the parties may take the depo- sitions of witnesses in the usual way before a commissioner of the court, upon due notice ; or perhaps the court will order the testi- mony to be taken in this way, so as to afford to the respective parties an opportunity to cross-examine the witness of the other side. Poe's Prac, sec. 155. For plain and palpable mistakes of law the award will be set aside. Hewitt v. State, 6 H. & J., 96-98 ; Oliver v. Heap, 2 H. & McH., 477 ; Tillord v. Fisher, 3 H. & McH., 121 ; Goldsmith v. Tilly, 1 H. & J., 361 ; State, etc., Williams, 9 Gill, 175. The award cannot be impeached for an erroneous judgment upon facts. Crom- well v. Owings, 6 H. & J., 10 ; Goldsmith v. Tilly, 1 H. & J., 861. But for a mistake of fact gross and manifest, by which the arbitra- tors were deceived or misled, it is otherwise. Roloson v. Carson, 8 Md., 208 ; Baynard v. Norris, 5 Gill, 468; Ebert v. Ebert, 5Md„ 553. Where under a stipulation referees return into court with their award, all the evidence and all their findings of law and of fact, the court may set aside the award for any patent mistakes of law or of fact, appearing upon the face of the proceedings ; but will observe the same hesitation to disturb the findings of fact as in the case of a motion for a new trial after verdict. Strong v. The District, 4 Mackey, 242. The Act of 1778, ch. 27, provides that the award " shall remain STJPEEME COURT, DISTRICT OF COLUMBIA. 137 seven days" in court, after which judgment may be entered thereon, and this court has so held in Schaffer v. Lehman, 2 Mac A., 305. But the Act of 1785 makes the additional provision that "the party in whose favor the award is given shall cause a copy thereof to be delivered to the adverse party or his attorney, at least three days before judgment is moved for upon such award, and the clerk of the court shall not enter judgment upon any award returned, without a motion to and direction from the court, and the court shall always have satisfactory proof by the party's own oath, or aflftrmation, as the case may be, or otherwise, that a copy of the award, hath been delivered to the adverse party or his attorney, as aforesaid, before judgment shall be directed to be entered on any award." In Schaf- fer V. Lehman, supra, the General Term has held that exceptions to the award must be filed within seven days after the award is re- turned. The filing of the exceptions of course stays the entering of judgment until they can be heard and acted upon by the court. 18. Appeal, When it Lies. — An appeal lies from the final order of the court upon ex3eptions to the award, or upon a motion to set aside ; and if the court below set aside the award its decision may be reversed, and judgment be entered on the award, or such order may be made as should have been made by the court below. Poe's Prac, sec. 156'; Stewart v. Stewart, 12 G. & J., 456; Cromwell v. Owings, 6 H. & J., 10 ; Garrison v. Garter, 16 Md., 311. But an agree- ment of the parties by their attorneys to refer a pending cause to a special referee " whose award when affirmed by the court, is to be its judgment" is not within the Maryland Act, and if the court dis- approve the award, and make an order setting it aside, such order is not appealable. Belmont v. Railroad Co., 3 Mackey, 357. Where judgment is rendered on the award it will be presumed on appeal that a copy of the award had been served on the opposite party before judgment. Lutz v. Linthicum, 8 Pet., 165. 19. Constrnction of Awards.— Awards are not treated as strictly now as they formerly were. They are more favorably regarded and liberally construed. They must still, however, possess the funda- mental properties of an award. Archer v. Williamson, 2 H. & G., 67 ; Strong v. Barbour, supra. Every reasonable intendment will be made for their support, and presumptions are not to be made for the purpose of overthrowing them. It will be intended that all matters submitted have been decided by the arbitrator, unless the contrary appears ; and it will also be intended that there has been no excess of authority. Caton v. McTavish, 10 G. & J., 193 ; Schriver v. The State, 9 G. & J., 1 ; Levis v. Baryers, 5 Gill., 129 ; Ebert v. Ebert, 5 Md., 354 ; Roloson v. Carson, 8 Md., 208 ; Gantee v. Carter, 16 Md., 312; Md. & Del. R. R. Co. v. Porter, 19 Md., 458. An award in the alternative is valid. Thornton v. Carson, 7 Cr., 596. An award may be good in part, and void in part, but if the void part affect the justice of the whole case, the whole is void. Carnochan v. Christie, 11 Wheat., 446. 18 138 PEACTICE AND PEOCEDTTEE OF THE CHAPTBE XXIII. BEFERENCE TO AN AUDITOR. 4. In what cases exceptions may be overruled. 5. Statutory provisions, Maryland Act of 1785, ch. 80, sec. 12. 6. Notes of decisions. 1. When causes may be referred to an auditor, proceedings there- on. 2. Filing the report, exceptions. 3. Issues made by exceptions, how to be tried. 1. When Causes May be Referred to an Auditor, Proceed- ings.— In actions at law brought or hereafter to be brought, grounded upon an account, or in which it may be necessary to examine and determine upon accounts between the parties, the court, in its discretion, at any stage of the case, may order the accounts and dealings between the parties to be audited and stated by the auditor of the court, or by a special auditor or auditors to be appointed by the court ; and when such order shall be made in any case, the course of proceeding before such auditor or auditors shall be the same therein, and such auditor or auditors shall have the same powers and duties in the premises as in similar cases referred to the auditor in. chan- cery by the court sitting in equity. Eule 48. 2. Piling the Report, Exceptions,— When such audit shall be completed, the auditor or auditors shall state and file the re- port and account in the clerk's office, and give notice thereof to the parties or their attorneys, and the clerk shall note the time the same is filed in the docket ; and at the expiration of thirty calendar days thereafter judgment may be entered on motion of either party in accordance with such report and ac- count, either by the court or by a justice at chambers, unless exceptions are filed thereto within said time for errors of law or of fact therein ; and the party so excepting shall state there- in definitely, in precise and distinct terms, the grounds of such exceptions, and shall point out particularly the item or items in such report and accounts to which they are taken, and shall annex thereto a certificate of counsel that, in his opinion, the matters of law therein stated are weU founded in law ; and an SUPREME COUET, DISTRICT OP COLUMBIA. 139 affidavit of such party that such exceptions are not interposed for delay ; and that the allegations of fact in such exceptions are true ; and shall serve a copy thereof on the opposite party or his attorney. Id. 3. Issues Made by Exceptions, How to be Tried.— When such exceptions are so filed, the court shall then enter the case on the trial calendar of the term in its proper place, and the issues made by such exceptions shall be tried and determined in the same manner as other issues of law or of fact in actions at law, and any part of such report and accounts not so excepted to shall be adjudged to be conclusive between the parties on such trial. Id. 4. In what Cases Exceptions may be Overruled.— If only gen- eral, immaterial or frivolous exceptions are made, or if they are filed without the certificate of counsel and affidavit of ex- ceptant and service of copy as aforesaid, they may be over- ruled by the court or by a justice at chambers on notice and motion, and judgment entered as if no exceptions had been filed. Id. 5. Statutory Provisions— Maryland Act of 1785, eh. 80, sec. 12. — The provision of this act upon which the above rule is based, is as follows : "In all actions brought, or hereafter to be brought, in any court of law of this State, grounded upon an account, or in which it may be necessary to examine and determine on ac- counts between the parties, it shall and may be lawful for the court where an action may be or remain for trial, to order the accounts and dealings between the parties to be audited Jind stated by the auditor or auditors to be appo'inted by such court, and there shall be such proceedings thereon as in actions of ac- counts." 6. Notes of Decisions. — An action of assumpsit, where pleas in bar to the plaintiff's claim have been interposed by defendant, cannot be referred to auditors under this act, for the auditor is not authorized to decide issues under such pleas. Campbell v. Dist. Col., 2 Mac A., 533. Before the publication of Rule 48 — the rule then existing as to ref- erences under this act was Rule 54 (old rules) — which was as follows : "Where it may be necessary to examine and determine on mutual accounts between the parties, the court may discharge the jury, and order the accounts and dealings between the parties to be audited and stated by the auditor of the court, or by an auditor or auditors ap- 140 PBAOTICE AJrt) PEOCEDUEE OF THE pointed in the special case, and there shall be such proceedings there- on as in cases of actions of accounts." This rule, it will be seen, was but an abbreviated statement of the provisions of the statute. The decisions of the court, before the adoption of Rule 48, upon the practice in references of accounts, are, therefore, practically decisions construing the statute, and are as ap- plicable since the adoption of Rule 48 as they were before. In Camp- bell V. Dist., supra, the old rule [54] being in force, the court said : "In a reference, each party should introduce all the testimony re- lied upon, and after the auditor has made a report, either can except, and the trial proceeds upon the exceptions, the court charging the jury, as before stated, or, upon stipulation of the parties, the court determining the facts. The cause may then be appealed, or a writ of error prosecuted, as may be proper. The object of the reference is to aid the jury where there are mutual accounts ; and the auditor's report must stand, unless the party^ dissatisfied excepts and points out the error. In order to refer a cause, there must be mutual accounts between plaintiff and defendant. Where there are mutual dealings, and debits and credits, the auditor is called to aid the jury in the calculation. There must be some undeniable facts existing, such as a mutual dealing, and the main question then is, on which side is the balance ? If there are no mutual dealings admitted, then the cause cannot be referred under Rule 54. "The reference to arbitrators, under Rule 53, is a different process. If, however, there are mutual dealings and accounts between the parties, it is the duty of the court to aid the jury in calculating, in adding and subtracting, and multiplying ; and the auditor is, for the . expediting of business, substituted for the judge, and is, in fact, a sub-judge, just as he is vice-chancellor in equity causes. But parties have a right to have any particular fact tried by a jury, under the instructions of the court, and on reference to an auditor, exceptions must be taken, else his report will be ratified by the court, and the jury instructed accordingly. If immaterial exceptions are made, the court must instruct the jury to disregard them. If frivolous objec- tions and exceptions are made, the court will aid the jury by instruct- ing a disregard thereof There must be some controverted fact of substance to be submitted to the jury. If there be no distinct issue of fact, the instruction would be to return a verdict for whichever party against whom there was no controverted fact on the point. The object of the rule is to relieve jury and court of calculation, where there have been mutual dealings and accounts between the parties, and to leave for the jury issuable facts. If any question of law arises, the court must rule upon it as in any other cause submit- ted to a jury. The language of the rule is but the old English rule, and we must say, a good and convenient rule. If, in the progress of the case, it is evident to the court that there have been mutual deal- ings and accounts between the parties, and that the interest, Calcula- tions, additions and subtractions are too numerous and complicated to tax court and jury with the detention of time, it is then the duty SUPEBME COUET, DISTRICT OP COLUMBIA. 141 of the court to discharge the jury, and call to its aid the officer ap- pointed to labor with just such business. It is then the duty of the parties to attend before that offlcet and aid him. If a disputed fact arises, the point may be made, and either party can except and have a trial by jury, under the instructions of the court. If there are no mutual dealings and accounts between the parties, the jury cannot be discharged. If any question of law as to the liability of either party arises on acknowledged or given state of facts, the court must decide, and the party against whom the determination is had, may appeal or except, as the one or the other may be proper. See Strong V. The District, 3 Mac A., 499, where the practice is further explained. "The case of McOuUough v. Groff, 2 Mackey, 361, which was a case of a reference under the Maryland Act while the old rule was in force, came before the General Term in May, 1883, and was the im- mediate cause of the adoption of the present rule as being 'one more explicit in its terms." In that case the court held that, in a reference to the auditor under this act, the right of hearing before the court as to questions of law, and of trial by a jury upon all matters of fact, was intended to be preserved to the contestants, and that where questions of fact are decided by the auditor in his report it is erroneous to admit the report before the jury even as prima facie evidence of the truth of its assertions or conclusions. In the same case the court also, referred to the narrowness of the old rule, which confined the reference to cases of mutual ' accounts between the par- ties' ; whereas the statute applies as well to ' all actions grounded upon an account.' " This defect seems to have been remedied, for the present rule, it will be observed, follows the language of the statute, and provides for the reference of "all actions grounded upon an account, or in which it may be necessary to examine and determine upon accounts between the parties." It is to be observed, also, that Rule 48 provides that, the reference being made, " the course of proceeding before such auditor or auditors shall be the same therem, and such auditor or au- ditors shall have the same powers and duties in the premises as in similar cases referred to the auditor in chancery by the court sitting in equity." Now, the practice before the auditor on reference by the court of equity for the statement of an account between the par- ties is well settled, and his right in a proper case to examine the par- ties and their witnesses has never been disputed. The Maryland Act of 1786, however, declares that on a reference of an action at law to the auditor, "there shall be svich. proceedings thereon [viz., upon the audit] as in cases of actions of account," which, as will presently be seen, is quite a different proceeding from that which takes place on a reference by the equity court. This variance between the provisions of the rule and that of the statute may be of importance when con- sidered in connection with the decision in McOuUough v. Groff, sxt- pra. In that case, the auditor had admitted the testimony of wit- nesses other than the parties to the action. The court, after declar- ing the report inadmissible as evidence before the jury upon the 142 PRACTICE AND PEOCEDURE OP THE grounds heretofore stated, go on to say, p. 367 : "It was further in- admissible in evidence, because it was founded in part upon the tes- timony of witnesses other than the parties taken before the auditor. By the statute of 4 Ann, ch. 16, which authorized actions of account to be brought by one joint tenant or tenant in common against his co-tenant, the auditors to be appointed were authorized to administer an oath to the parties and examine them; but, as was said in Wisner V. Wilhelm, 48 Md., 1, no such right exists to examine other witnesses. And that case further decides that even a special clause in the order of reference, authorizing the auditor to examine any witnesses, was in- valid. Such a report would be the mere statement of the opinion of an unauthorized person, founded upon extra-judicial oaths, in mat- ters beyond his legal competency and in the highest degree hear- say." CHAPTEE XXIV. OP OONTINUANOBS. 1. Maryland Act of 1721. 2. Absence of witnesses. 3. Continuances for delay, how prevented. 4. Continuance to complete depo- sitions. 5. "Where by reason of death, new parties are made or to be made. 6. Admission of facts to avoid continuance. 7. Continuances to await return of commissions, Md. Act 1794. Notes of decisions. Delay to prosecute cause. Absence of parties. Absence of counsel. Absence of Witness. Absence of documentary evi- dence. Stipulating against abatement. 15. Refusal of the appUcation not ground of exception. 16. Supplemental affidavits. 17. Continuance in suits against delinquents for public money, when may be granted. 1. The Maryland Act of 1721.— All actions, etc., in any of tlie courts of law within tMs province, as well as all other actions to be commenced, may be continued to the end of the fourth court after the appearance court, in any of the courts aforesaid, and no longer (except in causes where evi- dences are wanted from beyond sea), which is left to the dis- cretion of the court where such case shall happen * * * * provided, that the time of continuance of any such suits in the courts of law, by injunction in chancery, or by allowing infants the benefit of the parole demur, be not accounted as SUPEEME COURT, DISTRICT OP dOLUMBIA. 143 part of the time of limitation aforesaid. Md. Act, 1721, cli. 14, sec. 2. Note. — No general rule for the continuance of causes can be pre- scribed, but the court must take care, under the circumstances of each case, that injustice be not done either by precipitating trials or wanton delays. Symes v. Irvine, 3 Ball., 383 ; United States v. liit- tle, 2 Wash., 159. 2. Absence of Witnesses. — ISo action shall be continued beyond the time limited by law on the suggestion that evidence is wanting from some other of the United States, or from beyond sea, but the general court, and any county court, may, in their discretion, continue any action depending in their respective courts, on its appearing to their full satisfaction, by the oath or affirmation of the party, or some other credible person, in writing, that a witness (who shall be named), or testimony material, competent and proper in such suit, is really wanting from some other of the United States, or from beyond sea, and that the party alleging the same to be want- ing, or his attorney or agent, hath used his proper and reason- able endeavors to procure the same, and that the party or such other credible person, verily believes that the cause can- not be tried with justice to the party without such evidence or testimony, and that he has a reasonable expectation and belief that the same can be thereafter procured in some reasonable time, of which time the said court shall determine, unless the court, on examination of the party or parties, shall be of opinion that the fact to be proved by such testimony 'is imma- terial, or the adverse party will admit the truth of such alle- gation or fact thought material, or necessary to be proved, in either of which cases the trial shall proceed, or the cause be discontinued with costs to the party requiring no delay. Md. Act, 1787, ch. 9, sec. 2. 3. Continuance for Delay, How Prevented.— And to enable the said courts, respectively to guard as far -as possible against the continuance of any cause for delay only, be, it enacted, that they may examine into the nature of the action and the ground or cause of delay, and also into the proof alleged to be material, competent and proper in such suit, and really wanting for the trial of the merits between the parties, and the said courts, respectively, may also examine the party applying for a continuance on oath, or affirmation, as to any fact he shall 144 PRACTICE AND PKOCEDTJEE OF THE > allege that lie expects to prove by the evidence or testimony- declared to be wanting. Id., sec. 3. 4. Continuance to Complete Depositions.— In any case where a verdict shall be set aside and a new trial granted, and also in any case where commission shall issue for taking the depo- sitions of witnesses residing or living out of this State, the said courts respectively shall have a discretionary power to con- tinue such cause for so long a time as they shall judge neces- sary, not exceeding four courts after the usual time of continu- ance limited by law, and on such terms as they may think just and reasonable. Id., sec. 5. 5. Where, by Reason of Deatli, New Parties are Made, or to be Made. — In all actions where, by the death of the plaintiff or defendant, new parties are made or to be made to such actions, the said courts respectively shall have a discretionary power to continue such actions as long as they shall think necessary for the due administration of justice, not exceeding the end of the third court after the appearance court of such new party, un- less evidence, or testimony or plots be wanting, as hereinbefore provided. Id., sec. 7. - 6. Admission of Facts to Avoid Continuance. — In all cases where the attendance of a witness residing within this State to a material fact cannot be procured, the said courts respec- tively may continue such cause as long as they may think proper, if the adverse party will not admit the facts, or con- sent to the taking the deposition of such witness on interroga- tories before some justice of the peace where such witness re- sides. Id., sec. 8. Notes. — If the testimony of an absent witness be material, and the court determines that the party has shown sufficient ground for a continuance, the other side may elect to continue the case or go to trial, conceding as true what his adversary says his witness, if present, would prove, and whether the facts are given by affidavit or by state- ment of the party at bar, the truth of the facts so stated cannot be disputed if he elect to go to trial. This is the effect of the Act of 1787, ch. 9, sees. 2 and 3, and does not depend on the agreement of the par- ties. Bryan V, Conway, 3 Md., 61. But though the party against whom such proof is offered cannot deny its truth, yet it must be within the issues, for the Act of 1787, ch. 9, does not dispense with the rule that the allegata and, probata, must correspond, and it must appear to the appellate court that the evidence was proper to be received before the judgment will be re- versed on account of its rejection. Bryan v. Conway, 3 Md., 61. SUPREME COURT, DISTRICT OP COLUMBIA. 145 But if the admission is that the absent witness will testify to certain facts, the opposite party is not thereby precluded from offering evi- dence at the trial, to disprove or explain away the force of the testi- mony which he. admitted the witness would give. Bestor v. Sardo, 2 Or. C. C, 260. See Hyde v. Liverse, 1 Id., 408. 7. Continuance to Await Return of Commissions — Md. Act, 1794. — In all cases where commissions have been or shall be, hereafter issued to obtain testimony in any cause, which com- mission is, or shall be, issued to parts without the United States of America, the cause on which such commission is or shall be issued may be continued for want of the return of such commission as long as the court, under all circumstances, sha.ll in their discretion think reasonable, anything in the aforesaid act to the contrary notwithstanding. Md. Act, 1794, ch. (i, sec. 2. 8. Sotes of Decisions. — Imparlances were abolished by the Act of February 7, 1857, 10 St., 158. If the cause has been standing five terms without issue or rule to plead, the court will continue it at the motion of the defendant. Morgan v. Voss, 1 Or. O. C, 109. Where there is a rule to employ new counsel, the cause may be continued after the fifth term. Fenwick v. Brent, 1 Or. C C, 280. Supplemental affida- vits will not be received on a motion for continuance. Norwood v. Sutton, 1 Or. 0. C, 327. Nor counter affidavits. Manning v. James- son. Id., 285. The court will not continue the cause for the defend- ant, on the ground that his receipts are mislaid, unless the affidavits shall state the amounts and dates of the receipts, nor unless it shall state circumstances by which the court can judge whether reasona- ble diligence has been used in searching for them. Hyde v. Liverse, 1 Cr. C. C, 408. The affidavit need not state the particular circum- stances of diligence used by the party to obtain the testimony of the witness. These may be stated ore tenus. Higgs v. Heugh, 3 Or. 0. C, 142. Defendant may object to try a second suit while costs of a former action are unpaid. Hurst v. Jones, 4 Dall., 353 ; Henderson v. Griffin, 5 Pet., 151, and see Otto v. Jones, 2 Cr. C. C, 351. 9. Delay to Prosecute Cause. — When a ground for further postpone- ment. Morgan v. Voss, 1 Cr. 0. C, 109 ; Bayard v. Mandeville, 4 Wash., 445. 10. Absence of Parties.— Unless good cause shown, not a ground for continuance. Hammond v. Hawes, Wall. 0. Ct, 1 ; Nones v. Edsall, 1 Wall., Jr., 189, and see Tucker v. Garner, 25 Kans., 454 ; Pardrige v. Wing, 75 ni., 276. 11. Absence of Counsel.— Same rule. Whitehall v. Lane, 61Ind., 93 ; Bant V. Chester, 55 Cal., 49. But sickness of himself. Rice v. Melendy, 36 Iowa, 166 ; or if kept away by illness in his family. Thompson v. Thornton, 41 Cal., 626 ; or actual engagement in the trial of a cause in 19 150 PEACTICE AND PEOCEDtTEE OF THE testator touching 'the subject matter in controversy. Potter v- National Bank, 102 U. S., 163. The opposite party is that party against whom the evidence is sought to be used. Eslava v. Mazange, 1 Woods, 623. But admissions of a party are competent against him, although he testified in the case and was not asked, whether he made them or not. The Stranger, 1 Brown Adm., 281. 7. Subpoenas for, to Run into Another District.— Subpoenas for witnesses who are required to attend a court of the United States, in any district, may run into any other district : Pro- vided, That in civil causes the witnesses living out of the dis- trict in which the court is held do not live at a greater distance than one hundred miles from the place of holding the same. E. S. TJ. S., sec. 876. Notes. — If a witness lives within one hundred miles of the place of trial, and he fails to attend when subpoenaed, the court may send an attachment to be executed in another district. TJ. S. v. Williams, 4 Cr. 0. C, 372, and whether he lives beyond the distance or not is to be determined by the actual distance by usual routes. Ex parte Beebes, 2 Wall., Jr., 127. 8. Witnesses for United States, Subpoenas for.— Witnesses who are required to attend any term of a circuit or district court on the part of the United States, shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney ; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district- attorney. E. S. U. S., sec. 877. If ote.— The provisions of this section are applicable to this court, and are mandatory ; a subpoena, therefore, which does not comply with the form prescribed by the statute is void. In re Spencer, Mac A. & Mack., 433. 9. Attachment of Witnesne*. — An a£S.davit in support of a motion for an attachment against a person who has been subpoenaed as a witness, but who has failed to attend, ought to state that he is a material witness, otherwise the attachment should not issue. In re Spencer, Mac A, & Mack., 433. And before he can be brought into contempt there must have been a valid subpoena and a valid service of it. Id. And the admission by the witness of the service of the subpoena upon him by a person shown not to have authority to serve the same, is not an admission of the validity of the service. Id. The service must be in conformity with the laws of this court, and not with those of the State in which it is served. Id. SUPEEME COtrUT, DISTRICT OE COLUMBIA. 151 CHAPTER XXVI. OBTAINING- A JURY— CHALLENGES. 1. List of jurors. 2. Names, how selected. 3. How placed in jury-box. 4. Custody of jury-box. 5. Drawing jurors. 6. Juries for criminal term. 7. Jurors in capital cases. 8. Jurors for circuit court. 9. Additional names, when drawn 10. Re-sealing jury-box. 11. Talesmen may be challenged who have sra^ed within a year. 12. Names of persons drawn but not serving to be returned to jury-box. 13. If jurors do not attend, defi- ciency, how supplied. 14. When panel is incomplete. 15. How sunmioned when all names have been drawn. 16. Vacancies, how filled. 17. Marshal to notify persons drawn. 18. How notice to be served. 19. Marshal's return. 20. Juror failing to attend, penal- ty. 2Jt. Penalty where ofiicer colludes. 22. Penalty where clerk colludes. Jurors not to be excluded on account of race or color. Qualifications of jurors. Compensation of jurors. Who may be excused. Who are exempt from jury duty. "Long Panels" and "Struck Juries." OF CHALLENGES. How challenges shall be tried. The time for challenging. The right to challenge. Interrogating the juror. Grounds of challenge, interest. Relationship. Dependence of juror on party. Dependence of party on the juror. Intimate acquaintance. Having an opinion. Opinion as to an incidental question. Prejudice. Exceptions. Disqualified juror sitting. Peremptory challenges. — When interposed. Talesmen, statutory ground of challenge to. 1. List of Jurors. — Until otherwise provided by the legisla- tive assembly, the supreme court of the District may, by orders in general term, from time to time, designate neces- sary officers or persons to make the lists of jurors for service in said court. E. S. D. C, sec. 851. 2. Names, How Selected.— The names on the lists shall be selected, as near as may be, from among the citizens of the several wards or districts of the cities of "Washington and Georgeto-rn, and the three divisions of the District outside 148 PRACTICE AND PEOCEDXJEE IN THE or defended, and all persons interested in the same, shall, ex- cept as provided in the following section, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of any of the parties to the action or other proceeding. E. S. U. C, sec. 876. 2. Exceptions. — Nothing in the preceding section shall ren- der any person who is charged with an offence in any criminal iproceeding competent or compellable to give evidence for or against himself; Or render any person compellable to answer any question tending to criiainate himself; Or render a husband competent or compellable to give evi- dence for or against his wife, or a wife competent or compel- lable to give evidence for or against her husband, in any crimi- nal proceeding, or in any proceeding instituted in consequence of adultery. Nor shall a husband be compellable to disclose any commu- nication made to him by his wife during the marriage, nor shall a wife be compellable to disclose any communication made to her by her husband during the marriage. E. S. D. C, sec. 877. 3. Competency of Hu8band and Wife to Testify for or against each other. — There is no reported decision of this court as to the effect of the foregoing statute upon the capacity of the husband or wife to tes- tify for or against each other when both are parties to the action. The case of Holtzman v. Wagner, 5 Mackey, 16, was an action brought against a married woman on a matter having relation to her separate estate ; her husband was not made a party, and when offered by her as a witness, he was excluded. On a motion for a new trial, heard in the general term in the first instance, Mr. Justice Cox, delivering the opinion of the court, said : "I believe that every member of this court at the special term has held that the object of the law was not to give an affirmative capacity to testify without reference to other qualifications, but merely to remove the disqualification of being a party to a suit or interested in it. But whatever the true interpretar tion of the act, it seems to us that it does not apply to the facts in this case * * * The husband was neither a party to the suit nor inter- ested in it. The suit was brought against the wife alone, and under the terms of the Act of 1869, it could not affect the husband either in person or estate. Therefore, he was not within the class of persons to whom the law was intended to apply, but falls within the common law rule of exclusion." The case of Lucas v. Brooks, 18 Wall., 436, brought before the Su- preme Court of the United States, the consideration of the similar provision of the Revised Statutes of the United States (section 858, STJPEEME COURT, DISTEICT OF COLUMBIA. 149 arising from want of age, or mental infirmity or ttifamy, etc., or that the witness is called to testify for or against her husband (except in particular cases), remain, notwithstanding that the witness may- happen to be a party to the suit, or may be interested in the result." And in Holtzman v. Wagner, Mr. Justice Cox is reported as saying, " I believe that every member of this court at the special term, has . held that the object of the law was not to give an affirmative capacity to testify without reference to other [dis] qualifications, but merely to remove the disqualification of being a party to a suit or interested in it." Support to this view of the law is given by the language of the Supreme Court of the United States in Lucas v. Brooks, 18 Wall., 436, where, considering the similar provision of' section 858, R. S. U. S., it is said, "The objection to a wife's testifying on behalf of her husband, is not and never has been that she has any interest in the issue to which he is a party. It rests solely upon public policy. To that the statute has no application." 4. No Witness to be Excluded on Account of Color. — In all judicial proceedings in the District there shall be no exclusion of any witness on account of color. E. S. D. C, sec. 879. 5. In Actions by and against Executors, etc. — In the courts of the United States no witness, shall be excluded in any ac- tion on account of color, or in any civil action because he is a party to or interested in the issued tried : Provided, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other re- spects, the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty. E. S. U. S., sec. 858. 6. Notes of Decisions. — This section applies to the courts of this Dis- trict. Page v. Burnstine, 102 U. S., 662. And to trials in which the United States is a party. Green v. U. S., 9 Wall., 655. It not only makes parties (except those named in the proviso) competent to testify for themselves, but compellable to testify for others. Texas V. Chiles, 21 Wall., 488. But it does not render the wife competent to testify against the husband or the husband against the wife, as to that the common law rule still prevails. Lucas v. Brooks, 18 Wall., 453. See supra. As to the competency of parties to testify as to transg-ctions with decedents in actions against personal representa- tives, see Page v. Burnstine, 102 U. S., 664 ; James v. Atlantic De- laine Co., 3 Cliff., 614 ; Rhode Island H. T. Co. v. Hazard, 6 Fed. Rep., 150 PRACTICE AND PEOCEDURE OP THE 119. A person interested in the issue, but not a party to the suit, is competent to testify as to statements of the testator touching the subject-matter in controversy. Potter v. National Bank, 102 U. S., 163. The opposite party is that party against whom the evidence is sought to be used. Eslava v. Mazange, 1 Woods, 623. But admis- sions of a party are competent against him, although he testified in the case and was not asked whether he made them or not. The Stranger, 1 Brown Adm., 281. 7. Subpoenas for, to Run into Another District.— Subpoenas for witnesses who are required to attend a court of the United States, in any district, may run into any other district : Fro- vided, That in civil causes the witnesses living out of the dis- trict in which the court is held do not live at a greater distance than one hundred miles from the place of holding the same. E. S. U. S., sec. 876. Notes. — If a witness lives within one hundred miles of the place of trial, and fails to attend when subpoenaed, the court may send an at- tachment to be executed in another district. U. S. v. Williams, 4 Or. C. C, 372, and whether he lives beyond that distance or not is to be determined by actual distance by usual routes. Ex parte Beebes, 2 Wall., Jr., 127. 8. Witnesses for United States, Subpoenas for. — Witnesses who are required to attend any term of a circuit or district court on the part of the United States, shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney. E. S. U. S., sec. 877. Note. — The provisions of this section are applicable to this court, and are mandatory ; a subpoena, therefore, which does not comply with the form prescribed by the statute is void. In re Spencer, Mac A. & Mack., 433. ft 9. Attachment of Witnesses.— An affidavit in support of a motion for an attachment against a person who has been subpcenaed as a witness, but who has failed to attend, ought to state that he is a material witness, otherwise the attachnient should not issue. In re Spencer, Mac A. & Mack., 433. And before he can be brought into contempt there must have been a valid subpoena and a valid service of it. Id. And the admission by the witness of the service of the subpoena upon him by a person shown not to have authority to serve the same, is not an admission of the validity of the service. Id. The service must be in conformity with the laws of this court, and not with those of the State in which it is served. Id. STJPEEME COURT, DISTRICT OP COLUMBIA. 147 13. Absence of Docninentary Evidence.— The absence of documen- tary evidence, the existence of which was too recently discovered to enable the party to have produced it, is good ground for continu- ance. Cahil v. Dawson, 1 Post. & Fin., 291 ; Hlgginson v. Bank of England, Id., 450 ; Hoargenbee v. Gerard, 2 Wash., 164. 14. Stipulating against Abatement.— On granting an application to continue on behalf of a party dangerously ill, the court may re- quire a stipulation that death before final judgment shall not abate the action. Ames v. Webers, 576. The attorney has power to bind his client by such a stipulation. Oox v. N. Y. Cent., 63 N. Y., 414, and see Nightengale v. Oregon Gent. R. R., 17 Int. Rev. Rec, 61, where it was held that the stipulation must be by the attorney of record. 15. Refusal of Application not Ground of Exception.— Woods v. Young, 4 Granch, 237 ; Barrow v. Hill, 13 How., 54 ; Thompson v. Selden, 20 Id., 194, and see Anderson v. Smith, 2 Mackey, 1. 16. Supplemental Affidavits. — These will not be received upon a motion to continue the cause. 1 Or. G. G., 327. Nor will counter afladavits. Manning v. Jameson, 1 Cr. 0. C, 285. 17. Continuance in Suits against Delinquents for Public Money, When may be Granted.— See sees. 957, 958, 959 and 960, R. S. U. S. CHAPTER XXV. WITNESSES. 1. Interested parties may testify. 2. Exceptions. 3. Gompetency of husband and wife to testify for or against each other. 4. No witness to be excluded on account of color. , In actions by and against ex- ecutors, etc. Notes of decisions. Subpoenas to run into other districts. Witness for United States, sub- poenas for. Attachment of witnesses. 1. Interested Parties may Testify.— On the trial of any issue ' joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any court of justice in tlie District, or before any person having by law, or by con- sent of parties, authority to hear, receive, and examine evi- dence within the District, the parties thereto, and the persons in whose behalf any such action or proceeding may be brought 152 PEACTICE ANl^ PROCEDURE OP THE the limits of said cities, formed by the Eastern Branch of the Potomac Eiver and Eock Creek, in proportion to the number of inhabitants residing therein respectively. E. S. D. C, sec. 852. 3. How Placed in Jury-box.— The names selected shall be written on separate and similar pieces of paper, which shall be so folded or rolled up that the names cannot be seen, and placed in a box to be provided for that purpose. E. S. D. C, sec. 853. 4. Custody of Jury-box. — The box shall be sealed, and, after being thoroughly shaken, shall be delivered to the clerk of the supreme court for safe keeping. E. S. D. C, sec. 854. 5. Drawing Jurors. — At least ten days before the commence- ment of each term held as the circuit court, or as the criminal court, respectively, the clerk shall publicly break the seal of the jury-box and proceed to draw therefrom the names of so many persons as are required. E. S. D. C, sec. 855. 6. Juries for Criminal Terra. — If the jury is intended for service in the special term sitting as a criminal court, the twenty-three persons whose names shall be first drawn shall constitute the grand jury, and the twenty -six persons whose names shall be next drawn shall constitute the petit jury, for that term. E. S. D. C, sec. 856. 7. Jurors in Capital Cases. — In a capital case where the panel shall be exhausted by reason of challenge or otherwise, the court may, in its discretion, order additional names to be drawn ; and if all of the names in the box shall be drawn out and no jury found, the court may order the marshal to sum- mon talesmen until a jury shall be found. E. S. D. C, sec. 857. 8. Jurors for Circuit Court. — If a jury be required for the term sitting as a circuit court, the twenty-six persons whose names shall first be drawn shall constitute the jury for that term. E. S. D. C, sec. 858. 9. Additional Names, When Drawn. — If any person whose name is drawn shall have died or removed from the District, or become otherwise disabled from serving as a juror, the clerk shall draw from the box another name, to serve instead. E. S. D. C, sec. 859. 10. Re-sealing Jury-box. — After the requisite number of SUPREME COXJRT, DISTRICT OF COLUMBIA. 153 jurors shall have been drawn, the jury-box shall be again sealed, and remain in the custody of the clerk. E. S. D. C, sec. 860. 11. Talesmen may be Challenged who have Served within a Year. — It shall be good cause of principal challenge to any person called to serve as a talesman on a petit jury at any term of the criminal or circuit courts of the District of Colum- bia, that he has served as such juror in the trial of a cause in either of said courts at any time within one year next before his being so called and challenged. E. S. D. C, sec. 861, as amended by Act of June 8, 1880, 21 Stat., 166. 12. Names of Persons Drawn but not Serving to be Returned to Jury-box.— And whenever a paper, on which is written the name of any person, shall be drawn from the jury-box, and such person by reason of being challenged, or for any other reason, shall not serve as a juror at the term for or at which he shall have been so drawn, the clerk of the supreme court of the District of Columbia (unless otherwise ordered by the justice presiding in the court for which such name was drawn) shall replace the said paper in the jury-box, folded or rolled up in the manner prescribed by section eight hundred and fifty-three of said chapter, subject to be drawn again from said jury-box with the other papers therein. Id. Note. — Section 812 of the Revised Statutes of the United States, which disqualifies any person from serving as a juror more than once in two years, does not apply to the courts of this District. The law governing that subject is the foregoing section as amended, and only one year need elapse. United States v. Nardello, 4 Mackey, 503. But the attention of the court does not appear to have been called in that case to the distinction between talesmen as such, and jurors ; a distinction which the language of the statute evidently requires. 13. If Jurors do not Attend, Deficiency, How Supplied. — If the persons selected as jurors do not attend, the court may order the marshal to summon others, possessing the legal qualifications, to supply the deficiency. E. S. D. C, sec. 862. 14. When Panel is Incomplete.— If at any time there should not be, by reason of challenge or otherwise, a sufficient num- ber of jurors to make up the panel, the court shall order the marshal to summon as many talesmen as are necessary for that purpose. E. S. D. C, sec. 863. 15. How Summoned when all Names have been Drawn.— 20 154 PEACTICE AND PEOCEDUEE OF THE If at any time it shall occur that all of the names in the box are drawn out at any term of the court before the first day of February, the court may order the marshal to summon from the body of the District twentj'-three citizens, having the qualifications of jurors, to serve as grand jurors, and twenty- six citizens, having such qualifications, to act a.s petit jurors, or either, as may be needed at any subsequent term of the court to be held between the time of the happening of the contingency mentioned and the first day of February then next ensuing. E. S. D. C, sec. 86-4. Note.— See Act of Md., 1798, ch. 24. 16. Vacancies, How Filled.— Vacancies in either grand or petit juries ordered to be summoned, as provided in the pre- ceding section, may be filled by other persons summoned by the marshal upon the order of the court. E. S. D. C, sec. 865. Note. — The provision of the Revised Statutes of the United States as to talesmen is as follows : " When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such de- fect of jurors happens, return jurymen from the by-standers sufiB- cient to complete the panel ; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinter- ested person as the court may appoint, and such person shall be sworn, as provided in the preceding section." R. S. U. S., sec. 804. 17. Marshal to Notify Persons Drawn. — It shall be the duty of the marshal of the District, at least five days before the meet- ing of the court for which a jury is required, to notify each per- son drawn by serving on him a notice in writing, of his selec- tion as a juror of the court he is to attend, and of the day and hour he is to appear. E. S. D. C, sec. 866. 18. Notice to be Served. — Such notice shall be given to each juror in person, or be left at his usual place of residence. E. S. D. C, sec. 867. 19. Marshal's Return. — A copy of the notice, with his certifi- cate stating when and in what manner the original was served, shall be returned by the marshal to the court before the com- mencement of the term for which the jurors were drawn. E. S. D. C, sec. 868. 20. Juror Failing to Attend— Penalty.— If any person se- lected as a juror and duly notified to attend, shall, without sufficient cause, neglect to attend agreeably to notice, he shall be fined by the court in a sum not exceeding twenty dollars for StTPKEME COURT, DISTRICT OP COLtTMBIA. 155 every day he shall be absent during the sitting of the court. R. S. D. C, sec.8C9. 21. Penalty where Officer Colludes. — If any officer shall put on the list the name of any person at his own request, or on the request of any other person, or shall be guilty of anj^ fraud or collusion with respect to the drawing of jurors, he shall be deemed guiltj' of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars, and imprisoned in the county jail not less than sixty days, for each offence. R. S. D. C;, sec. 870. 22. Penalty where Clerk Colludes. — If the clerk of the court shall draw from the box a greater number of names than is required by the court, in accordance with law, or shall put in the box any name after the same has been delivered to him, or shall be guilty of any fraud or collusion in respect to the drawing of jurors, he shall be deemed, guilty of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars, and be imprisoned in the District jail not less than sixty days, for each offence. R. S. D. C, sec. 871. 23. Jurors Not to be Excluded on Account of Race or Color.— No citizen possessing all other qualifications which are, or may be, prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude ; and any officer or other person charged with any duty in the se- lection or summoning of jurors who shall be excluded, or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars. March 1, 1875, sec. 4, 18 Stat., 335. 24. Qualifications of Jurors. — No person shall be conapetent to act as a juror unless he be a citizen of the United States, a resident of the District, over twenty-one and under sixty-five years of age, and a good and lawful man, who has never been convicted of a felony or misdemeanor involving moral turpi- tude. R. S. D. C, sec. 872. Note. — As to what constitutes a resident within the meaning of this section, see United States v. Nardello, 4 Mackey, 503. 25. Compensation of Jurors.— Jurors are entitled to the same ■compensation as received for their attendance in the circuit and district courts of the United States by the act of Februaiy 156 PEACTICB AND PROCEDURE OF THE twenty-sixth, eighteen hundred and fifty-three, [10 Stat., 168]. E. S. D. C, sec. 873, as amended by act of February 27, 1877. 19 Stat., 240. jf ote.— The Act of February 26, 1853, above referred to fixes the pay of jurors at two dollars per day. And now, by the act June 30, 1879, "The per diem pay of each juror, grand or petit, in any court of the United States, shall be two dollars." 26. Who may be Excused.— A person may be excused by the court from serving on a jury when, for any reason, his interests or those of the public will be materially injured by his attendance, or when he is a party in any action or proceed- ing to be tried or determined by the intervention of a jury at the term for which he may be summoned, or where his own health or the death or sickness of a member of his family re- quires his absence. E. S. D. C, sec. 874. 27. Who are Exempt from Jury Duty.— AH executive and judical officers, salaried officers of the Government of the United States, commissioners of police, and those connected with the police or fire department, counselors and attorneys at law, ministers of the gospel and priests of every denomina- tion, practicing physicians and surgeons, keepers of hospitals, asylums, almshouses, or other charitable institutions created by or under the laws relating to the District, captains, and masters and other persons employed on vessels navigating the waters of the District, and keepers of public ferries, shall be exempt from jury duty, and their names shall not be placed on the jury-lists. E. S. D. C., section 875. Note. — On a motion for a new trial, it is no ground of objection to a person as a juror that the law exempts him from jury service. He is not disquaUfled thereby, and, it being a personal privilege, he may waive it. United States v. Lee, 4 Mackey, 489. 28. "Long Panels" and "Struck Juries."— In all civil cases called for trial in the general and county courts, in which a jury shall be necessary, according to the laws and constitution of this State, twenty persons from the panel of petit jurors shall be drawn, by ballot, by the clerks, under the direction of the said respective courts, and the names of the twenty persons shall be written upon two lists, and one of the said lists shall be forthwith delivered to the respective parties, or their counsel in the cause, and it shall and may be lawful for each of the said parties, or their counsel, to strike out four persons from the said lists, and the remaining twelve persons shall thereupon SUPREME COURT, DISTRICT OF COLUMBIA. 157 be immediately empanelled, and sworn as the petit jury in such cause ; and if the said parties, or their counsel, or either of them, shall neglect or refuse to strike out from the said lists the number of persons hereby directed, it shall and may be lawful for the respective courts aforesaid to direct their clerks to strike out from the list of the party or parties so neglecting or refusing the number of persons hereinbefore mentioned, and the remaining twelve persons shall be empanelled, and swori;! as aforesaid. Md. Act, 1797, ch. 87, sec. 9. Xote. — When a " struck jury " or " long panel " is demanded, as may be done of right by either party, "the legal course is for the clerk to draw twenty names of persons on the general panel, by lot, each party to strike off four, and the remaining twelve try the cause. In practice, the clerk frequently sets down the names at random, or otherwise, without drawing, and it is not usual to object to this, ex- cept some uncommon inducement to do so exists ; but if the objection is taken it must be attended to. If either party refuse or neglect to strike four, the court does it for him." Evans' Prac., 39. By the Maryland Act of 1798, ch. 94, sec. 2, " If the parties, or their counsel, agree, the drawing of a panel of twenty jurors in any cause may be dispensed with." OF CHALLENGES. 29. How Challenges shall be Tried.— All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers. E. S. U. S., sec. 819. 30. The Time for Challenging.— Neither party has a right to chal- lenge after the jury is sworn. 9 Wheat., 579 ; 2 Gall., 364 ; Queen v. Hepburn, 7 Crarich, 290 Aff. ; 2 Cr. C. C, 3. But it is in the discretion of the court to protect the administration of justice by investigating, at any stage of the trial, an objection to the impartiality of a jury, and by withdrawing the case from the jury, if any juror is found un- fit to sit therein. United States v. Morris, 1 Curt., 23 ; Silsby v. Foote, 14 How., 218. 31. The Right to Challenge.— The right to challenge jurors for a cause assigned, as distinguished from peremptory challenges, is a common law right, which cannot be taken away, except by express statute. Barrett v. Long, 3 Hof L. Cas., 395, 415. 32. Interrogating the Jurors.— Each party has the right, before the jury is sworn, to interrogate each proposed juror under oath, or have the court do so, on points material to the question, whether he has the qualifications required by law, and is impartial. Hull v. Albro, 2 Dis- ney (Ohio), 147, 149 ; Loefler v. Keokuk, etc., Packet Co., 7 Mo. App., 185, 189 ; Gillam v. Brown, 43 Miss., 641 ; 23 Am. Dec, 131, note. This right extends to facts not in themselves disqualifying, if in connection with others they might show bias. Mechanics & Far- 158 PRACTICE AND PEOCEDTJEE OF THE mers' Bank v. Smith, 19 Johns., 115. It is for the court to say what questions are admissible on the question of impartiality. 18 Barb., 522. But a juror cannot be compelled to answer a question tending to his disgrace. It must be proved by' other evidence. Burt v. Panjaud, 99 U. S., 180. Nor to his disadvantage. 3 Blackst. Com., 363. Wit- nesses may be called to prove the ground of challenge. Burt v. Pan- jaud, supra. Pringle v. Huse, 1 Cow., 432. An exception lies to the exclusion of evidence on the trial of jurors' qualification. Burt v, Panjaud, supra. 33. Gironnds of Challenge — Interest. — Having a matter of fact pend- ing for trial during the term of the court is a good cause for chal- lenge, but if no challenge be made it is too late to object after verdict. Md. Act, 1778, ch. 21, sees. 2 and 3. An interest in the result of the action disqualifies. Wood v. Stoddard, 2 Johns., 194 ; Melson v. Dickson, 63 Geo., 682,. s. c, 36 ; Am. R., 128, But not if only in the legal questions involved. Williams v. Smith, 6 Cow., 166 ; Miller v. Road Co., 52 Ind., 51-59. Except under special circum- stances, see Lewis v. Few, Auth., N. P., (N. Y.) 102, and Lewis v. Jef- ferson Co., 20 Fla., 980, where a holder of similar county bonds to those sued on was held disqualified. It is not necessary to show a pecuniary interest; a trustee of a charitable or religious cor- poration would be disqualified. Cleage v. Hyden, 6 Heisk, (Tenn.), 73. But it would seem to be only ground for challenge to the favor. People v. ETorton, 13 Wend., 9, 23. Membership in a corporation does not disqualify, when it is not a party, merely because a servant of it is the defendant, if there could be no benefit to or recovery over against it. Williams v. Smith, 6 Cow., 166. Being a citizen of the municipality sued or suing, disqualifies at com- mon law and under statutes declaring interest a disqualification, but this rule, not being practicable in the District of Columbia, is not recognized. The city of New York, which is co-extensive with the county, presents a parallel case, and there such an objection is like- wise ignored from necessity. 34. Relationship.— By consanguinity or affinity disqualifies and is a common law ground of challenge for principal cause. Cain v. Ingham, 7 Cow., 478, and note. So also will relationship to one who is interested in the suit, as to counsel whose fees depend on a recov- ery. Melson v. Dickson, 36 Am. R., 128, s. c, 63 Ga., 682. So would be the son of a stockholder of a corporation party. Georgia R. R. Co. V. Hart., 60 Ga., 550. Disqualification by r^ationship ex- tends only to the ninth degree. 3 Blackst. Com., 366 ; Wireback v. Bank, 97 Pa. St., 543 ; Cain v. Ingham, 7 Cow., 478. 3&. Dependence of Juror on Party.— At common law it is a groundl of challenge for principal cause, if the juror is subject to the control of a party. Cummings v. Gann, 52 Pa. St., 484. As an employee. Hubbard v. Rutledge, 57 Miss., 7 ; Central R. R. v. Mitchell, 63 Ga.,. 173. Or a tenant. Hathaway v. Helmer, 25 Barb., 29. And the* abolition of distress for rent has not changed the rule. Id. And on* STJPEEME COURT, DISTRICT OF COLUMBIA. 159 same principal one subject to control of a person interested should be deemed equally disqualified. Abb. Trial Brief, 18. 36. Dependence of Party on the Juror.— At common law ground of challenge to the favor only. People v. Bodine, 1 Denio, 281, 306. 37. Intimate Acquaintance. — Intimate acquaintance with a party is also at common law ground of challenge to the favor only. Moore V. Cass, 10 Kans., 288 ; People v. Bodine, supra. 38. Having' an Opinion. — Does not disqualify in a civil case if the juror testifies that he believes he can render an impartial verdict, according to the evidence, and that his previously formd opinion or impression will not bias or influence his verdict, and the court is satisfied that he does not entertain such a present opinion or impres- sion as will influence his verdict. Gold Mining Co. v. Bank, 96 U. S., 640. Same point in a criminal case. Reynolds v. U. S., 98 U. S., 145. 39. Opinion as to an Incidental Question.— Does not disqualify un- less found to be such as to be likely to influence the verdict. Dew v. McDewitt, 31 Ohio St., 139 ; Hughes v. Cairo, 92 111., 339 ; Davis v. Walker, 60 Id., 452. As for instance in a life insurance case, having an opinion whether suicide is evidence of insanity. Compare Hagadorn V. Mut. Life Ins. Co., 22 Hun., 249; Boileau v. Life Ins. Co., 9 Phil. (Pa.), 218, Or in an action for wilfully and corruptly refusing a vote, an opinion as to the duty to receive a vote. Elbin v. Wilson, 33 Md., 135. 40. Pejndice. — Prejudice against the business or calling in connec- tion with which the cause of action arises disqualifies, if found to be such as to be likely to influence the verdict. At common law ground for challenge to the favor only. Winneshiek Ins. Co. v. Schneller, 60 111., 465 ; Robinson v. Randall, 82 ; Id., 521 ; Albrecht v. Walker, 73 Id., 69 ; United States v. Boryer, 7 Fed. Rep., 193 (Grim. Case). Litigation between party and juror disqualifies absolutely, if an ac- tion implying ill will — such as assault, slander, etc. — ^is pending, other- wise not, unless found to be likely to infiuence the verdict. At com- mon law, the former ground for challenge for principal cause ; the latter to the favor only. People v. Bodine, 1 Denio, 281, 305. Having a cause of action against the defendant upon the same state of facts is enough to disqualify. Davis v. Allen, 11 Pick., 466. 41. Exceptions. — An exception lies to the erroneous ruling of the court in trying a challenge, bnt it will not avail him if he does not ex- haust his peremptory challenges. Burt v. Panjaud, 99 U. S., 180; Robinson v. Randall, 82 111., 521 ; Sullings v. Shakespeare, 46 Mich., 408. 42. Disqualified Juror Sitting-.- The fact that a disqualified jury sits in the trial of a cause, whose disqualification is not known to the parties until after verdict, is not in general a suflicient ground to set it aside. Poe's Prac, citing Shane v. Cla.rk, 3 H. & McH., 101 ; Tide Water Canal Co- v. Archer, 9 G. & J., 197 ; People v. Jewett, 6 Wend., 160 PRACTICE AND PROCEDURE OF THE 386 ; Amerst v. Hadley, 1 Pick., 38 ; United States v. Baker, 3 Bene- dict, 68. 43. Peremptory Challenges, Three only Allowed.— In all civil oases "each party shall be entitled to three peremptory chal- lengers ; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges." E. S. U. S., sec. 819. 44. When Interposed. — In a civil action, a party is not bound to ex- ercise his right of peremptory challenge until there are in the jury- box twelve persons whom the court has adjudged to be competent jurors. Taylor v. Western Pacific E. E., 45 Cal., 323 ; Sterling Bridge V. Pearl, 80 111., 251, 252. The reason is, that unless a party has as- certained what jurors can be excluded for cause, and therefore need not be challenged peremptorily, he may lose the chief value of this privilege. Hunter v. Parsons, 22 Mich., 96 ; 4 Blackst. Com., 353 ; People V. Bodine, 1 Denio, 281. 45. Talesmen, Statutory Ground of Challenge to. — By section 861, E. S, D. C, (as amended) it is made a good cause of principle challenge to any person called to serve as a talesman on any petit jury, that he has served as such juror at any time within one year next before his being so called and challenged. CHAPTER XXVII. THE TRIAL AND ITS INCIDENTS. 1. Consolidation of causes, 2. Separating causes of action. 3. Court may compel election of causes of action, or of defen- ces, when they are inconsis- tent. 4. On non-appearance of either party, case to be dismissed. 5. When plaintiff fails to appear, judgment, 6. When defendant fails to ap- pear, judgment. 7. Eepleader. Eule 50. 8. Issues of fact to be tried before a single justice. 10. 11 9. — And may, by consent, be tried by the court without a jury. In such cases, bill of excep- tions to be filed. Trial by jury — Constitutional provision. 12. Mode of proof in common law actions. 13. Moving to dismiss for insuffi- ciency of pleadings. 14. Amending to defeat the mo- tion. 15. Plaintiff may have judgment,, when. SUPREME COURT, DISTRICT OP COLUMBIA. 161 16. The right to open and close. 17. Opening the case to the jury. 18. Directing a verdict against plaintiff, on opening state- ment of counsel. 19. Separating the witnesses. 20. Examining witness on the voir dire. 21. Incompetency of witness on ground of conviction of felo- ny. 22. .The order of proof. GENERAL RULES AS TO ADMISSION OF EVIDENCE AND CONDUCT OP THE TBIAL. 23. Relevency and competency of testimony. 24. In cases where fraud is in issue. 25. Account books and memoran- da. 26. Shop books. 27. Admissions and declarations — res gestse. 28. Agency. 29. Billofpairticulars. 30. Burden of proof. 31. Depositions as evidence. 32. Documents. 33. Handwriting. 34. Experts. 36. Intent. 37. Judicial notice. 38. Leading questions. 39. Mailing letter. 40. Reasonable time. 41. Receipts. 42. Statute of limitations. 43. Usage. 44. Variance. MISCELLANEOUS MATTERS. 45. Receiving evidence condition- ally. 46. Limits of cross-examination. 47. Cross-examination of party. 48. Re-opening to let in evidence. 49. Withdrawing a juror. 50. Right of sur-rebuttal. 51. Non-suit, involuntary. 52. — Voluntary, when allowed and when not. 53. Dismissing action against one of several. 54. Demurrer to evidence. CHARGING THE JURY. 55. General rules as to. 56. Hypothetical questions. 57. Commenting upon the evi- dence. 58. Written instruments. 59. Oral contracts. 60. Falsus in uno. 35. Impeaching one' sown witness. 61. Directing verdict. 1. Consolidation of Causes.— When causes of a like nature or relative to the same question are pending, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so. Eule 42. Note. — The foregoing rule is substantially section 921 Revised Statutes of the United States, which is as follows : " When causes of a like nature or relative to the same question are pending before a court of the United States, or of any Territory, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so," 21 162 PRACTICE AND PEOCEDTJEE OF THE Federal courts have authority to order causes of a like nature pending before them, and in which substantially the same questions are involved, though against different defendants, to be tried at the same time, even where, in consequence, the defendants will be brought into antagonism. Keep v. Ind. & St. Louis R. Co., 10 Fed. Rep., 454 ; 3 McCrary, 302. If a party has two or more causes of ac- tion of the same kind he may be compelled to consolidate, and pay the costs of the application. Bank v. Young, 1 Or. C. C, 458. If several suits involve the same question, and the attorneys for the defendant consent that judgment may abide the event of a trial of one case, an order may be entered that the decree entered in the case selected for trial shall be entered in the other cases. So the court may order several actions against several insurance companies to be tried before the same jury, if the questions and the evidence are the same. Weide v. Insurance Co., 3 Chic. L. N., 352. The prac- tice of consolidating causes is a common practice. U. S. v. U. Pac. R. R. Co., 98 U. S., 569. If the grounds of the motion are not denied, and it does not appear that the plaintiff will be materially prejudiced by the consolidation, it has been customary with the courts to grant the motion, (19 Wend., 23,) not only where both or all of the suits are brought at the same time, but where they are brought at diiferent times, and although at the commencement of the first action the cause of action ia the other had not accrued . The test for allowing the motion is, are the questions to be tried identical ? If they are, the motion should be granted (4 HiU, 46), unless it will prejudice the plaintiff. 4 Hill, 450. The de- fendant, to entitle him to an order to consolidate, need not swear to merits (3 Wend., 443), for the motion will be granted where no defence is introduced, merely to avoid the expense of several judgments. 4 Hill, 47 ; 3 Wend., 442. The motion may be made by the plaintiff. Briggs V. Gaunt, 2 Abb., 77 ; 4 Duer, 664. Where a plaintiff commenced sixty-four actions against the same defendant, all of which were at issue, and were for the recovery of separate penalties for an alleged violation of the law concerning for- eign bank notes, the defendant moved to consolidate, ordered that the plaintiff should bring to trial one of the suits, which might be se- lected by him, and that all proceedings in the remaining suits should be staid until the trial of such selected suit, with liberty to the de- fendant, after such trial, to renew the motion for a consolidation. Clark V. Met. Bank, 5 Sand., 665, and see Anderson v. Towgood, 1 Ad. & EL, N. S., 245 ; Lorley v. Brewer, 17 How. Pr., 228. 2. Separating Causes of Action. — If several causes of action be stated in the declaration, and it be inexpedient to try them together, the court may try each or as many of them sepa- rately as it deems convenient. Eule 43. 3. May Compel Election of Causes of Action or of Defences when they are Inconsistent. — If absolutely incompatible causes of action or defences are stated in the same pleading, the court may, at the trial, StTPREME COtrRT, DISTEICT OP COLUMBIA. 163 compel the party to elect between them. The reason Is, that courts are never bound to give a party time both to prove and disprove the same thing. Southworth v. Bennett, 58 N. Y., 659. A party ought not to be compelled to elect before evidence has been given between two causes of action or defences, unless they are absolutely inconsist- ent — ^that is to say, incompatible — nor even when they are, if his case be such that he is entitled to a discovery at the trial, as to the facts necessary to enable him to elect. Abb. Tr. Brief, 28, and cases cited. 4. On N on- Appearance of either Party, Case to be Dismissed. — When a cause is reached in the regular call of the calendar, and neither party appears, the case may be dismissed at the cost of the plaintiff. Eule 44. 5. When Plaintiff Fails to Appear.— If the plaintiff fail to appear when the case is called for trial, the defendant may have the, plaintiff called and dismiss the suit, or he may have a trial. Eule 45. 6. When Defendant Fails to Appear.— If the defendant fail to appear when the cause is called for trial, the plaintiff may have defendant called, and take a judgment by default, or may be required to prove his case, in the discretion of the court. Eule 46. 7. Repleader. — If it appear at the trial that the pleadings have miscarried — that is, failed to raise material issues, on which may be decided the real questions in dispute between the parties — the court may then and there order them to be amended. Eule 50. 8. Issnes of Fact to be Tried before a Single Justice.— All issues of fact triable by a jury or by the court shall be tried before a single justice. E. S. D. C, sec. 801. 9. —May, by Consent, be Tried by the Court without a Jury.— Issues of fact in civil cases in any circuit court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either gen- eral or special, shall have the same effect as the verdict of a jury. E. S. U. S., sec. 649. 10. In such Cases, Bill of Exceptions, etc., to be Allowed.— When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if 164 PEACTICE AND PROCEDUEE OE THE excepted to at the time, and duly presented by a bill of excep- tions, may be reviewed by the supreme court upon a writ of error or upon appeal ; and when the finding is special the re- view may extend to the determination of the suflEiciency of the facts found to support the judgment, E. S. U. S., sec. 700. Note. — For the proper mode of procedure upon a trial by the court without a jury, tinder the provisions of the above acts, and of obtain- ing a review of the result, see Clement v. Phoenix Ins. Co., 7 Blatchf, 51. There must be an agreement to waive a jury trial to enable the court to try an issue of fact. Morgan v. Gay, 19 Wall., 81. Parties may still waive a jury as they could before the passage of this act (sec. 649), without filing a written stipulation, but in such case no error can be considered by the supreme court in the action of the court on the trial, but the judgment will be held valid, unless other errors are apparent in the record. Kearney v. Case, 12 Wall., 275. Parties will be presumed to have waived their right to a trial by jury, whenever it appears that they were present at the trial in person or by counsel and made no demand for a jury. Kearney v. Case, 12 Wall., 276; Phillips V. Preston, 5 How., 278 ; 91 U. S., 603. But unless it appears that they were so present, i or otherwise gav Pa. St., 77 ; Kent v. Lincoln, 32 Vt., 591 ; Walker v. Fields, 28 Ga., 237. 51. Jfon-Snit, Involuntary. — The courts of the United States have no authority, on the trial of a cause before a jury, to order a non- suit without consent of the plaintiff. Elmore v. Grymes, 1 Pet., 469 ; Castle V. BuUard, 23 How., 172 ; Schuehardt v. Aliens, 1 Wall., 359. 52. —Voluntary, when Allowed and when Not.— At any time before the case is ready and opened for trial, and some pertinent evidence offered, which may ascertain and decide the merits, the plaintiff may enter a non-suit. But after that he cannot become non-suit so as not to be bound, unless the opposite party consent or the court for sufficient reasons give leave. Such reason might be surprise or unexpected absence of witnesses or counsel. Folger v. The Robert G. Shaw, 2 Woodbury & M., 531. 53. Dismissing Action against One of Several.— Where the action is on a joint and several contract, or where the defendants .are allowed to sever in their pleadings, the plaintiff may enter anol. pros, against any one of the defendants, either before or after judgment, against the rest. Minor v. Mechanics' Bank, 1 Pet., 46 ; Abrams v. De Wan- dalaer, 2 Mac A., 342 ; 5 Cowen, 780. It is sometimes proper to do so in case of surprise or mistake on the part of the plaintiff, in the prepa^ ration of his cause for trial, even where he has not been wilfully misled by the defendant. Id. When the interest of a party is in danger of being sacrificed, the court can prevent injustice by with- 174 PRACTICE AND PEOOEDUEE OF THE drawing a juror, a power which in the opinion of able judges should be liberally and judiciously exercised. Rentzheimer v. Bush, 2 Barr. (Pa.), 89. By the Act of Maryland of 1785, eh. 80, sec. 4, "if amendment is made after the jury is sworn, a juror shall be withdrawn," * * * " and the adverse party shall have time allowed him, in the discre- tion of the court, to prepare to support his case upon the state of the proceeding so amended ;" and this practice was upheld in Strong v. The District, 3 Mac A., 499. 54. Demurrer to Evidence. — A demurrer to evidence admits not only the facts, but also every conclusion which a jury might fairly and reasonably infer therefrom. Merrick v. Giddings, 1 Mackey, 395 ; Thorton v. Bank of Washington, 3 Pet., 36. CHARGING THE JUBY. 55. (General Enles as to. — It is' the duty of the court, when properly called upon, to declare the law applicable to the caae. But if, not- withstanding an omission to instruct, the verdict is the same as it must have been had the required instruction been g^ven, the error may be disregarded. Douglas v. McAllister, 3 Or., 298. The court is not expected to instruct the jury upon any point upon which neither party requests instruction. Pennock v. Dialogue, 2 Pet., 1. The prayers should be precise and certain to a particular intent, that the point intended to be raised may be distinctly seen by the court ; and the error, if one be made, may be distinctly assigned. United States V. Bank of Met., 15 Pet., 377, 406. It is in the discretion of the court to refuse all instructions prayed for by either party, and to state the law in its own language. Carpenter v. Railroad Co., 3 Mackey, 225. If a charge already given by the court covers the en- tire case, the court may refuse to give further instructions. Rail- road Co. V. Horst, 93 U. S., 291. A prayer consisting of a number of propositions presented as a whole, may be refused if any one of them should not be given. Beaver v. Taylor, 93 U. S., 46 ; Worthington V. Mason, 101 U. S., 149 ; United States v. Hough, 103 U. S., 71. Where the evidence is irrelevant to the fact insisted upon, or such as cannot fairly warrant a jury in presuming it, it will be error for the court to instruct them that they are at liberty to presume it. Bank v. Corcoran, 2 Pet., 121. See Otterback v. Brown, 2 Mac A., 541. When a case rests upon several grounds necessary to be passed upon by the jury, an instruction which will make the case turn upon a single point, is error. Adams v. Roberts, 2 How., 486. See Scott V. Lloyd, 9 Pet., 418. 56. Hypothetical Questions. — The court is not bound to give an in- struction upon an abstract or hypothetical question, or upon a point not raised by the evidence. McNeil v. Holbrook, 12 Pet., 84 ; Roach v. Hulings, 16 Pet., 319; Rhett v. Poe, 2 How., 457; United States v. Breitling, 20 How., 252. See Bank v. Eldred, 9 Wall., 554; Thomp- son V. King, 111 U. S., 459. And where a prayer overlooks facts of which there is evidence, or assumes as fact that of which there is no STJPEEME COUET, DISTRICT OP COLUMBIA. 175 evidence, it should be refused. Lucas v. Brooks, 18 Wall., 436 ; Ins. Co. V. Baker, 94 U. S., 611 ; Orleans v. Piatt, 99 U. S., 676. 57. Commenting Upon the ETidence.— Where there is evidence on a point, the court may be called upon to instruct as to the law, but it is for the jury to determine on the effect of the evidence. Canal Co. V. Knapp, 9 Pet., 541. See Snyder v. Knley, 1 Mao A., 220. Nor should the c'ourt assume as true a controverted fact. Adams v. Rob- erts, 2 How., 486. The court may, in its discretion, give its opinion upon the facts in evidence, but it ought to be done cautiously, and never without a warning to the jury that they are triers of the facts in the case, and that the opinion of the court in no wise concludes their judgment. United States v. Murphy, Mac A. & Mack., 375 ; Game v. Stiles, 14 Pet., 327; Mitchell v. Harmony, 13 How., 131. 58. Written Instruments. — The general rule is, that the interpre- tation of these belong to the court and not to the jury. But when, from the different senses of the words used, or their obscure and indeterminate reference to unexplained circumstances, the true interpretation, of the language is doubtful, the question may be left to the consideration of the jury. Brown v. McGran, 14 Pet., 479; Richardson v. Boston, 19 Howard, 263. So where the effect of an instrument depends not merely on the construction and meaning of the instrument, but upon the collateral factsj in pais, and extrinsic circumstances, the inferences of fact to be drawn from them are to be left to the jury. Ettingv. Bank of U. S., 11 Wheat., 59 ; Barredav. Silsbee, 21 How., 146. 59. Oral Contracts. — If in an oral contract there is any conflict as to the words used, or if the words themselves are ambiguous, the question of intent should be left to the jury. But if the words are clear and explicit, and the only difiiculty is in the proper legal infer- ence to be drawn from them, it is for the court to give the words their proper construction. Detroit Stove Works v. Perry, 20 Alb. L. J., 10 ; s. c, 8 Rep., 327. For an explanation of the duty of court and jury as to construction of contracts, see Dawes v. Peebles, 6 Fed. Rep., 857. 60. Falsus in Uno. — The maxim, falsus in uno falsus in omnibus, should only be brought to the attention of the jury as advisory. But the jury are, nevertheless, to be the judges of the witness' credi- bility. Oliver v. Cameron, Mac A. ^ Mack., 237. 61. Directing Verdict. — (See Non-suit.)— The court cannot take from the jury the right of weighing the evidence, but where no evi- dence tending to support an issue has been given, the court is bound, if requested, to instruct the jury to that effect. Greenleaf v. Birth, 9 Pet., 292 ; Bank v. Bank, 10 Wall., 604 ; Rountree v. Smith, 108 U. S., 269 ; Marion Co. v. Clark, 94 U. S., 278. Compare Pence v. Larigdon, 99 U. S., 578. A case should not be withdrawn from the jury, unless the testimony be of such a conclusive character as to compel the court, in the exercise of a sound legal discretion, to set aside a verdict in 176 PRACTICE AND PEOOEDTJEE OP THE opposition to it. Ins. Co. v. Lathrop, 111 U. S., 612. If on the trial of an action on contract, the opening statement of counsel for plaintiff clearly shows that the contract on which the suit is brought is void, as being either in violation of law or against public policy, a verdict for the defendant may be directed. Oscanyan v. Arms Co., 103 IT. S., 261, and see Jones v. Railroad Co., 5 Mackey, 8, where it was held error so to direct where the case is one dependant upon the de- velopment of facts which counsel stated would appear in evidence. CHAPTEE XXVIII. THE VERDICT. 1. When for plaintiff, form of. 2. When for defendant, form of. 3. When there are several counts, and some are found for plain- tiff and the rest for defendant. 4. Sufficiency of verdicts. 5. Amendment of verdicts, 6. Special verdicts, how stated, 7. — Parties may prepare them. 8. — Form and suflSciency of. 9. Verdict subject to opinion of the court, form of. 1. When for Plaintiff, Form of. — A general verdict for the plaintiff shall be recorded thus : " The jury, on their oath, say they find the issue aforesaid in favor of the plaintiff, and that the money payable to him by the defendant by reason of the premises, is the sum of $ , besides costs." If the action be founded on contract, the record of the verdict shall pro- ceed : "With lawful interest from the day , 18 — , besides costs." Eule 51. 2. When for Defendant, Form of.— If the verdict be for de- fendant, then : " The jury, on their oath, say they find for the defendant," unless, upon set-off pleaded, a balance is found due the defendant ; and then the record of the verdict shall proceed : "And that the money payable to him by the plain- tiff, by reason of the premises, is the sum of $ , with interest from the day of , 18—, besides cost." Id. 3. When there are Several Counts and some are Found for Plaintiff and the rest for Defendant.— If there be several counts in the declaration, and the jury find for the plaintiff on some and for the defendant on the rest, the verdict shall be entered thus : "The jury, on their oath say, they find for SUPREME COURT, DISTRICT OE COLUMBIA. 177 the plaintiff on the ( ) issues, and that the money pay- able to him by the defendant, by reason thereof, is the sum of $ —, [with interest from the day of , 18 — ,J besides costs ; and for the defendant on the ( ) issues." 4. Sufficiency of Terdicts. — A finding by the jury which contra- dicts a fact admitted by the pleadings, is to be disregarded. McFer- ran v. Taylor, 3 Or., 270. If the verdict is uncertain or repugnant in form it is void. Steames v. Barrett (1 Oirc. Mass.), 1 Mass., 153. 6. Amendment of Verdicts. — The statute of jeofails (R. S. U. S., 950, ante, p. 42), applies to defects in verdicts ; and where the court can see from the verdict what was the substantial finding of the jury, and that it covered what was in issue, it will be allowed to stand. Parks V. Turner, 12 How., 39. And where there is a mistake in form it may be amended. Lincoln v. Iron Co., 103 U. S., 412 ; Gunn v. Plant, 94 U. S., 304. But not defects in substance. Garland v. Davis, 4 How., 131. Where a general verdict has been rendered upon a declaration containing different counts, some of which are inconsistent in law with each other, e. g.- — a count claiming as administrator, joined with one claiming in plaintiff's own right — the court may allow the verdict to be amended so that judgment may be entered on the good counts, or on those not incompatible with each other. Murphy v. Stewart, 2 How., 263. 6. Special Verdicts, How Stated.— If the parties elect to have a special verdict taken, then the jury shall state all the facts as they find them proved with certainty and precision ; and then add : "But they are ignorant, in point of law, on which side they ought upon these facts, to find the issue ; and if, upon the whole matter, the court shall be of opinion that the issue is proved for the plaintiff ; they find for the plaintiff accordingly ; and that the money payable to him by the de- fendant is the sum of $ , [with interest from the day of , 18^,] besides costs ; but if the court shall be of an opposite opinion, then they find for the defendant;" all which shall be entered upon the minutes of the court, and constitute part of the record of the cause. Rule 52. Note. — By sec. 806, R. S. D. C, and also by Rule 99, the motion for judgment on a special verdict must be heard in the general term in the first instance. 7. — Parties May Prepare Them. — By leave of the court a special verdict may be prepared by the parties, subject to the correction of the court, and it may include agreed facts in addition to those found by the jury. Munford v. Wardwell, 6 Wall., 423. 8. —Form and Sufficiency of.— A special verdict which does not find the facts, but only the evidence of them, is imperfect, and no judg- 23 178 PRACTICE AND PEOOEDXJEB OF THE ment can be entered thereon. ' A new trial must be awarded in such case. Prentice v. Zanes, 8 How., 270. 9. Verdict Subject to Opinion of Court, Form of. — When a verdict is taken subject to the opinion of the court it shall be entered as follows : "The jury, upon their oath, say they find in favor of the plaintiff, and that the money payable to him by the defendant is the sum of $ , [with interest from the — day of — , 18 — ,] besides costs ; if the court shall be of the opinion that he ought to recover against the defendant upon the facts submitted to us upon the trial, which facts were as follows : ' ' [state the facts found by the jury. ] ' ' But upon these facts, if it shall be the opinion of the court that the plaintiff ought not to recover against the defendant, then we find in favor of the defendant." Eule 53. ' Note. — By section 806, R. S. D. C, the motion for judgment on ver- dicts taken subject to the opinion of the court shall be heard in the first instance at a general term. CHAPTEB XXIX. NEW TRIALS.— BILLS OF EXCEPTIONS. 10 11 1. Grounds of motion for new trial. 2. To be stated in writing, and made within four days after verdict. 3. New trial for errors of law. 4. The motion, when upon bills of exceptions, where filed and heard. 5. May be heard before the bills of exceptions are prepared. For insufiicient evidence or excessive damages. Same subject — statutory pro- visions. Appeal. Bills of exceptions and case stated — statutory provisions. In what cases to be heard in general term in the first in- stance. Construction of the foregoing 6. statutory provisions. 12. These provisions being adopt- ed from the New York Code, are to be construed as there understood. 13. Miscellaneous decisions. 14. When motion for new trial to be deemed overruled. 15. Bill of exceptions and case ' may be combined. 16. No motion for new trial to suspend entry of judgment. 17. Exceptions, how taken. 18. Bill to be settled before close of term. 19. How settled. 20. If not settled, new trial to be granted. 21. The filing and settling to be noted on the minutes. 22. Rules respecting the prepara- tion of bills of exceptions. SUPREME COTTET, DISTRICT OP COLUMBIA. 179 1. Grounds of Motion for New Trial.— Motions for a new trial may be made to the justice who tried the cause on any of the following or similar allegations, viz : 1. That the party moving for the new trial had no notice, and did not appear at the trial. 2. Misbehavior of the succrasful party. 3. Misbehavior of the jury. 4. That the verdict is contrary to the evidence. 5. That the verdict is unreasonable or uncertain. 6. That the verdict was obtained by surprise. 7. That a new and material fact, unknown at the time of the trial, and not ascertainable by reasonable diligence by the party moving, has come to light since the trial ; and the like. But such motions are considered to be addressed to the dis- cretion of the trial justice and are not appealable. Eule 57. Note. — Since the decision of the Supreme Court of the United States in Moore v. Metropolitan R. R. (see section 11, this chapter), the last paragraph of the foregoing rule must be regarded as inop- erative. In that case it was held, that an order overruling a motion for a new trial is an order involving the merits of the action or pro- ceeding, and is, by section 772, R. S. D. C, made appealable. 2. To be Stated in Writing, and Made Within Four Days After Verdict.— Every motion for a new trial shall be in writing, and shall state in separate paragraphs, successively numbered, the specific grounds upon which it is based ; and it shall be entered on the minutes of the court on the day it is presented to the court. All motions for new trial must be made within four days after verdict. Eule 57. 3. New Trial for Errors of Law.— Motions for new trial may be grounded on errors of law in the rulings of the justice pre- siding at the trial. Eule 54. 4. The Motion, when upon Bills of Exceptions, where Piled and Heard.— The motion may be made upon the bills of ex- ceptions, in which case it must be filed in the circuit court, but shall be heard in the general term in the first instance. Id. 5. May be Heard before the Bill of Exceptions are Prepared- Appeal. — The justice who tried the cause may, in his discre- tion, before any bills of exceptions are prepared, entertain a motion to set asidethe verdict for errors of law founded on the ■exceptions reserved during the trial and noted on his minutes. 180 PRACTICE AND PEOCEDUEE OF THE An appeal may be taken from the decision of tlie justice on such motion, in which case a bill of exceptions must be settled in the usual manner. Id. 6. For InsttiBcient Evidence or Excessive Damages — Appeal.— The justice who tried the cause may also, in his discretion, enter- tain a motion to set aside the verdict because the evidence was insufficient in law to sustain it, or because the damages awarded by the jury were excessive, and an appeal may be taken from the decision of the justice upon such motion. But when such appeal is taken, a case shall be jDrepared and settled in the same manner as a bill of exceptions, which case shall contain a statement of all the evidence given at the trial. Eule 55. (See sec. 804, E. S. D. C.) 7. Same Subject — Statutory Provisions.— The justice who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages ; but such motion shall be made at the same term at which the trial was had. E. S. D. C, seci 804. Ifote.^-"The proper construction of section 804 embraces a motion for a new trial, on the ground that the verdict is against the weight of evidence, as being within the terms ' for insufficient evidence,' as used in that section." Metropolitan R. R. v. Moore, 121 U. S. "Section 804 by itself merely provides that the justice who tries the cause at special term may, in his discretion, entertain or refuse to entertain a motion to be made on his minutes to set aside a verdict and grant a new trial for the grounds therein mentioned. If he entertains the motion, and hears it, then by section 805 an appeal will lie to the general term from the decision. The form of that appeal is by means of a bill of exceptions or case, which shall be settled in the usual manner. Of course, if the ground of the motion for a new trial is for insufficient evidence, or for excessive damages, the bill of exceptions or case for the appeal must contain a statement of all the evidence offered and received on the trial, because it must bring to the general term all the material necessary to enable it to act upon the appeal precisely as the judge at special term acted upon the motion. If, however, the judge at special term exercises his discretion under section 804, by refusing to entertain the motion for a new trial to be made on his minutes, then the party moving for the new trial may, under section 806, predicate his motion on a case or bill of exceptions, containing, as in the former instance, all the evi- dence, and in that event the motion shall be heard in the first instance at a general term." Metropolitan R. R. v. Moore, 121 U. S. 8. Appeal. — When such motion is made and heard upon the STJPEEME COURT, DISTB.ICT OP COLUMBIA. 181 miimtes, an appeal to the general term may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner. E. S. D. C, sec. 805. 9. Bill of Exceptions and Case Stated— Statutory Provisions.— If upon the trial of a cause an exception be taken, it may be reduced to writing at the time, or it may be entered on the minutes of the justice, and afterwards settled in such manner as may be provided by the rules of the court, and then stated in writing in a case or bill of exceptions, with so much of the evidence as may be material to the questions to be raised, but such a case or bill of exceptions need not be signed or sealed. E. S. D. C, sec. 803. 10. In what Cases to be Heard in General Term in First Instance. — A motion for a new trial on a case or bill of excep- tions, and an application for judgment on a special verdict or a verdict taken subject to the opinion of the court, shall be heard in the first instance at a general term. E. S. D. C, sec. 806. 11. Construction of the Foregoing: Statutory Prorisions. — The fore- going sections of the Revised Statutes of the District have been re- cently considered by the Supreme Court of the United States in. the case of Metropolitan R, R. v. Moore, a case which went up on a writ of error from this court, upon the overruling of a motion for a new trial, on the ground that the verdict was against the weight of the evi- dence. This court in making that ruling, had followed its decision made a short time previously in the case of Stewart v. Elliott, 2 Mackey, 307, wherein it was held that on motions for a new trial the right of appeal from the special to the general term was given only in three cases : 1st, where the motion is based on exceptions taken during the progress of the trial ; 2nd, where the verdict has been rendered upon insufflcient evidence ; and 3rd, for excessive damages. It was also held that a verdict against the weight of evidence cannot be said to be a verdict upon insufficient evidence, as used in section 804, those being construed to mean evidence not sufficient in law to support the verdict. Hence it was held that a motion for a new trial because the verdict was against the weight of the evidence, is solely within the discretion of the trial justice, from whose ruling no appeal can be taken. But the Supreme Court, reversing the judgment and granting a new trial, held this construciaon of the statute erroneous. After quoting section 772, which is as follows : " Sec. 772. Any party aggrieved by any order, judgment, or decree, made or pronounced at any special term, may, if the same involve the merits of the action or proceeding, appeal therefrom to the gen- eral term of the supreme court, and, upon such appeal, the general 182 I.PEACTIOE AND PEOOEDURE OF THE term shall review such order, judgment, or decree, and affirm, re- verse, or modify the same as shall be jukt." The court said : " By that section, an appeal will lie from the spe- cial to the general term from any order, judgment, or decree, 'if the same involve the merits of the proceeding.' Certainly motions for a new trial upon grounds other than those recited in section 804, are included in this description. A motion may be made to set aside a verdict and grant a new trial on the ground that the verdict is against law, or against the instructions of the court, or for newly discovered evidence, or because the amount is less than it should have been, where the damages are ascertainable by some fixed rule of law, or for miscon- duct of the jury, or for fraud practiced by the successful party. None of these oases are specifically recited in section 804, * * * although they involve the merits of the action or proceeding as completely as any of those mentioned in section 804. ' ' After considering and com- paring the various sections the court proceeds, "the only consistent interpretation to be placed on the whole enactment, is that which se- cures the right of appeal, under section 772, from the special to the general term, in every case of an order, judgment, or decree, which involves the merits of the action or proceeding, and which is not other- wise specially provided for. The obj ect of sections 804 and 805 seems to be to provide for a special class of cases, in which discretion is given to the justice, at special term, to hear or refuse to hear motions for a new trial, providing in the first case, for an appeal in the usual man- ner, and in the latter case, when he refuses to hear the motion, leav- ing it to be heard under section 806, on a case or bill of exceptions, in the first instance, in the general term." Metropolitan R. R. v. Moore^ 121 U. S. 12.— These Provisions being Adopted from the New York Code, are to be Construed as there Understood. — "Instead of construing these new statutory provisions in the light of the jurisprudence of Mary- land previously prevailing in the District in reference to this subject, we think that when Congress reorganized the judicial system of the District, by abolishing the old courts and by establishing the present supreme court of the District, with its general and special terms, and adopted them from the legislation of New York in substantially the same language, these provisions are to be construed in the sense in which they were understood at the time in that system from which they were taken. In other words, we think that Congress adopted for this purpose the law of New York as it was understood in New York." Metropolitan R. R. v. Moore, 121 U. S. ; McDonald v. Hovey, 110 U. S., 619. 13. Mftscellaneous Decisions. — Where the justice who tries a cause entertains a motion on his minutes for a new trial, on the ground of insuflicient evidence and excessive damages, such motion must be decided before a case can be settled for an appeal to the general term. Sinclair v. R. R. Co., Mac A. & Mack., 13. A motion for a new trial, on the ground that the verdict is not sup- SUPREME COURT, DISTRICT OP COLUMBIA. 183 ported by sufficient evidence, is addressed to the discretion of the court, and the verdict will not be disturbed when it is based upon any considerable amount of testimony. A conflict in the evidence will not justify a new trial. Id. When, in the opinion of the court, the damages are clearly exces- sive, and where the right of the plaintiff to recover something is es- tablished by ample testimony, the court may properly require a re- mittance of the verdict to a fair and reasonable amount, or in default thereof grant a new trial. Id. The Revised Statutes District of Columbia, sections 804 and 805, have changed the rule of the common law, that the refusal of the court to set aside a verdict for excessive damages cannot be alleged for error in the appellate court. Under those sections, when such a motion is heard upon the minutes of the judge who tried the case, and denied, ' an appeal to the general term maybe taken upon a case to be settled by agreement of the parties. Pabst v. Railroad, 2 Mac A., 42 S. P. ; Converse v. Railroad, 2 Mac A., 504. 14. When Motion for New Trial to be Deemed Overruled. — All motions for new trials, addressed to the trial justice, not heard and decided at the term at which the same shall have been made, shall be deemed to have been overruled and shall be so entered on the proceedings of the last day of the term, unless the motion has been continued by special order of court. Eule 60. 15. Bill of Exceptions and Case may be Combined. — When rulings of the trial justice proper to be presented by a bill of exceptions and those proper to be presented by a case are both to be reviewed in the general term, the bill of exceptions and the case may be combined. Eule 56. Note. — ^It is irregular to bring a cause to the general term on a bill of exceptions, and a separate case embracing all the evidence, when there is an appeal from an order overruling a motion for a new trial on the ground of insufficient evidence or excessive damages. A case may then be made, and in order to obtain the ruling of the general term upon a question of law, the exceptions should be embodied in the case. O'Neal v. The District, Mac A. & Mack., 68 ; Stewart v. Elliot, 2 Mackey, 307, and see Doddridge v. Gaines, 1 Mac A., 335. Such a case is presented when the record contains the certificate of the justice who tried the case that it embodied all the evidence pro- duced on both sides at the trial. Stewart v. Elliott, 2 Mackey, 307, affirming Dant v. The District, 3 Mac A., 273 ; Maulsby v. Barker, 3 Mackey, 165 ; Doddridge v. Gaines, 1 Mac A., 335 ; Justh v, Holliday, 2 Mackey, 346. 16. No Motion for New Trial to Suspend Entry of Judgment.— Ko motion for a new trial oh a bill of exceptions, which is to 184 PRACTICE AND PEOCEDTTEE OF THE be heard in tlie first instance in the general term, shall suspend the entry of judgment, but execution may be superseded as in case of appeals, as provided in Rule No. 91. Eule 59. Note. — Where a party makes a motion for a new trial within four days after the rendition of the verdict, he is entitled to have his mo- tion passed upon by the court, and if in the meantime judgment has been entered, it remains subject to be set aside if a new trial be granted. So, too, with the motion in arrest of judgment, if made in proper time. The fact that no suspending undertaking or bond is given cannot affect the right to have those motions passed upon by the court. The giving of this suspending bond is not a condition precedent to the motion. The party takes only the risk of an execu- tion being issued and a levy and sale made in the meantime. But if the motion for a new trial and the motion in arrest of judgment have been heard, and pending those motions no levy has been made, then if the party appeal and give his appeal bond, all further pro- ceedings under the execution are stayed. Hetzel v. R. R., 3 Mackey, 338. 17. Exceptions, How Taken. — If a party desires to present for review in the general term the rulings or instructions of the presiding justice for alleged errors of law, he must at the trial and before verdict except to such rulings or instructions ; and he may at the time of taking exception, reduce the same to writ- ing in a formal bill of exceptions, or the justice may enter the exceptions upon his minutes and proceed with the trial, and afterwards settle the bill of exceptions. Eule 61. 18. Bill to be Settled before Close of Term— The bill of ex- ceptions must be settled before the close of the term, which may be prolonged by adjournment, in orier to prepare it. Eule 62. 19. How Settled. — Every bill of exceptions shall be drawn up by the counsel of the party tendering it and submitted to the counsel on the other side ; and where the bill of exceptions is not settled before the jury retires, the counsel tendering the bill of exceptions shall give notice in writing to the counsel on the other side of the time at which it is proposed that the bill of exceptions shall be settled, and shall also, at least three days, Sundays exclusive, before the time designated on such notice, submit to the counsel on the other side the bill of ex- ceptions so proposed to be settled ; and if they cannot agree it shall be settled by the justice who presided at the trial, and in that case the justice shall be attended by the counsel on both sides, as he may direct. Eule 63. SUPREME COURT, DISTRICT OP COLUMBIA. 185 20. If not Settled, New Trial to be Granted.— In case the judge is unable to settle tlie bill of exceptions, and counsel cannot settle it by agreement, a new trial shall be granted. Eule 64. 21. The Filing and Settling to be Noted on the Minutes. — In every case the fact of the settling and filing of the bill of ex- ceptions, and that it is made part of the record, shall be noted in the minutes of the court. Eule 65. 22. Knles Kespecting the Preparation of Bills of Exceptions. — Every bill of exceptions must be complete, either by setting out the facts upon which it is founded, or by referring to some other bill of excep- tions which distinctly enumerates them. Ootharin v. Davis, 4 Mac- key, 146. In the absence of sufficient words of connection each bill of exceptions will be considered as wholly distinct from every other. Oliver v. Cameron, Mac A. & Mack., 237. In the absence of all evidence from an exception, the court cannot determine whether the proposition therein contained was refused because the court below considered it incorrect in law ; or upon the ground that it was unsupported by evidence, and contains nothing but a prayer which was rejected, the appellate court must intend the court below acted properly in refusing the instruction. Id. Where a party complains of the admission of an incompetent wit- ness to testily, he must set out in the record what his testimony was, for if it was immaterial, or unfavorable to the other side, the ruling of the court below in permitting the witness to testify will not be ground for granting a new trial ; and a mere statement in the record that the evidence, without setting it out, was "in behalf of the prose- cution," is not sufficient to inform the court of the nature of the evi- dence. United States v. Neverson, 1 Mackey, 152. So where an offer of proof is made and rejected, the party complaining must set out in the record the facts which he proposed to prove, in order that the court may see whether he has been prejudiced by the rejection of his offer. Id, So, where the exception is to the admission or rejection of testi- mony, the exception must set out the ground of the obj ection. Camden V. Doremus, 3 How., 530 ; Woodbury v. The District, 5 Mackey, 127. Where bills of exceptions were taken in a case in which the court instructed the jury that, upon the whole evidence, their verdict should he for the defendant, and the bills, which were made part of each other, did not state in terms that they contained the whole of the evidence admitted at the trial, but did, however, contain a statement that "after the evidence had been given, as set forth in the foregoing bills, the plaintiffs rested their case," it was held that this was equiva- lent to a statement that the bills contained the whole of the evidence, and it would seem that even without this statement the court would have held that the bills contained the whole of the evidence given by 24 186 PRACTICE AND PEOCEDTJEE OF THE the plaintiff, because to have presumed the contrary would have been to presume that error had been committed. Merrick v. Giddings, 1 Mackey, 394. Even though the evidence for the plaintiff was insufficient to make out a prima fade case, this court will not sustain an exception to the refusal of the court below to so instruct the jury, if it appear that the defects of the plaintiff's case were afterwards supplied by the evidence offered by the defendant. Moore v. Railroad Co., 2 Mackey, 437. A general exception to the granting of prayers is irregular. The party objecting should except specially to the granting of each prayer. Id. So, too, with the charge. The unobjectional parts should be segregated from that which is obj actional, and the latter excepted to specially. Id. Langdon v. .Evans, 3 Mackey, 1. Where a bill of exceptions contains all the evidence offered in the court below, this court may treat it as a case stated. Maulsby v. Barker, 3 Mackey, 165. On exceptions for error in a part of the charge to the jury, the court will look at the whole charge, and if it see that in the very next paragraph an apparent error, is corrected, the exception will not be sustained. Carpenter v. R. R. Co., 3 Mackey, 225. In a case which may go to the Supreme Court of the United States on writ of error from this court, the general term will not consider ex- ceptions which by the rulings of that court must inevitably be held fatally defective. Strong v. District of Columbia, 1 Mackey, 265. CHAPTEE XXX. ARREST OF JUDGMENT. 3. Notes of decisions. 4. The Maryland Act of 1763. 1. Filing and hearing the mo- tion. 2. Must state reasons relied on. 1. The Filing and Hearing of the Motion.— A motion in ar- rest of judgment may be filed ^\'ithin four days after verdict. It may be filed at the same time with the motion for a new trial, and the two motions may be heard together. If the new trial be refused the judgment may be arrested, and if the motion in arrest be overruled judgment shall be entered on the verdict. Eule 66. 2. The Motion must state Reasons Relied on. — The motion in arrest shall be made in writing and signed by counsel, and StrPEEME COTJIIT, DISTEICT OP COLUMBIA. 187 shall state the reasons relied on In support of it, and be made of record on the minutes. Id. ■ B. Notes of Decisions. — A motion in arrest of judgment can only be maintained for a defect apparent on the record, and the evidence is no part of the record for that purpose. Bond v. Dustin, 112 U. S., 604. That no judgment shall be arrested for any defect or want of form, etc., see R. S. U. S., sec. 954, and see page 41 " Amendments." In Maryland the language of the statute (Code, art. 75, sec. 8,) is, "no judgment shall be arrested or set aside for any omission of mere mat- ter of form," and there it is accordingly held that the error or defect must be substantial. Gover v. Turner, 28 Md., 600 ; Looney v. Bai- ley, 43 Md., 10. The governing principle, in considering a motion in arrest of judgment is, that the verdict will be upheld by every fair in- tendment, and that the court, in the absence of proof furnished to the Contrary by the record, will assume that everything was proved which was necessary to be proved to justify the verdict. See Brent's executors v. Bank of Metropolis, 1 I'et., 92 ; Conrad v. Griffey, 11 How., 492 ; Stockton v. Bishop, 4 How., 155 ; Erskine v. Hornback, 14 Wall., 613. 4. The Maryland Act of 1763.— Judgment shall be given ac- cording as the very right of the cause and matter in law shall appear to the court, without regarding any omissions, errors, etc., so as sufficient matter shall appear in the proceedings upon which the court may give judgment, and that the action was commenced after the cause had accrued. Md. Act, 1763, ch. 23, sec. 2. Note. — Judgment not to be arrested or reversed by reason of a juror Who tried the cause having a matter of fact for trial at the court. See Act of Md., 1776, ch. 21, sec. 2. 188 PEACTICE AND PEOCEDTJEE OF THE CHAPTER XXXI. JUDGMENT. 1. All judgments are as of the supreme court. 2. When judgment is for plaintiff or defendant — Rule 68. 3. Judgment to be awarded with- out distinction of debt from damages. 4. No supersedeas or stay of ex- ecution on final judgments. 5. Judgment by default, where defendant fails to appear and plead — How set aside. 6. In suits on verified open ac- counts, no inquiry of dam- ages. 7. The afiadavit in such cases. 8. Judgment by default in at- tachment where goods, etc., in hands of third person have been seized, 9. Where credits have been at- tached. 10. In proceedings in rem against. absent defendant. 11. In actions ex contractu — Sev- enty-third Rule. 12. Of the plaintiff's affidavit un- der the Seventy-third Rule. 13. Of the defendant's afadavit. 14. Where declaration contains but one cause of action, and part of the sum claimed is ad- mitted to be due. 15. Where declaration contains several causes of action. 16. By whom the affidavit may be made. 17. Of the jurat. 18. Default may be had against such of several defendants as fail to appear in actions ex- contractu. 19. Unliquidated damages, in what cases court may award in- quiry. 20. How inquiry to be executed. 21. Manner of executing inquiry under Maryland Act. 22. Judgment by default on bonds, etc., to be for sum due in equity. 23. Default in replevin, how taken. 24. — In ejectment. 25. Judgment on verdict in case of set-off. 26. In actions for the penalty of a bond — provisions of Mary- land Act of 1785. 27. When judgment shall be with- out costs. Rule 79. 28. To what cases Rule Seventy- nine applies. 29. Judgment against administra- tors or executors. 30. How rendered on auditor's re- port of assets. 31. Provisions of the Maryland Act upon which the forego- ing rule is founded. 32. Judgment on an award. 33. Interest on judgments. 34. Setting off judgments. 35. Judgment against partners. 36. Judgment for rent with tacit lien of landlord, how en- forced. 37. — Against married women. 38. — Against constables failing to pay over money collected. 39. — Against revenue ofllcers. SUPREME COTJKT, DISTEICT OE COLUMBIA. 189 40. Judgment for costs, what to include. 41. Judgment in case of death of parties. 42. Powers of attorney to confess judgments forbidden. 43. Notes of decisions. 44. The lien of the judgment. Entering judgment "satis- fled." When judgment is satisfied by surety, assignment of. 45, 46, VACATING JUDGMENT. 47. The motion to Vacate. 48. — ^How made and served. 49. In what cases affidavits are necessary. 50. Counter affidavits. 51. Vacating during the term. 52. — After term has expired. 53. Appeal from the order, when it lies and when not. 54. Notes of decisions. 55. Reinstating cause. _ ^ ^ ^ 1. All Judgments are as of the Supreme Court.- The judgments, decrees, sentences, orders, proceedings, and acts of the general terms, special terms, circuits courts, dis- trict courts, and criminal courts rendered, made, or had, are and shall be deemed judgments, decrees, sentences, orders, proceedings, and acts of the supreme court. * * * E. S. D. C, sec. 753. 2. When Judgment is for Plaintiff or Defendant — Rule 68. Judgment is for the plaintiff — 1. On default of appearance by the defendant. 2. On defendant's confession as by saying nothing, or by confession of errors. Or it is for the defendant — 1. That the plaintiff be non-suited. Or for either party — 1. On demurrer. 2. On issue of " ;N^o such record." 3. On verdict, or — 4. On case agreed. 3. Judgment to he Awarded without Distinction of Debt from Damages. — Whatever the cause of action may be, if the judgment be for the recovery of money, it shall be awarded generally without any distinction of debt from damages — thus : "It is considered that the plaintiff recover against the defend- ant $ , [with interest as aforesaid] being the money payable by him to the plaintiff by reason of the premises, and $ for his costs of suit, and that he have execution thereof. Eule 67. Ifote. — A judgment rendered by the supreme court of the District of Columbia is conclusive on the defendant in an action on it in a 190 PRACTICE AND PROCEDURE OE THE State court, except for causes for which it would be set aside by this court. Embrey v. Palmer, 107 U. S., 3. The judgment of the special term in cases of appeal from justices of the peace is final. Luch v. Jones, 1 Mac A., 345. And it has the same effect in cases arising under the Landlord and Tenant Act, as in other cases. Id. 4. No Supersedeas or Stay of •Execution in Final Judg- ments. — There shall be no supersedeas or stay of execution of the judgments of the supreme court of the Bistrict, otherwise than by injunction, or upon proceedings in error to the Supreme Court of the United States. E. S. D. C, sec. 850. 5. Judgment by Default, where Defendant Fails to Appear— How Set Aside. — If the defendant, served with copies of the declaration, notice to plead, and summons, fail to appear and plead, according to said notice, a judgment by default for non- appearance may be entered against him at the appearance term by the circuit court, or at special term, which judgment may be set aside during said appearance term, or within the first four days of the next trial term, ujpon the defendant's offering a plea, verified by his affidavit, setting up a defence considered by the justice sufficient, if proved, to bar the action in whole or in part. Eule 69. Note. — Where judgment is rendered by default for want of a plea, the motion to strike it out may be granted under this [6&th] Rule. Meloy V. Grant, 4 Mackey, 486. An order vacating a judgment by default under this rule is not appealable. Id. But it is otherwise' when the court is without j'urisdiction to make such an order, Phillips V. N'egley, 117 U. S., 665. 6. In Suits on Verified Open Accounts— No Inquiry of Damages where Suit goes by Default. — Where a suit is brought upon an open account, verified by the plaintiff's or his agent's affidavit, that the amount claimed by the plaintiff is justly payable by the defendant to the plaintiff, and the defendant fails to de- fend the suit, the plaintiff may have judgment final by default for the amount, with interest from the day specified in the declaration, without an inquiry at damages. E. S. D. C, sec. 825. 7. The Affidavit in .such Cases. — If the affidavit of the plain- tiff or his agent be made before an officer, of whose authority to administer oaths the court cannot take notice, his authority must be verified by the certificate under official seal, if he have one, of the officer having authority to give suxsh certifi- cate. Id., sec. 826. SUPREME COUKT, DISTEICT OF COLUMBIA. 191 Note. — Courts of the United States take judicial notice of the seals of notaries public. Pierce v. Indseth, 106 U. S., 546. See section 37, p. 171, ante. 8. Judgment by Default on Attachment where Goods, etc., in Hands of Third Person have been Seized.— If the summons ac- companying the attachment has been returned "not to be found," and an order for the defendant's appearance has been made and published, and the return upon the attachment is that the defendant's lands or his goods and chattels in the possession of a third person have been seized, and no cause be shown to the contrary, the judgment shall be simply a condem- nation of the property attached and an award of execution. Eule 70. 9. Where Credits have been Attached. — If the return upon the attachment be that a credit of the defendant has been attached in the hands of a designated person, and that he has been warned to appear as the writ commands, if he fail to appear there may be judgment of condemnation of the credit, and an award of an inquisition to ascertain the amount of it. Eule 71. 10. In Proceeding in Rem against Absent Defendant. — If in proceedings against any real or personal j)roperty of the de- fendant, within the jurisdiction of the court, the summons has been returned " not to be found," and a day has been fixed by order of the court for the defendant's appearance, and duly published, a judgment by default for non-appearance may be entered against the defendant as in case of failure to appear after personal service of the summons. (14 Sts., 403, sees. 7 and 8.) Eule 72. Note. — When one of two joint promissors flies a plea in abatement and the other suffers a default, the court will refuse judgment against the latter on the default, if the plea show that there can be no pro- ceeding against him. Earl v. Raymond, 4 McLean, 233. A judg- ment by default against an executor is an admission of assets to the extent charged against him. Dickson v. Wilkinson, 3 How., 57. 11. In Actions ex Contractu.— In any action arising ex con- tractu, if the plaintiff or his agent shall have filed, at the time of bringing his action, an affidavit setting out distinctly his cause of action, and the sum he claims to be due, exclusive of all set-offs and just grounds of defence, and shall have served the defendant with copies of his declaration and of said affi- davit, he shall be entitled to a judgment for the amount so 192 PEACTICE AND PEOOEDXJKE OP THE claimed, with interests and costs, unless the defendant shall file, along with his plea, if in bar, an affidavit of defence deny- ing the right of the plaintiff, as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defence, which must be such as would, if true, be sufficient to defeat the plaintiff's claim in whole or in part. And where the defendant shall have acknowledged in his affidavit of defence his liability for a part of the plaintiff's claim as aforesaid, the plaintiff, if he so elect, may have judgment entered in his favor for the amount so confessed to be due. The provisions of this rule shall not apply to defendants who are representatives of decedent's estate, except when the affidavit filed with the declaration sets forth that the contract sued on was directly with such representative, or that a pro- mise to pay was made by him. When the defendant is a corporation the affidavit of defence may be made by an officer, agent, or attorney of such corpora- tion. Eule 73. (See Eule 121.) 12. Of the Plaintiff's Affldayit under 73d Rule.— This rule is not unconstitutional. Bank v. Hitz, Mac A. & Mack., 198. The affidavit of plaintiff's cause of action, though inartificially drawn, if in sub- stantial compliance with the rule, will be sustained. Kennedy v. Barker, Mac A. & Mack., 340. In an action against an endorser of a promissory note, plaintiff's affidavit, in order to entitle him to judg- ment under this rule, must set out a statement of the facts necessary to show defendant's liability as endorser, such as, that payment had been demanded of the maker, and that notice thereof had been given to the defendant. Bond v. Shepherd, 3 Mac A., 367. So in an action on a promissory note brought by the cashier of a bank in his own name, the court will reflise judgment on a motion under this rule where plaintiff's affidavit, though showing title in the bank, does not contain any allegation to show that plaintiff after- wards became, holder of the note. James v. Davis, 3 Mackey, 158. Where the maker and endorser of promissory notes are sued upon, a declaration containing the money counts only (the notes being an- nexed), and a discontinuance is entered as to the endorser, the affi- davit filed at the time of bringing the suit applies to the declaration so amended, and unless the pleas are verified, the plaintiff is entitled to judgment under this rule. Kennedy v. Barker, Mac A. & Mack., 340. But such amendment, it seems, must be only formal, and not in matter of substance, as if it introduce new and material allegations. Id. It was claimed also in the foregoing case, that the affidavit did not set forth in terms the sum claimed by plaintiff to be due exclu- sive of all set-offs and just grounds of defence, but the court held SUPREME COURT, DISTRICT OP COLUMBIA. 193 tliat there Was a substantial averment to this effect, and gave judg- ment. Id. For forms of plaintiff's affidavits held to be sufficient, see Connick v. Morrison, 4 Mackey, 497 ; Ford v. Cornish, 2 Mac A., 57. 13. Of the Defendant's Affidavit. — The defendant is not required to set out in his affidavit his defence in all its details. It is enough that the grounds or foundation of the defence are so sufficiently shown as to impress the court with the fact, that if the allegations are true the party has a defence, and where the affidavit refers to the facts set forth in tlie plea, and makes oath to the same, it is a sufficient com- Jiliance with the Rule. Bank v. Hitz, Mac A. & Mack., 198. Butwhere the affidavit is but a vague and general denial, it is insufficient. Ford V. Cornish, 2 Mac A. , 57. So, where it amounts to no more than a change in terms of the plea [the general issue], and does not state any specific defence, or give any specific warning to the plaintiff of what the de- fendant means to rely upon for the purpose of defeating the claim, it will be insufficient. Connick v. Morrison, 4 Mackey, 497. In the fore- going case, the defendant pleaded, 1st. That he never was indebted as alleged ; 2. That he did not promise as alleged ; 3d. That before this action was commenced he, by payment, discharged the plaintiff's claim. To these pleas was annexed the following affidavit : "I, Rob- ert Morrison, on oath, say that the foregoing pleas are correct and true, and I deny the plaintiffs' right to recover from me the amount claimed in their declaration, or any otheY suni of money from me ; that while the plaintiffs were said to have an existence as a firm, I had dealings with them down to January 19, 1883, and purchased cloth- ing from them at different times, and have paid them in full all that 1 ever promised, or that I owe them." Thie affidavit was held insuf- flcient. 14. Where DeclaratioH Contains but one Cause of Action, and Part of the Sum Claimed is Admitted to he Due.— Where but one cause of action is sued upon, if the plaintiff elect to take judgment for the amount admitted to be due, that must end the controversy. Kennedy V. Pool, Wash. Law Rep., vol. 5, No. 18. 15. Where Declaration Contains . Several Causes of Action.— In the above cited case the court refused to decide what would be the course of proceeding where the complaint or declaration consists of several distinct causes of action joined in the same suit, and Where the defend- ant admits in his answer one or more of his causes of action, and answers in respect to othei«. And since then there is no reported case in which the court has undertaken to decide that question. 16. By Whom the Affidavit may be Made.— The affidavit under this rule may be made by an agent or attorney, and when so made, may be Upon information and belief. Bank v. Hitz, Mac A. & Mack., 198. 17. Of the Jurat.— A notary public in Maryland, is an officer prop- erly qualified to administer an oath to an affidavit required under this rule. Denmead v. Mack, 2 Mac A., 475. And it seems, from the opinion of the court in the same case, that where in any State the law makes the certificate of a notary under his seal sufficient 25 194 PEACTICE AND PEOCEDUEE OF THE evidence of his having administered an oath in his official character, this court will also take notice that the aflBdavit was sworn to before a properly qualified officer. And see sec. 826, R. S. D. C, supra. See also Williams v. Ten Eyck, 5 Mackey, 168 ; Pierce v. Indseth, 106 U. S., 546, and Judicial Notice, p. 171. 18. Default may be had against snch of Several Defendants as Pail to Appear in Actions ex Contractu.— If there are several defendants in an action ex contractu, judgment by default may be taken against such of them as fail to appear, and the plain- tiff may proceed to trial and judgment against the others. Eule 74. 19. Unliquidated Damages, in what Cases Court may Award Inquiry. — If the cause of action be an unliquidated sum of money claimed upon a contract, or for a wrong unconnected with contract, the court shall award an inquiry by the jury in attendance of the amount claimed in the following cases : 1. If the defendant fail to plead to the declaration ; that is, makes default. 2. If he acknowledge the plaintiff's demand to be just ; that is, confesses judgment. 3. "When his attorney declares that he has no instructions to say anything in answer to the plaintiff, or in defence of his client. 4. When a demurrer to the plaintiff's declaration is over-, ruled, unless there be leave to plead over. Eule 75. 20. How Inquiry to be Executed. — In executing such inquiry in the presence of the court, the jury need not draw up and sign and seal an inquisition, but shall merely ascertain the amount payable by the defendant to the plaintiff for the cause of action stated in the declaration ; and their verdict shall be announced and made of record on the minutes of the court in the same way as upon an issue joined. Id. 21. Manner of Executing Inquiry under Maryland Act.— In all cases when an interlocutory judgment is entered in the general court, or in any of the county courts, whereby the right of the plaintiff is established, but the damages sustained by him cannot be ascertained without the intervention of a jury, the court where such judgment is given may and shall, on the motion of the plaintiff, or of his attorney make an order, in the nature of a writ of inquiry, to charge the jury attend- ing at the same, or at the next term, to inquire of the damages and costs sustained by the plaintiff in such actionj which said STTPREJIE COURT, DISTRICT OF COLUMBIA. 195 inquiry shall be made, and the evidence given in open court, in the same manner and under the same regulations, as in other jury trials ; and after the said juj-y charged as aforesaid, shall have considered thereof, they shall forthwith return th^ir inquisition, under their hands and' seals, and thereupon the said court may and shall proceed to judgment, as upon inquisi- tions of that kind returned by the sheriff. Act of 1794, ch. 46. Note. — Upon executing a writ of inquiry upon a judgment by de- fault, the jury must find at least one mill in damages. Frazier v. Lomax, 1 Cr. C. C, 328. For form of inquisition, see 2 Evan's Harris, 321. 22. Judgment by Default on Bonds, etc., to be for Sum due in • Equity. — In all suits brought to recover the forfeiture annexed to any articles of agreement, covenant, bond, or other specialty, where the forfeiture, or non-performance appears by Ihe de- fault or confession of the defendant, or upon demurrer, the court shall render judgment for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, it shall, if either of the parties request it, be assessed by a jury. E, S. U. S., sec. 961. Note. — This section is confined to cases of default, confession and demurrer. Farrer v. U. S., 5 Peters, 373. And does not apply to cases heard on agreed facts. Ives v. Bank, 12 How., 159. 23. Default in Replevin, How Taken.— Judgment by default against a defendant in replevin may be entered, by publica- tion of a notice that an order has been made fixing a day for his appearance, upon his failure to appear pursuant to the notice. Eule 76. (14 Sts., 495, sec. 14.) 24. — In Ejectment.— A judgment by default may be taken against a defendant in ejectment in the manner prescribed in Eule 69, in relation to judgments by default generally. Eule 77. Note. — Where there is an evident omission in the general descrip- tion of the property .claimed in a declaration in ejectment, but which description is immediately followed by a correct and particular des- cription, it is no misprision of the clerk to follow the latter descrip- tion on entering the judgment. Anderson v. Tinney, 5 Mackey, 335, It is enough if the description in ejectment sufficiently identify the property to enable the judgment to be rendered for it. Id. A judg- ment in ejectment is not vitiated because it contains no direction as to the count for mesne profits claimed in the declaration. Id. 25. Judgment on Verdict in case of Set-oif. — Upon the trial 196 PEACTICB AND PROCEDURE OF THE of an issue upon the plea of set-off, judgment shall be for the balance found due, whether to the plaintiff or defendant, with costs. Eule 78. Siote. — The foregoing rule ia verbatim section 812, R. S. D. 0. 2C. In Actions for the Penalty of a Bond, etc.— Provision of Maryland Act of 1785. — In actions for the penalty of abond, etc., the jury may, under the direction of the court, on the plea of payment or iDcrformance, find by verdict what money is due to the plaintiff, whereupon judgnnent shall l>e entered for the penalty, to be released on payment of the sum due, and interest and costs of suit. See Md. Act, 1785, ch. 80, sec. 13. 27. When Judgment shall be without Costs. — ^If the declara- tion state a cause of action of whicli the court has jurisdiction, but the verdict find the money payable by the defendant to the plaintiff to be less than the lowest sum of which the court has jurisdiction, the plaintiff shall have judgment for the amount found due to him from the defendant, but without costs. Eule 79. This rule is also verbatim see. 8-28, R, S. D, C. Note. — See the Maryland cases cited below, where it is held that the test of jurisdiction in case of tort is the damages laid or claimed, but in cases of contract the sum recovered, and not the matter put in demand. Beale v. Black, 1 Gill, 203 ; O'Reilly v. Murdock, Id., 32 ; Carter v. Tuck, 3 Gill, 251 ; Ott v. Dill, 7 Md., 251 ; Blumline v. Co- hen, 8 Md., 147. 28. To What Cases Rule Seventy -nine Applies.— The organic act gives to the supreme court of the District of Columbia general juris- diction in law and equity. Section 769, R. S. D. C, provides that, " The justices of the supreme court shall not hold original plea of any debt or damage in cases within the jurisdiction given to justices of the peace, which shall not exceed fifty dollars, exclusive of costs." Section 997 gives to j ustices of the peace j urisdiction in all civil causes, where the amount claimed to be due for debt or damages arising out of contracts, express or implied, or damages for wrongs or injuries to persons or property, does not exceed one hundred dollars, except in cases involving the title to real estate, actions to recover damages for assault, or assault and battery, or for malicious prosecution, or ac- tions against justices of the peace or other officers for misconduct in office, or in actions for slander, verbal or written. It follows, there- fore that in these excepted cases the original jurisdiction of the sve- preme court is not limited by the amount in controversy, and conse- quently though the amount recovered be less than fifty dollars, the statute of Gloucester applies, and one cent damages carries full costs. See Forrest v. Hanson, 1 Or. 0. 0., 63. ThH-e is no reported decision of this court determining the mean- SUPBEME COURT, DISTRICT OF COLUMBIA. 197 ing of the words, "in cases involving the title to real estate," as they are used in section 997, R. S. D. C, although the exact meaning of those words becomes an important consideration in settling the ques- tion of costs in certain actions, when the recovery is less than fifty dollars. Thus, if justices of the peace have no jurisdiction to try an action of trespass g. c./., because it necessarily involves the question of title to real estate (though the title need be but a possessory one) , then this court has exclusive jurisdiction in such actions, and a recovery of less than fifty dollars, would carry full osts. The language of the New York Code, making a similar exception from the jurisdiction of justices of the peace is, ''where the title to real estate shall come in question," and the courts of that State have held that under their statute, an issue on a license to do an act on real estate which would otherwise be a trespass, does not present for trial a claim of title to real property. Lannitz V. Barnum, 4 Saund,, 637; Utter v. Gifford, 25 How., 289. The following decisions upon this point may be of interest in examining this question: To set up a license to do an act on real estate is a very different thing from a claim of title, 18 Wend., 569 ; O'Reilly v. Davies, 4 Saund., 722. The question of title to land is, in all cases, a question of ownership, and such a question does not arise in an action to re- cover damages for the breach of an agreement to convey lands, when the only issue made by the pleadings, is whether an inchoate right of dower in the wife of defendant was a subsisting incumbrance. Smith V. Riggs, 2 Duer, 622. In an action for cutting and carrying away firewood, defendants pleaded that they owned the lands from which they took said wood as they lawfully might — held that this involved a question of title to lands. Smith v. Mitten, 13 How., 325. In an action for damages for the bite of a dog, an allegation that plaintiff was injured in a place which he had no right to be, does not put in issue a claim of title. Pierret v. MoUer, 3 E. D. Smith, 574 ; and see Id., 367. The question of right of way is not a question of title. Lit- tle V. Dean, 34 N. Y., 452 ; but see contra, 2 Caines, 220. Nor does a question of encroachment involve the title. Fleet v. Youngs, 7 Wend. , 291. See, however, Hinds v. Page, 6 Abb,, N. S., 58. Nor the intro- duction of a deed as evidence, not of title to land, but to establish some other fact, Nichols v. Bain, 27 How., 286, In Jackson v. Randall, 11 Johns., 405, an action for mesne profits, after the trial of an ejectment suit, it was held that the title did not necessarily come in question. See Brown v. Scofield, 8 Barb., 339. Trespass on land, plaintiff being in possession, does not bring in question the title. Brown v. Majors, ' 7 Wend., 495 ; Drinkle v. Farley, 1 How., 180. A claim of possession is not a claim of 'title to land. MuUer v. Bayard, 15 Abb., 449. And the English courts have held that where a party is charged with a liability arising out of his being owner of land, and he disclaims be- ing the owner of that land, this raises a question of title. Regina v. Hardin, 22 Law Jour. Rep., N. S. Q. B., 299 ; 18 Eng. Law and Eq. R., 403. Whether any distinction is to be made between a statute deny- ing jurisdiction over cases, "where the title, etc., shall come in ques- 198 PEACTICE AND PROCEDURE OP THE Hon," and a statute which denies jurisdiction over cases " involving the title," has not been determined. 29. Judgment against Administrators or Executors.— If the suit be against an administrator or executor, for debt or damages, and the real debt or damages shall be ascertained by the jury, their verdict shall be entered in the minutes of the court; and the case shall be referred to an auditor to ascertain the sum for which judgment shall be given. Eule 49. 30. How Rendered on Auditor's Report of Assets.— In an ac- tion against an administrator or executor, if, on reference to the auditor to ascertain the sum for which judgment shall be given, he report the assets in the hands of the defendant to be less than the real debt or damages found by the jury, the judg- ment shall be that the plaintiff recover against the defendant the amount found by the auditor, and then it shall go on to say : "And it is further considered that the plaintiff is entitled to such further sum as the court shall hereafter assess on dis- covery of further assets in the defendant's hands." At any time afterwards, when applied to by the plaintiff, upon a three days' notice to the defendant or his attorney, the court may assess (by reference to the auditor) and give judg- ment for such further proportionable sum as the plaintiff shall appear entitled to, regard being had to the amount of the debt and other claims. And on any judgment so rendered an execution may issue against the defendant, and either his own goods or the goods of the deceased may be thereon taken and sold. Eule 80. Mary- land Act of November, 1798, ch. 101, sub-chapter 8, sec. 9. 31. Provisions of the Maryland Act upon which the Foregoing Rule is Founded. — If the verdict of the jury on the issue joined be against the executor or administrator, or if he shall be willing to confess judgment, and the debt or damages which the deceased (if he or she were alive) ought to pay, be ascer- tained by verdict, or confession or otherwise, the court, before , whom the action was brought, shall thereupon assess the sum which the executor or administrator ought to pay, regard being had to the amount of assets in his hands, and the debts due to other persons ; and if it shall appear to the said court that there are assets to discharge all just claims against the deceased, the judgment shall be for the whole debt or damages found by the jury, or confessed, or otherwise ascertained, and costs ; and if it shall appeaj: to the court that there are not assets to dis^ SUPEEME COXJET, DISTRICT OP COLUMBIA. 199 charge all sucli jiist claims, the judgment shall be for such sum only as bears a just proportion to the amount of the debt, or damages and costs, regard being had to the amount of all the just claims, and of the assets ; that is to say, as the amount of all the said claims shall be to the assets, so shall the amount of the said debt, or damages and costs be to the sum required, for which judgment is to be given. Maryland Act, 1798, ch. 101, sub-ch. 8, sec. 8. And in no case shall the court proceed to assess as aforesaid, and to pass such judgment against an executor or administra- tor, until the time limited by law, or by the orphan's court, for the executor or administrator to pass his account shall have expired, Provided, That the said executor or administrator shall make oath (or affirmation, as the case may require) that he hath not assets to discharge all such just claims ; and the account settled by the orphan's court, in which the debt or damages sued for ought to be stated, shall be evidence to show the amount of assets and claims ; and the court before whom the suit is brought against the executor or administrator for the recovery of a debt or damages, shall have power, when the real debt or damages are ascertained, to refer the matter to an auditor, to ascertain the sum for which judgment shall be given ; and in case the judgment shall be for a sum inferior to the real debt or damage and costs, it shall go and say, " that the plain- tiff be entitled to such further sum as the court shall hereafter assess on discovery of further assets in the hands of the defend- ant ;" and the court, at any time afterwards, when applied to by the plaintiff, on three days' notice to the defendant or his attorney, may assess and give judgment for such further pro- portionable sum as the plaintiif shall appear entitled to, regard being Tiad as aforesaid to the amount of the debt, and other claims ; and on any judgment passed as aforesaid, Si fieri facias may issue against the defendant, and either his own goods, or the goods of the deceased, may be thereon taken and sold ; and it shall be the duty of the executor or administrator to dis- charge said judgment, or put it on a footing with other just claims, and on failure his administration bond may be put in suit by the plaintiff. Id., sec. 9. 32. Judgment on an Award.— Whenever an award has been returned by the arbitrator and approved by the court in the manner directed by Eule 53, judgment shall be entered there- on. Eule 81. 200 PRACTICE AND PEOCEDUEE OF THE 33. Interest on Judgments.— Upon all judgments rendered on the common law side of the court in actions founded on contracts, interest at the rate of six per centum per annum shall be awarded on the principal sum due until the judgment shall be satisfied, and the amount which is to bear interest and the time from which it is to be paid shall be ascertained from the verdict of the jury sworn in the cause. E. S. D. C, sec. 829. The rate of interest upon judgments or decrees * * shall continue to be six dollars upon one hundred dollars for one year. E. S. D. C, sec. 713. Note. — Applies to judgments in tort. See Hellen v. E. R. Co., 4 Mackey, 519. 34. Setting oif Judgments. — Mutual judgments recovered in the court may be set off against each other, on motion of either party ; and the court shall award execution for the balance found due against the party chargeable therewith. E. S. D. C, sec. 813. 35. Judgements ageainst Partners. — As to the enforcement and effect of judgments against assets of a limited partnership, see R. S. D. 0., sec. 505. As to judgments against general and special partners, see sections 514 and 516, Id. 36. Judg-ments for Kent. — With tacit lien of landlord, how en- forced. R. S. D. C, sec. 679. 37. Against Married Women. — In actions against married women touching her separate property, "judgment may be enforced against her sole and separate estate in the same manner as if she were un- married;" See R. S. D. C, sec. 738. 88. Against Constables Failing to Pay over Money Col- lected. — Where a constable shall have received money, on any judgment or execution, not exceeding twenty dollars, and shall fail to pay the same to the plaintiff, or his agent, when demanded, or shall fail to return any execution within the time limited for such return, it shall be lawful for the supreme court of tlie District, on motion, five days' previous notice being given to the constable, to enter up judgment, instanter, against him for the amount so -received, with interests and costs. E. S. D. C, sec. 1039. 39. Against Rerenue Officers. — When judgments shall be granted at return term, in suits by United States against revenue ofl&cers, or others accountable for public money. R, S. U. S., sec. 957. In suits arising under postal laws, sec. 958, Id. In suits upon debentures, etc^ sec. 959> In suits to recover duties, sec 960. SUPKEME COURT, DISTEICT OF COI^tTMBIA. 201 40. Judgment for Costs, What to Include. — The bill of fees of the clerk, marshal, and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trials in cases where by law costs are recoverable in favor of the prevailing party, ■ shall be taxed by a judge or a clerk of the court, and be in- cluded in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause. E. S. U. S., sec. 983. 41. Judgment in case of Death of Parties.— On the appear- ance of the administrator, etc., in actions that would have abated by the death of either party, the same judgment shall be given as if the action had commenced against, or been commenced by, the person so appearing. See Md. Act of 1785, ch. 80, sec. 1. See Rule 118. 42. Powers of Attorney to Confess Judgments Forbidden.— No attorney or other person shall confess judgment in court by virtue of any power of attorney, nor shall any court give judg- ment by virtue of such power. See Md. Act, 1747, ch. 23, sec. 2. 43. Notes of Decisions. — When the action Is brought for a sum cer- tain, or which may be made certain by computation — e. g., on a bill of exchange— judgment for the damages may be entered up by the court without a writ of inquiry. Renner v. Marshall, 1 Wheat., 215 ; 2 Saund., 107 ; 5 Durn. &East., 87 ; 1 H. Bl., 352 ; 1 Dall., 185. A judg- ment, if improperly entered, may be reformed by the general term so as to be according to precedents, without sending the case back for a new trial. Tierney v. Corbett, 2 Mackey, 264. For form of judg- ment in detinue, see Tierney v. Corbett, 2 Mackey, 264. 44. The Lien of the Judgment.— There is no statute in force in this District providing for the lien of a judgment upon land. ' Tayloe v. Thompson, 5 Pet., 367. But "ancient, well-established and uniform usage, has established it as a rule of property [in Maryland and this District] that judgments are a lien per se on the lands of the defend- ant from the date of their rendition." Id. The lien of a judgment upon real estate is not lost because after a fieri facias has been levied and returned, the plaintiff in the action ordered proceedings to be stayed. Otherwise, however, if per- sonal property be levied upon and left in the hands of the defendant. Green v. Allen, 2 Wash., 280. A judgment binds lands subsequently acquired. Jackson v. Bank U. S., 5 Or. 0. 0., 1. Judgments are not a lien on real estate in this District which be- fore the judgment was rendered was conveyed to trustees to pay debts of grantor. Morsell v. First Nat Banl^ 91 U. S., 357. 26 202 PEACTICE AND PEOCEDUEE OF THE 45. Entering' Judgment "Satisfied." — The clerk of the court may enter any judgment satisfied upon the order of plaintiff's attorney. Erwin v. Blake, 8 Pet., 18 ; Bank v. Geary, 5 Pet., 113. Or upon the order of the plaintiff, though it be against the wishes of the attorney. Lemont v. R. R., 2 Mackey, 502. Although employed upon a contin- gent compensation. In re Paschal, 10 Wall., 483. Where the clerk is directed to enter the judgment "satisfied upon payment of costs by the defendant," he has no power to make an absolute entry, and the court, upon proper application, will correct the error. Waters v. Engle, 53 Md., 181. 46. When Judgment is Satisfied by Surety, Assignment of. — Where any person or persons hath recovered, or shall recover, any judgment against the principal debtor and surety, and such judgment hath been or shall be satisfied by sureties, that the creditor shall be obliged to assign such judgment to the surety satisfying the same, and that the assignee shall be entitled unto and have in his own name, as assignee, the same execution against the principal debtor, by virtue of such assigment and this act, as the creditor might or ought to have had, the said assignment being first recorded in the same court wherein the judgment shall have been rendered or obtained; and that where any judgment hath been or shall be rendered against several sureties, and one of them hath satisfied or shall satisfy the whole, the plaintiff or creditors shall be obliged to assign such judgment to the surety satisfying the same, and that the assignee shall have and be entitled to an execution against the other sureties against whom judgment hath been or shall be obtained by the principal creditor, for a proportionable part of the debt or damage paid by such assignee, any law, usage or custom, to the contrary notwithstanding ; provided always, that no defendant or defendants shall be precluded or debarred of his or their remedy against the plaintiff by audita querela, or other equitable course or proceeding whatsoever, anything in this act to the contrary notwithstanding. Md. Act, 1763, eh. 28, sec. 8. Note.— This statute is in force in this District. Herr v. Barber, 2 Mackey, 545. But it applies only to cases where payment is made by a surety and on judgments, not decrees. Id. And if the payment is made by the surety to assignee of the judgment, such assignee has no authority to make a further assignment to the surety ; since the act only contemplates payment by the surety to the original creditor and an assignment by him. Crager v. Breugle, 5 H. & J., 234. VACATING JUDGMENT. 47. The Motion to Vacate. — ^This motion will not be enter- SUPREME CIOUET, niSTKlCT OP COLUMBIA. 203 tained if made al'ter the dcl'cndant luis taken any ficsli step after kuo\vl(Hl^'e of the in'ef;idarity, or surprises, or fraud, or decent coniplaiued of; nor can it be made after execntiou exe- cuteil, unless tlie defcMidant had no notice of the judgment. llulo 88. 48. — How Made and Sewed. — Th(^ motion must be made in Writing, and the grounds upon which it is founded must be sworn to by th(^ mover, and sni)porte PEACTICE AND PEOCEDUEE OF THE 11. Hearing before General Term— Printing Record and Briefs. — 1. In all law cases before the general term, the appel- lant or party bringing, the case up shall cause such portions of the record to be printed as will present the points to be re- viewed. Eule 90. 2. In all appeals from final decrees rendered at special term, and all cases ordered to the general term to be there heard in the first instance, the appellant or plaintiff shall cause to be printed an abstract of the pleadings, not to exceed one-fourth of the number of folios in the original pleadings ; and in all other equity appeals, and all other motions and proceedings ordered to the general term to be there heard in the first in- stance whether at law or in equity, the appellant or party making the motion, or instituting the proceeding ordered up, shall cause to be printed such portions of the record as will present the points to be reviewed or considered. Id. 3. Ten printed copies of all paiaers hereinbefore required to be printed shall be filed in the clerk's ofiice, for the use of the counsel and the court, before the first day of the term on the calendar on which the case is entered, and the costs of such printing shall be taxed as costs in the case against the losing party. Id. Note. — The expenses of printing testimony for the convenience of the court not required by law cannot be taxed as costs in the national courts. Spaulding v. Tucker, 2 Sawyer, 50. 12. Briefs to be Exchanged before Argument.— In all cases in the general term the counsel for the respective parties shall, before the argument, present to each other and to the justices holding the court a printed brief of points and authorities. Eule 90, ^ 4. 13. Motion to Dismiss for Failing to Print Record.— If the provisions of this rule in regard to printing are not complied with, the court may, on motion, order the case to be dismissed or otherwise disposed of ; but the court or any justice thereof may, for sufficient cause shown, by special order, dispense with the application of this rule in any particular case, upon mo- tion and due notice thereof to the opposite party. Id.,^ h. 14. Frivolous Appeals. — "Whenever the court shall adjudge that the appeal was frivolous or was taken for delay, the court may order such additional sum to be taken as damages, to be paid by the appellant to the appellee, as in the opinion of the SUPREME COUKT, DISTEICT OP COLUMBIA. 217 court the justice of the case may require, not exceeding, in any case, the sum of five hundred dollars. Id., ^ 6. Note. — The power to adjudge damages is the only power which the court has to prevent fWvolous appeals. Armory v. Armory, 91 U. S., 356. 1 5 . Notes o( Decisions —What can be Considered by Appellate Court. — In general, matters not brought to the attention of the court below will not be considered on error or appeal. Wilson v. McNamee, 102 U. S., 572 ; Belt v. Meagher, 104 U. S., 279 ; Clark v. Fredricks, 105 U. S., 4. And only such questions can be examined as are properly brought into the record. Providence v. Babcock, 3 Wall,, 240 ; Eng- land V. Gebhardt, 112 U. S., 502. Thattestimony was objected to and received does not compel a court of error to consider its admissi- bility, the record not showing that the objection was overruled and exception taken. Laber v. Cooper, 7 Wall., 565. A general objection ;to the reading of a deposition, or a copy of a record, without any disclosure of the nature or ground of the objection, will be disre- garded on error. Camden v. Doremus, 3 How., 515. An objection on the ground of the misjoinder of parties plaintiff is too late, if made for the first time on appeal. Livitigston v. Woodworth, 15 How., 546. Nor mere informality in a plea. Deitsch v. Wiggins, 15 Wall., 539. But a fatal defect in the declaration may first be taken advantage of on error. Slocum v. Pomeroy, 6 Cr., 221 ; U. S. Bank v. Smith, 11 Wheat., 171. If a deed be admitted in evidence without exception, its execution cannot be objected to in error. Stoddard v. Chambers, 2 How., 284. See Houghton v. Jones, 1 Wall., 702. In general, the plaintiff in error should be confined to the specific objections to the admission of evidence which he made below. Hinde v. Longworth, 11 Wheat., 199 ; Stebbins v. Duncan, 108 U. S., 32. Defence of limitations cannot be raised for first time in appel- late court. Upton v. McLaughlin, 105 U. S., 640. An erroneous rul- ing, if in favor of appellant, is not open to review. Bethel v. Matthews, 13 Wall., 1. A second appeal brings up only the proceed- ing subsequent to the mandate. Browder v. McArthur, 7 Wheat., 68 ; Bridge Co. v. Stewart, 3 How., 413 ; The Lady Pike, 96 U. S., 461. The court may, however, look into the prior proceedings, so far as may be necessary to determine any new questions that depend upon them. The Santa Maria, 10 Wheat., 431. Where evidence not in record, appellate court cannot say court below was wrong in leaving to jury the question whether a particular wharf was a public place. Error is not to be presumed. Railroad v. Hanning, 15 Wall., 649. If the court instruct the jury that if they believe a particular wit- ness, a certain fact is to be considered as proved, it is to be presumed, on error, where the bill of exceptions does not exhibit his testimony, that there was enough in it to justify such instruction. Russell v. Ely, 2 Black, 575. But where the testimony of a competent witness is excluded, the court will not, to save the judgment, presume that it was immaterial, because the exceptions do not show what facts it 28 218 PRACTICE AND PEOCEDUBE OF THE was offered to prove. Vance v. Campbell, 1 Black, 427; Hauss- knecht v. Claypool, Id., 431. See, however. United States v. Never- son, 1 Mackey, 152. Nor will the court assume the existence of facts not shown by the record, on the ground that their existence was assumed below as the bases of requests to charge, nor can it consider whether the requests were properly refused. Ins. Co. v. Baker, 94 U. S., 610. Where the record does not contain all the testimony, it cannot be presumed that the erroneous refusal of the trial court to permit a question to be asked did no harm. Gilmer v. Higley, 110 U. S., 47. For other oases illustrating the doctrine omnia rite, etc., see Kearney v. Denn, 15 Wall., 51 ; Stockton v. Bishop, 4 How., 155 ; Prentice v. Zane, 8 How., 470 ; McGavock v. Woodlief, 20 How., 221; Basey v. Gallagher, 20 Wall., 670; Clark v. Fredricks, 105 U. S., 4; Carrol v. Peake, 1 Pet., 18. When the charge fully and fairly sub- mits the law of the case, the judgment will not be reversed because passages thereof, read apart from their connection, would need modification. Bvanston v. Gunn, 99 U. S., 660. On the other hand, where a charge of great length is so delivered as to render it suscep- tible of different intendments in the minds of the jury, some of which may prove fatal, a new trial will be granted although taking the whole charge together, the law was stated correctly. United States v. Hamil- ton (crim. case), 4 Mackey, 446. So where the charge tends to create in the minds of the jury an erroneous impression. Springman v. Kail- road, 5 Mackey, 1. And in examining the charge the whole scope and bearing must be taken together. Magniac v. Thompson, 7 Pet., 348 ; Congress & Empire Spring Co. v. Edgar, 99 U. S., 645. And if correct in the abstract, it is not to be considered erroneous, unless there is not evidence enough to warrant the jury in passing on the question. Ins. Co. v. Piaggo, 16 Wall., 378. Instructions are en- titled to a reasonable interpretation, and in general are not to be regarded as erroneous, because of omissions not pomted out by the excepting party. First Unitarian Society v. Faulkner, 91 U. S., 415. A general exception to a refusal to charge a series of instructions will not justify a new trial, because some of the series should have been given, others having been properly refused. Mouler v. Ins. Co., Ill U. S., 335. Court will not reverse where the exception is so vague that the court cannot see clearly that the evidence was inad- missible. Ventress v. Smith, 10 Pet., 161. Nor where the correct- ness of the instruction depends on the evidence, and the bill of ex- ceptions does not purport to set out all the evidence, if the instruc- tion do not necessarily imply that there were no proofs other than those on which the instructions are expressly founded. Wiggins v. Burkham, 10 Wall., 129. Error which does not injure, no ground for reversal. Blackwell v. Patton, 7 Cranch, 471 ; Campbell v. Pratt, 2 Pet., 354 ; Greenleaf v. Birth, 5 Pet., 132 ; McMicken v. Webb, 6 How., 292 ; Chandler v. Von Boeder, 24 How., 224 ; Johnston v. Jones, 1 Black, 209 ; Grand Chute V. Winegar, 15 Wall., 355 ; Philpot v. Gruninger, 14 Wall., 570 ; Railroad v. Ross, 112 U. S., 377. Thus in ejectment, an errone- SrPBEME COURT, DISTRICT OF COLUMBIA. 219 ous instruction is no ground for reversal, where it is apparent that the party had no title. Deery v. Cray, 10 Wall., 263. Or where other defences must prevail. Robst v. Brock, 10 Wall., 579. Or where the record shows that appellant's case is inherently and fatally de- fective. Boith V. Clise, 12 Wall., 400. So, when on undisputed facts a verdict is clearly right, because the charge is technically inaccu- rate. Walbrun v. Babbit, 16 Wall., 577. So, where the admission was of immaterial or irrelevant evidence. Ins. Co. v. Warehouse Co., 93 U. S., 527 ; Mining Co. v. Taylor, 100 U. S., 37. The rule applies to the improper exclusion of a record, where the party offering it proved by other means every fact of which it was evidence. Lucas v. Brooks, 18 Wall., 436. 16. Appeals to Supreme Court of United States. — No appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity, in the supreme court of the District of Columbia, or in the supreme court of any of the Territories of the United States, unless the matter in dis- pute, exclusive of costs, shall equal the sum of five thousand dollars. Sec. 2. That the preceding section shall not apply to any case wherein is involved the validity of any patenter copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States ; but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute. Act of March 3, 1885. 23 Stat., 448. 220 PEACTICE AND PROCEDUEE OF THE CHAPTEE XXXIV. EXEOXJTION. 1. If judgment not suspended, etc., execution to issue. 2. No stay of execution on final judgments. 3. Execution may issue at any time during life of judgment. 4. Fieri facias, form of Rule 96. 5. Habere facias, form of Rule 93. 6. Retomo habendo, form of. Rule 95. 7. Special writs of execution may issue when necessary. 8. What may be levied pn under a fieri facias, 9. The exemption laws. 10. Waiver of exemption law in- operative. 11. Remedy when exempt prop- erty is levied on. 12. What other property may not be taken in execution. 13. Issuing writ prematurely. 14. Issuing writ after death of party. 15. Alias and pluries executions. 16. The lien of the fl. fa. 17. Landlord to be paid his rent due before removal of goods. 18. Death of marshal after levy or or sale — Statutory provision. 19. Time of making sale. 20. M'Tiat right and title passes. 21. Validity of the sale. 22. Fraudulent sale. 23. Application of proceeds. 24. The return. ATTACHMENT. Form of writ of attachment. Rule 96. Interrogatories to garnishee. Condemnation, judgment of. Statutory provisions — Mary- land Act, 1715, ch. 40, sec. 5. BXECXJTION AGAINST THE PERSON. 29. Capias ad satisfaciendum^ Statutory provisions. 30. Proceedings upon the arrest. 31. Who exempt from this pro- cess. 32. Debtor not to be admitted to bail pending trial. SCIBB FACIAS. 33. Scire facias on judgment, form of Rule 98. Nature of a scire facias. Where a new person is to be benefited or charged by the execution. Marriage of female plaintiff or defendant. Scire facias against terre ten- ants. Pleading to scire facias— De- murrer. Plea, what defence may be set up. 34. 35. 36. 37. 38. 39. 1. If Judgment not Suspended, Superseded, etc., Execution to Issue. — If the judgment of the court be not suspended, super- seded or reversed by one or other of the methods mentioned in the preceding rules, execution thereon may issue. Eule 91. Note. — Proceedings on execution are deemed proceedings in the SUPREME COUET, DISTEICT OP COLtTMBIA. 221 suit. The suit does not terminate with judgment. See Union Bank V. Geary, 5 Pet., 99. 2. No Staj'^ of Execution on Final Judgments. — There shall be no supersedeas or stay of execution of the [final] judgments of the supreme court of the District, otherwise than by injunc- tion, or upon proceedings in error to the Supreme Court of the United States. E. S. D. C, sec. 850'. Note.— Where there is an appeal taken and bond given and after- wards judgment is confessed by the defendant on an agreement to stay execution for a certain period, the sureties will be discharged if the stay be without their consent. Kendall v. Grice, 1 Mackey, 279. 3. Execution may Issue at any Time during Life of Judg- ment. — Execution on any judgment may issue at any time dur- ing the life of such judgment, notwithstanding no execution may have been issued thereon within a year and a day from th« date of rendition of the same. Eule 92. See Thompson v. Beveridgg, 3 Mackey, 170. Horsey v. Beveridge, 4 Id., 291. See Scire Facias, post. 4. Fieri Facias — Form of— Rule 96. — In an action where money only is recovered, and not any specific chattels, the fol- lowing shall be the form of the writs of execution : In the Supreme Court of the District of Columbia, the DAY of , 18—. A. B., Plaintiff, ) V. [ At Law, No. — . C. D., Defendant.) The president of the United States to the Marshal for said District, Greeting : You are hereby commanded that of the goods and chattels, lands and tenements of the defendant you cause to be made | , which the plaintiff lately in said court, in said suit, recovered against said defendant for so much money payable by him to the plaintiff, and the further sum of | , for his costs and charges by him about his suit expended, as appears of record ; and return this writ into the clerk's office of said court within sixty days, so indorsed as to show when and how you have executed the same. Witness, , chief justice of said court. , clerk. 5. Habere Facias— Form of— Rule 93.— If the judgment be for the recovery of land, the same shall be carried into execution by a writ of possession in the following form : 222 PRACTICE AND PEOCEDTJRE OF THE In the Supeemb Court of the District op Columbia, the OP , 18—. A. B., Plaintiff, ) V. V At Law. No. — ■ 0. D., Defendant. J The President of the United States to the Marshal for said District, Greeting : You are hereby commanded, without delay, to cause the plaintiff to have possession of [describe the prem,ises as they are described • in the declaration] according to his recovery thereof in this action. And do you return this writ into the clerk's oflfice of said court im- mediately after you have executed it, and within sixty days, so en- dorsed as to show when and how you have executed the same. Witness, , chief justice of said court. 6. Retorno Habendo — Form of— Rule 95.— In replevin, if the judgement be that the plaintiff return the chattel or chattels in controversy, the following shall be the form of the writ of re- turn : In the Supreme Court of the District op Columbia, the DAY OF , 18—. A. B., Plaintiff, I V. [■ At Law. No. — . C. D., Defendant.) The President of the United States to the Marshal for said District, Greeting : You are hereby commanded that you cause to be returned to the defendant the same chattels which, by the original writ in this action, you took from him and placed in possession of the plaintiff, which chattels the defendant is to hold irrepleviable forever ; and if you find that the plaintiff has eloigned said chattels, then return the fact. And do you cause to be made of the goods and chattels, lands, and tenements of the said plaintiff in this District | , for damages, costs, and charges by the defendant sustained, laid out, and expend- ed, as appears of record ; and return this writ into the clerk's ofiice within sixty days, so endorsed as to show when and how you have executed it. Witness, , Chief Justice of said court. 7. Special Writs of Execution may Issue when Necessary.— In other actions, when the judgment is that something special be done or rendered by the defendant, a special writ of execu- tion shall issue to the marshal, according to the nature of the case. Eule 94. 8. What may be Levied on Under a Fieri Facias. — The earnings of the wife while cohabiting with her husband, and whatever is pur- chased therewith, are the property of the husband and liable for his debts. The married woman's act does not make them the separate SUPEEME COURT, DISTKICT OF COLUMBIA. 223 property of the wife. Seitz v. Mitchell, 94 U. S., 580. A vested re- mainder. Nichols V. Levy, 5 Wall., 433. In the case of lands held by a partnership, the debtor's share of the joint property, but the sale is only of the debtor's interest in it, after payment of all the partnership debts. Clagett v. Kilbourne, 1 Black, 346. Money may be taken upon a fieri facias. The fact that it is not a subject of sale is no objection. The reason of requiring a sale is to turn what is taken into money. The fact that steps to convert a thing into money are unnecessary can furnish no reason for refusing to take it. The general rule of law is, that all chattel property of the debtor may be taken in execution. Turner v. Fendall, 1 Or., 116, affirming 1 Cr. C. C, 35. Where an officer has an execution against the party for whom he has collected money on execution, it is his duty to bring the money into court to be disposed of as the court may direct, and it is the duty of the court to direct the money to be paid in satisfaction of the sec- ond execution. Id. A patent machine and the right of use attached to it. Woodworth v. Curtis, 2 Woodb. & M., 524. 9. The Exemption Laws.— The following property, being the property of tlie head of a family or householder, shall be ex- empt from restraint, attachment, levy, and sale on execution or decree of any court in the District : 1. All wearing apparel belonging to all persons, and to all heads of families, being householders ; 2. All beds, bedding, household furniture, stoves, cooking utensils, and so forth, not exceeding three hundred dollars in value ; 3. Provisions for three months' support, whether provided or growing ; 4. Fuel for three months ; 5. Mechanic's tools and implements of the debtor's trade or business amounting to two hundred dollars in value, with two hundred dollar's worth of stock for carrying on the business of the debtor or his family ; 6. The library and implements of a professional man or artist, to the value of three hundred dollars ; 7. One horse, mule, or yoke of oxen ; one cart, wagon, or dray, and harness for such team ; 8. Farming utensils, with food for such team for three months, and if the debtor be a farmer, any other farming tools of the value of one hundred dollars ; 9. All family pictures, and all the family library not ex- ceeding in value four hundred dollars ; 10. One cow, one swine, six sheep ; and these exemptions shall be valid when the property is in transitu, the same as if 224 PEACTIOE AND PEOCEDXJRE OP THE at rest ; but no property named and exempted in this section shall be exempted from attachment or execution for any debt due for the wages of servants, common laborers, or clerks, ex- cept the wearing apparel, beds, and bedding, and household furniture and provisions, for the debtor and family. E. S. D. C, sec. 797. The earnings, not to exceed one hundred dollars each month, of all actual residents of the District of Columbia, and who are married persons, or who have to provide for the support of a family in said District, for two months next preceding the issuing of any writ or process from any court or justice of the peace, or other ofiScer, of and in said District, against them, shall be exempt from attachment, levy, seizure, or sale upon such process ; and the same shall not be seized, levied on, taken, reached or sold by attachment, execution, or any other process or proceedings of any court, judge, justice of the peace, or other officer of and in said District : Provided, That this act, and nothing herein contained, shall apply, or iu any manner affect any existing debt; contract, note, or judgment. 20 Stat., 173. (Eieh. Suppl., 373.) Note.— See also sees. 603, 982, 1286, E. S. D. C, exempting from sale on execution the property of cemetery associations, the oflBcial seal, records and official documents of a notary, and the arms and equipments of officers, non-com missioned officers and privates of the militia. When an unmarried man may be deemed the "head of a family " within a law granting an exemption to heads of families, see Jones v. Gray, 3 Woods, 494. 10. Waiyer of Exemption Law InoperatiTC. — The exemption act rests upon public policy. It was intended for the protection and preservation of the family, notwithstanding the improvidence of its head. An executory agreement to waive its benefits is, therefore, in- operative and void. Wallingsford v. Bennett, 1 Mackey, 303. 11. Beinedy when Exempt Property is Levied on. — Replevin against the officer will lie by the execution debtor when his exempt property has been levied on. Wallingsford v. Bennett, 1 Mackey, 303. 12. What other Property may not be Taken in Execution.— The equity of redemption of a mortgagee of land cannot, in this District, be taken in execution under a fieri facias. Van Ness v. Hyatt, 13 Pet., 300. The act of the legislative assembly, August 2, 1871, mak- ing judgments a lien on equitable interests on real estate is inoperar tive and void. Roach v. Van Riswick, Mac A. & Mack., 171. In the District of Columbia stock in an incorporated company cannot be subjected to the process of attachment or of execution. Barnard V. Insurance Co., 4 Mackey, 63. No execution can issue against a SUPREME COUET, DISTRICT OE COLUMBIA. 225 municipal corporation. Amy v. Galena, 7 Fed. Rep., 163. The stat- ute of 5 Geo. II, ch. 7, making lands in the colonies subject to execu- tion in the same manner as chattels, is in force in this District, and is the law under which executions against lands are issued. Tayloe V. Thompson, 5 Pet., 358, 367. But a legal estate only and not an equitable interest is liable to be seized under a fieri facias. Smith v. McCann, 24 How., 398. See Van Ness v. Hyatt, supra. It is not every legal interest which is liable to be taken in execution and sold ; the debtor must have a beneficial interest in the property, and not a barren legal title held in trust. Id. Under the married woman's act of April 10, 1869, the right of the husband in the real estate of his wife, acquired before the passage of the act, is not liable to be taken in execution for his debts contracted after the passage of the act. Hitz v. Bank, 111 IT. S., 922. Personal property located in one State belonging to a debtor residing in an- other, follows the exemption law of the State where the owner resides. Matter of Stevens, 10 Am. L. Reg., N. S., 523. Neither the franchise of a corporation, nor lands or works established for the exercise of the franchise, can be taken in execution, unless there is some statute au- thorizing it. The remedy is in equity. Gue v. Tidewater Canal Com- pany, 24 How., 257. Nor manuscripts, without the consent of the author. Barlett v. Crittenden, 5 McLean, 32. Nor without leave"of the court property in the hands of a receiver, trustee or other person appointed by the court. Wiswall v. Sampson, 14 How., 52. Other- wise,^ where the trustee has performed the trust, and there is a balance in his hand with which he has nothing more to do than to turn it Over to the defendant. Van Riswick v. Lamon, 2 Mac A., 172; McLaughlin v. Swann, 18 How., 217. After the issue of one execution, an alias cannot issue before the return of the first. Corning v. Bur- dick, 4 McLean, 133. A patent cannot be taken in execution on a fieri facias. Agerv. Murray, 105 U. S., 126. Nor a copyright. Stevens V. Cady, 14 How., 528. Nor a judgment of a justice of the peace. Bowen v. Howard, 5 Cr. C. C, 308. 13. Issuing' Writ Prematurely.— The fact that an execution was is- sued prematurely does not necessarily render it void. Dawson v. Daniel, 2 Flippin, 305. 14. Issiiing: Writ after Death of a Party.— A writ of fieri facias, tested and issued after the death of the party against whom the judg- ment is recovered, is void, and confers no power on the ministered officer to execute it. Mitchell v. St. Maxent's 'Lessee, 4 Wall., 237. Erwin v. Dundas, 4 How., 50. 15. Alias and Pluries Executions.— When personal property has been levied on suflftcient to satisfy the judgment, it is presumed to be satisfied. But if such property, on being sold, proves not sufficient, an alias execution may issue, not, however, until after return of the first execution. Corning v. Burdick, 4 McLean, 133. 16. The Lien of the Fi. Fa.- The lien upon the personal property 29 226 PEACTICE AND PEOCEDTJEE OE THE of the debtor created by the delivery of the fi. fa. to the marshal is lost by the return of nulla bona, and is not revived by the delivery of an alias fl. fa., so as to overreach anintermediatesale by the debtor. Maul V. Scott, 2 Cr. C. C, 367 ; Riddle v. The Marshal. 1 Id., 96. A fl. fa. delivered to the marshal will supersede a fl. fa. subsequently deliv- ered to a constable and first levied. Riddle v. The Marshal, 1 Or. 0. C, 96. A fl. fa. binds the goods only from the time of its delivery to the marshal ; and if it be returned without being levied upon the goods, its lien ceases, and a subsequent fl. fa. issued at the suit of an- other creditor, and upon a subsequent judgment, and levied upon the goods, must be satisfled before a second fl. fa. issued afterwards by the flrst creditor upon the prior judgment. The execution first delivered to the marshal must be first served. Cunningham v. Oflnt, 5 Cr. C. C, 524. 17. Landlord to be Paid his Kent Due before Eemoral of Goods.— The Statute of VIII Anne, ch. 14, is in force in the District of Colum- bia. Gibson v. Gautier, 1 Mackey, 42. That statute provides that, " No goods or chattels, etc., lying or being upon any demised lands, etc., which are or shall be leased for life or term of years, or other- wise, shall be liable to be taken on any execution on any pretence whatever, unless the party at whose suit the said execution is sued out shall, before the removal of such goods off the premises by virtue such execution, pay to the landlord of said premises or his bailiff all such sums as shall be due for rent for the premises at the time of the taking such goods or chattels by virtue of such action, provided said arrears do not amount to more than one year's rent." Under this Statute if the marshal levy an execution and make sale of property, he is obliged, after due notice given him by the land- lord upon whose premises the goods are, to pay from the proceeds all rent due up to the time of the sale, not exceeding one year's rent in the whole, and if the sale takes place during the month there can be no division of the rent for that month. To compel the marshal to pay over one year's rent, the landlord may move the court, out of which the ex- ecution issues, for an order to pay the amount due him from the sale, and this motion may be made at any time before the money is paid over, the marshal being bound on the receipt of the landlord's notice to retain the money. Gibson v. Gautier, 1 Mackey, 35 ; Harris v. Dammann, 3 Mackey, 90. 18. Death of Marshal after Levy or Sale — Statutory Proyi- sion. — When a marshal dies, or is 'removed, from office, or the term of his commission expires, after he has taken in execu- tion, under process from a court of the United States, any lands, tenements or hereditaments, and before sale or other final disposition thereof, the like process shall issue to the suc- ceeding marshal, and the same proceeding shall be had as if such marshal had not died or been removed, or the term of his commission had not expired. And when a marshal dies or is SUPKEME COURT, DISTRICT OF COLUMBIA. 227 removed from office, or the term ofWs commission expires, after he has sold any lands, tenements or hereditaments, under pro- cess from a court of the United States, and before a deed for the same is executed by him to the purchaser, such court may, on application by the purchaser, or by the plaintiff at whose suit the sale was made, setting forth the case and the reason why the title was not perfected by said marshal, order the mar- shal for the time being to perfect the title and execute a deed to the purchaser, upon his paying the purchase- money and costs remaining unpaid. E. S. U. S., sec. 994. Note. — See McFarlandv. Gwin, 3How., 717, and Doolittle v. Bryan, 14 Ho^., 563, for a discussion of tTie force and effect of this statute. And see also Byers v. Fowler, 12 Ark., 218. Merchants' Bank v. Evans, 51 Mass., 335. 19. Time of Makiiig' Sale.^If property be seized under a fl. fa. before the return day of the writ, the marshal may proceed to sell at any time afterwards, without any new process from the court. Remington v. Linthicum, 14 Pet. 84. 20. What Eight and Title Passes. — Where property has been taken and sold on execution upon the judgment of a court of competent jurisdiction, and such judgment is subsequently reversed for error, the defendant is entitled to restitution 9nly of his money, the pur- chaser at such sale will acquire title to the property. Voorhees v. Bank, 10 Pet., 449. A purchaser at a sheriff's sale is not protected against a prior claim of which he had notice. Swage v. Burke, 12 Pet., 11. The purchaser takes precisely the interest which the debtor had in the property sold; and takes subject to all outstanding equities., Osterman v. Baldwin, 6 Wall., 116. Sale of copyright plate of map does not give right to use plate for printing map. Stevens v. Gladding, 17 How., 447. A levy upon and sale under a fi. fa. of a co-partner's interest in a firm, passes to the purchaser only the defendant's interest in the chattels actually seized, and not his interest in rights of action or credits of the partnership. Moore V. Rossenberger, 7 Phila., 576 ; 4 West Jur., 204. The highest bidder at an execution sale has no right as purchaser which can prevent the oflacer from accepting an offer of payment of the execution debt and thereupon stopping the sale. U. S. v. Vestal, 12 Fed. Rep., 59 ; 4 Hughes, 467. In a marshal's sale on execution there is no warranty. The purchaser must understand what he buys. If he has been de- ceived or misinformed, the court may release him by setting aside the sale. This may be done on motion, if application is made before the sale is completed. Rocksell v. Allen, 3 McLean, 357. 21. Validity of the Sale.— A purchase under a fi. fa. duly issued, is legal as respects the purchaser, provided the levy be made before the return day ; although the sale be made after the return day, and the writ is never actually returned. Wheaton v. Sexton, 4 Wheat., 228 PEACTICE AND PEOCEDUEE OF THE 503 ; Remington v. LintMcum, 14 Pet., 84. The sale transfers title to purchaser, and does not require marshal's deed to give it validity. Remington v. Linthicum, 14 Pet., 84. Death of debtor before levy and sale does not invalidate sale. Tayloe v. Doe, 13 How., 287. An execution sale will be set aside where the description of the property, both in the advertisement and the marshal's deed, is so vague and uncertain that it is impossible to ascertain what property was sold and conveyed. Mackall v. Richards, 3 Mackey, 271. And it seems where the description in the marshal's deed is. a departure from the descrip- tion in the advertisement of sale the deed is void. Id. 22. Fraudulent Sale. — If the purchaser, by fraudulent management or misrepresentation, prevent the attendance of others, or use any influence to prevent competition, the sale will be set aside. Slater v. Maxwell, 6 Wall., 268 ; Cocks v. Izard, 7 Wall., 559. And so an agreement between the judgment creditor and the judgment debtor that the latter will withdraw all opposition or interference with the sale on condition that the judgment creditor will surrender certain notes of the judgment debtor when he, the creditor, shall have pur- chased the property at the sale, renders such sale fraudulent as against the creditors of the debtor. Horsey v. Beveridge, 4 Mackey, 291. 23. Application of Proceeds. — The marshal having made the money on a writ of execution, may pay it to the plaintiff, and this will be a sufficient return, but where there is a controversey he may pay it into court and relieve himself of all responsibility. Wortman v. Oonyngham, Pet. C. Ct., 241. Where different judgments are en- tered at the same time, and thus become equal liens, and the land of the defendant is sold on execution, a pro rata distribution of the pro- ceeds should be made upon the judgments. Rockhill v. Hanna, 4 McLeah, 554. 24. The Return. — * * All writs in execution of any judgment shall be made returnable within sixty days from the date of issuing the same. Eule 91. Notes. — It is not necessary that the return should be made prior to the return day ; it may be made at any time thereafter, and even after the marshal and his deputy have gone out of office. Rich v. Henry, 4 Mackey, 155. The return to a fl. fa., if written on the writ, should be so full as to contain the name of the purchaser, and the price paid for the property, or it will not be a sufficient memoran- dum of the sale, within the statute of frauds. Remington v. Linthi- cum, 14 Pet., 84. Yet if it can be fairly construed so as to be suffi- cient in law, it is the duty of the court so to construe it. Coggswell V. Warren, 1 Curt., 223. The property seized should be specially designated in the return of the execution, or by reference to a sche- dule accompanying it. Barnes v. Billington, 1 Wash., 29. SXJPEBME COURT, DISTRICT OF COLUMBIA. 229 ATTACHMENT. 25. Form of Writ of Attachment— Rule 96. In the Supbemb Court op the District op Columbia, the DAY OP , 18—. A. B., Plaintiff, ] V. I At Law. No. — . CD., Defendant, i The President of the United States to the Marshal for said District, Greeting : You are hereby commanded to attach the lands, tenements, goods, chattels, and credits of the defendant, if to be found in this District, of value suflBcient to satisfy the plaintiff's recovery against him in this court on the day of , 18 — , of | , for money pay- able to him by the defendant, and | for costs of suit ; and the same, so attached, safely keep and have before said court, at its first special term after said attachment, that the same may be condemned, unless sufficient cause be shown to the contrary ; and if said goods, chattels, or credits be attached in the hands or possession of any person other than the defendant, notify such person to appear before said court at the time aforesaid, to show cause why the same should not be condemned and execution thereof had according to law. And have then and there this writ, so endorsed as to show when and how you have executed it. Witness, , Chief Justice. , Clerk. 26. Interrogatories to Garnishee. — The plaintiff, upon issu- ing such writ of attachment, may exhibit interrogatories to be answered by the garnishee within ten days after the service of the same upon him ; and upon Ms failure to answer, judg- ment may be entered against him, at the term at which he is required to appear, for the full amount of the judgment. Eule 97. 27. Condemnation, Judgment of.— If, by the answers of the garnishee, or by the verdict of a jury, it shall appear that he has property or credits of the defendant, judgment of con- demnation of said property or credits shall be entered, but not for an amount in excess of the original judgment and the costs, and execution shall issue thereon. Id. 28. Statutory Provision— Maryland Act of 1715, cli. 40, sec. 7. — Any person or persons having obtained a judgment in any court of this province, or that shall hereafter obtain any judg- ment in any court of this province, against any person or per- sons, it shall and may be lawful to and for the said plaintiff in the said judgment, at his will and pleasure, instead of any 230 PRACTICE AND PEOOEDITEE OF THE other execution, without those previous requisites as above in this act prescribed and directed, to take out an attachment against the goods, chattels and credits of the said defendant in the said judgment, in the said plaintiff's own hands, or in the hands of any other person or persons whatsoever, which said attachment shall likewise have the clause aforesaid, command- ing the sheriff of the said county to whom it shall be iirected, at the time of executing the said attachment, ' ' To make known to such person or persons in whose hands or possession the said goods, chattels and credits of the absent defendant shall be at- attached, that he or they be and appear at the respective courts at the day of the return of the said attachment, to show cause, if (they have any) why the said goods, chattels, and credits, so as aforesaid in their hands attached, should not be condemned, and execution thereof had and made, as in other cases of recoveries and judgments given in courts of record;" at which day of the return of the said attachment, if the said defendant shall not then appear, nor the said" garnishee in whose hands the said goods, chattels and credits of the said defendant were attached, to show sufficient cause to the con- trary, the said respective courts shall and may condemn the said goods, chattels and credits aforesaid, so as aforesaid at- tached, and award execution thereof to be had and made, either by capias ad satisfaciendum, fieri facias, or otherwise, as the said plaintiff might have had against the defendant himself on the judgment aforesaid, which said condemnation and execu- tion of such goods, chattels and credits of the said garnishee as aforesaid, had and made, shall be sufficient and pleadable in bar by the said garnishee or garnishees in any action against him or them by the said defendant for the same. If »tes» — An attacliinent on judgment being treated as an execution, and its office being the same as that of a fl, fa,, it is governed by the same principles and rules. Griffiths v. Ins. Co., 7 Md.. 103; and see Baldwin v. Wright, 3 Gill, 246 ; Davidson's Lessee v. Beatty, 3 H. & McH., 617 ; McLaughlin v. Swann, 18 How., 217. An attachment cannot issue on a judgment before a fl. fa. previ- ously issued on the same judgment has been returned. Waters V. Oaten, 1 H. & Mc.H., 407 ; 4 Id., 533. Nor can an alias attachment issue before a first is returned. Baldwin v. Wright, 2 Gill, 246. Where an attachment has improperly issued on a judgment, the garnishee can appear and move to quash. Harder v. Moores, 7 H. & J., 4. Where the garnishee admits funds in his hands to the amount of the judgment,, and moves to quash the attachment, but files no rear SUPREME COITET, DISTRICT OF COLUMBIA. 231 sons therefor, and a claimant of the fund attached fails to show any interest therein, judgment of condemnation will be entered up. Rob- ertson V. Beall, 10 Md., 125. As to what may be attached, see p. 63, sec. 12. EXECUTIONS AGAINST THE PERSON. 29. Capias ad Satisfaciendum — Statutory Provisions. — If any plaintiff in a civil action, after judgment shall have been ob- tained by him, makes oath, according to law, that the defend- ant has conveyed away, lessened, or disposed of his property, rights, or credits, or is about to remove or has removed, his property from the District, as the plaintiff believes, with intent thereby to hinder or delay the recovery or payment of his debts, the clerk of the court shall thereupon issue a capias ad satisfa- ciendum. E. S. D. 0., sec. 794. 30. Proceedings upon the Arrest. — Upon the arrest of any such defendant under a capias ad satisfaciendum, he may be brought by habeas corpus before the court, if term time, and before one of the judges thereof in vacation, and may call upon the plaintiff to show cause why he, the defendant, shall not be discharged from imprisonment ; and upon such notice, either party may demand a trial by jury ; and thereupon the court or judge shall direct an issue or issues to be framed upon the af&davit so filed, and shall cause a jury to be impanelled and sworn to try such issue or issues, and if the finding of the jury shall be for the plaintiff, the defendant shall be there- upon remanded to prison. Id., sec. 795. 31. Who Exempt from this Process. — ISTothing in the two pre- ceding sections shall be construed to authorize the custody or imprisonment of any female person on civil process, nor any non-resident for any debt contracted out of the District. Id., sec. 796. 32. Debtor not to be Admitted to Bail Pending' Trial. — These sec- tions do not contemplate that the debtor shall be admitted to bail be- tween the habeas corpus and the trial authorized to be had on the is- sues framed. Therefore, a recognizance taken on bringing the defend- ant into court on the habeas corpus, conditioned for his appearance at a future day for the trial of the issues, is void against the sureties. Wallace v. Prott, 4 Mackey. SCIRE FACIAS. 33. Scire Facias on Judgment— Form of— Rule 98.— The fol- lowing shall be the form of writ of scire facias on judgment : 232 practice and pbocedtjre op the In the Supreme Court of the District op Columbia, the DAY op , 18—. A. B., Plaintiff, ) V. [■ At Law. No. — . C. D., Defendant. ) The President of the United States to the Defendant, Greeting : You are hereby commanded to appear before said court at its first special term occurring after service hereof, to show cause why the plaintiff ought not to have execution of his judgment for | , debt and damages, with interest , and | costs of suit, recov- ered against you in said court on the day of , 18 — , and further to do and perform what said court shall consider in the premises. Witness, , Chief Justice. , Clerk. By , AssH Clerk. Notes. — By Rule 121, any plea to a scire facias on judgment shall be treated as a nullity, unless an afa,davit accompany the plea show- ing a defence to the action. Prior to the adoption of Rule Ninety-two, if execution had not is- sued within a year and a day of the rendition of the judgment, the plaintiff could not have an execution without first issuing a scire facias, but now, by the above-mentioned rule, this is no longer neces- sary. Nor is it necessary to issue a scire facias for the purpose of m.erely keeping the judgment alive, since that object, under the deci- sion in Thomcpson v. Beveridge, 3 Mackey, 170, can be obtained by the simple process of issuing a fl. fa., and having it returned nulla bona, whereupon a new lease of life for twelve years is immediately given to the judgment, and so ad infinitum. It will be seen, therefore, that the most frequently-occurring occasion for resorting to a scire facias, viz., to keep alive a judgment rendered dormant by lapse of time, can now seldom, if ever, arise, since the mere issuing and return of a fi. fa. answers every purpose which could be obtained In such cases by a scire facias. There are still, however, cases in which the issu- ing of a scire facias on judgment becomes necessary. See sec. 35. 34. Nature of a Scire Facias.— It is a judicial writ to enforce the execution of some matter of record, but it is so far original that de- fendant may plead to it. Winder v. Caldwell, 14 How., 434. That it is not a new suit, but a continuation of the original proceeding, see Hatch V. Eustis, 1 Gall, 160 ; McKnight v. Craig, 6 Cranch, 183. It is not equivalent to an execution. Deneale v. Stump, 8 Pet., 526, The judgment on scire fkoias is practically a new judgment with all the attributes of the original on which it is founded. Mullikin v. Duval, 7 G. & J., 355 ; Barney v. Patterson, 6 H. & J., 294 ; Murphy V. Cord, 12 G. & J., 182. 35. Where a new Person is to be Benefited or Charged by the Exe- cution. — It is a general principle, that where a new person is to be benefited or charged by the execution of a judgment, there ought to SUPREME COTJET, DISTRICT OP COLUMBIA. 233 be a scire facias to make him a party. Hanson v. Barnes' Lessee, 3 G. & J., 366. Thus it is necessary where the parties to the action have heen changed by death ; and if the death take place after inter- locutory and before final judgment, there should be a scire facias, to show cause why the final judgment should not be entered. This is not necessary, however, where the party dying is one of several plaintiffs or defendants, for in the case of an interlocutory judg- ment, the death may be suggested and the proceedings go on to final judgment among the survivors, and in the case of final judgment, an execution may issue without taking any notice of the death. So where an execution has actually issued and been delivered to the marshal, he may go on and complete it without regard to the death of any party. Evan's Prac, 56; Hanson v. Barnes' Lessee, 3 G. & J., 359. See Boyd & Hance v. Harris, 1 Md., Ch. Dec, 466 ; Jones v. Jones, 1 Bl., 443; Trail v. Snouffer, 6 Md., 308. 36. Marriage of Female Plaintiff or Defendant.— Where a new party is introduced by the marriage of a female plaintiff or defendant, it is within the general principle relating to change of parties stated in the preceding paragraph, and there should be a scire facias. See Ev- an's Prac, 56 ; Townsend's Exr's v. Townsend, 10 G. & J., 373. 37. Scire Facias against Terre Tenants. — Where the defendant aliens lands after the judgment lien attached, and for any reason it becomes necessary to resort to a scire facias to give effect to the judg- ment, the plaintiff, if he desires to reach the land by execution, should make the terre tenant a party to the sci. fa. See Murphy v. Oord, 12 G. & J., 182 ; Doub v. Barnes, 4 Gill, 1 ; Tessier v. Wyse, 3 BL, 28 ; Warfield v. Brewer, 4 Gill, 265 ; McElderry v. Smith's Lessees, 2 H. & J., 72 ; Hanson v. Barnes' Lessees, 3 G. & J., 359. 38. Pleading to Scire Facias — Demurrer, — A demurrer to a scire facias raises only questions of law on the facts stated in the writ. Walden v. Craig, 4 Pet., 147. 39. Plea, Wliat Defences may be Set Up.— A payment which might have been pleaded to a first scire facias cannot be given in evidence in a second scire facias. Wilson v. Watson, Pet. 0. C, 269 ; Wilson V. Hurst, Id. 441. Unless it be some matter which there was no oppor- tunity to plead in the original action. Hatch v. Eustis, 1 Gall, 160. The defendant cannot avail himself of matters of defence which occurred previous to the original judgment. Morrell v. Hall, 13 How., 212. To a sci. fa. after interlocutory judgment but before final judgment against the representative of the deceased, the latter can only plead what the original defendant could have originally pleaded. McKnight v. Craig, 6 Cranch, 183 ; Wilson v. Watson, Pet. C. C, 269, and see Id., 441-446. 30 234 PEACTICE AND PROCEDURE OF THE CHAPTEE MOTIONS. 1. All motions to be recorded and filed. 2. Notice of motion, when requi- site. 3. Enumerated motions, what are. 4. Motions may be ordered to be heard in general term in the first instance. 5. Statutory provisions, R. S. D. 0. 6. All objections should be em- bodied in one motion. 7. Serving copies of motion. 8. How far the relief moved for may be granted. 9. Renewing the motion. 10. Appeal. 11. Practice on motion in special matters. 1. All Motions to be Recorded and Filed.— Every motion shall be entered on the minutes of the court if made in term, and on the rule-book or order-book if made in vacation ; and shall, together with the papers on which it is founded, if made upon matters not already of record, be filed and preserved in the clerk's office ; and if it relate to a- cause depending in court, it shall be filed with the papers in the case to which it relates, and numbered with the number of the same, and be noted on the docket. Eule 101. 2. Notice of Blotion, When Eequisite.— Strangely enough there is no express provision upon this subject in the general rules lately adopted by the court. The practice recognised and followed, how- ever, is that prescribed by Equity Rule 4, which is as follows : " All motions for rules or orders or other proceedings, which are not grantable of course, or without notice, shall be heard on two days' notice ; and a copy of the afiidavits or papers upon which said motion is founded shall, together with the notice of motion, be served on the opposite party, if he has appeared, or his solicitor, at least two days before the hearing of said motion, unless the grounds of said mo- tion are matters of record, in which case it shall only be necessary to refer to such facts of the record as are specified in the notice of motion." The two days' notice are to be computed by excluding the first day and including the last. See Judd v. Pulton, 4 How. (N. Y.), 298 ; and the practice is not to count Sunday, although in a criminal case decided in the general term it was said, obiter, that where a statute requires two entire days' notice, Sunday may be counted as SUPUEME OOtlET, DISTKICT OP COLUMBIA. 235 one of the days. United States v. Neverson, 1 Mackey, 152. The practiceof the New York courts, with reference to computing Sun- day as a day of notice, may be found in Whipple v. Williams, 4 How. (N. Y.), 28; Easton v. Chamberlain, 3 Id., 412; Taylor v. Oobiere, 8 Id., 385 ; King v. Dowdall, 2 Sandf (N. Y.), 131. See also PulUng V. The People, 8 Barb., 384. On the law side of the court Saturday is usually set apart for the hearing of motions, but for special rea^ sons the court may hear it on any day, 3. Enumerated Motions, What are. — The following are enu- merated motions, and shall be heard in the general term in the first instance : Motions for a new trial upon a bill of exceptions or on a case; Applications for judgment on a special verdict ; Applications for judgment on a verdict taken subject to the opinion of the court ; Motions ordered by the justice holding a circuit court or special term to be heard in the general term in the first in- stance. Eule 99. 4. Motions may be Ordered to be Heard in General Term in First Instance. — The justice before whom a motion is made, whether at chambers or in court, may order such motion to be heard in the general term in the first instance. Eule 100. 5. Statutory Provisions. — The supreme court, in general term, * * * may also determine by rule, what motions shall be heard at a special term, as non-enumerated motions, and what motions shall be heard at a general term in the first instance. E. S. D. C, sec. 770. ISTon-enumerated motions in all suits and proceedings at law and in equity shall first be heard and determined at special terms. >!= * * But the justice holding such special, term may, in his discretion, order any such motion * * * to be heard, in the first instance, at a general term. E. S. p. C, sec. 800. Note. — When a motion is certified to be heard in the general term in the first instance, the same order will be made as upon the whole case ought to have been made by the justice holding the special term. Ins. Co. V. Grant, 3 Ma*c A., 220. It was said in Doddridge v. Gaines, 1 Mao A., 335, that a motion ought not to be certified to the general term, unless it involve the merits of the case. It has also been held that the justice before whom a motion is made may, in his discretion, certify it to the general term, though his action be against the remonstrance of both sides, or he 236 PEACTICE AND PEOCEDXJEE OF THE may refuse to make such certificate, thougli all the parties unite in making it, the certification being a matter entirely for his own discre- tion, with no guide for his action, except his own sense of judicial propriety. Insurance Oo. v. Hosmer, 1 Maokey, 297. The practice of this court in the hearing of motions is much the same as that followed in the State of New York from whose code many of our statutory provisions on the subject of practice have been taken. See Metropolitan R. R. v. Moore, 121 U. S. ; Hovey v. McDon- ald, 109 U. S., 150. The following decisions of the courts of that State may, therefore, find some application here and prove useful in settling points of practice. 6. All Objections should be Embodied in one Motion.— A party com- plaining of any proceeding in a cause must embody all objections then existing in one motion. He cannot make a separate motion for each objection. Thus, when a plaintiff moved to set aside a demurrer as irregular, and failing in that moved to set aside the demurrer as frivolous, it was held that the second motion could not be entertained. Desmond v. Wolf, 1 Code Rep., 49 ; Patterson v. Bacon, 12 Abb., 142 ; 21 How. (N. Y.), 478, and see Schlemner v. Myerstein, 19 How. (N. Y.), 412 ; Mills V. Thursby, 11 Id., 115. 7. Serving: Copies of Motion. — Copies of papers served should be correct copies, and the adverse party has a right to presume that they are correct. But where the original is correct and the copy de- fective, the party serving the copy may be allowed to serve an amended copy on payment of costs occasioned by the irregularity. Littlejohn v. Munn, 3 Paige, 200. Although a party making a motion is not ordinarily allowed to read aflldavits in support of his motion, copies of which have not been served, yet in cases where aflftdavits read in opposing a motion introduce new matter which may operate as a surprise upon the moving party, he is sometimes allowed to have the motion stand over for the purpose of obtaining affidavits to contra- dict or explain the new matter alleged,' especially when the new matter charges the moving party with bad faith. Schermerhorn v. Van Vorst, 1 Code Rep., N. S., 400. 8. How Far the Relief Moved for may be Granted. — On a motion, the court may grant the application in part and deny it in part. De Saules V. Searle, 11 How. (N. Y.), 477. Pacts occurring pending the motion have been held not to control the decision of the motion. 17 Id., 556. It is irregular to grant affirmative relief to a party oppos- ing a motion upon matters appearing in the opposing papers, which the moving party has no opportunity to answer. Garcie v. Sheldon, 3 Barb.. 232. 9. Renewing' the Motion. — It is discretion with the court to allow a renewal of a motion on the same or additional papers, and its de- cision will not be reviewed on appeal. White v. Monroe, 12 Abb., 357 ; Smith v. Spaulding, 3 Rob., 615. A motion denied on a prelimi- nary objection may be allowed to be renewed on the merits. Martin V. Lewis, 12 Abb., 482. But leave Will not be given to renew SUPEEME COURT, DISTEICT OF COLUMBIA. 237 a motion to enable a party to insist on facts known to him, but not insisted upon at the hearing of the original motion. Patterson v. Bacon, 12 Abb., 142; 21 How., (N. Y.), 478; and see Schlemner v. Myerstein, 19 Id., 412; Lovell v. Martin, 12 Abb., 178. The motion for leave to renew a motion at special term, need not be before the judge who decided the former motion. 53 Barb., 637. A rehearing cannot be had on the same state of facts as those upon which the first motion was heard. Smith v. Spaulding, 3 Rob., 615. Leave to renew is usually granted upon the denial of a motion for a defect in the moving papers. See Mitchell v. Allen, 12 Wend., 290 ; Dolfus V. French, 5 Hill. And where leave to renew is granted it should be so stated in the order. Dolfus v. French, supra. 10. Appeal. — No appeal will lie from an order denying a motion not involving the merits of the action. Diggs v. Daniels, 2 Mac A., 254. 11. Practice on Motion in Special Matters. — For the practice on mo- tion for new trial, see New Trials, p. 178. In arrest of judgment, p. 186. To vacate judgments, p. 202. Mottion for judgment in special verdict, p. 177. Motion for security for costs, p. 46. Motion for spe- cial remedial writs, p. 75. Motion for judgments against constables failing to pay over money collected, p . 200. Motion to return property taken in replevin, p. 72. Motion for production of books and writings, p. 108. Admissions to the bar, motions for, p. 33. Motions to sub- stitute successor in interest on death, &c., of party, see Change of parties by death, &c., p. 239. And see index. Motions, for further matters under this head. CHAPTEE XXXVI. OF MONEY PAID INTO COURT. 1. Where and how deposited and disbursed. 2. Statutory provisions. Clerk to keep account, &c., of money in court. Similar statutory provisions. 1. Where and How Deposited and Disbursed.— All moneys paid into court by virtue of orders of the court, in causes de- pending therein, shall be deposited and disbursed as required by section 995 of the Eevised Statutes of the United States. Eule 102. (See below.) 2. Statutory Provisions.— All moneys paid into any court of the United States, or received by the ofBcers thereof, in any 238 PRACTICE AND PEOCEDITEE OF THE cause pending or adjudicated in sucli court, shall be forthwith deposited with the treasurer, an assistant treasurer, or a de- signated depositary of the United States, in the name and to the credit of such court: Provided, That nothing herein shall be construed to prevent the delivery of any such money upon security, according to agreement of parties, under -the direction of the court. E. S. U. S., sec. 995. No money deposited as aforesaid shall be withdrawn ex- cept by order of the judge or judges of said courts re- spectively, in term or in vacation, to be signed by such judge or judges, and to be entered and certified of record by the clerk ; and every such order shall state the cause in or on ac- count of which it is drawn. E. S. U. S., sec. 996. Note. — Money in the hands of the clerk of a court is not liable to attacliment. The Lottawanna, 20 Wall., 201. 3. Clerk to Keep Account etc., of Money in Conri— The clerk shall provide a book in which he shall keep a true account of all moneys or funds or securities in court subject to its order, showing the date of the payment thereof into court, the cause to which the same are credited, the place where deposited by him, a brief reference to any order or orders touching the safe keeping or investment, the amount of interest thereon re- ceived by him, if any, and the manner in which the fund was finally disposed of He shall make out and submit to the general term a detailed report, showing the various funds in his hands as such clerk or as register, where and by what authority the same is deposited, kept, or invested, and his vouchers shall be presented with such report, and together they shall thereuxDon be filed amongst the records of the court. Eule 103. (See E. S. U. S., sec. 798, below.) 4. Similar Statutory Provisions. — At each regular session of any court of the United States, the clerk shall present to the court an atecount of all moneys remaining therein, or sub- ject to its order,, stating in detail in what causes they were deposited, and in what causes payments have been made ; and said account and the vouchers thereof shall be filed in the court. E. S. U. S., sec. 798. STJPEEME COTJET, DISTEICT OF COLUMBIA. 239 CHAPTEE XXXVIL CHANGE OF PARTIES BY DEATH, MARRIAGE, OR CON- TRACT. 5. Successor in interest may be substituted on motion — How and when the motion may- be made. Death of party when cause is pending in general term — How successor in interest may be substituted. Provisions of the Revised Stat- utes U. S. as to death of party. — Where one of several plain- tiffs or defendants dies. Provisions of the Maryland Act as to death of parties. 6. Executors and administrators to conform to the foregoing provisions. 7. Change of parties by death in actions of replevin. 8. Death of party to whose use suit is brought. 9. Death of party in actions by or against partners. 10. — In actions of ejectment. 11. Death of party in actions to recover realty where succes- sor in interest is an infant. 1. Successor in Interest may be Substituted on Motion — How and when the Motion may be Made. — Any person who, while a cause of action at law or in equity is in suit, becomes en- titled thereto or interested therein, as personal represensative, husband, or transferee of the plaintiff, may, upon motion in writing filed in the cause, showing when and how he became entitled or interested, be allowed to prosecute the suit against the defendant or his personal representative, instead of or with the plaintiff^ as the case may be. This motion must be made within one year after the cause of action has accrued to the mover ; otherwise the suit shall abate. Eule 118. 2. Death of Party when Cause is Pending in General Term — How Successor in Interest may be Substituted. — Whenever, pending a cause in the general term, any party (whose interest does not survive to some other party) shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined as in other cases ; and if such representatives shall not voluntarily become par- ties, then any other party may suggest the death on the record, and thereupon on motion obtain an order that, unless such 240 PEACTICE AND PEOCEDTTEE OF THE representatives shall become parties within the first ten days of the ensuing term, the party moving for such order shall, on hearing, be entitled to have the appeal dismissed, or the judg- ment or decree appealed from affirmed, or to have the judg- ment or decree appealed from reversed if it be erroneous ; pro- vided, however, that a copy of every such order shall be served on said representative, or, if not found within this District, then to be published in some newspaper at the city of Washington once a week for three successive weeks before the beginning of the next ensuing general term. Eule 119. 3. Provisions of the Revised Statutes of the United States as to Death of Party. — When either of the parties, whether plaintiff, or petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment. The defendant shall answer accordingly ; and the court shall hear and determine the cause and render judgment for or against the executor or adminis- trator, as the case may require. And if such executor or administrator, having been duly served with a scire facias- from the office of the clerk of the court where the suit is de- pending, twenty days beforehand, neglects or refuses to be- come party to the suit, the court may render judgment against the estate of the deceased party, in the same manner as if the executor or administrator had voluntarily made himself a party. The executor or administrator who becomes a party as aforesaid, shall, upon motion to the court, be entitled to a continuance of the suit until the next term of said court. R. S. U. S., sec. 955. Notes. — This section saves every action from abatement by death of the parties where the cause of action survives, and the survival of the cause must depend on the local law. Trigg' v. Conway, Hemp., 711 ; Hatfield v. Bushnell, 1 Blatchf., 392. It is confined to personal actions, however, as the power to prose- cute or defend is not given to the heir or devisee. Green v. Wat- kins, 6 Wheat., 260 ; Macker v. Thomas, 7 Wheat., 530. The revivor of the suit by or against the representive of the deceased is a matter of right, and is a mere continuation of the original suit without dis- tinction as to citizenship of such representative. Clarke v. Mathew- son, 12 Pet., 164. The section does not relate to suits in admiralty. The James A. Wright, 10 Blatchf., 160 ; but see The Norway, 1 Ben., 493. In all cases of the death of a party before final judgment the SUPREME COUKT, DISTEICT OP COLUMBIA. 241 proceedings are to be exactly as if the executor or administrator were a voluntary party to the suit. Hatch v. Eustis, 1 Gall., 160. He may be made a party on his own motion without issuing a scire facias ; but he must show that he is executor, and produce his letters, if required, by the adverse party. Wilson v. Codman, 3 Cranoh, 193 ; Griswoldv. Hill, 1 Paine, 483. Where the defendant neither appeared nor was served with process, the suit cannot be revived against his administrator. U. S. v. Fields, 4 Blachf , 326. 4. —Where one of Several Plaintiffs or Defendants Dies.— If there are two or more plaintiffs or defendants, in a suit where the cause of action survives to the surviving plaintiff or against the surviving defendant, and one or more of them dies, the writ or action shall not be thereby abated ; but, such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff against the surviving de- fendant. E. S. U. S., sec. 956. 5. Provisions of the Maryland Act as to Death of Parties. — No action, brought or to be brought, in any court of law in this State, shall abate by the death of either of the parties to such action, but upon the death of any defendant, in a case where action by such death would have abated before this act, the action shall be continued, and the heir, devisee, executor or administrator, of the defendant, as the case may require, or other person interested on the part of the defendant, may ap- pear to such action ; and in case the action be brought to re- cover possession of any lands, tenements or hereditaments, and the proper person to defend doth not appear at the court at which the death is suggested, the plaintiff may issue a summon, re- turnable to the next court, directed to the heir or devisee of the deceased, or tenant in possession, or other proper person to de- fend in such action, as the case may require, or in case the action be brought to recover personal chattels, debt or damages, and the executor, administrator, or other proper person to defend, doth not appear to such action at the court at which the death is suggested, the plaintiff may issue a summon, returnable to the next court, directed to the executor or administrator of the deceased, or other proper person to defend such action, to ap- pear; and upon any summon, issued as aforesaid, being served, the person or persons summoned shall appear to such action, either in proper person or by attorney, and if it shall appear to the court that a summon to appear and defend, taken out as aforesaid, hath been served upon the proper person or per- sons to defend such suit, and that such person or persons ne- 31 242 PEACTICB AND PEOCEDTJEE OF THE gleet or refuse to appear, the court may and shall issue an at tachment of contempt against such person or persons, and com- pel him, her or them, to appear to such suit ; and if any per- son, being summoned as aforesaid, shall refuse or neglect to enter an appearance to such suit by the fourth day of the court next after the court to which such defendant may be summoned to appear, then the court shall, and may, cause the appearance of such person to be entered to such action, and there shall therein be the same proceedings as if such person or persons had voluntarily appeared, and the court may also fine such person for not appearing a sum not exceeding ten pounds, cur- rent money ; and in all cases aforesaid, all proceedings had be- fore the death of the party shall be considered as proceedings in the action, and such further proceedings shall be had as may by the court be judged necessary and pro^jer to bring the cause fairly to trial ; and the court shall have full power and authority, upon just cause being shown, to suffer any pleas put in by the deceased to be withdrawn and other pleas to be put in, and shall have full power and authority to make, and cause to be executed, such rules and orders in the case, and to direct such proceedings therein, as may be j udged proper and necessary to bring the merits of the question between the par- ties fairly to trial; and in all such cases the same judgment shall be given as if the action had been originally commenced against the person or persons appearing or summoned to ap- pear as aforesaid, and the costs accruing before the death shall be taxed as part of the costs in the action ; provided, that no person so summoned to appear shall be burthened with debt, damages or costs, further than property or assets have de- scended or come to his, her or their hands, fromthe deceased ; and if the person or persons so summoned shall die before a trial and judgment had in the case, then there may be similar proceedings to bring the cause to trial and judgment against the person or jiersons claiming or in possession of the prop- erty for which the action is or may be brought, or represent- ing the first deceased, and judgment shall be given and costs taxed as aforesaid, and so toties quoties until a trial and judg- ment shall be had ; and in case the plaintiff or plaintiffs, in any action aforesaid, shall die before the same may be tried and judgment given, and such death would abate the action before this act, the appearance of the heir, devisee, executor or administrator, as the case may require, or other proper per- SXJPEEME COTTET, DISTRICT OF COLUMBIA. 243 son to prosecute such suits, shall be admitted to be entered to the same ; and if the heir, devisee, executor or administrator, as the case may require, or other proper person to prosecute such action, do not appear at the court at which the death shall be suggested, then the defendant or defendants may issue sum- mon, returnable to the next court, to the heir, devisee, execu- tor or administrator of the deceased, as the case may require, or other proper person to prosecute such suit, directed, and upon such summon being served, the person or persons upon whom served shall appsar according to such summoa, and the court shall and may, upon its being made appear to their satis- faction that such summon was duly served, and that the person or persons so summoned are the proper person or persons to prose- cute such suit, issue attachment of contempt to compel an ap- pearance of such person or persons to prosecute such action, and if the person or persons so summoned do not appear to prosecute such action, either in proper person or by attorney, by the fourth day of the court next after the court to which such summon may be returned served, judgment of nonsuit shall be entered, and such judgment, when entered, shall be of the same validity, and have every legal consequence, to all in- tents, purposes and effects, as if the same had been entered against the original plaintiff in the case, and the court may fine such person for not appearing a sum not exceeding ten pounds, current money ; and if the person or persons so sum- moned to prosecute the action aforesaid shall appear to such action at any time before judgment of nonsuit entered as afore- said, all proceedirigs in the action had before the death shall be considered as proceedings in the cause, and such other pro- ceedings shall be had as may by the court be judged necessary and proper to bring the cause fairly to trial ; and the court shall have full power and authority, upon just cause being shown, to suffer any proceeding by the plaintiff or the de- fendant to be corrected or altered, and also shall have full power and authority to make, and cause to be executed, such rules and orders in the case, and to direct such proceedings therein, as may be judged necessary and proper to bring the merits of the question between the parties fairly to trial ; and in all such cases such judgment shall be given as if the action had been originally .brought by the plaintiff or plaintiffs so appearing, or summoned to appear, as aforesaid, and the costs accruing before the death shall be taxed as part of the costs in the 244 PEACTIOE AND PEOCEDUEE OF THE action ; and if the person appearing as aforesaid shall die be- fore trial aud judgment had in the case, the heir, devisee, ex- ecutor or administrator of the person so appearing as afore- said, or the executor or administrator of the deceased, as the case may require, or other proper person to prosecute such suit, may appear, or be compelled to appear as aforesaid, and there shall be such proceeding, judgment and costs taxed as aforesaid, and so toties quoties until there be a trial and judg- ment had ill the case ; and in all cases of death of the plaintiff, after the appearance of the defendant's heir, devisee, executor or administrator, or other proper person to defend as aforesaid, and all cases of death of the defendant after appearance of the plaintiff's heir, devisee, executor, administrator or other proper person to prosecute such suit, shall be taken and con- sidered as within the meaning and provision of this act ; and in case there be no appearance or proceeding by either party in any case aforesaid before the tenth day of the second court after the death shall be suggested, then the action shall be struck off the docket and discontinued. Md. Act, 1785, ch. 80, sec. 1. Note. — Under this act an action is not to be discontinued, because the personal representatives have not been made parties, if, within the time provided by the act, proceedings have been taken to jnake them such. Keyser v. Fendall, 5 Mackey, 47. The most extended and liberal construction is given to the act of 1785, chap. 80, sec. 1, to effect its object. Gist v. Cockey, 7 H. & J., 134. Thus, where an action is brought against an executor or original administrator and pending it he dies, the administrator de bonis non may, under this act, be made a party. Id. So the sum- mons may issue to the executor de son tort to appear and defend the action, there being no legal executor or administrator. Norfolk's Ex'r de son tort v. Gant, 2 H. & J., 435. 6. Executors and Administrators to Conform to the Foregoing Provisions. — ^o personal action shall abate by the death of either party, but executors and administtators shall notice aud conform to the directions of the act of 1785, ch. 80. Md. Act, 1798, ch. 101, sub-ch. 14, sec. 4. 7. Changre of Parties by Death in Actions of EepleTin.— An action of replevin does not abate by death of plaintiff ; his executor or admin- istrator may appear and prosecute it. Fister v. Beall's Administra- tor, 1 H. & J., 31. Where replevin is brought by an executor for property which, when recovered, would be assets in his hands on his death, the administrator de bonis non of his testator is the proper SUPEEME COURT, DISTKIOT OP COLUMBIA. 245 person to make plaintiff to further prosecute the suit. Cole v. Hebb, Adm'r, 7 G. & J., 20. 8. Death of Party to Whose Use Suit is Brought.— Where a person for whose use a suit is brought dies pending suit, his death cannot be the subject of a plea, nor is there any necessity for suggesting his death. The suit goes on as if he were still living, or the use had never been entered. The judgment is in the name of the legal plain- tiff, and will be for the use of whomsoever is entitled to the beneficial interest. State v. Dorsey, 3 G. & J., 75. 9. Death of Party in Actions by or ag'ainst Partners. — In actions by or against partners, and one of them dieS, the action proceeds in the name of the survivor, and it is error to make the administrator of the deceased a party. Keirle v. Shriver, 11 G. & J., 405. At com- mon law, a judgment cannot be obtained where either party has died, if the objection be taken in due time, but if not then made, the judgment concludes all persons from denying the fact of the party's existence at the time of its entry. Trail v. Snouffer, 6 Md., 314. 10. — In Actions of Ejectment. — For]cases under the Act of 1785, in which the action of ejectment will or will not abate by death of parties. Richardson's Lessee v. Parsons, I'H. & J., 253 ; Stevenson v. Hoiyard's Lessee, 3 H. & J., 554. In ejectment plaintiff's lessor died pending suit, and his devisees, claiming individual parts of the land in dispute, were made parties. Dorsey v. Courteney, 3 H. & J., 480. 11. Death of Party in Actions to Recover Realty where Suc- cessor in Interest is an Infant. — In case any action be brought to recover any lands, tenements or hereditaments, or involve the title thereof, and upon the death of either plaintiff or de- fendant as aforesaid the heir or devisee of the deceased, or other person interested in such lands, tenements, or heredita- ments, be an infant under the age of twenty-one years, and it shall so appear to the court, such action shall not be tried dur- ing such minority, unless the guardian, or next friend of such infant, satisfy the court that it will be for the benefit of the in- fant to have such action tried during such minority, but such ac- tion may be continued at the instance and request of the sur- viving party until such infant arrives to the age of twenty-one years, and then such proceedings may be had to bring such action to trial and judgment, according to the nature of the case, as are hereinbefore mentioned, or such surviving party may order the said action to be entered abated, if the court are not satisfied as aforesaid that it ought to be tried during the mi- nority aforesaid. Md. Act, 1785, ch. 80, sec. 2. 246 PEACTICB AND PEOCEDTJEE OF THE CHAPTER XXXVIII. OF SOME MISCELLANEOUS RULES. 1. Approval of bonds. 2. When sur&ty becomes insuffi- cient — Remedy. 3. Members of the bar not to be sureties. 4. Affidavit to accompany plea to scire facias on judgment, etc. 5. Rates to be paid for advertis- ing when done under authori- ty of the court. 6. Rule regulating sales by trus- tees. 7. — Auctioneer's charges. 8. Duty of clerk in filing papers^ 1. Approval of Bonds. — ^In all cases where a bond or under- taking, with surety, is required by law or rule of court to be executed and filed in order to suspend the entry of judgment, or to act as a supersedeas, or to discharge any mechanic's lien, or any property held under any proc&ss of attachment, re- plevin, or any other judicial process, and where such bond, with surety, is required by law or by rule of court to be ap- proved by the court, or by one of the justices or the clerk thereof, such approval shall not be made except upon affidavit of two days' notice of application for such approval to the opposite party in interest ; and without such notice such ap- proval shall not be operative, and such notice shall contain the name and address of the proposed surety. Eule 120. 2. When Surety Becomes Insufficient— Remedy.— "When any surety in any bond or undertaking shall have become insol- vent, the court, in general or special term as the case may be, on being satisfied that the security is insufiScient, may pass an order requiring such further security within a specified time as it may deem proper ; and in default of compliance with said order, such action may be had and such proceedings taken as if such original bond or undertaking had never been filed, or the court may pass such farther order in the premises as justice may require. Eule 122. 3. Members of the Bar not to be Sureties.- No member of the bar, or other officer of the court, shall hereafter be admitted as a surety upon any bond or undertaking required for the performance of any decree or order of the court. Eule 127. SUPREME COtJRT, DISTRICT OF COLUMBIA. 247 4. Affidavit to Accompany Plea to Scire Facias on Judgment, etc. — In cases of scire facias on judgment, and in actions on judgments from a State court or a court of the United States, any plea thereto shall be treated as a nullity unless an affi- davit accompany the plea showing a defence to the action. Bule 121. 5. Rates to be Paid for Advertising when Done under Au- tliority of the Court — Rule 123. — Advertising done under the authority of the court shall be paid for at rates, per square of four lines of agate type, not exceeding the following : It 2t 3t 4t 5t 6t 1 square daily 75 75 75 1 00 1 25 1 25 1 25 1 50 1 50 2 00 .1 75 2 50 2 00 1 square every other day 1 square twice a week 2 75 2w 3w Im 2m 3m 9m 12m 1 square daily 1 square every other day 1 square twice a week... 3 00 2 75 2 25 4 00 3 50 3 00 5 00 4 00 3 50 9 00 6 50 5 50 12 00 7 50 7 00 22 50 15 05 12 00 37 50 27 50 22 50 1 square once a week, 75 cents each insertion. 6. Rules Regulating Sales by Trustees. — Every trustee or other person authorized or directed by the court to advertise prop- erty for sale shall append to the advertisement his name and a reference to his .place of business or residence ; but he shall not enhajace the cost of the advertisement by publishing the name or card of any person employed to cry the sale. At every such sale the trustee or other officer or agent of the court making the sale shall be present, and shall himself in person receive the deposit required in such cases ; and he shall in no case entrust the payment of the advertising and other expenses to the persdta employed to cry the sale. In his report of the sale to the court the trustee or other person making the sale shall state under oath whether he has complied with the provisions of this rule. Eule 124. 248 PRACTICE AND PROOEDUEE OF THE 7. — Auctioneers' Charges. — The compensation of the person employed to cry any sale of real or leasehold estate hereafter made by the authority or direction of the court, shall be one- eighth of one per cent, of the amount for which the property shall sell ; provided that such compensation shall not be less in any case than ten dollars. For an ineffectual effort to sell, such crier may be paid not exceeding five dollars. Such com- pensation shall be paid by the trustee and deducted from his commissions. Eule 125. 8. Duty of Clerk in Filing Papers. — ^It shall hereafter be the duty of the clerk of this court, upon receiving and filing any paper in any cause, either at law or in equity, to note the date of filing the same both upon the back of the paper and on the face thereof, next to the title of the cause ; and such date shall be marked also upon each exhibit annexed or prefixed to such paper, at the head and on the face thereof. "Whenever a transcript of a record of a cause shall be issued by the clerk the copy of each paper entering into said record shall show, at the beginning and on the face thereof, the date of the filing of the same. And the date of the passage of any order or decree included in such transcript shall be noted by the clerk at the head thereof. Eule 126. Note. — No paper is filed unless it has the proper endorsement of tlie clerk ; merely placing it in the court papers is no filing. Amy v. Shelby Co., 1 Flippin, 104. StrPUEME COURT, DISTRICT OP OOLtTMBIA. 249 CHAPTEE XXXIX. JUSTICES OP THE PEACE— JURISDICTION— APPEALS, ETC. I 1 Term and oath of office. % General powers and duties. 3. Eules and forms to be pre- scribed by supreme court. 4. Jurisdiction. ■5. Not to exercise criminal juris- diction. 6. May issue warrants returnable to police court. 7. Justices to keep docket, etc. 8. Liability for failure to do so. "9. Copy of summons to be served on defendant. 10. Non-residents to give security for costs. 11. Original writs. 12. Removal of causes. 13. Witnesses. 14. Trial and judgment. 15. Interest on judgments. 16. Opening the judgment. 17. Renewal of judgments. 18. Parties may demand a trial by jury. 19. Venire. 20. Qualifications of jurors. 21. Talesmen. 22. Oath of jurors. 23. Trial. 24. Constable's oath. 25. Verdict. 26. Judgment and execution. 27. Fieri Facias. 28. E:^ecutions may be levied by marshal. 29. Property subject to execution. 30. Execution upon copy of judg- ment. 81. Plaintiff's receipt. 32 32. Judgments, how made a lien. 33. Stay of execution. 34. How entered. 35. When no stay shall be allowed. 36. Expiration of supersedeas. APPEALS. 37. Debt or demand must exceed five dollars. 38. Undertaking to be given, ex- cept where District of Co- lum.bia is appellant. 39. Provisions of the statute. 40. Within what time such under- taking must be given. 41. Stay of execution without ap- peal. 42. Approval of security. ' 43. Papers to be filed in clerk's office. 44. Certiorari in case of refusal or neglect to file. 45. Cause to be docketed — Sum- moning the appellee. 46. Similar provisions of Rule 109. 47. How cause to be titled on the docket— Rule 111. 48. When appellee fails to appear. 49. Similar provisions of Rule 112. 50. Where appellant neglects to pay marshal's ffee. 51. When appellant fails to prose- cute appeal. 52. Similar provision of the stat- ute. 53. Hearing the appeal. 54. When tried upon merits, how h«ard. 250 PEAOTICE AND PEOCEDUKE OF THE 55. Trial by jury at election of parties. MISCELLANEOUS PROVISIONS. 56. Appeal not prayed to next term, not to be dismissed, unless, etc. Certiorari in cases of concur- rent jurisdiction. Commission of justice void, when. 59. Removal by suprenie court. 60. Dockets to be delivered to clerk, when. 61. Penalty for neglect. 62. Fees, how established. THE ACT OF JUNE 7, 1878. 63. President to appoint fifteen 57, 58, 69. 70. justices of the peace — Term of ofiice. To have same jurisdiction as their predecessors. To close up unfinished busi- ness of their predecessors. Disposition of records, etc., on termination of ofiice. Term of justices in ofBce at time of passage of this act, to end, when. Retiring justices to deposit their records with clerk who may give transcripts thereof. Supreme court to fix and ap- prove bonds of justices of the peace. Repealing clause. 1. Term and Oath of OiSce. — Justices of the peace shall be appointed for the term of three years, [now four, see note,] and shall take an oath for the faithful and impartial discharge of the duties of their ofacc. B. S. D. C, sec. 994. Ifote. — See the act of June 7, 1878, (close of this chapter,) under which justices of the peace now hold their oflices. As the act makes no change in the jurisdiction and powers of the ofiice, except to ex- tend the term to four years and to require a bond of the incumbent, it can have only an historical interest, and for this reason it has been thought better to print it at the end of this chapter rather than to in- sert it here. 2. General Powers and Duties.— They shall have all the pow- ers vested in, and perform all the duties required of, justices of the peace, as individual magistrates, by the laws in force within the District. Id., sec. 995. 3. Rules and Forms to be Prescribed by Supreme Court.— The supreme court of the District shall make and establish rules of practice, and prepare and publish forms of pleadings, for bringing all forms of actions, and the trial thereof, before justices of the peace. Id., sec. 996. 4. Jurisdiction. — Justices of the peace shall have jurisdic- tion in all civil cases where the amount claimed to be due for debt or damages arising out of contracts, express or implied, or damages for wrongs or injuries to persons or property, does not exceed one hundred dollars, except in cases involving the title to real estate, actions to recover damages for assault, or StrPEEME COTJIIT, DISTRICT OF COLTJMBIA. 251 assault and battery, or for malicious prosecution, or actions against justices of the peace or other officers for misconduct in office, or in actions for slander, verbal or written. Id,, sec. 997. Notes. — A creditor may give a credit on his account so as to give jurisdiction to a justice of the peace. Porter v. Rapine, 2 Or. 0. C, 47. But not to give a false credit. Cazenove v. Darrell, 2 Cr. C. C, 444. A justice of the peace may have jurisdiction incidentally, of a mat- ter of which he would not if it were the principal cause of action ; therefore he may have jurisdiction in an action of debt upon a bond in the penalty of |50, conditioned that if a certain bay mare should be proved not to be the property of J, B., the bond should be in fiiU force, otherwise void; and thus collaterally try the title to the mare. Moore v. Waters, 5 Cr. C. C, 283. Where the justices' jurisdiction extended to suits "where the real debt and damages do not exceed the sum of fifty dollars," it was held that if an entire debt of $250 be settled by the debtor's giving his several notes for $50 each, payable at different times, each note is within the jurisdiction of the justice of the peace ; and if all the notes have become payable, he may issue his five separate warrants, and render judgment in each case against the debtor. Moore v. Hough, 2 Cr. C. C, 561. But where interest is due upon any of the notes, they are beyond his jurisdiction. Melburne v. Burton, 2 Cr. C. C, 639. It was formerly held that ajusticeofthe peace had no jurisdiction in cases against an admipistrator. Ritchie, Adm'r, v. Stone, 2 Or. 0. C, 258. Nor against an executor. Foy v. Talbot, 5 Or. 0. 0., 124. The reason given was that under the Maryland Act of 1791, c. 68, the justice cannot ascertain assets and render judgment according to the assets, nor appoint an auditor to ascertain them ; nor render judg- ment for further assets when they shall appear ; but see Ennis v. Holland, 5 Cr. 0. C, 509. See also Adams v. Kincaid, 2 Or. 0. C.,422. But justices of the peace are now by the statute (R. S. D. C, sec. 1006), "to try, hear and determine the matter in controversy between the creditor and debtor, their executors and administrators." Justices of the peace have jurisdiction to issue attachments for rent under the provisions of section 679, R. S. D. 0. Gross v. Gold- smith, 4 Mackey, 126. 5. Not to Exercise Criminal Jurisdiction.— They shall not ex- ercise any jurisdiction over crimes and offences, either for ex- amination to commit or hold to bail, or for final judgment. E. S. D. C, sec. 998. 6. May issue Warrants Returnable to Police Court.— Any jus- tice of the peace may, on complaint under oath or actual view, issue warrants, returnable to the police court, against persons accused of crimes and offences committed in the District, and 252 PKACTICE AND PEOCEDUKE OF THE he shall make a record of his proceedings in every .case, in a book to be kept for that purpose. Id., sec. 999. 7. Justices to Keep Docket, etc. — Justices of the peace shall keep a docket, and make regular entries therein of their pro- ceedings in all cases, and shall furnish a copy of any judg- ment rendered by them, when required by either party to the suit. Id., sec. 1000. 8. Liability for Failure to do so. — If any justiceof the peace shall omit to keep a docket or be guilty of any other negligence or omission, by which the plaintiff, having obtained a judg- ment before such justice, shall lose his debt, the justice shall pay and satisfy the plaintiff the debt, interest, and costs, so lost, to be recovered against the defaulting justice for the amount, together with any interest that may have accrued thereon. Id., sec. 1001. 9. Copy of Summons to be Served on Defendant. — Upon the issue of a summons, to commence a suit, by a justice of the peace, he shall, at the same time, issue a copy thereof, which shall be served upon the party or parties defendant ; and for issuing ,the same the justice shall be entitled to a fee of ten cents for each copy. Eule 116. 10. Non-residents to give Security for Costs. — Non-residents of the District shall not commence suit before any justice of the peace without first giving sufficient security for costs. E. S. D. C, sec. 1002. 11 . Original Writs. — Justices of the peace may issue original writs in civil cases, returnable before themselves. Id., sec. 1003. 12. Removal of Causes. — Any party to such suit, his agent or attorney^ may have the cause removed to the nearest justice upon filing an afiidavit with the justice issuing the writ, on the return-day or day of trial of the action, that he does not believe said justice Vill give him a fair and impartial trial on account of prejudice or other reasonable cause. Id., sec. 1004. 13. Witnesses. — Justices of the peace have power to compel the attendance of witnesses by attachment,- and to punish them by fine not exceeding ten dollars, or by imprisonment not exceeding ten days, for refusing obedience to a summons. Id., sec. 1005. 14. Trial and Judgment. — It shall be lawful for any justice SUPREME COTJET, DISTRICT OF COLUMBIA. 253 of the peace in all cases within his jurisdiction to try, hear, and determine the matter in controversy between the creditor and debtor, their executors and administrators, and upon full hearing of the allegations and evidence of both parties, to give judgment, according to law and the equity and right of the matter. Id., sec. 1006. 15. Interest on Judgments. — Judgments shall bear interest from their date until paid or satisfied. Id., sec. 1007. 16. Opening the Judgment. — Any justice of the peace may, in his discretion, within four days after judgment, open the same, and grant a new trial. Eule 115. 17. Renevt^al of Judgments. — Where a judgment shall have continued for more than one year, and shall not be paid or satisfied, it shall be lawful for the justice before whom the judgment shall have been obtained, or for any other justice of the peace, to revive the same by scire facias, which shall be made returnable on a certain day, not exceeding forty days from the time of issuing the same, to himself, or any other justice of the peace in the District. E. S. D. C, sec. 1008. 18. Parties may Demand a Trial by Jury. — In every action where the sum demanded shall exceed twenty dollars, it shall be lawful for either of the parties to the suit, after issue joined, and before the justice shall proceed to inquire into the merits of the cause, to demand of the justice that such action be tried by a jury. Id., sec. 1009. Tf ote. — In a jury trial before a justice of the peace there is no way of bringing to the court exceptions taken to the rulings of the trial justice upon the trial. Denney v. Queen, 3 Cr. O. C, 217. An appeal will not lie from a judgment in a justice's court founded upon a verdict of a jury. Fitzgerald v. Leisman, 3 Mac A., 6. A justice of the supreme court of the District of Columbia cannot legally authorize a writ of certiorari on a judgment rendered by a justice of the peace upon the verdict of a jury in a civil suit before him. Mcintosh v. Johnson, 3 Mac A., 586. 19. Venire. — Upon such demand the justice shall issue a venire, under his hand and seal, directed to any constable of the District, commanding him to summon twelve jurors, to be and appear before the justice issuing such venire, at such time and place as shall be therein expressed. E. S. D. C, sec. 1010. 20. Qualification of Jurors.— The jurors thus summoned shall possess the qualifications and be subject to the excep- tions provided for jurors bylaw. Id., sec. 1011. 264 PRACTICE AND PEOCEDURE OP THE 21. Talesmen. — If any persons summoned and returned as jurors shall not appear, or shall be challenged and set aside, the justice before whom the cause is to be tried shall direct the constable to summon, and return forthwith, talesmen, so as to make up the number of twelve, after all causes of chal- lenge are disposed of by the justice. Id., sec. 1012. 22. Oath of Jurors. — The twelve persons shall be the jury ■ who shall try the cause, each of whom shall be sworn by the justice, well and truly to try the matter in difference between the parties, and a true verdict to give, according to evidence. Id., sec. 1013. 23. Trial. — The jury being sworn, shall sit together, and hear the proois and allegations of the parties in public. Id., sec. 1014. 24. Constable's Oath. — The justice shall then administer to the constable the following oath: "You do swear, that you will keep this jury together in some private room, without meat or drink, except water ; that you will not suffer any per- son to speak to them, nor will you speak to them yourself unless by order of the justice, until they have agreed on their verdict." Id., sec. 1015. 25. Verdict. — When the jurors have agreed on their verdict, they shall deliver the same publicly to the justice. Id., sec. 1016. 26. Judgment and Execution. — ^The justice shall give judg- ment thereon forthwith, and may issue execution accordingly. Id., sec. 1017. 27. Fieri Facias. — Justices of the peace are authorized to issue writs of execution in all cases in which they are em- powered to render judgment. Id., sec. 1018. 28. Executions may be Levied by Marshal. — The marshal, or his deputies, may execute and levy execution issued by the justices of the peace, for small debts, out of court, when the same are put into their hands for that purpose, and for execut- ing or levying such executions are entitled to the same com- mission, and no more, as allowed to constables in such cases. Id., sec. 912. 29. Property Subject to Execution.— The plaintiff is entitled to have his exeqution against the goods and chattels, lands and tenements, rights and credits of the defendant, subject to SUPREME COURT, DISTRICT OE COLUMBIA. 255 the exemptions mentioned in section seven hundred and ninety-seven, /d!., sec. 1019. 30. Execution upon Copy of Judgment. — Upon a copy of any judgment rendered by a justice of the peace, any other justice of the peace is authorized to issue execution in the same man- ner as executions are issued by the clerk of the supreme court of the District, which shall be returned within twenty days after being issued, to the justice who gave the judgment. Id., sec. 1020. 31. Plaintiff's Receipt. — No return, judgment, or execution, shall be received or recorded as satisfied, by justices of the peace, without the receipt of the plaintiff annexed thereto. Id., sec. 1021. 32. Judgments, How made a Lieui— After judgment for a debt amounting with interest to twenty dollars, exclusive of costs, before a justice of the peace, the judgment-creditor may, when execution is returned "E"o personal property found whereon to levy," file in the" clerk's office of the supreme court of the District a certified copy of such judgment, which shall be docketed in the docket of law causes in said office, in the same manner as appeals from justices are docketed there ; and when so docketed, the force and effect of the judgment shall be the same, as to lien and execution, as if it had been a judgment of the supreme court. Id., sec. 1022. 33. Stay of Execution. — On all judgments rendered by a jus- tice of the peace, except as provided in section ten hundred and twenty-five, stay of execution may be had upon good and sufficient security being entered by a person who may be at the time the owner of sufficient property located in the Dis- trict, above all liabilities and exemptions, to secure the debt, costs, and interest. Id., sec. 1023. 34. How Entered. — In such cases stay of execution shall be entered as follows : For the sum of five dollars, and not exceeding twenty dol- lars, one month ; For all sums over twenty dollars, and not exceeding forty dollars, two months ; For all sums over forty dollars, and not exceeding seventy- five dollars, four months ; For all sums exceeding seventy-five dollars, six months. Id. , sec. 1024. 256 PEACTICE AND PEOCEDXJEE OF THE 35. When no Stay shall be Allowed.— There shall be no stay of execution on any judgment for the wages of a servant or common laborer, nor upon any judgment for a less sum than five dollars ; but in such cases execution may issue immedi- ately, and judgments shall be entered within two days after the trial of the action. Id., sec. 1025. 36. Expiration of Supersedeas.— Any justice of the peace, before whom supersedeas may be taken, or any other justice of the peace, shall, at the request of the plaintiff, or any person authorized by, or on behalf of, the plaintiff, issue execution against the principal debtor and his sureties, or either of them, after the expiration of the time mentioned in the supersedeas. Id., sec. 1026. APPEALS. 37.. Debt or Demand must Exceed Five Dollars.— Where the debt or demand exceeds five dollars, and either the plaintiff or defendant shall think himself aggrieved by the judgment of a justice of the peace, he shall be at liberty to appeal to the next term of the supreme court of the District, and the appeal shall be there heard and determined as provided in section seven hundred and seventy-four to section seven hundred and seventy-nine, inclusive. E. S. D. C, sec. 1027. Note. — An appeal will not lie from a judgment in a justice's court founded upon the verdict of a jury. Fitzgerald v. Leisman, 3 Mao A., 6. But if the justice of the peace had not jurisdiction of the cause, his judgment may be reversed upon appeal, although the cause was tried before him by a jury. Cross v. Blanford, 2 Or. C. C, 677. 38. Undertaking to be given, Except where District of Colum- bia is Appellant. — No appeal, except in cases in which the Dis- trict of Columbia is appellant, shall be allowed from the judg- ment of a justice of the peace, unless the appellant, with suffi- cient surety or sureties, approved by the justice, shall enter into an undertaking to satisfy and pay all intervening damages and costs ai-islng on the appeal. Eule 105. 39. Provisions of the Statute. — No appeal shallbe allowed from a judgment of a justice of the peace, unless the appellant, with sufficient surety, approved by the justice, enters into an under- taking to satisfy and pay all intervening damages and costs arising on the appeal. E. S. D. C, sec. 1028. 40. Within whattime such Undertaking must be given.— Such undertaking shall be entered into and submitted to the justice SUPREME COXTET, DISTRICT OF COLUMBIA. 257 for approval, where the appeal is to operate as a supersedeas, within six days, Sunday excluded ; and when the appeal is not to operate as a supersedeas, within ten days after the rendition of the judgment complained of. And until the completion of said six days, Sunday excluded, no execution shall issue upon any judgment o£ a justice of the peace where an appeal may operate as a supersedeas. And such undertaking if entered into and submitted for ap- proval within the times prescribed, shall be effectual when approved by the justice, although such approval be made after such prescribed times. Eule IOC. Note. — An appeal from a judgment rendered by a justice of the peace will be dismissed where no undertaking was given, as required by rules of court, within ten days after the rendition of the judgment ; and the magistrate has no discretion which will authorize him to allow an appeal after the expiration of the prescribed period, to which he must conform his practice in all cases of appeal. Kirk v. Cole, 3 Mac A., 71. 41. Stay of Execution without Appeal. — When a stay of exe- cution of a judgment of a justice of the peace, without an ap- peal, is desired, the security shall be taken within the time prescribed for entering the undertaking where an appeal is to operate as a supersedeas. Eule 107. 42. Approval of Security. — Where any undertaking or security is to be approved by a justice of the peace, the proceedings shall be similar to those prescribed by Eule 120. Eule 108. 43. Papers to be Filed in Clerk's Office.— When such under- taking has been entered into, the justice shall immediately file the original papers, including a copy of his docket entries, in the office of the clerk of the supreme court of the District. E. S. D. C, sec. 1029. 44. Certiorari in Case of Refusal or Neglect to File.— If any justice of the peace from whose judgment an appeal is prayed shall refuse or neglect to file the papers in a case in the office of the clerk of this court on or before the first day of the term occurring ten days next after the rendition of his judgment, either party may have a certiorari, on application to the court by petition, to command him to certify the papers into court. If such justice shall disregard the certiorari, either party may move the court for process of contempt to enforce obedi- ence to the writ. Eule 104. 45. Cause to be Docketed— Summoning- the Appellee.— In 33 258 PEACTICE AND PEOCEDXJEE OF THE cases of appeal from a justice of the peace, as soon as the ap- pellant shall have made the deposit for costs required by lav, or obtained leave from one of the justices, or from the court, to prosecute his appeal without a deposit, the clerk shall docket the cause, and shall issue a summons for the appellee to appear at the next trial term of the court. E. S. D. C, sec. 774. (See Eule 109.) 46. Similar Provisions of Rule 109.— As soon as the appellant shall have made the deposit for costs required by law, or obtained leave from one of the justices or from the court to prosecute his appeal without a deposit, the clerk shall docket the cause and issue a summons for the appellee to appear at the next trial term of the court. Eule 109. 47. How Cause to be Titled on the Docket— Rule 111.— The cause shall be docketed according to its title before the justice, thus : A. B., Plaintiff, [appellee,] I V. [• At Law. CD., Defendant, [appellant.} ) 48. When Appellee Fails to Appear.- In any case of appeal from the decision of a justice of the laeace, where two sum- monses against the appellee shall be returned non est, or one attachment returned non est, and the appellee shall not ap- pear, the court may proceed to hear and determine the case in the same manner as if the appellee had regularly appeared. E. S. D. C, sec. 777. (See Eule 112.) 49. Similar Provisions of Rule 112. — If the first summons for the appellee be returned " Not to be found," another summons shall be issued, returnable to the special term then next, and if that be returned "Not to be found," and the appellee shall not appear, the case may then be heard and determined in the same manner as if the appellee had regularly appeared. Eule 112. (See sec. 777, E. S. D. C.) 50. Where Appellant Neglects to Pay Marshal's Fee.— If the appellant shall neglect to pay the marshal's fee for serving such summons, then the marshal shall return the summons " Not served because fee not paid," and thereupon, on motion, the court may dismiss said appeal. Eule 109, ^ 2. 51. Where Appellant Fails to Prosecute Appeal. — If theappel- lant fails to prosecute his appeal, by making the deposit or obtaining the leave aforesaid, the appellee may make the SUPREME COURT, DISTRICT OE COLUMBIA. 259 deposit for costs, have the cause docketed, and move for affirmance of the justice's judgment ; or he may have a trial of the cause upon its merits. Eule 110. (See sec. 778, R. S. D. C.) 52. Similar Provision of tlie Statute. — If the appellant fails to prosecute his appeal, the appellee may, upon making the deposit for costs, have the cause docketed, and move for affirmance of the justice's judgment, or he may have a trial of the cause upon its merits. E. S. D. C, sec. 778. 53. Hearing the Appeal. — The supreme court shall in a sum- mary way hear the allegations and proofs of both parties, and determine upon the same according to law and the equity and the right of the matter, at the same term, without further con- tinuance or delay, unless it shall appear to the court that fur- ther time ought to be given to the party applying for the same. E. S. D. C, sec. 775. (See Eule 113.) Note. — The judgment of the special term in cases of appeal from justices of the peace is final. Luchs v. Jones, 1 Mac A., 345. 54. When Tried upon Merits, How Heard.— Every such ap- peal, if tried upon its merits, shall be heard upon the "alle- gations and proofs' ' adduced by both parties, or by the party appearing, and shall be determined " according to law and the equity and right of the matter." Eule 113. (See sec. 775, E. S. D. C.) 55. Trial by Jury at Election of Parties.— Either of the par- ties may demand a trial by jury, or leave the cause to be de- termined by the court, at their election. E: S. D. 0. , sec. 776. MISCELLANEOUS PROVISIONS. 56. Appeal not Prayed to next Term not to be Dismissed, Unless, etc.— No appeal from the judgment of any justice of the peace to the supreme court shall be dismissed, because the same had not been prayed to the term next after the rendition of such judgment, unless the court shall be satisfied that the defendant had notice of such judgment at least ten days before the sitting of court. E. S. D. C, sec. 779. 57. Certiorari in cases of Concurrent Jurisdiction.— When- ever a cause shall be removed from a justice of the peace by writ of certiorari, on the ground of the concurrent jurisdic- tion of this court, the subsequent proceedings in respect to the docketing and trial thereof shall be the same as provided in 260 PEACTICE AND PEOCEDUEE OF THE cases of appeals from justices of the peace. Eule 114. (See Ceetioeaei, p. 77.) 58. Cominission of Justice Void, When. — Upon indictment and conviction of any justice of the peace of incompetency, habitual drunkenness, corruption in office, or of any other ■wilful misconduct in the discharge of his official duties, his commission shall be void, and he shall cease to exercise the office and powers of justice of the peace. E. S. D. C, sec. 1030. 59. Removal by Supreme Court. — The supreme court has power, at a general term, to remove justices of the peace after due notice, and an opportunity to be heard in their defence, and for causes to be assigned in the order of removal. Id., sec. 1031. Note. — The commissioners of the District of Columbia were in- vested with authority, under the second section of the act of June 20, 1874, to remove a justice of the peace from his office. Baker v. Dennison, 3 Mac A., 430. See note, u. 261. 60. Dockets to be Delivered to Clerk, When.— It is made the duty of every justice of the peace, upon his resignation or removal from office, and of his executors or administrators upon the death of any such justice of the peace, forthwith to deliver to the clerk of the supreme court of the District, all dockets which such justice of the peace, so resigning, remov- ing, or dying, may have had. E. S. D. C, sec. 1032. Note.— By section 919 E. S. D. C, the clerk of the supreme com't of the District is directed to "furnish copies of all entries in any docket of justicfes of the peace in his custody, to persons applying therefor who may be entitled to receive them." And by section 920 " such copies shall be furnished in the same manner, and shall have the same effect as if made by the justice of the peace." 61. Penalty for Neglect. — In case of any neglect to comply with the provisions of the preceding section, the justice so neglecting, or his executors or administrators, as the case may be, shall forfeit to the United States the sum of five hundred dollars, to be recovered as other penalties are recovered. E. S. D. C, see. 1033. 62. Fees, How Established.— The supreme court shall fix and determine a bill of fees and costs to be taxed and charged by justices of the peace in all civil suits. Id., sec. 1034. THE ACT OE JUNE 7, 1878. 63. President to appoint Fifteen Justices of the Peace— Term SUPREME COURT, DISTRICT OF COLUMBIA. 261 of Office. — The President of the United States shall nominate and, by and with the advice and consent of the Senate, ap- point fifteen justices of the peace, within and for the District of Columbia. Said justices of the peace shall be assigned as follows : two in the city of Georgetown, one in Tennallytown, one in Brightwood, one in Uuiontown, and ten in the city of Wasliington. Their term of office shall be four years, sub- ject to removal for cause. Act of June 7, 1878, sec. 1, ^y 1. Notes. — The President of the United States has power to remove a justice of the peace, and this court has no power to review his action nor to presume that he acted without cause simply because none is specified in the order of removal; the act of 1863, (sec. 1031, R. S. D. C.,) is not in conflict with such power, but gives this court juris- diction concurrently with the President to make such removals ; but in case of a-removal by the court it must be in accordance with the provisions of section 1031 of the Revised Statutes of the District, viz., "after the notice and an opportunity to be heard in defence and for causes to be assigned." United States v. Oliver, 5 Mackey. , The condition in an official bond of a justice of the peace, that he shall well and faithfully perform the duties of said office, means, so far as the same affects the sureties, that he will discharge the duties of a justice of the peace to the best of his ability. Holtzman v. Rob- inson, 2 Mac A., 520. In an action against the sureties on the offi- cial bond of a justice of the peace, on the ground that the justice issued a writ without authority of law, by virtue of which certain goods were seized and taken away by the constable executing the same, it is necessary to aver in the declaration that the justice knowingly, wilfully, or wrongfully omitted to do what ought to have been done, or that, in doing what he did by way of issuing process, he knowingly, wilfully, or corruptly instituted the proceedings to the injury of the plaintiff. Holtzman v. Robinson, 2 Mac A., 520. 64. To have same Jurisdiction as tlieir Predecessors. — They shall respectively have the jurisdiction, exercise the powers and functions, and perform the duties as now provided by law, for said officers respectively. Act of June 7, 1878, sec. 1, ^ 2. 65. To close up Unfinished Business of their Predecessors. — Said justices of the peace shall be the successors of the justices of the peace who now hold office in said District, and shall proceed in and close up all such unfinished business of their predecessors as may be brought to their attention by any party in interest, who shall present a transcript of the same, as here- inafter provided. And in like manner they shall proceed in and close up all unfinished business of any predecessor in office appointed un- der this act. Id. 262 PEACTIOB AND PROCEDURE OP THE 66. Disposition of Records, etc., on Termination of OflBce. — Upon resignation or the expiration of the term of ofiice, they shall make, certify, and deliver transcripts of any proceeding on their docket to any party in interest, or shall deliver said docket, together with all papers in all unfinished business, to their successors in office, at their option, and account for all moneys in their hands. Upon the death or removal of any justice of the peace ap- pointed under this act, his docket, books, and papers of office shall be delivered to his immediate successor in office. Id. 67. Term of Justices in OflSce at time of Passage of this Act, to End, When. — The term of office of all justices of the peace, now in office within and for the District of Columbia, shall end on the thirtieth day after the approval of this act. Id., sec. 2. 68. Retiring Justices to Deposit thier Records with Clerk, who may give Transcripts Thereof. — They shall issue no process returnable on or after that day, and shall deposit their docket, books, papers, and records pertaining to their oflSce in the office of the clerk of the supreme court of the District of Columbia, who shall on demand of the parties in interest, deliver to them transcripts, duly certified, together with all papers left or filed with them by said parties in said case or proceeding. Id. 69. Supreme Court to fix and approve Bonds of Justices of the Peace. — The supreme court of- the District of Columbia shall have the power to fix the amount and form of the bonds, and approve the same, to be given by said justices of the peace * * * * and make such further regulations as may be necessary to complete the transfer of the existing business from the present justices of the peace to those appointed under this act, and for the return of any writ, execution, or other process by the present justices of the peace to those appointed under this act. * * * * M, sec. 4. 70. Repealing Clause. — All laws and parts of laws incon- sistent with any of the provisions of this act be, and the same are hereby repealed. Id. SUPEEME COXJET, DISTEICT OF COLUMBIA. 263 CHAPTEE XL. CONSTABLES. Renewal of bond. Service of process. Failure to pay over moneys Penalty. Fees and commissions. 1. Supreme court may appoint twenty constables — Term of office, etc. 2. Duties of constables. 3. Oath and bond. 4. Supreme court to fix amount and form of bond, etc. 1. Supreme Court may Appoint Twenty Constables — Term of OlBce, etc.^ — The supreme court of tlie District shall have authority to appoint not exceeding twenty constables, who shall hold office for four years, subject to be removed by said court for cause, upon hearing. And said constables shall be the successors of the constables now holding oflBLce in the said District. Act of June 7, 1878, sec. 3. 2. Duties of Constables. — The duties of constables shall be confined exclusively to the service of civil process and the cjoUection of strictly private debts within the District. E. S. D. C, sec. 1035. 3. Oath and Bond. — Each constable shall, before perform- ing any of the duties of his office, take the oath prescribed for civil officers in the District, and shall enter into a bond to the United States in the sum of five thousand dollars, with security, to be approved by the clerk of the supreme court of the District, conditioned for the faithful performance of the duties of his office, and for the punctual payment of all moneys coming into his hands to the persons entitled to re- ceive the same. E. S. D. C, sec. 1036. Note. — See the section immediately following for some modifica^ tions of the foregoing provision as to the amount and form of bond and by whom to be approved. For oath of office, see section 65, R. S. D. 0. 4. Supreme Court to fix amount and Form of Bond, etc. — The supreme court of the District of Columbia shall have the power to fix the amount and form of the bonds and approve the same to be given by said * * * con- stables, and may remove constables from office for wilful viola- 264 PEACTICE AND PEOCEDUEE OF THE tion of law, or for misconduct, or for incompetency. Act of June 7, 1878, sec. 4. Note. — A constable's official bond is not vacated, or rendered void, by his temporary renioval from office, but covers his official conduct after Ms reinstatement in office as well as before the suspension of his functions. United States v. Bill, 2 Cr. C. C, 518. The sureties in a constable's bond are not liable for money collected by the con- stable without legal process. United States v. Cranston, 3 Cr. C. C, 289, and see Hazel v. Waters, 3 Cr. C. C, 420. 5. Renewal of Bond. — Bacli constable shall renew his bond on the thirtieth day of June, in every alternate year of his continuance in oflBce. E. S. D. C, sec. 1037. [Bepealed. See note. J Note. — The bonds of constables given under, and in pursuance of, the Act of June 7, 1878, are not affected by the Act of March 3, 1863, (R. S. D. C, sec. 1037), requiring the renewal of constable's bonds every two years. The bond given under the Act of 1878, runs dur- ing the term of the constable, to wit, four years, while under the Act of 1863, the bond ran indefinitely until renewal or until the offi- cer was removed. The District v. Van Horn, 3 Mackey, 388. 6. Service of Process. — Constables are authorized to serve warrants and levy executions issued by justices of the peace, and make return thereof to such justices, in the same manner, and be liable to the same penalties, as the marshal or his deputies. E. S. D. C, sec. 1038. 7. Failure to pay over Moneys — Penalty.— Where a constable shall have received money, on any judgment or execution, not exceeding twenty dollars, and shall fail to pay the same to the plaintiff, or his agent, when demanded, or shall fail to return any execution within the time limited for such return, it shall be lawful for the supreme court of the District, on motion, five days' previous notice being given to the constable, to enter up judgment, instanter, against him for the amount so received, with interest and costs. E. S. D. C, sec. 1039. 8. Fees and Commissions. — The fees of constables shall be fixed and determined by the supreme court, and a commission of five per cent, shall be allowed each constable for every sum on executions by him levied. E. S. D. C, sec. 1040. PART II. CRIMINAL PROCEDURE, INCLUDING THE STATUTES RELATING TO THE POLICE COURT. isroTE. Ilie general term has prescribed no rules of practice ex- pressly for tlie criminal court. Such of the general rules of practice, however, as are applicable to criminal procedure, are recognized and enforced, and these together with such of the general Federal statutes and those relating to the Dis- trict as will be found in the succeeding pages, may be said to constitute its written rules. As was said by the court in tJnited States v. JSTye, 4 Fed. Rep., 890: "There being no general statute of the TJnited States prescribing criminal pro- cedure, its courts are governed, in the administration of criminal law, by the general common law procedure. They look for guidance to the common law, to ascertain the modes of practice and of procedure, the rights of defendants and of the government, the duty of the court and of the jury." SUPREME CDTJET, DISTRICT OF COLUMBIA. 267 CRIimAL PROCEDURE. CHAPTEE I. THE CRIMINAL COURT ; JURISDICTION OF, AND TERMS. 1. The criminal court a branch of the supreme court. 2. Jurisdiction. 3. To be held, by whom, 4. Jurisdiction to cause arrests, hold to bail, etc. 5. Terms of the criminal court. 6. Justice holding circuit court may hold sittings for trial of criminal cases. 7. When criminal court may sit . as a circuit court. 1. The Criminal Court a Branch of the Supreme Court.— The several * * * terms of the criminal courts authorized by law are declared to be, severally, terms of the supreme court of the District of Columbia ; and the judgments, decrees, sen- tences, orders, proceedings, and acts of the * h; * crimi- nal courts rendered, made, or had, are and shall be deemed judgments, decrees, sentences, orders, proceedings, and acts of the supreme court ; but nothing contained in this section shall affect the right of appeal as provided by law. E. S. D. C, sec. 753. (Act of June 21, 1870, 16 Stat., 160.) Note. — The criminal court of this District was originally a sepa- rate and distinct court. Ex parte Bradley, 7 Wall., 364. But the act of June, 1870, (16 Stat., 160,) changed its independent character, and declared that its judgments, decrees, and orders should be deemed the judgments, decrees, and orders of the supreme court of the Dis- trict. Bradley v. Fisher, 13 Wall., 385, 2. Jurisdiction. — The criminal court of tfie District of Co- lumbia shall have jurisdiction of all crimes and misdemeanors committed in said District, not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or information. Act of June 22, 1874, sec. 1. (18 Stat., 193.) 3. To be Held, by Whom.— Said court [the supreme court of the District of Columbia] shall have cognizance of all crimes and offences committed within said District * * =i= and any one of the justices may hold a criminal court for the trial of all crimes and offences arising within the District. E. S. D. C, sec. 763, as amended by act of February 27, 1877. (Eich. Suppl., 279 J 19 Stat, 253.) 268 PRACTICE AND PEOCEDUEE OF THE \ Notes. — Its criminal jurisdiction is of "all crimes and offences com- mitted within the District," whether against an act of Congress ap- plicable to the whole United States, or against an act confined in its operation to this District. United States v. Williams, 4 Cr. O. C, 377. And the only laws that are or can be of force here are the laws of the United States. The laws of Maryland which were adopted by act of Congress do not operate here propria vigore, but solely by virtue of the act which adopted them in mass, instead of enacting them toti- dem verbis. Such of those laws only can be considered as adopted as were applicable to the circumstances of the District. United States V. Williams, 4 Cr. C. C, 390. All the common law jurisdiction to punish crime possessed by the courts of Maryland, passed, as to this District, to the United States by virtue of the cession. The United States, therefore, has a criminal common law jurisdiction in this District, and this court has a criminal common law jurisdiction. United States v. Watkins, 3 "Cr. 0. C, 441. Its original jurisdiction, however, is only of " capital or otherwise infamous crimes " — that is to say, of offences punishable by death or imprisonment in the peni- tentiary. Of all other offences, section 1049, R. S. D. C, gives to the police court "original and exclusive jurisdiction." Except that an appeal lies by the defendant to the criminal court. See sec. 3, p. 273, post 4. Jurisdiction to Cause Arrests, Hold to Bail, etc. — The pro- visions of the thirty-third section of the judiciary act of sev- enteen hundred and eighty-nine shall apply to courts created by act of Congress in the District of Columbia. Act of June 22, 1874, sec. 2. (18 Stat,,. 193 ; Eich. SuppL, 85.) Note. — The provisions here referred to are incorporated into sec- tions 727, 879, 1014, 1015, 1016, R. S. U. S., each of which will be found under their appropriate headings in this volume. 5. Terms of the Criminal Court. — The special term held as the criminal court shall be holden on the first Monday in March, the third Monday in June, and the first Monday in December, in each year. E. S. D. C, sec. 759. 6. Justice Holding Circuit Court may hold Sittings for Trial of Criminal Cases. — Any justice of the supreme court of the District of Columbia holding a term of the circuit court for said District (whenever the condition of the business in such circuit court and in the criminal court, in the opinion of the general term of said supreme court, may render it proper and expedient so to do), may hold sittings for the trial of such criminal cases depending in the criminal court as the justice presiding therein may assign for that purpose, and may em- ploy the petit juries drawn for such circuit court for such trials; and such sittings may be held during the regular SXJPEEME COURT, DISTRICT OF COLUMBIA. 269 sessions of the criminal court, or, in the recess thereof, during the term of such circuit court ; and the business done at such sittings shall be recorded in the minutes of the criminal court. Act of June 8, 1880, sec. 1. (21 Stat., 166; Eich. SuppL, 538.) 7. When Criminal Court may sit as a Circuit Court. — Any jus- tice of the supreme comrt of the District of Columbia, holding a criminal term for said District, may, when not engaged in the proper business of the criminal term, hold sittings of the circuit court, and employ the petit juries drawn for the crimi- nal term in the trial of such cases depending in said circuit court as the justice presiding therein may assign to him for that purpose ; and the business done at such sittings shall be re- corded in the minutes of the circuit court. Act of June 23, 1874. (18 Stat., 204; Eich. SuppL, 92.) CHAPTEE II. LIMITATIONS. 4. Crimes against the customs and revenue laws. 1. Capital offences. 2. Offences not capital. 3. Fleeing from justice. 1. Capital Offences.— No person shall be prosecuted, tried, or punished for treason or other capital offence, wilful murder excepted, unless the indictment is foxmd within three years next after such treason or capital offence is done or commit- ted. E. S. U. S., sec. 1043. 2. Offences not Capital.— No person shall be prosecuted, tried, or punished for any offence, not capital, except as pro- vided in section one thousand and forty-six, unless the indict- ment is found or the information is instituted within three years next after such offence shall have been committed. E. S. U.. S. (2d ed.), sec. 1044. Notes.— These sections apply to the District of Columbia. United States V. Slocum, 1 Or. C. C, 485 ; United States v. Porter, 2 Cr. C. C, 60 ; United States v. Watkins, 3 Cr. C. C, 441. The finding of an informal presentment is not the finding or instituting of the indict- ment, so as to take the case out of the statute. United States v. Slocum, 1 Cr. C. C, 485. The statute applies to prosecutions under statutes passed since its adoption, and is general in its nature. Adams v. Woods, 2 Cr. 0, C, 336 ; United States v. Mayo, 1 Gall., 270 PRACTICE AND PEOCEDTJEE OE THE 397 ; United States v. Brown, 2 Low., 267 ; Johnson v. United States, 3 McLean, 89; United States v. Ballard, 3 McLean, 469; United States V. Shorey, 9 Int. Rev. Rec, 202 ; United States v. Dustin, 15 Int. Rev. Rec, 30. The statute runs from the date of the offence to the finding of the indictment or filing of information on which the defendant is tried, even though a prior indictment may have been found within the three years and nol. pros, entered. United States V. Ballard, 3 McLean, 469. The statute may be taken advan- tage of under the plea of not guilty. United States v. Cook, 17 Wall., 168. But not upon demurrer. United States v. Cook, 17 Wall., 168.. See, however. United States v. Watkins, 3 Cr. C. C, 441 ; United States v. White, 5 Or. O. C, 368. If the offence, though laid within the limitation, be proved to have been committed beyond the time, the bar of the statute may be avoided by showing that the defendant fled from justice. United States v. Watkins, 3 Cr. C. C, 441 ; United States v. White, 5 Cr. O. C, 368. The limitation applies, though it was not known that the defendant was the person who committed the crime. United States v. White, 5 Cr. C. C, 368. And although he committed the crime on the high seas and did not return until the three years had expired. United States v. Brown, 2 Low., 267. This defence may not be set up in arrest of judgment. United States v. White, 5 Cr. C. C, 73 ; United States v. Cook, 17. Wall., 168 ; United States v. Watkins, 3 Cr. C. C, 441. If a public officer embezzles public funds the offence is within the provisions of this section. United States v. Cook, 17 Wall., 168 ; but an offence arising under the revenue laws is not. United States v. Hirsh, 100 U. S., 33. Fraudulently procuring one's name to be en- tered on the pension roll is a commission of the offence every time the pension is claimed. United States v. Coggin, 3 Fed. Rep., 492. If pensioner makes demand of an agent for his pension more than two years before the prosecution this statute bars. United States V. Irvine, 98 U. S., 450. If a statute punishes that as a misdemeanor, which at common law was a felony, the limitation of a prosecution under that statute is that of misdemeanor, and not that of felony. United States v. White, 5 Cr., 73. 3. Fleeing from Justice. — Nothing in the two preceding sec- tions shall extend to any person fleeing from justice. E. S. U. S., sec. 1045. Notes. — Fleeing from justice means leaving one's home or abode to avoid detection for some offence against the United States. United States V. O'Brien, 3 Dill., 381. The defendant- is not entitled to the benefit of the limitation, if within the statutory period he left any place or concealed himself, to avoid detection or punishment for any offence ; but it is not necessary that the United States should have known that he was the offender. United States v. White, 5 Cr. C. C, 73. Where the defendant puts in the defence of limitations under the general issue, the government may give in evidence the fact that the defendant fled from j ustice, and, therefore, was not entitled to the bene- DISTEICT OF COLUMBIA. 271 fit of the limitation. United States v. White, 5 Or. C. C, 73. But flee- ing from justice does not necessarily import the fleeing from some prosecution begun. United States v. Smith, 4 Day C. C, 121. After flight an open and public return more than three years before the indictment bars the prosecution. United States v. White, 5 Or. 0. C, 38. Concealing one's self within the jurisdiction is as much flee- ing from justice as leaving the jurisdiction. United States v. White, 5 Or. C. C, 38. If one flees to avoid punishment the statute is no bar, though he did not flee to avoid process. United States v. White, 5 Or. 0. C, 38; United States v. O'Brien, 3 Dill., 381. Continuing on a cruise after commission of the crime, is not a fleeing from justice. United States v. Brown, 2 Low, 287. Accused persons may avail themselves of the statute of limitations by special plea, or by evi- dence under the general issue, but courts of justice, if the statute contains exceptions, will not quash an indictment because it appears upon its face that it was not found within the period prescribed in the limitation, as such a proceeding would deprive the prosecution of the right to reply or give evidence, as the case may be, that the defendant fled from justice and was within the exception. Nor is it admitted that any different rule would apply in the case, even if the statute of limitations did not contain any exceptions, as time is not the essence of the offence [embezzling public money], and also for the reason that the effect of the demurrer, if sustained, would be to preclude the prosecutor from giving evidence, as he would have a right to do under the general issue, to show that the offence was committed within two years next before the indictment was found and filed. United States v. Cook, 17 Wall., 168. 4. Crimes against the Customs and Reyenue Laws. — There are several Federal statutes prescribing limitations upon the prosecu- tion of these offences, but these prosecutions are so rare when com- pared with the number of criminal cases being constantly tried in this court that it is not deemed necessary to do more than refer to them. They will be found as follows : Of crimes arising under the revenue or slave trade laws, R. S. U. S., sec. 1046. Suits or prosecu- tions for penalties or forfeitures, R. S. U. S., sec. 1047. For com- mencing civil or criminal proceedings, how affected by the rebellion, R. S. U. 8., sec. 1048. Indictment for seducing female passengers during voyage, etc., within what time to be found, R. S. U. S., sec. 5351. Crimes under internal revenue laws, Act of July 5, 1884, 23 Stat., 122. 272 PEACTIOE AND PROCEDURE OF THE CHAPTEE III. THE AEREST. 1. Constitutional provision. 2. Justices of the peace may- issue warrants in certain cases. 3. Power of judge of police court to issue warrants, etc. ABEESTS BY THE POLICE FORCE. 4. To have common law powers of constables. 5. May execute warrants with- out any backing or endorse- ment thereof. 6. Arresting without warrant. 7. Authority to arrest in cases of suspected felony. 8. Authority tp arrest and search in special cases. Penalty for neglecting to make arrests. 9, 14. 15. 16. 17, 10. Duty of private detectives making arrests. AKBESTS ON WABBANTS ISSUED BY ANY JUDGE OB UNITED STATES COMMISSIONEB. 11. By whom the warrant may be issued. 12. Issuing the warrant. 13. Executing the warrant — Pre- liminary examination. The commitment. The mittimus. When several indictments are against same person one writ suflBcient. Copy of writ to be jailer's authority. 18. Bescue of prisoners^Penalty. 19. Allowing prisoners to escape — Penalty. 1. Constitutional Provision. — The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Con- stitution United States, Art. IV of Amendments. Notes.— The genius of our liberties holds in abhorrence all irregular inroads upon the dwelling-houses and persons of the citizen, and with a wise jealousy regards them as sacred, except when assailed in the established and allowed forms of municipal law. Luther v. JBorden, 7 How., 67. The intent of this amendment is to restrict and limit the power of the United States and to place it under strong prohibitions and checks. Luther v. Borden, 7 How., 66 ; Smith v. Maryland, 18 How., 71 ; Green v. Biddle, 8 Wheat., 88 ; Payne v. Baldwin, 3 Smedes & Marsh, 673 ; Ex parte Milligan, 4 Wall., 120, The amendment applies to criminal cases only. Ex parte Header. 1 Abb. United States, 317; Murray v. Hoboken, etc., Co., 18 How., 272 . Thus, provisions for searches and seizures to aid in the collection of the revenue are not repugnant to this clause. Ex parte Meador, supra; Stanwood v. Green, 2 Abb. United States, 184; Matter of Piatt, 7 Ben., 261 ; 19 Int. Rev. Rec, 132 ; United States v. DistUlery, StlPREME COUKT, DISTRICT OP COLUMBIA. 273 e Biss., 483. Ex parte Strouse, 1 Sawy., 605. The amendment ap- plies only to those who are parties to the constitution. Common- Wealth V. Griffith, 19 Mass., 11. It has no application to proceed- ings for the recovery of debts. Ex parte Burford, 3 Or., 448 ; Murray V. Hoboken, etc., Co., 18 How., 272 ; Ex parte Milligan, 4 Wall., 119. 2. Justices of the Peace may Issue Warrants in Certain Cases.' — Any justice of the peace may, on complaint under oath or actual view, issue warrants, returnable to the police court, against persons accused of crimes and offences com- mitted in the District, and he shall make a record of his pro- ceedings in every case, in a book to be kept for that purpose. E. S. D. C, sec. 999. 3. iPoWer of Judgre of the Police Court to Issue Warrants, etc.— By section 1049, R. S. D. C, the police court of the District of Columbia is given "original and exclusive jurisdiction of all offences against the United States committed in the District, not deemed capital or otherwise infamous crimes, that is' to say, of all simple assaults and batteries, and all other misdemeanors not punishable by imprison- ment in the penitentiary ; and of all offences against the laws and ordinances in the District in force therein," and they can only be tried in the criminal court on appeal. United States v. Brady, 1 Mackey, 588. The arrest in cases within the original and exclusive jurisdiction of the police court is made by the ofttcers of the police force, and the prdcess must be directed to the major of police, who must execute the same and make return thereof. R. S. D. C, sec. 1065. The judge of the police court, however, has power to issue warrants for the arrest of, and to examine and commit or hold to bail, for trial in the criminal court, persons accused of capital or other infamous crimes. R. S. D. C, sec. 1051. To this extent he has all the powers of a United States commissioner, and is governed by the same rules of procedure. But in these cases the process issues to the United States marshal, "except in cases of emergency, when it may be directed to the major of police." R. S. D. C, sec. 1066. ARRESTS BY THE POLICE I^ORCB. 4. To have Common Law Powers of Constables.— The mem bers of the board of police, and of the police force, shall possess in every part of the District all the common law and statutory powers of constables, except for the service of civil process and for the collection of strictly private debts, in which designation fines imposed for the breach of the ordi- nances in force in the District, shall not be included. E. S. D. C, sec. 394. Kote.— The statutory powers of constables in the District are con- ■flned "exclusively to the service of civil process, and the collection of strictly private debts within the District." R. S. D. C, sec. 1035, 35 274 PEACTICE AND PEOCEDITEE OF THE 5. May Execute Warrants without any Backing or Endorse-- ment thereof. — Any warrant for search or arrest, issued by any magistrate of the District, may be executed in any part of the District by any member of the police force, without any backing or endorsement of the warrant, and according to the terms thereof ; and all provisions of law in relation to bail in the District shall apply to this chapter. E. S. D. C, sec. 395, 6. Arresting without Warrant. — The several members of the police force, including the commissioners of police, shall have power and authority to immediately arrest, without warrant, and to take into custody any person who shall com- mit, or threaten or attempt to commit, in the ijresence of such member, or within his view, any breach of the peace or offence directly prohibited by act of Congress, or by any law or ordi- nance in force in the District, but such member of the police force shall immediately, and without delay, upon such arrest convey in person such offender before the proper court, that he may be dealt with according to law. E. S. D. C, sec. 397. Notes. — An officer has no right to arrest without a warrant after the offence has been committed, in any case where the punishment attached to the offence is only a fine or imprisonment in the jail of the District, or both. The common law rule distinguishing between felonies and misdemeanors in making such arrests should no longer be recognized. Bright v. Patton, 5 Mackey. No one has the right to cause the arrest of another as an experiment, for the purpose of finding out who committed a particular offence. Johnston v. Eb- berts, 6 Sawy., 538. The right of an ofllcer charged with a warrant of arrest for crime, to kill the offender, if the latter threatens and endangers the officer's life, explained in a charge to the jury. United States v. Rice, 1 Hughes, 560. 7. Authority to Arrest in Cases of Suspected Felony.— The major of police and the lieutenants of police, having just cause to suspect that any felony has been, or is being, or is about to be, committed within any building, or on board of any ship, boat, or vessel within the said District, may enter upon the same at all hours of day or night, to take all necessary measures for the effectual prevention or detection of all felo- nies, and may take then and there into custody all peraons sus- pected of being concerned in such felonies, and also may take charge of all property which he or they shall have then and there just cause to suspect has been stolen. E. S. D. C, sec. 398. 8. Authority to Search and Arrest in Special Cases.— If any StrPEEME COTJET, DISTRICT OP COLUMBTA. 275 member of the police force, or if any two or more house-liolders shall report in writing, under his or their signature, to the major of the police that there are good grounds, stating the same, for believing any house, room, or premises within the police district to be kept or used for any of the following pur- poses, namely ; First. As a common gaming house, common gaming room, or common gaming premises, for therein playing for wagers of money at any game of chance ; or. Second. As a bawdy house, or as a hotise of prostitution, or for purposes of prostitution ; or, Third. For lewd and obscene public amusement or enter- tainment; or. Fourth. For the deposit or sale of lottery-tickets or lottery- policies, it shall be lawful for the major of police to authorize any member or members of the police force to enter the same, who shall forthwith arrest all persons there found offending against law, and seize all implements of gaming, or lottery- tickets, or lottery-policies, and convey any person so arrested before the proper court, and bring the articles so seized to the office of the board of police. E. S. D. C, sec. 402. 9. Penalty for Neglecting to Make Arrests.— If any member of the police force shall neglect making any arrest for an of- fence against the laws of the United States committed in his presence, he shall be deemed guilty of a misdemeanor and shall be punishable by imprisonment in the District jail or peniten- tiary not exceeding two years, or by a fine not exceeding five hundred dollars. E. S. D. C, sec. 400. 10. Duty of Private Detectives making Arrests. — It shall be the duty of every person prosecuting the business of a pri- vate detective, who may arrest a person for crime, to bring the person arrested, with all evidence of the alleged crime, includ- ing property or money which may have become evidence, immediately to the office of the major of police, or to the pro- per court, where the ease shall undergo an examination. E. S. D. C, sec. 429. ARRESTS ON WARRANTS ISSUED BY ANY JUDGE OR UNITED STATES COMMISSIONER. 11. By Whom the Warrant may be Issued. — For any crime against the United States, the offender may, by any justice or 276 PRACTICE AND- PEOCEDITRE OF THE judge of the United States, or by any commissioner of a circuit court to take bail * * * be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence. * * * E. S. U. S., sec. 1014. >'^ote. — By Act of June 22, 1874 (18 Stat., 193), this section is made to apply to courts created by Act of Congress in the District of Columbia. See sec. 4, chapter I. 12. Issuing' the Warrant. — The commissioner may issue his war- rant whenever a complaint on oath is made before him by the dis- trict attorney or any person having personal knowledge of the fact that an offence has been committed against the United States. United States V. Skinner, 2 Wheel. Cr. Cas., 232. But mere belief is not suf- ficient. United States v. Turlaud, 20 Fed. Rep., 621. The complain- ant must have personal knowledge of the commission of the offence. United States v. Burr, 2 Wheel. Cr. C, 573 ; In Re Commissioners, 3 Woods, 502. But a court may issue a warrant upon probable cause supported by oath. United States v. Bollman, 1 Cr. C. C, 373. A certified copy of an information filed for an offence against the United States, without copies of some oath or affirmation to facts showing probable cause to believe the defendant guilty, does not authorize issuing a warrant of arrest. United States v. Shephard, 1 Abb. U. S. Rep., 431. If the signature of the magistrate is in pencil the war- rant is void. United States v. Thompson, 2 Or. O. C, 409. The war- rant of the commissioner should' issue in the name of the United States, be directed to the marshal and made returnable before him- self or some other proper officer designated in the warrant. It must state the name and general character Of the offence or offences, the name (or if that be unknown, that fact should be stated and the party described) of the party to be arrested, and, as near as may be, the time and place of the alleged offence. Ex parte Burford, 3 Cr., 447. It is not necessary that the offence shall have been committed in the district of the commissioner issuing the warrant. Anon., 1 Woods, 422. 13. Executing the Warrant — Preliminary Examination.— The United States district attorney has no authority to order the marshal not to execute a warrant issued by a commissioner. United States V. Scoggins, 3 Woods, 529. But a magistrate is not generally bound to investigate charges known to the district attorney, and which the latter declines to prosecute. United States v. Mackenzie, 1 N. Y. Leg. Obs., 227. A commitment for examination should not exceed twenty-four hours, unless special cause is shown, or at the request of the accused. United States v. Worms, 4 Blatchf., 332. It is not law- ful to arrest a person in one district, for an alleged offence against the laws of the United States, and remove him to another district for examination. The offender, upon being arrested, is entitled to be taken before the proper oflEicer of the district in which the arrest is SUPEEME COUET, DISTEICT OF COLUMBIA. 277 made for examination ; and if probable cause is not shown, or if (the case being bailable) he gives bail, he is entitled to be discharged. It is only after a commitment upon the results of such an examina- tion, that an order (by the district judge) can be made to remove him to the district in which the trial is to be had. United States v. Shephai^d, 1 Abb. United States Rep., 431 ; United States v. Haskins, 3 Sawy., 262 ; United States v. White, 25 Fed. Rep., 716. The com- missioner, as an examining and committing magistrate, is bound to hear all complaints of the United States in his district, to cause the offender to be arrested, to examine into the matter charged, to sum- mon witnesses for the government and for the accused ; and to com- mit for trial or to discharge from arrest according as the evidence tends or fails to support the accusation. United States v. Martin, 17 Fed. Rep., 160. For the faithful discharge of his duty in these particulars he alone is accountable. He has no divided responsibility with any other officer of the government ; nor is he subject to any other's control ; the district attorney may appear to attend to the presentation of evidence, as counsel for the government, but he can- not dismiss the proceedings. United States v. Schuman, 2 Abb. Or. C, 523. The accused may at the hearing be represented by coun- sel. United States v. BoUman, 1 Or. O. C, 373. And witnesses for the accused present at the commission of the offence may be examined to explain what is said by the witnesses for the prosecution. United States V. BoUman, 1 Or. C. O., 373 ; United States v. White, 2 Wash. O. C, 29. But evidence cannot be offered to impeach the character of a witness for the prosecution. United States v. Walker, 6 Pitts. L. J., 37. And they aire not generally examined on an application to bind the accused over to answer a criminal charge. Id. U. The Commitment. — Upon the examination of one accused of crime, the court should not require that proof which would be neces- sary to convict.the person to be committed on a trial in chief; nor that which should absolutely convince the mind of the guilt of the accused ; but should require that probable cause be shown ; by which is meant a case made out of proof, famishing good reason to believe that the crime alleged has been committed by the person charged With having committed it. The foundation of the proceeding must be a probable cause to believe there is guilt. 1 Burr's Trial, 4. See also In re Martin, 5 Blachf., 303; In re Van Campen, 2 Ben., 419; United States v. Lumsden, 1 Bond, 5 ; United States v. Bollman, 1 Or. 0. 0., 373. Proof of the confession of the defendant that he com- mitted the offence charged is sufficient ground to warrant a commit- ment. United States v. Bloomgart, 2 Ben., 356. 15. The Mittimus.— The warrant of commitment must be made under seal, and show on its face that the accused was committed in default of bail, or on sufficient or probable cause, supported by oath, and it must fix the time for imprisonment. Ex parte Sprout, 1 Or. I C. C, 424; Ex parte Burford, Id., 276; Ex parte Bennett, 2 Or. 0. C, 612 ; United States v. Brown, 4 Or. 0. 0., 333 ; Ex parte Williams, 278 PRACTICE AND PEOCEDXJKB OF THE 4 Or. C. C, 343. If the mittimus is written on the back of the warrant it is not sufficient unless it refer to the offence charged therein or charged separately. United States v. Brown, 4 Cr. C. C, 333. 16. When several Indictments are against same Person, one Writ Sufficient. — When two or more charges are made, or two or more indictments are found against any person, only one writ or warrant shall be necessary to commit him for trial ; and it shall be sufficient to state in the writ the name or general character of the offences, or to refer to them only in very general terms. E. S. U. S., sec. 1027. 17. Copy of Writ to be Jailer's Authority. — Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant, or mittimus, a copy thereof shall be delivered to such sheriff or jailer, as his authority to hold the prisoner, and the original writ, warrant, or mittimus shall be returned to the proper court or officer, with the officer's return thereon. E. S. U. S., sec. 1028. Notes. — For the statutory provisions as to search warrants, in aid of revenue oflBcers suspecting a fraud upon the revenue, see sections 3066 and 3462, R. S. U. S. Owner of any registered trade mark sus- pecting the existence of counterfeit dies, etc., thereof may have search warrant. See section 7 of Act of Aug. 14, 1876, 19 Stat., 142. For statutory provisions as to the service of warrants, process, etc., see page 12, "The Marshal," and also "Service of Process," p. 83. 18. Rescue of Prisoners— Penalty. — Every person who, by force, sets at liberty or rescues any person who, before convic- tion, stands committed, for any capital crime against the United States, or who by force sets at liberty or rescues any person committed for or convicted of any offence other than capital, shall be fined not more than five hundred dollars, and imprisoned not more than one year. R. S. U. S., sec. 5401. 19. Allowing Prisoner to Escape — Penalty. — Whenever any marshal, deputy marshal, ministerial officer, or other person, has in his custody any prisoner by virtue of process issued under the laws of the United States by any court judge, or commissioner, and such marshal, deputy marshal, ministerial officer, or other person, voluntarily suffers such prisoner to escape, he shall be fined not more than two thousand dollars, or imjirisoned for a term not more than two years, or both. E. S. U. S., sec. 5409. SUPREME COURT, DISTRICT OF COLUMBIA. 279 CHAPTEE IV. BAIL. 1. Excessive bail not to be re- quired. 2. Who may take bail. 3. Bail in cases not capital. 4. — In capital cases. 5. Judge of the police court may take bail. 6. The recognizance. 7. Forfeiting the recognizance. 8. When and by whom penalty of recognizances may be re- mitted. \ 9. Surrender of accused persons by their bail. 10. Additional bail to be given in certain cases. 11. Liability of principal to surety who has paid the forfeiture. 12. Procuring false bail penalty for. 1. Excessive Bail not to be Required. — Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unu- sual punishments inflicted. Const. U.S., Art. VIII of Amend. Note. — In a case clearly bailable by law, to require larger bail than the prisoner can give, is in effect to refuse bail. United States v. Lawrence, 4 Or. O. C, 518. The discretion of the magistrate, in taking bail in a criminal case, is to be guided by the compound con- sideration of the ability of the prisoner to give bail, the atrocity of the offence, and the punishment to be inflicted should the prisoner be convicted. United States v. Lawrence, 4 Cr. C. C, 518. And see the foregoing case for some remarks of Chief Judge Cranch as to the considerations which should move a judge in fixing the amount of baU. 2. Who may take Bail.— For any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of the circuit court to take bail, * * * be arrested and imprisoned, or hailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence * * *. E. S. U. S., sec. 1014. Note. — Made applicable to the courts of the District. See note to Sec. II, Chap. IIL By section 395, R. S. D. C, "all provisions of law in relation to bail in the District" are made to apply to arrests by the police force of the District. Justices of the peace are prohibited from taking bail in criminal cases. Sec. 998, R. S. D. C. A court possessing the power to bail prisoners not committed by itself may award a writ of habeas corpus for the exercise of that power. Ex parte BoUman, 4 Gr., 75. 280 PEACTICE AND PEOCEDXTEE OF THE 3. Bail in cases not Capital.— Bail shall be admitted upon all arrests in criminal cases where the offence is not punishable by death ; and in such cases it may be taken by any of the persons authorized by the preceding section [E. S. U. S. , sec. 1014, rnpra] to arrest and imprison offenders. E, S. U. S., sec. 10 L5. Sotes. — This section does not apply to extradition cases, for a per- son arrested under an extradition treaty cannot be admitted to bail. In re Kaine, 10 N. Y. Leg. Obs., 257. Money cannot be taken in lieu of bail. United States v . Case, 8 Blatchf , 250. Although a party has forfeited his right to bail by absconding, yet he may be let to bail if there will be a delay in the trial. United States v. Lee, 6 Phila., 96, But he cannot demand it as a matter of right. Id. 4. — In Capital Cases. — Bail may be admitted upon all ar- rests in criminal cases where the punishment may be death ; but in such cases it shall be taken only by the supreme court or a circuit court, or by a justice of the supreme court, a cir- cuit judge, or a judge of a district court, who shall exercise their discretion therein, having regard to the nature and cir- cumstance of the offence, and of the evidence, and to the usages of law. E. S. U. S., sec. 1016. Notes. — Bail may be admitted in case of indictment for treason. Burr's Trial, 310. But the circumstances favoring the application must be very strong. United States v. Stewart, 2 Dall., 343. The prisoner is not to be let to bail as matter of right, and the court should not bail him unless it appear upon all the facts, that letting to bail will, in all reasonable probability, secure his forth- coming. Where the probability of conviction is so strong as to warrant the belief that the prisoner would by flight, and at the ex- pense of any mere pecuniary forfeiture, seek to evade trial and punishment, he should not be bailed. 1 Bish. Grim. Procedure, sec. 251, note 2. If the prisoner is sick, and his disease is such that con- finement must be injurious and may be fatal, he may be admitted to bail. United States v. Jones, 3 Wash. 0. C, 224, 5. Judge of the Police Court may take Bail.— The judge of the police coart may examine and commit, or hold to bail, in • all offences, whether cognizable in the police court or in the supreme court of the District. E. S. D. 0. , sec. 1051. 6. The Recogrnizance. — A clerk may take the acknowledgment, and justify the obligors to a bail bond when required by the court so to do. United States v. Evans, 2 Fed. Rep., 147. A recognizance good as a common law bond will be good as a statutory bond. Id. But it must set forth an act that is made an offence under the laws of the United States, or the sureties will not be bound. United States v. Hand, 6 McLean, 274. But the particulars need not be set out^ as in SUPREME COURT, DISTRICT OF COLUMBIA. 281 an indictment. United States v. Dennis, 1 Bond, 103. A recogni- zance is valid, if the magistrate certify the acknowledgment of the parties thereto, although the latter do not sign it. United States v. Pickett, 1 Bond, 123. But the signature of a person to the recogni- zance on a subsequent day does not make ■ him a party to it if his name does not appear in the body of the instrument. Id. A single recognizance for a total amount is void where separate recognizances are required. United States v. Goldstein, 1 Dill., 43. 7. Forfeiting the Recogniisance — Liability of Sureties. — To save his recognizance the accused must appear on the first day of the term. United States v. Hodgkin, 1 Or. O. C, 510. A recognizance to appear in court from day to day, to answer to a certain indictment, and not to depart without the leave of the court, is not discharged by the quashing of that indictment, but remains in force until the defend- ant has leave from the court to depart, and if a new indictment be found, he and his bail are bound for his appearance to answer such new indictment. UnitedStates v. White, 5 Or. O. C, 368. It is essen- tial to a breach of the condition of a recognizance that the party who is to appear should be solemnly called before his default is entered. United States v. Rundlett, 2 Curt., 41. If the accused forfeit his recognizance a motion in arrest of judgment will not be heard till he appears and submits to the jurisdiction of the court. United States V. Askins, 4 Or. 0. C, 98 ; United States v. Erskine, Id., 199. Where a recognizance provides for the personal appearance of defendant at the next regular term of the court and at any subsequent term thereafter, the latter clause is construed to mean that the party shall appear at any subsequent term which may follow in regular succes- sion in the cou.rse of business of the court, and not any distant future term to which either party might be disposed to postpone the trial without reference to any intervening term, and his sureties cannot be held bound for his appearance under such a stipulation. Reese v. United States, 9 Wall., 13. So a stipulation to postpone the trial un- til after the final disposition of other cases discharges the sureties. Id. Any change in the contract made by the principal without assent of sureties discharges them, although the change be to their advantage ; in this respect the rights and liabilities of sureties on a recognizance are similar to those of sureties on ordinary bonds. Reese v. United States, 9 Wall., 13. Their liability is limited to the precise terms of the contract. Id. Thus consent of the govern- ment that defendant may depart from the United States, and re- main abroad an indefinite period, without concurrence or knowl- edge of the sureties, discharges them. Id. The fact that the sureties are indemnified can have no effect to increase their legal liability. Taylor v. Taintor, 16 Wall., 366. The sureties are exon- erated only where the performance of the condition is rendered impossible by the act of God, the act of the obligee, or the act of law. Taylor v. Taintor, 16 Wall., 366. But death of the principal after default will not exonerate the sureties. United States v. Van Possen, 1 Dill., 406. Nor will they be exonerated if after the instru- 36 282 PRACTICE AND PEOCEDXJEE OP THE ment is executed the principal is imprisoned in another jurisdiction for the violation of the criminal law thereof. Taylor v. Taintor, 16 Wall., 366. 8. When and by whom Penalty of Recognizances may be Re- mitted. — When any recpgnizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is for- feited by a breach of the condition thereof, such court may, in its discretion, remit thewholeor a partof the penalty, whenever it appears to the court that there has been no wilful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced. E. S. U. S., sec. 1020. The President of the United States has power to grant re- missions of the forfeitures of all recognizances acknowledged and taken before any court, judge, justice of the peace, or other magistrate within the District, either in the course of any criminal prosecution, or for surety of the peace. E. S. D. C, sec. 844. Ifotes. — The court may discharge the forfeiture upon the accused appearing at the succeeding term and showing good cause why the conditions of the recognizance were not complied with. United States V. Feely, 1 Brock. Marsh., 255 ; United States v. Duncan, 10 Pittsb. L. J., 41. But see United States v. Cookendorfer, 5 Or. C. C, 113, where it was held that after the term at which a recognizance was forfeited the court could not remit the forfeiture, but the President of the United States could, under the act of June 17, 1812. E. S. D. C, 844, snpra. Forfeiture may be remitted after judgment rendered and execution issued. United States v. Duncan, 4 "West. C. Monthly, 425, or at any time during term at which forfeiture was taken. United States V. Borger, 20 Fed. Eep., 500. But the penalty of a forfeited recognizance will not be remitted upon the ground that the party when called was in custody of a State ofllcer on a criminal charge. United States v. Strieker, 12 Blatchf , 389. If the trial for a misde- meanor proceeds after the recognizance has been forfeited, and the defendant is acquitted, the forfeiture may be set aside. United States V. Mercer, Deady, 502. Payment by the bail, though it discharges the bail, does not discharge the obligation of the principal to appear in court. That obligation still remains, and the principal may at any time be retaken and brought into court. United States v. Ryder, 110 U. S., 729. 9. Surrender of Accused Persons by their Bail. — Any party charged with a criminal offence and admitted to bail, may, in vacation, be arrested by his bail, and delivered to the marshal or his deputy, before any judge or other officer having power to commit for such offence ; and at the request of such bail, SUPEEME COURT, DISTEICT OF CXJLUMBIA. 283 the judge or other of&cer shall recommit the party so arrested to the custody of the marshal, and indorse on the recognizance, or certified copy thereof, the discharge and exoneratur of such bail ; and the party so committed shall therefrom be held in custody until discharged by due course of law. E. S. U. S., sec. 1018. Notes. — By a recognizance of bail in a criminal action, the princi- pal is, in the theory of the law, committed to the custody of the sure- ties as to jailers of his own choosing ; not that he is subjected, or can be subjected, by them to constant imprisonment, but that he is so far placed in their power that they may at any time arrest him upon the recognizance and surrender him to the court, and, to the extent ne- cessary to accomplish this, may restrain him of his liberty. Beese v. United States, 9 Wall., 13. This power of arrest can only be exercised, however, within the limits of the United States. Id. 10. Additional Bail to be given in Certain Cases. — When proof is made to any j udge of the United States, or other magistrate having authority to commit on criminal charges as aforesaid, that a person previously admitted to bail on any such charge is about to abscond, and that his bail is insufficient, the judge or magistrate shall require such person to give better security, or, for default thereof, cause him to be committed to prison ; and an order for his arrest may be indorsed on the former com- mitment, or a new warrant therefor may be issued, by such judge or magistrate, setting forth the cause thereof. E. S. U. S., sec. 1019. 11. Liability of Principal to Surety who has Paid the Forfeiture.— Although this subject belongs more properly to the civil court, a few notes may not be without value here. The supreme court has held that where a recognizance in a criminal case is forfeited and paid by the bail, they cannot sue the principal thereon for money paid to his own use or on account, for it was paid on their own account and for their own neglect. An express contract to indemnify the bail in a criminal case may be sustained, but no such contract is implied by law. United States v. Ryder, 110 U. S., 729. In the same case it was held that while bail in a criminal case are entitled to subrogation to the means of enforcing the performance of the thing which the re- cognizance of bail is intended to secure the performance of, they are not entitled to be subrogated to the peculiar remedies which the United States may have for collecting the penalty, and that, consequently, section 3468 of the Bevised Statutes of the United States, which pro- vides that when a surety has paid the United States the money due upon a bond, he shall have the like priority for the recovery and re- , ceipt of the moneys out of the estate and effects of such insolvent or deceased principal as is secured to the United States, does not embrace 284 PRACTICE AND PEOCEDUEE OF THE _ recognizances in criminal cases, and does not apply to bail therein. 12. Procuring False Bail— Penalty for.— Every person who feloniously steals, takes away, alters, falsifies, or otherwise avoids any record, writ, process, or other proceeding, in any court of the United States, by means whereof any judgment is reversed, made void, or does not take effect, and every person who acknowledges, or procures to be acknowledged, in any such court, any recognizance, bail, or judgment, in the name of any other person not privy or consenting to the same, shall be fined not more than five thousand dollars or be imprisoned at hard labor not more than seven years ; but this provision shall not extend to the acknowledgment of any judgment by an attorney, duly admitted for any person against whom any such judgment is had or given. E. S. U. S., sec. 5394. CHAPTER V. THE GRAND AND PETIT JURIES. 6. Discharge of grand juries. 7. Mixed juries. 8. Challenges. 9. When defendant exceeds his challenges. 10. Corrupting or intimidating jurors — Penalty . 1. Drawing jurors. 2. Who to constitute the grand, and who the petit jury. 3. Writs of venire, how issued and served. 4. Foreman of grand jury. 5. Special oath as to duelling to be administered to grand jury. 1. Drawing Jurors. — At least ten days before the commence- ment of each term held as * * * the criminal court * * * the clerk shall publicly break the seal of the jury-box and pro- ceed to draw therefrom the names of so many persons as are required. E. S. D. C, sec. 855. Note. — Only such statutory provisions as to juries as are expressly applicable to the criminal court are given in this chapter. The reader will find on page 151 of this volume, all the statutory provisions in force in this District upon the subject of juries generally, and also numerous notes of decisions as applicable alike to criminal as to civil procedure. As to the effect of mere irregularities in the manner of drawing jurors for the Pederal courts, see United States v. Ambrose, 3 Fed. Eep., 283. See note to sec. 9, p. 256. SXJPEEME COUET, DISTEICT OF COLUMBIA. 285 2. Who to Constitute the Grand and who the Petit Jury.— =ic * * The tweaty-three persons whose names shall be first drawn shall constitute the grand jury, and the twenty-six per- sons whose names shall be next drawn shall constitute the petit jury for that term. E. S. D. C, sec. 856. 3. Writs of Venire, How Issued and Served. — Writs of ve- nire facias, when directed, by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy ; or, in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as may be specially a^apointed for that purpose by the court, who shall administer to him an oath that he will truly and impartially serve and return the writ. E. S. U. S., sec. 803. 4. Foreman of Grand Jury. — From the persons summoned 'and accepted as grand jurors, the court shall appoint the fore- man, who shall have power to administer oaths and afiirmations to witnesses appearing before the grand jury. E. S. U. S., sec. 809. Note. — At least twelve grand jurors must concur in all indictments and presentments. See section 1021, B. S. U. S., post. The law pre- sumes that when the grand jury find an indictment, they find it upon the sanction of the necessary - facts and under the restrictions and within the purview of the oath they have taken ; it is not necessary, therefore, that it should appear of record that the indict- ment was found upon testimony duly sworn. United States v. Mur- phy, Mac A. & Mack., 375. 5. Special Oath as to Duelling to be Administered to Grand Jury. — In addition to the oath now prescribed by law to be administered to the grand jury in the District, they shall be sworn faithfully and impartially to inquire into and true pre- sentment make of all offences against the laws prohibiting duelling. E. S. D. C, sec. 840. 6. Discharge of Grand Juries.— The circuit and district courts, the district courts of the Territories, and the supreme court of the District of Columbia, may discharge their grand juries whenever they deem a continuance of the sessions of such juries unnecessary. E. S. U. S., sec. 811. 7. Mixed Juries.— A mixed jury in a particular case is not essential to the equal protection of the laws. Any colored man is entitled that, in the selection of jurors to pass upon his life, liberty or pro- perty, there shall be no exclusion of his race, and no discrimination against them because of his color ; but that is a different thing from 286 PRACTICE AND PKOOEDUEE OF THE a right to have the jury composed in part of colored men. Virginia V. Rives, 100 United States, 313. 8. Challenges. — When the offence charged is treason or a capital offence, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to three peremptory challenges ; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges ; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all chal- lenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers. E. S. U. S., sec. 819. Note. — This statute is in force in this District and supercedes the act of February, 1867. United States v. Dunn, 3 Mackey, 151. 9. When Defendant Exceeds his Challenges.— If, in the trial of a capital offence, the party indicted peremptorily chal- lenges jurors above the number allowed him by law, such ex- cess of challenges shall be disallowed by court, and the cause shall proceed for trial in the same manner as if they had not been made. E. S. U. S., sec. 1031. Ifote. — As to challenges generally, see page 157. It is no ground for a new trial that the justice trying the cause erroneously ruled certain pjersons competent as jurors if it appear that they did not sit on the jury, and that the defence in challenging them did not ex- haust their peremptory challenges, but had others to spare when the jury was completed. United States v. Neverson, 1 Mackey, 152. Section 872, E. S. D. C, renders any person over the age of sixty-five incompetent to sit as a juror,, and a verdict of conviction in a crimi- nal case will/be set aside when one of the jurors, knowing of his in- competency as to age fraudulently concealed the fact when inquired of by the court upon this subject, it appearing that neither defend- ant nor his consul knew of the jurors' incempetency until after the trial. United States v. Angney, 5 Mackey. At the trial of an in- dictment twelve of the regular jurors were impanelled in another cause, and were out consulting upon their verdict. Defendant claimed the right, before impanelling commenced, to have the whole array present and subject to his challenge. The court ruled against the pointy and the jury was completed from the other jurors and talesmen. On appeal the ruling was sustained. United States v. Bowen, 3 Mac A., 64. An objection to the qualification of grand jurors or to the mode of summoning or impanelling them, must be made by a motion to quash or by a plea in abatement, before plead- SUPREME COURT, DISTRICT OP COLUMBIA. 287 ing in bar. United States v. Gale, 109 U. S., 65. By pleading not guilty to an indictment, and going to trial without any objection to the mode of selecting the grand jury, any objection thereto is waived. United States v. Gale, 109 U. S., 65. 10. Corrupting or Intimidating Jurors — Penalty. — Every per- son who, corruptly, or by threats or force, or by threatening letters, or any threatening communications, endeavors to in- fluence, intimidate, or impede any grand or petit juror of any court of the United States in the discharge of his duty, or who corruptly, or by threats or force, or by threatening letters, or any threatening communications, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice therein, shall be punishable by a fine of not more than one thousand dollars, or by imprison- ment not more than one year, or by both such fine and im- prisonment. E. S. U. S., sec. 5404. Every person who attempts to influence the action or deci- sion of any grand or petit juror upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any letter or any communication, in print or writing, in relation to such issue or matter, without the order previously obtained of the court before which the juror is summoned, shall be punishable by a fine of not more than one thousand dollars, or by imprisonment not more than six months, or by both such fine and imprisonment. E. S. TJ. S., sec. 5405. PEACTICB AND PKOCEDXTEE OF THE CHAPTER VI. WITNESSES IN CRIMINAL OASES. 1. Subpoena, form of, attendance under. 2. Subpoenas to run into any district. 3. Witnesses for defendant in criminal trials. 4. Where parties are unable to pay fees of witnesses. 5. Recognizance of witnesses. 6. Detained witnesses to be pro- vided with suitable accom- modations. 7. Recognizance of witnesses may be required at any time on application of district attorney. 8. Defendants made competent witnesses. 9. Accused or convicted persons competent and compellable to testify in certain cases. 10. Persons convicted of perjury incompetent witnesses. 11. — So of subornation of perjury. 12. Testimony of witnesses before Congress not to be used against them in criminal pro- ceedings. 13. Pleadings, disclosures, etc., of a party or witness not to be 14. 16. 17. proceedings. Defendants in capital cases to have compulsory process for witnesses. 15. District attorney and assist- ants may administer oaths to witnesses in criminal cases. No writ necessary to bring witness from jail. Corruptly influencing or in- timidatibg witnesses — Pen- alty. COMMISSIONS FOE TAKING TESTI- MONY IN CRIMINAL CASES. 18. Defendants may take testi- mony by commission. 19. Who may be commissioners. 20. What commission must state. 21. Notice to District attorney. 22. Contents of notice. 23. Service of notice and copy. 24. Cross-interrogatories. 25. Commission. 26. Duties of commissioner. 27. Exhibits. 28. Certificate and return. 29. No deposition to be excluded for unimportant deviations from foregoing directions. 30. Court may establish further rules. used against him in criminal 1. Snbpcena, Form of, Attendance Under. — Witnesses wlio are required to attend any term of a circuit or district court on the part of the United States, shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney ; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or dis- trict attorney. E. S. U. S., sec. 877. StrPEEME COTTRT, DISTEICT OF COLUMBIA. 289 Note.— The provisions of this section apply to this court, and a subpoena which does not comply with the form prescribed is void. In re Spencer, Mac A. & Mack., 433. As in the previous chapter so in this, the reader will find only such provisions as are made expressly applicable to the criminal courts. Upon the subject of witnesses generally he is referred to page 147, et. seq. 2. Subpoenas to Run into any District. — Subpoenas for wit- nesses who are required to attend a court of the United States may run into any other district. * * * E. S. U. S., sec. 876. Note. — This statute applies to this District. In re Spencer, Mac A. & Mack., 433. 3. Witnesses for Defendant in Criminal Trials. — In all criminal trials the supreme court, or the judge trying the case, may allow such number of witnesses on behalf of the defend- ant as may appear necessary ; the fees thereof, with the costs of service, to be paid in the same manner as government wit- nesses are paid. E. S. D. C, sec. 839. Note. — This section wa,s enforced in United States v. Guiteau, 1 Mackey, "585, and was held not in conflict with the Act of 1846 (R. S. U. S., sec. 878). The learned judge (Cox) at the same time expressed some doubt whether the latter act is in force in this Dis- trict. It is, however, here given for purposes of comparison. 4. Where Parties are Unable to Pay Fees of Witnesses. — Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose evidence is material to his defence ; that he cannot safely go to trial without them ; what he expects to prove by each of them ; that they are within the district in which the court is held, or within one hundred miles of the place of trial ; and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the court iu term, or any judge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid. In such case the costs incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in be- half of the United States. E. S. U. S., sec. 878. 5. Recognizance of Witnesses.— Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offence against the United States may, at the hearing of any such charge, require of any witness 37 290 PEACTIOE AND PEOCEDUEE OF THE produced against the prisoner, on pain of imprisonment, a re- cognizance, with or without sureties, in his discretion, for his apiDearance to testify in the case. And where the crime or offence is charged to have been committed on the high seas, or elsewhere within the admiralty and maritime jurisdiction of the United States, he may, in his discretion, require a like recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused, whose testi- mony in his opinion is important, and is in danger of being otherwise lost. E. S. U. S., sec. 879. 6. Detained Witnesses to be Provided with Suitable Accom- modations. — The board of police shall iDrovide suitable accom- modations within the ^ District for the detention of witnesses who are unable to furnish security for their appearance in criminal proceedings, and such accommodations shall be in premises other than those employed for the confinement of per- sons charged with crime, fraud, or disorderly conduct ; and it shall be the duty of all magistrates in committing witnesses to have regard to the rules and regulations of the board of police in reference to their detention. E. S. D. C, sec. 401. 7. Recognizance of Witnesses may be Required at any time on Application of District Attorney. — Any judge of the United States, on the application of a district attorney, and on being satisfied by proof that the testimony of any person is com- petent and will be necessary on the trial of any criminal pro- ceeding in which the United States are parties or are inter- ested, may compel such person to give recognizance, with or without sureties, at his discretion, to appear to testify therein ; and, for that purpose, may issue a warrant against such person, under his hand, with or without seal, directed to the marshal or other oiflcer authorized to execute process in behalf of the United States, to arrest and bring before him such person. If the person so arrested neglects or refuses to give recogni- zance in the manner required, the judge may issue a warrant of commitment against him, and the officer shall convey him to the prison mentioned therein. And the said person shall remain in confinement until he is removed to the court for the purpose of giving his testimony, or until he gives the recog- nizance required by said judge. E. S. U. S., sec. 881. 8. Defendants made Competent Witnesses. — In the trial of all indictments, informations, complaints and other proceedings STJPEBME COURT, DISTEIOT OF COLUMBIA. ' 291 against persons charged witli the commission of crimes, offences and misdemeanors in the United States courts, Territorial courts, and courts-martial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request, but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him. Act of March 16, 1878; 20 Stats., 30; Eich Suppl., 312. 9. Accused or Convicted Persons Competent and Compellable to Testify in Certain Cases. — Every person accused or convicted of obtaining by false pretences any goods or chattels, money, bank note, promissory note, or any other instrument in writing, for the payment or delivery of money or other valuable thing, or of keeping a faro bank or gaming table, or of violating the laws relating to duelling, shall be a competent witness against every other person offending in the same transaction, and may be compelled to appear and give evidence in the same manner as other persons ; but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. E. S. D. C, sec. 878. 10. Persons Convicted of Perjury Incompetent Witnesses. — Every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any writ- ten testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor, not more than five years ; and shall, moreover, thereafter be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed. E. S. U. S., sec. 5392. 11. — So of Subornation of Perjury.— Every person who pro- cures another to commit any perjury is guilty of subornation of perjury, and punishable as in the preceding section pre- scribed. E. S. U. S., sec. 5393. 12. Testimony of Witnesses before Congress not to be used against them in Criminal Proceedings.— No testimony given by a witness before either Housej or before any committee of 292 PEACTICB AND PROCEDURE OF THE either House of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an of&cial paper or record produced by him is not within the said privilege. E. S. U. S., sec. 859. 13. Pleadings, Disclosures, etc., of a Party or Witness not to be used against liini in Criminal Proceedings.— N'o pleading of a party, nor any discovery of evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any man- ner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the en- forcement of any ijenalty or forfeiture : Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testi- fying as aforesaid. E. S U. S., sec. 860. Note.— Under this section it has been held that witnesses in United States courts are no longer privileged from answering questions tending' to criminate them. United States v. Brown, 1 Sawy., 531. It is a question, however, if this ruling could apply to the District of Columbia, since section 877 of the Revised Statues of the District enacts that nothing in our evidence act "shall render any person compellable to answer any question tending to criminate himself." See United Statesv. McCarthy, 18Fed. Rep., 87 ; United Statesv. Distillery, 6 Biss., 483. The books and papers of a party taken from him are competent evidence aginst him. United States v. Myers, 1 Hughes, 533 ; United States V. Hughes, 12 Blatch., 553. But he cannot be required to pro- duce the books and papers which will subject him to the penalty. Johnson v. Donaldson, 3 Fed. Rep., 22. Questions that would ren- der character of witness infamous, or which merely tend to degrade and are not material to the issue, witness is not obliged to answer. United States v. Craig, 4 Wash., 729 ; United States v. Dickerson, 2 McLean, 325 ; United States v. Miller, 2 Cr. 0. C, 247 ; Sanderson's Case, 2 Cr. C. C, 638 ; See Id., 501. 14. Defendants in Capital Cases to have Compulsory Process for Witnesses. — Every person who is indicted of treason or other capital crime * * * * shall have the like process of the court to compel his witnesses to appear at his trial as is usually granted to compel witnesses to appear in behalf of the prosecution. E. S. U. S., sec. lt)34. Ifote.^ — The provision of the constitution which secures to the accused in criminal prosecutions the right to have compulsory pro- cess for obtaining witnesses in his favor does not authorize the issu- ing of such process to ambassadors, who by public law, or consuls, SUPEEME COTJET, DISTEICT OF COLUMBIA. 293 »■ who by express treaty, are not amenable to the process of the courts. In re Dillon, 7 Sawy., 561. 15. District Attorney and Assistants may Administer Oaths to Witnesses in Criminal Cases. — The district attorney, and every assistant or deputy duly appointed by him, is empower- ed to administer oaths or affirmations to witnesses in criminal cases, and in all cases where a justice of the peace is author- ized to do so ; and if any person to whom such oath or affirma- tion shall be administered shall wilfully and falsely swear or affirm touching any matter or thing material to the point in question whereto he shall be examined, he shall be deemed guilty of perjury, and upon conviction thereof shall be sen- tenced to suffer imprisonment and labor in the penitentiary, for the first offence for a period of not less than two nor more than ten years, and for the second offence for not less than five nor more than fifteen years. B. S. D. C, sec. 905. 16. No Writ Necessary to bring Witness from Jail. — Ifo writ is necessary to bring into court any jDrisouer or person in cus- tody, or for remanding from the court into custody ; but the same shall be done on the order of the court or district attor- ney, for which no fees shall be charged by the clerk or mar- shal.- E. S. U. S., sec. 1030. 17. Corruptly Influencing or Intimidating Witnesses — Penalty. — Every person who corruptly, or by threats or force, endeavors to influence, intimidate, or impede any witness, or officer in any court of the United States, in the discharge of his duty, or corruptly, or by threats or force, obstructs or im- pedes, or endeavors to obstruct or impede, the due administra- tion of justice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three months, or boti. E. S. U. S., sec. 5399. See also sec- tion 5406. COMMISSIONS FOR TAKING TESTIMONY IN CRIMINAL CASES. 18. Defendants may take Testimony by Commission.— Any defendant in a criminal case, either after preliminary examination, indictment,' or information, may examine wit- nesses on commission in the manner prescribed by the thir- teen succeeding sections. B. S. D. C, sec. 881. 19. Who may be Commissioners.— A defendant wishing to take the deposition of a witness residing more than one hun- 294 PRACTICE AND PEOCEDUEE OP THE » dred miles from the city of Washington may select any of the following officers as a commissioner to take such deposition, either by the name of oflBice of such officer, or by his individual name and official style : First. The clerk or judge of any court of record. Second. Any notary public. Third. Any consul of the United States. E. S. D. C, sec. 882. 20. What Commission must State.— The name of the court of which such constituted commissioner is clerk or judge and the name of the State and county, or if without the United States the name of the State and town, or city, in which such notary or consul resides must be stated in the notice and in the commission. E._ S. D. C, sec. 883. 21. Notice to District Attorney.— Five days' notice must be given by a defendant, or his attorney, of the time when a ■ commission will be sued out of the office of the cleric of the supreme court of the District for taking the deposition of a witness. E. S. D. C, sec. 884. 22. Contents of Notice. — ^The notice must give the name of the witness and be accompanied with a copy of the interro- gatories to be asked such witness. E. S. D. C, sec. 885. 23. Service of Notice and Copy.— The notice and copy of interrogatories may be served and returned in the same man- ner and by the same officers or persons as provided for the service and return of a summons or subpoena in civil actions within the District. R. S. D. C, sec. 886. 24. Ci'oss-interrogatories. — At or before the time fixed in the notice, the district attorney may file cross-interrogatories ,- but if he fail to so do, the clerk shall file the following : First. Are all your statements in the foregoing answers made from your personal knowledge ; and if not, do your answers show what are made from your personal knowledge and what from information, and the source of that information ? If not, now show what is from information, and give its source. Second. State everything you know concerning this case favorable to either the government or the defendant. E. S. D. C, sec. 887. 25. Commission. — The commission shall issue in the name of the supreme court, and under its seal, and must be signed by StrPEEME COURT, DISTRICT OF COLUMBIA. 295 the clerk and need contain nothing but the authority con- ferred upon the commissioner and instructions to guide him, a statement of the cause in which the testimonj' is to be used, and a copy of all the interrogatories filed appended. E. S. D. C, sec. 888. 26. Duties of Comraissioiier. — The person before whom any of the depositions are taken must cause the interrogatories appended to the commission to be written out, and the answers thereto to be inserted immediately underneath the respective questions ; the whole, when completed, being read over by or to the witness, must be by him subscribed and sworn to in the usual manner. E. S. D. C, sec. 889. 27. Exhibits. — All exhibits produced before the person tak- ing the deposition, or proved or referred to by any witness, or correct copies thereof, must be appended to the depositions, and returned with them, unless sufficient reasons be shown for not so doing. E. S. D. C, sec. 890. 28. Certificate and Return. — The person taking the deposi- tion shall attach his certificate thereto, stating that it was sub- scribed and sworn to by the deponent at the time and place therein mentioned. The whole, including the commission and interrogatories, must then be sealed up and returned to the clerk of the supreme court of the District, by mail, unless the defendant and the district attorney agree upon some other mode ; and, when received by the clerk, he shall oj)eu the package and place the deposition on file in his office. E. S. D. C, sec. 891. 29. No Deposition to be Excluded for Unimportant Devia- tions from foregoing Directions. — Unimportant deviations from any of the directions contained in the preceding sections shall not cause the deposition to be excluded where no substantial prejudice could be wrought to th,e government by such devia- tion. E. S. D.Csec. 892. 30. Court may Establish further Rules. — The court may establish further rules for taking depositions and all other acts connected therewith, subject to the regulations contained in the thirteen preceding sections. E. S. D. C, sec. 893. 296 PRACTICE AND PEOCEDXJRE OF THE CHAPTEE V. INDICTMENTS— PRESENTMENTS— INFORMATIONS. 1 . Infamous crimes to be prosecu- cuted only by presentment or indictment. 2. What are infamous crimes. 3. All indictments to run in name of United States — Conclusion of 4. All indictments and present- ments to be concurred in by at least twelve grand jurors. 5. Charges which may be joined in one indictment shall be so joined. 6. What offences may be joined in one indictment. 7. What offences may not be joined. 8. Repugnant counts. 9. Indictment not to be deemed insufficient for defect of form only. 10. Indictments and informations cannot be amended. 11. Indictment for perjury ; aver- ments; statutory provision. 12. — for subornation of perjury- Similar provisions. 13. — for peijury before a court- martial. 14. Presentments. 15. Informations. 1. Infamous Crimes to be Prosecuted only by Presentment or In- dictment. — No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval for- ces, or in the militia, when in actual service in time of war or ac- tual danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *. Constitutional Amendment, Art. V. 2. What are Infamous Crimes. — Infamous crimes and misdemeanors are, in the meaning of section 1049 of the Revised Statutes of the District of Columbia, such offences as are punishable with imprison- ment in the penitentiary. Cox, J., in United States v. Brady, 1 Mackey, 588. And their prosecution cannot be instituted by informa- tion. It must be by indictment in the criminal court. Id. To make a penalty infamous, it must pronounce against the offender a degradation from his civil rights, and in the absence of such forfei- ture the crime is not legally infamous unless it is so expressly pro- nounced. United States v. Cross, 1 Mc A., 149. The words "infar mous crime" are descriptive of an offence that subjects the person to infamous punishment, or prevents his being a witness. United States V. Sheppard, 1 Abb. U. S., 431 ; United States v. Maxwell, 3 Dill., 275; United States v. Waller, 1 Sawy, 701. Misdemeanors cannot be brought wjthin the term "infamous." United States v. SUPREME COURT, DISTRICT OF COLUMBIA. 297 Elbert, 1 Cent. L. J., 205. A crime punishable by imprisonment for a term of years at hard labor is an infamous crime within the above provision of the Constitution, for which a person cannot be held to answer in a Federal court otherwise than on presentment or indict- ment of a grand jury. Ex parte "Wilson, 114 U. S., 417; Mackin v. United States, 117 U. S., 348. For an elaborate consideration of what is an "infamous" crime, with a full review of all the authorities, see United States v. Wynn, 3 McCrary, 266. 3. All Indictments to Run in Name of United States — Con- clusion of. — All indictments shall run in the name of the Uni- ted States and conclude against the peace and government thereof. E. S. D. C, sec. 836. 4. Indictments and Presentments to be Concurred in by at least Twelve Grand Jurors. — 'So indictment shall be found, nor shall any presentment be made, without the concurrence of at least twelve grand jurors. E. S. U. S., sec. 1021. Note.— The indictment need not allege that twelve jurors con- curred in the finding. United States v. Low, 2 How., 115. 5. Charges which may be Joined in one Indictment shall be so Joined. — When there are several charges against any per- son for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offences, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts ; and if two or more indictments are found in such cases, the court may order them to be consolidated. E. S. U. S., sec. 1024. 6. What Offences may be Joined in one Indictment.— The provisions of the foregoing statute are obligatory, and all offences and offenders that might have been joined previously must be joined now. United States V. Katzenski, 2 Sprague, 7. Where the charges are for several offences of the same class or kind growing out of the same transac- tion, though committed at different times and places, they may be joined in the same indictment against the same person in separate counts. United States v. Wentworth, 11 Fed. Rep., 52 ; United States V. O'Callahan, 6 McLean, 596 ; United States v. Bickford, 4 Blatchf., 337 ; United States v. Jacobi, 12 Blatchf., 491. Buttheindictment must show that the counts refer to " the same act or transaction, ' ' or that they are "acts or transactions connected together." United States v. Scott, 4 Biss., 29. Subject to this rule, distinct and different felonies may be joined. United Statesv. Wentwoith, 11 Fed. Rep., 52 ; United States V. Young, 14 Int. Rev. Rec, 148. And several distinct misdemeanors. United States v. Porter, 2 Cr. C. C, 60; United States v. Devlin, 6 Blatchf., 61. If they are of the same character, though they differ in degree, they may be joined. United States v. Dickenson, 4 McLean, 38 298 PEACTICE AND PROCEDTJKE OF THE 325. But see United States v. Nye, where it was held that while dis- tinct misdemeanors may, under this section, as at common law, be joined in one indictment, distinct felonies may not be. But the court may permit the prosecution to nolle prosequi all the charges but one and proceed upon that. Examine also upon this point United States V. Scott, 4 Ben., 29 ; United States v. Bickford, 4 Blachf., 337 ; Ex parte Hibbs, 26 Fed. Rep., 421. The same offence may be charged in dif- ferent ways in the same indictment, in order to meet the facts of the case. United States v. Pivotes, 5 Wheat., 184 ; United States v. Dick- enson, 2 McLean, 325. Thus a count for assault and battery and a count for riot. United States v. McParland, 1 Cr. C. C, 163. And a count for making false coin with counts for aiding and procuring false coins to be made. United States v. Burns, 5 McLean, 23. Or for counterfeiting coins at different times and on different occasions. United States v. O' Callahan, 6 McLean, 596. Or for a revolt and ex- citing a revolt. United States v. Peterson, 1 Wood & M., 305. Or for stealing letters received at the office from various points. United States V. Brent, 17 Int. Rev. Rec, 54. And each count in judgment of law charges a separate and distinct offence, and is, in fact and theory, a separate indictment. Accordingly, where there is a con- viction on one count and an acquittal on the other, there is no room to contend that the jury found the defendant guilty, and likewise not guilty, of the same offence. United States v. Malone, 9 Fed. Rep., 897 ; s. c, 20 Blatchf , 137. 7. What Offences may not be Joined, — A count for a capital offence and a count for a misdemeanor cannot be included in the same in- dictment. United States v. Sharp, Peters O. C, 131 ; United States V. Scott, 4 Biss., 29. Nor counts for subornation of perjury with counts for knowingly transmitting false pension papers. United States V. Bickford, 4 Blatchf, 337. . 8. Sepugnaut Counts. — When an indictment contains repugnant counts the prosecutor may be required to elect which he will pro- ceed on. United States v. Nye, 4 Fed. Rep., 888 ; United States v. Bickford, 4 Blatchf, 337. 9. Indictment not to be Deemed Insufficient for Defect of Form only. — IsTo indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judg- ment, or other proceeding thereon ■ be aifected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. E. S. U. S., sec. 1025. Notes of Decisions.— The Caption.— The caption or title forms no part of the presentment of the grand jury ; and that part of an in- , , , , , dictment may be amended after verdict in respect to a clerical error. United States v. Thompson, 6 McLean, 56. SUPREME OOUET, DISTRICT OF COLUMBIA. 299 SiGNATDURE. — An indictment is not rendered invalid by reason of its not containing the signature of the District attorney : So held. Where the office was vacant (by death) at the time the indictment Was found. United States v. McAvoy, 2 Giro. (N. Y.) ; 18 How.-Pr., 380. His signature constitutes no part of the indictment and is only necessary as evidence to the court that he is prosecuting the of- fender conformably to the duty imposed on him by the statute. United States v. McAvoy, 4 Blatchf., 418 ; 18 How. Pr., 380. An in- dictment may be signed in the name of the district attorney by his sworn assistant. United States V. Nagle, 8 Rep., 772. The designa- tion "foreman" appended to the name of the person signing the in- dictment is sufficient, as the designation " foreman" refers to the introductory clause of the indictment, and to the record, as verify- ing the legal inference that " foreman" means foreman of the grand jury. United States V. Plummer, 3 Cliff., 28. It is not necessary in the Federal courts that the name of the prosecutor should be written at the foot of the indictment. United States v. Mundel, 6 Gall., 245. Oeetainty. — The indictment must set forth, with clearness and certainty, sufficient to apprise the accused of the crime wherewith he stands charged, every ingredient of Which the offence is composed. United States v. Cruikshank, 92 U. S., 542 ; United States v. Mills, 7 Pet., 138 ; United States v. Britton, 107 U. S., 655. But where the indictment clearly charges a crime, and fairly advises the defendant what act of his is the subject of complaint, the prin- ciple object of pleading is attained. The highest degree of certainty is not required ; certainty to a common intent is sufficient. United States V. Perro, 18 Fed. Rep., 901. But see United States v. Forrest, 3 Cr. CO., 56. Where it is held that certainty to a common intent is not sufficient, there must be certainty to a certain intent, and it Was, therefoM!, held that in an indictment under a statute which punishes *' any person employed as clerk or servant" in a bank, who embezzles its fands, it is not sufficient that defendant is described as "being then a book-keeper in said bank." A person may be a book-keeper in a bank, and yet not be employed as such by the bank. What enters into the description of the crime is not matter of form within section 1025 R. S. U. S. United States v. Oonant, 9 Rep., 36. When a word employed in an indictment to describe the offence charged, has both a technical and vernacular meaning, such as "smuggle," it must be deemed to be used in the technical sense. United States v. Claflin, IS Blatchf., 178. When an Act of Congress declares an offence punishable, designating it merely by a common law name (e. g., conspiracy), an indictment for the offence should allege facts constituting the offence at common law. United States v. Crosby, 1 Hughes, 448. An indictment is not defective because of its saying that " defendant did, or caused to be done," a particular act which is punishable by criminal statute. The allegation is good in that form although the statute may employ the disjunctive con- junction "or" instead of "and." United States v. Hall, 14 Fed. Rep., 324. An allegation that tiie defendant did the act charged 300 PEACTICE AND PEOCEDUEE OF THE "on or about" a certain day, is void for uncertainty; it does not show but that the action is barred by lapse of time. United States V. Winslow, 3 Sawy., 337. Alleging a statutoey offence in the wobds of the stat- ute. — In an indictment for an offence defined by statute, nothing can be left to implication or intendment. The charge must be laid so as to bring the case within the description of the offence as given in the statute, and all the requisites essential to constitute it must be alleged. United States v. Staats, 8 How., 41 ; United States V. Clark, 1 Gall., 497. And it will not he suflflcient that the indictment sets forth the defence in the words of the stat- ute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished ; the fact that the statute in question, read in the light of the common law and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the neces- sity of alleging in the indictment all the facts necessary to bring the case within that intent. United States v. Carll, 105 U. S., 611 ; United States v. Britten, 107 U. S., 655. See United States v. Cruik- shank, 92 U. S., 542. Where the words used in the statute are tech- nical words which constitute the specific offence, the law allows of no substitute, because no other words are exactly descriptive of the offence. United States v. Bachelder, 2 Gall., 15. To nearly the same effect, see Dewee's Case, Chase Dec, 531. The true test between the cases where it is sufBcient to allege the offence in the language of the statute, and those where it is not, is that if the statute itself so defines the act or acts constituting the offence as to give to the defendant information of the nature and cause of the accusation, the indictment need go no further than the statute ; but if it does not of itself do this, the averments necessary to secure the constitutional right to such infoimation must be added. Whether the crime be a felony or a misdemeanor makes no difference ; the constitution secures the defendant in all criminal prosecutions the right to be informed of the nature and cause of the accusation. United States v. Staton, 2 Flippin, 319. It is not necessary that the exact words of the statute be used, if their precise equivalent be expressed; thus the words "in execution and pursuance of" are equalent in meaning to the words " to effect the object of" United States V. Nunnemacker, 7 Biss., 129. As to some averments in an in- dictment for counterfeiting, see United States v. Bicksler, 1 Maokey. 341. MiSNOMEE.— When a misnomer of the person in an indictment is fatal, see United States v. Howard, 3 Sumn., 12 ; United States v. Keen, 1 McLean, 429. Can only be taken advantage of by plea in abatement. United States v. Pond, 2 Curtis, 265. The meaning of a defendant being indicted under an alias is, that he is described in the indictment under one name, otherwise called another name. If the jury find as a fact that the accused's name is as set forth in the indictment, and that he acted as charged under the alias name, SUPREME COURT, DISTRICT OF COLUMBIA. 301 the description in the indictment is such as conforms sufficiently to the facts. United States v. Wright, 18 Fed. Eep., 112. Demurrer to a plea of misnomer, that Joseph Sprinz was indicted as Joseph Spintz, over-ruled because the two names were not idem sonans. United States v. Spintz, 18 Fed. Eep., 377. But if the name be idem sonans, the variance is immaterial. Donnell v. United States, 1 Morris, 141. Intent. — In a criminal ease where the intent is made a part of the offence, the intent should be alleged in the indictment, and must be pToved ; but the particular manner in which the act is to be done need not generally be alleged. United States v. Wentworth, 11 Fed. Rep., 52 ; United States v. Jackson, 2 Fed. Rep., 502 ; 10 Fed. Rep., 134. Where a statute makes certain acts done with a certain fraudu- lent intent or purpose, felony, if the acts and the intent or purpose described in the statute are charged in the indictment, it is a conclu- sion of law therefrom that a felony was committed, and a felonious intent need not be alleged. In general, it is true the felonious intent must be charged. The exception is where this felonious intent con- stitutes no part of the crime, that being complete under the statute without it, and depending upon another and different criminal intent. United States v. Staats, 8 How., 41. See note in Bank's Edition. Time. — In drawing indictments, figures should not be used for dates. United States v. Fresco tt, 2 Abb. U. S., 169. Variance as to time of committing oiFence not material, except where time enters into the nature of the offence. United States v. Bowman, 2 Wash. C. C, 328 ; United States v. Graft, 14 Blatchf., 381. And an indict- ment for counterfeiting has been held good, notwithstanding the day named if taken as. the true date would, under the statute of limita- tions, have barred the prosecution. Johnson v. United States, 3 McLean, 89. Description of Property. — In describing, in an indictment, property involved in the commission of the offence, a reasonable amount of detail is all that is necessary. To accompany the de- scription with such particulars as will obviate all necessity for proof outside the record to sustain a plea of former acquittal or conviction, in case of a second prosecution is not required. United States v. Claflin, 13 Blatchf., 178. SuRPLUSSAGE. — Mere surplussage will not vitiate an indictment. United States v. Howard; 3 Sumn., 12. But nothing properly con- nected with the offence can be rejected as surplussage. United States V. Brown, 3 McLean, 233. Averring Written Instruments. — An indictment which sets forth a paper by description, instead of giving it in haec verba, is bad on motion in arrest of judgment. United States v. Noelka, 1 Fed. Rep., 426. See United States v. Hinman, 1 Baldw., 292; United States V. Britton, 2 Mason, 462. If the writing be lost, etc., the fact must be averred in the indictment as a reason for not setting it forth. United States v. Doebler, 1 Baldw., 519. Negative Averments. — Where a statute defining an offence con- 302 PEACTICE AND PEOCEDTTBE OP THE tains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offence that the ingredients of the offence cannot be accurately and clearly de- scribed if the exception is omitted, an indictment must allege enough to show that the accused is not within the exception. If, on the other hand, the language of the section defining the offence is so entirely separable from the exception that the ingredients con- stituting the offence may be accurately and clearly defined without any reference to the exception, the indictment may omit such refer- ence. The matter contained in the exception is that of defence, and must be shown by the accused. United States v. Cook, 17 Wall., 168, 10. Indictments and Informations cannot be Amended. — When the indictment is filed with the court, no change can be made in the body of the instrument by order of the court, or by the prosecuting attor- ney, without a re-submission of the case to the grand jury. And the fact that the court may deem the change immaterial, as strikdng out of surplus words, makes no difference. The instrument, as thus changed, is no longer the indictment of the grand jury which pre- sented it. Ex Parte Bain, 121 U. S., 1. Where a criminal information is required by statute to be under oath, it cannot be amended at the trial of the cause in any manner affecting the charge against the defendant. Thus, when the defend- ant was charged in an information with keeping a tippling-house "at house No. 1601 Q street," in the city of Washington, and, on the trial of the cause before a jury, it was proven by the witnesses for the prosecution that defendant committed the offence at No. 1601 Twelfth street. The attorney for the disla-ict then asked permission of the court to amend the information by strikiag out the house, number, and street laid in such information, which was allowed, the defendant excepting. Held, that such amendment could not be made at the trial of the cause. District of Columbia v. Herlihy, 1 Mac A., 466. 11. Indictment for • Perjury— Averment— Statntory Provi- sion. — In every presentment or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to adminis- ter the same, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any affidavit, deposition or certificate, other than as hereinbefore stated, and without setting forth the commission or authority of the court before whom the perjury was committed. E. S. U. S., sec. 5396. Notes. — The indictment need not refer to the particular act which required the oath in question to be taken ; it should aver the facts SUPREME COURT, DISTRICT OP COLUMBIA. 303 which constitute the occasion for taking the oath, and the court will take notice of any act of Congress which required it. United States V. Nickerson, 17 How., 204. The indictment should charge that the oath was false and known to be so by the witness, and that it was taken with a corrupt motive. United States v. Babcock, 4 Mclvean, 113. Where the averments as to the materiality of what is alleged to have been sworn falsely are defective, the indictment is, never- theless, good, if such materiality sufficiently appears upon its face. United States v. McHenry, 6 Blatchf., 503. " 12. — ^for Subornation of Perjury — Similar Provisions. — In every presentment or indictment for subornation of perjury, it shall be sufficient to set fortli the substance of the offence charged upon the defendant, without setting forth the bill, an- swer, information, indictment, declaration, or any part of any record or proceeding either in law or equity, or any affidavit, deposition, or certificate, and without setting forth the com- mission or authority of the court or pei-son before whom the perjury was committed, or was agreed or procured to be com- mitted. E. S. U. S., 5397. 13. —for Perjury before a Court-martial.— In prosecutions for perjury committed on examination before a naval .general court-martial, or for the subornation thereof, it shall be suffi- cient to set forth the oifence charged on the defendant, with- out setting forth the authority by which the court was held, or the particular matters brought before, or intended to be brought before, said court. E. S. U. S., sec. 1023. 14. Presentments. — A presentment, in its limited sense, differs only from an indictment, in being taken in the first instance by the grand jury, of some offence either within their own knowledge or inquired of by them. After being prepared and signed by at least twelve of the members of the grand jury, it should be delivered into courfe whereupon it is handed by the judge to the district attorney, who frames an indictment upon it, which is then sent to the grand jury room for their action. In practice, however, the presentment is usu- ally first sent by the foreman to the district attorney, who thereupon frames an indictment, which, as soon as it is endorsed "true bill" is delivered, together with the presentment, into court. See Bish. Crim. Proc, vol. 1, sec. 136; Chit. Grim. Law, 162. Although in theory, if the charge in the presentment is formal and complete in all its parts, there may be a trial on it without indictment, yet in practice it is usual always to frame an indictment upon the charge contained in the presentment. See Bish. Crim. Proc, sec. 137, et seq., and cases cited. "And sometimes the grand jury makes a sort of general presentment of evils and evil things, for the purpose of calling the attention of the proper authorities to them, without ex- 304 PRACTICE AND PEOCEDUEE OP THE pecting or intending that indictments shall be drawn thereon." Bish. Grim. Proc, sec. 138. 15. Informations. — As has been seen in the note, p. 268, the crimi- nal court has original jurisdiction only of "capital or otherwise in- famous offences," and since by the Constitution these offences can only be prosecuted on a presentment or indictment of a grand jury, it follows that prosecutions of criminal offences cannot be com- menced in this court by information. On the other hand, section 1064, R. S. D. 0., provides that "prosecutions in the police court shall be commenced by information under oath, without indictment by grand jury or trial by petit jury." See Police Court, post. CHAPTEE VI. PROCEEDINGS BET-VNTEEN INDICTMENT AND TRIAL. 7. Plea of former jeopardy. 8. In capital cases accused may demand that counsel be as- signed him, etc. 9. In capital cases list of wit- nesses to be delivered with copy of indictment before trial. 1. The arraignment — Prisoner standing mute. 2. Pendency of a prior indict- ment. 3. "Waiving the reading of the indictm.ent. 4. Quashing the indictment. 5. Demurring to the indictment. 6. Judgment on the demurrer. 1. The Arraignment — Prisoner Standing Mute. — ^When any person indicted for any offence against the United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf in the same manner as if he had pleaded not guilty thereto. And when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall, with- out further form or ceremony, be tried by a jury. E. S. U. S., sec. 1032. Notes. — This section applies to an offence created by a statute! enacted since its adoption. United States v. Hare, 2 Wheel. Or. Cas., 283. For the necessity and requisites of arraignments in criminal cases, see United States v. Gibert, 2 Sumn., 19; United States v. Leckie, 1 Sprague, 227 ; United States v. Lee, 22 Leg. Intel., 284. He should have an opportunity to plead, and trial without entry of a plea of not guilty is erroneous. Palmer v. United States, 1 Wash., 7. SUPSEMB COURT, "DlSTElCT OP COLtJMlSIA. 305 Standing mute is equivalent to a plea of not guilty. United States V. Hare, 2 "Wheel. Or. Gas., 283. And the court may enter such a plea and proceed with the trial. In re Smith, 13 Fed. Rep., 25. After he has put in a plea of not guilty it includes everything essen- tial to put him on trial -by jury. United States v. Glbert, 2 Sumn., 19. Upon a plea of^ guilty every defective averment of the indict- ment which would have been cured by verdict of guilty is to be re- garded as likewise cured by this plea. United States v. Bayaud, 16 Ted. Rep., 376. The court will not allow an accused to plead guilty in hope of obtaining executive mercy, and when application there- for has been denied, then to withdraw the plea and defend. United States V. Bayaud, 15 Rep., 200. 2. Pendency of a Priwr Indictment. — The pendency of a prior in- dictment to which a plea of not guilty has beeu entered, and upon Which plea issue has been joined, is no bar to an arraignment and trial upon a second indictment in the same court for the same crime: The court will take care that the prisoner be not exposed to the jeop- ardy of two trials for one and the same fact. United States v. Never- son, 1 Mackey, 152. B. Waiving; the Ifceading of the Indictment. — Bishop says that it is competent for the prisoner, with the consent of the court, to waive the reading of the indictment ; and if thus waiving, he pleads to the indictment, the transactitsn will be deemed equivalent to a formal arraignment and plea, 1 Bish. Crim. Proc, sec. 733, citing Goodin V. The State, 16 Ohio State, 344; Washburn v. People, 10 Mich., 372. But in the Star Route Cases uiucli time 'was consuuied in reading the indictments, though the accused offered to waive the reading there- of. But where a prisoner demurs to an indictment, and the de- murrer is heard and overruled, and he is then required to plead to it without having it read to him, and it is not read to the jury, the reading of it not being in either case demanded by him, such omis- sions to read the indictment furnish no ground for a motion in arrest Of judgment. United States v. Bickford, 4 Blatchf , 337. 4; Quashing the Indictment* — The motion to quash not being one of right, but of privilege granted by the court to the defendant, will not be received when presented at any unreasonable time ; yet, what is unreason a"ble time will depend upon the nature of the objection to be reached by the motion, the diligence used by the defendant in bringing it forward, and many other things not possible to be stated in a general proposition. Bish. Crim. Proc, 762, vol. l;and see Id^ sees. 758 and 759. While it is a sort of general rule that the motion to quash can be founded only on some defect apparent on the face of the indictment, the better doctrine is, that the court in its discretion Will look into what is brought to its attention outsid-e the indictment, and even outside the record of the cause. Thus the prosecuting at- torney may admit the existence of a fact, or the fact may be made to appear on aflBdavit, and in either case the extrinsic matter will be 39 306 PEACTICE AND PKOCEDUEE OF THE considered in connection with the indictment as constituting the basis for a motion to quash. Bish. Orim. Proc, sec. 763, vol. 1, and cases cited. Where there are a number of counts, whether the court will interfere to quash some and leave others, see Id., sec. 764. If the court refuses to quash an indictment, such refusal is not to be regarded as a final decision of the question raised, but it may be brought up in any proper legal form afterwards. Id., sec. 774. 5 . Demurrer to the Indictment. — Upon a demurrer to an indictment, the court must look to the whole record to see whether it is war- ranted in giving judgment on it. Objections, therefore, to the juris- diction of the court, to the substance and to the structure of the in- dictment, are alike reached in this way. And though the objection is one relating to the mere form of the indictment, it may usually be taken on a general demurrer, to the same effect as upon a special. Bish. Crim. Proc, sec. 775, vol. 1. There may be a demurrer to a single count or to the entire indictment. Id., sec. 779. See R. S. U. S., sec. 1026, below. But it has been held that where there is a gen- eral demurrer to the entire indictment, the demurrer must be over- ruled if one count is good. Ingram v. The State, 39 Ala., 247, 250. 6. Judgment on the Deanurrer. — In every case in any court of the United States, where a demurrer is interposed to an indictment, or to any count or counts thereof, or to any information, and the demurrer is overruled, the judgment shall be respondeat ouster ; and thereupon a new trial may be or- dered at the same term, or a continuance may be ordered, as justice may require. E. S. U. S., sec. 1026. 7. Plea of former Jeopardy. — As to what will sustain such a plea, see United States v. Bigelow, 3 Mackey, 393. 8. In Capital Cases Accused may Demand that Counsel be As- signed him, etc. — Everj^ ijerson who is indicted of treason or other capital crime, shall be allowed to make his full defence by counsel learned in the law ; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire, and they shall have free access to him at all sea- sonable hours. He shall be allowed, in his defence, to make any proof that he can produce by lawful witnesses, and shall have the like process of the court to compel his witnesses to appear at his trial, as is usually granted to compel witnesses to appear on behalf of the prosecution. E. S. U. S., sec. 1034. Note. — In Burr's TMal, 177, it was held that the accused had the right to compulsory process for witness even before indictment. 9. In Capital Cases List of Witnesses to be Delivered with Copy of Indictment before Trial. — When any person is indicted of STTPEEME COtTET, DISTEICT OP OOLTJMBIA. 307 treason, a copy of the indictment and a list of the jury, and of the witnesses to be produced on the trial for proving the indict- ment, stating the place of abode of each juror and witness, shall be deliA^ered to him at least three entire days before he is tried for the same. When any person is indicted of any other capital offence, such copy of the indictment and list of the ju- rors and witnesses shall be delivered to him at least two entire days before the trial. E. S. U.S., sec. 1033. Note. — Under this section the trial is to be considered as beginning When the jury is made up and sworn, and not when the prisoner is arraigned ; and it would seem that Sunday may be included as one of the two days. United States v. Neverson, 1 Mackey, 152. The two entire days must be exclusive of the day of its delivery. United States V. Dow, Taney, 34. A delivery to the defendant, after the trial begins, of a list containing the name of a witness who will be called in behalf of the prosecution, is not suflScient, under this sec- tion, to entitle the prosecution to use such witness on the trial, even though the court should adjourn the trial for three days in order that the defendant may not be surprised. United States v. Neverson, 1 Mackey, 152. If the right to a copy is not insisted on before pleading and trial, no objection can aftewards be taken to the proceedings. United States v. Cornell, 2 Mason, 91. So, if no objection is made until after the jury is sworn the omission to deliver copy and list Will be no ground for arrest of judgment, or for a new trial. United States V. Curtis, 4 Mason, 232. The list of jurors and witnesses need not specify their occupations, but their residence should be given. United States v. Insurgents, 2 Dall., 335. In capital offences other than treason the copy and list of witnesses must be delivered two days before the cause is tried by a jury, and not before the party is arraigned. United States v. Curtis, 4 Mason, 232. If the case is not capital the prisoner is not entitled to the copy and list at govern- ment expense. United States v. Bickford, 4 Blatchf., 337 ; United States V. Williams, 4 Cr. C. C, 1 ; United States v. Wood, 3 Wash, C. C, 440. But in all cases where there has been no preliminary ex- amination the court, in its discretion, may order a list of witnesses before the grand jury to be furnished. United States v. Southmayd, 6 Biss., 321. And a copy of the indictment may be granted at his re- quest. United States v. Williams. 4 Cr. C. C, 178 ; United States v. Curtis, 4 Mason, 232. 308 PRACTICE AND PKOCEDtTKE OF THE CHAPTEE VII. TRIAL BY JURY. Confessions. Court giving its opinion upon the facts. Coverture as a defence to crime. Declarations. Discharge of jury, power of court over during trial. — Discretionary power to, does not mean arbitrary choice. — Instance. Evidence, weight and effect of Indictment, objections to, at the trial. Insanity as a defence. — Traits of character as in- dicia of. — Rebutting, evidence of. — Inability to resist wrong. —Barbarity of the killing not of itself evidence of. Ignorance of law. Intent, design, etc. Larceny, "bunco games" may be. Murder. Penal statutes — Rule of con- struction. " Reasonable doubt." Threats. 1. Constitutional Provision.— The trial of all crimes, except in cases of impeaclinient, shall be by jury. Coustitutioh, Art. 3, sec. 2. Note. — The right to a speedy and public trial by an impartial jury is guaranteed to every one accused of crime by amendment to Arti- cle 6 of the Constitution. It is a right which cannot be waived, and a trial by the court without a jury, even with the consent of the ac- cused, is erroneous. United States v. Taylor, 3 McCrary, 500. And see note to this case, 11 Fed. Rep., 475. 1. Constitutional provision. 19. 2. Duty of district attorney to prosecute. 20. 3. Separate trials. 21. 4. Presence of prisoner. 5. To be confronted with the wit- 22. ness—Exception to the rule. 23. 6. The right to open and close. 7. Onus probandi. 24. 8. Compelling party to disclose what he expects to prove by 25. a witness. 26. 9. Introducing new evidence af- ter the closing of the case. 27. 10. Statutory provision in prose- cutions for libel. 28. RULINGS OF THE QENJiJKAL TEEM 29. AND OTHBE FBDEBAI, COUBTS IN CRIMINAL CASES. 30. 11. Abortion. 31. 12. Accomplice — Principal and ac- cessory. 32. 13 — Mere presence not of itself 33. sufficient. 34. 14. — The degree of credit to be given — Corroboration of. 35. 15. Corroboration need not ex- 36. tend to whole testimony. 37. 16 Autrefois acquit. 17 Bigamy. 38. 18 Character. 39. ' SUPEEME COURT, DISTEICT OF COLUMBIA. 309 2. Duty of District Attorney to Prosecute. — ^There shall be appointed an attorney of the United States for the District, ^yho shall take the oath and perform all the duties required of district attornies of the United States. E. S. D. C, sec. 904. It shall be tl;e duty of every district attorney to prosecute, in his district, all delinquents for crimes and offences cognizable under the authority of the United States. * * * E. S. U. S., sec. 771. Note. — Violation of the laws of the United States applicable to this District are to be prosecuted by the District Attorney of the United States, but violations of the municipal ordinances are to be prose- cuted by the attorney for the District. United States v. Hoskins, 5 Mackey. 3. Separate Trials. — Where two or more persons are jointly in- dicted for the same offence they cannot demand separate trials as matter of right ; but it is discretionary with the court to grant sepa- rate trials. United States v. Marchant, 12 Wheat., 480 ; United States V. White, 4 Mass., 158 ; United States v. Gibert, 2 Sumn., 19 ; United States V. Sharp, Pet. C. Ct., 118 ; United States v. Wilson, Baldw., 78, 81. But upon a joint indictment, the fact that the defence of one prisoner will implicate the other, affords a reasonable ground for al- lowing separate trials. United States v. Wilson, Baldw., 78, 81. See 5 Serg. & R. (Pa.), 60. 4. Presence of Prisoner. — A person on trial for a misdemeanor may plead and defend by attorney, himself being absent, if, 1st, it is not an offence for which imprisonment must be inflicted ; 2d, the court be satisfied with the nature of the case, and its circumstances are such that imprisonment will not be inflicted ; 3d, the district attor- ney consent or it appear that to the court that he unreasonably or improperly withholds his consent ; 4, sufficient cause be shown, on affidavit, to account for the absence of the defendant ; 5th, a special power of attorney, to appear and plead and defend in his absence, be executed by defendant and filed in court. United States v. Mayo, 1 Curtis, 433. Trials for misdemeanors may be had, and a verdict of guilty may be rendered without the actual presence of the accused in court, especially if he is represented by counsel. United States v. Shepherd, 1 Hughes, 520. Where a prisoner was so disorderly in his conduct, during the opening of the case, that it became necessary to remove him from the court room until the opening was concluded, when the trial was adjourned to the next day and then proceeded. Held, on a motion in arrest of judgment and for a new trial, that no error was committed. The right of a prisoner to be present at his trial does not include the right to prevent a trial by unseemly dis- turbance. United States v. Davis, 6 Blatchf., 464. 5. To be Confronted with the Witness— Exception to the Rule.— The constitutional right of one on trial for a crime to be confronted with 310 PEACTICE AND PEOCEDXTBE OF THE ' the witnesses against him, is not violated by the admission of evi- dence of what a witness testified to on a previous trial of the accused for the same offence, but under a different indictment, if the witness be absent by the wrongful procurement of the accused. Beynolds v. United States, 98 U. S., 145. 6. The Right to Open and Close.— The burden of proof being upon the government the district attorney, of course, always opens the case to the jury. And he has also the right to close even though no testimony be offered by the defendant. This is the practice in most of the States. Bishop's Orim. Proc, sec. 964, vol, 1 ; and it is^ the settled practice in this court. Thus on the trial of Karcher for mur- der March Term, 1884. The government's evidence being all in defendant's counsel announced that they would offer no testimony. The court then adjourned for the day. On the next morning coun- sel claimed the right to make the closing address to the jury. The court, however, ruled that in all cases this was the government's right. Counsel then stating that the defendant had under the con- trary impression offered no testimony was permitted to offer evi- dence in the prisoner's behalf, notwithstanding his announcement of the previous day. On the other hand, where testimony for both sides has been offered, and the district attorney or his assistant hav- ing made the opening argument upon the evidence, if counsel for the accused declines to reply, this cuts off all further argument to the jury, and the court then delivers its charge. 7. Onus Proband!. — In criminal proceedings the onus proband! rests upon the prosecutor, unless a different provision is expressly made by statute. United States v. Gooding, 12 Wheat., 460 ; and see Greenleaf V. Birth, 6 Pet., 302. 8. Compelling Party to Disclose what he Expects to Prove by a Witness. — Whenever a witness is produced, it is within the discretion of the court to compel the party producing him to disclose what it is expected he will prove. Bishop's Crim. Proc, sec. 969, vol, 1. " Where the case is one of delicacy and importance, and the evidence is nicely balanced, and the scale likely to be affected by slight cir- cumstances, the court will be exceedingly vigilant in preventing any extraneous or irrelevant matter from being brought before the jury- In such cases it is proper to require counsel to state the substance of what they expect to prove, in order that, if irrelevant or im- proper, the evidence may not be given ; where the lines of the case are more broadly marked, less caution is necessary. The right of the parties may be suflttciently protected by the court deciding upon the competency or relevancy of the evidence as it falls from the wit- ness." Id., citing People v. White, 14 Wend., Ill, 114, 115. 9. Introducing New Evidence after the Closing of the Case.— On this subject, Bishop says: "It is the general rule, that, after the prosecuting officer has announced the evidence closed on his side, other evidence not rebutting, cannot be introduced against the de- fendant : but, in various circumstances, the court in its discretion DISTRICT OF COLUMBIA. 311 will allow a departure from this rule. If the announcement was inadvertent, while it was premature, and the tender of proof is immediately made, it may be received ; and indeed in extreme cases, new evidence has been admitted after the summing up has been commenced, and even after the arguments of counsel and the judge's charge are closed. No such departure from rule can be de- manded as of right ; neither, as a general practice, ought it to be allowed. The like observations apply to the re-examination of wit- nesses whom the party has once examined. The discretion to allow departure from rule in these cases is one the exercise of which is delicate '; but on the one hand, it is wrong to allow substantial jus- tice to be sacrificed ; and on the otter hand, the habit of departure from rule is prejudicial to justice." Bishop's Crim. Proc, sec. 966, vol. 1, and cases cited. 10. statutory Provision in Prosecutions for Libel. — In all prosecutions or indictments for libel or indictments instituted in tlie District, the trutli thereof may be given in evidence under the general issue as a justification of the alleged libel ; and if it appear that the matter charged as libellous was true, and was written or published with good motives and for justi- fiable ends, the defendant shall be acquitt;ed. E. S. D. C, sec. 842. EULINQS OP THE GENERAL TEEM AND OTHER FEDERAL COURTS IN CRIMINAL CASES. 11. Abortion. — The late legislative assembly of the District of Co- lumbia had authority to pass theactof January 19, 1872, entitled '"An act for the prevention and punishment of abortion," and the sanie never having been repealed or modified by Congress, the prisoner was properly sentenced under its provisions to imprisonment and labor in the penitentiary at Albany. United States v, May, 2 Mac A., 512. 12. Accomplice — Principal and Accessory. — The word "accomplice" signifies a guilty associate in crime. United States v. Neverson, 1 Mackey, 152. Whether a person is an accomplice in the crime charged in the indictment or only an innocent witness of the transaction, is a question to be decided by the jury from the evidence in the case. United States v. Neverson, 1 Mackey, 152. 1 3. — Mere Presence not of itself Sufficient. — If a person was present at a murder, but took no part in it, nor endeavored to prevent it, nor apprehended the murderers, but otherwise was not concerned in its commission, and was not aiding and abetting at the murder, nor ready to afford assistance if necessary, such presence will not of itself render him either principal or accessory to the murder, nor an accomplice therein, United States v. Neverson, 1 Mackey, 152. And such a person, if believed by the jury to have been merely an inno- cent witness of the transaction, stands before them like any other witness who chances to have seen a crime committed. Id, 312 PEACTICE AND PEOCEDTJEE OP THE 14. — The Degree of Credit to be given— Corroboration of.— The de- gree of credit to be given an accomplice is a matter exclusively with- in the province of the jury. They may, if they see fit, act upon his evidence, even in a capital case, without any confirmation of his statements ; but the court will advise that they should not convict upon his testimony alone and without corroboration. United States V. Neverson, 1 Mackey, 152. 15. Corroboration need not Extend to whole Testimony.— Such corroboration need not extend to the whole testimony of witness, (since if this were so, it would not be necessary to call him at all,) but must relate to some portion- of his testimony which is material to the issue of the prisoner's guilt. But proof that he told the truth in relation to irrelevant and immaterial matters, which were gener- ally known, would not, in itself, be sufficient corroboration, nor that he told the truth in stating that the deceased was knocked down and killed (that fact being generally known). The corroboration should be of such and so many parts of the narrative of the accomplice as may reasonably satisfy the jury that he is telling the truth without restricting the confirmation to any particular points, the effect of such confirmation being for the consideration of the jury. United States V. Neverson, 1 Mackey, 152. Where there are several defendants, and an accomplice testifies to their several acts, testimony corroborating him as to one or two of the defendants, is not necessarily corroborative as to the others. Id. 16. Autrefois Acquit.— What will support plea of. See United States V. Bigelow, 3 Mackey, 393, 17. Bigamy, — On an indictment for bigamy, the first marriage may be proved by the admissions of the prisoner, and it is for the jury to determine whether what he said was an admission that he was actually and legally married according to the laws of the coun- try where the marriage was solemnized. Miles v. United States, 103 U. S., 304. As long as the fact of his first marriage is con- tested, the second wife is an incompetent witness. Where it has by other evidence been duly established to the satisfaction of the court, she may be admitted to prove her marriage with him. Id. A recent act of Oomgress, (March 3, 1887,) capacitates the husband or wife of the person accused, in any prosecution for bigamy, polygamy, or un- lawful cohabitation, to testify, but provides that such witness shall not be compelled to testify in such proceeding, examination or prose- cution without his or her consent, as the case may be ; " and such witness shall not be permitted to testity as to any statement or com- munication made by either husband or wife to each other, during the existence of the marriage relation, deemed confidential at com- mon law." This statute, although enacted with the primal object of meeting the evil of polygamy in the Territory of Utah, is general in its language, and is supposed by many to apply to criminal prosecu- tions in this District, The criminal court in a recent case of bigamy, SXTPEEMB COURT, DISTRICT OF COLUMBIA. 313 SO held it, but the question has not yet been passed upon by the gen- eral term. 18. Character. — The prisoner is entitled to the presumption of having sustained a good character up to the time of the alleged mur- der, and this presumption remains in his favor unless the jury shall believe from the evidence that he in fact was not entitled to such reputation. United States v. Neverson, 1 Mackey, 152. It is error to charge the jury that, if they have any reasonable doubt about the guilt of the defendant, or any doubt about his guilt, they may take into consideration evidence of his good character, as that is calculated to leave the jury with the impression that only in doubtful cases can evidences of good character be considered. Evi- dence of good character is the eye-glass through which the jury are to look at the whole case ; it does not authorize them to overrule the truth or to disregard the force of other evidence, but it is to be considered and weighed with all the testimony in the case. United States V. Hamilton, 4 Mackey, 446. Evidence of good character offered in behalf of a prisoner. If be- lieved by the jury, should be duly weighed by them as a fact in his favor. United States v. Neverson, 1 Mackey, 152. 19. Confessions. — In the absence of any specific threat or promise, the question whether evidence of a confession is admissible is one to be left in a very large degree to the judgment and discretion of the judge who presides at the trial. United States v. Nardello, 4 Mackey, 503. Where the existence of inducements, threats or promises is negatived by the circumstances under which a confession was made, the confession may be put in evidence, on the trial of the party making it. Hopt v. Utah, 110 U. S., 574. And although it appears that just before the confession the defendant was in the company of the policeman having him in charge, it need not be shown by the policeman that the confession was not unduly influenced. Id. 20. Court griving its Opinion upon the Facts. — The court may, in its discretion, give its opinion upon the facts in evidence ; but it ought to be done cautiously, and never without a warning to the jury that they are the triers of the facts in the case, and that the opinion of the court in no wise concludes their judgment. United States V. Murphy, Mac A. & Mack., 375. 21. Coverture as a Defence to Crime. — That the common law ex- emption of a wife from punishment for a crime, committed by her In her husband's presence, cannot prevail under an Act of Congress declaring "every person" who commits a prohibited act, punish- able, and making no exception in favor of married women, see United States v. De Quilfeldt, 5 Fed. Eep., 275 ; 6 Crim. L. Mag., 211; 11 Eep., 455. 22. Declarations.— A declaration accompanying and explanatory of an act indefinite in itself is always admissible as part of the res gestse. Thus where the murdered man, when last seen alive, had been asked whither he was going, and replied, " To look for N." (the 40 314 PEAOTICE AND PEOCEDTJEE OP THE person charged with the murder), it was held that this statement was not within the rule against hearsay. United States v. Nardello, 4 Mackey, 503. 23. Discharge of Jury, Power of Court over During Trial.— The courts of the United States are invested with power to determine conclusively in the trial of a criminal cause when the interests of public justice require that the jury shall be discharged, and such a discharge is not in any sense equivalent to a verdict of acquittal, or a defence against a further trial upon the same or a new indictment. United States v. Bigelow, 3 Mackey, 393. 24. — Discretiouary Power to, does not Mean Arbitrary Choice.— But this discretionary power to discharge the jury during the course of a criminal trial is not to be understood as containing the slightest ele- ment of arbitrary choice. The discretion is one which the trial justice must use under a solemn obligation to satisfy his judgment that such a course is required by the interests of justice. Id. 25. — Instance. — Fourteen indictments were found against the defendant for embezzlement, to each of which he pleaded not guilty. Afterwards, at his instance, they were all consolidated and directed to be tried as one case. A jury was then empanelled and sworn, and the district attorney opened the case to the jury, stating what he expected to prove in relation to each and all of the indictments. After he had closed, and before any evidence was taken, the pre- siding justice, on his own motion and against the protest of the de- fendant, rescinded the order consolidating the indictments, dis- charged the jury and directed the district attorney to select one of the indictments for trial which was done, and the same jury re-sworn. Whereupon the defendant pleaded autrefois acquit which was oyer- ruled on demurrer and the trial proceeded with, and a verdict of guilty found. On appeal to the general term it was held that this discharge of the jury was not equivalent to an acquittal, and was no defence to the second trial. Id. 26. Eyidence, Weight and Effect of.^The jury are the exclusive judges of the weight and effect of the evidence, and they may believe or disbelieve one or another of the witnesses at their discretion. United States v. Neverson, 1 Mackey, 152. 27. Indictment, Objections to, at the Trial. — Objections to the form and sufficiency of an indictment ought to be discussed upon amotion to quash the indictment, or upon demurrer or in arrest of judgment, but such objections may, in the discretion of the court, be enter- tained on the trial by the jury, although they ought not to be, ex- cept on urgent occasions. United States v. Gooding, 12 Wheat., 460. 2 8 . Insanity as a Defence. — Insanity is a defence, on the very ground that it disables the accused from knowing that his act is wrong. The very essence of the inquiry is, whether his insanity is such as to de- prive him of that knowledge. If, therefore, a witness is incompetent to give his opinion as to- the mental capacity of the accused, he is DISTRICT OP COLUMBIA. 315 competent to state his opinion as to the degree of capacity or of in- capacity, by reason of disorder, and whether the disorder seemed to have reached such a degree as to deprive him of the knowledge of right and wrong. United States v. Guiteau, 1 Mackey, 498. 29. — Traits of Character as Indicia of.— The question whether a certain trait in the defendant's character is an indicia of insanity involves the question of its nature, and an expert witness on the sub- ject of insanity does not exceed the limits of the inquiry in stating precisely whether the trait be a vice or a disease. Id. 30. —Rebutting, Eyidence of.— Where, for the purpose of proving the insanity of the defendant, evidence is given searching his whole life down to the time of the act charged in the indictment, and his moral nature and traits are presented to the jury as showing that acts done by him must be accounted for by a conclusion of insanity, testimony is admissible in rebuttal as to particular acts and conduct of the defendant contemporaneous with the history produced on his part, and tending to disprove the existence of the grounds on which the inference of insanity is based. Id. 31. —Inability to Resist Wrong.— Whether the inability to resist wrong by one having an actual knowledge of the difference between right and wrong, is such a mental disorder as would constitute a defence to the crime of murder, queere. Id. 32. —Barbarity of the Killing, not of itself Evidence of.— The bar- barous manner in which a homicide was committed does not of itself furnish any basis for the defence of insanity. United States v. Lee, 4 Mackey, 489. 33. Ignorance of law.— See Barlow v. United States, 7 Pet., 404 ; Giltner v. Goreham, 4 McLean, 302 ; United States v. Taylor, 5 Mc- Lean, 242; United States v. Beaty, Hempst., 487. 34. Intent, Design, etc.— An unlawful act is evidence of an unlaw- ful intent. United States v. McFarland, 1 Or. C. C, 165. Every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. Reynolds v. United States, 98 U. S., 145. Ignorance of law is not evidence of a want of criminal intent. Id. 35. Larceny, " Bunco ftames" may be.— Where a so-called game of chance was so operated by the defendants as to control the result in their own favor, and to allow the prosecuting witness no possi- bility of winning— the victim parting with his money through fraud and fear— such an offence is larceny. United States v. Murphy, Mac A. and Mack., 375. 36. Murder.- Section 5339 of the Revised Statutes of the United States applies to murder committed within the District of Colum- bia. United States v. Guiteau, 1 Mackey, 498. Murder is committed within the District of Columbia when the felonious blow is struck there, notwithstanding the consequent death happen without the District and in one of the States. Id. 316 PRACTICE AND PEOCEDUEE OF THE 37. Penal Statutes— Kule of Construction.— Penal statutes are to be construed like all 'other statutes, according to their plain and sensible purpose, and a plain and sensible purpose is not to be de- feated by an arbitrary method of reading its words. The words are to be so construed as to effectuate the intention of complete pro- tection against the crime, if their ordinary and reasonable meaning permit such construction. United States v. Guiteau, 1 Mackey, 498. 38. <' Reasonable Doubt." Proof beyond reasonable doubt is that which so convinces "that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own personal interests." The above definition given in the court below, was assigned for error by the prisoner, but was held by the Supreme Court of the United States sufficiently favorable to him. Miles v. United States, 103 U. S., 304. 39. Threats. — There is no particular limit as to the time anterior to the homicide when evidence of threats made by the defendant against the decased will be excluded. The judgment of the court on such a question is to be guided by the circumstances of the case. United States v. Neverson, 1 Mackey, 152. SUPREME COUET, DISTEICT OF COLUMBIA. 317 CHAPTEE VIII. VERDICT ; SENTENCE ; EXECUTION, 11. When sentence is to peniten- tiary, how executed. 12. When sentence of juvenile offenders is imprisonment, how executed. EXECUTION IN CAPITAL CASES. 13. Benefit of clergy abolished. 14. Punishment of death to be by hanging. 15. Warden of jail to execute judgment of death. 16. Place of execution. 17. Ofiicers required to attend. 18. Who may be present. 19. Who shall not be allowed to witness executions. 20. Capital cases carried to Su- preme Court of the United States — Execution to be post- poned. 1. Verdict of less offence than charged. 2. Verdict against one or more of several joint defendants. 3. Sealed verdict. SENTENCE. 4. Cruel and unusual punish- ments. 5. Whipping and the pillory abolished. 6. Cumulative sentences. 7. Costs of prosecution, when to be paid by defendant. 8. Court may add to judgment of death that body be deliv- ered for dissection. 9. When execution of sentence may be postponed. EXECUTION. 10. Judgments for fines, how col- lected. 1. Verdict of less Offence than Charged,— In all criminal causes the defendant may be found guilty of any offence the commission of wMcli is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged ; Provided, That such attempt be itself a separate offence. E. S. U. S., sec. 1035. 2. Verdict against one or more of several Joint Defendants. — On an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly ; and the cause as to the other defend- ants may be tried by another jury. E. S. U. S., sec. 1036. Notes of Decisions. — Each count in an indictment being a substan- tive charge, the finding of the jury if conformable to any one of sev- eral counts which will itself support the verdict, is sufllcient, and judgment may be rendered thereon. United States v. Furlong, 5 Wheat., 184 ; Ex Parte Wilson, 114 U. S., 417. Where two or more defendants are jointly charged in the same indictment with murder, 318 PEACTICE AND PEOCEDUIIE OP THE it is competent for the jury to find one guilty of murder and another of manslaughter, and such a verdict being rendered, will not be dis- turbed by the court as irregular. United States v. Harding, 1 Wall., jr., 127. If there is one good count in an indictment, a general ver-' diet of guilty will be sustained, though the others are bad. United States V. Snyder, 112 U. S., 216; Ex Parte Wilson, 114 U. S., 417; United States v. Burroughs, 3 McLean, 405 ; United States v. Bums, 5 McLean, 23. Where the jury omitted to find on one of several counts in an indictment, the court permitted the district attorney to discon- tinue as to that count, and rendered judgment on the verdict on the other counts. United States v. Keen, 1 McLean, 429, 444. An in- dictment charging murder is sufficient upon a verdict of man- slaughter if it contain the allegation necessary to a charge of manslaughter. United States v. Leonard, 2 Fed. Rep., 669. The acquittal of one of two defendants charged with conspiring to- gether is an acquittal of both ; but if the indictment charged a conspiracy with others unknown, one may be found guilty and the other acquitted. United States v. Hamilton, 8 Chic. L. N., 211. An indictment in which there is a joinder of offences or offenders, is to be considered so far as the jury are concerned, as a several one as to each offence or offender. If it contain two or more counts upon distinct offences or offenders, or upon different statements of the same offence, the jury may find a verdict of guilty or not guilty upon any or all of such counts. If there is any count upon which they are not agreed, they may be discharged without verdict as to it ; and such count will stand for trial. United States v. Davenport, Deady, 264. 3. Sealed Verdict. — Where a defendant in a criminal case agrees to a sealed verdict, and the jury deliver to the clerk their verdict, find- ing him guilty, and then separate, the defendant has no right to have the jury polled when the verdict is read. United States v. Bridges, lOCent. L. J., 7. But where it is agreed that a verdict may be signed and sealed by the jurors and delivered in court, and they are required to meet the court when it again convenes, it is the right of the defendant to have the jury present in court when the verdict is opened. Doyle v. United States, 10 Fed. Rep., 269 ; but where there is no agreement, etc., the verdict cannot be left with the clerk and be opened by him in the absence of the jury ; it must be brought by the jury into court and opened in their presence. United States V. Potter, 6 McLean, 182. And see note by Wharton, 10 Fed. Rep., 274. A sealed verdict cannot be received in a capital case. United States v. "Vigol, 2 Dall., 346, note. SENTKNCE. 4. Cruel and Umrsual Punishments.:— E^xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Const. Amend., Art. VIII. Note. — The provision of the Constitution that "excessive fines shall not be imposed, nor cruel and unusual punishments in- SUPEEME COTJET, DISTRICT OF COLUMBIA. 319 flicted" applies to National not to State legislation. Pervear v. The Commonwealth, 5 Wall., 476. 5. Whipping and tlie Pillory Abolished. — The punishment of whipping and of standing in the pillory shall not be in- flicted. E. S. TJ. S., 5327. Notes. — If the judge who tries an indictment, upon which a verdict of guilty is found, fail to pronounce sentence during the term of the court at which the verdict was found,, by accident, mistake, or de- sign, he may do so at any subsequent term, and so may any other judge holding the same court. United States v. May, 2 Mac A., 512. Where the indictment is good but the term of imprisonment to which the prisoner has been sentenced exceeds the period fixed by the statute, the case may be remanded to the court below for the imposition ofa shorter term. United States v. Bicksler,! Mackey,342. When a party is convicted of an offence and sentenced to pay a fine, it is within the discretion of the court to order his imprisonment until the fine shall be paid. Ex parte Jackson, 96 U. S., 727. 6. Cumulative Sentences. — If distinct offences, although of a similar character, are set forth in several counts in the same indictment and a fortiori if set forth in different indictments or imformations, it is in the power of the c6urt to impose cumulative sentences, that is, periods of confinement, each one of which is independent of the other. In re George Pry, 3 Mackey, 135. A cumulative sentence of imprisonment is sufficiently certain when made to commence at the expiration of an imprisonment under a previous sentence, the number and date of which is given. Id. 7. Costs of Prosecution, When to be Paid by Defendant. — When judgment is rendered against the defendant in a prosecution fpr any fine or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs ; and on every conviction for any other offence not capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution. E. S. TJ. S., sec. 974. 8. Court may add to Judgment of Death that Body be De- livered for Dissection. — The court bbfore which any person is convicted of murder, may, in it^ discretion, add to the judg- ment of death, that the body of the offender be delivered to a surgeon for dissection; and the marshal who executes such judgment shall deliver the body, after execution, to such sur- geon as the court may direct ; and such surgeon, or some per- son by him appointed, shall receive and take away the body at the time of execution. E. S. TJ. S., sec. 5340. See sec. 5402, R. S. U. S., Rescuing of or attempt to rescue body while being conveyed, after execution, to place for dissection; Penal- ty for. 320 PRACTICE AND PEOCEDUEE OP THE 9. When Execution of Sentencel'may be Postponed. — To en- able any person convicted by the judgment of the court, to apply for a writ of error, in all cases when the judg- ment shall be death, or confinement in the penitentiary, the court shall, on application of the party accused, postpone the final execution thereof to a reasonaljle time beyond the next term of the court, not exceeding in any case thirty days after the end of such term. R. S. D. C, sec. 845. Notes. — The first day of a term of this court, but not its duration, is fixed ; the term ends whenever the court adjourns sine die, and is then determined for all purposes. If, therefore, the next day to which final execution of a sentence is postponed falls after the next term of this court as determined by its adjournment sine die, execu- tion is postponed in accordance with the meaning of section 845 of the Revised) Statutes of the District of Columbia. United States V. Guiteau, 1 Mackey, 498. If it should happen in any case that this court has prolonged the " next term " referred to in this section until the day set for final ex- ecution is reached, the criminal court would then be authorized, upon application of the party, to postpone execution, so that it should fall after the actual adjoumm.ent sine die of this court. United States v. Guiteau, 1 Mackey, 498. EXECUTION. 10. Judgments for Fines, How CoUected.^Inall criminal orpe- nal cases in which judgment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or i^enalty is concerned, may be enforced Ijy execution against the property of the defendant in like man- ner as judgments in civil cases are enforced: Provided, That where the judgnient directs that the defendant shall be im- prisoned until the fine or penalty imposed is paid, the issue of execution on the judgment shall not operate to discharge the defendant from imprisonment until the amount of the jiidg- ment is collected or otherwise paid. E. S. TJ. S. , sec. 1041. Note. — If nothing is said in the judgment concerning the mode of enforcing it, the district attorney at his election may issue afi.fa,, or a capias pro fine; if the judgment provide for a fi, /a., a capias pro fine cannot be issued; but if the judgment provides that the party shall stand committed until the fine is paid a capias pro fine may is- sue . Ex parte Teuscher, 23 Int. Rev. Rec, 202. 11. When Sentence is to Penitentiary, How Executed.— All persons who 'have been, or who may hereafter be, convicted of crime by any court of the United States whose punishment SUPREME COURT, DISTRICT OE COLUMBIA. 321 is imprisomnent in a District or Territory where, at the time of conviction, or at any time during the term of imprison- ment, there may be no penitentiary or jail suitable for the confinement of convicts or available therefor, shall be con- fined during the term for which they have been or may be sentenced, or during the residue of said term, in some suit- able jail or penitentiary in a convenient State or Territory, to be designated by the attorney-general, and shall be trans- ported and delivered to the warden or keeper of such jail or penitentiary by the marshal of the District or Territory where the conviction has occurred ; and if the conviction be had in the District of Columbia, the transportation and delivery shall be by the warden of the jail of that District ; the reasonable actual expense of transportation, necessary subsistence, and hire and transportation of guards and the marshal, or the warden of the jail in the District of Columbia, only, to be paid by the attorney -general, out of the judiciary fund. But if, in the opinion of the attorney-g'eneral, the expense of transporta- tion from any State, Territory or the District of Columbia, in which there is no penitentiary, will exceed the cost of main- taining them in jail in the State, Territory, or the District of Columbia during the period of their sentence, then it shall be lawful so to confine them therein for the period designated in their respective sentences. And the place of imprisonment may be changed in any case, when, in the opinion of the attorney-general, it is necessary for the preservation of the health of the prisoner, or when, in his opinion, the place of confinement is not sufficient to secure the custody of the prisoner, or because of cruel or improper treatment : Provided, however, That no change shall be made in the case of any prisoner on the ground of the unhealthiness of the prisoner, or Ibecause of his treatment, after his conviction and during his term of imprisonment, unless such change shall be applied for by such prisoner, or some one in his behalf. R. S. U. S., see. 5546. The attorney-general shall contract with the managers or proper authorities having control of such prisoners, for the imprisonment, subsistence, and proper employment of them, and shall give the court having jurisdiction of such offences notice of the jail or penitentiary where such prisoners will be confined. E. S. TJ. S., sec. 5547. J2, When Sentence of Juvenile Offenders is Imprisonment, 41 322 FRAOTICE ANO PEOCEDUEE OF THE How Executed. — Juvenile offenders against the laws of the United States, being under the age of sixteen years, and who may hereafter be convicted of crime, the punishment whereof is imprisonment, shall be confined during the term of sentence in some house of refuge to be designated by the attorney-gen- eral, and shall be trainsported and delivered to the warden or keeper of such house of refuge by the marshal of the district where such conviction has occurred ; or if such conviction be had in the District of Columbia, then the transportation and delivery shall be by the warden of the jail of that Distiict, and the reasonable actual expense of the transportation, necessary subsistence, and hire, and transportation of assistants and the marshal or warden, only, shall be paid by the attorney-general, out of the judiciary fund. E. S. U. S., sec. 5549. The attorney -general shall contract with the managers or isersons having control of such houses of refuge for the im- prisonment, subsistence, and proper employment of all such juvenile offenders, and shall give the several courts of the United States and of the District of Columbia notice of the places so provided for the confinement of such offenders ; and they shall be sentenced to confinement in the house of refuge nearest the place of conviction so designated by the attorney- general. E. S. U. S., sec. 5550. EXECUTION IN CAPITAL CASES. 13. Benefit of Clergy Abolished.— The benefit of clergy shall not be used or allowed, upon conviction of any crime for which the punishment is death. E. S. U. S., sec. 5329. 14. Panishmsnt of Death to he by Hanging. — The manner of inflicting the punishment of death shall be by hanging. E. S. U. S., sec. 5325. 15. Warden of Jail to Execute Judgment of Death.— When- ever any jjerson confined in the jail is adjudged to suffer death, it shall be the duty of the warden to carry such judgment into execution. E. S. D. C, sec. 1092. 16. Place of Execution. — Persons adjudged to suffer death shall be executed within the walls of some prison in the Dis- trict, or within a yard or inclosure adjoining such prison, and not elsewhere. E. S. D. C. , sec. 1093. 17. Officers Required to Attend. — It shall be the duty of the warden, or one of his deputies, with such officers of the prison, constables, and other peace-officers as the warden or deputy SUPREME COURT, DISTRICT OF COLUMBIA. 323 may deem necessary and jproper, to attend at sucli execution. H. S. D. C, sec. 1094. 18. Who may be Present.— The warden, or his deputy, shall invite the district attorney, the counsel of the prisoner, t-wo or more physieiaus, and twelve respectable citizens to be present at every such execution ; and, at the request of the person to be executed, shall also allow any of his near relatives, and any ministers of the Gospel, not more than three, to be present thereat. E. S. D. C, sec. 1095. 19. Who shall not be Allowed to Witness Executions.— No persons other than those mentioned in the two preceding sec- tions, and no person whatever under the age of twenty-one years, shkll be allowed to witness any such execution. E. S. D. C, sec. 1096. 20. Capital Cases carried to the Sapreme Court of the United States — Execution to be Postponed. — Wherever a judgment of death is rendered in any court of the United States, and the case is carried to the supreme court in pursuance of law, the court rendering such judgment shall, by its order, postpone the execution thereof from time to time and from term to term, until the mandate of the supreme court in the case is received and entered upon the records of such lower court. In case of affirmance by the supreme court, the court rendering the origi- nal judgment shall appoint a day for the execution thereof ; and in case of reversal, such further proceedings shall be had in the lower court as the supreme court may direct. E. S. U. S., sec. 1040. Note.— The statutes and rules of court relating to new trials, ap- peals, bills of exception, etc., will be found with numerous annota* tions at pages 178 and 212 of this volume. The provisions there to be found apply as fully to criminal as to civil procedure. It is, there- fore, unnecessary to give a new chapter upon these particular topics, since it would only consist of a reprint of much of those pages with- out giving anything of special irnportance which may not be found there. 324 FEACTICE AND PEOCEDTJEB OP THE CHAPTER IX. SUMMARY TRIALS FOR CERTAIN" OFFENCES AG-AINST NAVIGATION LAWS. 1. When summary trials may be had. 2. Complaint and answer. 3. Amendments and adjourn- ments. 4. Challenges to jurors. 5. Limit of sentences. 6. Recovery of. penalties and forfeitures under navigation laws. 1. When Summary Trials may be had. — Whenever a com- plaint shall be made against any master, oificer, or seaman of any vessel belonging, in whole or in part, to any citizen of the United States, of the commission of any offence, not capital or otherwise infamous, against any law of the United States made for the protection of persons or property engaged in commerce or navigation, it shall be the duty of the district attorney to investigate the same, and the general nature there- of, and if, in his opinion, the case is such as should be sum- marily tried, he shall report the same to the district judge, and the judge shall forthwith, or as soon as the ordinary business of the court will permit, proceed to try the cause, and for that purpose may, if necessary, hold a special session of the court, either in term-time or vacation. E. S. U. S., feec. 4300. Note. — While the geographical location of the District of Columbia may seldom call into operation the provisions of this chapter, there is no doubt of its application to this jurisdiction whenever a proper occasion for its enforcementmay arise. The justice holding the District court would in that event be charged with the duty of trying the case. 2. Complaint and Answer. — At the summary trial t»f offences against the laws for the protection of persons or property en- gaged in commerce or navigation, it shall not be necessary that the accused shall have been previously indicted, but a statement of complaint, verified by oath in writing, shall be presented to the court, setting out the offence in such manner as clearly to apprise the accused of the character of the offence complained of, and to enable him to answer the complaint. The complaint or statement shall be read to the accused, who may plead to or answer the same, or make a counter-statement. The trial shall thereupon be proceeded with in a summary SUPREME COURT, DISTRICT OE COLUMBIA. 325 manner, and the case shall be decided by the court, unless, at the time for pleading or answering, the accused shall demand a jury, in which case the trial shall be upon the complaint and plea of not guilty. E. S. U. S., sec. 4301. 3. Amendments and Adjournments. — It shall be lawful for the court to allow the district attorney to amend his statement of complaint at any stage of the proceedings, before verdict, if, in the opinion of the court, such amendment will work no injustice to the accused ; and if it appears to the court that the accused is unprepared to meet the charge as amended, and that an adjournment of the cause will promote the ends of jus- tice, such adjournment shall be made, until a further day, to be fixed by the court. E. S. TJ. S., sec. 4302. 4. Challenges to Jurors. — At the trial in summary cases, if by jury, the United States and the accused shall each be en- titled to three peremptory challenges. Challenges for cause in such cases, shall be tried by the court without the aid of triers. E. S. U. S., see. 4303. 5. Limit of Sentences. — It shall not be lawful for the court to sentence any person convicted in such trial to any greater punishment than imprisonment in jail for one year, or to a fine exceeding five hundred dollars, or both, in its discretion, in those cases where the laws of the United States authorize such imprisonment and fine. E. S, U. S., sec. 4304. 6. Recovery of Penalties and Forfeitures Under Navigation Laws. — All the penalties and forfeitures which may be in- curred for offences against this Title may be sued for, prose- cuted, and recovered in such court, and be disposed of in such manner, as any penalties and forfeitures which may be in- curred for offences against the laws relating to the collection of duties, except when otherwise expressly prescribed. E. S. U. S., sec. 4305. 326 PRACTICE AND PEOCEDUEE OP THE CHAPTEE X. EXTRADITION". FOREIGN EXTRADITION. 1. Fugitives from the justice of a foreign country. 2. Evidence on the hearing. 3. Suhpcena of witnesses for de- fence. 4. Witness fees, costs, etc., how paid. 5. Evidence on the hearing, fur- ther provisions. 6. Repeal in part of section 5271, R. S. U. S. 7. Surrender of the fugitive. 8. Time allowed for extradition. 9. Continuance of provisions lim- ited. 10. Protection of the accused. 11. Powers of agent receiving of- fenders delivered by a for- eign government, 12. Penalty for opposing agent, etc. INTERSTATE BXTEADITION. 13. Constitutional provision. 14. Duty of chief justice in inter- state extradition cases. 15. In case of absence, etc., of chief justice, senior associate justice to act. 16. Fugitives from justice of a State or Territory. 17. Penalty for resisting agent, etc. 18. What are extradiotable crimes, 19. Who are fugitives from jus- tice. 20. Arrest before demand made. 21. The demand. 22. Duty of executive upon whom the demand is made. 23. The defendant must be charged with crime. 24. Sufficiency of the indictment, 25. The affidavit. 26. Authentication of the papers. 27. Extradition may be refused if accused be already held on a criminal charge in jurisdic- tion where found. 28. Jurisdiction of the court to inquire on habeas corpus in- to the cause of detention. 29. Guilt or innocence not to be investigated on habeas cor- pus. 30. Extradition to. the District of criminals fleeing- therefrom. PROVISIONS AS TO POEEIGN SEA- MEN. 31. Arrest of deserting seamen from foreign vessels. 32. Powers of foreign consuls over disputes between seamen. 33. Arrest of seamen on applica- tion of consul. 34. Commitment and discharge. FOREIGN EXTRADITION, 1. Fugitives from the Justice of a Foreign Country.— When- ever there is a treaty or eonvention for extradition between the Government of the United States and any foreign government, any justice of the supreme court, circuit judge, district judge, commissioner, authorized so to do by any of the courts of the- United States, or judge of a court of record of general jurisdic- SUPREME COURT, DISTRICT OP COLUMBIA. 327 tion of any State, may, upon complaint made under oath, charging any person found within the limits of any State, Dis- trict, or Territory, with having committed within the jurisdic- tion of any such foreign government any of the crimes pro- vided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or con- vention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper au- thorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or conven- tion ; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made. E. S. U. S., sec. 5270. Ifote. — In the index to the public treaties (bound with the Revised Statutes relating to the District of Columbia), there will be found a list of all the crimes for which fugitives from justice may be de- livered up under respective treaties with foreign governments. Subsequent treaties will be found as follows:' "With Spain, 19 Stat., 650 ; 22 Stat., 991 ; with Belgium, 18 Stat., 804 ; 22 Stat., 572 ; with Luxemburg, 23 Stat., 808 ; with Ottoman Empire, 19 Stat., 972 ; with the Netherlands, 21 Stat., 761, 775. To attempt here anything lUae a complete or even a useful digest of the Federal decisions upon foreign extradition would extend the limits of this chapter far be- yond that which can reasonably be spared to such a topic, while on the other hand to give only a partial synopsis of such authorities would be worse than useless, because misleading. Nor is anything of the sort at all necessary in view of the able and carefully prepared bibliographic note and digest of Federal cases to be found in Abbott's National Digest (edition of 1884), vol. 2, Title Extradition, a volume so easy of access to the practicing lawyer, that a mere reference to its pages is all that is needed to furnish the reader with a full index to the text books, magazine articles and decisions upon the subject of foreign extradition. With respect, however, to interstate or domes- tic extradition under the provisions of the Revised Statutes of the United States, all of which are made applicable to this District by section 843, R. S. D. 0., post, a few notes will |be attempted in view of the much more frequent occurrence of such cases in this jurisdic- tion. 2. Evidence on the Hearing.— In every case of complaint, and of a hearing upon the return of the warrant of arrest. 328 , PRACTICE AND PEOCEDtTEE OF THE copies of the depositions npon whicli an original warrant in any foreign country may liave been granted, certified under the hand of the person issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the crimi- nality of the person so apprehended, if they are authenticated in such manner as would entitle them to be received for simi- lar purposes by the tribunals of the foreign country from which the accused partj' escaped. The certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any paper or other document so offered is authenticated in the manner required by this section. E. S. TJ. S., sec. 5271. Jfote. — This section has been in part repealed by act of August 3, 1882. 22 Stats., 216, cited below. 3. SnbpoeDa of Witnesses for Defence. — All hearings in cases of extradition under any treaty stipulation or convention shall be held on land, publicly, and in a room or office easily acces- sible to the public. That on the hearing of any case under a claim of extradition by any foreign government, upon affidavit being filed by the person charged setting forth that there are witnesses whose evidence is material for his defence, that he cannot safely go to trial without them, what he expects to prove by each of them, and that he is not possessed of suffi- cient means, and is actually unable to pay the fees of such wit- nesses, the judge or commissioner before whom such claim for extradition is heard may order that such witnesses be sub- poenaed ; and in such case the costs incurred by the process, and the fees of witnesses, shall be paid in the same manner that similar fees are paid in the case of witnesses subpoenaed in behalf of the United States. Act of August 3, 1882, sec. 3 ; 22 Stat., 215. 4. Witness Fees, Costs, etc., How Paid.— All witness fees and costs of every nature in cases of extradition, including the fees of the commissioner, shall be certified by the judge or commissioner before whom the hearing shall take place to the Secretary of State of the United States, who is hereby author- ized to allow the payment thereof out of the appropriation to defray the expenses of the judiciary ; and the Secretary of State shall cause the amount of said fees and costs so allowed! to be reimbursed to the Government of the United States by STTPKEME OOXJET, DISTEICT OP COLXTMBIA. 329 the foreign government by whom the proceedings for extradi- tion may have been instituted. Id., sec. 4. 5. Evidence on the Hearing, Further Provisions.^In all cases where any depositions, warrants, or other papers or copies thereof shall be offered in evidence upon the hearing of any extradition case under Title Sixty-six of the Eevised Statutes, of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing, for all the purposes of such hear- ing, if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribu- nals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant or other paper or copies thereof, so offered, are authenticated in the manner required by this act. Id., sec. 5. 6. Repeal in part of Section 5271, R. S. U. 8.— The act ap- proved June nineteen, eighteen hundred and seventy-six, en- titled " An act to amend section fifty-two hundred and seventy- one of the Eevised Statutes of the United States," and so much of said section fifty-two hundred and seventy-one of the Ee- vised Statutes of the United States as is inconsistent with the provisions of this act, are hereby repealed. Id., sec. 6. 7. Surrender of the Fugitive.— It shall be lawful for the Sec- retary of State, under his hand and seal of office, to order the person so committed to be delivered to such person as shall be authorized, in the name and on behalf of such foreign govern- ment, to be tried for the crime of which such person shall be so accused, and such person shall be delivered up accordingly; and it shall be lawful for the pereon so authorized to hold such person in custody, and to take him to the territory of such foreign government, pursuant to such treaty. If the person so accused shall escape out of any custody to which he shall be delivered, it shall be lawful to retake such person in the same manner as any person accused of any crime against the laws in force in that part of the United States to which he shall so es- cape, may be retaken on an escape. E. S. U. S., sec. 5272. 8. Time Allowed for Extradition.— Whenever any person who is committed under this Title or any treaty, to remain until delivered up in pursuance of a requisition, is not so 42 330 PEACTIOE AND PEOCEDTJRE OF THE delivered up and conveyed out of the United States within two calendar months after such commitment, over and above the time actually required to convey the prisoner from the jail to which he was comiaitted, by the readiest way, out of the United States, it shall be lawful for any judge of the United States, or of any State, upon application made to him by or on behalf of the person so committed, and upon proof made to him that reasonable notice of the intention to make such application has been given to the Secretary of State, to order the person so committed to be discharged out of custody, un- less sufficient cause is shown to such judge why such discharge ought not to be ordered. E. S. U. S., sec. 5273. 9. Continuance of Provisions Limited. — The provisions of this Title relating to the surrender of persons who have com- mitted crimes in foreign countries shall continue in force during the existence of any treaty of extradition with any foreign government, and no longer. E. S. U. S., sec. 5274. 10. Protection of the Accused. — Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safe-keeping of such accused per- son, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offences specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offences, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe-keeping and protection of the accused. E. S. U. S. , sec. 5275. 11. Powers of Agent Receiving Offenders Delivered by a Foreign Government. — Any person duly appointed as agent to receive, in behalf of the United States, the delivery, by a foreign government, of any person accused of crime committed within the jurisdiction of the United States, and to convey him to the place of his trial, shall have all the powers of a marshal of the United States, in the several districts through which it may be necessary for him to pass with such prisoner, so far SUPREME COTmT, DISTRICT OF COLOMBIA. 831 as such power is requisite for tlie prisoner's safe-keeping. E. S. U. S., sec. 5276. 12. Penalty for Dpposiiig Agent, etc. — Every person who knowingly and wilfully obstructs, resists, or opposes such agent in the execution of his duties, or who rescues or at- tempts to rescue such prisoner, whether in the custody of the agent or of any officer or person to whom his custody has law- fully been committed, shall be punishable by a fine of not more than one thousand dollars, and by impi'isonment for not more than one year. E. S. U. S., sec. 5277. INTERSTATE EXTRADITION. 13. Constitutional Provision.— A person charged in any State with treason, felony, or other crime, who shall flee from jus- tice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be de- livered up, to be removed to the State having jurisdiction of the crime. Constitution, Art. IV, sec. 2. Ifote. — It will be observed that this provision of the constitution is confined by its terms to the States, and does not include the Terri- tories and the District of Columbia. This, however, is of little if any practical importance, since the Act of Congress upon the, same subject, as was said by Judge Story in Prigg v. Common- Wealth, 16 Pet., 539, "may be truly said to cover the whole ground of the constitution," and this Act Congress, by section 843, R. S. t). C, below given, has expressly made applicable to the District. 14. Duty of Chief Justice in Interstajte Extradition Cases.— In all cases where the laws of the IJnited States provide that fugitives from justice shall be delivered up, the chief justice of the su- preme court shall cause to be apprehended and delivered up such fugitive from justice who shall be found within the District, in the same manner and under the same regulations as the execu- tive authority, of the several States are required to do by the provisions of sections fifty-two hundred and seventy-eight and fifty-two hundred and seventy-nine. Title LXYI, of the Ee- vised Statutes, "Extradition;" and all executive and judicial ofQcers are required to obey the lawful precepts or other pro- cess issued for that purpose, and to aid and assist in such de- livery. E. S. D. C, sec. 843. 15. In Case of Absence, etc., of Chief Justice, Senior Associate Justice to Act. — The powers conferred upon and the duties pre- scribed for the chief justice of the supreme court of the District of Columbia, in relation to fugitives from justice, by section 332 PEACTICE AND PEOOEDUEE OE THE eight hundred and forty-three, etc., [the above act, J shall in case of his absence or disability, devolve upon and be dis- charged by the senior associate justice of said court who may be present in said District and able to act. Act of March 3, 1883, sec. 1, (22 Stat., 530.) 16. Fugitives from Justice of a State or Territory. — When- ever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive au- thority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affi- davit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the execu- tive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority ap- pointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses in- curred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Territory. E. S. U. S., sec. 5278. 17. Penalty for Resisting Agent, etc.— Any agent so ap- pointed who receives the fugitive into his custody, shall be empowered to transport him to the State or Territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars or imprisoned not more than one year. E. S. TJ. S., sec. 5279. 18. What are Extradictable Crimes.— The words "treason, felony, or other crime" embraces every act forbidden and made punishable by the law of the State making the demand, including misdemea- nors. Kentucky v. Dennison, 24 How., 66 ; Ex parte Beggel, 114 U. S., 642. 19. Who are Fugritiyes from Justice. — "A person who commits a crime within a State, and withdraws himself from such jurisdiction without awaiting to abide the consequences of such act," is a fugitive STJPEEME COURT, DISTRICT OF COLUMBIA. 333 from justice. Matter of Voorhees, 32 N. J. Law, 141, 150. A person who commits a crime in one State for which he is indicted, and de- parts therefrom and is found in another State, may well be regarded as a fugitive from justice. Hibler v. State, 43 Tex., 197. He may even be there against his will, having been brought back on requisition from a third State, but this will not preclude his rendi- tion to the State whence he fled. People v. Sennott, 20 Abb. L. J., 230; 1 Crim. L. Mag., 265. One who goes into a State, commits a crime, and then returns home, is as much a fugitive from justice as though he had committed a crime in the State in which he resided, and then fled to some other State. Kingsbury's Case, 106 Mass., 223. But he must have been actually in the demanding State when the crime was alleged to have been committed, and not constructively present. Wilcox V. Nolze, 34 Ohio St., 520. As to meaning of "constructive presence," see 7c?. The accused may show by parol on habeas corpus that he was never actually present in the demanding State. Wilcox V. Nolze, 34 Ohio St., 520, and see Hurd Hab. Corp., 620. 20. Arrest before Demand made. — A fugitive from justice may be arrested before a demand, and detained in custody a reasonable time to give the executive of the State from which he fled an oppor- tunity to issue a requisition. Matter of Goodhue, 1 Wheeler's Crim. Cas., 427 ; People v. Goodhue, 2 Johns. Ch., 192 ; People v. Schenck, 2 Johns., 479; Commonwealth v. Deacon, 10 Serg. & P., 125; State V. Buzine, 4 Horring, 572. But in such case there must be evidence that a crime has been committed. Ex parte McKean, 3 Hughes, 23. 21. The Demand. — The accused can only be delivered up upon the formal requisition of the governor or chief magistrate. Church Hab. Corp., sec. 474; Botts v. Williams, 17 B. Mon., 687. And the requisition must be made in good faith according to the letter and intent of the constitution and the law, and not in violation of the spirit and design of both, and the executive upon whom demand is made has the right even when all the papers are technically correct, to inquire whether the requisition is made for a purpose foreign to the object of the law, and may exercise his discretion in such case in refusing to comply with the request. Spear on Extradition, 339, 340; Church Hab. Corp., sec. 474. 22. Duty of ExecutiTB upon whom the Demand is made.— In the rendition of fugitives from justice under the United States laws, the executives of the jurisdiction demanding the fugitive and that where he is found stand co-equal, and are to exercise their authority in the protection of the laws of their respective jurisdictions and of the citizens thereof. Cartter, O. J., in State of North Carolina v. Perry, 22 Alb. Law J., 513, and see the note to this case in 2 Crim. L. Mag., 84, wherein is discussed the distinction between executive and judi- cial functions in extradition cases between the States. The delivering up of a fugitive by an executive from whom he is demanded is a dis- cretionary duty to be exercised within authority and right and to be governed by law. Id. 334 PRACTICE AND PEOOEDTJEE OP THE 23. The Defendant must be Charged with Crime.— There niust be a legal accusation by indictment or afBdavit, charging the party with the commission of crime such as would have justified his arrest and commitment to prison, or holding him to bail, in the State or Terri- tory in which the crime is alleged to have been committed. Ken- tucky V. Dennison, 24 How., 66. A prosecution must have been com- menced in the regular course of judicial proceeding, either by afadavit made before the magistrate sufficiently explicit in its statements of fact as would justify an arrest, or by indictment. Ex parte White, 49 Oal., 433 ; Kentucky v. Dennison^ supra ; Ex parte Smith, 3 McLean, 121. And the proceeding must be pending. Id. It is not necessary that a warrant should have been issued for the arrest of the fugitive in the State from which he has fled. It is the indictment or afiSdavit, and not the issuing of a warrant, that constitutes the charge. TuUis v. Fleming, 69 Ind , 15. 24. Sufficiency of the Indictment. — When an indictment appears to have been returned by a grand jury, and is certified as authentic by the governor of the demanding State, and substantially charges a crime, neither the executive, nor the court on habeas corpus, can discharge the prisoner because of formal defects therein. The suffi- ciency of the charge, as a matter of technical pleading, is to be tried and determined in the State in which the indictment is found. Ken- tucky V. Dennison, 24 How., 66 ; Davis' Case, 122 Mass., 324. To same effect see Matter of Voorhees, 32 N. J. Law, 141. In re Greenhough, 31 Vt., 279; Hibler v. State, 43 Tex., 197. 25. The Affidavit. — The afiidavit must distinctly charge a crime committed by the accused in the State or Territory from which he has fled. Ex parte Smith, 3 McLean, 121 ; People v. Brady, 56 N. Y., 182. And it must not be founded on belief or hearsay. Matter of Leland, 7 Abb. Pr., N. S., 64 ; Matter of Rutter, Id., 67. The affidavit, being the ex parte statement of the accuser, s.hould, if anything, be even more certain, full, and specific than the indictment which is found by a body standing indifferent between the parties, and who are supposed to act upon competent proof in finding the bill. Peo- ple V. Brady, 56 N. Y., 182. It must at least be so explicit and cer- tain that if it were laid before a magistrate it would justify him in committing the accused to answer the charge, Hurd Hab. Corp., 611, 2 ed. ; Ex parte Smith, 3 McLean, 121 ; Matter of Fetter, 3 Zab., 311. It must also allege that the accused has fled from justice. Mat- ter of Heyward, 1 Sandf., 701. But if it allege that he committed the crime and then fled, it is sufficient from which to deduce the con- clusion that he is a fugitive from justice. Matter of Manchester, 5 Cal., 237. It is not necessary that the affidavit should be made be- fore the flight of the criminal. 6 Am. Jurist, 226. 26. Au|,hentication of the Papers.— The evidence that such pro- ceedings have been commenced is a copy of the indictment oraffld Sr- vit, "certifled as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged fled," and the SUPBEME COURT, DISTRICT OP COLUMBIA. 335 certificate is conclusive as to their verity. Tlie delivering executive has no right to look behind them, or to question, or to look into the character of the crime specified. Kentucky v. Dennison, 24 How., 66. But it must appear that he is substantially charged with a crime against the laws of the demanding State. Roberts v. Relly, 116 U. S., 80 ; Kentucky v. Dennison, supra. The executive issuing the requisition is the only proper judge of the authenticity of the affida- vit, and his certificate that the affidavit is " duly authenticated accord- ing to the laws " of the State is sufiftcient. In re Manchester, 5 Oal., 237. The authentication must be by the governor or chief magis- trate ; if by a secretary of state it is insufficient. Solomon's Case, 1 Abb. Pr., N. S., 347. 27. Extradition may be Refused if Accused Ibe already Held on a Criminal Charge in Jurisdiction where Found. — If the fugitive stands already detained on a criminal charge by the authorities of the juris- diction where the requisition found him, he may be held to make satisfaction to the laws there before being extradicted. Matter of Troutman, 4 Zab., 634. And the rule applies where the requisition finds him detained under civil process. Matter of Briscoe, 51 How. Pr., 422. Otherwise where, between the arrest and the issuing of the warrant for his extradition, he is arrested on civil process. Ex parte Kosenblatt, 51 Cal., 285. 28. Jurisdiction of the Court to Inquire on HabeasCoi-pus into the Cause of Detention. — When the executive has acted and issued his warrant for the arrest and detention of the party, the prisoner may have the writ of habeas corpus for the purpose of testing whether or not he is properly detained, and in this way obtain in some measure a review of the executive action. Ex parte Smith, 3 McLean, 121 ; Hartman v. Aveline, 63 Ind., 344 ; s. c, 30 Am. Rep., 217. And the executive will always see that before the fugitive is actually deliv- ered to the agent of the demanding State he has a reasonable oppor- tunity to apply for a writ of habeas corpus to have the legality of his imprisonment tested by the judiciary. Church Hab. Corp., sec. 474. The executive to whom the requisition is addressed must be the judge of the existence, authenticity, and weight of the evidence which the law requires, upon which an alleged fugitive criminal may be extra- dicted, but the prisoner may on habeas corpus ask the court to de- termine whether the evidence is such as the law prescribes, for the requirements of the law must be exactly fulfilled. Spear on Extradi- tion, 304; Church Hab. Corp., sec. 480 ; Matter of Hey ward, 1 Sandf., 701 ; Ex parte McKean, 3 Hughes, 23. The court must see that there was a proper demand, accompanied by a copy of a legal indictment or affidavit charging the fugitive with having committed a crime in the demanding State. The copy must be duly authenticated, and the executive must have issued his warrant for the arrest of the ac- cused. Spear on Extradition, 304; Church Hab. Corp., sec. 480. When these facts appear upon the return to a habeas corpus the court will rarely interfere, except it be called for by some extrinsic or ex- 336 PEACTICE AND PEOCEDXTEE OP TEE traneous matter. , Id. The general rule is that the warrant of the executive is prima facie evidence at least, that all the previous pro- ceedings have been regular. Ex parte Sheldon, 34 Ohio St., 319 ; Ex parte Watson, 2 Cal., 59; Matter of Olark, 9 Wend., 212; Ex parte Manchester, 5 Oal., 237 ; Davis' Case, 122 Mass., 324 ; Com. v. Hall, 9 Gray, 262 ; Hibler v. The State, 43 Tex., 197; Taylor v. Taintor, 16 Wall., 366 ; Leary's Case, 10 Ben., 197. But see People v. Brady, 56 N. Y., 182; Jones v. Leonard, 50 Iowa, 106 ; Wilcox v. Nolze, 34 Ohio St., 520. 29. Guilt or Innocence not to he Investigrated on Habeas CoiiJiis. — It is settled that the guilt or innocence of the prisoner will not be in- vestigated on habeas corpus. Story on the Const., sec. 1812 ; Mat- ter of Clark, 9 Wend., 212 ; People v. Brady, 56 N. Y., 182 ; Matter of Voorhees, 62 K. J. Law, 141. If the copy of the indictment con- tain a sufficient charge of crime that is enough ; nor will the court pass upon the sufficiency of the indictment as a matter of technical pleading. Matter of Voorhees, 32 N. J. Law, 141, and see cases cited in section 24, supra. But where the arrest has been made before any demand by the State executive, it is different, and the court may inquire whether a crime has been committed under the laws of the demanding State. State v. Schlemn, 4 Harring, 577 ; State v. Eu- gene, Id., 572. 30. Extradition to the District of Criminal Fleeing therefrom. — For a criminal offence, committed within the District of Columbia, the offender, if found beyond the District, may be removed to the District for trial. In re Buell, 3 Dill., 116. But see the Matter of Charles Dana, 7 Ben., 1, where Mr. Justice Blatchford refused to issue the warrant, not on the ground that in a proper case .an offender against the laws of the District might not be removed there for trial, but on the ground of the unconstitutionality of the police court where it was proposed to try the accused. PROVISIONS AS TO FOREIGN SEAMEN. 31. Arrest of Deserting Seamen from Foreign Vessels. — On application of a consul or vice-consul of any foreign gov- ernment having a treaty with the United States stipulating for the restoration of seamen deserting, made in writing, stat- ing that the person therein named has deserted from a vessel of any such government, while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship's roll, or other official document, that the person named belonged, at the time of desertion, to the crew of such vessel, it shall be the duty of any court, judge, commissioner of any circuit court, justice, or other magistrate, having com- petent power, to issue warrants to cause such person to be arrested for examination.. If,, on examination, the facts stated SUPllEME COURT, DISTRICT OP COLUMBIA. 337 are found to be true, the person arrested not being a citizen of the United States, shall be delivered up to the consul or vice- consul, to be sent back to the dominions of any such govern- ment, or, on the request and at the expense of the consul or vice-consul, shall be detained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such government. No person so arrested shall be detained more than two months after his arrest ; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such deserter shall be found to have committed any crime or offence, his surrender may be delayed until the tribunal before which the case shall be de- pending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect. E. S. U. S., sec. 5280. 32. Powers of Foreign Consuls over Disputes between Sea- men. — Whenever it is stipulated by treaty or convention be- tween the United States and any foreign nation that the con- sul-general, consuls, vice-consuls, or consular or commercial agents of each nation, shall have exclusive jurisdiction of con- troversies, difficulties, or disorders arising at sea or in the waters or ports of the other nation, between the master or officers and any of the crew, or between any of the crew them- selves, of any vessel belonging to the nation represented by such consular officer, such stipulations shall be executed and enforced within the jurisdiction of the United States as here- inafter declared. But before this section shall take effect as to the vessels of any particular nation having such treaty with the United States, the President shall be satisfied that similar provisions have been made for the execution of such treaty by the other contracting party, and shall issue his proclamation to tha^} effect, declaring this section to be in force as to such nation. E. S. U. S., sec. 4079. 33. Arrest of Seamen on Application of Consul.— In all cases within the purview of the preceding section the consul-general, consul, or other consular or commercial authority of such for- eign nation charged with the appropriate duty in the particu- lar case, may make application to any court of record of the United States, or to any judge thereof, or to any commissioner of a circuit court, setting fortli that such controversy, difficulty, or disorder has arisen, briefly stating the nature thereof, and when and where the same occurred, and exhibiting a certified 43 338 PEACTICE AND PEOCEDUEE OP THE copy or extract of the shipping-articles, roll, or other proper paper of the vessel, to the effect that the person in question is of the crew or ship's company of such vessel ; and further stating and certifying that such person has withdrawn himself, or is believed to be about to withdrawn himself, from the con- trol and discipline of the master and officers of the vessel, or that he has refused, or is about to refuse, to submit to and obey the lawful jurisdiction of such consular or commercial authority in the premises ; and further stating and certifying that, to the best of the knowledge and belief of the officer cer- tifying, such person is not a citizen of the United States. Such application shall be in writing and duly authenticated by the consular or other sufficient official seal. Thereupon such court, judge, or commissioner shall issue his warrant for the arrest of the person so complained of, directed to the marshal of the United States for the appropriate district, or in his discretion to any person, being a citizen of the United States, whom he may specially depute for the purpose, requiring such person to be brought before him for examination at a certain time and place. E. S. U. S., sec. 4080. 34. Commitment and Discharge, — If, on such examination, it is made to appear that the person so arrested is a citizen of the United States, he shall be forthwith discharged from arrest, and shall be left to the ordinary course of law. But if this is not made to appear, and such court, judge, or commissioner finds, uijon the papers hereinbefore referred to, a sufficient prima facie case that the matter concerns only the internal order and discipline of such foreign vessel, or, whether in its nature civil or criminal, does not affect directly the execution of the laws of the United States, or the rights and duties of any citizen of the United States, he shall forthwith, by his warrant, commit such person to prison, where prisoners under sentence of a court of the United States may be lawfully com- mitted, or, in his discretion, to the master, or chief officer of such foreign vessel, to be subject to the lawful orders, control, and discipline of such master or chief ofiBLcer, and to the juris- diction of the consular or commercial authority of the nation to which such vessel belongs, to the exclusion of any authority or jurisdiction in the premises of the United States, or any State thereof. No person shall be detained more than two months after his arrest, but at the end of that time shall be set at liberty and shall not again be arrested for the same SUPREME COURT, DISTRICT OP COLUMBIA. 339 cause. The expenses of the arrest and detention of the person so arrested shall be paid by the consular officers making the application. E. S. U. S. , sec. 4081. CHAPTEE XI. DISCHARGE OF POOR CONVICTS. 1. Prooeedinga before the com- missioner. 2. Form of application for dis- charge. 3. Mandate to jailer for produc- tion of convict. 4. Oath of convict. 5. Certificate of discharge. 1. Proceedings before the Commissioner. — When a poor con- vict, sentenced by any court of the United States to pay a fine, or fine and cost, whether with or without imprisonment, has been confined in prison thirty days, solely for the non-pay- ment of such fine, or fine and cost, he may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the dis- trict attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter ; and if on examination it shall appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall ad- minister to him the following oath : " I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of [State where oath is administered] ; and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God." And thereupon such convict shall be discharged, the commissioner giving to the jailer or keeper of the jail a certificate setting forth the facts. See sec. 5296, E. S. U. S., sec. 1042. Note. — An identical provision covering this subject is made by sec- tion 5296, R. S. U. S. A convict is not entitled to release on a condir tional pardon. Jn re Ruhl, 5 Sawy., 186. 340 PEACTICE AND PROCEDURE OF THE 2. Form of Application for Discharge. UNITED STATES OF AMERICA, DISTRICT OF COLUMBIA. United States") Application for Discharge from Imprisonment V. y under the provisions of Section 1042 of the ) Revised Statutes of the United States. To , a commissioner of the United States, for said District. I hereby make application for discharge from imprisonment in the District jail, under the provisions of section 1042 of the Revised Statutes of the United States ; and in support thereof state that I was sentenced to pay a fine of dollars and costs by the court of the District of Columbia ; that I have been imprisoned for thirty days solely for non-payment of fine and costs, and that I am unable to pay the same. I Applicant. day of , 188—. 3. Mandate to Jailer for Production of Convict. United States op Ameeica, District of Columbia. The United States of America, to the warden of the District jail, Greeting : Whereas, application has this day been made before , a com- missioner of the United States for said District, by , for a dis- charge from imprisonment in the jail of , under the provisions of section 1042 of the Revised Statutes of the United States. This is therefore to command you to produce the body of said before said commissioner forthwith. To the marshal of said District to execute. In testimony whereof, I hereunto set my hand at my oflBce in in said District, [Ofiacial Seal.] this day of 18— United States Commissioner for the District of Columbia. 4. Oath of Convict. UNITED STATES OF AMERICA, district of COLUMBIA. United States") Application for discharge from imprisonment V. ^ under the provisions of Section 1042 of the J Revised Statutes. I, , do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of ; and that I have no property in any way conveyed SUPREME COUET, DISTRICT OE OI-OUMBIA. 341 or concealed, or in any way disposed of, for my future use or benefit. So help me God. Subscribed and sworn to before me, this day of . A. D. 18—. United States Commissioner for the [Ofllcial Seal.] District of Columbia. 5. Certificate of Discharge. :tbd States of Amebi District of Columbia. United States^op Amebica, 1 g^ TTnited States ~i ijixiijai/ kji^ijas) 1 ^Application for discharge from imprisonment j under Section 1042 of the Eevised Statutes. It appearing to the Commissioner that , the above named defendant, has been imprisoned in the jail of the District of Colum- bia for the period of thirty days, solely for the non-payment of a fine and costs adjudged against him by the court of the District of Columbia, and that he is unable to pay the same, and has complied with all the requirements of law. It is therefore ordered, that said be discharged from further imprisonment and go hence without day. United States Commissioner for the District of Columbia, day of , 188—. 342 PRACTICE AND PEOCEDUEE OF THE CHAPTEE XIL THE POLICE COURT. 1. Police court established. 2. — Judge of, how appointed, term of office, salary, 3. Oath of judge. 4. Terms of court. 5. Rooms for holding court. 6. Salaries of judge and officers, how paid. 7 . In case of absence or disability of judge, who to discharge duties of. 8. Oath and compensation of substituted judge. , 9. Jurisdiction of the police court. 10. Power of judge to issue pro- cess f&r arrests. 11. Judge may examine and com- mit. 12. General powers of court. 13. Power to punish contempts. 14. Enforcement of sentences. 15. Rules and regulations. 16. Seal, acknowledgments' and oaths. CLEEE. 17. Clerk, appointment a;nd sal- ary.. 18. Deputy. 19. Bond and oath of clerk. 20. Power of, to administer oaths and affirmations. 21. Clerk to charge no fees. BAILIFFS. 22. Ifumber of bailiffs and com- pensation of. 23. May act as deputy-marshals for service of process. PKOSECUTIONS. 24. Prosecutions to be by infor- mation. 25. Process for violation of Dis- trict laws. 26. Process in other cases. 27. Form of process. 28. Marshal's fees. 29. What cases United States at- torney to jxrosecute. 30. Fees of. 31. What cases attorney of the District to prosecute. 32. Fees of witness. APPEALS TO SUPREME COUBT. 33. Appeals. 34. Bond on appeal. 35. — Stay of proceedings on. 3ff. Papers to be sent to supreme court. 37. Appellants failing to recog- nize. 3S. Appeals, how certified. RULES OP SUPREME COURT AS TO APPEALS PROM POLICE COURT EST CASES OP OFFENCES AGAINST' MUNICIPAL LAWS . 39. Appeals in cases of offences against municipal laws. 40. Deposit for cost— Docketing appeal. 41. Proceedings on failure to- prosecute appea,l. DISPOSALS OF COSTS, FINES, ANt) FORFEITURES. 42. Pines, penalties, costs, and forfeitures, how collected. 43. Disposal of moneys collected.. 1. Police Court Established. — There shall be in the District SUPREME COURT, DISTRICT OE COLUMBIA. 343 a court to be called the Police Court of the District of Columbia. E. S. D. C, sec. 1041. Note. — The police court was created by the Act of June 17, 1870 (16 Stats., 153), the provisions of which have been embodied in sections 1040 to 1080 of the Revised Statutes relating to the District of Columbia and which are given in this chapter. Serious doubts of the constitutionality of so much of the act as provides for trial with- out jury of offences against the criminal law have existed in the minds of many of the profession, and on more than one occasion its juris- diction has been attacked upon this ground. It was upon this ground that Judge Blatchford, in the Matter of Dana, 7 Ben., 1, (de- cided in 1873,) held the provision unconstitutional, and therefore re- fused to issue a warrant of extradition for the removal of the de- fendant to this District for trial in an unconstitutional court. The same question came some years afterwards before the general terra in the case of George Fry, 3 Mackey, 135. The prisoner had been convicted in the police court and sentenced to imprisonment. He sued out a writ of habeas corpus and raised the question amongst others of the constitutionality of the court. The opinion of the general term, delivered by Mr. Justice Cox, dealt with this question as follows : ' ' There were several positions taken in argument, and the first is that the Act of Congress, by which the poUce court was established in 1870 is unconstitutional, so far as it purports to vest in the judge holding that court the right to convict an accused party of an offence against the criminal laws of the United States without a trial by jury. While it is admitted that, in reference to offences which are the creatures of municipal ordinances, the constitution would not be infringed by the attempt to confer that jurisdiction on the court. The law is supposed to offend against Article three, sec- tion two, of the Constitution of the "United States, which contains the following clause : ' The trial of all crimes, except in cases of im- peachment, shall be by jury,' and Article six of the amendment to that instrument which declares, that 'In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and District wherein the crime shall have been committed.' It will be remembered that the act creating the police court, while it is a virtual authority to the justice presiding over it to try the prisoner, nevertheless gave the prisoner a right of appeal to the supreme court of the District, which is untramelled by any conditions at all, and which, when exercised, virtually super- sedes the judgment of the police court. It is not denied, in argu- ment, that if the prisoner has his election to be tried by court or jury, the trial by jury is virtually preserved and the right is not in- fringed. But it is said that he must have the right to be tried in the first instance by a jury, and the language used by Judge Blatchford in the Dana case is cited to the effect that the accused is entitled, not to be first convicted by a court and then to be acquitted by a jury, but to be convicted or acquitted, in the first instance, by a jury. 344 PEAC!TICB AND PEOCEDUEB OP TEE "On the other hand, it is claimed that this untramelled right of ap- peal from the conviction by the police judge, substantially preserves the right of trial by jury and saves the Act of Congress from the oflfence of violating the Constitution of the United States. "If the police court were just entering upon its existence, we should feel' bound to consider this question, and perhaps should consider it with some prepossession in favor of the position taken by the pris- oner. But that court has been in existence nearly fourteen years ; its jurisdiction has been acquiesced in, and this is- the first time that it has been formally assailed before this court. At the same time, it is to be observed that there is a strong array of authority in the State courts, under constitutional provisions similar to that of the Federal Constitution, in support of the position that the right of ap- peal from a conviction by a justice to another court, with the right of jury trial in the latter, virtually does preserve the right of trial by jury, and that the accused, in that way, has all the benefit that the Constitution intended to confer upon him. We shall, therefore, de- cline to enter upon the examination of this question at the present time, and pass the prisoner on to the Supreme Court of the United States, if he thinks proper to appeal to that tribunal on this ques- tion." The matter thus remains open until some one with the means and pertinacity sufHoient for the occasion shall take his case to the Su- preme Court of the United States. 2. — ^Judge of, How Appointed, Term of Office, Salary.— The police court shall consist of one judge, learned in the law, who shall be appointed by the President, by and with the ad- vice and consent of the Senate, for the term of six years, and who shall receive a salary of three thousand dollars per annum. E. S. D. C, sec. 1042. Ifote. — Article III, sec. 1 of the Constitution provides, as is well known, that " The judges, both of the supreme and inferior courts [of the United States], shall hold their offices during good behavior," and it has, therefore, been urged as another ground of objection to the constitutionality of the police court, that its judge is appointed for six years only, instead of during good behavior, 3. Oath of Judge. — The judge of the police court shall take the oath prescribed for judges of the courts of the United States. (See E. S. U. S., sec. 712). E. S. D. C, sec. 1043. 4. Terms of Court. — ^The court shall hold a term on the first Monday of every month, and continue the same- from day to day as long as it may be necessary for the transaction of its- business. E. S. D. C, sec. 1044. 5. Rooms for Holding Court. — ^The court shall be provided STJPKEMB COUET, DISTRICT OF COLTJmBIA. 345 with a suitable place for holding its sessions at the expense of the District. E. S. D. C, sec. 1045. Note. — By this section the commissioners of the District of Colum- bia are invested with authority to provide a suitable place for hold- ing the sessions of the police court, and may enter into a lease of premises to be occupied for that purpose. "Wilson v. District Com- missions, 3 Mac A., 473. 6. Salaries of Judge and Officers, How Paid. — The salaries of the judge and clerk of the police court, the compensation of the deputy clerk and bailiffs, and the fees of the marshal, shall be paid by the District, quarterly. (See sec. 1080.) E. S. D. C, sec. 1046. 7. In case of Absence or Disability of Judge, Who to Dis- charge Duties of. — In case of sickness, absence, or disability of the judge, either of the justices of the supreme court of the District shall designate some justice of the peace to discharge the duties of the police judge until such disability be removed. E. S. D. C, sec. 1047. 8. Oath and Compensation of Substituted Judge. — The jus- tice so designated shall take the same oath as prescribed for the judge, and shall receive the sum of ten dollars per day for the time he shall serve, to be paid in the same manner as the salary of judge is paid. E. S. D. C, sec. 1048. 9. Jurisdiction of the Police Court.— The police court shall have original and exclusive jurisdiction of all offences against the United States committed in the District not deemed capital or otherwise infamous crimes, that is to say, of all simple assaults and batteries, and all other misdemeanors not punishable by imprisonment in the penitentiary ; and of all offences against the laws and , ordinances of the District in force therein. (See sec. 61 ; see E. S. TJ. S., sec. 2173.) E. S. D. C, sec. 1049. Note.— As to what are non-infamous crimes, see ante, p. 296. A crime which may be punished by imprisonment in the penitentiary is beyond the jurisdiction of the police court. United States v. Mar- shall, 5 Mackey. For any common law misdemeanor, except where the statute has so expressly provided, the offender cannot be sentenced to imprison- ment in the penitentiary for any period of time whatever. The im- prisonment must be in the jail only, but its duration is within the discretion of the court. Id. The police court has jurisdiction of such misdemeanors, and may 44 346 SUPREME COUET, DISTRICT OF COLUMBIA. sentence the offender to imprisonment in jail for a period exceeding one year. Id. The act of Congress creating the police court" conferred upon it original jurisdiction of the offence of petit larceny. United States v. Cross, 1 Mac A., 149. And of the receiving of stolen goods amounting to less than |35 in value. In re George Fry, 3 Mackey, 135. 10. Power of Judge to Issue Process for Arrests. — The judge shall have power to issue process for the arrest of i^ersons against whom information may be filed, or complaint under oath be made, and to compel tlie attendance of witnesses. E. S. D. C, sec. 1050. Note. — As to power of police judge to issue warrants in cases cog- nizable in the criminal court, see page 273, sec. 30. 11. Judge may Examine and Commit. — The judge of the police court may examine and commit, or hold to bail, in all offences, whether cognizable in the police court or in the su- preme court of the District. E. S. D. C, sec. 1051. Note. — For power of police judge to examine and commit, see page 273, sec. 30. 12. General Powers of Court. — The court shall have power to issue all process and to do all acts which may be necessary to the exercise of its jurisdiction. E. S. D. C, sec. 1052. 13. Power to Punish Contempts. — The court shall have power to punish contempts by fine and imprisonment, or by either ; but the fine shall, in no case, exceed twenty dollars, nor the imprisonment be for a longer time than forty-eight hours. E. S. D. C, sec. 1053. 14. Enforcement of Sentences. — The court may enforce any of its judgments or sentences by fine or imprisonment, or by both. E. S. D. C, sec. 1054. Note. — Where a prisoner was convicted on three several informal tions and sentenced to an imprisonment of three separate terms of one hundred and eighty days each without any specification as to the time of the beginning or ending of the last two terms, it was held that he could not be imprisoned for a period exceeding that of a sin- gle sentence. In re Jackson, 3 Mac A., 24. But cumulative sen- tences are not objectionable when one term of imprisonment is made to commence on the termination of the other, the date of which fs given. Id.; and see Cumulative Sentences, ante 319. 15. Rules and Regulations. — The court shall have power to make such rules and regulations as may be deemed necessary and proper for conducting business therein. E. S. D. C, sec. 1055. SUPREME COURT, DISTRICT OF COLUMBIA. 347 16. Seat — Acknowledgments and Oaths.— The court shall have a seal, and shall have power to take the acknowledgment of deeds and to administer oaths and affirmations to public officers. E. S. D. C, sec. 1056. CLEEK. 17. Clerk, Appointment and Salary. — The court shall have power to appoint a clerk at a salary of two thousand dollars per annum, who shall hold his office during the pleasure of the court. E. S. D. C, sec. 1057. 18. Deputy. — The clerk may appoint one deputy, with the consent of the court, if the business shall require it, to be paid such compensation as may be allowed by the court, not exceed- ing one thousand dollars per annum. E. S. D. C, sec. 1058. 19. Bond and Oath of Clerk. — The clerk shall give bond, with surety, and take the oath of office prescribed by law for clerks of district courts of the United States. [See E. S. U. S., sec. 794.] E. S. D. C, sec. 1059. 20. Power of, to Administer Oaths and Affirmations.— He shall have power to administer oaths and affirmations, and in his absence his deputy may administer the same. E. S. D. C, sec. 1060. 21. Clerk to Charge no Fees.— There shall be no fee charged for any service by the clerk. E. S. D. C, sec. 1061. BAILIFFS. 22. Number of Bailiffs and Compensation of.— The court may appoint not exceeding two bailiffs, who shall receive for their services three dollars each for every day's attendance on court, to be paid upon certificate of service by the judge. E. S. D. C, sec. 1062. 23. May act as Deputy Marshals for Service of Process.— The bailiffs may act as deputies to the marshal for the service of process issued by the court. E. S. D. C, sec. 1063. PROSECUTIONS. 24. Prosecutions to be by Information. — Prosecutions in the police court shall be by information under oath, without in- dictment by grand jury or trial by petit jury. E. S. D. C, sec. 1064. Ifotes. — It is sufficient to state over the certificate of the district attorney, that the information is made on oath of the party whose name is mentioned ; it is not necessary that the party's signature 348 PEACTICE AND PEOCEDUEE OF THE appear upon the paper. United States v. Hoskins, 5 Ma«key. But it has been held that the signature of the district attorney subscribed to the information must be written and not printed. Where a larceny consists of a single act, and the goods stolen be- long to different persons, it is unnecessary that there should be sepa- rate informations. There can be but one conviction and sentence even though the larceny of the goods of each person be alleged in separate informations. Holies v. The United States, 3 Mac A., 370. But if the prisoner be tried on separate information and be convicted and sentenced on each to cumulative terms of imprisonment the court will not assume on habeas corpus that but one crime was com- mitted, unless the record show that to be the case. In re George Fry, 3 Mackey, 135. 25. Process for Violation of District Laws. — In cases arising out of violations of any of the ordinances or laws of the Dis- trict in force therein, process shall be directed to the major of police, who shall execute the same and make return thereof in like manner as in other cases. E. S. D. C, sec. 1065. 26. Process in other Cases. — In cases cognizable in the su- ]3reme court the process shall be directed to the marshal, ex- cept in cases of emergency, when it may be directed to the major of police. E. S. D. C, sec. 1066. 27. Form of Process. — Such process shall be under the seal of the police court, and shall bear teste in the name of the judge, and be signed by the clerk. E. S. D. C, sec. 1067. 28. Marshal's Fees. — For such services the marshal shall receive the same fees as prescribed for like service in the su- preme court. E. S. D. C, sec. 1068. 29. What Cases United States Attorney to Prosecute. — It shall be the duty of the United States Attorney for the District, in person, or by one or more of his assistants or deputies, to at- tend to the prosecution in the police court of such offences as were cognizable in the criminal court of the District prior to June seventeenth, eighteen hundred and seventy. E. S. D. C, sec. 1069. BTote. — See United States v. Hoskins, 5 Mackey. 30. Fees of. — For such service he shall be paid the same fees as are allowed for similar service in the supreme court. R. S. D. C, sec. 1070. 31. What Cases Attorney of the District to Prosecute.— It shall be the duty of the attorney of the District, or his assist- ants, to attend to the prosecution in the police court of all SUPREME COTJBT, DISTRICT OF COLUMBIA. 349 offences arising from violations of any of the laws or ordi- nances of tlie District in force therein, and for such service they shall be paid by the District. E. S. D. C, sec. 1071. Note.— See United States v. Hoskins, 5 Mackey. 32. Fees of Witnesses. — Witnesses before the police court shall receive the same fees as are allowed for similar service and attendance in the supreme court. E. S. D. C, sec. 1072. Note. — See page 206, sec. 6 and note. APPEALS TO SUPREME COURT. 33. Appeals. — Any party deeming himself aggrieved by the judgment of the police court may appeal to the supreme court. (See sec. 773.) E. S. D. C, sec. 1073. 34. Bond on Appeal. — In all appeals the party applying for appeal shall enter into recognizance, with sufficient surety to be approved by the judge, for his appearance at the criminal term of the supreme court then in session, or at the next term thereof if the criminal term be not then in session, there to prosecute the appeal and to abide by the judgment of the supreme court. E. S. D. C, sec. 1074. 35. — St^y of Proceedings on Appeal.— Upon such recogni- zance being given, all further proceedings in [the] police court shall be stayed. E. S. D. C, sec. 1075. 36. Papers to be Sent to Supreme Court. — Such recognizance so approved, and the information or complaint, shall be imme- diately transmitted to the clerk of the supreme court. E. S. D. C, sec. 1076. 37. Appellants Failing to Recognize. — Upon the failure of any party appealing from the judgment of the police court to the supreme court to enter into recognizance as provided for in section ten hundred and seventy-four, he shall be committed to jail to await his trial upon his appeal, and the trial shall be had in the supreme court as though such recognizance had been entered into. E. S. D. C, sec. 1077. 38. Appeals, How Certified.— In every case of appeal the court below shall send up the information or complaint filed in the cause, and a copy of the record of all proceedings duly certified to the supreme court. E. S. D. C, sec. 1078. RULES OP SUPREME COURT AS TO APPEALS FROM POLICE COURT EST CASES OP OFFENCES AGAINST MUNICIPAL LAWS. 39. Appeals in Cases of Offences against Municipal Laws.— 350 PEACTIOE AND PEOCEDUEE OF THE Whenever any person convicted in the police court of any offence against the municipal laws of the District of Columbia shall appeal from the judgment of said court, the clerk of said court shall, within five (5) days of the rendition of said judg- ment, send up the record of the case to the criminal court. Eule 128. Jf ote. — No deposit is required in cases arising outof violations of the criminal laws of the United States. The above provision applies only to violation of municipal ordinances. 40. Deposit for Costs— Docketing Appeal.— As soon as the appellant 'Shall have made a deposit of five dollars for costs, or obtained leave from one of the justices or from the court to prosecute his appeal without a deposit, the clerk shall docket the cause for trial. Id. 41. Proceedings on Failure to Prosecute Appeal.— If the ap- pellant shall fail to perfect his appeal by making the deposit, or obtaining the leave aforesaid, within ten (10) days after the record shall have been sent up, the judge holding the criminal court shall, on motion of the attorney for the District, or one of his assistants, order the papers to be returned and the case to be remanded to the police court, there to be proceeded in as if no appeal had been taken. Id. DISPOSALS OF COSTS, PINES, AND PORPEITURES. " 42. Fines, Penalties, Costs, and Forfeitures, How Collected. All fines, penalties, costs, and forfeitures imposed or taxed by the police court shall be collected by the marshal, or by the major of police, as tbe case may be, on process ordered by the court, and by them paid over to the District. (See sees. 313- 316.) E. S. D. C, sec. 1079. 43. Disposal of Moneys Collected. — The moneys collected up- on the judgments of the police court, or so much thereof as may be necessary, shall be applied to the payment of the salaries of the judge and other officers of the court, as pro- vided in section ten hundred and forty-six, and to the pay- ment of the necessary expenses thereof, and any surplus remaining after paying such salaries, compensation, and ex- penses shall be paid' into the treasury of the District at the end of every quarter. E. S. D. C, sec. 1080. PART III. EQUITY PRACTICE, SirPEEME COtTET, DISTRICT OF COLUMBIA. 353 EQUITY PRACTICK CHAPTBE I. GENERAL REGULATIONS. 1. When suits in equity may be sustained. 2. Instances in which equity will grant relief. 3. Instances where it will not. 4. Court to be deemed always open for preparation of causes. 5. Order book! ' 6. Pleadings and papers to be legibly written. 7. Oaths and affirmations. 8. Form for verifying bills, etc. 9. Affidavits. 10. Bills and petitions to be filed before being presented. 11. Costs of copies of papers on file. 1. When Suits in Equity may be Sustained.— Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law. E. S. U. S., sec. 723. Ifote. — This section only emphasizes a doctrine which existed be- fore the passage of the statute. Sunderland v. Kilbourn, 3 Mackey, 506. It is merely declaratory and makes no alteration whatever on the subject of legal remedy. Boyce v. Grundy, 3 Peters, 210. The objection that there is a plain and adequate remedy is jurisdictional, and may be enforced by the court of its own motion. Parker v. Cot- ton Co., 2 Black, 545. But the remedy must be plain, adequate, and complete. Boyce v. Grundy, 3 Pet., 210 ; Watson v. Southerland, 6 Wall., 74; Morgan v. Beloit, 7 Wall., 613; Oelricks v. Spain, 15 Wall., 211. And effectual. Wyhe v. Ooxe, 15 How., 415 ; May v. LeClaire, 11 Wall., 217. If only partial and would leave the party to renew the contest in a series of suits, he may have relief in equity^ Boyce v. Grundy, 3 Pet., 210 ; Hipp v. Babin, 19 How., 271 ; Lewis v. Cocks, 22 Wall.,. 466. Thus, in case of an illegal tax to prevent a multiplicity of suits. Dows v. Chicago, 11 Wall., 108 ; Garrison v. Memphis Ins. Co., 19 How., 312 ; Alexander v. Dennison, 2 Mac A., 563. 2. Instances in which Equity will Grant Belief.— To enforce a lien R. S. D. C, sec. 808. Accounts, where action for account is the prop- 45 354 PEAOTICE AOT) PEOOBDUEE OF THE er remedy at law, or where a trustee is a party. Fowle v. Lawra- son, 5 Peters, 495. But it cannot draw to itself every transaction in which an account is to be adjusted ; it is only in transactions of great complexity or difHculty at law. Id. Or some discovery is re- quired. Id. Or where it will prevent multiplicity of suits. West. U. Tel. Co. V. West. & A. R. R., 91 U. S., 283. Charitable trusts. Ould V. Wash. Hosp., 1 Mac A., 541. Creditor's bill against estate of deceased person without obtaining judgment. Offutt v. King, 1 Mac A., 312. To distribute an estate among devisees and next of kin, when purposes of trust are exhausted. Coltman v. Moore, 1 Mao A., 197. And over executors and administrators generally, Kendall v. Creighton, 23 How., 90, To correct a mistake in partner- ship accounts. Ivinson v. Hutton, 93 U. S., 79. Of a bill by trustee or cestui que trust to obtain possession of land subject to the trust, Harrison v. Rowan, 4 Wash. C. C, 202. To compel specific perform- ance of a memorandum of sale of real estate. Sanborn v. O'Don- noghue, 1 Mac A., 554. To enjoin a fund in the Treasury of the United States, where the Government is a mere trustee for the dis- tributees. Ridgeway v. Hays, 5 Cr. C. C, 23. See McManus v, Standish, 1 Mackey, 147. To enforce a vendor's lien. Ford v. Smith, 1 Mac A., 592. But only when he has obtained judgment at law for amount due. Id. Or alleges such facts as show that he cannot have a full, complete, and adequate remedy at law. Id. To impeach a judicial sale for fraud, although remedy exists at law. Slater v. Maxwell, 6 Wall., 268 ; Cocks v. Izard, 7 Wall,, 559. Where by mis- take a party has lost his right to present his defence to an action at law, and has no remedy at law. Tilton v. Cofleld, 93 U. S., 163. To enforce payment by husband to wife of money borrowed from her separate estate, Metsker v. Bonebrake, 108 U. S., 66. To recover money fraudulently appropriated by the directors of a corporation, Gingrat v. Dane, 4 Cliff., 260. At suit of stockholder, to enjoin corporation from violation of charter. Dodge v. Woolsey, 18 How., 331. To rescind a contract for purchase of land induced by fraudulent representations. Boyce v. Grundy, 3 Pet., 210. Under special circumstances to compel an executor to pay debt of testator, though suit at law might have been brought. Creswell v. Kennedy, 3 Mac A., 78. To decree the surrender of negotiable notes uncon- scientiously withheld by defendant. White v. Clark, 5 Cr. C. C, 102. To establish a will fraudulently suppressed, if it avoids a mul- tiplicity of suits. Gaines v. Chew, 2 How., 619. To decree specific execution of a contract to give collateral security. Robinson v. Cathcart, 2 Cr. C. C, 590. To reinstate a trust with original priori- ties where the release was obtained by fraud. Burnstine v. Ormes, 2 Mao A., 219 ; Eldridge v. Ins. Co., 3 Mac A., 301 ; Wright v. Wal- ter, Mac A. & Mack., 343. And against purchaser for value, if he was. put on inquiry. Jackson v. Blackwood, Mac A. & Mack., 188. But not against other creditors equally meritorious. Kurtz v. HoUings- head, 3 Cr. C. C, 68. Respecting land out of jurisdiction, where all par- ties are before the court. Moore v. Jaeger, 2 Mac A.^ 465 ; Watts v. SUPREME COtTUT, DISTRICT OF COLtfMElA. 355 Waddle, 6 Pet., 389 ; Lewis v. Darling, 16 How., 1. But though it may compel the party before it to convey, it cannot by its own de- cree pass the title. Watts v. Waddle, 6 Pet., 389. Nor appoint a trustee to convey. Id. To declare as a trust a grantor's subsequent purchase of outstanding adverse titles. Moore v. Jaeger, 2 Mac A., 465. To restrain collection of void tax when its enforcement would lead to a multiplicity of suits. Alexander v. Bennison, 2 Mac A., 563. Or irreparable injury. McCormick v. The District, 4 Maokey, 396. To show a deed absolute on its face to be a mortgage. Peugh v. Davis, 96 tJ. S., 832 ; Hubbard v. Stetson, 3 Mac A., 113 ; Page v. Burnstine, 8 Mac A ., 195. To settle equities to a flind in the Treasury of the United States, where the parties claiming it are before the court. McManus v> Standish, 1 Mackey, 147. To restrain collection of illegal municipal tax. R, R. & Bridge Co. v. The District, 1 Mackey, 217, Otherwise, if levied by the United States. Id. See R. S. U. S., 3224. To declare a purchase by agent a trust for priucipal. Nailor v. Nailor, 6 Mackey, 93. And wherever a confidential relation exists. Henson v. Hill, 3 Mackey, 316 ; Sunderland v. Kilbourn, 8 Mackey, 506 ; Wheeler V. Smith, 9 How., 55. To set aside a conveyance voluntary against existing creditors, and to let in subsequent creditors. Edwards v. Entwisle, 2 Mackey, 43. To set aside a conveyance for gross inade- quacy of price, so great as to shoiJk the conscience, or where other circumstances of UnfairnesB accompany it. Graffam v. Burgess, 117 U. S., 180. As where the grantor from age, sickness, etc., was weak of mind, although not absolutely disqualified. Griflftth v. Godey, 113 U. S., 89 ; Allore V. Jewell, 94 U. S., 506. To have a judgment^ marked to use of wife, entered satisfied, when the money paid to the judg- taent creditor was the money of the husband. Shepherd v. Brown, 3 Mackey, 266. To set aside a voluntary conveyance by a person having an equitable charge, debt not having been put into judgment. Stewart v. Smith, 8 Mackey, 281. To subrogate a surety Who has paid debt of an insolvent principal, in his claim for contribution, to the priority Of the United States over the other creditors of the co- surety. Jackson v. Davis, 4 Mackey, 194. To enforce a vendor's lien in a sale to a married woman. Chilton v. Braidon, 2 Black, 458, afilrming Cir. Ot. D. C. To grant relief in case of a material and controlling mistake of fact Where party availed himself of all access - able knowledge. Grymes v. Sanders, 93 U. S., 55. To remove trus- tee showing want of Reasonable fidelity. Cavender v. Cavender, 114 U. S., 464. Where trustee is dead, to enforce and execute trust with- out intervention of a new trustee. Batesville Inst. v. Kauffman, 18 Wall., 151. To direct trustee in doubt as to distribution of funds. Williams v. Gibbs, 20 How., 535. To order a patent-right to be sold and the proceeds applied to payment of patentee's judgment debt. Ager V. Murray, 105 U. S., 226. 3. Instances where it Will Ifot.— To grant relief against mistake of law when no fraud is charged. Robinson v. Cathcart, 3 Cr. 0. C, 377. To enjoin a judgment when remedy is complete at law. Bol> 356 PEACTXCE AND PKOCEDTJEE OF THE rer v. Fay, 3 Mac A., 145. To restrain collection of void ta:^ where no other ground of equitable relief is alleged. Alexander v. Dennison, 2 Mac A., 563. To decree that an endorser pay a note. Shields v. Barrow, 17 How., 130. To enforce payment of an insurance policy. Graves v. Boston Mar. Ins. Co., 2 Cranch, 419. To cancel at suit of a municipal corporation, a bond issued without authority and in vio- lation of official duty. Grand Chute v. Winegar, 15 Wall., 373. To cancel a policy at suit of the insurance company. Ins. Co. v. Bailey, 13 Wall., 616. Because of the mere fact that the evidence is voluminous. Bowen v. Chase, 94 U. S., 812. To set aside a sale of merchandize on ground of insolvency of vendee at time of purchase, unless the bill al- leges an intent at time of purchase not to pay. Morrison v. Shuster, 1 Mackey, 190. To enforce a parol agreement for sale of real property. Ragan v. Campbell, 2 Mackey, 28. Otherwise, if the agreement be accompanied by conduct amounting to an estoppel in puis. Id. Nor to quiet title to land, or to remove a cloud from such title, unless complainant have been in possession. Marks v. Main, 4 Mackey, 559. To restrain collection of an excessive tax, where there is no tender of the amount admitted to be due. Market Company v. The District, 4 Mackey, 416. Or where there is a remedy at law provided by statute. Id. To declare future rights of parties not before the court, nor in esse. Cross v. De Valle, 1 Wall., 5. To enforce a forfeiture, the remedy being at law. Horsburg v. Baker, 1 Pet., 232. Against an infringer of a patent where an account of profits and damages alone is asked. Root v. Railroad, 105 U. 8., 189 ; and see Hipp v. Babin, 19 How., 271. To recover real estate held by defendant under a deed from plaintiff's ancestor alleged to be fraudu- lent. Ellis V. Davis, 109 U. S., 485 ; but see Harding v. Handy, 11 Wheat., 103. Of a bill by a payee of promissory notes to have his judgment debt to defendant set off against them and obtain a decree for the balance. Naudain v. Ormes, 3 Mac A., 1 ; Boone v. Small, 3 Cr. C. C, 628. Otherwise, if the maker of the notes be insolvent. Id. To grant relief against vendor in good faith of defective title where there has been no eviction by title paramount ; the remedy is at law on the covenants. Smoot v. Coffin, 4 Mackey, 407. Of a bill to quiet title between two claimants to real estate, unless title of complainant is clear and indisputable. Keefe v. Bramhall, 3 Mackey, 551. To correct a mistake in the description of a deed where bona flde judg- ment creditors would be prejudiced. Ruppert v. Haske, 5 Mackey, 262. Of a bill by an assignee of a chose in action to enforce, for his own use, the legal right of his assignors, merely on the ground that he cannot sue at law in his own name. Hayward v. Andrews, 106 U. S., 672 ; see 107 U. S., 205. To require a deed to be delivered up that is void on its face. PiersoU v. Elliott, 6 Pet., 95. To relieve pur- chaser of land subject to dower where he, by proper diligence, could have ascertained that it was so subject. Greenleaf v. Queen, 1 Pet., 138. To annul a contract merely because one party has violated his engagement. Rutland Marble Co. v. Ripley, 10 Wall., 339. Nor be- cause it has become more burdensome than plaintiff anticipated. Id. STJPEEME COURT, DISTRICT OF COLUMBIA. 357 To prevent an insolvent debtor from alienating his property to avoid an existing or prospective debt, even though there be a suit pending to establish it. Adler v. Fenton, 24 How., 407. To relieve against usury, unless borrower tender debt with legal interest. Tiffany v. Sav. Inst., 18 "Wall., 375. To avoid a will or set aside the probate thereof on the ground of fraud, mistake or forgery. Keely v. McGlynn, 21 Wall., 503 ; see Gaines v. Fuentes, 92 U. S., 10. Note. — For the jurisdiction and practice in equity in cases arising under the patent laws of the United States, see post, Pbactice in Patent Cases. 4. Court to be Deemed always open for Preparation of Causes. — The court of equity shall be deemed always open for the purpose of filing bills, answers, and other pleadings ; for issuing and returning mesne and final process and commis- sions ; and for making and directing interlocutory motions, orders, rules, and other proceedings, preparatory to the hear- ing of causes upon their merits. Rule 1. Note. — This rule is substantially section 638, R. S. U. S. 5. Order Book. — All rules, orders, and other proceedings made or directed at chambers, or on rule days, at the clerk's office, whether special or of course, shall be entered by the clerk in an order 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 inspection of the parties in any suit in ecxuity and their solicitors. Eule 2, par. 2. 6. Pleadings and Papers to be Legibly Written.— AH plead- ings and other proceedings, and copies thereof, shall be fairly and legibly written or printed and endorsed with the number and title of the cause ; and if not so done the clerk may refuse to file the same. Eule 98, par. 1. 7. Oaths and Affirmations.— Whenever under these rules an oath is or may be required to be taken, the party may, in lieu thereof, if conscientiously scrupulous of taking an oath, make solemn affirmation to the truth of the facts stated by him. Bule87. 8. Form for Verifying Bills, etc.— Every verification of a bill, answer or petition, shall be to the following effect: "I do solemnly swear [affirm} that I have read [heard read} the [biU, answer, petition,} by me subscribed, and know the con- tents thereof, and that the facts therein stated upon my per- sonal knowledge are true, and those stated upon information and belief I believe to be true." Eule 88. 358 PRACTICE AND PROCEDUEE OP THE 9. Affidavits. — An affidavit in an equity cause, sworn to before a person not authorized by Act of Congress to administer the oath, cannot be read. Haight v. Proprietors, etc., 4 Wash., 601. But see United States v. Bailey, 9 Pet., 238. An affidavit made and verified before the counsel of the party, and wholly in his handwriting, held sufficient. Atkinson v. Glenn, 4 Or. C. C, 134. As to when affi- davits may and may not be read because entitled as in a cause pend- ing when the cause had no existence, see BlaEe Crusher Co. v. Ward, 1 Am. L. J., N. S., 423. The fact that the title of a cause was not written upon an affidavit at the time when the affldant made oath, does not prevent its being read on motion for an injunction. Shook V. Rankin, 2 Law and Eq. Rep., 236. 10. Bills and Petitions to be Filed before being Presented. — 1^0 bill or petition shall be presented to the court until the same has been filed. Eule 98, par. 2. 11. Costs of Copies of Papers on File. — The lawflil fee for a copy of any paper on file in any cause or matter pending in the supreme court of the District of Columbia, furnished by the clerk to any party therein, shall be charged as part of the costs of the cause or matter and collected as such. Eule 99. CHAPTER II. PARTIES. 1. Proceeding without parties. 2. Who are necessary parties. 3. Who are not necessary parties. 4. When very numerous, all need not be made parties. 5. One or more suing for the benefl.t of many. 6. Reasons for omitting parties must be averred in the bill. 7. Cases in which beneficiaries may be dispensed with. 8. How objection for want of parties should be taken. 9. Proceedings where want of parties is suggested in the answer. 10. Omitted parties, saving for, in decree. 1. Proceeding Without Parties.— Whenever it appears to the court that persons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties because they cannot be served personally or by publication, or are incapable otherwise of being made parties, the court may in its discretion proceed in the cause without making such persons! SUPBEME COURT, DISTEICT OF COLUMBIA. 359 parties ; and in sucli cases the decree shall be without pre- judice to the rights of the absent parties. Rule 34. Notes. — This rule is substantially section 737, R. S. U. S., and that statute is only a legislative affirmance of a previously established rule of equity. Shields v. Barrow, 17 How., 130. There is a iolass of persons having such relations to the matter in controversy, merely formal or otherwise, that while they may be called proper parties, the court will take no account of the omission to make them parties. There is another class of persons, whose relations to the suit are such, that if their interest and their absence are formally brought to the attention of the court, it will require them to be made parties if within its jurisdiction, before deciding the case ; but if this cannot be done, it will proceed to administer such relief as may be in its power, between" the parties before it. And there is a third class, whose interests in the subject matter of the suit and in the relief sought, are so bound up with that of the other parties, that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases the court refuses to entertain the suit, when these parties cannot be subjected to its jurisdiction. Barney v. Baltimore City, 6 Wall., 280 ; Cameron V. McRoberts, 3 Wheat., 591 ; Elmendorf v. Taylor, 10 Wheat., 152 ; Mallow V. Hinde, 12 Wheat., 193; Caldwell v. Taggart, 4 Pet., 190. No one need be made a plaintiff in whom there exists no interest, and no one defendant from whom nothing is demanded. Kerr v. Watts, 6 Wheat., 550. Or against whom the plaintiff can have no decree. Bank v. Seaton, 1 Peters, 299. A decree affecting persons who are not parties is void as to them. Holden v. Stickney, 2 Mac A., 141. 2. Who are Ifecessary Parties. — Claimants with only an equitable title should make parties those whose title they assert, and those from whom they claim a conveyance. Simms v. Guthrie, 9 Cranch, 19. To a bill for the appointment of a new trustee in a deed of trust given to secure a promissory note, the person who created the trust and the note is a necessary party. Holden v. Stickney, 2 Mac A., 141. To a bill to enforce payment of a legacy, the heirs and distributees are necessary parties defendant. Armstrong v. Lear, 8 Pet., 52. Where the specific performance of the contract of an ancestor is prayed, all the heirs should be parties, and if any be dead it should be proved. Morgan v. Morgan, 2 Wheat., 290. On a bill to set aside a sale of an ancestor's real estate under decree of a competent court, the creditor and all the heirs are necessary parties. Hoe v. Wilson, 9 Wall., 501. If a bill seeks to hold a surety liable, the princi- ple is a necessary party. Robertson v. Carson, 19 Wall., 64. If a party claims an interest in the fund in controversy he is a necessary party. Williams v. Bankhead, 19 Wall., 563. But one who has as- signed his interest is not. Robertson v. Carson, 19 Wall., 94. Where parties h£|,ve a I joint interest all are necessary parties. Cameron v. McRoberts, 3 Wheat., 591. • To a bill to set aside a judicial sale a 360 PEACTICE AND PEOOEDTJEE OP THE mortgagee who has received the proceeds of sale is a necessary party; he is interested to uphold the sale. Coiron v. Millaudon, 19 How., 113. To a bill by a creditor to enforce a trust for the indemnity of a surety, the surety and the trustee are necessary parties. McRea v. Bank, 19 How., 376. To a bill to sell land and subject proceeds to payment of plaintiff's debt, a prior incumbrancer is in general a necessary party. Hogan v. Walker, 14 How., 29. But if he cannot be joined and plaintiff seek a sale subject thereto only, a sale may be decreed without him. Id. If a trust fund depends upon the result of an account all the cestui que trusts are necessary parties. Greene V. Sisson, 2 Curt., 171. If an heir file a bill charging defendant with trust property and pray an account, the personal representative of the ancestor is a necessary party. West v. Randall, 2 Mason, 181. On a bill by creditors to set aside a fraudulent conveyance of a de- ceased grantor, quaere whether the heirs and devisees are necessary parties. Walker v. Powers, 104 U. S., 245. To a bill to enforce a deed of trust after an assignment of the equity of redemption a judg- ment creditor who bought the property at an execution sale is a necessary party. Young v. Gushing, 4 Biss., 456. A decree cannot be made in the absence of an indispensable party. Parsons v. Howard, 2 Woods, 1. Where the bill is defective for want of parties the court should grant leave to add parties, and on failure to bring the proper parties before the court the dismissal of the bill should be without prejudice. Hunt v. Wickliffe, 2 Pet., 201. 3. Who are not Necessary Parties. — To a bill by an executor for the sale of real estate charged with the payment of testator's debts the creditors need not be made parties. Tuohy v. Martin, 2 Mac A., 572. Bill against an executor for an account and payment of a legacy, devi- see of land in another jurisdiction not necessary defendant. West V. Smith, 8 How., 402. A mortgagee whose rights are undisputed. Venable v. United States Bank, 2 Pet., 107. If both parties to a bill to obtain the legal title claim under the same conveyance, the grantor is not a necessary party. Boon v. Chiles, 8 Pet., 532. To a bill to enforce a mortgage given to trustees, where a majority of the trustees are parties, the other trustee is not necessary. Stewart v. Canal Company, 1 Fed. Rep., 361. Where some of the holders of bonds se- cured by mortgage are out pf the jurisdiction, they are not necessary parties. Hotel Company v. Wade, 97 U. S., 13. Those whose inter- ests are separable from those before the court need not be made par^ ties. Shields v. Barrow, 17 How., 130. Thus to enforce a convey- ance of his interest made by one co-tenant, the other co-tenants need not be joined. Stephen v. Beall, 22 Wall., 329. So, on a bill for the conveyance of the legal title of land, tenants should not be ihade parties, unless they obtained and retained their possession in contra^ vention of some equity subsisting between them and complainant. Ringo V. Binns, 10 Pet., 269. To a bill by an assignee of a chose in action to enforce it, the assignor is not a necessary party. Batesville Institution v. Kauffman, 18 Wall., 151. A prior incumbrancer not subject to the jurisdiction of the court is not a necessary party. Ho- StrPEEME COTJET, DISTEICT OE COLUMBIA. 361 g^an V. Walker, 14 How., 29. To abill by one of two joint contractors for work done, the other contractor is not a necessary party where he relinquished his right under the contract before the work was be- gun, and did none of the work. Fitch v. Creighton, 24 How., 159. So, where a release is fraudulently obtained from one of two joint contractors, the releasing contractor is not a necessary party to a bill filed by his co-contractor against the other party to the contract. Canal Company v. Gordon, 6 Wall,, 561. 4. When very Numerous all need not be made Parties.— Where the parties on either side are very nnmerous, and can- not, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may pro- ceed in the suit, having sufficient 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, Eule 35. Note. — All persons interested in a suit in equity, and whose rights will be directly affected by the decree, must be made parties, unless they are too numerous, or some of them are out of the jurisdiction, or not in being, but in every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all. McArthur V. Scott, 113 U. S., 340 ; Williams v. Bankhead, 19 Wall., 563 ; Eller V. Bergling, 3 Mac A., 189. Thus, where only twenty out of sixty-four parties against whom a decree was rendered, were served with pro- cess or appeared, the decree was not sustained, because it appeared that the liability of each defendant rested upon facts peculiar to his own cause. Godfrey & Terry, 97 U. S., 171. And although where the parties in interest are very numerous or unknown, it may not be necessary to make them all parties defendant, yet such as are joined must be regularly proceeded against, and, in case of the death of any, their representatives must be brought in. Mandeville v. Riggs, 2 Pet., 482. 5. One or more Suing for the Benefit of many. — Persons belonging to a voluntary society and having a common interest, may sue in behalf of themselves and others having the like interests, as part of the same society, for purposes common to all and beneficial to all. Beatty v. Kurtz, 2 Pet., 566. But care must be taken that they fairly represent the interest or right involved, so that it may be fairly and honestly tried. Smith v. Swormstedt, 16 How., 288. Nor does this class of cases include one in which a municipal corporation attempts to bring a suit purely for the benefit of individuals. Georgetown v. Alex. Canal Co., 12 Pet., 91. Where a creditor's bill is filed by one for himself and all others who choose to come in, it is the usual and correct course to give the others an opportunity to come in and have 46 362 PRACTICE AND PEOCEDTJEE OF THE the benefit of the decree. Johnson v. Waters, 111 U. S., 640 ; Myers V. Fenn, 5 Wall., 205. But a creditor cannot file a petition to be made party to a suit and then proceed independently. Ransom v. Davis, 18 How., 295. 6. Reasons for Omitting Parties must be Averred in the Bill.— If any persons other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties. Eule 18. 7. Cases in which Beneficiaries may be Dispensed with.— In all suits concerning real estate which is vested by devise in trustees competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate or in the proceeds or rents and profits, in the same manner and to the same extent as the executors or adminis- trators in suits concerning personal estate represent the per- sons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons bene- ficially interested in such real estate, proceeds, or rents and profits, parties to the suit ; but the court may, upon considera- tion of the matter on the hearing, if it shall think fit, order such persons to be made parties. Eule 36. Note. — It is only where the fee is actually vested in the executor or trustee that the rule applies. Chew v. Hyman, 10 Biss., 240. Where a debtor had conveyed to a trustee real estate to be sold for the benefit of creditors, and the trustee dying before the conveyance of the property to a purchaser, another trustee was appointed by the court upon the application of the creditors, to execute the trust ; in a proceeding relative to the execution of the trust and the convey- ance of the estate, it was held necessary that the heirs at law of the first trustee should be parties to the same, as the legal title to the estate did not pass to the substituted trustees by the appointment, but remained in the legal heirs. Greenleaf v. Queen, 1 Pet., 138. For further provisions and notes in regard to parties, see p. 45, ante. 8. How Objection for Want of Parties should be Taken.— When a complainant omits to bring before the court persons who are neces- sary parties, but the objection does not appear on the face of the bill, the proper mode to take advantage of it is by plea or answer. It is too late to urge a formal objection of the kind for the first time on the hearing, if the decree can be made without affecting the in- terests of persons not joined. Story v. Lawrence, 13 Pet., 359 ; Green- leaf v. Queen, 1 Pet., 138. The objection should specify names, des- cription, and necessity of such parties. Segee v. Thomas, 3 Blatchf., 11. Although a court of equity will refuse to make a decree unless StrPEEME COtTET, DISTRICT OP COLUMBIA. 363 all the proper parties are before it, yet the objection for want of parties is not to the jurisdiction of the court, but to the relief sought. Where the otyection is made and sustained the court will order all proper parties to be made. Harrison v. Rowan, 4 Wash. C. C, 202, 208. Where, in a suit in equity, the want of parties is not set up or suggested in the answer, it will not avail, on flng,l hearing, unless the case is one in which the court cannot proceed to a decree between the parties before it without prejudice to the rights of those who are proper to be made parties, but who are not brought into court. Wallace v. Holmes et. al., 9 Blatchf., 65. 9. Proceedings where want of Parties is Suggested in the Answer. — When the defendant by his answer suggests that the bill is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument upon that objection only ; and the purpose for which it is so set down shall be notified by an entry in the clerk's order book, to the following effect: "Set down, upon the defendant's objection for want of parties." If the plain- tiff does not so set down his cause, but proceeds therewith to a hearing notwithstanding an objection for want of parties taken by the answer, he shall not, at the heariag of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for leave to amend his bill by adding parties ; but the court may, in its discretion, dismiss the bill. Eule37. 10. Omitted Parties, Saving for, in Decree.— If a defendant^ at the hearing of a cause, shall object that a suit is defective for want of parties, not having taken the objection by plea or answer, and therein specified by name or description the par- ties to whom the objection applies, the court may make a decree, saving the rights of the absent parties. Rule 38. 36i PEAOTICE AWD FEOCEDTTEE OF THE , CHAPTEE III. ORIGINAL BILLS, MATTER AND FRAME OP. 1. Every bill to be divided into paragraphs, etc. 2. Form of the introductory part of a bill. 3. The confederacy, charging and jurisdiction clauses to be omitted, 4. Reason for omitting parties to be averred. 5. Matter of bill to be brief and pertinent. 6. What averments necessary, and how to be stated. 7. Bill of interpleader, what necessary averments. 8. To stay proceedings at law, what to be averred. 9. Impertinence in bills and other pleadings. 10. Scandalous matter, what is, 11. Scandalous or impertinent matter may be expunged on motion. 12. Multifariousness. 13. Instances of multifariousness, 14. Instances of bills not multifa- rious. 15. How objection for multifar riousness may be taken. 16. Framing bill with a double as- pect. 17. The prayer for relief. 18. The prayer for process. 19. Bill to be signed by counsel. 20. Verification of the bill. 21. No bill or petition to be pre- sented until filed. 22. Docketing the suit. 1. Every Bill to be Divided into Paragraphs, etc. — Rule 16.— Every bill shall be divided into paragraphs, successively num- bered, and shall contain the names and places of abode of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form of the introductory part thereof shall, in substance, be as follows : 2. Foi'in of the Introductory part of a Bill. In the Supreme Oourt of the District op Columbia, the DAY OF , 18—. A. B., Plaintiff, V. C. D., Defendant, , To the Supreme Court of the District of Columbia, holding an Equity Court. The plaintiff states as follows : 1. He is a citizen of , [in the State of New York,] and brings this suit [in his own right] or [as assignee in bankruptcy of the late firm of and , merchants in the city of New York], [stating the character in which he sues.] 2, The defendant is a citizen of the United States and a resident No. SUPREME COTJET, DISTRICT OF COLUMBIA. 365 of the District of Columbia, and is sued in this action [as executor of , deceased, late of said District.] 3. That, &c. 3. The Confederacy, Charging and Jurisdiction Clauses to be Omitted. — the plaintiff shall omit from his bill the fol- lowing formal parts of a bill in chancery, viz : the confederacy clause, averring a confederacy between the defendants to in- jure or defraud the plaintiff ; the charging clause, setting forth the matters or excuses which the defendant is supposed to in- tend to set up by way of defence ; and the jurisdiction clause, averring 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. Eule 17. Jf ote. — And if inserted, such clauses may be treated as mere sur- plusage, and need not be denied or responded to in the answer, for it is mere impertinence. Story Eq. PL, 29. 4. Reason for Omitting Parties to be Averred. — If any per- sons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties. Eule 18. 5. Matter of Bill to be Brief and Pertinent. — Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments, in hceo verba, nor any impertinent, scandalous, or irrelevant matter. Eule 20, par. 1. 6. What Ayerments necessary, and How to be Stated. — Where a suf- ficiently certain though general statement of the essential ultimate facts relied on by the plaintiff is given in his bill, he need not aver all the minute circumstances which may be proved in support of it. General certainty is sufficient in pleading in equity. St. Louis v. Knapp, 104 U. S., 658. So in a bill to set aside a conveyance on the ground of fraud, it is sufiicient to state a prima fade case, to be after- wards established by proof; mere matters of evidence on the general question of fraudulent intent need not be made the subject of special averment. Edwards v. Entwisle, 2Mackey, 43. But every bill must contain in itself suflBcient matters of fact per se to maintain the case of the plaintiff, so that the same may be put in issue. Harrison v. Nixon, 9 Pet., 483 ; Harding v. Handy, 11 Wheat, 103. A bill which prays a receiver on the ground that defendant had so mixed com- plainant's goods with his own, that it would be extremely difficult to separate them, should charge that the alleged confusion was fraudu- lently or wrongfully done. Morrison v. Shuster, 1 Mackey, 190. A bill against an interested party for a discovery must aver that the 366 PEACTICE AND PROCEDTJEE OP THE facts are known to the defendant ; that he ought to disclose them, and that complainant is unable to prove them by other testimony. Brown V. Swann, 10 Pet., 497. A bill by an individual, praying for preventive relief, in a case of public nuisance, must aver some special injury to the plaintiff. Georgetown v. Alexandria Canal Co., 12 Pet., 91 ; Irwin v. Dixon, 9 How., 10 ; Miller v. New York, 109 U. S., 385, Where the bill seeks aflarmative relief on the ground of fraud, the fraud must be distinctly alleged. Fatten v. Taylor, 7 How., 132; Very v. Levy, 13 How., 345 ; Voorhees v. Bonesteel, 16 Wall., 16, Where it is sought to avoid the imputation of laches or lapse of time, a mere general allegatioTi of ignorance of rights long slumbered on is not enough. McQuiddy v. Ware, 20 Wall., 14; Harwood v. Kail- road, 17 Wall., 78. The imputation of laches in prosecuting a stale claim is not avoided by an averment that " until lately " plaintiff had not become aware of the facts. Such language is too vague. Marsh V. Whitmore, 21 Wall., 178. What averments are necessary in a biE to open an account on which the statute of limitations has run. Stearns v. Page, 7 How., 819. An averment of the actual domicil of a testator is necessary in a bill to adjudicate a will of personal prop- erty. Harrison v. Nixon, 9 Pet., 483. A bill to set aside a judgment on the ground of fraud must set out the particulars of the fraud, the names of the parties to it, and the manner in which the court or the party injured was misled or imposed upon. United States v, Atherton, 102 U. S., 802. A bill for settlement of a trust and partner- Ship should contain an averment that something is due the complain- ant. Philippiv. Philippe, 115 U. S., 151. Courts will refuse to decree unless the substantial groundwork of the case in which relief is sought is distinctly alleged in the complaint ; but objections to the form of a pleading should be taken by demurrer, for after proof has been taken the bill will not be critically studied to find such defects. Pelham v. Edelmeyer, 15 Fed. Eep., 362. 7. Bill of Interpleader, What Necessary Arennents. — In a bill of interpleader it is necessary to aver that the complainant has no inter- est in the subject matter of the suit ; he must admit title in the com- plainants, and aver that he has no interest between them and he can- not seek relief in the premises against either of them. Killian v, Ebbinghaus, 110 U. S., 571. 8. To Stay Proceedings at Law, What to be Averred.— By Rule 43, if an injunction be prayed to stay proceedings at law, the bill must state whether an issue has been joined, or a verdict or judgment ob- tained. See the Rule, post. 9. Inipertinenee in Bills and other Pleadings.— Impertinence is the introduction of any matters in a bill, answer or other pleading or, proceeding in a suit, which are not properly before the court for de- cision at any particular stage of the suit. Story Eq. PI., 266 ; Wood V. Mann, 1 Sumner, 506, 578. The best test to ascertain whether matter be impertinent, is to try whether the subject of the allegatiofl could be put in issue, and would be matter proper to be given in evi- STJPEBME COURT, DISTRICT OF COLUMBIA. 367 dence between the parties. Woods v. Morrell, 1 Johns. Ch., 103. The court will not, because there are here and there a few unnecessary words, treat them as impertinent. Story Eq. PL, 267 ; Hawley v. Wolveston, 5 Paige, 522. A bill may contain matter which is imper- tinent, without the matter being scandalous ; but if, in a technical sense, it is scandalous, it must be impertinent. Story Eq. PL, 270. An exception for impertinence will be overruled, if expunging the matter excepted to will leave the residue of the clause, which is not covered by the exception, either false or wholly unintelligible. Id., 239. Lord Chief Baron Gilbert (Gilb. For. Rom., 209,) describes im- pertinence to be " where the records of the court are stuffed with long recitals, or with long digressions of matter of fact, which are altogether unnecessary and totally immaterial to the matter in ques- tion ; as where a deed is unnecessarily set forth in hsBc verba." See also Danl. Ch. Pr., 349. The court, in cases of impertinence, ought, before expunging the matter alleged to be impertinent, to be espe- cially clear, that it is such as ought to be struck out of the record, for the reason that the error on one side is irremediable, on the other not. Story Eq. PL, 267. 10. Scandalous Matter, What is. — Scandal consists in the allegation of anytihing which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause, to which may be added, that any unnecessary allegation, bearing cruelly upon the moral character of an individual, is also scandalous. DanL Ch. Pr., 347. Pertinent matter cannot be scandalous. Goodrich v. Rodney, 1 Min., 195. 11. Scandalons or Impertinent Matter may be Expunged on Motion. — Scandalous or impertinent matter shall, on motion, be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit uj) to that time, un- less the court otherwise order. If, on such motion, the court shall find that the matter of the bill is not scandalous or im- pertinent, the plaintiif shall be entitled to the costs of the motion. Eule 20, par. 2. Note. — It seems that the motion to expunge scandalous matter may be made at any stage of the suit. See Danl. Ch. Pr., 354, and cases cited. 12. Mnltifarionsncss. — There is no definite rule as to what consti- tutes multifariousness in a pleading in chancery. Each case must depend upon its own circumstances, and much must be left to the sound discretion of the court. Gaines v. Chew, 2 How., 619-642 ; OUver V. Pratt, 3 How., 333 ; Shields v. Thomas, 18 How., 253 ; Story Eq. PL, sec. 530. " It is impossible, upon the authorities, to lay down any rule or abstract proposition, as to what constitutes multi- fariousness which can be made universally applicable." 1 Danl. Ch. 368 PRACTICE AND PROCEDURE OF THE Pr., 384. As familiarly understood it is where a party is able to say he is brought as a defendant upon a record, with a large portion of which he has no connection whatever. Shields v. Thomas, 18 How., 253-259. 13. Instances of Multifariousness. — A bill to settle a disputed legal title and for partition. Chapin v. Lears; 18 Fed. Rep., 814. A bill to enforce against different defendants demands which are wholly disconnected. Gaines v. Chew, 2 How., 619. Where there is a misjoinder of parties complainant and where the causes of action and the relief sought are distinct and in some respects antago- nistic. Walker v. Powers, 104 U. S., 245. A bill by a creditor to establish his claim against intestate and demanding an account from the executor, which unites a controversy touching the validity of a bequest and of the claims of the intestate' s husband. Haines v. Car- penter, 1 Wood, 262. A bill seeking the annulment of a marriage settlement and the annulment of a will. McDonnel v. Eaton, 18 Fed. Rep., 710. 14. Instances of Bills not jffiultifarlous. — A bill by several claim- ants of portions of an estate against several defendants equally re- sponsible. Shields v. Thomas, 18 How., 253 ; Turner v. Missionary Union, 5 McLean, 344. Where all the matters in controversy were between the same parties, arose out of the same transaction from breaches of the same instrument, and which could be settled in one suit. Pacific Railroad v. Atlantic and Pacific Railroad, 20 Fed. Rep., 277. The joinder of two distinct matters which prevented the need- less multiplicity of suits and neither inconvenienced the defendants nor caused them additional expense. Bank v. Sprague, 8 Fed. Rep., 377. A bill involving but a single matter, affecting all the defendants alike, although it seek both to open settlements and to cancel receipts as fraudulent. Payne v. Hook, 7 Wall., 425. And where entire jus- tice could not otherwise be done, different subjects were allowed to be. joined. Oliver v. Pratt, 3 How., 333. A joinder of defendants holding distinct tracts of land under distinct conveyances, where the main ground of defence was common to all. Gaines v. Mausseuux, 1 Woods, 118. A bill to set aside a will and establish another and for an account of the real and personal property from the executor of the first, and to recover the lands of testator with account of rents and profits, which makes as defendants the executor and all persons in possession of real or personal property of testator. It provides for the investigation of facts in which all the defendants are interested, without subjecting them to unnecessary inconvenience or expense. Gaines v. Chew, 2 How., 619. A bill by an execution creditor, in aid of execution, against his judgment debtor and others who have fraudulently combined with him to control his property, although there is no averment of a common conspiracy between all the de- fendants, nor that each defendant was cognizant of the fraudulent acts of his co-defendants. Prevost v. Yorrell, (3d Circ, Pa.,) 7 Week. N. of Cas., 261. STJPEEME COURT, DISTEICT OF COLUMBIA. 369 15. How Objection for Multifariousness may be Taken.— It must be taken advantage of by plea, answer or demurrer, and cannot be raised at the hearing. Oliver v. Pratt, 3 How., 333 ; Nelson v. Hill, 5 How., 127. And though the court may take notice of it sua sponte, it will not do so at the hearing, unless it is essential to the due administration of justice. A fortiori an appellate court will not, unless forced to do so by a moral necessity. Oliver v. Pratt, 3 How., 333, 412 ; Nelson v. Hill, 5 How., 127. No one can object to a bill on the ground of multifariousness, unless injured thereby. Buerk v. Imhauser, 8 Fed. Rep., 457. 16. Framing' Bill with a Donble Aspect. — A bill in equity may be framed with a double aspect, so that if the court decide against the plaintiff upon one view of his case, it may afford him relief in another. Hobson v. McArthur, 16 Pet., 182. But the alternative case must be the foundation for the same relief. Shields v. Barrow, 17 How., 130. Thus a bill which seeks the recission of a contract for fraud, or, in case it be found valid, a specific performance, is bad. Id. 17. The Prayer for Relief. — The prayer of the bill shall ask the special relief to which the plaintiff suj)poses himself enti- tled, and also shall ask for general relief ; and if an injunction or a writ of ne exeat, or any other special order pending the suit, is required, it shall also be specially asked for. Rule 22. Notes. — If relief is prayed for in a certain capacity, this will be a test of the ground on which the aid of the court is sought. Sayles v. Tibbetts, 5 R. I., 79. The prayer for general relief can never be safely omitted ; because if the plaintiff should mistake the relief to which he is entitled, in his special prayer, the court may afford him the relief to which he has a right, under the prayer for general relief, provided it is such relief as is agreeable to the case made by the bill. English v. Foxall, 2 Pet., 595. And though it be not exactly in accordance with the special relief prayed. Walden v. Bodley, 14 Pet., 156. But it must be such relief as the case stated by the bill and the proof will sustain. Hob- son V. McArthur, 16 Pet., 182. And under a prayer for general re- lief, only relief of the same general nature as that prayed in the bill can be claimed. Morrison v. Shuster, 1 Mackey, 190 ; Wilson v. Graham, 4 Wash. 0. C, 53. As the claims under the general reUef clause must be consistent with the particular relief claimed, therefore where complainant claims upon the distinct ground that he is not a creditor of the defendant and is denied relief, he cannot under the prayer for general relief, claim upon the hypothesis that he is a creditor. Morrison v. Shuster, 1 Mackey, 190. A prayer for general relief covers and includes a prayer for specific performance. Taylor v. Ins. Co., i) How., 390. 47 370 PEACTIOE AND PEOCEDUEE OF THE 18. The Prayer for Process.— The prayer for process of sub- poena shall contain the names of all the defendants named In the introductory part of the bill, and, if any of them are known to be infants, or otherwise under guardianship, shall state the fact, so that the court may, upon the return of the process, take order thereon as justice may require. If an injunction, or a writ of ne exeat, or any other special order pending the suit, is asked for in the prayer for relief, it shall not be neces- sary to repeat the same in the prayer for process. Rule 21. Notes.— The rule that process must be prayed against a party in order to make him a defendant to a bill in equity is purely technical, and has no application when its object is otherwise effectually at- tained. Accordingly, the prayer for process is not indispensable when the bill suflBciently designates those intended to be made de- fendants, and process against them is actually issued. Alley v. Quinter, Mac A. & Mack., 390. A defendant who appears and an- swers the bill, cannot on the hearing, object that the bill contains no prayer for process, or that he was not served with process. Segee v. Thomas, 3 Blatchf., 11. By appearing generally, he waives this right. Buerk v. Imhauser, 8 Fed. Eep., 457. 19. Bill to be Sig;ned by Counsel. — To every bill the signature of counsel shall be annexed as an affirmance on his part that, upon the instructions given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. Eule 19. Notes.— The signing of the back of the bill is sufficient. Dwight v. Humphreys, 3 McLean, 104. If, however, the plaintiff manages his cause in person, as he may, (R. S. U. S., sec. 747, " parties may plead their own causes,") the bill must be signed by him; and, in such case, it would appear that a bill need not be signed by counsel. See 1 Hoff. Ch. Pr., 97. Except in cases where an injunction is asked for, or a discovery, or an answer on oath is required, bills may be signed by counsel alone, and not by the party. 1 Barb. Ch. Pr., 43. A bai not signed by counsel may be ordered taken off the flies. Roach v. Hulings, 5 Cr. C. C, 637. Or may be demurred to for that cause. Dwight V. Humphreys, 3 McLean, 104 ;-l Barb. Ch. Pr., 44. And when an injunction has been granted and the bill afterwards stricken from the flies for want of signature of counsel, it may be then signed and at once reflled and the injunction issued de novo. Roach v. Hu- lings, 5 Or. 0. C, 637. The later and better practice, however, is to require counsel to sign the bill nunc pro tunc or have it stricken ftom. the files. 20. Verification of the Bill.— Every verification of a bill, an- swer, or petition, shall be to the following effect : " I do sol- emnly swear [affirni] that I have read \heardread\ the [btll, an- STTPEEME COtrUT, DISTMCT OP COLITMBIA. 371 mer, petition,'] by me subscribed, and know the contents there- of, and that the facts therein stated upon my personal knowl- edge are true, and those stated upon information and belief I believe to be true." Eule 88. Notes. — By rule 87, if the party have conscientious scruples against taking an oath he may affirm. See p. 357. Where it is sought to se- cure, ex parte, on the filing of the bill, a preliminary injunction or ne exeat, the bill must always be verified. See Rule 41. Where the bill is not required by law to be sworn to, the fact that it is nevertheless sworn to does not render the party so swearing liable to the penalties of perjury for false statements contained therein. Porter v. White, 6 Mackey, 180. But if it pray for a preliminary injunction or ne ■exeat it might be otherwise. Id. 21. No Bill or Petition to be Presented until Filed.— No bill or petition shall be presented to the court until the same has been filed. Hule 98, par. 2. Notes. — It is not filed until it has the proper indorsement of the clerk ; merely placing it in the court papers is no filing. See Amy V. Shelby County, ll'lippin, 104. By general rule 126, ante, p. 248, it is made the duty of the clerk "upon receiving and filing any paper in any cause, either at law or in equity, to note the date of filing the same both upon the back of the paper and on the face thereof, next to the title of the cause ; and such date shall be marked also upcJh each exhibit annexed or prefixed to such paper, at the head and on the face thereof." 22. Docketing the Suit. — As soon as the bill is filed the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. Eule 11. CHAPTEE IV. THE WRIT OF StTBPCEnsrA. 1. Process in equity. 2. Form of the writ of subpoena. S. Issuing the writ. 4. By whom to be served. 5. How to be served. ,C. Service on an infant. 7, Service on a lunatic. 10. Service where defendant has no family, and personal ser- vice cannot be effected. Service in other cases — by publication, etc. The return of the subpoena. 11. Renewal of subpoena. 1. Process in Equity. — The writ of subpoena shall be the. 372 PRACTICE AXD PEOCEDUEE OF THE proper process in all suits in equity in the first instance, to require the defendant to appear and answer the exigency of the bill. Rule 5. Note. — " At the bottom of the writ shall be placed a memorandum that the defendant is to enter his appearance in the suitin the clerk's office on or before the day at which the writ is returnable ; other- wise the bill may be taken pro confesso." This is the provision of the latter part of Rule 8. Its consequence, if strictly pursued, might be that a defendant served on the last hour of the return day (which would be a legal service) must immediately enter his appearance or be liable to have the bill taken pro confesso. The provision is also in- consistent with Rule 12, which provides that " a defendant served with subpoena must appear by the rule-day first occurring ten days after service thereof." See the rule. 2. Form of the Writ of Subpeena. — In the Supreme Court of the District op Columbia, , 188—. , Complainant, "j Against INo. — . Equity Docket. Defendant. I The President of the United States to , Defendant : You are hereby commanded to appear in this court, at its first special term, occurring ten days after service of this subpoena, and answer the exigency of the bill, under pain of attachment, and such other process of contempt as the court shall award. Witness : , Chief Justice. , Clerk, etc. By , Asst. Clerk. Memorjustdum, That the defendant, herewith served, is to enter • appearance in this suit, in the clerk's office, on or before the day at which this writ is returnable ; otherwise the bUl may be taken for confessed. Note. — Where an ex parte restraining order is granted, the follow- ing is entered on the back of the subpoena: The defendant is hereby restrained as prayed in the within-men- tioned bill, until further order, to be made, if at all, after a hearing, which is fixed for the da,y of , 188— ; of which take no- tice. By the court : , Justice. 3. Issuing tlie Writ. — No writ of subpoena shall issue in any suit in equity until the bill shall have been filed in the clerk's office. After such filing, the clerk shall issue the writ as of course, upon the application of the plaintiff. Where there are more defendants than one the plaintiff may sue out a sub- poena separately for each defendant, (except in the case of r' STJPEEMB COURT, DISTRICT OF COLUMBIA. 373 husband and wife, defendants,) or a joint subpoena against all the defendants. Eule 6. If otes. — The writ may be tested in the name of any justice of the court. R. S. D. C, sec. 781, ante, p. 59. And must bear teste from the day of issue. R. S. D. C, sec. 912, ante, p. 59. And be under the seal of the court. R. S. U. S., sec. 911, ante, p. 84. Assistant clerk may sign the writ. R. S. D. 0., sec. 916, ante, p. 84. 4. By Whom to be Served. — The service of all process, mesne or final, shall be by the marshal of the District, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case the person serving the process shall make affidavit of such service. Eule 10. 5. How to be Served. — The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or, in case of husband and wife, to the husband personally, or, if such personal service cannot be made, by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult i^er- son, who is a member of or resident in the family. Rule 7. Note. — The summons must be served by the return day, but ser- vice on the return day is suflScient. Service on Sunday is not allowed. Alex. Oh. Prac, 17. "When served on a member of the family he should be an inmate of the house. Edgson v. Edgson, 3 De G. & S., 629. And when the copy is left at the dwelUng house, it is necessary that it should be the place where the defendant actually resides, the mere leaving of a copy at the defendant's ordinary place of business, if he does not reside there, will not be a good service. Danl. Oh. Pr., 443. 6. Service on an Infant. — The service must be made upon the infant personally. Insurance Co. v. Bangs, 103 U. S., 435. A ser- vice upon his general guardian is insufl&cient. Id. But if the suit be to enforce a claim or lien against real or personal property within the jurisdiction of the court, service may be by publication as in other cases, and the decree will only affect the property within the jurisdiction. Id. See R. S. U. S., sec. 738, ante, p. 87. But in all cases where the demand is a purely personal one the service must be upon the infant personally, before a guardian ad litem can be 3,p- pointed to defend the suit for him. Insurance Oo. v. Bangs, supra. And see this case for some observations of Mr. Justice Field as to what process against infants is necessary in order to give the court jurisdiction over them. Where an infant is within the jurisdiction the court may compel the person aiding in its concealment to dis- cover where it is so that personal service may be had. Alex. Oh. Pr., 31. Where service has been made on an infant there is no 374 PEACTICB AND PROCEDURE OF THE necessity for another service on the guardian ad litem after he is appointed. Jones v. Drake, 2 Hayw., 327. ' 7. Service on a Lunatic. — Service against a lunatic must be per- sonal in the same manner as against an infant. After service, an order may be obtained that his committee, if he have any, answer for him. If he have no committee, the court will on motion appoint one or a guardian ad litem. Alex. Oh. Pr., 34. See Rebecca Owing's Case, 1 Bland's Oh., 272, for in what cases an inquisition will be first directed. ' 8. Service where Defendant has no Family, and Personal Service Cannot be Effected. — Where the defendant has no family, but boards, or makes his home in the family of another, a subpoena may, in his absence from home, be served upon either of the heads of the family at such place. But to make such service regular, the place of ser- vice must be his actual place of residence at the time of service, and his absence therefrom must be merely temporary. 1 Barb. Oh. Pr., 51 ; People v. Oraft, 7 Paige, 325. 9. Service in Other Cases— By Publication, etc. — For other rules, statutes and decisions respecting service of process and the manner in which it may be effected in particular cases, as in the case of cor- porations, by publication, etc., see Part I, chap. XVIII ; see also p. 48. In a number of sections of the Maryland Act of 1785, chap. 72, provision is made respecting service in cases of absent defendants or defendants who cannot be found. By section 768, R. S. D. C, it is declared that this court "has power to proceed in all common law and chancery causes instituted before it, in which either of the par- ties reside without the District, in the same way that non-residents were proceeded against in general court or in the supreme court of chancery in the State of Maryland on the third day of May, eighteen hundred and two." But notwithstanding this provision, the Acts of Congress upon the same subj ect have in practice altogether superseded, even if rhey may not be regarded as having entirely repealed, the provisions of the Maryland Act, 10. The Return of Subpoena. — ^The writ of subpoena shall be returnable into the clerk's office on tie next rule-day occur- ring after ten days from the time of the issuing thereof. And at the bottom of the writ shall be placed a memorandum that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at fcMch the writ is returnable ; other- wise the bill may be talcen pro confesso. Eule 8. Note. — See note to section 1 as to the latter portion of this rule. Where the husband and wife are both defendants in the writ and service is made upon the husband only, as may be done, (Robinson V. Cathcart, 2 Or. 0. C, 590,) the return should be that service was made on the husband and wife by serving the husband. Steel v.^ Parsons, 8 Jur., 641. Unless the separate estate of the wife is sought SUPREME COURT, DISTRICT OF COLUMBIA. 375 to be charged, when of course the service must be upon her person- ally. Alex. Oh. Pr., 17. 11. Eenewal of Subpcena. — Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to other subpoenas, toties quoties, against such de- fendant, if he shall require it, until due service is made. Eule 9. CHAPTEE V. APPEARANCE. 1. Time of appearance. 2. Entry of appearance. 3. Effect of appearance. 4. Conditional appearance. 5. Appearance by married wo- men. 6. Appearance by infant. 10. Appointing guardian ad litem, to appear and defend. Appearance by lunatics, idiots, etc. Default in appearing — Decree pro confesso. Setting aside decree pro con- fesso. 1. Time of Appearance. — A defendant served with subpoena must appear by the rule-day first occurring ten days after service thereof. Eule 12. See note to section 1, chapter IV, ante. 2. Entry of Appearance. — The appearance of the defendant either personally or by his solicitor, shall be entered in the order book, and docketed on the day thereof by the clerk. Eule 13. Note. — A defendant may appear gratis, which takes place where he does so before he has been served with subpoena. 1 Barb. Oh. Pr., 78. 3. Effect of Appearance.— A general appearance not only gives jurisdiction, but covers defects in previous process. The Merino, 9 Wheat., 391 ; Knox v. Summers, 3 Or., 496 ; Atkins v. Fibre Oo., 18 Wall., 272 ; Taylor v. Longworth, 14 Pet., 172 ; Segee v. Thomas, 3 Blatchf., 11. And it gives jurisdiction over the person, in cases where the writ was void. Farrar v. United States, 3 Pet., 459 ; Pol- lard V. Dwight, 4 Or., 421 ; Sprague v. Irwin, 27 How., 51. But a corporation does not waive objection to the jurisdiction by appear- ing and pleading thereto by attorney. Bank v. Slocomb, 14 Pet., 60. 376 PRACTICE AND PEOCEDTJEE OE THE 4. Conditional Appearance. — Where there is an objection to the process or jurisdiction, a conditional appearance should be entered, so that the complainant may proceed therein if the defendant's appli- cation is not successful. 1 Barb. Oh. Pr., 78 ; Danl. Oh. Pr., 536, and notes. For the mode in which a conditional appearance is entered, see Danl. Oh. Pr., 5^7. 5. Appearance by Married Women. — Where the suit is against husband and wife, not seeking to charge latter's separate estate, the husband must enter a joint appearance for himself and wife. 1 Barb. Oh. Pr., 82, and notes. And the husband has a right to appear for his wife in all cases [other than where the suit is in respect of her separate estate], even where she is sued as executrix. 1 Barb. Ch. Pr., 82 ; Bunyan v. Mortimore, 6 Mad., 278. 6. Appearance by Infant. — Guardians ad litem to defend a suit may be appointed by the court for infants or other per- sons who are under guardianship, or otherwise incapable to sue for themselves. Eule 85, par. 1. 7. Appointing' Guardian ad litem to Appear and Defend. — Infants can only appear by their guardian ad litem appointed for that pur- pose. 1 Barb. Oh. Pr., 83; 1 Danl. Oh. Pr., 559. And see Snowden V. Snowden, 1 Bland Oh., 550, on this subject. The petition for the appointment of a guardian ad litem must be by the infant in person, if he is of the age of fourteen or upwards ; but if he is under four- teen it must be presented by his next of kin or some other friend who has no adverse interest. If the infant or some disinterested friend in his behalf do not procure the appointment of a guardian ad litem within the usual time for appearance, the complainant may apply to the court to appoint a suitable person. 1 Barb. Ch. Pr., 83. See Bank v. Ritchie, 8 Pet., 128. But the infant must be brought into court or a commission must issue for the purpose of making the appointment. Bank v. Ritchie, supra. Where the infant resides out of the State the practice is, under the Maryland Act of 1797, ch. 114, sec. 5, by which commissioners are appointed to appear and answer for the infant. See Alex. Ch. Pr., 32 ; Snowden v. Snow- den, 1 Bland Oh., 560 ; and see Ouyler v. Ouyler, 5 Mackey, 8. Appearance by Lunatics, Idiots, etc.— See Barb. Oh. Pr., 86; Alex. Oh. Pr., 33, and Rule 85, supra. 9. Default in Appearing — Decree Pro Confesso. — In default of such appearance, the plaintiff may, on application to the court, obtain an order that the bill be taken ^ro confesso, and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at the next ensuing term there- of accordingly, if the same can be done without an answer or evidence and is proper to be decreed ; or the plaintiff, if he re- quires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against SUPREME COTJRT, DISTRICT OP COLUMBIA. 377 the defendant to compel an answer ; and tlie defendant shall not, when arrested upon such process, be discharged therefrom except upon filing his answer, or otherwise complying with Such order as the court or justice may direct, as to pleading to or fully answering the bill within a period to be fixed by the court or justice ; and undertaking to speed the cause. Eule 14. Ifotes.— In Thomson v. Wooster, 114 U. S., 104, the practice and effect of taking bills pro confesso are carefully considered by the court. See also the report of Master Hoffman in Williams v. Corwin, Hopkins' Ch., 471. The omission to enter a formal order that the bill be taken pro confesso against the defendant is one of the defects of form wHich the court is required (R. S. U. S., 954, ante, p. 42,) to disre- gard. Luder v. Lewis, 1 Fed. Rep., 378 ; see United States v. Hack, 8 Pet., 262 ; Market Company v. The District, 4 Mackey, 422. If one of several defendants make default, a formal decree pro confesso may be entered, but no final decree on the merits can be found until the case is disposed of with regard to the other defendants. The defaulting defendant is simply out of court and can take no further part in the cause. Frow v. De la Vega, 15 Wall., 552, The plaintiff cannot, on default take such a decree pro confesso as he may desire, but the cause should be set down for hearing and decree thereupon. An- drews V. Oole, 20 Fed. Rep., 410. And on the hearing the statements of the bill are assumed to be true, and the decree is made by the court according to what is proper to be decreed on the statements of the bill and the prayer ; the matter of the bill should be opened and ex- plained to the court when the decree is applied for. Thomson v. Wooster, 114 U. S., 104. And unless the averments of the bill of complaint are precise and definite, no decree can be taken with- out proof. Davis v. Speiden, 3 Mac A., 283. The neglect of a de- fendant to answer amounts to an admisMon only of the allega- tions of the bill. Robinson v. Townsend, 3 Gill & J., 413. And It is discretionary with the court to require proof of all portions of the biU. Smith v. Trimble, 27 111., 152 ; Stephens v. BickneU, Id., 444. And see, generally, the following cases : Wooster v. WoodhuU, 1 John's Ch., 539 ; Parker v. Grant, Id., 630 ; Williamson v. Sykes, 5 Beasley, (N. J.,) 182 ; Emery v. Downing, Id., 59, 60 ; Oram v. Den- Bison, Id., 238; Robinson v. Miller, 2 Green's Ch., 451. A decree pro confesso settles no right, unless followed by a final decree. Lockhart V. Horn, 3 Woods, 542. Where a bill relating to an unsettled account is taken pro confesso, there ought to be a reference to the auditor be- fore decree absolute. Walz v. Brookville Bank, 8 Rep., 580. And "upon such reference such allegations as are distinct and positive are to be taken as true without proof, but not such as are indefinite. Piatt V. Judson, 3 Blachf., 273. The fact that the bill Is taken pro confesso does not preclude the defendant from disputing the amount «3f the plaintiff's demand in the master's office. Pendleton v. Evans, 48 378 PKACTICE AND PEOCEDUEE OF THE 4 Wash.. 0. C, 391 ; Clayton v. Chichester, Craw. & Dix., 73. Btrt see Thomson v. Wooster, 114 U. S., 104 ; and McMicken v. Perin, 18 How., 507. But the plaintiff in such case is not bound to prove the contract stated in the bilL Douglass v. Evans, 1 Tenn., 18. Though a decree yro confesso be taken before the time allowed for appear- ance has expired, yet if there is no subsequent appearance by the defendant and the final decree long post dates the time for- appear- ance, it will be allowed to stand. Alley v. Q,uinter, Mac A. & Mack., 390. 10. Setting Aside Decree Pro Confesso. — When the bill is taken pro confesso, the court may proceed to a decree at the next ensuing term, and such decree shall be deemed absolute unless the court shall, at the same term, set it aside or en- large th& time for filing the answer, upon cause shown upon motion and afBdavit of the defendant. But such motion shall not be granted unless upon the payment of the costs of the plaintiff in the suit up to that time, or of such part thereof as the court shall deem reasonable, nor unless the defendant shall undertake to file his answer within such time as the court shall direct, and shall submit to such other terms as the court shall direct for the purpose of speeding the cause. Eule 15. N»te. — Even after a decree pro eonfesso, order of reference, and re- port of master, the decree will be opened, and the defendant let in to answer if the equity of the case requires such relaxation of the rules of the court, Williamson v. Sykes, 5 Beasley, (N. J.,) 182. StrPKEME OOUET, DISTEICT OE COLUMBIA. 379 CHAPTEE VI. DEMURRERS AND PLEAS. 1. Demurrers and pleas to be ac- companied by certificate of counsel. 2. By what time to be filed. 3. Demurring or pleading to whole or part of the bill. 4. What may be objected to by demurrer. 6. Demurrers to discovery must be special. 6. Speaking demurrers, .7. Several causes of demurrer. 8. Separate demurrers. 9. Demurrer cannot be good in part and bad in part. 10. — When coupled with an an- swer. 11. Demurring ore tenu». 12. Causes of demurrer must be CO- extensive. 13. Defence by plea. 14. But one defence to be made by plea. 15 . Demurrer or plea will be taken as suflQcient if not set down for argument or replied to. 16. Argument of demurrers and pleas — taking issue on the plea. 17. Costs on overruling — time for answering. 18. Costs on allowing — amending. 1. Demurrers and Pleas to be Accompanied by Celptiflcate of Counsel. — ^Ko demurrer or plea shall be filed unless upon a certificate of counsel that in his opinion it is well founded in law, supported by the af&davit of the defendant that it is not interposed for delay, and, if a plea, that it is true in fact. Eule 26. Note. — A demurrer or plea Will be disregarded if it lack the certifl' Gate and affidavit required by this rule. See Bank v. Insurance Company, 104 U. S., 304. But the defendant cannot take the bill pro confesso as if the plea or demurrer were a nullity. He should move to set the plea aside or to strike it from the files. Ewing v. Blight, 3 Wall., jr., 134, And if the plaintiff set the plea or demurrer down for argument he will be considered as having waived the want of the certificate and affidavit. Goodyear V. Toby, 6 Blatchf., 130. 2. By what Time to be Filed. — There is no rule specifically prescrib- ing the time within which the demurrer or plea must be filed. Rule Twenty-seven permits either to be filed "at any time before the bill is taken for confessed," and as by Rule Fifty the bill may be take for confessed at any time after the rule-day next succeeding that of en- tering appearance, if no demurrer, plea or answer be filed, the prac- tice is followed of filing the demurrer or plea within that time. 3. Demurring or Pleading to Whole or Part of the Bill. — 380 PKACTIOE AND PROCEDTJEE OP THE The defendant may, at any time before the bill is taken for confessed, or afterwards with the leave of the court, demur or plead to the whole bill or to part of it, and he may demur to part, plead to part, and answer as to the residue ; but, in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer forti- fying the plea and explicitly denying the fraud and combina- tion and the facts on which the charge is founded. Eule 27. Notes. — A demurrer does not admit concluBions of law. It admits nothing but facts properly pleaded. Dauphin v. Key, Mac A. & Mack., 203 ; Griffing v. Gibb, 2 Black, 519. Thus it does not admit the correctness of averments as to the meaning of an instrument of writing. Dillon v. Barnard, 21 Wall., 430. 4. What may Jbe Objected to by Demurrer.— Whenever the case stated by the bill appears to be one in which a court of chancery will refuse its aid, the defendant may demur. Maxwell v. Kennedy, 8 How., 210. Thus, want of jurisdiction. De Sobry v. Nicholson, 3 Wall., 420. The statute of limitations. Rhode Island v, Massa- chussetts, 15 Pet., 233 ; Coddington v. R. R., 103 U. S., 409. Gross laches apparent from the statements of the bill. Lansdale v. Smith, 106 U. S., 391. The statute of frauds. Randall v. Howard, 2 Black, 585. 5. Demurrers to Discovery must be Special. — Where a defendant to a bill praying relief demurs to the discovery only, he cannot do so under a general demurrer for want of equity, but must make it the subject of special demurrer. 1 Barb. Ch. Pr., 107. 6. Speaking Demurrers. — Care must be taken in framing a demur- rer that it be made to rely only upon the facts stated in the biU ; otherwise it will be what is termed a speaking demurrer, and will be overruled. A speaking demurrer is one which introduces some new fact or averment which is necessary to support the demurrer, and which does not distinctly appear upon the face of the bill. Id. And see Phelps v. McDonald, 2 Mac A., 375. 7. Several Causes of Demurrer. — A defendant is not limited to show one cause of demurrer only. He may assign as many causes of demurrer as he pleases either to the whole bill, or to each part of the bill demurred to, and if any one of the causes assigned hold good, the demurrer will be allowed. 1 Barb. Ch, Pr., 107. 8. Separate Demurrers. — A defendant may also put in separate demurrers to separate and distinct parts of a bill, for separate and distinct causes ; for the same grounds of demurrer, frequently, will not apply to different parts of a bill, though the whole may be liable to demurrer ; and in such a case one demurrer may be overruled upon argument and another allowed. 1 Barb. Ch. Pr., 107. 9. Demurrer cannot be Good in Part and Bad in Part.— If the de- murrer is general to the whole biU, and there is any part, either aa 381 to the relief or to the discovery, to which the defendant ought to put in an answer, the demurrer being entire must be overruled. But a demurrer may be good as to one of the defendants demurring and bad as to others. 1 Barb. Ch. Pr., 107 ; Livingstone v. Story, 9 Pet., 632; Powder Co. v. Powder Work, 98 U. S., 126 ; Williams v. Gardner, 3 Mackey, 93. But where the demurrer is too extensive the court may grant leave to amend by narrowing its terms. Wil- liams V. Gardner, supra. 10. — When Coupled with an Answer. — When a demurrer is to part of the bill only, the answer to the remainder usually follows the statement of the causes of demurrer, and the demand of judgment, whether the defendant ought to be held to make further or other answer. But as a demurrer asks the judgment of the court whether the defendant shall make further- or other answer to the bill, or to that part which he has demurred to, it would be inconsistent if the defendant, after making such submission, were to be permitted to answer the bill or that part of it which is intended to be covered by the demurrer. It is for this reason well settled, that an answer to any part of a bill demurred to will overrule the demurrer ; even though the part answered be immaterial. Nor is a demurrer to re- lief only overruled by an answer as to the discovery. 1 Barb. Oh. Pr., 108. When a demurrer is to part only of the bill and is accom- panied by an answer, it should be entitled " The demurrer of C. D., etc., to part of the bill of complaint of A. B., and the answer of the said C. D. to the remainder of the said bill of complaint." 1 Barb. Ch. Pr., 108. Where a demurrer and answer are put in they are filed as of one record and the demurrer is set down for argument, as if it stood alone, and not incorporated with the answer. 1 Barb. Ch. Pr., 108. 11. Demurring ore tenus. — A defendant may at the hearing of his demurrer, orally assign another cause of demurrer different from, or in addition to, those assigned upon the record, which, if valid, will support the demurrer, although the causes of demurrer stated in the demurrer itself are held to be invalid. But a defendant cannot demur ore tenus, unless there be a demurrer on record. Therefore, where a defendant had pleaded, and upon the plea being overruled, offered to demur ore tenus for want of parties, he was not permitted to do so. 1 Barb. Ch. Pr., 108 ; Alex. Ch. Pr., 58. 12. Causes of Demurrer must be Co-Extensiye.— Although a defend- ant may, either upon the record or ore tenus, assign as many causes of demurrer as he pleases, such causes of demurrer must be co-ex- tensive with the demurrer upon the record. Therefore, causes of demurrer which apply to part the bill only, cannot be joined with causes of demurrer which go to the whole bill. 1 Barb. Ch. Pr., 109. 13. Defence by Plea.— Whenever the defendant flies an answer and a plea, and his answer is found to cover the same matter in the bill which his plea objects to answering, his plea is adjudged insufa- cient and is overruled where the plea is set down for hearing, which 382 PEACTICE AND PROCEDURE OF THE is equivalent to demurring to it. There is an exception to this in the case where a plea according to the technical rules of equity pleading is supported by an answer. Pleas are called pure pleas when they rely wholly on matter dehors the bill, such as a release, an account stated, or payments ; and are negative or anomalous pleas when they consist mainly of denials of matters in the bill. It is only the latter kind of plea which is either required or allowed to be supported by an answer, and which is not overruled by the answer. And this is only allowed and required in two classes of cases. The first is, where the plaintiff by his bill admits that the defendant has a legal bar to his suit but seeks to avoid it by alleging equitable circumstances entitled to that objection ; as, for example, where the plaintiff admits that the defendant has a release of the cause of action, but at the same time alleges that it was procured by fraud, and states specifically the facts constituting the fraud. Here, while the defendant is entitled to plead his release, as a reason why he should not be required to answer fully the complaint, it is evi- dent that this would not be a complete answer to the complaint. The plaintiff is entitled to a discovery as to the fraudulent circumstances alleged, and it is held in such case that the plea must be supported by an answer as to those special circumstances. If the defendant should simply answer without pleading, the rule is, that he must answer the entire bill fully. He protects himself from this by filing his plea and answering as to those facts by which the plaintiff seeks to avoid the effect of his plea in advance. The other class of cases in which the plea is to be supported, is illustrated by a bill alleging a partnership with the defendant, and alleging various transactions in proof of it, and calling for a discovery and partnership account. Here it is not sufficient simply to plead that there was no partnership, but there must also be an answer and discovery as to all the circumstances alleged. The plaintiff has a right to this evidence, and the defendant can only exonerate himself from the duty of fully answering the bill, by this partial answer sus- taining his plea against answering. Insurance Company v. Grant, Mac A. & Mack., 117. A plea and answer which go to the whole bill will be overruled. Id. 14. But one Defence to be made by Plea. — Inasmuch as all defences may be made by answer, it is not allowed to make more than one de- fence by plea to the whole bill or the same part of it, except under special circumstances and with leave of the court ; and the pleas will be overruled on this ground. But the defendant may ask leave to elect on which he may rely. Insurance Company v. Grant, Mac A. & Mack,, 117 ; Ehode Island v. Massachusetts, 14 Pet,, 210, 15. Demurrer or Plea will be taken as Sufficient if not Set down for Argument or Replied to. — If the plaintiff shall not reply to a plea, or shall not set down a plea or demurrer for argument, on the next rule-day, (provided the same is filed SUPREME COURT, DISTRICT OF COLUMBIA. 383 five days before the commencement of the term,) lie shall be deemed to admit the truth and sufaciency thereof. Eule 31. 16. Argument of Demurrers and Pleas— Taking Issue on the Plea.— The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. Eule 28. Notes. — If the plea is unexceptionable in its form and character the complainant must either set it down for argument or he must re- ply to it, and put in issue the facts relied on in the plea. If he elects to proceed in the manner first mentioned, and sets down the plea for argument, he then admits the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent his re- covery. If on the other hand he replies to the plea, and denies the truth of the facts therein stated, he then admits that if the particular facts stated in the plea are true, they are then sufficient in law to bar his recovery, and if they are proved to be true, the bill must be dis- missed without reference to the equity arising from any other facts stated in the bill. Rhode Island v. Massachusetts, 14 Peters, 436 ; Myers v. Dorr, 13 Blatchf., 22. The practice of the English courts of chancery is the practice in the courts of equity of the United States. In England the "party who puts in a plea, which is the subject of discussion, has the right to be- gin and conclude the argument. The same rule should prevail in the courts of the United States in chancery. State of Rhode Island v. State of Massachusetts, 14 Pet. , 210. "Where it has appeared upon the hearing of a demurrer to the whole bill, that the defendant is entitled to demur to some part only, the court has permitted the demurrer to be amended, so as to confine it to the parts to which the defendant has a right to demur. Williams v. Gardner, 3 Mackey, 93. One of several defendants who has demurred successfully, is entitled as of right, to have his name struck out of the record, and may apply to the court by motion for this purpose. Danl. Ch. Pr., 599. After demurrer to a bill was overruled and time given to answer, the defendant was allowed to demur again without leave first obtained, on the plaintiff' s amending his bill by joining a new party plaintiff. Moore v. Armstrong, 9 Porter, 697. So where an amendment is made to a bill before answer filed, even if it be imma- terial and trivial, a defendant may demur de novo to the whole bill ; and he may demur to the amendment at any time. Booth v. Stum- per, 10 Geo., 109. feut when an answer has been filed, he cannot, after demurrer made and decided, demur again to the whole bill, un- less the amendment is material. Id. The court will often, although it overrules the demurrer, reserve to the defendant the right of rais- ing the same question at the hearing of the cause ; and where there is a doubtful question on a title, the coiirt will sometimes overrule 384 PEACTICB AND PEOCEDTJEE OP THE the demurrer without prejudice to any defence the defendant may make by way of answer. Danl. Oh. Pr., 602. 17. Costs on Overruling— Time for Answering.— If, upon the hearing, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant had good ground in law or fact to interpose the same, and that it was not interposed vexatiously or for delay. And upon upon such overruling the defendant shall answer the bill, or so much thereof as was covered by the plea or demurrer, at the next succeeding rule-day, or at such other time as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done ; in default where- of the bill shall be taken pro confesso, and the matter thereof proceeded in and decreed accordingly. Bule 29. Note. — The first part of this rule is in conflict with the Maryland Act of 1785, ch. 72, sec. 25, which provides that upon a demurrer or plea being overruled upon argument, or otherwise being withdrawn without leave of the court, the party whose demurrer is overruled, or withdrawn, shall pay to the opposite party the sum of five pounds, current money, and the costs thereof, and be in contempt until the said sum and costs are fiilly discharged and paid. See Alex. Ch. Pr., 58. But the statute has not usually been enforced in this court, its provisions having been generally waived by counsel out of curtesy to opposite counsel upon whose certificate the demurrer or plea was filed, but if insisted upon, ita lex scripta est. The penalty of the statute may, however, be avoided by the court permitting the de- murrer or plea to be withdrawn after the argument instead of over- ruling it. 18. Costs on Allowing— Amending. — If, upon the hearing, [the] demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. Eule 30. Note. — For defence by answer instead of plea, see Answeb, post. Demurrers and pleas are discouraged by the courts. In general, mat- ter which would constitute a defence, if offered by demurrer or plea, may be relied on by answer, which is not subject to the same strict rules, as to form, that govern the other modes of defence. Alex. Ch. Pr., 58. • SUPREME COTTET, DISTRICT OF COLUMBIA. S85 CHAPTEE VII. THE ANSWER. Within what time answer must be filed — Default. Nominal party, when to an- swer ; when not. Disclaimers. Defence by answer instead of plea. Frame of the answer. Manner of answering com- plainant's case and stating the defence. Separate answers, costs of. Answers of infants and other persons under guardianship. 9. Answer of an infant residing out of the District. 10. Answer of a married woman. 11. Answer of a lunatic. 12. Answer of a corporation. 13. Answers in special cases. 14. Signing the answer. 15. Verifying the answer. 16. When taken abroad, how veri- fied. 17. In what case the answer need not be verified. 1. Within what Time Answer must be Filed— Default. — If defence is not made by plea or demurrer, the defendant must file his answer by the rule-day next succeeding that of enter- ing his appearance. In default thereof the proceedings shall be the same as are prescribed in case of default in appearing. [See Equity Eule 14, ante p. 376. J Bule 51. Note. — Every court of equity possesses the power to mould its rules in relation to the time and manner of appearing and answer- ing, so as to prevent the rule from working injustice. And it is not only in its power but it is its duty, to exercise a sound discretion upon this subject, and to enlarge the time whenever it shall appear that the purposes of justice require it. Poulteney v. City of La Payette, 12 Pet., 472. 2. Nominal Party, When to Answer, When Not.— A party, not being an infant, against whom no account, payment, con- veyance, or other direct relief is sought, need not, upon ser- vice of the subpoena upon him, appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill ; but may do so at Ms option. If he does not appear and answer, he shall be bound by all the proceed- ings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceed.- 49 386 PEACTIOE AND PKOCED-URE OF THE ings against him, unless the court shall otherwise direct. Rule 39. 3. Disclaimers. — If a defendant claim no right or title to the mat- ter demanded by the bill, he may put in a disclaimer, renouncing all claim to such matter. A formal disclaimer differs from an answer, yet it is usually filed under the title of an answer, or with an answer, and is under oath. The disclaimer should be resorted to where it i» admissible, as it dispenses with the necessity for further answer. But cases may occur in which, though the defendant may have no present interest, yet he might have had such interest in, or connec- tion with, the subject of the suit, as entitled the complainant to a discovery. If the defendant disclaims generally, he is entitled to have the bill dismissed as against him with costs. In some cases, however, when the plaintiff had probable cause for filing his bill, he has obtained a general decree without costs on either side, as against the disclaiming defendant, Alex. Oh. Pr., 62. 4. Defence by Answer instead of Plea.— The rule that if a defendant submits to answer he shall answer fully to all the matters of the bill shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant may in all cases insist by answer upon all matters of defence in bar of or to the merits of the bill, of which he may avail himself by a plea In bar ; and in such answer he shall not be compellable to answer any other mat- ters than such as he would be compellable to answer and discover upon filing a plea in bar and answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defence. Thus, for example, a bona fide purchaser for a valuable consideration, without notice, may set up that defence by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. Eule 32. Note. — In the same way a defendant may set up many objections in answer that he might have availed himself of on demurrer and obtain the same benefit therefrom. In such cases the defendant, after stating the objection, should add "and he prays the Uke benefit from this objection as if he had made the same a ground of (general or special) demurrer," or some equivalent phrase. See Alex. Ch, Pr., 58. 5. Frame of the Answer. — The answer, after the introduc- tory part of it, shall be divided into paragraphs in the same manner as the bill, and each paragraph in the answer shall correspond with the paragraph in the bill of the same number. Eule 52. SUPREME COURT, DISTRICT DP COLUMBIA. S87 6. Manner of Answering' Complainant's Case and Stating tlie De- fence. — An answer may set up any number of defences. Story Eq. PI., 851 ; Danl. Ch. Pr., 713. But, if an answer contain two incon- sistent defences, the result will be to deprive the defendant of the benefit of either, and to entitle the plaintiff to a decree. Danl. Oh. Pr., 713. In framing the answer it is only necessary to state the de- fendant's case, with such a degree of certainty as will inform the plaintiff of the nature of the case to be made against him. It is not necessary that the same degree of accuracy should be observed as is required in a bill. Id., 714. A defendant is not bound to state in his answer the conclusions of law which he intends to deduce from the facts which he has set out. Id., 713. So to the matters of law or in- ferences of law drawn from the facts stated in the bill he need not answer. Story Eq. PI., sec. 846. But in other respects the genera- rule is, that he who is bound to answer must answer fully, and that he cannot by answer excuse himself from answering, except where an answer would tend to crimi-aate him or to subject him to a pen- alty, forfeiture or punishment, or where It would involve violation of professional confidence. So he may refuse to make discovery on the ground of the immateriality of the fact of which the discovery is sought. Nor is he bound to answer matters which are purely scandalous, or impertinent, or irrelevant, but to every fact charged in the bill the admission or proof of which is material to the relief sought, or is necessary to substantiate the plaintiff's proceeding and make them regular, the plaintiff is entitled to an answer. If the charges embrace several particulars, the answer should be in the dis- junctive, denying each particular ; or admitting some and denying the others, according to the fact. Where suspicious circumstances, gross fraud and coUusion are charged in a bill, a defendant will be held to a strict rule in answering. Not only his motives, but his se- cret designs, his "unuttered thoughts," must be exposed. See Danl. Ch. Pr., 721, (Perkins' ed.,) notel. As to facts which have not hap- pened within his own knowledge, the defendant must answer as to his information and belief, and not as to his information merely, without stating any belief either one way or the other. 3 Coop. Ed. PI., 314. But if he answers that he has not any knowledge or infor- mation of a feet charged in a bill, he is not bound to declare his be- lief one way or the other. Morris v. Parker, 3 John Ch., 287. If the bill charges a fact which is within the defendant's own knowledge he must answer positively, and not to his information and belief. Other- wise, where the facts have not happened within his own knowledge. Noyes et al. v. Inland & S. O. Co., Mac A. <& Mack., 1 ; Slater v. Max- well, 6 Wall., 268. A denial by a defendant, "according to his recol- lection and belief," is not suflftcient where the fact is directly charged as within his knowledge. Taylor v. Luther, 2 Sumner, 228. But where the defendant states that he is " utterly and entirely igno- rant" of the facts as to which he is interrogated, it is suflicient. Morris v. Parker, supra; Norton v. Warner, 3 Edw. Oh., 106. An answer on information and belief is a mere statement of matter of 388 PKACTICE AND PEOCEDTJEE OF THE hearsay, and amounts to a denial only to the extent of traversing the fects alleged in the bill, and putting the complainant upon proof. Miller v. The District, 5 Mackey, 291. 7. Separate Answers, Costs of.— When the same solicitor is employed for two or more defendants, and separate answers are filed, or other proceedings are had separately by two or more of such defendants, costs shall not be allowed for such separate answers or other proceedings unless the court shall determine that such separate answers or proceedings were necessary or proper, and ought not to have been joined to- gether. Rule 58. Note. — Defendants may answer jointly, or jointly and severally, or separately ; but in either case each defendant must swear to his an- swer, or it will be no answer as to him. Binney's Case, 2 Bland Ch., 99. 8. Answers of Infants or other Persons under Ctnardianship. — Guardians ad litem to defend a suit may be appointed by the court for infants or other persons who are under guardianship, or other- wise incapable to sue for themselves. Rule 85, par. 1. See page 376 ante as to the manner of procuring the appointment of a guardian ad litem. The answer must be put in for the infant by the guardian. In most cases it is a mere general answer submitting the rights of the infant to the court. But he is bound to ascertain the legal and equitable rights of his ward ; and if a special answer is necessary or advisable for the purpose of bringing such rights before the court, it is his duty to put in such an answer, and to m^ke the best defence he can for the infant. Snowden v. Snowden, 1 Bland Oh., 552; Alex. Ch. Pr., 31; Barb. Ch. Pr., 148. 9. Answer of an Infant Kesiding out of the District.— Where the infant defendant is out of the District, a commission may be issued to three persons, authorizing them or any two of them, to appoint a guardian to answer and defend the suit on behalf of the infant. (Forms for these commissions are to be had of the clerk of the court.) This practice is founded on the Maryland Act of 1797, ch. 114, sec. 5, which recites that it is doubtful whether or not there is any method of proceeding, whereby a person, holding land jointly or in common with an infant residing out of the State, may obtain partition of said land, and therefore, enacts, that on a bill filed for the purpose of ob- taining a partition of land held jointly or in common with an infant residing out of the State, the chancellor, on the complain- ant's motion, may direct a commission to issue unto three per- sons, such as he shall approve, authorizing them, or any two of them, to go to the infant and appoint a guardian for the purpose of answer- ing and defending the suit ; and authorizing them likewise, to take the answer, and return it to the court, and on securing such answer, there may be the same proceedings as if the defendant had been regularly summoned, and had been heard by a guardian appointed SUPREME COURT, DISTRICT OP COLUMBIA. 389 by the court. The act has been held to extend to the case of an in- fant defendant, temporarily absent from the State. The commission may issue without a subpcena, but it can be obtained only on motion and to persons to be approved by the court. Alex. Ch. Pr., 32 ; Snowden v. Snowden, 1 Bland Oh., 552. By the subsequent Act of 1799, ch. 79, sec. 6, " with the consent of the party or parties in court and with the approbation of the chancellor, a commission for any purpose whatever," which of course will include a commission to ap- point a guardian, "which may lawfully issue from the chancery court in any cause there depending, or hereafter to be instituted, may be directed to one person only, or to three persons with power to any two, and the person or persons to whom it shall be directed shall have the same authority as has heretofore been reposed in any greater number." 10. Answer of a Married Woman. — Except in suits respecting her separate estate it is a general rule that in a suit against husband and wife, the husband must procure the joint answer of himself and wife to be put in or the bill may be taken as confessed against both. Bilton V. Bennett and wife, 4 Sim., 17 ; Leavitt v. Conger and wife, 1 Paige, 421. And if either party wishes to answer separately an order must be first obtained allowing it. See 1 Barb. Ch. Pr., 150. Which will be granted for sufficient reason shown, as that the wife re- fused to join in the plea or answer. CoUard v. Smith, 2 Beasley, (N. J.), 43, 44, 45. The joint answer of husband and wife must be sworn to by both unless waived by complainant. Id., 154; Chemical Co. v. Flowers et ux., 6 Paige, 654 ; Leavitt v. Conger, 1 Paige, 422. When the suit is in respect of her separate estate she of course answers separately. 11. Answer of a Lunatic. — A lunatic defendant in chancery must be served with process, or summoned in like manner as if he were sane. Post v. Mackell, 3 Bland Ch., 488 ; Carew v. Johnston, 2 Scho. & Lefr., 292. But the committee, or legally appointed trustee of such lunatic, if he has one, who is not interested in the case, is always appointed, as of course, his guardian ad litem. If the com- mittee be adversely interested, or if the lunatic has no committee, the court will on application appoint a guardian ad litem to answer for him. Post V. Mackall, supra; 2 Mad. Pr., 333 ; Mitf. PI., 104. The awarding of an inquisition for the purpose of ascertaining the mental condition of the defendant, and whether a committee or guardian ad litem should be appointed for him, lies within the sound discre- tion of the court. If the mental incapacity is perfectly apparent to the court and the fund small, or the awarding of the commission would be likely to affect injuriously the mental condition of the de- fendant, or if from any cause no good is likely to result from it, the court will withhold an inquisition and appoint a guardian ad litem without further formality. Post v. Mackall, supra ; 3 Bland Ch., 488 ; Rebecca Owing's Case, 1 Bland Ch., 290; Sherwood v. Sanderson, 19 Vesey, 289 ; Metcf. PL, 104, and the numerous cases cited in Post v. 390 PEACTICB AND PBOCEDTJRB OF THE Mackall, supra. The distinction is this, that the court will in no case dispose of the person or estate without an inquisition, yet in special cases it will extend its protection to such person or estate without previous inquest. Owing's Case, supra. When put in, the answer is similar to that of an Infant and should be verified in the same man- ner as the answer of an infant is verified by his guardian ad litem. 1 Barb. Ch. Pr., 154. 12. Answer of a Corporation. — The answer of a corporation should be signed by the principal ofllcer. 1 Hoff. Ch. Pr., 239. But it is put in without oath under the corporate seal. Id. ; 1 Barb. Ch. 156. Ang. & Ames Corp., 665, et. seq. But where it is the object of the corporation to obtain the dissolution of an injunction, it is necessary to have the answer verified, by the oath of some of the corporators, or ofiicers of the corporation, who are ac- quainted with the facts ; as the injunction cannot be dissolved upon an answer without oath, denying the equity of the bill. Pul- ton Bank v. Canal Co., 1 Paige, 311. But see contra, Hogan v. Bank of Decatur, 10 Ala., 485. Individual members of a corporation may be called upon to answer to a bill of discovery under oath ; but in that case the individuals must be named as defendants in the bUl. Brumly v. Westchester Mfg. Co., 1 Johns. Ch., 856 ; Buford v. Ruck- er, 4 J. J. Marsh., 551 ; Vermilyea v. Pulton Bank, 1 Paige, 37. 13. Answers in Special Cases. — As to how the answer of one un- acquainted with the English language should be put in, see 1 Barb, Ch. Pr., 154 ; Simmonds v. De Barre, 3 Bro. Oh. R., 263. Answer of a deaf and dumb person. 1 Barb. Oh. R., 154 ; 2 Danl. Oh. Pr., 280. Answer of a blind person. Id. 14. Signing the Answer. — The answer must in every case be signed by the defendant. Story Eq. PI., 875. And though the answer be the joint one of several defendants, each must sign or it will be no answer as to him. Binney's Case, 2 Bland, 99 ; Nesbit v. DaUam, 7 G. & J., 494. But the signature may always be waived by the plaintiff, and the filing of a replication is evidence of such waiver. Fulton Bank v. Beach, 2 Paige, 306 ; CoUard v. Smith, 2 Beasley (N. J.), 43, 45. As to how answers are signed in the case of corpora- tions, see Answer of a Ooepobation, supra. 15. Verifying tlie Answer. — The answer, besides being signed by each defendant, must in like manner be sworn to by each of them, else it will not be regarded. Binney's Case, 2 Bland., 99 ; Conley v. Nailor, 118 U. S., 127. But the oath may be waived. Id. ; Story Eq. PL, 875. For form of verifying answers, see areie, p. 357. 16. When taken Abroad, How Verified. — An answer in chancery by a defendant beyond sea must be taken and sworn to by a commis- sioner under a dedimus issued by the court directing him to adminis- ter the oath in the most solemn form observed by the laws and usages of that country. Read v. Consequa, 4 Wash. C. 0., 335. And where it was agreed that an answer to be given in France might be taken and sworn to before any person authorized to administer SUPEEME COTJET, DISTRICT OE COLUMBIA. 391 oaths by the laws of France, it was held that the agreement was not complied with where the answer was sworn to before the Ameri- can consul. Herman v. Herman, 4 Wash. C. C, 555. 17. In what Case the Answer need not he Terifled. — The complain- ant may, by his bill, waive an answer under oath, in which case the answer need not be verified. See Equity Rule 63, post. And if it be verified notwithstanding, the same rule declares that it shall not be evidence in the defendant's favor, unless the cause be set down on bill and answer only. The case of Clements v. Moore, 6 Wall., 299, has been supposed to be in conflict with this rule, as it was ■ there held that a waiver by the complainant of an answer under oath could not deprive the defendant of the right so to answer, nor the answer, when so sworn to, of its ordinary effect. But it will be ob- served on reference to the case, that to this ruling the court added the words "Such is the settled rule of equity practice where there is no regulation to the contrary" — a qualification fully provided for by the rule of court above mentioned. CHAPTEE YIII. EXCEPTIONS TO THE ANS"WER— REPLICATION. 10 11, 1. Within what time exceptions must be filed. 2. Answers of infants, lunatics, etc., cannot be excepted to. 3. Matter and frame of excep- tions. 4. Exceptions where answer is coupled with a demurrer or plea. 6. Submitting to the exceptions — amended answer. 6. Within what time exceptions must be set for hearing or be 1. Within wliat Time Exceptions must be Filed.— The plain- tiff shall be allowed ten days after an answer is filed, and notice thereof is given to the plaintiff's solicitor, to file ex- ceptions thereto for insufftciency, unless a longer time shall be allowed by a justice, upon cause shown ; and if no excep- tions shall be filed thereto within that period the answer shall be taken to be sufficient. Eule 54. deemed abandoned. 7. Allowance of exceptions— put- ting in answer — attachment to compel. 8. Costs of exceptions. 9. The replication, time for fil- ing. Special replications abol- ished—form of general repli- cation. If replication be not filed in time, bUl to be dismissed. 392 PEACTICB AND PROCEDTJEE OF THE Note. — By Rule 55, post, " the court or any justice thereof may en- large the time for filing exceptions, upon such terms as he may deem reasonable." 2. Answers of Infants, Lunatics, etc., Cannot be Excepted to. — The answer of an infant cannot be excepted to, because in consequence of his legal disability to defend himself, he answers by another, and is not bound by that answer. The reason applies with as full force to the answer of a lunatic or idiot. And as a feme covert is pre- sumed to be so far under the dominion of her husband that she is not bound by her answer made jointly with him, it would seem that her answer should be equally above exception. Alex. Oh. Pr., 64, note; and see Kent v. Taneyhill, 6 Gill & J., 1 ; Stewart v. Duvall, 7 G. & J., 179. 3. Matter and Frame of Exceptions. — Exceptions to an answer for insufficiency should be signed by counsel. Danl. Oh. Pr., 763. If the answer be evasive it must be excepted to ; all defects in the answer must be supplied by taking exceptions. Blaisdell v. Stevens, 16 Vt., 179 ; see Travers v. Ross, 1 McCarter (K. J.), 254. The an- swer of a defendant is to be taken as the testimony of any other witness ; if not explicit, the defendant must be pressed by excep- tions until it is so. Blaidsdell v. Stevens, supra. The particular points or matters in the bill which remain unanswered, or which are imperfectly answered, should be stated in the exceptions. Stafford v. Brown, 4 Paige, 88 ; Mitf Eq. PI., 315; Cooper Eq. PI., 319 ; see Dexter v. Arnold, 2 Sumner, 108. Material and necessary matter must be explicitly met in an answer ; but exceptions founded on verbal criticisms, slight defects, and omissions of immaterial matter, will be invariably disallowed, and treated as vexatious. Boggott v. Henry, 1 Edw. Oh., 7. An answer to which the oath of the defendant is waived cannot be excepted to for insufficiency ; because such an- swers are not evidence. 1 Barb. Oh. Pr., 177. An answer to an amended bill cannot be excepted to in respect of matters contained in the original bill. Danl. Oh. Pr., 761. Unless the amended bill make an entirely new case. Id., and note 7. Or where defendant by his answer to amended bill, renders his former answer insuffi- cient. Id., 762. But with these exceptions the general rule is that a plaintiff, if he does not except to the answer to the original bill, cannot afterwards except to the answer to an amended bill, on the ground that the defendant has not answered matters which were contained in the original bill, the reason being that the plaintiff, by amending his bill, has admitted the answer to be sufficient. Id., 762. And if plaintiff amend his bill without waiting for the decision upon the exceptions, he will be considered as having waived the excep- tions. But this rule does not apply where the amendments are merely formal and require no answer. Id. Nor wiU exceptions be waived by moving upon admissions in the answers ; as to pay money into court, etc. Id. 4. Exceptions, when Answer is Coupled with a Demurrer or Plea.— It SUPREME COURT, DISTRICT OP COI,UMBIA. 393 should be remarked that if the defendant file a demurrer or plea to any part of the discovery, with his answer, the plaintiff by except- ing to the answer, pending the plea or demurrer, will be held to ad- mit it to be good. It is said that if the demurrer or plea is only to the relief it will not be admitted by filing exceptions to the answer, but it may be doubted whether the dictum is universally true. A demurrer or plea to relief is also a demurrer or plea to the dis- covery, as the plaintiff's right to the discovery depends upon his right to relief; and it is diflBlcult to assign a reason for exacting a discovery, so long as it remains doubtful whether any use can be made of that discovery, when it is attained. If the defendant de- mur or plead to part of the bill, and answer the residue, the plain- tiff cannot except to the answer, until the demurrer or plea is dis- posed of. Alex. Oh. Pr., 65. 5. Submitting- to the Exceptions — Amended Answer. — By Rule Fifty {see next section) if the defendant submit to the exceptions he must file his amended answer within ten days and give notice thereof to the plaintiff. But the court, in its discretion, may enlarge the time Upon such terms as it may deem reasonable. 6. Within what Time Exceptions must be Set for Hearing or he Deemed Abandoned. — Where exceptions to the answer for insufficiency are filed within the period prescribed by these rules, if the defendant shall not submit to the same, and file an amended answer within ten days, and give notice thereof to the plaintiff, the plaintiff shall forthwith set them down for hearing on the next succeeding rule- day thereafter, before a justice of the court, and shall enter, as of course, in the order-book an order for that purpose. If he shall not so set them down for hearing, the exceptions shall be deemed abandoned and the answer shall be held sufficient ; provided, hovever, that the court, or any justice thereof, may, for cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. Rule 55. 7. Allowance of Exceptions— Putting in Answer— Attach- ment to Compel .^ — When exceptions are allowed, the defendant shall put in a full and complete answer within ten days ; other- wise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as con- fessed, or, he may have a writ of attachment to compel the de- fendant to make a better answer to the matter of the exceptions ; and the defendant shall not be discharged from custody upon such writ except by an order of the court, or of a justice there- 50 394 PEACTICE AND PKOCEDXJRE OF THE of, upon his putting in such answer and complying with sucb other terms as the court or justice may direct. Eule 56. Note. — Upon the coming in of the answer, (which must be conflned to the matters of the former exceptions, ) the plaintiff, if he think it insufflcient, may renew his exceptions ; but he cannot take any addi- tional exceptions to the original answers. Alex, Ch. Pr., 66. 8. Costs of Exceptions.— The party prevailing at the hearing upon exceptions to the answer shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or a justice. Eule 57. 9. The Replication, Time for Filing. — ^When an answer, be- ing excepted to, is adjudged sufficient, the plaintiff shall file the general replication within ten days thereafter ; and when an answer is not excepted to, the plaintiff shall file the general replication within ten days after notice of the filing of such an- swer ; and when the general replication is filed the cause shall be deemed at issue, without any rejoinder or other pleading on either side. Eule 60. Note. — If the plaintiff deny any allegation in the answer, or require proof to sustain any charge in the bill, which has not been admitted by the answer, he should enter a replication, which puts in issue every question of fact as well as of law. And as the answer of an in- fant, by his guardian, does not bind the infant, it follows that in every case the plaintiff must reply to the answer of an infant de- fendant. Alex. Ch. Pr., 67. 10. Special Replications Abolished — Form of General Repli- cation — Rule 59. — No special replication to any answer shall be filed. The general replication may be in the following or equivalent form : In the Supreme Court of the District of Columbia, the Day of , 18 — . A. B., Complainant, "» V. I In Equity. No. — . CD., Defendant. ) The complainant hereby joins issue with the defendant [and will hear the cause on bill and answer against the defendant], [and on the order to take the bill as confessed against the defendant.] 11. If Replication be not Piled in Time Bill to be Dismissed Unless, etc. — If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit ; and it shall thereupon stand dismissed unless the court, or a justice thereof, shall, upon motion and for cause shown, allow SUPREME COtTET, DISTRICT OF COLtTMBIA. 395 a replication to be filed nunc pro tunc, tlie plaintiff submitting to speed tlje cause, and to such other terms as may be im- posed. Eule 61. Note. — It has sometimes happened that even after witnesses have been examined, it has been discovered that owing to a mistake, no replication has been filed ; in such cases a replication has been per- mitted to be filed nunc pro tunc. And it seems that this has been permitted to be done after the cause has come on for hearing and the reading of the proofs has been commenced. Danl. Ch. Pr., 834 ; Clements v. Moore, 6 Wall., 299. And after a cause has been set down for hearing a motion to dismiss the suit for want of a replica- tion is too late. Eeynolds v. Bank, 112 U. S., 405. J fortiori on ap- peal after hearing on bill, answer and proof. Bank v. Ins. Oo., 104 V. S., 54. CHAPTEE IX. AMENDED AND SUPPLEMENTAL BILLS AND AN- SWERS; CROSS-BILLS AND BILLS OP REVIVOR. 1. Amending bills before and af- ter copy taken out. 2. Amending bills after answer, plea or demurrer, 3. — After replication. 4. When leave to amend bill will be deemed abandoned. 5. Answering the amended bill. 6. Amending the answer. 7. Supplemental bills. 8. Supplemental answers. 9. Cross-bills for discovery only. 10. Maryland Act of 1785, ch. 72, sec. 21. 11. Cross-bills generally. 12. In what cases dismissal of bill by plaintiff carries the cross- bill with it. 13. Bills of revivor. 14. The practice when a bill of re- vivor becomes necessary. 15. Bills of revivor and supple- ment. 16. Bills in the nature of a bill of revivor. 17. Suit not to abate if party die after cause set for hearing. 18. Death or marriage of party after final decree. 19. Not necessary to set forth in bill of revivor statements in original suit. 1. Amending Bills before and after Copy taken Out. — The plaintiff may, as a matter of course, and without payment of costs, amend his bill in any matters whatsoever before any copy has been taken out of the clerk's office; and in any small matters afterwards, such as filling blanks, correcting errors of ■dates, misnomer of parties, misdescription of premises, cleri- 396 PEACTICE AND PEOOEDXJEE OF THE cal errors, and generally in matters of form ; and such amend- ments shall be noted by the clerk at the foot of the bill. But if he amend in a material point after a copy has been so taken, (as he may do, of course, ) before any answer or plea, or de- murrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof, free of expense, with suitable references to the places where the amendments 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. Eule 23. Notes. — No rule can be laid down in reference to amendments of equity proceedings that will govern all cases. They must depend upon the special circumstances of each case ; and in passing upon applications to amend, the ends of justice must not be sacrificed to mere form, or by too rigid an adherence to technical rules of prac- tice. Hardin v. Boyd, 113 U. S., 756. Amendments to a bill are al- ways considered as forming a part of the original MIL They refer to the time of filing the bill ; and the defendant cannot be required to answer anything which has arisen since that time. Hurd v. Everett, 1 Paige, 124 ; Walsh v. Smith, 3 Bland, 9, 20 ; O' Grady v. Barry, 1 Irish Eq., 56 ; Story Eq. PI., 332, 885. See Longworth v. Taylor, 1 McL. J 514. Unless indeed the defendant has not put in his answer, in which case the bill may be amended by adding supplemental matter. Story Eq. , 885 ; Chandler v. Petit, 1 Paige, 168. Consequently after an- swer an original bill cannot be amended by incorporating therein any- thing which arose subsequent to the commencing of the suit. This should be stated in a supplemental bill. Story Eq. PI., 332 ; Stafford V. Hewlett, 1 Paige, 200 ; Danl, Ch. Pr., 401, note 7. Cases, however, do sometimes occur where the introduction, by amendment, of mat- ters which have occurred since the date of the original bill will be per- mitted by the court ; thus where the plaintiff has an inchoate right at the time of preparing his original bill which merely requires some formal act to render his title perfect, and such formal act is not com- pleted until afterwards, the introduction of that fact by amendment will be permitted. The case of an executor filing a bill before pro- bate, and afterwards obtaining probate, is an instance of this kind, Humphreys v. Humphreys, 3 P. Wms., 348 ; Bradford v. Felder, 3 McCord Ch., 170 ; Billout v. Morse, 2 Hayw., 175 ; Butler v. Butler, 4 Litt., 201 ; Blackwell v. Blaokwell, 33 Ala., 67 ; Kipp v. Hanna, 2 Bland ch., 26. Infants being particularly under the protection of the court, will not be permitted to be injured by the manner in which their bills have been framed. Mitf. Eq. PL, 327 ; Coop. Eq.JPL, 335. So that when to the prejudice of an in&nt, a matter has not been put by a bill 397 properly in issue the court has generally ordered the bill to be amended. Id. 2. Amending Bills after Answer, Plea or Demurrer.— After an answer, or plea, or demurrer is filed, and before 'replica- tion, the plaintiif may, upon motion or petition without no- tice, obtain an order from any justice to amend his bill on or before the next succeeding rule- day, upon payment of costs or without payment of costs, as the court or a justice thereof may in his discretion direct. Eule 24, par. 1. Notes. — Where the plaintiff amends his bill after answer, if a further answer of the amended bill becomes necessary and is not waived, the defendant must put in a further answer to the amend- ment ; or the whole bill as amended may be taken pro oonfesso. Danl. Oh. Pr., 402 ; Trust & Fire Ins. Co. v. Jenkins, 8 Paige, 589. See Thomas v. Visitors Fred. Co. School, 7 Gill & J., 369; Cowman V. Lovett, 10 Paige, 559. Where an answer of a defendant states facts which are material to the plaintiff's case, but which have not been stated in the bill, it is not necessary that the plaintiff, in order to avail himself of them at the hearing, should introduce such facts into his bill by amendment, although, perhaps, the most convenient course would be to do so. Danl. Ch. Pr., 407, and cases cited. But it is not necessary or proper to amend the bill for the purpose of traversing defensive averments brought forward by the answer. Lanier v. Hill, 30 Ala., 111. The court may impose other conditions of amendment besides pay- ment of costs. Belows v. Stone, 14 N. H., 175 ; Bowen v. Idley, 6 Paige, 53. See Droullard v. Baxter, 1 Scam., 191. 3. —After Replication. — But after replication filed the plain- tiff shall not withdraw it and amend his bill, except upon a special order of a justice, upon motion or petition, after due notice to the other party, and upon proof by af&davit that the same is not made for the purpose of vexation or delay, and that the matter of the proposed amendment is material and could not with reasonable diligence have been sooner in- troduced into the bill, and upon plaintiff submitting to such other terms as may be imposed by the justice for speeding the cause. Eule 24, par. 2. K^ote. — There are cases in chancery when amendments are per- mitted at any stage or progress of the cause, as where an essential party has been omitted ; but amendments which change the charac- ter of the bill or answer, so as to make substantially a new case, should rarely, if ever, be admitted after the cause has been set for hearing, much less after it has been heard. Walden v. Bodley, 14 Pet., 156. So under privilege of amending plaintiff cannot make an entirely new bill, as where the original bill sought the rescission of 398 PRACTICE AND PBOCBDTJRE OF THE a contract for fraud and the amendment added an alternative prayer for specific performance. Shields v. Barrow, 17 How., 130. But in Tilton V. Cofield, 93 U. S., 166, it was said that amendments may be made for the purpose of introducing into the suit a new and independent cause of action, citing Tiernan's Executors v. Wood- ruff, 5 McLean, 135. And in Hunter v. United States, 5 Pet., 173, defendant had made a general assignment for benefit of creditors, and afterwards made a second assignment to the United States. The latter then filed a bill claiming under this second assignment. Afterwards it filed an amended bill in which the claim was placed upon the priority of the United States. Held, competent to be made. In some cases, where a matter has not been put in issue with suffi- cient precision by the bill, or the prayer is not consistent with the case made, a court of equity will permit an amendment at the trial. Graffam v. Burgess, 117 U. S., 180. Where new parties are made by amendment the suit is to be considered as commenced against the new defendants from the time of the amendment only. Miller v. Mclntyre, 6 Pet., 61. The amended bill is considered a part of the original bill and a continuation of the suit ; new process is, there- fore, not necessary as to defendants who are already before the court. French v. Hay, 22 Wall., 238. For other cases in which amendments have been allowed under unusual circumstances, see Thompson v. Maxwell Land Grant Co., 95 U. S., 351 ; Neale v. Neale, 9 Wall., 1; The Tremolo Patent, 23 Wall., 578. 4. When Leave to Amend Bill will be Deemed Abandoned.— If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. Eule 25. 5. Answering the Amended Bill. — When the plaintiff amends after answer filed the defendant shall put in a new or supple- mental answer within ten days after notice of the filing of the amended bill, unless the time is enlarged or it is otherwise ordered by a justice of the court ; and upon his default the like proceedings may be had as in cases of an omission to put in an answer. Eule 'S3. Note.— This rule is not to be understand as confining the defendant to an answer as distinguished from a demurrer or plea, for he may demur or plead to the matter of the amendment or answer it as the occasion may require. See Alex. Ch. Pr., 110. But if he has al- ready answered the original bill, he cannot answer again to that bill, under pretext of answering the amendment. Alex. Ch. Pr., 110 ; Thomas v> Visitors' Fred. Co. School, 7 Gill & John., 387 ; Spur- BXJPREME COUET, DISTRICT OF COLUMBIA. 399 rier v. Fitzgerald, 6 Ves., 548. Unless perhaps when a bill originally filed for a discovery is converted by amendment into a bill for relief. Alex. Ch. Pr.. 110. 6. Amending the Answer.^An answer may be amended as of course, in any matter of form, as by filling up a blank, or correcting a date, or reference to a document, or in any other small matter, and be re-sworn, at any time before a replica- tion, or before tlie cause is set down for hearing upon bill and answer. But after replication, or such setting down for hearing, it shall not be amended in a.ny such matter with- out leave of the court or one of the justices ; nor in any mate- rial matters, as by adding new facts or defences, or qualifying or altering the original statements, except by special leave of the court or of a justice thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by affidavit. And the court, or the justice granting such leave, may require that such amendment be separately en- grossed and added as a distinct amendment to the original an- swer, so as to be distinguished therefrom. Eule 53. Notes. — The court is much stricter in allowing amendments of an- swers than it is in regard to the amendment of bills. And it is only un- der very special circumstances that a defendant will be allowed to make any material alteration in his answer. 1 Bart. Ch. Pr., 164 ; MoKim V. Thompson, 1 Bland Oh., 162 ; 4 John Oh. Rep., 375. And there is no instance of its having been allowed for the purpose of retracting a clear and well understood admission. McKim v. Thompson, supra ; Rawlins v. Powell, 1 P. Wm., 300 ; Peace v. Grove, 3 Atk., 522. And where the application to amend was silent as to the causes which occasioned the defendant to omit mentioning the new matter , proposed to be added, and said nothing of his not knowing of its existence at the time of putting in his answer, the court refused the application. McKim v. Thompson, 1 Bland Ch., 162. But when a sufficient reason is shown, an amendment will be allowed for the pur- pose of correcting a mistake or error in a matter of fact ; or in the statement of a fact ; or in making an admission of assets. 1 Barb. Ch., 164. So it will be allowed where new matter has come to the defendant's knowledge since the answer was put in. 1 Barb. Oh., 164. See Supplemental Bills. 7. Supplemental Bills. — Leave to file a supplemental bill may be granted by the justice holding the special term, or, in his absence, by any other justice of the court, upon sufficient cause shown, and notice of the application to the opposite party. If a supplemental bill be so filed, the defendant shall demur, plead, or answer thereto on the next succeeding rule- 400 PRACTICE AND PROCEDTJEE OF THE day after it is filed, unless some other time shall be assigned by a justice of the court. Eule 49. Notes.— An original bill cannot be amended by incoroparting any- thing therein, which arose subsequently to the commencement of the suit. This should be stated in a supplemental bill. Stafford v. Hew- lett, 1 Paige, 200, 201 ; Ld. Red., 63 ; Thompson v. Hill, 5 Yerger, 418 ; Campbell v. Browne, 5 Paige, 34 ; Story Eq. PI., sees. 335, 336, and note; Greenleaf v. Queen, 1 Pet, 148. On the other hand nothing which occurred prior to the filing of the original bill, ought to be added by way of supplement, unless the state of the cause is such that an amendment can no longer be obtained ; but when the original bill cannot properly be amended, any new matter necessary to be put in issue can be introduced by supplemental bill. Goodwin v. Goodwin, 3 Atk., 370; Story Eq. PI., sec. 333 ; Veazie v. "Williams, 3 Story, 54 ; Stafford v. Hewlett, 1 Paige, 200, 201 ; Pinch v. Anthony, 10 Allen, 470. But a supplemental bill will not be allowed when the matter alleged therein could not under any circumstances have been introduced as an amendment to the original bill. Clark v. Hull, 31 Miss. (2 George), 520. Nor is it allowable to file a supplemental bill in order to introduce facts which have occurred since the filing of the original bill, and upon which a decree can be had without refer- ence to the original bill. The plaintiff should dismiss his original bill, and file an entirely new one. Milner v. Milner, 2 Edw. Ch., 114. In Pinch v. Anthony, 10 Allen, 447, Chapman, J., said: "We have no authority that goes so far as to authorize a party, who has no cause of action at the time of filing his original bill, to file a supple- mental bill in order to maintain his suit upon a cause of action that accrued after the original bill was filed, even though it arose out of the same transaction that was the subject of the original bill." See Chandler v. Petit, 1 Paige, 168 ; Vaughan v. Vaughan, 30 Ala., 329, A plaintiff cannot support a bad title by acquiring another after the filing of the original bill, and then bringing it forward by supple- mental bill. Toukin v. Lethbridge, 9 Coop., 43 ; Winn v. Albert, 2 Md. Oh. Dec, 42. Nor must the supplemental matter contradict the statements of the original bill. 2 Drew, 414 ; but see Allen v. Spring, 22 Beav., 615. Where, however, the plaintiff has stated a good inchoate title, which only requires some formal act to make it perfect, such act may be stated by supplemental bill. Mutter v. Chauvel, 5 Russ., 42 ; Sadler v. Lovett, 1 Moll., 162. So if the origi- nal bill is sustainable, and the supplemental bill only enlarges the extent and changes the kind of relief, the latter may be sustained. Jacques v. Hall, 3 Gray, 194 ; Mutter v. Chauvel, supra ; Edgar v. Clever, 2 Green. Oh., 258 ; Hasbrouk v. Shuster, 4 Barb. Ch., 285. The court will sometimes, ex mero motu, direct a supplemental bill to be filed, if upon the hearing, the justice of the case, in its own opinion, requires it to be done. Mutter v. Chauvel, supra ; see Wood V. Mann, 2 Sumner, 316 ; Veazie v. Williams, 3 Story, 54, 67. A bill of this nature ought to be filed as soon as the new matter sought to be StTPEEME COUET, DISTEIOT OP COLUMBIA. 401 inserted therein is discoVered. And if the party proceeds to a decree after the discovery of the facts upon which the new claim is founded, he will not be permitted afterwards to file a supplemental bill in the nature of a bill of review, founded on such facts. Pendleton v. Fay, 3 Paige, 204 ; Story Eq. PI., sec. 338, a. It seems that if the defend- ant has any objection to urge to the supplemental bill being filed, he should take the opportunity of stating it to the court upon the hear- ing of the motion, and should not wait to do so till he has put in his answer to the supplemental bill. Danl. Ch. Pr., 1523. And in Pinch V. Anthony, 10 Allen, 470, it was held that an objection to a supple- mental bill, on the ground that it seeks to maintain the suit upon facts which have occurred since the filing of the original bill, is Waived by omitting to demur to it on that ground, and consenting to go into a fall hearing before a master upon the merits of the case as set forth in the original and suppemental bill. See Story Eq. PL, 628, and note ; Underbill v. VanOortland, 2 John. Ch., 369. A sup- plemental bill may be filed, either before or after decree, and may be in aid of a decree to help its being carried intofull execution, or, that proper directions may be given on some matter omitted in the origi- nal bill, or not put in issue by it, or defence made to it. O'Hara v. Sheppard, 3 Md. Ch. Dec, 306. But if filed after a decree it must not seek to vary the principles of the decree, but taking that as the basis, seek merely to supply any omissions there may be in it, or in the pro- ceedings which led to it, so as to enable the court to give full effect to its decision. Id. An original bill in the nature of a supplemental bill should recapitulate so much of the former bill as is necessary to show the bearing of the supplemental matter. Story Eq. PI., 343. Where a supplemental bill has been filed without leave of court, the objection cannot be taken advantage of by demurrer, though the bill on that ground may in the discretion of the court be dismissed. Barriclo v. Trenton Mutual Life Insurance Company, 2 Beasley, (N. J.,) 154, 159. Upon a supplemental bill a subpoena is not required unless new parties are made. Eule upon parties already served to answer is sufficient. Shaw v. Bill, 95 U. S., 10. It is not necessary to set forth in a supplemental bill any of the statements of the original bill, unless the special circumstances of the case require it. See Rule 50, post. 8. Supplemental Answers. — The application for leave to file a sup- plemental answer must be made by motion accompanied with an affidavit. Thomas v. Doub, 1 Md., 252 ; McKim v. Thompson, 1 Bland, 150. And it will not be allowed to be filed unless on new matter, nor unless a sufficient reason appears for not having in- serted it in the original answer. Barb. Ch. Pr., 166. And the old answer must remain on file as it was originally put in. Murdock's Case, 2 Bland, 261. An application will not be entertained to file a Supplemental answer to change the whole ground of defence set up in the first answer. Id. Nor if it contradicts the statements in the first answer. Greenwood v. Atkinson, 4 Sim., 61. See Thomas V. Visitors of Frederick School, 7 Gill & J., 369. 51 • 402 PEAOTICE AISTD FEOCBDUEE OF THE 9. Cross-Bill for Discovery Only.— Wh'ere a defendant files a eross-bill for discovery only against the plaintiff in the origi- nal bill, the defendant to the original bill shall 'first answer thereto, before the original plaintiff shall be compellable to answer the cross-bilL The answer of the original plaintiff to such cross-bill may be read and used by the party filing the cross-bill, at the hearing, in the same manner and under the same restrictions aS the answer praying relief may now be read and used. Eule 68. Ifote. — Notwithstanding this rule a cross-bill for discovery only, although now more resorted to than fbrmierly, is, as Alexander says, almost unnecessary in "our practice. The Md. Act of 1785, ch. 72, sec. 21, serving, in most ckses, all the purposes of a cross-bUl for dis- covery. That act provides as follows : 10. Maryland Act of 1785, ch, 72, sec, 21.— In all eases the defendant in chancery may exhibit interrogatories to the plaintiff, which shall be answered by him in writing upon oath, and such answ'er shall be evidence in the cause, in the same manner, and to the same effect, that the defendant's answer to the plaintiff's bill is evidence, and there shall be the same process, and the same power exercised by the chan- cellor to compel the plaintiff to answer the defendant's inter- rogatories, as can be issued, or lawfully exercised, to compel the defendant to answer the plaintiff's bill. Note. — In practice the interrogatories are prefaced by a short petition that the complainant may be ordered to answer the interro- gatories. The order passes as a matter of course, requiring the com- plainant to answer by a certain day ; and obedience to that order may be enforced by attachment and other process. The court may also in case of complainant's default, stay all proceedings in the cause, which would reduce him to the alternative of answering or dismissing his suit. Alex. Ch. Pr., 111. 11. Cross-Bills Generally. — As to cross-bills generally, see Danl. Ch. Pr., 1548, 1556; Adam's Eq., 402; Coop. Eq. PL, 85-: Harr. by Newl., 81; Story Eq. PL, 389; Welford Eq. PL, 223; and for forms of such bills, see 1 Van Hey, 361 ; Willis Eq. PL, 357, 364, and DanL Ch. Pr., Vol. III. It is treated as an auxiliary suit; or as a depend- ency upon the original suit. Story Eq. PL, sec. 399 ; Cross v. De Valle, 1 Wallace, 1. And can be sustained only on matter growing out of the original bill. Daniel v. Morrison, 6 Dana, 186 ; Crabtree v- Banks, 1 Met. (Ky.), 482 ; Rutland v. Paige, 24 Vt., 181; Galatian v. Erwin, 8 Cowan, 561. New parties cannot be introduced into a cause by a cross-bill. Shields v. Barrow, 17 How., 145. But a pur- chaser pendente lite may file a bill in the nature of a cross-bill, to make himself a party to the suit, so as to have his rights protected. ■BtrPUEME COtTET, DISTRICT OF COLtTMEIA. 403 Whitbeck v. Edgar, 2 Barb. Oh., 106. And see Hurd v. Case, 32 111., 45 ; Jones v. Smith, 14 111., 229. There should be as little delay as possible in filing a cross-bill. When such a bill is necessary, the proper time for filing it is at the time of putting in the answer to the original suit, and before the issue is joined by filing the replication. 1 Smith Oh. Pr. (2d Am. ed.), 460. But leave should be had of the ■court to file the cross-bill. Bronson v. La Orosse & M. R. R. Co., 2 Wall., 283. And it is in the discretion of the court to grant it. Railroad v. Ins. Co. , 109 U. S. , 168. If the cross-bill is not filed before or at the time of answering in the original suit, the delay must be ac- counted for or the proceedings will not be stayed. White v. Buloid, 9 Paige, 164. And see. 10 Paige, 319 ; Josey v. Rogers, 13 Geo., 478. In Oartwright v. Clark, 4 Met., 104, it was held, that as a general Yule, a cross-bill must be filed before publication of the evidence in the original suit, unless the plaintiff in the cross-bill will go to the hearing upon the proofs already published. See to the same point and effect, cases cited in Danl. Ch. Pr., 1548, note 2, Perkin's ed. See also Story Eq. PI., sec. 395. Whenever a cross-bill is brought against co-defendants in a suit, the plaintiff in such suit must be named a defendant together with them. Coop. Eq. PI., 85. No decree can be founded upon new and distinct matters introduced by a cross-bill, which were not embraced in the original suit. Story Eq. PL, 631 ; May v. Armstrong, 3 J. J. Marsh., 262 ; Daniel v. Morrison, 6 Dana, 186 ; GrifQth v. Merritt, 19 K. Y., 529. But the cross-bill is not restricted to the issues of the original bill. Nelson v. Dunn, 15 Ala., 201. A cross-bill being generally considered as a defence, or as a proceeding to procure a complete determination of a matter already in litigation, the plain- tiff in the cross-bill is not, at least as against the plaintiff to the original bill, obliged to show any ground of equity to support the jurisdiction of the court. Danl. Ch. Pr., 1549, an-d cases there cited. The plaintiff in the original suit should answer rather than demur to the cross-bill. Lambert v. Lambert, 52 Maine, 544. But if the cross- bill seeks relief, it is indispensable that it should be equitable relief ; otherwise the bill will be demurrable ; for to this extent it is not a pure cross-bill, but it is in the nature of an original bill seeking further aid of the court beyond the purposes of defence to the original bill ; and under such circumstances the relief should be such, as in point of jurisdiction, the court is competent to administer; Story Eq. PL, 398, 629; Coop. Eq. PL, 86; Ld. Red., 81, and note. Calverly v. Williams, 1 Vesey, jr., 211, 213 ; and for other instances in which a cross-bill will be open to demurrer, see Danl. Ch. Pr., 1549, note 3. One defendant cannot have a decree against a co- defendant without a cross-bill with proper prayer. Barker v. Belk- nap, 39 Vt., 167, 173 ; Talbot v. McGee, 4 Monroe, 379. But see Elliot V. Pell, 1 Paige, 263. Nor, in general, can the defendant have any positive relief against the plaintiff even on the subject-matter of the suit, except by cross-bill. Scott v. Lalor, 3 0. E. Green, (N. J.), 301 ; Andrews v. Kibbee, 12 Mitjh., 94 ; Mason v. McGirr, 28 Ills., 322; 404 PEACTIOB AND PKOCEDUEE OF THE McGlaughlin v. O'Rourke, 12 Iowa, 459. If, therefore, the defend- ant has any relief to pray, or discovery to seek, he must do so by a bill of his own, viz., a cross-bill. Danl. Oh. Pr., 1550. A cross-bill may be filed to answer the purposes of a plea puis darrien continu- ance at common law. Ld. Red., 82 ; Story Eq. PL, 392 ; Hayne v, Hayne, 3 Ch. Rep., 19; 3 Swanst., 472, 474; Miller v. Fenton, 11 Paige, 18. A cross-bill should never be brought where the same re- lief may be obtained in the original suit. Branan v. Wilkinson, 3 Barb., S C, 151 ; Bulloch v. Brown, 20 Geo., 472; Bogle v. Bogle, 3 Allen, 158, 161. Such a bill seeking no discovery, and setting up no defence which might not have been as well taken by answer, will be dismissed with costs. Weed v. Small, 3 Sandf Oh., 273. And they are not necessary for the purpose of obtaining credits, or mere matters of discharge; relief thereon can be obtained under the answer. Alston v. Alston, 34 Ala., 15. See Scott v. Lalor, 3 0. E. Green (N. J.), 301. If a cross-bill is taken as confessed it may be used as evidence against the plaintiff in the original suit on the hear- ing, and will have the same effect as if he had admitted the same facts in an answer. White v. Buloid, 2 Paige, 164. But when the allegations of a cross-bill are inconsistent with the admissions of the answer to the original bill, they cannot be taken as true though un- answered. Savage v. Oarter, 9 Dana, 414. See Dill v. Shahan, 25 Ala., 694. A cross-bill, although sustainable if it were an original bill, must be dismissed if the original bill is dismissed. Dows v. Chicago, 11 Wall,, 108 ; Gross v. Dale, 1 WaU., 1 ; R. B. Oo. v. R. R. Co., 6 Wall., 742. 12. In what Cases Dismissial of Bill by Plaintiff carries the Cross- Bill with it. — As a general rule, a complainant in an original bill has the right at any time, upon payment of costs, to dismiss his biU. But this latter rule is subject to a distinct and well settled excep- tion, namely, that after a decree, whether final or interlocutory, has been made, by which the rights of a party defendant have been adju- dicated, or such proceedings have been taken as entitle the defend- ant to a decree, the complainant will not be allowed to dismiss his bill without the consent of the defendant. C. & A. R. R. Oo. v. Union RoUing Mills Co., 109 U. S., 713. 13. Bills of Revivor. — Whenever a stilt in equity shall be- come abated by the death of either party, or by any other event, it may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time ; and upon suggestion of the facts the proper process of sub- poena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause be shown at the next rule-day occurring after SUPREME COTJET, DISTRICT OF COLUMBIA. 405 fourteen days from the time of the service of said process, the suit shall stand revived, as of course. Eule 48. Note. — See Chapter XXXVTI, ante, p. 239, et seq., "Change of Paeties by Death, Maekiaqe or Oontkact." The Maryland Act of 1785, ch. 80, sec. 1, has been held to relate to suits at law only. 1 Bland Ch., 130 and 133, notes c. and d. So, too, the act of Congress, section 955, R. S. U. S., has been considered as limited to the personal representatives, as heirs and devisees are not mentioned, (Green v. Walkins, 6 Wheat., 260,) and although the act speaks only of judg- ments, it has been held to apply to cases in equity. Clark v. Mathewson, 12 Pet.., 164. General Rule 118 {ante, p. 239), has greatly simplified the process of revivor and substitution of parties. It is not, however, free from ambiguity, and seems to be obnoxious to the same criticism which has been applied to section 955 — that is to say, it is not clear whether its provisions are to be confined to " per- sonal representatives, husbands, and transferees," thereby excluding heirs and devisees, or whether in using those words there was no intention to confine the benefits of the rule to the special characters named. If the latter be the correct construction, it will be seen that but few occasions for resorting to a formal bill of revivor are now necessary. But neither Equity Rule 48 or General Rule 118, it is submitted, makes any change in the principles applicable to the abate- ment of suits by reason of death or marriage. They merely simplify the process by which they may be revived. 14. The Practice when a Bill of KevlTor becomes Necessary .—A bill of revivor, when necessary, may be filed of course, without an order of court granting permission to file it. Pendleton v. Fay, 3 Paige, 204. Upon a bill to revive, the sole questions before the court are the competency of the party to revive, and the correctness of the frame of the bill to revive. Bettes v. Dana, 2 Sumner, 383. Where one of the defendants in an equity suit dies while the suit is pending, and his heirs cannot be prejudiced by the proceedings, they need not be made parties. Adams v. Stevens, 49 Maine, 362. In a suit for the recission of a contract for lands, if the plaintiff dies, it should be re- vived in the name of the heirs, and not of the executors ; if the de- fendant, it is error to take a decree against his heirs till they are served with process, or have answered. Kincort v. Sanders, 2 A. K. Marsh., 26 ; see Hallet v. Hallet, 2 Paige, 16 ; Bradley v. Telder, 2 McCord Ch., 169. A suit which has become entirely abated may be revived as to part only of the matter in litigation, or as to part by one bill, and as to the other part by another ; thus if the rights of a plain, tiff in a suit, upon his death, become partly in his real and partly in his personal representative, the real representative may revive the suit so far as concerns his title, and the personal so far as his demand extends. Danl. Ch. Pr., 1541, and see Owings' Case, 1 Bland, 409. Where the interest of the plaintiff wholly determines on his death, the suit cannot be revived, on that event happening, but a new bill must be filed. Watts v. Watts, 1 Johns., (Eng.,) 631. In which new 406 PEAOTICE AND PEOOBDTTEE OF THE \ suit, the benefit of the proceedings in the former suit may, if prayed, be obtained. See Story Eq. PL, sec. 349; Ld. Red., 70, 97; Brady V. McCosker, 1 Comst., 214. Where a bill has been revived by a wrong party, the proper course to be pursued by the right party is to revive de novo. Danl. Ch. Pr., 1538, n. 3, (Perkin's Ed.) 16. Bills of ReTiTor and Supplement. — Whenever a plaintiff has a right to revive a suit, he may add to the bill of revivor such supple- mental matter as is proper to be added. Pendleton v. Fay, 3 Paige, 204. A bill of revivor and supplement is merely a compound of these two species of bills. Such a bill not only continues a suit that has abated, but supplies any defects in the original bill arising from sub- sequent events. Wescott v. Oady, 5 Johns. Oh., 242. It must be framed and proceeded upon in the same manner as the two species of bills of which it is compounded. Ld. Red., 80. And the same de- fences are applicable, that would be,- if they were separate. Lake v. Austwicke, 4 Jurist, 314. If matters contained in a bill of revivor and supplement are irrelevant or improper, the defendant may take advantage of the objection either by plea or demurrer, or by excep- tion for impertinence. Pendleton v. Fay, 3 Paige, 204. But the in- sertion of supplemental matter in a bill of this nature will not au- thorize the defendant to demur to the whole bill. He should demur to the supplemental matter only. Randolph v. Dickerson, 5 Paige, 517, and see Pendleton v. Fay, supra; Eastman v, Batchelder, 36 N. H., 141. 16. Bills in the Nature of a Bill of EerlTor. — Where a bill in the nature of a bill of revivor is filed by any one, who was not a party to the original suit, either as representative of a deceased party or other- wise, all of the other parties to such original suit, who have any in- terest in the further proceedings thei'ein, should be made parties to such bill, either as plaintiffs or defendants. The Farmers' Loan & Trust Company v. Seymour, 9 Paige, 538. A devisee cannot main- tain a bill of revivor, but he may maintain an original bill in the na- ture of a bill of revivor, and thus obtain the benefit of the original proceedings, as well before as after there has fieen a decree in the original suit. Slack v. Walcott, 3 Mason, 508, where the subject is very fully discussed. 17. Suit not to Abate if Party Die after Cause set for Hear- ing. — In case any cause hath been, or shall be set down regu- larly for hearing, or submitted to the chancellor by both par- ties as ready for his decision, and one of the parties hath died, or shall die, after such setting down or submission, and before a decree passed, having a solicitor in court, the said cause shall not abate, and the chancellor may decree as if such decease^ party were alive, and the decree shall have the same effect as if it had been passed against the deceased, except that it shall not entitle the complainant to a preference in the distributioB SUPREME COURT, DISTRICT OP COLUMBIA. 407* of assets, either real or personal. Md. Act., 1797, ch. 114, sec. 4. Note.— This act extends in terms to all cases where the party dying, has a solicitor in court. But in practice it is necessarily con- fined to cases where the decree to be passed can have effect without the co-operation of the representatives of a deceased party. Alex. Ch. Pr.', 101 ; Brogden v. Wallier, 2 H. & J., 289. " The meaning of the act appears to be confined to this : When one of the parties to a suit dies after a submission, or setting down for hearing, the chancellor may decree the payment of money to, or by, the deceased, and it shall give such a claim, as is founded on other decrees for or against the estate of the deceased ; but the claim shall not be entitled to a preference. There probably may be some other cases ; for instance, a decree for recording a deed, when noth- ing is to be done by the deceased party. The more the chancellor reflects, the more he is confined in the opinion he has expressed, and the more he is convinced of the impropriety, and indeed, unpractica- bility of the act having an operation more extreme than he has men- tioned." Hanson, Ch., in Brogden v. Wallier, 2 H. & J., 285, cited in Alex. Ch. Pr., 101. Accordingly the chancellor refused to extend the case to a bill filed for a re-conveyance of real and personal es- tate on the ground of fraud, the complainant having died after the case was regularly set down for hearing. See Alex. Ch. Pr., 101-102. 18. Death or Marriage of Party After Final Decree. — Although Equity Rule 48 does not expressly include oases where the death or marriage of the party occurs after final decree, its language seems sufficiently broad to cover such cases. General Rule 118, however, applies by its terms to cases "insult," and has no application to cases arising after final decree. In these instances the proceeding must be lender Rule 48, unless it is preferred to follow the former Maryland practice as laid down by Chancellor Bland, in Allen v. Burke, 1 Bland Ch., 544. In that case it is said ''according to the course of proceeding in chancery, where a party dies or a female plaintiff marries, after the final decree has been enrolled, such decree and proceedings must be revived by a subpoena scire facias ; which mode of reviving a suit, however, can only be pursued by or against the heir, the legal representatives, or those who are privy in blood or contract to the deceased party ; and who as such, may be bene- fitted or bound by the decree ; but they are precluded from going into its merits ; and upon the same principles the merits of the de- cree cannot be questioned even on a bill in nature of a bill of revivor by an assignee or a devisee. Dunn v. Allen, 1 Vern., 283 and 426 ; Owen V. Curzon, 2 Vern., 237 ; Clare v. Wordell, 2 Vern., 54b ; Mur- shuU V. Lord Mohun, 2 Vern., 672. If the party summoned fails to show cause, or the cause shown be deemed insufiicient, he may if required, be examined on interrogatories as to any matter necessary to the proceedings. But where there have been any proceedings subsequent to the decree, this process will be ineffectual, as it re- 408 PEACTICE AND PEOCEDUEE OP THE vives the decree only and nothing more. Mitf. Plea, 70. It is said that in England it. has become the practice to revive in all cases in- discriminately by bill, because of its having become unusual to en- roll decrees ; but in Maryland all decrees are considered as enrolled as soon as they are signed. HoUingsworth v. McDonald, 2 H. & J., 237. And consequently a bill of revivor, or this mode of reviving a suit, which has abated after a decree, by a subpoena solre facias, must be considered as the most regular, if not in fact the only mode by which a suit can properly be revived in this court. Oroster v. Wister, 2 Rep. Chan., 67 ; Wharam v. Brougham, 1 Ves., 181 ; White V. Haywood, 2 Ves., 461 ; Fallows v. Williamson, 11 Ves., 307. A subpcena scire facias may be obtained by petition, and must be served like a subpoena to answer. On its appearing by the return, that the process has been made known, and the party regularly summoned, if no cause be shown to the contrary, nor any plea in bar, etc., (Comber's Case, 1 P. Wm., 767,) the court will, without requiring any appearance to be entered, on motion at any time after the first four days of the term to which the party has been returned summoned, order the decree to stand revived. 1 Harr. Pr. Ch., 670 ; 2 Harr. Pr. Ch., 191 ; 2 Fowl. Exch. Pr., 301, 305, 419. The court of chancery in this as in various other particulars, regulates its pro- ceedings by analogy to the course of the common law ; according to which, where after judgment a party dies, the judgment may be re- vived by a scire facias, on which if returned made known, and no cause is shown, the judgment is at once ordered to stand revived without an appearance. 19. Not Necessary to Set Forth in Bill of Revivor Statements in Original Suit. — It shall not be necessary in any bill of re- vivor or supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. Eule 50. SUPREME COURT, DISTRICT OP COLUMBIA. 409 CHAPTER X. INJUNCTIONS, NE EXEATS AND REOEIVBRS. 1. Preliminary injunctions or re- straining orders, how al- lowed. 2. In what cases an undertaking will be required — form of. 3. Preliminary injunctions and ne exeats not to be granted ex parte, unless prayed for and bill verified. 4. When not ex parte, day to be fixed for hearing. 5. When to stay proceedings at law— averments of bill — or- der to be made. 6. Principles upon which an in- junction issues to stay pro- ceedings at law. 7. Injunctions to stay proceed- ings upon a judgment. 8. Principles upon which the in- junction issues. 9. Damages for satisfaction of interest on a forthcoming bond. 10. In what cases damages to be in the discretion of the court. 11. Suits at issue, to recover land or chattels, not to be stayed unless undertaking be given. 12. Affidavits may be filed with bill or answer. 13. Injunctions not to be granted against assessment or col- lection of taxes. 14. Motion to dissolve or dis- charge. 15. Not dissolved unless answer verified. 16. Miscellaneous provisions of Revised Statutes of U. S. 17. Preliminary injunctions not appealable. 18. Receivers. 19. How and when appointed. 20. Who may be receiver. 21. When title vests in receiver. 22. Order appointing receiver not appealable. 1. Preliminary Injunction or Restraining Orders, How Al- lowed. — No injunction nor restraining order to suspend the ordinary business of a bank or monied corporation, or to com- pel a defendant to refrain from doing any act, where the in- junction will necessarily produce great or irreparable injury to such defendant if the claim of the complainant be not sus- tained, shall be allowed except upon a direct application to the justice holding the special term of the court. Eule 40, par. 1. Notes. — An injunction to restrain a mere trespass will not be granted where the injury threatened is not irreparable, but is sus- ceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in a court of law. Jerome v. Ross, 7 Johns. Oh., 315 ; Amelung v. See Kamp, 9 Gill & J., 468 ; Herr v. 52 410 PEACTICE AND PROCEDUEE OF THE Bierbower, 3 Md. Ch. Dec, 456 ; Carlisle v. Stevenson, Id., 499 ; Chesa- peake & Ohio Company v. Y^oung, 3 Md., 480 ; Port^v. Groves, 29 Md., 188 ; and see Danl. Ch. Pr., 1631, Perkin's Ed., note 3. The mere allegation of danger of a great and irreparable injury is not enough ; facts must be stated to satisfy the court of the existence of a danger of that kind. Fort v. Groves, supra. And therefore an omission of the charge of irreparable injury would not be a defect in a bill for an- injunction otherwise good. Davis v. Reed, 14 Md., 152. Equity will not interfere by injuntions against an alleged private nuisance where the hardship upon one side would be immeasurably greater than the injuries sustained by the other, but will leave the complainant to his action at law. Hewett v. Telegraph Company, 4 Mackey, 424 ; Harkness v. Board of Public Works, 1 Mac A., 121. The injunction stays the proceeding of the defendant, or person against whom it is directed, from the time of its service. It does not avoid any act done, nor restore the plaintiff to anything of which he may have been deiprived before its service. An exception to this rule is made by the Maryland Act of 1799, ch. 79, sec. 10, which pro- vides that, in cases of execution levied on personal property, the sheriff or other officer shall, immediately on the service on him of the injunction, deliver back the property taken in execution to the party from whom it was taken, and shall not be answerable to the plain- tiff on account of the same. See Alex. Ch. Pr., 89. This act, how- ever, can rarely have application in this District, since the remedy at law by an action of replevin affords in most cases an ample remedy against wrongful executions. So, too, the several other acts of Mary- land relating to injunctions, to wit, the act of 1723, ch. 8, sec. 5 ; the act 1793, ch. 75, sec. 3, and the act of 1785, ch. 72, sec. 28, the first of which refers to the security to be given in cases of injunctions upon judgments, the second empowering the chancellor to require bond where proceedings at law are stayed, and also where the same are sued out by executors or administrators, empowering the chan- cellor to decree "as equity and good conscience shall seem to re- quire"; and the third relating to proceedings where injunctions to stay waste are dissolved, are practically superfluous and obsolete, the well-recognized equity powers of the court in such cases having always been ample to meet all the contingencies mentioned by these acts. 2. In what Cases an Undertaking will be Required— Form of. — Except when an injunction is to stay proceedings in an ordinary suit at law, or is against a judgment debtor who is made a defendant to a creditor's bill, no injunction or re- straining order shall be issued except upon the precedent con- dition that the complainant execute and file in the cause (with surety or sureties, if deemed necessary by the justice, and to be approved by him) an undertaking to make good to the defend- ant all damages iy him suffered or sustained by reason of wrong- fully and inequitably suing out the injunction, and stipulating that BUPUEME COUET, DISTEIOT OP COLTTMBIA. 411 the damages may be ascertained in such manner as the justice shall direct, undfhat, on dissolving the injunction, he may give judgment thereon against the principal and sureties for said damages in the decree itself dissolving the injunction. Eule 40, par. 2. 3. Preliminary Injunctions and Ne Exeats not to be Granted ex parte, unless Prayed for and Bill Verified. — No preliminary injunction nor ne exeat shall be granted ex parte unless prayed for in the bill and the bill be verified in the manner pre- scribed in Equity Eule 88. Eule 41. Notes.— The bill must b& verified by the affidavit of the plaintiff, or of one of the plaintiffs, where there are more than one, or if the plaintiff be not a resident of the District, by the affidavit of some third person, who especially shows how he happens to have know- ledge of the facts set forth in the bill, or by some other testimony sufficient to induce the chancellor to credit the bill for the truth of its statement. See Alex. Oh. Pr., 80. Where it is intended to apply for an injunction or ne exeat upon a bill sworn to by an agent or attorney of the complainant, if any material allegation or charge that is neces- sary to be sworn to positively, in order to authorize the issuing of the injunction or ne exeat, is not within the personal knowledge of the agent or attorney, he should, in addition to his own verification, annex the affidavit of the person from whom he derived his informa- tion, swearing that he knows such allegation or charge to be true. 1 Barb. Oh. Pr., 48. Where a bill is filed by a corporation, the officer or other person who has personal knowledge of the facts, should swear to them. Youngblood v. Schamp, 2 MoCarter (N. J.), 42. 4. When not ex parte, Day to be Fixed for Hearing. — The justice to whom an application for an injunction is made may refuse to allow it ex parte, and instead thereof may appoint a day for hearing the application, and require the defendant, or, if there be several defendants, such of them as he thinks proper, to be notified of the hearing for a reasonable time pre- viously, subject to the provision of Eule No. 40, as to the undertaking to be filed by plaintiff. Eule 42. 5. When to Stay Proceeding at Law — Averments of Bill — Order to be Made, — If the injunction prayed for be to stay pro- ceedings at law, the bill must state whether an issue has been joined, or a verdict or judgment obtained, and the injunction, if granted, may stay all proceedings after issue joined, or per- mit the defendant to proceed to judgment, notwithstanding the injunction, without prejudice to the complainant's equi- ties. Eule 43. 6. Principles upon which an Injunction Issues to Stay Proceedings 412 PRACTICE AND PBOCEDTJEB OF THE at Law. — Ths principle upon which a court of equity interferes td restrain proceedings at law is that a party shall not be allowed to enforce a legal right in an inequitable manner. The right to relief extends, therefore, to all cases where the dispute involves an equi- table element, and, as the courts of law cannot adjudicate an equity, a part only of the dis'pute, and not the whole dispute, would be de- cided there. But the mere assertion of an equity is not suflacient. A ease must be shown sufficient to satisfy the chancellor that the question really involves an equitable element, and is a fit subject for investigation in a court of equity. And the equity must be as clear as the legal right which he is called upon to control. See Kerr on Injunctions, 14, and cases cited. An injunction is not confined to any point of the proceedings at law. It may, upon a proper case being made out, be granted at any stage of the action. Kerr Inj., 21. It is not, however, necessary that a case should be made out which would entitle the plaintiff to relief at all events at the hear- ing. It is enough if the court finds upon the pleadings and the evi- dence a case which makes the transaction a proper subject for in- vestigation in a court of equity. The question for the court upon an interlocutory application is not the final merits of the case. When the case comes on to be heard the final merits may be very different. But this consideration will not prevent the court from breaking in upon the proceedings at law, where, from the merits to be gathered from the pleadings and conflicting affidavits, there appears on the whole a case proper for the investigation of the court, and a fair question to be reserved till the hearing. Kerr Inj., 14. The bill must show an equitable case and must allege the sub- stance of the ground of relief, and must show grounds upon which the action at law may be sustained. Kerr Inj., 17. Where the complainant admits that he owes a balance to the per- son to be enjoined, the court may require such balance to be brought into court to be paid accordingly. Flickinger v. Hull, 5 Gill, 60. The terms on which an injunction is granted to stay proceedings at law are in each case a question for the discretion of the court, but the general principle upon which the court proceeds is to put the party applying upoTi such terms as will enable the court to do jus- tice to the party restrained, in the event of his failing to make his case at the hearing. If the questioii between the parties depends partly on a legal title, and partly on an equity, which will only arise in the event of that title being decided in one way, and the circumstances are such that the party applying may admit the legal right of the other party, the action will be restrained only upon the terms of his giving judgment in the action, such judgment to be dealt with as the court shall direct, and undertaking to obey such order as the court may think proper to make. Kerr Inj., 19. For further principles, see The Earl of Oxford's Case, 2 White & Tudor's Ld. Gas. Eq., pp. 1297, 1416, where the whole subject is elaborately discussed and nu- merous cases cited. SUPREME COUBT, DISTEICT OF COLUMBIA. 413 7. Injunction to Stay Proceedings upon a Judgment. — When an injunction is obtained to stay proceedings on any judgment rendered for money, and such injunction shall be dissolved, wholly or in part, damages, at the rate of ten per centum per annum from the time the injunction shall be awarded until dissolution, shall be paid by the party on whose behalf such injunction was obtained on such sum as appears to be due, in- cluding costs, and execution on the judgment enjoined shall be issued for the same. E. S. D. C, sec. 830. 8. Principles upon which the Injunction Issues. — The jurisdiction of chancery to stay proceedings upon a judgment, though well estab- lished, is cautiously exercised. A mere defect of jurisdiction is not sufficient. The party must show in addition that the interference of equity is necessary to prevent injustice, which has not been brought about by the negligence or inattention of the party aggrieved. Boh- rer v. Pay, 3 Mac A., 145. And it must clearly appear that the party complaining cannot avail himself at law of the equities relied upon to enjoin the judgment. Id. So where a motion to open the judg- ment on the same grounds as those set forth in the bill has been made in the court where the judgment is pending, and which mo- tion is undetermined, there is no ground for relief in equity. Id. The complainant must allege and prove that he had a good defence to the action at law, and show how he has been prevented from availing himself of it. Id. And see the following cases illustrating, and enlarging upon, the foregoing principles : Bider v. Morsell, 3 Mac A., 186 ; Marine Ins. Co. v. Hodgson, 7 Cranch, 332 ; Truly v. Wanzer, 5 How., 141 ; Brown v. Swann, 10 Pet., 497 ; Creath v. Sims, 5 How., 192; Hendrickson v. Hinckley, 17 How., 443; Hungerford v. Sigerson, 20 How., 156; Orim v. Handley, 94 TJ. S., 652; Brown v. Buena Vista Co., 95 U. S., 157 ; Drexel v. Bimey, 16 Fed. Rep., 522. Proceedings upon a judgment may be enjoined as to a part, and be allowed to proceed as to the residue. Bell v. Cunningham, 1 Sum- ner, 89; Sawyer v. Gill, 3 Woodb. and M., 97. 9. Damages for Satisfaction of Interest on a Forthcoming Bond. — In cases where a forthcoming bond shall have been executed by the complainant, and no judgment shall have been rendered thereupon, the court in which execution shall be awarded shall direct the damages to be included in the judg- ment, and such damages shall in all cases be in full satisfaction of interest for the time for which they shall be allowed. E. S. D. C, sec. 831. 10. In what Cases Damages to be in the Discretion of the Court. — When the injunction is granted to obtain a discovery, or any part of the judgment shall remain enjoined, the court 414 PEACTICB AND PEOOEDUEE OF THE may, if it appear just, direct that such damages shall not be paid, or only such proportion thereof as they may deem ex- pedient. E. S. D. C, sec. 832. Note.— Upon the dissolution of an injunction to stay proceedings on a judgment of the circuit court of the District of Columbia, damages at the rate of ten per cent, per annum must be awarded, unless it be a bill to obtain a discovery, or some part of the judg- ment remain enjoined. Mason v. Muncaster, 3 Or. C. C, 403. 11. Suits at Issue, to Recover Land or Chattels, not to be Stayed Unless Undertaking be Given.— If an action of ejectment, or other suit at law to recover possession of land, or to recover possession of specific chattels, be at issue, no injunction shall be granted to stay the same until the complainant, with surety or sureties approved by the justice, has filed an undertaking in the suit to pay such rent and intervening damages as may be fi- nally adjudged against the complainant, and stipulating that jiuig- ment may be given against the principal and sureties for the same if the bill be dismissed for want of equity. Rule 44. Notes. — Where there is an equitable title in a defendant to an ac- tion of ejectment, a court of equity will restrain proceedings at law, and direct the cause to proceed in equity, where all defences can be considered, and where, in a single proceeding, the whole controversy in all its aspects may be settled. Apgar v. Christopher, 10 Fed, Rep., 857. Id., 13, Rep., 620. Where one is in possession of land by a good, equitable right and title, but the legal estate is either in him- self or in another as trustee for him and an action of ejectment is brought against him by the one claiming as well the equitable as the legal right, and denying the legal as well as the equitable title of the defendant, equity will grant relief by way of injunction, inasmuch as the plaintiff in ejectment, should he recover at law, would merely hold as trustee for the defendant. Apgar v. Christopher, supra. An injunction will be granted to restrain proceedings in ejectment in order to give complainants time to perfect their title by procuring reformation of a mistake in the deed under which they claim. Crel- hn V. Ely, 13 Fed. Rep., 420 ; S. C, 7 Sawyer, 532. 12. Affidavits may be Filed with Bill or Answer. — The appli- cation for an injunction or ne exeat, whether ex parte or upon notice, may be fortified by affidavits of third persons in sup- port of the allegations of the bill or petition to be filed there- with ; and upon motion of the defendant to dissolve, his an- swer may be supported, in like manner, by affidavits to be filed with said answer. Eule 45. See notes to section 15, post. la. Injunctions not to be Granted against Assessment or Collection SUPREME COURT, DISTRICT OF COLUMBIA. 415 of Taxes.— No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court. R. S. U. S., sec. 3224. But this act applies only to taxes levied by the United States, and has no application to taxes levied by the District of Columbia, although under the authority of the United States. R. R. & Bridge Co. V. District of Columbia, 1 Mackey, 217. 14. Motion to Dissolve or to Discharge. — When an injunc- tion or ne exeat is granted ex parte, the defendant, on due notice, may move to dissolve the injunction or discharge the ne exeat on the bill only ; and if his motion be allowed it may be with or without cost, in the discretion of the justice. In this case the complainant shall serve a copy of the bill upon the defendant's solicitor within six days after he has en- tered his appearance and notice thereof ; and if a copy of the bill be not delivered within said time the defendant may, upon due notice to the plaintiff, move to dissolve the injunc- tion or discharge the ne exeat with costs. Eule 46. 15. Not Disolved unless Answer Verified. — An injunction or ne exeat shall not be dissolved or discharged on answer, al- though the whole equity of the bill be denied by the answer, unless the answer is duly verified, provided the verification thereof is not waived by the plaintiff In the bill. Eule 47. Jfotes. — In cases of special injunctions, there are two points which seem well established in practice : first, that the dissolution of an in- junction is not of course upon the coming in of the answer, denying the merits ; and, secondly, that upon the motion to dissolve such an injunction, the plaintiff under some circumstances, is entitled to read aflidavits in contradiction to the answer, not indeed to all points, but to many points. If the whole merits are satisfactorily denied by the answer, the injunction is ordinarily dissolved. But there are excep- tions to the doctrine, and these for the most part are fairly resolvar ble into the principle of irreparable mischief ; such as cases of as- serted waste, or of asserted mismanagement in partnership concerns, or of asserted violation of copyrights, or of patent rights. In cases of this sort, the court will look into the whole circumstances, and will continue or dissolve the injunction in the exercise of a sound discretioni Poor v. Carleton, 3 Sumner, 73, 79. It is now quite settled that affidavits may be read against the answer in cases of waste, nuisance, &c. See Robinson v. Lord Byron, 1 Bro. O. C, 589; Merwin v. Smith, 1 Green. Ch., 182; Wing v. Fair- haven, 8 Cush., 363 ; Bouldin v. Baltimore, 15 Md., 18 ; Baker v. Tay- lor, 2 Blatchf, 0. C, 82. In Poor v. Carleton, supra, Mr. Justice Story says: "I should not hesitate to admit affidavits to contradict the answer for the purpose of continuing or even granting a special in- junction where I perceived that without it irreparable mischief would 416 PEAOTICE AND PKOCEDTJEE OP THE arise." For the practice in cases of breach of injunction, see Alex, Ch. Pr., 91, 94. The general rule would seem to be that an injunction cannot be avoided except by special order. If, however, the plaintiff amend his bill, the injunction is at an end, unless it is expressly provided by the order that the amendment shall be without prejudice. Alex. Ch. Pr., 90. See, however, Mr. Alexander's modification of this statement in the preface to his work, p. 10. And the court is gov- erned, in the exercise of its discretion, to continue or otherwise the injunction, by the nature of the amendment and the circum- stances under which it is made. In some cases when it was sought to amend a bill by Inserting additional matters of fact, an affi- davit has been required, that such new matter was not known to the party at the time of filing the original bill. Alex. Ch. Pr., 90. An in- junction is not dissolved by an abatement of the suit ; but the defend- ant, in case of an abatement by the death of the complainant, should move for an order that the proper representative revive by a certain day. If the defendant dies his representatives may obtain a similar order ; and if the order thus obtained is disregarded, the injunction will be ordered to stand dissolved. For method of proceeding in such cases, see Alex. Ch. Pr., 90. Where a person not a party to the cause is injuriously affected by the injunction, he may, it seems, apply by petition to set it aside. Bourband v. Bourband, 12 W. R., 1024, V. C. W. If there are several defendants, the court will not in general, dissolve the injunction until all have answered. Robinson V. Carthcart, 2 Cr. C. C 590. 16. Miscellaneous ProTisions of Revised Statntes of United States.— There are various sections of the Revised Statutes of the United States having application to the issuing of injunctions in special cases. As the occasions for enforcing these provisions are of rare occurrence, a mere reference to them is deemed sufficient. They are as follows : lujunctions to stay proceedings on distress warrant against delin- quent collector, etc., sections 3636, 3637. —To prevent violation of rights secured by patent, section 4921. — Upon comptroller of the currency and receivers, etc., of national banks ; how obtained ; effect of, section 5237. 17. Preliminary Injunctions not Appealable. — A mere preliminary injunction is not a final order or decree, and is therefore not appeal- able. Barber v. Strong, 1 Mac A., 575. Nor will an appeal per- petuate a mere restraining order which the special term has refused to continue in force. ' Carrington v. Sweeney, 2 Mac A., 68. 18. Receivers. — A receiver is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it. High on Recv., 2. He may be applied for at the time of filing the bill or at any stage of the cause. Barroll's Md. Ch. Pr., 315 ; Alex. Ch. Pr., SUPREME OOTTRT, DISTEICT OF COLtTMBIA. 417 95. He cannot be appointed, however, until a suit is commenced. Anon., 1 Atk., 419. Except in cases of idiots and lunatics. Ex parte Whitfeld, 2 Atk., 315 ; In re Rachel Oolvin, 3 Md. Ch., 288 ; High on Recv., sees. 17 and 733. Or where defendant designedly keeps out of the way to avoid service of the process. Quinn v. Guion, 1 Hogan, 75 ; Sanford v. Sinclair, 3 Edw. Oh. R., 393. Nor before answer, un- less in special cases. West v. Swan, 3 Edw. Oh. R., 420 ; High on Recv., sec. 103. He should not be appointed save in a strong case, and never, unless there is dangel- of irreparable loss. Id., 3 ; Pul- lan v. R. R. Oo., 4 Biss., 35, 47. Or to prevent manifest wrong and injury. Crawford v. Ross, 39 Ga., 44 ; Furlong v. Edwards, 3 Md., 112 ; Speights V. Peters, 9 Gill, 476. ^STor over real property, except in extraordinary cases. Willis v. Corlies, 2 Edw. Ch. R., 281 ; High on Recv., see. 553 ; 1 Md. Ch., 489 ; Furlong v. Miller, 3 Md., 99. As where the rents and profits are in imminent danger of being wasted. Tribert v. Burgess, 11 Md., 452 ; Haight v. Barr, 19 Md., 130. To secure the appointment of a receiver it must be shown, 1st. That plaintiff has a clear right to the property itself, or that the property constitutes a special fund to which he has a right to resort for the satisfaction of his claim, or that he has some lien upon it ; 2d. That the possession of the property by the defendant was obtained by fraud, or that the property itself, or the income aris- ing from it, is in danger of loss from the neglect, waste, misconduct, or insolvency of the defendant. High on Recv., sec. 9. The granting of a receiver rests largely in the discretion of the court, governed by a consideration of the entire circumstances of the case. High on Recv., sec. 7 ; Hamburg Manf. Oo. v. Edsall, 4 Halst. Ch., 141 ; Crane V. McCoy, 1 Bond, 422 ; Whepley v. Erie R. R. Co., 6 Blatchf. C. C, 271. And the application is not entitled to favorable consideration where the plaintiff has lain by for a long period of years, and quietly acquiesced in a condition of affairs which he seeks to change by ob- taining a receiver. High on Recv., sec. 15, and cases cited. 19. How aud when Appointedi. — ^He may be appointed under special circumstances of danger to the property upon the allegations of the bill and at the time of the filing thereof, but such cases are very rare. BarroU's Md. Ch. Pr., 315 ; Alex. Ch. Pr., 95. Most usually, where his appointment is sought at the commencement of the suit, the bill prays his appointment, and on affidavits filed an order nisi issues, or a motion is made supported by affidavits and served on the defend- ant. If in a later stage of the case, the application is made by peti- tion setting forth the facts with affidavits. See High on Recv., sec. 82, et seq. The afiidavits should be distinct and precise, especially in cases of fraud. Id. It is not indispensable that the bill should con- tain a specific prayer for a receiver, if the fects stated are sufficient to justify the appointment, since the necessity for the relief fre- quently occurs after the filing of the bill. High on Recv., sec 83. 20. Who may be Keceiver. — He should be an impartial person, having no connection with either of the parties. High on Recv., 63 418 PRACTICE AND PEOCEDTJEE OF THE sec. 63, et seq. Thus, neither a party nor his solicitor should be ap- pointed. Id., sec. 70; Garland v. Garland, 2 Ves., jr., 137; Ex parte Pencke, 2 Merv., 452. Nor should any person liable to be beyond the jurisdiction and control of the court be appointed. High on Recv., sec. 70. Where the same property is involved in two suits it is the practice to appoint the same person receiver in both suits. HoweU. V. Ripley, 10 Paige, 43 ; Cagger v. Howard, 1 Barb. Oh. R., 368. 21. When Title Vests in Receiyer. — Property is not in the custody or possession of the receiver until he has actually reduced it into possession, and up to such time it is not free from attachment or exe- cution. Farmers' Bank v. Beaston, 7 Gill & J., 421. And untU be gives his bond and qualifies he has no right to such possession. Phillips V. Smoot, 1 Mackey, 486. And the order should distinctly declare that he is to take possession. See Market Co. v. Warthen Bros., 2 Mackey, 432. As to the right of a mortgagee to the rents and profits, a receiver having been appointed, see Keyser v. Hitz, 4 Mackey, 179 ; Pepper v. Shepherd, Id., 269. 22. Order Appointing Receiver not Appeable.— See Grant v. Phoe- nix Ins. Co., 106 U. S., 429. CHAPTEE XI. INTERLOCUTORY PROCEEDINGS. 1. Interlocutory orders, how obtained. 2. Motions grantable of course. 3. Motions not grantable of course — Notice of, ho w given. 4. Affidavits in support of mo- tions and in opposition to. 5. Certifying motions to the gen- eral term. 6. Motions not involving the merits of the case not ap- 7. Security for costs. 8. Consolidation of causes. 9. Production of books and pa- pers. 10. Electing to proceed at law or in equity. 11. Payment of money into court. 12. Sending issues to a court of law. 13. Attachments for contempt. 14. Sequestration. 1. Interlocutory Orders, How Obtained.— Any justice of the court may, at chambers, (as well in vacation as in term,) make and direct all interlocutory orders, rules, and other pro- ceedings, preparatory to the hearing of causes upon their merits, in the same manner and with the same effect as the StJPIlEME COtTET, DISTEIOT OP COLUMBIA. 419 court Could make and direct the same in term ; reasonable no- tice of the application therefor having been previously given to the adverse party, or his solicitor. Eule 2. 2. Motions Grantable of Course.^— AH applications in the clerk's office for the issuing of mesne process and of final pro- cess to enforce and execute decrees, for filing bills, answers, pleas, demurrers, and other pleadings, shall be deemed appli- cations to be complied with of course. Eule 3. 3. Motiuns not Grantable of Course— Notice of, How Given. — All motions for rules or orders or other proceedings, which are not grantable of course, or without notice, shall be heard on two days' notice ; and a copy of the affidavits or papers upon which said motion is founded shall, together with the notice of motion, be served on the opposite party, if he has appeared, or his solicitor, at least two days before the hearing of said motion, unless the grounds of said motion are matter of record, in which case it shall only be necessary to refer to such parts of the record as are specified in the notice of mo- tion. Eule 4. Notes. — A motion may be made by or on behalf of any of the parties to the record ; provided such party i? not in contempt. Gilbert v. Arnold, 30 Md., 35. But one, not a party to the record, cannot, in general, be allowed to apply by motion. A person, however, who is quasi party to the record — such as a creditor coming in under a de- cree, or a purchaser under a decree' of the court — may apply to the court by motion. 1 Barb. Ch. Pr., 566 ; Danl. Oh. Pr., 1591. An order made upon motion, may be discharged or varied Upon motion. Fan- ning V. Dunham, 4 Johns. Ch,, 35. As to scandal and impertinence in papers prepared tor making or opposing a motion, see Powell v. Kane, 5 Paige, 256. A notice of motion must be properly entitled in the cause or mat- ter in which the application is to be made. Danl. Ch. Pr., 1594. The notice should state clearly the terms of the order which will be asked for ; and where the otgBct is to discharge the order for irregularity, it is usual but not necessary to state the ground of the application. Danl. Ch. Pr., 1594 ; Smith Ch. Pr., (2d Am. ed.) 64, n. a. It may in- clude several objects ; such as the appointment of a receiver, an in- junction, and the payment of money into court. Danl. Ch. Pr., 1595. A notice of motion for any process of contempt or commitment must be served personally upon the party to be affected by it, unless an order is obtained for substituted service. Danl. Ch, Pr., 453, 455, 1595 ; Hovey v. McDonald, 3 Mac A., 184. 4. Affldarits in Support of Motions, and in Opposition to. — If an aflldavit which has been filed upon or in opposition to a motion, re- quires an answer, but it has been fll«d so recently that an affidavit 420 PEACTICE AND PBOCEDTJEE OP THE in answer cannot be procured, the party affected by it should, if he be the party moving, save his notice of motion till a future day ; or, if he be the respondent he should ask that the motion may stand over, in order that he may file an affidavit in answer. Danl. Ch. Pr., 1598. Theoretically, a motion may stand over from time to time until both sides have exhausted themselves in affidavits. Practically, delay is lessened by the conditions imposed by the court, when the motion is mentioned ; as, for instance, that the party opposing the motion shall file his affidavits by a certain day ; and that the party moving shall file his affidavits (if any) in reply, by a certain subsequent day ; though even where such directions are given, it is difficult to shut out material evidence, solely on the ground of its not having been adduced in time. Danl. Ch. Pr., 1598, n. 7. 5. Certifyiug Motions to the General Term. — The justice before whom the motion is made may, in his discretion, certify it to be heard in the general term in the first instance., even against the remon- strance of both sides, or he may refuse to make such certificate, though all parties unite in asking it. Insurance Company v. Hos- mer, 1 Mackey, 297. But a motion ought not to be certified, unless it involve the merits of case, Doddridge v. Gaines, 1 Mac A., 335, When certified, the general term will make the same order as upon the whole case ought to have been made by the court below. Insur- ance Company v. Grant, 3 Mac A., 220. 6. Motions not Involving' the Merits of the Case not Appealable. — No appeal will lie from an order denying a motion not involving the merits of the case. Driggs v. Daniels, 2 Mac A., 254. Thus, an order denying apreliminaryinjunction is not appealable. Barberv. Strong, 1 Mac A,, 574. And if an appeal be taken and bond given it will not act as a supersedeas of such an order. Carrington v, Sweeney, 2 Mackey, 68. Nor will it lie if a restraining order be granted. Ad- ams V. Adams, 2 Mac A,, 276. Nor does an appeal lie from an order granting a writ of assistance or from an order refusing it. The rea- son given by the court being that such an order did not involve the merits, "because the merits or the material points in controversy must necessarily be settled before a writ of assistance canbeawarded." Bryan v. Sanderson, 3 Mac A., 304. 7. Secnrlty for Costs.— It was held in Ray v. Law, 1 Or. C. C, 349, that the laws of Maryland respecting security for costs (ante, p. 46) have no application to suits in equity ; but this court has not followed that ruling. On the contrary, it is an every day-matter to require security for costs to be given. That the giving of security for costs is a mat^ ter for the discretion of the court, has been already seen. (Ante, p. 46.) The court has sometimes permitted a non-resident to sue in forma pauperis upon filing an affidavit that he has no property here or elsewhere, and is unable to give security for costs, or to make a deposit in lieu thereof, and the affidavit should be sup- ported by a certificate of counsel that in his opinion there is good probable cause for bringing the suit. As to under what circum- SUPREME COURT, DISTRICT OF COLUMBIA. 421 stances, and at what stage of the catise the plaintiff may be required to give security for costs, see Mayer v. Tyson, 1 Bland Ch., 559. A resident plaintiff, although he is insolvent or a bankrupt, cannot be required to give security for costs, but if a bill be filed and dismissed with costs by default, and a new bill is filed for the same purpose, a motion may be made for time to answer, until after payment of costs in the first cause ; so when a next friend, filing a bill on behalf of an infant, becomes insolvent, the defendant may move to have a solvent next friend substituted. The plaintiff may be required, at any stage of the cause, to enter security for costs. But the defendant should take the earliest opportunity to move, as his right to require security will be considered waived by any proceeding which admits the plaintiff's right to sue. The filing of an answer, or even praying for time to answer, would be a waiver, if the fact of non-residence ap- peared by the bill, or was otherwise known to the defendant. Alex. Ch. Pr., 56. See Mayer v. Tyson, 1 Bland Ch., 561. If the non-residence appear on the face of the bill the proper course is to move at the earliest possible day that plaintiff be required to give security for costs during the succeeding term, notice of the mo- tion being given to plaintiff or his counsel. If the non-residence do not appear on the face of the bill, or if after the filing thereof plaint- iff should leave the District, the matter may be brought to the atten- tion of the court by petition or motion supported by aflidavit, upon which an order may be passed, upon due notice to counsel, or if there be none, the court may pass an order nisi that security be given dur- ing the next term, or the bill stand dismissed, unless cause to the contrary be shown by a certain day. See Alex. Ch. Pr., 57. If plaintiff is of the United States army or navy he will be required to give security for costs. Mayer v. Tyson, 1 Bland Ch., 563. An insolvent proohien ami will be required to give security for costs. Id. The going abroad of plaintiff is not a suflBcient ground. It must appear that he intends to reside abroad. Id. Where plaintiff is un- able to give security the practice is sometimes followed of allowing him to deposit with the clerk an amount sufQcient in the judgment of the court to cover all contingencies. 8. Consolidation of Causes. — The 42d general rule of practice (ante, 161) provides for the consolidation of causes "of alike nature orrela- tive to the same question." The statute (R. S. U. S., sec. 921) upon which this rule is founded, has been applied by the Federal courts to equity suits. See United States v. U. P. R. R. , 98 U. S. , 569, 604. In Al- exander's Chancery Practice, p. 55, it is said that consolidation would be applicable to the case of several creditors, filing separate bills against the personal or real representatives of their deceased debtor. If necessary a reference might be had to the auditor to examine and report whether the several causes, or some and which of them, may not be consolidated ; and in the meantime that further proceedings be stayed. Alex. Ch. Pr., 55. But where, as may happen, another suit is pending in the same court for the same matter, instead of a 422 ' PEACTICE AND PEOCEDUKE OP THE • motion to consolidate, which would not be proper, the usual course is to plead the pendency of the former suit in abatement. Alex. Ch. Pr., 55. And it is said that if two bills are filed on behalf of an in- fant the court will at any time, and on motion of any person, other than the prochien ami, inquire whether they are for the same matter, and which is most for the infant's benefit. Id. 9. Production of Books and Papers.— The cliancellor shall have power and authority, on the application of either party, on the trial of any actions at law depending in the general courts, or on any bill instituted in the chancery court, either for discovery or relief, to require and decree that the parties shall produce either the original books, writings or papers, or copies certified by a jiistice of the peace, of all such parts of such books, writings or papers, in their possession or power, as contain evidence pertinent to the issue, or relative to the matter in dispute between the parties, to be used as evidence at the trial of such cause or causes ; provided, that before any such order shall be made, the party making such application shall satisfy the chancellor, on oath or affirmation, that the said books, writings, or papers contain material and" necessary evidence, and that such party cannot safely proceed to the trial of his, her or their case, without the benefit of such testi- mony. Md. Act, 1798, ch. 84, sec. 2. Ifotes. — This statute relates only to documentary evidence in the possession of a party to a suit and is merely an afBrmation of the previously existing power of the court on this subject. Winder v. Diffenderfier, 2 Bland Ch., 195. It has been seen (ante, HI) how, under Law Rule 42, which is fotinded on R. S. U. S., sec. 724, a party to an action may be required by the courts of law to produce books and papers in his possession and pertinent to the issue, under penalty of judgment against him. • It is, therefore, no longer neces- sary for a party to come into equity for such purpose, and the pro- vision of the Act of Maryland giving that remedy may be regarded as superseded by the Federal statute. For all other purposes, how- ever, the Maryland Act is in full force. The application to the court must be in writing, supported by aflfldavit, and the court must be satisfied that the production is necessary ; that the books or papers contain material evidence, and that the applicant cannot safely pro- ceed to trial without them. The application may be ex parte, in which case the order will be conditional, that if no cause to the con- trary be shown the order shall become absolute, or it may be made upon notice, and an absolute order passed in the first instance. See Ringold V. Jones, 1 Bland, 88; The Bank v. Dugan, 2 BL, 254 ; Alex, Ch. Pr., 97; It will be observed that no power is given the chancel- lor by the Act of 1798 to decree pro confesso against a party refusing STJPEEME COURT, BISTMCT OF COLUMBIA. 423 to comply with the order for production, and it was to supply this omission that a subsequent act (1807, ch. 140) was passed by the Maryland legislature affirming, that whereas the court has not the power to decree against parties who have been directed to produce books, etc., and who have neglected or refused to comply, etc., and thereupon enacts that on such failure the bill may be taken pro oon- fesso. This latter act is, of course, not in force in this District, having been passed subsequent to the cession. The Act of Congress empowering the court to render judgment by default or of non-suit applies by its terms to courts of law. The only remedy, therefore, for failure to comply with the order of the court, would seem to be, in the case of a plaintiff retlising, an order staying proceedings or dismissing the bill, and in case of a defendant, attachment. The other party would also, where the cause is proceeded with notwith- standing the refusal to produce, have the privilege of introducing secondary evidence. But no decision under the Act of 1798, it is believed, exists directing the bill to be taken pro confesso because of failure to comply with the order of the court to produce documents. " Where certain specified books and papers are in the hands of third persons, and the evidence they contain materially bearing on the matter in issue, is distinctly designated, it is clear that a court of equity as well as a court af common law, may resort to competent means to compel the production of such specified written testimony as well as verbal proof; since the power to do so is essential to its constitution as a court, without which it could not possibly proceed with due effect." Winder v. Diffenderffer, 2 Bland Oh., 194, and cases cited. 10. Electing to Proceed at Law or in Equity. — If the complainant proceed against the defendant both at law and in equity at the same time, and for the same thing, the pendency of the suit at law should not be pleaded in bar, but the defendant may, after filing his answer, obtain an order requiring the complainant to make his election in which court he will proceed. Story Eq. PL, sees. 741, 742 ; Danl. Ch. Pr., 658; Alex. Ch. Pr., 100; Bradford v. Williams, 2 Md. Ch. Dec, 1. But where the defendant to the suit at law is not a party to the suit in equity, (Graham v. Meyer, 4 Blatchf., 129,) or where the ground relied upon for relief in each tribunal is different, and a full remedy cannot be afforded by either, (Coleman v. Cross, 4 B. Mon., 268, (or where the bill is filed for discovery only and no relief is prayed, (1 Barb. Ch. Pr., 247; Alex. Ch. Pr., 100,) the plaintiff will not be put to his election, and in every case the defend- ant must put in a complete answer before he can compel an election. Alex. Ch. Pr., 100 ; 1 Barb. Ch. Pr., 247. For possibly the complain- ant cannot decide in which court it would be more advisable to prosecute his claim, until he has a full and complete answer from the defendant. Id. If, therefore, exceptions are filed to the answer, they must be first disposed of. Alex. Ch. Pr., 100 ; Barb. Oh. Pr., 247. And it has been held irregular to obtain an order to elect before the time for filing exceptions has expired. Browne v. 424 PRACTICE AND PEOCEDTJEE OF THE Poyntz, 3 Madd. Rep., 24 ; Abel v. Cave, 2 B. Mon., 159, cited in 1 Barb. Ch. Pr., 247. The application is made by petition (or motion, Barb. Ch., 246), saggesting the double proceeding, and thereupon an order passes that the complainant elect or show cause by a certain day. Alex. Ch. Pr., 100. If the complainant consider that the suits are not identical he may oppose on that ground, and thereupon the court will examine the pleadings and decide. But if the case is one of diflfioulty a reference may be had to ascertain if the two proceed- ings relate to the same matters. 1 Barb. Ch. Pr., 247 ; Boyd v. Hen- zelman, 1 Ves. & B., 381-382. If a reference is granted, it operates as a stay of proceedings in both suits, in the meantime. Id. If the complainant elects to proceed in equity an injunction will issue to stay the proceedings at law. Alex. Ch. Pr., 100 ; Bank v. Kerr, 2 Md. Ch. Dec, 460. But if he elects to proceed at law, or fails to make an election, his bill will be dismissed with costs. Id. Under special circumstances the complainant has been permitted to pro- ceed for part of his demand in equity and part in law. Alex. Ch. Pr., 100. But generally he will not be allowed to split up his demand and recover part at law and part in equity. Hall v. Claggett, 2 Md- Ch., 155. An executor who has submitted to a decree for an account at the suit of one creditor, may obtain an injunction to stay all pro-~ ceedings at law against him by other creditors. Alex. Ch. Pr., 102 ; Kiddall v. Trimble, 1 Md. Ch., 466. One of several defendants has a right to compel election. Bradford v, Williams, 2 Md, Oh., 7, Alex- ander, in his Chancery Practice, p. 100, says that if the plaintiff who has elected to proceed at law, fail in his action, he may file a new bill fbr the same matter, and so if he elect to proceed in equity and his bill be determined, he may proceed with his action at law. But this no longer seems to be allowed, at least as a general rule. See Beall V. Pearre, 12 Md., 566 ; Walsh v. Canal Co., 59 Md., 427 ; Kid- dal V. Trimble, 1 Md. Oh., 148. As to the pursuit of two remedies at same time, see M'Mechen v. Maggs, 4 H. & J., 134-135 ; Lee v.- Boteler, 12 G. & J., 328. 11, Paym-ent of Money into Court. — The practice of ordering money into court has become one of the most ordinary methods by which the court enforces its jurisdiction of preserving property in dispute pending a litigation. But there are certain well defined restrictions and limitations upon it which courts of equity should always be careful to observe. Dillon v. Ins. Co., 44 Md., 394, afiirming McKim V. Thompson, 1 Bland Oh., 150. These "restrictions and limitations"' are stated by Chancellor Bland in the case last above mentioned, and are adopted by the court in Dillon v. Ins, Co., swpra. They are as follows : 1. That the party asking for the order has an interest in the money proposed to be called in. 2. That he who has it in his hands has no equitable right to it. 3. That these facts appear in the case as it stands, either admitted or so established as to open no further controversy at any subse- quent stage of the suit. SUPREME COXJET, DISTEICT OF COLUMBIA. 425 See also Oontee v. Dawson, 2 Bland, 266, 269 ; Hopkins v. McEl- dery, 4 Md. Oh., 24; Thompson v. McKim, 6 H. & J., 203; Hag- thorp V. Hook, 1 G. & J., 310 ; Alex. Oh. Pr., 96. And see p. 237, et seq., ante. 12. Sending Issues to a Court of Law.— The general rule is, that an interlocutory order for issues to a jury in an equity suit will not be made until proofs are taken and publication has passed. And in general the order will not be granted at all where the truth of the facts can be conveniently ascertained by the court itself. Federal courts of equity, under the Constitution of the United States and the laws of Congress, as now existing, have the power of deciding every question of law or fact which may arise in equity suits over which they have complete jurisdiction ; and, consequently, it is not indispensably necessary as a matter of law in any case, that any question in an equity court should be sent to trial. Goodyear v. Rubber Co., 2 Cliff., 851 ; Herdsman v. Lewis, 20 Blatchf., 266. The matter rests in the discretion of the court, and is for the benefit of the court and not of the party. Van Hook v. Pendleton, 1 Blatchf., 187 ; Brooks v. Bicknell, 4 McLean, 70 ; Hilleary v. Crow, 1 H. & J.. 642. And it is not improper to direct an issue on a question of fraud in fact, though it also involve matter of law. McLauchlin v. Bank of Potomac, 7 How., 220. Or to direct an issue as to the sanity of a grantor at the time of executing the deed. Ould v. Reddick, 2 Mac A., 244. So where the questions of facts are involved in great doubt, by conflicting or insufficient evidence, an issue may be directed. But the finding, though influential, is not conclusive, and, if not satisfactory, they may be set aside or overruled. Grorsed v. Beall, 92 U. S., 684-694, and cases cited; and see Quinby v. Conlan, 104 U. S., 420. And the court may enter a decree in opposition to such find- ings. Silsby V. Foote, 20 How., 378 ; Hoffman v. Smith, 1 Md., 489. For the manner of making up the issue and the proceedings on the trial, see Alex. Oh. Pr., 174 ; Cahoon v. Ring, 1 Cliff., 592 ; Wilson v. Barnum, 1 Wall. J., 342 ; Zingling v. Hesson, 16 Md., 112 ; Johnson V. Harmon, 94 U. S., 371. And see generally. Story Eq., sec. 1478, et seq. ; Alex. Ch. Pr., 174 ; Pegg v. Worford, 4 Md., 386, and Greenl. Ev., sees. 260 to 267, where the whole subject is discussed. 13. Attachments for Contempt.— Section 725, R. S. U. S., {ante, p. 6,) gives to the court full power to proceed by attachment in all eases of disobedience of or resistance to the process or orders of the court. The Maryland Acts upon this subject (see Alex. Ch. Pr., 20) are almost entirely superseded by the general provisions of the Federal statute, and only in the rarest cases are they, if ever, resorted to. See Sh- QUESTEATION. The right to enforce obedience of its orders has al- ways been one of the recognized powers of courts of law and equity, and this right the statute only declares and emphasizes. 14. Sequestration.— This proceeding, though mentioned in our equity rules, is rarely resorted to in practice. Still the Maryland Act of 1785, ch. 72, sec. 25, is in full force here, both as a mesne process 54 426 PEACTICE AND PEOCEDTJEE OF THE against a party in contempt and as a judicial writ to enforce the per- formance of a decree should occasion require a resort to its provi- sions. See Keighler v. Ward, 8 Md., 254 ; Keighler v. Nicholas, 4 Md. Ch., 86. The Cape Sable Company's Case, 1 Bland, 606 ; McKim V. Odom, Id., 415; Eichardson v. Jones, 3 G. & J., 114. CHAPTEE XII. TAKING THE TESTIMONY. Manner of taking the testi- mony of resident witnesses — Proceedings. Proceedings where a witness refuses to attend. Subpoena duces tecum. Notice of time and place of ex- amination to be given. Depositions when concluded, how transmitted. Depositions of non-resident witnesses, how taken. 7. Interrogatories and answers. 6 8. Objections to the depositions. 9. Right of parties to be present and to file additional inter- rogatories. 10. Court may limit the time for taking testimony. 11. Immediately upon return of testimony, clerk may make publication. 12. Testimony de bene esse. 13. Form of last or general inter- rogatory. 1. Manner of Taking the Testimony of Resident Witnesses — Proceedings. — After the cause is at issue either party may give notice to the other that lie desires tlie evidence to be ad- duced in the cause to be taken orally, and thereupon all the witnesses to be examined, if they be in the District, shall be examined before one of the examiners of the court, or by an examiner to be specially appointed by the court, the examiner to be famished with a copy of the bill and answer, if any ; and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re-exami- nation, all of which shall be conducted, as near as may be, in the mode now used in common law courts. The depositions taken upon such oral examination shall be taken down in writing by the examiner in the form of narrative, unless either party request that the examination shall be by question and SUPEEME COURT, DISTEICT OF COLITMBIA. 427 answer, and when completed shall be read over to the witness, and signed by him in the presence of the parties or counsel, or such of them as may attend ; provided, if the witness shall re- fuse 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 noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions, and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. Rule 63, par. 2. Notes. — Where the witness lives within the District, he may be summoned to appear before the examiner by subpcena 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 examiner, requiring the attend- ance of the witness at the time and place specified, for which attend- ance he shall be allowed the same compensation as for atterJdance in court. See Rule 73, post. Each party has the right to select his own examiner, (except in divorce cases,) and the court will not, on mo- tion of the opposite party, interfere with that right. See 1 Barb. Ch. Pr., 277 ; Van Hook v. Pendleton, 2 Blatchf., 85. But it is said that a direct examination may he had before one examiner, and a cross-ex- amination before another. 1 Barb Ch., 277, citing Troup v. Haight, 6 John Ch. Rep., 335. 2. Proceedings where a Witness Refuses to Attend. — If a witness refuse to attend, or to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the fact shall be reported to the court by the examiner, when such order shall be made as may be deemed best. Eule 63, par. 3. Note. — By Rule 73 post, it is provided that the refusal of any wit- ness to appear or give evidence, before the commissioner appointed to take testimony, or before an auditor or examiner appointed in any cause, shall be deemed a contempt of the court, which refusal being certified to the clerk's office, by the commissioner, auditor or ex- aminer, an attachment may issue thereupon by order of the court, or of any justice thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony before the court. The foregoing provision, however, is not to prevent the examination of witnesses viva voce in open court, if the court shall deem it ad- visable. In Clark v. Krause, 2 Mackey, 559, it is said that when a witness refuses to answer, the proper course is, as provided by Rule 63, to apply to the court to compel an answer, and the failure to make 428 PRACTICE AND PEOCBDUEE OF THE such application, "may well be taken as an abandonment of the de- mand for the witnesses' testimony." 3. Snbpoeua Duces Tecum. — Rule 73 also declares that no sub- poena duces tecum, shall be issued in any case (before an examiner) without the order of the court or of a justice thereof. 4. Notice of Time and Place of Examination to be Given. — Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors or parties of the time and place of the examination, for such reasonable time as the ex- aminer may fix by order in each cause. Eule 63, par. 4. 5. Depositions when Concluded, Hovp Transmitted.— When the examination of witnesses before the examiner is concluded, the original depositions, authenticated by 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 section 865 of the Ee- vised Statutes of the United States. [See p. 126, ante.] Eule 63, par.s5. Notes. — See Part 1, Chapter XX, p. 108, et seq., for the rules, stat- utes, and decisions upon the subject of documentary evidence, the manner of procuring and the rules governing the admission of the same. If a party will not pay the examiner's fees, so that the testi- mony taken on his hehalf may be filed, the other side may do so, but it seems that he cannot have an order compelling the party so refusing to pay the fees. See Frese v.' Bredenfeld, 14 Blatchf , 402. 6. Depositions of Non-resident Witnesses, How taken.— Where the testimony of non-resident witnesses is desired by either party, the court, in term time, or any justice in vacation, may, on motion designating the names of such witnesses, ap- point an examiner to take such testimony, to whom the clerk shall thereupon issue a commission under the seal of the court ; and said testimony shall be taken on written interrogatories and cross-interrogatories, which interrogatories shall be filed in the clerk's office at least ten days before the issue of such commission, so that the adverse party may have opportunity to file cross-interrogatories. But the court or justice, for spe- cial cause shown, may direct that such testimony shall be taken orally. Eule 63, par. 6. Notes.— See'Part 1, p. 123. This rule authorizes the appointment of examiners to take testimony outside as well as inside the ter- ritorial jurisdiction of the court. See Railroad Co. v. Drew, 3 Woods, 691. The court may dispense with filing interrogatories, where peculiar SUPEEME COTJET, DISTRICT OF COLUMBIA. 429 circumstances — e. g., the examination of books and accounts, render it advantageous so to do. Russell v. McLellan, 3 Woodb. and M., 157. A motion for the appointment of commissioners to take testimony abroad, is not grantable of course. The materiality of the testimony, and the purposes for which it is invoked, will determine the action of the court. United States v. Parrott, 1 McAllister, 447 ; and see this case for the practice of circuit courts of the United States, sit- ting as courts of equity, in reference to obtaining the testimony of non-resident witnesses. The uniform practice of this court has been to take the testimony by deposition under a commission. A depo- sition taken under the act of Congress of 1789 is only de bene esse, and cannot be used, if the witness is here ; and if here, his testimony cannot, according to the practice of this court, be taken viva voce in open court. Walker v. Parker, 5 Cranch C. C, 641. 7. Interrogatories and Answers. — Each interrogatory in a commis- sion should be answered separately, at least in substance, and the omission of such answers is fatal to the whole commission, although the witness in answering the general interrogatory says that he knows nothing further material to either party. Ketland v. Bissett, 1 Wash. 0. 0., 144. If interrogatories are hypothetical, and in a certain event only are required to be answered, which event does not happen, or if they refer to records, which must speak for them- selves, they need not be answered. Bell et al. v. Davidson, 3 Wash. C. 0., 32b. If the general interrogatory under a commission to take testimony be not answered, it is a fatal objection to the whole de- position. All the interrogatories must be substantially answered. Dodge V. Israel, 4 Wash. O. O., 323 ; Richardson v. Golden, 4 Wash. C. C, 109 ; Rhoades v. Selin, 4 Wash, O. C, 715. 8. Objections to the Depositions. — Depositions taken under a com- mission to another State cannot be read in evidence, unless proof is made that a copy of the interrogatories, and a notice of the rule, and the names of the commissioners, were served on the opposite party, or his attorney, according to the rules of court. Rhoades v. Selin, supra. Exceptions to interrogatories or cross-interrogatories should be propounded as objections before the commission issues, or they will be deemed waived. Crocker v. Franklin Hemp Co., 1 Story 0. C, 169. A deposition taken on the direct interrogatories cannot be read if the cross-interrogatories were not put, and the omission will be fatal, whether it was the act of the commissioners named by either party. Gilpins v. Consequa, 3 Wash. C. C, 184. The direct exami- nation of a witness was taken by a commissioner, with the con- sent of both the parties ; no cross-interrogatories were ever filed, and the witness lived several months after the direct examination was begun, and then died ; there was nothing to show that if the cross-interrogatories had been filed they might not have been an- swered : Held, that the omission to file the cross-interrogatories was at the peril of the party, and that the deposition was admissible. 430 PEACTICE AND PEOCEDTJEE OB" THE Gass V. Stinson, 3 Sum. 0. O., 98. It seems that a deposition sworn to, though not signed by the witness, may be admitted in evidence. Ketland v. Bissett, 1 "Wash. 0. C, 144. It is no objection to a depo- sition that a material part of the evidence comes out in response to the general interrogatory. Rhoades v. Selin, 4 Wash., C. C, 715. It must appear from the certificate of the commissioners or other- wise that the depositions were taken at the place indicated in the commission, or they cannot be read. Id. 9. Right of Parties to be Present and to File Additional In- terrogatories, etc. — The parties, and their attorneys or agents, shall have a right to be present at the execution of all com- missions hereatter to be issued from the court of chancery for examining witnesses and taking evidence, and the interroga- tories of the respective parties shall be read by the commis- sioners, so that they may be heard by the parties, their attor- neys or agents, respectively, if they choose to attend, and each party shall, on application, have a right to a copy of the in- terrogatories of the adverse party, to be delivered by such party before any witness is examined on such interrogatories, and if either party shall, after witnesses are examined on the interrogatories of the adverse party, desire the commissioner to adjourn to a future day for the purpose of receiving addi- tional interrogatories, proofs and witnesses, it shall be done by the commissioners, and the commissioners shall receive such additional interrogatories in writing, and take the proofs and evidence offered, and shall give each party a fair oppor- tunity of adducing all his testimony ; but if the party re- quiring an adjournment for the purpose aforesaid, shall ne- glect or refuse to exhibit his interrogatories, and produce his evidence, at the meeting in consequence of such adjournment, and it shall appear to the commissioners that delay and pro- crastination is affected by such party, then no further time shall be given him for the purpose aforesaid. Md. Act, 1785, ch. 72, sec. 15. 10. Conrt may Limit the Time for taking Testimony.— Where the evidence to be adduced in a cause is to be taken orally, as provided in Eule No. 63, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defence, and a time thereafter within which the complainant shall take his evidence in reply ; and no further evidence shall be taken STJPKEME COUET, DISTRICT OP COLUMBIA. 431 in the cause, unless by agreement of the parties, or by leave of court first obtained, on motion, for cause shown. Eule 64. Note. — For good reasons shown the court will enlarge the time for taking the testimony, notwithstanding a previous order limiting the time. See The Ruby, 5 Mass., 451 ; Hamersly v. Lambert, 2 Johns. Oh., 432 ; Cutler v. Gremer, 6 Madd., 254. 11. Immediately upon Return of Testimony, Clerk may make Publication. — Immediately upon the return of the commissions and depositions containing the testimony into the clerk's office, publication thereof may be made by the clerk. Eule 65. Notes. — The general rule of equity proceeding is, that after publi- cation of the testimony, no new witnesses can be examined, and no new evidence can be taken, unless where the judge himself, upon or after the hearing, entertains a doubt, or where some additional fact or inquiry is indispensable to enable him to make a satisfactory de- cree. Wood V. Mann, 2 Sumner, 316; Trustees, etc. v. Heise, 44 Md., 465. After publication passed and the cause set down for hearing, the deposition of a witness was allowed to be amended on examina- tion of the witness by the court, he being aged and very deaf, and a mistake having been made in taking down his testimony. Denton v. Jackson, 1 Johns. Oh., 526. See Danl. Ch. P., 952, et seq. 12. Testimony De Bene Esse. — After any bill filed, and be- fore the defendant hath answered the same, upon affidavit made that any of the plaintiff's witnesses are aged or infirm, or going out of the country, or that any one of them is a sin- gle witness to a material fact, the clerk of the court shall, upon the application of the plaintiff, issue a commission to such examiner or examiners, commissioner or commissioners as the justice of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due no- tice to the adverse party of the time and place of taking his testimony. Eule 66. See Part 1, Chap. XX, p. 123. 13. Form of Last or General Interrogatory. — The last writ- ten interrogatory to a witness may be substantially, "Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the sub- ject 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." Eule 67. Note. — If the general interrogatory under a commission to take 432 PEAOTIOE AND PUOCEDUEE OP THE testimony be not answered, it is a fatal objection to the whole depo- sition. Dodge V. Israel, 4 Wash., C. C, 323 ; Richardson v. Golden, 3 Id., 109; Bhoades v. Selin, 4 Id., 715. CHAPTER XIII. REFERENCE TO THE AUDITOR. Creation of the office of audi- tor. Within what time matters re- ferred to the auditor are to be presented him. Auditor to assign time and place for proceeding and to notify parties. Powers and duties of the au- ditor on the reference. 5. Witnesses before the auditor, 6. Form of accounting before the auditor. 7. Documentary evidence. 8. Creditor or claimant may be examined. 9. Compensation of the auditor, 10. ^'Exceptions to report of the auditor. 11. Cost of frivolous exceptions. 1. Creation of the Office of Auditor.— The chancellor shall have full power and authority to appoint, during his pleasure, a per- son of integrity, j udgment and skill in accounts, to be the audi- tor for the chancery court, who shall, before he enters upon the duties of his appointment, take an oath, to be adminis- tered by the chancellor, well and faithfully to execute the du- ties of his office, without favor, affection, partiality, or preju- dice ; and all accounts directed to be stated, audited or settled, by order of the chancellor, shall be referred for such purpose to the auditor, who shall have power and authority to ad- minister an oath to all witnesses and persons proper to be ex- amined upon such account, and shall audit, state and settle, such accounts, agreeably to the order of the chancellor, and shall return the same to the chancellor, to be done with as the chancellor shall think just. Md. Act, 1785, ch. 72, sec. 17. Note.— This court has no officer belonging to it denominated a master in chancery. Townsend v. Duncan, 2 Bland Ch., 55. The office analogous to that of a master in chancery is the auditor, whose title was created by the act of 1785 above given. Id. 2. Within what time Matters referred to the Auditor are to be Presented him, — Whenever any matter is referred to the DISTRICT OF COLUMBIA, 433 auditor, the party at whose instance or for whose benefit the reference is made shall cause the same to be presented to the auditor for a hearing on or before the next rule-day succeeding the time when the reference was made. If he shall omit to do so, the adverse party shall be at liberty forthwith to cause pro- ceedings to be had before the auditor, at the costs of the party procuring the reference. Rule 70. Note. — After a decree for an account all parties become actors ; and any party may require the auditor to proceed. Alex. Ch. Pr., 124. See Frieze v. Glenn, 2 Md. Oh., 365. 3. Auditor to Assign Time and Place for Proceeding and to notify Parties. — Upon every such reference the auditor shall, as soon as he reasonably can after the same is brought before him, assign a time and place for proceedings in the same, and give due notice thereof to each of the parties or their solici- tors ; and if either party fail to appear at the time and place appointed the auditor may proceed ex purte, or, in his discre- tion, adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such ad- journment. The auditor shall proceed with all reasonable dili- gence in every such reference, and with the least practicable delay, and either party may apply to the court, or a justice thereof, for an order to the auditor to speed the proceedings, and to make his report, and to certify to the court or justice the reasons for any delay. Eule 71. 4. Powers and Duties of the Auditor on the Reference. — The auditor shall regulate all the proceedings in every hear- ing before him upon every such reference ; and he shall have fall authority — To exaniine the parties in the cause upon oath touching all matters contained in the reference ; And also to require the production of all books, papers, writings, vouchers, and other documents applicable thereto ; And also to examine on oath, viva voce, all witnesses pro- duced 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 according to the acts of Congress, or otherwise, as hereinafter provided ; And also to direct the mode in which the matters requiring evidence shall be proved before him ; 55 434 PEACTICE AND PKOCEDUEB OF THE And generally to do all other acts, and direct all other in- quiries and proceedings in the matters before him, which he may deem necessary and proi^er to the justice and merits there- of and the rights of the parties. Eule 72. Notes. — The auditor's powers and duties are not confined to the language of the act of 1785. That act, so far as it goes, is nothing more than an affirmance of the pre-existing power of the court to re- fer accounts to a competent person to be audited. The court, as a court of chancery, has always exercised the power of referring cases to persons with directions to perform duties properly belonging to a master in chancery, and it has treated the auditor as the standing officer of the court clothed with the power to make any inquiry, to take testimony, to state any account or to frame any statement which may be required of him by the court, and which may be neces- sary or proper to enable the court correctly to dispose of any case in which it has the power to grant relief. Townsend v. Duncan, 2 Bland Oh., 45, 75. In addition to the case just cited in which the powers and duties of the auditor are fully examined and stated by Chancel- lor Bland, and an interesting history of the origin and creation of the office given, the subject is further considered in Dorsey v. Hammond, 1 Bland Oh., 463, and in Trustees v. Heise, 44 Md., 465. He is the mere ministerial officer of the court with no judicial power, and in no sense an arbitrator, nor is his report obligatory upon the parties, un- less confirmed by the court. Welsh v. Stewart, 2 Bland Ch., 37. But when finally ratified, such ratification is a decretal order, and is to be treated as such. 2 Bland, 264 ; 1 H. and J., 743 ; 12 G. & J., 323. It is his duty to confine himself strictly to that which appears upon the face of the proceedings and proofs, and to abstain from suggest- ing any objection prejudicial to any party which the court in its regular course would not of itself notice and sustain. Dorsey v. Hammond, 1 Bland Ch., 469. 5. Witnesses before the Auditor. — Witnesses who live within the District may, upon due notice to the opposite party, be summoned to appear before the commissioner appointed to take testimony, or before an auditor or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, auditor or examiner, requiring the attendance of the witnesses at the time and place specified, and shall be allowed for attendance the same compensation as for attendance in court ; and the refusal of any witness to ap- pear, or to give evidence, shall be deemed a contempt of the court, which refusal being certified to the clerk's office by the commissioner, auditor, or examiner, an attachment may issue thereupon by order of the court or of any justice thereof in the SUPREME COURT, DISTRICT OP COLUMBIA. 435 same manner as if tlie contempt were for not attending, or for refusing to give testimony in tlie court. But nothing herein contained shall prevent the examination of witnesses viva voce in open court, if the court shall deem it advisable. But no subpoena duces tecum shall be issued in any case with- out the order of the court or of a justice thereof. Eule 73. 6. Form of Accounting before the Auditor. — All parties ac- counting before the auditor shall bring in their respective ac- counts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, in the auditor's office, or by deposition, as the auditor shall direct. Eule 74. Note. — The party requiring the account ought to lay before the auditor his state of the case, with his instructions in relation to the mode of taking the account. He, then produces his evidences in writing and his witnesses, who may be cross-examined,by the adverse party. Th^ adverse party then in like manner states his case and produces his proofs, written and oral. Alex. Ch. Pr., 127. Whether when objection is made to evidence the auditor should decide between the parties or take down the evidence, noting at the same time the exception to it, as examiners are directed to do by Rule 63, does not seem to be decided by any reported case. The practice so far as noticed by the writer is, that the auditor acts judicially and admits or excludes testimony as it appears to him admissible or inadmissible under the rules of evidence. On the other hand it is said in BarroU's Maryland Chancery Practice, that he has no right to decide but must take the evidence, noting, how- ever, the exception to it. But of course in making up his report he should decide only upon what he deems the legal evidence before him. (See BarroU's Ch. Pr., 332.) Sometimes the reference is to state an account from the pleadings and proofs already in the cause. In such cases, the audit is con- fined thereto. Calvert v. Carter, 18 Md., 109. But the parties may agree that further testimony may be taken. Harris v. Hooper, 50 Md., 551. And where a cause is sent to the auditor after principles have been settled by the court, with special instructions to state an account in accordance therewith, these instructions are obligatory on the auditor, and he cannot state any account in conflict with them, even at the request of the parties. If he departs from or mis- takes his instructions either as to law or fact, exceptions may be taken to his accounts, but not because of error by the court in the Instructions given the auditor. These are res adjudicata, and are not open for discussion, except upon appeal from the final order of ratification. Alex. Ch. Pr., 129. 7. Documentary Evidence.— AH affidavits, depositions, and 436 PEACTICE AND PEOCEDTJEE OF THE documents wMch have been previously made, read, or used in the court, upon any proceeding in any cause or matter, may be used before the auditor, and all papers pro- duced before the auditor shall be marked by him as filed. Eule 75. 8. Creditor or Claimant may be Examined. — The auditor shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may ap- pear to him to require. The evidence upon such examination shall be taken down by the auditor or by some other person by his order and ' in his presence, if either party requires it, in order that the same may be used by the court if necessary. Eule 76. Notes. — The general rule is, that when funds are in court for dis- tribution among creditors, and the auditor reports that certain claims have not been proved, or objections for want of proof are made to to their allowance by parties interested, the case is again referred to the auditor with directions to state a final account, from which all claims not then sufficiently proved are to be excluded, and leave is given to supply the proof upon such terms as to notice as may be deemed reasonable. Upon the coming in of the report, made pursu- ant to the order, and after the usual time given for final exceptions, the report may be submitted for ratification, and when ratified all par- ties are concluded and the litigation is terminated. Dixon v. Dixon, 1 Md. Ch., 271. But there may be cases in which this rule ought to be relaxed if the party seeking relief can show himself free from blame. Id. Where funds still remain in the hands of the trustee, a creditor who has no knowledge of an audit may apply to the chan- cellor for a new reference, and claim to participate upon due proof of his demand ; but the general rule is different after final ratification, as to one whose claim has been first suspended and after win'ds re- jected for want of proof. Kent v. O'Hara, 7 G. & J., 212. When a creditor seeks to offer new proof of his claim in the interval between the final report of the auditor, made under the directions of the court, and its ratification, though it is not a matter of course, yet he will be allowed to do so under circumstances which would not entitle him to the privilege after the report has been ratified. White v. Okisko Co., 3 Md. Ch., 214. When the fund to be distributed remains in court, the application of a creditor whose claim has been omitted is entitled to favorable' consideration if he has been guUty of no laches, and the claimant will be allowed to participate in the distribution. Price V. Bank, 29 Md., 369. But where a creditor has been notified and a reasonable time allowed him in which to support his claim by proof and he fails to do so, an account rejecting his claim, if ratified, will not be opened at his instance to allow him to produce further SUPREME COURT, DISTRICT OP COLUMBIA. 437 proof, though the fund is still in the hands of the trustee. Ohio Ins. Co. V. Winn, 4 Md. Ch., 254. "Where an order has been passed direct- ing the auditor to state a final account, still if the fund has not been parted with by the court, creditors who had not come in at the period of the passage of the order will be allowed to do so, but new proof will not, after such order, be allowed in support of claims already filed. Ohio Ins. Co. v. Winn, 4 Md. Ch., 254 ; see Townsend V. Duncan, 2 Bland, 45. 9. Compensation of the Auditor. — The compensation to be allowed to every auditor in chancery for his services in any particular case shall be fixed by the court in its discretion, having regard to all the circumstances thereof, and the com- pensation shall be charged upon and borne by such of the par- ties in the cause as the court shall direct. The auditor shall not be compelled to make out or return a report until his fees therefor be paid or secured to his satisfaction, unless the court to which the report is to be returned order it to be made out and returned without such payment or security. Eule 77. 10. Exceptions to Report of the Auditor. — The auditor, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk on the docket. The parties shall have one month from the time of filing the report to file exceptions thereto, and if no exceptions are within that period filed by either party the report may be confirmed. If exceptions are filed they shall stand for hearing before the court, at the next sit- ting thereof. Eule 78. Notes. — Where the auditor files with his report alternative state- ments of an account, he should state which of them he considers the correct one, and adopting that leave the parties to file their excep- tions. Groot V. Hitz, 3 Mackey, 247. The court will not notice ob- jections to an auditor's report not covered by proper exceptions of the party complaining. Osbom v. Gheen, 5 Mackey, 189. And each exception should point out some particular defect in the report; general exceptions are not allowed. Alex. Ch. Pr., 127. The ex- ceptions constitute the only subject-matter for argument where the cause is brought on for flirther directions, unless all equities are specially reserved by the decree. Id. 11. Cost of Frivolous Exceptions.— And in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs, to be fixed by the court in its discretion. Eule 79. 438 PRACTICE AND PROOEDUEE OF THE CHAPTEE XIV. HEARING- AND DBORBB. 1. Setting caases for hearing. 2. Where to be heard. 3. Answer, when evidence on the hearing. 4. Drawing the decree, form and substance of. 5. Decrees to enforce liens. 6. Decrees confirming sales. 7. Clerical mistakes in decrees, how amended. 8. Decrees for account of per- sonalty of deceased persons, what to contain. 1. Setting Causes for Hearing.— N^o cause in equity shall be set down for hearing unless the same be at issue and ready for hearing, or be properly set down for hearing on bill and answer, or bill and answer and replication ; and every cause may be ordered by either party or his counsel to be placed upon the calendar, provided such order be given at least five days previous to the first day of the next special term. Any cause once properly set down for hearing and placed upon the calendar, if not disposed of by the court, shall remain upon the calendar in its proper order, unless otherwise, directed by the court. Eule 62. 2. Where t» be Hearcl.— Section 800, R. S. D. C, provides that all suits in equity not triable by jury shall be heard and determined at special terms. 3. Answer, When Evidence on the Hearing. — If the com- plainant,' in his bill, waive an answer under oath, or only re- quire an answer under oath to certain specified paragraphs of his bill, the answer of the defendant, though under oath, ex- cept such parts of it as shall be directly responsive to such paragraph, shall not be evidence in his favor unless the cause be set down on bill and answer only, but may nevertheless be used as an affidavit, with the same effect as heretofore, on mo- tion to grant or dismiss an injunction, or any other incidental motion in the cause ; but this shall not prevent a defendant from being a witness in his own behalf, under section 876 of the Eevised Statutes relating to the District of Columbia. Eule 63. Ifotes. — As to how far an answer is evidence when sworn to, al- though the oath was waived and an unsworn answer expressly SUPREME COUET, DISTEIOT OP COLUMBIA. 439 called for, see p. 391, ante. The answer of one defendant to a bill in equity cannot be used as evidence against his co-defendant ; and the answer of an agent is not evidence against his principal, nor are his admissions in pais, unless where they are a part of the res gestse. Leads v. Ins. Co., 2 Wh., 380 ; Clark's Ex'r v. Van Reims- dyk, 9 Cr., 153. But it is otherwise where one defendant claims through his co-defendant; the answer of the latter is evidence against the former. Field v. Holland et al., 6 Id., 8 ; Osburn v. Bank, 9 Id., 738. The answer of the defendant in equity is conclu- sive evidence in his favor, if uncontradicted by the testimony of any witness in the cause. Lenox v. Front, 3 Wh., 520. When the facts charged in the bill as the ground for the decree are clearly and positively denied by the answer, and proved only by a single wit- ness, the court will not make a decree against the defendant. But when the witness on the part of the complainant is supported and corroborated by circumstances suflBcient to outweigh the denial of the answer, the rule does not apply. Bank v. Geary, 5 Pet., 98 ; Carpenter v. Ins. Co., 4 How., 185 ; Higbee v. Hopkins, 1 Wash. C. C, 230 ; Rick v. Neitzy, 1 Mackey, 21 ; Morrison v. Shuster, Id., 190 ; Kilbourn v. Latta, 5 Mackey, 304. If the answer of the defendant admits a fact, but insists upon matter by way of avoidance, the plaintiff need not prove the fact admitted, but the burden is on the defendant to prove the matter in avoidance. Clarke v. White, 12 Pet., 178 ; Randall v. Phillips, 3 Mason C. C, 378. An answer on information and belief is a mere statement of mat- ters of hearsay, and amounts to a denial only to the extent of tra- versing the facts alleged in the bill, and putting the complainant upon proof, but it has no probative force and cannot negative the testimony of one or more witnesses in support of the bill. Miller v. The District, 5 Mackey, 291. Dutihl's Admr. v. Coursault, 5 Cr. C. C, 349. Complainants in their bill alleged that a deed was given for a nominal consideration, and the answer denied the matter stated in the bill. Evidence was given that the grantee paid the grantor |2,000 as a consideration. Held, admissible without an amendment of the answer. Jenkins v. Tye, 12 Pet., 241. Admissions in the answer are not evidence to afford plaintiff relief unless he has laid the foundation for such relief by the allegations of his bill. Jackson v. Ashton, 11 Pet., 229. 4. Drawing the Decree, Form and Substance of.— In drawing up decrees and orders neither tlie bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master,* *This Rule is a literal transcript of Rule 86 of the Equity Rules of practice prescribed by the Supreme Court of the United States for the circuit courts. In adapting it to this court the word auditor should have been substituted for master, and the failure to do so was imdoubtedly an inadvertence. This court has no master in chan- 440 PRACTICE AND PROCEDTJEE OP THE [auditor] nor any other prior proceeding shall be recited or stated in the decree or order ; but the decree and order shall begin, in substance, as follows : ' ' This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed as follows, viz:" [Sere insert the decree or order.] Rule 81. Notes.— The decree should not recite pleadings nor, ordinarily, the facts of the case. Whiting v. Bank, 13 Pet., 16. But the court may occasionally state in the decree conclusions of fact as weU as of law for the purpose of making the judgment of the court more clear and specific. Putnam v. Day, 22 Wall., 60. Thus if a deed be void at law on its face, and a bill to cancel it be dismissed, the decree should show that the court finds no equitable circumstances inducing it to interfere. PeirsoU v. Elliott, 6 Pet., 95. Under the practice in this country a final decree is deemed to be enrolled at the close of the term at which it was passed. Whiting v. Bank, 13 Pet., 6. Fries v. Pries, 1 Mac A., 290. A decree dismissing a bill for want of jurisdiction should be without prejudice. Van Norden v. Morton, 99 U. S., 378. So where a bUl should be dismissed because it fails to show the interest of certain parties joined as plain- tiffs, the decree of dismissal should be without prejudice, or the ground of dismissal should be stated. House v. Mullen, 22 Wall. 42. 5. Decrees to Enforce Liens. — By section 808, R. S. D. C, where a bill or petition is filed to enforce any lien, "the decree, besides sub- jecting the thing upon which the lien has attached to the satisfaction of the plaintiff's demand against the defendant, shall adjudge that the plaintiff recover his demand against the defendant, and that he may have execution therefor as at law." This statute applies to suits for the forclosure of deeds of trust in the nature of mortgages to secure the payment of money, and authorizes a decree in favor of the plain- tiff against the debtor defendant for ijae payment of the balance of the debt that may remain due after the application thereto of the proceeds of the sale of the trust property, and an order for exe- cution thereof as at law. Dodge v. P. S. & T. Co., 106 U. S., 445. 6. Decrees CJonflrming' Sales. — By section 793, R. S. D. C, a decree confirming a sale vests the title in the purchaser without any convey- ance by the oflicer or agent of the court conducting the sale. See Act of Md., 1785, ch. 72, sec. 13, post, p. 443. 7. Clerical Mistakes in Decrees, How Amended. — Clerical mistakes in decrees, or decretal orders, or errors arising from eery. His place is filled by the auditor who is appointed under the Maryland Act of 1785, ch. 72, sec. 17. The powers and duties of the auditor are, however, substantially the same as that of a master. See p. 432, ante. SUPREME COURT, DISTRICT OF COLUMBIA. 441 any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or of a justice thereof, upon petition, without the form or ex- pense of a rehearing. Eule 80. KTotes. — A decree may be amended on motion so as to allow costs to the party entitled. Walter v. Ward, 3 Mackey, 65. So it may be amended or corrected on motion where the amendment or correc- tion desired is merely to conform the decree to the decision of the court, as where there has been a mistake in computation, or a mis- take of the clerk in entering the decree, or the like ; but where the decree is attacked in its terms and substance, or where any of its material provisions are sought to be varied, a rehearing of the case is the proper practice, and though this court has countenanced the prac- tice of altering a decree even in its material provisions, upon motion, it is in substance really a motion for a rehearing. Vincent v. Vin- cent, 3 Mackey, 320. A party who moves the court by petition to alter one of the provisions of the decree cannot appeal from the decree until his motion is disposed of. Such an appeal will be dismissed on mo- tion. Id. Though the court cannot change the essential parts of a decree after the term at which it was entered, yet it may subse- quently amend the decree as to the mode of execution, manner of sale, time of publication, and distribution of proceeds (Turner v. J. B. & W. R. Co., 8 Biss., 380) ; but an interlocutory decree is alwa,ys open to amendment and correction. De Floven v. Reynolds, 8 Fed. Rep., 434. 8. Decrees for Acconnt of Personality of Deceased Persons, What to Contain. — Every decree for an account of the personal estate of a testator or intestate shall contain a direction to the auditor to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal es- tate are outstanding or undisposed of, unless the court shall otherwise direct. Eule 69. m 442 PEACTICE AND PEOCBDUEE OF THE CHAPTEE XV. EXECUTION OP DEOBEES. Execution of decree for pay- ment of money. Execution of decree for spe- cific act. 3. Decree may stand for a con- veyance. 4. Similar provision of Revised vised Statutes of the District. 5. Writ of assistance. 1. Execution of Decree for Payment of Money. — rinal process to execute any decree may, if the decree be solely for the pay- ment of money, be by a writ of fieri facias, or by attachment against real estate, goods, chattels, or credits of the defendant. Eule 82. Notes. — Where a decree is made against several defendants for the payment of a sum of money, a payment of the amount by either of them works a satisfaction of the decree, because all the defendants are principals ^and the duty to pay the whole sum devolves upon each of them. Therefore, after a decree is thus satisfied, an execu- tion can no longer issue under it against the other defendaiits for the purpose of enforcing contribution from them. Herr v. Barber, 2 Mackey, 545. The Maryland Act of 1763, ch. 23, sec. 8 (ante, p. 202), providing that where judgment is recovered against sureties, and the judgment is satisfied by one of them, the creditor shall be com- pelled to assign the judgment to him, applies to judgment at law and not to decrees in equity. Id. 2. Execution of Decree for Specific Act. — If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or the delivery of posses- sion, or the delivering up of deeds, or other documents, it shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound without further service to take notice ; and upon affidavit of the plaintiff or his solicitor, filed in the clerk's office, that the same has not been complied with within the pre- scribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of a justice thereof, upon motion and affidavit, enlarging the time for the performance thereof. SUPREME COTJET, DISTRICT OF COLUMBIA. 443 If the delinquent party cannot be found, a writ of sequestra- tion shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. Eule 83. Compare with the provisions of the Maryland Act of 1785, ch. 72, sec. 25, and see ante, p. 425, sec. 14. 3. Decree may Stand for a Conveyance. — In all cases where a decree of the chancellor shall be made for a conveyance, release or acquittance, .and the party against whom such decree shall pass shall neglect or refuse to comply therewith, such decree shall stand, be considered and taken, in all courts of law and equity, to have the same operation and effect as if the conveyance, release, or acquittance had been executed con- formably to such decree. Md. Act., 1785, ch. 72, sec. 13. Note. — Accordingly it was held in Bank v. Van Ness, 5 Or. 0. 0., 294, that though the deed made in pursuance of the decree should for want of sufQcient execution fail to pass the title, yet under this act the decree itself would stand as a conveyance of the property. To the same effect, see Cowan v. Beall, 1 Mac A., 270. 4. Similar Provision of the Revised Statutes of the District. — In case of the sale of things, real or personal, under a decree in equity, the decree confirming the sale shall divest the right, title, or interest sold out of the former owner, party to the suit, and vest it in the purchaser, without any conveyance by the ofiBcer or agent of the court conducting the sale ; and the decree shall be notice to all th« world of this transfer of title when a copy thereof shall be registered among the land re- cords of the District ; but the court may, nevertheless, order its oflScer or agent to make a conveyance, if that mode be deemed preferable, in particular cases. E. S. D. C, sec. 793. 5. Writ of Assistance. — When any decree or order is for the delivery of possession, upon proof made by affidavit of a de- mand and refusal to obey the decree or order, the party prose- cuting the same shall be entitled to a writ of assistance from the clerk of the court. Eule 84. Notes. — The court, however, has no jurisdiction by a summary pro- ceeding to determine the rights of third persons claiming title to premises, who have recovered the possession by legal and adverse proceedings against a party to the suit, under a claim of right which accrued previous to the commencement of the suit. Fre- linghuysen v. Colders, 4 Paige, 204 ; Terrill v. Allison, 21 Wall., 289 ; Pratt v. Burr, 5 Biss., 36. Nor will a writ of assistance be -granted against persons who were in possession of the premises at the time of the commencement of the suit, and who were not made 444 PRACTICE AND PEOCEDTJEE OP THE parties thereto to turn them out of such possession. The power of the court to give possession by this summary proceeding, extends only to those persons who are parties to the suit, or those who have come into possession, under, or with the assent of, those who are parties subsequent to the commencement of the suit. Thompson v. Smith, 1 Dillon, 458 ; Boynton v. Jackway, 10 Paige, 307. See 1 Barb. Ch. Pr., 531. In Bryan v. Sanderson, 3 Mac A., 402, it was held that an appeal will not lie from an order granting a writ of assist- ance, or from an order reftising to grant it, but in that case the ques- tion arose between the parties to the original suit ; the decision, it is submitted, would not apply in a case where the writ is granted against one who had never been made such a party. CHAPTEE XVI. REHEARING AND REVIB^^. 1. Petition for rehearing, what to contain. 2. Not to be granted after lapse of term if appeal lies to Su- preme Court of the United States. ^ 3. If no appeal lies, may be ad- mitted at any time before end of next term. 4. Principles upon which a re- hearing is granted. Bill of review, within what time to be filed. The proviso of section 1008, R. S. U. S. Principles applicable to bills of review. What the petition for leave to file should state. 9. Hearing of the petition for leave to file. 8, 1. Petition for Rehearing, What to Contain. — Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, and shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. Eule 86, par. 1. Note. — The application for rehearing is by petition and not motion. Boucher v. Boucher, 3 Mac A., 453. But see Vincent v. Vincent, 3 Mackey, 320. It should state briefly the circumstances of the case, and the supposed errors in the decree, and the grounds of the ob- jection alleged. "When the rehearing is asked for the purpose of in- troducing additional evidence, the petition should be accompanied by the affidavit of the party, verifying these facts, and aflBrming that they were discovered since the date of the decree, or at a time when SUPREME COURT, DISTRICT OP COLUMBIA. 445 they could not be introduced into the cause at the former hearing. Alex. Oh. Pr., 178. And see Boucher v. Boucher, 3 Mac A., 453, where the practice is explained. 2. Not to be Granted after Lapse of Term if Appeal Lies to Supreme Court of the United States. — N^o rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded if an appeal lies to the supreme court. Eule 86, par. 2. Note.— The supreme court here referred to is the Supreme Court of the United States. Mercer v. Mercer, 1 Mac A., 659, Olin, J., dis- senting. 3. If no Appeal Lies, may be Admitted at any time before End of Next Term. — But if no appeal lies the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. Rule 86, par. 3. 4. Principles upon Which a Rehearing is Granted.— Granting a re- hearing is a matter for the discretion of the court ; it is never a matter of right. Daniel v. Mitchell, 1 Story, 198. Rehearings in equity are allowed in the United States courts only where some plain omission or mistake has been made, or where something material to the decree is brought to the notice of the court which had been before over- looked. Jenkins v. Eldridge, 3 Story, 299. And see Mercer v. Mer- cer, 1 Mac A., 659; Pries v. Pries, Id., 291. In a case involving a question of law of great public interest and great difficulty the gen- eral term has sometimes directed a rehearing before the full court (as in the case of Thaw v. Ritchie, 4 Mackey, 347; 5 Mackey, 200.) But it has never been its practice so to refer questions of fact which have been once fdlly discussed. Walter v. Ward, 3 Mackey, 65. Where a rehearing is sought on the ground of newly discovered evi- dence, after an interlocutory decree, the court will grant such a rehear- ing upon the filing of a supplemental bill, if the evidence is of such a nature as to entitle the party to relief upon a bill of review, after a final decree, but not otherwise. Baker v. Whiting, 1 Story, 218 ; Jen- kins V. Eldridge, 3 Story, 307, 308. And a rehearing will not be granted because the importance of the testimony has only been dis- covered since the decision, if the party had it in his power to ascer- tain its importance before the hearing, and has neglected to do so, and obtain the testimony ; although the justice of the case might be promoted by it. Provost v. Gratz, 1 Peters 0. C, 364 ; see Daniel v. Mitchell, 1 Story, 198 ; Baker v. Whiting, Id., 218 ; Jenkins v. El- dridge, supra. A rehearing will not generally be allowed when the newly discovered evidence is merely cumulative upon the litigated facts already in issue. Baker v. Whiting, 1 Story, 218 ; Jenkins v. Eldridge, 3 Story, 299, 310, 311. Nor for the purpose of contradicting a witness examined by the adverse party. Dunham v. Winans, 2 Paige, 24. Errors of judgment or mistake of law by counsel, as to 446 PRACTICE AND PEOOEDUEE OF THE the pertinency or force of evidence, furnishes no ground for a re- hearing. Baker v. Whitney, 1 Story, 218 ; Jenkins v. Eldridge, 3 Story, 299, :-516 ; Boucher v. Boucher, 3 Mac A., 453. Itis not enough to show that injustice has been done, but it must be shown that it has been done under circumstances which authorize the court to in- terfere. Walsh V. Smyth, 3 Bland, 9. If the absence of a party from the hearing is accidental and not voluntary, his remedy is by a peti- tion for a rehearing, and not by an appeal. Townsend v. Smyth, 1 Beasley (N. J. ), 350. As a general rule, when a rehearing is granted in equity, the court will not permit an examination at large ; no proof will be admitted but what was heard, or ought to have been heard, upon the original hearing. Jenkins v. Eldridge, 3 Story, 299. On a rehearing, the cause is open to the party who petitions for it, only as to those parts of the decree complained of in the petition ; but to the other party, it is open as to the whole matter. Consequa v. Panning, 3 Johns. Oh., 394 ; Dale v. Roosefelt, 6 Johns. Ch., 255 ; Fergu- son V. Kimball, 3 Barb. Ch., 616 ; but see Glover v. Hodges, 1 Sax- ton, (N. J.), 113; Sparhawk v. Buel,9 Vt., 41, where it is held that the whole case is open to both parties ; and see Hill v. Chapman, 1 Sum- ner's Ves., 405, note o. 5. Bill of Review, Within what Time to be Filed— No bill of review shall be filed unless witMn two years after tlie entry of the decree of order, with the exception specified in the pro-, viso to section 1008 of the Eevised Statutes of the United States. Rule 86, par. 4. See Killian v. Clark, 3 Mac A., 387, to which case this rule owes its origin. 6. Tlie ProTiso of Section 1008, K. S. U. S.— "No judgment, decree, or order of a circuit or district court, in any civil action, at law or in equity, shall be reviewed in the supreme court, on writ of error oi" appeal, unless the writ of error is brought, or the appeal is taken, within two years after the entry of such judgment, decree, or order : Provided, That where a party entitled to prosecute a writ of error or to take an appeal is an infant, insane person, or imprisoned, such writ of error may be prosecuted, or such appeal may he taken, within two years after the judgment, decree, or order, exclusive of the term, of such disability." 7. Principles Applicable to Bills of ReTiew.— A bill of review to correct an error not apparent upon the face of the record cannot be filed unless leave of the court is first obtained. Johnson v. Oflfutt, 2 Mac A., 168 ; and see this case for circumstances under which this species of bill may be brought. Where the matter complainant relies upon in a bill of review is not new, and could have been produced by him on the former hearing, and where he-appeared and answered without disclosing it, he is not entitled to this relief Johnson v. OfFutt, supra. Where a bill of re^ view has been filed and dismissed, and a motion to file a second on0 SUPREME OOTJET, DISTRICT OF COLUMBIA. 447 has been refused, this will be a bar to any further proceedings. Id. ■The distinction between a bill of review and a bill in the nature of a bill of review is this : That the former lies when the decree has been signed and enrolled, and the latter before the signing and enrollment. This distinction, though important in England, is not felt in the United States courts, for all decrees as well as judgments are matters of record and are deemed to be enrolled as of the term in which they are passed, so that the appropriate remedy is by a bUl of review. Dexter v. Arnold, 5 Mason, 310 ; Fries v. Pries, 1 Mac A., 290. These bills can only be brought for error of law appearing upon the face of .the decree; or upon some new matter which has been discovered after the decree, and could not possibly have been used when the decree was made. Danl. Oh. Pr., 1876 ; Johnson v. Offatt, 2 Mac A., 171. And the new matter must have been in existence at the time the decree was rendered, and not known to the party till after- wards. United States v. Samperyac, 1 Hemp., 118. And it must be relevant and material and such as might probably have occasioned a different determination. Id., 133. In England, the error in law must appear upon the face of the decree, the decree is usually drawn up with a special statement of, or reference to, the material grounds of fact which support it ; but in the United States courts the decree usually omits these statements of fact, and, therefore, for the pur- pose of examining all errors of law, the bill, answer and other pro- ceedings are regarded as being as much a part of the record before the court as the decree itself; for it is only by a comparison with the former that the correctness of the latter can be ascertained. Story Eq. PI., sec. 407 ; Davis v. Speiden, 3 Mac A., 283. Hence all these may be looked into to find errors apparent on the face of the decree. The evidence is not open for discussion on a bill of review for errors in law ; and if the evidence be set out in the bill, a demurrer should be sustained on that ground alone, or the evidence might on motion be stricken out. Buffington v. Harvey, 95 U. S., 99. No new de- fence can be made to a bill of review. Fritz v. Stover, 22 Wall., 198. And where a bill of review has been dismissed and a motion for leave to file a second one has been refused, this will be a bar to further proceedings. Johnson v. Ofifutt, 2 Mac A., 171. Nor can a bill of re- view be filed where the original decree was rendered by consent. Thompson v. Maxwell, 95 U. S., 391. And if the consent was obtained by fraud he can have relief only by original bill. Danl. Ch. Pr., 1585 ; Atkinson v. Manks, 1 Cowen, 693. Nor can an assignee of the original defendant file a bill of review. Id. Nor unless the applicant has performed or offers to perform the former decree. Ricker v. Powell, 100 U. S., 104. Or alleges his inability from poverty, or otherwise, to do so. Davis v. Speiden, 104 U. S.j 83, reversing on this point 3 Mac A., 283. All the parties to the original decree should join in the bill of review. Bank v. White, 8 Pet., 262. Where on appeal the general term remands a case to the special term, a bill to review the decree entered in obedience thereto cannot be entertained by the special term ; but where the decree of the general term ex- 448 PRACTICE AND PEOOEDUEE OP THE tends to part only of the decree appealed from, the special term may entertain a bill to review so much of its own decree as was not af^ fected by the decree of the appellate court. Williams v. Gardner, 2 Mackey, 93. 8. What the Petition for Leave to File shonid State.— A bill of re- view to correct an error not apparent on the face of the record can not be filed, unless the leave of the court is first obtained. Johnson V. Ofifutt, 2 Mac A., 168. The petition for leave to file the bill should state the nature of the suit, the decree, and the errors of law or the new matters, as the case may be, upon which the application is founded, and should pray for liberty to file a bill, to bring such de- cree into review. If the application is founded upon the dis- covery of new matter, the petition must describe the new evidence distinctly and specifically, and state when it was discovered, and its bearing on the decree. It is not sufficient that the petitioner ex- pects to prove certain facts. He must state the exact evidence to establish them. Danl. Ch. Pr., 1579. And see fhrther on this subject Fries v. Fries, 1 Mac A., 291 ; Mercer v. Mercer, Id., 659. 9. Hearingr of the Petition for Leare to File.— On the hearing of such petition, affidavits may be admitted on both sides, if necessary, to explain the nature of evidence. Upon the hearing the chancellor exercises his judgment as to the propriety of interfering or meddUng with the decree for the cause disclosed, and grants or reflises leave to file the bill of review accordingly, and he may refuse a review for the benefit of the party applying, and grant it for the protection of the interests of others. Danl. Ch. Pr., 1579, (Perkin's ed.,) note 1, and authorities there cited. And see Bicker v. PoweU, 100 U. S., 104 ; Craig v. Smith, Id., 226, where it is said that the allowance is within the discretion of the court, and should be granted only where it is indispensable to the merits and justice of the cause. StTPEEME COTJET, DISTRICT OF COLUMBIA. 449 CHAPTEE XVII. SALE OF INFANT'S ESTATES AND OF ESTATES OF TENANTS FOR LIFE. 1. Guardian may file petition for sale of infant's estate. 2. What petition must state. 3. Parties defendant, who to be made. 4. Evidence required before de- cree. 5. Requisites to render decree of sale lawful. 6. Costs. 7. No sale where will forbids it. ; 8. Guardian not to purchase. 9. Manner of sale. 10. Proceeds, how to be invested and applied. 13. Security to be required. In case of infant's death, pro- ceeds to be considered as real estate. When court may confirm contract of guardian for sale of infant's realty. Sale of estate of tenant for life. Application, how made. Parties defendant, who must be. Evidence, how taken. Disposal of proceeds. 1. Guardian may File Petition for Sale of Infant's Estate.— The guardian of any infant may file a bill in the supreme court for the sale of such infant's real estate, or part ■ thereof, when he shall think that the interests of his ward will be pro- moted thereby. E. S. D. C, sec. 957. Notes.— ThesR sections of the Revised Statutes are drawn from the Act of March 3d, 1843, 6 Stat., 621. See tbe Maryland Act of 1798, cb. 101, sub. ch. 12, sec. IT), empowering tbe orphan's court to order a sale by a guardian of a part of his ward's real ■estate for the latter's maintenance and education. That act has not repealed ihe act of Congress here giyen. Thaw v. Ritchie, 5 Mackey, 200. And see this case for an elaborate consideration of the Maryland and Federal legislation respecting sales of infants' realty. 2. What Petition must State.— Such bill shall be verified by the oath of the guardian, and shall set forth plainly and dis- tinctly all the estate, real and personal, to which the infant is entitled, and all the facts which, in the opinion of the guar- dian, are calculated to show whether the interest of his ward will be promoted by such sale or not. E. S. B. C, sec. 958. 3. Parties Defendant,"Who to be Made.— The infant, together 57 450 PEAOTICE AND PROCKDXTEE OF THE with those who would be heirs to the estate if he were dead, shall be made parties defendant, and it shall be the duty of the court to appoint some fit and disinterested person to be guardian ad litem for the infant, who shall answer the bill on oath ; the infant, also, if above the age of fourteen years, shall answer the bill in proper person on oath. E. S. D. C, sec. 959. 4. Evidence Required before Decree.— Whether the answer to the plaintiff's bill admit the facts alleged or not, commis- sions for taking depositions shall be awarded ; and before the court shall have authority to decree a sale, every fact material to ascertain the propriety thereof shall be proved by clear and credible evidence, given by disinterested witnesses ; deposi- tions to be taken in the presence of the guardian ad litem, or upon interrogatories agreed upon by him. E. S. D. C, sec. ,960. 5. Requisites to Render Decree of Sale Lawful. — If, upon hearing the cause, it shall be proved, to the satisfaction of the court, by evidence taken in accordance with the preceding section, that the interest of the infant manifestly requires the sale of his real estate, wholly or in part, and if in the opinion of the court the rights of others will not be violated thereby, the court may decree such sale. E. S. D. C, sec. 961. 6. Costs. — If a sale be decreed, the costs of the suit shall be paid out of the estate of the infant ; otherwise the costs shall be paid by the plaintiff. E. S. D. C, sec. 962. 7. No Sale where Will Forbids it. — No sale of an infant's real estate shall be decreed under the provisions of this chap- ter, if the testator from whom such estate is derived shall, by his last will and testament, have expressly directed otherwise. E. S. D. 0., sec. 963. 8. Guardian not to Purchase. — In no case shall the guardian or the guardian ad litem be admitted a purchaser at such sale, either by himself or through another, or in any manner what- ever become the owner of the real estate during the infancy of the ward. E. S. D. C, sec. 964. 9. Manner of Sale. — All sales shall be made in such manner and upon such terms of credit as the court may direct, always retaining a lien upon the estate for the payment of the pur- chase money. E. S. D. C, sec! 965. STTPEEMB COTJET, DISTKICT OF COLUMBIA. 451 10. Proceeds, How to be Invested and Applied. — The pro- ceeds of sale shall be invested and applied for the benefit of the infant, either in the purchase of other real estate or In such other manner as the court shall think best. R. S. D. C, sec. 966. 11. Security to l)e Required. — In whatever hands the pro- ceeds of the sale may be placed, the court shall require ample security that they shall be faithfully applied in such manner as the court may direct. E. S. D. C, sec. 967. 12. In case of Infant's Death, Proceeds to be Considered as Real Estate. — If the infant, after any such sale, shall die in- testate, under the age of twenty-one years, the proceeds, or so much thereof as may remain at his death, shall be considered as real estate, and shall pass accordingly to such persons as would have been entitled to the estate if it had not been sold. E. S. D. C, sec. 968. Notes. — "This act provides for the sale of the whole or any part of the infant's real estate, whenever it appears that the interest of the infant manifestly requires it. The object, therefore, is to promote the infant's interest generally. When the sale is made the proceeds are to hevested and applied — i. e., mvested and applied in the purchase of other real property, or invested and applied in such other manner as the court may think best. And these proceeds, if the infant dies under age, are to be considered real estate, and pass, as such, to the person who would have been entitled if no such sale had been made. "The prominent object of the act evidently is a change of invest- ment for the infant's benefit. " And another object seems to be to preserve the fund for his heir- at-law, in case of his death under age. As the infant could not make a valid devise, the property, then, upon his death under age, would necessarily descend to his heir. But a conversion of it into per- sonalty would deprive the heir of it but for the particular provision of the act. There is no expres authority to apply the proceeds other- wise than by ' vesting' or mvesting them. They are to be vested and applied in a purchase of other realty, or in some other manner. There is no authority to consume the principal. It is argued that such authority is implied by the words 'so much thereof (i. e., of the proceeds of sale,) as may remain at his death, shall be considered real estate,' etc. But this evidently means so much thereof as may re- main in the shape of personalty, because it was needless to say that of real estate. And that would apply to what was not reinvested in other real estate. It was not necessary to read it as of what remains after a part of the principal has been consumed. After directing that the proceeds might be reinvested in realty, this clause had, for , 452 PEACTICE AND PEOCTEDtTEE OF THE its object, to impress the character of realty on all that might remain in the form of personalty, for the benefit of the heir. It would be singular if a power to consume the principal was left to be inferred from a clause like this which has manifestly a different object in view, and does not necessarily convey such implication. "Somewhat singular consequences would follow such a construc- tion. Whether a ward's realty shall be sold for his maintenance and education must depend upon his needs in those respects. It is natu- ral to expect that the court charged with the duty of determining that question should also have authority to decree the sale. " The Act of 1798 expressly directs the orphan's court to ascertain the amount to be annually expended in the maintenance and educa- tion of the orphan, and authorizes it to apply a part of the principal of the estate to those objects. If this authority, as to the sale of the real estate, is cut off by the Act of 1843, the power of the court to fix the allowance at anything beyond the personalty and the income, is necessarily destroyed, because it is in the discretion of the equity court whether the realty shall be SQld or not. The power would then devolve on the equity court to determine the allowance of the ward. Could it have been intended to transfer to it this duty which is so exclusively appropriate to the orphans' court? Or could it have been intended to leave with the orphans' court the power to determine the ward's allowance for maintenance and education, beyond the income of the estate, and yet require a sepa- rate and original, instead of an appellate and revisory proceeding, in the equi y court, to give the orders of the former effect? ' ' All this difliculty makes it very improbable that Congress intended to trans er the administration of the ward's property — in other words, the wardship of the infant — to the equity court, by the Act of 1843. "But even if we can find, in the Act of 1843, an implied power to sell for the express purpose of applying the proceeds to the maiu- tenance and education of the ward, under the general authority to vest and apply for his benefit, it would not follow that the act is in- consistent with the act of 1798, and therefore repeals it. It would only follow that while the orphans' court could only direct a sale of part of the realty for the single object of maintaining and educating, the equity court could decree a sale of the whole of it for the promo- tion of the ward's interest in any way. There is no inconsistency in conferring on one court a iurisdiction which may include what al- ready exists in another, without intending to disturb the latter, but leaving their jurisdiction, to a limited extent, concurrent. " The later law may be intended as a substitute for the former, al- though not positively inconsistent with it. But it must appear plainly to be so intended. And how can that be predicated of the Act of 1843, when the supposed power of the equity court, intended to supersede that of the orphan's court, is not expressed, and can only be made out if at all by doubtful implication ? " Thaw v. Ritchie, 5 Mackey, 200. STJPEEMB COURT, DISTRICT OF COLUMBIA. 453 13. When Court may Confirm Contract of Guardian for Sale of Infant's Realty. — * * * if any contract hath been made for any lands, tenements or hereditaments, held as aforesaid, [i. e., by any infant or person non compos mentis jointly or in common with others] for or on behalf of any infant, idiot, or person non compos mentis, which the chancellor, upon hear- ing as aforesaid, and examination into all the circumstances, shall think for the interest and advantage both of such infant, idiot, or person non compos mentis, and of the other person or persons interested therein, to be confirmed, the chancellor may confirm such contract, and order a deed to be executed accord- ing to the contract ; and all sales and deeds made in pursuance of and agreeably to an order of the chancellor, in consequence of the above power, shall be good and sufficient in law to transfer the^ estate and interest of such infant, idiot, or person non compos mentis, in such lands, tenements or hereditaments, according to the true intent and meaning of such deeds re- spectively ; and in all cases of deeds executed in consequence of the above power, the deed shall be executed and acknowl- edged by such person or persons as the chancellor shall appoint for this purpose. Md. Act, 1785, ch. 72, sec. 12. Notes. — The first portion of this act relates to the sale and distribu- tion of land held by an infant, or person non compos mentis, jointly or in common with others ; as it is superseded by the general provi- sion of the act of Congress (see Pabtition, post), it is unnecessary to print it here. The equity side of this court has jurisdiction under this act to con- firm a contract made by a guardian for the sale of an infant's reality, where, under a bill filed for such purpose, proof has been taken showing that the proposed sale would be for the advantage both of the infant and others interested in the land. Meads v. Hartley, 4 Mackey, 391. When filed, such a bill may be amended after answers, taken by adding parties and a prayer for alternative relief by a sale and divi- sion of the proceeds. Id. 14. Sale of Estate of Tenant for Life. — Where real estate is limited by deed or will to one or more for life or lives, with a contingent limitation over to such issue of one or more of the tenants for life as shall be living at the death of their parent or parents, and the deed or will does not prohibit a sale, the supreme court of the District may, upon the application of the tenants for life, and if the court shall be of the opinion that it is expedient to do so, order a sale of such estate, and de- 454 PRACTICE AND PROCEDURE OF THE cree to the purchaser an absolute and complete title in fee- simple. E. S. D. C, sec. 969. See Thaw v. Ritchie, 5 Mackey, 221. 15. Application, How made. — Application for the sale of such real estate shall be by bill in equity, verified by the oath of the party or parties, in which all the facts shall be distinctly set forth, upon the existence of which it is claimed to be expe- dient that such sale should be decreed ; which facts shall be proven by competent testimony. E. S. D. C, sec. 970. 16. Parties Defendant, Who must be. — Such of the issue con- templated by the limitation as shall be in existence at the time of the application for the sale of the real estate shall be made parties defendant to the bill, and if minors, by guardian ad litem, together with all who would take the estate in case the limitation over should never vest ; and such of the parties de- fendant as shall be of the age of fourteen years or more shall answer in proper person, on oath. E. S. D. C, sec. 971. 17. Evidence, How Taken. — And all evidence shall be taken upon, notice to the parties and to the guardian ad litem. E. S. D. C, sec. 972. 18. Disposal of Proceeds.— The proceeds of the sale of such real estate shall be held under the control and subject to the order of the court, and shall be vested, under its order and supervision, upon real and personal security, or in govern- ment securities ; and the same shall, to all intents and prur- poses, be deemed real estate and stand in the place of the real estate from: the sale of which such proceeds have arisen, and, as such real estate, be subject to the limitations of the deed or wiU. E. S. D. C, sec. 973. SUPREME OOUET, DISTRICT OF COLUMBIA. 455 CHAPTEE XVIII. PROCEEDINGS 'WHERE LANDS ARE HELD IN TRUST, ETC., BY INFANTS AND PERSONS NON COMPOTES MENTIS. 1. Infants and persons non com- potes mentis, seized of lands in trust, or bound, etc., may be decreed to convey. 2. In case of infants, guardian must consent to decree, and infant may show cause after coming of age. 3. Representatives and others in- terested in such estates may have specific' performance, etc. 4. Infants to be bound by such conveyances. 5. Manner of decreeing sale of mortgaged premises of in- fants and persons non com- potes mentis. 6. Bond in such cases to be given, condition pf. 1. Infants and Persons Non Compotes Mentis, seized of Lands in Trust, or Bound, etc., may be Decreed to Convey. — Persons under tlie age of one and twenty years, and persons being idiot, lunatic, or non compos mentis, seized or possessed of any lands, tenements or hereditaments, in trust, or by way of mortgage, or seized or possessed thereof, charged or chargea- ble with the payment of money or tobacco, and therefore sub- ject or liable to a decree for sale, or bound by an agreement to convey, made by some person or persons having right or title to make such agreement, and therefore subject or liable to a decree for conveyance on a suit for a specific performance or execution of such agreement, shall, by direction of the court of chancery, signified by an order made upon the hearing of all persons concerned, on the petition of the person or persons for whom such infant or infants, or persons being idiot, luna- tic, or non compos mentis, or his, her or their committee or committees, in his, her or their name or names, shall be seized or possessed in trust, or of the mortgagor or mortgagors, or other person or persons entitled to redemption, or person or persons entitled to money or tobacco secured by or upon the said lands, tenements or hereditaments, or of the person or persons entitled to any money or tobacco, with the payment whereof the said lands, tenements or hereditaments, are or 456 PEAOTICE AND PROCEDURE OF THE shall be charged or chargeable, or of the person or persons en- titled to a specific performance or execution of such agreement as aforesaid, convey and assure any such lands, tenements or hereditaments, in such manner as the court of chancery shall, by such order so to be obtained, direct, to any other person or persons ; and such conveyance or assurance, so to be had and made as aforesaid, shall be as good and effectual in law as if such infant or infants were, at the time of making such con- veyance or assurance, of the full age of twenty-one years ; and the conveyance or assurance, so to be had and made as afore- said, in the case of persons being idiot, lunatic, or non com- pos mentis, shall, in like manner, be as good and effectual as if the said person or persons was or were, at the time of making such conveyance or assurance, of sound mind, memory, and understanding, and had by him, her, or themselves, executed the same ; and all and every such infant or infants, or persons being idiot, lunatic, or non compos mentis, being trustee or trustees, mortgagee or mortgagees, or being seized or possessed of lands, tenements or hereditaments, liable or subject in any manner aforesaid, or the committee or committees of all and every such persons, being idiot, lunatic, or non compos mentis, shall and may be compelled, by such order as aforesaid, to make such conveyance or conveyances, assurance or assurances, in like manner as persons of full age and of sane memory are compellable to make. Md. Act, 1773, ch. 7, sec. 1. Note. — ^By this act real estate held by an infant, or person non compos mentis, may be sold immediately, for the satisfaction of the money charged upon it, by a decree in chancery with the consent of the guardian. Watkins v. Worthington, 2 Bland Oh., 509. This act is considered and construed in Lane v. Glover, 3 H. & McH., 394 ; Prutzman v. Pitesell, 3 H. & J., 77; Green v. Fowler, 11 G. & J., 103; Buclringham v. Peddicord, 2 Bland, 447, and Tessier v. Wyse, 3 Bland, 28. 2. In case of Infants, Crnardian must Consent to Decree, and Infant may Show Canse after Coming of Age. — ITo order or direction as aforesaid shall be made or given in virtue of this act, in the case of any infant or infants seized or possessed of any lands, tenements or hereditaments, charged with or sub- ject to the payment of money or tobacco, unless it shall ap- pear, that the guardian or guardians of such infant or infants hath or have consented thereunto, and also that such infant or infants will not sustain any detriment, disadvantage or in- 8XTPEEME COURT, DISTRICT OP COLUMBIA. 457 convenience, from such order or direction ; and also, that upon every order or direction for conveyance to be made by an in- fant or infants, for the specific performance and execution of any such agreement as aforesaid, liberty shall be reserved for the said infant or infants to show cause, -vrithin six months after he, she or they, shall have attained the full age of twenty - one years, if such infant or infants shall attain such full age, and also for the heirs of such infant or infants, if such infant or infants shall not so long live, in six months after the de- cease of such infant or infants, if the said heirs shall then be of full age, and if such heirs shall not then be of full age, in six months after such heirs shall have attained his, her or their full age, why such conveyance ought not to have been ordered or directed, and on suf&cient cause being shown as aforesaid, the infant or infants aforesaid, or his or their heirs, shall be entitled to and have a reconveyance, by order or de- cree of the said court, of the said lands, tenements or heredit- aments, by whomsoever claimed or possessed, by, from or under the conveyance made by such infant or infants afore- said, and also a full account of the rents and profits thereof, of and from the person who shall have received the same. Md. Act, 1773, ch. 7, sec. 2. Notes. — A bill having been filed against an infant for a specific per- formance of a parol agreement entered into by the ancestor to con- vey land to his daughter, and on the answer and agreement of his guardian, a conveyance having been decreed, the infant on his ma- jority, petitioned under the Act of 1773, ch. 7, for a reconveyance ; held, that the decree could not be pleaded in bar of the relief, but that the petitioner might examine the proofs of the decree, and show, by an error on its face, that the conveyance ought not to have been directed. Prutzman v. Pitesell, 3 H. & J., 77 ; Tomlinson v. McKaig, 5 Gill, 256. The petitioner, in such case, is not confined to the former proceedings only, but may by further proceedings Show himself entitled to- relief. In the case cited, as it appeared that expressions of the ancestor were rather proofs of an intention than of an agreement ; that the evidence did not show the mode of con- veyance, intended or agreed ; that the part performance by giving possession was not clearly established ; it was held that the infant Was entitled to a decree for a reconveyance, with a full account of the rents and profits. Tomlinson v. McKaig, 5 Gill, 256. See Bog- liano v. Cooke, 19 Md., 396. It is further to be observed that under equity rule 6, (ante p. 446) liberty is reserved an infant to file his bill of review within two years after coming of age. See also p. 465, sec 9. 58 458 PRACTICE AND PEOCEDUKE OF THE 3. Representatives and others Interested in snch Estates may have Specific Performance, etc.— Whereas infants, idiots, luna- tics, and persons wlio are not of sound mind, seized of lands, tenements and hereditaments, may be compelled to convey the same, by decree of the court of chancery, for a specific per- formance of agreements made by the persons under -whom they claim, provided application be made to the chancellor by the parties entitled to a conveyance, but there is no legal provision for such a decree, as the circumstances of the case may require, upon application made by the representatives or persons interested in the estate of the person who makes a contract for the sale of his lands, Be it enacted, That if any person, seized of any land, tenement or hereditament, hath made or shall make a contract for the sale and conveyance thereof, and hath died or shall die without performing his part of the agreement, having devised or left the said land, tenement, or hereditament, to descend to a person under twenty-one years of age, or to an idiot, lunatic, or person non compos mentis, in any such case, the chancellor, on application by bill or petition of any representative of the deceased, inter- • ested immediately in having such agreement specifically per^ formed, and on hearing all parties concerned, shall have full power to decree a specific performance, and to direct a con- veyance by trustee or guardian, or to decree otherwise, as jus- tice and the established principles of chancery shall require ; provided nevertheless, that in the case of an infant, no decree shall be made for a specific performance in virtue of this act, unless it shall appear that the guardian or guardians of the infant have consented thereto, or unless the chancellor shall be satisfied that such inlBut or infants will not be in any man-- ner injured thereby. Md. Act, 1791, ch. 79, sec. 4. 4. Infants to he Bound by such Conveyances.— Any person or persons under the age of twenty-one years, seized or possessed of any lands, tenements or hereditaments, in trust, or by way of mortgage, or seized or possessed thereof, charged or charge- able with the payment of money or tobacco, and therefore sub- ject or liable to a decree for sale, or bound by an agreement to convey, made by some person or persons having right or title to make such an agreement, and therefore subject or liable to a decree for sale, or bound by an agreement to convey, made by some person or persons having right or title to make such agreement, and therefore subject or liable to a decree for con- StrPBEME COURT, DISTKICT OP COLTJBMIA. 459 Veyance, on a suit for a specific performance or execution of such agreement, shall, by the direction of the court of chan- cery, signified by an order made upon the petition of the per- son or persons for whom such infant or infants shall be seized or possessed in trust, or of the mortgagor or mortgagors, or other person or persons entitled to redemption, or person or persons entitled to money or tobacco, secured by or upon the said lands, tenements or hereditaments, or of the person or persons entitled to any money or tobacco, with the payment whereof the said lands, tenements or hereditaments, are or shall be charged or chargeable, or of the person or persons en- titled to a specific performance or execution of such agreement as aforesaid, be bound and concluded by any deed or deeds, conveyance or conveyances, assurance or assurances, made and executed by the guardian or guardians (to be appointed by the said court) of such person or persons, under the age of twenty-one years as aforesaid, in pursuance of such order and direction of the court of chancery, and such deed or deeds, conveyance or conveyances, assurance or assurances, so to be had and made as aforesaid,^ shall be as good, valid and ef- fectual in law, as if such infant or infants were, at the time of making such deed or deeds, conveyance or conveyances, assur- ance or assurances, of the full age of twenty- one years, and had by him, her or themselves, executed the same, anything in the said recited act to the contrary thereof in any wise not- withstanding. Md. Act, 1778, ch. 22, sec. 2. Provided nevertheless, That liberty be reserved to the infant or infants hereinbefore mentioned, and the heirs of such infant or infants, to show cause why such deed or deeds, conveyance or conveyances, assurance or assurances, ought not to have "been ordered or directed, within six months, as limited in the said recited law, and in the manner and within the time there- in mentioned. Md. Act, 1778, ch. 22, sec. 4. The two sections above given are supplementary to the act of 1773, oh. 7, sec. 1 and 2 (ante p. 455, et seq.) and see post p. 465, sec. 9. 5. Manner of Decreeing Sale of Mortgaged Premises of In- fants, and Persons non compotes mentis. — Where any person or persons under the age of twenty-one years, or being idiot, lu- natic, or non compos mentis, are or shall be possessed of any lands, tenements, hereditaments or real estate whatsoever, which are, or shall be and stand, mortgaged for the payment :<)f any sum or sums of money or tobacco, or for securing th« 460 PRACTICE AND PEOOEDUBB OF THE payment of any debt whatsoever, and the day of payment in such mortgage is elapsed, it shall and may be lawful for the chancellor, upon the petition of the mortgagee or mort- gagees, or any person claiming under the mortgage, after summoning the infant, and his appearance by guardian, to be appointed by the chancellor for that purpose, and to answer and defend on the part of such infant, or after the appearance of such person being idiot, lunatic, or non compos mentis, by the trustee or trustees, or committee of such person being idiot, lunatic, or non compos mentis, to be appointed by the chancellor on behalf of such person for the purposes aforesaid, and hearing all parties, and being well satisfied of the execu- tion of the deed of mortgage, and that the sum claimed by the person making such application is justly due, to order and de- cree a sale of such mortgaged premises, or such part thereof as may be necessary to discharge the debt or debts due on such mortgage, or the chancellor may decree a foreclosure of the whole or such part of the mortgaged premises as may be neces- sary and sufficient to discharge, pay and satisfy, the debt or debts due upon and secured by,such niortgage, in such man- ner as the chancellor shall judge most proper ; but if a part only is foreclosed, and such part shall be esteemed by the mortgagee, or person praying a foreclosure, insufficient to pay the money secured by such mortgage, then a sale thereof shall be made in such manner as the chancellor shall direct, and the money raised by such sale, or so much thereof as is necessary, shall be applied to discharge the debt secured by such mort- gage ; and if money sufficient to pay the debt secured by the mortgage is not raised by a sale of the part foreclosed and sold as aforesaid, then the chancellor shall decree a sale of such other part of the mortgaged premises as will be sufficient for that purpose. Md. Act, 1785, ch. 72, sec. 1. Note.— The relief which maybe granted under the terms of this chapter having been supposed to relate to legal titles only, a further enactment, (Md. Act, 1795, ch. 88, sees. 2 and 3, (post. p. 467,) extends its provisions to equitable titles. 6. Bond in Snch Cases to be Given, Condition of.— In all cases where a foreclosure of any mortgage, or sale of any land, shall be applied for, in which any infant shall be interested, the person or persons applying for such foreclosure or sale, before any decree of foreclosure or sale is made, shall give bond, with good and sufficient security, approved by the chan- SXJPEEME COURT, DISTRICT OF COLUMBIA. 461 oellor, to the infant, his heirs, executors and administra- tors, in such penalty as the chancellor shall direct, with condition, that in case the infant, within one year after arrival to age, shall make it appear to the satisfaction of the chancellor, that there was fraud in obtaining the mortgage- deed, or that no deed was really executed, or that the debt claimed, or so much as decreed to be paid, was not really due, that then the obligor, his heirs, executors or administrators, will reconvey the mortgaged premises to the infant, in case of decree for foreclosure, or in case of sale, to pay to the infant either the whole or such part of the money raised by such sale as the chancellor shall determine to be just, apd also stand to, or abide by, such order and decree as the chancellor shall make in the cause ; which bond shall be filed and safely kept by the register in chancery, and also recorded with the decree in the case ; and suit may be maintained either upon the origi- nal or a copy of the record by the infant, his heirs, executors, or administrators, upon breach of the condition, and in such suit the plea of non est factum shall not be received unless verified by the affidavit of the defendant or defendants. Md. Act, 1785, ch. 72, sec. 2. CHAPTEE XIX. PROCEEDINGS TO SELL DECEDENT'S REAL ESTATE TO PAY DEBTS. 1. Land descended or devised to a minor or person non com- pos mentis may be sold to pay debts of deceased when personalty insufficient. 2. Parties to creditors' bills. 3. Allegations of the bill. 4. Limitations as a defense to creditors' bills. 5. Chancellor may appoint trus- tee to make such sale. 6. Manner of making and con- firming such sales, bond of trustee, etc. 7. Terms of such sales. 8. Distribution of proceeds. 9. How far infants may disturb decree after coining of age. 10. Miscellaneous decisions under the statute. 1. Land Descended or Devised to a Minor or Person non com- pos mentis may be sold to pay Debts of Deceased when Per- 462 PEACTIOE AND PROCEDURE OP THE sonalty Insufficient. — If any person hath died, or shall here- after die, without leaving personal estate sufficient to dis- charge the debts by him or her due, and shall leave real estate which descends to a minor, or person being idiot, lunatic, or non compos mentis, or who shall afterwards become non com- pos mentis, or shall devise real estate to a minor, or person being idiot, lunatic, or non compos mentis, or who shall after- wards become non compos mentis, the chancellor shall have full power and authority, upon application of any creditor of such deceased person, after summoning such minor, and his appearance by guardian, to be appointed as aforesaid, and hearing as aforesaid, or after summoning the person being idiot, lunatic, or non compos mentis, and his ap- pearance by trustee, trustees or committee, to be ap- pointed as aforesaid, and hearing as aforesaid, and the justice of the claim of such creditor is fully established, if, upon consideration of all circumstances, it shall appear to the chancellor to be just and proper that such debts should be paid by a sale of such real estate, to order the whole or part of the real estate, so descending or devised, to be sold for the payment of the debts due by the deceased. Md. Act, 1785, ch. 72, sec. 5. Notes. — It will be observed that this act by its terms is confined to cases where the real estate of the deceased has descended or been devised either to minors or to persons non compos mentis, and it was at one time thought that the court of chancery was without power to extend relief to creditors where the land had descended or been devised to persons of full age. See opinion of Hanson Ch. in Tyson v. HoUingsworth, 1 H. & J., 469. But in the case just cited, and especially in Hammond v. Hammond, 2 Bland Oh., 306, where the whole subject of creditor's bills is elaborately discussed by Chan- cellor Bland, it was held that wherever there is a deficiency of assets in the hands of an executor or administrator for the paytnent of debts due by his testator or intestate, the real estate of such deceased debtor, to whomsoever descended or devised, may be decreed to be sold to satisfy such debts. See also Carey v. Dennis, 13 Md., 16. Ofifutt V. King, 1 Mac A., 312 ; Keefe v. Malone, 3 Mac A., 236. The personal estate of a deceased debtor is the natural fund for the payment of his debts and must, in ordinary cases, be first resorted to by the creditor for the satisfaction of his claim. Wyse v. Smith, 4 G. & J., 295. See Stevens v. Gregg, 10 G. & J., 143. And it is not necessary to have first obtained a judgment in a court of law. Oflfutt V. King, 1 Mac A., 312. If personal assets come to the hands of the executor or adminis- trator sufficient to pay all the debts of the deceased, the creditor SUPEEME COUET, DISTEICT OE COLUMBIA. 463 must look to that fand for the payment of his debts ; and if those assets are wasted, his remedy is on the oflScial bond of the executor or administrator. Id. GriiHths v. Bank, 6 Q. & J., 445. The real estate of the debtor is protected, unless the personal as- sets are insufficient ; and to authorize the chancellor to pass a decree to sell the real estate to pay the debts of the deceased, the bill must allege an insufficiency of personal assets for that purpose, which alle- gations must be admitted by the answers, or proved. Id. McLaugh- lin v. Bank, 7 Howard, 231; David, v. Grahame, 2 H. & J., 73; Gib- son V. McCormick, 10 G. & J., 65. For cases illustrating the liability of realty for debts of deceased under this act, see Oarnan v. Tur- ner, 6 H. & J., 65 ; Newton v. Griffith, 1 H. & J., 112 ; Baltzell v. Poss, Id., 504; Gist v. Oockey, 7 H. & J., 134; Chase v. Lockerman, 11 G. & J., 185; Collinson v. Owens, 6 G. & J., 4 ; Gibson v. McCor- mick, 10 G. & J., 65; Warfleld v. Owens, 4 Gill, 364. Ingle v. Jones, 9 Wall., 486 ; Kennedy v. Cresswell, 101 U. S., 641 ; McLaughlin v. Bank, 7 How., 220. 2. Parties to Creditors' Bills. — Generally in cases of creditors' suits, all persons having an interest in the object of the suit ought to be made parties. Hammond v. Hammond, 2 Bland Ch., 306 ; Worthing- ton V. Lee, Id., 678 ; Ward v. HoUins, 14 Md., 158. Creditors may come in either before or after decree. Strike v. McDonald, 2 H. & J., 191 ; Strike's Case, 1 Bl., 57 ; Post v. Mackall, 3 Bl., 486 ; Gibson v. McCormick, 10 G. & J., 65. The administrator or executor should be a party, except in cases where the creditor is under no obligation to look to the personal estate, as where he has a specific lien upon the realty. David v. Grahame, 2 H. & J., 94; Tyler v. Bowie, 4 H. & J., 333; Bank V. Ritchie, 8 Pet., 128; Fenwick v. Chapman, 9 Pet., 461! 3. Allegations of the Bill. — As to what allegations are necessary, see Gist v. Cockey, 7 H. & J., 134; Gibson v. McCormick, 10 G. & J., 65. Allegation that there was no grant of letters. Robertson v. Parks, 3 Md. Ch., 65. 4. Limitations as a Defense to Creditors' Bills. — As to limitations as a defence to creditor's bills, see Wilhelm v. Caylor, 32 Md., 151. Co- creditor may set up limitations. Carroll v. Waring, 3 G. & J., 494. But limitations set up by one defendant does not inure to benefit of co-defendant. McCormick v. Gibson, 3 G. & J., 12 ; Gibson v. McCor- mick, 10 G. & J., 65. Limitations run against creditors until they come in with the other creditors already in. McDowell v. Goldsmith, 2 Md. Ch., 370. As to limitations where executor and devisee are one and the same person, see Keefe v. Malone, 3 Mac A., 236. 5. Chancellor may Appoint Trustee to make such Sale. — The chancellor shall have full power and authority to appoint a trustee or trustees for the purpose of making any sale by him directed in pursuance of this act. Md. Act, 1785, ch. 72, sec. 7. 6. Manner of Making and Confirming such Sales, Bond of 464 PEACTIOE AND PROCEDXTRE 01" THE Trustee, etc. — All sales made by tlie authority of the chan- cellor under this act, shall be notified to, and confirmed by, the chancellor, before any conveyance of the property shall be made, and bond, with good and suflcient security, to be ap- proved by the chancellor, shall be given by the person or per- sons empowered to sell property as aforesaid, for the due exe- cution of the trust committed, which bond shall be lodged with the register in chancery [clerk of the court] ; and any person interested in such sale shall have a right to a copy of such bond, and a certificate from the said register [clerk] under his hand and seal of office, paying ten shillings for the same, upon which copy and certificate an action may be maintained, in the name of the State [United States], for the use of the party interested and apprehending himself ag- grieved ; and judgment may be by such party recovered upon such action for the damages by him actually sustained, and the plea of non est factum shall not be received to any such action, unless the same is verified by the affidavit of the defendant or defendants tendering the same. Md. Act, 1785, ch. 72, sec. 8. Notesi — The ratification when made is final and conclusive unless irregularly made by the court, or unless the party otgecting was pre- vented by misrepresentation, surprise, or fraud, resulting from some act or conduct of the trustee or interested parties, from making his objection in due time. Brown v. Gilmore's ex'rs, 8 Md., 322 ; Kauff- man v. Walker, 9 Md., 240. And see SMIknecht's Lessee V. Eastburn, 2 G. & J., 114 ; Ward v. HoUins, 14 Md., 158. With the consent of all parties the sale may be ratified at once. Brown v. Wallace, 2 Bland Oh., 585; S. C, 4 G. & J., 507; Anderson v. Foulke, 2 H. &. J., 357; Bolgiano v. Cooke, 19 Md., 377. Where injury will be inflicted by the ratification of a sale, upon a party not in default by the carelessness or omission of the trustee, the sale should not be ratified. Bolgiano V. Coke, 19 Md., 375 ; Speed v. Smith, et al., 4 Md. Ch., 299. But the sale will not be set aside for causes which reasonable diligence could have obviated. KaufFman v. Walker, 9 Md., 229. The sale is a transaction between the court and the purchaser. Goldsborough v. Ringgold, 1 Md. Oh., 239; Hunt v. StuU, 4 Id., 391; Glenn v. Olapp, 11 G. & J,, 1, and the tnistee is the mere agent of the court, and must conform to his instructions in the decree, or the court may reflise to ratify his acts. Glenn v. Wooten, 3 Md. Oh., 514. But the trustee may vary, and on the exercise of a sound discretion, and reporting satisfactory reasons therefor, the court, if no sufllcient objection is made, will ratify the sale. Glenn v. Wooten, 3 Md. Ch., 514 ; Gib- son's Case, 1 Bland Oh., 144 ; Alex. Oh. Pr., 145 ; Tyson v. Mickle, Z Glll^ 377 ; Cunningham v. Schley, 6 Gill, 208. A purchaser dis- SUPREME COUET, DISTRICT OF COLUMBIA. 465 covea-ing a defect of title at a proper time may be relieved from his purchase by asking a recission of the sale. Bolgiano v. Cooke, 19 Md., 374 ; Ridgely v. McLaughlin, 3 H. & McH., 220 ; Glenn v.Clapi), •11 Q. & J., 1. The purchaser is regarded as owner from the day of sale, and if he fails to protect the property, and loss is sustained before the final ratification, it falls upon him. Wagner v. Cohen, 6 Gill, 97. 7. Terms of such Sales. — AH sales by the direction of tlie chancellor under the authority of this act, except in the case where a sale is directed to be made for ready money as aforci said, shall be made upon such terms and conditions as the chancellor shall determine ; and in case any sale shall be made on credit, the chancellor may, upon application of the mort- gagee or creditor, direct any bond taken in consequence of such sale to be assigned to such mortgagee or creditor ; and the assignee or assignees respectively may sue and maintain actions in their names against the obligor or obligors in such bonds. Md. Act, 1785, ch. 22, sec. 9. 8. Distribution of Proceeds. — Unless he is the only creditor, the creditor applying is only entitled to a decree for a sale of the pro- perty and a distribution rateably among all the creditors. He is not allowed to appropriate more than his distributive share. Baltzell v.. Foss, 1 H. & G., 507 ; Hoye v. Brewer, 3 G. & J., 153 ; Simmons v. Drury, 2 G. & J., 32 ; Diffenderfer v. Winder, 3 G. & J., .311 ; Hanson v. Barnes' Lessee, Id., 359 ; Wyse v. Smith, 4 G. & J., 295 ; Hayes v. Miles, 9 G. & J., 193 ; Warfield v. Owens, 4 Gill, 364. But see Poole & Hume V. Daly, 1 Mackey, 460. The heirs and devisees may have their respective interests adjusted so as to have the proceeds distributed among them according to their interests. Hoye v. Penn, 1 Bland Oh., 28. Rival equities of claimants are to be settled after the pro- ceeds are brought into court for distribution. Gibson v. McOormick, 10 G. & J., 65 ; Bank v. Mackall, 3 Gill, 447. Where a deceased deb- tor's real estate has been sold in any other manner than by a- Creditor's bill, creditors may be allowed to come in by petition against the proceeds, but they must establish their claims as in a creditor's suit. Fenwick v. Laughlin, 1 Bland Oh., 474; Latimer v. Hanson, Id., 51 ; Strike v. McDonald, 2 H. & J., 191. Executor pay- ing creditors a greater amount than he has in assets is substituted' in equity to their rights. CoUinson v. Owens, 6 G. & J., 4 ; Gist v. Cockey, 7 H. & J., 135; Billingslea v. Henry, 20 Md., 282. 9. How far Infants may Disturb Decree after Coming of Age.— "Pprmerly on a creditor's bill to obtain the sale of lands charged' wjth the payment of debts, the decree was never absolute, but nisi causa as against the infant heir, allowing him six months to show cause after he obtained his full age ; when he was permitted to come ■ iij as a m,atter of course, and file a better answer, and have the case ' 59' 466 PEACTICE AND PKOCEDUEE OF THE reheard upon the merits as thus newly presented ; or the parol was ordered to demur as to the real estate descended during the minority of the heir. If, however, the heir neglected to come in, within a reasonable time after he obtained full age, and show cause against the decree nisi, he was precluded and it was held to be absolute. But according to our Act of Assembly, the parol cannot be ordered to demur, in a creditor's suit, during the minority of an infant heir or devisee ; nor can such an infant have a day allowed him to show cause on his obtaining his full age. In all cases coming under that Act of Assembly (1785, ch. 72, sec. 5) if the creditor establishes his claim, he is entitled to an absolute decree at once for a sale of his deceased debtor's real estate, for the payment of his debts ; and therefore, although an infant, on his attaining full age pending the suit, may be allowed to come in as of course and to demur, plead or answer as he may think proper, yet he cannot be permitted to do so, after a decree of this kind has been passed, without virtually abro- gating the Act of Assembly, which, by placing infants upon a footing with adults, in this particular, does, in effect, require of them as well as of adults, that they should show good cause in order to have any such decree rescinded and the case reheard." Tessier v. Wyse, 3 Bland Ch., 61-62. See ante, p. 457, note to sec. 2. 10. Miscellaneons Decisions under the Statute. — When a deceased debtor left no personal estate to be administered, equity will not re- quire letters of administration to be taken out before granting relief under a creditor's bill. Birely v. Staley, 5 G. & J., 432 ; GriflSth v. Bank, 6 G. & J., 424. Where the personal assets are sufficient the remedy is at law. Baltzell v. Foss, 1 H. & J., 507 ; Buchanan v. Deshon, Id., 280. A judgment against the executor or adminstrator is no evidence against the heir in a proceeding by creditor's bill. Groot V. Hitz, 3 Mackey, 247 ; Ingle v. Jones, 9 Wall., 486 ; Har- wood V. Rawlings, 4 H. & J., 126. To authorize a decree there must be an indebtedness existing in the lifetime of the deceased, though it need not have been payable in his lifetime. Casey v. Dennis, 13 Md., 1. In a creditor's suit, the decree for a sale of the realty, being founded on the fact of the deficiency of the per- sonal estate, necessarily establishes that point, and after that, the correctness of the administrator's accounts cannot be impeached for the purpose of turning a creditor, who had come in under the decree, away from the realty, to seek payment of the personalty. And after notice to creditors had been given, a sale made, and a dis- tribution of the proceeds had been awarded to creditors, claimants who had been infants, were allowed to come in soon after they ob- tained their majority, to have a further sale of the realty made for the satisfaction of their claims, even after a partition had been made among the heirs of the deceased debtor. Makubin v. Brown, 1 Bland Ch., 410; Williamson v. Wilson, Id., 418; Stuties' Case, Id., 57; Gibson V. McCormick, 10 G. & J., 115 ; Tessier v. Wyse, 3 Bland, 28. So a decree to sell real estate and distribute proceeds among the SUPREME COURT, DISTRICT OF COLUMBIA. 467 heirs will be no bar to a subsequent creditor's suit, the rights of the creditors not having been in issue. Collinson v. Owens, 6 G. & J., 4 ; Latimer v. Hanson, 1 Bland Ch., 51. The rents and profits accru- ing after the death and before sale are subject to the decree. War- field V. Owens, 4 Gill, 364 ; Scott v. Sqott, 17 Md., 91. Even if the bill should be dismissed as to the heirs, yet relief may be had in the same suit against the administrator to the extent of assets in his hands. Tessier v. Wyse, 3 Bland Ch., 29. But see Wyse v. Smith, 4 G. & J., 295, as to this point, and examine Kennedy v. Cress well, 101 ; U. S., 641. Ingle v. Jones, 9 Wall., 486. Practice where there are conflicting liens and incumbrances, Boyd & Hance v. Harris, 1 Md. Oh., 466. Rights and liabilities of purchaser from devisee of a deceased debtor as against creditors. Gibson v. McOormick, 10 G. &. J., 65. Eight of creditors coming in after answer and before decree to be heard in the selection of a trustee to make sale. Wat- kins V. Worthington, 2 Bland Oh., 509 ; Howard v. Waters, 19 Md., 629. Where incumbrances are on the property directed to be sold and the amount doubtful, court will direct an ascertainment to be made before sale. Thruston v. Minke, 37 Md., 571. CHAPTER XX. SALES OF EQUITABLE TITLES. 1. Equitable titles may be sold for same causes and in same manner as- legal titles. 2. When descended or devised to infants, may be sold to pay debts of ancestor or devisor. 3. Sale of equitable titles to sat- isfy judgments or decrees. 1. Equitable Titles may be Sold for same Causes and in same Manner as Legal Titles. — The chancellor shall have power and authority, on application already made, or hereafter to be made, by bill or petition, and after summoning and hearing the person or persons proper to be made defendant or defend- ants, or after such proceedings against him, her or them, as would entitle the complainant or complainants to a decree in other cases, to decree the sale of any equitable title or claim to land, in any case in which he might on application decree the sale of a legal complete title, and the purchaser or pur- chasers of such equitable title from a trustee or trustees, to be 468 PRACTICE AND PEOCEDTJRB OF THE appointed in the same manner, and on the same terms, as other trustees for sale of land are appointed, shall, in conse- qilence of such purchase, and a conveyance to be made by the said trustee or trustees, stand in the place of the person or per- sons in whom was the said equitable title at the time of the de- cree, and shall be entitled to such remedy against any party OF) parties as the said person or persons might have had. Md. Aj6t, 1795, ch. 88, sec. 2. 2. When Descended or Devised to Infants, may be Sold to pay Debts of Ancestor or Devisor. — Any creditor or creditois, who have made or shall make application to the chancellor by bill or petition, for the sale of any land which hath descended or been devised to an infant or infants, for the payment of the debts of the ancestor or devisor, who had only an equitable interest or title in the said land, may pray and obtain a sub- poena against the person or persons having the legal title to the said land, in case such person or persons be resident of the State, or give such notice of the bill or petition as the chan- cellor shall direct, in case such person or persons be not resi- dent of the State ; and on summoning and hearing of all par- ties concerned, or on such proceedings against the defendant as are proper to entitle the complainant or complainants to a decree in other cases, the chancellor shall have power to de- cree, as shall appear to him just to all parties ; and if it shall appear to him, that no money is due for the land from the per- son or persons who had the equitable claim or title aforesaid to the person or persons having the legal title, he shall decree a sale of the whole interest, estate and title of all parties to the land aforesaid, and direct the money arising from the sale to be applied to the discharge of the just debts of the ancestor or devisor aforesaid ; but if it shall appear to the chancellor, that the person or persons having the legal title, have not been pai- the whole money contracted to be paid to him, her or them, the chancellor shall not decree a sale of more than the equitad ble- title aforesaid, without the consent of the party or parties having the legal title, or without providing that the debt for the land shall be wholly paid. Md. Act, 1795, ch. 88, sec. 3. 5. Sale of Equitable Titles to Satisfy Judgments or Decrees.— Whereas it often occurs that persons against whom judgments or decrees are obtained hold and possess, or claim, lands, tene- ments or hereditaments, by equitable title only, and the credi- SUPREME COURT, DISTRICT OF COLUMBIA. 469 tor or creditors of sucli persons are often without remedy, either at law or in equity. Be it enacted, That in such cases it shall and may be lawful for the chancellor, on application, to decree a sale of such equitable interest for the benefit of the creditor or creditors applying for the same, and the purchaser or purchasers thereof, under such decree, shall, upon payment of the purchase money, be entitled to an assignment of such equitable interest, to be made by the trustee making such sale, and shall be entitled to such remedies, both in law and equity, against all persons, and in all cases, as the person could or might have had whose title he, she or they may claim by vir- tue of such purchase. Md. Act, 1794, eh. 60, sec. 10. CHAPTEE XXI. STATUTORY PROVISIONS RESPECTING- TRUSTEES AND ESTATES OP PERSONS DYING- "WITHOUT HEIRS. 1. Testamentary trustees may be required to give security. 2. Trustees may be appointed in certain cases. Death without heirs of persons having contracted for the sale of lands and not having conveyed the same. 1. Testamentary Trustees may be Required to Give Security. — In all cases where there hath been, or may hereafter be, an appointment of a trustee or trustees by last will and testament, to execute any trust, and any person interested in the execu- tion of such trust shall make appear to the chancellor, that it is necessary, for the safety of those interested in the execution of such trust, that the trustee or trustees should give bond and security for the due execution of the trust, it shall and may be lawful for the chancellor to order and direct that such bond be given by the trustee or trustees, on or before a day by the chancellor to be appointed ; and if bond, with such security as may be approved by the chancellor, shall not be given by such trustee or trustees agreeably to such order, then the chan- cellor may displace such trustee or trustees, and appoint one or more trustee or trustees in his or their stead, who shall give bond and security, to be approved by the chancellor, for 470 PRACTICE AND PEOCEDTJEE OF THE the due execution of the trust ; and all bonds taken in virtue of this power shall be made payable to the State, [United States,] and shall be filed and kept by the register in chancery, [clerk of the court,] and also by him recorded, and upon any breach of the condition, suit may be brought by any person inter- ested, either upon the original bond or a copy of the record, and the plea of non est factum shall not be received in such suit, unless it be verified by affidavit of the defendant or de- fendants. Md. Act, 1785, ch. 72, sec. 10. 2. Trustees may be Appointed in Certain Cases.— If any per- son hath died, or shall die, leaving real or personal estate to be sold for the payment of debts, or other purposes, and shall not, by will or other instrument in writing, appoint a person or persons to sell or convey the same property, or if the per- son or persons appointed for the purpose aforesaid shall ne- glect or refuse to execute such trust, or if such person or persons, or any of them, shall die before the execution of such trust, so that the sale cannot be made for the purposes in- tended, in every such case the chancellor shall have full power and authority, upon application or petition from any person or persons interested in the sale of such property, to appoint such trustee or trustees for the purpose of selling and conveying such property, and applying the money arising from the sale to the purposes intended, as the chancellor shall, in his discretion, think proper. Md. Act, 1785, ch. 72, sec. 4. 3. Death Without Heirs of Persons having Contracted for the Sale of Lands and not having Conveyed the Same — Proceed- ings.— If any person, having contracted for the sale of any lands, tenements or hereditaments, and not having conveyed the same, hath died, or shall die, without leaving an heir known of and capable of inheriting his real estate, it shall be lawful for the chancellor, upon a bill filed by the person en- titled to the conveyance, and such notice being given in the public newspapers, or otherwise, as the chancellor shall direct, to decree that the legal title and estate shall be vested in the person entitled to such conveyance, according to the terms of the contract, and thereupon, and by virtue of such decree, such legal title and estate shall be transferred and vested accordingly ; and if the person filing his bill as aforesaid shall not have paid the whole purchase money, the chancellor may order that such purchase money shall be paid, or secured in SUPREME COURT, DISTRICT OF COLUMBIA. 471 such manner as he shall think most safe and proper, for the benefit of the legal representative of the person dying as afore- said. Md. Act, 1792, ch. 41, sec. 4. CHAPTEE XXII. IDIOTS AND LUNATICS. 1. Power of the court over the persons and estates of idiots and lunatics. 2. Court may direct their con- finement. 3. May direct a sale of their property for their support. 4. Same subject — further statu- tory provisions. 5. Proceedings on such sales — bond of trustee, etc. 6. Disposition of proceeds. 1. Power of the Court over the Persons and Estates of Idiots and Lunatics. — The chancellor shall have full power and au- thority in all cases to superintend, direct and govern, the af- fairs and concerns of persons who are or may be lunatics or idiots, both as to the care of their persons and management of their estates, and may appoint a committee, trustee or trus- tees, for such persons, and may make such orders and decrees respecting their 4)ersons and estates as to him may seem proper, and may, upon application of any creditor or creditors of any person who is idiot, lunatic, or non compos mentis, and being satisfied of the justice of the claim, and that it will be for the benefit and advantage of the estate of such person being non compos mentis, to discharge and pay such claim, and that there is no other means of so doing than by selling part of the estate of such person, appoint a committee, trustee or trustees, for such person being idiot, lunatic, or non compos mentis, and may direct such committee, trustee or trustees, to sell so much of the personal property of such person as may be necessary to discharge the debts by him or her due, and if the personal prop- erty is not sufB.cient, then so much of the real property of such person being idiot, lunatic, or non compos msntis, as will be sufficient for the purpose aforesaid, may be ordered by the chancellor to be sold for such purpose. Md. Act, 1785, ch. 72, sec. 6. Xotes. — This act is in force in this District, and r^alates the con- 472 PEACTIOE AND PROCEDUKB OF THE trol of insane persons. In re Bryant, 3 Mackey, 489, and In re George Brent, 5 Mackey, 352. The granting of a writ de lunatico is, in some measure, discretionary with the court, and may be dispensed with for good cause, for the benefit of the lunatic, for although the court cannot dispose of the person or estatd of a citizen who is a lunatic without his having been fqund to be so by regular inquisi- tion, yet it may, under particular circumstances, extend its protec- tion to his person or estate, without any such previous inquest. Owings' Case, 1 Bland Ch., 290-370 ; Hoffman, Admr., v. Cromwell, 6 G. & J., 144. For the practice in obtaining a writ de lunatico, see Alex. Ch. Pr., 222 et seq. ; Colvin's Estate, 35 Md. Ch. Dec, 278 ; 4 Id., 126. The appointment is usually made on the nomination of the person suing out the commission of lunacy, yet a caveat may be en- tered against the appointment, and then the recommendations of the parties interested will be considered, and proof taken to aid the court in making the selection. Though the more usual rule is to appoint the same party committee of both the person and estate, yet some- times an opposite practice is followed, and in some cases is eminently proper. The rule is, other things being equal, to appoint him who is recommended by the g^reatest number entitled to be heard. Col- vin's Estate, 3 Md. Ch. Dec, 278, and 4 Id., 126. See Chew's Estate, 4 Md. Ch. Dec, 60 ; Williams v. Holmes, 9 Md., 287. A woman may be appointed the committee of a lunatic. Gibson's Case, 1 Bland Ch., 138. But a person not a resident of the jurisdiction should not be appointed. Morgan's Case, 3 Bland Ch., 332. As to the amount appropriate to be allowed fjr maintenance of a lunatic or idiot, see Hoffman, Admr., v. Cromwell, 6 G. & J., 144 ; Moore v. White, 4 H. & J., 548 ; Boarman's Case, 2 Bland Ch., 89. On the death of a lu- natic, the jurisdiction of a court of equity over his estate ceases for every purpose, except that of calling the trustee to an account, and directing him to hand over all the property of the deceased to his legal representatives. Boarman's Case, 2 Bland Oh., 89 ; Morgan's Case, 3 Bland Ch., 332 ; Williamson v. Wilson, 1 Bland, 438 ; Cain v. War ford, 3 Md., 454. But the committee should retain possession and preserve the property until some person shall appear, properly authorized to receive it from him ; and in the meantime if there is reason to apprehend delay in ascertaining who are entitled to the possession, a receiver may be appointed on application of the parties in interest. And after the death, equity will not administer the fund even for the benefit of creditors, they must pursue their remedies before the ordinary jurisdictions ; nor will the court adjudicate questions of right between opposing claimants. Cain v. Warford, 3 Md., 454. 2. Court may Direct their Ooiiflnemeut. — The chancery court shall have full power, on the application of any trustee of a lunatic, idiot, or person insane, and receivinjc proof to his satisfaction that it is necessary or proper to confine such luna- tic, idiot, or person insane, to direct the said trustee to send SUPREME COURT, DISTRICT OE COLUMBIA. 473 the person under his charge to some hospital or receptacle in Philadelphia, provided he can be there received, to remain until further order of the court ; and the chancellor shall have full power at any time to direct the said person to be brought back, and to enforce his order as in other case^ Md. Act, 1797, ch. 114, sec. 7. Note. — Lunatics may be admitted into the Hospital for the Insane in the District of Columbia. Ji. S. U. S., sec. 4854. A person can- not be secluded in invita as an insane person, until he has been found to be insane by a jury of inquiry. In re Bryant, 3 Mackey, 489. 3. May Direct a Sale of their Property for their Support.^ The chancellor shall have full power and authority, in all cases where trustees shall or may be appointed under the authority of the chancery court for the management of the estates and persons of idiots, lunatics and persons non compos mentis, to order and direct the property of such idiot, lunatic or person non compos mentis, or so much thereof as he may jttdge necessary for the support of such idiot, lunatic or person non compo? mentis, or for the payment of all reasonable and just expenses which such trustee or trustees may or have incurred, to be sold, upon such terms as he may think proper, and to appoint a trustee or trustees for the purpose of effecting such sale or sales, and the money arising therefrom to be apiDlied to the discharge ■of such expenses. Md. Act, 1800, ch. 67, see. 2. Note. — On application of the committee of a lunatic, and on a proper showing as to the expediency thereof, by exparte affidavits (or other- Wise in the discretion of the chancellor), this court, sitting in equity, has jurisdiction to direct a sale of the lunatic's real estate for his sup- port and maintenance, under the Maryland acts of 1785, ch. 72, sec. % and 1800, ch. 67. In re George Brent, 5 Mackey, 352 ; and see this case for the method of proceeding in such cases. 4. Same Subject— Further Statutory Provisions.— In cases where a sale of the property of any idiot, lunatic or person non compos mentis, shall be necessary for the support of such person, and such property will not admit of division without prejudice thereto, or shall be so situated, or of such a nature, as to render it advisable and beneficial to such person, in the opinion of the chancellor, to sell the whole, or any greater part thereof than may be necessary for the immediate support of such person, the said chancellor shall have full power and authority to order a sale or sales to be made of the whole, or so much of the property of such idiot, lunatic or person non 60 474 PEACTICB AND PEOaEDITEB OF THE compos mentis, as he shall think proper, and to direct the ap- plication of the money arising from such sale or sales, and the Interest thereof, for the purposes aforesaid, and to direct from time to time in what funds the money arising from said, sales shall be vested, and in all things to order in the premises as he may deem for the benefit and advantage of said lunatic. Md. Act, 1800, ch. 67, sec. 3. 5. Proceedings on such Sales — Bond of Trustee, etc. — All sales made by the authority of the chancellor, under this act, shall be notified to, and confirmed by, the chancellor, before any conveyance of the property shall be made, and bond, with good and sufficient security, to be approved by the chancellor, shall be given by the person or persons emjDOwered to sell the property as aforesaid, for the due execution of the trust com- mitted to him or them, which bond shall be lodged with the register in chancery. Md. Act, 1800, ch. 67, sec. 3. 6. Disposition of Proceeds. — The principal sum arising from the sale of the said property, or so much thereof as may re- main unapplied to the use and maintenance of said lunatic, during the lifetime of said lunatic, shall, on the death of the said lunatic, belong to such person or persons, his, her, or their heirs or legal representatives, as would have been entitled to the said property in case the same had not been sold. Md. Act, 1800, ch. 67, sec 3. Stri'EEME COUET, DISTRICT OP COLUMBIA. 475 CHAPTEE XXIII. PARTITION. 1. Who may have partition. 2. Parties to partition suits. 3. In such suits, court to exefoise general equity powers. 4. In what cases court may de- cree sale and division of pro- ceeds. 6. Terms of such sales. 6. Manner of appointing guar- dian and taking answer of non-resident infants in parti- tion suits. 7. Commissions may, by consent, be directed to one Instead of three. 1. Who may have Partition.^AU tenants in common and coparceners of any estate in lands, tenements, or heredita- ments, equitable as well as legal, within the District of Colum- bia, may, in the discretion of the court, be compelled in anj'' court of competent jurisdiction, to make, or suffer partition of such estate or estates. Act of August 15, 1876, sec. 1, par. 1 (19 Stat., 202), Eich. Suppl., 247. 2. Parties to Partition Suits.— ^In proceedings for partition all persons in interest shall be made parties in the same man- ner as in cases of equity jurisdiction. Id., par. 2. 3. In such Suits Court to Exercise General Equity Powers.^ And in proceedings for partition under this act, the court may, in addition to the powers herein conferred, exercise such powers as are or may be conferred by virtue of the general equity jurisdiction of thp court. Id., par. 3. 4. In what cases Court may Decree Sale and Division of Pro- ceeds. — The court, in all cases, in decreeing partition, may, if it satisfactorily appears that said lands and tenements, or any estate or interest therein, cannot be divided without loss or injury to the parties . interested, decree a sale thereof, and a division of the money arising from such sale among the par- ties, according to their respective rights and interests. Id., sec. 2. 5. Terms of such Sales. — In all such sales, unless the court shall by special order direct or require on good cause shown, that the sale be made for cash, the purchase-money shall be 476 FRACnOE AISTB PKOCBDUB.E OF THE payable, one- third on day of sale, one-third 'in one year, and one-thi^'d in two years thereafter, with interest, the deferred payments to be secured to the parties, according to their respective interests, by good and sufficient mortgage upon the premises so sold, which shall be subject to the approval of the court. Id., sec. 3. N»te. — The foregoing Act of Ckmgress, if it does not repeal, has at least superceded in practice proceedings under the Maryland Parti- tion Acts. It is, therefore, happily unnecessary to inflict the reader with the cumbersome and verbose details of the various statutes enacted by that State upon this subject prior to the cession. Section 6, however, of the Act of 1795, ch. 88, is given below, since in the case of non-resident infants the practice in obtaining thejr answers s under that section, as modified by the subsequent Act of 1799, oh. 79, sec. 6, which is also given. 6. Manner of Appointing Guardian and Taking Answer of Non-Resident Infants in Partition Suits.— On a bill filed for the purpose of obtaining partition of land held jointly or in com- mon with an infant residing out of the State, [District] the chancellor, on the complainant's motion, may direct a commis- sion to issue unto three persons, such as he shall approve, authorizing them, or any two of them, to go to the infant, and appoint a guardian for the purpose of answering and defend- ing the suit, and authorizing them likewise to take the answer and return it to the court ; and in receiving such answer, there may be the same proceedings as if the defendant had been regularly summoned, and had been heard by a guardian appointed by the court. Md. Act, 1795, ch. 88, sec. 5. 7. Commission may, by Consent, be Directed to One instead of Three. — Hereafter, with the consent of the party or parties in court, and with the approbation of the chancellor, a commis- sion for any purpose whatever, which may lawfully issue from the chancery court in any cause there depending, or hereafter to be instituted, may be directed to one person only, or to three persons, with power to any two, and the person or per- sons to whom it shall be directed shall have the same authority as has heretofore been reposed in any greater number. Md. Act, 1799, ch. 79, sec. 1. SUPREME COURT, DISTRICT OF COLUMBIA. 477 OHAPTBE XXIV. MBOHANICS' LIENS. 1. Who may have the lien. 2. Time and place for filing no- tice. 3. Priority of liens — exceptions. 4. When lien to have priority — extent of. 5. Proceedings to enforce the lien — averments of the bill — parties, etc. 6. Decree of sale and distribution of proceeds. 7. Decree in case of more than one building. 8. Joint claimants. 9. Time within which suit must be commenced — all parties to be heard before final de- cree. 10. Different suits against same building to be consolidated. 11. In what cases court may order survey. 12. When satisfaction of claim to be entered — penalty if not entered. 13. Discharging lien by filing un- dertaking with sureties- proceedings. 14. Liens in special cases. 15. Liens upon personal property. 16. Repeal provisions. 1. Who may have the Lien. — That every building hereafter erected or repaired by the owner or his agent in the District of Columbia, and the lot dr lots of groiind of the owner upon which the same is being erected or repaired, shall be subject to a lien in favor of the contractor, sub-contractor, material man, journeyman, and laborer, respectively, for the payment for work or materials contracted for or furnished for or about the erection, construction, or repairing of such building, and also for any engine, machinery, or other thing placed in said building or connected therewith so as to be a fixture : Provided, That the person claiming the lien shall file the notice prescibed in the second section of this act : Provided further, That the said lieu shall not exceed or be enforced for a greater sum than the amount of the original contract for the erection or repair of said building or buildings. Act of July 2, 1884, sec 1. Notes. — Statutes giving liens to laborers and mechanics for their work and labor are to be liberally construed. Mining Co v. Collins, 104 U. S., 176. Where one takes a different security for the price for erecting a buUding, it is inconsistent with the idea of a mechanic's lien, and no such lien attaches. Grant v. Strong, 18 Wall., 623. But a mere promise to g^ive such security, if subsequently broken, will 478 PEACTICE AND PROCEDXTEE OF THE not impair the right to such a lien. McMurray v. Brown, 91 U. S., 267. Nor does a contract that the money is to be paid from a certain source g^ve such collateral security as vitiates the lien. Removal Oases, 100 U. S., 457. The mere transfer of a promissory note to the material man will not release his lien, unless the same is paid at maturity, or unless it is taken in payment of the account. Smith v. Johnson, 2 Mac A., 481. And he does not lose the insurance by dis- continuing the prosecution of the lien after the building has been burned. Id. A release obtained by fraud from one who was inter- ested in a share only of the profits of a contract Will not invalidate the lien for the work done so as to affect the interest of another person. Canal Co. v. Gordon, 6 Wall., 561. One who has a me- chanic's lien upon the property has an insurable interest, limited only by the value of the property and the amount of his claim. Ins. Co. V. Stinson, 102 U. S., 25. 2. Time and Place for Filing the Notice. — That any person wishing to avail himself of the provisions of this act, whether his claim be due or not, shall file in the office of the clerk of the supreme court of the District of Columbia, during the con- sfcructioa or within three months after the completion of such building or repairs, or the placing therein or ad.iacent thereto of any engine, machinery, or other thing as aforesaid, a notice of his intention to hold a lien upon the property declared by this act liable to such lien for the amount due or to become due to him, specifically setting forth the amount claimed. • The clerk aforesaid shall file and record such notice in a book provided for that purpose. Id., sec. 2. Notes. — A mechanic's lien for material for, and work done, upon a row of buildings is not void because of its being placed on the whole row for the amount claimed and not on each of the buildings separately for the amount claimed on each. Phillips V' Gilbert, 101 U. S., 721. A notice of a mechanic's lien signed with a co-partnership name, instead of the individual names of the part- ners, is not invalid for that reason. Smith v. Johnson, 2 Mac A., 481. Nor is the lien invalid because it is not claimed upon all the land connected with the building to which the owner has a title deed. Id. The lien attaches only by reason of the filing of the claim. Ool^ ton V. Holden, 1 Mac A., 463 ; Tucker v. Ormes, Id., 652. The mere fact that the mechanic is openly doing his work is not notice to any one, for it is not made so by statute. Cotton v. Holden, 1 Mac A., 463. As to what will be a sufficient description, see McLean v. Young, 2 Mac A., 184 ; Smith v. Johnson, 2 Mac A., 4»1. What will not be a suflloient description, see Basshor v. Kilbourn, 2 Mac A., 273. 3. Priority of Liens— Exceptions. — That the lien hereby given shall be preferred to all judgments, mortgages, deeds of trust, liens, and incumbrances which attach upon the Said building SUl'EEME COURT, DISTRICT OP COLUMBIA. 479 or the ground aforesaid subsequent to the commencement of work on said building ; and all incumbrances and liens (other than those which attached thereto prior to the commencement of said building or repairs) which by the laws of this District are required to be recorded shall be postponed to said liens unless recorded prior to the commencement of said building or repairs. Id., sec. 3. 4. When Lien to have Priority— Extent of.— That when an owner of lands contracts with a builder for the sale of lots and the erection of buildings thereon ; and agrees to advance moneys towards the erection of such buildings, the lien herein- before authorized shall have priority to all advances made af- ter the filing of said notices of lien, and the lien shall attach to the right, title, and interest of the owner in said building and land to the extent of all advances which shall have be- come due after the filing of such notice of such lien, and shall also attach to and be a lien on the right, title, and interest of the person so agreeing to purchase said land at the time of the filing of said notices of lien. When a building shall be erected or repaired by a lessee or tenant for life or years, or a person having an equitable estate or interest in such building or the land on which it stands, the lien created by this act shall only extend to and cover the interest or estate of such lessee, tenant, or equitable owner. Id., sec. 4. 5. Proceedings to Enforce the Lien — Averments of the Bill — Parties, etc. — That the proceedings to enforce the lien created by this act shall be by bill in equity, which shall contain a brief statement of the contract on which the claim is founded, the amount due thereon, the time when the notice was filed with the clerk as aforesaid, in case such notice is required by this act, the time when the building was completed, with a description of the premises, and any other material facts ; and all persons who are interested in the premises, so far as they are known, shall be made parties complainants' or defendants ; and said bill shall pray that the premises may be sold and the proceeds of the sale applied to the discharge of the lien. The summons shall be served as in other cases in equity. Id., sec. 5, par. 1. Notes. — The jurisdiction of a court of equity to enforce the lien of a contractor given by statute, rests upon the basis of the statute, and can extend no further. Canal Co. v. Gordon, 6 Wall., 561. But where the owner had paid large amounts to the original contractor 480 PEACTICE AND PEOCEDTJEE OP THE and the sub-contractors, and claimed damages for breach of con- tract, and the contractor and various sub-contractors had filed liens on the property, the owner was permitted to maintain a bill in equity bringing all the parties into one suit. Painter v. Drane, 2 Mac A., 163. And where a contractor brought suit to enforce his lien, it was held proper to allow as a set-off or recoupment of the damage defendant sustained by reason of the failure of the plaintiff to complete the building within the time specified in the contract, and also for the unworkmanlike manner in which the work was done. Burn v. Whit- tlesey, 2 Mao A., 189. So in a proper case the court may in the ex- ercise of an equitable discretion deny the plaintiff costs. Id. Pub- lication may be substituted for personal service of process upon any defendant who cannot be found, in suits for the enforcement of me- chanics' liens. R. S. D. C, sec. 787, {ante, p 87.) 6. Decree of Sale and Distribution of Proceeds. — If judg- ment be rendered for the complaiaaat, the court shall decree the sale of said land and premises, and shall declare the proper distribution of the fund arising from such sale ; and if upon sale the proceeds be insufficient to pay all liens under this act, they shall stand as a judgment against the party who in- curred the debt, if he be made or become a party to the suit, but not otherwise; and such judgment shall bear interest, and have the same force and effect, and be enforced in the same manner as in cases of judgment at law. Id., sec. 5, par. 2. 7. Decree in Case of more than one Building. — That in the case of labor done or materials furnished for the erection or repair of two or more buildings joined together and owned by the same person or persons, it shall not be necessary to de- termine the amount of work done or materials furnished for each particular building, but only the aggregate amount upon all the buildings so joined; and the decree of the court shall pass against all the buildings, and the land on which they are erected, as one building ; but they may be sold separately if the court so decree. Id. , sec. 6, par. 1. 8. Joint Claimants. — If a joint claim be filed, and the proof shows a separate right of action, it shall not defeat the claim, but the court may require the pleadings to be amended, if necessary, upon such terms as it shall prescribe, and proceed to adjudicate the rights of the parties as to law and justice shall appertain. Id., sec. 6, par. 2. 9. Time within which Suit must be Commenced— All Parties to be Heard before Final Decree. — That any person entitled to a lien under this act may commence his suit to enforce the StrPEEME COtTET, DISTEICT OF COLUMBIA. 481 same at any time within one year from and after filing the no- tice aforesaid or the completion of said building or repairs, but no final adjudication shall be had until all persons who shall become interested in the building subject to such lien under the provisions of this act shall have an opportunity to be heard in said suit, providing such interest was vested at the time said suit was brought, or be acquired within three months thereafter, and such persons shall intervene in said suit within said term of three months. Id., sec. 7. 10. Different Suits against same Building to be Consoli- dated. — That all or any number of persons having liens on the same building pursuant to the provisions of this act may join in one suit, but their respective claims may be stated distinctly in separate paragraphs, and the judgment shall show the amount to which they are respectively entitled. If several suits shall be brought by different claimants, and be pending at the same time, the court may order them to be consolidated. Id., sec. 8. 11. In what Oases Court may Order Survey. — That if said building be on any land lying outside the cities of Washing- ton and Georgetown, and there is any contest as to the dimen- sions of the ground claimed to be subjected to the lien declared by this act, it shall be the duty of the court to issue an order to the surveyor of said District, or some other surveyor, to examine the said building, or the place at which said build- ing is being or has been erected or repaired, and to make a report to the court, in which he shall suflSioiently designate and describe by metes and bounds, and by a draught, if neces- sary, the limits and extent of groand ; and if approved by the court such report shall be conclusive upon all parties con- cerned ; and the land so designated in such report shall, to- gether with said buildings, be subjected to and charged with said lien. Id., sec. 9. 12. When Satisfaction of Claim to be Entered — Penalty if not Entered. — That whenever any person having a lien by virtue of the provisions of this act shall have received satisfac- tion for his claim and the cost of his proceedings therein, he shall, upon the request of any person interested, and upon the payment or tender of the costs of entering satisfaction, within two days after such payment or tender, enter satisfaction of his demand in the office of the clerk aforesaid ; and upon fail- 61 482 PRACTICE AND PEOCEDUEE OP THE ure to do so he shall forfeit fifty dollars to the party aggrieved, and all damages which he may have sustained by reason of such failure or neglect. Id., sec. 10. 13. Discharging Lien by Filing Undertaking with Sureties- Proceeding. — That in all proceedings under this act the de- fendant may file a written undertaking, with two or more sure- ties, to be approved by the court, to the effect that he and they will pay the judgment that may be recovered, and costs, which judgment shall be rendered against all persons so undertaking, and thereby release his property from the lien hereby created. No such undertaking shall be approved by the court until the complainants shall have had at least two days' notice of the defendant's intention to apply to the court therefor, which notice shall give the names and residences of the persons to be offered as sureties, and the time when the motion for such ap- proval will be made ; and such sureties shall make oath, if re- quired, that they are worth, over and above all debts and lia- bilities, double the amount of said lien. The complainants, or any of them, may appear in open court and make their ob- jection to such approval, or file in the ofiice of the clerk of the court their or his objections in writing to such approval. If such undertaking be approved before the filing of the aforesaid bill in equity to enforce said lien, the said sureties shall be made parties thereto ; and if after the filing of said bill, said sure- ties, upon the approval of said undertaking, shall ipso facto become parties thereto ; and in either case the decree of the court shall run against them as well as the principal on such undertaking. Id., sec. 11. Notes.— A judgment in an action at law for a debt secured by a mechanic's lien is not admissible in evidence against a surety on an undertaking to discharge that lien; the lien is to be enforced in equity, not at law. Phillips v. Coburn, 2 Mao A., 409. 14. Liens in Special Cases. — That any person or persons who shall furnish, at the request of the owner, or his agent, mate- rials to do any work on or labor in filling up any lot, or in erecting or constructing any wharf, or other permanent fix- tures thereon, or in dredging out the channel in front of any wharf, under contract -with the owner, or his agent, shall be entitled to enforce a lien therefor upon the lots or wharves. Id., sec. 12. 15. Liens upon Personal Property. — That any mechanic or artisan who shall make, alter, or repair any article of personal 483 property, at the request of the owner, shall have a lien thereon for his just and reasonable charges for his work done and ma- terials furnished, and he may retain the same in his possession until such charges shall be paid ; and if not paid at the end of six months after the work is done, he may proceed to sell the property at public auction, by giving notice once a week for three consecutive weeks in some daily newspaper pub- lished in the District of Columbia ; and the proceeds of such sale shall be applied first in the discharge of such lien and the expense of selling such property, and the remainder, if any, shall be paid over to the owner thereof. Id., sec. 13. 16. Repeal Provisions. — That so much and such parts of chapter twenty of the Eevised Statutes relating to the District of Columbia, and all other acts and parts of acts inconsistent with the provisions of this act, be, and the same are hereby, repealed ; and this act shall take effect from the date of its Id., sec. 14. 484 PRACTICE AND PEOCBDUKE OF THE CHAPTEE XXV. DIVORCE. 2. 3. 5. 1. Jurisdiction in divorce. 1 a. General rule as to proceed- ings. Application for, how made. Causes for which a divorce a vinculo may be granted. —For which a divorce from bed and board may be granted. Limitation when cause of com- plaint occurred 'out of the District. 6. Allegations of the petition. 7. — In case of adultery. 8. — Where petitioner was under age of consent. —Where petitioner's consent was procured by fraud. —Where the marriage was con- tracted during petitioner's lunacy. Verification of the petition. 12. Piling the petition and issuing summons. 13. Answer of the defendant. 14. Non-resident and absent de- fendant, how notified. 15. Provisions of rule eighty-nine as to such notice. 16. When cause may be heard in default of defendant's ap- pearance. 9. 10. 11. 17. No divorce to be granted with- out proof ; admissions in an- swer not evidence. 18. How proof to be taken. 19. When evidence of petitioner may be received in suits for divorce from bed and board. 20. No divorce cause to be heard unless calendared. Testimo- ny in "publication cases," when to be filed. 21. Decree when marriage is dis- solved on account of former marriage, s 22. Legitimacy of issue in such cases. 23. When marriage dissolved on account of lunacy, issue to be deemed legitimate. 24. In other cases decree not to affect legitimacy of issue. 25. C our t may deer ee alimony and retain right of dower to wife. 26. Alimony pendente lite. 27. Custody and maintenance of children. 28. Wife's maiden or previous name may be restored. 29. Adultery of wife after divorce from bed and board. 30. Suits for alimony alone. 1. Jurisdiction in Divorce.— The supreme court shall have jurisdiction of all applications for divorce. E. S. D. C, sec. 766. 1 a. General Rule as to Proceedings. — The proceedings upon a petition for divorce shall be the same as are had in other cases, except so far as otherwise provided in this chapter. B. S. D. C, sec. 732. Notes.— The ecclesiastical courts which alone in England could grant divorces were not imported into this country, and the jurisdic- tion of such courts can be obtained only by statute. Therefore in SUPREME COTJKT, DISTRICT OF COLUMBIA. 485 the United States all divorce jurisdiction is statutory, and no court can grant a divorce except for parties and causes provided by statute. Stewart M. & D., sec. 214; 1 Bish. M. & D., sec. 71; Barber v. Barber, 21 How., 582. But courts of equity, in the exer- cise of their ordinary jurisdiction, independently of any provision of the divorce laws, may pass a decree declaring a marriage void as for fraud, error, duress, lunacy, and imperfection \ in the consent in general. Stew. M. & D., sees. 139, 141,-144; 1 Bish. M. & D., sees. 70-77. 2. Applications for, How made.— AH applications for divorce shall be made bj^ petition to the supreme court of the District. E. 8. D. 0., sec. 731. 3. Causes for which a Divorce a vinculo may be Granted. — A divorce from the bond of marriage maty be granted in any of the following cases, namely : First. Where such marriage was contracted while either of the parties theretg had a former wife or husband living, unless the former marriage had been lawfully dissolved and no re- straint imposed on t?he party contracting such second mar- riage. Second. Where such marriage was contracted during the lunacy of either party. Third. Where either party was matrimonially incapacitated at the time of the marriage. ('(.) Fourth. Where either party has committed adultery during the marriage. (&.) Fifth. For habitual drunkenness for a period of three years of the party complained against, (c.) Sixth. For cruelty of treatment, endangering the life or health of the party complaining, (d. ) Seventh. For wilful desertion and abandonment by the party complained of against the party complaining for the full uninterrupted space of two years, (e.) E. S. D. C, sec. 738. Notes.— (a). Matbdhonial Incapacity.— Besides the incapacity arising from an .existing marriage with another party, or from lunacy, a party may be matrimonially incapacitated because of want of age. Stew. M. & D., sees. 55-58; 1 Bish. M. & D., sees. 143-153. Or because of want of mental capacity to understand the nature of the act, as in the case of an idiot, or where the party was drunk. 1 Bish. M. & B., sees. 123-142 ; Stew. M. & D., sees. 59-61. Want of physical capacity to consummate the marriage (impotency). Stew. M. & D., sees. 62-67 ; 1 Bish. M. D., sees. 321-340. Relationship by blood (consanguinity) or marriage (aflSnity). Stew. M. &D., sees. 68-72 ; 1 Bish. M. & D., sees. 312-320. For the degrees of kindred or affinity within which a marriage taking place in the District is de- 486 PRACTICE AND PEOOEDUEE OF THE clared to be void, see Thompson's Dig., 297. The incapacities arising from slavery, race, religious belief, etc., have now no existence in this District. (6.) Adulteey. — The bona fide but erroneous belief of a husband that his wife is divorced from him does not save his intercourse with another woman from being adultery for the purpose of divorce. Simmonds v. Simmonds, 103 Mass., 572 ; Leith v. Leith, 39 N. H., 20, 30 ; McGiffert v. McGiffert, 31 Barb., 69. But the bona fide belief that she is dead does. 1 Bish. M. & D., sec. 710 ; Valleau v. VaUeau, 6 Paige, 207. See, however, Oram v. Oram, 3 Redf., 300. A woman does not commit adultery if she is ravished. 1 Bish. M. & D., 710, Or is insane at the time. Stew. M. & D., sec. 242, and cases cited. Divorce may be granted for adultery, although it had been condoned, if the guilty party be afterwards convicted of a felony. Hoflfmire v. Hoffmire, 3 Edw. (N. Y.), 173. For further notes on adultery as a ground of divorce, see sec. 7, post. (c.) Habitual Drunkenness. — Mr. Stewart (Marriage and. Di- vorce) concisely sums up the law of habitual drunkenness as a ground of divorce as follows, giving the authorities here cited; "There must be both drunkenness and a habit. Drunkenness in this sense is the effect of alcoholic liquors, not of opium. Barber v. Barber, 14 Law Reporter, 375. Nor of chloroform. 1 Bish. M. & D., sec. 813. A habit is the frequent and regular occurrence of excessive indulgence. Golding v. Golding, 6 Mo. App., 602 ; Brown v. Brown, 38 Ark., 324. Or getting drunk whenever exposed to temptation. Magahay v. Magahay, 35 Mich., 310. Or being usually drunk in business hours. Mahone v. Mahone, 19 Cal., 627. Or being drunk for twelve or fifteen days, three or four times a year for fifteen years, and being driven to drink by any excitement. Blaney v. Blaney, 126 Mass., 205." (d.) Okuelty of Tbeatment Endangeking Life or Health. — " Legal cruelty is the wilful and persistent causing of unnecessary suffering, whether in realization or in apprehension, whether of body or of mind, in such a way as to render cohabitation dangerous or un- endurable." Stew. M. &. D., sec. 263. Vices, gaming, or gross ex- travagance, might occasion great mental suffering and bodily ill- health, yet this would not conertitute cruelty. Id., sec. 264. Injuring health through ignorance is not cruelty. Shaw v. Shaw, 17 Conn., 189. But wilfully or recklessly communicating a disease, such as the itch, Ejilght V. Knight, 31 Iowa, 450 ; Chesnutt v. Ohesnutt, 28 Eng. L. & Eq., 603, or impairing wife's health by forcing her to submit to excessive sexual intercourse, Shaw v. Shaw, 17 Conn., 188, is legal cruelty. See Stew. M. & D., sec. 266. What is really injurious may depend on the party's constitution — a gentle, fragile woman will be granted a divorce when an amazon would not. Bennett v. Bennett, 24 Mich., 484; Briggs v. Briggs, 20 Mich., 34; Knight v. Knight, 31 Iowa, 451 ; David v. David, 23 Ala., 222. That may be cruelty en- dangering health if inflicted during the wife's pregnancy, which would SUPREME COURT, DISTRICT OF COLUMBIA. 4 87 not otherwiBe be so. See cases cited by Stewart, M. & D. sec. 266. Cruelty endangering life or health need not necessarily consist of physical ill treatment, "a husband may, by a course of humiliating insults and annoyances, practiced in the various forms which inge- nious malice could readily devise, eventually destroy the life or health of his wife," although such conduct may be unaccompanied by violence, positive or threatened." Butler v. Butler, 1 Parsons (Pa.), 329. And see 1 Bish. M. & D., sec. 730, a., 733, a. "The doctrine is believed to be at length in favor of this view." Id., sec. 733, a. (e.) "Wilful Dhsbetion. — Desertion is a husband's or wife's wil- fully and wrongfully ceasing to cohabit with his wife or her husband. Stew. M. & D., sec, 251 ; and ceasing to cohabit means ceasing to have a common home. Cudlip v. Cudlip, 1 Swab. & T., 229 ; Har- denberg v. Hardenberg, 14 Cal., 654 ; Belden v. Belden, 33 N. J. Eq., 94. It does not mean ceasing to have sexual intercourse, 1 Bish. M. & D., sec. 778 ; Steele v. Steele, 1 Mac A., 505 ;) for an absolute and unjustifiable refusal to allow sexual intercourse has been held not to be desertion. Steele v. Steele, supra ; Southwick v. South- wick, 97 Mass., 327. The absence must be wilful. Orr v. Orr, 8 Bush., 159; Rudd v. Rudd, 33 Mich., 101; Rogers v. Rogers, 18 N. J. Eq., 455 ; Goldbeck v. Goldbeck, Id., 42 ; Ruckman v. Ruckman, 68 How. Pr. (N. Y.), 278, 283; McClurg v. McClurg, 66 Pa. St., 366; Besch V. Besoh, 27 Tex., 390. And " wilful " means intentional, it does not imply malice. Benkert.v. Benkert, 32 Cal., 467. Absence from sickness is not wilful. Keech v. Eeech, L. R., 1 P. & D., 641. Or imprisonment. Townsend v. Townsend, L. R., 3 P. & D., 129; Porrittv. Porritt, 18 Mich., 420. See Stew. M. & D., sec. 288. Or where the facts raise a presumption of death. Bodwell v. Bod- well, 113 Mass., 314. It must be intended to be permanent. Ben- nett v. Bennett, 43 Conn., 313; Fulton v. Pulton, 36 Miss., 518, 525. And see Orr v. Orr and Ruckman v. Ruckm»n, supra. There is no desertion if the party is looking forward to a renewal of the co- habitation. Pulton V. Pulton, 36 Miss., 518, 528. As where he is ab- sent on business. Aldridge v. Aldridga, 1 Swab. & T., 88 ; Wil- liams V. Williams, 3 Id., 517. Or while there are treaties for such renewal. Rudd v. Rudd, 33 Mich., 101. If the intent does not exist at time of separation, the desertion begins, not from such time, but from the time when such intent is formed. Reed v. Reed, Wright, 224; Holston v. Holston, 23 Ala., 777; Conger v. Con- ger, 13 N. J. Eq., 286; Brinkerhoff v. Brinkerhofif, 30 Id., 132; Ahrenfeldt v. Ahrenfeldt, 1 Hoff. Ch., 47 ; Pinkhard v. Pinkhard, 14 Texas, 356. But see contra, Fitzgerald v. Fitzgerald, L. R., 1 P. & D., 694, 698 ; Cooper v. Cooper, 17 Mich., 205, 210. In such cases it gen- erally dates from some refusal of a request for cohabitation. Cross- man V. Crossman, 33 Ala., 486, 487. And once shown it is presumed to continue. Bailey v. Bailey, 21 Gratt., 43, 47. See Gray v. Gray, 15 Ala., 779, 783 ; Hall v. Hall, 4 Allen, 39. But see Grossman v. Cross- man, supra. The intent must continue the statutory period of two years, for desertion ceases with the intent to desert, WalUnson v. 488 PEACTICE AND PROCEDURE OP THE Walllnson, L. R., 1 P. & D., 93. But if the intent has once begun to exist and the statutory period to run, it does not cease because the party becomes insane. Douglass v. Doug- lass, 31 Iowa, 421 ; or is imprisoned. Hews v. Hews, 7 Gray, 279. The one who has the intent to desert, whether it be the one who leaves the matrimonial home or not, is the one who deserts, 1 Bish. M. & D., sec. 787. Thus if the husband changes his home, which he may do as often as his business, health, or comfort re- quires, Cutter V. Cutter, 2 Brewst., 511, the wife must follow; Hair. v. Hair., 10 Bish. Eq., 163, 175. If she does not she deserts him. Hardenbergh v. Hardenbergh, 14 Cal., 654; Kennedy v. Ken- nedy, 87 111., 250 ; Babbitt v. Babbitt, 69 111., 277 ; Walker v. Laighton, 31 N. H., Ill, 116; Hunt v. Hunt, 29 N. J. Eq., 96; Mayer v. Mayer, 30 Id., 411. On the other hand, if she undertakes to change their home, and he will not follow, she deserts him. See Frost v. Proat, 17 N. H, 251, 253. But it is not an arbitrary power which the hus- band may exercise in these matters, he must exercise reason and dis- cretion in regard to them. Powell V. Powell, 29 Vt., 148; Harden- bergh V. Hardenbergh, 14 Cat., 654, 656 ; Boyce v. Boyce, 23 N. J. Eq., 337, 348; Bishop v. Bishop, 30 Pa., 412; Gleason v. Gleason, 4 Wis., 64. Thus he cannot compel his wife to go where her health and com- fort will be jeoparded. Powell v. Powell, and Gleason v. Gleason, supra ; and the wife has been justified in refusing to live with the husband's relations. Powell v. Powell, supra; and in refusing to follow him from a foreign country. Bishop v. Bishop, 30 Pa., 412. But a husband's ante nuptial promise that he will live with or near his wife's family is a nullity, and his wife must, nevertheless, follow him if he moves away. Hair v. Hair, 10 Rich. Eq., 163, 175. On this principle of intent it is held that if a man without justification makes his wife unwillingly leave him, whether he accomplishes this by force or by fraud, he desertsher. Stew. M. &D., sec. 255. Aswhere his conduct is cruel and outrageous, though not amounting of itself to a cause for divorce. Lyster v. Lyster, .111 Mass., 327, and see the cases cited to note 10, sec. 257, of Stew. M. & D. Bishop, 1 M. & D., 796, thinks such a justification is bad law. "The solution of the difiiculty," says Stewart, note 4. sec. 257, "seems to be in limiting this rule to conduct from Which the husband's desire to get rid of her may be inferred." But a wife may not leave her husband be- cause he will not sleep with her. Reid v. Reid, 21 IsT. J. Eq., 331 ; Bshbach v. Eshbach, 23 Pa, St., 343. Nor is the denial of sexual inter- course by the wife a ground for divorce under our statute. Steele v. Steele, 1 Mac A., 505. But it seems per Oartter, Oh. J., that such de- nial continued for two years might be treated by the court as a de- sertion. Id. But it is not a justification to the wife to leave the hus- band because he does not support her. Skean v. Skean, 33 N. J. Eq., 148 ; Bennett v. Bennett, 43 Oonn., 313. For refusal to support is not of itself desertion. See Palmer v. Palmer, 22 N. J. Eq., 88; Lewis v. Lewis, 6 Id., 94, 98. On the other hand it is to be noted that our stat- ute uses the words "desertion aTid abandonment" as if they were not SUPREME COtTRT, DISTRICT OF COLUMBIA. 489 Bynonymoua words, (else why use both?) so that it would seem that if the husband wilfully refuse for the statutory period to live with his wife, though he provide for her support in the meanwhile, it may be desertion," Magrath v. Magrath, 103 Mass., 577, but not " desertion and abandonment." See, however, McDonald v. McDon- ald, 4 Swab. & T., 242; Goldbech v. Goldbech, 18 N. J. Eq., 43; Sar- gent V. Sargent, 36 Id., 645. Nor Will the wife be justified in leaving because the husband gam- bles. San^ford v. Sandford, 32 N. J. Eq., 420. Or because he is poor. Palmer v. Palmer, 22 N. J. Eq., 88. Or will not live with her father. Mayer v. Mayer, 30 N. J. Eq., 411. Or allow her son to visit her. Fulton v. Pulton, 36 Miss., 517. Or is charged with and guilty of crime. Foy v. Foy, 13 Ind., 96. Or because she fears having too many children. Leavitt v. Leavitt, Wright, 719. And though the wife leave without justification, if she afterwards offer to return and the husband refuses to receive her, it is the hus- band who deserts. See English v. English, 6 U. 0. Chan., 580 ; Hau- berry v. Hauberry, 29 Ala., 719 ; Fellows v. Fellows, 31 Me., 342. Grove v. Grove, 37 Pa. St., 443 McQahay v. Williams, 12 Johns., 293. So, if the wife refuse to receive the husband. Walker v. Laighton 31 N. H., Ill, 117. So, if the parties have been separated for cause and the cause (intemperance) is removed, but one of them declines to renew the cohabitation, such one is the deserter. Hills v. Hills, 6 Law Eeporter, 174. And whenever the only ground of complaint is desertion, an unconditional and bona fide offer to renew the co- habitation, made by the deserting party before the expiration of the statutory period, throws the responsibility on the other party. Mes- senger V. Messenger, 56 Mo., 335; McClurg v. McOlurg, 66 Pa. St., 373 ; Hauberry v. Hauberry, 29 Ala., 719 ; Benhert v. Benhert, 32 Cal., 467 ; Gaillard v. Gaillard, 23 Miss., 152 ; Basing v. Basing, 3 Swab. & T., 516 ; Hankinson v. Hankinson, 33 N. J. Eq., 66, 90 ; Friend v. Friend, Wright, 639. Continuity of the Desertion. — As to the continuity of the "uninterrupted space of two years," it has been held that a single night of intercourse during the period of the wife's persistent refusal to make her home with her husband did not break the continuity of her desertion. Kennedy v. Kennedy, 87 111., 250, 254. So, it has been held that the husband's offer to take the wife back to his home but not his bed is not an offer to renew cohabitation. Fishli T. Fishli, 2 Litt., 341. But see Steele v. Steele, 1 Mac A., 605. The statutory period does not run as long as the complainant consents to the separation. Grow v. Crow, 23 Ala. ; Stew. M. & D., sees. 251, 256. Or while the separation is due to the complainant's fault. Bowlby V. Bowlby, 25 N. J. Eq., 406. If cohabitation is renewed for a time and then discontinued, the periods before and after the re- newal cannot be added together. Aldridge v. Aldridge, 1 Swab. & T., 88 ; McCraney v. McCraney, 5 Iowa, 232 ; Gaillard v. Gaillard, 23 Miss., 152. But cbhabitation cannot be renewed while the intent to desert continues. See Stew. M. & D., sec. 254. Rie v. Rie, 34 Ark., 62 490 PEAOTICE AND PEOCEDtTEE OF THE 39 ; Kennedy v. Kennedy, 87 111., 250. Thus, a wife's occasional re- turn to the house of her husband to look after the children and attend to domestic duties, she intending all the while not to renew cohabita- tion, does not break the course of the desertion. Bie v. Rie, 34 Ark., 37. Nor under the same circumstances does sexual intercourse. Kennedy v. Kennedy, 87 111., 250, 254. A bona flde unconditional offer to return interrupts the running of the statutory period. Brookes v. Brookes, 1 Swab. & T., 326. Gaillard v. Gaillard, 23 Miss., 152 : Walker v. Laighton, 31 N. H., 117 ; Friend v. Friend, Wright, 639. Consent to Sbpabation. — Where both parties consent to the sep- aration it is not desertion in either. Secor v. Secor, 1 Mac A., 630 ; Stew. M. & D., sec. 256, and cases cited. But either party may re- voke such consent. And if the other party refuses to renew cohabi- tation it is desertion on the part of the latter. Id ; Crow v. Crow, 23 Ala., 583 ; Hankinson v. Hankinson, 33 N. J. Eq. See Cunning- ham V. Irwin, 7 Serg. & E., 247 ; McAllister v. McAllister, 10 Heisk., 345 ; Conger v. Conger, 13 N. J. Eq., 386. The consent need not be expressed ; it may be inferred from conduct. Gray v. Gray, 15 Ala., 779, 784 ; Gellinwaters v. GeUinwaters, 28 Mo., 60. Thus it is consent when a husband has acted as one who wished his wife to stay away from him long enough to convert their separation into a legal ground for divorce. Cornish v. Cornish, 23 N. J. Eq., 208. And see on this point Stew. M. & D., sec. 256 ; 1 Bish. M. & D., sec. 805, b. 4. Causes for which a Divorce from Bed and Board may be Granted. — A divorce from bed and board may be granted for either of the foUlowing causes, namely : First. Cruelty of treatment, endangering the life or health of one of the parties. Second. Reasonable appreheiasion, to the satisfaction of the court, of bodily harm. E. S. D. C, sec. 739. Notes. — A reasonable apprehension of injury is suflScient ; the court is not to wait until the hurt is actually done. Stew. M. & D., sec. 268. Threats and menaces, from which danger to health and hfe may be apprehended, constitute cruel and inhuman treatment. Kennedy v. Kennedy, 73 N. Y., 369 ; Powelson v. Powelson, 22 Oal., 358. But meaningless threats, not intended to be executed, and so understood by the party threatened, are not sufflcient. Cour- sey V. Coursey, 60 111., 186 ; Close v. Close, 24 N. J. Eq., 338 ; Bremig V. Meitzler, 23 Pa. St., 156, 161 ; Shell v. Shell, 2 Sneed, 716, 728. 5. Limitation when Cause of Complaint Occurred out of the District. — No divorce shall be granted for any cause which shall have occurred out of the District, unless the party applying for the same shall have resided within the District for two years next preceding the application. E. S. D. C, sec. 740. Notes. — Where the cause complained of as a ground for divorce StrPUEME COTJET, DISTEIOT OF COLtTMBlA. 491 occurred in the District,, and the party complained of resides here, this court has jurisdiction to grant a divorce, although the petitioner is a non-resident. Smith v. Smith, 4 Mackey, 255. But where both the parties are domiciled elsewhere, and are not and never were resi- dents of this District, the court has no jurisdiction, although the cause (adultery) occurred in the District. In such a case the party complaining must have been a resident in this jurisdiction at least two years. Hatfield v. Hatfield, XI Wash. Law Rep., 627. 6. Allegations of the Petition. — The petition for a divorce shall specify the causes therefor with certainty. E. S. D. C, sec. 733. Notes. — Pabties. — Usually the husband and wife are the only neces- sary parties. Infants old enough to marry may sue in th^ir own names, and not by guardian as in other cases. Besore v. Besore, 49 Ga., 378 ; Jones V. Jones, 18 Me., 308 ; Zyclinski v. Zyclinski, 2 Swab. & T., 420. So a spendthrift, though having a guardian, must sue in his own name. Richardson v. Richardson, 50 Vt., 118. The reason is that the right to sue for divorce is a personal right exclusively, which can only be asserted by the party injured. Worthy v. Worthy, 36 Ga., 45 ; Bradford V. Abend, 89 111., 79. Hence an insane person can- not bring a suit for divorce. Stew. M. & D., sec. 324. Third per- sons may be made defendants where property rights are involved, as to set aside a fraudulent conveyance of the defendant's property. Stew. M. & D., sec. 326 ; Feigley v. Feigley, 7 Md., 537. In nullity suits the rules as to parties are different, because different reasons prevail. The object of a nullity suit is not to dissolve a marriage, but to declare an invalid marriage void. Stew. M. & D., sec. 328. The parties not being married the woman is not under the disability of coverture, and sues as " Greenstreet, falsely called Cumins," 2 Phillim, 10; 1 Eng. Bcc, 165, and is sued as "Ruding v. Smith, falsely calling herself Ruding." 2 Hogg, Const., 371; 4 Eng. Ecc, 551. Hence if an infant, she sues by guardian and defends by guardian ad litem. Crump v. Morgan, 3 Ired. Eq., 91 ; Wood v. Wood, 2 Paige, 108. So the guardian or committee of a lunatic may have such lunatic's marriage declared void. See cases cited in Stew. M. & D., sec. 328. Allegations of the Petition. — The bill or petition must allege every fact the existence of which is necessary to the granting of the divorce. Pate v. Pate, 6 Mo. App., 49 ; Wright v. Wright, 6 Texas. It must set forth substantially in the terms of the statute all the facts necessary to give the court jurisdiction over the parties. Rie V. Rie, 34 Ark, 37, 42 ; Trubee v. Trubee, 41 Conn., 40 ; Pinckney v. Pinckney, 4 Greene, 324 ; Walton v. Walton, 32 Barb., 203. And the subject-matter, such as the specified cause for the divorce. Kimball v. Kimball, 13 N. H., 222 ; Schlichter v. Schlichter, 10 Phila., 11. It should pray specifically for the relief desired and generally for such further relief as the case may require. Darrow v. Darrow, 43 Iowa, 411; Zule v. Zule, 1 N. J. Bq., 96 ; Walton v. Walton, 32 Barb., 203; 492 PEAOTIOE AND PEOOEDTJEE OE THE Hausley v. Hausley, 10 Id., 506. But a prayer for divorce does not cover a prayer for nullity. Zule v. Zule, supra. Final alimony is an incident of divorce and need not necessarily be prayed. Pres- cott V. Prescott, 59 Me., 146 ; Darrow v. Darrow, 43 Iowa, 411. And see Jackson v. Jackson, 1 Mac A., 34 ; reversed in 91 U. S., 122, but not on this point. The usual practice, however, is to include such a prayer if final alimony is desired. If alimony pendente lite is de- sired it should be prayed for. Russell v. Russell, 69 Me., 336. So of counsel fees. Wood v. Wood, 2 Paige, 108; and custody of children, pendente lite. Green v. Green, 52 Iowa, 403. An injunction to pre- vent alienation of property. Peigley v. Peigley, 7 Md., 537. But a supplemental bill will remedy the defect. See Supplemental Bills, infra. The bill must be signed by the complainant in person. Daniels v. Daniels, 56 N. H., sec. 219, and likewise be sworn to. Rule 95, infra. Joining Causes oe Grounds foe Divoece. — Two or more causes for the same kind of divorce may be joined in the bill ; but cause for limited divorce and causes for absolute divorce cannot be joined. McDonald v. McDonald, 1 Mich., N. P., 191. Decamp v. Decamp, 2 N. J. Eq., 294 ; Snover v. Snover, 10 Id., 261. Beach v. Beachi, 11 Paige, 161. And a suit for other relief connected with the dissolu- tion of the marriage, and the awarding of marriage property, may be maintained. Norris v. Norris, 27 Ala., 519 ; Feigley v. Peigley, 7 Md., 537. See Stew. M. & D., sees. 326 and 333. Amendments and Supplemental Bills. — The bill may be amended. Strait v. Strait, 3 Mac A., 415 ; Harrington v. Harrington, 107 Mass., 329, 334 ; Whipp v. Whipp, 54 N. H., 580 ; Mix v. Mix, 1 Johns. Oh., 204 ; Grove v. Grove, 37 Pa. St., 443. So may the prayers. Ashley v. Ashley, 2 Swab. & T., 388 and cases supra cited as to amendments. A supplemental bill may be filed asking further relief Feigley v. Feigley, 7 Md. , 537, 560. Or covering matters which have occurred since the filing of the original bill. Steele v. Steele, 35 Conn., 48, 53-55 ; Strong v. Strong, 3 Rob., (N. Y.), 669 ; Feigley v. Feigley, supra. 7. — In Case of Adultery. — IsTo divorce shall be granted for adultery unless the petition, duly verified, charge that the adultery was committed without the consent, connivance, privity, or procurement of the petitioner, and that, after dis- covery of the offence, the petitioner has not voluntarily co- habited with the defendant. Eule 91. Notes. — See note (&) to section 3, supra. Adultery must be alleged as adultery. Trubee v. Trubee, 41 Conn., 36. "That the defendant committed adultery," is suflacient. Hawes v. Hawes, 33 111., 286, "Living in adultery" is objectionable, because too broad, andrequires greater proof. Marble v. Marble, 36 Mich., 386. So are the words, "common prostitute." Dismukes v. Dismukes, 1 Tenn. Ch., 266. The name of the particeps criminis must be given when known, and SUPREME COTJRTj DISTRICT OF OOLUBMIA. 493 if not, that fact should be stated. Germond v. Qermond, 6 Johns. Oh., 347; Woodv. Wood, 2 Paige, 108; Church v. Church, 3 Mass., 157; Richards v. Richards, Wright, 302; Blaclc v. Black, 12 0. E. Green, 664, sec. 2 ; Bish. M. & D., sec. 604. Time and place should be given. Porter v. Porter, 3 Swab. & T., 596 ; Wood v. Wood, 2 Paige, 108; Dunn v. Dunn, 11 Mich., 284. And ifthese are unknown, it must be so stated, although in all cases the charge must be suffi- ciently specific to enable the defendant to meet it. Wood v. Wood, gupra ; Trubee v. Trubee, 41 Conn., 36. A general allegation, how- ever, is sufiBcient, if founded on defendant's pregnancy without ac- cess of complainant. Durant v. Durant, 1 Hagg. Ecc, 733, or Ve- nerial Disease. Clark v. Clark, 7 Rob. (N. Y.), 276 ; Johnson v. John- son, 14 Wend., 637. See 2 Bish. M. & D., sec. 610. "If you plead a long duration of time, during which a constant and habitual inter- course took place, that is sufflcient without pleading specific facts ; If you plead circumstances showing that the intercourse was limited, or of short duration, then you must plead the facts specifically." Graves v. Graves, 3 Curt. Ecc, 235, 241. But the defendant by an- swering waives a general allegation. Adams v. Adams, 6 Pick., 254. Proof of Adultery. — Proof of other times and places than those alleged cannot be objected to unless the defendant be taken by sur- prise. 2 Bish. M. & D., sec. 608. But not of the act with other per- sons. Adams v. Adams, 20 N. H., 299 ; Germond v. Germond, 6 Johns. Oh., 347; Washburn v. Washburn, 5 N. H., 195; Prince v. Prince, 10 0. E. Green, 310; 2 Bish. M. & D., sec. 609. If more than one act with the alleged particeps can be proved it is safer to do so, because it cannot be known how the court will regard the evidence, or what facts will be brought against it. 2 Bish. M. & D., sec. 612. But however many acts be alleged only one need be proved. Rich- ardson V. Richardson, 1 Hagg. Ecc, 6. The evidence must be "clear, positive, and satisfactory." Id., sec. 613. Being a crime of dark- ness and secrecy it may be proved by circumstantial evidence. Id. Matehin v. Matchin, 6 Barr, 332. Richardson v. Richardson, 4 Por- ter, 467; Mosser V. Mosser, 29 Ala., 313; Inskeep v. Inskeep, 5 Iowa, 204; Marble v. Marble, 36 Mich., 386; Chestnut v. Chestnut, 88 111., 548. The circumstances, however, "must be such as would lead the guarded discretion of a reasonable and just man to the conclusion." Lavender V. Lavender, 2 Hagg. Const., 1. This may be considered a leading case upon the evidence of adultery. Bish. M. & D., sec. 614. And see cases just above cited. See also Mulock v. Mulock, 1 Edw. Ch., 14; Day v. Day, 3 Green Ch., 444; Rix v. Rix., 3 Hagg. Ecc, 74; Cadogan v. Cadogan, 2 Hagg. Const., 6. The adultery is es- tablished where the facts are such that, taken together, they must lead to inference of guilt, although separately they would not. Bish. M. & D., sec. 615 ; Grant v. Grant, 2 Curt. JEcc, 15. Thus, though opportunities alone are not enough. Freeman v. Freeman, 31 Wis., 235, 242; Larrison v. Larrison, 20 N. J., Eq., 100, nor mere scandal, Soper V. Soper, 29 Mich., 305; Oversheet v. State,, 4 Miss., 328, nor 494 PRACTICE AND PEOCEDUEE OE THE suspicious circumstances, State v. Crowley, 13 Ala., 172, yet all together may be. Cases above cited. On the other hand the court may refuse to believe a witness testi- fying to the very fact of adultery where there are no circumstances to justify its probability. Alexander v. Alexander, 2 Swab. & T., 95, 101 ; Berckmans v. Berckmans, 1 0. B. Green, 122 ; Larrison v. Larrison, 5 Id., 100; Bray v. Bray, 2 Halst. Ch., 506, 628; Sopwith V. Sopwith, 4 Swab. & T., 243. Such proof should therefore be ac- companied with evidence to support its probability, such as the withdrawal of accused party's affection. Oaton v. Caton, 13 Jur., 431. Expressions of dislike. Croft v. Croft, 3 Hagg. Ecc, 310. Ex- pressed wish to be rid of complainant. See Bray v. Bray, 6 N. J, Eq., 509, 510, 628, 630. Desertion. Kenwick v. Kenwick, 4 Hagg, Ecc, 138. Oaton V. Oaton, 13 Jur., 431. Cruelty. Cocksedge v. Cock- sedge, 1 Rob., sec. 95. See also Beach v. Beach, 11 Paige, 161; Mu- lock V. Mulock, 1 Edw. Oh., 17. Familiarities with particeps prior, concurrent or subsequent to the act. State v. Wallace, 9 N. H., 517 ; State V. Marvin, 35 N. H., 28; Thayer v. Thayer, 101 Mass., 111. That husband and wife were on bad terms. Caton v. Caton, supra. Adultery may also be proved by showing birth of child and non-ac- cess of husband. Oaton v. Oaton, 13 Jur., 431. Or venereal disease too long after marriage to have been caused before. Popkin v. Pop- kin, 1 Hagg. Ecc, 765 ; Mount v. Mount, 15 N. J. Eq., 162. But that having venereal disease is consistent with accident or catching it from spouse, see Oollett v. CoUett, 1 Curt. Ecc, 686 ; Cook v. Cook, N. J. Eq., 475 ; Stone v. Stone, 3 Notes Cas., 278. Defences. — See Rule 97, supra. Among the defences to a divorce on the ground of adultery are connivance or consent. Cairns v. Cairns, 109 Mass., 408 ; Herrick v. Herrick, 31 Mich., 194 ; Hedden v. Hedden, 21 N. J. Eq., 74 ; Stew. M. & D., sees. 297-301. Collusion, or plaintiff's agreement that the adultery should be committed in order to obtain a divorce. Sickles v. Carson, 26 N. J. Eq., 440 ; Stew. M. & D., sees. 302-306. Condonation. Farnham v. Farnham, 73 111., 497 ; Wagner v. Wagner, 6 Mo. App., 572 ; Stew. M. & D., sees. 307- 312. Recrimination. Wilson v. Wilson, 40 Iowa, 230 ; Handy v. Handy, 124 Mass., 324 ; Stew. M. & D., 313-317. Lapse of time' Stew. M. & D., sees. 318-320. Ravishment. 1 Bish. M. & D., 710. Insanity. Wray v. Wray, 19 Ala., 532 ; and 32 Id., 187 ; Bradstreet V. Bradstreet, 7 Mass., 474 ; Nichols v. Nichols, 31 Vt., 331. But see Matohin v. Matchin, 6 Pa. St., 332. Bona fide belief that plaintiff is dead. 1 Bish., sec. 710. Valleau v. Valleau, 6 Paige, 207. But not such belief that a divorce has been granted. See 1 Bish. M. & D., sec 710> 8. —Where Petitioner was nnder Age of Consent.— If the suit be for nullity of marriage on the ground that the petitioner teas under the age of consent at the time of the marriage, it shall be averred in the bill that tlie parties thereto have not volun- tarily cohabited as man and wife after the petitioner attained such age. Eule 92. DISTRICT OF COLUMBIA. 495 Note. — The common law age of consent is in force in this District ; that is to say, males under the age of fourteen and females under the age of twelve. 9. — Where Petitioner's Consent was Procured by Fraud. — If the suit be for nullity of marriage on the ground that the peti- tioner's consent was procured by fraud, it must be averred in the petition that there has been no voluntary cohabitation be- tween the parties as man and wife after knowledge of such fraud. Eule 93. Notes. — Consent is not said to be procured by fraud because of merely false representations as to character, health or fortune. Reynolds v. Reynolds, 3 Allen, 605 ; Carris v. Carris, 24 N. J. Eq., 516 ; Long v. Long, 77 N. C, 304, Or that a divorced wife is dead. Clarke v. Clark, 11 Abb. Pr., 228. Or pretences of affection. Ben- ton V. Benton, 1 Day, 113. Nor the mere assumption of a false name Clowes V. Jones, 3 Curt. Ecc, 185. But see Rex v. Benton, 3 Maule & S., 537. Nor concealing ante-nuptial unchastity. Farr v. Farr, 2. Mae A;, 35 ; Leavitt v. Leavitt,- 13 Mich., 452. But these if practiced upon a person of weak mind. Portsmouth v. Portsmouth, 1 Hagg. Ecc;, 355 ; Harford v. Morris, 2 Id., 433 ; Browning v. Reane, 2 Phellim, 89, or extreme youth, Lyndon v. Lyndon, 69 111., 43 ; Hull v. Hull, 6 Eng. L. & Eq., 589, especially if there has been no consummation, Lynden v. Lynden, supra ; Robertson v. Cole, 12 Texas, 356, will be ground for declaring the marriage null and void. See 1 Bish. M. & D., sees. 166, 169-172, 192, 196, 199. So where a felon by assum- ing a false name and character induces a woman to marry, and she repudiates the marriage before consummation. Rex v. Benton, 3 Maule & S., 537 ; Heffer v. Heffer, 3 Id., 265. And though conceal- ing ante-nuptial unchastity has been held not to render the mar- riage voidable for fraud, see Farr v. Farr, supra, and 1 Bish. M. & D., sec. 179, yet concealing pregnancy by another does. Baker v. Baker, 13 Oal., 87 ; Ritter v. Ritter, 5 Blackf., 81 ; Frith v. Frith, 18 Ga., 278 ; Carris v. Carris, 24 N. J. Eq., 516. But it is not fraud if the pregnancy is by the man she marries, nor if he has been put on his guard as to her virtue by ante-nuptial connection with her. Foss v. Fobs, 12 Allen, 26 ; Crehore v. Crehore, 97 Mass., 330. Nor if she by falsely pretending to be pregnant by him induces him to marry her. Hoflftnan v. Hoffman, 30 Pa. St., 417. Nor that she had given birth to an illegitimate child, where the husband was informed of the fact previous to the marriage. Farr v. Farr, 2 Mac A., 35. DuHBSS. — Marriage under compulsion invalidates the marriage. Willard v. Willard, 6 Baxt, 297; Bassett v. Bassett, 9 Bush., 696; Pyle V. Pyle, 10 Phila.; Collins v. Collins, 2 Brewst., 515. But mere unwillingness is not sufQcient if not forced by fear of bodily harm. Stevenson v. Stevenson, 7 Phila., 387. Or to get free from unlawful imprisonment. Johns v. Johns, 44 Tex., -40. Nor is it duress when a man marries the woman he has seduced to avoid prosecution. 496 PEAOTICE AND PEOCEDUEE OP THE Williams v. State, 44 Ala., 24 ; Hounett v. Hounett, 33 Ark., 156 ; Sickles V. Corson, 26 N. J. Eq., 440 ; Scott v. Shufeldt, 5 Paige, 43. Or to be freed from lawful imprisonment. Johns v. Johns, 44 Tex., 40. And see 1 Bish. M. & D., sec. 212. For a precedent of a petition to annul a marriage on ground of duress and the decree, see 1 Bish. M. & D., sec. 213. 10. — Where the Marriage was Contracted during Peti- tioner's Lunacy. — If the suit be for nullity of marriage on the ground of petitioner's lunacy, it must be averred in the petition that the lunacy still continues, or that the parties have not cohabited since the petitioner's restoration to reason. Eule 94. Notes. — A sane party marrying a lunatic in good faith, and in ignorance of the infirmity may also complain. Banker v. Banker, 63 N. Y., 409 ; Rathbum v. Rathburn, 40 How. Pr., 328. Insanity arising after marriage is not a ground for divorce. Hamaker v. Hamaker, 18 111., 139 ; Baker v. Baker, 82 Ind., 146. Nor insanity previous to marriage where more than thirty years had elapsed since the marriage and a family of children have grown up. Secor v. Se- cor, 1 Mac A., 630. 11. Verification of the Petition.— All petitions for divorce, of either kind, or for nullity of marriage, must be verified in the mode prescribed in Eule Eighty-eight. Eule 95. See ante, p. 357, sec. 8. 12. Filing the Petition and Issuing Summons. — Upon the pe- tition being filed, the clerk shall issue summons for the de- fendant to appear and answer. E. S. D. C, sec. 734. 13. Answer of the Defendant. — The defendant in the answer may set up the adultery of the petitioner, or any other matter, which would be a bar to a divorce or annulment of the mar- riage ; and if an issue be taken thereon it shall be tried at the same time, in the same manner, as the other matters of the cause. Eule 97. Notes.— It will be observed that, although the petition must be sworn to by the complainant, Rule 95, supra, sec. 11, there is no rule or statute requiring the answer to be sworn to, and, though it is usual so to do, it cannot be made a ground of objection if it is not. Mosser v. Mosser, 29 Ala., 313 ; MuUer v. Muller, 1 N. J. Eq., 386 ; Smith V. Smith, 4 Paige, 92 ; Perry v. Perry, 2 Barb. Ch., 285. The reason is that it cannot be used as evidence. Richm ond v. Richmond, 10 Yerg., 343 ; Latham v. Latham, 30 Gratt., 307. And since the fact that the defendant fails to deny, or even admits, the allegations of the bill, does not relieve the complainant of the necessity of proving the case, R. S. D. 0., sec, 737, supra, sec. 17, the only effect of an answer denying the allegation of the petition, is to put the complain- STIPEEME COtTKT, DISTRICT OE COLUMBIA. 497 ant upon greater proof than might otherwise be necessary. See 2 Bish. M. & D., sec. 282. Nor will a defendant be held to such strict rules in making his defence as a complainant will be in making out his or her case. The default of the defendant cannot avail if proof be lacking. Powell v. Powell, 53 Ind., 513 ; Schmidt v. Schmidt, 29 N. J. Eq., 496 ; Edmond v. Edmond, 57 Pa. St., 232 ; Evans v. Evans, 1 Swab. & T., 328. The only effect of a default therefore is to de- prive the defendant of the right to claim alimony or costs. Scott v. Scott, 17 Ind., 309 ; Rouse v. Rouse, 47 Iowa, 422 ; Perry v. Perry, 2 Barb. Oh., 285. Or oppose alimony or costs. Graves v. Graves, 2 Paige, 62. But upon the main question, even after default, he may be present at the taking of proof and cross-examine the witnesses. Perry V. Perry, 2 Barh. Ch., 285. But he cannot introduce any evi- dence save as anvicus curice. See Lewis v. Lewis, 9 Ind., 105 ; Masters v. Masters, 34 D. J. Mat. Gas., 7 ; Olay v. Clay, 21 How., 609 ; Stearns V. Steams, 10 Vt., 540. Hence it has been held that though the an- swer consists of a mere general denial, yet any defence may probably be made. See Backus v. Backus, 3 Me., 136; Shackett v. Shackett, 49 Vt., 195 ; Seckles v. Carson, 26 N. J. Eq., 440. But in Lewis v. Lewis, 9 Ind., 105, tlie rule is doubted. Cross Bill. — Besides his answer the defendant may file a cross bill, and, setting up the proper allegations, pray for a divorce. Jack- son V. Jackson, 1 Mac A., 34 ; s. c, 91 U. S., 122 ; Vincent v. Vincent, SMackey, 320. See 2 Bish. M. c& D., sec. 319. And the bill and cross bill will be heard at the same time. Id. The cross bill must allege the grounds of complaint with the same particularity required of a bill, Moores v. Moores, 16 N. J. Eq., 275 ; Burr v. Burr, 2 Edw. Ch., 448, including jurisdictional facts. Coulthurst v. Coulthurst, 58 Cal., 239. Non-residents have been allowed a divorce on a cross bill. And see Smith v. Smith, 4 Mackey, 255, where a non-resident was allowed to maintain a bill for divorce, the defendant residing here and the cause (adultery) occurring here. See Leseur v. Leseur, 31 Barb., 330 ; Sterl v. Sterl, 2 111. App., 223 ; Jenness v. Jenness, 24 Ind., 355. As in other equity causes the bill must be answered before a cross biU can be filed. Allen v. Allen, 1 Hemp., 58. The cross bill may set up matters occurring since the filing of the bill. Wilson v. Wilson, 40 Iowa, 230. The complainant cannot proceed until the cross bill is answered. Leslie v. Leslie, 11 Abb. Pr., IT. S., 311. See Ohesnut v, Ohesnut, 88 111., 548 ; Armstrong v. Armstrong, 27 Ind., 186. And it has been held that if plaintiff dismisses the bill after the filing of a cross bill, the latter may nevertheless be prosecuted. Schira v. Schira, Law Rep., 1, P. & M., 466 ; Owen v. Owen, 54 Ga., 526 ; Mus- selman v. Muselman, 44 Ind., 106 ; Campbell v. Campbell, 12 Hunn (N. Y.), 636. Although this has been denied. Stoner v. Stoner, 9 Ind., 505. And see ante, p. 404, sec. 12. 14. Non-resident and Absent Defendants, How Notified.— If it shall appear by the affidavit of a disinterested witness that the defendant is a non-resident of the District, or has been absent 63 498 PEAOTICB AND PEOCEDUEE OF THE therefrom. for tlie space of six months, the court, after the re- turn of one summons not found, may authorize notice of the pendency of the petition, to be given by publication, in such manner as it shall direct. E. S. D. G., sec. 735. See rule be- low. 15. Provisions of Rule Eigbty-nine as to such Notice.— When the defendant to a suit for divorce of either kind, or for nul- lity of marriage, is returned not found, and is shown to the satisfaction of the court to be a non-resident, or to have been absent from the District of Columbia for the space of six months, the court shall grant an order of publication, stating the object and grounds of the apj)lication, which shall be pub- lished in the Washington Law Eeporter, and in such news- paper or newspapers in the city of Washington as the court shall designate, for three successive weeks, such number of times in each week as the court shall direct; and a copy of the petition shall be sent by mail by the clerk, on or before the first day of publication aforesad, addressed to the defendant at his or her last known place of abode, (which shall be stated in the petition and in the affidavits of a disinterested witness,) and the mailing of such copy shall be certified by the clerk of the court. Eule 89. Notes. — Strict compliance with the order of court, Smith v. Smith, 4 Greene, Iowa, 266, and with the statute is essentiaL Atkins v. Atkins, 9 Neb., 191 ; Hafern v. Davis, 10 Wis., 501; Stone v. Stone, 1 Stew. Ch., 409 ; Fontaine v. Houston, 58 Ind., 316 ; Bradley v. Jame- son, 46 Iowa, 68. A slight variance of names has been held a good objection. Jenne v. Jenne, 7 Mass., 94. There is a seeming conflict between the provisions of section 787, R. S. D. 0., and that of section 735, above given, which has not as yet been passed upon by this court. Section 787 provides that "pub- lication may be substituted for personal service of process upon any defendant who cannot be found, in suits for partition, divorce," etc. This statute was of course meant to meet the case of a defendant who, though not a non-resident, secretes himself for the purpose of avoiding personal service. Section 735, however, makes no provi- sion for such a contingency. It merely provides for substituted ser- vice in two cases, that is where it appears " by the aflldavit of a dis- interested witness that the defendant is (1) a non-resident of the District, or (2) has been absent therefrom for the space of six months." But inasmuch as there is nothing in that section which forbids service by publication in the case of a resident defendant who, for any reason cannot be found, while, on the other hand, sec- tion 787 expressly allows it, it is difficult to see why substituted service may- not be had in such a case, notwithstanding there is no SUPREME COtTET, DISTRICT OF COLUMBIA. 499 provision therefor in either the statutes or the rules of court which relate immediately to divorce matters. In a case in Texas involv- ing a similar question, it was held that a statute allowing publica- tion in all cases covers divorce suits. Hare v. Hare, 10 Tex., 355. So where publication is part of the equity practice, and jurisdiction for divorce is given to equity courts (as in this District) it has been held that publication may be had as in other equity cases. Law- rence V. Lawrence, 73 111., 577. And see McJunkin v. McJunkin, 3 Ind., 30; Gilruth v. Gilruth, 20 Iowa, 225; Lewis v. Lewis, 15 Kan., 189; Plummer v. Plummer, 37 Miss., 185; Smith v. Smith, 20 Mo., 166; O'Connell v. O'Connell, 10 Neb., 390. Substituted service gives no personal' jurisdiction. The court can act only on the rem, viz., the marriage. Upon this subject it is said ; "So far as a divorce suit relates to alimony, or costs or a prohibi- tion against re-marriage, it is a proceeding in personam. So far as it relates to the custody of the children it seems to be a proceeding in rem. Jurisdiction to pass a decree in personam is obtained only by due service upon the defendant within the State, or by his volun- tary appearance. Jurisdiction to pass a decree in rem exists over anything fixed in the State, and notice by publication to the party concerned is rather to exclude suspicions of secrecy, than to meet a necessity of service upon such party. As a result, if both parties are domiciled in the State, its courts have jurisdiction to dissolve their marriage without actual service upon the defendant ; if one only is so domiciled, the jurisdiction extends only to dissolve the mar- riage of such one, and the other, in spite of the divorce, may like- Wise obtain a divorce in his State dissolving his part of the marriage, may be convicted of bigamy if he marries on the strength of the other's divorce, and may perhaps claim marriage rights in property not situate in the State granting the other's divorce. So if the defendant is personally summoned or voluntarily appears, and not otherwise, can a court pass a decree against him for alimony or costs or to prevent his marrying again?" Stew. M. & D., sec. 217, and numerous cases there cited. 16. When Cause may be Heard in Default of Defendant's Ap- pearance.^ — ^The court shall proceed to hear and determine such cause, whenever such summons shall have been served twenty days, or such publication made forty days before the commencement of the term. R. S. D. C, sec. 736. Notes. — What is exactly meant by the above section has not been determined by any reported decision. Is it intended that the pub- lication shall be inserted in some newspaper forty times, or only that forty days must elapse between the last day of publication and the commencement of the term ? The latter, if not the true construc- tion, is, at least, the only one which can be reconciled with the pro- visions of Equity Bule 89, supra. Thus the period of time as pre- scribed by the rule, during which publication must be made, is *'three successive weeks," but the notice need only appear "such 500 PEACTICE AND PEOCEDTJEE OF THE number of times in each week as the court shall direct." This pro- vision would of course be in direct conflict with the statute, and con- sequently, void, if the latter is to be construed as meaning that the publication is to appear for each of forty different days. It would seem, therefore, that Rule 89 must be taken as an authoritative expression by the general term, that the meaning of this somewhat ambiguous section of the statute is that forty days at least must elapse between the last day of the " three successive weeks " and the commencement of the term at which the case is heard. 17. No Divorce to be Granted without Proof— Admissions in Answer not Evidence. — ^o Judgment for a divorce shall be ren- dered on default without proof ; nor shall any admissions con- tained in the answer of the defendant be taken as proof of the facts charged as the ground of the application, but the same shall in all cases be proved by other evidence. E. S. D. C, sec. 737. 18. How Proof to be Taken. — In all suits for divorce of either kind, or for nullity of marriage, the court shall order a refer- ence to an examiner or commissioner to take proof of all material facts ; but in no case shall such reference be made to a person named by either party. Equity Bule 90, par. 1. 19. In what Case Evidence of Petitioner may be Received in Suits for Divorce from Bed and Board. — On reference to take proof of the facts charged in a petition for a divorce from bed and board, the examination of the petitioner, on oath or affir- mation, may be taken as to any cruel or inhuman treatment alleged in the petition to have taken place when no witness was present competent to testify. Equity Eule, 96. Notes. — In all other suits for divorce the evidence of neither party is competent. Burdette v. Burdette, 2 Mackey, 469. But qusere, in a suit for nullity of marriage, since the decree proceeds upon the ground that there never was any lawful marriage, and, conse- quently, that the parties were never husband and wife, are the par- ties to such a suit disqualified from testifying? The question does not appear to have been decided in this District. But in other juris- dictions it has been held that they are not disqualified. Lebrun v. Lebrun, 55 Md., 496 ; Shafts v. Shafts, 28 N. J. Eq., 35. And see Ditchfield, 35 L. J. Nat. Cas., 57 ; A. v. J., 37 L. J. Nat. Cas., 7; Miles V. United States, 103 U. S., 304 ; Green wait v. Enery, 85 Pa. St., 352 ; Hoffman V. Lorenz, 38 Md., XI, and other cases cited in Stew. M. & D., sees. 349, 66, 133. See, however, the following cases leaning in an opposite direction. Foss v. Foss., 12 Allen, 26 ; Moore v. Win- gate, 63 Mo., 398 ; Baldwin v. Parker, 99 Mass., 79. It may also be observed that this rule, by its ternu), limits the privi- STJPEEME COURT, DISTEICT OP COLUMBIA. 501 lege of testifying under the circumstances indicated to the petitioner alone. Nothing is said as to the competancy of the defendant to contradict by his own testimony such evidence. It can hardly have been intended to permit one party to testify against the other as to the circumstances of alleged cruel and inhuman treatment which took place where no one was present competent to testify, and yet close the lips of the other party to the transaction, who might be able to explain away the force of the evidence. It was in recognition of the unfairness of such a condition of things that section 858, R. 8. U. S., was enacted to disqualify one party as a witness where the other party's lips were closed— not, however, by the law, but by death. In Burdette v. Burdette, 2 Mackey, 469, the existence of this 96th Rule was recognized^, but nothing was said of its anomolous provi- sion. ^ 20. No Divorce Cause to be Heard unless Calendared — Testi- mony to be Filed in "Publication Cases" Thirty Days Before Calendaring Cause for Hearing. — After the completion of the testimony, all such cases shall be placed upon the calendar of the equity court before the same can be heard ; but when the defendant has been proceeded against by publication, the testi- mony must be filed in court at least thirty days before the case shall be placed upon the calendar by the clerk. Equity Eule 90, par 2. 21. Decree when Marriage is Dissolved on Account of Former Marriage.^ — Upon the dissolution of a marriage on account of either of the parties having a former wife or husband living, if it shall appear that the second marriage was contracted in good faith by the party whose second marriage has been thus dissolved, and with the full belief on his or her part that the former wife or husband was dead, that fact shall be stated in the judgment or sentence of divorce. E. S. D. C, sec. 741. 22. Legitimacy of Issue in such Cases.— The issue of such second marriage, born or begotten before the commencement of the suit, shall be deemed to be the legitimate issue of the parent who, at the time of the marriage, was capable of con- tracting. E. S. D. 0., sec. 742. 23. When Marriage Dissolved on Account of Lunacy, Issue to be Deemed Legitimate. — Upon the dissolution of a marriage on account of the lunacy of either party at the -time of such marriage, the issue of such marriage shall be deemed to be legitimate. E. S. D. 0., sec. 743. 24. In other Cases Decree not to Affect Legitimacy of Issue. — A divorce for causes not specially provided for in the two pre- 602 PEACTICE AND PROCEDTJEE OF THE ceding sections stiall not affect the legitimacy of the issue of the marriage ; but the legitimacy of such issue, if questioned, shall be tried and determined according to the course of the common law. E. S. D. C, sec. 744. 25. Court may Decree Alimony and Retain Right of Dower to Wife. — In all cases where a divorce is granted, the court allow- ing the same shall have power, if it see fit, to award alimony to th6 wife, and to retain her right of dower. E. S. D. C, sec. 745. Notes. — Alimony being an incident of divorce, in granting the di- vorce the court may grant alimony, though it is not specifically prayed. Jackson v. Jackson, 1 Mac A., 34 ; Chandler v. Chandler, 13 Ind., 492. There can be no decree for alimony when there has not been personal service. Ante, p. 499. See also Pennoyer v. Neff, 95 U. S., 733. In the absence of statute it provides, not for a sum in gross, but for continuing payments. See 2 Bish. M. & D., sec. 427 ; Wallingsford v. Wallingsford, 6 Har. & J., 488, 489. But in Iowa, under a power to award alimony "as it seemed best to the court," (E. S. Iowa, 1880, sec. 2229,) the court awarded a part of the husband's real estate in fee. Jolly v. Jolly, 1 Iowa. And it seems that although the court may have no power to award the real estate of the hus- band to the wife, yet if the title to the property be in the wife's name, having been purchased by the husband's means, the court may decree a reconveyance of a portion, or perhaps all of it, to the husband. See Jackson v. Jackson, 1 Mac A., 34, and same case on appeal in 91 U. S. In determining the amount^ the means and ability of both parties are to be considered. Brown v. Brown, 22 Mich., 242 ; Ward V. Ward, 1 Swab. & T., 484 ; Andrews v. Andrews, 69 111., 609 ; Farley v. Parley, 30 Iowa, 353, and if a wife have sufficient means of her own no alimony, temporary or permanent, will be awarded her. Stew. M. & D., sec. 372, and numerous cases there cited. See also Joslin V. JosUn, XV Wash. Law Eep., 692. The court wiU award a larger alimony if the husband's property has been partly accumu- lated by the wife's exertions. Von Glahn v. Von Glahn, 46 111., 143 ; Lovett V. Lovett, 11 Ala., 763 ; Ressor v. Ressor, 82 111., 442. See also 2 Bish. M. & D., 457. So if she is old, Lovett v. Lovett, 11 Ala., 763, or in bad health, Schlosser v. Schlosser, 29 Ind., 488 ; Bursler v. Bursler, 5 Pick., 427, and less if she is young, Lovett v. Lovett, 11 Ala., 763, and used to labor, Ressor v. Ressor, 82 111., 442 ; Brown v. Brown, 22 Mich., 242; Walling v. Walling, 16 N. J. Eq., 389, and more if the husband's offence has been gross, Cooke v. Cooke, 2 PhiUim, 109 ; Wallis v. Wallis, 29 L. J. Mat. Cas., 161 m ; McGee v. McGtee, 10 Ga., 477, and especially if she has been patient and long suffering, Burr v. Burr, 7 Hill, 212, but less if she has conduced to the husband's fault, see Lovett v. Lovett, 11 Ala., 763 ; Reavis v. Reavis, 2 111., 242 ; Conner v. Conner, 29 Ind., 48 ; Zuver v. Zuver, 36 Iowa, 198, and a bare maintenance, if anything, where the fault is SUPREME COURT, DISTRICT OP COLUMBIA. 503 here. Palmer v. Palmer, 1 Paige, 276 ; Conner v. Conner, 29 Ind., 48. So the court considers the necessary expenses of the party hav- ing the support of the children. Amos v. Amos, 4 N. J. Bq., 171 ; McGee v. McGee, 10 Ga., 477 ; Bergen v. Bergen, 22 111., 187 ; Call v. Call, 65 Me., 407. As to the principles which should govern in awarding alimony when the wife is in fault, see Stew. M. & D., sec. 371. 26. Alimony Pendente Lite. — The court may also award ali- mony to the wife for her sustenance during the pending of a petition for a divorce filed for any of the causes mentioned in this chapter. E. S. D. C, sec. 746. I^otes. — In granting alimony pendente lite, the court does not re- gard the merits of the case. McGee v. McGee, 10 Ga., 478 ; Coles v. Coles, 2 Md. Oh., 341. And where the husband is complainant and the wife asks alimony pendente lite, it will be awarded whether the husband have means or not, and if he does not pay it he will not be allowed to prosecute his suit. Stew. M. & D., sec. 373 ; Mangels v. Mangels, 6 Mo. App., 481. In nullity suits alimony pendente lite is not granted where the woman is complainant, for by her very peti- tion she admits she is not the defendant's wife. North v. North, IBarb. Ch., 24; Bartlett v. Bartlett, Clark Ch., 241; Bloodgood v. Bloodgood, 59 How. Pr. (N. Y.), 42. It is otherwise, however, where she is a defendant to such a suit and denies the allegations of the petition. CoUins v. Collins, 71 N. Y., 269 ; Vroom v. Marsh, 29 N. J. Eq., 15 ; Frith v. Frith, 18 Ga. , 278. 27. Custody and Maintenance of Children. — The court shall also have power to order and direct, in every case of* divorce, who shall have the guardianship and custody of the children of the marriage so divorced, and who shall be charged with their maintenance. E. S. D. C, sec. 747. Note. — For a concise but full summary of the rules governing courts of equity in awarding the custody of children in divorce cases, see Stew. M. & and D., sec. 402 and cases cited. 28. Wife's Maiden or Previous Name may be Restored. — The court may also in granting a divorce from the bond of marriage restore to the wife her maiden or other previous name. R. S. D. C, sec. 748. 29. Adultery of Wife after Divorce from Bed and Board — Pro- ceedings. — In case of adultery by the wife, committed after judgment or sentence of divorce from bed and board, the court may, on the petition of the husband, setting forth and accom- panied by legal proof of such adultery, deprive the wife of alimony from the date of her said criminal act, and rescind her right of dower, as well as dispossess her, if the court judge 504 PEACTICE AND PEOOEDTJEE OF THE fit, of the care, custody and guardiansliip of any child •which, under the original judgment of the court in granting the divorce, may have been assigned to her. E. S. D. C, sec. 749. 30. Suits for Alimony alone. — The chancellor shall and may hear and determine all causes for alimony, in as full and am- ple manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts. Md. Act, 1777, ch. 12, sec. 14. Xote. — See Joslin v. Joslin, XV Wash. Law Rep., 692, where it was doubted by Olin, J., whether a suit for alimony alone could be maintained in this court. The case, however, did not call for such a decision, and since then this court has repeatedly sustained such suits under this statute. So also have the courts of Maryland. See Helms V. Franciscus, 2 Bland Oh., 565, 568 ; Fornshill v. Murray, 1 Bland Ch., 483; Jamison v. Jamison, 4 Md. Oh., 289; Crane v. Mc- Ginnis, 1 Gill & J., 475 ; Galwith v. Galwith, 4 Har. & McH., 477. And for the grounds upon which such a suit may be maintained, see Stew. M. & D., sec. 179. SUPBEME COUBT, DISTEIOT OF COLUMBIA. 505 CHAPTEE XXVI. USEFUL TABLES. 1. Table of Commissions to Trustees. — On sales under decrees or orders of the court the following allowances are made to trustees : On the 1st |300, 7 per cent |21 00 2d 300, 6 do. 3d 300, 5 do. 4t]i 300, 5 do. 5th 300, 3^ do. 6th 300, 3J do. 7th 300, 3 do. 8th 300, 3 do. 9th 300, 2i do. 10th 300, 2J do. 18 00— |39 00 15 00— 54 00 12 00— 66 00 10 so- 76 50 lo 50— 87 00 9 00— 96 00 9 00— 105 00 7 50— 112 50 7 50— 120 00 And three per cent, on all above $3,000, besides an allow- ance for expenses not personal. The above allowance subject to be increased in cases of postponement at the request of de- fendants, or of extraordinary difficulty or trouble from other circumstances, and to be lessened in case of negligence, at the discretion of the chancellor. Eule 100. 2. Allowance in Lieu of Dower. — Table of allowance to a healthy woman in lieu of her right of dower in land sold under decrees: Under 30 years of age one-sixth Above 30 and under 35 two-thirteenths "35 " 40 one-seventh "40 " 45 . .' two-flfteenths "45 " 51 one-eighth "51 " 56 one-ninth " 56 . " 61 one-tenth "61 " 67 one-twelfth "67 " 72 one-fourteenth "72 " 77 one-eighteenth " 77 one-twentieth Notes. — The foregoing computation is founded upon the old Mary- land rule. It is altogether arbitrary, and is by no means a correct or fair valuation of the widow's dower as measured by the ^nodern annuity tables. The supreme court of New York (Rule 84, Voor- 64 506 PEACTICE AND PEOCEDTJEE OF THE hees' Code, 752) adopts the Portsmouth or Northampton tables in calculating the value of all life estates. In the hope that these tables may some day be adopted here, not only in estimating the value of dower interests, but in all cases where reference to an annuity table is found necessary, a table, corresponding therewith, is given below. This table shows the value of an annuity of one dollar at six per cent., at any age from one year to ninety-four, inclusive. An illus- tration of the comparative valaes of a dower interest computed by the two methods is furnished by the example given, from which it will be seen that, calculated by the Maryland rule, the value of a dower interest in real estate worth f350.75 is |50.17, and a fraction. On the other hand, by the more accurate Northampton Tables, the same interest is shown to be worth |77.35 and a fraction, or more than one-third as much again in favor of the widow. ANNUITY TABLE. A table corresponding with the Northampton Tables, showing, the value of an annuity of one dollar, at six per cent., on a single life, at any age from one year to ninety-four inclusive : Age. No. of years' purchase the annuity is worth. Age. No. of years' purchase the annuity is worth. Age. No. of years' mrchase the annuity is worth. Age. No. of years' purchase the annuity is ;* worth. 1 10.107 25 12.063 49 9.563 73 4.781 " ' 2 11.724 26 11.992 50 9.417 74 4.565 3 12.348 27 11.917 51 9.273 75 4.354 4 12.769 28 11.841 52 9.129 76 4.154 5 12.962 29 11.763 53 8.980 77 3.952 • 6 13.156 30 11.682 54 8.827 78 3.742 - 7 13.275 31 11.598 55 8.670 79 '3.514 8 13.337 32 11.512 56 . 8.509 80 3.281 9 13.335 33 11.423 57 ' 8.343 81 3.156 10 13.285 34 11.331 58 8.173 82 2.926 11 13.212 35 11.236 59 7.999 83 2.713 12 13.130 36 11.137 60 7.820 84 2.551 13 13.044 37 11.035 61 7.637 85 2.402 14' 12.953 38 10.929 62 7.449 86 2.266 15 12.857 39 10.819 63 7.253 87 2.138 16 12.755 40 10.705 64 7.052 88 2.031 17 12.655 41 10.589 65 6.841 89 1.882 18 12.562 42 10.473 66 6.625 90 1.689 19 12.477 43 10.356 67 6.405 91 1.422 20 12.398 44 10.235 68 6.179 92 1.136 21 12.329 45 10.110 69 5.949 93 0.806 22 12.265 46 9.980 70 5.716 94 0.518 23 12.200 47 9.846 71 5.479 24 12.132 48 9.707 72 5.241 STJPBEME COUisT, DISTEICT OF COLUMBIA. 507 RULE FOR COMPUTING THE VALUE OF THE LIFE ESTATE OR ANNUITY. Calculate the interest at six per cent, for one year, upon the sum to the income of which the person is entitled. Multiply this interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the life-estate of such person in said sum. EXAMPLES. Suppose a widow's age is thirty-seven, and she is entitled to dower in real estate worth $350.75. One-third Of this is fll6.91f . Interest on 1116.91, one year at six per cent, is $7.01. The number of years' purchase which an annuity of $1.00 is worth at the age of thirty-seven, as appears by the table, is eleven years and j\y^ parts of a year, which multiplied by 7.01, the income for one year, gives $77.35 and a fraction, as the gross value of her right of dower. Suppose a man whose age is fifty, is tenant by the courtesy in the whole of an estate worth $9,000. The annual interest on the sum at six per cent, is $540. The number of years' purchase which an an- nuity of one dollar is worth at the age of fifty, as per table, is Qj"-^\ parts of a year, which multiplied by 540, the value of one year, gives $5,085.18 as the gross value of his life-estate in the premises or the proceeds thereof. Note. — The values in this table are calculated on the supposition that the annuities are payable yearly ; if payble half-yearly, one fifth of a year's purchase should be added to those values. For a further consideration of the subject of the computation of the value of life estates, see Williams' Case, 3 Bland, 186 (Brontly's edition), and Jackson v. Edwards, 7 Paige, 408. PART IV. PRACTICE AND PROCEDURE IN PATENT CAUSES StrPEEME COURT, DISTEIOT OF COLUMBIA. 511 PRACTICE m PATENT CASES. CHAPTEE I. APPEALS FROM THE COMMISSIONER OP PATENTS. 1. Jurisdiction on appeal. 2. When an appeal lies. 3. When an appeal does not lie. 4. Notice of appeal to be given the commissioner. 6. Time within which an appeal must be taken. 6. Reasons of appeal. 7. What will be heard on appeal. 8. Proceedings on appeal. Determination of the appeal and its effect. Form of petition in appeal cases. 9, 10, 11. Petition to be filed and case docketed. 12. Minute books — orders, how entered therein. 13. Cases, how numbered on the docket and designated. 14. When appeals to be called for trial. 15. Preservation of opinions of the court. 16. Copies of papers, how pro- cured. 17. Hearing of appeal, how regu- lated. 1. Jurisdiction on Appeal. — The supreme court, sitting in banc, shall have jurisdiction of and shall hear and determine all appeals from the decisions of the commissioner of patents, in accordance with the provisions of sections forty-nine hun- dred and eleven to section forty-nine hundred and fifteen, in- clusive, of chapter one. Title LX, of the Revised Statutes, "Patents, Trade-Marks, and Copyrights." R. S. D. C, sec. 780. If such person [i. e. one whose application for a patent or the re-issue of a patent has been rejected by the commissioner] ex- cept a party to an interference, is dissatisfied with the decision of the commissioner, he may appeal to the supreme court of the District of Columbia, sitting in banc. E. S. U. S., sec. 4911. 2. When an Appeal Lies. — The object of giving an appeal to this court from the decision of the commissioner is to correct his errors in refusing to grant a patent for which otherwise there would be no remedy. His error in granting a patent may be corrected by the Ordinary tribunals of the country when it is made a subject of litiga- 512 PRACTICE AND PEOCEDtTRE OF THE tion, and there is no need of a special tribunal for that purpose. Pomeroy v. Connison, 1 Mac A. Pat. Cas., 40. A party may refuse to take a limited patent, and may appeal to this court. Belting Co. v. Sibley, 15 Fed. Rep., 386. "Where, after being placed in interference, both applications are rejected for want of novelty, appeal will lie. Ex parte Strong, 17 Pat. Off. Gaz., 446. Appeal lies from a rejection by the commissioner, though the ground for such rejection has not been adjudicated by the lower tribunals in the Patent Offloe. Id. So an apppeal lies from the refusal to reissue a patent. Oonklin v. Stafford, 1 Mac A., 375. Principles governing this court on an ap- peal from the refusal of a reissue. Id. The court does not exercise its ordinary jurisdiction at law or in equity, but merely acts in aid of the Patent OflSice. Butterworthv. Hoe, 112 U. S., 60. 3. When an Appeal does not Lie. — The refusal by one commissioner to rehear a case decided by his predecessor is not a ground of ap- peal. In re Janney, 1 Mac A. Pat. Cas., 86. Nothing preliminary to the issuing of the patent is a valid ground of appeal, unless made so by the law. Matthews v. Wade, 1 Mac A. Pat. Cas., 143. Prom the refusal of a patent to an assignee claiming under an unrecorded as- signment an appeal does not lie. Whitely v. Ksher, 4 Fish., 248. Nor does an appeal lie from the commissioner's decision upon the relative priority of two pending interfering applications for a patent. Ex parte Gower, 15 Pat. Off. Gaz., 828. 4. Notice of Appeal to be Given the Commissioner.— When an appeal is taken to the supreme court of the District of Co- lumbia, the appellant shall give notice thereof to the commis- sioner, and file in the Patent-Office, within such time as the commissioner shall appoint, his reasons of appeal, specifically set forth in writing. E. S. TJ. S., sec. 4912. 5. Time within which Appeal must be Taken. — No appeal can be considered unless the reasons of appeal were filed within the speci- fied time. Greenough v. Clarke, 1 Mac A. Pat. Cas., 173. That the act of the commissioner in enlarging the time for appeal cannot be, reviewed by this court, see Justice v. Jones, 1 Mac A. Pat. Cas., 635. But the commissioner's power in this, respect is exhausted after the patent is actually delivered. Greenough v. Clarke, 1 Mac A. Pat. Cas., 173. Note. — The rules of the Patent Ofiice now in force do not fix the time within which an appeal must be taken. Section 4894 R. S. U. S., provides that a failure to prosecute an application for two years shall be regarded as an abandonment of it. 6. Reasons of Appeal. — The filing of the reasons of appeal is a pro- ceeding in the office over which the court has no control. Matthews V. Wade, 1 Mac A. Pat. Cas., 143. The reasons of appeal must show that the decision of the commissioner was wrong, and not merely STJPEEME COURT, DISTEICT OF COLUMBIA. 513 that he was mistaken in his reasoning. In re Crooker, 1 Mac A. Pat. Cas., 134 ; In re Aiken, Id., 130. The filing of the reasons of appeal is essentially the appeal itself. The court cannot take cognizance of a case until the aggrieved party presents to it his petition for a re- vision on appeal, which petition, according to law, must be founded upon the reasons of appeal filed with the commissioner in due form. Greenough v. Clarke, 1 Mac A. Pat. Cas., 173. See further, ""What WILL BE HEARD ON APPEAL," infrn. 7. What will be Heard on Appeal. — That the decision of the commissioner "was in opposition to a clear apprehension of the merits of the case " and " inconsistent with the precedents," are too vague as reasons of appeal. In re Winslow, 1 Mac A. Pat. Cas., 123. So, " that the decision was against the evidence and weight of the evidence." Blackiston v. Douglass, 1 Mac A. Pat. Cas., 622. This court will look only into the reasons of appeal, and into the records and proceeding in the case which are applicable to those reasons. Oonklin v. Stafford, 1 Mac A., 375. No assignment of error can be regarded as sufficiently specific which does not point out the precise matter of alleged error with reasonable certainty. Blackiston v. Douglass, 1 Mac A. Pat. Cas., 622. 8. Proceedings on Appeal. — The court shall, before hearing such appeal, give notice to the commissioner of the time and place of the hearing, and on receiving such notice the com- missioner shall give notice of such time and place in such manner as the court may prescribe, to all parties who appear to be interested therein. The party appealing shall lay before the court certified copies of all the original papers and evi- dence in the cfise, and the commissioner shall furnish the court with the grounds of his decision, fully set forth in wri- ting, touching all the points involved by the reasons of ap- peal. And at the request of any party interested, or of the court, the commissioner and the examiners may be examined under oath, in explanation of the principles of the thing for which a patent is demanded. E. S. U. S., sec. 4913. 9. Determination of the Appeal and its Effect.— The court, on petition, shall hear and determine such appeal, and revise the decision appealed from in a summary way, ou the evidence produced before the commissioner, 'at such early and conve- nient time as the court may appoint; and the revision shall be confined to the points set forth in the reasons of appeal. After hearing the case the court shall return to the commis- sioner a certificate of its proceedings and decision, which shall be entered of record in the Patent Office, and shall govern the further proceedings in the case. But no opinion or decision 65 514 PEACTICB AND PROCEDUEE OF THE of the court in any sucli case shall preclude any person inter- ested from the right to contest the validity of such patent in any court wherein the same may be called in question. E. S. U. S., sec. 4914. Note. — The commissioner must obey the decree of the court with- out question, and his failure or refusal to execute it would be cor- rected by suitable judicial process. Bntterworth v. Hoe, 112 U. S., 60- 10. Form of the Petition in Appeal Cases^— Rule 1. — The ap- pellant's petition shall be addressed to the court, and shall be substantially as follows : To the Supreme Court of the District of Columbia, in banc, the day of , 18 — . The petition of , a citizen of —, in the [State, Territory, District] of , respectfully shows as follows : a. About the day of ; 18—, I invented [describe the subject of the desired patent in the identical words of the applicar tion to the Patent-Office.] 6. On the day of , 18 — , in the manner prescribed by law, I presented my application to the Patent-Ofllce, praying that a patent be issued to me, for the said invention. c. Such proceedings were had in said office upon said application that, on the day of , 18 — , it was rejected b^ the Commis- sioner of Patents. d. I thereupon appealed to this court, and gave notice thereof to the commissioner, and filed in his office the following reasons for said appeal : e. The Commissioner of Patents has furnished me a complete copy of all the proceedings in his office, upon my said application, deemed material to the issue, which copy has been filed herewith, and is to be taken as a part hereof. /. And thereupon I pray that the court do revise and reverse said decision, to the end that justice may be done in the premises. 11. Petition to be Filed, and case Docketed. — This petition shall be filed in the clerk's oflfice of this court; and as soon as the petitioner has made the deposit required by law at the commencement of suits in this court, or said deposit has been dispensed with, the clerk shall enter the case in a docket to be provided by him for the purpose, and in which a brief of said filing and of all subsequent proceedings in the case shall be entered, as and when they successively occur, down to and in- cluding the final decision. Eule 2, (Pat. Gas.) 12. Minute-Book — Orders, How entered therein. — The clerk shall provide a minute-book of his office, in which he shall re- cord every order, rule, judgment, or decree of the court in each SXTPKEME COURT, DISTRICT OP COLUMBIA. 515 case, in the order of time in which said proceedings occur ; and of this book there shall be two alphabetical indexes, one showing the name of the party applying for the patent, and the other designating the invention by its subject-matter or name. Eule 3 (Pat. Gas.) 13. Cases, How Numbered on the Docket and Designated.— The cases in the docket of causes shall be successivt»ly num- bered from IjTo. 1 onward, and each case shall also be desig- nated by the number assigned to it on the records of the Patent Oface. Eule 4 (Pat. Gas.) i4. When Appeals to be Called for Trial.— This docket shall be called for the trial of the cases thereon on the first day of each session of this court in general term, provided the petition has been filed ten days before the commencement of the term. Appeals filed within ten days of the commencement of the term, or during the term, may, by leave of the court, be Bet down for hearing at any time during the term, not less than ten days subsequent to the filing. Eule 5 (Pat. Gas.) 15. Preservation of Opinions of the Court. — The opinions of the court, when written, shall be kept by the clerk in the order of their delivery, in a temporary book-file, indexed ; and when as many have been delivered as will make a volume of con- venient size, he shall cause them to be bound. Eule 6 (Pat. Gas.) 16. Copies of Papers, How Procured. — The clerk shall furnish to any applicant a copy of any paper in any of said* appeals on payment of the lawful fees. Eule 7 (Pat. Gas.) 17. Hearing of Appeal, How Regulated. — Hearings of said appeals shall be subject to the rules of the court provided for other causes therein. Eule 8 (Pat. Gas.) 516 PRACTICE AND PEOCEDURE OF THE CHAPTEE II. REMEDY IN EQUITY FOR REFUSAL OF PATENT— INTER- FERENCE SUITS. 1. Remedy by bill in equity for I 2. Proceedings to invalidate pat- refusal of patent. I ent for interference. 1. Remedy by Bill in Eqnity for Refusal of Patent.— When- ever a patent on application is refused, either by the Commis- sioner of Patents or by the supreme court of the District of, Columbia upon appeal from the commissioner, the applicant may have remedy by bill in equity ; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as spe- cified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases where there is no opposing party, a copy of the bill shall be served on the commissioner ; and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not. E. S. U. S., sec. 4915. Notes of Decisions. — The suit lies only when the application to the Patent OfSce has been rejected on the merits. Butterworth v. Uni- ted States, ex rel. Hoe, 112 U. S., 50. And the remedy by appeal provided in section 4911 R. S. U. S., has been exhausted. Kirk v. Commissioner, 37 Pat. Off. Gaz., 451. The section applies as well to interference cases as to applications ex parte. Hoe v. Butterworth, 3 Maokey, 237. The supreme court of the District of Columbia is the proper tribunal to entertain the suit. Prentiss v. Ellsworth, 27 Pat. Off. Gaz., 623. Quaere, whether under section 780 R. S. D. C, the supreme court holding a general term or a special term in equity has original jurisdiction of this suit? See Butterworth v. Hill, 114 U. S., 128. The Secretary of the Interior is not a proper party to the bill. Kirk, 37 Pat. Off. Gaz., 451. It is an original and not an appellate proceeding. In re Squire, 13 Pat. Off. Gaz., 1025. Al- though substantially appellate in character. Hoe v. Butterworth, 3 Mackey, 244 ; ex parte Greely, 1 Holmes, 284 ; Butterworth v. Hoe, SUPREME COURT, DISTRICT OF COLUMBIA. 517 112 U. S., 63. The suit is conducted according to equity rules, and a party contesting the right of the plaintiff is not confined to matters existing of record in the Patent Office or in the supreme court of the District of Columbia, but may take additional testi- mony. In re Squire, 12 Pat. Off. Gaz., 1025. See Butterworth v. HUl, 114 U. S., 128. The only question upon the merits of the con- troversy is that of priority of invention ; equitable rights arising out of the relation of the parties cannot be considered. Damon v. East- wick, 22 Pat. Off. Gaz., 1709. For the purpose of process in such a suit the Commissioner of Patents is an inhabitant of Washington. Butterworth v. Hill, 114 U. S., 128. But where there is an opposing party to the bill, it is not necessary to make the commissioner a party. Graham v. Teter, 33 Pat. Off. Gaz., 758. Where the opposing patentee has transferred his interest his assignee should be made de- fendant to the suit. Id. The provision requiring applicant to pay all costs applies only where there is no opposing party other than the Commissioner of Patents. Butler v. Shaw, 21 Fed. Rep., 321. Where there has been two years delay in bringing suit (see sec. 4894 R. S. U. S.) it must be alleged and shown that the delay was unavoidable. Gandy v. Marble, 122 U. S., 432. 2. Proceedings to Invalidate Patent for Interference, etc. — Whenever there are interfering patents, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent ; and the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and de- clare either of the patents void in whole or in part, or inoper- ative, or invalid in any particular part of the United States, according to the interest of the parties in the patent or the in- vention patented. But no such judgment or adjudication shall affect the right of any person except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment. E. S. U. S., sec. 4918. Notes of Decisions. — This statute cannot be invoked unless it is asserted that the two patents are substantially for the same inven- tion ; that the patentee in whose behalf the statute is pleaded is the first inventor ; and that the defendant has wrongfully appropriated the fruits thereof. Celluloid Mfg. Co. v. Goodyear Dental Vulcanite Co., 13 Blatchf., 375. The proceedings are by bill and subpoena as in any advisory chancery suit. Legget & Myers Tobacco Co. v. Miller, 1 McCrary, 31. And the jurisdiction of the court extends no further over absent parties than it would in any other equity proceeding. Id. But to obtain affirmative relief in having plaintiff's patent de- clared void the defendant need not file a cross-bill. Lockwood v. 518 PEACTIOE AND PEOCEDUEE OF THE Cleaveland, 6 Fed. Rep., 721. The only question which can be con- sidered is that of priority of invention ; a patent cannot in this pro- ceeding be annulled for 'want of novelty. Pentlarge v. Pentlarge, 19 Fed. Rep., 817 ; Lockwood v. Cleaveland, 20 Fed. Rep., 164. See, however, Foster v. Lindsay, 3 Dill, 126; S. C, 3 Bann. & A., 172. And the decision of the Patent Office in favor of one of the parties is not conclusive. Hubbell v. Tucker, 24 Fed. Rep., 701 ; Union Paper Bag Co. v. Crane, 1 Holmes, 429. But it is entitled to great weight. Peck & Co. v. Lindsay et al., 2 Fed. Rep., 688. And casts the burden of proof upon the party against whom the decision was made. Wire & C. Co. v. Stevenson, 11 Fed. Rep., 155. CHAPTEE III, INFRINGEMENT SUITS. 13. General nature of the jurisdic" tion. 14. Preliminary injunction, when granted. 15. Who are necessary parties plaintiff. 16. Who should be joined as de- fendants. 17. Averments of the bill. 18. Multifariousness. 19. Plea. 20. Answer. 21. Amending answer. 22. Cross-bills. 23. Court may submit questions of fact to a jury. 24. The right to recover profits. 25. The reference for an account. 26. Interest. 27. Statutory recovery of damages in equity. 28. Costs. 1. Jurisdiction in Infringement Snits and other Controver- sies over Patents. — The supreme court has jurisdiction of actions, suits, controversies, and cases, as well in equity as at 1. Jurisdiction in infringement suits. and other controversies over patents. At Law. 2. Damages for infringements, how recovered at law. 3. Who may and who may not sue at law. 4. Who should and who should not be made defendants. 5. The declaration, requisites of. 6. Defences specially authorized by statute. The notice of defence. When notice is unnecessary. Evidence. Damages. 11. Disclaimer where specifica- tion is too broad. In Eqihty. 12. Power of the court to grant in- junctions and assess dam- 7, 8. 9, 10. STJPEBME COURT, DISTRICT OF COLUMBIA. 519 lav, arising under tlie copy-riglit and patent laws, and for damages for the infringement of any patent, by action on the case, in accordance with the provisions of sections forty-nine hundred and nineteen, forty-nine hundred and twenty, and forty-nine hundred and twenty-one, of chapter one, Title LX, of the Eevised Statutes, ^'Patents, Trade- Maries and Copyrights.^ ^ E. S. D, C, sec. 764. Note. — The powers of the Supreme Court of the District of Colum- bia, in patent cases, are the same as those of the circuit courts of the United States. Cochrane v. Deener, 94 U. S., 781. 2. Damages for Infringement, how Recovered at Law. — Damages for the infringement of any patent may be recovered by action on the case, in the name of the party interested, either as patentee, assignee, or grantee. And whenever in any such action a verdict is rendered for the plaintiff, the court may enter judgment thereon for any sum above the amount found by the verdict as the actual damages sustained according to the circumstances of the case, not exceeding . three times the amount of such verdict, together with the costs. E. S. U. S.,"sec. 4919. 3. Who may and who may not Sue at Law. — The action must be brought in the name of the party interested, that is the person own- ing the patent, whether as inventor or exclusive assignee at the time of the infringement. Moore v. Marsh, 7 Wall., 515. No other than those pointed out by *the statute can bring suit. Gordon v. Anthony, 16 Pat. Off. Gaz., 1135. Joint owners who have not trans- ferred their claims for past damages for infringement, though at time of suit they had assigned the patent, may sue. Spring v. Sew- ing Machine Co., 13 Fed. Rep., 446. The assignee of the exclusive right to use may bring suit though he has no right to make the thing patented. Chambers v. Smith, 5 Fish. Pat. Cas., 12. But not If he be a mere licensee. Wilson v. Chickering, 14 Fed. Rep., 917. For a licensee cannot, as such, sue for an infringement, but must assert his rights in the name of the owner of the patent. Paper Bag Cases, 105 U. S., 766. An assignor who retains an interest in the patent must be joined as a party plaintiff. Woodworth v. Wilson, 4 How., 712. Several assignees, though their title accrued by different deeds, may join. Stein v. Goddard, McAll., 82. A married woman owning a patent in her own right may sue without joining her husband. Lorillard v. Standard Oil Co., 17 Pat. Off. Gaz., 1507. Surviving members of a firm composed of themselves and the pat- entee. Loercher v. Crandal, 11 Fed. Rep., 872. The owner of title to one-half the patent, in the absence of any objection as to non- joinder. Rock-Boring Co. v. Sheldon, 17 Blatchf , 208. Patentee may sue in behalf of party having license. Goodyear v. McBarney, 520 PEACTICE AND PEOCEDXJEE OF THE 3 Blatohf., 32. On the other hand, party owning the whole patent need not join patentee as plaintiff. Oil Cup Co. v. Lubricator Co., 10 Fed. Rep., 677. Where assignments of the patent do not include claims for ^ast infringements, the owners of the patent, at the date of such infringement, should be joined as plaintiffs ; if the assign- ment include such claims the assignee may sue in his own name. Adams v. Bellair Stamp Co., 25 Fed. Rep., 270. Damages for in- fringement before assignment cannot be recovered unless they have been expressly assigned. Sugar Co. v. Sugar Co., 18 Fed. Rep., 638 ; Dibble v. Augur, 7 Blatchf., 86. An assignee of an executor may sue. May v. Logan Co., 41 Pat. Off. Gaz., 1387. 4. Who should and who should not be made Defendants.— The only persons who can be held for damages for the infringement of a pat- ent are those who own or who have some interest in the business of making, using or selling the thing which is an infringement. Nickel Co. V. Worthington, 13 Fed. Rep., 392. Where the wrongful manu- facture is by the agent of a corporation making the thing by its ap- proval and for its benefit, the corporation is liable. Poppenhusan v. N. Y. Comb Co., 2 Fish. Pat. Cas., 62, and the agent may be joined as a party defendant. Buck v. Cobb, 9 L. Rep., 545, but if he has acted without knowledge, only nominal damages should be found against him if he be sued alone. Bryce v. Dorr, 3 McLean, 582. So a mere workman employed to make parts of the patented article is not liable in damages. t)elano v. Scott, Gilp., 489. If there has been an in- fringement, and the wrong-doer dies, his administrator may be sued. Atterbury v. Gill; 2 Flippin, 239. Two defendants cannot be joined in the same action where each has infringed different patents. Case V. Redfleld, 4 McLean 526. That a municipality may be a defend- ant, see May v. Mercer County, 41 Pat. Off. Gaz., 815. 5. The Declaration, Requisites of. — The declaration must aver that plaintiff is the original and first inventor, or that his right is vested exclusively in plaintiff, and that the defendants have infringed it. Miller v. Smith, 5 Fed. Rep., 359 ; Stanley v. Whipple, 2 McLean, 35, but if the failure to so aver be passed over it will be cured by verdict. Stanley v. Whipple, 2 McLean, 35. It is not necessary to aver the specific time of the invention. Wilder v. McCormick, 2 Blatchf, 31. Nor is it necessary to aver the preliminary proceeding in the issue of the patent. Id. But the declaration should set out in what the improvement of the patentee consists — this is essential. Peterson v. Wooden, 3 McLean, 248. If the patent has been extended a'mere averment of the date and term of the extension is sufficient. Phelps V. Comstook, 4 McLean, 353. While it is sufficient to set out the substance of the grant, or specification to which the grant refers, yet if the declaration profess to set forth the specification as a part of the grant according to its tenor, the slightest variation is fatal. Tyron v. White, Pet. 0. C t., 96. It is not necessary to set out in what or by what means the defendant has infringed ; an averment that he has made, constructed, used and sold the thing patented, is suf- StrPKBME COURT, DISTEICT OF COLUMBIA. 521 flcient. Case v. Redfleld, 4 McLean, 526. See Cutting v. Myers, 4 Wash., 220. So an averment that defendant has made the thing " in imitation of the plaintiff's patent" is sufiSicient. Parker v. Haworth, 4 McLean, 370. Different and distinct infringements may be set out. Wilder v. McOormick, 2 Blatchf., 31. And see this case for a con- sideration of the proper averments in a declaration in a suit for in- fringement. See also Heckers v. Fowler, 2 Wall., 126. Failure to set out the recording of the assignment is cured by verdict. Dobson V. Campbell, 1 Sumn., 319. See Case v. Redfleld, 4 McLean, 526. 6. Defences Specially Authorized by Statute.— In any action for infringement the defendant may plead the general issue, and having given notice in writing to the plaintiff or his attor- ney, thirty days before, may prove on trial any one or more of the following special matters : First. That for the purpose of deceiving the public the description and specification filed by the patentee in the Patent Office was made to contain less than the whole truth relative to his invention or discovery, or more than is neces- sary to producB the desired effect ; (a) or, Second. That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same ; (6) or. Third. That it had been patented or described in some printed publication prior to his supposed invention or dis- covery thereof ; (c) or. Fourth. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented ; (dl) or, Fifth. That it had been in public use or on sale in this country for more than two years before his application for a patent (e), or had been abandoned to the public (/.) And in notices as to proof of previous invention, knowledge, or use of the thing patented, the defendant shall state the ^names of patentees and the dates of their patents, and when granted, and the names and residences of the persons alleged to have invented, or to have had the prior knowledge of the thing patented, and where and by whom it had been used : and if any one or more of the special matters alleged shall be found for the defendant, judgment shall be rendered for him with costs. And the like defences may be pleaded in any suit in equity for relief against an alleged infringement ; and proofs of the same may be given upon like notice in the 66 522 PRACTICE AND PEOCEDXTEE OP THE answer of the defendant, and with the like effect. E. S. U. S., sec. 4';)20. Notes.— The matters of defence which may, under the general issue, be given in evidence upon notice as provided by the foregoing section of the Revised Statutes, may be pleaded specially without such notice ; so also other defences not mentioned in the statute may be pleaded specially either with or without the general issue and such notice. Coltier v. Stimson, 18 Fed. Eep., 689. See also to same effect, under Act of 1836, of which this is a re-enactment. Smith v. Ely, 15 How., 137. But where a special plea is merely a repetition of the special matter, of which notice was given, it may be struck out on motion. Coltier v. Stimson, supra. (a.) Fraudulent Defect ok Excess in Specification.— The de- gree of evidence required to prove a fraudulent intent in a defective specification of a patent rests with the jury ; positive evidence is not necessary. The intention may be presumed from circumstances, e. g., when the parts concealed are so essential and so obviously necessary to be disclosed, that no mechanic skilled in the art could reasonably be expected to understand the subject so as, from the description given, to make the machine. But such a presumption would be weakened by the testimony of skilled persons that they could not hesitate in supplying omissions. Gray v. James, Pet. C. Ct., 394. (b.) Patent Subrbptitiously ok Unjustly Obtained.— A charge that the original patentee of an invention fraudulently and surrepti- tiously obtained a patent on what he well knew was invented by an- other constitutes no defence to the charge of infringement, unless accompanied by the further allegation that the alleged first inventor was at the time using reasonable diligence in adopting and perfect- ing the invention. Agawam Co. v. Jordan, 7 Wall., 583 ; Reed v. Cutter, 1 Story, 590. Under this clause the good faith of the plaintiff or his assignors is not necessarily implicated. The allegation that the patent was "unjustly obtained" may refer to injustice in the abstract rather than injustice resulting from any intentional wrong. The term as used in the statute was used, and intended to be used, in its broadest sense. Phelps v. Brown, 4 Blachf , 362. (c.) Prior Patent or Published Description.— The description must exhibit a substantial representation of the patented improve, ment in full, clear, and exact terms. Seymour v. Osborn, 11 Wall., , 516, 555 ; Cohn v. Corset Co., 93 U. S., 366, 370 ; Downton v. MUling Co., 108 U. S., 466 ; Washburn v. Gould, 3 Story, 122, 151 ; McComb V. Ernest, 1 Woods, 195, 206 ; Parker v. Stiles, 5 McL., 44, 61 ; Hayes V. Sulsor, 1 Bond, 279, 284 ; Eames v. Andrews, 122 U. S., 40. So as to enable others to put it in practice. Kelleher v. Darling, 14 Pat. Off. Gaz., 473 ; Jones v. Sewall, 3 Cliff., 563 ; Cahill v. Brown, 15 Pat. Off. Gaz., 697; Atlantic Powder Co. v. Parker, 16 Pat. Off. G^., 495. The publication may be proved by the production of the publication SUPREME COTJET, DISTEIOT OE COLTJBMIA. 523 or by parol testimony. Allen v. Hunter, 6 McLean, 303, 314. And the publication must have Ueen prior to the invention of the pat- entee whose patent it is sought to invalidate. It is not enough to show it to have been prior to the application for the patent. Bar- tholomew V. Sawyer, 4 Blatchf., 347. The publication of the descrip- tion, to defeat the patent, must be shown to have been in a printed book. An unprinted book has no such effect. Keene v. Wheatley, 9 Am. L. Eeg., 33. Prior patent not set up in answer may be intro- duced only for purpose of showing state of art. Grier v. Wilt, 120 U. S., 412. (d.) Patentee not First Inventoe. — A- patentee is presumed to be the original inventor of the thing patented. McMillan v. Barclay, 4 Brews., 275 ; Brodie v. Mining Co., 5 Fish. Pat. Cas., 189; but this presumption never extends further back than to the time of the filing of the original application. Wing v. Richardson, 2 Fish. Pat. Cas., 343 ; Jones v. Sewall, 6 Fish. Pat. Cas., 343. When the defend- ant proves beyond a reasonable doubt a knowledge of the invention prior to the patent, the burden then shifts to the plaintiff to show an invention or discovery prior to that. Eagleton Mfg. Co. v. West, &c., Mfg. Co., 18 Blatchf., 218. But a complete invention is not an- ticipated by a partial embodiment of the idea which was lacking in any of those features necessary to success. Richardson v. Noyes, 10 Pat. Off. Gaz., 507. Nor does a mere conception of the idea, un- less reduced to practice and embodied in some practical and useful form. BUithorp v. Robertson, 4 Blatchf., 307. Reeves v. Keystone Bridge Co., 5 Fish. Pat. Cases, 456. (e.) Public Use ok Sale before Application. — Experimental use is not public use. Pitts v. Hall, 2 Blatchf., 229 ; Graham v. MoCormick, 10 Biss., 89 ; Splitting Co. v. Tool Co., 1 Holmes, 503 ; Henry v. Stove Co., 9 Pat. Off. Gaz., 408 ; Innis v. Boiler Works, 30 Pat. Off. Gaz., 998 ; Celluloid Co. v. Zylonite Co., 35 Pat. Off. Gaz., 135 ; Bag Co. v. Bag Co., 41 Pat. Off. Gaz., 231 ; 122 U..S., 71. Thus use of an invention made by the inventor in good faith for the purpose of testing its operation, and maturing improvements, is not a public use. Elizabeth v. Pavement Co. , 97 U. S. , 126. But if through his own acts the invention gets into public use beyond his control, his right to a patent is forfeited. Jones v. Sewall, 3 Cliff., 563 ; Manning v. Isinglass Co., 108 U. S., 463. But not if the use is without his knowl- edge or consent. Davis v. Fredericks, 19 Fed. Rep., 99 ; Campbell v. New York, 20 Blatchf., 67. But public use or sale by others, with or without the inventor's consent, for more than' two years prior to application for patent, is conclusive evidence of abandonment, and the patent will be void. Andrews v. Hovey, , (Driven Well Case,) 41 Pat. Off. Gaz., 1162. Distinction between experimental and public use. Manufacturing Co. v. Sprague, 41 Pat. Off. Gaz., 1037. Public use means a use in public, not a use by the public. Jones v. Barker, 11 Fed. Rep., 597 ; Clarke v. Ferguson, 17 Fed. Rep., 79. Thus the use of an invention in a factory where any one can see it is a public 524 PEACTICE AND PEOCEDURB OF THE use. Manning v. Isinglass Co., 108 U. S.,462. Provided always that the use is not experimental. Jones v. Barker, 11 Fed. Rep., 597. The plea of prior use and sale must state that it was more than two years before the application for a patent, otherwise it is demurrable. Root V. Ball, 4 McLean, 177. The burden of proof is on the defend- ant, who alleges a prior sale or use. Roemer v. Linn, 5 Pat. Off. Gaz., 555. And the proof must satisfy the court beyond a reason- able doubt. Everest v. Oil Co., 20 Fed. Rep., 848. (/.) Abandonment to the Public. — Any acquiescence by the inventor in the public use of his invention will be an abandonment to the public. Shaw v. Cooper, 7 Pet., 292. The distinction between public use of an invention and abandonment e:kplained. Jones v. Sewall, 3 Cliff., 563. The defences are different, and should not be blended with each other. Id; Pitts v. Hall, 2 Blatchf., 229. For acts which will amount to an abandonment, see U. S. Rifle, &c., Co. V. Whitney Arms Co., 14 Blatchf., 94 ; Consolidated Fruit Jar Co. V. "Wright, 94 U. S., 92 ; American Hide, &c., Co. v. Tool Co., 1 Holmes, 503; Bevin v. Bell Co., 9 Blatchf., 50. Acts which do not, see Pitts v. Hall, 2 Blatchf., 229 ; Locomotive, &c., Co. v. Pa. R. R. Co., 6 Pat. Off. Gaz., 927 ; Johnson v. Passman, 1 Woods, 138 ; An- drews V. Cross, 19 Blatchf., 294; Russell & Erwin Mfg. Co. v. Mal- lory, 10 Blatchf., 140 ; Elm City Co. v. Wooster, 4 Pat. Off. Gaz., 83. Proof of abandonment' must be made out beyond all reasonable doubt. Pitts V. Hall, 2 Blatchf., 229. It may occur within two years before application for patent. Elizabeth v. Pavement Co., 97 U. S., 126, 134. 7. The Notice of DefeDce. — The burden is on the defendant to show that the proper notice has been given under the statute to enable him to examine witnessess to support any of the defences mentioned in the statute ; if the notice has not been given such evidence cannot be received. Railroad Co. v. Stimpson, 14 Pet., 448. No order of court is necessary to entitle the defendant to serve and file the no- tice of special matter. It is ohly necessary that such notice be in writing and be served more than thirty days before the trial. It may be given after the depositions relied on have been filed in court, and if a first notice is defective, or not sufBciently comprehensive to admit the proper defence, the defendant may give other notices to remedy such defect or supply the deficiency. Teese v. Huntingdon, 23 How., 2. Under a notice that patentee was not the original inven- tor, but that the machine had been in use in various places in the United States, evidence cannot be given of a prior use in England. Dixon V. Moyer, 4 Wash., 68. A mere general reference to an entire and large volume in which the invention, including many others, has been described, is not suflScient. There should be a reference to the page, title, etc. Silsby v. Foote, 14 How., 218. Only the names and residences of those who invented or used the anticipating mar chine or improvement, and not the names of those who are to testify of its invention or use, are required to be pleaded. Baker v. Hum- SUPREME COURT, DISTRICT OP COLUMBIA. 525 phrey, 101 XT. S., 494. The objection of want of notice must be made ■when the testimony is taken ; otherwise it will not be regarded. Eoemer v. Linn, 6 Pat. Off. Gaz., 555 ; Lock v. Pa, B. R. Co., 1 N. J. L. J., 227. 8. When Notice is Unnecessary. — No notice is necessary from the defendant that he will show that the machine used by him is not like the plaintiff's ; such evidence is competent under the general issue. Evans v. Hettich, 7 Wheat., 453. Nor is notice necessary to warrant the introduction of evidence to show the state of the art to which plaintiff's invention belongs at the alleged date of his invention. . Vance v. Campbell, 1 Black, 427. So, evidence of what is old and In general use at the time of an alleged invention is admissible under the general issue. Brown v. Piper, 91 U. S., 37. 9. ETidence. — The burden is on the plaintiff; he must show satis- factorily that his right has been violated. Washburn v. Gould, .3 Story, 122 ; Brooks v. Jenkins, 3 McLean, 432 ; Parker v. Stiles, 5 McLean, 44 ; Bates v. Coe, 98 U. S., 31 ; Storrs v. Howe, 4 Cliff., 388. And it never shifts where the charge is denied. Imhaeuser v. Buerk, 91 U. S. 647. But it has been held that where defendant sets up that his machine is a substantial departure from that of plaintiff's, he must prove it. Blanchard v. Beers, 2 Blatchf., 411. Proof necessary on the part of the plaintiff suing for infringement, and evidence com- petent on the question of damages explained in a charge to the jury. Nat. Car-Brake Co. v. Terre Haute Car Co., 19 Fed. Rep., 514. Where defendant demurs to the evidence, it is the province of court to de- termine whether a prima facie case is made out, and to instruct JDry accordingly. Roger v. Belting Co., 38 O. G., 898. 10. Damages. — A leading case on the question of damages at law is Birdsall v. Coolidge, 93 U. S., 64, where the whole subject is con- sidered. Plaintiff can recover only for actual damage, and he must show the damage by evidence. Phillip v. Nock, 17 Wall., 460. Therefore if plaintiff rests his case after merely proving an infringe- ment, he is entitled to nominal damages only. New York v. Ran- som, 23 How., 487 ; Blake v. Robertson, 94 U. S., 728 ; Black v. Thome, 111 U. S., 122. Only actual damages can be- recovered. Carr v. Rice, 1 Pish., 198. Actual damages means damages in fact, Goodyear v. Bishop, 2 Fish., 154, as contra-distinguished from imaginary or exemplary damages. Whittemore v. Cutter, 1 Gall., 478. It means the profits defendant has made, Conover v. Rapp, 4 Fish., 57 ; Tat- ham V. Le Roy, 2 Blatchf, 474, from the date of the use to the date of the writ. Hayden v. Suffolk Mfg. Co., 4 Fish., 86. The jury are limited to actual damages, which the court may treble. McCor- mick V. Seymour, 2 Blatchf, 209. And where plaintiff is an assignee for speculative purposes the damages will not be trebled. Schwarzel V. Holenshade, 2 Bond, 29. Counsel fees are no part of the damages. PhUlip V. Nock, 17 Wall., 460. Damages are not the same for the infringement of, an entire machine as for that of an improve- ment on one. "Seymour v. McCormick, 16 How., 480. For the rule 526 PEACTICE AND PEOCEDUEE OP THE « in such case, see Gould Mfg. Co. v. Cowing, 12 Blatchf., 243 ; Gar- retson v. Clark, 15 Blatchf., 70. There may be several judgments in respect to the same act of infringement, -but there can be but one satisfaction. Jennings v. Dolan, 38 Pat. Off. Gaz., 1018. The Federal not the State statute of limitations controls. May v. Buchanan Co., 39 Pat. Off. Gaz., 120. See 41 Id., 1387. The value of the invention to the party using it is competent evidence. Roger v. Coupe, 39 Pat. Off. Gaz., 239. See Statutory Damages in Equity, infra. 11. Disclaimer where Specification is too Broad— Costs.— "Whenever, through inadvertence, accident or mistake, and without any fraudulent or deceptive intention,, a patentee has claimed more than that of which he was the original or first inventor or discoverer, his patent shall be valid for all that part which is truly and justly his own, provided the same is a material or substantial part of the thing patented ; and any such patentee, his heirs or assigns, whether of the whole or any sectional interest therein, may, on payment of the fee re- quired by law, make disclaimer of such parts of the thing pat- ented as he shall not choose to claim or to hold by virtue of the patent or assignment, stating therein the extent of his in- terest in such patent. Such disclaimer shall be in writing, attested by one or more witnesses, and recorded in the Patent OfB.ce ; and it shall thereafter be considered as part of the original specification to the extent of the interest possessed by the claimant and by those claiming under him after the record thereof. But no such disclaimer shall affect any action pend- ing at the time of its being filed, except so far as may relate to the question of unreasonable neglect or delay in filing it. E. S. U. S., sec. 4917. Whenever, through inadvertence, accident or mistake, and without any wilful default or intent to defraud or mislead the public, a patentee has,, in his specification, claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the original and first inventor or discoverer, every such patentee,' his executors, administrators and assigns, whether of the whole or any sectional interest in the patent, may maintain a suit at law or in equity for the infringement of any part thereof which was bona fide his own, if it is a material and substantial part of the thing patented, and definitely distinguishable from the parts claimed without right, notwithstanding the specifi- cations may embrace more than that of which the patentee was the first inventor or discoverer. But in every such case in DISTRICT OF COLUMBIA. 527 which a judgment or decree shall be rendered forthe plaintiff no costs shall be recovered unless the proper disclaimer has been entered at the Patent Office before the commencement of the suit. But no patentee shall be entitled to the benefits of this section if he has unreasonably neglected or delayed to en- ter a disclaimer. E. S. U. S., sec. 4922. [See E. S. TJ. S., sec. 973, post, p. 534. Notes. — The purpose of these sections taken together, is that where a proper disclaimer is entered during the pendency of a suit, the plaintiff may recover in respect of what is not disclaimed, provided there has been no unreasonable neglect or delay to enter a disclaimer, but he cannot recover costs. Schillinger v. Gunther, 17 Blatchf., 66. But if there has been unreasonable negligence and delay, the whole patent is inoperative. McCormick v. Seymour, 3 Blatchf., 209. A.nd in no case can costs be recovered unless the disclaimer is filed before suit. Burdett v. Estey, 19 Blatchf, 1. But where a disclaimer is unnecessary because, to the extent patent is held valid it is inopera^ tive, costs were allowed though such disclaimer was filed after suit brought. Sharp v. Tifft, 18 Blatchf, 132. A disclaimer is necessary only where the thing claimed is a material and substantial part of the invention. Hall v. Wiles, 2 Blatchf., 194. A disclaimer by the pat- entee alone cannot operate in favor of his assignee who was not joined in it, both being plaintiffs in the suit. Wyeth v. Stone, 1 story^ 273. Patent confers no right to use the subject-matter disclaimed. Shaver v. Skinner Co., 41 Pat. Off. Gaz., 232. 12. Power of the Court to Grant Injunctions and Assess Damages. — The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant in- junctions according to the course and principles of courts of equity, to prevent the violation of any right secured by pat- ent, on such terms as the court may deem reasonable ; and upon a decree being rendered in any such case for an infringe- ment, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the Complainant has sustained thereby ; and the court shall as- sess the same or cause the same to be assessed under its direction. .And the court shall have the same power to increase such damages, in its discretion, as is given to increase the damages found by verdicts in actions in the nature of actions of trespass upon the case. E. S. U. S., sec. 4921. 13. General Nature of the Jurisdiction.— This act was not meant to obliterate the distinctions between courts of law and of equity. If the complaina;nt has afuU, adequate and complete remedy at law in an action of damages for the infringement, equity wUl not entertain 528 PRACTICE AND PBOCBDUEE OP THE jurisdiction. Root v. Railway Co., 105 U. S., 189. It is only where the court having acquired jurisdiction upon some equitable ground, e. g., the necessity for an injunction, that it will retain the cause and direct an account of profits and damages. Id. In this case, (Root v. Railway Co.,) Mr. Justice Matthews, reviewing a large number of cases, thus summarizes and explains the nature of the jurisdiction in equity over suits for infringement : " Our conclusion is, that a bill in equity for a naked account of profits and damages against an infringer of a patent cannot be sustained ; that such relief ordinarily is inciden- tal to some other equity, the right to enforce which secures to the patentee his standing in court ; that the most general ground for equitable interposition is, to secure to the patentee the enjoyment of his specific right by injunction against a continuance of the in- fringement ; but that grounds of equitable relief may arise, other than by way of injunction, as where the title of the complainant is equitable merely, or equitable interposition is necessary on account of the impediments which prevent a resort to remedies purely legal ; and such an equity may arise out of and in here in the nature of the ac- count itself, springing from special and peculiar circumstances which disable the patentee from a recovery at law altogether, or render his remedy in a legal tribunal difficult, inadequate and incomplete, and as such cases cannot be defined more exactly, each must rest upon its own particuliar circumstances, as furnishing a clear and satisfac- tory ground of exception from the general rule." Further Notes of Decisions. — The jurisdiction is original and statu- tory. Blank v. Mfg. Oo., 3 Wall., Jr., 196. And is exercised in aid of the common law and of the statute. Sullivan v. Redfield, 1 Paine, 441. But not;exclusively so. Batten v. Sullivan. Id., 124. And a trial at law is not a prerequisite. McMillin v. Barclay, 5 Pish., 189. The power conferred is a general equity power and carries with it that species of jurisdiction. Potter v. Dixon, 5 Blatchf., 160. A bill will not lie solely to recover damages for infringement, but if it pray an injunction or discovery and account, it will. Vaughan v. R. R. Oo., 1 Flipp., 621. Where, however, the real object is to ob- tain damages for a mere breach of contract, jurisdiction will not be entertained, though the bill contain other matter which would give jurisdiction. Magic Ruffle Oo. v. Elm Oity Co., 14 Blatchf., 109 ; Sales V. R. R. Oo., 3 Hughes, 172. Unless it appear that the case cannot be adequately tried at law without great difficulty. Magic Ruffle Oo. V. Elm City Co., 14 Blatchf., 109. In such case equity will assume jurisdiction and decree full relief. Id. ; Burdell v. Comstock, 15 Fed. Rep., 395. A bill in equity to recover only damages for the infringement of a patent will not lie after the patent has expired, for the remedy is complete at law ; otherwise, if it asks for a discovery, and such an account as is the proper subject of a suit in equity. Vaughan v. R. R. Co., 1 Flipp., 621 ; Nevins v. Johnson, 3 Blatchf., 80. So, where the patent expires pending the suit, the court will order an accounting. Stevens v. R. R., 5 Dill., 487. See Gottfried v. Moer- lein, 14 Fed, Rep., 170, note; Adams v. Howard, 19 Id., 317 ; Oon«- SUPREME COURT, DISTRICT OF COLUMBIA. 529 solidated Valve Oo. v. Crosby Valve Co., 113 U. S., 157. Beedle v. Bennett, 122 U. S., 171. 14. Preliminary Injunction, when Granted. — In order to entitle the complainant to a preliminary injunction, there must be either (1) ex- clusive possession of some kind by the patentee or his assignees, or (2) a judgment at law adjudicating complainant's right, or (3) a final hearing in equity ; Doughty v. West, 2 Pish., 553 ; or (4) where his right is clear and unquestionable. North v. Kershaw, 4 Blatchf., 70; Toppan V. Nat. Bank Note Co., Id., 509. The mere exhibition of a patent and the allegation of infringement is not enough unless the court is reasonably satisfied of the validity of the patent. Sullivan V. Redfield, 1 Paine, 441. But a verdict at law against one infringer is suflfloient cause for granting a preliminary injunction against an- other infringer. Orr v. Badger, 1 Brunner Col. Cases, 537 ; Hovey V. Stevens, 1 Woodb. & M., 13. So equity, for the purposes of a pre- liminary injunction, will consider the patent as established when its validity has been frequently but unsuccessfully assailed in the courts of law. Van Hook v. Pendleton, 1 Blatchf., 187 ; Odorless Excavat- ing Oo. V. Lauman, 12 Fed. Rep., 788 ; Kirby Bung Co. v. White, 5 Bann. & A., 263. But, although a verdict has been recovered, yet if a motion for a new trial has been made, or a bill of exceptions sealed, or a writ of error sued out, an injunction will usually be refused until the final result. Day v. Hartshorn, 3 Pish., 32. But the court may consider the errors alleged, and if they appear without founda- tion, grant the injunction. Wells v. Gill, 2 Pat. Off. Gaz., 590. Nor will a decree by consent in one court lay a foundation for a prelimi- nary injunction in another. Warner v. Bassett, 7 Fed. Rep., 468. And even after the validity of the patent has been established at law, it may be shown, on a motion for a preliminary injunction, that plaintiff's right, as now claimed, was not fairly in controversy. Page V. Holmes' Burglar Alarm Co., 18 Blatchf., 118, Injunction may be granted after application for and before issue of patent. Butler V. Ball, 38 Pat. Off. Gaz., 420. Decree establishing validity of patent is not contlusive against another defendant. National Hat Co. v, Hedden, 38 Pat. Off. Gaz., 1129. There is no jurisdiction to enjoin a libel on the title of a patent. Wheel Co. v. Bemis, 38 Pat. Off. Gaz., 1132. Decree against validity of patent, afterwards vacated and patent confirmed. Held, not a sufficient adjudication to warrant' a preliminary injunction by another court. Spring v. Domestic Sew. Mac. Co., 2 N. J. L. J., 274. But where there has been exclusive possession of some duration under a patent, a preliminary injunction to restrain infringements will be granted without obliging the pat- entee to previously establish the validity of his patent by an action at law. Washburn v. Gould, 3 Story, 122 ; Sargent v. Seargrave, 2 Ourt., 553 ; Gutta-Percha Co. v. Goodyear Co., 3 Sawyer, 542. When judgment for contempt in violating preliminary injunction is review- able on appeal. Worden v. Searls, 121 U. S., 14. 15. Who are Necessary Parties Plaintiff.— All those who have a title 67 530 PEACTICE AND PEOCEDtJEE OF THE to the patent. Edgerton v. Breck, 5 Bann. & A., 42 ; and the bill is fatally defective if they are not. Jordon v. Dobson, 2 Abb. TJ. S., 398 ; 8. c, 7 Phila., 533. But if others are joined the bill should not be dismissed, striking out their names is sufficient. Id. If an as- signee is plaintiff he must own the entire and exclusive right for a specified territory. Hill v. Whitcomb, 5 Pat. Off. Gaz., 430. Owning the exclusive right to sell but not to manufacture, is not sufficient. Id. Where the legal and equitable right is in different persons both must be joined as plaintiffs. Stimpson v. Rogers, 4 Blatchf , 333. Thus, if a patentee be under contract to assign, the proposed assignee must be joined. Wheeler v. McCormick, 4 Pat. Off. Gaz., 492. So where the patentee dies, his administrator, who is the legal owner, must be joined with the heirs who are the equitable owners. North- western Fire Extinguisher Co. v. Philadelphia Fire Exting. Co., 6 Pat. Off. Gaz., 34 ; but see Hodge v. Railway Co., 1 Dill., 104. But if an equitable owner bring suit in name of legal owner, the former may, at any time, be made co-plaintiff on application. Patterson v. Staples, 7 Fed. Rep., 210. The objection that plaintiff has no interest may be taken by demurrer. Hodge v. Railway Co., 1 Dill., 104. Where the party alleged to own the interest sued on disclaims in favor of plaintiff this will obviate the objection. Graham v. Mfg. Co., 11 Fed. Rep., 138. 16. Who should be Joined as Defendants. — All who use, or employ others to use, or receive profit from the use of, the iuMnging article may be joined. Woodworth v. Hall, 1 Woodb. & M., 248 ; Wood- worth V. Edwards, 3 Id., 120 ; Goodyear v. Phelps, 3 Blatchf., 91. But a mere workman having nothing to do with the profits, but merely in the infringer's employ, should not be joined in a suit for an account. Sargent v. Larned, 2 Curt., 340. Otherwise, if the em- ployee be in any way interested in the profits, as by commissions on sales, etc. Steiger v. Heidleberger, 4 Fed. Rep., 455 ; 18 Blatchf., 426. And though not interested in the profits, yet he may be en- joined from making or selling. Maltby v. Bobo, 14 Blatchf, 53. As to service of process on a foreign corporation, see United States v. Bell Telephone Co., 38 Pat. Off. Gaz., 1237. Owner of equitable in- terest not answerable in a suit for infringement to owners of legal Interest. Aspinwall Co. v. Gill, 40 Pat. Off. Gaz., 1133. 17. Averments of the Bill. — For a clear statement of the requisites and sufficiency of a bill for discovery and account in a suit for in- fringement, see Perry v. Corning, 7 Blatchf, 195. It must be averred that complainant is the inventor. Sullivan v. Redfield, 1 Paine, 441 ; Rogers v. Abbott, 4 Wash., 514. Or that the title is vested in plaintiff. Nourse v. Allen, 4 Blatchf., 376. And that he is in exclusive posses- sion. Isaacs V. Cooper, 4 Wash., 259. Or is exclusive assignee for the specified territory. Hill v. Whitcomb, 5 Pat. Off. Gaz., 430. And that after the granting of thepatenttheinventionhasbeen putintouse. Isaacs V. Cooper, 4 Wash. , 259. But while an averment of title is neces- sary, a deduction of such title is not. > Nourse v. Allen, 4 Blatchf., 376. SUPREME COURT, DISTRICT OF COLUMBIA. 531 So an assignee need not aver the recording of his assignment. Perry V. Corning, 7 Blatchf., 195. It is sufficient to aver the use of the article by the defendant without stating what use was made of it. Fischer V. Hayes, 6 Fed. Rep., 76. Nor is it necessary to set out the particu- lars of the infringement. Turrill v. Cammerer, 3 Pish., 462. A gen- eral charge is sufficient. , Haven v. Brown, Id., 413.. Not necessary to allege residence of parties. Teese y. Phelps, McAU., 17. But the return of the marshal must show that the subpoena was served within the district. Thayer v. Wales, 5 Pish., 448. An express prayer for damages is not necessary ; they are recoverable under the prayer for general relief. Emmerson v. Simm, 6 Fish., 281. Where an injunc- tion is prayed for there should be subjoinfed a special aflB davit as to the truth of the allegations, or that the alleged inventor was the original and first inventor, as ,he believes, of the thing patented, and that the same had not 'been in use or described anterior to said in- vention. Rogers v. Abbott, 4 Wash., 514 ;" Sullivan v. Redfleld, 1 Paine, 441. 18. Mnltifarionsness. — Where the bill alleges infringements of sev- eral patents for different inventions, it must aver that the inventions are capable of conjoint use, and that they are in fact so used ; other- wise the bill is demurrable for multifariousness. Borney v. Peck, 16 Fed. Rep., 413 ; Lillienthal v. Detwiller, 18 Fed. Rep., 176. For instances of multifariousness, see Hayes v. Dayton, 18 Blatchf., 420 ; Consolidated Electric Light Co. v. Brush-Swan Co., 20 Fed. Rep., 502 ; Nellis v. McLanahan, 6 Fish., 286. 19. Flea. — Where defence is made by plea, the plea must not contain more than one defence ; it may embrace various facts, but they must all conduce to a single point on which the defendant rests his defence. If there is more than one distinct ground of defence to be urged, these should be set up by way of answer and not of plea. Reissner v. An- ness, 3 Bann. & A., 148. Defences of a prior patent or previous descrip- tion in a printed publication, as specified in Rev. Stat., sec. 4920, sub- div. 3, must be set up in an answer, and not in a technical plea. Cam- rick V. McKesson, 19 Blatchf, 369. 20. Answer. — Defences not set up in the answer will not be considered by the court in renderins; its decision. Howes v. Nute, 4 Cliff., 173 ; Wonson v. Peterson, 13 Pat. Off. Gaz., 548. More than one defence may be presented, but each should be separately and clearly alleged. Gra- ham T. Mason, 4 Cliff., 88 ; Jordan v. Wallace, 5 Fish., 185. Denying the infringement on information is insufBcient. Wooster v. Muser, 20 Fed. Rep., 162. But plaintiff by replying admits its sufficiency, and assumes the burden of proving the infringement. Id. To a bill which avers that, unless restrained by injunction, the defendant will in future violate, as he has heretofore done, plaintiff's patent, is established on the trial at law, an answer that what defendant has done since the trial has not been in violation of plaintiff 's rights, is not sufficient; there should be a distinct averment that he does not intend in future to do the specific things which the court has determined he has no 532 PEACTICE AKD PEOCBDUEE OF THE right to do. PoffenhuBen v. New York Gutta Percha Comb. Co., 4 Blatchf., 453. If it is intended to form an issue to try the validity of a patent because not original, the answer should set out the names of places and persons where and by whom a like invention or thing has been used. Graham v. Mason, 4 Cliff., 88 ; Earl v. Dexter, 1 Bann. & A., 400. For the requisites of an answer seeking to set up want of novelty as a defence, see Jordan v. Dobson, 2 Abb. U. S., 398. 21. Amending Answer.— Where it is desired to add new matter by amendment, its relevancy must be shown. Richardson v. Croft, 20 Pat. Off. Gaz., 372 ; and that it could not with reasonable diligence have been set up in the original answer. Id. India Rubber Comb Co. V. Phelps, 8 Blatchf., 85 ; Ruggles v. Eddy, 11 Blatchf, 524. Under these conditions defendant may amend, denying the validity of the patent. Morehead v. Jones, 3 Wall., Jr., 306 ; Snow v. Tapley, 13 Pat. Off. Gaz., 548. And where an answer sets up prior use as a defence, and gives the names and residences of certain witnesses intended to be called, and prays leave to insert and set forth others when they shall be discovered, such amendment may be allowed on subsequent discovery of the facts. Roemer v. Simon, 95 U. S., 214. 22. Cross-Bills. — A cross-bill may be filed to establish the equitable title of the defendant, where the legal title is inthe plaintiff. Bran- don Mfg. Co. V. Prime, 14 Blatchf., 371. And where the cross-bill shows that persons not parties to the original bill are necessary parties to the cross-bill, they may properly be made such. Id. 23. Court may Submit Questions of Fact to a Jury.— The said [circuit] courts, when sitting in equity for the trial of patent causes, may impanel a jury of not less than five and not more than twelve persons, subject to such general rules in the premi- ses as may, from time to tim^, be made by the supreme court, and submit to them such questions of fact arising in such cause as such circuit court shall deem expedient ; and the verdict of such jury shall be treated and proceeded upon in the same manner and with the same effect as in the case of issues sent from chancery to a court of law and returned with such find- ings. Act of Feb, 16, 1875, sec. 2. 18 St. L., 315. Note. — The rule that a verdict of a jury is only advisory with the court is not affected by this statute. Watt v. Sterke, 101 U. S., 247. 24. The Bight to Recoyer Profits.— Where no profits are made none can be recovered, and only such can be recovered as result directly and immediately from the infringement. Remote and contingent profits are not recoverable. Piper v. Brown, 6 Pish., 240 ; and he is entitled to any profit the infringer has made, without regard to profit or loss on the whole structure or machine of which the infringed mechanism forms a part. Graham v. Mason, 5 Fish., 290. See Cal- kins V. Bertram, 8 Fed. Rep., 755 ; Putnam v. Lomax, 10 Biss., 546. So the defendant cannot, by applying gains arising from the use of DISTRICT OF OOI-UMBIA. 533 the inftinging machine, to make up losses on other branches of his business, deprive complainant of his right to recover. Conover v. Mere, II Blatchf., 197. But where defendant keeps a store, selling articles, some of which infringe the plaintiff's patent and others do not, a proportionate part of the expense of the store is properly de- ductable from the profits arising from the sale of the infringing arti- cles. Tremaine v. Hitchcock, 23 Wall., 618. It is not the profits which the defendant might by due diligence have made, but what he actually did make, which the plaintiff is entitled to recover. Lev- ingston v. Woodworth, 15 How., 546 ; Dean v. Mason, 20 How., 198. But see Burdell v. Denig, 92 U. S., 716. The profit is that which the defendant has derived from the use of the plaintiff's invention in excess of the profit he .could have derived from the use of other in- ventions open to the public and adequate to an equally beneficial result. Mowry v. "Whitney, 14 Wall., 620; Dobson v. Hartford Car- pet Co., 114 U. S., 439. Compare Gould's Mfg. Co. v. Cowing, 105 U. S., 253. The burden is on the coniplainant to show profits. Calkins V. Bertrand, 10 Biss., 445. But in cases of wilful infringement the proof should be interpreted more liberally in favor of complainant. Bigelow Carpet Co. v. Dobson, 10 Fed. Rep., 385. Where, however, profits are shown to have been made by the use of an article patented as an entirety defendant is liable for them, and the burden of proof is on him to show that a portion of these profits is the result of some other thing used by him. Elizabeth v. Pavement Co., 97 U. S., 126. 25. The Eeference for an Account. — For the mode of proceeding be- fore the master, or, as in this court, the auditor, see Kerosene Lamp Heater Co. v. Fisher, 5 Bann. & A., 78 ; Troy Iron Co. v. Corning, 6 Blatchf., 328 ; Tarrill v. Illinois Cent. ±1. R. Co., 5 Biss., 344 ; Brady V. Atlantic Works, 15 Pat. Off. Gaz., 965 ; Garrelson v. Clark, 111 U. S., 120. 26. Interest on Froflts. — As a general rule interest on profits is not allowable. Littlefield v. Perry, 21 Wall., 205. But special circum- stances may justify it. Id. It is never allowed without an order of court. Parks v. Booth, 102 U. S., 96. And then it runs only from the final decree. Mowry v. Whitney, 14 Wall., 620. 27. Statutory Becorery of Damages in Equity.— See sec. 4921, R. S. U. S. Ante, p. 527. Notes. — The object of this statute is to enable a plaintiff in equity to recover in such suit, not only the profits made by the defendant by means of the infringement, but also the damages sustained by the plaintiff thereby ; but he cannot recover as damages any items which he could not recover as damages in an action on the case. Bancroft V. Acton, 7 Blatchf, 505. And if the profits exceed the damages the former only will be allowed. Buerk v. Imhaeuser, 10 Pat. pff. Gaz., 907. So only the excess of the injuries over profits. Carew v. Bos- ton Elastic Fabric Co., 3 Cliff., 356. For other cases see Marsh v. Seymour, 97 U. S., 348 ; Sargent v. Yale Lock Mifg. Co., 17 Blatchf., 534 PRACTICE AND PEOCEDTJEB OF THE 249 ; Locomotive, etc., Truck Co. v. Pa. R. R., 2 Fed. Rep., 677 ; 5 Bann. & A., 514 ; Williams v. R. R. Co., 18 Blatchf., 181 ; St. Louis Stamping Co. v. Ozimby, 5 Bann. & A., 275. As to trebling damages in equity, see Carew v. The Boston Elastic Fabric Co., 3 Cliflf., 356 ; Campbell v. James, 5 Bann. & A., 630 ; Schwartzel v. Holenshade, 2 Bond, 29. 28. Costs. — Where judgment or decree is rendered for the plaintiff or complainant, in any suit at law or in equity, for the infringement of a part of a patent, in which it appears that the patentee, in his specification, claimed to be thp origi- nal and first inventor or discoverer of any material or substan- tial part of the thing patented, of which he was not the origi- nal and first inventor, no costs shall be recovered, unless the proper disclaimer as provided by the patent laws, has been entered at the Patent Office before the suit was brought. E. S. TJ. S., sec. 973. [See E. S. U. S., sees. 4917 and 4922, ante, p. 527.] Notes. — For construction of this statute see Doughty v. West. Mfg. Co., 4 Fish., 318 ; and see Elastic Fabric Co. v. Smith, 100 U. S., 110. Where plaintiff .greatly exagerated his claim to proflts, caused a great waste of time in the master's ofllce, introduced a large amount of irrelevant evidence, and in the end recovered a compara- tively small sum, he was held chargeable with his own costs in the master's oflBce. Troy Iron, etc., Fsictory v. Corning, 6 Fish., 85. Complainants alleged in one bill infringements of two different pat- ents, and, compelling defendants to litigate both, prevailed only as to one. Held, neither party entitled to recover costs. Adams v. Howard, 19 Fed. Rep., 317. Where nominal damages only are awarded, the assessment of costs will depend on the special circum- stances of the case. Calkins v. Bertrand, 8 Fed. Rep., 755. PART V. RULES OF ADMIRALTY PRACTICE. DISTEICT OF COLUMBIA. 537 RULES OF ADMIRALTY PRACTICE. 1. Jurisdiction in Admiralty; Preliminary Note, — Any one of the justices may hold a special term, with the same powers and jurisdiction possessed and exercised by District Courts of the United States. E. S. D. C, sec. 762. Ifotes. — The admiralty jurisdiction " possessed and exercised by the District courts of the United States " is derived from section 563, Bubdivison eight, of the Revised Statutes of the United States. By that section the District courts (whose jurisdiction and powers are given to this court) have jurisdiction " of all civil causes of admiralty and maritime jurisdiction ; saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it ; and of all seizures on land and on waters not within admiralty and maritime jurisdiction. And such jurisdiction shall be exclusive, except in the particular cases where jurisdiction of such causes and seizures is given to the circuit courts." This section, it has been held, gives to the District courts [and consequently to this court] a general jurisdiction in admiralty and maritime causes. See. Penhallon v. Doane, 3 DalL, 54, 86 ; Jennings v. Carson, 4 Oranch, 2; Brown v. United States, 8 Oranch, 110; McGinnis v. The Pontiac, 1 Newb., 130. Whether considered as an instance or as a prize court. Glass v. The Betsy, 3 Dall., 6 ; Jennings v. Carson, 1 Pet. Adm., 1 ; Carson v. Jennings, 1 Wash., 129. And whether par- ticularly of admiralty cognizance or not ; and such jurisdiction and the laws regulating its excercise are to be sought for in the general maritime law of nations, and are not confined to that of England, or any other particular maritime nation. The Seneca, 3 Wall., jr., 395. The grant of admiralty power is coextensive with the grant in the Constitution. The Hive v. Trevor, 4 Wall., 555. It comprehends all maritime contracts, and those which relate to the navigation, busi- ness or commerce of the sea, and the building, repairing or supply- ing of vessels. Davis v. A New Brig, Gilp., 473 ; see, however, CoUis V. The Corwine, 39 Hunt's Merch. Mag., 197 ; 7 Am. L. Reg., N. S., 6. It embraces contracts of affreightment and charter parties. The Dick Keys, 1 Biss., 408 ; Lowry v. Canal Boat, 4 Pa. L. J. R., 25 ; The A. M. Bliss, 2 Low, 103. As a court of admiralty and maritime juris- diction it may entertain suits for all torts, damages and unlawful seizures at sea ; and may, as a court of revenue, entertain suits for the trial of property seized for violations of municipal laws ; and as incident to this jurisdiction may compel a redelivery of the property and awar^ damages for any loss or injury to it. Burk v. Trevit, 1 Mason, 96. 68 538 PRACTICE AND PEOOEDXJEE OF THE RULE 1. Issue of Process. — N"© mesne process shall Issue in any civil cause of admiralty and maritime jurisdiction until a libel or libel of information shall have been filed in the clerk's office. RULE. 2. Service of Process. — AH process shall be served by the mar- shal or by his deputy, or, where he or they are interested, by some discreet and disinterested person appointed by the court. Note. — All original process must be served by the marshal or his deputy, but subpoenas and notices directed to a witness or a party need not necessarily be served by the marshal. Schwabaker v. Reilly, 2 Dill., 127. RULE 3. Return of Process. — ^Monitions, citations, and warrants of arrests shall in all cases be made returnable in fourteen days, except when the justice, by special order, shall designate an earlier day. RULE 4. Form of Process in Personam. — In suits in personam the mesne ijrocess may be by a monition in the nature of a sum- mons of the defendant to appear and answer the suit, or by such summons, with a clause therein, if he cannot be found, to at- tach his goods and chattels to the amount sued for, or, if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein, as the libellant shall in his libel or information pray. Eules in Admiralty of Supreme Court of TJ. S., No. 47 ; Eev. Stat.Dist. Col., sec. 791. N^otes.— Rule Forty-seven of the Rules in Admiralty of the Supreme Court of the United States, here referred to, is as follows : " In all suits in personam where a simple warrant of arrest issues and is executed, bail shall be taken by the marshal and the court in those cases only in which itis required by the laws of the State, where an arrest is made upon similar or analogous process issuing from the State courts. - " And imprisonment for debt, on process issuing out of the ad- miralty court, is abolished in all case? where, by the laws of the State, in which the court is held, imprisonment for debt has been, or SUPREME COtTET, DISTRICT OF COLUMBIA. 539 shall be hereafter, abolished, upon similar or analogous process issu- ing from a State court." This rule is based upon section 990 R. S. U.S. Section 791 of the Revised Statutes relating to the District of Co- lumbia, declares that " No person shall be held to bail in the District in any action of debt, assumpsit, or other action founded on or arising out of any contract or agreement, or any suit or proceeding in equity brought or prosecuted for enforcing the payment of any debt, or of any sum or sums of money due or claimed to be due by reason of any contract or agreement." Rule 4, it will be observed, abolishes the warrant of arrest given by Rule 2 of the Rules of Admiralty Practice provided by the Supreme Court of the United States for the courts of the United States. It is difficult, however, to see how the court can refuse to exercise one of the well recognized powers of courts of admiralty, in the granting of process, until it is deprived of that power by some statutory enact, ment. Certainly, neither Rule 47 of the Supreme Court, nor sec- tion 990, R. S. U. S., upon which it is founded, would seem to author- ize such action, for they refer to the laws of the States and the pro- cess of State courts. Neither does section 791, R. S. D. C, seem to have any application to admiralty causes, for it plainly refers only to mesne process in actions at law and suits or proceedings in equity, founded on or arising out of any "contract or agreement." See the following eases bearing upon the question: Gardner v. Isaac- son, Abb. Adm., 141; Gaines v. Travis, Id., 422; Atkins v. Disinte- grating Co., 1 Ben., 118. The Attachment Clause. — The process by attachment may issue whenever the defendant has concealed himself or absconded from the country, and the goods to be attached are within the jurisdiction of the admiralty. Mauro v. Almeida, 10 Wheat., 473. ,0r if he is an inhabitant of the United States not residing within the District. Atkins V. Disintegrating Co., 18 Wall., 272. And against the prop- erty of foreign corporations found within the jurisdiction. Clarke V. Navigation Co., 1 Story, 531 ; Dyer v. Navigation Co., 14 Blatehf., 483. It may issue against his goods and chattels, and against his credits and effects in the hands of third persons. Id. And in case of default the property attached may be condemned to answer the demand of the libellant. Id. It is not necessary that the property to be attached should be specified in the libel. Id. Stocks and credits are attachable in admiralty, by means of the simple service of a notice without the aid of any statute. Miller v. United States, 11 Wall., 268. The primary purpose of the attachment is to effect the appearance of the* defendant, and not that of the garnishee. Smith V. Mills, Abb. Adm., 373. RULE 5. Arrest of Property — For What Sum. — In suits in personam no warrant of arrest of the property of the defendant shall issue 540 PRACTICE AND PEOCEDTJEE OF THE for a sum exceeding five hundred dollars, unless by a special order of the court, upon afSdavit or other proper proof show- ing the propriety thereof. BULE 6. Attachment and Garnishment.— In cases of foreign attach- ment the garnishee shall be required to answer under oath or solemn affirmation as to the debts, credits or effects of the de- fendant in his hands, and to such interrogatories touching the same as may be propounded by the libellant, and if he shall refuse or neglect so to do the court may award compulsory process in personam against him. If he admits any debts, credits, or effects, the same shall be held in his hands liable to answer the exigency of the suit. Notes. — It is the right and duty of a garnishee in admiralty to put in an answer, and the libellant has not the right to contest it. Story V. Rennel, 1 Sprague, 418. And if the garnishee makes default, execution does not, in the first instance, go against him personally, or against his property, but only against the debts, effects or credits of the principal in his hands. The libellant may, however, have compulsory process to obtain an answer, or, if he can satisfy the court by affidavits that the garnishee has debts, effects or credits in his hands, the court will dispense with an answer and grant execution against them, and the garnishee has not the right thereafter to discharge himself by putting in an answer, although the court, in its discretion, may allow him to do so upon terms. Story V. Rennel, supra. RULE 7. Dissolution of Attachment. — When goods and chattels or credits and effects are attached in any suit in personam, under a warrant authorizing the same, the attachment may be dis- solved by order of the court upon the defendant whose prop- erty is so attached giving a bond or stipulation, with sufficient sureties, to abide by all orders, interlocutory or final, of the court, and pay the amount awarded by the Anal decree rendered in said cause; and summary process of execution may and shall be issued against the principal and sureties on said bond or stipu- lation to enforce the final decree so rendered, or, upon appeal, by the appellate court. Note.— The bond becomes a pledge or substitute for the property as regards all claims that may be made against it by the promoter of the suit: It is to be considered as a security not for the amount of BTJPEEME COTJET, BISTEICT OF COLUMBIA. 541 the claim, but simply for the value of the property arrested, to the extent of the claim and costs of suit, if any, beyond the preliminary stipulation. See United States v. Ames, 99 U. S., 35, 36. EULE 8. Seizure, Process in Cases of. — In all cases of seizure, and other suits and proceedings in rem, the process, unless other- wise provided for by statute, shall be by warrant of arrest of the ship, goods, or other things to be arrested ; and the marshal shall thereupon arrest and take the ship, goods, or other things into his possession for safe custody, and shall cause notice thereof to be given by publishing in some newspaper in the city of Washington a short statement of the purport of the libel, with the order of the court thereon, setting forth the time appointed for retutu of such process and the hearing of the cause, and by posting up the same, for the space of four- teen days, at the door of the court-house ; Provided, That the judge may, by special order, direct a shorter notice than four- teen days. Ifotes. — Property attached under this rule may be released on the filing of a bond according to the form used by the court. Poland v. Brig Spartan, 1 Ware, 134. Proceedings in rem cannot be instituted by a party against an undivided interest of an owner in a vessel. Ins. Co. v. Schooner Breed, 1 Plipp, 655. BULE 9. Tackle, etc., in Possession of Third Person. — If, in any suit in rem against a ship, her tackle, sails, apparel, furniture, boats, or other appurtenances, such tackle, sails, apparel, fur- niture, boats, or other appurtenances are in the possession or custody of any third person, the court may, after a due moni- tion to such third person, and a hearing of the cause, if any, why the same should not be delivered over, award and decree that the same be delivered into the custody of the marshal, or other proper officer, if, upon the hearing, the same is re- quired by law and justice. RULE lO. Property Attached to or Bound by Suit — How Brought into Court. — Wliere freight or other proceeds of property are at- tached to or bound by the suit in any proceedings in rem, and are in the hands or possession of any person, the court may, upon due application by petition of the party interested, re- 542 PEACTICTE AND PEOCEDUEE OF THE quire 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, may order the same to be so brought in for such purpose, and, upon failure of the party to comply with such order, may award an attachment or other compulsory process to compel obedience thereto. Notes.— See The Gran Para, 10 Wheat, 497 ; Sheppard v. Taylor, 5 Peters, 675. RULE U. Delivery of Arrested Property to Claimant. — In all cases where any ship or goods or other property are arrested, the court may, upon the application of the claimant, order a de- livery thereof to him upon a due appraisement, to be had under its direction, either upon the claimanfs depositing in court so much money as the court shall order or upon his giv- ing a stipulation, with sureties, ii^ such sum as the court shall direct, to abide by and pay the money awarded by the final decree rendered by the court or by the appellate court ; and if the claimant shall decline such stipulation, then the court may, in its discretion, upon the application of either party and due cause shown, order a sale of such ship, and the pro- ceeds thereof to be brought into court or otherwise disposed of, as it may deem most for the benefit of all concerned. Notes. — Where one of several claimants sign the stipulation, only that one can be held liable. The Zodiac, 5 Fed. Rep., 320. Where one of the owners has the ship delivered to him upon an appraisement, and he gives a stipulation to refund that value, he cannot afterwards insist that the ship is of less than that value in his hands ; or that he has discharged other liens diminishing the value for which the owners were personally Hable, in solido, in the first instance. On the other hand, he is only liable to the extent of the appraised value^ The Ship Virgin, 8 Pet., 538, 854. RULE 12, Delivery on Payment into Court. — In suits in rem for sea- men's wages, and in all other actions in rem for sums certain, the claimant or respondent may pay into court the amount sworn to be due in the libel, with interest computed thereon from the time it was due to the return day of the attachment,, and the costs of the officers of the court already accrued, to- gether with the sum of $50 to caver further costs,, etc., or, at SUPREME COURT, DISTRICT OF COLUMBIA. 543 his option, may give stipulation to pay such sworn amount, with interest, costs, and damages (first paying into court the costs of the officers of the court already accrued), and in either case may thereupon have an order entered instantly for the delivery of the property arrested without having the same appraised. RULE 13. Perishable Goods.— Where any goods or other things arrested are perishable, or are liable to deterioration, decay or injury, by being detained in custody pending the suit, the court may, upon the application of either party, in its discretion, order the same to be sold, and the proceeds, or so much thereof as shall be a full security to satisfy the decree, to be brought into court to abide the event of the suit, or mayj upon the applica- tion of the claimant, order a delivery thereof to him upon compliance with the proceedings and conditions prescribed as to delivery of ships in the preceding rule. Notes. — Where a cargo is liable to, deterioration or a ship to injury, or delay, neither party as a matter of right can have a delivery on bail. The proper course is to apply to the court for a sale of the property. ' Ship Nathaniel Hooper, 3 Sumn., 543. And the order may be made by the court below even during the pendency of an appeal in the higher court. Jennings v. Carson, 4 Cranch, 1. RtlLli 14. Suits for Mariners' Wages. — In all suits for mariners' wages the libellant may proceed against the ship, freight, and mas- ter, or against the ship and freight, or against the owner or the master alone in personam. Notes. — The seaman's lien for wages will follow the ship and its proceeds into whose hands soever they may come by title or pur- chase from the owner. Sheppeard v. Taylor, 5 Pet., 675. And to the full extent of the freight. Pitman v. Hooper, 3 Sumn., 443. Their wages are "nailed to the last plank of the ship and the last fragment of the freight." Id. His claun is preferred to the claim of forfeiture of the vessel on the part of the Government. The St. Jago de Cuba, 9 Wheat., 409. But not if he is cognizant of the il- legal character of the voyage. Id. See United States v. Eobertson, 5 Pet., 675 ; The Langdon Cheves, 2 Mason, 58. Nor is his right affected by any private contract between the ship owner and the shipper in regard to freight. Pitman v. Hooper, supra. And his right takes precedence of bottomry bonds and all other claims, 544 PRACTICE AND PEOCEDtTRE OF THE whether the entirety of the fund out of which they are to be paid or a part of it is lost by accident or otherwise. Id. He has a tripple security for his wages, viz., the vessel, the owner and the master. Bronde v. Hoven, Gilp., 592. The freight money may be attached in the hands of the parties where it is found. The Sailor Prince, et aL, 1 Ben., 234. And where he has rendered services in port, he is en- titled to his lien on the vessel for wages, though the vessel never ships for the voyage. Brig Blohm, 1 Ben., 228 ; The Island City, 1 Low, 375. The father may sue in admiralty for wages earned by his minor child by maritime services. Plummer v. Webb, 4 Mason, 380. Or the minor may sue alone in his own name if it does not ap- pear that he has a parent or guardian entitled to receive them. The David Faust, 1 Ben., 183. In such a suit he need not have a guardian ad litem, "Wicks v. Ellis, Abb. Adm., 444 ; The Blwin Kreplin, 4 Ben., 413. Foreign seamen may sue a foreign vessel in this country for wages where there is strong reason to believe that there will be a failure of justice if they are compelled to await redress until their return to their own port. Gonzales v. Minor, 2 Wall., jr., 348 ; The Hermine, 3 Sawyer, 80 ; The Havana, 1 Sprague, 402. But generally, though not always, in such cases it should appear that the suit is sanctioned by the consol or other representative of the nation to which the seaman belongs. The Infanta, Abb. Adm., 263 ; Bucker V. Klorkgeter, Abb. Adm., 402. The assignee of seamen's claim for wages has no maritime lien for those claims, and has no standing in a court of admiralty. Bnsk v. Steamboat Freestone, 2 Bond, 235. And the court will dismiss the libel though filed in the names of the seamen, whenever it appears that they have assigned their claims. Logan V. Steamboat Aeolian, 1 Bond, 267. The remedy given by sections 4546 and 4547, R. S. U. S., is cumulative, not exclusive. The Waverly, 7 Biss., 465. And the Ubel for wages may be filed without resorting to the preliminary proceeding authorized by those sections. Id. By the Act of Congress, July 20, 1790, a seaman is restricted from bringing an action for wages against a vessel, in her port of delivery, until ten days after her cargo is discharged, unless she is about to proceed to sea before the expiration of the ten days. The Cypress, 1 Blatchf. & H. Adm., 83. Or unless he is discharged. The David Faust, 1 Ben., 183. The service for which payment of wages is sought to be enforced must be essentially maritime service. Thackarey v. The Farmer, Gilp., 614. There must have been an em- ployment, and the services rendered must have contributed to the pre- servation either of the vessel or of those employed on in her naviga- tion. Trainer v. TTie Superior, Gilp., 51't Hence musicians hired and employed as such cannot enforce payment of their wages by a suit m rem. Id. But the cook and steward may. The Louisiana, 2 Pet. Adm., 269. And the pilot, deck hand, engineer and fireman of a steamboat or lighter engaged in trade or commerce, and plying in tide water. Wilson v. The Ohio, Gilp., 505. But not of a ferry boat or other vessel engaged in ordinary traffic along the river shore, Thackarey v. The Farmer, QUpv, 624. StrPREME COTJET, DISTRICT OF GOLUMBIA. 545 BtTLE 15. Suits foir Pilotage. — In all suits for pilotage the libellant may proceed against the ship and master, or against the ship, or against the owner or the master alone in personam. Notes. — Admiralty has jurisdiction in suits for pilotage on the high seas and on waters navigable from the sea, as far as the tide ebbs and flows. Hobart v. Drogan, 10 Pet., 108. The jurisdiction is in rem as well as in personam. The Annie, 1 Mason, 507 ; The Wave, 7 N. Y. Leg. Obs., 97 ; The William Law, 14 Fed. Eep., 792. But to be a lien on tbe vessel the contract must have been made by some person duly authorized. The Annie, 1 Mason, 507 ; Logan v. The AeoUan, 1 Bond, 267. RXJLB 16. Suits by Material Mea for Supplies, Repairs, etc. — In all suits by material men, for sujjplies or repairs or other neces- saries for a foreign ship, or for a ship in a foreign port, the ■ libelant may proceed against the ship and freight in rem, or against the master or the owner alone in personam ; and the like proceedings in rem shall apply to cases of domestic ships, where, by the local law, a lien is given to material men for supplies, repairs, or other necessaries. Notes. — This rule corresponds with Rule 12 of the Supreme Court Eules in Admiralty. Of that rule it is said in The Circassian, 11 Blatchf., 473: "It provides, and wg,s intended to provide, that in every case of a contract for supplies, etc., to a vessel domestic or foreign, being a maritime contract, process in rem against the ves- sel, or in personam, against her master or owner, may, optionally, be resorted to, where a suit is required to enforce the contract." But a contract to furnish materials for the construction of a vessel, even though built upon the shores of tide -water and designed for use at sea, is not within the admiralty jurisdiction of the United States courts. Young v. Ship Orpheus, 2 Cliff., 29. The nature of the contract or service, and not the question whether the contract is made, or the service is rendered, on the land or on the water, is the proper test of admiralty jurisdiction. Wortman v. Griffith, 3 Blatchf., 528. See Turner V. Beacham, Taney's Decisions, 583. If the subject matter concern the navigation of the sea the jurisdiction attaches, although the contract be made on kind. Such are the contracts of material men. Zane v. Brig President, 4 Wash., 453. But to create a hen for supplies furnished there must be a necessity for them, and it must appear that they could only be obtained on a credit of the vessel. Pratt v. Reed, 19 How., 359. In a contest between a libel- lant for supplies and the mortgagees of the vessel the latter are enti- tled to the proceeds of sale of the boat. Id. Where the contract is 69 546 PRACTICE AND PROCEDUKE OF THE partly maritime and partly not, admiralty wUl not adjust the rights and liabilities of the parties upon one portion of such a contract, but will leave them to the courts of law and equity. Turner v. Beacham, Taney's Dec, 583. A material man cannot maintain an action in personam in admiralty, where a note or other obligation has been taken for the demand. The Hilarity, 1 Blatchf. & H. Adm., 90. See also an article discussing this rul^ in 7 Am. Law Review, 1. RULE 17. Hypothecation, Suits for. — In all suits founded upon a mere maritime hypothecation, either expressed or implied, of the master, for monies taken up in a foreign port, tor supplies or repairs, or other necessaries for the voyage, without any claim of marine interest, the libelant may proceed either in rem against the ship or freight or against the master or the owner alone in personam. Notes. — Hypothecation of the vessel can only be made in a foreign port ; but in the jurisdiction of the United States aU maritime ports other than that where the vessel belongs are foreign to the vessel. The Brig Rich, 1 Cliff., 308. To support hypothecation by bottomry, evidence of actual necessity for repairs and supplies is required, and if the fact of such necessity be left unproved, evidence is required of due inquiry and of reasonable grounds of belief that the necessity was real and exigent. The Grape Shot, 9 Wall., 129 ; see also. The Aurora, 1 Wh., 96. RULE 18. Actions on Bottomry Bonds, in Rem and in Personam.— All suits on bottomry-bonds, properly so called, shall be in rem only against the property hypothecated, or the proceeds of the property, in whosoever hands the same may be found, unless the master has, without authority, given the bottomry-bond, or by his fraud or misconduct has avoided the same, or has subtracted the property, or unless the owner has, by his own misconduct or wrong, lost or subtracted the property, in which latter cases the suit may be in personam against the wrong- doer. Notes. — The court has jurisdiction to enforce a bottomry bond made in a home port. Tlie Draco, 1 Sumn., 157. Or executed in a foreign country between subjects of a foreign country, where the ship is within the maritime jurisdiction of the United States. The Jerusalem, 2 Gall., 190. By payment of the seamen's wages, a bot- tomry creditor entitles himself to be novated to the recovery of their demands against the vessel. The Cabot, Abb. Adm., 150. SUPEEME COTJKT, DISTKICT OF COLUMBIA. 547 What will justify the giving of a bottomry bond, see Patton v. Randolph, Gilp., 457 ; The Brig Attilla, Crabbe, 326. The suit may be maintained either in the name of the assignee or assignor of the bond. Burk v. Brig Rich, 1 Cliif., 308. RULE 19. Salvage, Actions for. — Suits for salvage may be in rem against the property saved, or the proceeds thereof, or in personam against the party at whose request and for whose benefit the salvage service has been performed. Notes. — In cases of salvage the court has jurisdiction even where all the parties are aliens, if the jurisdiction is not objected to. Mason V. Ship Blarieau, 3 Oranch, 240. And see United States v. Coombs, 12 Pet., 72; Houseman v. Schooner North Carolina, 15 Pet., 41. For circumstances in which a tug rendering services in towing fire engines to a vessel on fire in the harbor is entitled to salvage, see The Blackwell, 10 Wall., 1. Though the vessel performing salvage services be owned by a corporation, she is entitled to salvage as much as if owned by a natural person. The Comanche, 8 Wall., 448 ; The Blackwell, 10 Wall., 1. A lien for the salvage services exists on the property saved. Eads v. Steamboat Bacon, 1 Newb. Adm., 274 ; The Comanche, 8 Wall., 448. And follows it in the hands of others. Gates V. Johnson, 11 Law Rep., N. S., 277. And it requires the most unequivocal acts on the part of the salvors to show that they in- tended to abandon their lien, and resort to the owners for payment. Bads V. The Bacon, supra. Because some of the salvors do not make claim does not disentitle those who do, but the services of the former enures to the benefit of the vessel, and not to the prosecuting salvors. The Blackwell, 10 Wall., 1. But it would seem to be the duty of salvors, in bringing suit, to make their co-salvors parties, otherwise the court cannot do full justice to all concerned. Hessian v. The Howard, Newb. Adm., 522. And if it appear that the prosecuting salvors have concealed the names of others who equally participated in the salvage services, the libel should be dismissed. Id. Salvors cannot in the same libel proceed in rem against a vessel and in per- sonam against the consignors of her cargo. The Sabine, 101 U. S., 3,84; S. C, 2 Woods, 211. But by proceeding in rem the right to proceed in personam is not excluded, though there can be but one satisfaction. Brevoor v. The Ship Fair American, 1 Pet. Adm., 95. Ordinarily, however, there should be but one libel and costs paid for but one. The Schooner Charles Henry and Cargo, 1 Ben., 8. Where there is a contract for the services, the parties cannot abandon it and claim salvage. Bondies v. Sherwood, 22 How., 214. But nothing short of a contract to pay a fixed sum at all events, whether successful or unsuccessful, will bar a meritorious claim for salvage. The Comanche, 8 Wall., 449. Under what circumstances personal property of the United States on board a vessel is liable to 548 PRACTICE AND PEOOEDURE OP THE a lien for salvage, and how and when the lien may be enforced, see The Davis, 10 Wall., 15. RULE 20. Collisions, Suits to recover Damages for.— In all suits for damage by collision tlie libelant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam. Notes. — Admiralty has jurisdiction if the collision occurs on the high seas. Warring v. Clark, 5 How., 540. Or where the tide ebbs and flows. The Bark Lotty, Olcott's Adm., 329. Though at the pier or wharf. Id. And between a canal boat and a brig engaged ez- clusively in harbor services. The Volunteer, 1 Brown, 159. And the owner of the vessel injured has a lien on the offending vessel of equal rank with the lien of material men. Steamboat Ameri- can, 6 Law Bep., N. S., 264. The libeUant cannot join in the same libel a demand in rem with one in personam., but he may proceed successively in each mode until he has full satisfaction. Ward v. The Ogdensburg, 5 McLean, 623. See Newall v. Norton, 3 Wall., 257. Unless, it seems, the owner is also master. The Bichard Doane, 2 Ben., 111. Where the injury from the collision is the joint act of two vessels, both may be joined as defendants in one suit. Atkinson v. The Hamilton, 1 Bond, 536. But if each be guilty of a distinct and separate act of collision, without privity or concert, or unity of pur- pose, it is otherwise. Id. Nor can a joint action for collision be maintained in rem against one vessel, and in personam against the owner of another. The Young America, 1 Brown, 462. An insurer may, in case of total loss, libel the offending vessel, after notice and proof of loss and demand of payment, though there have been no ac- tual payment of the loss. The Mannistee, 5 Biss., 381. All the owners of a vessel injured by collision should be joined as libellants. The Bichard Doane, 2 Ben., 111. Butin case of damage to the cargo, the owners of the vessels carrying it may recover without joining the owner of the cargo. The Metis, 5 Ben., 203. And the master of a vessel having charge and custody of her at the time of the col- lision may alone maintain a suit to recover the damage, if it appear that his action is authorized by those interested. Steam Tug Uncle Abe, 9 Ben., 502. The admiralty court has no jurisdiction under the 4th section of the act of March 3, 1851, over the " appropriate pro- ceedings," to apportion the value of a vessel which has caused a collision among the parties who have suffered loss thereby. The Steamboat City of Norwich, 1 Ben., 89 ; Wright v. Norwich & N. Y. Transportation Co., 1 Ben., 156. SUPREME COTJET, DISTEIOT OP COLUMBIA. 549 BULB 21. Assault or Beating, Suit for. — AH suits for assault or beat- ing, in any place within tlie admiralty and maritime jurisdic- tion, shall be in personam only. Notes.— The master of a vessel is liable for an unjustifiable assault and battery by one of his officers upon one of the crew, if done by his connivance, consent or authority ; and this will be presumed, when it appears he knew of the trespass or had reason to know of it, and did not interfere to prevent it. Hanson v. Towle, 1 Sawy., 539. The seaman is entitled to recover damages for an assault and bat- tery from an officer of the ship : 1st. Where personal violence is in- flicted wantonly and without probable cause, though not excessively- ; 2d. Where there was provocation or pause, but the punishment was cruel or excessive ; 3d. Usually- when the punishment is inflicted with a deadly or dangerous weapon. Forbes v. Parsons, Crabbe, 283 ; and see The Lord Derby, 17 Fed. Rep., 265. An action for damages for assault and battery against the master cannot be joined in the same libel with an action for wages, if it be excepted to. Pratt V. Thomas, 1 Ware, 437; but if not excepted, queer e, whether the court may not adjudicate upon both in the same libel, making in each case a separate decree. Id. RULE 22. Petitory and Possessory Suits. — In petitory and possessory suits between part owners or adverse proprietors, or by the owners of a ship, or the majority thereof, against the master of a ship, for the ascertainment of the title and delivery of the possession, or for the possession only, or by one or more part- owners against the others to obtain security for the return of the ship from any voyage undertaken without their consent, or by one or more of the part-owners against the others to obtain possession of the ship for any voyage upon giving se- .curity 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. Notes.^A petitory suit may be sustained by a part-owner against a merely fraudulent possessor without joining the other part-owners . and if they do not appear or object, and the libellant establishes his, title, the court will decree the possession to him. Schooner Friend- ship, 2 Curt. C. C, 426. This rule requires a joint proceeding in rem, and in personam. The Ives, Newb. Adm., 206. See the following cases illustrating the law of petitory and possessory suits : Ward v. Peck, 18 How., 267 ; Schooner Tilton, 5 Mason, 465 ; The William D. 550 PRACTICE AND PEOCEDUEE OF THE Rice, 3 Ware, 134 ; Grigg v. Sloop Clarissa Ann, 2 Hughes, 89 ; The Martha Washington, 3 Ware, 245 ; Five Hundred and Twenty Pieces of Mahogany, 2 Lowell, 323 ; Morgan v. Tapscott, 5 Ben., 252 ; Thur- ber V. The Fannie, 8 Ben., 429. RULE 23. Seizures, Informations and Libels on.— AH informations and libels of information upon seizures for any breach of the rev- enue or navigation or other laws of the United States shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the admiralty and mari- time jurisdiction of the 'United States, and the district within which the property is brought, and where it then is. They shall also propound, in distinct articles, the matter relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require, and shall conclude with a prayer of due process to enforce the for- feiture, and to giA'e notice to all persons concerned in interest to appear and show cause, at the return-day of the process, why the forfeiture should not be decreed. Notes.— The libel must aver specially all the facts which constitute the offence. The Steamer Anne v. The United States, 7 Cranch, 570. And must be particular and certain in all the material circumstances which constitute the offence. Brig Caroline v. The Palmyra, 12 Wheat., 13 ; United States v. The Brig Neuria, 19 How., 92. And there must be reasonable precision.. United States v. The Little Charles, 1 Brock, 347. But technical nicety is not required. It is sufBcient if the offence be described in the words of the law, and so set forth that if the allegation be true the case mtist be within the statute. The Samuel, 1 Wheat., 9. The technical precision of an indictment at law is not required. The Emily, 9 Wheat., 381 ; the Mereno, 9 Wheat., 391. Stating a charge in the alternative is good> if each alternative constitutes an offence for which the thing is for- feited. Id. But see The Confiscation Oases, 1 Woods, 222. The libel of information need not conclude contra formam statuti. Where it is sought to procure the forfeiture of a vessel for a violation of the reveniie laws, the libel of information must aver that she has been seized for the offence, and that the Seizure still subsists. The Wash- ington, 4 Blatchf , 101 ; The Tug Oconto, 5 Biss., 460 ; The Fideliter V. The United States, 1 Sawy., 153. The failure to do so may be taken advantage of at any stage of the cause. Id. These averments are jurisdictional and the libel will be dismissed for want of them. Id. If a proper case of forfeiture under the main part of the statute is set forth, it is sutHcient, although the information does not aver that the case is not within the proviso under which there is an ex- SUPREME COURT, DISTRICT OF COLUMBIA. 551 emption ; that is matter of defence. The Mary Merritt, 2 Biss., 381. If the information does not distinctly state the matters relied on as grounds of forfeiture, the remedy is by motion to make the plead- ing more definite. Eighteen Thousand Gallons of Distilled Spirits, 5 Ben., 4. RULE 24. Instance Causes, Libels in. — In instance causes, civil and maritime, the libel shall state the nature of the cause, as, for example, that it is a cause, civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or other- vnse, as the case may be ; and, if the suit be in rem, that the property is within the District, and, if in personam, the names and occupations and places of residence of the parties. It shall also propound in distinct articles the various allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article, and it shall conclude with a prayer of due process to enforce his rights in rem or in personam (as the case may be) and for such relief and redress as the court is competent to give in the premises. And the libellant may, at the conclusion thereof, require the defendant to answer on oath all interrogatories propounded by him touching, all and singular, the allegations in the libel. Kotes. — Averments op the Libel Generally. — The libel should always show the j urisdiction of the court. Boon v. The Hornet, Crabbe, 426 ; Thomas v. Lane, 2 Sumn., 1. The subject-matter should be stated with certainty and precision and with averments admitting of distinct answers. Schooner Boston, 1 Sumn., 328 ; The Bark Havre, 1 Ben., 295 ; Pettingill v. Dinsmore, Davies, 209. Especially of time and place. Treadwell v. Joseph, 1 Sumn., 390 ; Thomas v. Lane, 2 Fed. Rep., 1. But matters of defence need not be stated. Aurora v. U. S., 7 Or., 382. In Suits foe "Wages. — In a libel for wages, the allegations of the hiring, voyage, etc., should be drawn accurately and with reasonable certainty, otherwise it may be accepted to. The most correct course is to state the facts, etc., in distinct articles, which is the usual course in admiralty proceedings. Ome v. Townsend, 4 Mason, 541. All the seamen suing in personam for wages earned on the same voyage need not under the act of July 20, 1790, unite in the' same action. Collins V. Hathaway, Olcott's Adm., 176. That act relates only to proceedings in rem. Id. However, the court encourages joint ac- tions to be prosecuted in cases in personam also. Id. Allegations necessary where freight money is sought to be held for seamen's 552 PRACTICE AND PROCEDURE OF THE wages, see Conley v. Freight of Canal Boat, etc., 6 Ben., 12 ; the Sailor Prince, 1 Ben., 234. Libels fob Salvage. — Libels for salvage are usually too loosely framed. They should state the subject-matter in articles with cer- tainty and precision and with averments admitting of distinct an- swers. Schooner Boston, 1 Sumn., 328 ; and see Adams v. Bark Island City, 1 Olifif., 210. Libels Founded on Touts. — Every libel for a tort must contain on its face suflScient averments as to place, to show that it is within the admiralty jurisdiction, otherwise it must be dismissed. Thomas V. Lane, 2 Sumn., 1. And each separate and distinct wrong bn which he intends to rely and for which damages are claimed must be set forth in a distinct allegation. Pettingill v. Dinsmore, 2 Ware, 212. Thus, if he intends to rely on general ill-treatment and oppres- sion on the the part of the master in aggravation of damages, it must be propounded in a distinct allegation, to enable the master to take issue upon it in his answer. Id. Joining Causes of Action in the same Libel. — Separate and dis- tinct trespasses cannot be joined in the same libel against defendants who are not jointly liable. Thomas v. Lane, 2 Sumn., 1. But where several causes of action are of a like nature, and involve one or more questions common to all against a vessel, all may join in one libel. The bark Tangier, 3 Ware, 110. In such case the evidence common to all is taken but once, and when these questions are decided, the cases become separate and independent, and each is litigated on its own merits. Id. An action for a tort against two or more cannot be united with a tort against one separately. Roberts v. Scolfleld, 3 Ware, 184. A claim for personal damages cannot be included in the same libel with a claim for fine recoverable under the act of 1840, eh. 48. Knowlton v. Boss, 1 Sprague, 163. Where the cause of action is common to all, all may unite in the same libel, though as between themselves their interest are separate and distinct. Am. Ins. Co. v. Johnson, 1 Blatchf. & H. Adm., 9. Causes of action ex contractu and those arising ex delicto may be joined in one libel where the causes of action are so united that the same evidence will apply to all — e. g., in a suit in personam, a claim for wages and a claim for damages for an assault and battery commited on the same voyage. Borden v. Hiern, 1 Blatchf & H. Adm., 293. And it seems that parties may join in a suit in personam causes of action arising ex delicto against two respondents, with those arising ex contractu against one of them, where the same evidence will apply to all — e. g., a claim against a master and a mate for damages for an assault and battery, and a claim against the master for wages earned on the same voyage. Id. And see this case for a considerationof the subject of the joinder of causes of action in admiralty. Joining Remedies.— There is no abstract incompatibility between proceedings in rem and proceedings in personam which forbids them from being joined in one action, where such joinder is calculated to SUPEEME COUET, DISTEICT OF COLTJBMIA. 553 advance the ends of substantial justice. The Zenobia, Abb. Adm., 48. Thus, where both the vessel and the master or owner are con- jointly liable upon a contract of aflfreightment, the personal remedy and the remedy against the vessel may be sought in one and the same action. Id. So where a libel for freight was filed against the goods and against the consignees to whom the goods had been delivered, upon the objection that the libel joined a cause of action in rem with one in personam, it was held that as the cause of action arose out of a contract which, if the respondents were liable on it, also bound the property, and as the respondents also claimed the ' property, there was no reason for not joining the causes of action. Vaughan v. Six Hundred Casks of Wine, 7 Ben., 506. Averments in Oa&bs of Collision.— A libel for a collision must state the facts constituting the fault in navigation on the ground of which damages are claimed against the vessel libeled. A mere gen- eral allegation that " she was so carelessly, negligently, unskilfully ' and recklessly navigated that," etc., is not sufflcient. The A. P. Baldwin, 2 Abb., 257 ; but there is no technical rule of variance in admiralty ; and in describing the particular circumstances attending a collision, an omission to state some facts which prove to be material and which cannot have occasioned any surprise to the opposite party can have no effect, except to raise suspicions in the mind of the judge as to the existence of those facts. The Clement, 2 Curt., 363 ; The Alabama v. The Gamecock, 1 Ben., 417 ; The Coleman v. Foster, 1 Brown, 456. Nor is there any rigid rule, in the admiralty practice of thte country, that a libellant in a collision case alleging one fault on the part of the defendant vessel, cannot recover on proof of a different fault. The Cambridge, 2 Lowell, 21. In a question of col- lision as to which of two vessels implicated was in fault in injuring a third, the owner of the latter may libel both vessels and demand a decree against one or both and thus not only compel them to inter- plead and settle the question of their respective liabilities, but thus avoid running the risk of losing his suit against the first because her owner can show that the second vessel was in fault, and then against the second, because her owners can show upon new evidence in their power, that the first vessel was In fault. The Enterprise and the Napoleon, 3 Wall., jr., 58. Suits by Assignees. — It is every day's practice, in the admiralty, to allow suits to be brought in the name of the assignee of a chose in action. Cobb v. Howard, 3 Blatchf., 524 ; Swett v. Block, 1 Sprague. 674 ; The Sarah J. Weed, 2 Lowell, 555. RULE 25. Amendments of Informations and Lihels. — Amendments in matters of form in informations and libels may be made at any time, on motion to the court, as of course. 'Sew counts may be filed, and amendments in matters of substance may be ■inade, upon motion, at any time before the final decree, upon 70 554 PRACTICE AND PEOCEDUEE OF THE such terms as the court shall impose. And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libelant. Notes.— When objections are made, at the hearing, to the want of proper form In the pleadings or proceedings, apparent upon their face, the court will permit an amendment to be made therein in- atanter. Nevitt v. Clarke, Olcottt's Adm., 316. And amendment may be made at any stage of the cause prior to a final decree. Id. After a fiill hearing and the decision of the court that the action is not sustained by the proofs as the pleadings stand, the court may permit the pleadings to be amended so as to "embrace the merits of the case. Davis v. Leslie, Abb. Adm., 123. Where exceptions are filed to a libel the libellant may move to amend his libel in any of the points excepted to. Town et al. v. Steamship Metropolis, 28 How. (N. Y.) Pr., 283. If an application to amend proposes to in- troduce a new cause of action, it is usual to allow the amendment when the new cause of action corresponds in character, and is kin- dred in nature, to that prescribed in the original libel ; but if it be a new substantive cause of action and a new charge against the de- fendant, it will be dismissed. United States v. One Hundred and Twenty-three Casks of Distilled Spirits. 1 Abb. U. S., 573. So the court cannot permit the name of a sole libellant to be stricken out and another substituted. Such an amendment is virtually the insti- tution of a new suit. The Detroit, 1 Brown, 141. Nor is it compe- tent to amend a joint libel against three vessels, by substituting the name of the owner of one vessel for the vessel, so as to change it from a libel in rem, to one in personam . The Young America, 1 Brown, 462. But see One Hundred and Eighteen Sticks of Timber, 10 Ben., 86. For other cases involving questions of amendment of libels, see The Steamboat Deer, 4 Ben., 352; Kewell v. Norton "& Ship, 3 Wall., 256 ; Ins. Co. v. Johnson, 1 Blatchf. & H. Adm., 9 ; The Circassian, 2 Ben., 171. RULE 26. Verification of Claim. — In suits in rem the party claiming the property shall verify his claim on oath or solemn affirma- tion, 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 claim is put in by an agent or consignee he shall also make oath that he is duly authorized thereto by the owner, or, if the property be at the time of the arrest in the possession of the master of the ship, that he is the lawful bailee thereof for the owner. I^otes. — A claim to a vessel and cargo, filed in an admiralty causey SUPREME COURT, DISTElCT OF COLUMBIA. 555 though sworn to is not evidence. The law does not allow to the affi- davit the dig^nity of testimony. If it amounts to anything, it is no more than " the exclusion of a conclusion." The Thomas and Henry, 1 Brock, 363. RULE 27. Neglect of Libellant to Proceed with Dispatch. — If the promovent in a libel or information neglects to proceed in the cause with the dispatch which the course of the court adjnits, the respondent or claimant may have the libel or information dismissed on motion, unless the delay is by order of the jus- tice, or by the act of the respondent or claimant. Four days' notice shall be given of the application to dismiss the action. RULE 28. Answers in Civil Cases. — In suits either in rem or in perso- nam the answer of the defendant to the allegations in the libel shall be on oath or solemn affirmation, and shall be full and explicit and distinct to each separate article and separate alle- gation in the libel, in the same order as numbered in the libel, and shall also answer in like manner each interrogatory pro- pounded at the close of the libel ; but this rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars, exclusive of costs, unless the court shall be of opinion that the proceedings prescribed therein are necessary for the purposes of justice in the case. Kotes. — The answer should meet each material allegation of the libel, with an admission, a denial or a defence. Schooner Boston, 1 Sumn., 328 ; The Propeller Sun, 1 Biss., 373, and should be ftill, ex- plicit, and distinct. The California, 1 Sawy., 463. Hence, an answer to a libel for a collision, which sets forth that the injured vessel " lay in an impropermanner, and in an improper place," without showing, in any respect, wherein the manner or why the place was improper, . is too indefinite. The Commander, 1 Wall., 43. So, a general alle- gation of negligence is insufficient. Specification of what was done or omitted to cause the accident must be made. Killam v. Schooner Erie, 3 Cliff., 456. On the other hand, an answer which sets up facts constituting negligence, is sufficient, though no fault be formally charged. The Pilot, 1 Biss., 159. Where misconduct is relied on to defeat a claim for wages, it should be stated with reasonable certainty as to time, place, circumstance and degree. Ome v. Townsend, 4 Mason, 541 ; The Pioneer, Deady, 58. And unless distinctly pro- pounded and put in issue no facts going to show misbehavior or other cause of forfeiture of wages are admissible at the hearing. Id. ; and 556 PRACTICE AND PEOCEDTJEE OF THE see The Brig Otis, Crabbe, 52. A defence by way of justification must admit the facts. Treadwell v. Joseph, 1 Sumn., 390. A receipt relied on as a defence must be specially averred in the answer. Thomas v. Lane, 2 Sumn., 1. And so of any matter of defence, jt must be presented with proper averments in the answer or by plea, or it will be excluded at the hearing. The William Harris, 1 Ware, 373. For nothing is in issue but what is averred on one side and de- nied on the other. Id. Where separate answers are put in, each re- spondent must rely for his defence upon his own answer, without reference to the answer of the other respondents. Gardner v. Bib- bins, 1 Blatchf. & H. Adm., 356. Where an answer contains allega- , ^ tions which are inconsistent, but the case goes to trial without ex- ceptions being taken, the court will regard that allegation which operates most strongly against the claimants as the one intended to be made. The Olbers, 3 Ben., 148. Mere narrative statements in a libel, which allege no damages and claim no particular remedy, need not be replied to specifically by answer. The 'Brig Aldebaran, Olcotfs Adm., 130. Matter intended as a defence should not be blended with the response to the allegations of the libel. The California, 1 Sawy., 463. The chancery rule requiring two witnesses, etc., to overcome the answer of the defendant when responsive to the bill, does not ob- tain in admiralty, (The Steamboat Bacon, Newb. Adm., 274,) even with regard to special interrogatories. The L. B. Goldsmith, Newb. Adm., 123. Impertinent and irrelevant allegations in an answer Will be stricken out on motion. The Gustavia, 1 Blatchf & H. Adm;, 189. See further, Rtile 29th, Exceptions to the ^jsswek. RULE 29. Exceptions to Answer, Costs of.^The libelant may except to the sufficiency or fullness or distinctness or relevancy of the answer to the articles and interrogatories in the libel ; and if the court shall adjudge the exceptions, or any of them, to be good and valid, it shall order the defendant forthwith, or within such time as it may direct, to answer the same, and may further order the defendant to pay such costs as it shall adjudge reasonable. Notes. — The nature and office of exceptions in admiralty consid- ered. The California, 1 Sawy., 463. If the answer is responsive to the libel, no exceptions will lie to it, on the ground that it is not a de- fence to the suit whether the matter is impertinent or not. Id. But an answer which neither admits nor denies a material averment in the libel is insufficient and may be excepted to on that ground. Thfe Elizabeth Frith, 1 Blatchf. & H. Adm., 195. As to exceptions folr impertinence, see the Pioneer, Deady, 58 ; The California, 1 Sawy.', 463 ; The Gustavia, 1 Blatchf. & H. Adm., 189. As to taking the ex- ception pro eonfesso when defendant f^ils to further answer where the exception is allowed, see Rule 32. ' SUPREME COTJET, DISTRICT OF COLUMBIA. 557 BULB 30. Failing to Answer— Pro C^nfesso— Setting aside Default- Costs. — If the defendant shall omit or refuse to make due an- swer to the libel upon the return-day of the process, or other ■day assigned by the court, the court shall pronounce him to be in contumacy and default, and thereupon adjudge the libel to be taken ']^rQ confesso against him, and shall proceed to hear the cause ex jjarie, and adjudge therein as to law and justice shall pertain ; but the court may, in its discretion, set aside the default, and, upon the application of the defendant, admit him to make answer to the libel at any time before the final hearing and decree upon his payment of all the costs of the suit up to the time of granting leave therefor. Notes.— When 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 evidence which his counsel may offer as amicus curise. .The David Pratt, 1 Ware, 509. In admiralty a default has substan- tially the effect of a default to a summons in a court of common law. It establishes the fact, properly pleaded, and justifies a decree. Mil- ler V. The United States, 11 Wall., 268. RULE 31. Rehearing after Default. — The court may, in its discretion, upon motion of defendant and payment of costs, rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within ten days after the decree has been entered, the defendant submit- ting to such further orders and terms in the premises as the court may direct. EULB 32. Attachment to Compel further Answer Pro Confesso. — When the defendant answers, but does not answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception thereto is taken by the libelant, and the exception js allowed, the court may, by attachment, compel him to make further answer thereto, or may direct the matter of the excep- tion to be taken pro confesso against him to the full purport and effect of the article to which it purports to answer, and as if no answer had been put in thereto. 558 PEACTIOE AND PEOCEDURB OF THE RULE 33. Where Answer will Criminate^ Defendant may Object.— The defendant may object, by Ms answer, to answer any allegation or interrogatory contained in tlie libel which will expose him to any prosecution or punishment for a crime, or for any pen- alty or any forfeiture of his property for any penal offence. See The United States v. Twenty-eight Packages, etc., Gilpin, 306, and see page 292, ante. RULE 34. Interrogatories in Answer. — The defendant shall have a right to require the perspnal answer of the libelant, upon oath or sole^in affirmation, to any interrogatories which he may, at the close of his answer, propound to the libelant touching any matter charged in the libel, or touching any matter of defence set up in the answer, subject to the like exception as to matters which would expose the libelant to any prosecution, or punishment, or forfeiture, as provided in the foregoing rule. In default of due answer by the libelant to such inter- rogatories the court may adjudge him to be in default and dis- miss the libel, or may compel his answer in the premises by attachment, or take the subject-matter of the interrogatory pro confesso in favor of the defendant, as, in its discretion, it shall deem most fit to promote public justice. Note.— Each party has the right to require the personal answers of the other under oath to any interrogatories touching the matter in issue. The David Pratt, 1 Ware, 509. RtTLE 35. New Matter in Answer, Amending Libel to Meet. — ^When the defendant, in his answer, alleges new fects, these shall be con- sidered as denied by the libelant and no replication, general or special, shall be allowed. But within ten days after the answer is filed the libelant may amend his libel so as to con- fess and avoid or explain or add to the new matter set forth in the answer, and within ten days after such amendment of the libel is filed the defendant shall answer such amendments. But the court may, by special order and upon due cause shown, allow further time for filing such amendments of the libel and for filing such answer thereto. See the Mary Jane, 1 Blatchf. & H. Adm., 390, which gave origin to this rule. STJPEEME COUKT, DISTEIOT OP COLUMBIA. 559 , RITLE 36. Answer on Oath to Interrogatories ; When Dispensed with ; Commission to take Answer. — Where either the defendant or the libelant is out of the country, or is unablej from sickness or other casualty, to make an answer to any interrogatory, on oath or affirmation, at the proper time, the court may, in its discretion, in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defendant where and as soon as it may be practi- cable. RULE 37. « Cross-Libel, Security by Respondents in. — ^Whenever a cross- libel is filed upon any counter-claim arising out of the same cause of action for which the original libel was filed, the re- spondents 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 be stayed until such security shall be given. Xotes. — ^Thls rule applies as well to actions in rem, as in personam. The Toledo, 1 Brown, 455. The defendants in a collision suit who have themselves suffered therefrom, and are in no fe,ult, may, by a cross-libel, set up the damage they have sustained, and will be enti- tled to a decree in their favor for compensation. Ward v. The Og- densburg, 5 McLean, 623. A cross-libellant should act with prompt- ness. A motion for security made on the eve of trial, and after the witnesses have been summonded, and the case is ready to proceed, comes too late. The George H. Parker, 1 Flipp., 606. Where, after a vessel is sold a libel is filed against her for a cause of action which accrued before the sale, her former owners may file a cross-ljbel and have proceedings stayed until security be given. The George H. Par- ker, 1 Flipp., 606. It is not good practice to stipulate that the answer shall stand as a cross-libel. The respondents should proceed in the usual way. Ward v. Chamberlain, 21 How., 572. Cross-libel sus- tained under the peculiar circumstances of the case. Nichols v. Tremblett, 1 Sprague, 362. RULE 38. Intervention, Stipulation, with Sureties to be Oiven. — If any third person shall intervene in any cause of admiralty and maritime jurisdiction m rem, for his own interest, and is enti- tled, according to the course of admiralty proceedings, to be 560 PRACTICE AND PEOCEDTJEE OF THE heard for his own interest therein, he shall propound the mat- ter in suitable allegations, 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 pro- ceedings shall be had, and decree rendered by the court therein, as to law and justice shall appertain. But every such inter- venor shall be required, upon filing his allegations, to give a stipulation, with sureties, to abide by the final decree rend- ered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final de- cree, whether it is rendered in the original or appellate court. Ifotes. — In a suit for salvage, if there are others besides the libel- lants entitled to share in the compensation, they should become par- ties to the suit, or if the proceeds are in the registry of the court to make a claim against it. The Comanche, 8 Wall.", 448. See The Jenny Lind, 3 Blatchf , 513 ; The Brig Pratt, 1 Curt., 340 ; The Mary Anne, 1 Ware, 99. Intervention by lien creditors. See The Young Mechanic, 3 Ware, 58. Intervention by administrator. See The Bos- ton, 1 Blatchf & H. Adm., 309. By a mortgagee, in a suit by a bot- tomry holder, to contest validity or priority of the bottomry. For- ms V. Brig Magoun, Olcott's Adm., 55. See also as to right of mort- gagees to intervene generally to protect their interest. The Old Concord, 1 Brown, 270. By insurers in a suit by owners of a vessel sunk by collision. Steamer City of PariSj 1 Ben., 529. RULE 39. Exceptions to Libel or Answer, Grounds of. — Exception may be taken to any libel, allegation, or answer for surplusage, irrelevancy, impertinence, or scandal ; and if, upon reference to a master, the matter excepted to be reported to be so ob- jectionable, and the exception is allowed by the court, such matter shall be expunged at the cost of the party in whose libel or answer the same is found. Hotes.— See notes to Rule 29. The court has the power, in any stage of the case, to require the parties to supply any defect in the pleading, though counsel can appeal to the court for that purpose only at the proper time. The Scotland, 1 Ben., 296. See The Cole- man V. Foster, 1 Brown, 456. Exceptions have the effect of a de- murrer, and also that of making a pleading more definite and cer- tain. Quinn v. Steamboat, etc., 1 Ben., 86. While it is not necessary that they should embody the formalities required in pleading at cornmon law or in chancery, they should, nevertheless, be perspicuous and definite. The Navarro, Olcott's Adm., 127. Thus, an exception that a libel does not state facts suflicient to constitute a cause of suit or forfeiture is too general. It should state in what particular the STTPEEME COURT, DISTEICT OF COI-UMBIA. 561 facts are insufflcient. The Active, Deady, 165. Objections to an ac- tion merely formal in their character cannot be taken on final hear- ing. They should be interposed on the return-day of process, or at the day appointed for answering the libel. Purnis v. Brig Magoun, Olcott's Adm., 55. An exception for irrelevancy taken to a pleading Which is not irrelevant, but only insuflScient, will be overruled. The Elizabeth Frith, 1 Blatchf. & H. Adm., 195. RULE 40. Limited Liability of Ship-owaers, Proceedings to Secure.— When any ship or vessel shall be libeled, or the owner or owners thereof shall be sued for any embezzlement, Joss or destruction by the master, officers, mariners, passengers or any other person or persons, of any property, goods, or mer- chandise shipped or put on board of such ship or vessel or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred without the privity or knowledge of such owner or owners, and he or they shall desire to claim the benefit of limitation of liability provided for in sections 4283, 4284, and 4285 of the Eevised Statutes of the United States, the said owner or owners may and shall file a libel or petition, as herein- after specified, setting forth the facts and circumstances on which such limitation is claimed, and praying proper relief in that be- half; and thereupon the court, having caused due appraisement to be had of the amount or value of th^ interest of said owner or owners, respectively, 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, with sure- ties, for payment thereof into court whenever the same shall be ordered ; or, if the owner or owners shall so elect, the court shall, without such appraisement, make an order for the trans- fer by him or them of his or their interest in such vessel and freight to a trustee to be appointed, by the court under said section 4285 ; and upon compliance with such order the court shall issue a monition against all persons claiming damages for any such embezzlement, loss, destruction, damage, or in- jury, citing them to appear before the court and make due proof of their respective claims at or before a certaiin time to be named in said writ, not less than three months from the issuing of the same ; and public notice of such monition shall be given as in other cases, and such further notice served through the post of&ce, or "otherwise, as the court in its dis- 71 562 PEAOTICE AND PEOCEDUKE OE THE cretion may direct ; and the court shall also, on the applica- tion of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims. Notes. — The District court sitting as a court of admiralty has juris- diction under the act to limit the liability of ship-owners. E. S. U. S., sees. 4283-5 ; Norwich Co. v. Wright, 13 Wall., 104. Ship-owners may avail themselves of this defence by answer or plea, as well as by the form of proceeding prescribed by the rules of this court, at least so far as to obtain protection against the libellants or plaintiffs in the suit. These rules were not intended to restrict them, but to aid them in bring- ing into concourse those having claims against them arising from the acts of the master or crew. The Scotland, 105 U. S., 24 ; see Thomas- sen V. Whitwell, 9 Ben., 458. It it is not necessary to obtain leave of the court to institute the proceeding. Id. It is not an action in rem, but is a'proceeding sui generis, which partakes rather of the charac- ter of a suit in personam. The City of Norwich, 6 Ben., 330. It limits the liability as well for injuries to persons as to property. The Epsilon, 6 Ben., 378. The proper course of proceeding under the act limiting the liability of ship-oVners pointed out. Norwich Co. V. Wright, 13 Wall., 104 ; The Scotland, 105 U. S., 24. See also the following cases further illustrating the law, practice and procedure under the act in question. The City of Norwich, 1 Ben., 89 ; The Bristol, 4 Ben., 55 ; The New York, etc., S. S. Co., 9 Ben., 44; In re Wright, 10 Ben., 14 ; The John Bramall, 10 Ben., 495 ; The Benefao tor, 103 U. S.. 239. RULE 41. Proof of Claims. — Proof of all claims which shall be pre- sented in pursuance of said motion shall be made before a commissioner to be designated by the court, subject to the right of any person interested to question or controvert the same ; and, upon the completion of said proofs, the commis- sioner shall make report of the claims so proven, and upon confirmation 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, jjro rata, among the several claimants, in proportion to the amount of their respective claims, duly proved and confirmed as afore- said, saving, however, to all parties any priority to which they may be legally entitled. , Note.— If the fund provided for by the act is insufficient to satisfy the demands against it, the claimants on the fund must share pro rata. The Epsilon, 6 Ben., 378. StrPEEME COXJET, DISTEICT OP COLUMBIA. 563 RULE 42. Contest of Liability by Owners. — In the proceedings afore- said the said owner or owners shall be at liberty to contest his or their liability, or the liability of said ship or vessel for said embezzlement, loss, destruction, damage, or injury, (inde- pendently of the limitation of liability claimed under said act,) provided that, in his or their libel or petition, he or they shall state the facts and circumstances by reason of which exemp- tion from liability is claimed ; and any person or persons claiming damages as aforesaid, and who shall have presented his or their claim to the commissioner under oath, shall and may answer such libel or petition, and contest the right of the owner or owners of said ship or vessel either to an exemption from from liability or to a limitation of liability under the said act of Congress, or both. Note.— See The Benefactor, 103 U. S., 239. RULE 43. Moneys Paid into Court. — AH moneys paid into the registry of the court shall be deposited, in the name of the court, in some bank designated by it, and shall not be drawn out ex- cept by check, signed by a justice of the court, and counter- signed 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 shall keep a regular book, containing a memorandum and copy of all the checks so drawn and the date thereof. See Ante,- -p. 237. RULE 44. Claim of Proceeds in Registry.— Any person having an in- terest in any proceeds in the registry shall have a right, by petition and summary proceeding, to intervene jpro irvteresse suo for a delivery thereof to him ; and upon due notice to the ad- verse party, if any, the court may and shall proceed summarily to hear and decide thereon and to decree therein, according to law and justice. And if such petition or claim shall be de- serted, or upon a hearing be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party. ' If otes.— -Whenever proceeds are rightfully in the possession and 564 PRACTICE AND PEOCEDTJKE OF THE custody of the admiralty, it is an inherent incident to its jurisdiction, to entertain supplemental suits by the parties in interest, to ascertain to whom these proceeds rightfully belong, and to deliver them over to the parties who establish the lawful ownership thereof. Andrews V. Wall., 568. But where claims on the proceeds in the registry are not maritime liens, the court cannot distribute such proceeds in pay- ment of the claims, if the owners of the vessel oppose such distribu- tion. The Lottawanna, 20 Wall., 201. See The Stephen Allen, 1 Blatchf. &H. Adm., 175 ; Remnants in Court, Olcott's Adm., 382. Any person, however, having a specific lien on, or a vested right in, a surplus fund in court, may apply by petition for the protection of his interest under this rule. The Lottawanna, 21 Wall., 559. A per- son holding a mortgage of the vessel to secure a debt for prior ad- vances made for her last voyage will be allowed to interpose a claim on the balance of the proceeds in the custody of the court, whether he could or could not sustain a libel to enforce it against the ship originally. Leland v. Ship Medora, 2 Woodb. & M., 93. Libels or petitions against a vessel are heard by a court of admiralty in any order in which they are brought up, but until all have been heard the. proceeds are not distributed, except to those having an undoubted priority, such as seamen and sailors ; and this not with- out notice to all others whose liens *e of equal degree with his. The Fanny, 2 Lowell, 508. RULE 45. Appraisers. — Only one appraiser is to be appointed in suits by individuals, unless otherwise specially ordered by the jus- tice ; and if the respective parties do not agree in writing upon the appraiser to be appointed, the clerk shall forthwith name [him], either party having a right of instant appeal to the justice from such nomination for adequate cause. RULE 46. Reference to Commissioners. — The court may, in cases where it shall deem such course expedient or necessary for the pur- poses of justice, refer any matters arising in the progress of the suit to one or more commissioners, to be appointed by it, to hear the parties and make report therein, and such com- missioner or commissioners shall have and possess all the pow- ers in the premises which are usually given or exercised by masters in chancery in references to them, including the power to administer oaths and examine the parties and wit- nesses touching the premises. Notes. — Where important questions as to leading principles arise on a reference, it is proper practice for the commissioner to apply to DISTEIOT'OF COLUMBIA. 565 the court for directions. The Ship Scranton, 2 Ben., 81. Where the commissioner is proceeding irregularly, or refuses to allow necessary testimony to be taken, it is proper to apply to the court, on a certifi- cate from the commissioner as to his proceedings, for relief; but it is not proper to make such application to the court unless the ques- tion is one on which the commissioner has passed one way or another, or has refused to pass. Id. Objection to the admission of evidence before a commissioner 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 pending the reference. The Beaver, 8 Ben;, 594. See also The Oommander-in-Ohief, 1 Wall., 43. The commissioner's report of damages when parties have been fully heard before him with their proofs, and no question of law is in- volved in his decision, will be adopted by the court, unless palpable errors or inadvertencies have been coipimitted by him. The Narra- gansett, Olcott's Adm., 388; Holmes v. Dodge, Abb. Adm., 60. 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 upon the irregularity. The Columbus, Abb. Adm., 37; The Steamboat New Jersey, Olcotfs Adm., 444; The Rhode Island, Abb. Adm., 100. RULE 47. Reference to Auditor. — In cases of demands arising, not ex delicto, on a decree in favor of the libelant by default or on hearing, it shall be referred to an -auditor to ascertain the amount due the libelant ; but reference may also be made in cases of tort or on allegations of incidental or consequential damages if desired by either party. Note. — It is not necessary to take exceptions to the rport of an auditor if the errors appear upon the face of the report. Heinely v. Hose, 5 Cranch, 313. * RULE 48. Reference to Assessors. — Upon any sufl&cient cause shown, such reference may be made to assessors or otherwise, accord- ing to the course and custom of courts of civil and admiralty jurisdiction. Note. — The report of the assessors appointed by the court to assess the damages ought to state the principles upon which it is founded, and not a gross sum without explanation. Murray v. Schooner Charming Betsey, 2 Cranch, 64. RULE. 49. When the Report of the Auditor or Assessors may be Con- firmed. — Upon the coming in of the report of the auditor or 566 PRACTICE AND PEOCEDUEB OF THE assessors a decree of confirmation may be entered, on motion, without notice, unless otherwise ordered by the court, or un- less the report be excepted to, and in the latter case the ex- ception shall be overruled or held abandoned unless brought to a hearing. RULE 50. Failure to take Proceedings on the Report.— If the libelant take no proceedings on the report within five days after the filing thereof in open court, the respondent may move the court to dismiss the libel for want of due prosecution. RULE 51. Bonds and Stipulations, what to Contain.— All stipulations in admiralty causes shall be pxecuted by the principal party, if within the district, and at least one surety resident therein, and shall contain the consent of the obligors or stipulators that in case of default or contumacy on the part of the princi- pal or sureties execution to the amount named in such stipu- lation may issue against the goods, chattels, and lands of the stipulators. Note. — It seems where the sureties become insolvent the court may require the claimant to furnish new, sureties, on penalty of con- tempt, and of being denied the right to appear further and contest the suit. The Old Concord, 1 Brown, 270. RULE 52. How taken. — ^Bonds or stipulations in admiralty suits may be given and taken in open court, or at chambers, by the jus- tice holding the district court, or, in his absence, by any other justice of the' court. RULE 53. Reducing Penalty— New Surety. — The court may, upon mo- tion and for due cause shown, reduce the sum contained in the bond or stipulation taken as bail in any suit in personam,} and if either of the sureties in a bond or stipulation, taken as bail or upon dissolving an attachment, shall become insolvent pending the suit, the court may, upon motion and due proof thereof, require new sureties to be given. Note. — See Note to Rule 51 — supra. STJPEEME COUET, DISTRICT OP COLUMBIA. 567 EULB 54. Increase of Security — Motion for. — In all cases of stipula- tions in admiralty causes any party having an interest in the subject-matter may move the court, on special cause shown, for greater or better security, giving the opposite party two clays' notice thereof, unless shorter time is allowed by the justice. Note. — See Rule 54, supra and note. BITLE 55. Costs — Security for, in Suits in Personam. — In all cases of libel in personam the court may, in its discretion, upon the appearance of. the defendant, where no bail has been taken and no attachment of property has been made, to answer the exigency of the suit, require him to give a stipulation, with sureties, in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudication thereof, or by any interlocutory order in the progress of the suit. Note.— Upon suggestion that the owners were unable to give se- curity for copts, the court required an aflSdavit of ownership, inability and merits, before it would require the government to make further proof of the allegations of the libel. United States v. Schooner Lion, 1 Sprague, 399. RULE 56. — Security for, in Suits in Rem. — No process in rem shall be issued, nor shall any appearance or answer be received, or third party be permitted to intervene and claim, except on the part of the United States, unless a stipulation in the sum of one hundred dollars shall be first entered into by the party, and at least one surety resident in the District, conditioned that the principal shall pay all costs assessed against him by the court. Notes. — The rule requiring the libellant to give security for costs is established for the benefit of the other party, which he may waive at his pleasure. Polydore v. Prince, 1 Ware, 410. And where the libellant, in consequence of poverty, is unable to find sureties, his juratory caution will be taken instead of a stipulation with sureties. Id. And, see Wheatley v. Hotchkiss, 1 Sprague, 225. 568 PRACTICE AND PEOCEDUEE OP THE RULE 57. Eiception in Favor of Seamen and Salvors.— Seamen suing in rem for wages, in their own right and for their own benefit, for services on board American vessels, and salvors coming into possession of the property libeled, shall not be required to give such Security in the first instance. But after the arrest of the property the court may, on motion and notice to the libelants, and for adequate cause, order the usual stipulation to be given in these cases, or that the property arrested be discharged. Notes. — The practice in admiralty, of exempting seamen from giv- ing security for costs, is on account of their presumed inability. Wheatley v. Hotchkiss, 1 Sprague, 225. But this rule does not neces- sarily apply to appeals, and, where there is evidence that a seaman is of ability, the court will order him to give security for such costs as the appellate court may decree, unless he shall prove himself una- ble to do so by satisfactory affidavits. Id. The rule was intended to give seamen high privileges for the collection of the wages agreed upon for their services. It will not be extended to claims extraneous to the contract for wages. The Ship Great Britain, Olcott's Adm., 1. Thus where a sailor brings a suit in rem against a ship to enforce a conditional agreement made with the master, and outside of the written articles, he will be required to file a stipulation for costs in the same manner as an ordinary suitor. Id. For other decisions upon the question of security for costs in the case of seamen, see Collins V. Hathaway, Olcott's Adm., 176 ; The Brig Niveto, 7 Ben., 69 ; The Artie, 1 Brown, 347. RULE 58. Deposit Instead of Stipulation. — Instead of a bond or stipu- lation providing for payment of costs the court may direct the deposit therein of such sum of money as it may consider a sufficient security in the premises. RULE 59. Costs to be Paid before Delivery. — Ko vessel, goods, wares, or merchandise in the custody of the marshal shall be released from detention, upon appraisement and surety, until the costs and charges of the officers of the court, so far as the same shall have accrued, shall first have been paid into court by the party at whose instance the appraisement shall take place, to abide the decision of the court in respect to such costs. 569 BULE 60. Execution. — In all cases of final decree for the payment of money the libelant shall have a writ of execution, in the na- ture of a ^ri/acias, commanding the marshal or his deputy, or, when the marshal is a party in interest, such other proper officer as may be assigned by the court, to levy and collect the amount thereof out of the goods and chattels, lands and tene- ments, or oth«r real estate of the defendant or stipulators. Note. — The mode of enforcing a final decree for the payment of money in a suit in rem in admiralty is that prescribed by this rale. The Blanche Page, 16 Blatchf., 1. The Steamboat Delaware, Olcott's Adm., 240. RULE 61. Sales. — ^AU sales of property under any decree in admiralty shall be made by the marshal or his deputy, or where the marshal is a party in interest, by other proper officer assigned by the court, in pursuance of the orders of the court, and the proceeds thereof shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law. RULE 62. Notice of Sale. — ^Notice of sale of property after condemna- tion in suits in rem, (except under the revenue laws and on seizure by the United States,) shall be six days, unless other- wise specially directed by the decree of condemnation and sale. RULE 63. Appeals. — Appeals to the general term from orders and de- crees prepared in admiralty causes shall be subject to the same rules and conditions that are applied to appeals from orders and decrees passed at the special terms of the court sitting in equity. Note.— See Appeal to Genbbal Tebm. Ante, p. 212. 72 TABLE OF CASES. A Abel V. Cave, 424. V. Simon, 203. Abrams v. De Wandalaer, 42, 173. Active, The, 561. Adams v. Adams, 420, 493. V. Barlt Island City, 552. V. Bellair Stamp Co., 520. V. Howard, 528, 534. — '■ — V. Kincaid, 251. V. Eoberts, 174, 175. — — - V. Stevens, 405. V. Woods, 28, 269. Adams Ex. Co. v. Adams, 36. Adler v. Penton, 357. v. Newcomb, 14. Agawafn Co. v. Jordan, 522. Ager V. Murray, 225, 355. Ahrenfeldt v. Ahrenfeldt, 487. Aiken, In re, 513. v. Bemis, 211. Alabama v. Game Cock, 553. Albrecht v. Walker, 159. Aldebaran, The Brig, 556. Aldridge v. Aldridge, 487, 489. Alexander v. Alexander, 94. V. Dennison, 353, 355, 356. Allen, The Stephen, 569. Allen V. Allen, 497. V. Burke, 407. V. Green, 201. V. Hunter, 523, V. Killinger, 168. V. Magruder, 43. V. Spring, 400. Alley V. Quinton, 370, 378. Allore V. Jewell, 355. Alston V. Alston, 404. Amelung v. Lee Kamp, 409. America, The Young, 548, 554. American, The Steamboat, 548, American Hyde, &c., Co. v. Tool Co., 524. Am. Ins. Co. v. Johnson, 552. Ames v. Kansas, 76. V. Le Rue, 95. Ames V. Quimby, 168. v. Webers, 147. Amherst v. Hadley, 160. Amory v. Amory, 215. Amos V. Amos, 503. Amy V. Galena, 225. V. Shelby Co., 248, 371. Anderson v. Foulke, 464. v. Graff, 203. V. Smith, 46, 52. V. Tinney, 195, 203. V. Towgood, 162. V. Young's Ex'r, 167. Andrews v. Andrews, 504. V. Cole, 377. V. Cross, 524. V. Hovey, 523. V. Kibbee. 403. V. Wall, 563. Angarica de la Rua v. Bayard, 77. Anne, Steamer, v. United States, 550. Annie, The, 545. Apgar V. Christopher, 414. Apperson v. Memphis, 100. Archer v. Williams, 137. V. Williamson, 137. Arctic, The, 568. Armstrong v. Armstrong, 497. V. Brown, 99, 125. • — V. Leas, 359. Arquelles v. Wood, 43. Arthurs v. Holt, 164. Asay V. Hay, 173. Ashley v. Ashley, 492. Aspinwall Co. v. Gill, 530. Atkins V. Atkins, 498. V. Febre Co., 375. Atkinson v. Glenn, 358. V. Manks, 447. Atlantic Powder Co. v. Parker, 522 Atterbury v. Gill, 520. Attila, The, 546. Atwood V. Latney, 163. , Aurora v. United States, 551. 572 TABLE OF CASES. B Babbitt v. Babbitt, 488. Backus V. Backus, 497. Bacon v. Oroopsey, 165. Bacon, The Steamboat, 556. Bag Co. V. Bag Co., 523. Bailey v. Bailey, 487. V. Dozier, 96. Bain, Ex parte, 302. Baird v. Dailey, 173. Baker v. Baker, 495, 496. v. Humphrey, 524. V. Ramsburg, 29. V. Taylor, 415. V. Whitney, 445, 446. Baldwin v. The A. P., 553.' V. Parker, 500. Baltzell V. Foss, 463, 465, 466. Bancroft v. Sheehan, 167. Bank v. Bank, 31, 175. V. Benning, 46. V. Corcoran, 174. V. Dugan,. 422. V. EliasKjn, 36. V. Eldred, 174, 218. V. Eyre, 36, V. Geary, 36, 202, 439. V. Gfuttschlick, 2S. V. Ins. Co., 379, 395. V. Kennedy, 169. V. Kerr, 424. v. Kurtz, 111. V. Logan, 172. V. Lyles, 30. V. Mackall, 465. V. Van Ness, 443. V. Osborn, 35. V. Ritchie, 376, 463. V. Seaton, 359. V. Slocum, 375. V. Spencer, 41. V. Sprague, 368, V. Ward, 36. V. White, 447. V. Young, 162. Banker v. Banker, 496. Bant V. Chester, 145. Barber v. Barber, 485, 486. V. Strong, 416, 420. Barker v. Belknap, 403. Barley v. German American Bank, 168. Barlow v. United States, 315. Barnard v. Ins. Co., 224. V. Kellog, 172. Barnes v. Billington, 228. Barney v. Baltimore City, 359. V. Patterson, 232. V. Schneider, 114. Barr v. Steele, 112. Barreda v. Silsbee, 175. Barrel v. Limington, 125. Barrett v. Long, 157. Barrick v. Geyer, 99. Barriclo v. Trenton Mut. Life Ins. Co., 401. Barrow v. Hill, 147. Bartholomew v. Sawyer, 523. Bartlett v. Bartlett, 503. V. Crittenden, 225. Barton v. Barbour, 46. Bas V. Steele, 94. Basey v. Gallagher, 218. Basing v. Basing, 489. Bassett v. Bassett, 495. Basshor v. Kilbourn, 478. Bates V. Coe, 525. V. District of Columbia, 77. Batesville Inst. v. Kauffman, 355. 60. Batton V. Sullivan, 528. Baxter v. Turnpike Co., 165. Baynard v. Norris, 136. Beach v. Beach, 492, 494. Beal V. White, 68. Beale v. Block, 196. Beall V. Pearre, 424. Beardsley v. Littell, 165. Beatty v. Kurtz, 361. Beaver v. Taylor, 174. Beaver, The, 565. Beebe, Ex parte, 150. Beedle v. Bennett, 527. Belden v. Belden, 487. Bell V. Cunningham, 413. Bell et al. v. Davidson, 429. Bell V. Nimraon, 125. Belmont v. Railroad Co., 134, 137. Bellews v. Stone, 397. Belt V. Harriot, 30, Belting Co. v. Libbey, 512. Benefactor, The, 562, 563. Benkert v. Benkert, 487, 489. Bennett v. Bennett, 486, 487, 488. Ex parte, 81, 277. Bennet v. Southworth, 163. Benton v. Benton, 495. V. Woolsey, 47. Bergen v. Bergen, 503. Besch V. Besch, 487. Besore v. Besore, 491. Bestor v. Sardo, 145. Bethel v. Matthews, 164, 217. Bettes V. Dana, 405. Bevin v. Bell Co., 524. Biddle v. Wilkins, 92. Bradley v. Jameson, 498. Bigelow Carpet Co. v. Dobscrai, 533. Bigelow, Ex parte, 81. Billingslea v. Henry, 465. TABLE or CASES. 573 Billout V. Morse, 396. Bilton V, Bennett and wife, 389. Binney's Case, 388, 390. Birch V. Butler, 44. Birdsall v. Coolidge, 525. Birely v. Staley, 466. Brickmans v. Brickmans, 494. Bishop V. Bishop, 488. V. Stockton, 187, 218. V. Black, 493. Black V. Thorne, 525. Blackburn v. Orawfbrds, 170. Blackiston v. Douglass, 513. Blackstock v. Lardy, 167. Blackwell v. Blackwell, 396. Blackwell, The, 547. Blaidsdell v. Stevens, 392. Blair v. Turtle, 87. Blake Crusher Co. v. Wood, 358. Blake v. Robertson, 525. Blanchard v. Beers, 525. Blaney v. Blaney, 486. Blank v. Mfg. Co., 528. Bliss, The A. M., 537. Block V. United States, 114. Blohn, The Brig, 544. Bloodgood V. Bloodgood, 503. Blumline v. Cohen, 196. Boarman's Case, 472. Bodwell V. Bodwell, 487. Boggott V. Henry, 392. Bogle V. Bogle, 404. Bogliano v. Coke, 457, 464, 465. Bohrer v. Pay, 366, 413. Boileau v. Life Ins. Co., 159*. Boith V. Clise, 219. BoUman, Ex parte, 279. Bond V. Dustin, 187. V. Shepherd, 192. Bondies v. Sherwood, 547. Boon V. Chiles, 360. V. The Hermit, 551. Boone v. Small, 356. Booth V. Stumper, 883. V. United States, 31. Borden v. Hieip, 552. Boniey v. Peck, 531. Boston, The, 551, 552, 555, 560. V. Hatch, 28. Botts V. Williams, 333. Boucher v. Boucher, 444, 445, 446. Bouldin v. Baltimore, 415. Bourband v. Bourband, 416. Bowen v. Chase, 356. V. Howard, 225. V. Idley, 397. Bowerbank v. Morris, 16. Bowie V. Talbot, 125. Bowlby V. Bowlby, 489. Boyce v. Boyce, 488. V. Grund.y, 353, 354. Boyd V. Harris, 30. V. Henzelman, 424. Boyd & Hance v. Harris, 233, 467. Boynton v. Jackman, 444. Bradford v. Abend, 491. V. Felder, 396. V. Williams, 423, 424. Bradley, Ex parte, 35, 267. V. Fisher, 35, 267. V. Telder, 405. Bradstreet v. Bradstreet, 494. Bradstreet, Ex parte, 42. Brady v. Atlantic Works, 533. — V. McCosker, 406. Brainall, The John, 562. Branan v. Wilkinson, 404. Brandon Mfg. Co. v. Prime, 532. Brant v. Lander, 35. Brashear v. West, 99. Bray v. Bray, 404. Bremig v. Meitzler, 490. Brent's Ex'rs v. Bank of Metropo- lis, 187. Brent, George, In re, 472, 473. Brevoor v. Ship Fair American, 547. Brice v. Hobb, 20. Bride v. Lord, 146. Bridge Co. v. Stewart, 217. Bridget v. Cornish, 72. Briggs V. Briggs, 486. V. Gaunt, 162. Bright V. Patton, 274. Brinkerhoff v. Brinkerhoff, 487.v Briscoe, Mater of, 335. Bristol, The, 562. Brodie v. Mining Co., 523. Brogden v. Walker, 406. Bronde v. Haven, 544. Bronson v. La Crosse & M, Co., 403.. V. Shulten, 203. R. B. Brook ,v. Townshend, 165. Brooke v. Barnes, 169. Brookes v. Brookes, 490. Brooklyn Oil Works v. Brown, 146. Brooks V. Bicknell, 425. v. Jenkins, 525. Browder v. MacArthur, 217. Brown v. Buena Vista Co., 413. V. Brown, 486, 502. V. Finley, 63. V. Galloway, 53. V. Gilmore's Ex'rs, 464. V. Hartford Ins. Co., 101. V. Hull, 47. V. Lee, 51, 195. V. Majors, 195. V. McGrann, 175. V. Piper, 17i, 525. 574 TABLE OF CASES. Brown v. Schofleld, 197., V. Swan, 366, 413. V. United States, 537. -^ V. Wallace, 464. V. Wood, 89. Browne v. Poynts, 423. Browning v. Reane, 495. Brumley v. Westchester Mfg. Co., 390. Bush V. Bobbins, 44. Bryan v. Sanderson, 413, 420, 444. Bryant, In re, 472. 473. V. Layland, 111. Bryce v. Dorr, 520. Buchanan v. Deshon, 466. Bachner v. Commercial Bank, 102. Buck V. Cobb, 520. Bucker v. Klorkgeter, 544. Buddioum v. Kirk, 125. Buell, In re, 336. Buerk v. Imhaeuser, 369, 370, 533. BuflBngton v. Harvey, 487. Buford V. Rucker, 393. BuUard v. Pearsall, 171. Bullock V. Brown, 404. Bunyan v. Mortimor, 376. Burdell v. Comstock, 528. V. Denig, 533. Burdett v. Estey, 527. Burdette v. Burdette, 500, 501. V. Bartlett, 51. Burford, Ex parte, 273, 276, 277. Burk V. The Brig Rich, 547. — : V. Trevit, 537. 3urn V. Whittlesey, 480. Burnstine v. Ormes, 354. Burr V. Burr, 497, 502. , Ex parte, 35. , Trial of, 277, 280, 306. Bursler v. Bursler, 502. Burt V. Panjand, 158, 159. Burton v. Driggs, 168. Buschmann v. Morling, 172. Bussard v. Catalino, 208. Butler V. Ball, 529. V. Butler, 487, 396. V. Shaw, 517. Butterworth v. Hill, 516, 517. V. Hoe, 512, 514, 516. V. United States, 516. Byan v. Conway, 144. Byers v. Fowler, 16, 227. C. C. & A. R. R. Co. V. Union Roller Mills Co., 404. Cabot, The, 546. Oadogan v. Cadogan, 493. Cagger v. Howard, 418. CahlU V. Brown, 522. Cahill V. Dawson, 147. Cahoon v. Ring, 425. Cain V. Ingham, 158. V. Warford, -172. Cairns v. Cairns, 494. Caldwell v. Taggart, 359. California, The, 555, 556. Calkins v. Bertram, 533. V. Bertrand, 533, 534. Callv. Call, 503. Calverly v. Williams, 403. Calvert v. Carter, 435. Cambridge, The, 553. Camden v. Doremus, 185, 217. Cameron v. McRoberls, "59. Campbell v. Brown, 36, 54. > V. Browne, 400. V. Campbell, 497. V. District of Columbia, 104, 139, 140. V. James, 534. V. New York, 9, 523. ■ V. Wilson, 29, 30, 31. Camrick v. McKesson, 531. Canal Co. v. Gordon, 361, 478, 479. V. Knapp, 95. Canton v. Ingle, 44. The Cape Sable Co.'s Case, 426. Carew v. Boston Elastic Fabric Co., 533, 534. v. Johnston, 389. Carey v. Dennis, 462. Carlyle v. Stevenson, 410. Oarnad v. Turner, 463. Carnochan v. Christie, 137. Carolina, The Brig, v. The Pal- myra, 550. Carpenter v. Insurance Co., 439. V. Railroad Co., 174, 186. Carr v. Gale, 170, V. Rice, 525. Carrington v. Stinson, 125. v. Sweeney, 416, 420. Carris v. Oarris, 495. Carrol v. Peake, 218. V. Warring, 30, 463. Carson v. Jennings, 537. Carter v. Tuck, 196. Cartwrightv. Clark,- 413. Case v. Redfield, 520, 521. Casey v. Dennis, 466. Castle V. BuUard, 168, 173. Caton V. Caton, 49"4. V. McTavish, 137. Cavender v. Cavender, 210, 355, Cay wood v. Westcroft, 30. V. Whitcroft, 25 Oazenove v. Darrell, 251. Celluloid Manuf. Co. v. Goodyear Dental Vulcanite Co., 517. TABLE OP CASES. 575 Celluloid Co. v. Zylonite Co., 523. Central Bank v. Tayloe, 112. Central Railroad v. Mitchell, 158. Chadbourne v. Franklin, 167. Chadwick v. United States, 114. Chafifee v. United States, 168. Chambers v. Smith, 519. Champagne, Cliquot's, 169. Chandler v. Chandler, 502. V. Petit, 396, 400. V. Von Roeder, 218. Chapin v. Sears, 368. Charles Henry, The Schooner and Cargo of, 547. Chase v. Lockerman, 463. Cheney v. Arnold, 172. Chemical Co. v. Flowers etux., 389. Cheongno v. Jones, 99. Chesapeake & Ohio Co. v. Young, 410. Chestnut v. Chestnut, 486, 493, 497. Cheves, The Langdon, 543. Chew's Estate, 472. Chew V. Hyman, 362. Childs V. Long, 45. Chilton T. Braidon, 355. Chirac v. Reinecker, 36. V. Remicher, 96. Church V. Church, 493. Church, Habeas Corpus, 333, 336. Circassian, The, 554. Oissel V. Pulaski County, 89. City, The Island, 544. City of Norwich, Steamer, 548, 562. City of Paris, Steamer, 560. Claggett V. Kilbourne, 223. Clare v. Wordell, 407. Clark V. Bowen, 204. V. Clark, 493, 495. V. Dunham, 46. V. Fredericks, 217, 218. V. Hull, 400. V. Krause, 427. V. Matthewson, 240, 405. V. Met. Bank, 162. V. Navigation Co., 539. V. Sohier, 43. Clark's Executor v. "Van Eeims- dyk, 439. Clark V. White, 439. Clarke v. Purguson, 523. Clark, Matter of, 336. Clay V. Clay, 497. Clayton v. Chichester, 378. Cleage v. Hayden, 158. Clement, The, 553. Clements v. Moore, 391, 395. Clementv. Phoenixins. Co., 164. Clifton V. United States, 113, 170. Close V. Close, 490. Clowes V. Jones, 495. Cobb V. Howard, 553. Cochrane v. Deener, 519. Cocks V. Lizard, 228, 354. Cocksedge v. Cocksedge, 494. Coddington v. Railroad, 380. Ooelle V. Lockhead, 43. Coggill V. Lawremee, 210. Cogwell V. Warren, 228. Oohn V. Corset Co., 522. Coiron v. Millandon, 360. Cole, Ex parte, 35. Cole V. Hebb, 245. Coleman v. Cross, 423. V. Foster, 533, 660. V. Preedman, 77. Coles V. Coles, 503. CoUard v. Smith, 389, 390. Collett V. Collett, 494. Collinson v. Owens, 463, 465, 467. Collins V. Collins, 495, 503. V. Hathaway, 551, 568. Qollis V. The Corwine, 537. Coltier v. Stinson, 522. Coltman v. Moore, 354. Columbus, The, 565. Colvin's Estate, 472. Colvin, Rachel, In re, 417. Comanche, The, 547, 560. Coniber's Case, 408. Oomegys v. Robb, 43. Commander, The, 555. Commander-in-Chief, The, 565. Commercial Bank v. Buckner, 102. Commissioners, In re, 376. Commonwealth v. Deacon, 333. V. Griffith, 273. Old Concord, The, 560, 566. Congress & Empire Spring Co. V. Edgar, 218. Conger v. Conger, 487, 490. Conklinv. Stafford, 512, 513. Conley v. Freight of Canal Boat, 552. V. Nailor, 390. Confiscation Case, The, 550. Conner v. Conner, 502, 503. Connick v. Morrison, 193. Conover v. Mers, 533. V. Rapp, 525. Conrad v. Atlantic Ins. Co., 96. V. Griffey, 187. Consequa v. Fanning, 446.' Consolidated Electric Light Co. v. The Brush-Swan Co., 531. Consolidated Fruit Jar Co. v. Wright, 524. Consolidated Valve Co. v. Crosby Valve Co., 528. Contie v. Dawson, 425. 576 TABT^B OF CASES. Contract Wager, 171. Converse v. Railroad, 183. Cook V. Cook, 494, 502. V. Tribune Asso., 98. Cooper V. Cooper, 487. V. Burr, 27. Corning V. Burdiek, 225. Cornish v. Cornish, 490. Coreer v. Craig, 99. Cortland Co. v. Herkimer Co., 171. Cotharine v. Davis, 168, 185. Cotton V. Holden, 478. Coughlin V. Poulson, 214. Cdulthurst v. Ooulthurst, 497. Coursey v. Coursey, 490. Cowan V. Beall, 443. Cowen V. B^eall, 170. Cowman v. Lovett, 397. Cox V. N. Y. Central, 167. V. Eayres, 170. Crabtree v. Banks, 402. Orager v. Breugle, 202. Craig v. Brown, 43, 118. V. Smith, 448. V. Worth, 203, 204. Crane v. McCoy, 417. V. McGinnis, 504. Crawford v. Ross, 417. Creath v. Simms, 413. Crehore v. Crehore, 495. Crelin v. Ely, 414. , Creswell v. Kennedy, 354. Crews V. Brewer, 164. Crim V. Handley, 413. Crocker v. Franklin Hemp Co., 429 Croft V. Croft, 494. Cromwell v. Owings, 136, 137. Crooker, In re, 513. Cross V. Blandford, 256. V. Dale, 404. V. De Valle, 356, 402. Grossman v. CrossTnan, 487. Croster v. Weister, 408. Crow V. Crow, 489, 490. Crump V. Morgan, 491. Cudlip V. Cudlip, 487. Cullum V. Beavens, 73. Culver V. Hollister, 41. Cummings v. Gann, 158. Cunningham v. Irwin, 490. V. Oflfut, 226. V. Schley, 464. Cushing V. Laird, 16. Cutter V. Cutter, 488. V. Gremer, 431. Catting V. Myers, 521. Cutts V. Surridge, 103. Cuyler v. Cuyler, 376. Cypress, The, 544. D. Dale V. Roosefelt, 446. Dallas V. R. R. Co., 49, 86. Dalton V. Mclntire, 103. Damon v. Eastwick, 517. Dana, Chas., Matter of, 336, 343. Danforth v. Cater, 171. Daniel v. Mitchell, 445. V. Morrison, 402, 403. Daniels v. Daniels, 492. Darrow v. Darrow, 491, 492. Dant V. The District, 183. Dauphin v. Key, 380. David V. David, 486. V. Graham, 463. Davidson's Lessees v. Beatty, 230. Davis' Case, 334, 336. Davis V. Allen, 159. V. Fredericks, 523. V. Gray, 113. V. New Brig, 5. V. Read, 410. V. Speiden, 377, 447. V. Walker, 159; Davis, The, 548. Dawson v. Daniel, 225. Day V. Chisnj, 43. V. Day, 493. V. Hartshorn, 529. Dayton v. Mclntire,.125. Dean v. Mason, 533. Decamp v. Decamp, 492. Dedekam v. Vose, 209. Deery v. Cray, 172, 219. De Floven v. Reynolds, 441. Deitch V. Wiggins, 217. Delano v. Scott, 520. Delaware Steamboat, 569. Den V. Bacon, 211. Deneale v. Stump, 232. Denney v. Queen, 253. Dennis v. Eddy, 207, 211. Denton v. Jackson, 431. Derr v. Luby, 63. De Saules v. Searle, 236. Desmond v. Wolf, 236. De Sobey v. Nicholson, 380. Detastett v. Crousillat, 99. Detroit, The, 554. Detroit Stove Works v. Perry, 175. Drewv. McDewitt, 159. Dewee's Case, 300. Dexter v.^Amold, 392, 447. V. Hall, 170. Dibble v. Augur, 520. Dibble v. Duncan, 97. Diffenderfer v. Winder, 466. Diggs V. Daniels, 237. Dill V. Strahan, 404. TABLE OP CASES. 577 Dillon, In re, 293. V. Barnard, 380. V. Insurance Co., 424. Dismnkes v. Dismukes, 492. Distilled Spirits, 18,000 Gallons of, 551. Dist. of Columbia v. Herlihy, 302. v. Washington & George- town R. R., 29. District, The, v. Gaslight Co., 78. Dixon V. Dixon, 436. V. Mayer, 524. Doane. The Richard, 548. Dobson V. Campbell, 521. Doddridge v. Gaines, 183, 235, 420. Dodge V. F. S. & T. Co., 171; 440. V. Israel, 429, 432. V. Woolsey, 354. Dolfus V. French, 237. Donnell v. The United States, 301. Doolittle V. Bryan, 16, 237. Dorsey v. Courteney, 245. ■ — V. Hammond, 434. V. Jeofifray, 136. Doub V. Barnes, 233. Doughty, V. Wert, 529. V. West M'f'g Co., 534. Dougherty V. Bentley, 42. Douglass V. Douglass, 73. V. Evans, 378. V. McAllister, 174. Dowes V. Chicago, 353, 404. Downton v. Milling Co., 522. Doyle V. The United States, 318. Draco, The, 546. Drane v. Hodges, 25. Drawbridge Co. v. Shepherd, 118. Dreskill v. Parish, 207. Drew V. Andrews, 166. Drexel v. Birney, 418. Driggs V. Daniels, 420. Drinkle v. Farley, 197. Droullard v. Baxter, 397. Dudley v. Brown, 53. Dugan V. United States, 47. Dimham v. Riley, 111, 112. V. Winans, 445. Dunn V. Allen, 407. V, Dunn, 493. Durant v. Durant, 493. Dutihl's Adm'r v. Coursault, 439. Duvall V. Craig, 92. Duy V. Knowlton, 15. Dwight V. Humphreys, 370. Dyer v. Navigation Co., 539. B Eads V. Steamboat Bacon, 547. Eagleton Mfg. Co. v. West Mfg. Co., 523. 73 Eames v. Andrews, 522. Earl v. Dexter, 532. v. Raymond, 191. Easton v. Chamberlain, 235. V. Batchelder, 406. Baton V. Wells, 165. Eberly v. Moore, 96. Ebert v. Ebert, 136, 137. Edgerton v. Breck, 530. Edwards V. Entwisle, 355. Edwards, U. S. ex rel., v. McKel- den, 77. , Edgson V. Edgson, 373. Edgar v. Clever, 409. EdmoAd v. Edmond, 497. Elastic Fabric Co. v. Smith, 210, 534. Eldridge v. Insurance Co., 354. Bller V. Bergling, 361. Ellis V. Davis, 356. Elizabeth v. Pavement Co., 523, 524, 533. EUithorp v. Robertson, 523. Elliot V. Pell, 403. EUmendorf v. Taylor, 359. Elm City Co. v. Woosten, 524. Elmon V. Grymes, 78, 173. Blwood V. Flannigan, 171. Ely V. Munson, 164. Emery v. Downing, 377. Emerson v. Simm, 531. Bmbrey v. Palmer, 190. Emily, The, 550. England v. Gebhardt, 217. English V. English, 489. V. Foxhall, 369. Ennis V. Smith, 171. V. Holland, 251. Enterprise, The, and The Napo- leon, 553. Epsilon, The, 562. Erskine v. Homback, 101. 187. Erwin v. Blake, 36, 202. V. Dundas, 225. Eshback v. Eshback, 488. Bslava v. Mazango, 150. Btting v. Bank of U. S., 175. Evans v. Eaton, 167, 170. V. Evans, 497. V. Hettich, 525. Everest v. Oil Co., 524. Ewing V. Blight, 379. V. Savoy, 120. P Factory V. Corning, 209. Fague V. Corcoran, 43, 94, 169. Fahey v. Harding, 115. Fallows V. Williamson, 408. Fani v. Tesson, 47, 48. 578 TABLE OF CASES. Fanning v. Dunham, 419. Fanny, The, 564. Farmers' Bank v. Beston, 418. - — — V. Spriggs, 133. Farmers' Loan & Trust Co. v. Sey- mour, 406. Farnham v. Farnham, 494. Farr v. Dary, 135. V. Farr, 493. Farrar v. The United States, 87, 195 375 Faust, The David, 544. Feigley v. Feigley, 491, 492. Fellows V. Fellows, 489. Fendall v. The United States, 100. Fenwiok v. Brent, 145. ' V. Chapman, 463. V. Laughlin, 465. Ferguson v. Harwood, 92, 119. V. Kimball, 446. Fetter, Matter of, 334. Fideliter v. The United States, 550. Fielder v. Darrin, 171. Field V. Gibtas, 35. V. Holland, 439. Fischer v. Hayes, 531. Fish V. Inhabitants of Chester, 171. Fisher v. Rutherford, 97. Fishli V. Fiahli, 489. Fiske V. Bigelow, 57. Fister v. Beall's Administrator, 244. Fitch V. Caughton, 391. Fitzgerald v. Fitzgerald, 487. V. Leisman, 253, 256. Fleet V. Youngs, 197. Flickinger v. Hull, 412. Folger V. The Robert G. Shaw, 173. Fontaine v. Houston, 498. Foot V. Lathrop, 47. Ford V. Cornish, 193. V. Smith, 354. Forbes v. Parsons, 549. Fornshill v. Murray, 504. Forrest v. Hanson, 196. Fort V. Groves, 410. Foss V. Foss, 495, 500. Foster v. Lindsay, 518. Fowle V. Lawrason, 354. Fowler v. Rapley, 67. Fox V. Davi dson, 67. Foy V. Foy, 489. . V. Talbot, 251. Franklin, The Lady, 172. Fraser v. Prather, 89. Frazier v. Lomax, 195. Freeborn v. Smith, 168. Freeland v. Howell, 146. Frelinghuysen v. Colders, 443. Freeman v. Freeman, 493. French v. Hay, 398. Frese v. Bredenfeld, 428. Friend v. Friend, 489, 490. Friendship, The Schooner, 549. Fries v. Fries, 440, 445, 447, 448. Frieze v. Glum, 433. Frith, The Elizabeth, 556, 561. V. Frith, 495, 503. Fritz V. Stover, 447. Frost V. Frost, 488. Frow V. De la Vega, 377. Fry, George, In re, 319, 343, 346, 348. ' Pulton Bank v. Beach, 390. V. Canal Co., 390. V. Fulton, 489, 490. Furlong v. Edwards, 417. V. Miller, 417. Furnis v. Brig Magoun, 560, 561. G. Gaines v. Chew, 354, 367, 368. V. Fuentes, 357. V. Mausseaux, 368. V. New Orleans, 54. V. Travis, 539. Gaillard v. Gaillard, 489, 490. Galatian v. Erwin, 402. Galwith V. Galwith, 504. Galpin v. Page, 36. Gandy v. Marble, 517. Gantee v. Carter, 137. Garcie v. Sheldon, 236. Gardner v. Isaacson, 539. V. Bibbins, 556. V. Linds, 118. Garland v. Davis, 43, 117. , Ex parte, 35. V. Garland, 418. Garretson v. Clark, 526, 533. Garrison v. Carter, 137. V. Memphis Ins. Co., 353. Gass V. Stinson, 430. Gates V. Johnson, 547. Gellinwaters v. Gellinwaters, 490. George v. Tate, 99. Georgetown v. Alex. Canal Co., 361, 366. Georgia R. R. Co. v. Hart, 158. Germond v. Germond, 493. Geyger v. Geyger, 113. Gibson's ( ase, 464, 472. Gibson v. Gaitier, 67, 226. v. McCormick, 463, 465,466, 467. Giddings v. Squier, 63. Gilbert v. Arnold, 419. GiUam v. Brown, 157. TABLE OF CASES. 579 Gilmer v. Higley, 218. Gilpins V. Oonsequa, 167, 429. Gilruth V. Gilruth, 499. Giltner v. Goreham, 315. Gingrat v. Dane, 354. Gist V. Cockey, 244, 463, 465. Glass V. The Betsy, 537. Glassgow V. Porter, 30. Gleason v. Gleason, 488. Glenn v. Clapp, 464, 465. V. Fowler, 73. Glove V. Hodges, 446. Godfrey v. Terry, 361. Goldsborongh v. Ringold, 464. Goldbeck v. Goldbeck, 487, 489. Goldlng V. Golding, 486. Goldsmith, The L. B., 556. Goldsmith v. Tilley, 136. Gonzales v Minor, 544. Goodhue, Matter of, 333. Goodin v. State, 305. Goodrich v. Rodney, 367. Goodyear v. Bishop, 525. V. McBarney, 519. V. Phelps, 530. V. Rubber Co., 425. V. Toby, 379. Goodwin v. Goodwin, 400. Gordon v. Anthony, 519. Gorgas, The E. W., 13. Gorsed v. Beall, 425. Gottfried v. Moerlin, 528. Gould Mfg. Oo. V. Cowing, 526, 533. Gover v. Turner, 187. Gower, Ex parte, 512. Graffam v. Burgess, 398, 355. Graham v. Mason, 531, 532. V. Mfg. Co., 530. V. McCormick, 523. V. Meyer, 423. — V. Teter, 517. Grand Chute v. Winegar, 218, 356. Gran Para, The, 542. Grant v. Grant, 493. V. Strong, 477. V. Phoenix Ins. Co., 418. Gratiot v. United States, 100. Grape Shot, The, 546. Gray v. Gray, 487, 490. V. James, 93, 522. Great Britain, The Ship, 568. Graves v. Graves, 493, 497. V. Boston Mar. Ins. Co., 356. Greathouse v. Dunlap, 97. Gregg V. Grier, 42. Greely, Ex parte, 516. Green v. Biddle, 372. V. Fowler, 456. Green v. Green, 492. V. Johnson, 30. V. King, 146. V. "Watkins, 240, 405. Greene v. Sisson, 360. Greenleaf V. Birth, 175, 218, 310. V. Queen, 356, 362, 400. Greenough v. Clarke, 512, 513. In re 334. Greenwalt v. Enery, 500. Greenwood v. Atkinson, 401. Grice v. Wilt, 523. Grifflng v. Gibb, 380. Griffith V. Bank, 463, 466. V. Godey, 355. V. Insurance Conipany, 230. V. Merritt, 403. Grigg V. Sloop Clarissa Ann, 550. Grim v. Barton, 14. V. Breedlove, 14. Griswold V. Hill, 241. V. Miller, 47. Groot V. Hitz, 25, 30, 437, 466. Gross V. Goldsmith, 68, 257. Grove v. Swartz, 135. V. Grove, 489, 492. Grymes v. Sanders, 355. Gue V. Tidewater Canal Co., 225. Gunn V. Plant, 177. Gunninger v. Philpot, 98, 218. Gustavia, The, 536. Gutta Percha Co. v. Goodyear, Co., 529. H. Hafern v. Davis, 498. Hagadorn v. Mut. Life Ins. Co., 159. Hagthorp v. Hook, 425. Haight V. Barr, 417. V. Proprietors, '358. Haines v. Carpenter, 368. Hair v. Hair, 488. Hall V. Clagett, 424. V. Wiles, 527. V. Hall, 487. V. Holmes, 203. V. Taylor, 47. Hallet V. Hallet, 405. Halsey v. Hurd, 89. Halstead v. Lynn, 97. Hamaker v. Hamaker, 496. Hamburg Mfg. Co. v. Edsall, 417. Hamersley v. Lambert, 431. Hamilton, The, 548. Hammer v. Klien, 92. V. Kaufman, 93. Hammond v. Denton, 30. V. Hawes, 145. -^ V. Hammond, 462, 463. 580 TABLE OF CASES, Hammond v. Higgins, 20. Hauberry v. Hauberry, 489. Handy v. Handy, 494. Hankinson v. Hankinson, 489. Hanson v. Barnes' Lessee, 233, 465. V. Towle, 549. Hardenberg v. Hardenberg, 487, 488. Harding v. Handy, 356, 365. Hare v. Hare, 499. Harder v. Moorea, 230. Harford v. Morris, 495. Hardin v. Boyd, 396. Harkness v. Board of Pub. Works, 410. V. Hyde, 87. Harris v. Dammann, 226. V. Hooper, 435. V. Wall, 125, 170. Harrison v. Nixon, 366. V. Rowan, 354, 363. Harrington v. Harrington, 492. Harryman v. Harryman, 134, 135. Hart V. Heilner, 167. Hartley v. Boynton, 89. Hartman v. Aveline, 335. Harwood v. R. R., 366. V. Rawlings, 466. Hasb'rouck v. Shuster, 400. Hatch V. The Boston, 28. V. Eustis, 232, 233, 241. Hatfield v. Bushnell, 240. V. Hatfield, 491. Hathaway v. Helner, 158. V. Roach, 207, 209, 211. Hause v. McOormiek, 208. Hausley v. Hausley, 492. Havana, The, 544. Haven v. Brown, 531. Havre, The Bark, 551. Hawley v. Wolveston, 367. Hawes v. Hawes, 492. Haye v. Brewer, 465. V. Penn, 465. Hayden v. Suffolk Mfg. Co., 525. Hayes v. Miles, 465. Hayes v. Sulsor, 522. v. Dayton, 531. Hayne v. Hayne, 404. Haynes v. Hunsicker, 167. V. Ledyard, 173. Haywood v. Andrews, 356. Hazel V. Waters, 264. Heatman v. Sharp, 67. Heckers v. Fowler, 133, 521. Hedden v. Hedden, 494. Heflfer v. Heffer, 495. Heinely v. Rose, 565. Hellen, In re, 46. V. R. R. Co., 200. Helms V. Franoiscus, 504. Henderson v. Griflan, 145, 211. , U. S., exrel., v. Edmunds, 76. Hendrickson v. Hinkley, 413. Henry v. Stove Co., 523. Henson v. Hill, 355. Herdsman v. Lewis, 425. Herman v. Herman, 391. Hermine, The, 544. Herr v. Bierbower, 409. Herr v. Barber, 202, 442. Herrick v. Herrick, 494. Herring v. The District, 29. Hessian v. The Howard, 547. Hewett V. Telegraph Co., 410. Hewitt V. State, 136. Hews V. Hews, 488. Hay ward, Matter of, 334, 335. Hitibs, Ex parte, 248. Hibber v. State, 333, 334, 336. Higbee v. Hopkins, 439. Higgs V. Heugh, 145. Higgins V. Newton, 165. Higginson v. Bank, 147. Hilarity, The, 546. Hill V. Clark, 146. V. Mendenhall, 35. - — — V. Chapman, 446. V. Whitcomb, 530. Hills V. Hills, 489. Hilleary v. Crow, 425. Hind, H'ibeas Corpus, 333, 334. Hinde v. Longworth, 217. Hines v. The District, 102. Hipp V. Babin, 353, 356. Hitz V. Bank, 192, 193, 225. Hive V. Trevor, 537. Hoargenbee v. Gerard, 147. Hobart v. Drogan, 545. Hobb V. Brioe, 20. Hobson V. McArthur, 369. Hodge V. Railway Co., 530. Hoe V. Butterworth, 516. Hoe V. Wilson, 359. Hoffman, Adm'r, v. Cromwell, 492. V. Hoffman, 495. V. Lorenz, 500. V. Smith, 425. Hoffmire v. Hoffmire, 486. Hogan V. Bank of Decatur, 390. V. Kurtz, 22, 30, 51. V. Walker, 360. Hoiles V. United States, 78, 348. Holden v. Stickney, 359. Holker v. Parker, 36. Hollingsworth v. McDonald, 408. V. Wright, 42. Holmes v. Dodge, 565. Holston V. Holston, 487. Holtzman v. Robinson, 261. TJABLE OP CASES. 581 Holtzman v. Wagner, 148. Hooper, Ship Nathaniel, 543. Hoover v. Wise, 36. Hopkins v. McEldery, 426. Hopt V. Utah, 313. Horn V. State, 146. Horsburg v. Baker, 356. Horsey v. Beveridge, 26, 221, 228. Hotel Oo. V. Wade, 360. Houghton V. Jones, 172, 217. Hounett v. Hounett, 496. Housam v. Kunecke, 53. House V. Sheppard, 99. V. Mullen, 440. Houseman v. Schooner N. Caro- lina, 547. Hovey v. Stevens, 529. Hovins V. Hordeman, 204. Howard v. Waters, 467. Howe Machine Go. v. Edwards, 133. Howes V. Nute, 531. Howell V. Bipley, 418. Hoyle, In re, 79. Hubbard v. Stetson, 355. Hubbel V. Tucker, 518. Hughes V. Moore, 92. V. Cairo, 159. Hulett V. Hulett, 171. Hull y. Hull, 495. — < — V. Albro, 157. V. Commissioner, 77. V. Weon, 165. Humphreys v. Humphreys, 396. Hungerford v. Sigerson, 413. Hunt V. Hunt, 488. V. StuU, 464. V. Wickliffe, 360. Hunter v. United States, 398. Hurd v. Casey, 403. V. Everett, 396. Hurst V. Jones, 145, 211. Hutchins v. Eden, 207. Hyde v. Liverse, 145. Hylton V. Brown, 53, 112. Hyman v. Charles, 13. Hysinger v. Baltzells, 24. lasigi V. Brown, 112. Ilett V. Collins, 146. Imbush V. Earwell, 60. Imhaeuser v. Buerk, 525. India Rubber Comb Co. v. Phelps, 532. Infanta, The, 544. Ingle v. Jones, 461, 466, 467. Ingram v. Stake, 306. Innis V. Boiler Co., 523. Inskeep v. Inskeep, 493. Insurance Co. v. Bailey, 356. V. Baker, 175, 218. V. Bangs, 373. V. Schooner Breed, 541. V. Comstock, 165. V. Folsom, 164. V. Grant, 235, 382, 420. V. Hallock, 84. V. Hosmer, 58, 213, 236. V. Johnson, 554. V. Lothrop, 170, 176. V. Mosley, 169. V. Mouler, 218. V. Newton, 169. V. Piaggo, 218. V. Stinson, 418. V. Warehouse Co., 169, 219. Irwin V. Dixon, 366. Isaacs V. Cooper, 530. Ives V. Bank, 195. Ives, The, 549. Ivins V. Hutton, 354. Jackson v. Ashton, 439. V. Bank, 201. V. Blackwood, 354. , Ex parte, 319. In re, 346. -^— V. Jackson, 492, 497, 502. V. Randall, 197. V. Robinson, 99. — Rundlett, 102. ■ V. Simonton, 14. Jacques v. Collins, 112. V. Hall, 400. Jago de Cuba, The, 543. James A. Wright, The, 240. James v. Atlantic Delaware Co., 149. V. Davis, 192. Jamison v. Jamison, 504. Janney, In re, 412. Jarvis v. Boyd, 47. Jenkins v. Eldridge, 445, 446. V. Tye, 439. Jenks V. Garretson, 203. Jenne v. Jenne, 498. Jenness v. Jenness, 497. Jennings v. Corson, 537, 543. — - — V. Dolan, 526. V. The Perseverance, 211. Jerman v. The Stewart, 209. Jerome v. Ross, 409. Jerusalem, The, 5-16. Johns V. Johns, 495, 496. Johnson v. Donaldson, 292. V. The District, 30, 42, 43. V. Douglass, 40, 67. V. Fassman, 524. 582 TABLE OF CASES. Johnson v. Hartnan, 425. V. Johnson, 493. V. Jones, 218. V. Jumel, 76. V. Mining Co., 113. V. Ofifat, 446, 4)7, 448. V. United States, 270, 301. V. Waters, 362. Jolly V. Jolly, 502. Jones V. Barker, 523, 524. V. Drake, 374. • V. Gray, 221. V. Hays, 101. V. Jones, 233, 491. V. Leonard, 336. V. R. R. Co., 176. V. Sewall, 522, 523, 524. V. Smith, 403. V. Van Zandt, 95. Jordan v. Dobson, 530, 532. V. Wallace, 531. Josey V. Rogers, 403. Joslin V. Joslin, 502, 504. Joyce V. Wilkening, 67. Judd V. Pulton, 234. Justh V. Holliday, 183. Ju-tice V. Jones, 512. K. Kaine, Ex parte, 80, 81. , In re, 280. Kaufifman v. Walker, 464. Kearney v. Case, 464. V. Denn, 218. Keeoh v. Keech, 487. Keefe v. Bramhall, 32, 356. V. Malone, 462, 463. Keefer v. Martin, 20. v. Young, 20. Keeler v. Dusenbary, 113. Keely v. McQlynn, 357. Keene v. Wheatley, 523. Keep V. Ind. & St. Iiouis R. R. Co., 162. Keighler v. Nicholas, 426. V. Ward, 426. Keirle v. Shriver, 245. Keleher v. Darling, 522. Kelly V. Miss. Gent. R. R. Co., 96. Keijdall v. Oreighton, 354. — — V. Qrice, 214, 221. V. United States, 76. V. Vanderlip, 98. Kennedy v. Barker, 192. V. Creswell, 463, 467. V. Kennedy, 488, 489, 490. '■ V. Poole, 193. Kent V. Taneyhill, 392. Kentucky v. Dennison, 332, 334, 335. Kenwick v. Kenwick, 494. Kerosene Lamp Heater Co. v. Fisher, 533. Kerr v. Watts, 359. Keys, The Dick, 537. Keyser v. Fendall, 51, 244. Kiddall v. Trimble, 424. Kilbourn v. Latta, 439. Kilgour V. New Orleans Gas Light ■ Co., 90. Killam v. Schooner Erie, 555. Killian v. Clark, 416. V. Ebbinghaus, 366. Kimball v. Kimball, 491. King V. D'Enon, 146. V. Dowdall, 235. V. Galium, 171. Kingsbury's Case, 332. Kipp V. Hanna, 396. Kirby Bung Co. v. White, 529. Kirk V. Cole, 57, 257. V. Commissioners, 316. Kirk's Petition, In re, 214. Kitchen v. Woodfln, 210. Kneass v. Bank, 210. Knight V. Brawner, 30. Knoedler v. Meloy 29, 99, 129. Labaite v. State, 146. Laber v. Cooper, 217, Lake v. Austwicke, 406. Lamar v. Micou, 171. V. Monroe, 30. Kent V. Lincoln, 173. V. O'Hara, 436. Lambert v. Lambert, 403. Lammon v. Fensier, 14. Landes, v. Brant, 35. Lane v. Glover, 456. V. Ridley, 103. Langdon v. Evans, 167, 186. Lanier v. Hill, 397. Lannitz v. Barnum, 197. Lansburg, In re, 28, 29. Lansdale v. Smith, 380. Larrison v. Larrison, 493, 494. Latham v. Latham, 496. Latimer v. Hanson, 465, 467. Law, The William, 545. Lawrence v. Lawrence, 499. Lavender v. Lavender, 493. Leads v. Ins. Co., 439. Leary's Case, 336. Leary, In re, 81. Leavittv. Conger & Wife, 389, V. Leavitt, 489, 495. Lebrun v. Lebrun, 500, Lee V. Blandy, 115, TABLE OF CASES. 583 Lee V. Boteler, 424. V. Tinges, 172. Leflferts v. Bramptoiij 113. Leggett & Myers Tobacco Co. v. Miller, 517. Leith V. Leith, 486. Leland, Matter of, 334. V. Ship Medoia, 564. Lemon* v. R. R. Co., 36, 202. Lenox v. Prout, 439. Leseur v. Leseur, 497. Leslie v. Leslie, 497. Levingston v. Woodward, 533. Levis V. Baryers, 137. Levy Court v. Ringgold, 13. Lewis V. Broadwell, 30. V. Cocks, 353. V. Darling, 353. V. Few, 158. V. Jefferson Co., 158. V. Lewis, 'M88, 497, 499. Lillienthal v. Detwiller, 531. Lincoln v. Claflin, 118. V. Iron Co., 177. Lind, The Jenny, 560. Lingan v. Henderson, 89. Linn v. Robertson, 48. Little V. Dean, 197. V. Pierce, 30. Littlefleld v. Berry, 533. Littlejohn v. Munn, 84, 236. Livingston v. Story, 381. Lock V. Pa. R. R. Co., 525. Lockhart v. Horn, 377. V. Wolf, 146. Lockwood V. Cleaveland, 577, 518. Locomotive, &c., Co. v. Pa. R. R. Co., 524. Locomotive, &c., Truck Co. v. Pa. R. R. Co., 5.34. Loeflaerv. Keokuk, 157. Loercher v. Crandal, 519. Logan V. The Steamboat Aeolian, 514, 545. Long V. McDonald, 146. Longworth v. Taylor, 396. Looney v. Bailey, 187. Lord Derby, The, 549. Lorillard v. Standard Oil Co., 519. Lorley v. Brewer, 162. Lottawanna, The, 236, 564. Lotty, The Bark, 548, Louisiana, The, 544. Lovell V. Martin, 237. Lovett V. Lovett, 502. Lowenstein v. Casey, 112. Lowry v. Canal Boat, 537. Lucas V. Brooks, 148, 149, 175, 219.' Luchs V. Jones, 19, 58, 259. Ludar v. Lewis, 377. Ludington v. Taft, 165. Luther v. Borden, 272. Lutz V. Linthicum, 144, 135, 137. Lynch v. Lambe, 25. Lynden v. Lynden, 495. Lynn v. Bertram, 97. Lyster v. Lyster, 488. M MacDonald v. Hovey, 30, 182, 236. Mackall v. Richards, 53, 228. Macker v. Thomas, 240. Mackin v. United States, 297. Macomber v. Clark, 111. Macullar v. Wall, 167. Macy V. De Wolf, 211. , McAllister v. McAllister, 490. McArthur v. Scott, 361. McOlurg V. McClurg, 487, 489. McComb V. Ernest^ .=i22. McCormick v. District, 355. V. Gibson, 463. V. Seymour, 525, 627. McOraney v. McCraney, 489. McCullough v. Groff, 141. McDonald v. McDonald, 489, 492. McDonnel v. Eaton, 368. McEldery v. Smith's "Lessees, 233. McElmore v. Cohen, 29, 119. McParland v. Gwin, 227. McPerron v. Taylor, 177. McGahay v. Williams, 489. McGavock v. WoodUef, 218. McGee v. McGee, 502, 503. McGiffert v. McQiffert, 486. McGinnis v. The Pontiac, 537. McGhnchy v. United States, 42. Mcintosh V. Johnson, 253. McJenkin v. McJenkin, 499. McKean, Ex parte, 333, 335. McKim V. Odom, 426. V. Thompson, 399, 401, 424. McKnight v. Craig, 2;J2, 233. McLaughlin v. Bank, J25, 463. V. O'Rourke, 404. McLean v. Young, 478. McManus v. Standish, 354, 35o. McMechen v. Maggs, 424. McMicken v. Perin, 378. V. Webb, 218. McMillan v. Barclay, 522, 528. McMurray v. Drown, 478. McNiel V. Holbrook, 169, 174. McPherson v. Cox, 36. McQuiddy v. Ware, 366. McRea v. Bank, 360. Magarity v. Shipman, 95. Magahay v. Magahay, 486. Magic Ruffle Co. v. Eben City Co., 428. Magniac v. Thompson, 218. 584 TABI>E OF CASES. Magrath v. Magrath, 489. Magruder, Ex parte, 34. Mahogany, 520 pieces of, 550. Mahone v. Mahone, 486. Maillard v. Bank, 30. Maine Ins. Oo. v. Hodgson, 97. Maissonnaire v. Keating, 96. Makubin v. Brown, 466. Malon V. Hinds, 359. Maltby V. Bobb, 530. Manchester, Matter of, 334, 335. , Ex parte, 336. Mandeville v. McDonald, 44. ' V. Riggs, 36. V. Wilson, 36. Mangels v. Mangels, 503. Mann v. United States, 100. Manning v. Hayden, 36. V. Isinglass Co., 523, 524. V. Jameson, 1J5, 116, 147. Mannistee, The, 548. Manufacturing Co. vSprague, 523. Marble v. Marble, 492, 493. Marine Ins. Co. v. Hodgson, 413. Marion Co. v. Clark, 17.i. Market Co. v. Beckley, 29. V. District, 3")6. V. Warthen Bros., 418. Marks v. Main, 3o6. Marr v. Kubel, 31. Marsh, In re, 78. V. Seymour, .033. V. Whitmore, 366. Marshal, The, v. Rogers, 14, 36. Martin, In re, 78, 165, 277. V. Lewis, 236. Msiry Anne, The, 560. Mary Jane, The, 558. Maryland & Del. R. R. v. Porter, 137. Mason v. Ship Blaireau, 547. V. McGill, 403. V. Muncaster, 414. Matchin v. Matchin, 493, 49 J. Mattheson v. Grant, 43. Matthews v. Matthews, 97. V. Wade, 512. Mattingly v. Boyd, 30. Maul V. Scott, 226. Maulsby v. Barker, 183, 186. Mauro v. Almeida, 539. Maxwell v. Cresswell, 78. V. Kennedy, 380. May V. Armstrong, 403. V. Buchanan, 526. V. LeOlaire, 353. V. Logan Co., 520. V. Mercer Co., 520. Maye v. Carbury, 112. Mayer V. Foulkrod, 36. V. Mayer, 488, 489. Mayes v. People, 173. Mayor, The, v. Cooper, 210. Maze V. Miller, 98. Meador, Ex parte, 272, 273. Meads v. Hartley, 453. Mechanic, The Young, 560. Mechanics' Bank v. Seaton, 170. Mechanics andParmers' Bank v. Smith, 157. Medford v. Dorsey, 44. Melburne v. Burton, 251. Meloy V. Johnston, .53, 54. Melson v. Dickson, 158. Mercer v. Mercer, 445, 448. V. Selden, 30. Merchants' Nat. Bank v. State ' Nat. Bank, 111. Merchants' Bank v. Evans, 227. Mereno, The, 550. Merrick v. Giddings, 87, 174, 186. V. Baltimore and Ohio R. R., 203. Merritt, The Mary, 551. Mervin v Smith, 415. Messenger v. Messenger, 489. Metes, The, 548. Metsker v. Bonebrake, 354. Mifflin V. Bingham, 167, 170. , Milburn, Ex parte, 87. Miles V. United States, 312, 316, 500. Miller v. District, 388, 439. V. Fenton, 404. V. Mclntire, 101, 398. V. New York, 366. V. Road Co., 158. V. Smith, 520. V. United States, 539, 557. Milligan, Ex parte, 272, 273. Millink v. Collier, 47. Mills V. Duryee, 119. V. Thursby, 236. Milner v. Milner, 400. Mining Co. v. Collins, 477. V. Taylor, 219. Minor v. Mechanics' B'k, 101, 173. V. Walker, 26. Mitchell V. Allen, 237. V. Clark, 97. V. Harmony, 175. V. St. Maxent's Lessee, 225. Mix V. Mix, 492. Montgomery v. Black, 73. Montgomery Bank v. Albany B'k, 165. V. Hernandez, 15. Moody V. Rowell, 172. Moon V. Heifer, 146. Moore v. Armstrong, 383. V. Carter, 43. V. Hought, 251. TABLE OF CASES. 585 Moore v. Jaeger, 354, 355. V. Marsh, 519. V. Metropolitan R. R., 179, 180, 181, 182, 215, 236. V. Railroad Co., 186. V. Rossenberger, 227. • V. Waters, 251. — V. White, 472. ■ V. Wingate, 500. Moores v. Moores, 497. Mora V. McOrady, 113. Morehead v. Jones, 532. Morgan's Case, 472. Morgan v. Beloit, 353. V. Curtenius, 119. V. Garlenius, 78. V. Gay, 164. V. Morgan, 359. V. Tapscott, 550. Morrell v. Hall, 233. Morris v. Barney, 43. V. Parker, 38. V. Vanderen, 169. Morrison v. Shuster, 356, 365, 369, 439. Morsell v. First Nat. Bank, 201. Mosser v. Mosser, 493, 496. Mott V. Bennett, 164. Mouler v. Insurance Co., 218. Mount V. Mount, 494. Mowry v. Whitney, 532. Mulhall V. Keenan, 168. MuUer v. MuUer, 496. - Mulligan, Ex parte, 79. Mullikin v. Duval, 25, 232. Mulock V. Mulock, 493, 494. Murdock's Case, 401. Murphy v. Cord, 232, 233. V. Stewart, 177. Murray v. Hoboken, 272, 273. V. Schooner Charming Bet- sey, 565. MurshuU V. Lord Mohun, 407. Music Co. V. Paper Co., 94, 95. Musselman v. Musselman, 497. Multer V. Chauvel, 400. Myers v. Dorr, 383. V. Fenn, 362. Myerstein v. Schlemner, 236, 237. N Nailor v. Nailor, 355. Nanney v. Kenrick, 103. Napoleon and Enterprise, 553. Narragansett, The, 565. National Car-brake Co. v. Terre Haute Oar Co., 525. National Hat Co. v. Hedden, 527. Naudain v. Ormes, 356. Navarro, The, 560. 74 Nave V. Morton, 146. Neale v. Neale, 395. Nellis V. McLanahan, 531. Nelson v. Dunn, 403. V. Hill, 369. V. Parker, 43. Nesbit V. Dallum, 390. Nevins v. Johnson, 528. Nevitt V. Clarke, 554. Newell V. Norton, 548, 554. New Jersey, Steamer, 565. N. J. St. Nav. Co. V. Bank, 48. Newman v. Hexter, 62. New York v. Ransom, 525. New York, The, 562. Newton v. Griffith, 463. Nichols v. Brunswick, 208, V. Levy, 223. V. Nichols, 494. V. Tremblett, 559. Nickel Co. v. Worthington, 520. Nightingale v. Oregon Cent. R. R., 147. Niveta, The Brig, 568. Nixen v. Hallett, 146. Nones v. Bdsall, 145. Norfolk's Bx'rs de son tort v. Gant, 244. Norris v. Norris, 492. North Carolina v. Perry, 333. North V. Kershaw, 528. V. North, 503. N. W. Fire Ex. Co. v. Phila. Fire Ex. Co., 530. Norton v. Hays, 47. V. Mackintosh, 103. V. Warner, 387. Norway, The, 240. Norwich Co. v. Flint, 169. V. Wright, 562. Norwood V. Sutton, 145. Nourse v. Allen, 530. Noyes et al. v. Inland and S. C. Co., 3.57. Nudd V. Burrows, 168. O'Connell v. O'Connell, 499. Oconto, The Tug, 550. O'Day V. Vansant, 52. Odorless Excavating Co. v. Lan- man, 529. Oelricks v. Ford, 47. V. Spain, 353. Ofifubt V. Dangler, 94. V. King, 354, 462. Ogdensburg, The, 548. O' Grady v. Barry, 396. O'Halloran, In re, 35. O'Hara v. Sheppard, 401. 586 TABLE OF CASES. Ohio Ins. Co. v. Winn, 437. Oil Oo. V. Barbour, 98, 99, 100. Oil Cup Co. V. Lubricator Co., 520. Oil Works v. Brown, 146. Olbers, The, 556. Oliver v. Cameron, 36, 115, l85. V. Heap, 136. V. Maryland Ins. Co., 166, 176. V. Pratt, 367, 368, 369. O'Neal V. The District, 183. Oningi v. Hull, 171. Oram v. Dennison, 377.' V. Oram, 486. O'Reilly v. Davis, 197. V. Murdook, 196. Orleans v. Piatt, 175. Orne v. Townshend, 551, 555. Orr V. Badger, 529. V. Orr, 487. Osborn v. Bank, 35, 439. V. Gheen, 437. Oscanyan v. Arms Co., 166, 176. Osterman v. Baldwin, 227. Otis, The Brig, 556. Ott V. Dill, 196. Otterback v. Brown, 174. Otto V. Jones, 145. Ould V.' Reddick, 425. V. Wash. Hosp., 354. Oversheet v. State, 493. Overton v. Gotham, 16. Owen V. Curzon, 407. ■ V. Owen, 497. Owing, Rebecca, case of, 374, 389, 390, 405, 472. Oxford, Earl of, case of, 412. Probst V. Railroad, 183. Pacific R. R. V. Atlantic & Pacific R. R., 368. Page, The Blanche, 569. Page V. Burnstine, 149, 355. ■ V. Holmes Burglar Alarm Co., 529. Painter v. Drane, 478. Palmer v. Palmer, 488, 489, 503. V. United States, 804. Paper Bag Cases, 519. Papineau v. King, 113. Pardrige v. Wing, 145. Parker v. Bigler, 208. V. The Cartzler, 208. • — V. Cotton Co., 353. V. Grant, 377. , The George H., 559. V. Haworth, 115, 521. V. Stiles, 522, 525. Parks V. Booth, 533. V. Turner, 177. Parsons v. Bedford, 164. V. Howard, 360. V. Parker, 102. Paschal, In re, 36, 37, 202. Patapsco Ins. Co., The, v. South- gate, 25. Patapsco, The, 168; Pate V. Pate, 491. Patons V. Lee, 10. Patterson v. Bacon, 236, 237. V. Staples, 530. Patton V. Blackwell, 146. V. Randolph, 547. V. Taylor, 366. Payne v. Baldwin, 272. V. Hook, 368. Peace v. Grove, 399. Pervear v. Commonwealth, 319. Peck V. Farrington, 115. Peck & Co. V. Lindsay, 518. Pegg V. Worford, 425. PeirsoU v. Elliott, 440'. Pelham v. Edelmeyer, 366. Pericke, Ex parte, 418. Pence v. Langdon, 175. Pendleton v. Evans, 377. V. Fay, 401, 405, 406. Penhallon ,v. Doane, 537. Pentlarge v. Pentlarge, 518. Pennock v. Dialogue, 174. Pennoyer v. Neflf, 89, 119, 502. Penora v. Flournoy, 172. People V. Bank, 169. V. Baker, 171. • V. Brady, 334, 336. V. Craft, 374. V. Goodhue, 333. V. Jewett, 159. ex rel. Smith v. Pease, 169. V. Rector, 173. V. Schenck, 333. V. Sennott, 333. ■ — V. Vermilyea, 146. V. White, 310. Pepper v. Shepperd, 418. Perkins v. Hart, 95. V. Giles, 165. Perry v. Coming, 530, 531. V. Perry, 496, 497. Peters v. Suter, 26. Peterson v. Wooden, 520. Pettibone v. Deninger, 167. Pettingill v. Dinsmore, 551, 552. Peugh V. Davis, 355. Peyton v. Brooke, 211. Phelps v. McDonald, 380. V. Brown, 522. V. Comstock, 520. Phillip V. Nock, 525. TABLE OP CASES. 587 Phillips V. Coburn, 482. V. Gilbert, 478. V. Negley, 190, 203, 214. v. Preston, 164. V. Shipley, 133. V. Smoot, 418. Phillipi V. Phillipe, 366. Pierce v. Brown, 36. — V. Indseth, 118, 191, 194. V. Turner, 44. Piersall v. Elliott, 356. Pilot, The, fi55. Pinch V. Anthony, 400, 401. Pinckney v. Pinckney, 491. Pinkhard v. Pinkhard, 487. Pike, The Lady, 217. Pioneer, The, 555, o56. Piper v. Brown, 532. Pittman v. Hooper, 543. Pitts V. Hall, 523, 524. Piatt V. Judson, 377. • Platte, Ex parte, 209. Plummer v. Plummer, 499. V. Webb, 544. Poland V. Brig Spartan, 541. Polk V. Cosgrove, 36. Pollard y. Dwight, 375. Polydore v. Prince, 567. Pomeroy v. Connison, 512. Poole & Hume v. Daly, 465. Poor V. Carlton, 415. Poffenhusen v. N. Y. Gutta Per- cha Co., 532. Popkin V. Popkin, 494. Poppenhusaxi v. N. Y. Comb Co., 530. Porritt V. Porritt, 487. Porter v. National Bank. 150. V. Porter, 493. -. V. Eapine, 251. ■ V. White, 371. Portsmouth v. Portsmouth, 495. Post V. Mackall, 389, 463. Potter V. Dixon, 528. Pottier & Stymus Mfg. Co. v. . Taylor, 63. Poul'tney v. Ross, 168. Poulteney v. City of LaFayette, 885. Powell V. Kane, 419. 203. • V. Powell, 488, 497. Powelson v. Powelson, 490. Power V. Semmes, 207. Powder Co. v. Powder Co., 381. Pratt, The Brig, 560. Pratt V. Burr, 443. Pratt, The David, 537, 538. V. Reid, 545. V. Thomas, 549. Prentice v. Zanes, 178, 218. Prentiss v. Elsworth, 516. Prescott V. Prescott, 492. Prevost V. Yorrell, 368. Price V. Bank, 436. V. Thomas, 135. V. Tyson, 135. Prigg V. Commonwealth, 331. Prince v. Prince, 493. Prince, The Sailor, 544, 552. Pringle v. Huse, 153. Propeller Sun, The, 555. Providence v. Babcock, 217. Provost V. Gratz, 445. Prutzman v. Pitesell, 456, 457. Pulling V. The People, 235. Pultan V. R. R. Co., 417. Putnam v. Day, 440. V. Lomax, 532. Pyle V. Pyle, Q. Queen v. Hepburn, 157. Quinby v. Conlan, 425. Quincy Whig Co. v. Tillsom, 146. Quinn v. Guion, 417. V. Steamboat, 560. R. Ragan v. Campbell, 356. Railroad v. Henning, 217. — j V. Ins. Co., 403. V. Kellogg, 170. V. Ross, 218. V. York Co., 125. Railroad & Bridge Co. v. The Dis' trict, 355, 415. Railroad Co. v. Drew, 428. r V. Hurst, 174. V. McHenry, 94. V. R. R. Co., 404. V. Stimpson, 524. Ramsey v. Daniels, 171. Randall v. Howard, 380. V. Phillips, 439. Randolph v. Barrett, 43. V. Dickerson, 406. Ranson v. Davis, 362. V. New York, 211. Rathburn v. Rathburn, 496. Rawlins v. Powell, 399. Ray V. Knowlton, 15. V. Law, 420. Raymond v. United States, 23 Rea V. Missouri, 173. Read v. Consequa, 390. Reavis v. Reavis, 502. Rector v. Clark, 165. Reed.v. Cutter, 522. V. Ingraham, 47. V. Reed, 487. 588 TABLE OF CASES. Reese v. United States, 281, 283. Reeves v. Keystone Bridge Co., 523. Reggel, Ex parte, 332. Regina v. liardin, 197. Reid V. Reid. 488. Reissner v. Anness, 531. Remington v. Linthicum, 227, 228. Remnants in Court, 564. Renner y. Marshall, 201. Rentzheimer v. Bush, 173. Resson v. Resson, 502. Rex V. Burton, 495. Reynolds v. Bank, 395. V. Reynolds, 495. V. United States, 159, 310, 315. Rhett V. Poe, 174, 175. Rhoades v. Selin, 429, 430, 432. Rhode Island v. Massachusetts, 380, 382, 383. Rhod.e Island, The, 565. Rhode Island H. T. Co. v. Haz- ard, 149. Rice V. Melendy, 145. Rice, The WiUiam D., 549. Rich V. Henry, 16, 228. Rich, The Brig, 546. Richards v. Richards, 493. Richardson v. Croft, 532. V. Golden, 429, 432. V. Jones, 426. V. Noyes, 523. V. Richardson, 491, 493. Richardson's Lessee v. Parsons, 245. Richmond v. Richmond, 496. Rick V. Neitzy, 439. Ricker v Powell, 447, 448. Riddle v. The Marshal, 226. V. Trimble, 30. Rider v. Morsell, 413. Ridge V. Martin, 134. Ridgely v. McLaughlin, 465. Ridgeway v. Hayes, 354. Rie V. Rie, 489, 490, 491. Rigden v. Martin, 134. Ringold V. Jones, 422. Ringo V. Binns, 360. Ritchie, Adm'r, v. Stone, 257. Ritter v. Ritter, 495. Rix V. Rix, 493. Roach V. Hurlings, 42, 43, 174, 370. V. Van Riswick, 224. Robbins v. Woolcott, 165. Robbinson, Ex ■parte, 35. V. Frost, 47. Roberts v. Graham, 94, 172. V. Kelly, 335. V. Scolfleld, 552. Robertson v. Beall, 231. Robertson v. Carson, 359. V. Cote, 495. V. Lain, 46. V. Parks, 463. Robinson v. Cathcart, 354, 355. V. Lord Byron, 415. V. Miller, 377. V. Randall, 159. V. Townshend, 377. Robsc V. Brock, 219. Rock Boring Co. v. Sheldon, 519. Rockhall v. Hanna, 238. Rocksellv. Allen, 227. Roehmer v. Linn, 524, 525. Roemer v. Simon, 532. Roger V. Belting Co., 525. V. Coupe, 526. Rogers v. Abbot, 530, 531. V. Palmer, 36. V. Ritter, 170. V. Rogers, 487. V. The Marshal, 14, 36. Rollins V. Tritshell, 99. Roloson V. Carson, 136, 137. Root V. Ball, 524. V. R. R., 356. V. Railway Co., 528. Rosenblatt, Ex parte, 335. Rosenthal v. Walker, 172. Ross V. Robinson, 172. Rountree v. Smith, 175. Rouse V. Rouse, 497. Ruby, The, 431. Ruckman v. Ruckman, 487. Rudd V. Rudd, 487. Ruding V. Smith, 491. Ruggles V. Eddy, 532. Ruth, In re, 339. Ruppert V. Haske, 356. Russell V. Ely, 217. Russell & Erwin Mfg. Co. v. Mal- lory, 524. Russell V. McLeUan, 429. V. Russell, 492. Rusk V. Steamboat Freestone, 544. Rutherford v. Geddes, 125. Rutland Marble Co. v. Ripley, 356. V. Paige, 402. Rutter, Matter of, 334. Sabine, The, 547. Sadler v. Lovett, 400. Sales V. R. R. Co., 528. Sampeyreao v. United States, 47 Samuel, The, 125, 550. Sanborn v. O'Donohue, 354. V. Sinclair, 417. Sanderson's Case, 292. Sandford v. Sandford, 489, TABLE OF CASES. 589 Santa Maria, Tbe, 217. Sargent v. Lamed, 530. V. Seargrave, 529. V. Sargeant, 489. V. Yale Lock Mfg. Co., 533. Sarlouisv. Fireman's Ins. Co., 203. Saulet V. Sheppard, 164. Savage v. Carter, 404. Sawyer v. Gill, 413. — '■ — V. Steele, 48. Sayles v. Tibbetts, 369. Shackett v. Shackett, 497. Shafts V. Shafts, 500. Sohaffer v. Lehman, 137. Schermerhorn v. Van Vorst, 236. Schillinger v. Gunthen, 527. Schira v. Schira, 497. Schmidt v. Schmidt, 497. Schlemnerv. Meyerstein, 236, 237. Schnader v. Schnader, 167. Schnertzell v. Chapline, 25. Schneider v. Barney, 209. Schoerken v. The Swift Co., &c., 115. Schriver v. The State, 137. Sohuchardt v. Aliens, 173. Schwabaker v. Reilly, 538. Schwartzel v. Holenshade, 534, 535 Scotland, The, 560, 562. Scott V. Jones, 99. V. Lalor, 403, 404, 405. V. Lloyd, 174. V. Woodward, 167. V. Scott, 467, 497. V. Shufeldt, 496. Soranton, The Ship, 565. Scripp V. Reilly, 166. Scull V. Briddle, 43. Secor V. Secor, 490, 496. Seegee v. Thomas, 362, 370, 375. Secretary v. McGarranan, 76. Seitz V. Mitchell, 223. Sellers v. Kelly, 146. Semour v. Railroad Co., 47. Semple v. Bank, 54. Seneca, The, 537. Seymour v. O shorn, 522. V. McCormick, 525. V. Wilson, 171. Shane v. Clarke, 159. ^ Shannon v. Commonwealth, 167. Shaw V. Cooper, 524. V. Bill, 401. V. Shaw, 487. Sharp V. Tiflft, 527. Shaver v. Skinner, 527. Sheepshanks v. Boyer, 203. Sheldon, Ex parte, 336. Shelton v. Tiffin, 35, 87. Sheperd v. Brown, 355. Sheppard v. Graves, '96. V. Taylor, 542, 543. Sherwood v. Sanderson, 389. Sherman v. Champlain Co., 115. Shields v. Barrow, 356, 359, 360, 369, 398, 402. V. Thomas, 367, 368. Shilknecht's Lessee v. Eastbum, 464. Shook v. Rankin, 368. Shriver v. The State, 137. Shute V. Thompson, 125. Sickles V. Carson, 494, 496, 497. Silsby V. Foote, 157, 425, 524. Simmons v. Drury, 465. Simmonds v. De Barre, 390. V. Simmonds, 486. Simms v. Guthrie, 359. Sinclair v. Railroad Co., 182. V. Sinclair, 47. Simpson v. Caulkins, 206. Steel V. Parsons, 374. Steele v. Steele, 487, 488, 489, 492. Steiger v. Bonn, 87. V. Heidleberger, 530. Steigeis v. Gross, 47. Stein V. Bowman, 169. v. Goddard, 519. Steinback v. Stewart, 169. Stephen v. Beall, 360. Stephens v. Bicknell, 377. Sterl V. Sterl, 497. Sterling Bridge v. Pearl, 160. Sternberg v. Schoolcraft, 47. Stevens v. Cady, 225. V. Gladding, 227. V. Gregg, 4()2. V. R. R., 52a , Matter of 225. Stevenson v. Howard's Lessee, 245. V. Stevenson, 49.5. Stewart V. Canal Co., 360. V. Duvall, 392. V. Gray, 118. V. Elliott, 181, 183, 214. V. Hamilton, 16. V. Smith, 355. V. Stewart, 137. Sticks of Timber, In re (118), 554. Stimpson v. Pond, 28. V. Rogers, 530. St. Louis V. Knapp, 365. St. Louis Stamping Co. v. Ozim- by, 534. Stockton V. Bishop, 187, 218. Stockwell V. United States, 95. Stoddard v. Chambers, 217. Stone V. Stone, 494, 498. Stoner v. Stoner, 497. Stork v. Starr, 54. 590 TABLE OF CASES. Story V. Eennel, 540. ■ V. Lawrence, 362. Stott V. Rutherford, 47. Stover, Matter of, 210. Strafer v. Oarr, 209. Stranger, The, 150. Strait V. Strait, 492. Strike's Oase, 463. Strike v. McDonald, 463, 465. Strong V. Barbour, 134, 135, 136, 137. V. Districtof Columbia, 186. , Ex parte, 512. V. Strong, 493. V. The District, 37, 38, 44, 134, 141, 165, 174, 186. Strother v. Lucas, 170. Strouse, Ex parte, 273. Stuart V. Anderson, 99. Sturgis V. Holliday, 29. Stuties' Case, 466. Sugar Co. v. Sugar Co., 520. Sullingj V. Shakespeare, 159. Sullivan v. Magill, 146. • ■ v. Redfield, 528, 529, 530, 531. Sunderland v. Kilbourn, 353, 355. Swamscott Machine Co. v. Walker, 170. Sweeny v. Lomme, 78. Swett v. Block, 553. Symes v. Irwine, 143, 146. T Taffan v. Beardsley, 12o. Talbot v. McGee, 403. Tallis V. PletniHg, 334. Tatham v. Le Boy, o25. Tappan v. Nat. Bank Note Co., 529. Tarrill v. Illinois Cent. R. R. Co., 533. Tangier, The Bark, 552. Tayloe v. Doe, 228. " ■ V. Thompson, 201, 225. Taylor, George, In re, 79, 82, 215. Taylor v. Insurance Co., 369. v. Longworth, 375. V. Luther, 387. V. Taintor, 281, 282, 336. V. Western Pacific R. R., 160. Teese v. Huntingdon, 524. V. Phelps, 531. Tenscher, Ex parte, 320. Tenill v. Allison, 443. Terhune v. Phillips. 171. Tessier v. Wyse, 233, 456, 466, 467. Texas v. Chiles, 149, 544. Thackarey v. The Farmer, 544. Thaw V. Ritchie, 445, 449, 452, 454. Thayer v. Thayer, 494. V. Wales, 531. Thomas v. Doub, -401. V. Joseph, 557. ■ V. Lane, 551, 552, 556. V. Visitors' Fred. Co. School, 397, 398, 401. Thomas, The, and Henry, 555. Thomassen v. Whitewell, 562. Thompson v. Beveridge, 26, 221, 232. V. Carbery, 72. V. Hill, 400. V. King, 174. V. Miss. Insurance Co., 146. V. McKim, 425. V. Selden, 111, 147. V. Smith, 444. V. Thornton, 145. • V. Maxwell, 447. V. Maxwell Land Grant Co., 398. Thornton v. Bank of Washington, v. Carson, 137. Thorp v. Raymond, 30. Thorpe v. Summons, 125. Thruston v. Minke, 467. Thurber v. The Fannie, 550. Tibbs V. Parrott, 43. Tidewater Canal Co. v. Archer, 159. Tiernan's Executors v. Wpodruff, 398. Tierney v. Corbett, 201. Tiffany v. Sav. Inst, 357. Tillinghast, Ex parte, 35. Tillard v. Fisher, 13o, 136. Tilton v. Cofield, 354, 398. V. The schooner, 549. Toilbert, v. Burgess, 417. Toland v. Sprague, 31 . Toledo, The, 559. Toly V. Claflin, 43. ■Tomlinson v. McKaig, 457. Tomson v. Wooster, 377, 378. TomTong, i3x parte, 81. Tonkin v. Lethbridge, 400. Tooker V. Arnoux, 165. Torlton v. Briscoe, 119. Toubeev. Toubee, 491, 492, 493. Town et al. v. Steamship Me- tropolis, 554. Townsend's Ex'rs v. Townsend, 233. Townshend v. Duncan, 432, 434, 437. V. Smith, 446. V. Townshend, 487. TABLE OP CASES. 591 Trail v. SnufBer, 233, 245. Trainer v. The Superior, 544. Travers v. Ross, 392. Tremolo Patent, The, 398. Treadwell v. Joseph, 551 , 556. Tremain v. Hitchcock, 533. Tribune Asso. v. Smith, 146. Trigg V. Conway, 118, 240. Tristv. Child, 36. Troup V. Haight, 427. Troutman, Matter of, 335. Troy Iron Co. v. Corning, 533, 534. Trust & Fire Ins. Co. v. Jenkins, 397. Truly V. Wanzer, 413. Trustees V. Greenough, 210. Trustees, etc., v. Hise, 431, 434. Tucker v. Garner, 1 45. V. Ormes, 478. Tuohy V. Martin, 360. Turner v. Beacham, 545, 546. V. Fendall, 223. V. J. B. & W. K. Co., 441. V. Missionary Union, 368. V. Waddington, 119. Turrill v. Cammerer, 531. Tyler v. Bowie, 463. Tyng V. Grinnell, 164. Tyson v. Hollingsworth, 462. ■ V. Mickle, 464. V. White, 520. U. Uncle Abe, The Steam Tug, 548. Underbill v. Van Cortland, 401. Union Bank v. Geary, 221. Union Paper Bag Co. v. Crane, 518.' Union Sugar Refining Co. v. Math- ieson, 87. Unitarian Society v. Faulkner, 169, 172. United States Bank v. Smith, 217. United States v. Adams, 78. V. Ambrose, 284. V. Ames, 541. V. Angney, 286. V. T^aold, 102. V. Askins, 281. V. Atherton, 866. V. Babcock, 303. V. Backus, 50. V. Bailey, 358. V. Baker, 160. V. Ballard, 270. . V. Bank, 16. V. Bank Met., 104. V. Bachelder, 300. V. Bayard, 305. V. Beaty, 315. United States v. Bell Telephone Co., 530. V. Bickford, 297, 298, 305, ■ V. Bicksler, 319. V. Bigelow, 306, 311, 312, 307. 314. V. Bill, 264. V. Bloomgart, 271. V. Boblman, 80, 276, 277. V. Borger, 282. V. Boryer, 159. V. Bowen, 286. V. Bowman, 30l. V. Boyd, 103, 169. V. Brady, 273, 296. V. Breitling, 174. V. Brent, 298. V. Bridges, 319. V. Britton, 299, 300, 301. V. Brown, 28, 270, 271, 278, 277, 292, 302. v. Buchanan, 100. V. Buford, 42, 101. V. Burns, 298, 318. V. Burr, 276. V. Burroughs, 318. V. Oarll, 300. V. Case, 280. V. Casks of Distilled Spir- its (12;j), 554. V. Clark, 98, 300. V. Claflin, 299, 301. V. Coggin, 270. V. Collier, 100. V. Compton, 101. V. Conant, 299. V. Cook, 270, 271, 302. V. Cookendorfer, 282. V. Coombs, 547. V. Cornell, 307. V. Cranston, 264. V. Craig, 292. V. Crosby, 299. V. Cross, 296, 346. • V. Oruikshank, 299, 300. V. Curtis, 307. ^ V. Dashiel, 165. V. Davenport, 318. V. Davidson, 14. V. Davis, 80, 309. V. Dennis, 281. V. De Quilfeldt, 313. V. Devlin, 297. V. Dickenson, 297, 298. V. Dickerson, 292. V. Distillery, 272, 292. V. Doebler, 301. V. Dow, 307. V. Duncan, 282. V. Dunn, 286. 592 TABLE OF CASES. United States v. Dustin, 270. V. Elbert, 296. V. Erskine, 281. V. Evans, 280. V. Feely, 282. V. Ferro, 299. V. Fields, 241, V. Fillebrown, 100. V. Forrest, 299. V. Furlong, 317. V. Gale, 287. V. Gibert, 304, 305, 309. V. GUmore, 100. V. Goldstein, 281- V. Gooding, 310, 314. ■ V. Graft, 301. V. Green, 80, - V. Guiteau, 40, 289, 815, 316, 320. - V. Hack, 377, - V. Hall, 299. - V. Hamilton, 218, 313, 318. - V. Hand, 380. - V. Harding, 318. - V. Hare, 304, 305. - V. Haskins, 277. - V. Hines, 263. - V. Hinman, 301. - V. Hirsh, 270. - V. Hodgkin, 281. - V. Hoffman, 78. - V. Hoskins, 309, 348, 349. - V. Hough, 174. - V. Howard, 300, 301. - V. Hughes, 292. - V. Insurgents, 307. - V. Irvine, 270. - V. Jackson, 94, 301, - V. Jacobi, 297. - V. Jailer, 13. - V. Johns, 81. - V. Jones, 280. - V. Karcher, 310. - V. Katzenski, 297. - V. Keen, 300. -V. Lamon, 100. - V. Lawrence, 79, 81, 279, - V. Leckie, 304. - V. Lee, 280, 304, 315, - V. Leonard, 318. - V. Linn, 92, 97. - V. Lion, The Sch'r, 567. ■ V. Little, 143, 146. - V. Charles, The, 550. - V. Low, 297. ■ V. Lumsden, 277. - V. McAvoy, 299. - V. McCarthy, 292. • V. McDaniel, 100. ■ V. McFarland, 298, 315. ■ V. McGlinchy, 42, United States v. McHenry, 303. V. Mackenzie, 276. v, Maillard, 28, 29. V. Malone, 298. V. Mann, 100. V. Maj-chant, 309. V. Marshall, 345. V. Martin, 277. V. Maxwell, 296, V. May, 310, 319. V. Mayor, 269, 309. V. Mercer, 282. V. Miller, 292. V. Mills, 299. V. Morris, 157. V. Mundel, 299. V. Murphy, 175, 285, 313, 316. V. Myers, 292. V. Nagle, 299. V. Nardello, 153, 155^ 313, 314. V. Neuria, The Brig, 550. V. Neverson, 286, 305, 307, 311, 312, 313, 314, 316. V. Niekerson, 303. V. Noelka, 301. V. Nunnemacker, 300. V. ISTye, 298. V. O'Brien, 270, 271. V. O'Callahan, 297, 298. V. Oliver, 261. V. Ottman, 63. V. Packages (28), 558. V. Pacific R. R. Co., 100. V. Parrott, 422. V. Perot, 118. V. Peterson, 298. V. Pickett, 281. V. Pivotes, 298. V. Plummer, 299. V. Pond, 300. V. Porter, 35, 269, 297, V. Potters, 318. V. Prescott, 301. V. Rand, 15. V. Rathbone, 133. V. Reen, 318. V. Rice, 274. ■ Rifle and Arms Co. v. Whit- ney Arms Co., 529. V. Ringold, 100. V. Robertson, 543, V. Robeson, 100. V. Rundlett, 281. V. Ryder, 282, 283. V. Samperyac, 447. V. Schultz, 76. V. Schuman, 377. V. Scoggins, 276. V. Scott, 297, 298. TABLE OF OASES. 593 United States v. Sharp, 298, 309. V. Shephard, 276, 277, 296. V. Shepherd, 309. V. Sheppard, 276. ■- V. Shorey; 270. V. Skinner, 276. V. Slocum, 269. V. Smith, 271. V. Southmayd, 307. V. Spintz, 801. V. Staats, 300, 301. V. Staton, 300. V. Stewart, 280. V. Strieker, 282. V. Howgate, 63. V. Taylor, 308, 315. V. Thompson, 276, 298. V. Turland, 276. use of Alexander, v. Rit- chie 92, 93, 102 V. Van Fossen, 281. V. Vestal, 227. V. Vigol, 318. V. Walker, 277. V. Waller, 296. V. Watkins, 277. V. Wentworth, 297, 301. V. White, 270, 271, 277, 281, 309. — ■■ — V. Wilkins, 100. V. Williams. 100, 150, 207, 268, 307. V. Williamson, 80. V. Wilson, 309. V. Winslow, 300. V. Wood, 307. V. Worms, 276. V. Wright, 301. V. Wynn, 297. -V. Young, 297. Vard'en v. Todd, 53. Vasse V. Mifflin, 112. Vayton v. Brenell, 99. Vaughn v. Casks of Wine (600), 553. V. R. R. Co., 528. V. Vaughn, 400. Veazie v. Williams, 400. Venable v. U. S. Bank, 360. Ventress v. Smith, 218. Vermilyea v. The Pulton Bank, 390. Very v. Levy, 366. Vincent v. Vincent, 441, 444, 497. Virginia v. Rives, 286. Virgin, The Ship, 542. Volunteer, The, 548. Voorhees v. Bank, 227. V. Bone Steel, 366. Matter of, 333, 334, 336. United States, ex rel. Edwards, v. McKelden, 77. , ex rel, Hendeirson, v. Ed- munds, 76. -, ex rel. White, v. Bayard, -, ex rel. Worden, v. Chand- 77. ler, 76. U^ton V. McLaughlin, 217. Valleau v. Valleau, 485, 496. Van Oampen, In re, 277. Van Glahn v. Van Glahn, 502. Vance v. Campbell, 218, 525. Van Hook v. Pendleton, 425, 427, 529. Van Ness v. Hyatt, 224, 225. Van Nor den v. Morton, 440. Van Riswiok v. Lamon, 225. 75 Vrooman v. Griffith, 172. Vroom V. Marsh, 503. W. Waggaman v. Randall, 58. Wagner v. Cohen, 465. V. Wagner, 494. Waite, In re, 209. Walburn v. Babbit, 219. Walden v. Craig, 43, 233, V. Bodley, 369, 397. Wales V. Whitney, 78, 79, 82. Wales, In re, 79. Walker v. Granite Bank, 113. V. Fields, 173. V. Johnson, 94. V. Laighton, 488, 489, 490. V. Parker, 429. V. Powers, 360, 368. Wall V. Starke, 532. Wallace v. Anderson, 76. V. Holmes, 363. V. Piatt, 231. Wallach v. Chesley, 65. Waller v. Stewart, 170. Walling V. WalUng, 502. Wallinson v. Wallinson, 487. Wallingsford v. Bennett, 72, 224. V. Wallingsford, 502. Wallis V. Dilley,.48. V. Wallis, 502. Walsh V. Canal Co., 425. V. Smith, 396. V. Smyth, 446. Walter v. Ward, 39, 215, 441, 446. Walton V. Walton, 491. Walz V. Brookville Bank, 377. Ward V. The Ogsdensburg, 558. V. Chamberlain, 559. V. HoUins, 463, 464. 594 TABI-B 0¥ CASES. Ward V. Peck, 549. V. Ward, 502. Ware v. United States, 100. Warfleld v. Brewer, 233. V. Owens, 463, 465, 467. Warner v. Bassett, 529. Warring v. Clark, 548. Wasliburn v. Gould, 522, 535, 529. V. People, 305. Washburne v. Washburne, 493. Wash'n & Georgetown R. R. Co. V. Board of Public Works, 215. Washington Market Co. v. Sum- my, 78. Washington, The Martha, 550. Washington, The, 550. Washington, etc., v. Sickles, 41. Waters v. Oaton, 230. V. Bngle, 202. Watkins v. Dorsett, 30. Watkins, Ex parte, 79. Watkins V. Worthington, 456, 467. Watson, Ex parte, 336. Watson V. Southerland, 353. Watts V. Waddle, 355. V. Watts, 405. Wave, The, 5J5. Waverly, The, 544. Weed V. Kellogg, 125. V. Lee, 146. Weed, The Sarah J., 553. Weed V. Small, 404. Weide v. Insurance Co., 162. Welch V. The State, 30. Wells V. Gills, 529. Welsh V. Stewart, 434. Wertheim v. Railroad, 112. West V. Randall, 360. West V. Smith, 360. V. Stiger, 135. V. Swan, 417. Wescott V. Cady, 406. Western Union Tel. Co. v. West & A. R. R., 354. Wetzell V. Buzzard, 36. Wheaton v. Sexton, 227. Wharam v. Brougham, 408. Wheatley v. Hotchkiss, 567, 568. MTieel Co. v. Bemis, 529. Wheeler v. McCormick, 92, 530. V. Smith, 855. Whepley v. Erie R. R. Co., 417. Whipp V. Whipp, 492. Whipple V. Cumberland Cotton Co., 207. Whipple V. Williams, 235. Whitaker v. Branson, 92. White, U. S. ex rel. v. Bayard, 77. White V. Buloid, 403, 404. V. Clark, 354. V. Davidson, 133. White, Ex parte, 334, 336. White V. Freedman's Bank, 68. V. Haywood, 408. V. Okisko, 436. V. Monroe, 113, 236. • Whitbeck v. Edgar, 403.' Whitehall v. Lane, 145. Whitfield, Ex parte, 417. Whitely v. Fisher, 512. Whiting V. Bank, 440. Whittmore v. Cutter, 525. Whitney v. Bank, 210. Wick V. Weber, 146. Wicks V. Ellis, 544. Wiggins V. Burkham, 171, 218. Wilcox V. Nolze, 333, 336. V. Plummer, 30. Wilder v. 'JVelsh, 87. V. McCormick, 520, 521. Wilhelm v. Caylor, 463. Willard v. Willard, 495. V. Wood, 29. Willett V. Pister, 204. William Harris, The, 556. William v. Ten Eyck, 171, 194. Williams v. Bankhead, 359, 361. V. Cameron, 46. V. Case, 507. V. Corwin, 377. — ■■ , Ex parte, 277. V. Gardner, 448. V. Gardiner, 381, 383. V. Gibbs, 355. V. Holmes, 472. V. R. R. Co., 534. V. Smith, 158. V. Williams, 487, 496. Williamson v. Bank, 146. V. Sykes, 377, 378. V. Wilson, 466, 472. Willis V. Carlies, 417. V. Forrest, 166, Wilson V. Barnum, 425. V. Chickering, 519. V. Codman, 241. V. District Commissioners, 345. V. Elbin, 159. , Ex narte, 297, 317, 318. V. Graham, 369. V. Hurst, 233. V. McNamee, 217. V. The Ohio, 544. V. Wagar, 173. V. Watson, 233. Wilson V. Wilson, 494, 497. Winder v. Caldwell, 232. ' V. Diffenderfbr, 422, 423. Wihslow, In re, 513. Winn V. Albert, 400. Wing V. Fairhaven, 415. TABLE OS" CASES. 595 V. Hichardson, 523. Winneshiek Ins. Co. v. Schneller, 159. Winterset v. Eyre, 99. Wise & C. Coi V. Stevenson, 518. Wireback v. Bank, 158. Wisner v. Wilhelm, 142. Wiswell V. Sampson, 225. Wolcott V. Mack, 146. Wolfe V. Hanver, 170. Wonson V. Peterson, 531. Wood v» Carpenter, 30. V. Mann, 386. V. May. 72. ■ V. Stoddard, 158. V. United States, 168, 171. V. Wood, 491; 492, 493. Woods V. Morrell,.367. ■ V. Young, 147. Woodbury v. The District, 185. Woodworth v. Curtis, 223. V. Edwards, 530. . V. Hall, 530. V. Wilson, 519. Wooster v. Muser, 531. V. Woodhall, 377. Worden, U. S. exrel., v. Chandler, 76. V. Searls, 529. Worth V. Craig, 203, 204. Worthy v. Worthy, 491. Worthington v. JJee, 483. V. Mason, 174. Wortman v. Conyngham, 228. V. Griffith, 545. Wray v. Wray, 494. Wright, In re, 562. Wright, The James A., 240. Wright V. HoUingsworth, 42. V. Norwich & New York Transportation Co., 548. V. Rogers, 99. V. Tibbetts, 36. ■ V. Wright, 491. Wyeth V. Stone, 527. Wylie V. Coxe, 353. Wynn v. Wilson, 36. Wyse V. Smith, 462, 465, 467, Yarbrough, JSr port e, 81. Yeaton v. Fry, 170. V. Lynn, 48, 96, 104. York Co. V. R. R., 125. Young v. Black, 99. V. Cushing, 30. V. Marshall, 630. V. Martin, 102. V. Ship Orpheus, 545, Youngblood v. Schamp, 411. Z Zane v. Brig President, 545. Zango Poole, In re, 78. Zenobia, The, 553. Zinghing v. Hessore,'425, Zodiac, The, 542. Zule V. Zule, 411, 492. Zuver V. Zuver, 502. Zyclinski v. Zyclinski, 491, INDEX ABANDONMENT, See DrvoBCB. ABATEMENT, non-joinder of parties not matter of, 50. what may be pleaded in, 96. See Pleadings. ABORTION, punishable under act of legislative assembly, 311. ACCESSORY, term defined, 311. ACCOMPLICE, is a guilty associate in crime, 311. whether an, or innocent witness, question of fact, 311. ACCOUNT, of moneys in court to be stated by clerk, 11. matters of, to be referred to auditor, when, Eule 48, p. 138. proceedings in, before auditor, Rule 48, p. 138. for rents and profits, how estimated, 54. See Bills in Equity. ACKNOWLEDGMENTS, of deeds, police court has power to take, 347. ACTIONS, common law classification of, retained, 18. forms of, in use, 19. commencement of, Rule 8, p. 45. when leave required for, 46. parties to, who are not, 47. void when names of parties fictitious, 47. See Limitation of Actions. ADMIRALTY, Answer in civU cases to be fiill, explicit and sworn to, Rule 28, p. 555. sufficiency of, 555, 556. failure to, jjro confesso, Rule 30, p. 557. exceptions to, Rule 29, p. 556. setting adtde pro confesso, 557. 598 INDEX, ADMIRALTY— Continued. after default, when allowed, Rule 31, p. 557. attachment to compel further, Rule 32, p. 557. may object to, when answer may criminate. Rule 38, p. 55S, interrogatorie^s in, must be answered. Rule 34, p. 558. new matter in, libel may be amended to meet. Rule 35, p. 558, on oath to interrogajtories, may be dispensed with, Rule 36, p, 559. may be taken by commission, Rule 36, p. 559. Appraisers, only one to be appointed, unless specially ordered otherwise, Rule 45, p. 564. clerk may name, unless parties agree. Rule 45, p. 564. Assessors, reference may be made to, Rule 48, p. 565. report of, what to state, 565. to be confirmed unless excepted to. Rule 49, p. 566. if Hbellant take no proceeding on, respondent may move dis- missal of libel. Rule 50, p. 566. Auditor, case may be referred to, when, Rule 47, p. 565. report of, what to state, 565. Bonds and Stipulations, what they must contain, Rule 51, p. 566, in case of insolvency, new sureties may be required, 566. how taken. Rule 52, p. 566. amount of, may be reduced. Rule 53, p. 566, or increased, on motion. Rule 54, p. 567. Bottomry Bonds, jurisdiction of admiralty over, 546, 547. Collisions, suits to recover damages for, Rule 20, p. 548. Commissioners, reference to. Rule 46, p. 564. have powers of masters in chancery. Rule 46, p. 564. may apply to court for directions, 564, 565. irregularities of, relieved against. Rule 46, p. 564. report of, adopted by court unless palpable errors exist, Rule 46, p. 565. irregularities of, how objected to. Rule 46, p. 565. Costs, security for, in suits in personam, Rule 55, p. 567. if owners are unable to pay, affidavit required, 567. security for, in suits in rem. Rule 36, p. 567. other party may waive benefit of Rule, p. 567. in case of poverty of libellant, 568. deposit may be made instead of stipulation. Rule 58, p. 568. vessel or property not to be released until payment of, Rule 59, p. 568. Cross-libel, defendant to give security. Rule 37, p. 559. Exceptions to libel or answer, grounds of, Rule 39, p. 560. effect of, 560, 561. Intervention of third persons, how to be made. Rule 38, p. 559. in case of, stipulation to be given. Rule 38, pp. 559, 560. Limited Liability of Ship-owners, how secured. Rule 40, p. 561- decisions under Rule 40, and cases cited, 562. contest as to, how made by owner, Rule 42, p. 563. INDEX. 599 ADMIRALTY— Continued. Informations and Libels shall state place of seizure, Rule 23, p. 550. must aver specially fact constituting the offence, 550. must be particular and certain, with reasonable precision, 550. technical nicety in, not required, 550. what must be averred in, 350, 551. in instance causes, what must be stated, Rule 24, p. 551. averments of, what they should be generally, 551. in suits for wages, 551. in salvage suits, 552. for torts, 552. in cases of collision, 553. joining causes of action in the same, 552. joining remedies in, 552, 553. may be brought in name of assignee of chose in action, 553. amendments of, may be made at any time. Rule 23, p. 553. to embrace merits, 554. may be made by libellant after exception to libel, 554. when may introduce new cause of action, 554. when libellant may not make, 554. name of sole libellant may not be stricken out, 554. nor joint libel in rem changed to one in personam, 554. exception to this Rule, 554. verification of, Rule 26, pp. 554, 555. dismissal of, for neglect to proceed. Rule 27, p. 555. Jurisdiction of special term in, 537. Moneys Paid into Court to be deposited in designated bank. Rule 43, p. 563. how to Tpe drawn out, 563. clerk to keep memorandum book of, 563. person entitled to proceeds may petition for. Rule 44, p. 563. Petitory and Possessory Suits to be by arrest and monition, Rule 22, p. 549. Pilotage, jurisdiction in suits for, 545. Process, mesne, shall not issue until libel filed. Rule 1, p. 538. service of, to be by whom, Rule 2, p. 538. to be returned, when, Rule 3, p. 538. in personam, to be by monition and attachment. Rule 4, p. 538. when attachment may issue, 539. no arrest of property over $500, except by special order. Rule 5, p. 539. foreign attachment and garnishment. Rule 6, p. 540. attachment, dissolution of, on bond. Rule 7, p. 540. effect of bond, Rule 7, p. 540. will lie for assaults, etc., Rule 21, p. 549. in rem, seizure to be by warrant of arrest. Rule 8, p. 541. notice of, how given, Rule 8, p. 541. property may be released by filing bond. Rule 8, p. 541. 600 INDEX. ADMIRALTY— Continued. proceedings cannot be against undivided interest, Bule 8, p. 541. tackle, etc., to be delivered to marshal, when. Rule 9, p. 541. attached property may be brought into court. Rule 10, pp. 541, 542. may be delivered to claimant on bond, Rule 11, p. 542. signer of stipulation liable only, 542. when delivered on appraisement, claimant only liable for appraised value, 542. may be delivered by payment into court, Rule 12, pp. 542, 543. or by stipulation to pay. Rule 12, p. 543. perishable goods may be sold, Rule 13, p. 543. or may be delivered to claimant. Rule 13, p. 543. will lie for seamen's wages. Rule 14, p. 543. seaman's lien for wages follows the ship, 543. will lie in suits for pilotage, or in personam, Rule 15, p. 545. jurisdiction in suits for pilotage defined, 545. will lie for supplies and repairs, also in personam, Rule 16, p. 545. will lie in suits on hypothecation, or may be in personam, Rule 17, p. 546. will lie in suits on bottomry bonds, or may be in personam. Rule 18, p. 546. will lie in salvage suits, or may be in personam. Rule 19, p. 547. will lie in suits growing out of collisions. Rule 20, p. 548. Proof of Claim to be made before commissioners. Rule 41, p. 562. procedure regu lated. Rule 41, p. 512. pro rata division among claimants, 562. Salvage, suits for, process in, Rule 19, p. 547. , Seamen and Salvors not required to give security in first instance. Rule 57, p. 568. this rule does not necessarily apply to appeals, 568. exceptions to the Rule — decisions, 568. ADMISSION TO THE BAR, See Attobneys. ADMISSIONS AND DECLARATIONS, as part of res gestae, 168, 169. in answer in divorce suit not evidence, 500. ADMINISTRATORS, See ExBOUTOBS and Administbatoes. ADULTERY, See DivoECE. ADVERSE POSSESSION, See Ejectment. INDEX. 601 ADVERTISING, rates to be paid for, Rule 123, p. 247. AFFIDAVIT, of inability to make deposit, 45. to support attachment, 62. in replevin, 69. in proof of publication, Rule 20, p. 88. in suits on open accounts, 190. of defence. Rule 73, p. 96. ■with plea to scire facias, and actions on judgment. Rule 121, pp. 96, 247. for continuance, 143, 144, 146, 147. to remove cause from justice of peace, 252. of poor convict, 340. not admissible when not sworn to before authorised person, 358. may be verified before counsel, when, 358. when allowed to be read and when not, 358. to accompany demurrer in equity, Rule 26, p. 379. in injunction causes, etc.. Rule 45, p. 414. in support of motions. Rule 4, p. 419. of non-residence of defendant. Rule 89, p. 498. in admiralty causes. See Admiralty. AFFIRMATIONS, See Oaths and Affirmations. AGENTS, See Attoenbys. ALIMONY, See DivOHCB. AMENDMENTS, may be made at any stage of cause, Rule 7, p. 41. statutory provisions as to, 42. what generally may be amended, 42. of bjUs of particulars, 43. of description of parties, 43. changing names and adding parties, 43. formal variance, 43. of pleas, 43. of verdicts, 43, 177. of judgments, 43. provisions and construction of Maryland Act of 1785, p. 44. amending to defeat motion to dismiss, 165. See Trial. amended bills and answers. See Equity. of informations and libels. See Admiralty. ANNUITIES, table for computing, 507. 76 602 IKDEX. APPEAL, from inferior courts, 5. a justice may not hear, from judgment or decree rendered by himself, 39. for insufficient evidence or excessive damages. Rule 55, p. 180. statutory provisions repecting, 180. in suits for forcible entry and detainer, 57, 68. in attachment, 63. in habeas corpus cases, 82, 86, 215. from order vacating judgment, 203. To General Term, court may affirm, revise or modify judgments on, Rule 89, p. 212. perfection of, bond required, Rule 89, p. 212. when appeal may act as supersedeas — form of bond,*Rule 89, pp. 212, 213. time of filing may be enlarged. Rule 89, p. 213. undertaking unnecessary when supersedeas not intended, 213, statutory provisions, 214. general term may regulate and prescribe time for, 214. when aggrieved party may appeal, 214. quorum to hear, 214. in case of divided court, provision for re-argument, 214. justices, when disqualified to sit on, 215. appellant must print records. Rule 90, p. 216. , motion to dismiss for failure to print record, Rule 90, p. 216, frivolous appeals. Rule 14, p. 217. what the court may consider on appeal, 217, 218, 219. To Supreme Court of U. S., when allowed and when not, 219. In Patent Gases. See Patent Cases. Arbitrators, award of, when appeal lies from, 137. APPEARANCE, by unlicensed attorney, 35. without authority, 35. time of. Rule 3, .p. 40. in equity causes. Rule 12, p. 375. entry of, to be recorded. Rule 13, p. 378. effect of, upon jurisdiction, 378, ' conditional appearance, when should be entered, 376. by married women, when husband may appear instead, 376, of infant and person under disability. Rule 85, p. 376. appointment of guardian ad litem for, 376. default in making ; decree pro confesso, Rule 14, pp. 376, 377. decree pro confesso setting aside the, for default in. Rule 15, p. 378. APPRAISEMENT, See Admiralty ; Exceptions. ARBITRATORS, when causes may be referred to, Rule 47, p. 130. INDEX. 603 ARBITRATORS— Continued. copy of award to be served, Rule 47, p. 130. in case award not returned within eight months. Rule 47, p. 131. proceedings in case of death of either party. Rule 47, pp. 131, 135. judgment on award — effect of, 131. statute of limitations not to run in case of death of or refusal to serve, 26, 132. provisions of Maryland Act of 1785 as to, 132. what may be referred to, 133. nature and manner of reference to, 133, duty of, 134. calling in an umpire, 134. award of, should be final, 135. filing of, 135. effect of, 135. setting aside the, 136; appeal from final order of court, when it lies, 137. construction of awards, 137. ARRAIGNMENT, prisoner standing mute, plea of not guilty to be entered, 304. prior indictment no bar, when, 305. effect of waiving reading of indictment, 305. ARREST, See Oeiminal Peocbdurb. constitutional right as to, explained, 272, 273. warrants for, may be issued by justices of the peace, 273. ° and by justice of police court, 273. Police Force have powers of constables to, 273, 274. may execute warrants without backing or endorsement, 274. may arrest without warrant in certain cases, 274. power to, defined, 274. in cases of suspected felony, 274. in special cases, 274, 275. as to gaming houses, 275. as to bawdy houses, 275. as to lewd and obscene amusements, 275. neglecting to make, penalty for, 275. duty of private detective as -to, 275. by U. S. commissioner. See Commissioner U. S. process for, power of police judge to issue, 345. ASSETS, Marshalling of. See Equity. ASSIGNMENT, of satisfied judgment to surety, 202. See SuBETY. of interest. See Change of Parties. 604 INDEX. ATTACHMENT, Before Judg'ment, provisions of Rule 15', p. 59. provisions of the statute, 60. when writ may issue, 62. affidavit, 62. how writ may be quashed, 62. discharge of attached property, 63. sale of, 63. final judgment. Rules 70-72, p. 63. where attachment will not Ue, 63. appeal, 63. For Bent, remedy by distress abolished, 64. lien on tenant's chattels substituted, 64. how lien to be enforced, 64. how writ to be sued out. Rule 16, p. 64. affidavit, Rule 16, p. 64. form of writ. Rule 16, p. 64. in, what cases landlord to have writ, 65, 66. miscellaneous decisions, 67, 68. Garnishment, form of writ of. Rule 96, p. 229. garnishee, interrogatories to, Rule 97, p. 229. condemnation, judgment of. Rule 97, p. 229. Maryland Act, 1715, ch. 40, sec. 7, pp. 229, 230. In Admiralty causes. See Admiralty. ATTORNEYS, justices not to practice as, 8. marshal not to practice as, 13. admissions to the bar, Rule 1, p. 33. application for admission, how made, Rule 1, p. 33. who may be admitted. Rule 1, p. 33. students. Rule 1, p. 33. parties m.ay plead their own causes, 34. officers of court not to practice as, 34. delivery of court papers to. Rule 117, p. 34. nature of office, 34. employment and authority of, 35. not to be sureties. Rule 127, p. 34. misconduct of, 35. appearance without authority, 35. appearance by unlicensed attorney, 35. authority to accept service, 35. power to compromise, 36. may issue execution, 36. relation of, to client, 36. liability for negligence, 36. discharge of, 36. compensation of, 36. lien of, 36. INDEX. 605 ATTORNEYS— Continued. liable for costs vexatiously increased, Rule 83, p. 205, 206. docket fees of, 208, 209. ATTORNMENT, of tenant to stranger, void. See I^ectment. AUCTIONEERS, Charges of. Rule 125, p. 248. AUDITOR, when causes may be referred to. Rule 48, p. 138. report of, filing and exceptions, Rule 48, pp. 138, 139. issues on exceptions to, how tried, Rule'48, p. 139. exceptions to, in what cases overruled. Rule 48, p. 139. Maryland Act, 1785, ch. 80, sec. 12, p. 139. action of assumpsit cannot be referred to, when there is plea in bar, 139. AUTREFOIS ACQUIT, what will support plea of, 312. AVERMENTS, See Pleading. AWARD, See Arbitrators. BAIL, See Criminal Procedure. BANKRUPTCY, in cases of, supreme court of the District of Columbia given juris- .diction, 4. this power repealed, act June 7, 1878, p. 4. BAR, Admission to. See Attorney. BENEFICIARIES, when they may be dispensed with as parties. See Equity Practice, 362. BEYOND SEAS, savings as to persons, in statute of limitations, repealed, 22. BIGAMY, proof in prosecutions for criminal procedure, 312. BILL IN EQUITY, See Equity Practice. BILL OF EXCEPTIONS, statutory provisions as to, 181. in what cases to be heard in general term in first instance, 181, construction of statutory provisions as to, 181, 183. may be combined with case, Rule 56, p. 183. 606 INDEX , BILL OP EXCEPTIONS— Continued, exceptions, how taken, Rule 61, p. 184. bill to be settled before close of term, Rule 62, p. 184. how settled, Rule 63, p. 184. if not settled, new trial to be granted, Rule 64, p. 85. filing and settling to be noted on minutes. Rule 65, p. 185. ' rules for preparation of, 185. See Trial. BILL OP PARTICULARS, is part of pleadings under our system, 93. no recovery for items not included in, 93. on new trial, court will allow amendments, 93. BONDS AND UNDERTAKINGS, of clerk, 10 of marshal, 10. suits on marshal's bond, 14. marshal's bond to remain after judgment as security, 14. administration and testamentary bonds — suits on, 26. of guardian, 26. when pleadable under statute of limitations, 30. to perfect appeals, approved by court or justice, Rule 89, p. 212. supersedeas, form of bond in, 213. approval of, Rule 120, p. 246. remedy when surety is insuflBcient, Rule 122, p. 246. clerk of police court to give, 347. party appealing from police court to give, 349. justice of peace to give, 250, 262. constables to give, 263. to be given in injunction cases, Rule 40, p. 410. forthcoming, damages for satisfaction of interest on, 413. for rent, and intervening damages. Rule 44, p. 414. required in sales of infants' estates, 451. in sales of lands held in trust by infants and persons non com- potes mentis, 460. in sales of decedent's real estate, 465. of testamentary trustees, 469. of trustees for sale of property of idiots and lunatics, 474. mechanics' lien discharged by filing undertaking, 482. in admiralty for dissolution of attachment. Rule 7, p. 540. for delivery of arrested property to claimant. Rule 11, p. 542. bottomry bonds, actions on. Rule 18, p. 546. in admiralty, in petitory suits. Rule 22, p. 549. respondents in cross-libel, to give. Rule 37, p. 559. intervener to give stipulation to abide decree, Rule 38, p. 559. to secure liability of ship-owners, Rule 40, p. 561. what bonds or stipulations must contain. Rule 51, p. 566. bonds and stipulations, how taken. Rule 52, p. 566. new surety on reducing penalty, Rule 53, p. 566. INDEX. 607 BONDS AND UNDERTAKINGS— Continued. security for costs, Bules 55, 56, p. 667. in cases of seamen and salvors, Rule 57, p. 568. deposit may be made instead of bond. Rule 58, p. 568. BOOKS AND WRITINGS, notice to admit documents, Rule 33, p. 109. form of notice, 109, 110. production of. Rule 34, p. 111. motion for, to be in writing. Rule 34, p. 111. copy of order for, to be served on parties. Rule 34, p. 111. what is compliance with order for. Rule 34, p. 111. time to produce, may be enlarged. Rule 34, p. 111. failure to produce, penalty for. Rule 34, p. 111. corporation may be compelled to produce, 112. secondary evidence of contents, how prevented, 112. presumption against party refusing to produce, 112, 113. inspection of, and examination of parties. Rule 35, p. 113. in opponent's hands by either party. Rule 35, p. 113. in what cases it may be had, 113. to prepare pleadings, 113. department records and papers, copies as evidence, R. S. U. S., sec. 882, pp. 113, 114. construction of R. S. U. S., sec. 882, p. 114. in office of solicitor of treasury, certified copies of, to be evi- dence, 114. in office of comptroller of the currency, same rule, 114. national banks, copies of certificates of organization, 114. of Treasury Department, when transcripts are evidence, 114. of General Land Office, certified copies evidence, 114, 115. of Patent Office, certified copies evidence, 115. letters-patent, foreign, copies of, p'<^''>*'0' fade evidence, 115. patents, printed copies received as evidence, when certified, 115. Congress, journals of, certified extracts, evidence, 116. in consul's office, certified copies, evidence, 116. record's of federal courts, transcripts made evidence, 116. Original records, loss may be supplied by copies, 116. lost or destroyed, notice to restore, how given, 117. certified copies of, to have effect of originals, 117. State legislative acts and judicial proceedings of, how authen- ticated, 118. records not pertaining to courts, proof of, 119. land titles in United States, foreign records of, 120. marriage, copy of license and certificate, evidence of, 120. notary, original protest of, is primn facie evidence, 120. certificate of, is evidence, 120. debts of record, exemplified copies evidence of, 120. foreign deeds, copies of, 120. foreign probate of instruments not of record, 121, 608 INDEX. BOOKS AND WRITINGS— Continued. when -witnesses to such instruments are dead, 121. affidavit under Rule 73, 122. depositions of non-resident witnesses. Rule 63, pp. 122, 123. See Depositions ; Evidence. BRIEFS, To be printed, Rule 90, p. 216. to be exchanged before argument at general term, Rfile 90, p. 216, case may be dismissed if rule not complied with, Rule 90, p. 216. BURDEN OF PROOF, See BviDBNCB. CALENDAR, cause ready for trial to be entered upon. Rule 38, p. 129. trial calendar for issues of fact. Rule 39, p. 129. cause not reached must be re-noticed on, Rule 40, p. 129. issues of law to remain on calendar until disposed of, Rule 40, pp. 129, 130. cause may be transferred from law to trial calendar, when. Rule 40, p. 130. CAPIAS, on mesne process abolished in actions ex contractu, 85. CAUSE OF ACTION, only substantive facts necessary to constitute, to be stated in declaration, Rule 26, p. 93. See Tkial ; Pleading ; Declaration. CERTIFIED COPIES, when admissible in evidence. See Books and Wbitdigs ; Evidence. CERTIFICATE, of counsel to accompany demurrer and pleas in equity, Rule 26, p. 379. of marriage, copy of certified to be evidence, 120. so of notary stating protest and facts thereof, 120, CERTIORARI, applications for, how heard. Rule 18, p. 75. on ground of concurrent jurisdiction, Rule 18, p. 76. remedy when subordinate tribunal has no jurisdiction, 77. motion to quash may be heard by any justice in chambers, 77, to police court, may be used in aid of habeas corpus, 78. on motion to quash, ex parte affidavit of magistrate is irregu- lar, 78. not remedy for mere matters of form, 78. CHALLENGES, See Obtmtkal Pboobdubb ; Tkials ; Juby, INDEX. 609 CHANGE OF PARTIES, successor in interest may prosecute, Rule 118, p. 239. by death, when cause is pending, Rule 119, pp. 239, 240. provisions of Rev, Stats. U. S., sec. 955, p. 240. suit not abated by death of some of the parties, 241. Maryland act, 1785, ch. 80, sec. 1, pp. 241, 244. liberal construction given to this act, 244. by death, does not abate action of replevin, 244. suits not affected by death of party to whose use they are brought, 245. partners, actions proceed in name of surviving, 245. ejectment, when action will abate and when not, 245. where infant is successor in interest, 245. CHARACTER, prisoner entitled to presumption of good, 313. evidence of, to what extent admitted, 313. CHIEF JUSTICE, See Supreme Coubt, District of Columbia. duties in extradition cases, 9. See also, Justices ; Criminal Procbduee. CIRCUIT COURT OF UNITED STATES, . supreme court District of Columbia has powers of, 1. CIRCUIT COURT OF THE DISTRICT OF COLUMBIA, (old,) this court and its successor, the supreme court, District of Co- lumbia, the only courts vested with all judicial powers of Uni- ted States courts, 2. docket entries of, how regarded, 41. CIRCUIT COURT, See Supreme Court District of Columbia. CITATION, See Admiralty. CLERK, Of Supreme Court appointed by court, 10. to give bond with sureties, 10. oath, form of, 10. assistant may perform duties of, 11. signature of assistant, form prescribed, 11. . shall render account of moneys, 11, 238. fees of, payable immediately, how collected, 11. clerk to make semi-annual report of, 11. table of, to be exposed to public view, 11. amount of, fixed by R. S. U. S., sec. 828, pp. 11, 238. compensation of clerk, maximum,* |3,500, p. 11. to record certificates of partnership, 12. to designate newspapers fpr partnership potices, 12. to record notices of dissolution of pfirtnership, 12. 77 610 INDEX, CLERK— Continued. and of building liens, 12. to issue marriage licenses, 12, to keep record of marriages, 12. to flirnish copies of docket entries of justices of the peace, 12, shall note on every paper filed the date of filing, Rule 126, p. 248. transcripts of orders and decrees to have at head thereof date of passage noted, Biule 126, p. 248. entering judgment satisfied, duties of in respect to, 202, may take recognizances when required by the court, 2S0. may file cross-interrogatories in criminal cases, when, 294, shall draw the names of jurors, 152. collusion or fraud in drawing such names, penalty for, 155, motions to be recorded and filed by, Rule 101, p. 234. patent cases. For clerks' duties, see Peacticb in Patent? Cases. Of Police Court, appointment, salary, 347. may appoint one deputy, his compensation, 347. bond and oath of, 347. has power to administer oaths and affirmations, 347, deputy has same power in absence of clerk, 347. shall charge no fees, 347. COMMEIfCEMENT OF SUIT, See Actions ; Pleading. COMMISSIONERS, See United States Oommissionbks ; Depositions; Testi- mony ; Partition ; District of Columbia. COMMISSIONER OF PATENTS, supreme court of the District of Columbia has jurisdiction of ap' peals from, 4. See Practice in Patent Oases. COMMITTEE, of lunatic, when he may sue, 4S, COMMITMENTS, See Criminal Procbdurei CONSTABLES, court may appoint twenty, 26'3. shall hold office for four years, 263. duties confined to civil process and collection of debts, 263. amount and form of bond to be fixed by the supreme court of the District of Columbia, 263. bond to be renewed every alternate year, 264. . shall serve process issued by justice of the peace, 364. are liable to same penalties as marshal and deputies, 264 penalty for failure to pay over moneys, 264. INDEX. 611 CONSTABLES— Continued, fees of, fixed by court, 264. commission of five per cent, on executions, 264. CONTEMPTS, supreme court of the District of Columbia has power to punish, 5. extent and limitation of such power, decisipns, 5, 6. police court may punish for, 346. justice of the peace may punish disobedience to summons, 252. CONTINUANCE, under Maryland act, 1721, ch. 14, sec. 2, p. 142. for absence of witnesses, in discretion of court, 143. for delay, prevented by examination on oath, 143. may be granted to complete depositions, 144. and when parties are changed, 144. admission of facts by adverse party to avoid, 144. to await return of commission, 145. for delay to prosecute cause, 145. absence of parties not ground for, unless cause shown, 145. same rule as to counsel, 145. absence of witness, when ground for continuance and when not, 146. documentary evidence, absence of, when ground for, 147. court may require stipulation against abatement, 147. refusal of, not ground for exception, 147. affidavits, supplemental, on motion for, not received, 147. when granted in suits against public delinquents, 147. CONFESSIONS, rule as to admission of, 313. CONTRACTS, duty of court and jury as to, construction of, 313. For actions and proceedings on contracts, - see Pleading ; Teial; Equity. CONVICTS, POOR, may be discharged by United States commissioner, 339. grounds for discharge of, 339. form of application for, 340. mandate for production of convict, 340. oath of convict, 340. certificate of discharge, 341. COPIES, See Books and Writings. COPYRIGHT LAWS, jurisdiction of supreme court of the District of Columbia under, 3. CORPORATIONS, foreign, suits against, 49, 612 INDEX. CORPORATIONS— CoHtinued. process to be served on agent of, or in his absence by leaving copy of writ, 86. educational, process against to be by summons, 86. in suits against the District, process to be served on any one of the commissioners, 86. answer of, in suits against, 390. COSTS, deposit to secure, 45. ■ affidavit of inability to pay, 45. security for, 46. Maryland act, 1796, Rule 86, p. 46. rests in discretion of court, 46. where motion is granted improvidently, remedy, 46. judgment for, 201. of clerk, payable immediately, but in no case by United States, 205. of several actions, may be limited to those of one, 205. When vexatiously increased, attorney liable for, 205-6. third parties liable for, in suits brought to their Use, 206. taxable, what are, 206. in consolidated suits, 206. Witness fees, 206. officers of court not allowed, 207, 208. of copies of court papers, Rule 84, p. 208. of proofs of documents not admitted. Rule 85, p. 208. " attorneys' docket fees, amount of, 208, 209. printers' fees, 209. folio, meaning of defined, 209. of copyright suits, 209. in suits for infringement of patents, 209, 210, 534. in prosecutions under penal statutes, 210, 211. when to be paid by defendant, 319. on appeal from police court, deposits to be made for, 350, of copies of papers on file, Rule 9Q, p. 358. of separate answers. Rule 58, p. 388. of exceptions to answer. Rule 57, p. 394. auditor's report, costs of frivolous exceptions to, Rule 79, p. 437* to be paid out of estate of infant when, 450. in patent oases where disclaimer is filed, 527, 534. For costs in admiralty see AdmibaltV. COUNSEL, bill of exceptions to be settled by. Rule 63, p. 184. to exchange briefs before argument in general term, Rule 90, p. 216. accused may demand assignment of, 306. to sign bill in equity, Rule 19, p. 370: INDEX. 613 COUNTS, See Declaration ; Indictment. COURT-MARTIAL, in prosecutions before for perjury, what necessary to set forth, 303. COURTS, See Circuit court ; Circuit Court of District op Colum- bia; Circuit Court of the United States; Criminal Court ; District Court of the United States ; Equity Court; General Term; Police Court; Supreme Court OF the District of Columbia; Supreme Court of the United States. COVERTURE, as a defence to crime, 313. CRIMES, what are infamous, 296. CRIMINAL COURT, terms of, 39, 268. may sit as circuit court when, 39. a branch of supreme court, 267. originally separate and distinct court, 267. its independent character changed by act of June, 1870, p. 267> has jurisdiction of crimes and m^isdemeanors, 267. to be held by one justice of supreme court, 267. has a criminal common law jurisdiction, 268. original jurisdiction of capital and other\Vlse infamo'us crimes, 268. appeal lies to it fronf police court, 268. may cause arrests and hold to bail, 268. may be held by justice holding circuit courtj 268. _ CRIMINAL PROCEDURE, Arrest, security from, Constitutional provision, 272. judicial construction of this provision, 272, 273. warrants of, may be issued by justices of peace, 273. and by judge of police court, 273, police force have common law powers of constables, 273. may execute warrant Without endorsement, 274. may arrest without warrant in certain cases, 274. may arrest for suspected felony, 274. may search and arrest in special cases, 274, 275. neglecting to make, penalty for, 275. private detectives making, duty of, 275. on warrants issued by judge or U. S. commissioner, 275. when commissioner may issue warrant, 276. when he should not, 276. warrant void, when magistrate's signature in pencil, 276. 614- INDEX. CRIMINAL PROCEDURE— Continued. what warrant must state, 276. executing the warrant, 276. district attorney cannot direct marshal to execute, 276. preliminary examination, 276. accused entitled to speedy examinatioil, 277. duties of commissioner on, 277. Bail, R. S. U. S., sec. 1014 (who may take bail), applicable to courts of District of Columbia, 278. in criminal causes may be taken by justice or commissioner, 9, 279. excessive, not to be required, constitutional provision, 279, 318, 319. in fixing, how discretion of magistrate to be guided, 279. provisions as to, applicable to arrests by police force, 279. justices of peace not to take, in criminal cases, 279. in cases of, court may award writ of habeas corpus, 279. to be taken in all cases not capital, 280. exception as to extradition cases, 280. in capital cases, when may be taken and by whom, 280. not matter of right in capital cases, 280. money cannot be taken in lieu of, 280. judge of police court may take, 280. clerk of court may take recognizance, 280, 281. forfeiture of, 281. liability of sureties, 281. penalty may be remitted by court, 282. or by the President, 282. surrender of accused persons, 282, 283. additional, to be given in certain cases, 283. liability of principal to surety on bail bonds, 283. false, penalty for procuring, 284. recognizance of witnesses, 289. Commitment, grounds for, 277. mittimus, how made, 277. what it must show, 277. not suflacient, when, 277. only one necessary on two or more charges, 278. to be jailor's authority, 278. Execution of judgment for fines and penalties, 320. fi. fa. or capias, may issue, 320. when sentence is to penitentiary, 320, 321. when juvenile ofifenders are sentenced to imprisonment, 321. in capital cases, 322. benefit of clergy abolished, 322. punishment of death, to be by hanging, 322. warden to execute, 322. place of, 322. warden, deputies and other officers to attend at, 322, 323. who may be present at, 323. INDEX. 615 CRIMINAL PROCEDURE— Continued. . who may not, 323. no person under age of 21 to be allowed to witness, 323. to be postponed when case carried to TJ. S. Supreme Court, 323. £xtradition, Foreign; ftigitives from justice of foreign country to be surrendered, 326, 327. certified copies of depositions are evidence in cases of, 327, 328. certificate of consuls and diplomatic officers, as to proper au- thentication of documents, 328. hearings shall be public, 328. persons charged, to have subpoenas for his witnesses, 828. witness fees, costs, etc., how paid, 328, 329. depositions, warrants, etc., as evidence, 329. fugitive, how surrendered and kept, 329. repeal in part of R. S. U. S., sec. 5271, p. 329. time allowed for extradition, 329, 340. continuance of provisions of extradition act limited, 330, accused entitled tb protection and security, 330. powers of agent receiving offenderSj 330, 331. agent, penalty for opposing, 331. Extradition, Interstate, Constitutional provision, 331. this provision confined to States — does not include District of Columbia, 331. but the act of Congress applicable, 381. duty of chief justice. District of Columbia, 331. ' in absence of chief-justice, senior associate to act, 331. fugitive from justice to a State or Territory, duty of execu- , tive to cause arrest of, 332. agent, penalty for resisting, 332. what are extraditable crimes, 332. fugitives frotn justice, who are, 333. constructive presence defined, 333, accused may show on habeas corpus that he was neVer present in demanding State, 333. fugitives may be arrested before demand, 333. can only be delivered on formal requisition,. 333. requisition must be in good faith, 333. executives, hiow they are to exercise authority, 333. distinction between executive and judicial functions, 333. delivery of fugitive a discretionary duty, 333. defendant must be charged with- crime, 333. prosecution must have been regular, 334. warrant not necessary, 334. indictEQent or affidavit constitutes charge, 334. sufficiency of, 334. affidavit must distinctly charge crime, 334. must not be founded on belief or hearsay, 334. should be more ftall, clear and specific than indictment, 334. 616 INDEX. CRIMINAL PROCEDURE— Continued. must allege that accused has fled from justice, 334. need not be made before flight, 334. authentication of papers, 334, 335. may be refused if accused already held, 335. and even if detained on civil process, 335. habeas corpus to ascertain cause of detention, 335. guilt or innocence not to be investigated on, 336. District of Columbia, criminal fleeing from, 336. Extradition of Foreign Seamen, provisions of R. S. U. S., sec. 5280, p. 337. disputes between seamen, 337. arrest on application of consul, 337, 338. commitment and discharge, 338. Indictment, infamous crimes to be prosecuted only by, or present- ' ment, 296. infamous crimes, what are, 297. to run in name of United States, 297. to conclude against peace and government of U» S., 297. to be concurred in by at least twelve grand jurors, 297. but it need not allege such concurrence, 297. what offences may be joined in one, 297. what may not be so joined, 298. repugnant counts, prosecutor must elect between, 298. not to be deemed insufficient for defect of form only, 298. caption forms no part of presentment, 298. may be amended after verdict for clerical error, 298. signature of district attorney, want of to, does not invalidate, 299. of foreman, how necessary, 299. name of prosecutor not necessary at foot of, 299. must set forth crime with clearness and certainty, 299. what degree of certainty required, 299. words must be taken in technical sense, 299. . what allegations are void, 299, 300. statutory offence must be indicted in words of statute, 300. this rule explained, 300. misnomer, when fatal and when not, 300, 301. intent should be alleged a;nd proved, 301. figures should not be used for dates, 301. time, variance of, not material, unless of essence, 301. property, description of, what is sufficient, 301. surplusage, mere, will not vitiate, 801. averring written instruments by description, bad on motion, 301. negative averments, 301, 302. where statute contains an exception, in what cases indictment must show accused not to be within, 301, 302. INDEX. 617 CRIMINAL PROCEDURE— Continued, cannot be amended, nor can presentments, 302. forpequry, averment, statutory provision, 302. what should be averred, 302, 303. for subornation of, 303. for perjury before court-martial, 303. Jury, Grand, how selected, 284. who to constitute, 285. foreman of, appointed by court, 285. oath, special, as to duelling, 285. discharge of, 285. Jury, Petit, how selected, 284. venire, writs of, how issued and served, 285. who to constitute, 285. not essential to consist in part of colored men, 285. ehalleges, peremptory, 286. when defendant exceeds, 286. notes of decisions as to challenges, 286. corrupting or intimidating jurors, penalty, 287. Jury, Trial by. See Trial by Jury. Limitations of capital oflFences, R. S. U. S., sec. 1048, p. 269. of offences not capital, B. S. U. S., sec. 1044, p. 269. foregoing sections applicable to District of Columbia, 269. construction of these sections, 269. not to extend to persons fleeing from justice, 270. as to crimes against customs and revenue laws, 271. Police Court, prosecutions to commence by information under oath, 304. See Police Court ; Informations. Presentment differs from indictment, how, 303. charge may be tried without indictment, 303. but more usual to frame indictment thereon, 303. grand jury may make general, 303. Sentence, cruel and unusual punishments not to be inflicted, Con- stitutional provision, 318. this provision applies only to national legislation, 318. whipping and pillory abolished, 319. when it may be pronounced, 319, cumulative, 319. against defendant for costs of prosecution, 319. execution of, when postponed, 320. Trial by Jury, Constitutional provision, 309. speedy and public, guaranteed, 392. district attorney of U. S. shaU prosecute, 309. municipal ordinances, violation of, to be prosecuted by attor- ney of District of Columbia, 309. separate, discretionary with court, 309. presence of prisoner, when necessary and when not, 309. 78 618 INDEX. CRIMINAL PROCEDURE— Continued. right of prisoner to be confronted with, witness ; exception id this rule, 309. right to open and close is with the government, 310. burden of proof on prosecutor, 310. witness, party may be compelled to disclose what he expecta to prove by, 310. new evidence after trial, rule as to, 310. libel, in prosecutions for, truth thereof may be given in evi- dence, 310. opinion on the facts, court may give, 313, jury, discharge of, power of court over, during trial, 314. not equivalent to acquittal, 314. no defence to further trial, 341. jury exclusive judges of weight of evidence, 314. See Evidence. indictment objections to, at the trial, 314. insanity as a defence, 314, 315. Trials, Summary, for offences against navigation laws, 324. complaint and answer, 324. amendments and adjournments, 325. challenges to jurors, number allowed, 325. limit of sentence, 325. penalties and forfeitures may be sued for, 325. Verdict, defendant may be found ' guilty of less offence than charged, 317. , against one or more of several joint defendants, 317. Supported by finding on one of several counts, 317. may be against one defendant for murder and against another for manslaughter, 318. acquittal of one' of two charged with conspiracy is acquittal of both, 318. different rule when there are others unknown, 318. rule as to joint offences and offenders, 318. sealed, right to have jury polled in case of, 318. Witnesses, subpoena for, form of and attendance under, 288. may run into any district, 289. for defendant, fees to be paid by government, 289. fees of, where parties are unable to pay, 289. recognizance of, when may be required, 289, 290. detained, to be provided withr accommodations, 290. defendant, when competent as, 290, 291. accused or convicted persons competent in certain cases, 291, persons convicted of perjury incompetent as, 291. perjury, subornation of, same rule, 291. before Congress, testimony of, not to be used against them, 291, pleadings and disclosures of, not to be used against them, 292. compulsory process for, defendants to have, 292. exception as to ambassadors,and consuls, 292. INDEX. 619 CRIMINAL PROCEDURE— Continued. oaths to, may be administered by district attorney or assist- ant, 293. no writ necessary to bring witnesses from jail, 293. corruptly influencing or intimidating, penalty for, 293. testimony of, may be taken by commission, 293. commissioners for taking, who may be, 293, 294. duties of, 295. commission — what it must state, 394. how issued, 294. notice of, to be given to district attorney, 294. contents of and service, 294. cross-interrogatories, form of, 294. exiibits must be appended to depositions, 295. certificate and return, how made, 295. deposition not excluded for unimportant deviations, 295. court may establish further rules for taking testimony, 295. CROSS-BILL, See Equity Practice ; Pleading. CUSTOMS AND REVENUE, limitations as to crimes against, 271. DAMAGES, in ejectment, measure of, 53, 54. limitation to recovery of, 54. how estimated, 54. forcible entry and detainer, assessment of, 57. in replevin, to be ascertained by jury or inquest, 71. when things are eloigned, 71. unliquidated, in what cases court may award inquiry, 194. how inquirj^to be executed, 19. manner of executing inquiry under Maryland act, 1794, ch. 46, pp. 194, 195. judgment to be awarded without distinction of debt from dam- ages, Rule 67, p. 189. in patent cases, plaintiff can recover only for actual, 535. only nominal, when mere infringement proved, 525. actual damages defined, 525. decisions as to, 525, 526. in admiralty, when suits lie for damages, Rule 20, p. 548. DEATH, of marshal, deputy to continue in oflflce, 15. process, how served in such case, 85. after levy or sale, 226, 227. of parties. See Change of Parties. sentence of. See Oriminal Proeedv/re. of persons without heirs, having contracted for sale of lands, 469, 471. See Equity Practice. 620 IKDEX- DECEDENTS' ESTATES, claims against, 27. proceedings to sell, 461. See Equity Practice. DECLARATION, See Pleading. DECLARATIONS, of a party not generally received in his favor, 168. may be admissible as a part of res gestae, 168. when admissible and when not, 169, 313. of agent, 169. confessions, when admissible as evidence, 313. See Obtmtnal Peocbdube ; Evidence. DECREE, See Appeals ; Equity Practice ; Judgment, DEFAULT, Judgment by. See Judgment. DEMURRER, to bill. Bee Equity Practice ; Pleading, to declaration. See Pleading, to indictment. See Indictments. DEPOSITIONS, justices may direct taking of, in suits pending elsewhere, 9. of non-resident witnesses, how taken. Rule 63, p. 122. commission to take, form of, 123. De Bene Esse, construction of R. S. U. S., sec. 853, pp. 124, 125. in one suit, when admissible in another, 125, statute must be strictly pursued, 125. notice of, to whom given, 125. mode of faking, 125. transmission of, to court, how made, 126. Dedimns Potestatem, depositions under, how taken, 126, 127. mbpcena duces tecum under, 127. witness under, 127, 128. In Perpetuam, how taken, 126. admission discretionary with court, 126. In Criminal Cases. See Criminal Procedure; Evidence. In Equity. See Equity Practice ; Evidence; Testimony. DEPOSITORIES, designated, moneys to be deposited with, 237, 238. DEPUTIES, marshal may appoint one or more, 13. marshal may appoint special baiUflf, 13. forbidden to practice as attorneys, 13. to marshal shall take oath of office, 13. removable by judges at pleasure, 13, INDEX. 621 DEPUTIES— Continued. to continue in office in case of death of marshal, 15. of district attorney, may administer oaths, 17. to clerk, may perform duties of, 10. DETINUE, action of, in use in District of Columbia, 19. DISCLAIMER, in equity, when defendant may put in, 386. how differing from answer, 386. when resorted to, 386. general, entitles defendant to dismissal with costs, 386. exceptions to this rule, 386. See Equity Peactice. DISTRICT ATTORNEY, appointment of, 17. term and oath of, 17. duties of, 17. may administer oaths and affirmations, 17, 18. false swearing before, is peijury ; penalty, 18. compensation of, 18. DISTRICT COURT, any one of the justices of supreme court District of Columbia, may hold a special term, with powers and jurisdiction of, 9. when held for District of Columbia, 37, 39. has jurisdiction in admiralty, 537. construction of R. S. U. S., sec. 563, p. 537. bankruptcy, jurisdiction as court of, taken away, 4. DISTRICT OP COLUMBIA, commissioners of, process may be served on any, 86. to lease premises for police court, 345, attorney for, to prosecute for violation of municipal ordinances, 309. supreme court of. See Supreme Court District of Columbia. DIVORCE, Abandonment, for two years ground for divorce. See Desertion, 485,487. Admissions in answer not evidence of, 500. ^ Adultery, ground for divorce a vinculo, 485. erroneous belief that wife is divorced no defence to charge of, 486. bona fide belief that wife is dead is a defence, 486. no adultery when wife is ravished or insane, 486. divorce granted for, although condoned, when, 486. must be charged as without consent, connivance, privity or procurement of petitioner. Rule 91, p. 492. what are sufficient allegations of, 492, 622 INDEX. DIVORCE— Continued. name ofparticeps criminis to be given when known, 492. time and place of, to be given, 493. pregnancy without access, allegation of, suf&cient, 493. proof of, what constitutes, 493. connivance or consent, defence to charge of, 494. collusion, a defence, 494. lapse of time is a defence to charge of, 494. of wife after divorce from bed and board, 503. Alimony, court may decree to wife and retain right of dower, 502. is an incidept of divorce, 502. no decree for, without personal service, 502. provides, in absence of statute, for continuing payments, 502. in what cases real estate may be awarded to wife, 502. amount of, rule as to, 502. defendant cannot claim in default of answer, 497. court may award, pendente lite; 503. this award without regard to merits, 503. decisions as to award of pendente lite, 503. suits for, alone, may be maintained, 504. construction of Maryland act, 1777, ch. 12, sec. 14, p. 504. Amendment, petition may be amended or supplemental bill filed, 492. Answer, may set up any defence which would be a bar, 496. issue raised by, to be tried, how, 496. need not be sworn to, 496. effect of, 496, 497. on default, defendant cannot claim alimony or costs, 497. default to, defendant may be present after, and cross-examine, 497. after default, defendant cannot introduce new testimony, 497, conflicting decisions as to general denial in, 497. admissions in, not evidence, 500. Application for, to be made by petition, 485. Bed and Board, divorce from, may be granted for cruelty of treat- ment, 490. or for reasonable apprehension of bodily harm, 490. construction of R. S. D. C, sec. 739, p. 490. adultery of wife after divorce from, 503. Bodily Harm, reasonable apprehension of, ground for divorce, 490. Bond of Marriagre, divorce from, because of existing marriage, 485. for lunacy at time of marriage, 485. matrimonial incapacity, 485. adultery, 485. ' drunkenness, habitual, for three years, 485. cruelty of treatment endangering life or health, 485. wilful desertion for two years, 485. Calendar, cause cannot be heard until placed upon, Rule 90, p. 501. INDEX. 623 DIVORCE— Continued. in publication cases, testimony to be filed thirty days before cause is placed on, 501. Consent to separation, 490. t when petitioner under age of, what to be averred, Rule 92, p. 494. obtained by fraud, Rule 93, p. 495. construction of rule and decisions, 495. under duress, 495, 496. Cross-bill, defendant may file, 497. Cruelty of treatment, endangering life and health, ground for divorce a vinculo, 485. defined, 486. ground for divorce a mensa et thoro^ 490. Custody of Children, and maintenance, court may direct who shall have, 503. ttecree, dissolving marriage on account of former marriage, 501. when second marriage contracted in good faith, fact to be stated, 501. issue of second marriage born before suitj legitimate, 501, dissolving marriage for lunacy, issue legitimate, 501. , in other cases, does not affect legitimacy, 601, 502. may be for alimony and retention of dower, 502. may be for custody and maintenance of children, 503. may restore to wife her maiden or previous name, 503. Default of defendant to appear, cause may be heard, 499. remarks on R. S, D. C, sec. 736, p. 499. to answer, defendant cannot claim alimony or costs, 497. after, defendant may be present and cross-examine, 497. defenda,nt cannot introduce new testimony, 497. -Dower, wife's right of, may be retained by. decree, 502. Drunkenness, habital, for three years, ground for divorce a vinculo^ 485. , must be a habit, 488. must be effect of alcoholic liquors, not of opium or chloroform, 486. habit of, defined, 486. . Duress invalidates marriage, 495. mere unwillingness not sufficient, 495. marriage to, avoid prosecution, or to be freed from lawful im- prisonment, not duress, 495. Sridence, decree not. to be made on default without proof, 500. admissions in answer, not, 600. examiner or commissioner to take proof. Rule 90, p. 500. reference not to be made to person named by either party, Rule 90, p. 500. of petitioner, as to cruelty, taken in what case, Rule 96, p. 500, queer 0, as to Whether defendant may contradict, 500, in other cases, neither party competent witness, 500. 624 INDEX. DIVORCE— Continued. whether either party competent in suits for nullity, qusere, 500. Fraud, when consent obtained by, petition must aver no voluntary- cohabitation, Rule 93, p. 495. "in procuring consent defined, 495. Incapacity, matrimonial, ground for divorce a vinculo, 485. when party under age of contract, 485. in case of idiocy or drunkenness at time of marriage, 485. from impotency, 485. from, consanguinity or aflSnity, 485. from lunacy. Rule 94, p. 496. Jurisdiction in divorce cases granted to supreme court, R. S. D. C, sec. 766, p. 484. proceedings regulated, R. S. D. C, sec. 732, p. 484. statutory, in divorce, 485. equity court has, in cases of nullity, 485. See Limitation, post. Legritimacy of issue of second marriage bom before suit, 501. of marriage dissolved for lunacy, 501. not affected in other oases, 501. if questioned, to be tried at common law, 501. Limitation, no divorce for cause occurring out of District, unless petitioner is resident for two years, 490. when cause occurred in District, and defendant is resident, court has jurisdiction, although petitioner is non-resident, 490. when both parties non-resident court has no jurisdiction, 491. Lunacy, petition must allege continuing, 496. sane party marrying lunatic in good faith and ignorantly may sue, 496. arising after marriage, not ground for divorce, 496. nor previous to marriage after thirty years, and family grown, 496. marriage dissolved for, issue legitimate, 501. Maiden Name, decree may restore, 503. Publication, notice of suit given by, how, Rule 89, pp. 497, 498. strict compliance with statute required, 498. and with order of court, 498. K ullity of Marriagre, court has equitable jurisdiction in cases of, 485. when petitioner under age of consent. Rule 92, p. 494. common law age of consent in force in District, 495. where consent procured by fraud. Rule 93, p. 495. prayer for divorce does not cover prayer for, 492. Parties, husband and wife usually only necessary, 491. infant old enough to marry may sue in own name, 491. insane person cannot sue for divorce, 491. third persons may be defendants where property involved, 491. nullity suits, rule as to parties different, 491. INDilX. 625 DIVORCE— Continued. Petition, applications for divorce to be by, 485. must specify causes with certainty, 491. must allege every necessary fact, 491. must set forth facts in terms of statute, 491. should pray specifically for relief, 491. prayer for divorce does not cover prayer for nullity, 492. final alimony need not be prayed for, 492. such prayer, however, usually included, 492. alimony pendente lite should be prayed for, 492. so of counsel fees and custody of children, 492. may pray injunction against the alienation of property, 492. same purpose effected by supplemental bill, 492. must be signed by complainant and sworn to, 492. may join two or more causes for divorce, 492. cause for limited and absolute divorce not to be joined, 492. may pray for further relief, 493. Proof to be taken before examiner or commissioner, Bule 90, p. 500. Supplemental Bill may be filed, 492. Testimony. See Emdence ; Proof . DOCKET, transcript of justices, to be filed on appeal. Rule 8, p. 45. cause to be entered on, at commencement of suit. Rule 8, p. 45. suit in equity to be entered on. Rule 11, p. 371. , DOCUMENTARY EVIDENCE, See Evidence. DOCUMENTS, See Books and "Wkitings ; Depositions ; Evidence. DOWER, action for, in use in District of Columbia, 19. table of allowance in lieu of, 505. comparison of Maryland and Portsmouth tables, 505, 506. unde nihil habet, when action of lies, 20, pleadings and practice in, 20. wife's right to, retained in decree for divorce, 502. DURESS, invalidates marriage. See Divorce. EJECTMENT, AdTorse Possession, declarations of defendant, 53. Attornment to stranger is void, 52. tenant can only defend against landlord by showing title in himself, 53. Damages, for rental value, rule for measure of, 53. actual value of the land while in possession of the defendant in some cases, the measure of, 53, 54. 79 626 INDEX. EJECTMENT— Continued. limitation as to recovery of, 54. how estimated, 54. Declaration in, must be in nam^ of real party in interest, Rule 10, p. 52. and against party claiming to own or possess, Rule 10, p. 52. shall set forth estate claimed, Rule 10, p. 52. counts for ejectment and mesne profits may be united in, Rule 10, p. 52. Fictions in, abolished, 51. Foreclosure Sale, where plaintiff claims under, 52. Landlord, or other claimant admitted to defend, 52. Mesne Profits, limitation as to recovery of, 53. plaintiff cannot recover counsel fees, 53. plaintiff may proceed for, and for damages after expiration of term, 53. Outstanding Title, mortgage must be present and subsisting, 53, otherwise presumed to be extinguished, 53. different rule as to assignments, 53. Proof of record title must go to original source, 52. if hiatus in chain, presumption from adverse possession, 52. different rule when both parties claim from same source, 52. ELECTION, between causes of action. See Trial. ENROLLMENT, clerical mistakes and errors in decrees corrected at any time before, 440. decree deemed to be enrolled at close of term, 440. See Equity Practice ; Decree. EQUITY, Supreme Court District of Columbia has jurisdiction in, 1, 2. EQUITY PRACTICE, Abatement, no, if party dies after cause set for hearing, 406. AiBdarits, sworn to before unauthorized person not to be read, 358, made before counsel and in his handwriting, suiflcient, 358. when they may and when they may not be read, 358. may be read on motion for injunction, although title of cause omitted, 358. on motion to set aside decree pro confesso, 378. in injunction cases, may be filed with bill and answer. Rule 45, p. 414. in support of motions, and in opposition thereto, 419. Amendment of bill before and after copy. Rule 23, p. 395. of bill considered as part of original bill, 396. may be made before answer, 396. exceptions to this rule, 396. may be made in favor of infanta, 396, 397, INDEX. 627 EQUITY PRACTICE— Continued. after answer, plea or demurrer, how made. Rule 24, p. 397. cannot Introduce subsequent matters, 396. defendant must put in further answer. Rule 33, pp. 397, 398. to meet answer, when not necessary, 397. court may impose conditions of, 397. after replication, how made, Rule 24, p. 397. must not change character of bill or answer after cause set for hearing, 397. making entirely new bill not allowed, 397. new cause of action may be introduced by, 398. new process not necessary, when, 398. leave to amend, when deemed abandoned. Rule 25, p. 398. of answer, may be made as of course, before replication, as to matter of form. Rule 53, p. 399. after replication, leave required, Rule 53, p. 399. only allowed under special circumstance, 399. cannot retract a clear admission, 399. when allowed and when not, 399. Answer must be filed by rule-day next succeeding appearance. Rule 51, p. 385. default of, same proceedings as in default of appearance, Rule 51, p. 385. time of, court has discretion as to, 385. nominal party need not answer, unless specially required. Rule 39, p. 385. not appearing and answering is bound by proceedings, Rule 39, p. 385. answering, entitled to costs. Rule 39, p. 385. disclaimer, how differing from answer, 386. may contain all matters of defence, as in plea in bar, Rule 32, p. 386. may contain matter of demurrer, 386. shall be divided into paragraphs corresponding with those of bill, Rule 52, p. 386. what is sufficient and what not, 387, 388. separate, costs not allowed in, unless by order of court. Rule 58, p. 388. of infants or other persons under guardianship, 388. of infant residing out of District, 388, 389. of married woman, 389. of lunatic, 389. of corporation, 390. in special cases, 390. signing, 390. verification of, 390. how verified when taken abroad, 390, 391. when it need not be verified, 391. exceptions to, when to be filed. Rule 54, p. 391. 628 INDEX. EQUITY PRACTICE— Gontinued. ; answers of persons under disability cannot be excepted to, 392. exceptions, matter and frame of, 392. effect of exceptions, when answer coupled with demurrer or plea, 393. defendant submitting to exceptions, must file amended answer, 393. exceptions, when to be set for hearing. Rule 55, p. 393. allowance of, Rule 56, pp. 393, 394. plaintiff may take bill pro confesso if no amended answer. Rule 56, p. 394. or have attachment to compel better answer, 394. plaintiff may renew exceptions on coming in of answer, 394, exceptions to, costs of. Rule 57, p. 394. Appearance, time of, Rule 12, p. 375. entry of, Rule 13, p. 375. effect of, 375. general, gives jurisdiction and covers defects in process, 375. of corporation, by attorney, does not wave objection to juris- diction, 375. conditional, should be entered when objection is to process or jurisdiction, 376. joint, husband must enter with wife when separate estate not charged, 376. of infant, by guardian ad litem, Rule 85, p. 376. of lunatics, idiots, etc., 376. default in, decree pro confesso, Rule 14, pp. 376, 377. decree pro confesso, setting aside, Rule 15, p. 378. Auditor, creation of ofllce of, 432. is analogous to master in chancery, 432, matters referred to, when to be presented, Rule 70, pp. 432, 433. after decree for account, any party may require auditor to proceed, 433, ' to assign time and place to notify parties, Rule 71, p. 433. shall examine parties on oath, Rule 72, p. 433. shall require production of books, papers, etc.. Rule 72, p. 733, shall examine witnesses on oath viva voce or by commission, Rule 72, p. 433. shall direct mode of proof, Rule 72, p. 433. powers and duties of, defined, 434. witnesses before. Rule 73, p. 435. accounting, form and manner of, before. Rule 74, p. 435. evidence, documentary. Rule 75, pp.435, 436. examination of creditor or claimant. Rule 76, p. 436. final account— new reference — distribution, 436. compensation of, to be fixed by court. Rule 77, p. 437. not compelled to report until fees are paid, Rule 77, p. 437, INDEX. 629 EQUITY PRACTICE-Continued. exceptions to report of, Rule 78, p. 437. When statements of account are alternative, report should state which is correct, 437. objection must be covered by proper exceptions, 437. general exceptions not allowed, 437. exceptions only matter for argument, unless equities reserved by decree, 437. exceptions, frivolous, cost of, Rule 79, p. 437. See Auditor ; Account. Beneflciaries, when dispensed with as parties, Rule 36, p. 362. Bill to be divided into paragraphs. Rule 16, p. 364. shall contain names and places of abode of all parties, Rule 16, p. 364. form of introductory part of, Rule 16, pp. ,364, 365. confederacy, ch&rging and jurisdiction clauses to be omitted, Rule 17, p. 365. and if inserted, to be treated as mere surplusage, 365. parties, when omitted, reason to be averred, Rule 18, p. 365. matter of, to be brief and succinct, Rule 20, p. 365. to contain no unnecessary recitals. Rule 20, p. 365. or impertinent, scandalous or irrelevant matter, Rule 20, p. 365. plaintiff need not aver all minute circumstances, 365. nor mere matters of evidence, 365. must contain sufficient matters of fact to maintain plaintiff's case, 365. what averments necessary in a bill to open an account against which limitations have run, 366. to adjudicate will of personal property, domicil mustbe averred, 366. fraud, when alleged, must be set out with particularity, 366. of interpleader, what to aver, 366. to stay proceedings at law, what to aver, 366. impertinence in, 366, 367. scandalous matter, what is, 367. expunged on motion. Rule 20, p. 367. multifariousness— no rule as to, 367, 368. objection to, how taken, 369. instances of, 368. where not multifarious, instances, 368. framed with double aspect — foundation for relief, 369. prayers of, shall ask for special and general relief. Rule 22, p. 369. distinctions between the prayer for general and that for special relief, 369. process, prayer for, what to contain, Rule 21, p. 370. not inispensable, when, 370. 630 IWDEX, EQUITY PRACTICE— Continued. bill must be signed by, counsel, Rule 19, p. 370. signing, what is sufficient, 370. verification of. Rule 88, p. 371. conscientious scruples against oath, party may affirm, 371. not to be presented until filed. Rule 98, p. 371. filing, what is, 371. when ffied, suit to be docketed. Rule 11, p. 371. amiended, see Amendment, this title. Bill of Review to be filed within two years after entry of decree, Rule 86, p. 446. exception specified in R S. U. S., sec. 1008, Rule 86, p. 446. principles applicable to, 446, 447, 448. leave to file, what petition must state, 448. hearing of petition for, 448. Bill ol EeviTor, when it lies. Rule 48, pp. 404^ 405. construction of Maryland act, 1785, ch. 80, sec. 1, p. 405. practice as to, 405. suit for rescission of contract for lands, 405. entirely abated may be revived in part, 405. cannot be revived, when interest of plaintiff wholly deter- mines at death, 405. but benefit of former proceedings may be had in new bill, 406, supplemental matter may be added to, 406. bills in nature of, 406. death or marriage of party after final decree, 407. statements of original suit not necessary in, Rule 50, p. 408. Costs. See Costs. Court in equity, when suits may be sustained in, 353. when it will grant relief, when not, 353, 357. always open for preparation of causes. Rule 1, p. 357. Creditor's Bills, 463. Cross -Bill, for discovery only, Rule 68, p. 402. defendant may exhibit interrogatories, 402. generally, 402, 404. is an auxiliary suit, or dependant on original, 402. can be sustained only on matter growing out of original bill, 402. practice aS to, 403. is considered as a defence, 403. relief sought should be equitable, 403. otherwise, cross-bill is demurrable, 403. defendant cannot have decree against co-defendant without filing a, 403. defendant cannot have positive relief against plaintiff with- out, 403. may answer purpose of plea, puis darrein continuance, 404. in what cases defendant's consent required to dismiss original bill, 404. INDEX. 631 ECltllTY PRACTICE— Continued. Decedents, proceedings to sell real estate of, 461. lands descended or devised to minor or person non compos mentis, 461. Maryld.nd act, 1785, cli. 72, sec. 5, construed, 462. personal estate, natural fund for payment of debts, 462. decree for sale of personal estate. Rule 69, p. 441. if personal assets wasted, remedy against executor or admin- istrator, 462. real estate protected, unless personal insufficient, 463. administrator or executor should be party to bill, 463. what allegations in bill are necessary, 463. limitations as defence to creditor's bills, 463. trustee to make sale, chancellor may appoint, 463. sales, manner of making and confirming— bond, 463, 464. ratification of, 464. terms of, to be determined by chancellor, 465. proceeds of, how distributed, 465. infants, how far they may disturb decree after coming of age, 465. miscellaneous decisions under Maryland act, 1785, p. 466. estates of persons dying without heirs, 469. testamentary trustees to give security, 469. trustees appointed in certain cases, 470. conveyance of land, after death of party contracting, 470. Decree, form and substance of. Rule 81, pp. 439, 440. deemed to be enrolled at close of term in which passed, 440. to enforce liens, construction of R. S. D. C, sec. 808, p. 440. confirming sales, vests title in purchaser without conveyance, 440. clerical mistakes in, how amended, Rule 80, p. 441. may be amended, on motion, to allow costs, 441. may be made to conform to decision of court, 441. terms and substance of, can only be varied on rehearing, 441. party cannot appeal from, while petition to alter pending, 441. execution of decree, court may change mode of, 441. for account of personalty of deceased persons. Rule 69, p. 441. execution of, for payment of money, Rule 82, p. 442. payment by one defendant, satisfaction, 442. for specific act. Rule 83, pp. 442, 443. decree may stand for conveyance, Maryland act, 1785, p. 443. similar provision of R. S. D. C, sec. 793, p. 443. assistance, writ of. Rule 84, p. 443. when writ of assistance will be granted, 443, 444. death or marriage of party after, 407. Demurrer, to be accompanied by certificate of counsel. Rule 26, p. 379. to be supported'by affidavit of defendant. Rule 26, p, 379. 632 INDEX. EQUITY PRACTICE— Continued. will be disregarded if it lack certificate and aflSdavit, 379. practice in such cases, 379. ■when to be filed, 379. to whole or part of bill, Rule 27, p. 380. does not admit conclusions of law, 380. admits nothing but facts properly pleaded, 380. does not admit averments as to meaning of instruments of writing, 380. what may be objected to by, 380. to discovery must be special, 380. speaking, what is a, 380. several causes of, 380. allowed, if one cause be good, 380. cannot be good in part and ^ad in part, 380, 381. when coupled with answer, 381. overruled by answer, 381. to relief only, not overruled by answer as to discovery, 381. to part of bill, how to be entitled, 381. demurring ore tenus, 381. causes of, must be co-extensive, 381. taken as sufiicient if not set down for argument or replied to, Rule 31, p. 383. argument of, Rule 28, p. 383. effect of setting down for argument, 383. effect of replying to, 383. right to open and close, 383. amendment of, 383. practice when one of several defendants demurs successfiiUy, 383. on demurrer overruled, in what cases defendant may demur de novo, 383. overruling, costs on, time for answering. Rule 29, p. 384. provisions of the Maryland act of 1785 as to costs, when demur- rer is overruled, 384. allowing, costs on, 384. plaintiff may amend bill, at discretion of court. Rule 30, p. 384. discouraged by courts, 384. matter of defence by, may generally be relied on in answer, 384. DepoBtion of Eesident Witnesses, Rule 63, p. 426. notice of taking, to be given when cause at issue. Rule 63, p. 426. . taken before examiner of the court. Rule 63, p. 426. taken in presence of parties or their agents, Rule 63, p. 426. examination conducted as in common-law courts. Rule 63, p. 426. to be taken down in writing by examiner, Rule 63, p. 426. in narrative, unless either party request examination by ques- tion and answer, Rule 63, p. 436. INDEX. 633 EQriTY PRACTICE— Contmued. to be read to witness and signed by him, Rule 63, p. 427. if witness refuse, examiner may sign. Rule 63, p. 427. special matters may be stated to court by examiner, Rule 63, p. 427. objections to be noted by examiner on the record. Rule 63, p. 427. examiner no power to decide on questions, Rule 63, p. 427. incompetent, immaterial or irrelevant, how dealt with. Rule 63, p. 427. when concluded, transmitted to court, Rule 63, p. 428. Depositions of Non-Eesident Witnesses, Rule 63, p. 428. court may appoint examiner to take. Rule 63, p. 428. commission to issue under seal of court. Rule 63, p. 428. to be taken on interrogatories and cross-interrogatories, Rule 63, p. 428. interrogatories to be filed ten days before issue of commission. Rule 63, p. 428. court, for special cause, may direct to be taken orally. Rule 63, p. 428. examiners may be appointed outside territorial jurisdiction, 428. court may dispense with interrogatories, 428, 429. motion for commission not grantable of course, 429. deposition under commission, uniform practice, 429. de bene esse, under act of 1789, cannot be used if witness is present, 429. interrogatories should be answered separately, 429. Depositions, omission of answers fatal to whole deposition, 429. hypothetical interrogatories need not be answered, 429. failure to answer general interrogatory fatal to whole deposi- tion, 429. all interrogatories to be substantially answered, 429. when they maybe used and when, not, 429, 430. parties have right to file additional interrogatories, 430. general interrogatory, form of. Rule 67, p. 431. See Testimony. Evidence. See Depositions. Hearing, setting causes for. Rule 62, p. 438. all suits not triable by jury to be heard at special term, 438. answer, when it is evidence at, Rule 63, p. 438. may be used as aflSdavit, Rule 63, p. 438. how far it is evidence, 438. admission in, when evidence for plaintiff, 439. Idiots and Lunatics, appearance by, Rule 85, p. 376. answer of cannot be excepted to, 392. seized of lands in trust may be decreed to convey, 455. mortgaged premises of, how sold, 459. remarks on Maryland act, 1785, ch. 72, sec. 1, p. 460. provisions of this act extended by Maryland act, 1795, 460. 80 634 INDEX- EQUITY PRACTICE— Continued. power of court over their persons and estates, 471. when writ de lunatico may be dispensed With, 473, Who may be appointed committee, 472. jurisdiction over estate ceases with death of, 472. duty of committee after death of, 472. when receiver may be appointed, 472. remedy of creditors after death of, 472. confinement of, court may direct, 472. property of, may be sold for their support, 473. statutory provisions as to, 473, 474. sales of their property, proceedings, 474. disposition of proceeds, 474. See Idiots and Lunatics. Infants, appearance by, Rule 85, p. 376. guardian ad litem appointed by court. Rule 85, p. 376. can only appear by, 376. how application for appointment of, to be made,. 376. answers of, 388. answers of, non-resident, 388. sale of their estates, 449. guardian may file petition for sale, 44S. petition what to state, 449. construction of the statute, 44&. petition for sale, who to be defendants, 449, 450. evidence required before decree for sale, 450. what will render decree of sale lawful, 450. costs to be paid out of infants' estates, 450. no sale where will forbids-, 450. guardian or guardian ad litem not to purchase, 450. sale, manner of, 450. proceeds, how invested and applied, 451. security required, 451. in case of death of, proceeds to be considered as real estate, 451. when court may confirm contract of guardian, 453. Maryland act 1785, ch. 72, sec. 12, construed, 453. trusts held by, 455. when trustees, may be decreed to convey, 455. guardian must consent to decree, 456. bound by such conveyances, 458. mortgaged premises, manner of sale, 459. provisions of Maryland act 1785 extended to equitable titles, 460. foreclosure of mortgage, bond to be given, 460, 461. sale of lands descended or devised to, 468. in partition suits, answer of non resident infants, 476. guardian appointed to take answer, 476. marriage of. See Divorce, INDEX. 635 EQUITY PRACTICE— Continued, lujimctious, preliminary, how allowed, Rule ^0, p. 409. to restrain mere trespass not granted, unless injury irrepara- ble, 409. when granted and when not, 410. undertaking, when required, Rule 40, pp. 410, 411. not granted ex parte unless prayed for and bill verified. Rule 41, p. 411. by whom to be verified, 411. when verified by agent or attorney, 411. how verified when bill filed by corporation, 411. when not ex parte, day to be fixed for hearing, Rule 42, p. 411. to stay proceeding at law, averments of bill. Rule 43, p. 411. principles of this rule explained, 411. to stay proceedings on judgment, 413. this jurisdiction cautiously exercised, 413. . principles upon which the injunction issues, 413. to obtain discovery, damages within discretion of the court, 413, 414. so when judgment is enjoined, 413, 414. on dissolution of, damages at ten per cent., 414. suits to recover land, not enjoined without undertaking. Rule 44, p. 414. in ejectment, injunction when granted, 414. to protect equitable titles, 414. may be fortified by afiadavits. Rule 45, p. 414. taxes, collection of by U. S., cannot be restrained, 415. act has no application to District of Columbia,' 415. motion to dissolve or discharge. Rule 46, p. 415. copy of bill to be served on defendant's solicitor. Rule 46, p. 415. service to be within six days after appearance, Rule 46, p. 415. copy not served, defendant on notice may move to dissolve, Rule 46, p. 415. not dissolved, unless answer verified. Rule 46, p. 415. dissolution of, principles respecting, 415, 416. how avoided, 416. miscellaneous statutory provisions, 416. preliminary, not appealable, 416. Interlocutory Proceedings, Rule 2, pp. 418, 419. orders, justice in chambers may make, Rule 2, p. 419. notice of application to be given, Rule 2, p. 419. motions grantable of course, what are. Rule 3, p. 419. not grantable of course. Rule 4, p. 419. notice, how given, Rule 4, p. 419. may be made on behalf of any party to record, 419. or on behalf of gwasi party to record, 419. order made on, may be varied or discharged on, 419. scandal and impertinence in, 419. notice of, must be properly entitled, 419. 636 INDEX. EaUITY PRACTICE— Contintied. what notice should state and include, 419. notice of, for process of contempt to be served personally, 419. affidavits in support of, 419. affidavits in opposition to, 419. affidavits, practice as to, 420. certifying, to general term, 420. discretionary with justice, 420. not to be certified unless involving merits, 420. order not involving merits not appealable, 420. nor order denying injunction, 420. and appeal though taken and bond given wiU be no super- sedeas, 420. nor from the granting of a restraining ordier, 420. nor from an order granting a writ of assistance, 420. security for costs — decisions, 420, 421. consolidation of causes, 421. order for production of books and papers, 422. construction of Maryland act 1798, ch. 84, sec. 2, p. 422. election to sue at law or in equity, order requiring, 423. money, order to pay into court, 424. restrictions and limitations, 424. sending issues to a court of law, 425. order not generally made until proof and publication, 425. but court has discretion, 425. what issues may be sent to court of law, 425. contempt, attachments for, 425. i sequestration— Md. act 1785, ch. 72, sec. 25, p. 425. Interrog'atories to non-resident witnesses, Eule 63, p. 428. See De- positions ; Testimony. Life, Estates for, sale of, 45:i, 454. application for sale of, how made, 454. defendants, who must be, 454. evidence, how taken, notice, 454. proceeds, disposal of, 454. Lunatics. See Idiots and Ltmatics. Marriag'e after final decree, 407. Mechanics' Liens. See Mechanics^ Liens. ]Ve Exeat, not granted ex parte, unless prayed for in biU, Rule 41, p. 411. bill must be verified. Rule 41, p. 411. verification of bill ; decisions, 411. Non Compos Mentis. See Idiots and Lunatics. Nullity of marriage. See Divorce. Oath, party may affirm, instead of taking, Rule 87, p. 357. Order Book, to be kept at clerk's office. Rule 2, p. 357. rules, orders, and other proceedings to be entered in, Rule 2, p. 357. INDEX, 637 EWITY, PRACTICE— Continued. open at ofllce hours to inspection, Rule 2, p. 357. Papers. See Books and Writings. costs of copies of, Rule 99, p. 358. Parties, proceeding without, Rule 34, p. 359. discretion of court to proceed without. Rule 34, p. 359. construction of R. S. U. S., sec. 737, as to absent parties, 359. that statute only legislative affirmance of rule of equity, 359. who are necessary, 359. claimants with equitable title, 359. to bill for appointment of new trustees, 359. to enforce payment of legacy, heirs necessary defendants, 359. for specific performance of contract of ancestor, 359. to set aside sale of real estate of ancestor, 359. if bill holds surety liable, principal is necessary party, 359. claimants of interest in fund, necessary, 359. but not if interest is assigned, 359. all having joint interest are necessary, 359. other instances, 360. bill defective for want of, court will grant leave to add, 360. Who are not necessary, 360, 361. When very numerous, court may dispense with. Rule 35, p. 361. may sue in behalf of themselves and others having like inter- est, 361. municipal corporation not to sue merely for benefit of indi- viduals, 361. creditors' bills, practice as to parties to, 361, 362. omitting, reasons for must be averred. Rule 18, p. 362. beneficiaries, when dispensed with, Rule 36, 362. application of the rule, 362. objection for want of, how taken, 362. should specify names, description, etc., 362. is not to jurisdiction, but to relief, 363. not good at final hearing, 363. exceptions to this rule, 363. proceedings when suggested in answers, Rule 37, p. 363. omitted, saving for, in decree, Rule 38, p. 363. to partition suits. See Partition. Partition. See Partition. Patents. See Patent Cases, Practice in. Payment of Money into Court, 424, 425. Pleadings. See Pleadings, in Equity. Pleas, to be accompanied by certificate of counsel, Rule 26, p. 379. when to be filed, 379. may be to whole or part of bill, Rule 27, p. 380. overruled by answer, 381. exception when supported by answer, 382. pure, what are, 382. negative, or anomalous, what are, 382. 638 INDEX. EQUITY PRACTICE— Continued. but one defense to be made by, 382. taken as sufficient if not set down for argument or replied to, Eule 31, p. 382. taking issue on Rule 28, p. 383. argument of Rule 28, p. 383. practice when plea is unexceptionable, 383. costs on overruling, time to answer, Rule 29, p. 384. on allowance of, amending, Rule 30, p. 384. discouraged by courts, 384. Process in first instance is writ of subpcena, 371. final, for payment of money, to be by fieri facias or attach- ment, Rule 82, p. 443. Proof. See Testimony; Evidence. Receiver, office of, defined, 416. may be applied for at any stage of cause, 416. cannot be appointed before suit, 417. exception in case of idiots and lunatics, or avoidance of pro- cess, 417. never appointed, unless danger of ii-reparable loss, 417. or to prevent manifest wrong and injury, 417. not appointed over real property, except in extraordinary cases, 417. what must be shown on application for, 417. granting of, in discretion of court, 417. how and when appointed, 417. who may be, 417, 418. title, when it vests in, 418. property must be reduced to possession, 418. and be free from attachment or execution, 418. title does not vest in, until he qualifies, 418. order appointing, not appealable, 418. Rehearing, petition for, what to contain. Rule 86, p. 444. application for, is by petition, not motion, 444. petition should state circumstances, errors and ground of ob- jection, 444. when for newly discovered evidence, affidavits required, 444. not granted after term, if appeal lies to Supreme Court United States, Rule 86, p. 445. if no appeal lies, admitted before end of next term. Rule 86, p. 445. principle, upon which granted, 445, 446. Beplication, to be filed within ten days after notice of filing of answer. Rule 60, p. 394. always to be filed to answer of infant defendant, 394. special, abolished. Rule 59, p. 394. general, form of. Rule 59, p. 394. not filed, bill to be dismissed, Rule 61, p. 391. may be filed nunc pro tunc in discretion of court, Rule 61, pp 394, 395. f^ f^ t t f^ fc. INDEX. 639 EQUITY PRACTICE— Continued. motion to dismiss for want of, when too late, 395. Eeport of Auditor. See Auditor. BcTiew. See Bill of Review. EeyiTor. See Bill of Revivor. Sales of infant's estate, 449, 453. of mortgaged premises of infants, and persons rf,on compotes mentis, 459, 461. of estate of tenant for life, 453, 454. of decedent's real estate to pay debts, 461, 467. of equitable titles, 467, 469. of property of idiots and lunatics, 473, 474. in partition cases, 475, 476. mechanics' liens, decree of sale and distribution, 480. decrees confirming, 440. Satisfaction of decree, effect of when made by one defendant, 442. clerk may enter, by order of plaintiff's attorney, 202. See Decbbb ; Judgment. Subpoena, Writ of, proper process in first instance. Rule 5, p. 371. form of, 372. not to issue untU bill filed. Rule 6, pp. 372, 373. may be tested in name of any justice, 373. to be served by marshal or deputy. Rule 10, p. 373. how served. Rule 7, p. 373. how served on infant, 373, 374. on lunatic, 374. where defendant has no family, 374. return of. Rule 8, p, 374l renewal of. Rule 9, p. 375. Supplemental Bills may be filed by leave. Rule 49, pp. 400, 401. what constitutes supplemental matter, 400, 401. not necessary to set forth statements of original bill, 401. at what time it should be filed, 400, 401. when filed without leave, how objection to be taken, 401. subpoena to answer not required unless new parties made, 401. Supplemental Answers, application for leave to file, how made, 401. when application allowed, when not, 401, Testimony. See Depositions ; Evidence. Titles, Equitable, may be sold, 467, manner of proceedings for sale of, 467, 468. of infants may be sold to pay debts of ancestor or devisor, 468. may be sold to satisfy judgments or decrees, 468, 469. Verification of bill, answer or petition. Rule 88, p. 357. Witnesses. See Depositions; Testimony. Writs. See Fieri, Facias ; Subpoenas. EVIDENCE, admissions and declarations, 168. agency, in cases of, 168. auditor, before. See Auditor, 640 INDEX. EVIDENCE— Continued. bills of particulars, when proof restrained to, 169. burden of proof, 169. conditional reception of, 174. criminal cases. See Criminal Procedure. cross-examination, limits of, 172, 173. depositions as, 169. See Depositions. documentary. See Books and Writings. documents, rules of, as to, 170. See Documents. ejectment, rule as to proof in, 52. equity, evidence in. See Equity Practice. extradition, in cases of. See Extradition. experts, 170. falsus in uno, 175. fraud, when evidence of like acts of same party admissible to prove fraudulent intent, 168. handwriting in, cases of, 170. impeaching own witness, 170. intent, 168, 171. irrelevent, admission of unobjected to, not ground for admitting other irrelevent testimony to rebut, 168. judicial notice, 171. leading questions, 171. letter, mailing of, competent to raise presumption of delivery, 172. memoranda made in usual course of business, 168. of public oflScer, 168. of transactions, when admissible in aid of oral testimony, 168. must be contemporaneous with facts ' and made by persons having knowledge thereof, 168. party, cross-examination of, 172. quality of goods, when evidence of like articles sold to another admissible, 168. reasonable time, when evidence as to, a question of law and when of fact, 172. receipts, how far may be contradicted, 172. reopening case to let in, 173. res gestse, 168, 169. shop books, 168. statute of limitations, new promise, when question of law and when of fact, 172. sur-rebuttal, right of, 173. usage, not admissible to contradict rule of law, 172. or legal effect of contract, 170. or unambiguous terms in, 172. variance, objection on ground of, when to be taken, 172. See Affidavits ; Books and "Writinqs ; Criminal Pro- cedure ; Depositions ; Witnesses. EXCEPTIONS, at law, how taken, Bule 61, p. 184. INDEX. 641 EXCEPTIONS— Continued. See Bills of Exceptions. to answer, and to report of auditor. See Equity Practice. EXECUTION, Of Judg'ments, issued byjustices of the peace, marshal may levy, 15. summary proceedings against marshal for failure to pay over small sums, 15. may be sued out by attorney, 36. to issue unless judgment superseded, Rule 91, p. 220. proceedings on execution considered as in the suit, 220, 221. suit does not terminate with judgment, 221. no stay of, on final judgments, 221. sureties discharged, if stay without their consent, 221. may issue at any time during life of judgment. Rule 92, p. 221. fieri facias, form of. Rule 96, p. 221. what may be levied on under, 222, 223. fiabere facias, form of. Rule 93, pp. 221, 222. retorno habendo, form of. Rule 95, p. 222. special writs may issue when necessary, Rule 94, p. 222. exemption law, 223, 224. waiver of, inoperative, 224. exempt property, remedy when levied on, 224. what other property may not be taken, 224, 225. writ, issue of, 225. lien of fi. fa., 225, 226. landlord to be paid before removal of goods, 226. process to issue to succeeding marshal, 227. sale, time of making, 227. fraudulent, 228. what right and title passes, 227, 228. proceeds of sale, application of, 228. return, Rule 91, p. 228. ■ may be made after return day, 228. what it should state, 228. Of Decrees. See Equity Practice ; Decree. EXECUTION AGAINST THE PERSON, capias, provisions of R. S. D. C, sec. 794, p. 231. defendant must have disposed of his property, 231. or removed or intend to remove property from District, 231. there must be intent to hinder and delay payment of debts, 231. defendant may come before court on habeas corpus, 231. and call upon plaintiff to show cause of imprisonment, 231 . either party may demand a trial by jury, 231. court shall direct issue on the afildavits filed," 231. jury to be impanelled and sworn, 231. female persons exempt from imprisonment, 231. also non-residents for debt contracted out of District, 231. debtor not to be admitted to bail during trial, 231. 81 642 INDEX, EXECUTION AGAINST THE PERSON— Continued, by justices of the peace. See Justices of the Peace, in criminal cases. See Criminal Procedure. by police court. See Police Court. EXECUTORS AND ADMINISTRATORS, foreign, suits by, 48. not qualifying, to be omitted as parties, 49. suits on bonds of, 26. See Equity Practice ; Suits. EX CONTRACTU, actions. See Pleading. EX DELICTO, actions. See Pleading. EXTRADITION. See Oeiminal Peocbdure. FALSE CLAIMS, against United States, 4. supreme court D. 0. has jurisdiction in, 4. may be brought by any person, 4. but at sole cost of such person, 4. to be brought in name of United States, 4. suit not to be withdrawn without consent of judge or district attorney, 4. FEES, of clerk payable immediately after service performed,!!. collection of, to be by rules prescribed by court, !1. clerk to, make semi-annual report, of, !!. compensation of clerk and expenses to be paid out of, 1!. balance of, to be paid into United States Treasury, !1. table of, to be exposed to public view, 11, 12. clerk of police court not to charge, 347. marshal may demand, in advance, 15. of marshal, prescribed by R. S. D. C, sees. 897, 9!!, and R. S. U,. S., sees. 828, 829, p. 85. of marshal of police court, 348. of witnesses, 206, 207. for copies of court papers. Rule 85, p. 208. docket, of attorney, R. S. U. S., sec. 824, p. 208. of printers, 209. of constables, 264. trustees, table of commissions to, Rule 100, p. 505. of auctioneers, Rule 125, p. 248. FEMES COVERT, saving as to. See Limitations of Actions. See Husband and Wipe ; Makkibd Women, INDEX. 643 FIERI FACIAS, form of, Rule 96, p. 221. what may be levied on under, 222, 223. lien of, 225, 226. may issue for fines in criminal cases, 320. on decree in equity for payment of money, Rule 82, p. 442. See Execution. FINAL DECREE. See Appeal ; Equity Practice. FINAL PROCESS. See Decree ; Execution ; Judgment. FINES, ' in criminal cases, fi. fa. inay issue for, 320. police court may punish by, 346. See Penalties. FOLIO, meaning of, 209. FORCIBLE ENTRY OR DETAINER, complaint and summons issued by justice of the peace, 54, 55. summons, how served, 55. defendant pleading title shall recognize in reasonable sum, 55. plaintiff shall recognize to enter suit and pay costs, 55. plea of title to be in writing, Rule 12, p. 56. form of. Rule 12, p. 56. plea not in conformity with rule to be treated as a nullity. Rule 12, p. 56. cause to be docketed and placed on trial calendar, Rule 12, p. 56. plaintiff to file declaration during first five days of term. Rule 12, p. 56. damages and intervening rent, general demand sufficient for assessment of, Rule 12, p. 56. defendant not pleading title may appeal to supreme court D. C, 56, 57. appeal to be prosecuted as in other cases, 57. undertaking with surety to be given, 57. otherwise, appeal dismissed, 57. restitution, writ of, may be compelled by mandamus, 57. magistrate no discretion as to time of appeal, 57. trial of appeal, assessment of damages, 57. not an action of ejectment, 57. equitable title, plaintiff showing, may recover, 57. tenancy is deemed to be by sufferance, 58. certiorari, on certifying to general term motion to quash, under- taking cannot be required of defendant, 58. order striking out plea of title, appeal lies from, 58. amended plea may be made, when cause remanded, 58. &4A INDEX. FOREIGN ATTACHMENT. See Attachment ; Gaenishment. FOREIGN COMMITTEES OF LUNATICS, may sue in courts of District of Columbia, 48. FOREIGN CONSULS, powers over disputes between seamen, 337. FOREIGN CORPORATION, can only be sued in District of Columbia if it has established place of business, 49. and when process can be served on agent, 49. FOREIGN EXECUTORS AND ADMINISTRATORS, imay sue in the District of Columbia, 48, 49. letters testamentary suflScient proof of authority, 48. security may be required from, on petition, 49. FOREIGN GUARDIANS. may sue in District of Columbia, 48. FOREIGN PROBATE, of instruments, 121, 123. FORFEITURES, limitations as to. See Limitations of Actions t under navigation laws, how prosecuted, 325. FORMA PAUPERIS, suits in, deposit dispensed with, 45. FORMS, Appeal to general term, undertaking. Rule 89, p. 213, in patent cases, petition, Rule 1, p. 514. Attachment; summons, Rule 16, p. 59. undertaking, Rule 15, p. 60. and garnishment, writ of, Rule 15, p. 60. ■ discharge of, defendant's undertaking, Rule 15, p. 61. on judgment, writ of. Rule 96, p. 229. Documentary Evidence, notice to admit, Rule 33, pp. 109, 110, consent to admit. Rule 33, p. 110. special admission, form of, 110. Execution, attachment, Rule 96, p. 229. fieri facias, Rule 96, p. 221. habere facias. Rule 93, pp. 221, 222. retorno habendo. Rule 95, p. 222. Forcible Entry or Detainer, plea of title, Rale 12, p. 56, Judgment, Rule 67, p. 189. scire facias, writ of. Rule 98, p. 232. Oath of attorney. Rule 1, p. 34, of poor convict, 840. Pleadings at law, declaration, 104, 106, notice to plead, Rule 13, p. 95, INDEX. 645 POKMS— Continued. demurrer, Rule 31, pp. 102, 108. plea, commencement and conclusion of, 106. puis darrein, aflldavit, Rule 32, p. 103. replication, 106. rejoinder, 107. joinder in issue, Rule 30, p. 101. Pleading in Equity, bill introductory part of, Rule 16, p. 364 subpoena, writ of. Rule 5, p. 372. replication, 394. Poor Convicts, application for discharge, 340. mandate to jailer, 340. oath of convict, 340. certificate of discharge, 341. Process, signature of assistant clerk, 84. order of publication. Rule 20, p. 88. subpoena, writ of, 372. EepleTin, declaration, 68. undertaking, 69. writ of, 69. Trial, notice of. Rule 36, p. 128. note of issue, Rule 87, p. 129. verdict for plaintiff. Rule 51, p. 176. verdict for defendant. Rule 51, p. 176. Witnesses, non-resident, commission to take depositions of. Rule 63, p. 123. in equity, general interrogatory to, Rule 67, p. 431. FORMS OF ACTION, common-law classification retained, 18. some common-law forms obsolete, 19. what forms may be resorted to in practice, 19. What forms and rules Will guide practitioner, 19. special proceedings in use, 19, 20. dower unde nihil habet, 20. when this action lies, 20. pleadings and practice in, 20. replevin, 68. ejectriient, 51. FRAUD, when equity Will relieve against, 354, GARNISHMENT. See Attachment. GENERAL ISSUE. See Pleading. GENERAL TERM, when held. Rule 2, p. 37. any two justices to form a quorum in, 38. 646 INDEX. ' GENERAL TERM— Continued. division of opinion in, reargument, 38. three general terms to belield annually, 39. may regulate periods of holding terms, 39. may order two terms of circuit court at same time, 40. may order sittings of circuit court for trial of criminal cases, 268. Appeal to. See Appeal. Appeal from, to Supreme Court of United States. See Appeal. See also Supreme Couet of the District of Columbia. GRAND JURY. See Jury. GUARDIAN, foreign. See Foreign Guardian. ad litem. See Infant ; Equity Practice. and committee of lunatic. See Idiots and Lunatics, HABEAS CORPUS, WRIT OF, may be issued by any justice at chambers and in vacation, 78. is a civil proceeding, 81. provisions of R. S. U. S., title Habeas Corpus, apply to this court, 79. in extradition cases. See Criminal Procedure. applications for, how made, Kule 18, p. 75. See also p. 79. to be by complaint in writing setting forth the facts, 78, 79. and signed by person making application, 79. must be verified, 78, 79, shall state who has custody of party detained, 79. and allege, if known, by what authority detained, 79. petition may be filed by person other than the party detained, 79. previous decision under one writ no bar to another writ, 81. what is not restraint of personal liberty, 79. mere moral restraint not enough, 79. must be actual imprisonment, 79. allowance and direction of, 79. not granted of course, but on probable cause shown, 81. to whom to be directed, 79. return to be made within three days, 79. and be signed by person to whom directed, 80. exception when party beyond distance of twenty miles, 79, 80. party making, to state true cause of detention, 80. false or evasive return, respondent may be committed for con- tempt, 80. and if in court may be directed to answer at once, 80. body to be produced, 80. or return to state why not, 80. amending return, 80. failure to return, attachment may issue, 80. or make counter allegations, 80. INDEX. 647 HABEAS CORPUS, WRIT OF— Continued. applicant or party restrained may deny facts of, but must be under oath, 80. on traverse of return, new matter averred to be deemed at issue, 81. hearing of the cause, shall be within five days after return, 80. unless petitioner requests longer time, 80. hearing and determination to be summary, 81. What can be inquired into on hearing, 81. when prisoner discharged for informalities may be committed de novo, 81. effect of discharge, 81. appeal, when allowed, 81, 82. either party may appeal, 82. general term to review case on merits, 82. to Supreme Court of the United States, 82. HANDWRITING, , proof of genuineness of, 170. HEARING, See Equity Practice. on habeas corpus, 80, 81. on appeal. See AppeaL ' preliminary, in criminal cases. See Oriminal Procedure. HIGH SEAS, crimes on. See District Court of United States ; Supreme Court of the District of Columbia. HUSBAND AND WIPE. See DivoBCB ; Femes Covert ; Married Women. IDIOTS AND LUNATICS, when seized of lands in trust or otherwise bound may be decreed to convey, 4B5. under Maryland act 1773, ch. 7, sec. 1, land may be sold immedi- ately, 456. manner of decreeing sale, 459. this relief extended to equitable titles, 460. power of court over persons and estates of, 471. writ de lunatico inquirendo discretionary with court, 4/72. practice in obtaining, 472. committee, appointment of, 472. who may be appointed, 472. maintenance of, amount necessary for, 472. on death of, jurisdiction of court ceases over estate, 472, exception as to accounting by trustees, 472, confinement of, court may direct, 472, 473. release of, from confinement, court may order, 473. ■ may be admitted in hospital for insane, 473, 648 INDEX. IDIOTS AND LUNATICS-Continued. cannot be secluded in invita until found insane by jury of inquiry, 473. property of, may be sold for their support, 473. statutory provisions as to sale of property of, 474, 475. sales to be confirmed by chancellor, 474. bonds to be given with suflScient security, 474. proceeds of sale to be applied for benefit of, 474. amount unapplied, at death of, to belong to legal representatives, 474. IGNORANCE of law in criminal cases. See Criminal Procedure. IMPEACHING WITNESS, party cannot impeach his own, 170. may show that witness was mistaken, 170. may for this purpose call other witnesses, 170. may examine him to correct statements, 171. IMPRISONMENT, supreme court of the District of Columbia may punish contempts by, 5. restriction on this power, 5. police court may punish contempts by, 346. in criminal cases. See Criminal Procedure. IMPERTINENCE (in Pleading), in equity, what is, 366, 367. matter may be, without being scandalous, 367. special care to be taken before expunging, matter for, 367. See Equity Practice. INDEMNITY. See Bonds and Undertakings. INDICTMENT. See Criminal Procedure. INFAMOUS CRIMES. See Criminai, Procedure. INFANTS, service on, must be made personally, 373. on general guardian insufficient, 373.^ when by publication, 373. in purely personal demand, service must be personal, 373. discovery, to aid in personal service, 373. appointing guardian ad litem to, 376. when service on infant unnecessary on guardian ad litem, 374. appearance of. Rule 85, p. 376. can only be by guardiaji ad litem, 376. estates of. See Equity Practice. INFERIOR COURTS, supreme court of the District of Columbia ha» appellate jurisdic- tion oviBr, 5, INDEX. 649 IN FORMA PAUPERIS, suits in, Rule 8, p. 45. INFORMATION, prosecutions in police court to be by, 347. what is a sufficient, 347, 348. See also Admiralty ; Criminal Pbocbduee. INFRINGEMENT. See Patent Practice. INJUNCTION. See Equity Practice. INSANE HOSPITAL, justices of court may give certiflcates of admission to, 9. INSANITY, as a defence in criminal cases, 314, 315. See Criminal Procedure ; Idiots and Lunatics. INSTANCE CASES. See Admiralty. INSOLVENCY, of defendant in some cases ground for appointment of receiver, 417. See Equity Practice. INSTRUMENTS IN WRITING, interpretation of, belongs to court and not to jury, 175. exceptions to this rule, 175. See Books and Writings ; Evidence. INTENT, unlawful, evidence of, 315. presumption of, 315. ignorance of law not evidence of want of, 315. See Criminal Procedure ; Evidence. INTEREST, unlawful, limitations as to recovery of, 27. on judgments, 200. See Judgment ; Limitation op Actions ; Usury. INTERPLEADER, Bill of. See Equity Practice. JOINDER OF ISSUE. See Pleading ; Trial. JOINDER OF CAUSES OF ACTION. See Pleading. JUDGES. See Justices ; Police Court ; Supreme Court District of Columbia. ' 82 650 INDEX. JUDGMENT, of special term, final on appeal from justices of peace, 190. rule applies to landlord and tenant cases, 190. to be awarded without distinction of debt from dalnages, llule 67, p. 189. for plaintiff, when, Rule 68, p. 188. for defendant, when. Rule 68, p. 188. administrators and executors, judgments against. Rule 49, p, 198. how rendered on auditor's report. Rule 80, p. 198. provisions of Maryland act 1798, p. 198. Arrest of, saving as to, 24, 25. provisions of Stat. James I, ch. 16, sec. 4, pp. 24, 25. 4 notes of decisions under that statute, 25. motion for, when to be filed. Rule 66, p. 186. motion may be filed at same time as for new trial, Rule 66, p. 186. judgment may be arrested though new trial refused, Rule 66, p. 186. motion for, refused, judgment on verdict. Rule 66, p. 186. motion for, must state reasons. Rule 66, pp. 186, 187. ,and be of record on minutes. Rule 66, p. 187. motion for can only be maintained for defect apparent on rec- ord, 187. evidence no part of record for this purpose, 187. verdict to be upheld by every fair intendment, 187. Maryland act of 1763, ch. 23, sec. 2, p. 187. judgment not arrested because juror had matter of fact for trial, 187. Award, judgment on, Rule 81, p. 199. Bonds, judgment for penalty of, 196. Constables, judgments against, 200. Costs, when judgment shall be without, Rule 79, p. 196. to what cases Rule 79 applies, 196, 197. judgment for, what to include, 201, Death of Parties, judgment in case of, 201. Default, Judgment by, for non-appearance of defendant, Rule 69, p. 190. may be set aside, when and how, .Rule 69, p. 190. for non-appearance of defendant. Rule 69, p, 190. for want of plea, motion to strike out is under. Rule 69, p. 190. order;vacating, not appealable; 190. otherwise when court is without jurisdiction to vacate, 190. in suits on verified open account, 190. to be, in such case, without inquiry of damages, 190. aflldavit in such cases, how verified, 190. on attachment, where goods in hands of third persons, 191, where credits have been attached, 190. INDEX, 651 JUDGMENT— Continued. in proceedings in rem against absent defendant, 191. when, will be refused against one of two joint promisors, 191. against executor is admission of assets, 191. in actions ex contractu, Rule 73, p. 191. seventy-third rule not unconstitutional, 192. afadavit of plaintiff under seventy-third rule, decisions as to necessary averments, 192, 193. defendant's affidavit, what to contain, 193. . when declaration contains but one cause of action and part of sum claimed is admitted, 193. by whom affidavit may be made, 193. may be made on information and belief, 193. jurat, in what case court will take judicial notice of, 193. against several defendants, may be taken against such as fail to appear. Rule 74, p. 194. in suits for unliquidated damages, when inquiry may be awarded. Rule 75, p. 194. how inquiry to be executed. Rule 75, p. 194. inquiry under Maryland act of 1794, p. 194. on bonds, &c., to be for sum due in equity, 195. but confined to cases of default, confession, and demurrer, 195. does not apply to cases heard on agreed facts, 195. in replevin, how taken, Rule 76, p. 195. in ejectment, how taken. Rule 77, p. 195. how far description in declaration sufficient to entitle plaintiff to, 195. Final Jadg'meut, judgment is final on appeal from justices of the peace, 190, 259. and in cases arising under landlord and tenant act, 190. no supersedeas or stay of execution on, 190. appeal from, of special term to general term, 190. Interest on Judgments, to be six per cent, per annum, 200. same rate on judgments in tort, 200. Lien of, on land, no statutory provision as to, 201. but established by usage, 201. not lost after levy, by stay of proceedings, 201. otherwise as to personal property left in hands of defendant, 201. no lien on equitable titles, 201. Married Woman, when to be enforced against her separate estate, 200. Partners, general and special, enforcement and effect of, against, 200. Power of Attorney, to confess prohibited, 201. Rent, for, with tacit lien, how enforced, 200. EeTcnue Officers, when to be granted against at return term, 200. in suits upon debentures, 200. to recover duties, 200. 652 INDEX." JUDGMENT— Continued. Satisfaction of, entered by clerk on order of plaintift's attorney, 202. may be entered on plaintift's order against wishes of attorney, 202. and although attorney is employed upon contingent compensa- tion, 202. ^ I clerk cannot make absolute entry, if satisfaction conditional on payment of costs, 202. when satisfied by surety, to be assigned to latter, 302. applies only when payment is made by surety, 202. and to judgments, not to decrees, 202. and to original debtor only, 202. Scire Facias, on. See Scire Facias. Set-oiF, judgment on verdict upon plea of, Rule 78, p. 196. mutual judgments may be set-off, 200. execution may issue ftr balance due, 200. Supreme Court D. C, all judgments are as of, 188. conclusive on defendant in State court, when, 190. Yacating, motion to vacate, Bule 88, p. 203. when will not be entertained. Rule 88, p. 203. cannot be niade after execution executed. Rule 88, p. 203. exception where defendant had no notice. Rule 88, p. 203, must be in writing, Rule 88, p. 293 grounds of, must be sworn to. Rule 88, p. 203. and supported by affidavits. Rule 88, p. 203. copy of to be served on opposite party, Rule 88, p. 203- affldavits, when necessary, 203. counter, when admissible, 203. during the term, 203. after term has expired, 203. order vacating, appeal from, when it lies and when not, 203, notes of decisions as to, 204. reinstatement of cause, 204. JUDICIAL NOTICE, of jurisprudence and laws of States, court will take, 171. and of seal of notary public, 171, 193, 194. and of things in common knowledge, 171, but not of railroad time, 171. or frequency of mails, 171. JURAT. See Oaths. JURATORY CAUTION. See Admiealty. JURSIDICTION (Supreme Court of District of Columbia), Amount in controversy, 2. if case within jurisdiction of justices of peace, must exceed fifty dollars, 2. INDEX. 653 JURISDICTION (Supreme Court D. C.)— Continued. Appellate. See Appeal. on appeal from the Commissioner of Patents, powers same as those of circuit court of U. S., 4. over police court, 5. justices of the peace, 5. Bankruptcy, jurisdiction conferred by R. S. D. C, sec. 765, taken away, 4. Contempts, power of court to punish, 5. what is and what is not, 5; Copyright Laws, cases under, 3. Criminal. See Criminal Procedure. DiTofce, has jurisdiotion of applications for, 3. See Equity Prac- tice. False Claims ag'ainst United States, jurisdiction in prosecutions for making, 4. General, has same jurisdiction as circuit courts of the United States, 1. has cognizance of crimes and offences in the District of Co- lumbia, 1. of suits at law and in equity between residents, 2. of suits in which the United States are parties, 2. of seizures, penalties, and forfeitures under laws of the United States, 2. any one justice may hold criminal court, 2. Vested with all judicial powers conferred by Constitution, 2. this jurisdiction not affected by revision of statutes, 2. Is a court of the United States, 2. general laws applicable to such courts applicable to this court, 2. judgment of, conclusive upon defendant in any State, 2. except for cause which would set it aside in the DistriGt of Columbia, 2. differs in form and jurisdiction from district and circuit courts, 2. possesses all powers and jurisdiction of those courts, 2. and in addition powers not vested in those courts, 2. lifame, over petitions for change of, 5. Kon-Residents, no original process against, except as specially pro- vided, 3. may be proceeded against, as in Maryland courts. May 3, 1802, p. 3 ' Oaths, power to administer, 5. Bales of Court, power to adopt, 6. See Rules. JURY, Challenge, to be tried by court without triers, 157. time for, 157. neither party has right to, after jury sworn, 157. court? may investigate as to inipartiality at any time, 157. and may withdraw case from jury, 157. 654 INDEX. JURY— Continued. right to, is common-law right, 157. not to be taken away but by statute, 157. each party has right to interrogate juror as to qualifications, 157. extent of this right, 157. court to say what questions are admissible, 158. juror not compelled to answer question tending to his disgrace, 158. or to his disadvantage, 158. witnesses may be called to prove ground of challenge, 158. exception lies to exclusion of evidence, 158. interest, what disqualifies, 158. pecuniary, not necessary to show, 168. when does not disqualify, 158. relationship a ground of challenge for principal cause, 158. • disqualification extends only to ninth degree, 158. dependence of juror on a party, ground of challenge, when, 158. as employe or tenant, 158. abolition of distress for rent does not change the rule, 158. control by party in interest disqualifies, 159. dependence of party on juror ground of challenge to the favor only, 159. so if intimate acquaintance, 159. opinion, having an, does not disqualify in a civil case when, 159. on incidental question when it does not disqualify, 159. prejudice ground of challenge to the favor only, 159. litigation implying ill-will disqualifies, 159. otherwise not, 159. exception lies to error in trying challenge, 159. but peremptory challenges must be exhausted, 159. disqualified juror sitting not generally ground to set aside verdict, 159. peremptory, three only allowed, 160. when interposed in civil cases, 160. talesmen previous service as juror within a year disqualifies, 160. Circuit Court, jury for, 152. twenty-six persons whose names first drawn, 152. Collusion, by clerk, penalty, 155. by ofiicer, 155. Compensation of Jurors, same as in district and circuit courts, 156. two dollars per diem, act June 30, 1877, p. 156. Criminal Term, first twenty-three drawn to be grand jury for, 152. next twenty-six to be petit jury for, 152. capital cases, if all names drawn, talesmen to be summoned, 152. INDEX. 655 JURY— Continued. Drawing Jurors, clerk to draw names, 152. seal of jury-box to be broken ten days before term, 152. Exempt, who are, 156. exemption a personal privilege, not disqualiflcation, 156. Excused, who may be, 156. Failure to Attend, deficiency how supplied, 153. penalty, 154, 155. List of jurors to be made by designated oflacers, 151. Names, to be placed in jury box, 152. jury-box to be in custody of clerk, 152. to be written on separate and similar pieces of paper, 152. papers, how folded, 152. to be drawn ten days before term, 152. additional, when drawn, 153. when all drawn, talesmen how summoned, 153. Panel, incomplete, to be supplied by talesmen, 153. Qualifications of jurors. must be citizens of the United States, 155. residents of District of Columbia, 155. over twenty-one and under seventy-five years of age, 155. and never convicted of felony or misdemeanor involving moral turpitude, 155. Bace or Color, jurors not to be excluded on account of, 155. Struck Jury, when may be had and how obtained, 156. may be demanded as of right by either party, 157, provisions of Maryland act 1798, ch. 94, sec. 2, as to, 157. Summoning, marshal to summon persons to supply deficiencies, 153. to summon talesmen, 153. See Talismen. if all names are drawn, to summon grand and petit jurors, 154, 155. to summon persons to fill vacancies, 154. to notify persons drawn, 154. notice, how served, 154. return of marshal, how made, 154. Talesmen, how summoned, 153. may be challenged if have served within a year, 153, 160. to be summoned when panel incomplete, 153. Tacancies, how filled, 154. See Ceiminal Pkocedube ; Trial by Jury. JUSTICES (of Supreme Court of District of Columbia), number of, 7, 8. associate, increased from three to five, 7, 8. appointed by President, by and with advice and consent of Senate, 8. hold offices during good behavior, 8. . order of precedence, 8. 656 IHDEX. JUSTICES (of Supreme Court D. C.)— Continued, salary of chief justice, 8. of associate justices, 8. oath of oflBce, form of, 8. practicing law, justices prohibited from, 8. resigning, entitled to salary for life, when, 8. have powers of judges of circuit courts, 9. one justice may hold special term with powers of district courts, 9. ofilcial oaths may be administered and certified by, 9. shall give certiflcates for entrance to Insane Hospital, 9. shall direct taking depositions in suits pending elsewhere, 9. to take bail in criminal cases, 9. See Ckiminaii Pbocbdure. extradition, duty of chief justice in cases of, 9. See Cbiminal Pbocedurb. JUSTICES OF THE PEACE, Appeals from, debt or demand must exceed five dollars, 256. will not lie from verdict of a jury, 256. exception when justice had no jurisdiction, 256. undertaking to be given except by District, 256. within what time to be given, 256, 257. justice no discretion, to allow appeal after prescribed time, 257. stay of execution without appeal. Rule 107, p. 257. approval of security. Rule 108, p. 257. papers to be filed in clerk's office, 257. if justice refuse or neglect to file, certiorari will He, 257. justice disregarding certiorari, motion for contempt. Rule 104, p. 257. cause to be docketed in supreme court District of Columbia, 257, 258. appellee to be summoned, 257, 258. how cause to be titled on docket. Rule 111, p. 258. appellee not appearing, court may proceed. Rule 112, p. 258. proceedings where appellant fails to pay marshal's fee for serving summons. Rule 109, p. 258. appellant failing to prosecute, appeal, 258. appellee may make deposit for costs. Rule 110, p. 259. may move for affirmance of judgment, Rule 110, p. 259. or''have trial on merits. Rule 110, p. 259. hearing of, shall be in summary way, 259. judgment of special term final, 259. when tried on merits, how heard, Rule 113, p. 259. jury, trial shall be by, at election of parties, 259. when appeal not prayed to next term, not to be dismissed, 259. Appointment of, appointed four years, 250, 260, 261. by President, with advice and consent of Senate, 250, 261. INDEX. 657 JUSTICES OF THE PEACE— Continued. shall give bond approved by supreme court District of Colum- bia, 262. shall take oath for faithful discharge of duties, 250. Bond to be given by justice of the peace, 262. Certiorari, for neglect to file appeal, Rule 104, p. 257. in cases of concurrent jurisdiction, Rule 114, p. 260. Change of Venue, when may be had, 252. Copy of summons served on defendant, Rule 116, p. 252. Costs, non-residents to give security for, 252. bill of, to be fixed by supreme oouii District of Columbia, 260. Criminal Jurisdiction, justices not to have, 251. Duties of, general powers and duties, 250. docket, justices shall keep, 252. penalty for not keeping, 252. judgment, copy to be furnished when required by parties, 252. appeal, justice to file in clerk's office original papers and copy of docket entries, 257. certiorari for neglect to file, Rule 104, p. 257. . shall deliver dockets to clerk on resignation or removal, 260. penalty for not delivering docket to clerk, 260. Execution of justices of peace may be levied by marshal or depu- ties, 254. property subject to, 254, 255. subject to exemptions of R. S. D. C, sec. 797. pp. 254, 255. upon copy of judgment, 255. not to be satisfied without plaintiff's receipt, 255. stay of, how entered, 255. no stay of, for wages of servant or common laborer, 256. or on judgment for less than five dollars, 256. in such cases execution will issue immediately, 256. shall issue, on request of plaintiff after expiration of superse- deas, 256. Fees, in civil suits, 260. court shall fix and determine bill of, 260. Jurisdiction, in all civil cases where amount does not exceed flOO, p. 250. except in cases involving title to real estate, 250. or actions to recover damages for assault or assault and bat- tery, 250, 251. or suits for malicious prosecution. or actions against justices of peace or other officers for mis- conduct in office, 251. or actions for slander, verbal or written, 251. creditor may not give false credit so as to bring suit within, 261. incidental, justice may have, 251. notes of decisions upon jurisdiction, 251. criminal, justices of peace cannot exercise, 251. 83 658 INDEX. JUSTICES OP THE PEACE— Continued. Judgments of, 252, 253. to bear interest from date, 253. may be opened up to four days after rendition, 253. may be renewed by scire facias, 253. how made a lien, 255. Jurors, in trials before, qualifications of, 253. oath of, 254. Jury, when trial by, may be demanded, 253. Non-Besidents, to give security for costs, 252. Original Writs, may be issued by in civil cases, 252. police court, justices may issue warrants for, 251, 252. Bemoyal of Justices, 260. justices on removal to deliver dockets to clerk, 260. penalty for neglect of this provision, 260. Trial by Jury, either party may demand, 253. venire, how issued, 253. jurors, qualifications of, 253. oath of, 254. . talesmen, constable directed to summon, 254. jury shall sit together and hear cause in public, 254. constable's oath on delivery to, 254. verdict to be given publicly, 254. payment and execution thereon, 254. LAND, Uen of judgment on, no statute in force providing for, 201. established by ancient and uniform usage, 201. not lost, because plaintiff orders stay on fieri facias, 201. judgment not a lien on an equity in, 201. limitations as to, 31, 32. LANDLORD AND TENANT, in ejectment, landlord admitted to defend, 52. tenant's attornment to stranger void, 52. tenant can only defend by showing title in himself, 53. attachment for rent, 64, 68. forcible entry or detainer, 54, 57. landlord to be paid rent before removal of goods on execu- tion, 226. See Attachment ; Forcible Entry or Detainer. LARCENY, may be committed in games of chance, when, 315. LAST INTERROGATORY, to witness, in equity proceedings, form of, 431. LEVY. See Execution ; Judgment. LEX FORI controls statute of limitations, 29. INDEX, 659 LIBEL, justices of the peace have no jurisdiction over cases of, 3. LIBELS AND INFORMATIONS. See Admiralty. LIENS, mechanics, 477-483. See Mechanics' Liens. limitations as to, 27. of judgment. See Judgment. equity will enforce, 353, 354 See Land. LIMITATIONS OF ACTIONS, Absentees, after debt contracted, not to have benefit of statute, 23. act not to prejudice person leaving sufQcient effects, 24. provisions of Mg,ryland act 1715, ch. 23, sec. 5, p. 24. provisions of Maryland act 1765, ch. 12, sec. 2, p. 24. return of, statute to run from time of, 24. acts of 1715 and 1765 to be taken together, 24. and construed against debtor absent when action accrues, 24. secret or concealed presence not enough, 24. but such that writ may be served by ordinary diligence, 24. 24. Actions, to what, limitations apply, 21, 22. time within which to be brought, 22. disability, saving as to persons under, 22. repeal of, saving as to'persons beyond seas, 22. notes of decisions, 23. Actions as to Bealty, 31, 32. disability, saving as to persons under, 32. Administrators, suits on bonds of, to be commenced within twelve years from passing, 26. same limitation as to testamentary bonds, 26 . disability, proviso as to persons under, 26. Amendmeut, new cause of action introduced by, 30. ■ equivalent to new suit, as of date, 30. action barred, if statutory, period of limitation passed, 30 Arbitrators, cause referred to, 26. statute not to run when party dies before award, 27. or if arbitrator refuse to act, 27. or when award has been set aside, 27. Beyond Seas, saving as to persons, repealed, 32. Bills and Specialties, not good and pleadable after principal cred itor and debtor dead twelve years, 25. or thing in action above twelve years' standing, ?5. saving in favor of the government, 25. saving in favor of persons under disability, 25. judgments must be of record, 26. of justices of peace barred after three years, 26. qusere as to effect of section 1023 R. S. D. C, 26. 660 INDEX, LIMITATIONS OF ACTIONS— Continued. meaning of " twelve years' standing," 26. Maryland act 1765, ch. 23, sec. 6, does not apply to chancel^ suits, 26. or to mortgages, trust depds, or equitable liens, 26. Bonds, administration and testamentary, 26. of guardians, 26. marshal, 14, 28. when pleadable, 30, 31. Customs and Eeyenue Laws, suits under, 29. Decedents' Estates, claims against, 27. executor or administrator to retain amount of disputed claim, 27. claim barred if not sued within nine months, 27. act may be pleaded in bar, 27. distribution to be made notwithstanding claim, 27, Disabilities, savings as to persons under, 22, 26, 30, 32. Guardians, suits on bonds of, to be brought within twelve years, 26, bonds to be recorded, 26. and placed on footing with those of executors and adminis- trators, 26. Interest, suits to recover back unlawful, must be brought in one year, 27. Judgment reversed, or arrest of, saving as to, 24. Marshal, suits on bonds of, 14, 28. Mechanics' Liens, notice to be filed during construction or within three months after, 28. suit to enforce may be brought within one year, 28. Merchants' Accounts, exception in favor of, 31. applies to actions of assumpsit, 31. items must not all be on one side, 31. account must concern merchandise, 31. and be between merchants, 31. must be open and running, not liquidated demands, 31. Penalties under United States laws (E, S, U. S., sec, 1047), 28. suits to be commenced within five years after penalty accrues, 28. provided offender be within United States during same period, 28. this provision applies to action of debt, 28. and to informations and indictments, 28. but not when penalty may be death or imprisonment, 28. nor to actions on bonds or penalty therein, 28. penalty defined, 28. whether action is in rem or in personam, 28. fraudulent concealment does not prevent running of statute, 29, See also Obiminal Phocedukb. Sealty, suits as to, 31, 82, INDEX. 661 LIMITATIONS OP ACTIONS— Continued. Bunning of the Statute, against absentees to run from time of return of, 24. arbitrators, when statute not to run, 26, 27. |to run on day after action accrues, 29. vof title does not arrest operation of, 29. JXt disability will not interrupt running of, 30. (jpties cannot be piled one on another, 30. |s in favor of infants and femes coverts, 30. runs against ward as soon as of age,, 30. fraud suspends running of, 30. suspended when no person in esse competent to sue, 30, running prevented by injunction, 30. is suspended by attachment of debt by alleged creditor, 30. runs on breach of duty of trustee, 31. See Trusts. Stockholders, on suits under E. S. D. O., sec. 575, p, 27. Trusts, when held admittedly as such not barred by lapse of time, 31. but statute runs from breach of duty of trustee, 31. or from adverse claim by trustee, 31. whether law of trusts applies as a bar when money collected by attorney, 31. • (For limitations in criminal causes see Cexminal Peocedukb.) LIS PENDENS, in State court, not a bar to suit in supreme court District of Colum- bia, 48. LUNATICS. See Idiots and Lunatics. MAGISTRATES. See Justices of the Peace. MANDAMUS, applications for, how made and heard, Rule 18, p. 75. may be heard in general term in first instance. Rule 18, p. 75. jurisdiction of court to issue writ, 76. rule to show cause not gran table as of course, 76. when it will be refused, 76. petition must disclose what, 7&. attorney not to act as relator, 76. who may bring action for, 76, 77. to executive ofl&cers of government, 77. issue of patent cannot be compelled by, 77. who may not be joined as relators, 77. proceedings on motion to quash, 77. sufficiency of answer by officer of government, 77. Will lie against Secretary of Treasury, When, 77. return, averments of, 77. 662 INDEX. MANDATE, second appeal only brings up proceedings subsequent to. See Appeal. MARINERS, wages of. See Admiralty. MARRIED WOMEN, separate estate of, treated as femes sole, 49. judgment against, 200. when husband may appear for, 376. dower unde nihil habet, action of, 20. table of allowance in lieu of, 505. right of, retained in decree for divorce, 502. judgments to use of, when entered satisfied, 355. answer of, in equity, 389. See DivoKCB ; Husband and Wife. MARSHAL, appointment of, 12, 13. duties and powers same as those of the marshals of U. S., 13. termofofaceof, 13. deputies to be appointed by marshal, 13. removable'by judges at pleasure, 13. what duties they may perform, 13. attorney, marshal and deputies cannot practice as, 13. bond, marshal to give, 13, 14. until given and approved, marshal not qualified, 14, liability on, extent of, 14. suits on, how brought, 14. breach of, what is, 14. to remain after judgment as further security, 14. limitation of suits on, 14, 15. may levy execution of justices of the peace, 15. failure to pay over small debts, 15. may demand his fees in advance, 15. death of, deputies to continue in oflB.ce, 15. • may execute process in his hands when removed, 16. or at expiration of term, 16. party, when marshal or deputy is, process to be issued to coroner, Rule 19, p. 16. process, service of, by. See Execution ; Process. MARYLAND ACTS. See Statutes. MATERIAL MEN, material in buildings. See Mechanic's Lien. in admiralty, suits by. See Admiralty. MEASURE OF DAMAGES. See Damages. INDEX. 663 MECHANICS' LIENS, limitations as to, 27, 477, 480. lien, who may have, 477. to be liberally construed, 477. does not attach, if different security taken, 477. what will not release, 477, 478. notice, time and place of filing, 478. what is a valid, and what not, 478. priority of, exceptions, 479. enforcement of, proceedings, 479. averments of bill, 479. jurisdiction of equity rests upon statute, 479. court has equitable jurisdiction, when, 480. sale, decree and distribution of proceeds of, 480. decree in case of more than one building, 480. joint claimants, 480. suit, time of commencing, 480. parties to, all to be heard before final decree, 480. different, against one building to be -consolidated, 481. survey, in what cases ordered, 481. satisfaction of claim when entered, 481. penalty if not entered, 481, 482. discharge of, by undertaking, 482. judgment at law not evidence against surety, 482, special cases, liens in, 482. .personal property, liens upon, 482, 483, repeal provisions, 483. MERCHANTS' ACCOUNTS. See Limitations of Actions. MESNE PROCESS, capias on, aboUshed in actions ex contractu, 85. in admiralty. See Admiralty ; Process. MESNE PROFITS, in ejectment, plaintiff may proceed for, after expiration of term, 53. bar of statute of limitations in trespass for, 53. See Ejectment. MINUTES OF COURT, Rules 5 and 6, p. 41. See Motions ; Rules. MISJOINDER. See Pleading. MISNOMER. See Pleading. MISTAKE, clerical, in decrees, how amended, Rule 80, p. 440. 664 ESTDEX. MISTAKE— Continued. of law, equity will not relieve against if no fraud, 355. See Amendments ; Equity Pbaoticb. MONEY, account of, to be stated by clerk, 11, 238. paid into court, how deposited and disbursed, 237. statutory provisions, 237, 238. failure of marshal to pay over, 15. of constables to pay over, 264. judgment for specific sum, appeal from. Rule 89, pp. 212, 213. MONEY COUNTS, in declaration, combined, 104, 105. separate, 105. See PLEADiNa. MOTIONS, to be recorded and filed. Rule 101, p. 234. notice of, when requisite, 234 practice according to Equity Rule 4, p. 234. computing of time of, 234, 235. eiiumerated motions, what are, 235. may be heard in general term in first instance. Rule 100, p. 235. when certified to general term, 235, 236. statutory provisions as to, 235. objections should be embodied in one, 236. copies of, serving, 236. relief, how far granted on, 236. renewal of, 236, 237. discretionary with court, 236. on merits, when denied on preliminary objection, 236. when leave for, not granted, 236, 237. appeal will not lie from denial of, if merits not involved, 237. special matters, practice on motions in, 237. MULTIFARIOUSNESS. See Equity Practice. MURDER, inability to resist wrong, qusere, whether defence, 315. insanity, barbarity of killing no evidence of, 315. committed within District of Columbia, construction of R. S. U. S., sec. 5339, p. 315. . when felonious blow struck, though death occur elsewhere, 315. one joint defendant may be found guilty of, 318. and another of manslaughter, 318. body of convict may be delivered for dissection, 319. rescue of, penalty for, 319. See CBrMiNAL Peocbduee. INDEX. 665 NAME, petition for change of, court may entertain, 6. maiden, decree of divorce may restore, 503. fictitious, fraudulent proceedings in, void, 47. by which party is known, action may be brought in, 47. misnomer, 300. See also Abatement; Pleading. NATIONAL BANKS, certificates of organization of, admissible in evidence, 114. NAVIGATION LAWS, offences against, when summary trials may be had, 324. R. 3. U. S., sec. 4300, applicable to District of Columbia, 324. complaint and answer, 324, 325. amendments of complaint, 325. adjournment to enable accused to meet amended charge, 325. jurors, challenges to, 325. sentences, limit of, 325. penalties and forfeitures, recovery of, 325. NEW PARTIES. See Equity Practice ; Parties ; Pleading. NEW PROMISE. See Statute of Limitations. NEW TRIALS, 179-185. See Bill of Exceptions ; Trial. NON-RESIDENTS, jurisdiction of court over, 3. how to be sued, 50. defendants in divorce cases. See Divorce. See also Costs ; Equity Practice ; Pleading. NON SUIT. See Trial. NOTE OF ISSUE. note of issue, Rule 37, p. 129. cause to be entered on calendar. Rule 38, p. 129. may be entered by consent of parties, Rule 38, p. 129. issues of law, how noticed. Rule 40, pp. 129, 130. NOTICE, judicial. See Judicial Notice. to plead. See Pleadings. to admit documents, 109. to persons drawn on jury, 154. of motions. See Motions. of depositions in criminal cases, 294. testimony in equity, of time of taking. Rule 63, p. 428. of auditor's proceedings, 433. of mechanics' liens. See Mechanics' Liens. '84 666 INDEX, NOTICE— Continued. in divorce, to non-resident defendant, 497. provisions of Equity Rule 89 as to such notice, 498, of appeal in patent cases, 512. in admiralty, of sale under Rule 62, p. 569. NOTICE OP TRIAL. how given under Rule 36, p. 128. form of, 128. statutory provision, 128. time of, how computed, 129. when verdict set aside for want of, 129. when not, 129. renotice. Rule 40, p. 129. See Trial. NOVATION, bottomry creditor entitled to, when. See Admiralty. OATH, justices of supreme court District of Columbia to take, 8, form of such oath, R. S. U. S., sec. 712, p. 8. of clerk and his deputies, 10. marshal and deputies, 13. district attorney, 17. may be administered by district attorney, 17. of attorneys, 34. grand jury, foreman of, to administer oath to witness, 285. special oath to, as to laws against duelling, 285. of justices of the peace, 250. jurors, in trial before, 254. constables, 254, 263. poor convict, 340. police court, oath of judge of, 344. of substituted judge of, 345. of clerk of, 347. has power to administer, 347. verification of bills, &c,, in equity. Rule 88, p. 357. of claim, in admiralty, Rule 26, p. 554. OFFICE, TERM OF, of justices supreme court District of Columbia, 7. marshal and deputies, 13. district attorney, 17. ONUS PROBANDI, at common law, 169. in criminal cases, 310. See Obimtnal Pbocedubb ; Tbial. OPEN ACCOUNT. See Limitations op Actions. INDEX. 667 ORDER-BOOK, to be kept in clerk's ofllce, Rule 5, p. 41. interlocutory rules and orders to be entered in, except those made in special or general term, Rule 5, p. 41. ORDERS, at chambers. Rule 4, pp. 40, 41. interlocutory, what to be entered in order-book, Rule 5, p. 41. appeal from orders. See Appeal. interlocutory, in equity, how obtained. Rule 2, p. 418. PAPERS. 'See Books and Wbitings. PARTIES, Generally, may plead their own causes, 34. statute of limitations does not run in case of death of parties to arbitration, 26. death of, judgment in case of, Rule 118, p. 201. At Law, who are not, 47. fictitious name of, 47. amending as to, 43; plaintiffs, joinder of, 47, 48. in torts, 48. non-joinder of, objection, how taken, 48. foreign guardians and committees, 48. executors and administrators, 48, 49. executors not qualifying to be omitted as, 49. married women may sue, when, 49. defendants, who may not be, 50. non-resident, sued how, 50. non-service on, 50. joinder of, Rule 9, pp. 50, 51. examination of. Rule 35, p. 113. I change of, by death, marriage or contract, Rule 118, p. 239. successor, how substituted. Rule 119, pp. 239, 240. provisions of R. S. U. S., sec. 955 as to, 240. death of one of several, 241. provisions of Maryland act 1785 as to, 241-244. provisions of Maryland act 1798 as to, 244. death of, in replevin, 244, 245. to whose use suit brought, 245. in actions by and against parties, 245. ejectment, 245. actions to recover realty, when infant successor in interest, 245. (For Parties in Equity see Equity Peactice.) PARTITION, who may have, 475. tenants in common and coparceners may be compelled to make, 475. 668 INDEX i PARTITION— Continued. suits for, parties to, 475. court to exercise general equity powers, 475. guardian, how appointed in, 476. infant, answer of, how taken in, 476. commission, to whom directed, 476. sales in, when court may decree, 475. terms of, 475. PARTNERSHIP, limited, suits by and against, 49, 50. judgments against partners, 200. accounts of equity will correct mistake in, 354. PATENT CASES, PRACTICE IN, Appeal from Commissioner of Patents, court in banc has jurisdic- tion of, 4, 511. ] I when it lies, 511,'512 court merely acts in aid of Patent-Offlce, 512. when it does not lie, 512. notice of, to be given to commissioner, 512. time within which taken to be, 512. not fixed by rules of Patent-Offlce, 512. provisions of R. S. U. S., sec. 4894 as to, 512. reasons of, what must be shown, 512, 513. what will be heard on, 513. proceedings on, 513. determination of, 513, 514. commissioner to obey decree, 514. petition, form of, Rule 1, p. 514. to be filed and case docketed, Rule 2, p. 514. minute-book, entries in, Rule 3, p. 515. numbering of cases on docket. Rule 4, p. 515. ca,ll of appeal for trial, Rule 5, p. 515. opinions of court, preservation of, Rule 6, p. 515. papers, copies of, how procured. Rule 7, p. 515. hearing, how regulated, Rule 8, p. 515. Infringement, supreme court District of Columbia has jurisdiction of suits for, 518, 519. suits for, at law, damages, how recovered, who may sue and who not, 519, 520. who defendants and who not, 520. declaration, requisites of, 520, 521. defences, statutory, 521, defect ia specification, 522. patent surreptitiously obtained, 522. prior patent or published description, 522. patentee not first inventor, 523. public use or sale before application, 523, 524. abandonment to public, 524. INDEX. ■ 669 PATENT CASES, PRACTICE IN— Continued, defence, notice of, 524, 525. when unnecessary, 525. evidence, 525. burden of, on plain tiflf, 525. does not shift when charge denied, 525. exceptions to this rule, 525. What is necessary proof and competent evidence, 525. damages, 525, 526. disclaimer, in case of, when suit will lie, 526, 527. what plaintiff may recover, 527. costs when and when not allowed, 527. when necessary, 527. cannot operate, when, 527. patent confers no right to use subject-matter of, 527. injunctions and assessment of damages, power of court over, 527. nature of this jurisdiction, 527, 528. preliminary, when granted, 529. necessary parties plaintiff, 529, 530. defendants, 630. bill, averments of, 530. that plaintiff is inventor, 530. or that title is vested in him, 530. that he is exclusive possessor, 530. or exclusive assignee, 530. that invention has been used after patent, 530. averments, suflBciency of, 530, 531. allegations supported by affidavit, 531. multifariousness, 531. plea, what it should embrace, 531. answer, 531, 532. defences not set up by, not considered by court, 531. more than one defence may be presented by, 531. denial on[ information insufficient, 531. effect of plaintiff 's replication, 531. sufficiency of, 531, 532. setting up want of novelty, 532. cross-bill, may be filed, when, 532. necessary parties may be brought in by, 532. jury, court may submit questions of fact to, 532. rule as to advisory verdict not affected by statuifce, 532. profits, when they can be recovered, 532, 533. remote and contingent, not recoverable, 532. plaintiff entitled to what infringer has made, 532. righs to recover defined, 533. burden on plaintiff to show, 533. liberal construction when infringement willful, 533. defendant, when burden of proof is on him, 533. 670 INDEX. PATENT CASES, PRACTICE IN— Continued. interest on, as general rule not allowed, 533. may be justified by special circumstances, 533. damages, court may assess, 527, 528, 533. costs, 534. Interference, equity suit may be maintained for, 517. provision of R. S. U. S., sec. 4918 as to, 517. statute cannot be invoked, when, 517. proceedings are by bill and subpcsna, 317. extent of jurisdiction of court, 517. cross-bill not necessary for defendant's relief, 517. priority of invention the only question, 518. Patent-OflSce, decision of, not conclusive, 518. but entitled to great weight, 518. burden of proof on party decided against, 518. Befusal to Grant Patent, remedy by bill in equity, 516. suit lies only when application rejected on merits, 516. and remedy by appeal exhausted, 516. R. S. U. S., sec. 4915, applies to interference cases, 516. supreme court of District of Columbia proper tribunal, 516. gitasre whether in "general or special term, 516. ^Secretary of Interior not proper party, 516. original and not appellate proceeding, 516. although substantially appellate in character, 616, 517. parties not confined to matters of record, 517. priority of invention the only question, 517. Commissioner of Patents inhabitant of Washington for pur- pose of process, 517. who should be parties, 517. costs, 517. delay in bringing suit must be shown to have been unavoid- able, 517. PAYMENT, of money into court, 237, 238, 424. in admiralty, 563. decree or judgment for, of money, fieri facias, 221. execution of, in equity. Rule 82, p. 442. See Money. PEACE, JUSTICES OF THE See Justice of the Peace. PENAL STATUTES, costs in prosecution on, 210. rule of construction of, 316. PENALTIES, limitations as to, 28. definition of penalty, 28. when marshal does not pay over money, 15. INDEX. 671 PENALTIES— Continued. when constable does not, 264. for rescue of prisoner, 278. for allowing prisoner to escape, 278. for procuring false bail, 284. corrupting juries, 287. under navigation laws, recovery of, 325. extradition agent, penalty for opposing, 331. penalty for resisting, 332. how collected, 350. See also Criminal Pkocedueb ; Fines. PENITENTIARY. See Crimes ; Criminal Procedure. PERFECTION OF APPEAL. See Appeal. PERJURY. See Criminal Procedure ; Witnesses. PERPETUAL INJUNCTION. See Equity Practice. PETIT JURY. , See Jury ; Trial by Jury. PETITION, for special remedial writ, 75, 76. in equity. See Equity Practice. applications for divorce to be made by, 485. form of, in patent appeals. Rule 1, p, 514. amendment of. See Amendments. PETITORY SUITS. See Admiralty. PILOTAGE. See Admiralty. PIRACY, any justice of supreme court of District pf Columbia has juris- diction in cases of, 9. PLEA, at law. See Pleading. in equity. See Equity Practice. TLEADING, Declaration, substantive facts only to be stated in, Rule 26, pp. 92, 93. what to show generally, 93. need not anticipate matters of defence, 93. sufllcient if it alleges prima facie case, 93. on open account, afldavit, Rule 73, p. 93. not demurrable because it contains matters of evidence, 93, bill of particulars, recovery restricted to items of, 93. may be amended, 94. 672 IKTDBX, PLEADING— Continued. alleging special damage, 94. against married woman, 94. on ofladal bonds, averments, 94. by assignee should aver assignment, 94. on statutes, must aver that defendant is not within exception, 94. on copyright, must set out requirements of law, 94. on patent right, 94, 95. counts on special contract, 95, ' abandoned, rule as to, 95. when two may be joined, 95. against joint defendants, 95. forms of declarations, 104-106. Demurrer, form of. Rule 31, pp. 102, 108. joinder in, not necessary, Eule 31, p. 102, what admitted by, 102. special, vitually abolished, 102. court will not listen to mere matters of form on, 102, marginal note of, court not restricted to, 102. frivolous, what is, 103. appeal from judgment sustaining reversal o:^ 103. Joinder in Issue, form of. Rule 30, pp. 101, 102. Notice to Plead, Rule 13, p. 95. Plea shall set forth true defence. Rule 27, p. 95. formal conclusion or prayer for judgment not necessary, Rule 28, p. 95. accompanied by affidavit of defence under, Rule 73, p. 96. to scire facias and actions or judgment, 96. dilatory, how waived, 96. exception to rule of waiver, 96. in abatement, what may be pleaded, 96. of lis alibi pendens, when not a bar. statute of limitations, 97. executors not bound to plead, 97. non est factum, 97. special, what is bad, 97, 98. of failure of consideration, 98. accord and satisfaction, 98. Pleadings Generally, prolixity to be avoided. Rule 129, p. 104. issues of fact agreed. Rule 21, p. 91. order of pleading, Rule 22, p. 91. to be signed, Rule 23, p. 91. copies of, to be served. Rule 24, pp. 91, 92. time for, may be enlarged, Rule 25, p. 92. construction of, 92. averring written instruments, 92. profert when unnecessary, [92. INDEX. 673 PLEADING— Continued. oyer, demanding and giving, 92. Puis Darrein Continuance, plea, Rule 32, p. 103. affldavtt to accompany, Rule 32, p. 103. time for replying to, Rule 32, p. 104. is a waiver of prior pleas, 103. only question is whether plaintiff has been paid since original pleas, 104. Rejoinder, Rule 29, pp. 100, 101. must answer replication and tender issue, 101. Beplieation, Rule 29, pp. 100, 101. when facts in plea should be traversed by, 101. issue must be taken on material allegations of plea, 101. to plea of statute of limitations, what must be averred, 101. may show equitable title, when, 101. different rules in England and United States, 101. to plea of general performance, 101. de injuria, nature of, 101. Set-off, 98. form of, 98. judgment on, 98. mutual judgments may be set off, 98. must be against real party, 98. attorney's lien subject to, 99. of joint debts, 99. unliquidated damages, 99. as against assignees, 99. against suit of United States, 99, 100. does not extend to what cases, 100. recoupment, same general rule as in set-off, 100. (For pleading in equity, see Equity Practice.) (For pleading in "admiralty, see Admiralty.) POLICE COURT, establishment of, 342, 343. Appeals from, party aggrieved may appeal to supreme court Dis- trict of Columbia, 349. bond to be given, 349. to stay proceedings, 349. papers to be sent to supreme court District of Columbia, 349. appellant failing to recognize, to be committed, 349. how certified, 349. municipal laws, when conviction is for offence against, how appeal regulated. Rule 128, pp. 349, 350. , deposit for costs— docketing appeal, Rule 128, p. 350. failure to prosecute, Rule 128, p. 350. Bailiffs, court may appoint two, 347. may act as deputy marshals, 347. pay of, 347. 85 674 INDEX. POLICE COURT— Continued. Clerk, court may;appoint, 347. to hold ofl3.ce; during pleasure of court, 347. salary of, 347. may appoint one deputy, 347. salary of deputy, 347 bond, clerk shall give, 347. oath of ofla.ce, clerk shall take, 347. may administer oaths and aflQrmations, 347. fees, clerk to charge no, 347. Costs, flneSi &o., shall be collected by marshal or major of police, 350. to be paid over to District of Columbia, 350. to be applied to expenses of court, 350. surplus of, paid into treasury of District of Columbia, 350. Fines, how collected and disposed of, 350. Snige of, appointed by President, 344. term of aflSce, 344. salary of, 344. oath of, 344. absence or disability of, who to perform duties, 345. substituted judge, oath and compensation of, 345. may issue process for arrests, 346. may examine, commit, and hold to bail, 346, Jurisdiction, question as to constitutionality of trial without jury, 343, 34i original and exclusive of offences against United States in Dis- trict of Columbia, not capital or infamous, 345. of offences against laws and orflinances of District of Columbia, 345. larceny, petit, has original jurisdiction of, 346. and of receiving stolen goods less than |35 in value, 346. may issue all necessary process, 346. contempts, may punish, 346. sentences, may enforce by fine and imprisonment, 346. cumulative, rule as to, 319, 346. Prosecutions, to be by information without indictment, 347. and without trial by petit jury, 347, information, suflacienoy of, 347, 348. District laws, process for violation of, 348. process in other cases, 348. form of, 348. marshal's feesifor serving, 348. by United States attorney, in what cases, 348. his fees in such cases, 348. by attorney for District of Columbia, in what cases, 348, 349. witnesses, fees of, 206, 349. Booms for Holding' Conrt, provided at expense of District of Colum- bia, 345. INDEX. 675 POLICE COURT— Continued. commissioners of District of Columbia may lease, 345. Rules, police court has power to make, 3i46. Salaries of judge and officers, 345. to be paid by District of Columbia quarterly, 346. Seal, court shall have, 347. court has power to take ackowledgments of deeds, 347. and to administer oaths to public officers, 347. Terms of Court, when held, 344. POLICE FORCE, have common-law powers of constables, 273. statutory powers of, 273. may execute warrknts without indorsement, 274. may arrest without warrant, when, 274. may arrest in cases of suspected felony, 274. . may search and arrest in special cases, 274, 275. neglect to arrest, penalty for, 275. major of, private detectives to bring person arrested before, 275. See Cbiminal Phocedubb ; Pkocbss Wabbant. POOR CONVICTS. See Convicts, Poob. POSSESSORY SUITS. See Admibalty. POVERTY, inability to pay costs because of, Eule 8, p. 45. affidavit of, 45. PRAYER of bill in equity. See Equity Practice. PRELIMINARY INJUNCTION. See Equity Peacticb. PREPARATION FOR TRIAL. See Books and Weitings ; Depositions. PRESIDENT OF- THE UNITED STATES, shall appoint justices of supreme court District of Columbia, 8. marshal of District of Columbia, 13. attorney of United States for District of Columbia, 17. justices of the peace, 260, 261. judge of police court, 344. may remove justices of peace, 261. may remit forfeiture of recognizances, 282. PRINCIPAL AND ACCESSORY. See Cbiminal Peocbdueb. PRINCIPAL AND AGENT, in actions ex contractu, agent may file affidavit. Rule 73, p. 192. See Pabties ; Pleading. 676 INDEX, PRINTERS, fees of, 209. meaning of "folio," 209. PRISONERS. See Oeiminal Pbocedure. PRIVATE DETECTIVE, duty of, in making arrests, 275. shall bring arrested person and evidence of alleged crime to major of police, 275. or to proper court, 275. case to be then, examined, 275. PRIVILEGE, of people as to unlawful arrests, 272. constitutional provision explained, 272, 273. of exemption from service on jury, 156. of attorney. See Attorneys. PRIVILEGED COMMUNICATIONS, to attorneys, 36. PROCESS. summons, form of, Rule 16, p. 58. how tested, 59, 84. to bear teste from day of issue, 59, 84. to be under seal of the court, 84. void if not under seal, 84. copy of declaration to accompany writ, Rule 19, p. 84. defective copies, how remedied, 84. assistant clerks may sign writ, 84. to be served by marshal or his deputy, Rule 19, p. 83. but marshal to sign return, 84. when marshal a party to be served by coroner. Rule 19, p. 83. or some disinterested person appointed by the court, 16, 85. how served in case of death of, removal, or expiration of term of marshal, 85. fees of marshal for serving, 85. may demand fees in advance, 85. at instance of United States may run into any State, 87. against foreign ministers void, 85. when may issue against persons in service of foreign niinis- ters, 85. how served against District of Columbia, 86. against corporate educational institutions, 86. foreign corporations, 86. members of Congress, 87. service fraudulent when defendant enticed into jurisdic- tion, 86. stealing or altering process, penalty, 86. obstructing Service of process, penalty, 86. INDEX. 677 PROCESS— Continued. mesne, capias on, abolished, 85. in criminal cases. See Criminal Procedure, in equity. See Equity Practice. in admiralty. See Admiralty. when one or more of several defendants cannot be found, 86. appearance cures defective service, 87. but not when appearance is special only, 87. unauthorized appearance by attorney, 87. Service by Publication, provisions of Rule 20, p. 87 summons to be first returned "not to be found," Rule 20, p. 87. in what papers order of publication to be published. Rule 20 , p. 88. form of order of, Rule 20, p. 88. length of time to be published, Rule 20, p. 88. proof of pnblication, Rule 20, p. 88. copy of notice to be mailed defendant, Rule 20, p. 83. statutory provisions as to, 89. provisions of, to be strictly complied with, 89. effect of substituted service, 89. PROCTORS. See Attobnbys. PRODUCTIONS OF DOCUMENTS. See BpOKS AND Writings ; Depositions. PROFITS, mesne. See Ejectment. rents and profits. See Equity Practice. in infringement suits. See Patent Cases. PUBLICATIONS. service of, process by. See Process. QUALIFICATION. See Oaths, Bonds, Offioeks. QUASHING INDICTMENT. See Criminal Procedure. QUO WARRANTO, application for writ of, how made. Rule 18, p. 75. motion to quash writ heard in same manner, Rule 18, p. 75. RECEIVERS. See Equity Practice. RECOUPMENT. See Pleading. REFERENCE, to arbitrator. See Arbitrators. auditor. See Admiralty ; Auditor. assessor. See Admiralty. commissioners. See Admiralty ; Equity Practice. examiner. See Equity Practice. 678 iisDEX. REHEARING. See Eqxjity Pbacticb. REMEDIAL WRITS. See Special Remedial Writs. REMOVAL, of marshal, 16, justices of peace, 75, 260. constables, 263. REMOVAL OF CAUSES, from justices of peace, 252. See Justices of the Peace. RENT, attachment for. See Attachment. REPLEVIN, declaration in, form of, 68. afladavit, averments of. Rule 17, p. 69. undertaking, form of. Rule 17, p. 69. writ, form of, Rule 17, p. 69. ofllcer to retain property three days before delivery. Rule 17, p. 70, eloignment, proceeding's in case of, 70. goods seized, but defendant not found, 70, 71. default, after publication, 71; plea of defendant, 71. defendant, when judgment is for, 71. damages, how ascertained, 71. . when things are eloigned, 71. judgment in such case, 71, 72. revenue laws, property taken under, irrepleviable, 72. qusere whether demand is necessary before suit can be main- tained, 72. proper remedy when exempt property levied on, 72. Maryland act of 1785, ch. 80, sec. 14, provisions of, 72. construction of, 72, 73. right of property not considered on motion for return, 73. fraud investigated on preliminary inquiry, 73. effect of bond under wit of retomo habendo, 73. capias in withernam, auxiliary to replevin, 73. may be resorted to in District of Columbia in proper case, 73. use of writ explained, 73, 74. goods taken under, may be held until goods sued for are forth- coming, 74. groundsjfor the writ, 74. REPLICATION. See Pleading. RETURN DAY is first Tuesday of every month except August, Rule 3, p. 40. INDEX. 679 REVENtJE LAWS, crimes against. See Criminal Procedure, property taken under, not repleviable, 72. REVIEW, Bill of. See Equity Practice., REVIVOR, bill of revivor. See Equity Practice. RULE DAY. See Return Day. RULES, supreme court District of Columbia has power to adopt, 6. force and effect of, 6, 7. of police court, 346. RULES OF COURT (where given in full or referred to in this volume). General and Common-Law Eules. Bule 1. Admission to the bar, 33. 2. Terms of court, 37, 38. 3. Bule day, 40. 4. Interlocutory orders, 41. 5. Order-book, 41. 6. Minutes, 41. 7. Amendments, 42. 8. Commencement of suit, 45. 9. Joinder of parties, 50, 93. 10. 11. Ejectment, 50, 51, 93. 12. Forcible entry or detainer, 55, 56, 93'. 13. Notice to plead, 95. 14. Process, 59. / 15. Attachment, 59-63. 16. Attachment for rent, 64, 65, 93. 17. Writ of replevin, 69, 70, 93. 18. Special remedial writs, 75, 76. 19. Service of process by marshal, 16, 83, 84. 20. Service of process by publication, 87-89. 21. I^ues of fact agreed, 91. 22-25. Order and time of pleading, 91, 92. 26. Declaration, 92, 93. 27. Plea, 95. 28. Formal conclusion of plea unnecessary, 95. 29. Replication and rejoinder, 100, 101. 30. Joinder in issue, 101, 102. 31. Demurrer, 102, 103. 32. Plea after last continuance, 103, 104. 33. Notice to admit documents, 109. 34. Production of books and writings. 111. 35. Examination of parties; Inspection of documents, 113. 680 INDEX. RULES OF COURT, &c.— Continued. General and Common-Law Rules— Continued Rule 36. Notice of trial, 128. 37. Note of issue, 129. 38. Cause to be placed on calendar, 129, 39. 40. Trial calendar, 129. 41. Law calendar, 129, 130. 42. Trials, consolidation of causes, 161. 43. Separate trials, 162. 44-46. Non-appearance, 163, 47. Arbitrators, reference to, 130, 131. 48, 49. Auditor, reference to, 138, 139, 198. 50. Repleader, 163. 51. Verdict, 176. 52. Special verdict, 177, 178. 53. Verdict subject to opinion of court, 178. _ 54-60. Motions for new trial, 179-184. 61-65. Bill of exceptions, 184-186. 66. Arrest of judgment, 186, 187. 67, 68. Judgment, 189. 69. Judgment by default, 190. 70-72. Attachment, 63, 191. 73, 74. Actions ex contractu, 93, 96, 192, 194. 75. Inquiry ; Unliquidated damages, 194. 76. Judgment by default in replevin, 195. 77. Judgment by default in ejectment, 195. 78. 79. Set-off, 195, 196. 80. Judgment on auditor's report, 198. 81. Judgment on award, 199. 82-85. Costs and fees, 203-208. 86. Security for costs, 46. 87. Staying execution, 220. 88. Motion to vacate judgment, 202, 203. 89. Appeal to general term, 212. 90. Hearing before general term, 216, 217. 91-94. Execution, 220-223, 228. 95. Replevin, return in, 222. 96. Execution, ^sri/actas, attachment, 221, 229. 97. Attachment, interrogatories, judgment, 229. 98. Scire facias, 231, 233. 99. Motions, enumerated, 235. 100. Motions, 235-237. 101. Motion, recording of, 234. 102. Moneys, in court, 237.* 103. Moneys, clerk's account of, 238. 104-113. Justices of peace, appeals from, 256-260. 114. Certiorari, proceedings as to, 259, 260. 115. New trial by justice of peace, 253. 116. Commencement of suit by justice of peace, 252. INDEX. 681 RULES OF COURT, &c.— Continued. General and Common-Law Rules— Continued. Rule 117. Delivery of court papers to attorneys, 34. 118, 119. Change of parties, 201, 239-245. 120. Bonds, approval pf, 246. 121. Plea to scire facias, 247. 122. Bonds, farther security on, 246. 123. Advertising, 247. 124. 125. Sales by trustees, 247, 248. 126. Filing papers by clerk, 248. 127. Members of bar not to be sureties, 34. 128. Appeals from police court, 350. 129. Pleadings, 104r-108. Equity Eules. Kule 1. Court always open, 357. 2. Interlocutory orders, order-book, 357, 419. 3. Motions gran table of course, 419. 4. Notice of motion, 419. 5. Form of process, 371, 372. 6. Issue of process, 372, 373. 7. Service of process, 373. 8. Return of process, 374. 9. Renewal of process, 375. 10. Who to serve process, 373. 11. Docketing suit, 371. 12. Time of defendant's appearance, 375. 13. Entry of appearance, 375. 14. Default in appearing, 376, 377. 15. Decree pro confesso setting aside, 378. . 16. Bill, frame of, 364. 17. Bill, parts that may be omitted, 365. 18. Bill omitting parties, 362, 365. 19. Bill to be signed by counsel, 370. 20. Bill, matter of, 365, 367. 21. Bill, prayer for process in, 370. 22. Bill, prayer for general relief, 369. 23-25. Bill, amendments of, 395, 396. 26, 27. Bill, demurrers and pleas, 379, 380. 28. Bill, argument of or issue on, 383. 29. Costs on overruling, 384. 30. Bill, costs on allowing, 384. 31. Bill, admitted to be true, when, 383. 32. Answer, 386. 33. Supplemental answer, 398. 34. Parties, proceeding without, 358, 359. 35. Parties, very numerous, dispensed with, 361 36. Parties, beneficiaries, dispensed with, 362. 37. Parties, want of, suggested, 362. 38. Parties omitted, saving in decree, 363. 86 682 INDEX. RULES OF COURT, &c.— Continued. Equity Rules— Continued. Rule 39. Parties, nominal, 385, 386. 40. Injunction, preliminary, 409. 41. Injunction, granted ex parte, when, 411. 42. Injunction, when not ex parte, 411. 43. Injunction, what bill must state, 411. 44. Injunction, to stay ejectment or replevin, 414, 45. Injunction, affldavits on application for, 414. 46. Injunction, motion to dissolve, 415. 47. Injunction, not dissolved, when, 415. 48. Revivor, 404, 405. 49. Supplemental bill, 399, 400. 50. Supplemental bill, matter of, 408. 51. Answer, filing of, default, 385. 52. Answer, frame of, 386. 53. Answer, amendment of, 399. 54. Answer, exceptions to, 391. 55. Answer, hearing of exceptions to, 393. 56. Answer, allowance of exceptions, attachment, 393, 394. 57. Answer, costs of exceptions to, 394. 58. Answer, separate, costs of, 388. 59. Replication, form of, 394. 60. Replication, time of filing, 394. 61. Replication, not filed in time, what, 394, 395. 62. Hearing, setting cause for, 438. 63. Evidence, depositions, 123, 426, 428, 438. 64. Time for taking depositions, 430, 431. 65. , Publication of testimony, 431. 66. Depositions de bene esse, 431. 67. Interrogatory, form of last, 431. 68. Gross-bill, 402. 69. 70, 71, Auditor, proceedings before, 432, 433, 441. 72. Auditor, powers of, 433, 434. 73. Auditor, witnesses before, 434, 435. 74. Auditor, accounting before, 435. 75. Auditor, documentary evidence before, 435, 436. 76. Auditor, creditor or claimant examined, 436. 77. Auditor, compensation of, 437. 78. Auditor, report of, and exceptions, 437. 79. Auditor, exceptions, frivolous, 437. 80. Decrees, clerical mistakes in, 440, 441. 81. Decrees, form and substance of, 439, 440. 82. Decrees, execution of, for money, 442. 83. Decrees, execution of, for specific act, 442, 443. 84. Decrees for delivery of possession, 443. 85. Guardian and procheiin ami, infant, 376. 86. Rehearing and review, 444^446. 87. Oath or affirmation, 357. INDEX. 683 RULES OF COURT, &c— Continued. Equity Rules— Continued. Rule 88. Verification, 357, 371. 89. Divorce, non-resident defendant, 498. 90. Divorce, proof in, how taken, 500. 91. Divorce, for adultery, charge in petition, 492. 92. Divorce, nullity for want of consent, 494. 93. Divorce, nullity where consent obtained by fraud, 495. 94. Divorce on ground of lunacy, 496. 95. Divorce, petition to be verified, 496. 96. Divorce, cruel treatment, proof of, 500. 97. Divorce, matters of defence, 496. 98. Pleadings, 357, 358, 371. 99. Costs of copies of court papers, 358. 100. Trustees' commissions and allo\vance in lieu of dower, 505. Rules in Admiralty. Rule 1. Process, issuing of, 538. 2. Process, service of, 538. 3. Process, return of, 538. 4. Process, form of, in personam, 568. 5. Arrest of property, 539, 540. 6. Garnishment, 540. 7. Dissolution of attachment, 540. 8. In rem, how made, 541. 9. In rem, taclile, &c., 541. 10. In rem, property attached, 541, 542. 11. In rem, delivery of, 542. 12. In rem, delivery on payment into court, 542, 543. 13. Perishable goods, 543. 14. Wages of mariners, 543. 15. Pilotage, 545. 16. Supplies, repairs, &c., 545. 17. Hypothecation, 546. 18. Bottomry, 546. 19. Salvage, 547. 20. Collisions, 548. 21. Assault or beating, 549. 22. Petitory or possessory suits, 549. 23. Libels, in seizures, 550. 24. Libels, in civil cases, 551. 2o. Libels, amendments, 553, 26. Claim, verification of, 554. 27. Neglect to proceed, 555. 28. Answer, in civil cases, 555. 29. Answer, exceptions to, 556. 30. Answer, default, 557. 31. Answer, rehearing after default, 557. 33. Answer, attachment to compel, 557. 684 INDEX, RULES OF COURT, &c.— Continued. Bnles in Admiralty— Continued. Rule 33. Answer, objecting to make, 558. 34. Answer, interrogatories in, 358. 35. Answer, new matter in, 558. 36. Answer, dispensed witli, 559. 37. Cross-libel, security, 559. 38. Intervention, 559, 560. 39. Surplusage, 560. 40. Ship-owners, liability of, 561, 562. 41. Ship-owners, proof of claim, 562. 42. Ship-owners, contest of liability, 563. 43. Moneys paid into court, 563. 44. Claim of proceeds, 563. 45. Appraisers, 564. 46. Reference to commissioner, 564. 47. Reference to auditor, 565. 48. Reference to assessors, 565. 49. Report, confirmation of, 665, 566. 50. Report, failure to proceed on, 566. 51. Eonds and stipulations, contents of, 566. 52. Bonds, how taken, 566. 53. Bonds, penalty reduced, new surety, 566. 54. Bonds, increase of surety, 567. 55. Costs, security for, in personam, 567. 56. Costs, security for, in rem, 567. 57. Costs, exception in favor of seamen and salvors, 568. 58. Costs, deposit instead of stipulation, 568. 59. Costs, to be paid before delivery, 568. 60. Execution, 569. 61.. Sales, 569. 62. Sales, notice of, 569. 63. Appeals, 569. Rules in Patent Cases. Rule 1. Appellant's petition, 514. 2. Filing of petition and entering of case, 514. 3. Minute-bpok, 514, 515. 4. Numbering of cases, 515. 5. Hearing of appeal, 515. 6. Opinions of court, 515. 7. Copies of papers, 515. 8. Hearings subject to rules in other causes, 515. SAILORS, extradition of foreign. See Criminal Procedure. wages of, suits for, 551. process in rem for, 543. lien for, 543. not required to give security in first instance, 568. See Admiralty. INDEX. 685 SALARY, of justices of supreme court District of Oolumbia, 8. for life, after resignation, 8. of judge of police court, 344. substituted judge of, 345. to be paid quarterly by District of Oolumbia, 345. clerk of police court, 347. deputy clerk of, 347. SALES, under execution. See Exeoution. decrees confirming. See Equity Practice. of infants' estates, 449-454. estates for life, 449-454. decedents' estates, 461-467. equitable titles, 467-469. property of idiots and lunatics, 473, 474. in partition; 475, 476. under mechanics' Uens, 480. commission of trustee in, 505. in admiralty cases. See Admii-alty, SALVAGE. See Admibalty. SCIRE FACIAS, on judgment, form of. Rule 98, pp. 231, 232. is a judicial writ, 232. 80 far original that defendant may plead to it, 232. not new suit, but continuation of original, 232.' not equivalent to execution, 232. practically a new judgment, 232. new beneficiary must be made party to, 232, 233, party by marriage to be introduced by, 233. terre tenant should be made party to, 233. demurrer to, raises only questions of law on facts in writ, 233. plea to, may set up what defences, 233. SEAL, of court, writs and process to be under, 84. SENTENCE. See CBiMiNAii Pbocbdueb. SEQUESTRATION, Maryland act 1785, ch. 72, sec. 25, in force in District of Colum- bia, 425, 426. SERVICE OF PROCESS. See Pbocess. SET-OFF. See Pleading. 686 INDEX. SIGNATURE, of clerk, assistant may make and authenticate, 11. marshal, to be attached to return of process, 84. of counsel to be to bill in equity, Rule 19, p. 379. See Books and Writings. SPECIALTIES, limitations as to. See Limitations of Actions. SPECIAL REMEDIAL WRITS, applications for, how made. Rule 18, p. 75. SPECIFIC PERFORMANCE. See Equity Practice. STATUTE OP LIMITATIONS. See Limitations of Actions. STATUTES. (The following will be found in whole or in part at the pages indicated.) British Statutes. 21 James I, ch. 16, sees. 1, 2, 4. Limitations, 24, 25, 32. 8 Anne, ch. 14. Execution, 226. Maryland Acts. 1715, ch. 23, sees. 2-5. Limitations, 22-24. 1715, ch. 40, sec. 7. Attachment, 229, 230. 1721, ch. 14. sec, 2. Continuances, 142, 143. 1723, ch. 8, sec. 5. Injunctions, 410. 1729, ch. 24, sees. 21, 22. Limitations ; Administration bonds, 26. 1747, ch. 23, sec. 2. Judgment, 201. 1763, ch. 23, sec. 2. Arrest of judgment, 187. 23, sec. 8. Equity practice. Decrees, 202, 442. 28, sec. 8. Judgment; Assignment, 202. 1765, ch. 12, sees. 2, 3. Limitations, 24. 23, sec. 6. Limitations, bills, and specialties, 25. 1773, ch. 7, sees. 1, 2. Infants, idiots, and lunatics, 455, 456, 457. 1776, ch. 21, sec. 2., Arrest of judgment, 187. 1777, ch. 12, sec. 14. Divorce, 504. 1778, ch. 21, sees. 8-10. Arbitration, 131, 132. 22, sees. 2-4. Infants, 459. 1785, ch. 46, sec. 1. Debts of record, 121. 2. Foreign deeds, 120, 121. 3. Foreign probate, 131, 122. 7. Set-off, 98. ch. 72, sees. 1, 2. Infants, lunatics, &c., 460, 461. 4. Decedents' Trustees, 470. 5. Decedents' estates, 462. 6. Idiots and lunatics, 471. 7-9. Decedents' estates, 463-465. 10. Decedents ; Trustees, 470. INDEX. 687 STATUTES— Continued. Maryland Acts— Continued. 1785, ch. 72, sec. 12. Infants, 453. 13. Equity practice, 440, 443. 1.5. Equity practice ; Testimony, 430. 17. Auditor, 432. 21. Equity practice, 402. ch. 80, sec 1. Death of parties, 241-244, 405. 2. Death of party ; Infants, 201, 245. 3. Pleading, 97. 4. Trials, 165. 11. Arbitration, 132, 133. 12. Auditor, 139. 13. Judgment, 196., 14. Replevin, 72. 1787, ch. 9, sees. 2-5, 7, 8. Continuances, 143, 144. 6. Reinstatement of cause, 204. 1791, ch. 79, sec. 4. Infants, idiots, &c., 458. 1792, ch. 41, sec. 4. Decedents' contracts, 471. 1793, ch. 75, sec. 3. Injunctions, 410. 1794, ch. 6, sec. 2. Continuances, 145. 46. Judgment, 194, 195. 54, sees. 5, 6. Coroner, service of process, 16, 17. 60, sec. 10. Equitable titles, 469. 1795, ch. 88, sees. 2, 3. Infants, &c., 460, 468. 5. Partition, 476. 1796, ch. 43, sec. 12. Costs, 46. 13. Costs, 206. 1797, ch. 87, sec. 9. Juries, 156, 157. 114, sec. 4. Equity practice, 406, 407. 5. Equity ; Infants, 388. 7. Idiots and lunatics, 473. 1798, ch. 24, Jurors, 154. 84, sec. 2. Boobs and writings, 422. 94, sec. 2. Juries, 157. 101, sub-ch. 3, sec. 9. Executors, 49. 8, sees. 8, 9. Judgments, 198, 199. 8, sec. 16. Decedents' estates, 27. 9, sec. 9. Limitations, 97. ^ 12, sec. 4. Bonds of guardians, 26. 12, sec. 10. Infants, 449. 14, sec. 4. Executors and adm'rs, 244. 1799, ch. 79, sees. 1, 6. Partition, 476. , 1800, ch. 67, sees. 2, 3. Idiots and lunatics, 473, 474. Berised Statutes of the District of Columbia. Sec. 394, 395. Police force, 273, 274, 279. 397, 398. Police force, 274. 400. Police force, 275. 401. Witnesses ; Police board, 240. 688 INDEX. STATUTES— Continued. EeTised Statutes of the District of Columbia— Oontinned. Sec. 402. Police force, 274, 275. 429. Police force, 275. 466. Limitations, 22. 493. Partnership, 12. 497. Partnership, 12. 505. Partnership, 49, 200. 513. Partnership, 49. 50. 514-516. Partnership, 200. 531. Process against educational iristitutioms, 86. 575. Suits against stockholders, 27. 603. Execution ; Exemption, 224. 617. Partnership, 12. 677-679. Attachment for rent, 64. 683. Attorning to strangers, 52. 684^690. Forcible entry or detainer, 54^57. 713. Interest, 200. 716. Unlawful interest, 27. 723. Marriage certificate ; Evidence, 120. 729. Married women, 49. 731-749. Divorce, 485-504. 750-752. Justices supreme court District of Columbia, 8. 753. Supreme court District of Columbia, 38, 189, 267. 754. Quorum ; Division of opinion, 38. 755. Terms of court, 39. 756. General terms, 39. 757. Special terms, 39. 758. District court, terms of, 39. 759. Criminal terms, 39, 268. 760. General jurisdiction, 1. 761. Justices of court, statutory powers, 9. 762. District court, 9, 537. 763. Jurisdiction, 2, 267. 764. Jurisdiction, 3, 518. 765. Jurisdiction, 4. 766. Jurisdiction, 3, 484. 767,. 768. Jurisdiction, 3, 50. 769. Jurisdiction, 2, 196. 770. Rules ; Appeals, 6, 214, 235. 772. New trials, 181, 182, 214. 773-779. Appellate jurisdiction, 257-259. 780. Jurisdiction ; Patent appeals, 4, 215, 511. 781. Process, 59, 84. 782. Attachment before judgment, 59-63. 783-786. Process ; Attachment, 62, 63. 787-789. Process publication, 87, 88. 790. Foreign corporations, 86. 791. Mesne process ; Capias abolished, 85. INDEX. 689 STATUTES— Continued. Rerised Statutes of the District of Colnmbia— Continued. Sec. 793. Equity practice, 440, 443. 794-796. Execution, 231. 797. Exemption, 223, 224. 800. Motions ; Equity practice, 235, 438. 801. Trials, 163. 803-805. New trial, 180, 181. 806. Verdict, 178, 180, 181. 807. Terms of court ; Trials, 38. 808. Equity practice, 335, 440. 809. Ejectment, 51. 810. 811. Plea of set-off, 98. 812. Judgment on set-off, 98, 196. 813. Judgment on set-off, 98, 200. 814-824. Beplevin, 68-72. 825, 826. Judgment, 190, 196. 827. Actions; Joint obligors, 51. 829. Judgment ; Interest, 200. 830-832. Injunctions, 413. 836. Indictments, 297. 839. Witnesses, 289. 840. Jury, grand, special oath, 285. 842. Prosecution for libel, 311. 843. Extradition, 327, 331. 844. Bail, 282. 845. Postponement of execution, 320. 850. Judgment, 190, 221. 851-875. Jurors, 151-156. 876. Witnesses; Equity practice, 147, 148,-438. 877. Witnesses, 148, 292. 878. Witnesses, 291. 879. Witnesses, 149. 880. Witnesses, 206, 349. , 881-893. Commission to take testimony, 293-295. 897. Marshal's fees, 85. 899. Pees of clerk, 11, 12. 903. Costs, 208. 904. District attorney, 17, 309. 905. District attorney, 17, 18, 293. 909. Compensation of district attorney, 18. 910. Marshal, 12, 13. 911. Marshal's fees, 85. 912. Marshal ; Executions, 15, 59, 254, 373. 913. Marshal, 15. 914. Pees of marshal, 15, 85. 915. Clerk of court, 10. 916. Assistant clerks, 11, 84, 373. 917. -Costs, 45. 87 690 INDEX. STATUTES— Continued. Revised Statutes of the District of Columbia— Continued. Sec. 919. Justices of peace ; Docket entries, 12, 260. 920. Justices of peace ; Docket entries, 260. 921. Fees of clerk, 11, 205. 951. Foreign guardians and committees, 48. 957-973. Infants' estates, 449-454. 982. Execution ; Exemptions, 224. 988, 989. Notary public, 120. 994-1034. Justices of peace, 250-260. 1035-1040. Constables, 200, 263, 264, 273. 1041-1080. Police court, 342-350. 1092-1096. Capital executions, 322, 323. 1286. Exemption law, 224. 1296. Limitations, 23. Berised Statutes of United States. Sec. 551. District court, 9. 563. Bankruptcy, 4. 629. Quo warranto, 76. 638. Equity practice, 357. 649. Trials, 163. 974. Justices ; Order of precedence, 8. 687. Forcible entry or detainer, 55. 690. Forcible entry or detainer, 56, 57. 699. Appeals ; Patent cases, 215. 700. Trials, 163, 164. 712. Oath of justices, 344. 713. Justices not to practice law, 8. 714. Justices resigning, salary for life, 8, 9. 723. Equity practice, 20, 353. 724. Documentary evidence, 422. 725. Oaths and contempts, 5, 425. 527. Jurisdiction criminal court, 268. 737. Process, defendants not served, 50, 86. 738. Process, 89, 90. 747. Parties may plead their own causes, 34. 748, 749. Marshal and deputies and attorneys not to prac- tice law, 13, 34. 754-766. Habeas corpus, 79-82, 215. 769. District attorney, 17. 771,. District attorney, 17, 309. 779-790. Marshal, 13, 14, 16, 85. 794, 795. Clerk, 10, 347. 798. Moneys in court, 11, 238. 803. Grand jury, 285. 804. Jurors, 154. 809. Grand jury, foreman, 285. 811. Grand jury, discharge of, 285. 812. Jurors, 153. INDEX. 691 STATUTES— Continued. Revised Statutes of United States— Continued. Sec. 819. Juries ; Challenges, 157, 160, 286. 824. Costs, 208. 828, 829. Clerks and marshals' fees, 12, 83, 208. 848, 849. Costs, 207. 853, 854. Printing, 209. 858. Witnesses, 149. 860. Witnesses, 292. 861. Trials, 165. 863-871. Depositions, 125, 128, 129, 428. 876-878. Witnesses, 150, 288, 289. 879. Jurisdiction, 268, 289, 290. 881. Witnesses; Recognizance, 290. 882. Department records, 113, 114. 883. Records Solicitor Treasury, 114. 884. Records Comptroller Currency, 114. 885. Certificates of national banks ; Evidence, 114. 886. Transcripts of Treasury, 114. 891. Records of Land Office, 114, 115. 892. Records of Patent Office, 115. 893. Foreign letters patent ; Costs, 115, 206. 894. Patents, 115, 116. 895. Journals of Congress, 116. 896. Records of consuls, 116; 897-903. Records of Federal courts, 116-118. 905. Legislative acts and judicial proceedings of States, 118. 906. State and Territorial records, 119. ^ 907. Foreign records of land titles, 120 911, 912. Process, 84, 373. 921. Trials, 161, 421. 922. Process, 16. 934. Property taken under revenue laws, 72. 950. Notice of trial, 128. 954. Amendments, 42, 165, 187. 955, 956. Death of parties, 240, 241. 957. Judgment ; Revenue officers, 200. 958. Patents, trade-marks, and copyrights, 4, 200. 959. 960. Judgment, 200. 961. Judgment by default, 195. 972. Costs ; Copyright suits, 209. 973. Patents, 209, 210, 527, 534. 974. Cost of criminal prosecution, 319. 975. Costs ; Penal statutes, 210. 977. Costs, 205. 982. Costs, 206. 983. Judgment ; Costs, 201. 994. Execution; Death of marshal, 226, 227. 995. Moneys paid into court, 237, 238. 692 INDEX. STATUTES— Contimied. Berised Statutes of United States— Continued. Sec. 996. Moneys paid into court, 238. 1008. Equity practice ; Review, 446. 1014-1016. Jurisdiction criminal court, 268, 275, 276, 279, 280. 1018-1020. Bail, 282, 283. 1021. Grand jury, 285, 297. 1023. Perjury, 303. 1024-1025. Indictments, 297, 298. 1026, Demurrer ; Judgment, 306. 1027, 1028. Arrest, 278. 1030. Witnesses, 293. 1031. Jurors ; Challenges, 286. 1032. Arraignment, 304. 1033. List of witnesses ; Capital cases, 306, 307. 1034. Counsel in capital cases, 306. 1035-1036. Verdict, 317. 1040. Capital cases; Appeal to Supreme Court United States, 323. 1041. Execution; Fines, 320. 1043-1048. Limitations, criminal, 269, 271. 2173. Police court, jurisdiction, 345. 3066. Search warrants, 278. 8224. Equity practice, 355, 415. 3462. Search warrants, 278. 3468. Bail, 283. 3491. False claims against United States, 4. 3636, 3637. Injunction, 416. 4063-4065. Process against foreign ministers, 85. 4079-4081. Extradition, 337, 339. 4300-4304. Summary trials, 324. 4302. Summary trials, 325. 4303. Summary trials, 325. 4305. Navigation laws ; Penalties, 325. 4845, 4846. Insane Hospital, 9 4854. Idiots and lunatics, 473. 4856. Insane Hospital, 9. 4894. Appeals from Commissioner of Patents, 512. 4911-4914. Appeals from Commissioner of Patents, 511-514. 4915. Patents, trade-marks, and copyrights, 4, 516. 4916. Patents, trade-marks, and copyrights, 4. 4917. Patents, trade-marks, and copyrights, 4, 526, 534. 4918. Patents, trade-marks, and copyrights, 4, 517. 4919. 4920. Patents, trade-marks, and copyrights, 3, 519. 4921. Patents, trade-marks, and copyrights, 3, 416, 527, 633. 4922. Patents, 526, 527, 534. 5237. Injunctions, 416. 5270-5280. Extradition, 327-331. INDEX. 693 STATUTES— Continued. Berised Statutes of United States— Continued. Sec. 5296. Poor convicts, 339. 5325. Capital punishment, 322. 5327. Whipping and pillory abolished, 319. 5329. Benefit of clergy abolished, 322. 5339. Murder, 313. 5340. Dissection of body of executed criminals, 319. 5351. Limitations ; Seduction, 271. 6392. Witnesses ; Perjury, 291. 5693. Witnesses, subornation of, 291. 5394. Process ; False bail, 86, 284. 5396. Perjury ; Indictment, 302. 5597. Perjury, subornation of, 303. 5398. Process, 86. 5399. Witnesses, intimidating, 293. 5401. Bescue of prisoners, 278. 5402. Dissection of body of executed criminals, 319. 5404, 5405. Juries, 287. 5406. Witnesses, 293. 5409. Escape of prisoner, 278. 5546-5547. Execution ; Penitentiary, 320-322. 55495-550. Imprisonment of juvenile offenders, 321, 322. 5600. Limitations, 23. United States Statutes at Large. Act of 17,99, February 28 (1 Stats., 626). Jury fees, 206, 307. 1874, June 20 (E. Suppl., 54). Suits against D. C, 86. 1874, June 22 (18 Stats., 190). Limitations under cus- toms-revenue laws, 29. 1874, June 22, sec. 2 (18 Stats., 193). Bail, 268. 1874, June 23 (18 Stats., 284). Criminal court, 269. 1875, February 16, sec. 2 (18 Stat., 315). Patents, 532. 1875, March 1, sec. 4 (18 Stats., 355). Jurors, 155. 1876, August 15 (19 Stats., 202). Partition, 475, 476. 1877, February 27 (19 Stats., 240). Quorum ; Divided court, 215. 1877, February 27 (19 Stats., 253). Jurisdiction, 2, 267. 1877, February 27 (19 Stats., 254). Copyright and pat- ent laws, 3. 1878, June 7 (20 Stats., 100). Justices of the peace and constables, 260, 263' 1878, June 19 (20 Stats., 173). Exemptions, 224. 1879, February 25 (20 Stats., 320). Quorum; Divided court, 39, 214. 1880, June 8 (21 Stats., 156). Circuit court may sit as criminal court, 40, 268. 1882, August 3 (22 Stats., 215). Extradition, 328, 329. 1883, March 3, sec. 1 (22 Stats., 530). Extradition, 331, 332. 694 INDEX. STATUTES— Continued. United States Statutes at Larg'e — Continued. Act of 1883, Maxch 3, sec. 1 (22 Stats., 631). Clerk, 11. 1884, July 2 (23 Stats., 64). Mechanics' liens, 477-483. 1885, March 3 (23 Stats., 448). Appeals to S. C. U. S., 219. 1887, February 28 (25 Stats., 431). Foreign executors, 48. 1887, February 28 (25 Stats., 431). Limitations, 22. STAY OF EXECUTION. See Execution ; Judgment. STAY OF PROCEEDINGS. See Appeal. STIPULATIONS. See Bonds and Undbetakings. STUDENTS. See Admission to the Bar; Attobneys. SUBPCENA, form of writ of, 372. See Equity Practice. SUMMARY TRIALS, for offences against navigation laws, 324, 325. See Criminal Procedure. SUMMONS. See Process ; Service of Process. SUPERSEDEAS. See Appeal. SUPPLEMENTAL ANSWER. See Admiralty ; Equity Practice. SUPPLEMENTAL BILL. See Equity Practice. SUPREME COURT DISTRICT OF COLUMBIA, creation and title of the court, 1. general jurisdiction, 1, 2. amount required to give jurisdiction, 2, 3. jurisdiction in divorce suits, 3. over non-residents, how exercised, 3. under copyright and patent laws, 3. as a court of bankruptcy, 4. on appeal from Commissioner of Patents, 4. in cases of false claims against United States, 4. appellate, over inferior court, 5. to entertain petition for change of name, 5. to impose oaths and punish for contempts, 5, 6. to adopt rules, 6. in admiralty. See Admiralty. as a criminal court. See Criminal Procedure. in equity. See Equity Practice. justices of, statutory powers of^ 7-9. terms of, 37-40. INDEX. 695 SUPREME COURT OF THE UNITED STATES, appeals to, 219. rules of, when not followed by supreme court District of Colum- bia,. 6, 7. SURETIES. See Appeals ; Bonds ; Equity Peactice. TABLES, trustees, commissions to, Rule 100, p. 505. dower, allowance in lieu of, 505. annuity table, 506. rule for computmg value of, 507. TALESMEN. See JuEOES. TAXATION OF COSTS. See Costs. TENANT. See EjectVknt ; PoecibiiB Entry or Detainee ; Landlord AND Tenant. TERMS OF COURT, when held. Rule 2, pp. 37, 38. trials, when another term intervenes, 38. all are terms of the supreme court, 38. period, regulated by court, 39. general terms, three to be held annually, 39. special terms, by whom to be held, 39. ~ot district court, when to be held, 39. criminal terms, when held, 39, 268. when criminal court may sit as circuit court, 39, 269. of circuit court, two may be held at same time, 39, 40. circuit court may sit as criminal court, 40, 268. when a term ends, 40. of police court, when held, 344. TERM OF OFFICE, of marshal, 13. See Marshal. district attorney, 17. constable, 263. judge of police court, 344. justice of the peace, 250. TESTIMONY. See Depositions ; Evidbncb. THREATS, evidence of, when excluded, 316. See Criminal Procedure. TITLE, outstanding, in ejectment, 53. plea of, in forcible entry or detainer, 67. equitable, sale of, 467-469. 696 INDEX. TRANSCRIPTS. See Books i.ND Writings ; Evidence. TRIAL, At law in Ciyil Cases, consolidation of causes, Rule 42, pp. 161, 162. separating causes of action, Bule 43, p. 162. non-appearance of both parties. Rule 44, p. 163. of plaintiff. Rule 45, p. 163. of defendant, Rule 46, p. 163. repleader, when allowed, Rule 50, p. 163. issues of fact to be tried before a single justice, 163. may by consent be tried without a jury, 163, 164. bill of exception in such cases, 163. trial by jury, constitutional provision, 164. this provision confined to matters of fact in causes at com- mon law, 164. mode of proof, 165. moving to dismiss for insuflaciency of pleadings, 165. amending to defeat the motion, 165. when judgment may be had without proof, 165. right to open and close, 165. opening case to the jury, 165. directing verdict against plaintiff on opening statement of counsel, 166. separating the witnesses, 166. examining witnesses on the voir dire, 166, 167. incompetency of witness on ground of conviction of felony, 167. the order of proof, 167. general rules as to admission of evidence and conduct of the trial, 168-176. relevancy and competency of testimony, 168. in cases where fraud is in issue, 168. account-books and memoranda, when evidence, 168. shop-books, when adm.issible as evidence, 168. admissions and declarations res gestte, 168. agency, how proven, 169. bill of particulars, proof restricted to, 169, burden of proof, 169. ' depositions as evidence, 169, 170. documents, rules as to production and proof of, 170. See Documents. handwriting, when evidence of, admissible, 170. experts, evidence ofj 170. impeaching one's own witness, 170. intent, in what cases may be shown, 171. judicial notice, when court will take, 171. leading questions, when and how far allowed, 172. mailing letter, presumption as to, 172. reasonable time, question of what is, how decided, 172. receipts, when terms of, may and may not be contradicted by parol, 172. INDEX. 697 TRIAL— Continued. statute of limitations, new promise, when question for court and when for jury, 172. usage, proof of, when admissible, 172. variance, when objection on ground of, to be taken, 172. receiving evidence conditionally, 172. cross-examination, limits of, 172. cross-examination of party to cause, 173. reopening case to let in evidence, 173. withdrawing, a juror, 173. surrebuttal, right of, 173. non-suit, involuntary, not allowed irj Federal courts, 17S. voluntary, when allowed and when not, 173. dismission action against one pf several, 173. ■ demurrer to evidence, 174. charging the jury, general rules as to, 174. hypothetical questions, 174. commenting upon the evidence, 175. written instruments, 175. oral contracts, 175. falsus in uno, 175. directing verdict, 175. In Criminal Gases, constitutional provision as to right of trial by jury, 308. cannot be waived, 308. ^ district attorney, duty of to prosecute, 309. exception as to offences against municipal ordinances, 309. sejiarate trial, when not of right, 309. discretionary with court, 309. presence of prisoner, when necessary, 309. when he may plead by attorney, 309. must be confronted with witness, 309, 310. exception to this rule, 310. right to open and close always with the prosecution, 310. onus probandi, in absence of statute rests on prosecution, 310. compelling party to disclose what he expects to prove by a witnesses, 310. • new evidence, when may be introduced after close of case, 310. accomplice, who is, 311. degree of credit to be given, 312. corroboration of, need not extend to whole testimony, 312. autre fois acquit, what will support plea of, 312. bigamy, evidence on trial for, 312. character, force of evidence as to, 313. confessions, when evidence of, admissible, 313. coverture as a defence, 313. declarations, evidence of, when admissible, 313. discharge of jury during trial, discretionary with court, 314. 88 698 INDEX. TRIAL— Continued. but discretionary power does not mean arbitrary choice, 314. instance where such power may be exercised, 314. evidence, weight and effect of, 314. indictment, objections to at the trial, 314. insanity as a defence, 314. traits of character as indicia of, 315. rebutting evidence of, 315. inability to resist wrong, 315. barbarity of the killing not of itself evidence of, 315. ignorance of law as a defence, 315. intent,' design, what is evidence of, 315. reasonable doubt, what is, 316. threats, when made by defendant against deceased, rule as to admission of evidence of, 316. court giving its opinion upon the facts, 313. See Cbiminal Pboceduee. TRIALS, SUMMARY. See Summary Trials. TRUSTEES, sales by, 247. commissions to, table of, 505. infants and non compotes mentis, 455-460. statutory provisions as to, 469-471. UNITED STATES, when plaintiffs, supreme court District Columbia has jurisdic- tion, 2. false claims against, 4. costs not chargeable to, 205. courts of. See Sitpreme Court United States ; Circuit Court United States ; District Court United States. ofllcers of, supreme court District Columbia may administer oaths to, 9. UNITED STATES COMMISSIONERS. powers of, in extradition cases. See Extradition. may issue warrants as to offences against United States, 275-277. UNITED STATES, SUPREME COURT OF THE See Supreme Court of the United States. USAGE, cannot contradict rule of law, 172. or legal effect of contract, 172. or unambiguous terms of contract, 172. VARIANCE, objection to, when to be; taken, 172. VENIRE, writs of, how issued and served, 285. INDEX. 699 VERDICT, In CiTil Cases, for plaintiff, form of, Rule 51, p. 176. defendant, form of, Rule 51, p. 176. wh6n some counts are for plaintiff and some for defendant, Rule 51, pp. 176, 177. sufllciency of, 177. amendment of, 177. statute of jeofailsapplies to, 177. what may be made, 177. special, how stated, 177. parties may prepare, 177. form and suflaciericy of, 177. not finding facts, imperfect, 177. in such case, new trial, 178. subject to opinion of court, form of. Rule 53, p. 178. motion for judgment on, heard in general term, 178. In Criminal Ca^es, of less offence than charged, 317. against one or more of several joint defendants, 317.. supported if conformable to any one count, 317. general good, if one count be good, 318. construction of, rule as to, 318. sealed, 318. when agreed to, defendant no right to a poll, 318. defendant's right to have jury present in court, 318. rule when there is no agreement, 318. cannot beteceived in capital case, 318. i VERIFICATION of equity pleadings. See Equity Practice. VOID JUDGMENT. See Judgment. WITNESSES In Civil Cases, interested parties may testify as, 147, 148. exceptions to the rule, 148. husband and wife, competency of, as, 148, 149. I not to be excluded on account of color, 149. in actions by and against executors and administrators, 149. R. S. U. S., sec. 858, applies to District of Columbia, 149. and to trials where United States is party, 149. scope of the statute, 149, 150. subpoenas for, to run into another district, 150. attachment for, may be executed in other district, when, 150. distance, how computed, 150. for witnesses for United States, 150. provisions of R. S. U. S., sec. 877, p. 150. this section mandatory, 150. attachment of, 150. aflfldavit for, what to state, 150. 700 INDEX. WITNESSES— Continued. subpoena and service must both be valid, 150. validity not created by admission, 160. ' service must be in conformity with law^ of court, 150, separation of, rarely resorted to in civil matters, 166. court may order, on good grounds, 166. examination of, on voir dire, 166, 167. incompetency of, on conviction of felony, 167. impeaching one's own, 170, 171. experts, 170. cannot state conclusions from common observation, 170. testimony pf, as to sanity of accused, 170. See EviDBNCE ; Trial. In Criminal Cases, subpoena for, form of, 288. provisions of R. S. U. S., sec. 877, p. 289. may run into any district, 289. for defendant, when may be at cost of government, 289. quaere, whether, R. S. U. S., sec. 878, is in force in District of Columbia, 289. recognizance of, 289, 290. detained, accommodations for, 290. accused may be, in his own behalf, 290, 291. perjury, persons convicted of, incompetent as, 291. and so of subornation of, 291. Congress, testimony before not to be used in criminal proceed- ings, 291, 292. pleadings, disclosures, &c., rule as to, 292. provisions of R. S. U. S., sec. 860, p. 292. compulsoi'y process for, defendants to have ; constitutional pro- vision, 292. ambassadors and consuls as, exempt from process, 293. oaths to, district attorney and assistants may administer, 293. jail, no writ necessary to bring witness from, 293. See Criminal Phooedurb ; Evtdencb. WRITS, of summons, form of. Rule 14, p. 59. attachment, Rule 96, p. 229. attachment and garnishment, Rule 15, p. 60. attachment for rent, Rule 16, pp. 64, 65. replevin, 69. certiorari, 76, 77, 78. quo warranto, 76. mandamus, 76, 77. prohibition, 78. habeas corpus, 78-82. by whom to be served. See Service of Process. of venire, how issued and served, 285, error. See Appeal, INDEX. 701 WRITS— Continued. fieri facias, Rule 96, p. 221. habere fodias. Rule 93, pp. 221, 222. retcymo habendo, Rule 95, p. 222, special, of execution, 222. seire facias, 231-233. of subpoena, 288, 289, 373-375. (For Writs in Admiralty Process, see Admiralty.)