RULES SUPREME COURT DISTRICT OF COLUMBIA 1919 Jk/H*±>< THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW lumtna I, John t of the Dis- trict of Coiumoia, ao nereDy certny tnai tne -Kiues of Practice contained within this volume, are the rules promulgated to be in effect on and after December 1, 1913, together with such additional Rules as have been promulgated together with all amendments that have been adopted from said date to and including the 31st day of May, 1919. John R. Young, [Seal.] Clerk. - RULES OF THE SUPREME COURT OF THE DISTRICT OF COLUMBIA ADOPTED AT THE APRIL TERM, 1909, AS REVISED TO NOVEMBER 15, 1913, WITH ALL AMENDMENTS TO MAY 31, 1919. WASHINGTON: THE LAW REPORTER PRINTING COMPANY 1919 Copyright, 1919 BY The Law Reporter Printing Company Washington, D. C. 7 I'll ! CONTENTS. Page Law Rules... 5 Equity Rules. 55 Index to Law and Equity Rules 88 Admiralty Rules 89 Index to Admiralty Rules 108 Probate Rules 109 Index to Probate Rules 126 KS7173 LAW RULES. TERMS OF COURT. 1 1 . The terms of court shall begin as follows : Of the general term on the — First Monday in January, April and October. Of the circuit courts on the — First Tuesday in January, April and October. Of the equity courts on the — First Tuesday in each month. Of the district court on the — - First Monday in January and July. Of the criminal courts on the — First Tuesday in January, April and October. Provided, that whenever the first day of any term shall fall on a legal holiday, such term shall begin on the next business day. 2. Continuation of. — Each term shall continue until the commencement of the next term, and, as to any particular cause, until the final disposition of any motion, petition or bill of excep- tions contemplated by and filed or submitted within the time allowed by these rules. 3. Naturalization Hearings. — Hearings on petitions for naturalization shall be held on the first Monday of each month, unless that be a legal holiday, then on the next business day. INTERLOCUTORY ORDERS. 2 Any justice of the court may, at chambers (as well in vaca- tion as in term), make interlocutory orders, at law or in equity, (5) 6 LAW RULES in the same manner and with the same effect as the court could in term, and the same shall be entered in the minutes of the court. MINUTES OF COURT. 3 1 . The proceedings of the court shall be recorded in the minutes in due legal form by the clerk. 2. Separate minute books shall be kept for lunacy, habeas corpus and extradition proceedings. CLERK OF COURT. 4 1. Office Hours. — The clerk shall- keep his office open from 9 o'clock a. m. until 4 o'clock p. m., excepting Sundays and legal holidays. 2. Papers and Exhibits, Filing By. — It shall be the duty of the clerk, upon receiving and filing any paper in a cause, 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. 3. Accounts of Deposits. — The clerk shall provide a book in which he shall keep a true account of all moneys or funds or securities in the registry of the 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 touching the safe-keeping or investment, the amount of interest thereon received 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 at each regular term thereof a detailed report, showing the various funds in his hands as such clerk or as register, where and by what authority the same are deposited, kept, or invested, and his vouchers shall be presented with such report, and together they shall thereupon be filed amongst the records of the court. (Sees. 798, 995, 996, R. S. U. $.). AMENDMENT TO RULE 5. 3. A former judge of a court of the United States, or of a court of record of a State; law officers of the United States nominated by the President of the United States, and by and with the advice and consent of the Senate appointed by him, and persons who have been such law officers, upon satisfactory evidence of good moral character and payment of the prescribed fee may be admitted upon the report of said committee. — [Amended June 12, 1919.] LAW RULES 7 ADMISSION TO THE BAR. 5 1. Applications for admission to the bar, except when other- wise directed by the court, shall be made in writing, addressed to the court in general term, and be referred by the clerk, with- out further order of the court, to the committee on examination for its report; and any applicant who has been admitted to prac- tice law in a court of general jurisdiction of any State or Terri- tory, while a non-resident of the District of Columbia, may, upon satisfactory evidence of good moral character and upon the report of said committee, and after examination as to fit- ness, or, in the discretion of the court, without such examina- tion, be admitted to the bar, provided 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. No student shall be admitted until after such examination and proof of good moral character, and that he has studied at least three years under the direction of some competent attorney. Diligent study in any law school shall, to the extent thereof, be computed as part of said three years, and an academic year in such school shall be considered a year within the meaning of the rule. (As amended July 1, 1918.) 2. Application for. — Each applicant for admission to the bar shall file with the clerk such application in writing, in which he shall state, under oath or affirmation, his name, age, and resi- dence, and that he is a citizen of the United States or a citizen of one of the insular possessions of the United States, not owing allegiance to any other sovereignty, and if he shall apply for admission because he is a member of the bar of another court, he shall state the name of such court, the time of his admission thereto, when and where he studied law, and for what length of time; but if not a member of the bar of any court, the ap- plicant shall state with what attorney, or in what law school, he has studied law, and when and for what length of time he has so studied, and also what law books he has read. (As amended July 2, 1918). 8 LAW RULES 3. Examination Fees. — Each applicant for admission to the bar shall pay the sum of ten dollars to the chairman or secretary of the committee on examination to be applied by said committee as it shall decide. (As amended May 7, 1919.) 4. Oath. — Applicants upon being admitted to the bar must take the oath prescribed by section 2 18 of the Code. 5. Clerk's Fee. — The clerk shall be entitled to a fee of one dollar for each admission to the bar, and one dollar for each certificate of admission. SUSPENSION AND REMOVAL OF ATTORNEYS. 1. Causes for. — Dishonesty, misconduct in office, conviction of crime involving moral turpitude, or unprofessional conduct involving moral turpitude, shall be cause for suspending or re- moving any attorney from the office of member of the bar of this court. 2. Committee on Grievances. — Whenever complaint in writ- ing shall be presented to this court in general term, charging a member of the bar of the court with any of the causes for suspen- sion or removal, and setting forth the facts upon which the- accu- sation is grounded, such complaint shall be forthwith referred to a standing committee of five members of the bar of the court to be known as the committee on grievances, to be appointed by the court, and who shall serve for one year and until their successors are appointed; and it shall be the duty of said committee forthwith to investigate such complaint and to report thereon to the court, stating whether the committee deem the facts, as ascertained by them, to be insufficient to support such complaint or deem it proper upon such facts that the member so charged should be called upon tp answer. 3. Charges and Notice. — In the latter event a charge shall be formulated by the committee and submitted with such report, and if the court shall so order, shall be filed with the clerk of the court. Whereupon the following proceedings shall be had: A copy of the charge, certified by the clerk, together with a notifica- LAW RULES 9 tion that at a time to be designated therein the court will proceed to hear and determine the same, shall be forthwith served upon such member by the marshal, or otherwise as the court may- direct in case of the inability of the marshal to serve the same. Said committee, by one or more of its members, shall present and prosecute such charge, and the same shall be tried. Upon all hearings subsequent to the filing thereof the respondent shall be entitled to be present, to be heard by himself or counsel, and upon the trial to present evidence in his defense. If upon the trial the court shall find the respondent guilty of the charge, he may be removed from office and his name stricken from the roll of attorneys and counselors of the court, or he may be suspended from practice before the court during such time as the court may deem proper. 4. Conduct in Judicial Proceeding — Inquiry. — If, at any time, the conduct of a member of the bar of the court, in any judicial proceeding therein, with which proceeding such member was or is connected, as counsel or otherwise, shall appear to the court at general term or special term to be a proper subject of inquiry, then and in such case, the matter may be referred by such court to the said committee on grievances, with directions to investigate the same and to report thereon; and if the said com- mittee shall recommend that such member be called upon to answer in respect of his said conduct, the committee shall formu- late against such member such charge as the circumstances may require and submit the same to the court with their said report to be dealt with as in section 3 provided. 5. Committee to Inquire Into All Cases. — It shall further- more be the duty of said committee to inquire into all cases of alleged misconduct of members of the bar which shall otherwise come to their notice and which if true would constitute cause for suspension or removal as above defined; and if upon such inquiry the committee- shall in any instance deem the case a proper one for action by the court, the committee shall so report to the court and shall formulate such charge of misbehavior as the circum- stances may require, and submit the same to the court with their report, to be dealt with as in section 3 provided. 10 LAW RULES 6. Failure of Service. — If service can not be had upon an accused member of the bar of a charge preferred against him under the provisions of the foregoing sections, the court may in its discretion order that such member shall be suspended from practice until such service shall be had, and in the meantime no paper signed by him as attorney and relating to any legal pro- ceeding in the court shall be recorded or filed in the clerk's office. 7. Prosecution Reserved to Court. — Nothing herein shall be construed to deprive the court of power upon its own initiative to direct the preferring of charges against a member of the bar and the trial thereof, or of the power to appoint prosecutors to present and prosecute the same, or to deprive the court of any other power in the premises which it may possess. BONDS AND UNDERTAKINGS. 7 1. Approval and Notice. — In all cases where a bond, under- taking or security with surety is required by law or rule of court to be executed and to be approved by the court or by one of the justices or the clerk thereof and filed in order to suspend the entry of judgment, or to act as a supersedeas, or to discharge any me- chanic's lien, or any property held under any process of attach- ment, replevin, or any other judicial process, such approval shall not be made except upon two days' notice, in writing, to the opposite party in interest or his attorney, of the application therefor or the written waiver of such notice, and without such notice or waiver such approval shall not be operative. Such notice shall contain the name and address of the proposed surety. If the surety be a corporation holding a certificate of authority from the Secretary of the Treasury to do business within the District of Columbia, and having a process agent in said District, the notice hereinbefore mentioned shall not be required; but in lieu thereof, there shall accompany the signature of such corporation a certificate of the Clerk of the Supreme Court of the District, that said corporation has the authority and agent above men- tioned. Sureties shall not be named in the alternative. 2. Insufficient Security. — The court, on being satisfied that the security in any bond or undertaking shall have become in- LAW RULES 1 1 sufficient since the approval thereof, may pass an order requiring such further security within a specified time as it may deem proper and in default of compliance with said order such action may be had and such proceedings taken as if such original bond or undertaking had never been filed, or the court may pass such further order in the premises as justice may require. 3. Members of Bar and Officers of Court. — No member of the bar in active practice or other officer of the court shall be accepted as a surety upon any bond or undertaking requiring the approval of the court or the clerk. HOLIDAYS AND SUNDAYS. 8 1. When time is limited, either by these rules, or by order of court, Sundays and legal holidays shall be excluded, unless other- wise expressly stated. Saturday half-holidays shall not be counted in such excluded days. 2. Computation OF Time. — The day on which any rule, order, writ, notice, or paper shall be entered or served, shall be excluded in computing the time for compliance therewith; and the day on which a compliance therewith is required shall be included. ATTACHMENT. 9 1. Plaintiff's Affidavit. — The affidavit on behalf of plain- tiff, prescribed by section 445 of the Code, shall be in the follow- ng or equivalent form : Personally appeared before me , who first being duly sworn, upon his oath declares and says: that he is plaintiff named in the declaration filed (herewith) in said court, on the day of 19 — , wherein — plaintiff — , and defendant — , that he knows that the said defendant — , in said declaration named and further, that the plaintiff — ha — a just right to recover against the said de- fendant — what — he — claim — in the declaration filed as aforesaid, viz: the sum with interest for as per bill of particulars with said declaration filed. Subscribed and sworn to before me this day of ■ A. D. 19—. 12 LAW RULES 2. Supporting Affidavit. — The supporting affidavit pre- scribed by section 445 of the Code shall be in the following or equivalent form: Personally appeared before me who, first being duly sworn, on his oath declares and says: that he makes this affidavit as a wit- ness for the plaintiff — , in the declaration filed (herewith) in said court, on the day , 19 — , wherein plaintiff — , and defendant — , and in support of the affidavit of filed herewith ; that he knows that the said defendant -and, further, that he is acquainted with the business relations of the said plaintiff — and defendant — and knows that the said plaintiff — ha — a just right to recover against the said defendant — what — he — claim — in the declaration filed as aforesaid, viz: the sum of with interest for — as per bill of particulars with said declaration filed. Subscribed and sworn to before me this day of- 19—. 3. Form of Bond. — The bond prescribed by section 445 of the Code shall be in the following or equivalent form : Know all Men by these Presents, That we ■ , as principal — , and , as suret — , are held and firmly bound unto the above-named in the full sum of dollars to be paid to the said executors, administrators, successors, or assigns. To which payment, well and truly to be made, we bind ourselves, and each of us, jointly and severally, and our and each of our heirs, executors, administrators, successors, and assigns, firmly by these presents. Sealed with our seals, and dated this day of , in the year of our Lord one thousand nine hundred and . Whereas, the above-named has sued out a writ of attachment against the lands and tenements, goods, chattels, and credits of the said defendant found in the District of Columbia. Now, therefore, the condition of this obligation is such, That if the above-named shall make good to the said de- fendant all costs and damages which he may sustain by reason of the wrong- ful suing out of said attachment, then this obligation shall be void; otherwise the same shall be and remain in full force and virtue. Sealed and delivered in presence of — (seal.) (seal.) Approved the day of , 19 — . , Clerk. By , Assistant Clerk. LAW RULES 13 4. Form of Writ. — The writ of attachment and garnishment, and notice, shall be in the following or equivalent form : 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 — land and tenements, property, and credits which shall be found in this District, to the value of $ , with interest , being the amount of the plaintiff — demand against the defendant — , as shown by — h — affidavit — duly supported and filed, and claimed in — h — declaration ; and the further sum of $ , for the costs and charges which may accrue in the premises; and the same, so attached, safely keep, subject to the orders of the court, unless the defendant — or the person in whose possession the property is attached, deliver to you, to be filed herewith, his undertaking, with sufficient surety or sureties, to abide by and perform the judgment of the court in relation to said property. And should you attach the defendant — property or credits in the possession of any other person or persons than the defendant — you shall notify such person or persons of such seizure by virtue of this writ of attachment, and serve a notice upon — h — or them, as well as on said defendant—, to appear in said court on or before the twentieth day, exclusive of Sundays and legal holidays, occurring after the service of said notice, to show cause, if any there be, why the property or credits so attached should not be condemned and execution thereof had. Witness, The Honorable , Chief Justice of said court,. the day of , A. D. 19—. , Clerk. By , Assistant Clerk. NOTICE. , 19— To — , Defendant — , , Garnishee — . You are hereby notified to appear in the Supreme Court of the District of Columbia on or before the twentieth day, exclusive of Sundays and legal holidays, after service hereof, and show cause, if any there be, why the property or credits of the said defendant — , seized by virtue of the foregoing writ of attachment in the hands of , Garnishee — , (of which seizure the said garnishee is hereby notified), should not be condemned and exe- cution thereof had. U. S. Marshal. 14 LAW RULES 5. Interrogatories. — The notice to the garnishee to answer interrogatories shall be in the following or equivalent form, and the interrogatories to be answered may be to the following effect: NOTICE. To , Garnishee: You are required to answer the following interrogatories under oath, within ten days after service hereof. And should you neglect or refuse so to do, judgment may be entered against you for an amount sufficient to pay the plaintiff's claim, with interest and costs of suit. Attorney for Plaintiff — . INTERROGATORIES. 1. Were you, at the time of the service of the annexed writ of attachment, or have you been, between the time of such service and the filing of your answer to this interrogatory, indebted to the defendant — ? If so, how, and in what amount? Answer: . 2. Had you, at the time of the service of the annexed writ of attachment, or have you had, between the time of such service and the filing of your answer to this interrogatory, any goods, chattels, or credits of the defendant — in your possession or charge? If so, what? Answer: . And such other interrogatories as the plaintiff may think proper to propound. GARNISHEE'S ANSWER, ISSUE ON. 10 After the filing of the answer of a garnishee, he may give notice- thereof to the party at whose instance the garnishment was issued, and if such party shall not join issue thereon within ten days after such notice, the garnishee shall be entitled as of course to judg- ment in accordance with his answer, unless the time shall be extended by the court. ATTACHMENT FOR RENT. 11 Form of Writ. — The writ of attachment for rent shall be in the following or equivalent form: LAW RULES 15 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, on the premises occupied by him as tenant of the plaintiff in this District, as are subject to plaintiff's lien for rent, to the value of dollars ($ ), the amount of the plaintiff's lien against the defendant for rent, as shown by the plaintiff's affidavit duly filed in the cause and as claimed in his declaration, and return this writ into the clerk's office of said court immediately, so indorsed as to show when and how you have executed the same. Witness the Honorable - , Chief Justice of said court, the day of , A. D. 19—. , Clerk. By , Assistant Clerk. REPLEVIN. 12 1. Form of Undertaking.— The undertaking required by sec- tion 1552 of the Code shall be in the following or equivalent form: Whereas, the plaintiff about to sue out a writ of replevin against the defendant — , in this action; therefore, The said plaintiff—, and , suret — , appearing, and submitting to the jurisdiction of the Supreme Court of the District of Colum- bia, hereby undertake for themselves, and each of them, their and each of their heirs, executors, and administrators, successors, or assigns, to abide by and perform the judgment of said court in the premises, which judgment may be rendered against all the parties whose names are hereto subscribed. Signed this day of A. D. 19—. Approved: , 19 — . , Clerk. By , Assistant Clerk. 2. Form of Writ. — Upon fding the declaration in»replevin and said undertaking the clerk shall issue a writ of replevin in the following or equivalent form: The President of the United States to the Marshal for said District, greeting: The plaintiff in this action having entered into an undertaking, with surety as required by law, you are hereby commanded to take the goods and chattels 16 LAW RULES claimed by the plaintiff, to wit [describe them], from the defendant, and deliver the same to the plaintiff. And warn the defendant to appear in said court on or before the twentieth day, exclusive of Sundays and legal holidays, occurring after the day of the service of this writ, and answer said action; and that if he make default in so doing the plaintiff may proceed to judgment and execution. Witness the Honorable , Chief Justice of said court, the day of , A. D. 19—. , Clerk. By , Assistant Clerk. 3. Marshal to Retain Property Three Days. — 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 may make either of the motions, or serve notice thereof as provided in sections 1557 and 1558 of the Code, and until, and in accordance with, the dis- position by the court of any motion so made. 4. Defendant's Undertaking, Form of. — The undertaking of the defendant provided for in section 1557 of the Code shall be in the following or equivalent form: Whereas, the goods and chattels seized by the marshal under the writ of replevin herein are to be delivered to the defendant — upon the approval hereof, therefore, The defendant , and , suret — , appearing, and, submitting to the jurisdiction of the Supreme Court of the District of Colum- bia, hereby undertake for themselves, and each of them, their and each of their heirs, executors, and administrators, successors, or assigns, to abide by and perform the judgment of said court in the premises, which judgment may be rendered against all the parties whose names are hereto subscribed. Signed this day of , A. D. 19 — . Approved: ■ , 19 — . , Clerk. By , Assistant Clerk. 5. Writ of Retorno Habendo. — In replevin, if the judgment be that the plaintiff return the chattel or chattels in controversy, the following or equivalent shall be the form of the writ: The President of the United States to the Marshal for said District, greeting: You are hereby commanded that, without delay, you cause to be returned to the defendant the same chattels which, by the original writ of replevin in LAW RULES 17 this action you took from him and delivered to the plaintiff, to wit [describe them], which chattels the said defendant lately, in said court, recovered against the said plaintiff, together with $ damages and $ costs of suit; which chattels the defendant is to hold irrepleviable forever. And if the said chattels be eloigned by the plaintiff so that they can not be found in this District, you are further commanded to make of the goods and chattels, lands, and tenements of said plaintiff and his surety, $ , the amount adjudged to the defendant for the value of the said chattels, and $— —damages for the detention of the same, and the further sum of $ for costs and charges about said suit expended, as appears of record. And do you return this writ into the office of the clerk of said court, so indorsed as to show how you have executed the same. Witness the Honorable , Chief Justice of said court f this day of , A. D. 19—. , Clerk. By , Assistant Clerk. CAPTIONS TO FORMS AND PLEADINGS. 13 The caption to forms and pleadings shall be in the following or equivalent form : IX THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. A. B., ) Plaintiff, vs I No ^ t-> / 7 ( A t Law. C. D., et al., \ Defendants. ) Provided that the caption to the first pleading in a cause shall contain the names of all the parties. COMMENCEMENT OF SUIT AND DEPOSIT FOR COSTS. 14 1. Every action shall be commenced by filing in the clerk's office a libel, information, bill, petition, or declaration, as the case may be, and in case of appeal from or plea of title before the municipal court of the District of Columbia, by filing the papers and a transcript from its docket; and in each case the plaintiff or appellant shall make the deposit towards clerk's costs, required by law, unless such deposit shall be dispensed with by order of the court; whereupon the clerk shall immediately enter the cause upon the proper docket, in order of such 18 LAW RULES filing, and number it accordingly. Provided, that in cases of certiorari from the municipal court on the ground of concur- rent jurisdiction, the petitioner shall make a deposit of ten dollars for costs with the clerk. Upon the plaintiff's filing his declara- tion, as required by section 4 of rule 21 he also shall be required to deposit at least ten dollars. 2. Intervenors.- — In all cases where an intervening motion or petition is allowed to be filed in any cause the intervenor shall make a deposit with the clerk towards costs, in the discretion of the clerk. 3. Additional Deposit. — Whenever the deposit toward costs has been exhausted, the clerk may demand a reasonable addi- tional deposit and may decline to perform any further service in the cause until such demand is complied with. COSTS. 15 Non-Pv'Esident Plaintiff — Form of Undertaking. — The un- dertaking prescribed by section 175 of the Code shall be in the following or equivalent form : The plaintiff — , and , his suret , appearing and submitting to the jurisdiction of the court, hereby undertake for them- selves and each of them, their and each of their heirs, executors, administra- tors, successors, and assigns, to make good all costs and charges that the defendant may be put to in case judgment be given against the plaintiff; and they further agree that such judgment against the plaintiff may be rendered against all the parties .whose names are hereto affixed. Approved, , 19 — . , Clerk. 16 Recovery Less Than Court's Jurisdiction. — If the declara- tion state a cause of action of which the court has jurisdiction, but the verdict find the money payable by the defendant to the plaintiff to be less than the lowest sum of which the court has LAW RULES 19 jurisdiction, the plaintiff shall have judgment for the amount found due to him from the defendant, and the costs may be as the court shall order. MUNICIPAL COURT CAUSES. 17 1. Appeal Calendar. — Causes appealed from the municipal court shall, as soon as docketed, and causes brought up from said court on certiorari shall, as soon as at issue, be entered by the clerk, for trial, on a separate calendar to be designated the appeal calendar. 2. Summons to Appellee. — The summons prescribed by sec- tion 75 of the Code shall be in the following or equivalent form: IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. A. B., Plaintiff, Appell , 1 No. . vs. \ At Law. CD., Defendant, Appell . ) The President of the United States to the appellee, greeting: The appellant having docketed an appeal in the supreme court of the Dis- trict of Columbia, from the judgment of the municipal court of the District of Columbia; therefore, You are Hereby Summoned to appear in said court, on or before the tenth day, exclusive of Sundays and legal holidays, after the service of this writ on you, and show cause why the said appellant should not have judgment against you therein. Witness the Honorable , Chief Justice of said court, the day of , A. D. 19—. , Clerk. , Attorney. By , Assistant Clerk. 18 Failure of Appellant to Pay Marshal's I'ee. — If the ap- pellant 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. LANDLORD AND TENANT. 19 1. Summary Judgment on Affidavit. — Within ten days after the docketing of an appeal from a judgment of the municipal court in a landlord and tenant proceeding and the service of the 20 LAW RULES summons upon the appellee or the entering of his appearance in the cause, the plaintiff or his agent may file an affidavit setting out the grounds upon which he claims possession of the premises described in the complaint. A copy of such affidavit shall be served upon the defendant or his attorney of record and the plain- tiff shall be entitled to a judgment against the defendant for possession of the property described in the complaint and costs unless the defendant shall within ten days after service of copy of said affidavit file an affidavit of defense denying the right of the plaintiff to the possession of the property in question and specifically stating in precise and distinct terms the grounds of his defense, which must b,e such as would, if true, be sufficient to defeat plaintiff's recovery. 2. Claim for Rent and Damages. — The plaintiff or his agent may also in said affidavit set out distinctly his claim for such arrears of rent, if any, as was claimed before the municipal court, and for intervening damages to the leased property and com- pensation for the use and occupation thereof from the date of the judgment appealed from to the date of the judgment of the circuit court, and he shall be entitled to a judgment against the defendant for the amount or amounts so claimed, together with the intervening damages, accrued from the date of the filing of said affidavit to the day of the entry of judgment, unless the defendant shall in his affidavit of defense specifically state in precise and distinct terms the ground of his defense thereto, which must be such as would, if true, be sufficient to defeat plain- tiff's claim in whole or in part. If the affidavit of the defendant denies only a part of plaintiff's claim, the plaintiff may elect to take judgment for the part not denied by the defendant's affidavit. 3. When Corporation Defendant. — When the defendant is a corporation, the affidavit of defense may be made by its officer, agent, or attorney. PLEA OF TITLE. 20 1. Rules Applicable. — A cause certified to this court by the municipal court on plea of title, shall be entered by the clerk, for trial, on the appeal calendar, immediately on being docketed, LAW RULES 21 and the further proceedings therein shall be governed by the provisions of the Code, this rule, and the rules and practice relating to appeals from the municipal court. 2. Failure to Docket. — If the plaintiff fail to make the de- posit for costs or to obtain leave to docket without such deposit, within ten days after the approval by the municipal court of the undertaking required by section 23 of the Code, the defendant may make the deposit or obtain such leave and have the cause dismissed, or he may have a trial of the cause upon its merits. 3. Summons. — No summons or other process shall be neces- sary to require the appearance of either the plaintiff or defendant. CERTIORARI FROM MUNICIPAL COURT. 21 1. Petition and Affidavit. — In order to remove a cause from the municipal court on the ground of concurrent juris- diction, for trial in the Supreme Court of the District of Co- lumbia, under the provisions of section 8 of the Code, the pe- titioner therefor shall present and file with the petition his affi- davit, stating that his application is not for the purpose of delay, and that he believes that he has a just and meritorious defense to the plaintiff's claim, either in whole or in part, and if to a part, then stating to what part thereof. When a writ of cer- tiorari issues upon such application written notice to that effect, accompanied by a copy of the petition for said writ, shall be served upon the opposite party, or upon his attorney in the cause, within five days from the grant thereof. (As amended November 14, 1918.) 2. Municipal Court Not to Be Made Party. — In no case removed by certiorari from the municipal court under the pro- visions of section 8 of the Code shall such municipal court be made a party defendant. 3. Fee for Municipal Court. — It shall be the duty of the petitioner for a writ of certiorari, under section 8 of the Code, to pay to the marshal the sum of fifty cents, to be paid to the municipal court as a fee for certifying the case to the Supreme Court of the District of Columbia. In the event this fee shall not be paid to the marshal as aforesaid, he shall return the writ "Not served because municipal court's fee not paid." { 22 LAW RULES 4. Declaration, Affidavit and Defense. — Within ten days after the return of the municipal court to a writ of certiorari, issued on the ground of concurrent jurisdiction, has been filed in the clerk's office, the plaintiff shall file a declaration upon his cause of action in such form as he may be advised, and in any action arising ex contractu, may with said declaration file 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 defense. A copy of such declaration and affidavit shall be served upon the attorney of record for the defendant and the plaintiff shall be entitled to a judgment for the amount so claimed, with interest and costs, unless the defendant shall within ten days after service of copies of the declaration and affidavit, file such pleading or pleadings as he may be advised, which, if in bar, shall be accompanied by such an affidavit of defense as is required by rule 73, all the provisions of which rule, so far as applicable, are hereby made part of this section. SPECIAL REMEDIAL WRITS. 22 1. Petition to Be Verified. — Motions or applications for special remedial writs, such as writs of quo warranto, manda- mus, certiorari, supersedeas, etc., shall be heard by the circuit or criminal court, or before one of the justices at chambers, but not until a petition, verified by affidavit, which shall be made by the applicant in cases of quo warranto and mandamus, and stating the grounds of the application, has been filed and docketed. 2. Motion to Quash. — Motions to quash, set aside, or dis- solve any of said writs may be heard in the same manner. STIPULATIONS. 23 All stipulations and agreements in a cause shall be invalid, unless the same be reduced to writing, and signed by the parties thereto or their counsel. SERVICE OF PROCESS AND RETURN. 24 1. Copy of Declaration and Affidavit with Writ. — Every writ issued out of the clerk's office to require the defendant's LAW RULES 23 appearance to answer to an action at law shall be accompanied with a copy of the declaration and affidavit, if any, and of any notice thereto subscribed; and the defendant shall be served with said copies, and the return shall show the fact. 2. Summons, When Returnable. — The summons mentioned in section 1536 of the Code, if served, shall be returned into the clerk's office on or before the twentieth day, occurring after service thereof, and if the defendant can not be found shall be returned on the twentieth day, after the day of the issuing thereof. If one or more of several defendants be served, said writ shall be returned as to the parties so served, as above directed. 3. Service by Publication. — All notices which relate to pro- ceedings in the Supreme Court of the District of Columbia, the publication of which is required by law or by these rules, or any order of court, shall be published in the Washington Law Re- porter, during the time required by law, in addition to such other papers as may be specially ordered or which may be selected by the parties. 4. Proof of Publication. — The proof of publication shall be by affidavit of the publisher, editor, agent, manager, or super- intendent of the paper, accompanied by a copy of the order as published, which affidavit shall state how many and at what times the order was published in the paper. COPIES TO BE SERVED. 25 A copy of every pleading at law or in equity subsequent to the original declaration or bill, and of every motion or petition not grantable of course, exception to any pleading or auditor's report, and of every affidavit, shall be served within two days after the filing thereof, unless otherwise ordered, upon each opposite party affected thereby whose appearance is entered in the cause, or upon his attorney of record. PLEADING. 26 1. Brevity Required.— Prolixity and unnecessary verbiage shall be avoided in all pleadings. 2. Signature. — Every pleading shall be signed by the party or his attorney. 24 LAW RULES 3. Written or Printed and Endorsed. — All papers offered for filing shall be fairly and legibly written or printed in the English language and endorsed with the number and title of the cause, and an appropriate designation; otherwise the clerk may refuse to file the same. 4. Prayer for Judgment — No formal conclusion or prayer for judgment shall be necessary in any pleading. 5. Notice to Plead. — No notice or rule to plead or demand of plea shall be necessary. 6. Additional Time to Plead. — Upon application of either party, for cause shown, the court may enlarge the time for plead- ing, or may excuse failure to plead within the time prescribed. DECLARATION. 27 1. Shall State What — The declaration shall state only the facts necessary to constitute the cause of action. 2. Commencement and Conclusion. The plaintiff sues the defendant for — [here state the cause of action, and conclude as follows or to the like effect]: And the plaintiff claims $ , with interest thereon from the day of , 19 — , besides costs. [ Or, if the action is in replevin as in section 1550 of the Code. ] If the cause of action accrue to or against the parties in some special char- acter — for example, as executor, or administrator, or trustee, or assignee in bankruptcy, or otherwise, or as a corporation, partners, or surviving partner, or as husband and wife — it will promote brevity and clearness to state such character in the title of the cause, thus: A. B.. EXECUTOR OF , DECEASED, PLAINTIFF, ] v. No. . C. D., ADMINISTRATOR OF , DECEASED, DEFENDANT. J At Law. The plaintiff sues the defendant for — - [state the cause of action, and con- clude as above]. 3. Money Counts Combined. — The money counts may be combined in a single count, thus: 1. For money payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendant; and for work done and material provided by the plaintiff for the defendant at his request; and for money lent by the plaintiff to the defendant; and for money paid by the plaintiff for the defendant at his request; and for money received by the defendant for the use of the plaintiff; and for money found to be due from the defendant to the plain- LAW RULES 25 tiff on accounts stated between them. And the plaintiff claims $ , with interest from the day of , 19 — , according to the particu- lars of demand hereto annexed. And the plaintiff may recover the whole or any part of his claim on any one of the considerations stated. Money Counts Separate. — For goods bargained and sold by the plaintiff to the defendant. For goods sold and delivered by the plaintiff to the defendant. For money lent by the plaintiff to the defendant. For money paid by the plaintiff for the defendant at his request. For money received by the defendant for the use of the plaintiff. For interest upon moneys due and owing from the defendant to the plain- tiff, and for the forbearance of interest, by the plaintiff at the defendant's request, of moneys due and owing him by the plaintiff. For money found to be due from the defendant to the plaintiff on accounts stated between them. 4. On Bills and Notes— See sections 1205, 1206 and 1207 of the Code. Holder of note against all the parties. — That the defendant [the maker] on the day of , 19 — , by his promissory note, now overdue, promised to pay to the defendant , [payee] [or order ] $ months after date, and the said payee endorsed the said note to the defendant ■ — ■ — — , who endorsed it to the defend- ant — — , who endorsed it to the plaintiff, and the said note was duly presented for payment and was dishonored, whereof each of said endorsers had notice, but the said defendants did not, nor did either of them, pay the same. Holder of bill against all the parties. — That , on the day of , 19 — , by his bill of exchange, now overdue, directed to the defendant [drawee], required him to pay to the defendant , [payee] [or order] $ 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 presented for payment, and was dishonored u hereof the defendants had due notice, but did not pay the same. Payee against maker of note. — That the defendant on the day of , 19—, by his promissory note, now overdue, promised to pay to the plaintiff $ months after date, but did not pay the same. The like on note payable on demand. — -That the defendant on the day of , 19 — , by his promissory note, now overdue, promised to pay to the plaintiff $ on demand, but did not pay the same. The like on note payable at a bank. — That the defendant on t he daj of 26 LAW RULES , 19 — , by his promissory note, now overdue, promised to pay to the plaintiff at bank, Washington [as in the note], $ months after date, but did not pay the same. Endorsee against maker of note. — That the defendant, on the day of , 19 — -, by his promissory note, now overdue, promised to pay to , or order, $ months after date; and the said endorsed the same to the plaintiff; but the defendant did not pay the same. PLEAS. 28 1. Shall State What. — Every plea shall set forth the true defense 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. 2. Commencement and Conclusion. 1 . The defendant says [ state first defense or plea]. 2. And for a further plea defendant says [state the second defense or plea}. 3. And for a further plea defendant says [state the third defense or plea, and so on]. If the plea is to part only of the declaration, say — And for a further plea to [stating to what it is pleaded] , the defendant says. Every second and subsequent defense or plea must be written in a separate paragraph and numbered. 3. Order of. — The order of pleading shall be: 1. To the jurisdiction. 2. To the disability of the plaintiff — abatement. 3. To the disability of the defendant — abatement. 4. To the declaration. 5. In bar. 4. In Abatement — Affidavit. — A plea in abatement shall be accompanied by an affidavit of the defendant, his agent, or attorney as to the truth thereof. REPLICATION, REJOINDER, ETC. 29 1. Time For. — After plea is filed and served, the replication, rejoinder, and so on till issue is joined, shall each be filed and served within ten days after the filing and service of the next LAW RULES 27 preceding pleading; otherwise, on motion and notice thereof, the cause may be dismissed or judgment taken by default, ac- cording as the failure shall be by the plaintiff or defendant. 2. Additional Replication. — Upon cause shown the court may, in its discretion, permit two or more replications to be filed to any plea. 3. Form Of. — 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: 1. To plea of release. — That the alleged release is not the plaintiff's deed [was procured by defendant's fraud]. 2. To plea of set-off. — That the alleged set-off did not accrue within three years before this suit. 3. To plea of self-defense. — That the plaintiff was possessed of land whereon the defendant was trespassing and doing damage, whereupon the plaintiff requested the 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 fifteen years before this suit enjoy as of right and without interruption the alleged way. 5. Replication confessing part of a plea of payment. — And as to the defend- ant'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 de- fendant 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 further prosecute his suit against the defendant as to said sum of $ , parcel, etc.; and as to the residue of the defendant's second plea the plaintiff takes issue thereon. 6. Replication admitting part of a plea of set-off. — The plaintiff 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 indebted, and the plaintiff is willing to set off the said sum of $ — ■ — , parcel of the money claimed by him, against the said sum of $ , in which he was and is so indebted to the defendant, and he does set off the same accordingly, and says that he will not further prosecute his claim or suit against the defend- ant for or in respect of the same. •\ 28 LAW RULES JOINDER IN ISSUE. 30 The joinder in issue may be — The plaintiff joins issue upon the defendant's first plea. The defendant joins issue upon the plaintiff's replication to the first plea. And this form of joinder shall be deemed to be a denial of the substance of the pleading to which it relates and an issue thereon. DEMURRER. 31 1. Form Of. — The form of a demurrer shall be as follows, or to the like effect: The defendant says that the declaration (bill, indictment, or other pleading, as the case may be) is bad in substance. And in the margin thereof the matters of law, intended to be argued, shall be stated, and a demurrer without such statement, or with a frivolous statement, may be stricken out, and judgment entered or decree passed by the court, except that in a criminal case leave to plead over shall be granted as in case of the over- ruling of a demurrer. 2. jpiNDLR in Not Necessary. — It shall not be necessary to file a joinder in demurrer, but the filing of a demurrer shall be considered as making an issue of law. 3. Special — Motion in Lieu Of. — Defects in pleadings which were the subject of special demurrer at common law*, may be taken advantage of by motion to strike out, or other appropriate motion. 4. Pleading Over, or Amending. — Unless otherwise ordered by the court, upon the overruling of a demurrer, the party de- murring shall have ten days to plead over, and, upon the sus- taining of a demurrer the opposite party shall have ten days to amend. PLEA AFTER LAST CONTINUANCE. 32 1. Form of and Affidavit. — If a matter of defense has arisen since the last pleading filed, the party may plead the same in addition to his former defense, in the following or equivalent form: LAW RULES 29 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 — , 19 — , the plaintiff, by deed [or otherwise as the law may permit], released the de- fendant from the said alleged claim. Unless the court shall otherwise order, the plea must be ac- companied with an affidavit of the truth of it, which shall be in the following form: The defendant makes oath and says that the plea hereunto annexed is true in substance and fact. 2. Time to Reply to and Rejoin. — The plaintiff shall reply within five days after service of such plea; and the defendant shall rejoin within two days after service of the replication ; other- wise judgment. MOTION CALENDAR. 33 1. Entry On. — The moving party shall enter on the motion calendar, on the law or equity side of the court, as the case may be, all motions, demurrers, hearings as to sufficiency of pleas, objections for want of parties, exceptions to answers or auditor's reports, and any other interlocutory matters requiring notice or not grantable of course, giving title, attorneys of record, number of cause and nature of hearing. 2. Failure to Calendar. — Where an attorney neglects to calendar any such matter at the time of, or within ten days after, the filing or notice thereof, the opposing attorney may calendar the same and have it disposed of on its merits or dismissed for want of prosecution. 3. Motion Day. — Such matters shall be heard upon a special day set therefor in each week, designated as motion day, unless a special hearing be allowed by the court, or at such other time as the court may designate. The clerk shall enter upon the assignment for each motion day all such matters as have been entered on the motion calendar one day prior thereto. 4. ^Notice. — Notice of such hearing with copies required by law, these rules, or order of court, shall be served at least two days before such hearing. 30 LAW RULES 5. Form of Notice. — Such notice when annexed to the motion, demurrer or other paper to which it relates shall be in the follow- ing or equivalent form: A. B., Attorney for C. D. Take notice that the aforegoing will be for hearing on the day of -, 19—. E. F., Attorney for C. II. Said notice, when not so annexed, shall be in the following or equivalent form : (Caption.) A. B., Attorney for CD. Take notice that the (motion, demurrer or other paper) filed in this cause will be for hearing on the day of , 19—. E. F., Attorney for G. II. 6. Causes Stricken From. — Any such matter on the calendar having been called on two motion days and not disposed of, shall be stricken therefrom unless otherwise ordered, and no such matter will be entertained by the court unless calendared in accordance with this rule, except by special order of court. NOTICE OF TRIAL. 34 After issue joined, and at least twenty days before the term of court at which the cause stands for judgment or trial, either party may give notice of trial in the following or equivalent form: Take notice that the issue joined in this cause will be tried at the next term of this court. P. Q., Attorney for Plaintiff. To Mr. P. D., Attorney for Defendant. As amended May 6, 1919. 35 Note of Issue. — A party to a cause, desiring the same to be calendared for a given term of court, shall furnish the clerk, at least twenty days before such term, a note of issue, containing — 1. The title of the action, and 2. The names of the attorneys. LAW RULES 31 TRIAL CALENDAR. 36 1. Entry of Cause On. — Upon the filing of a note of issue the clerk shall enter the cause upon the trial calendar. But any cause 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, provided that no cause shall be placed on the trial calendar while a demurrer to any pleading is pending. 2. Cause, Not Tried. — A cause placed on the trial calendar shall remain thereon until tried or otherwise disposed of. 3. Stricken From After Two Terms. — A cause upon the trial calendar, regularly called for trial at two terms of the court and not tried, or regularly continued, shall be stricken therefrom, and a record thereof kept in a separate book. 4. Restoring and Dismissing Causes. — A cause so stricken from the calendar shall not be restored thereto except by leave of court upon motion in writing, and good cause shown within one year; and if no such motion be filed within said period, the clerk shall then enter the cause dismissed for want of prosecution. 5. Failure to Try Cause Restored. — A cause so restored, if not tried when called for trial, shall be dismissed at the cost of the plaintiff, unless otherwise ordered by the court. TESTIMONY. 37 1. Spa. Ad Test; Form Of. — The writ of subpoena to a wit- ness shall be in the following or equivalent form : The President of the United States to . You are hereby commanded to appear as witness — for the before circuit court, division No. - - (forthwith), on the — - day of , 19 — , at 10 o'clock A. M. (and bring with you) and not depart the court without leave. WITNESS: The Honorable , Chief Justice of said court, this day of , 19—. , Clerk. By , Assistant Clerk 32 LAW RULES 2. Subpcena Duces Tecum. — No subpoena duces tecum shall be issued in any cause without an order of court. 3. Witnesses, Proof of Attendance. — The proof of the at- tendance of witnesses may be the certificate of the attorney of record, or the commissioner, examiner, or auditor. Such cer- tificate, a blank form of which shall be provided and furnished by the clerk, may be in the following or equivalent form: I, attorney of record (the commissioner, examiner, auditor, taking testimony in the above entitled cause), do hereby certify that the following named persons attended court, before me, as witnesses the num- ber of days set opposite their names on behalf of the plaintiff, defendan t, to wit : 19—. Attorney, Commissioner, Examiner, Auditor. 38 1. Commission to Take. — All motions for commissions to take depositions under section 1060 of the Code shall specify the names and addresses of the witnesses whose testimony is desired. 2. On Interrogatories. — When testimony is to be taken on written interrogatories and cross-interrogatories, such written interrogatories shall be filed in the clerk's office, and a copy thereof served upon the opposite party, at least ten days before the issue of such commission, so that the adverse party may have opportunity to file cross-interrogatories. 3. Carriage and Publication of Commission.— The carriage of the commission shall be intrusted to the party applying for the same, and he shall be responsible for the return thereof. Immediately upon the filing in the clerk's office of a deposi- tion or the return of a commission to take testimony, publication thereof may be made by the clerk. LAW RULES 33 4. Form of Commission. — The commission to take deposi- tions and the return thereto of the commissioner shall be in the following or equivalent form: COMMISSION TO TAKE DEPOSITIONS. The President of the United States to , greeting: You have been duly appointed and you are hereby authorized at a certain day and place or certain days and places to be appointed by you, to cause to come before you and then and there examine on oath or affirmation, upon the interrogatories and cross-interrogatories annexed to this commission (or orally) as witness — for the in the above entitled cause; to reduce testimony to writing and cause the same to be signed by said witness — ; to annex said testimony hereto, close the same under your seal and make return hereof unto this court with all convenient speed. Witness the Honorable , Chief Justice of said court, the day of — , A. D. 19—. , Clerk By , Assistant Clirk COMMISSIONER'S RETURN. I, , the person named as commissioner in the aforegoing commission upon oath depose and say that I shall according to the best of my skill and knowledge, truly, faithfully, and without partiality to any or either of the parties, take the examinations and depositions of every witness produced and examined by virtue of the com- mission hereunto annexed (orally) (upon the interrogatories now, or which may hereafter, before the said commission is closed, be, produced to and left with me, by either of the parties), so help me god. Subscribed and sworn to before me, a , in and for the County of , State of , at , in said County and State, on the day of , A. D. 19 — , by the said , the person named as commissioner in the aforegoing commission. Witness my hand and official seal. At the execution of the aforegoing commission I, , the commissioner therein named first duly took the aforegoing oath at the time and place and before the officer as above set forth. I then proceeded, on the day of , in the year of our Lord nineteen hundred and (19 — ), at the office of in the city (town) of , and state of — , at o'clock, — M., 34 LAW RULES under the said commission, pursuant to notice (and in the presence of the counsel of the respective parties), to take the following depositions, that is to say: , a witness of lawful age, produced on behalf of the , being by me first duly sworn according to law, being examined (orally) on the following interrogatories to him (her) propounded in that behalf, makes oath, deposes, and says as follows, that is to say: (the counsel for the parties having first consented that the testimony taken under the said commission should be taken down stenographically and reduced to type- writing). I Further certify That then and there at the times and places named, the testimony of each of the said witnesses was reduced to writing (as per agreement of counsel) and the testimony of each of the said witnesses was by read over and by signed in my presence, and that I have annexed to the said testimony the commission to me issued, and notice of the taking of such testimony. And I further certify That my fees for taking said testimony are $ , which have been paid by the -, and that I am not of counsel for either party to this cause or interested in the event of the suit; and that I am now about to close the same with said commission under my seal, and being unable to personally return the same to the Supreme Court of the District of Columbia, I shall now place the said deposition — in a sealed envelope directed to the clerk of said court at Washington, D. C, and deposit the same with postage prepaid in the United States mail. Witness my hand and seal this day of , A. D. 19 — . [ seal. ] Commissioner appointed under said commission. Note. — The commissioner shall then annex the depositions and exhibits to the commission by passing tape through each paper, or otherwise, carefully seal up the whole in an envelope, write his name across the seals, and direct as follows: "To the Clerk of the Supreme Court of the District of Columbia, Washington, D. C." He shall also endorse across the end of the package the title and number of the case, the number of the depositions inclosed, in whose behalf taken, the amount of his fee for taking the same, and by whom paid. 39 Affirmation in Lieu of Oath — Whenever under any rule of the Supreme Court of the District of Columbia an oath is or may be required to be taken, the party may, in lieu thereof, if con- scientiously scrupulous of taking an oath, make solemn affir- mation to the truth of the facts stated by him. LAW RULES 35 40 Issues of fact Agreed — After return of service of the decla- ration and summons, if the parties are agreed as to any fact in the cause, they may state the same in writing for trial. 41 1. Proof of Signature — Proof of the signing or endorsing of any instrument of writing upon which recovery is sought in any action at law, or which is pleaded by way of set-off, shall not be required where the fact of such signing or endorsing is alleged in the declaration or plea of set-off, and where such instrument, or a copy thereof, is filed therewith , unless the fact of such signing or endorsing be denied by affidavit of the defendant filed with his plea, or by affidavit of the plaintiff filed with his replication to the plea of set-off, as the case may be. 2. When such plea or replication is filed on behalf of a cor- poration, the affidavit may be by an officer, agent or attorney of such corporation. 3. Where the original instrument is not filed with the declara- tion or plea of set-off, the opposite party shall have the right, upon motion, to inspect such original before pleading and, if necessary, his time to plead may be enlarged for the purpose of making such inspection. NOTICE TO ADMIT DOCUMENTS. 42 1. Either Party May Give — Either party may call on the other party by notice to admit any document, saving all just exceptions. In case of neglect or refusal to admit, the cost of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial the justice certify that the refusal to admit was rea- sonable. 2. Form Of. — The following, or the like, in substance, shall be the form of a notice to admit: Take notice that the plaintiff (defendant) in this cause proposes to adduce in evidence on the trial thereof the several documents hereunder specified, and that the same may be inspected by the defendant [plaintiff], his attorney 36 LAW RULES or agent, at — , on the day of -, 19 — , between the hours ol and ; and that the said defendant [plaintiff] will be required to admit that such of said documents as are herein specified to be originals were respectively written, signed, or executed as they purport, respectively, to have been; that such as are specified as copies are true copies, and such documents as are stated to have been served, sent, or delivered were so served, sent, or delivered, respectively, saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated this day of , 19—. , 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. 3. Admission.— If the party to whom the notice is addressed make the admission, it may be endorsed on or subscribed to the notice, as follows: I consent to make the admission required in the within notice. [ ,19-.] Plaintiff's [Defendant's] Attorney or Agent. I consent to admit the documents numbered 1, 2, 3, 4 in the within notice. f . 19— .1 4. Special Admission. — If the admission be special, it may be made in a separate paper, as follows: I do hereby, as the attorney [agent] for the above-mentioned defendant [plaintiff] , agree to admit in evidence, on the trial of the cause, the paper - LAW RULES 37 writing hereto annexed marked "A" as a true copy of (stale of what), and I do also hereby agree, as such attorney, to admit in evidence on such trial the paper writing hereto annexed and marked "B" as a true copy, etc. PRODUCTION OF BOOKS AND WRITINGS. 43 1. Notice For. — The motion to require a party to produce books or writings under section 1072 of the Code, or section 724 R. S. U. S., shall be in writing, filed in the cause, and shall suffi- ciently describe the books and writings to be produced. 2. Service of Court's Order. — If the court order the pro- duction of the books and writings specified in the motion, a copy of such order made by the clerk and duly certified, shall be served two days before the day on which he shall be required to produce the same. 3. Compliance With 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. 4. Time Enlarged. — On application and after notice the time to comply with the order may be enlarged. TRIAL OF CAUSES. 44 1. Consolidation. — 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 con- formable 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. 2. Several 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 separately each or as many of them as it deems convenient. 3. Prayers for Instructions. — Counsel submitting prayers for instructions to the jury shall place upon the same the title and number of the cause, and indicate thereon whether such prayers are those of plaintiff or defendant. Prayers submitted in any cause, and acted on by the court, shall be filed therein. 38 LAW RULES CONTINUANCES. 45 An application for a continuance shall be by motion supported by sufficient affidavit disclosing the grounds therefor, unless such affidavit be waived by opposing counsel. In order to be enter- tained such motion and affidavit shall be filed as long before the calling of the cause for trial, as reasonable diligence requires. If the application be because of the absence of a witness, the affidavit shall set forth what material matter such witness is expected to testify to; and if the adverse party admits that such witness if present would so testify, the court may proceed with the trial, requiring such admission therein. All continuances shall be in the sound discretion of the court, and shall be at the cost of the applicant unless otherwise ordered. NEW TRIAL AND ARREST OF JUDGMENT. 46 1. Motion for and Contents of. — Every motion for a new trial, for judgment non obstante, or in arrest of judgment, must be in writing, state in separate paragraphs, successively numbered, the specific grounds upon which it is based, be filed within four days after verdict, and be noted on the minutes on the day it is filed. 2. Hearing on Motion. — Said motions may be made at the same time and heard together. Every such motion shall be sub- mitted to the trial justice within fifteen days from the date of the verdict or such further time as may be granted by the court for cause shown; otherwise, it shall be deemed overruled and judgment entered accordingly. 3. Judgment, Time of Entry. — Judgment shall not be entered until the fifth day after verdict, or, if any such motion be made, until after the ruling of the court thereon. If a new trial be re- fused, the judgment may be arrested; and if said motions be over- ruled, judgment shall be entered on the verdict. LAW RULES 39 BILLS OF EXCEPTIONS. . 47 Exceptions to rulings or instructions must be taken at the time, and several exceptions may be included in one bill. 48 1. The bill of exceptions shall be prepared by counsel. If not settled before the jury retires, counsel tendering it shall give two days' notice in writing to opposing counsel of the time at which it is proposed to submit the same to the court to be settled, and shall also at least eight days before the time designated in such notice present to opposing counsel the proposed bill or a copy thereof. The bill shall be submitted to the court within thirty- eight days after judgment shall have been entered, unless the court shall, for cause shown, extend the time. 2. The fact of the settling and filing of the bill of exceptions shall be noted in the minutes of the court. 3. If the court is unable to settle the bill of exceptions, a new trial shall be granted. 4. The submission, settling, signing, or filing of a bill of excep- tions shall not be affected by the expiration of any term, provided this rule is complied with. 5. This rule shall apply to pending cases. ARGUMENT OF CAUSES. 49 1. Number of Counsel. — Only one counsel on each side shall examine or cross-examine any witness or be heard upon a point of evidence, motion, demurrer, prayers, hearing as to sufficiency of plea, return to restraining order or rule to show cause, objection for want of parties, exceptions to answer or auditor's report, or any interlocutory matter; only two on each side may address the jury on the facts or be heard on the trial of the cause by the court, at law or in equity; only one on each side may address the jury in a cause heard on appeal or certified on plea of title from the muni- cipal court. 43 LAW RULES 2. Time Allowance. — Each side may occupy the following time: In addressing the jury in a cause heard on appeal or certified on plea of title from the municipal court, thirty minutes; in any other cause, two hours. Upon final hearings in equity, two hours; on all other hearings, thirty minutes. 3. Exception. — The court may, in its discretion, in any cause, increase or reduce the time allowance, or permit additional counsel to be heard. 4. Division of Time. — Counsel having the right to open and close may divide his time allowance as he deems best. Where more than one counsel on a side are allowed, they may divide their time allowance as they agree. VERDICTS. 50 1. For Plaintiff. — A general verdict for the plaintiff shall be recorded thus: "The jury, on their oath, say they find the issue aforesaid in favor of the plaintiff, and that the money payable to him by the defendant by reason of the premises is the sum of $ — ." If the action be one in which interest is recoverable, add: "With interest at the rate of % per annum from the day of , 19—." 2. For Defendant. — If the verdict be for the defendant, then "The jury, on their oath, say they find for the defendant," unless upon set-off pleaded, a balance is found due the defendant; and then the record of the verdict shall proceed: "And that the money payable to him by the plaintiff by reason of the premises is the sum of $ , with interest," etc. 3. For Both Parties. — If there be several counts in the decla- ration, and the jury find for the plaintiff on some and for the de- fendant on the rest, the verdict shall be entered thus: "The jury, on their oath, say they find for the plaintiff on the issues, and that the money payable to him by the defendant by reason thereof is the sum of $ , with interest, etc., and for the de- fendant on the issues, with interest," etc. LAW RULES 41 51 Special. — If the parties elect to have a special verdict taken, then the jury shall state all the facts as they find them proved with certainty and precision, and then add: "But they are ignorant in point of law, on which side they ought upon these facts to find the issue; and if, upon the whole matter, the court shall be of the opinion that the issue is proved for the plaintiff they find for the plaintiff accordingly, and that the money payable to him by the defendant is the sum of $ , with interest at the rate of % per annum, from the day of — , 19 — ; 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. 52 Subject to Opinion of Court. — When a verdict is taken, sub- ject 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 at the rate of — — ■ — % per annum, from the day of , 19 — ; if the court shall be of the opin- ion 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 defend- ant." TRANSFER OF JURY. 53 1. A jury summoned for and oi duty in any one special term of the court may, from time to time, as occasion shall requiiv, by agreement of the justices presiding in the courts, to and from which, the proposed transfer is to be made, be transferred to any other special term having cognizance of jury trials. Any vacancies occurring in said transferred juries shall be filled as provided in section 208 of the Code. Whenever a jury or portion of a jury shall not be required for service in either of the circuit courts, it shall not be excused or dismissed until the justice presiding 42 LAW RULES therein has ascertained that such jury or such portion thereof will probably not be needed for service in the other circuit court, and if so needed, said jury or such portion thereof shall be trans- ferred to the other circuit court for temporary service therein. (As amended April 25, 1919.) 2. Jury for District Court. — When there shall be pending in the special term known as the district court, a cause in which the parties are by law entitled to a trial by jury, if either party shall demand a jury trial, the justice holding criminal court No. 2 shall transfer to said district court, for such trial, the jury then in attendance in the special term known as criminal court No. 2, or a jury from either of the circuit courts may be transferred to such district court, for such trial, by the justice holding the cir- cuit court. DELIVERY OF PAPERS BY THE CLERK. 54 1. The clerk shall not allow any original papers in any cause to be taken out of his custody, except by the auditor or examiner, or upon order of one of the justices. 2. To Auditor. — The clerk may deliver to the auditor the papers in any cause which has been referred to him. 3. To Examiner. — When an examiner has been required to take testimony in a cause the clerk may deliver to him, upon application, such papers filed therein as are required for use in taking such testimony. 4. To Police, Municipal and Juvenile Courts. — The clerk may take in person, or send by one of his assistants, any paper required as proof in any cause on trial before the police court, juvenile court, or municipal court of the District of Columbia, but such papers shall be retained in the possession of such clerk or his assistant, and returned to the files of the court immediately after the hearing before said court. 5. Receipt Required. — A receipt shall in every case be re- quired by the clerk for papers so delivered by him, and such papers shall be returned to the clerk with all convenient speed. 6. Custody by Auditor or Examiner. — In no case shall the auditor or examiner allow any papers so delivered to him by the LAW RULES 43 clerk, or that may be filed before him as evidence during the ex- amination, to be taken out of his office by any person, nor to be examined by others, except in the office of such auditor or examiner. JUDGMENTS. 55 In What Cases. — Judg nent for the plaintiff may be — 1 . On default by the defendant. 2. On defendant's confession as by saying nothing, or by confession of errors. Or if for the defendant — That the plaintiff be nonsuited. Or for either party — 1 . On demurrer. 2. On issue of "No such record." 3. On verdict, or 4. On case agreed. 56 For Money, Form of. — If the judgment be for the recovery of money, it shall be awarded generally thus: "it is considered that the plaintiff (defendant) recover against the defendant (plain- tiff) $ , (when interest is recoverable add) 'with interest at the rate of % per annum from the day of , 19 — ,' being the money payable by him to the plaintiff (defendant) by reason of the premises, and $ for his cost of suit, and that he have execution thereof." 57 1. By Default. — If the defendant, served with copy of the declaration and summons, fail to appear and plead, according to said summons, a judgment by default may be entered against him at any time thereafter. 2. Several Defendants. — If there are several defendants in an action ex contractu, judgment by default may be taken against any of them who may be in default, and the plaintiff may proceed to trial and judgment against the others. 58 In Ejectment. — A judgment by default may be taken against a defendant in ejectment in the manner prescribed in rule 57, in relation to judgments by default generally. 44 LAW RULES INQUIRY BY JURY. 59 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, make default. 2. If he acknowledge the plaintiff's demand to be just; that is, confess judgment. 3. When his attorney declares that he has no instructions to say anything in answer to the plaintiff, or in defense of his client. 4. When a demurrer to the plaintiff's declaration is overruled, unless he plead over. In executing such inquiry in the presence of the court, the jury need not draw up and sign and seal an inquisition, but 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. NONAPPEARANCE OF PARTIES. 60 1. Both Parties. — When a cause is reached in the regular call of the calendar and neither party appears, it may be dis- missed at the cost of the plaintiff. 2. Plaintiff. — If the plaintiff fail to appear when the cause is called for trial, the defendant may have the plaintiff called, and the suit dismissed or may have a trial. 3. Defendant. — If the defendant fail to appear when the cause is called for trial, the plaintiff may have the defendant called, and take a judgment by default, or may be required to prove his case, in the discretion of the court. LAW RULES 45 MOTION TO VACATE JUDGMENT. 61 1. Contents of. — The motion to vacate a judgment must be in writing, and the grounds upon which it is founded must be supported by affidavit. 2. After Default, With Plea. — Where the judgment sought to be vacated was entered by default of defendant, the motion must be filed within ten days after entry of judgment, and may be so filed notwithstanding the expiration of the term, and shall be accompanied by a plea, verified by affidavit, setting up a defense sufficient if proved to bar the action in whole or in part. APPEAL TO COURT OF APPEALS. 62 1. No appeal, except in cases where the United States or the District of Columbia is appellant, shall operate as a stay of ex- ecution or supersedeas, unless within twenty days, exclusive of Sundays and legal holidays, after the judgment, the appellant shall file in the clerk's office of the Supreme Court of the District of Columbia a bond with surety or sureties to be approved by the said court, or a justice thereof, conditioned for the successful prosecution of such appeal. 2. Bond on Appeal — Form of. — The bond on appeal to the Court of Appeals of the District of Columbia shall be in the fol- lowing or equivalent form : Know all Men by these Presents, That we, , as principal — , and , as suret — , are held and firmly bound unto the above named in the full sum of dollars to be paid to the said , executors, administrators, successors, or assigns. To which payment, well and truly to be made, we bind ourselves, and each of us, jointly and severally, and our and each of our heirs, executors, administrators, successors, and assigns, firmly by these presents. Sealed with our seals, and dated this day of , in the year of our Lord one thousand nine hundred and . Whereas the above-named ha — prosecuted an appeal to the Court of Appeals of the District of Columbia, to reverse the 46 LAW RULES judgment — decree — rendered in the above suit by the said Supreme Court o^ the District of Columbia: NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That if the above-named shall prosecute said appeal with effect, and answer (all damages and costs) (all costs) if shall fail to make good plea, then this obligation shall be void; otherwise, the same shall be and remain in full force and virtue. Sealed and delivered in presence of — [seal.] [seal.] Approved the day of , 19 — . , Justice, S. C. D. C. 3. Citation, Form of. — The citation to appellee in appeals to the Court of Appeals of the District of Columbia shall be in the following or equivalent form: The President of the United States, to , greeting: You are hereby cited and admonished to be and appear at a Court of Appeals of the District of Columbia, upon docketing the cause therein, under and as directed by the rules of said court, pursuant to an appeal from the Supreme Court of the District of Columbia, on the day of — , 19 — , wherein appellant — , and you are appellee — , to show cause, if any there be, why the judgment — decree — rendered against the said appellant — , should not be corrected, and why speedy justice should not be done to the parties in that behalf. Witness the Honorable .Chief Justice of the Supreme Court of the District of Columbia, this day of , in the year of our Lord one thousand nine hundred and . , Clerk. By , Assistant Clerk. Service of the above citation accepted this day of , 19 — . Attorney for Appellee. TRANSCRIPT OF RECORD— ON APPEAL. 63 1. Preparation of. — Whenever a transcript of record of a cause shall be issued by the clerk, the copy of each paper enter- ing into said record shall show, at the beginning on the face thereof, LAW RULES 47 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. The caption of any paper, judgment, order or decree entering into said transcript, except the first, shall be omitted. 2. The "certificate showing the entry of appeal and the date thereof," prescribed by rule 15 of the Court of Appeals of the District of Columbia, shall be in the following or equivalent form : IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. I, , clerk of the Supreme Court of the District of Columbia, do hereby certify that in a certain cause pending in said court wherein are — is — plaintiff — and are — is — defendant — , No. , , a final decree — judgment — was rendered by said supreme court on the day of , 19 — , in favor of the said and against the said -, and that on the day of , 19 — , the said- entered an appeal to the Court of Appeals of the District of Columbia — in open court — and caused a citation to issue to the appellee — , which was returned the day of , 1 9 — , . Appeal bond filed , 19 — . In testimony WHEREOF, I hereunto subscribe my name and affix the seal of said supreme court, at the city of Washington, this day of A. D. 19—. , Clerk, By , Assistant Clerk. EXECUTION. 64 Ejectment, Form of Writ. — If the judgment be for the re- covery of land, the same shall be carried into execution by a writ of possession in the following or equivalent form : 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 premises 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 office of said court immediately after you have executed it, 48 LAW RULES and on or before the sixtieth day from the date hereof, so indorsed as to show when and how you have executed the same. Witness the Honorable , Chief Justice of said court, this day of , A. D. 19—. , Clerk. By , Assistant Clerk. 65 Special Writ. — In other actions, when the judgment is that something special be done o; rendered by the defendant, a special writ of execution shah* issue to the marshal according to the nature of the case. 66 1. Fieri Facias, Form of. — In an action where money only is recovered, and not any specific chattels, the following or the equivalent shall be the form of the writ of execution: 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 tene- ments of the defendant — , you cause to be made$ ,which the plaintiff — , on the day of , 19 — , by the judgment of said court in the above-entitled cause, recovered against said defendant — , (before the munici- pal court) for money found payable to said plaintiff — , and $ for costs and charges about said suit expended, as appears of record; and return this writ into the clerk's office of said court on or before the sixtieth day from the date hereof, so indorsed as to show when and how you have executed the same. Witness the Honorable , Chief Justice of said court, this day of , A. D. 19—. , Clerk. By , Assistant Clerk. 2. Special Fieri Facias, Form of. — The President of the United States to the Marshal for said District, greeting: Whereas, A writ of attachment was issued out of the said court on the day of , 19 — , addressed to the marshal of said District, commanding him to attach, seize, and take into his custody the defendant — lands, goods, chattels, and credits which shall be found in said District to the value of said plaintiff — demand, together with interest and costs, and the LAW RULES 49 aforesaid marshal returned said writ into said court on the day of , 19 — , indorsed "attached as per schedule filed." And whereas, In the said court on the day of , A. D. 19 — , the plaintiff — , by the judgment of said court, recovered against the defendant — the sum of dollars and cents ( S ) , with interest from the day of , 19 — , until paid, together with costs of suit. And whereas also, In said court on the day of , 19 — , the said plaintiff — had judgment of condemnation on the writ of attachment aforesaid against the defendant — lands and tenements, goods and chattels attached by the marshal on the ■ day of ■ , 19 — , aforesaid, towards satisfying unto the said plaintiff — as well the aforesaid sum of dollars and cents ($ ), with interest as aforesaid as the sum of dollars and cents, adjudged to for costs and charges by laid out and expended about said suit; therefore, You are Hereby Commanded, That of the lands and tenements, goods and chattels aforesaid, you cause to be made the judgment, interest, costs, and charges aforesaid ; and return this writ into the clerk's office of said court, within sixty days, so indorsed as to show when and how you have executed the same. Witness the Honorable , Chief Justice of said court, the day of , A. D. 19—. -, Clerk. By , Assistant Clerk. 3. Attachment on Judgment, and Notice, Form Of.— The President of the United States to the Marshal for said District, greeting: You are hereby commanded to attach the goods, chattels, and credits of the defendant — , if to be found in this District, of value sufficient to satisfy the plaintiff — recovery against in this court in the above-entitled cause (the municipal court) on the day of , 19 — , of $ for money payable to by the defendant — , and $ for cost of suit; and the same, so attached, safely keep and have before said court, on or before the tenth day, occurring after the execution of this writ, that the same may be condemned unless sufficient cause be shown to the contrary ; and, if said goods, chattels, or credits be attached in the hands or possession of any person or persons other than the defendant — , notify such person or persons of such seizure, and warn h or them to appear before said court, within the time aforesaid, to show cause why the same should not lie con- demned and execution thereof had according to law. And have them there this writ, so indorsed as to show when and how you have executed it. 50 LAW RULES Witness, The Honorable , Chief Justice of said court, the day of , A. D. 19—. , Clerk. By , Assistant Clerk. NOTICE. , 19—. To , Garnishee: You are hereby notified that any property or credits of jn your hands are seized by virtue of the foregoing writ of attachment, and you are hereby warned to appear in said court, on or before the tenth day, after service hereof, and show cause, if any there be, why the property or credits so attached should not be condemned and execution thereof had. U. S. Marshal. Whenever interrogatories and notice to answer accompany said writ, such interrogatories and notice shall be in the form prescribed by rule 9, section 5. SCIRE FACIAS. 67 In cases of scire facias on judgment, or money decree, and in actions on judgments, or^money decrees, from a state court or a court of the United States, any plea thereto shall be treated as a nullity, unless an affidavit accompany the plea showing a defense to the action. ADVERTISING. 68 Advertising done under authority of the court shall be paid for at rates, per agate line two and one-sixth inches in width, not exceeding the following: One time, 15 cents; Two times, 12$ cents each time; LAW RULES 51 Three or more, and less than ten times, 10 cents each time, and Ten times or more, 9 cents each time. MECHANICS' LIENS. 69 1. Notice, Form of. — The notice of mechanic's lien prescribed by section 1238 of the Code shall be in the following or equivalent form: IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Filed and Recorded , 19 — , at — o'clock — m. 1 Claimant — -, I vs. }- No. | Notice of Lien. Owner — . J Notice is hereby given that intend to hold a mechanic's lien against the interest of , in , situate in the city of (County of) Washington, in the District of Columbia, and the building — thereon, for the sum of dollars ($ ), with interest from , 19 — , being amount due to for labor upon and materials ( ) furnished for the construction (repair) of said building — under and by virtue of a contract with . Claimant. By . 2. The undertaking, and the affidavit of the sureties to dis- charge lien, prescribed by section 1255 of the Code and the order of the court thereon shall be in the following or equivalent form: Undertaking: — The above-named , owner — , and sureties, all of the District of Columbia, appearing and submitting to the jurisdiction of the court, hereby undertake for them- selves, and each of them, their, and each of their heirs, executors, and adminis- trators, or personal representatives, that they will pay and satisfy any judg- ment or decree that may be recovered in any suit or proceeding that may In instituted on, or to enforce the above-entitled mechanic's lien, together with the 52 LAW RULES costs of said proceeding, which judgment or decree they agree may be pro- nounced against all of them. Witness our hands and seals this day of , 19 — . Approved , 19 — , by the court. Justice. Oath of Sureties. — District of Columbia, ss: , sureties, in the within undertaking, swear that they are the owners of real and personal property situated in said District of the value of dollars ($ ) over and above all debts and prior obligations. Subscribed and sworn to before me this day of , 19 — . Order of Court. — In the Supreme Court of the District of Columbia. — having filed the within undertaking with — — — as sureties, it is this day of , 19 — , ordered that the real estate in said lien described be, and the same is hereby released from the operation thereof. Justice. CRIMINAL COURTS. 70 Rules Governing. — The law rules shall apply to and govern the practice in the criminal courts so far as applicable, and attor- neys, immediately after being retained in a cause, shall enter their appearance therein by praecipe. 71 Docketing Causes. — Upon the filing of a warrant from the police court; a transcript of proceedings from a United States commissioner; an inquisition of the coroner, or an indictment in an original cause, the clerk shall immediately enter the same upon the criminal docket, in the order of filing, and number it LAW RULES 53 accordingly. All further proceedings had therein shall be noted on such docket. 72 Notice of Trial. — A cause in which an indictment shall have been pending for eighteen months or more, shall not be tried, except upon at least ten days' notice, in writing, to the defendant, his attorney or bail, of the assignment of the same for trial, or waiver of such notice. ACTIONS EX CONTRACTU. 73 1. Summary Judgment on Affidavit. — In any action arising ex contractu, if the plaintiff or his agent shall have filed, at the time of bringing his action, an affidavit setting out distinctly his cause of action, and the sum he claims to be due, exclusive of all set-offs and just grounds of defense, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, with interest and costs, unless the defendant shall file, along with his plea, if in bar, an affidavit of defense, denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufficient to defeat the plaintiff's claim in whole or in part. And where the defendant shall have acknowledged in his affidavit of defense his liability for a part of the plaintiff's claim as aforesaid the plaintiff, if he so elect, may have judgment entered in his favor for the amount so confessed to be due. After taking such final judgment for the amount so confessed, the plaintiff shall have the right to prosecute the remainder of his claim in that suit and (if he sustains his claim for such remainder) to have a further final judgment therefor. (As amended April 25, 1919.) 2. Decedent's Representative. — The provisions of this rule shall not apply to defendants who are representatives of a de- cedent's estate, except when the affidavit filed with the deelara- 54 LAW RULES tion sets forth that the contract sued on was directly with such representative. 3. When Corporation Defendant. — When the defendant is a corporation, the affidavit of defense may be made by an officer, agent, or attorney of such corporation. 74 At any time when juries are provided by law, between the last day of June and the first Tuesday of October following, any person indicted for an offense, not capital, and committed thereon to jail, may apply to the justice presiding for an immediate trial before him, and such application shall be determined as the speedy administration of justice may require. 75 No persons shall be appointed guardian ad litem, either on the application of the infant or otherwise, if he have any interest adverse to that of the infant, or be connected in business with the attorney or counsel of an adverse party. No person shall be appointed guardian ad litem who is nominated by the adverse party. Except for special cause shown no person other than a member of the bar of this court or the general guardian of an infant shall be appointed guardian ad litem. 76 If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, or that a suit at law should have been brought in equity, it shall be transferred to the law or equity side of the court, as the case may be, and be there proceeded with, with only such alteration in the pleadings as shall be essential. EQUITY RULES 55 EQUITY RULES. COURT ALWAYS OPEN. The equity court shall be deemed always open for the purpose of filing bills, answers, and other pleadings; for issuing and return- ing mesne and final process and commissions ; and for making and directing interlocutory motions, orders, rules, and other proceed- ings, preparatory to the hearing of causes upon their merits. 2 Rule Day. — The term "Rule Day" designates the first Tuesday of the month to which it relates. * 3 Law Rules. — Cases not provided for in these rules shall be governed by the law rules as far as applicable. 4 The court, at every stage of the proceeding, must disregard any error or defect in the proceeding which does not affect the sub- stantial rights of a party. The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties. 5 Further and Particular Statement in Pleading May be Required. — A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just. (As amended February 12, 1915.) 56 EQUITY RULES SCANDAL AND IMPERTINENCE. 6 The right to except to bills, answers, and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter stricken out, upon such terms as the court shall think fit. PLEADINGS— TECHNICAL FORMS ABROGATED 7 Unless otherwise prescribed by statute or these rules the tech- nical forms of pleadings in equity are abolished. SUPPLEMENTAL PLEADING. 8 Upon application of either party the court or justice may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occur- ring since his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit determining the matters in controversy or a part thereof. 9 Neither presumptions of law nor matters of which judicial notice is taken shall be stated in a pleading. Every answer shall admit or deny specifically and separately each material allegation of the bill or other pleading of the plaintiff, and every reply shall in like manner admit or deny specifically and separately each material averment of new matter made by the defendant in any pleading. This rule may be enforced by striking the pleading from the files. 10 Every pleading must be subscribed by the party or his attorney, and every pleading of fact, except as otherwise provided, must be verified by the affidavit of the party, his agent or attorney; when a corporation is a party, the verification may be made by an officer thereof, its agent or attorney; and when the United States or any officer thereof in its behalf is a party, the verification may EQUITY RULES 57 be made by any person acquainted with the facts, the Attorney- General, or the attorney prosecuting or defending the action. The verification mentioned shall not be required to the answer of a guardian defending for an infant, or a person of unsound mind, or the attorney of a person in prison, nor in any case where the admission of the truth of a fact stated in a pleading might subject the party to a criminal or penal prosecution. If several parties are united in interest and plead together, the affidavit may be made by one of them. The verification of a pleading does not apply to the amount claimed except in an action founded on contract, express or implied, for the payment of money only; and verification shall not make other or greater proof necessary on the side of the adverse party- The affidavit verifying a pleading can be made by the agent or attorney only: (1) When the facts are within the personal knowledge of the attorney or agent. (2) When the plaintiff is an infant, or of unsound mind, or in prison. (3) When the pleading is founded upon a written instrument for the payment of money and such instrument is in the possession of the affiant. (4) When the party is absent from the District of Columbia. The affidavit verifying a pleading shall be sufficient if it is stated therein that the affiant verily believes the facts stated in the plead- ing to be true. OFFICERS BEFORE WHOM PLEADINGS VERIFIED. 11 Every affidavit required by these rules may be made and verified before any justice or judge of any court of the United States, or of any State or Territory, or of the District of Columbia, or any clerk of any court of the United States, or of any State or Territory, or of the District of Columbia, or any notary public. It must be signed by the party who makes it and the officer before whom the same was taken shall upon the same sheet certify that it was swo.n to befo e him and sigred in his presence. The certificate of the officer, signed officially by him shall be evidence 58 EQUITY RULES that the affidavit was duly made, that the name of the officer was written by himself, and that he was such officer. SIGNATURE OF COUNSEL. 12 Every bill or other pleading shall be signed individually by one or more attorneys of record, and such signatures shall be con- sidered as a certificate by each attorney that he has read the plead- ing so signed by him; that upon the instructions laid before him regarding the case there is good ground for the same; that no scandalous matter is inserted in the pleading; and that it is not interposed for delay. MOTIONS. 13 A motion is an application for an order, addressed to the court or a justice, by a party to a cause or proceeding, or by one in- terested therein. Several objects may be included in the same motion if they grow out of or are connected with the cause or proceeding in which it is made. Every motion must be in writing, entitled in the cause, signed by the mover or his counsel, and must state in separate paragraphs, successively numbered, the grounds upon which it is based. It shall be regarded as a waiver of grounds not stated therein, unless for cause shown, the court shall otherwise order. DESIGNATIONS. 14 1. Plaintiffs. — Parties suing shall be designated as "plain- tiffs," those sued, as "defendants." 2. Attorneys. — Counsel in equity causes shall be designated as attorneys. PARTIES GENERALLY— INTERVENTION. 15 Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name. All persons hav- EQUITY RULES 59 ing an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as plaintiffs or defendants, but when any one refuses to join, he may for such reason be made a defendant. Any one claiming an interest in the litigation may at any time be permitted to assert his right by intervention. 16 Infant, Suit by. — Infants and other persons incapable of suing for themselves may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court may direct for their protection. (See Law Rule 75.) REPRESENTATIVES OF CLASS. 17 When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracti- cable to bring them all before the court, one or more may sue or defend for the whole. ABSENCE OF PERSONS WHO WOULD BE PROPER PARTIES. 18 In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit, can not be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, the court may, in its discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. SUIT TO EXECUTE TRUSTS OF WILL— HEIR AS PARTY. 19 In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party; but the plaintiff shall be at liberty to make the heir at law a party where he desires. 60 EQUITY RULES BILL OF COMPLAINT— CONTENTS. 20 Hereafter it shall be sufficient that a bill in equity contain, in addition to the usual caption: First, the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. Second, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any statement of mere evidence. Third, if there are persons other than those named as defend- ants who appear to be proper parties, the bill shall state why they are not made parties — as that they are not within the juris- diction of the court. Fourth, a statement of and prayer for any relief sought pending the suit or on final hearing, which may be stated and sought in alternative forms. JOINDER OF CAUSES OF ACTION. 21 The plaintiff may join in one bill as many causes of action, cogni- zable in equity, as he may have against the defendant. But when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice. If it appear that any such causes of action can not be conveniently disposed of together, the court may order separate trials. JOINT AND SEVERAL DEMANDS. 22 In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concern- ing such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. EQUITY RULES 61 FRAME OF BILL. 23 1. Caption. — The caption of every pleading shall contain the names of all the parties and suitable indications of the capacity in which they sue or are sued, and shall be in the following or equiva- lent form : IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. A. B. C. D. , TRUSTEE, Plaintiffs, No. . vs. E. F., INFANT, In Equity G. H. , EXECUTOR, Defendants. 2. Introductory Part. — Every bill shall be divided into paragraphs successively numbered. The introductory part shall contain the names and places of abode of all of the parties; shall state the capacity in which they sue or are sued, and which, if any of them, are infants or otherwise under guardianship or dis- ability, and shall be in the following or equivalent form : BILL OF COMPLAINT. To the Supreme Court of the District of Columbia. Plaintiffs state as follows: 1. The plaintiff, A. B., is a citizen of the United States and a resident of the District of Columbia, and brings this suit in his own right; the plaintiff, C. D., is a citizen of the United States and a resident of the State of , and brings this suit as trustee in bankruptcy of , of the city of , State of . 2. The defendant, E. F., is a citizen of the United States and a resident of the District of Columbia, is an infant of, to wit, the age of years, and is sued in his own right; the defendant, G. H., is a citizen of the United States and a resident of the District of Columbia, and is sued as executor of , deceased, late of said District. 3. Etc. DOCKETING CAUSE. 24 1. As soon as the bill is filed the clerk shall enter the cause upon the equity docket with the date of such filing. 2. Dockets. — Separate dockets shall be kept for habeas corpus, lunacy and adoption proceedings. 62 EQUITY RULES PROCESS. 25 1. Subpcena. — The writ of subpoena shall be the proper process in the first instance, in equity causes, to require the defendant to appear and answer the exigency of the bill. 2. Form of Writ. — Said writ shall be in the following or equiva- lent form: (Caption) The President of the United States to , defendant: You are hereby commanded to appear in this court on or before the tenth day, exclusive of Sundays and legal holidays, after the day of the service of this subpoena upon you and answer the exigency of the bill, under pain of attachment and such other process of contempt as the court shall award; and if your appearance in this suit be not entered in the clerk's office within said time the bill may be taken for confessed. Witness, the Honorable , Chief Justice of said court, the day of , A. D. 19—. , Clerk. By , Assistant Clerk. Attorney. 26 1. Issuance. — No writ of subpcena shall issue in a cause 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 separate subpoena for each defendant, or a joint subpoena against all. 2. Service. — The service of a subpcena shall be by delivery of a copy thereof by the person serving the same to the defendant personally, or, if such personal service can not be made, by leaving a copy thereof at the dwelling house or usual place of abode of the defendant, with some adult person who is a member of or resident in his family. 3. Return Of. — The writ of subpoena, if served, shall be re- turned into the clerk's office forthwith, and, if the defendant be not found shall be returned on the tenth day after the issuance thereof. By Whom Served. — Unless otherwise provided by law the service of all process, mesne and final, shall be by the marshal of the district or his deputy, or by some other person specially EQUITY RULES 63 appointed by the court or justice for that purpose. In the latter case, the person serving the process shall make affidavit showing the manner of service. 27 Alias. — Whenever a subpoena shall be returned not served as to any defendant, the plaintiff shall be entitled to other sub- poenas, toties quoties, against such defendant, if he shall require it, until due service is made; provided, that such other subpoenas, when not served, shall be returnable on the next day occurring twenty days after the issuance thereof. CLERK OF COURT. 28 1. Directions to. — Directions to the clerk for the preparation and calendaring of causes must be made by praecipe filed therein. 2. Applications Grantable of Course. — All applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees; for filing bills, answers, excep- tions, petitions, and other pleadings; for calendaring motions and causes; for taxation of costs; for the approval of bonds and undertakings; for commissions to take depositions, and for other proceedings in the clerk's office which do not by law, the rules, or practice of the court, require any allowance or order of the court, shall be deemed applications grantable of course by the clerk. But the same may be suspended, altered, or rescinded by the court upon cause shown. 3. Powers. — The clerk shall have power to approve bonds or undertakings directed by the court or required by the rules and to issue commissions to take testimony. APPEARANCE OF DEFENDANT. 29 1. Time Of. — A defendant served with subpoena must appear on or before the tenth day, after service thereof. 2. Entry of. — The appearance of the defendant, either per- sonally or by attorney, shall be entered by praecipe filed in the cause, and docketed on the day thereof by the clerk. 64 EQUITY RULES 30 Default of. — In default of such appearance the plaintiff may, on application, obtain an order that the bill be taken pro con- fesso, and thereupon the cause shall be proceeded with ex parte, and the matter of the bill may be decreed by the court, at the expiration of twenty days thereafter, if the same can be without an answer or evidence and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer; and the defendant shall not, when arrested upon such process, be dis- charged therefrom except upon filing his answer, or otherwise complying with such order as the court may direct, as to pleading to or fully answering the bill within a period to be fixed by the court, and undertaking to speed the cause. DECREE AFTER PRO CONFESSO. 31 When the bill is taken pro confesso the court may proceed to a decree at the expiration of twenty days thereafter, and such decree shall be deemed absolute, unless the court shall, for cause shown, upon motion filed within ten days after the entry of such decree, supported by affidavit of the defendant, set the decree aside and enlarge the time for filing answer. But such motion shall not be granted unless upon the payment of the costs of the plaintiff 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. DEFENSES— HOW PRESENTED. 32 Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, shall be made by motion to dismiss. Every defense heretofore presentable by plea in bar or abatement shall be made in the answer, and may be separately EQUITY RULES 65 heard and disposed of before the trial of the principal ease in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered. 33 Time of Filing, Default.— If defense is not made by motion the defendant must file his answer within twenty days after enter- ing his appearance. Frame OF. — The answer shall be divided into paragraphs num- bered in the same manner as the bill, and each paragraph shall bear the same number as the paragraph of the bill to which it applies. ANSWER— CONTENTS— COUNTER-CLAIM. 34 The defendant in his answer shall in short and simple terms set out his defense to each claim" asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such statement operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed con- fessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or justice, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. The answer must state in short and simple form any counter- claim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter- claim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims. 66 EQUITY RULES ANSWER TO AMENDED BILL. 35 In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental answer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise or- dered by a justice of the court ; and upon his default, the like pro- ceedings may be had as in case of an omission to put in an answer. 36 1. Want of Parties, Suggested in Answer. — When the defendant by his answer suggests that the bill is defective for want of parties, the plaintiff may, within ten days after answer filed, set down the cau.se for argument upon that objection only; and the purpose for which it is so set down shall be stated in writing in an order to the clerk filed in the cause to the following effect: "Set down, upon the defendant's objection, for want of parties." The plaintiff shall serve a copy of such order upon the defendant or his attorney of record, together with a notice of the time of the hearing, which hearing may be had on any motion day after two days' notice. 2. Failure to Set Down. — If the plaintiff does not so set down his cause, but proceeds therewith to a hearing, notwith. standing an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for leave to amend his bill by adding parties; but the court may, in its discretion, dismiss the bill. 37 Omitted, Decree as to. — If a defendant, at the hearing of a cause, shall object that it is defective for want of parties, not having taken the objection by motion or answer and therein speci- fied by name or description the persons to whom the objection applies, the court may make a decree, saving the rights of the absent persons. 38 Nominal. — A party, not being an infant, against whom no ac- count, payment, conveyance, or other direct relief is sought, need EQUITY RULES 67 not, upon service of the subpoena upon him, appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill, but may do so at his option. If he does not appear and answer, he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. TESTING SUFFICIENCY OF DEFENSE. 39 Exceptions for insufficiency of an answer are abolished. But if an answer set up an affirmative defense, set-off or counter-claim, the plaintiff may, upon five days' notice, or such further time as the court may allow, test the sufficiency of the same by motion to strike out. If found insufficient but amendable the court may allow an amendment upon terms, or strike out the matter. REPLY— WHEN REQUIRED— WHEN CAUSE AT ISSUE. 40 Unless the answer assert a set-off or counter-claim, no reply shall be' required without special order of the court or justice, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set-off or counter-claim, the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or justice. If the counter-claim is one which affects the rights of other defendants they or their attorneys shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In default of a reply, a decree pro conjesso on the counter-claim may be entered as in default of an answer to the bill. INJUNCTIONS. 41 No preliminary injunction shall be issued without notice to the opposite party. No temporary restraining order shall be granted without notice 68 EQUITY RULES to the opposite party unless it shall clearly appear from specific facts shown by affidavit or by the verified bill that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every such temporary restraining order shall be indorsed with the date and hour of issuance, shall be forthwith filed in the clerk's office and entered of record, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall by its terms expire within such time after entry, not to exceed ten days, as the court or judge may fix, unless within the time so fixed the order is extended for a like period for good cause shown, and the reasons for such extension shall be entered of record. In case a temporary restraining order shall be granted without notice in the contingency specified, the matter of the issuance of. a pre- liminary injunction shall be set down for a hearing at the earliest possible time and shall take precedence of all matters except older matters of the same character; and when the same comes up for hearing the party obtaining the temporary restraining order shall proceed with the application for a preliminary injunction, and if he does not do so the court shall dissolve the temporary restrain- ing order. Upon two days' notice to the party obtaining such temporary restraining order the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. No preliminary injunction or ne exeat shall be granted unless prayed in the bill. SAME— REQUISITES OF ORDER. 42 Every order of injunction or restraining order shall set forth the reasons for the issuance of the same, shall be specific in terms, and shall describe in reasonable detail, and not by reference to the bill of complaint or other document, the act or acts sought to be restrained. EQUITY RULES 69 SAME— SECURITY ON ISSUE. 42a Except as otherwise provided by law, no restraining order or interlocutory order of injunction shall issue, except upon the giving of security by the applicant in such sum as the court or judge may deem proper, conditioned upon the payment of such costs and damages as may be incurred or suffered by any party who may be found to have been wrongfully enjoined or restrained thereby. INJUNCTION PENDING APPEAL. 43 When an appeal from a final decree granting or dissolving an injunction is taken the justice may, in his discretion, make an order suspending, modifying, or restoring the injunction during the pendency of the appeal, upon such terms, as to bond or other- wise, as he may consider proper for the security of the rights of the opposite party. DIVORCE. 44 1. Copy of Petition to Absent Defendant. — A copy of the petition shall be sent by registered mail by the clerk, on or before the first day of the publication of such order, addressed to the defendant at his or her last known place of abode, which shall be specifically stated under oath in the petition, and the mailing of such copy shall be proved by the certificate of the clerk and reg- istry receipt filed in the cause. The plaintiff's attorney shall comply with the provisions of section 108 of the Code. 2. Clerk's Certificate of Mailing Petition. — The certifi- cate of the clerk, prescribed by section one of this rule, shall be in the following or equivalent form: (Caption) I hereby certify that, in accordance with the provisions of section 1 of equity rule 44, I have this day mailed a copy of the petition in the above-entitled cause to the defendant herein, at . , Clerk By : , Assistant Clerk. , 19—. 70 EQUITY RULES' 45 For Adultery. — No divorce shall be granted for adultery un- less the petition charge that the adultery was committed without the consent, connivance, privity, or procurement of the petitioner, and that after discovery of the offense the petitioner has not volun- tarily cohabited with the defendant. 46 1. Under Age of Consent. — If the suit be for nullity of mar- riage on the ground that the petitioner was under the age of consent at the time of the marriage, it shall be averred in the petition that the parties thereto have not voluntarily cohabited as man and wife after the petitioner attained said age. 2. For Fraud. — If the suit be for nullity of marriage on the ground that the petitioner's consent was procured by fraud, it must be averred in the petition that there has been no voluntary cohabitation between the parties as man and wife after knowledge of such fraud. 3. For Insanity. — 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 cohab- ited since the petitioner's restoration to sanity. 47 Answer and Issue. — The defendant in the answer may set up the adultery of the petitioner, or any other matter, which would be a bar to a divorce or annulment of the marriage; and if issue be taken thereon it shall be tried at the same time, in the same manner as the other matters of the cause. 48 Testimony and Hearing Causes. — In suits for divorce, or for nullity of marriage, the court shall in only exceptional cases order a reference to an examiner or commissioner to take proof; and in no case shall such reference be made to a person named by either party. EQUITY RULES 71 TRIAL BY MASTER. 49 In any case in which the parties are not entitled by law to a trial by jury, the court or a justice in vacation, may direct a reference to a Master. Such reference shall be made only upon a showing that some exceptional condition requires it, or upon the written consent of the parties filed in the cause. When such reference is ordered, the party at whose instance or for whose benefit it is made shall within 10 days, unless a longer time be specially granted, cause the order of reference to be presented to the Master; if he shall omit to do so, the adverse party shall be at liberty forth- with to cause proceedings to be had before the Master, at the costs of the party procuring the reference. The procedure before, and the powers, rights and duties of the Master shall be those provided in these rules for the Auditor unless otherwise ordered in the reference. The Master must be sworn well and faithfully to hear and to examine the cause, and to make a just and true report therein, according to the best of his understanding; the oath may be ad- ministered by any person authorized to take depositions. 50 Rehearing. — Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or some other person. Every such petition shall be filed within ten days after the final decree shall have been passed if an appeal lies to the Court of Appeals of the District of Columbia. If no appeal lies, the petition shall be filed within twenty days after such final decree. DECREES. 51 Mistakes in. — Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may at any time be corrected by order of the court or of a justice thereof, upon petition, without the form or expense of a rehearing. 72 EQUITY RULES 52 1. Form and Substance of. — In drawing decrees and orders neither the bill, nor answers, nor other pleadings, nor any part thereof, nor the report of an auditor or master, nor other prior pro- ceeding, 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 thereupon, upon consideration thereof, it is this day of , 19 — , adjudged, ordered, and decreed as follows, viz:" (Here insert the decree or order.) 2. For an Account of Personalty. — Every decree for an account of the personal estate of a testator or intestate shall con- tain a direction to the auditor, to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, unless the court shall otherwise direct. 3. For Specific Act. — If the decree be for the performance of any specific act, as for example, for the execution of a con- veyance of land, or the delivery of possession, or the delivering up of deeds or other documents, it shall, in all cases, prescribe the time within which the act shall be performed, of which the defendant shall be bound without further service to take notice; and upon affidavit of the plaintiff or his attorney, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, except upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party can not be found, a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree. 4. Decree for Deficiency in Foreclosures, etc. — In suits for the foreclosure of mortgages, or the enforcement of other liens, a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the collection of the same. 5. For Possession. — When any decree or order is for the EQUITY RULES 73 delivery of possession, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk, which shall be in the following or equivalent form : (Caption.) The President of the United States to the Marshal for said District, greeting: The defendant — , in this cause, having been, by decree or order of court herein, pronounced on the day of , A. D. 19 — .commanded to deliver possession to the plaintiff , of the premises in said decree or order described, to wit: , and proof having been made by affidavit of demand, and refusal by said defendant to obey said decree or order; Now, therefore, you are hereby commanded that, immediately after the reception of this writ, you enter into and upon the premises aforesaid, and thence eject and remove all and every person or persons holding possession of the same against the tenor of said decree or order, and that you put and establish the said plaintiff — , or assigns, in full and peaceful possession of said premises; and that you do, from time to time, as often as shall be necessary, preserve and defend the said possession of said premises against all force and interruption whatsoever, according to the true intent and meaning of said decree or order. Witness, the Honorable , Chief Justice of said court, this day of , A. D. 19—. , Clerk. By , Assistant Clerk. PROCESvS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES. 53 Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party; and every person, not being a party, against whom obe- dience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party. EQUITY CALENDAR. 54 1. Entry of Cause on. — No cause in equity shall be placed upon the trial calendar unless the same be at issue and in case the same has been referred to an examiner, is ready for trial or be 74 EQUITY RULES properly set down for hearing on bill and answer, or bill, answer, and replication, or bill and decree pro confesso. Any such cause may be ordered by either party or his attorney to be placed upon the calendar for a given term, provided such order be given to the clerk and notice thereof to the opposite party or his attorney of record at least five days previous to the first day of such term. 55 Applications for taking testimony otherwise than in open court need not be entertained, unless on motion, made and submitted to the court before the cause is written on the calendar. CONTINUANCES. 56 After a cause is placed on the trial calendar it shall not be continued beyond the term save in exceptional cases by order of the court upon good cause shown by affidavit and upon such terms as the court shall in its discretion impose. Continuances beyond the term by consent of the parties shall be allowed on condition only that a stipulation be signed by counsel for all the parties and that all costs incurred theretofore be paid. There- upon an order shall be entered dropping the case from the trial calendar, subject to reinstatement within one year upon applica- tion to the court by either party, in which event it shall be heard at the earliest convenient day. If not so reinstated within the year, the suit shall be dismissed without prejudice to a new one. HEARINGS. 57 1. Uncontested Matters. — Hearings of uncontested matters shall be had at the opening of court, before the regular assign- ment is taken up. 2. Reading, or Brief of, Testimony. — Extended reading of testimony will not be permitted upon hearings, but counsel will be expected to state, substantially, and may read, so much thereof as may be necessary to support their argument, touching the findings of fact which are to be made or the propositions of law which are claimed to be applicable; and, when the testimony is voluminous, shall furnish the court a brief thereof. EQUITY RULES 75 DISCOVERY— INTERROGATORIES— INSPECTION AND PRODUCTION OF DOCUMENTS— ADMISSION OF EXECUTION OR GENUINENESS. 58 The plaintiff at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the support or defense of the cause, with a note at the foot thereof stating which of the interrogatories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge. If any party to the cause is a public or private corporation, any opposite party may apply to the court or judge for an order allow- ing him to file interrogatories to be answered by any officer of the corporation, and an order may be made accordingly for the exam- ination of such officer as may appear to be proper upon such inter- rogatories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party and shall be sent by the clerk to the respective attorneys of record, or to the last known address of the opposite party if there be no record attorney. Interrogatories shall be answered, and the answers filed in the clerk's office within fifteen days after they have been served, unless the time be enlarged by the court or justice. Each interrogatory shall be answered separately and fully and the answers shall be in writing, under oath, and signed by the party or corporate officer interrogated. Within ten days after the service of interrogatories objections to them, or any of them, may be presented to the court or justice, with proof of notice of the purpose so to do, and answer shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the objections are sustained, answers shall not be required. The court or justice, upon motion and reasonable notice, may make all such orders as may be appropriate to enforce answers to 76 EQUITY RULES interrogatories or to effect the inspection or production of docu- ments in the possession of either party and containing evidence material to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiff, to have his bill dismissed, and, if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer. By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any document, letter or other writing, saving all just exceptions; and if such admission be not made within five days after such service, the cost of proving the document, letter or writing shall be paid by the party refusing or neglecting to make such admission, unless at the trial the court shall find that the refusal or neglect was reasonable. TESTIMONY— HOW TAKEN. 59 In trials in equity the testimony of witnesses shall be heard orally by the court as in actions at law, unless in particular cases the court otherwise order. When evidence is offered and excluded, and the party against whom the ruling is made excepts thereto at the time, he may bring the question into the record in the statement of evidence on appeal. (As amended April 25, 1919.) The court may order the testimony of all or some of the wit- nesses in such a cause to be taken before one of the examiners of the court or before a special examiner, appointed by the court, under such limitations as the court may order. vSuch examination shall take place in the presence of those of the parties, their agents, or attorneys, as may attend, and the wit- nesses shall be examined as near as may be in the mode used in the court. The questions and answers shall be reduced to writing by the examiner; provided, that on consent of parties, the examiner may take down the testimony of a witness in narrative form. At the request of either party the deposition of a witness shall, under the direction of the examiner, be taken down by a stenog- EQUITY RULES 77 rapher or typewriter, as the examiner may elect, and when taken down stenographically, shall be put into type or other writing. After reduction to writing, the testimony of each witness shall be read over to him and signed by him in the presence of the ex- aminer, and of such of the parties or counsel as may attend; pro- vided, that if the witness shall refuse to sign his deposition so taken, the examiner shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. The examiner may certify to the court any special matters, occurring during an examination; 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 compe- tency, materiality; or relevancy of the questions; the court shall deal with the costs of incompetent, immaterial, or irrelevant depo- sitions, or parts of them, as may be just. In case of refusal of a witness to attend, to be sworn, or to answer any question put by the examiner, qr by counsel or attorney, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. When the examination of witnesses before the examiner is con- cluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record, in the same mode as prescribed in section 865 of the Revised Statutes. Testimony may be taken on commission in the usual way, by written interrogatories and cross interrogatories, on motion to the court in term time, or to a justice in vacation, for special reasons, satisfactory to the court or justice. The expense of taking down depositions by a stenographer and of transcribing them shall be paid in the first instance by the party calling the witness, and shall be imposed by the court, as part of the costs, upon such party as the court shall adjudge should ulti- mately bear them. 60 1. Before Commissioner, Auditor, or Examiner. — Wit- nesses who live within the District of Columbia may be sum- moned to appear before the commissioner appointed to take 78 EQUITY RULES testimony, or before an auditor or examiner taking testimony in any cause, by subpoena in the usual form, to be issued by the clerk, requiring the attendance of the witnesses at the time and place specified. The refusal of a witness to appear, or to give testimony, shall be deemed a contempt of court, and upon such refusal being certified to the court by the commissioner, auditor, or examiner, an attachment may issue by order of court, in the same manner as if the contempt were for not attending, or for refusing to give testimony in court. Nothing herein contained shall prevent the examination of witnesses viva voce in open court, if the court shall deem it advisable. 2. Spa. Ad Test; Form oe. — The writ of subpoena to a witness shall be in the following or equivalent form : (Caption.) The President of the United States to , greeting: You are hereby commanded to appear as a witness — for the— before , at , on the day of : , 19 — , at — o'clock — \l., and not depart without leave. Witness, the Honorable , Chief Justice of said court, this day of , A. D. 19—. , Clerk- By , Assistant Clerk. BILL OF REVIVOR. 61 Whenever a cause in equity shall become abated, it may be revived by a bill of revivor, or a bill in the nature of a bill of re- vivor, 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 subpoena shall, as of course, be issued by the clerk, requiring the proper persons to appear and show cause, if any they have, why the cause should not be revived, and if no cause be shown within ten days after service of said process the cause shall stand revived, as of course. (See sections 235 to 251 of Code.) EQUITY RULES 79 BILL OF REVIEW. 62 No bill of review shall be filed unless within two years after the entry of the decree or order, with the exception specified in the proviso to section 1008 of the Revised Statutes of the United AUDITOR OF COURT. 63 Calling Reference to Attention of. — Whenever any mat- ter is referred to the auditor of the court, the party at whose in- stance or for whose benefit the reference is made, shall, on the day the order is signed, furnish a full copy thereof to the auditor, and shall, within ten days after such reference, cause the same to be brought to the attention of the auditor for the purpose of fixing the time for a hearing. If he shall omit to do so, the ad- verse party shall be at liberty forthwith to apply to the auditor to fix such time, or the auditor may advise the attorneys for the respective parties that he is ready to proceed with the cause. (As amended December 12, 1918.) 64 Hearings Before. — Upon every reference the auditor shall, as soon as he reasonably can after the same is brought before him, assign a time and place for proceeding in the same, and give due notice thereof to each of the parties or his attorney; and if either party fail to appear at the time and place appointed, the auditor may proceed ex parte, or, in his discretion, adjourn the examina- tion and proceedings to a future day, giving notice to the absent party or his attorney of such adjournment. The auditor shall proceed with all reasonable diligence in every reference, and either party may apply to the court, for an order to the auditor to speed the proceedings, and to make his report, and to certify to the court the reasons for any delay. 65 Powers of. — The auditor shall regulate proceedings in hear- ings before him upon references ; and he shall have full authority — 1. To examine the parties in the cause upon oath touching all matters contained in the reference; 2. To require the production of all books, papers, writings, vouchers, and other documents applicable thereto; 8 J EQUITY RULES 3. To examine on oath, viva voce, all witnesses produced by the parties, before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office, or by deposition according to the acts of Congress, or otherwise, as herein provided; 4. To direct the mode in which the matters requiring evidence shall be proved before him, and 5. To do all other acts and direct all other inquiries and pro- ceedings in the matters before him which he may deem necessary for the proper determination of the rights of the parties. 66 1. Account Before. — Parties accounting before the auditor shall file their respective accounts in the form of debit and credit; a party not satisfied with an account so filed may examine the accounting party viva voce, or upon interrogatories in the auditor's office, or by deposition, as the auditor shall direct. 2. Documentary Evidence Before. — Affidavits, depositions, and documents which have been previously made, read, or used in the court, upon any proceeding in the cause or matter, may be used before the auditor and each paper produced and admitted in evidence or a copy thereof, shall be marked by him as filed. 3. Examination of Claimant. — The auditor may examine persons claiming before him, either upon written interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. 4. Evidence Taken Down. — The evidence upon such examina- tion shall be taken down by the auditor or by some other person by his order and in his presence, if either party requires it. 67 1. Compensation of. — Beginning as of March 1, 1915, the compensation of the auditor shall not exceed $5,000 a year, which amount shall be paid from the fees of his office in equal monthly sums, and the surplus over and above such sums and the expenses of his office, to be approved by the court, shall be de- posited in the registry of the court annually. 2. Deposit of Moneys. — The auditor shall deposit all sums EQUITY RULES 81 received by him for fees or otherwise in a bank or banks, trust company or trust companies, designated for the deposit of funds in bankruptcy, and all disbursements of his office shall be made through vouchers drawn on such deposits by checks to be counter- signed by one of the justices. 3. Receipts and Disbursements. — The auditor shall account to the court on the first day of June, 1915, and every three months thereafter, for all his receipts and disbursements, and generally as to the conduct of his office. 4. Bond. — The auditor shall give a bond with surety to be approved by the court in the penal sum of $10,000 conditioned for the faithful performance of his duty. 5. Preparation of Reports. — The auditor shall not return a report until his fees therefor be paid or secured to his satisfaction, unless otherwise ordered by one of the justices. 6. Payment of Fees to be Enforced by Attachment.— Whenever any party shall refuse or neglect to pay fees of the auditor, including the expense of reporting the testimony, after approval of the fees by the court and an order by the court for their payment, a rule shall issue requiring such party to show cause, on a day certain, why he should not be adjudged to be in contempt. Upon failure of such party to satisfactorily answer such rule, a writ of attachment shall issue directing the marshal to bring such party before the court, to be dealt with according to law. REPORT OF AUDITOR. 88 1 . 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. 2. Evidence Before, With Report. — All evidence taken down before the auditor shall be returned by him with his report and be considered a part thereof. 3. Notice of Filing Report. — Upon the day on which the report is filed with the clerk, the auditor shall mail a notice thereof to each attorney appearing in the cause addressed to him at his place of business or abode, if known to the auditor; otherwise it 82 EQUITY RULES shall be addressed to him at the city of Washington. Proof of such notice shall not be necessary to the ratification of the report, and failure to send such notice shall not be ground for reopening it- 69 Confirmation of, and Exceptions to, Report. — The parties shall have ten days from the time of filing the auditor's report to file exceptions thereto, and if no exceptions are within that period filed the report may be confirmed. 2. Frivolous Exceptions. — In order to prevent the filing of exceptions to an auditor's report for frivolous reasons or for mere delay, the exceptor shall, for every exception overruled, pay five dollars costs to the other party, and for every exception allowed shall be entitled to the same costs from the other party. STENOGRAPHER— APPOINTMENT— FEES. 70 When deemed necessary by the court or officer taking testimony a stenographer may be appointed who shall take down testimony in shorthand and, if required, transcribe the same. His fee shall be fixed by the court and taxed ultimately as costs. The expense of taking a deposition, or the cost of a transcript, shall be advanced by the party calling the witness or ordering the transcript. DOWER, CURTESY AND LIFE ESTATE. 71 1. Dower. — The allowance to a healthy woman in lieu of her right of dower in land sold under decrees, shall be as follows, except when otherwise specifically provided by statute. (See Code, sections 89 and 149.) Under 30 years of age One-sixth. Above 30 and under 35 Two-thirteenths Above 35 and under 40 One-seventh. Above 40 and under 45 Two-fifteenths. Above 45 and under 51 One-eighth. Above 51 and under 56 One-ninth. Above 56 and under 61 One-tenth. Above 61 and under 67 One-twelfth. Above 67 and under 72 One-fourteenth. Above 72 and under 77 One-eighteenth. Above 77 One-twentieth. EQUITY RULES 83 2. Curtesy and Life Estate. — Allowance to a healthy tenant for life shall be three times the allowance in lieu of dower to a widow of the same age. COURT SALES. 72 1. Directions as to. — In sales of real estate under decree of court the directions to trustee or other officer to make sale as to the manner of proceeding, approval, and filing of bond, pub- lication, payment of purchase money, accounting to the court, conveyance to purchaser, return of purchase money into court, questions of said officer's commissions, and authority to him to pay taxes on property, shall be omitted from such decree and in no case set out in extenso, but shall be made a part thereof only by reference to this rule, except that in cases where the pro- visions of this rule, or any of them, may be inapplicable, such other terms as the exigency of the case requires shall be added. The course and manner of said officer's proceedings under decree for the sale of real estate shall be as follows: He shall first file with the clerk a bond to the United States of America, executed by him, with a surety or sureties to be approved by the court, in a penalty to be named in the decree, conditioned for the faithful performance of the trust reposed in him by the decree or which may be reposed in him by any future order or decree in the premises; he shall then proceed to sell said real estate, having given at least ten days' previous notice by publi- cation, to be inserted in a daily newspaper, named in the decree, published in the District of Columbia, of the time, place, man- ner, and terms of sale, which terms shall be as follows: One- third of the purchase money to be paid in cash and the balance in two equal installments, payable in one and two years from day of sale, and to be represented by the promissory notes of the purchaser bearing interest at the rate of 6 per centum per annum, payable semi-annually, and secured by deed of trust on the prop- erty sold, or all cash, at the option of the purchaser; and as soon as may be convenient after any such sale the said officer shall return to the court a full and particular account of the same, 84 EQUITY RULES with an affidavit of the truth thereof and of the fairness of such sale annexed ; and on the ratification thereof by the court the said officer, by good and sufficient deed, to be executed and acknowledged agreeably to law, shall convey to the purchaser or purchasers of said property, and to his, her, or their respective heirs and assigns, the property to him, her, or them sold, free, clear, and discharged of all claim of the parties to the cause, and of any person or persons claiming by, from, or under them, or any of them; and the said officer shall bring into court the money arising on such sale or sales and the notes, if any, which may be taken for the deferred payments, to be disposed of under the direction of the court, after deducting therefrom the costs of suit and such commissions to said officer as the court may allow, but no order or decree relieving such officer or the surety on his bond from liability shall be made unless and until said money and notes, if any, shall have been either deposited in the registry of the court, or distributed to the parties in interest and proper receipt therefor filed in the suit or proceeding in which such sale or sales shall have taken place. Said officer being authorized to pay all taxes and assessments against said property, if any, to day of sale, and to be allowed credit therefor in his account. (As amended October 18, 1918.) 2. Decree of Sale, Form oe. — The clerk shall provide and keep in his office, for distribution among attorneys, a blank form of decree under this rule, in the following or equivalent form : (Caption.) This cause coming on to be heard at this term upon the pleadings and testi- mony, and having been submitted and considered by the court, it is, this day of , A. D. 19 — , adjudged, ordered, and decreed that the real estate mentioned and described in the bill of complaint, as follows: be sold ; that be, and he hereby, appointed trustee to make said sale, giving bond in the penalty of dollars ($ ); and that the advertisement of said sale be made in the newspaper. It is further ordered that the provisions of equity rule 72 be in all respects complied with . Justice. 3. Orders Nisi, Form of. — The clerk shall provide and keep in his office for distribution among attorneys, a blank form of the order nisi, which shall be in the following or equivalent form : EQUITY RULES 85 (Caption.) A. B. and CD., trustees, having reported sale of (describe (1) property), situate in the of Washington, said District, toE.F. for $ , (2), it is this day of , 19—, ordered that said sale be ratified and confirmed by the court unless cause to the contrary be shown before the day of , 191 — , provided a copy of this order be published in each of three successive issues of The Wash- ington Law Reporter , prior to the expiration of said period. Justice. ( 1) Say, lot , square . If the description is by metes and bounds add, "fully described in the " (bill of complaint or decree of sale). (2) If sale be by brokers entitled to commission, add, "subject to payment of broker's commission of — per cent." 4. Advertisement, Contents of. — A trustee or other person authorized or directed by the court to advertise property for sale shall append to the advertisement his name and a reference to his place of business or residence, and he may add to such advertise- ment the name and calling of the person employed to cry the sale, but shall not otherwise enhance the cost thereof. 5. Present at Sale. — At every such sale the trustee or other officer making the sale shall be present, and shall in person receive the deposit required in such case; and he shall in no case entrust the payment of the advertising and other expenses to the person employed to cry the sale. 6. Report of Compliance with Rule. — In his report of the sale to the court the trustee or other officer making the sale shall state under oath whether he has complied with the provisions of this rule. 7. Ratification. — Upon the filing of a report of sale of real estate by such trustee or other officer, the court, in its discretion, with or without cause shown, may immediately ratify such sale or may pass an order nisi on such sale for such time and requiring publication thereof, or without publication, as the court in such order may determine. 8. Auctioneer. — The compensation of the person employed to cry any sale of realtor leasehold estate, made by 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 86 EQUITY RULES compensation shall not be less in any ease than ten dollars. For an ineffectual effort to sell, such crier may be paid not exceeding five dollars. 9. Commissions on Court Sales. — On sales under decrees or orders of the court the following allowances are made to trustees or other officers making same : On the first $300, 7 per cent $21.00— On the second $300, 6 per cent 18.00 — 39.00 On the third $300, 5 per cent.__ 15.00 — 54.00 On the fourth $300, 4 per cent 12.00— 66.00 On the fifth $300, 3j^ per cent...- 10.50— 76.50 On the sixth $300, 3j^ per cent : 10.50— 87.00 On the seventh $300, 3 per cent 9.00— 96.00 On the eighth $300, 3 per cent 9.00— 105.00 On the ninth $300, 2^ per cent 7.50— 1 12.50 On the tenth $300, 2}/£ per cent 7.50 — 120.00 And three per cent on all above three thousand dollars, besides an allowance for expenses not personal. The above allowance subject to be increased in cases of postponement at the request of defendants or of extraordinary difficulty or trouble from other circumstances, and to be lessened in case of negligence, at the discretion of the court. TRUST FUNDS 73 1. On or before the first day of May, 1916, and within thirty days prior to the first of the same month in every year thereafter, it shall be the duty of every trustee, committee, or receiver, ap- pointed by a decree or order of a justice of the equity branches of the court, and of every trustee executing or administering any trust howsoever created under the order and supervision of any branch of the court, other than the probate branch, and all fi- duciaries administering any estate in any branch of the court, in- cluding testamentary trustees, with the single exception of the probate branch, to file with the clerk of the court a report or account, verified by his oath, in which he shall fully and clearly set forth the nature of all assets held by him in such fiduciary capacity; the place or places where any trust moneys or securities are deposited, and in what name; the nature and particu- lars of all securities, real and personal; whether the same were received by him in the same form as parts of the trust estate, EQUITY RULES 87 or are investments made by him. And as soon as such report or account shall have been filed, it shall be the duty of the clerk to note the filing thereof upon the docket of the cause or pro- ceeding, and forthwith transmit the same to the auditor for ex- amination and verification; the auditor shall as soon as may be, at some convenient time and place to be fixed by him or by the court, cause said trustee, committee, receiver or other fiduciary to exhibit to him all the securities reported by such trustee, com- mittee, receiver or other fiduciary, and ascertain whether or not the same correspond with such report or account; and he shall also examine and ascertain the correctness or incorrectness of the statements of the report or account, with respect to all deposits of money stated in said account or report as existing when the report or account is filed ; and the auditor shall immediately file with the clerk a written report of the result of such examination and verifi- cation. 2. The auditor is authorized to demand and receive for his services the following fees, unless the court otherwise order: Where the assets of the estate shall not exceed $500, no fee. Where the assets exceed $500, and do not exceed $1,000, fee, $1. Where the assets exceed $1 ,000, and do not exceed $2,000, fee, $2. Where the assets exceed $2,000, and do not exceed $3,000, fee, $3. Where the assets exceed $3,000, and do not exceed $4,000, fee, $4. Where the assets exceed $4,000, and do not exceed $50,000) fee, $5. Where the assets exceed $50,000, fee, $10. 3. The clerk shall, on the tenth business day of May, in each year, report to the court the names of all trustees, committees, receivers or other fiduciaries amenable to this rule, designating such as have complied and such as have failed to comply with the same; and any trustee, committee, receiver or other fiduciary who fails to comply therewith, shall be held thereby to have forfeited his office, and the court shall forthwith appoint a successor unless the court, for cause shown, excuse such failure. (As amended May 7, 1919.) Note. — Equity Rule 73 no longer governs the practice of the Probate Court, reference being made to Probate Rule 18, pro- mulgated April 21, 1915. 88 EQUITY RULES 74 1. Report of. — Whenever it shall appear that a fund in the hands of a receiver, trustee, committee, or other fiduciary will remain undistributed for a period exceeding ninety days from the receipt thereof by him, he shall, within thirty days after such receipt, report to the court, in writing, under oath, the amount of such fund, where and in what name deposited, and the period for which it will probably remain undistributed, and the court may thereupon make such order with respect to the disposition thereof as to it shall seem proper. 2. Fiduciary's Bond, Form of. — The bond required by decree of any fiduciary before entering on his duty shall be in the follow- ing or equivalent form : (Caption.) Know all Men by These Presents, That we, , all of the District of Columbia, acknowledge ourselves indebted to the United States of America in the penal sum of dollars, for the payment of which we bind ourselves and every of our heirs, executors, and administrators, suc- cessors or assigns, jointly and severally, for and in the whole. Sealed with our seals, and dated this day of , A. D. 19 — . Whereas the said ha — been duly appointed Now, the condition of the above obligation is such, that if the above bounden shall well and truly perform his duties as such and shall in all things obey such order and decree as this court shall make in the premises, then the above obligation to be void and of no effect; else to be in full force and virtue. Witness : Approved this day of , 1 9- -[seal.] [seal.] Justice, S. CD. C. THESE RULES EFFECTIVE DECEMBER 1, 1913— OLD RULES ABROGATED. 75 These rules shall be in force on and after December 1, 1913, and shall govern all proceedings in cases then pending or thereafter brought, save that where in any then pending cause an order has been made or act done which can not be changed without doing substantial injustice, the court may give effect to such order or act to the extent necessary to avoid any such injustice. All rules heretofore prescribed, regulating the practice in suits in equity, shall be abrogated when these rules take effect. INDEX TO LAW AND EQUITY RULES. Rule. Law. 14 14 14 Abatement — plea in to be accompanied by affidavit as to truth plea in, in equity, abolished defense of, in equity, by answer Absent defendant — copy of petition for divorce to be sent by clerk to Absent parties — may be dispensed with, when.. decree to be without prejudice to rights of bill to state reason why not made parties saving, in decree, as to rights of Account — of personal estate of decedent, direction to auditor Accounting — before auditor, proceedings on by auditor, of fees, etc by trustee, etc., as to trust funds.... Action or suit (see Actions Ex Contractu) — how commenced appeal from or plea of title before municipal court deposit for costs to be made by plaintiff or appel- lant unless dispensed with by order of court clerk to enter cause on docket, when in cases of certiorari from municipal court on ground of concurrent jurisdiction, petitioner to make deposit for costs in such cases, plaintiff to make deposit on filing declaration on intervening petition, etc., petitioner to make deposit for costs additional deposit, clerk may require consolidation of causes for trial separate trial of several causes of action stated in same declaration to be in name of real party in interest causes of, joinder of, in suit in equity joint and several demands, suit in equity on, parties to docketing of transfer of cause from law to equity side of court, and vice versa Actions ex contractu — provisions of rule 73 made applicable to cases of certiorari to municipal court on ground of con- current jurisdiction where there are several defendants, judgment may be taken against any making default and the action proceeded with against the others (l) 14 14 14 14 44 44 76 21 57 Eq. 14 15 21 22 23 Page. 32 32 44 18 18 20 37 52 66 67 73 26 64 64 69 59 59 60 66 72 80 81 85 17 17 17 17 IS 18 18 18 37 37 58 60 60 61 54 22 43 11 INDEX TO LAW AND EQUITY RULES Rule. Page. Law. Eq. Actions ex contractu — Continued. when affidavit accompanies declaration, plea in bar must be accompanied by affidavit of defense, or plaintiff entitled to judgment 73 73 73 73 73 73 53 affidavit of plaintiff, what to state.. 53 of defendant, what to state 53 acknowledgment by defendant of liability for part of plaintiff's claim, right of plaintiff on 53 rule inapplicable in actions against decedent's rep- resentatives unless plaintiff's affidavit alleges contract was made with or promise made by them 53 corporation defendant, who may make affidavit of defense 54 Administrator — may sue in his own name 15 58 Admission to the bar {see Attorneys) — application for how to be made 5 5 5 5 5 5 5 5 5 5 42 7 application for, to be filed with clerk 7 application for, by attornev admitted elsewhere 7 application, to be referred to committee on exami- nation 7 requirements for . 7 application for, what to state 7 examination of applicants for . 7 fee to be paid for 8 oath to attorney, form of 8 clerk's fee for 8 Admission of documents {see Documents, Admis- sion of) .. 35, 36 Adoption — proceedings, separate docket to be kept for 24 61 Advertising — rates to be paid for when done under order of court 68 9 9 19 19 21 21 21 22 24 50 Affidavit— of plaintiff in attachment before judgment, form of.. 11 supporting affidavit in attachment before judg- ment, form of 11 of plaintiff on appeal from municipal court in land- lord and tenant proceeding, summary judgment on 19 of defendant on such appeal 20 to be filed with petition for certiorari to munici- pal court on ground of concurrent jurisdiction .... summary judgment on, in cases certified from municipal court 21 21 of defense, in cases certified 22 applications for special remedial writs to be veri- fied by 22 copy of, accompanying declaration, to be served with writ 22 INDEX TO LAW AND EQUITY RULES ill Affidavit — Continued. of publisher, etc., to be proof of publication copy of, to be served , plea in abatement to be accompanied by plea after last continuance to be accompanied by.... proof of signature not required unless denied by.... application for continuance to be supported by motion to vacate judgment to be supported by plea accompanying motion to vacate judgment by default to be verified by plea to sci. fa. or action on judgment to be treated as a nullity unless accompanied by of sureties on undertaking to discharge mechanic's lien, form of summary judgment on, in actions ex contractu, for want of affidavit of defense corporation defendant, who may make pleadings in equity to be verified by by whom made._ before whom made.....: . to be signed by affiant and certified to on same sheet by officer before whom made certificate of officer as evidence of service of process by person specially designated supporting motion to set aside decree pro confesso as to facts on which temporary restraining order is asked... as to mailing copy of order on petition for divorce to facts, on petition for rehearing of plaintiff, as to failure of defendant to perform decree of defendant, on motion to enlarge time for per- forming decree... to support application to continue equity cause before auditor, to be filed account of court sale by trustee, etc., to be sup- ported by Affirmation — may be made in lieu of oath Agent — of corporation, affidavit of defense by, on appeal in landlord and tenant proceeding affidavit to plea in abatement by affidavit by, in actions ex contractu verification of pleading by Agreed issues of fact — may be stated in writing for trial after return of service of declaration, etc judgment on Rule. Law. Eq. 24 25 28 32 41 45 61 61 67 69 73 73 39 19 28 73 10 10 11 11 11 26 31 42 44 50 52 52 56 66 72 10 40 55 Page. 23 23 26 29 35 38 45 45 50 52 53 53 56 56, 57 57 57 57 63 64 68 69 71 72 72 74 80 83 34 20 26 53 57 35 43 IV INDEX TO LAW AND EQUITY RULES Agreements — to be in writing and signed by parties or counsel.... Amendment — after demurrer at law sustained. of pleadings in equity, to effect certainty of answer in equity.. of bill, answer to of bill, to add new parties of answer held insufficient Annulment of marriage (see Marriage, Annulment of) Answer — of garnishee in attachment, when to be filed failure of plaintiff in attachment to joint issue on., exceptions to, to be entered on motion calendar.... equity court always open for filing of. scandal, etc., in, may be ordered stricken out presumptions of law and matters taken judicial notice of not to be stated to specifically admit or deny material averments of fact in bill on failure specifically to deny, etc., may be stricken from files. to be verified by affidavit attachment to compel to be filed on setting aside decree pro confesso defenses heretofore presentable by plea to be made by - .-- motion to dismiss, for matters arising on face of bill when to be heard on denial of, answer to be filed when when to be filed frame of, divided into numbered paragraphs averments not denied by deemed confessed, when amendment of, by leave of court, on notice may state all defenses deemed essential may state defenses in the alternative, although inconsistent counter-claim or set-off, may be pleaded in effect of pleading to amended bill, when to be filed _ default of, proceedings on parties, want of suggested in, proceedings on. failure to set down parties, omitted, saving as to rights of nominal party not required to file, when sufficiency of, exceptions for abolished tested by motion to strike out, when amendment of, if held insufficient.... cause at issue on filing of, when new matter in, deemed denied by plaintiff Rule. Page. Law. Eq- 23 31 9 10 33 5 34 35 36 39 /46 148 1 6 9 9 34 9 10 30 31 32 32 32 32 33 33 34 34 34 34 34 34 35 35 36 36 37 38 39 39 39 40 40 22 28 55 65 66 66 67 70 14 14 29 55 56 56 56 65 56 56 64 64 64 64 65 65 65 65 65 65 65 65 65 65 66 66 66 66 66 66 67 67 67 67 67 INDEX TO LAW AND EQUITY RULES Rule. Law. A n swer — Continued . reply to, when set-off or counter-claim pleaded.... copy of, to be served on defendants affected by counter-claim or set-off pleaded in default of, pro confesso to be entered of defendant, in suit for divorce, may set up adul- tery of petitioner, etc - issue on, in such case, how tried Appeal — injunction pending, when granted bond on Appeal calendar — cases appealed from municipal court to be entered on ; summons to appellee, form of failure of appellant to pay marshal's fee.... cases certified from municipal court on plea of title to be entered on... Appeals from municipal court — papers and transcript of docket to be filed appellant to make deposit for costs to be entered on appeal calendar summons to appellee, form of dismissed on failure of appellant to pay marshal's fee for serving summons summary judgment on affidavit on appeal in land- lord and tenant proceeding Appeals to Court of Appeals— when to operate as supersedeas, bond to be given... bond on, to be filed within 20 days after judgment form of. citation, form of transcript of record, copies of papers to show date of filing date of order, etc., included in transcript to be noted at head thereof transcript of record, caption of papers to be omitted from certificate showing entry and date of appeal, form of injunction pending, bond on Appear an ce — of defendant, in equity, when and how to be made to be entered on docket default of, proceedings on Applications grantable of course — by clerk, what are. Argument (see Hearings) — setting cause down for, on objection of want of parties Argument of causes — number of counsel to be heard time allowed for 17 17 17 20 14 14 17 17 18 19 62 62 62 62 63 63 63 63 Eq. 40 40 40 47 47 43 43 43 29 29 30 28 36 49 49 Page. 67 67 67 70 70 69 69 19 19 19 20 17 17 19 19 19 19 45 45 45 46 46 47 47 47 69 63 63 64 63 66 39 40 VI INDEX TO LAW AND EQUITY RULES Rule. Law. Argument op causes — Continued. court may increase or reduce time or permit addi- tional counsel to be heard counsel with right to open and close may divide time as he deems best where more than one counsel on a side is allowed, they may divide time allowance as they agree... in equity, reading of testimony on Arrest of judgment — motion for, continuation of term for deposition of to state grounds.... to be filed within four days after verdict to be noted on minutes on day filed- may be heard with motion for new trial, etc. to be submitted within 15 days after verdict, unless time is extended; if not, overruled if overruled, judgment to be entered... if new trial be refused, judgment may be arrested Assignment— for motion day, clerk to enter matters on Assistance — writ of, when to be issued form of Attachment (in Equity) — to compel answer to compel answer to amended bill for failure to perform decree for specific act for refusal to answer interrogatories or produce document : of witness for contempt in refusal to testify to enforce payment of auditor's fees..... Attachment and garnishment — bond to discharge, notice of application for ap- proval of._ affidavit of plaintiff, form of. supporting affidavit, form of._ bond on, form of._ writ of, form of notice to garnishee to answer interrogatories, form of answer of garnishee, issue on. if issue not joined in ten days, garnishee entitled to judgment on judgment and notice, form of interrogatories and notice to gar- nishee, form of Attachment for rent — writ, form of Attorneys (see Admission to the bar) oath of, on admission to bar suspension and removal of, causes for 49 49 49 46 46 46 46 46 46 46 33 7 9 9 9 9 9 10 10 66 66 11 5 5 6 Page. Eq. 57 1 52 52 30 35 52 58 59,60 67 40 40 40 74 5 38 38 38 38 38 38 38 29 73 73 64 66 76 77, 78 81 10 11 12 12 13 14 14 14 49 50 14 7 8 8 INDEX TO LAW AND EQUITY RULES Vll Attorneys (see Admission to the bar) — Continued. committee on grievances, duties of.... charges against, copy of and notice to be served penalty on conviction of conduct of, in judicial proceeding, inquiry by grievance committee as to._ alleged misconduct, charges of, committee on griev- ances to inquire into all cases proceedings where accused can not be served with charges court may direct charges to be preferred in active practice not to be accepted as surety on bond, etc., requiring approval of corporation, affidavit of defense by affidavit to plea in abatement by to enter appearance on being retained in criminal case notice to of trial of criminal case where indictment has been pending 18 months or more signature of, to be annexed to pleadings. effect of counsel in equity causes to be designated as Auctioneer — compensation of, on court sales Auditor — clerk may deliver papers to, in cases referred not to permit papers to be taken from his office decree referring cause to for account of personal estate of decedent, what to contain attendance of witnesses before, how enforced attention of, to be called to reference, when hearings before, fixing time for._ proceedings on on failure of party to appear, may proceed ex parte adjournment of examination powers of accounting before, proceedings on evidence in cause may be used before documentary evidence before to be filed creditor or claimant may be examined by, orally or upon written interrogatories evidence to be taken down if required by either party compensation of fees, surplus above compensation and expenses of office to be deposited annually in registry of court fees, etc., received by, to be deposited receipts and disbursements, account of Rule. Page. Law. Eq. 6 6 6 6 6 6 6 7 19,73 28 70 72 54 54 12 12 14 72 52 60 63 64 64 64 64 65 66 66 66 66 66 67 67 67 67 8 8 9 10 10 11 20, 54 26 52 53 58 58 58 85 42 42 72 77 79 79 79 79 79 79 80 80 80 80 80 80 80 80 81 Vlll INDEX TO LAW AND EQUITY RULES Auditor — Continued. bond of report of, not returned until fees paid or secured — fees of, attachment to enforce payment of report of, when to be returned evidence to be returned with notice of filing to be given attorneys exceptions to, when to be filed copy of, to be served, when to be entered on motion calendar hearing on, rule as to of, when no exceptions confirmation filed frivolous exceptions to, costs of exceptions to, sustained, costs of account of trustee, etc., to be examined by fees of, for examining account of trustees, etc B. Bail- notice to of trial of criminal case, when. Bar- admission to, rule as to suspension and removal of members of, in active practice, not to be accepted as surety .__ Bills and notes— forms of declarations on Bill of complaint — equity court always open for filing of contents of parties under disability, fact to be stated omitted, reason for to be stated prayer for relief, may be in alternative form joinder of causes of action in joint and several demands, suit against one or more parties liable frame of caption, to gives names and capacity in which parties sue or are sued form of introductory part, what to contain form of._ amendment of (see Amendment) to be docketed as soon as filed Bills of exceptions — continuation of term for settlement of exception must be taken at time ruling is made several exceptions may be included in one bill to be prepared by counsel Rule. Law. 25 33 33 72 5 6 6 27 1 47 47 48 Page. Eq. 67 67 67 68 68 68 69 69 69 69 73 73 1 20 20 20 20 21 22 23 23 23 23 23 5,36 24 81 81 81 81 81 81 82 23 29 29 82 82 82 86 87 53 7 8 11 25 55 60 60 60 60 60 60 61 61 61 61 61 55, 66 61 5 39 39 39 INDEX TO UW AND EQUITY RULES IX given opposing Bills of exceptions — Continued. when to be submitted notice, with copy of bill, to be counsel fact of settling and signing to be noted on minutes if court unable to settle, new trial to be granted submission, etc., not affected by expiration of term rule applicable to pending cases in equity causes..._ Bill of review — when to be filed. __ Bill of revivor — when to be filed. proceedings on__ Bill, supplemental (see Supplemental Pleadings) Bonds and undertakings — notice of application for approval, when required.... notice of application for approval, contents of corporation surety, certificate of clerk as to author ity and agent... surety on, not to be named in alternative when insufficient, court may require further se- curity members of bar in active practice and officers of court not to be accepted as surety bond of plaint ff in attachment, form of undertaking of plaintiff in replevin, form of of defendant in replevin, form of of non-resident plaintiff, for costs of defendant on plea of title before municipal court..... bond on appeal to Court of Appeals, when to be given bond on appeal to Court of Appeals, form of undertaking to discharge mechanic's lien, form of power of clerk to approve security to be given on application for prelimi- nary injunction bond for injunction pending appeal of auditor, penalty of bond of trustee for sale of real estate of fiduciary, form of Books and writings, production, etc., of — motion for, to be in writing and filed to describe books, etc., to be produced order to produce, certified copy to be served.- when to be served filing books, etc., in clerk's office a compliance with order • time for compliance may be enlarged on application before auditor notice to admit, either party may give when to be served Rule. Law. 48 48 48 48 48 48 7 7 7 7 7 9 12 12 15 20 62 62 69 43 43 43 43 43 43 Eq. 59 62 61 61 8 28 42a 43 67 72 74 42 65 58 58 Page. 39 39 39 39 39 39 76 79 78 78 56 10 10 10 10 10 11 12 15 16 18 21 45 45 51 63 69 69 81 82 87 37 37 37 37 37 37 79 35, 76 76 INDEX TO LAW AND EQUITY RULES Books and writings, production, etc., on — Con. admission, when to be made refusal, cost of proving form of..._ Brief op testimony — in equity, counsel to make, when Calendar, appeal (see Appeal Calendar) Calendar, equity (see Equity Calendar) Calendar, motion (see Motion Calendar) Calendar, trial (see Trial Calendar) Caption to bill in equity — to give names of parties and capacity in which they sue or are sued Caption to forms and pleadings — ■ form of.. of first pleading to contain names of all parties of all papers, except first, to be omitted from tran- script of record on appeal Causes of action, trial of — consolidation of for trial separate trial of several causes of action stated in declaration.- instructions to have on them number and title of cause instructions to state whether those of plaintiff or defendant.. instructions submitted and acted on by court to be filed in cause Certainty — in pleading, requirement of. Certiorari — application for may be heard by circuit or criminal court or at chambers petition for must be verified by affidavit motion to quash, etc., may be heard in same manner Certiorari from municipal court — petitioner to make deposit for costs.. plaintiff, on filing declaration, to make deposit for costs cases certified to be entered on appeal calendar cause certified on plea of title to be entered for trial on appeal calendar proceedings in, how regulated. on ground of concurrent jurisdiction, petition to be accompanied by affidavit what affidavit to state notice, with copy of petition, to be served on oppo- site party within five days municipal court not to be made party fee for municipal court, failure of petitioner to pay plaintiff to file declaration in 10 days after return.... Rule. Law. 42 42 17 33 36 13 13 63 44 44 44 44 44 22 22 22 14 14 17 20 20 21 21 21 21 21 21 Eq. 58 58 57 54 23 Page. 76 35, 76 35 74 19 73 29 31 61 17 17 47 37 37 37 37 37 55 22 22 22 18 18 19 20 20 21 21 21 21 21 I I INDEX TO LAW AND EQUITY RULES XI Certiorari from municipal court — Continued. copy of to be served on defendant's attorney summary judgment on affidavit for want of affi- davit of defense. Chambers — interlocutory orders may be made at applications for special remedial writs may be heard at motions to quash, etc., such writs may be heard at Circuit courts — terms of - applications for remedial writs may be heard by... jury may be transferred from to district court Citation — on appeal to Court of Appeals, form of Class — suit by representatives of Clerk of court — to record proceedings of court in minutes office hours of date of filing papers and exhibits to be noted by deposits in registrv of court, account of, to be kept by deposits, to make report as to applications for admission to bar to be filed with... fees of, for admission to bar and certificate shall issue writ of replevin, when to enter causes on docket, when... costs of, deposit to be made for may demand additional deposit for costs to enter causes from municipal court on appeal calendar : to enter cause certified from municipal court on plea of title on appeal calendar.— shall enter upon assignment for motion days all matters entered on motion calendar one day prior thereto note of issue to be furnished to shall enter cause on trial calendar, when original papers not to be taken from custody of, except by auditor or examiner or upon order of court to deliver papers to auditor or examiners, when to produce papers before police, municipal and juvenile courts. _ to require receipts for papers delivered by him transcript of record on appeal, preparation of to enter causes upon criminal docket directions to for preparation and calendaring of cause applications grantable of course by power of, to approve bonds, etc to issue commissions to take testimony Rule. Page. Law. Eq. 21 21 2 22 22 1 22 53 62 3 4 4 4 4 5 5 12 14 14 14 17 20 33 35 36 54 54 54 54 63 71 17 28 28 28 28 22 22 5 22 22 5 22 42 46 59 6 6 6 6 6 7 8 15 17 17 18 19 20 29 30 31 4 2 42 42 42 46 52 63 63 63 63 Xll INDEX TO LAW AND EQUITY RULES Rule. Page. Law. Eq. Clerk of court — Continued. to mail copy of petition for divorce to absent de- fendant 44 44 73 69 certificate of, as to mailing, form of. 69 to note filing and transmit report of trustee, etc., to auditor S6 Commencement of suit — how commenced 14 14 38 38 38 38 38 38 38 17 deposit for costs to be made unless dispensed with Commission to take testimony — motion for, to give names and addresses of wit- nesses 17 32 interrogatories, when to be filed 32 copy of to be served on opposite party 32 carriage of, to be entrusted to party applying for, who shall be responsible for return 32 publication to be made immediately on return 32 form of 33 commissioner's return, form of . 33 application for, grantable of course by clerk 28 59 65 60 60 1 72 63 on interrogatories, when to be issued. 77 of witness, on hearing before auditor. 80 Commissioner — taking of testimony before 77 attendance of witness before, how enforced 78 Commissions — equitv court always open for issue of 55 Commissions on court sales — table of . 85 Committee on examination— of applicants for admission to the bar 5 6 7 Committee on grievances (see Grievance Committee) 8, 9 Committee of lunatic — to make report of trust funds 73 85 Computation of time (see Time, Computation of) 8 14 17 21 21 21 55,59 44 11 Concurrent jurisdiction — in cases certified from municipal court on, petitioner to make deposit lor costs 18 cases to be entered on appeal calendar, when 19 affidavit to be filed with petition 21 plaintiff in case certified to file declaration, when.... 21 summary judgment on affidavit 22 Confession — judgment by, inquiry by jury on. . 43, 44 Consolidation of causes — court may make order as to 60 67 37 Contempt — of witness in refusing to appear or give evidence before auditor, etc., attachment for 78 for failure to pay auditor's fees 81 Continuance, plea after last (see Plea) 32 45 28 Continuances — application for, to be supported by affidavit show- ing grounds, unless waived 38 INDEX TO LAW AND EQUITY RULES Xlll Ru Law. LE. Eq. Page. Continuances — Continued. application for when to be filed 45 45 45 45 38 on ground of absence of witness, affidavit to state facts to which witness will testify 38 admission by opposite party that witness will so testify 38 in discretion of court and at cost of party applying 38 of equity cause, after being placed on calendar, when granted 56 56 56 56 56 74 beyond term, stipulation to be signed and costs paid beyond term, equity cause to be dropped from calendar - 74 74 reinstatement of equity cause within one year 74 if not reinstated, cause dismissed without preju- 74 Copy — of charges to be served on attorney 6 19 21 21 24 25 38 43 47 8 of affidavit of plaintiff, on appeal in landlord and tenant proceeding, to be served 20 of petition, on certiorari to Municipal Court, to be served 21 of declaration, etc., on certiorari to Municipal Court to be served 22 of declaration, etc., to be served with summons 22 of pleadings, etc., at law or in equity, to be served, when 23 interrogatories, to be served 32 of order to produce books, etc., to be served 37 of bill of exceptions, to be served 39' of order setting cause for hearing on objection of want of parties to be served 36 . 40 58 66 of answer setting up counterclaim to be served on defendants affected by. 67 of interrogatories, to be served 75 Coroner — inquisition from, to be entered on criminal docket 71 7 19 41 73 52 Corporation — as surety, certificate of clerk as to authority and agent 10 affidavit of defense by, on appeal from municipal court 20 affidavit as to genuineness of signature, who to make 35 affidavit of defense by, in actions ex contractu 53 verification of pleading in equity by officer of 10 56 Costs — deposit for, who to make 14 14 15 16 20 17 on intervening petition to be made by petitioner IS undertaking for, by non-resident plaintiff, form of 18 where recovery is less than court's jurisdiction in case certified from municipal court on plea of title, failure of plaintiff to make deposit IS 21 XIV IXDEX TO L,\W AND EQUITY RULES Costs — Continued. of proving document may be imposed on party re- fusing to admit. of continuance to be borne by applicant unless otherwise ordered taxation of, application for grantable of course by clerk on setting aside decree pro confesso when nominal party entitled to of attachment, on failure of defendant to perform deciee on continuance of equity cause of proving document, on refusal of party to admit of irrelevant, incompetent, or immaterial testimony of taking testimony before examiner of exceptions to auditor's report overruled of exceptions to auditor's report, when sustained. ... fees of stenographers taking testimony : Counsel — stipulations or agreements to be signed by number of, to be heard. division of, time between signature of, to be annexed to pleadings certificate of what in equity causes to be designated as attorneys Counter-claim and set-off — answer in equity may set up without cross-bill motion to strike out answer setting up reply to, when to be made.. by defendant affected by..._ default of, pro confesso on Court, terms of (see Terms of Court) directions as to, not to be set out in decree proceedings under decree, course and manner of.... Court sales — trustee to give bond. to advertise sale terms of sale report of sale, with affidavit of fairness on ratification, deed to be executed proceeds of, to be brought into court bond not discharged until money deposited in court or receipts filed taxes, etc., to be paid._ decree- of sale, form of orders nisi, form of advertisements, contents of trustee or officer making sale to be present to receive deposit li> pay expenses report of trustee, etc., making sale to state under oath compliance with rule Rule. Page. Law. Eq. 42 45 23 49 49 28 31 38 52 56 58 59 59 69 69 70 12 12 14 34 39 40 40 40 72 72 72 72 72 72 72 72 72 72 72 72 72 72 72 72 72 35 38 63 64 67 72 74 76 77 77 81 81 82 22 39 39 58 58 58 65 67 67 67 67 5 83 83 83 83 83 83 84 84 84 84 84 84 85 85 85 85 85 INDEX TO LAW AND EQUITY RULES XV Court sales — Continued ratification of sale auctioneer, compensation of commissions of trustee, etc., table of Criminal ca c es — when pending IS months or more, notice of trial to be given defendant.. application by defendant for immediate trial Criminal courts — terms of applications for remedial writs may be heard by.... transfer of jury from criminal court No. 2 to dis- trict court... law rules to apply to and govern practice in attorneys to enter appearance on being retained... causes to be entered on criminal docket, when notice to defendant of trial of cause in which in- dictment has been pending 18 months or more... Criminal docket — clerk to enter matters on in order of filing and number accordingly further proceedings to be noted on Cross-bill — counter-claim or set-off may be pleaded in answer without - - Curtesy — allowance in lieu of, table of.. Rule. Page. D. Damage — unliquidated, jury of inquiry to assess, when awarded... Decedents' estates — provisions of rule 73, when applicable in suits against representatives of decree for account of personal estate of, what to contain Declaration — caption of, to contain names of all parties action commenced by filing of to be filed by plaintiff in cases certified from municipal court on ground of concurrent juris- diction copy of, to be served copy of, and affidavit, to be served with writ shall state only facts necessary to constitute cause of action commencement and conclusions, form of money counts may be combined in single count form of on bills and notes, forms of amendment of, on demurrer to being sustained demurrer to, when to be heard Law. 72 1 22 53 70 70 71 72 71 71 59 73 13 14 21 21 24 27 27 27 27 27 31 33 Eq. 72 72 72 74 34 71 52 85 85 86 53 54 5 22 42 52 52 52 53 52 53 65 82,83 44 53 72 17 17 21 22 22 24 24 24 24 25 28 29 XVI INDEX TO LAW AND EQUITY RULES Decree— for money, plea to sci. fa. on to be accompanied by affidavit pro confesso, for default of defendant to appear when decree may be made after setting aside of on counterclaim, when final, injunction pending appeal from clerical mistakes in, how corrected form and substance of for an account of personal estate of decedent, to contain directions to auditor for specific act, to prescribe time for performance.... attachment to compel performance of, when writ of sequestration to compel performance for deficiency, in foreclosure, etc for possession, writ of assistance to issue, when form of.... process in behalf of or against persons not parties... Default — judgment by, when entered against one or more of several defendants in ejectment.. inquiry by jury on, when on failure of defendant to appear.. motion to vacate to be filed within ten days after notwithstanding expiration of term_- motion to vacate to be accompanied by plea and affidavit of defendant to appear, proceedings on. to answer amended bill of reply to answer setting up counterclaim Defects — in proceedings not affecting substantial rights, to be disregarded.. Defenses in equity {see Answer; Reply) in point of law, arising on face of bill, presented by motion to strike out demurrers and fleas abolished Demurrer — form of... ; -— matters of law to be argued to be stated in margin on failure to state matters of law, or making frivo- lous statement, judgment to be entered in criminal cases, leave to plead over to be granted joinder in, not necessary special, motion to strike out in lieu of on overruling or sustaining demurrer, party may plead over or amend in ten days Rule. Page. Law. Eq. 67 29,57 57 58 59 60 61 61 31 3! 31 31 31 31 31 30 31 31 40 43 51 52 52 52 52 52 52 52 52 53 30 35 40 32 32 50 64 64 64 67 69 71 72 72 72 72 72 72 72 73 73 27,43 43 43 44 44 45 45 64 66 67 55 64 64 28 28 28 28 28 28 28 INDEX TO LAW AND EQUITY RULES XV11 Demurrer — Continued. to be entered on motion calendar failure of party demurring to calendar to be heard on motion day, unless otherwise ordered clerk to enter upon assignment for motion day, when - ; two days' notice of hearing to be given opposite party notice of hearing, form of to be stricken from motion calendar when called on two motion days and not disposed of, unless otherwise ordered while pending, cause not to be placed on trial calen- dar.- argument of judgment on for plaintiff, inquiry by jury on motion to dismiss in lieu of in equity, abolished Deposits in registry of court — clerk to keep account of clerk to make report as to for costs, who to make Depositions — of non-resident witnesses, commission to take Designations — 'parties suing designated as plaintiffs counsel in equity causes designated as attorneys... Discovery (see Interrogatories) District court — terms of jury for, how secured - Divorce (see Marriage, Annulment of) — clerk to send copy of petition to absent defendant... plaintiff's attorney to comply with section 108 of Code. certificate of clerk as to mailing petition, form of... for adultery, petition to allege what answer of defendant may set up matter barring divorce issue on answer, how to be tried testimony, reference to examiner only in excep- tional cases .... reference not to be made to person named by party. Docket — causes to be entered on in order of filing and num- bered accordingly.. criminal, cases to be entered on and numbered in order of filing.- criminal, further proceedings to be noted on equity, cause entered on when bill filed separate, for habeas corpus, lunacy and adoption proceedings appearance of defendant to be entered on Rule. Page. Law. 33 33 33 33 33 33 33 36 49 55 59 4 4 14 38 1 53 14 71 71 Eq. 32 32 65 14 14 58 44 44 44 45 47 47 48 48 24 24 29 29 29 29 29 29 30 30 31 39 43 44 64 64 6 6 17 32,80 58 58 75 5 42 69 69 69 70 70 70 70 70 17 52 53 61 61 63 XV111 INDEX TO LAW AND EQUITY RULES Documents {see Books and Writings, Production of; Documents, Notice to Admit; Signature) Documents, notice to admit, etc. — either party may give demand when to be served. admission, when to be made ; refusal to admit, cost of proving _ form of... admission may be endorsed on or subscribed to notice admission, form of special admission may be made in separate paper form of signature of instrument on which recovery is sought, proof of not required unless denied by affidavit production of books and writings, rules as to. refusal to produce, etc., attachment, etc., for admission of genuineness, refusal of demand for, cost of proving before auditor, production of ..= Dower — allowance in lieu of, table of Rule. Page. Law. Eq. Ejectment — judgment by default in Equity calendar — direction to place cause on, by praecipe filed... application to calendar cause grantable of course by clerk. when causes to be placed on order to calendar, when to be given continuance of cause, when granted cause continued beyond term to be dropped from. . reinstatement of cause, when cause not reinstated to be dismissed without preju- dice ... Equity court — terms of to be deemed always open for filing bills, etc Equity docket — cause to be entered on when bill is filed separate docket for habeas corpus, lunacy and adoption proceedings.... Evidence (see Testimony) matters of, not to be stated in pleadings Examiner — clerk may furnish papers to taking of testimony before attendance of witnesses before, how enforced | 41 42 (43 42 42 42 42 42 42 42 41 43 58 54 58 58 58 58 58 58 58 58 65 71 28 28 54 54 56 56 56 56 1 24 24 59, 60 20,34 59,60 60 35 37 76 35, 76 76 76 35, 76 35 36 36 36 36 35 37, 76 76 76 79 82 43 63 63 73 74 74 74 74 74 5 55 61 61 76-78 60, 65 42 76-78 78 INDEX TO LAW AND EQUITY RULES XIX Exceptions — applications to file grantable of course by clerk to answer, for insufficiency, abolished motion to strike out in lieu to auditor's report, when to be filed costs on.... — to be entered on motion calen- dar hearing of, rule as to Exceptions, bills of (see Bills of Exceptions) Executions — stay of, appeal not to operate as, unless bond given in ejectment, form of writ of possession special writ, where something special is to be done on money judgment, fieri facias to be issued form of special fieri facias, form of - attachment on judgment, and notice, form of.. interrogatories and notice to answer, form of Rule. Page. Law. return of, to be made in sixty days scire facias, plea to be accompanied by affidavit. Executors and administrators — summary judgment on affidavit, when awarded. may sue in own name Exhibits — clerk to note date of filing on Extradition proceedings — separate minute book to be kept for Fees — to be paid by applicant for examination for ad- mission to bar — of clerk, for admission to the bar of marshal for serving summons on appeal from municipal court for municipal court in case certified on ground of concurrent jurisdiction, failure of petitioner to pay of auditor, payment of before report filed of auditor, for examining report of trustee, etc of stenographers, for taking testimony Fieri facias — on money judgment, form of special, form of Foreclosure — decree for deficiency on Forms — of affidavit of plaintiff in attachment of supporting affidavit in attachment 33 33 f47 \48 62 64 65 66 66 66 66 66 J64 166 67 73 5 5 18 21 66 66 Eq. 28 39 39 69 69 59 15 67 73 70 52 63 67 67 81 81 29 29 39, 76 45 47 48 48 48 48 49 50 47-49 50 53 58 6 6 7 8 19 21 SO 86 81 48 48 72 12 XX INDEX TO LAW AND EQUITY RULES Forms — Continued. of bond in attachment . of writ of attachment of notice to garnishee and interrogatories of writ of attachment for rent. of undertaking in replevin of writ of replevin of defendant's undertaking in replevin of writ of retorno habendc of caption to pleadings, etc of undertaking of non-resident plaintiff for costs of summons to appellee on appeal from municipal court of declarations, commencement and conclusions of of declarations, on money counts.... on bills and notes of pleas, commencement and conclusions of of replication.. of demurrer of plea after last continuance and affidavit of notice of hearing of matter on motion calendar... of notice of trial of subpoena ad. test of certificate of attendance of witnesses of commission to take depositions of notice to admit documents of admission of documents of bond on appeal to Court of Appeals of citation on appeal to Court of Appeals of certificate showing entry and date of appeal of writ of possession, in ejectment of fieri facias.... of special fieri facias of attachment on judgment, and notice of notice of mechanic's lien of undertaking to discharge lien and affidavit of sureties of order of court releasing lien of caption to bill of complaint of introductory part of bill of complaint of subpoena of undertaking for injunction of clerk's certificate of mailing petition for divorce of writ of assistance of decree for sale of order nisi of fiduciary's bond Frivolous demurrer — may be stricken out and judgment entered in civil case Frivolous exceptions — to auditor's report, costs of Rule. Page. Law. Eq. 9 9 9 11 12 12 12 12 13 15 17 27 27 27 28 29 31 32 33 34 37 37 38 42 42 62 62 63 64 66 66 66 69 69 69 60 31 23 23 25 41 44 52 72 72 74 69 12 13 14 14 15 15 16 16 17 18 19 24 24 25 26 27 28 28 30 30 31, 78 32 33 35 36 45 46 47 47 48 48 49 51 51 52 61 61 62 68 69 73 83 84 87 28 81 INDEX TO LAW AND EQUITY RULES XXI Rule. Page. Law. Eq. Garnishee — interrogatories to be answered by, form of issue to be joined on answer of within [ days. Garnishment (see Attachment and Garnishment) General term — when to be held clerk to report to as to funds in his hands applications for admission to bar to be addressed to Grievance committee (see Attorneys) — how to be appointed. duties of Guardian — answer by, verification not required may sue in his own name infants, etc., may sue by Guardian ad litem — person with interest adverse to infant or connected in business with counsel of adverse party not to be appointed... person nominated by adverse party not to be appointed only member of bar appointed, except for cause shown H. Habeas corpus proceedings — separate minute book to be kept for separate docket to be kept for Hearings — of petitions for naturalization, when of uncontested matters, when to be had extended reading of testimony not permitted brief of testimony rehearing of cause, when Heir at law — not necessary party to suit to execute trusts of will Holidays — when first day of term falls on, term to begin on next business day clerk's office may be closed on to be excluded in computing time, unless ex- pressly included Saturday half-holidays not to be counted in ex- cluded days Impertinence — in bill to be expunged Indictment — to be entered on criminal docket in order of filing. 1 i 5 6 6 75 75 75 1 4 8 8 10 15 16 14 14 11-14 49, 50 5 6 7 8 8, 9 57 58 59 54 54 54 24 57 57 57 51 19 71 6 61 5 74 74 74 71 59 5 6 1 1 11 56 52 XX11 INDEX TO LAW AND EQUITY RULES Rule. Law. Eq. Page. Infants {see Guardian ad Litem) — verification of answer by guardian not required bill to state disability of matters not denied in answer not deemed admitted by - -~~ .- may sue by guardian or prochein ami guardian ad litem for, who to be appointed Information — action commenced by filing of Injunctions — preliminary, not to issue without notice temporary restraining order, when granted with- out notice. temporary restraining order, granted without notice, terms of temporary restraining order, to be filed and entered of record.. temporary restraining order, hearing on temporary restraining order, dissolution of preliminary, not granted unless prayed in bill to set forth reasons for issuance, and describe in detail act enjoined not to issue, unless security given, unless otherwise provided by law. security, how conditioned pending appeal, may be granted when bond or security on Inquiry by jury — in what cases awarded how executed Instructions — to be endorsed with title and number of cause and state whether for plaintiff or defendant.. to be filed in cause time allowed for argument of Insufficient security — court may order further security to be given penalty for non-compliance with order Interest — where recoverable in action, form of verdict Interlocutory orders — may be made at chambers, in vacation or term time to be entered in minutes applications for, not grantable of course, to be entered on motion calendar equity court always open for Interrogatories — in attachment before judgment after judgment on commission to take testimony may be filed, for discovery, when to be answered by officer, when corporation party.... 75 14 59 59 44 44 49 7 7 50 2 2 33 9 66 38 10 20,23 34 16 41 41 41 41 41 41 41 42 42a 42a 43 43 57 60, 61 58 58 INDEX TO LAW AND EQUITY RULES "xxiii Rule. Page. Law. Eq. I nterrogatories — Continued . copies to be filed and sent by clerk to interrogated party. objections to, presentation of answer to, when to be made and form of how enforced inspection, etc., of documents, order for.. answer, etc., attachment to compel commission to take testimony on, when issued examination of creditor, etc., before auditor on Intervenors — to make deposit for costs. party claiming interest in litigation may intervene.- Issue — on answer of garnishee, when to be joined.— joinder in, form of... to be deemed denial of substance of pleading.__ of law, made by filing of demurrer note of, to be furnished clerk, when of fact agreed, may be stated in writing for trial — on answer (see Reply) Joinder — in issue, form and effect of in demurrer not necessary of causes of action in bill in equity Joint and several demands — suit in equity against one or more parties liable Judgment — - bond to suspend entry of, notice of application for approval of.... garnishee entitled to, on failure to join issue on answer .. for return of goods, in replevin, form of writ..... for less than lowest sum of court's jurisdiction, costs in discretion of court on affidavit, on appeal from municipal court in landlord and tenant proceeding on affidavit, for rent and intervening damages on appeal from municipal court, for want of affi- davit of defense formal prayer for not necessary by default, for failure to rejoin, etc on demurrer, for failure to state matters of law or making frivolous statement arrest of, motion in, to be filed within four days after verdict arrest of, motion in, to state grounds may be made with motion for new trial when to be submitted 14 10 30 30 31 35 40 30 31 10 12 16 19 19 21 26 29 31 46 46 46 46 58 58 58 58 58 58 59 66 15 40 21 22 75 75 75 75 76 76 77 80 18 59 14 28 28 28 30 35 67 28 28 60 60 10 14 16 18 19 20 21 24 27 28 38 38 38 38 XXIV INDEX TO LAW AND EQUITY RULES Judgment — -Continued. not to be entered until fifth day after verdict or after ruling on motion for new trial, etc may be arrested if new trial be refused bill of exceptions to be submitted within 38 days after, unless time extended may be for plaintiff, by default by confession inquiry by jury on for defendant, that plaintiff be non-suited for either party, on demurrer on issue "no such record" on verdict on case agreed for money, form of. by default, when entered may be taken against one of several defendants and plaintiffs proceed against others. in ejectment inquiry by jury on for failure of defendant to appear when case is called for trial for plaintiff, on demurrer to declaration, inquiry by jury on motion to vacate, to state grounds and be sup- ported by affidavit by default, motion to vacate to be filed within ten days and be accompanied by plea verified by affidavit bond on appeal to Court of Appeals, to operate as supersedeas, to be given within 20 days after... caption of to be admitted from transcript of record on appeal execution on, in suit to recover land, form of... special writ of fieri facias, form of special, form of attachment on, and notice, form of scire facias or action on, plea to be accompanied by affidavit in actions ex contractu for want of affidavit of defense in actions ex contractu, for amount admitted Judgment non obstante veredicto — motion for, to state grounds to be filed within four days after verdict may be heard with motion for new trial, etc when to be submitted.- if overruled, judgment on verdict Judicial notice — matters of, not to be stated in pleadings Rule. Law. Eq. 46 46 48 55 55 59 55 55 55 55 55 56 57 57 58 59 60 59 61 61 62 63 64 65 66 66 66 67 73 73 46 46 46 46 46 INDEX TO LAW AND EQUITY RULES XXV Rule. Page. Law. Eq. Jury— transfer of, from one special term to another from one circuit court to the other vacancies in transferred jury, how to be filled for district court, how secured _ Juvenile court — clerk may produce papers required as proof in L. Landlord and tenant — attachment for rent, form of. appeal from municipal court in proceedings be- tween, summary judgment on affidavit affidavit of defense on appeal by corporation defendant rent and intervening damages judgment for amount not denied writ of possession, form of Law rules— to govern practice in criminal courts to govern practice in equity as far as applicable Libel (in Admiralty) — action commenced by filing of Liens (See Mechanic's Liens) decree for deficiency in suit to enforce Life estate — allowance in lieu of, table of Lunacy proceedings — separate minute book to be kept for. separate docket to be kept for Lunatics — pleadings in behalf of, verification not required suits by answer by, failure to deny averments of bill not admission M. Mandamus — applications for, may be heard by circuit or criminal court or at chambers applications for, petition verified by affidavit of applicant to be filed and docketed motions to quash, etc., may be heard in same manner Marriage, annulment of — under age of consent, what petition to state for fraud, what petition to state for insanity, what petition to state petition for, answer to may set up adultery of peti- tioner, etc testimony, reference to examiner only in excep- tional cases..._ 53 53 53 53 54 11 19 19 19 19 19 64 70 14 69 22 22 22 52 71 24 10 16 34 46 46 46 47 48 41 41 41 42 42 14 19 20 20 20 20 47 52 55 17 51 72 82,83 6 61 57 59 65 22 22 22 70 70 70 70 70 XXVI INDEX TO LAW AND EQUITY RULES Rule. Page. Law. Eq. Marshal — to retain property taken on writ of replevin, for what time 1 12 18 18 21 21 16 fee of for serving summons to appellee.... 19 return of summons when fee not paid 19 fee for municipal court, petitioner for certiorari on ground of concurrent jurisdiction to pay 21 to return writ "not served because municipal court's fee not paid," when... 21 Master, trial by — reference to, may be made when... 49 49 49 49 49 71 order of, to be presented to master.... 71 procedure on 71 master, oath of 71 by whom administered 71 Mechanics' liens — notice of, form of 69 69 7 69 2 3 3 46 48 51 undertaking and affidavit of sureties to discharge lien, form of 51 undertaking to discharge, notice of application for approval of 10 order discharging lien, form of 52 Minutes — ■ interlocutory orders to be entered in 6 proceedings of court to be recorded in 6 separate books for lunacy, etc., proceedings . 6 motion for new trial, etc., to be noted on 38 fact of settling and filing bill of exceptions to be noted on 39 Mistakes — clerical, in decrees, how corrected . 51 71 Money — in registry of court, clerk to keep account of 4 56 59 66 67 27 6 judgment for, form of 43 action for unliquidated sum, when inquiry by jury awarded 44 execution, form of, when money only is recovered... decree for, plea to sci. fa. on to be accompanied by affidavit 48-50 50 Money counts — may be combined 24 Mortgages, etc., foreclosure of — decree for deficiency on 52 72 Motion calendar — motions, etc., to be entered on by moving party what entry to show 33 33 33 33 33 33 33 29 29 failure of moving party to calendar 29 motion day, matters to be heard on 29 clerk to enter on assignment for motion day mat- ters entered on calendar one dav prior thereto 29 notice of hearing to be served two days prior thereto notice of hearing, form of 29 30 INDEX TO LAW AND EQUITY RULES XXV11 Rule. Page. Law. Eq. Motion calendar — Continued. matters on, called on two motion days, and not disposed of, to be stricken off unless otherwise ordered 33 33 33 33 30 matters not to be heard unless calendared, except by special order _ 30 Motion day — special day each week to be designated as 29 matters on motion calendar to be heard on 29 objection of want of parties, made in answer, may be heard on 36 66 Motions — continuation of term for final disposition of 1 12 18 22 22 22 25 , 29 31 33 36 38 43 45 45 46 49 61 61 61 5 by defendant, in replevin, for return of goods 16 to dismiss appeal from municipal court for failure to pay fee for serving summons 19 for special remedial writs, may be heard by circuit or criminal courts or at chambers 22 petition, stating grounds, first to be filed. 22 to quash, etc., any of said writs may be heard in same manner.. 22 when not grantable of course, copies of to be served within two days.. 23 to dismiss or for judgment by default on failure to plead 26 to strike out in lieu of special demurrer 28 to be entered on motion calendar (see Motion Calendar) 29 to restore to calendar cause stricken therefrom 31 for commissions to take depositions, what to state 32 to require production of books and writings 37 for continuance to state grounds and be supported by affidavit ... . 38 for continuance because of absence of witness 38 for new trial, etc., rule as to 38 time allowed for argument of 40 to vacate judgment to state grounds and be sup- ported by affidavit 45 to vacate judgment by default, to be accompanied by plea verified by affidavit to vacate judgment by default, may be filed after expiration of term 45 45 equity court always open for 1 13 13 13 13 28 31 32 32 55 defined 58 several objects may be included in, when 58 must be in writing, signed, and state grounds 58 grounds not stated deemed waived unless ordered otherwise 58 calendaring of, clerk may grant application for.... 63 to set aside decree pro confesso . 64 to dismiss, points of law arising on face of bill in equity to be made by 64 when to be heard 65 XXV 111 INDEX TO LAW AND EQUITY RULES Rule. Page. Law. Eq. Motions — Continued. to dismiss, on denial of, answer to be filed 32 39 41 52 55 65 to strike out, sufficiency of answer tested by, when 67 to dissolve temporary restraining order 68 to enlarge time for performing decree 72 to take testimony otherwise than in open court 74 Municipal court — on appeal from, papers and transcript of docket to be filed 14 14 14 17 17 18 19 20 21 21 21 21 21 54 1 17 on appeal from, appellant to make deposit for costs 17 on certiorari from, petitioner to make deposit for costs 18 cases appealed or brought by certiorari from to be placed on appeal calendar 19 summons to appellee on appeal from, form of 19 failure of appellant to pay marshal's fee for serving summons 19 . appeal from, in landlord and tenant proceeding, summary judgment on affidavit.... 19 cause certified from, on plea of title, how tried 20 certiorari from, on ground of concurrent jurisdic- tion, petition for to be supported by affidavit 21 not to be made party to certiorari 21 fee of, for certifying case to Supreme Court 21 after certiorari, plaintiff to file declaration 21 summary judgment on affidavit 21 clerk to produce papers required as proof in 42 N. Naturalization — petitions for, when to be heard 5 Ne exeat— not granted unless praved for in bill 42 42 6S notice of motion to dissolve 69 New trial — motion for, continuation of term for disposition of 1 46 46 46 46 46 46 46 46 48 5 to state grounds 38 to be filed within four days after verdict 38 to be noted on minutes on dav filed 38 may be made at same time with mo- tion in arrest of judgment, etc 38 to be submitted within 15 days after verdict, unless time is extended if not so submitted, deemed overrvded 38 38 if new trial be refused, judgment may be arrested.... 38 if refused, judgment to be entered on verdict to be granted where court is unable to settle bill of exceptions 38 39 Next friend — infants, etc., may sue by 16 38 59 Nominal party (see Parties) 66 INDEX TO L\W AND EQUITY RULES XXIX Non-appearance — of defendant, judgment by default for of both parties, at time of trial, suit dismissed at plaintiff's cost of plaintiff, defendant may have plaintiff called and suit dismissed or have trial of issue of defendant, plaintiff may take judgment by default or be required to prove case of defendant, in suit in equity Non obstante veredicto (see Judgment Non Ob- stante Veredicto) _.. . Non-resident plaintiff — undertaking for security for costs, form of Non-suit — judgment of, for defendant Notary public — verification of pleading before Note of issue — to be furnished clerk 20 days before term begins... what to contain Notice — to attorney, of charges against him of application for approval of bond, etc not required in case of corporation surety of attachment before judgment to guarantee to answer interrogatories of answer of garnishee by defendant in replevin of issue of writ of certiorari to plead, not necessary of motion to dismiss, etc., for failure to plead of hearing of motion, etc form of of trial, when to be given. to admit documents, form of for production of books and writings of submission of bill of exceptions. of attachment on judgment of mechanic's lien of trial of criminal case.. of hearing of motion to dismiss bill of hearing of objection for want of parties of hearing of motion to strike out answer of application for preliminary injunction, etc of motion to dissolve restraining order, etc of order to calendar equity cause of objections to interrogatories of hearing before auditor of filing of report of auditor Notice by publication (see Publication)— to be publish i 1 in Washington Law Reporter Notice to admit documents (see Documents, Notice to Admit) Rule. Law. 57,58 60 60 60 46 15 55 35 35 6 7 7 9 9 10 12 21 26 29 33 33 34 42 43 48 66 69 72 32 Eq. 30 11 36 39 42 42 54 58 64 67 24 42 Page. 43 44 44 44 64 38 18 43 57 30 30 8 10 10 13 .14 14 16 21 24 27 29 30 30 35 37 39 50 51 53 65 66 67 68 69 74 75 79 81 23 35, 36 XXX INDEX TO LAW AND EQUITY RULES Notice to plead — not required Notice of hearing — of cases on motion calendar Notice of trial — to be given ten days before term begins either party may give form of of criminal cause, to be given defendant where indictment has been pending 18 months or more Nullity of marriage (see Marriage, Annulment of) — Nul TiEL record — issue of, judgment on O. Oath — of attorneys, on admission to bar, form of affirmation in lieu of Officers — of court not to be accepted as surety on bonds, etc. Orders — interlocutory, may be made at chambers, etc in computing time for compliance with, day of entry or service to be excluded. for service by publication for production of books and writings for consolidation of causes, court may make Rule. Page. P. Papers — date of filing to be noted on by clerk not to be taken from custody of clerk except by auditor, etc., or upon order of court may be delivered by clerk to auditor in cause re- ferred to him examiners may be furnished with required as proof in municipal, police, and juve- nile courts, clerk may produce receipt for to be required by clerk..... delivered by clerk to auditor, etc., not to be taken from custody of._ copies of, entering into transcript of record to show date of filing Parties — names of, to be in caption to first pleading those suing to be designated as plaintiffs, and those sued, as defendants actions to be in name of real party in interest executor, etc., may sue in own name plaintiffs and defendants, who may be joined as new parties, may be brought in when party having joint interest refusing to join in suit may be made defendant intervention, by party claiming interest Law. 26 33 34 34 34 72 55 5 39 8 24 43 44 4 54 54 54 54 54 54 63 13 Eq. 14 15 15 15 15 15 15 24 29 30 30 30 53 43 8 34 1 11 23 37 37 6 42 42 42 42 42 42 46 17 58 58 58 59 59 59 59 INDEX TO LAW AND EQUITY RULES XXM Parties— Continued. infants, etc., suits by representatives of class, suit by one or more absent, etc., when dispensed with. decree without prejudice to rights of.... bill to state reason why not made part saving as to rights of....! suit to execute trusts of will, heir at law as party to disability of, bill to state fact of joinder of causes of action in bill joint and several demands, suit against one or more of parties liable. want of, proceedings when suggested in answer failure of plaintiff, to set down objections for want of, to be entered on motion calendar — objections for want of, hearing on, rule as to — omitted, saving for in decree nominal, when not required to answer bound by decree when entitled to costs, when persons not, process in behalf of and against Parties, non-appearance of (see Non-appearance)... Petition — continuation of term for disposition of for naturalization, when to be heard action commenced by filing of for certiorari to municipal court to be accompanied by affidavit for special remedial writs, to be verified copy of, to be served, when applications for filing of grantable of course by clerk for divorce, copy to be mailed to absent defendant for nullity of marriage for rehearing, when to be filed Plea — must set forth true defense may deny or confess and avoid commencement and conclusion, form of order of pleading in abatement, to be verified by affidavit joinder in issue on after last continuance, form of to be verified by affidavit .... time to reply to and rejoin hearings as to sufficiency of, to be entered on motion calendar to accompany motion to vacate judgment by de- fault to scire facias, or action on, on judgment, etc., to be verified by affidavit. in equity abolished defenses presentable by to be made by answer les. Rule. Law. 33 33 60 1 1 14 21 22 25 28 28 28 28 28 30 32 32 32 33 61 67 16 17 18 18 20 37 19 20,23 21 22 36 36 Eq. 37 38 38 38 53 30 28 44 46 50 Page. 59 59 59 59 60 66 59 61 60 60, 32 32 60 66 66 29 29 66 66 67 67 73 44, 64 5 5 17 21 22 23 63 69 70 71 26 26 26 26 26 28 28 29 29 29 45 50 64 64 XXX11 INDEX TO LAW AND EQUITY RULES Pleadings — caption to, form of first pleading to contain names of all parties— copies of, when to be served brevity required . to be signed by party or his attorney to be written or printed in English and endorsed. .. no formal conclusion or prayer for judgment necessary... no notice or rule to plead required additional time for, when granted. declaration, shall state what commencement and conclusion.- money counts combined. on bills and notes plea, shall state what order of pleading in abatement, affidavit to truth replication, rejoinder, etc., time for filing... dismissal of cause, etc., on failure to rejoin, etc replication, additional, when may be filed forms of substance of denied by joinder in issue pleading over, on overruling, etc., of demurrer defects in, motion to strike out. matter of defense arising after last pleading equity court always open for filing of in equity, allegations liberally construed further and particular statement in may be required. scandal, etc., in, stricken out technical forms abrogated supplemental, when permitted to be filed presumptions of law, etc., not to be stated in.... of fact, in equity, to be verified by party, his agent or attorney verification of (see Verification of Pleadings) in equity, to be signed individually by attorney of record signature by attorney of record, effect of.. applications for filing of grantable of course by clerk... See Answer; bill of complaint; reply. Plea of title — cause certified from municipal court on, to be entered on appeal calendar further proceedings in, how governed failure of plaintiff to make deposit for costs no summons or other process necessary to require appearance of parties. Rule. Law. { 13 13 25 26 26 26 26 26 26 41 27 27 27 27 28 28 28 29 29 29 29 30 31 31 32 20 20 20 20 Page. Eq. 10 1 4 5 6 7 8 9 10 10, 11 12 12 28 17 17 23 23 23, 56 24 24 24 24, 35 74 24 24 25 26 26 26 26 27 27 27 28 28 28 28 55 55 55 56 56 56 56 56 56, 57 58 58 63 20 20 21 21 INDEX TO LAW AND EQUITY RULES XXXU1 Police court — clerk may produce papers required as proof in Possession — writ of, form of decree in equity for, how enforced.— Prayers for instructions (see Causes of Action, Trial of). Presumptions of law — not to be stated in pleading..... Process, service and return of — in case certified on plea of title from municipal court, no summons or other process necessary... copy of declaration, etc., to accompany writ return to show service of summons, when returnable when defendant can not be found service by publication to be published in Washing- ton Law Reporter. .._ proof of publication Process (in Equity) — ■ equity court always open for issue of application for grantable of course by clerk subpoena, writ of, proper process to require de- fendant to appear, etc form of. not to issue until bill filed to issue of course after bill filed may be sued out for each defendant sep- arately or all defendants jointly service of, how made return of, when served, to be made forthwith when defendant not found by whom served... --- service of, by person designated by court, affidavit of .. alias subpoena, when to issue when to be returned application for, grantable of course by clerk in behalf of or against persons not parties Prochein ami — infants, etc., may sue by Pro confesso — on default of defendant to appear proceedings in case of if plaintiff requires discovery or answer, process of attachment may issue after decree after, when to be made setting aside of on setting aside, defendant to pay costs for failure of defendant to answer bill for failure to reply to answer setting up counter claim Rule. Page. Law. 54 64 44 20 24 24 24 24 24 24 24 Eq. 52 1 28 25 25 26 26 26 26 26 26 26 26 27 27 28 53 16 30 30 30 31 31 31 32 40 42 47 72 37 56 21 22 22 23 23 23 23 23 55 63 62 62 62 62 62 62 62 62 62 62 63 63 63 73 59 64 64 64 64 64 64 64 67 XXXIV INDEX TO LAW AND EQUITY RULES Production of books and writings (see Books and Writings, Production of) Publication — service by. order to be published in Washington Law Reporter proof of, how made._ Q. QUO WARRANTO — petition for, verified by affidavit of applicant, to be filed may be heard by circuit or criminal court or at chambers.... motions to quash, etc., may be heard in same manner R. Receivers — to make report of trust funds, when.... Recovery less than court's jurisdiction costs on. Rehearing — petition for, to state grounds and be verified by oath to be signed by counsel when to be filed. correction of clerical mistakes in decree without. Reference to auditor (see Auditor). Rejoinder — when to be filed and served failure to file within time limited. Relief — prayer for Rent, Attachment for (see Attachment for Rent) Replevin — undertaking to discharge, notice of application for approval of undertaking of plaintiff in. form of writ, form of marshal to retain property, for what period undertaking of defendant on return of goods, form of writ of retorno habendo, form of Replication (at Law) — may deny or confess and avoid plea when to be filed and served failure to file within time limited additional replications, leave to file forms of joinder in issue on to plea after last continuance in equity (see Reply) Reply — to specifically admit or deny allegations of answer not required, unless set-off or counter-claim pleaded in answer Rule. Law. 43 24 24 24 22 22 22 16 29 29 11 7 12 12 12 12 12 28 29 29 29 29 30 32 Eq. 58 73,74 50 50 50 51 63-69 20 9,40 9 40 Page. 37, 76 23 23 23 22 22 22 85,86 18 71 71 71 71 79-81 26 26 60 14 10 15 15 16 16 16 26 26 26 27 27 28 28 56, 67 56 67 INDEX TO LAW AND EQUITY RULES XXXV Reply — Continued. issue made by filing of answer to be filed when, where answer includes set-off or counter-claim by defendants whose rights are affected by set-off or counter- claim.. default of, pro confesso on counter-claim Report — of auditor of trustee, etc., for sale of real estate to show compliance with rule of fiduciary, as to trust funds Retorno habendo — writ, form of Return — by marshal, of summons for appellee when fee not paid by marshal, of certiorari, when fee for municipal court not paid of summons for defendant, to show service of copies of declaration, etc.... of summons for defendant, when to be made when defendant not found of commission to take testimony of writ of possession, when to be made of fi. fa., when to be made of subpoena, when to be made of alias subpoena, when to be made of non est inventus, on decree for specific act of auditor's report, when to be made by trustee, etc., of account of court sale Review, bile of (see Bill of Review) Revivor, bill of {see Bill of Revivor) Rule day — first Tuesday of month designated as Saturdays — to be counted in computing time for compliance with order, etc Scandal and impertinence — in pleading, motion, etc., to strike out Scire facias — plea to, must be accompanied by affidavit Security — when insufficient, court may require additional for costs, undertaking of non-resident plaintiff Sequestration — writ of, to compel performance of decree for specific act._ Rule. Law. 12 17 21 24 24 24 38 64 66 Page. Eq. 40 40 40 40 68 72 72 73,74 67 7 15 26 27 52 68 72 62 61 67 67 67 67 81 84 82 8 5, 86 16 19 21 22 23 23 33 48 48 62 63 72 81 83 79 78 55 52 11 56 50 10 18 72 XXXVI INDEX TO LAW AND EQUITY RULES Set-off — instrument pleaded by way of, proof of signature not required unless denied by affidavit verdict for defendant on plea of, form of answer in equity may plead, without cross-bill motion to strike out answer reply to, when to be made by defendant affected by. default of, pro confesso on Signature — to pleadings, by party or attorney... proof of, not required, unless denied by affidavit, when. instrument or copy thereof to be filed when original not filed, opposite party, on mo- tion, may inspect it affidavit by corporation, who to make Signature of counsel — must be annexed to bill or other pleading Special demurrer — m motion to strike out, etc., in lieu of Special remedial writs — petition for, to state grounds and be verified by affidavit in quo warranto and mandamus, applicant to make affidavit application may be heard by circuit or criminal court or at chambers motion to quash, etc., heard in same manner Special verdict (see Verdict) Special writ — of execution when issued Stay of execution — when appeal to Court of Appeals to operate as, bond to be given STENO GRAPHER — may be appointed when necessary fee fixed by court and taxed as costs expense of deposition or cost of transcript to be ad- vanced by party calling witness or ordering tran- script... Stipulations — to be in writing and signed by parties or counsel... Subpoena — proper process in first instance in equity causes form of when to issue may be sued out for each defendant separately or all defendants jointly service of, how made by whom made proof of, by person specially designated Rule. Law. Eq. 41 50 26 41 41 41 41 31 22 22 22 22 51 65 62 23 34 39 40 40 40 10,12 12 70 70 70 25 25 26 26 26 26 26 Page. 35 40 65 67 67 67 67 23 56 .58 35 35 35 35 58 28 22 22 22 22 41 48 45 82 82 82 22 62 62 62 62 62 62 62 INDEX TO LAW AND EQUITY RULES XXXV11 Subpoena — Continued . return of, when to be made alias, when to issue when to be returned to issue, on bill of revivor Subpoena ad test — at law, form of in equity, form of witnesses before auditor, etc., summoned by Subpoena duces tecum — not to be issued without order of court Suit (see Action or Suit) — Summons — to appellee, on appeal from municipal court, form of to appellee, return of, on failure to pay marshal's fee not required on cause certified from municipal court on plea of title copy of declaration, etc., to accompany when returnable when defendant not found after return of, issues of fact agreed may be stated Sundays — not counted in computing time Supersedeas — bond to operate as, notice of application for ap- proval of application for, when to be heard petition to state grounds and be verified by affidavit when appeal to Court of Appeals to operate as, bond to be given Supplemental pleadings — when permitted to be filed Surety — members of bar and officers' of court not to be ac cepted as name and address of, in notice for application for approval corporation surety, certificate of clerk as to author- ity and agent not to be named in alternative ; Suspension and removal of attorneys (see Attor neys) Tables — of allowance in lieu of dower, etc. of commissions on court sales Taxes and assessments — payment of, in court sale Terms of court — when to begin. continuation of Rule. Page. Law. 37 37 17 18 20 24 24 24 40 8 7 22 22 62 7 7 7 7 Eq. 26 27 27 61 60 60 71 72 72 62 63 63 78 31 78 78 32 19 19 21 22 23 23 35 11 10 22 22 45 56 11 10 10 10 82 85 83 5 5 XXXV111 INDEX TO LAW AND EQUITY RULES Testimony — spa. ad. test., form of. subpoena duces tecum not to be issued without order of court witnesses, proof of attendance certificate of attendance, form of commission to take depositions motion for, to give names and addresses of witnesses interrogatories, when to be filed copy of to be served on opposite party carriage of commission to be entrusted to party applying for publication of, when to be made commission, form of commissioner's return, form of Testimony (in equity) — in suit for divorce, how taken to be taken orally in court, unless otherwise ordered motion to take otherwise than in open court, when to be made extended reading of, not permitted brief of, counsel to make, when evidence, exceptions to admission or exclusion of.... bill of exceptions as to rulings on sufficiency of, exception as to may be taken before examiner, when before examiner, how taken refusal of witness to sign deposition special matters may be certified... . objections to questions to be noted costs of incompetent refusal of witness to attend, etc original deposition to be filed expense of taking, how paid commission to take, on interrogatories, when to be issued before commissioner, auditor, or examiner refusal of witness to appear, etc., contempt of court attachment to compel witness to appear, etc spa. ad. test., form of stenographer to take, appointment and fees of Time computation of — Sundays and legal holidays excluded, unless ex- pressly included Saturday half-holiday not counted in excluded days day of service of rule, etc., to be excluded in com- puting time for compliance, and day on which compliance is required to be included Transcript of record (see Appeal to Court of Appeals) Transfer of causes — from law to equity, and vice versa Rule. Law. 37 37 37 37 38 38 38 38 38 38 38 38 8 8 8 62 76 Eq. 60 48 59 55 57 57 59 59 59 59 59 59 59 59 59 59 59 59 59 60 60 60 60 70 Page. 31, INDEX TO L\W AND EQUITY RULES XXXIX Trial calendar — causes to be entered on, when causes entered on by consent of parties causes not to be entered on while demurrer to any pleading pending— causes entered on to remain until disposed of cause called for trial at two terms and not tried or regularly continued to be stricken from record of causes stricken from to be kept causes stricken from may be restored on motion in writing within one year if motion to restore not made within one year, cause to be dismissed cause restored, if not tried when called for trial, to be dismissed at cost of plaintiff Trial, notice of {see Notice of Trial).. Trial by master {see Master, Trial by) Trial of causes {see Causes of Action, Trial of) Trust — of will, suit to execute, heir not necessary party .... Trustee — may sue in own name, when to make report of trust funds, when Trustees' sale {see Court Sales) Trust funds — trustee and fiduciaries, report of, when to be filed... report of, what to set forth time of filing to be noted on docket to be transmitted to auditor for exam- ination.. securities reported to be exhibited before auditor correctness of statements in to be ascer- tained by auditor fees of auditor for examination of. delinquent trustees, etc., clerk to report names of.... forfeiture of office of undistributed funds, report as to :.. disposition of fiduciary's bond, form of U. Uncontested matters — when to be heard Undertakings {see Bonds and Undertakings)— notice of application for approval of, when to be given when insufficient, court may require additional security members of bar, etc., not to be accepted as surety on of plaintiff in replevin, form of of defendant in replevin to release goods, form of.... of non-resident plaintiff, for costs Rule. Law. 36 36 36 36 36 36 36 36 36 34,72 44 7 12 12 15 Page. Eq. 49 19 15 73,74 72 73 73 73 73 73 73 73 73 73 74 74 57 30, 31 31 31 31 31 31 31 31 31 31 53 71 37 59 58 85, 86 83 86 86 87 87 87 87 87 87 87 . 88 88 74 10 10 11 15 16 18 xl INDEX TO LAW AND EQUITY RULES Undertakings (see Bonds and Undertakings) — Con. of defendant on plea of title before municipal court to discharge mechanic's lien, form of power of clerk to approve United States commissioner — transcript of proceedings from, to be entered on criminal docket Unliquidated sums of money — in action for, when inquiry by jury awarded Unsound mind, persons op {see Lunatics) V. Vacating judgment — motion to state grounds and be verified by affidavit by default, motion to be accompanied by plea setting up defense and be verified by affidavit... may be filed, when.. Verdict — for plaintiff — general, form of in action where interest is recoverable for defendant — general, form of. on plea of set-off, form of for both parties, form of special, parties may elect to take._ form of special, to be entered on minutes. subject to opinion of court, form of on inquiry by jury Verification of pleadings — to be verified by affidavit of party, his agent or attorney corporation party, by whom made when United States is party, by whom made when not required where several parties plead jointly, affidavit by one only applicable to amount claimed, when effect of. may be by agent or attorney, when when sufficient. before whom made to be signed by party making it certificate of officer, evidence of what Vouchers — clerk to file with report of moneys in registry of court W. Washington Law Reporter — notices, etc., to be published in. Rule. Law. 20 69 71 59 61 61 61 50 50 50 50 50 51 51 51 52 59 Eq. 28 10 10 10 10 10 10 10 10 10 11 11 li Page. 21 51 63 52 44 45 45 45 40 40 40 40 40 41 41 41 41 44 56 56 56 57 57 57 57 57 57 57 57 58 24 23 INDEX TO LAW AND EQUITY RULES Xli Witnesses — proof of attendance certificate of attendance, form of testimony of, to be heard orally by court unless otherwise ordered testimony of, taking of before examiner before commissioner, auditor or examiner, attend- ance of, how enforced refusal of to appear or give evidence a contempt of court _ attachment of for contempt examination of viva voce in open court Writings {see Books and Writings, Production of; Doc- uments, Notice to Admit, etc. ; Signature) Writs {see Forms) — - special remedial, rule as to Rule. Law. Ed. 37 37 ( 41 42 43 22 59 59 60 60 60 60 58 Page. 32 32 76 76-78 77 78 78 78 35 37 76 22 ADMIRALTY RULES 89 ADMIRALTY RULES. ISSUING PROCESS. 1 No mesne process shall issue in any civil cause of admiralty and maritime jurisdiction until a libel or libel of information shall have been filed in the clerk's office. SERVICE. 2 All process shall be served by the marshal for the District of Columbia, or his deputy, if required, except when the marshal is a party or interested or it is unfit on other grounds that he should serve and execute the process to be issued when such process shall issue to the coroner of said District and the return shall be prima facie evidence of the statements therein. RETURN. 3 Monitions, citations, and warrants of arrest shall in all cases be made returnable in fourteen days, except when the justice, by special order, shall designate an earlier day. FORM OF, IN PERSONAM. 4 In suits in personam the mesne process may be by a monition in the nature of a summons of the defendant to appear and answer the suit, or by such summons, with a clause therein, if he can not be found, to attach his goods and chattels to the amount sued 90 ADMIRALTY RULES for, or, if such property can not be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein, as the libelant shall in his libel or information pray. (Rules in Admiralty of Supreme Court of U. S., No. 2.) ARREST OF PROPERTY— FOR WHAT SUM. 5 In suits in personam no warrant of arrest of the property of the defendant shall issue for a sum exceeding five hundred dollars, unless by a special order of the court, upon affidavit or other proper proof showing the propriety thereof. GARNISHEE. 6 In cases of foreign attachment the garnishee shall be required to answer, under oath or solemn affirmation, as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded by the libelant, and if he shall refuse or neglect so to do the court may award compulsory process in personam against him. If he admits any debts, credits, or effects the same shall be held in his hands liable to answer the exigency of the suit. DISSOLUTION OF ATTACHMENT. 7 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 dissolved by order of the court upon the defendant whose property is so attached giving a bond or stipula- tion, with sufficient sureties, to abide by all orders, interlocutory or final, of the court, and pay the amount awarded by the final decree rendered in said cause; and summary process of execution may and shall be issued against the principal and sureties on said bond or stipulation to enforce the final decree so rendered, or, upon appeal, by the appellate court. ADMIRALTY RULES 91 PROCESS IN REM. 8 In all cases of seizure, and other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by warrant of arrest of the ship, goods, or other things to be arrested; and the marshal shall thereupon arrest and take the ship, goods, or other things into his possession for safe custody, and shall cause notice thereof to be given by publishing in some newspaper in the city of Washington a short statement of the purport of the libel, with the order of the court thereon, setting forth the time appointed for return of such process and the hear- ing of the cause, and by posting up the same, for the space of fourteen days, at the door of the court-house; Provided, That the justice may, by special order, direct a shorter notice than fourteen days. 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, furniture, boats, or other appurtenances are in the possession or custody of any third person, the court may, after a due monition to such third person, and a hearing of the cause, if any, why the same should not be delivered over, award and decree that the same be delivered into the custody of the marshal, or other proper officer, if, upon the hearing, the same is required by law and justice. PROPERTY ATTACHED TO OR BOUND BY SUIT. 10 Where freight or other proceeds of property are attached to or bound by the suit in any proceedings in rem, and are in the hands or possession of any person, the court may, upon due application by petition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the 92 ADMIRALTY RULES 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. DELIVERY. 11 In all cases where any ship or goods or other property are arrested the court may, upon the application of the claimant, order a delivery thereof to him upon a due appraisement, to be had under its direction, either upon the claimant's depositing in court so much money as the court shall order or upon his giving a stipulation, with sureties, in such sum as the court shall direct, to abide by and pay the money awarded by the final decree rendered by the court or by the appellate court; and if the claimant shall decline such stipulation, then the court may, in its discretion, upon the application of either party and due cause shown, order a sale of such ship, and the proceeds thereof to be brought into court or otherwise disposed of, as it may deem most for the benefit of all concerned. DELIVERY ON PAYMENT INTO COURT. 12 In suits in rem for seamen's, wages, and in all other actions in rem for sums certain, the claimant or respondent may pay into court the amount sworn to be due in the libel, with interest com- puted thereon from the time it was due to the return day of the attachment, and the costs of the officers of the court already accrued, together with the sum of fifty dollars to cover further costs, etc., or, at his option, may give stipulation to pay such sworn amount with interest, costs, and damages (first paying into court the costs of the officers of the court already accrued), and in either case may thereupon have an order entered instantly for the delivery of the property arrested without having the same appraised. ADMIRALTY RULES 93 PERISHABLE GOODS. 13 Where any goods or other things arrested are perishable, or are liable to deterioration, decay, or injury, by being detained in custody pending the suit, the court may, upon the application of either party, in its discretion, order the same to be sold, and the proceeds, or so much thereof as shall be a full security to satisfy the decree, to be brought into court to abide the event of the suit, or may, upon the application of the claimant, order a delivery thereof to him upon compliance with the proceedings and conditions prescribed as to the delivery of ships in the pre- ceding rule. WAGES. 14 In all suits for mariner's wages the libelant may proceed against the ship, freight, and master, or against the ship and freight, or against the owner or the master alone in personam. PILOTAGE. 15 In all suits for pilotage the libelant may proceed against the ship and master, or against the ship, or against the owner or the master alone in personam. SUPPLIES, REPAIRS, ETC. 16 In all suits by material men for supplies or repairs or other necessaries 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 pro- ceedings 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. HYPOTHECATION. 17 In all suits founded upon a mere maritime hypothecation, either expressed or implied, of the master, for moneys taken 94 ADMIRALTY RULES up in a foreign port, for 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. BOTTOMRY. 18 All suits on bottomry bonds, properly so called, shall be in rem only against the property hypothecated, or the proceeds of the property, in whosesoever hands the same may be found unless the master has, without authority, given the bottomry bond, or by his fraud or misconduct has avoided the same, or has sub- tracted the property, or unless the owner has, by his own mis- conduct or wrong, lost or subtracted the property, in which latter cases the suit may be in personam against the wrongdoer. SALVAGE. 19 Suits for salvage may be in rem against the property saved, or the proceeds thereof, or in personam against the party at whose request and for whose benefit the salvage service has been performed. COLLISION. 20 In all suits for damage by collision the libelant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam. ASSAULT OR BEATING. 21 All suits for assault or beating, in any place within the admiralty and maritime jurisdiction, shall be in personam only. PETITORY AND POSSESSORY SUITS. 22 In petitory and possessory suits between part owners or adverse proprietors, or by the owners of a ship, or the majority thereof, ADMIRALTY RULES 95 against the master of a ship, for the ascertainment of the title and delivery of the possession, or for the possession only, or by one or more part owners against the others to obtain security for the return of the ship from any voyage undertaken without their consent, or by one or more of the part owners against the others to obtain possession of the ship for any voyage upon giving security for the safe return thereof, the process shall be by an arrest of the ship and by a monition to the adverse party or parties to appear and make answer to the suit. LIBELS IN SEIZURES. 23 All informations and libels of information upon seizures for any breach of the revenue or navigation or other laws of the United States shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the ad- . miralty and maritime 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 forfeiture, and to give notice to all persons concerned in interest to appear and show cause, at the return day of the process, why the forfei- ture should not be decreed. IN CIVIL CASES. 24 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 otherwise, as the case may be; and, if the suit be in rem, that the property is within the District, and, if in personam, the names and occupations and places of residence of the parties. It shall also propound in distinct articles the various allegations of fact upon which the libelant relies in support of his suit, so that the defendant may be enabled to answer distinctly 96 ADMIRALTY RULES 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 libelant may, at the conclusion thereof, require the de- fendant to answer on oath all interrogatories propounded by him touching, all and singular, the allegations in the libel. AMENDMENTS. 25 Amendments in matters of form in informations and libels may be made at any time, on motion to the court, as of course. New counts may be filed, and amendments in matters of substance may be made upon motion, at any time before the final decree, upon such terms as the court shall impose. And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libelant. CLAIM. 26 In suits in rem the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on whose behalf the claim is made is the true and bona fide owner, and that no other person is the owner thereof, and where the claim is put in by an agent or consignee he shall also make oath that he is duly authorized thereto by the owner, or, if the property be at the time of the arrest in the possession of the master of the ship, that he is the lawful bailee thereof for the owner. NEGLECT OF LIBELANT TO PROCEED WITH DISPATCH. 27 If the promoyent in a libel or information neglects to proceed in the cause with the dispatch which the course of the court admits the respondent or claimant may have the libel or information dismissed on motion, unless the delay is by order of the justice, or by the act of the respondent or claimant. Four days' notice shall be given of the application to dismiss the action. ADMIRALTY RULES 97 ANSWERS IN CIVIL CASES. 28 In suits either in rem or in personam the answer of the de- fendant to the allegations in the libel shall be on oath or solemn affirmation, and shall be full and explicit and distinct to each separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like manner each interrogatory propounded 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. EXCEPTIONS. 29 The libelant may except to the sufficiency or fullness or dis- tinctness or relevancy of the answer to the articles and inter- rogatories in the libel; and if the court shall adjudge the excep- tions, or any of them, to be good and valid, it shall order the de- fendant forthwith, or within such time as it may direct, to answer the same, and may further order the defendant to pay such costs as it shall adjudge reasonable. DEFAULT. 30 If the defendant shall omit or refuse to make due answer to the libel upon the return day of the process, or other day assigned by the court, the court shall pronounce him to be in contumacy and default, and thereupon adjudge the libel to be taken pro confesso against him, and shall proceed to hear the cause ex parte and adjudge therein as to law and justice shall pertain; but the court may, in its discretion, set aside the default, and, upon the application of the defendant, admit him to make answer to the libel at any time before the final hearing and decree upon his payment of all the costs of the suit up to the time of granting leave therefor. 98 ADMIRALTY RULES REHEARING AFTER DEFAULT. 31 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 submitting to such further orders and terms in the premises as the court may direct. ATTACHMENT TO COMPEL ANSWER. 32 When the defendant answers, but does not answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception thereto is taken by the libelant, and the exception is allowed, the court may, by attachment, compel him to make further answer thereto, or may direct the matter of the exception to be taken pro confesso against him to the full purport and effect of the article to which it purports to answer and as if no answer had been put in thereto. OBJECTING TO MAKE ANSWER. 33 The defendant may object, by his answer, to answer any allegation or interrogatory contained in the libel which will expose him to any prosecution or punishment for a crime, or for any penalty or any forfeiture of his property for any penal offense. INTERROGATORIES IN ANSWER. 34 The defendant shall have a right to require the personal answer of the libelant, upon oath or solemn affirmation, to any inter- rogatories which he may, at the close of his answer, propound to the libelant touching any matter charged in the libel, or touching any matter of defense set up in the answer, subject to the like exception as to matters which would expose the libelant to any prosecution or punishment or forfeiture, as provided in the fore- ADMIRALTY RULES 99 going rule. In default of due answer by the libelant to such interrogatories the court may adjudge him to be in default and dismiss the libel, or may compel his answer in the 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. NEW MATTER IN ANSWER. 35 When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libelant and no replication, general or special, shall be allowed. But within ten days after the answer is filed the libelant may amend his libel so as to confess and avoid or explain or add to the new matter set forth in the answer, and within ten days after such amendment of the libel is filed the defendant shall answer such amendments. But the court may, by special order and upon due cause shown, allow further time for filing such amendments of the libel and for filing such answer thereto. ANSWER DISPENSED WITH. 36 Where either the defendant or the libelant is out of the coun- try, or is unable, 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 practicable. SECURITY BY RESPONDENTS IN CROSS-LIBEL. 37 Whenever a cross-libel is filed upon any counter-claim arising out of the same cause of action for which the original libel was filed, the respondents in the cross-libel shall give security, in the usual amount and form, to respond in damages as claimed in said cross-libel, unless the court, on cause shown, shall other- 100 ADMIRALTY RULES wise direct, and all proceedings upon the original libel shall be stayed until such security shall be given. INTERVENTION. 38 If any third person shall intervene in any cause of admiralty and maritime jurisdiction in rem, for his own interest, and is entitled, according to the course of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter 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 proceedings shall be had, and decree rendered by the court therein, as to law and justice shall appertain. But every such intervenor shall be required, upon filing his allegations, to give a stipulation, with sureties, to abide by the final decree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court. SURPLUSAGE, ETC. 39 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 objectionable, and the exception is allowed by the court, such mat- ter shall be expunged at the cost of the party in whose libel or answer the same is found. PROCEEDINGS TO SECURE LIMITED LIABILITY OF SHIPOWNERS. 40 When any ship or vessel shall be libeled, or the owner or owners thereof shall be sued for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons of any property, goods, or merchandise shipped or put on board of such ship or vessel, or for any loss, damage, or injury ADMIRALTY RULES 101 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 Revised vStatutes of the United States, the said owner or owners may and shall file a libel or petition, as hereinafter specified, setting forth the facts and circumstances on which such limitation is claimed, and praying proper relief in that behalf; and thereupon the court, having caused due appraisement to be had of the amount or value of the interest of said owner or own- ers, respectively, in ship or vessel, and her freight for the voyage, shall make an order for the payment of the same into court or for the giving of a stipulation, with sureties, for payment thereof into court whenever the same shall be ordered; or, if the owner or owners shall so elect, the court shall, without such appraisement, make an order for the transfer by him or them of his or their interest in such vessel and freight to a trustee to be appointed by the court under said section 4285; and upon com- pliance with such order the court shall issue a monition against all persons claiming damages for any such embezzlement, loss, destruction, damage, or injury, citing them to appear before the court and to make due proof of their respective claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same ; and public notice of such monition shall be given as in other cases, and such further notice served, through the post-office or otherwise, as the court, in its discretion, may direct ; and the court shall also, on the application of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect to any such claim or claims. PROOF OF CLAIMS. 41 Proof of all claims which shall be presented in pursuance of said motion shall be made before a commissioner to be designated by the court, subject to the right of any person interested to question or controvert the same; and upon the completion of 102 ADMIRALTY RULES said proofs the commissioner 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 the court as aforesaid, or the proceeds of said ship or vessel and freight (after payment of costs and expenses), shall be divided pro rata among the several claimants in proportion to the amount of their respective claims, duly approved and confirmed as af re- said, saving, however, to all parties any priority to which they may be legally entitled. CONTEST OF LIABILITY BY OWNERS. 42 In the proceedings aforesaid the said owner or owners shall be at liberty to contest his or their liability, or the liability of said ship or vessel, for said embezzlement, loss, destruction, damage, or injury (independently of the limitation of liability claimed under said act), provided that in his or their libel or petition he or they shall state the facts and circumstances by reason of which exemption from liability is claimed; and any person or persons claiming damages as aforesaid, and who shall have presented his or their claim to the commissioner under oath, shall and may an- swer such libel or petition, and contest the right of the owner or owners of said ship or vessel either to an exemption from liability or to a limitation of liability under the said act of Congress, or both. MONEYS PAID IN. 43 All moneys paid into the registry of court shall be deposited in the name of the court in the United States Treasury, and shall not be drawn out except by check, signed by a justice of the court and countersigned by the clerk, stating on whose account and for whose use it is drawn and in what suit and out of what fund in particular it is paid. The clerk shall keep a regular book con- taining a memorandum and copy of all the checks so drawn, and the date thereof. ADMIRALTY RULES 103 CLAIM OF PROCEEDS IN REGISTRY. 44 Any person having an interest in any proceeds in the registry shall have a right, by petition and summary proceeding, to in- tervene pro interesse suo for a delivery thereof to him; and upon due notice to the adverse party, if any, the court may and shall proceed summarily to hear and decide thereon and to decree therein, according to law and justice. And if such petition or claim shall be deserted, or upon a hearing be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party. APPRAISERS. 45 Only one appraiser is to be appointed in suits by individuals, unless otherwise specially ordered by the justice; and if the re- spective parties do not agree in writing upon the appraiser to be appointed, the clerk shall forthwith name one, either party having a right of instant appeal to the justice from such nomi- nation for adequate cause. REFERENCES TO COMMISSIONERS. 46 The court mav, in cases where it shall deem such course ex- pedient or necessary for the purpose 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 commissioner or commissioners shall have and possess all the powers in the premises which are usually given or exercised by masters in chancery in reference to them, including the power to administer oaths and examine the parties and witnesses touch ing the premises. TO AUDITOR. 47 In cases of demands arising, not ex delicto, on a decree in favor of the libelant by default or on hearing, it shall be referred to an 104 ADMIRALTY RULES auditor to ascertain the amount due the libelant; but reference may also be made in cases of tort or on allegations of incidental or consequential damages if desired by either party. TO ASSESSORvS. 48 Upon any sufficient cause shown, such reference may be made to assessors or otherwise, according to the course and custom of courts of civil and admiralty jurisdiction. CONFIRMATION. 49 Upon the coming in of the report of the auditor or assessors, a decree of confirmation may be entered, on motion, without notice, unless otherwise ordered by the court, or unless the report be excepted to, and in the latter case the exception shall be over- ruled or held abandoned unless brought to a hearing. FAILURE TO TAKE PROCEEDINGS ON REPORT. 50 If the libelant take no proceedings on the report within five days, after the filing thereof in open court, the respondent may move the court to dismiss the libel for want of due prosecution. BONDS AND STIPULATIONS, WHAT TO CONTAIN. 51 All stipulations in admiralty causes shall be executed by the principal party, if within the District of Columbia, 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 principal or sureties execution to the amount named in such stipulation may issue against the goods, chattels, and lands of the stipulators. HOW TAKEN. 52 Bonds or stipulations in admiralty suits may be given and taken in open court, or at chambers, by the justice holding the district court, or, in his absence, by any other justice of the court- ADMIRALTY RULES 105 REDUCING PENALTY— NEW SURETY. 53 The court may, upon motion and for due cause shown, reduce the sum contained in the bond or stipulation taken as bail in any suit 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. INCREASE OF SURETY. 5' In all cases of stipulations in admiralty causes, any party having an interest in the subject-matter may move the court, on special cause shown, for greater or better security, giving the opposite party two days' notice thereof, unless shorter time is allowed by the justice. SECURITY FOR COSTS IN SUITS IN PERSONAM. 55 In all cases of libel in personam the court may, in its discretion, upon the appearance of the defendant, where no bail has been taken and no attachment of property has been made to answer the exigency of the suit, require him to give a stipulation, with sureties, in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudication thereof, or by any interlocutory order in the progress of the suit. SECURITY FOR, IN SUITS IN REM. 56 No process in rem shall be issued, nor shall any appearance or answer be received, or third party be permitted to intervene and claim, except on the part of the United States, unless a stipula- tion in the sum of one hundred dollars shall be first entered into by the party, and at least one surety resident in the District of Columbia, conditioned that the principal shall pay all costs assessed against him by the court. 106 ADMIRALTY RULES EXCEPTION OF SEAMEN AND SALVORS. 57 Seamen suing in rem for wages, in their own right and for their own benefit, for services on board. American vessels, and salvors coming into possession of the property libeled shall not be re- quired 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 dis- charged. DEPOSIT INSTEAD OF STIPULATION. 58 Instead of a bond or stipulation 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. COSTS TO BE PAID BEFORE DELIVERY. 59 No vessel, goods, wares, or merchandise in the custody of the marshal shall be released from detention, upon appraisement and surety, until the costs and charges of the officers of the court, so far as the same shall have accrued, shall first have been paid into court by the party at whose instance the appraisement shall take place, to abide the decision of the court in respect to such costs. EXECUTION. 60 On final decree for the payment of money the libelant shall have a writ of execution, in the nature of a fieri facias, com- manding the marshal or his deputy, or where the marshal is a party in interest or it is unfit on other grounds that he should act, the coroner of said District, to levy upon and collect the amount thereof out of the goods, chattels, lands and tenements, or other real estate of the defendant or stipulators. ADMIRALTY RULES 107 SALES. 61 All sales of property under any decree in admiralty shall be made by the marshal or his deputy, or, where the marshal is a party in interest, by other 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. NOTICE OF SALE. 62 Notice of sale of property after condemnation in suits in rem (except under the revenue laws and on seizure by the United States), shall be six days, unless otherwise specially directed by the decree of condemnation and sale. INDEX TO ADMIRALTY RULES. A. Answers — in civil eases _ exceptions to default in. default in, rehearing after attachment to compel objecting to make, to interrogatcrics, etc., in libel interrcgat':ries in new matter in dispensed with Appraisers — only one to he appointed B. Bonds and stipulations — what to contain... how taken. reducing penalty, new surety ._ increase of security C. Costs — security fcr, in personam in rem exceptions in favor of seamen and salvors deposit of money for to be paid bef< re delivery Cross-libel — security by respondents in E. 1 XECUTION — for final decree - I. Intervention — stipulation by intervenor L. Libels — in seizures in civil cases amendments to information, etc. claim to be verified neglect of libelant to proceed with dispatch (i) Rule. 28 97 29 97 30 98 31 98 32 98 33 99 34 99 35 99 36 100 45 37 60 38 Page. 103 51 105 52 LOS 53 105 54 105 55 106 56 106 57 106 58 106 59 107 100 107 100 23 95 24 95 25 96 26 96 27 97 11 INDIiX TO ADMIRALTY RULES Limited liability of shipowners — proceedings to secure proof of claim. contest of liability M. Moneys in registry of court — to be deposited claim of proceeds - P. Process— issuing : - service. return , form of, in personam.^ : arrest of property, for what sum... to garnishee dissolution of attachment in rem, cases of seizure as to tackle, etc., in possession of third person property attached delivery of ship or goods delivery on payment into court as to perishable goods in suits for wages.. for pilotage.... for supplies, etc... upon hypothecation.- on bottomry bonds for salvage for damages by collision for assault in petitory and possessory suits R References — to commissioners to auditor to assessors confirmation of report-.. failure to take proceedings on report S. Sales — of property under decree noticj of... Surplusage, etc. — exception may be taken for 40 41 42 39 Page. 101 102 102 43 103 44 103 1 89 2 89 3 89 4 89 5 90 6 90 7 90 8 91 9 91 10 91 11 92 12 92 13 93 14 93 15 93 16 93 17 94 18 94 19 94 20 94 21 94 22 95 46 104 47 104 48 101 49 104 50 105 61 !()7 62 107 101 PROBATE RULES 109 PROBATE RULES. SESSIONS OF COURT. 1 1. There shall be no terms of the probate court, but there shall be a session every day except Saturdays and legal holidays, unless otherwise ordered by the justice. 2. Trial Sessions. — On such days as may be designated by the justice, there shall be sessions for the trial of issues by the court with a jury, or when the right of trial by jury is waived, by the court only. CRIER AND MARSHAL. 2 The justice may designate a crier to serve during sessions of the court, and the marshal shall designate such of his deputies as may be needed to attend. LAW AND EQUITY RULES. 3 The law and equity rules shall govern the practice in the probate court so far as applicable. ATTORNEYS. 4 Counsel appearing for parties shall be designated as attorneys, and only members of the bar shall be permitted to practice. COLLECTORS. ' 5 Neither the caveator nor his attorney shall be appointed either as sole or joint collector of an estate pending the trial of a caveat, except by the express consent of the party in opposition to the 110 PROBATE RULES caveat, unless it shall appear to the court that such appointment is necessary to the care, protection and security of the estate. PLEADINGS. 6 1. Verification. — Petitions and other papers asking for relief, and answers to the same, shall be verified by oath or affirmation, except when verification of the answer is waived by the opposite party. 2. Issue. — It shall not be necessary in any case to file a repli- cation, but the proceeding shall stand at issue as though a ge neral replication had been filed. 3. Scandalous. — If any petition, answer, or other paper shall contain irrelevant, insufficient, or scandalous matter, the paper, or the objectionable part, may be struck out on motion. PETITION FOR PROBATE AND ADMINISTRATION. 7 1. Contents. — A petition for probate of a will and for letters testamentary or of administration c. t. a., or for administration of an estate, shall be in writing, verified by oath or affirmation, setting forth the residence and citizenship of the petitioner, by what right he makes application, the death and date thereof of the person on whose estate the letters are desired, his last domicile, the estimated value of the real and personal estate, the character thereof and where situated, the debts due by the decedent as far as can be ascertained, whether the decedent died testate or intestate, whether the testator in his last will and testament requests that the executor be not required to give bond, the names and addresses (when known) of the heirs at law and next of kin, their relationship to the deceased, and whether they are residents or nonresidents, adults or infants, and, if infants, the dates of their birth, as nearly as may be. If it be desired to give a special bond to pay debts, or debts and legacies (and thereby be exempted from inventory and account), the petition shall state the facts on which this privilege is claimed. PROBATE RULES 111 2. Guardian Ad Litem. — If any of the next of kin or heirs at law be an infant or person of unsound mind, the petition shall contain a prayer for the appointment of a guardian ad litem for such infant or person of unsound mind, and such appointment shall be made by the court. CITATION FOR PROBATE AND ADMINISTRATION. 8 1. Issuance. — Upon the filing of a petition for the probate of a will the register of wills shall issue a citation to the heirs at law or next of kin of the deceased, or both, in the following or equivalent fo/m: SUPREME COURT OF THE DISTRICT OF COLUMBIA, Holding Probate Court. Estate of -\ No. . , deceased. [ Administration. The President of the United States to , greeting: If you have any cause to show why the paper writing dated the day of , 19 — , and the day of , 19 — purporting to be the last will and testament and codicil of late of the District of Columbia, deceased, should not be admitted to probate and record, and why letters should not be granted to the , you will appear and make such cause known before the Supreme Court of the District of Columbia, holding Probate Court, in and for said District, on , the day of — — , A. D. 19 — , at — o'clock — M. Witness, the Honorable , Chief Justice of said court, this day of , A. D. 19—. Attest: . Register of Wills for the District of Columbia. -, Attorney. 2. Return. — Such citation shall be made returnable on a day therein named, not less than ten days from the day of issue, and shall be served at least five days before the return day. 9 1. Order of Publication.— If the return of the marshal shows that any of the heirs at law or next of kin are "not to be found" 112 PROBATE RULES the order of publication shall be in the following or equivalent form : SUPREME COURT OF THE DISTRICT OF COLUMBIA, Holding Probate Court. Estate of ") No. . , deceased, f Administration docket . Application having been made herein for probate of the last will and testa- ment and of said deceased, and for letters on said estate, by , it is ordered this day of ' , A. D. 19 — , that and all others concerned, appear in said court on > the day of , A. D. 19 — , at — - o'clock — M., to show cause why such application should not be granted. Let notice hereof be published in the "Washington Law Reporter" and once in each of three successive weeks before the return day herein mentioned, the first publication to be not ess than thirty days before said return day. , Justice. Attest: , Register of Wills for the District of Columbia. , Attorney. 2. Service of Publication. — No order or decree based upon notice by such publication shall be passed unless the petitioner, his agent or attorney, shall file in the cause an affidavit showing that at least twenty days before the application for such order or decree is made, he mailed, postpaid, a copy of said publication, directed to the party therein ordered to appear, at his last known post-office address, or that he has been unable to ascertain the last post-office address of said party, after diligent effort to ascer- tain the same. ADMINISTRATION . 10 .Upon the filing of a petition for letters of administration, the court may in its discretion issue a citation to any of the next of kin, if within the District of Columbia, to appear on a day named and show cause, if any, why such letters should not be granted; and if it appears by said petition that the next of kin are nonresidents, the court may in its discretion direct that notice to them shall be given by public advertisement or otherwise. PROBATE RULES 113 TRIAL OF ISSUES. 11 1. Notification. — When an issue as to the validity of a will shall have been framed, the notification of the time and place of trial, required by law to be given to the parties in interest, shall be in the following or equivalent form: IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, Holding Probate Court. Estate of I No. . , deceased, f Administration docket To Yon are hereby notified that the issues heretofore framed in this case relat- ing to the validity of the paper writing, dated the day of , 19 — , and the day of , 19 — , purporting to be the last will and testament and codicil of , deceased, will be tried in this court on the day of , 19 — , at — o'clock — M. A copy of said issues is hereto appended. , Justice. Attest: , Register of Wills for the District of Columbia. , Attorney. Copy ok Issues. 2. Return of Notification. — Such notification shall be made returnable on the day fixed by the court for the trial, and shall be served at least ten days before the said day of trial. 12 1. Publication. — If as to any of such parties in interest such notification shall be returned "not to be found," the order of publication required by law to be given in that event shall be in the following or equivalent form : IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, Holding Probate Court. Estate of I No. . deceased, f Administration docket The notification as to the trial of the issues in this cast relating to tin va- lidity of the paper writing , dated the day of 19 — 114 PROBATE RULES and the day of , 19 — , purporting to be the last will and tes- tament and codicil of , deceased, having been returned as to "not to be found," it is this day of , 19 — , ordered that the issues be set down for trial on the day of 19 — , and that this order and the substance of said issues, to wit, , shall be published once a week for four weeks in the "Washington Law Re- porter" and twice a week for the same period in . — ■ , Justice. Attest: , Register of Wills for the District of Columbia. , Attorney. 2. Nonresident. — To a party outside of the jurisdiction of the court who shall not have been personally served with the original citation or with notification of the trial of issues, unless he shall voluntarily cause his appearance to be entered, notice of the trial of issues shall be given, whenever practicable, by mailing a copy of the order of publication prescribed in this rule, to him at his last known post-office address, at least ten days before the day fixed for the trial, in which case the proof of such mailing shall be the affidavit of the party giving the notice, or his agent or attorney ; or by causing a copy of said order of pub- lication and substance of issues as published to be served on him by some disinterested adult person, in which case the service shall be proved by the affidavit of the person making the same, stating that he knows the party served and personally served him with a copy of said publication and identifying the same by a further copy thereof attached to and made a part of the affidavit; or by the written .admission of the party served, accompanied, when required, by evidence satisfactory to the court, as to the genuineness of the signature to such admission. SALE OF REAL ESTATE. 13 1. Petition. — A petition for the sale of real estate of a de- cedent for the payment of debts or legacies must designate specifi- cally the real estate owned by the decedent and what part or parcel thereof it is desired to sell, and shall set forth the estimated • value of the personal property, the amount of the debts due from the decedent, the fact that the personal property is insufficient PROBATE RULES 115 to discharge such debts, and in the case of a will, the legacies embraced therein, and the names and addresses (when known) of all the heirs at law and legatees. 2. Parties. — No case shall be referred to the auditor for the purpose of ascertaining and reporting a deficiency of assets until all the respondents to any such petition are before the court, either by answer or consent in writing, or by a proper summons or publication. 3. Auditor. — The petition for a sale of real estate to pay debts or legacies and the other papers and proceedings in the case, shall, after compliance with the provisions of this rule, be referred to the auditor for report as provided by section 146 of the Code. GUARDIAN. 14 1. Petition. — Every petition for appointment of guardian must be made by some relative or the infant by next friend, and must set forth the name, residence, and date of birth of each infant, and, if an orphan, the names of the deceased parents, with the date of death; the estimated value of the propertv to which the infant is entitled, the character thereof and where situated, and, if real estate, the annual rental value thereof; the relationship, if any, of the petitioner and the right in which the application is made. If it be necessary to use any portion of the infant's estate for his maintenance and education, the petitioner shall give an estimate of the amount necessary for that purpose, and, if a parent, shall declare and prove his inability to support him. 2. Election. — If the infant be over 14 years of age he must, if practicable, appear in court to elect his guardian, and all infants must be present in court unless their presence be excused by the court, because of their illness or tender years or other sufficient cause. 3. Order Appointing. — The order of the court shall set forth the date of birth of each infant, and if any of them be over 14, shall state that such infant appeared in court, and elected the guardian, or that such appearance was excused, and shall also state the allowance, if any, made by the court from the infant's estate for his maintenance and education. 116 PROBATE RULES 4. Accounts. — Guardians are not allowed to dispose of the ward's property or encumber it in any way without order of court. Vouchers must be obtained for all expenditures when practicable, and a regular book of accounts should be kept, showing receipts and expenditures for each ward. 5. Investments. — It is the duty of the guardian under the supervision of the court to keep his ward's estate safely invested so as to produce an income. 6. For Indigent Boys. — Petitions for appointment of guar- dian to enable indigent boys to enlist in the United States Army or Navy will be prepared by the register of wills without anv charge. (See Law Rule 75.) DELINQUENT FIDUCIARIES. 15 1. Whenever any executor, administrator, collector or guardian fails to present to the court an inventory or inventories, or ac- count of his administration or trust, or fails to comply with rule 16 within the time or in the manner and form prescribed by law or allowed by the court, a citation shall issue directing such delin- quent to render his inventory or inventories or account, or to comply with rule 16 within twenty days from the date of the service thereof. 2. If the fiduciary shall fail to render the inventory or inventories or account, or to comply with rule 16 within the time specified in the citation, a rule shall issue requiring him to show cause, on a day certain, why he should not be adjudged in contempt. 3. Upon the failure of the delinquent to answer such rule, a writ of attachment shall forthwith issue directing the Marshal to bring such delinquent before the court, to be dealt with ac- cording to law. PROBATE RULES 11" ACCOUNTS OF ADMINISTRATORS AND EXECUTORS. 16 1. Exceptions to. — When an account is settled in the absence of a person adversely interested, without actual notice or notice by mail as hereinafter provided, to him, such account may be reopened upon his filing exceptions thereto within three months after it is so settled. 2. Approval of, After Notice. — No account shall be approved unless the accountant, his agent or attorney, shall duly mail, postpaid by registered mail, to each legatee, or distributee whose legacy or share may in anywise be diminished by the attorney's fees and commissions to be claimed, and, unless the court shall otherwise order, to each creditor whose claim may be so dimin- ished, at his last known address, five days if he be a resident of the District of Columbia and twenty days if he be a non-resident, a notice in writing stating the day upon which it will be so pre- sented and the amounts claimed for commissions and attorneys' fees; or shall serve such notice upon the persons so to be notified and prove the service by affidavit filed in the cause or the written acknowledgment of the persons served; or shall file in the cause the waiver of such notice by the persons to be notified or their consent to the allowance of the commissions and attorneys' fees claimed. Provided, that when any legatee, distributee or creditor is a non-resident alien enemy or ally of enemy, within the terms of the Act of Congress of October 6, 1917, commonly called the "Trading with the Enemy Act," the notice to such legatee, dis- tributee or creditor provided for in this rule shall be served upon the Alien Property Custodian appointed by the President of the United States under the provisions of that act; and the Alien Property Custodian is authorized to file in any probate cause in which there is an alien enemy or ally of enemy legatee, dis tributee or creditor the waiver of the notice herein provided for; and the Alien Property Custodian is also authorized to file the consent to the allowance of the commissions and attorneys' fees claimed as herein provided for in any probate account in which there is an alien enemy or ally of enemy legatee, distributee or creditor. (As amended July 2, 1918.) 1 1 8 PROBATE RULES 3. Proof of Notice. — The registered letter receipts for such notices, together with the affidavit of the accountant, his agent or attorney, showing how this rule has been complied with shall be filed in the cause before the account is approved. 17 1 . All ex parte orders and decrees and all orders and decrees on consent or waiver of notice prepared for the signature of the presiding Justice of the Probate Court shall, except as otherwise provided by law, be presented between the hours of nine A. M. and eleven A. M. on any week day except Saturdays and legal holidays to the Register of Wills or to a deputy to be designated by him, who shall review such orders and make such suggestions to the court relative to the penalty of the bond and other matters as the premises may require. 2. No order or decree presented will be finally rejected without first affording the party or his attorney an opportunity to be heard by the court. (Adopted December 4, 1914.) 18 1 . Whenever any executor, administrator, collector, or guardian shall present to the Register of Wills an account of his administra- tion or trust, showing that he holds in such fiduciary capacity any undistributed portion of the estate, a notice shall be issued by the Register of Wills, directing the fiduciary to file within fifteen days a report, verified by his oath, and stating fully and clearly : a. The place where any trust moneys are deposited and in what name. b. The nature and particulars of all assets and securities, real and personal ; whether the same were received by him in the same form as part of the trust estate, or are investments made by him, or under an order of the court. 2. When such report is filed, the Register of Wills shall note the filing thereof upon the appropriate docket and shall forthwith notify the fiduciary to appear within ten days and to exhibit to him all the securities reported. 3. The Register of Wills, or a deputy designated by him, shall PROBATE RULES 119 examine and ascertain the correctness of the statements in the report with respect to all money and property reported as exist- ing, and shall file a written report of the result of such examination. 4. If the fiduciary shall fail to render the report within the time specified, a rule shall issue requiring him to show cause on a day certain why he should not be adjudged in contempt. 5. Upon the failure of the delinquent to answer such rule a writ of attachment shall forthwith issue directing the Marshal to bring such delinquent before the court, to be dealt with accord- ing to law. 6. The Register of Wills is authorized to demand and receive for his services the following fees: Where the undistributed portion of the estate shall not exceed $500, no fee. Where such portion exceeds $500, and does not exceed $1,000, $1.00. Where such portion exceeds $1,000, and does not exceed $2,000, $2.00. Where such portion exceeds $2,000, and does not exceed $3,000, $3.00. Where such portion exceeds $3,000 and does not exceed $4,000, $4.00. Where such portion exceeds $4,000, $5.00. 7. Equity Rule 73 shall no longer govern the practice of the Probate Court. (Adopted April 21, 1918.) RULE FOR THE INVESTMENT OF TRUST FUNDS. 19 Section 1. Investments of trust funds, unless otherwise pro- vided in the instrument creating the trust, or except under extra- ordinary conditions set forth fully to the court, will ordinarily be sanctioned by the Supreme Court of the District of Columbia only when made in the securities mentioned in the third section of this rule. Section 2. The list of authorized securities mentioned in the foregoing, and set out in the succeeding section shall be annually 120 PROBATE RULES revised by the Supreme Court of the District of Columbia, and a committee of judges shall be appointed for that purpose at the general term held at the close of the October term of the Supreme Court of the District of Columbia, which committee shall have power to appoint for its assistants such expert advisers as it may find expedient and practicable. The application to place upon the list of investments any in- vestment which does not fully meet the requirements set forth in this rule will not be considered at any other time save at the time of the annual revision of the list, except under special cir- cumstances, and with suitable provision for procuring impartial expert testimony at the expense of the party making such applica- tion. vSection 3. The following investments for trust funds will ordinarily be sanctioned by the said court upon petition, and subject to the limitations in this section, hereinafter set forth, until further order of court, made in pursuance of the preceding section: A. United States Bonds. A. 1. Federal Land Bank Farm Loan Bonds. All bonds for which the faith of the United States is pledged to provide for the payment of the interest and principal. B. State and Territory Bonds. All authorized bonds of any State or Territory of the United States and of the District of Columbia. C. County Bonds. All duly authorized bonds of any county of any State of the United States having a population of not less than 40,000 persons, according to the last federal census. Provided, such county has not defaulted in the payment of any part of the principal and interest of any of its indebtedness within twenty years prior to the making of the investment. Provided, also, that the net indebtedness of the said county does not exceed 3 per cent of the last preceding valuation of property for taxation. Provided further, That there is no obstacle by constitutional or legislative limitation, or otherwise, to the enforcement of the payment of the principal and interest of said bonds by usual legal process. PROBATE RULES 121 D. City, Town and Other Municipal Bonds. Any duly authorized bond of any city in any State of the United vStates of 25,000 or more inhabitants, according to the last federal census. Provided (in either case) that such bond is a direct obligation upon said municipality or city, and that there is no obstacle by constitutional or legislative limitation, or otherwise, to the enforcement of the payment of the principal and interest of the said bonds by usual legal process. Special assessment bonds and improvement bonds, which are not direct and primary obligations of the city issuing the same, are not allowed. Provided also (in either case) that such municipality or city has not defaulted upon any of its funded obligations for the next preceding twenty years. Provided further, That the net indebtedness of such municipality, if of 25,000 inhabitants, according to the last federal census, does not exceed 5 per centum of its last preceding valuation of property for taxes; and that the net indebtedness of any such municipality or city of more than 25,000 inhabitants, and less than 100,000 inhabitants, together with the indebtedness of any district, or municipal corporation, or subdivision, except a county, which is wholly or in part within the limits of said city, does not exceed 5 per cent of such valuation; and that the net indebtedness of any such municipality or city, if of more than 100,000 inhabitants, according to the last federal census, together with the indebted- ness of any district or other municipal corporation, or subdivision, except a county, which is wholly or in part included within the limits of said city, does not exceed 7 per cent of such valuation. Such net debt of any city or municipality is to be determined by deducting from the gross debt the amount of its water debt and negotiable securities in its sinking funds, which are available for the payment of its bonds. E. Railroad Bonds. (1) The mortgage bonds of any railroad corporation incorpo- rated under the laws of the United States, or any of them, which either actually owns not less than 500 miles of standard gauge railroad, exclusive of sidings, in the United States, or the k r n ,ss 122 PROBATE RULES earnings of which during the five years preceding the date of any such investment from the operation of said corporation, including the gross earnings of all lines leased and operated, or controlled and operated by it, shall not have been less than ten millions of dollars in each year. Provided, That at no time within five years next preceding the date of any such investment shall such railroad corporation have failed regularly and punctually to pay the matured principal and interest of all its mortgage and other fixed interest indebtedness, and in addition thereto regularly and punctually have paid in cash out of income in dividends to its stockholders during each of said five years an amount at least equal to 4 per cent on all its outstanding capital stock, and Provided further, That all bonds authorized for investment by this clause shall be secured by a mortgage which is, at the time of making said investment, or was at the date of the execution of said mortgage (1) a first mortgage upon not less than 75 per cent of the railway actually owned by the company issuing said bonds, exclusive of sidings at the date of said mortgage, or (2) a general or consolidated mortgage issued to retire all prior lien mortgage debts of said company outstanding at the time of said investment, and covering at least 75 per cent of the railway owned by said company at the date of said mortgage; but no one of the bonds so secured shall be a legal investment in case the mortgage securing the same shall authorize a total issue of bonds,, which, together with all outstanding prior debts of said company after deducting therefrom, in case of a refunding mortgage, the bonds reserved under the provisions of said mortgage to retire prior debts at maturity, shall exceed three times the outstanding capital stock of said company at the time of making said invest- ment ; and no mortgage is to be regarded as a refunding mortgage under the provisions of this rule unless the bonds which it secures mature at a later date than any bond which it is given to refund, nor unless it covers a mileage at least 25 per cent greater than is covered by any one of the prior mortgages so to be refunded. (2) Any underlying bonds to secure the retirement of which refunding bonds have been authorized under a mortgage fully complying with the provisions of the first sub-section hereof. PROBATE RULES 123 (3) Any underlying first mortgage bonds covering the whole of any railroad which has been consolidated with and made an integral part of another railroad actually owning and operating not less than 500 miles of standard gauge, provided said last mentioned railroad has issued and outstanding mortgage bonds covering its whole trackage, including the road so consolidated, to such an amount that, dividing its whole mortgage indebtedness by the whole number of miles of road, the quotient will be at least double the amount per mile of said first mortgage bonds which remain as an underlying lien prior to the mortgage bonds so issued on the consolidated road. Provided neither of said railroads has failed to pay either the interest or principal of any of its mortgage or fixed interest in- debtedness for ten years next preceding such investment. F. Equipment Bonds. Any equipment bonds which are the direct obligations of ativ railroad company actually operating its own road in its own name, any of whose mortgage bonds are authorized under section E, sub-sections 1 or 2 of this rule; or any equipment bonds secured by equipment leased to any railroad company actually operating its own road in its own name, any of whose mortgage bonds are good under section E, sub-sections 1 or 2 of this rule. Provided such bonds are issued against new rolling stock which shall actually cost said railroad company at least 15 per cent more than the amount of said equipment bonds, and of which issue of equipment bonds the deed of trust securing the same provides that at least one-tenth shall be called in and paid each year sub- sequent to the date of said bonds. G. Street Railway Bonds. The first mortgage bonds of street railroad corporations located wholly or in part in cities of the United States having a population of not less than 50,000, according to the last federal census, which have a franchise to run their cars over such streets and roads as may be in use by them, at the date of the mortgage, perpetually or for a period of time ending at least fifteen years after the date of the maturity of said bonds. Provided, That the mortgage bond indebtedness of any such 124 PROBATE RULES street railway does not exceed the amount of the capital stock of the corporation, and that such corporation has earned and paid regularly in cash, out of income, dividends of not less than 4 per cent per annum on all of its capital stock outstanding for five years next preceding such investment; and, Provided also, That any first mortgage bond, covering the whole of any street railway, which has been consolidated with and whose track has been made an integral part of another street railway, whose bonds would be good under the previous pro- visions of this section shall be deemed also to be authorized here- under. H. Gas and Miscellaneous Securities. No general provisions, but securities mentioned in the list are approved. /. Mortgage on Real Estate. First mortgage on real estate in the District of Columbia, to the extent of 60 per cent of the value thereof, if dwelling house, store, or office property, and productive; 50 per cent of its actual value, if farm property and improved ; or 30 per cent of its actual value, if unproductive, or manufacturing property. The valuation must be certified (under oath) by at least two persons familiar with the value of said property and the title must either be certified by a member of the District of Columbia bar of at least five years' practice or must be guaranteed by a reputable title insurance company. General Provisions. No trustee can sell bands held by him individually to himself as trustee. A. No investment shall be allowed in the securities of any corporation which does not publicly issue or make an annual report of income and expenditures and also issue a general balance sheet. Not more than 40 per cent of any estate unless by special order of court upon petition plainly setting forth the fact, shall be in- vested in any one security. Should any fixed interest obligation of the corporation, the mortgage bonds of which are authorized as trust investments PROBATE RULES 125 under this rule, be defaulted upon, all bonds of such corporation, or underlying issues upon its property, shall be stricken from the list, and so remain, until and unless such bonds shall be reinstated by special order. The foregoing rule, having been fully considered, it is ordered by the Supreme Court of the District of Columbia this 4th day of October, A. D. 1915, that the foregoing be and the same is hereby adopted as the rule governing the investment of trust funds in Supreme Court of the District of Columbia. INDEX TO PROBATE RULES. Accounts — of guardians, vouchers to be obtained of delinquent fiduciaries, citation to compel cf executors and administrators exceptions to notice of application for approval of amount claimed for attorneys' fees and commissions, when and to whom given to alien property custodian, when Administration — letters of, petition fcr, what to set forth citation on, when to issue Administration c. t. a. — petition for probate of will and letters of, what to state petition for probate of will and letters of, citation on Administrators — petition for appointment of citation to compel account by accounts of, exceptions to, when to be filed notice of application for approval of, to whom given notice of application for approval of, what to state.. notice of application for approval of, proof of report of, as to undistributed estate Admission — of personal service of order of publication, etc., on party outside the jurisdiction Advertisement — notice by, of petition for letters of administration Affidavit — as to mailing copy of order of publication, etc as to personal service of order of publication, etc., on party outside of jurisdiction as to service of notice ot amount claimed by executor, etc., for attorneys' fees, etc Allowance — for support of infant, order appointing guardian to state amount of Answer — to petition, etc., to be verified, unless verification waived irrelevant, etc., matter in may be stricken out_ (i) Rule. 14 15 16 16 16 16 16 7 10 7 8 7 15 16 16 16 16 18 12 10 9, 12 12 16 14 6 6 Page. 116 116 117 117 117 117 117 110 112 110 111 110 116 117 117 117 118 118 114 112 112, 1 14 114 117 115 110 110 INDEX TO PROBATE RULES Army and Navy — appointment of guardian for indigent boys to enable them to enlist in Attorneys — counsel appearing for parties to be designated as only members of bar permitted to practice for caveator, not to be appointed as sole or joint col- lector of estate, pending trial of caveat, except by consent affidavit of. as to mailing copy of order of publication, etc as to service of notice of application for approval of account fees of, notice of application fcr approval of account to state allowance claimed for Auditor — reference to, of petition for sale of real estate not to be made until all respondents to petition are before court B. Bar— only members of permitted to practice Birth — date of, of minor, to be stated in petition for probate, etc date of, of minor, to be stated in petition for guardian- ship Bond — special, to pay debts, etc., petition to state facts on which privilege to file is claimed Rule. C. Caveat — issues on, trial of, sessions of probate court for pending trial of, caveator or his attorney not to be appointed collector without consent of caveatee... verification of irrelevant, insufficient or scandalous matters in may be stricken out issues on, notice of time and place of trial, form of return of.. order of publication, form of. Caveator — appointment of, as collector, pending trial of caveat Citation — on petition for probate ot will form of. return of when returned "not to be found," order of publication to be made order of publication, form of service of affidavit as to mailing copy 14 4 109 4 109 5 109 9, 12 112, 114 16 117 16 117 13 115 13 115 7 14 5 6 6 11 11 12 8 8 ,s !) «> «> Page. 116 109 110 115 110 109 109 110 110 113 113 113 109 111 111 111 111 112 112 112 INDEX TO PROBATE RULES 111 Citation — Continued . on petition for letters of administration on petition for letters of administration, non-residents, notice to to compel account by fiduciaries Collectors — caveator or his attorney not to be appointed as, pending trial of caveat, except by consent, unless court deems necessary for protection of estate report of, as to undistributed estate Commissions — of executor, etc., notice of application for approval of account to state amount claimed for Contempt — attachment of fiduciary for failure to answer rule Creditors — notice to, of application for approval of account, when Crier — of probate court, to be designated by court D. Debts — due by decedent, to be stated in petition for letters... Decrees and orders — ex parte or by consent, to be presented to Register of Wills.-.. -- : party or attorney to be heard before final rejection — Delinquent fiduciaries — citation co compel account by Domicile — of decedent, petition for letters to state Rule. Page. 10 112 10 15 112 116 5 18 109 118 16 117 15, 18 116, 119 16 117 2 109 Estate — real and personal, of decedent, value and character of to be stated in petition for letters .... of infant, value and character ol to be stated in peti- tion for appointment of guardian Exceptions — to account ot executor, etc., when to be filed Executors — petition for letters testamentary, what to state citation to compel account by accounts of, exceptions to, when to be filed notice of application for approval, to whom given notice of application for approval, what to state notice of application for approval, proof of report of, as to undistributed estate 17 17 15 7 110 118 118 116 110 7 110 14 115 16 117 7 15 16 110 116 117 16 117 16 117 16 18 117 118 IV INDEX TO PROBATE RULES F. Fiduciaries — delinquent, citation to compel account by report as to undistributed funds securities reported to be exhibited report, examination of and report as to on failure to file, attachment for contempt fees of Register of Wills for examining Forms — of citation of order of publication of notification of time and place of trial of issues of order of publication, time and place of trial of issues - G. Guardian — petition for appointment of, by whom made what to state infants, right of to elect to be present in court unless excused order appointing, what to state not to incumber or dispose of ward's estate except by order of court.. accounts of, vouchers to be obtained estate of ward to be invested under supervision of court - — appointment of, for indigent boys, to enable them to enlist in Army or Navy, petitions to be prepared without cost : report of, as to undistributed estate Guardian ad litem — when to be appointed...- I. Indigent boys — petitions for appointment of guardians for, to be pre- pared without cost Infants — next of kin, etc., date of birth to be stated in petition for probate, etc guardian ad litem, appointment of date of birth of, to be stated in petition for guardian- ship election of guardian by to be present in court at appointment of guardian unless excused. allowance for support of, amount to be stated in order appointing guardian estate of, investment of by guardian Investments — by guardian, of estate of ward of trust funds, list of securities 15 18 18 18 18 18 8 9, 12 11 12 14 14 14 14 14 14 14 14 Page. 14 18 14 112, 116 118 118 118 119 119 111 113 113 113 115 115 115 115 115 116 116 116 116 118 111 116 7 no 7 1 1 1 14 115 14 115 14 115 14 115 14 116 14 116 19 119 INDEX TO PROBATE RULES V Issue — filing of replication not necessary to of citation, when to be made Issues — trial of, sessions of probate court for, when held notification of time and place of- form of return of order of publication, form of -- copy of to be mailed non resi- dent..- proof of mailing, affidavit as to.— service of, out of jurisdiction, affidavit as to personal service out of jurisdic- tion, admission of Letters — testamentary, petition for what to state of administration, petition for, what to state. M. Marshal — to designate deputies to attend probate court N. Non-residents — names and addresses of to be stated in petition for probate, etc order of publication against, form of service of, affidavit as to. notice by publication to, of time and place of trial of issues affidavit as to_ personal service of, out of jurisdiction, proof of admission of... P. Parties — respondents to be before court before reference to auditor of petition to sell real estate Petition — to be verified by oath or affirmation irrelevant and scandalous matter in, striking out of... for probate, etc., what to set forth tor sale of real estate, what to set forth parties respondent to be before court before reference to auditor reference of, to auditor for appointment of guardian, what to state Rule. 6 8, 10 1 11 11 11 12 12 12 12 12 7 7 7 9 9 12 12 12 12 13 6 6 7 13 13 13 14 Page. 110 111, 112 109 113 113 113 113 114 114 114 114 110 110 109 110 112 112 113 114 114 114 115 110 110 1 10 114 115 US 115 VI INDEX TO PROBATE RULES Rule. Page. Pleadings — to be verified by oath, except when waived filing of replication not necessary to issue scandalous, etc., matter, striking out of Practice — law and equity rules to govern Probate — ■ of will, petition for, what to state citation on petition for to be issued when. form of return of publication, order of, when to be made form of service of, affidavit as to Probate court — daily sessions of except Saturdays and legal holidays unless otherwise ordered— trial sessions of, when to be held crier to be designated by justice holding marshal to designate deputies to attend law and equity rules to govern practice in, so far as practicable. Publication — order of, when to be made form of service of, affidavit as to mailing copy of notification of time and place for trial of issues, form of. service of, affidavit as to mailing copy personal service out of jurisdiction, proof of— admission of— on petition for sale of real estate. R. Real estate, sale of — petition for, what to state respondents to be before court before reference of to auditor reference of to auditor Residence — of hairs, etc., to be stated in petition for probate, etc.. non-residents, order of publication against notice to, by publication, etc., of time and place of trial of issues Return — of citation, when to be made of notification of Lime and place of trial of issues Rules — law and equity to govern practice in probate court as far as applicable. S. Scandal — in petition, etc., striking out of. 6 <; 6 7 8 8 8 9 9 9 1 1 2 2 9, 12 9, 12 9 12 12 12 12 13 13 13 13 7 9, 12 12 8 11 110 110 110 109 110 111 111 111 111 112 112 109 109 109 109 109 112, 113 112, 113 112 113 114 114 114 115 114 115 115 110 112, 113 113 111 113 109 110 INDEX TO PROBATE RULES Vll Rule. Page. Sessions — of probate court, when to be held Special bond (see Bonds) T. Terms — no terms of probate court Testamentary — letters, petition for, what to state Trial sessions — of probate court, when tc be held Trust funds — investment of, in what securities list of securities, annual revision of U. Unsound mind — person of, appointment of guardian ad litem for V. 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