3 1 I! THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Law Section California State Library THE JURISDICTION AND POWERS OK THE UNITED STATES COURTS AND OF TIIE SUPREME COURT OF THE UNITED STATES AND OK TIIE CIRCUIT AND DISTRICT COURTS IN EaUITY AND ADMIRALTY WITH NOTES AND KEFEEENCES AND AN APPENDIX CONTAINING THE ORDERS OF THE HIGH COURT OF CHANCERY OF ENGLAND, IN FORCE IN 1842, AND THE NEW ORDERS OF THE SAVIE COURT OF 1845 AND TIIE TIMES AND PLACES OF HOLDIIVG THE UNITED STATES COURTS BY STEPHEN D. LAW COUNSELLOR OF THE SUPREME COURT OF THE TTNTTED STATES ALBANY LITTLE & COMPANY LAW BOOKSELLERS AND PUBLISHERS 1852 1 Entered according to Act of Congress, in tlie year eighteen hundred and fifty-two, by LITTLE &. CO., in the Clerk's office of the District Court of the United States, for the Northern District of New- York. WEED, PAESONft A>-0 COMPANV, PEINTEKS. NO ■A THE HOXORAELE ROGER B. TANEY, CHIEF JUSTICE OP THE 'iipimt €mxt si % lliiitcir States, THIS WOEK IS WITH UIS PERMISSION MOST RESPECTFULLY DEDICATED BT THE AUTHOE. PREFACE. This volume originated in a want, exj^erienced by tte autlior, for a work of a similar character; and it is now submitted to the public, and more particularly to bis brethren of the Legal Profession, with the hope that it may prove to them both acceptable and useful. The author does not claim for his work the character of a labored and critical Treatise upon the Federal Courts of the United States, nor has he even attempted to invest it ■\*vdth the style and dignity of an Essay, though such a labor would have been as easy, or easier, than to have retained the pre- sent arrangement. But it has been his single wish, and con- stant aim and endeavor to prepare a volume worthy of be- ing esteemed not merely a con/veniejit but a necessary Book OF Reference for the practitioner in the Federal Courts ; and, what is most important, to make it, from the correct- ness of its statements of Statute Law, and Judicial Decision, reliable as an authoeity, upon the matters treated in it. In stating, therefore, the Statute Law, he has given it as it has been enacted by the Legislative Authority ; and in quoting vi PREFACE. Judicial Decisions, lie lias, in most cases, adopted tlie lan- guage made use of by tlie courts. The actual words of the Law, and the literal Judicial Interpretation thereof, are thus spread before the reader. Those who have learned from experience how necessaiy it often is to know the exact phi-aseology of the statute, and the actual ruling of the court, will, he believes, appreciate and approve this method of compilation. The author does not, however, presume for his work, entire exemption from error or mistake. He only claims that he has spared no effort or care to ensure its correctness, and that no intentional or known error or mistake has been per- mitted in its pages. That a better volume could have been prepared, had a more experienced practitioner compiled it, he is willing to believe ; and he is also confident that he could himself make the work more valuable, had he again to perform the labor. Should his professional brethren place such an estimate upon its worth as to render a second edition necessary, he trusts and beheves he will be able — his life and health being spared — to render the work more deserving of their patronage, and of greater assistance to them. New-Yoek, April, 1852. CONTENTS. *^* Full Indexes will be found immediately following each general division. Pages. Jurisdiction of Federal Courts, 1 to 294 Constitutional Provisions, 1 to 23 Powers in Common, 23 to 93 Jurisdiction Supreme Court, 93 to 133 Circuit Court, 133 to 183 " District Court, 183 to 215 " Courts District Columbia, 215 to 243 Territorial Courts, 243 to 253 Costs, 253 to 294 Index, 294 to 361 Rules of the Supreme Court, 361 to 409 Index, 409 to 429 Rules in Equity, 429 to 505 Index, 505 to 529 Rules in Admiralty, 529 to 579 Index, 579 to 597 APPENDIX. English Orders in force 1842, 603 to 711 Index, 711 to 737 English Orders of 1845, 737 to 799 Index, 799 to 808 viii CONTENTS. Pages. Chief Ju.stices Supreme Court, 811, 812 Associate Justices Supreme Court, 813 to 818 Supreme Court, (as now composed,) 818 Clerks Supreme Court, 819 Reporters Supreme Court, 819 Circuit Courts ; times and places of holding, and officers of, 821 to 827 District Courts ; times and places of holding, and officers of, 827 to 844 Territorial Courts ; times and places of holding, and offi- cers of, 844, 845 JURISDICTION OF THE FEDERAL COURTS OF THE UNITED STATES. CONSTITUTIONAL TROVISIONS. JURISDICTION FEDERAL COURTS. CONSTITUTIONAL PROVISIONS. CONSTITUTION OF THE UNITED STATES. Art. III. Sec. 1. The judicial power (1) of the United States art^iu. !rovision for their support. Federalist. This independency extends to judges in courts inferior, as well as the supreme ; and reaches equally their salaries and their commissions. They stand on the sure basis of the con- JURISDICTION OP THE FEDERAL COURTS. ART. III. Art. III. Sec. 2. Judicial power ex- tends to tases nu- The judicial power (1) shall extend to all cases in law and equity, arising under this constitution, 6^tkiuion ^^^ ^^'^^'s of the United States, and treaties made, niid to am- ^assadors, ' ~ ' stitution : tlic judicial department is independent of the de- partment of tLe legislature. No act of congress can shake their commissions, or reduce their salaries. It is not lawful for the president of the United States to remove them on the address of the two houses of congress. They may he remov- ed, however, as they ought to be, on conviction of high crimes and misdemeanors. Justice Wilson, quoted in 3 Ston/s Com. § 1626. By the constitution, all criminal and civil jurisdiction must be exclusively confided to judges holding their office during good behavior ; and ihougli congress may, from time to time, distribute the jurisdiction among such inferior courts, as it may create from time to time, and withdraw it at their pleasure, it is not competent for them to confer it upon temporary judges, or to confide it by special commission. 3 Story^s Com. § 1621. See also 3 Slonfs Coin. Const. §§ 1594 to 1631 ; 1 Tucker's Black. App. 354, 356 to 360 ; Ibid. App. 22 to 25 ; 1 KcnVs Com. Sec. 14. (1) The third article of the constitution enables the judicial department to receive jurisdiction to the full extent of the constitution, laws and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting npon it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case. Oshorn vs. Banh of the United States, 9 Whea. 738 ; 5 Cond. 741. Jurisdiction is given to the courts of the Union in two classes of cases. In the first their jurisdiction dejiends on the character of tlie cause, whoever may be the parties. This class CONSTITUTIONAL PROVISIONS. or which shall be made, under their authority ; to all cases aflecting ambassadors, other public SKC. comprehends " all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be' made, under their authority." This clause extends the jurisdiction to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. In the second class the jurisdiction depends entirely on the cliaracter of the parties. In this are comprehended " controversies between two or more states, between citizens of the same state claiming lands under grants from different states, and between a state and citizens O thereof and foreign states, citizens or subjects." If these be the parties, it is entirely unimportant what may be the subject of controversy. In one description of cases, the jurisdiction of the court is founded entirely on the character of the pai'ties ; and the nature of the controversy is not contemplated by the constitution. The character of the parties is every thing, the nature of the case nothing. In the other description of cases, the jurisdic- tion is founded entirely on the character of the case, and the parlies are not contemplated by the constitution. In these the nature of the case is every thing, the character of the parties nothing: Opinion of Marshal, Cohens vs. Virginia, 6 ^\^lea. 264; 5 Cond. 90, 100, 108. '^ In an action of ejectment between two citizens of Maryland, for a tract of land in that state, the defendant set up an out- standing title in a British subject, contending it was protected by the treaty : the state court decided against the title so set up: held it was not a case in which a writ of error lay to the supreme court — it is not "a case arising under a treaty.'' Oirings vs. Norwood's Lessee, 5 Cra. 344 ; 2 Cond. 275. See also, Sinith vs. Maryland, 6 Cra. 2SG ; 2 Cond. 377, City of New-Orleans vs. De Armas, 9 Pet. 224. Wallace vs. Parher, 6 Pet. GSO. Worcr<^frr vs. S/nfc of Virginia, G Pet, JURISDICTION OF THE FEDERAL COURTS. ART. III. To cases of Admi- ralty ; to cases ministers and consuls ; to (2) all cases of admiral- ty and maritime jurisdiction ; to controversies to 515. Bt/nic\s. State of Missouri, 8 Pet. iO. Crowellxs.Ran- dell, 10 Pet. 368. McBride vs. Hoey, 11 Pet. 167. Chateau vs. Marguerite, 12 Peters, 107. Ocean Ins. Com, vs. Pollys, 13 Pet. 157. (2) The grant of admiralty powers in the constitution, to the courts of the United States, was not intended to be con- fined to such cases as belonged to the admiralty jurisdiction in England, at the time of the adoption of that instrument. Such a limitation is inconsistent with the extent of admiralty juris- diction exercised by the colonies, with a just interpretation of the constitution, and with its contemporary construction. Wa- ring vs. Clark, 5 Howard, 441, Justices Woodbury, Daniel and Grier dissenting. Proceedings in admiralty arc to be according to the modi- fied admiralty practice of our own country, engrafted upon the English practice ; and it is not a sufficient reason for re- jecting a particular process, which has been used in the admi- ralty courts of this country, that it has fallen into disuse in England. Manro vs. Almeida, 10 Whea. 473 ; 6 Cond. 190. The principles of the common law are inapplicable to pro- cess and pleadings in courts of admiralty. Clarice vs. New Jersey Steam Nav. Co., 1 Story 531. Ehvellvs. Martin, Ware, 53. Brown vs. Lull, 2 Sum. 443. See also bearing upon this same point, Jenlcs vs. Lewis, Ware 51. Elliso7i vs. Ship Bellona, Bee, 106. Brig Sarah Ann, 2 Sura. 206. Sc/ir. Hoppet vs. United States, 7 Cra. 389 ; 2 Cond. 542. Brig Caroline vs. United States, 7 Cra. 496 ; 2 Cond. 584. Schr. Anne vs. United States, 7 Cra. 570 ; 2 Cond. 611. The Samuel, 1 Whea. 9 ; 3 Cond. 446. The Merino, 9 Whea. 391 ; 5 Cond. 623. The Palmyra, 12 Whea. 1 ; 6 Cond. 397. Admiralty jurisdiction may be vested in courts created by a territorial legislature, as such courts are not courts within the CONSTITUTIONAL PROVISIONS. which the (3) United States shall be a party; sec 2. to controversies (4) between two or more states, where u. betAveen a state and citizens of another state, pany";!!!! where u — — ~ state id a meaning of the constitution. Amer. Ins. Co. vs. Canter, 1 Pet. P^^ty- 511. (3) The word " controversies " has been held to refer only to such suits as are of a civil nature: while "cases" includes all suits, criminal as well as civil. 1 Tuck. Black. App. 420, 421. Chishohn vs. Georgia, 2 Dall. 419 ; 2 Cond. App. 638, 674. Opinions of Iredell and Jay. It is observable, that the language used does not confer upon any court cognizance of all controversies, to which the United States shall be a party, so as to justify a suit to be brought against the United States without the consent of congress. It is a known maxim, justified by the general sense and practice of mankinil, and recognized by the law of nations, that it is inherent in the nature of sovereignty not to be amenable to llic suit of any private person, without its own consent. This exemption is an' attribute of sovereignty, belonging to every state in the Union ; and was designedly retained by the national government. 3 Story's Com. § 1669. See ante, page 6, note (1) to Section 2. See also, 3 Story's Com. §§ 1668 to 1673. Serg't Con. Law. Intro. 15 to 18. The Federalist, No. 81. CJiisJiohn vs. Georgia, 2 Ball. 419, 478; 2 Cond. 635, 674. 1 Black. Com. 241 to 243. CoJiens vs. Virginia, 6 Whea. 380 ; Ibid. 411, 412. (4) A citizen of the District of Columbia is not a citizen of a state in the sense of the constitution, and entitled to sue as such in the courts of the United States. Hejphurn vs. EUzey, 2 Cra. 448 ; 1 Cond. 444. For many years it was held that a corporation aggregate was not a citizen, and could not litigate in the courts of the United States, unless in consequence of the citizenship of the indivi- duals who compose it, which character must be averred on the record. Hope Ins. Co. vs. Boardman, 5 Cra. 57 ; 2 Cond. 189. 10 JURISDICTION OF THE FEDERAL COURTS ART III. between citizens of different states, between (5) To cases Ijetwceii citizens Bank United States ys. Deveaux, 5 Cra. Gl ; 2 Cond, 189, of samo j,^^j. ^j Yicksbu7-g vs. Slocomh, 14 Peters, GO. But these cases were reviewed by the court in the latei' case of Louisville Railroad Co. vs. Letson, when after full argument and mature deliberation it was held, that they had been carried too far, and that a corporation created by a state to perform its functions under the authority of that state, and suable there only, though it may have membei's out of the state, was a per- son, thou"-h an artificial one, inhabiting and belonging to that state, and therefore entitled, for the purpose of suing and being sued, to be deemed a citizen of that state. 2 Howard, 497, 555. See also ante, page 6, note (1) to Section 2. (5) The courts of the United States have jurisdiction in a case between citizens of the same state, if the plaintiffs are only nominal parties, suing officially for the use of an alien. Brown vs. Strode, 5 Cra. 303 ; 2 Cond. 2G5. CJiappedelaine vs. Dichenaux, 4 Cra. 306 ; 2 Cond. 116. Childress ys. Emory. 8 Whea. 642 ; 5 Cond. 547. The Indian tribes are not Jhreign states in the sense of the constitution. They may more correctly, perhaps, be denomi- nated domestic dependent nations. They cannot, therefore, maintain an action in the courts of the United States. The Chcrbhee Nation vs. State of Georgia, 5 Pet. 1, Marshall, John- son and Baldwin agreeing : Thompson and Story dissenting. Under this clause the court has jurisdiction, where one party claims land vmder a grant from the state of New-Hampshire, and the other under a grant from the state of Vermont, al- though at the time of the first grant Vermont was a part of New-Hampshire. Town of Pawlet vs. Clark, 9 Cra. 292 ; 3 Cond. 408. And the court has jurisdiction to ascertain the boundaries between two states. Although the constitution does not in terms extend the judicial power to all controversies between CONSTITUTIONAL PROVISIONS. 11 citizens of the same state claiming lands under sec ^ . — state claiming the States; yet it in terms exclutles none, whatever may he laii^ure out the justice due to others. 7th. To " controversies between two or more states;" because domestic tranquillity 12 JURISDICTION OF THE FEDERAL COURTS. ART III. grants of difTcrent states, and between a state, or ~ ' the citizens thereof, and foreign states, citizens or subjects. Sup. court: In nil cases (6) affecting ambassadors, other requires that the contentions of states should be peaceably ter- minated by a common judicatory ; and because in a free coun- try, justice ought not to depend on the will of either of the litigants. 8th. To " controversies between a state and citizens of another state ;" because in case a state, (that is, all the citizens of it,) has demands against some citizens of another state, it is better that she should prosecute their demands in a national court, than in the court of a state, to which those citizens belong ; the danger of irritations and criminations arising from apprehensions and suspicions of partiality being thereby obviated ; because, in cases where some citizens of one state have demands against all the citizens of another stale, the cause of liberty and the rights of men forbid that the latter should be the sole judges of the justice due to the former ; and true republican government requires that free and equal citizens should have free and equal justice. 9th. To " controversies between citizens of the same state claiming lands under grants of different states ;" because, as the rights of the two states to grant the lands are drawn in question, neither of the two slates ought to decide the controversy. 10th. To " controversies between a state or citizens thereof, and foreign states, citizens or subjects ;" because as every nation is respon.sible for the conduct of its citizens toward.! other nations, all questions touching the justice due to foreign nations or people, ought to be ascertained by, and depend on, national authority. Chis7iolm vs. State of Georgia, 2 Dall. 475 ; 1 Cond. 6, S. C. App. ; 2 Cond. 635, G71. See also "Supreme Court," note to Original Jurisdiction, postea. (6) But congress cannot assign to the supreme court origi- nal jurisdiction in any other cases than those specified in the CONSTITUTIONAL PROVISIONS. 13 public ministers and consuls, and those in which sec 2. a state shall be a party, the siiprenne court shall ori-mai ana constitution. The dislribiition of original and apjit-llatc juris- diction in lliat insliunicnt cannot be altered or distributed, nor the judicial power exercised in its appellate form in those rases in which original jurisdiction has been conferred. Mar- hiiry vs. Madison, 1 Cra. 137 ; 1 Cond. 267, 281. Cohens vs. Virginia, G Whea. 264; 5 Cond. 90, 112. Osborn vs. Bank of United Slates, 9 A¥liea. 738; 5 Cond. 741, 748. The supreme court has appellate jurisdiction both as to law and fact, in all cases mentioned in the third article of the constitution, other than those in which their jurisdiction is ex- clusive or original, with sucli exceptions, and under such re- gulations as Congress shall make. Wilson vs. Mason, 1 Cra. 45 ; 1 Cond. 242, 245. Its appellate power extends to every case not excepted by congress. Such power is not given by the judicial act, but by the constitution ; though they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject. Durosscau vs. The United States, 6 Cra. 307 ; .2 Cond. 380, 382. Its original jurisdiction is founded on the character of the parties to a suit — its appellate jurisdiction on the character of the case. Cohens vs. Virginia, 6 AVliea. 264 ; 5 Cond. 90. The appellate jurisdiction will only be exercised in cases where it is given by statute. The constitution and law must concur in f»rder to vest it. United States \s. Moore, 3 Cra. 159; 1 Cond. 4S0. Durosseau vs. United States, Cra. 307; 2 Cond. 3S0. Wilson vs. Mason, 1 Cra. 91. Wiscart vs. Daiivloj, 3 Dall. 321 ; 1 Cond. 144. Where the words of the constitution confer only appellate jurisdiction on the supreme court, original jurisdiction is most clearly not given. But where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally docs not necessarily negative the power to decide upon it, on 14 JURISDICTION OF THE FEDERAL COURTS. AKT 111. have original jurisdiction. In all other cases be- ajMieiiate fofc mentioned, the supreme court shall have iiou!"^ op/jcllate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make. Climes, The trial (7) of all crimes, except in cases of an appeal, if it may originate in a different court. Cohens vs. State of Virginia, 6 Whea. 2G4 ; 5 Cond. 90. See also " Supreme Court," note to " Original Jurisdiction," postea. (7) The clause of the act 1790, ch. 3G, § 8, providing that " the trial of crimes committed on the high seas, or in any- place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into w^hich he may be first brought," applies only to ofiences committed on the high seas, or in some river, haven, basin, or bay, not within the jurisdiction of a particular state, and does not apply to the territories of the United States, where regular courts for the trial of offences are provided by congress. Ex parte Bollman and Swartwout, 7 Cra. 75 ; 2 Cond. 33. Where two or more persons are jointly charged in the same indictment, with a capital offence, such persons have not a right, by the laws of the country, to be tried severally, sepa- rately and apart, the counsel for the United States objecting thereto. Such separate trial is a matter to be allowed in the discretion of the court before whom the indictment is tried. United States vs. Marchant, 12 Wliea. 480 ; 6 Cond. .'388, citing and approving Rex vs. NrMe, 9 Hargr. St. Trials ; S. C. 15 Howell's St. Trials, 731. A pardon must be brought before the notice of the court, by plea, motion or otherwise, or the judges cannot extend to the defendant its protection. A pardon is a deed, to the vali- dity of which delivery is essential ; and delivery is not com- plete without acceptance. It is considered as ii public law. United Slates vs. Wilson, 7 Pet. 150. CONSTITUTIONAL PROVISIONS. 15 impeachment, shall be by jury ; and such trial sec. 2. sliall be held in the state where such crime shall trial of, have been committed ; but when not committed ktcd."°" witliin any state, the trial shall be at such place or places as the congress may, by law, have directed. 16 JURISDICTION OF THE FEDERAL COURTS. AMENDMENTS TO THE CONSTITUTION. (I) Art. V. Indict- ment, when ne- cessary; no one to No person (2) shall be held to answer for a capital or otherwise infamous crime, unless on a (1) An amendment of the constitution is even higher autho- rity than the constitution itself, for it has the effect of control- ling and repealing its express provisions authorizing a power to be exercised, by a declaration that it shall not be construed to give such power. BingJiam vs. Cahot, 3 Dall. 382 ; cited by Baldwin J. in Johnson vs. Tomphins, Baldwin, 571, 598. It annuls all jurisdiction which the constitution grants, whe- ther past, present or future, which is contrary to the amend- ment; it arrests the action of even the supreme court, in cases depending before it prior to the adoption of the amend- ment, and operates as an absolute prohibition to the exercise of any other jurisdiction than dismissing the suit. B'mgliam vs. Cahot, 3 Dall. 382, 383 ; 6 Whea. 405, 409 ; 9 Whea. 868, cited in Bains vs. Schr. James and Catharine, Baldwin, 544, 561. (2) The term " jeopardy ^^ spoken of in the fifth amendment, means the acquittal or conviction of the prisoner, and the judg- ment of the court thereon. United States vs. Haskell and Francois, 4 Wash. 402, 410. Insanity of one of the jurors is good cause for discharging CONSTITUTIONAL PROVISIONS. V7 presentment or indictment of a grand jury, except art^v in cases arising in the land or naval forces, or in be twice the militia, when in actual service, m time oi jeopardy, war or public danger; nor shall any person be witness ... against subject for the same offence to be twice put in himself. jeopardy of life or limb ; nor shall be compelled, in any criminal case, to be witness against him- self; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. Art. VI. In all criminal prosecutions the accused shall Accused to • 1 1 1 IT '11 have 8pee~ enjoy the right to a speedy and public trial, by dy trial, to an impartial jury, of the state and district where- fronted with, the jury, without the consent of the prisoner or his counsel. Ibid. The (lischai'ge of a jury from giving a verdict in a capital case, without the consent of the prisoner, the jury being unable to agree, is not a bar to a subsequent trial for the same offence. But although the court have the authority so to discharge a jury from giving any verdict, the power ought to be used with great caution, under urgent circumstances and for very plain and obvious causes ; and in capital cases especially, the court should be very careful of taking from the prisoner any of the chances of his life. Vnitcd States vs. Perez, 9 Whea. 579 ; 5 Cond. 689. United States vs. Haskell and Francois, 4 Wash. 407. But a verdict regularly rendered upon a sufficient indict- ment, prevents a second trial. United States vs. Gibert, 2 Sum. 19. 2 ]8 JURISDICTION OF THE FEDERAL COURTS. ART. VI. in the crime shall have been committed, which and to district shall have been previously ascertained by iiesre^auJ law, and to be informed of the nature and cause Bista^Jc^e'^of of tlic accusatiou ; to be confronted with the wit- nesses agamst nim ; to nave compulsory process for obtaining witnesses against him ; and to have the assistance of counsel for his defence.(l) Art. VII. jary trial In suits at common law, (1) where the value where $20 iu coutrovcrsy shall exceed twenty dollars, the « at issue; . n ' ^ -i • ini i i right 01 trial by jury shall be preserved; and no (1) The amendments to the constitution, by which the right of trial by jury was secured, may, in a just sense, be well con- strued to embrace all suits, which are not of equity and admi- ralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. Parsons vs. Bedford, 3 Pet. 433, 447. (1) The seventh amendment to the constitution excludes tho jurisdiction of the admiralty over contracts regulated by the common law ; (such as contracts for materials, labor or pro- visions, in building, equipping, furnishing or provisioning a ship when in our ports). Suits upon such contracts are appropriately " suits at common law," within the terms of tho amendment, and are cognizable only in courts of common law. Bains vs. Schr. James and Catharine, Bald. 544, 566, 568. This position is, however, opposed by the case of Davis vs. A New Brig, Gilpin, 471, and 27ic Jerusalem, 2 Gall. 347. The term "suits at common law," in the seventh amend- ment, means the same as " cases in law," in the third article of the constitution. Baker vs. BiddJc, Baldwin, 394, 405. CONSTITUTIONAL PROVISIONS. 19 fact tried by a jury shall be otherwise re-examiu- art. vil ed in any court of the United States than accord- rmding of ins to the rules of the common law. rLvicwtd. Art. VIII. Excessive bail (1) shall not be required, nor ex- Bail an.i -, . , I I I fiiii-snot fo cessive lines miposed ; nor cruel and unusual be excts- punishment inflicted. punish-*' 111 cut una- I EuaL The right of trial by jury forbids a nonsuit, except at con- sent of plaintiff. Doc vs. Gnjmes, 1 Pet. 469, Dc Wolf vs. Raband, 1 Pet. 476. Crane vs. Blorris' Lessee, 6 Pet. 598. By the adojition of this amendment, the people of the states and Congress have declared, that the right of jury trial shall depend neither on legislative or judicial discretion. It pre- serves the right of jury trial against any infringement of any department of the government; and the 16th section of the judicial act of 1789 prohibits all courts from sustaining a suit in equity, wliere the remedy is complete at law. Baher vs. Biddle, Baldwin, 394, 404. See also, Parsons vs. Bvdjord, 3 Pet. 446, 447. See, also. Powers in Common, " Equity Jurisdiction," note (1), and " Trials of Issues of Fact," and notes. (1) The courts of the United States, though not expressly invested witli such power by statute, have necessarily, from the duties assigned to them, the power to commit persons charged with an offence against the United States, and to take bail in such case. United States vs. Burr, 2 Robertson, 80. The supreme court may bail a person committed for trial on a criminal charge by a district judge. United States vs. Hamilton, 3 Dall. 17. The circumstances of a case must be very strong, which will, at any time, induce a court to admit a person to bail, who 20 JURISDICTION OF THE FEDERAL COURTS. ART^xi. Art. XL er'liorio' The judicial power (1) of the United States shall extend J^(-^|^ j^q coiisidcred to extend to any suit in law or stands chai-ged with high treason. United States vs. Stewart, 2 Dall. 343. On a question of holding to bail, the court will not travel into the merits of the controversy, where the cause of action is apparent, though liable to controversy. Parasset vs. Gautier, 2 Dall. 330. The humanity of the law, no less than the feelings of the court favor the liberation of a prisoner on bail, who is pi'oved to be suffering under a disease, which may be ultimately dan- gerous from his being kept in confinement. It is not necessary that the danger should be immediate or certain ; if confine- ment is injurious and may bo fatal, and a bill of indictment being found, the court will not go into an examination of the evidence, for the purpose of taking bail. United States vs. Jones, 3 Wash. 224. The eighth amendment, which declares that excessive fines shall not be imposed, is addressed to courts of the United States exercising criminal jurisdiction, and is doubtless manda- tory to, and a limitation upon their discretion. But the supreme court have no appellate jurisdiction to revise the sentences of inferior courts in criminal cases; and cannot, even if the ex- cess of the fine was apparent on the record, reverse the sen- tence. Ex parte Watkins, 7 Pet. 5G8, 573, 574. See also generally United States vs. French, 1 Gall. 1. Oli- ver vs. Parish, 2 Wash. 462. Bowerbank vs. Paine, Ibid. 464. Post vs. Sarmiento, Ibid. 189. Craig vs. Brown, Pet. C. C 352. Ilayton vs. Wilkinson, 1 Hall's Am. L. Journal, 260. (1) Before the adoption of the 11th amendment of the constitution, a suit might be brought in the suj)reme court ao-ainst a state, b/"a citizen of another state. Chisholm's ExWs vs. State of Georgia, 2 Dall. 419 ; 1 Cond. 6. CONSTITUTIONAL PROVISIONS. 21 equity commenced or prosecuted against one of art^xl the United States by citizens of another state, or t.,«MiiHi,y hy citizens or subjects of any foreign state. agHiu»t a But since the adoption of that amendment, there cannot be exercised any jurisdiction, in any case past or future, in which a state was sued by the citizens of another stale, or by citizens or subjects of any foreign state. IlolUngsworth vs. State of Virginia, 3 Dall. 378 ; 1 Cond. 1G9. The right of a state to assert as a plaintiff any interest it may have in a subject, which forms a matter of controversy, is not affected by the eleventh amendment. United States vs. Judge Peters, 5 Cra. 115 ; 2 Cond. 202. See also Cohens vs. Virginia, G Whea. 2G4 ; 5 Cond. 90, IIG. Jurisdiction is neither given nor ousted by the relative situa- tion of the parties in interest, but by the relative situation of the parlies named in the record; consequently the eleventh amendment to the constitution is limited to those suits in which a state is a party on the record. Bank United States vs. Bank Georgia, 9 Whea. 904 ; 5 Cond. 794. JURISDICTION FEDERAL COURTS OF THE UNITED STATED POWERS IN COMMON. JURISDICTION FEDERAL COURTS. POWERS IN COMMON. TO ISSUE "WRITS GENERALLY. All of the courts (1) of the United States shall ^^Tl!'"'- have power to issue writs of habeas corpus, scire \°^^^lll^ as corjnit. (1) Under the clause of the judiciary act, authorizing courts to issue writs, " which may be necessary for the exercise of their respective jurisdictions," the courts may devise j>roccss to bring any person before them for any offence of which they have jurisdiction. United States vs. Burr, 2 Robertson, 481. Dupon. on Juris. App. 228. The i)hrasc, "agreeable to the principles and usages of law," means those general principles and those general usages which are to be found, not in the legislative acts of any particular state, but in that generally recognized and long established law which forms the substratum of the laws of every state. United States vs. Burr, 2 Robertson, 481 ; Dupon. on Juris. App. 229. Manda7)ius. On a mandamus a superior court will never direct in what manner the discretion of an inferior tribunal shall be exercised ; but they will, in a proper case, require an inferior court to 26 JURISDICTION OF THE FEDERAL COURTS. ACT, 1789. facias, and all other writs not specially provided scire facias foi by statutc, wliicli Hiay be necessary for the and other writs. decide. N. York Life and Fire Ins. Co. vs. Wilson, 8 Peters, 291. Same vs. Adams, 9 Peters, 571. Bank of Columbia vs. Sweeny, 2 Peters, 567. See also Ex 2)arte Whitncij, 13 Pet. 404, 407-8. A writ of mandamus is not a proper process to correct an erroneous judgment or decree rendered in an inferior court. Ex parte Hoijt, 13 Peters, 279, 290. The United States courts have no power by mandamus to compel a ministerial officer of the United Stales to perform an act enjoined on him by law. Mclntyre vs. Wood, 7 Cra. 504 ; 2 Cond. 588. McCluny vs. Silliman, 2 Whea. 369 ; 4 Cond. 162. Ministerial officers of the United States are beyond the reach of this process, except in the District of Columbia, where the circuit court of that district, in its peculiar power, have the power to issue this writ to officers of the United States, where an act to be done is expressly enjoined by law. Kendall vs. The United States, 12 Pet. 524. Supreme Court. — As to when the writ of mandamus issues from this court, see title " Supreme Court," " Mandamus," postea. Circuit Courts. — The power of the .circuit courts to issue the writ of mandamus, is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. Mclntyre vs. Wood, 7 Cra. 504 ; 2 Cond. 588. Smith vs. Jackson, Paine, 453. The circuit courts have no power to issue this writ after the practice of the King's Bench. Smith vs. Jackson, Paine, 453. A circuit court may issue this writ to a collector, command- ing him to grant a clearance. Gilchrist vs. Collector of Charles- ton, 1 Hall's Adm. Law Journal, 429. A circuit court may issue a mandamus to a state court which refuses to transfer a cause under the act of Congress. Sprag- POWERS IN COMMON. 27 exercise of tlieir respective jurisdictions, and act^tbo. agreeable to the principles and usages of law. Act. 1789, ch. 20, § 14. gins vs. County Court of Hump7ireys, 1 Cooke, IGO, cited in note 1 ConJ. 21 f Brovm vs. Cay>m, 4 Hen. & Munf. Va. 173. Where a district court refuses to give judgment, a manda- mus lies to compel it. Livingston vs. Dorgenois, 7 Cra. 577; 2 Cond. 618. But a mandamus will not lie to a district court to compel it to expunge amendments imj^operly made in the record return- ed to the circuit court on a writ of error. S?nitk vs. Jackson, Paine, 620. District Courts. — The power of the district courts to issue the writ of mandamus does not extend beyond those cases in which it is necessary for the exercise of their acknowledged jurisdiction. Executions. The fourteenth section of the judiciary act gives to the courts of the Union, respectively, the power to issue executions on their judgments. But this section only provides for issuing the WTit, and prescribes no rule for the conduct of the officer while obeying its mandate. Nor has the 34th section any ap- plication to the practice of the court, or to the conduct of its officer, in the service of such a writ. Waijman vs. Sout/iard, 10 Whea. 1 ; 6 Cond. 1, 5, 6. Bank of United States vs. Hal- stead, 10 Whea. 51 ; 6 Cond. 22, 25. The process acts of 1792 and 1828 regulate the practice respecting executions issuing from the coui'ts of the United States, and adopt the practice of the supreme courts of the states, as the rule for governing proceedings on such executions, subject to such alterations as the courts of the United States may make, but not subject to the alterations which have since taken place in the slate law and practice. Wayman vs. Southard, 10 Whea. 1 ; 6 Cond. 1, 9 et scq. 28 JURISDICTION OF THE FEDERAL COURTS. ACT, 1789. TO ISSUE WRITS OF HABEAS CORPUS. Habeas Eitlicr (1) of the jiistices of the supreme court, corpus, wheumay as wcU Qs judgcs oi' the district courts, shall have issue. (1) No law of the United States prescribes the cases in which this great writ shall be issued, nor the power ^f the court over the paity brought up by it. The term is used in the constitution as one which was well understood ; and the judicial act autho- rizes this court and all the courts of the United States, and the judges thereof, to issue the writ " for the purpose of enquiring into the cause of commitment." Ex parte Watkins, 3 Pet. 202. This writ is in the nature of a writ of error. Ibid. The authority to issue writs of habeas corpus, under the 14th section of the act of 1790, (1789 ?) is restricted to cases where the prisoner is confined under or by color of the authority of the United States ; or is committed for trial before some court of the United States ; or is necessary to testify. Exjmrte Ca- brera, 1 Wash. 232. The power to issue writs of habeas corpus, " for the purpose of enquiring into the cause of commitment," applies as well to cases of commitment under civil as those of criminal pro- cess. Ex parte Randolph, 2 Mar. Dec. 447, 475, 477, 487, overruling Ex parte Wilson, 6 Cra. 52 ; 2 Cond. 300. See also Ex parte Bollman, 4 Cra. 44 ; 2 Cond. 33. Nature and powers of the wiit of habeas corpus. Ex parte Wathins, 3 Pet. 193, 202. Supreme Court. — As the jurisdiction of the supreme court is appellate, it must be shown that the court has power to award a habeas corpus, before one will be granted. Ex parte Milburn, 9 Pet. 704. Whether the supreme court may issue the writ of habeas corpus, in any case, turns upon the fact, whether it is the exer- cise of original or appellate jurisdiction. Ex parte Wathins, 7 Peters, 5G8, 572. A habeas corpus may issue from this court, where a person is imprisoned under the warrant or order of any other court POWERS IN COMMON. 29 power to grant writs of habeas corpus for the pur- act. i789. of the United States. Ex parte Kearney, 7 Wliea. 38 ; 5 Cond. 225. Ex iHirtc Wat/cins, 7 Pot. 5G8 ; but not where tlie per- son is untler confinement under the process of a state court. United States \s. French, 1 Gall. 1 \ 1 Kent Com. 412. The writ will not issue in the case of a party imprisoned for contempt. Ex parte Kearney, 7 Whea. 38 ; 5 Cond. 225. See also Ex parte Burford, 3 Cra. 448; 1 Cond. 594. Ex parte HamilUm, 3 Dall. 17 ; 2 Cond. 54, note. Holmes vs. Jennison, 14 Pet. 540. Ex parte Watkins, 7 Peters 568. Circuit Courts. — Where the principal is confined in jail, under the mesne civil process of a state court, the circuit court has no authority to issue a habeas corpus for the purpose of bringing him in to bo surrendered in discharge of his bail. TJni' ted States vs. French, 1 Gall. 2, Where a principal is committed to jail according to the local law of a state, by his special bail, given under the 12th section of the judiciary act of 1789, the circuit court will grant a habeas coqius to bring such party into court, to be surrendered in discharge of his bail, such commitment not being a dis- charge. Comstock vs. Scagreaves, 1 Story, 546. On a habeas corpus, the court cannot look behind the sen- tence of the court, where it had juiisdiction. Johnson vs. United States, 3 McLean, 89. The court may enquire, on a habeas corpus, whether a capias was rightfully issued. Nelson vs. Cutter, 3 McLean, 326. A circuit court cannot issue a writ of habeas corpus to dis- charge a secretary of legation from process issued under the authority of a state. Ex parte Cahrera, 1 Wash. 232. See also Ex parte Smith, 3 McLean, 121. United States vs. Green, 3 Mason, 482. District Courts. — See also as to the power of district courts to issue habeas corpus, in reflation to officers, &:c., in the army being arrested for debt. Act. 1799, ch. 48, § 4, and act. 1802, ch. 9, § 26. Conk. Trea. Ed. 1842, 130, 7iotc a. 30 JURISDICTION OF THE FEDERAL COURTS. ACT, 17S9. pose of an enquiry into the cause of commit- iiabeas Dient. Pfovided, that writs of habeas corpus shall wCnot in no case extend to prisoners in jail, unless where o issue, tijey ai-e in custody under or by color of the au- thority of tlie United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. Act, 1789, ch. 20, § 14. ACT^i833. ^ later act provides, that either of tlic justices in ail cases of the siiprcme court, or a judge of any district 7oal»lm. court of tliG United States, in addition to the au- der1aw")r tliorlty already conferred by law, shall have of 'the'ih power to grant writs of habeas corpus, in all cases States. ^^ ^ prisoner or prisoners, in jail or confinement, where he or they shall be committed or confined under, or by any authority or lav/, for any act done or omitted to be done, in pursuance of a law of the United States, or any order, process or decree of any judge or court thereof, any thing in any act of Congress to the contrary notwith- standing. Act, 1833, ch. 57, § 7. ACTvi&i-'. And by a still later act it is provided, that either May issue ^f ^jjg iusticcs of tlic suDrcmc court of the United when a •J '■ person is gfatcs, or iudiTe of any district court of the United connued ^ o ^ j for an act gtatos, lu whicli a prisoucr is confined, in addition dune or ^ omitted fQ fPje authority already conferred by law, shall under a j j j foreigii have pov/er to ffrant writs of habeas corpus in all authoniy. * _ _ ... ca.ses of any prisoner or prisoners in jail or con- finement, where he, she, or they, being subjects or citizens of a foreign state, and domiciled there- in, shall be committed or confined, or in custody, POWERS IN COMMON. 31 under or by any authority or law, or process act, 1812. founded thereon, of the United States, or of any one of them, for or on account of any act done or omitted under any alleged right, title, autho- rity, privilege, protection, or exemption, set up or claimed under the commission, or order or sanc- tion, of any foreign state or sovereignty, the vali- dity or effect whereof depends upon the law of nations, or under color thereof Act, 1842, c//. 527. This act is sometimes known as the McLeod act ; and was passed at or about the time of his arrest and trial in New- York. TO ISSUE WRITS OF NE EXEAT AND INJUNCTION. Writs of JVc Exeat (1) and of Injunction (2) may actnjtss. be granted by any judge of the supreme court, in ^yr'^'^ "*" and In- junctiou. Ne Exeat. (1) The district judges of the courts of the United States have no power to issue writs of nc exeat. Gonon vs. Bocca- line, 2 \V;ish. 130. The allidavit upon wliich this writ will is§ue, should be posi- tive to a debt, or to the belief of the plaintiff, that a certain balance of account was due. Ibid. Injunction. (2) There is no power, the exercise of which is more deli- cate, which requires greater caution, deliberation and sound discretion, or more dangerous in a doubtful case, than the issuing an injunction. It is the strong arm of equity, that ought never to be extended, unless to causes of great injury, where courts of law cannot aflbrd an adequate and common- 32 JURISDICTION OF THE FEDERAL COURTS. ACT, 1783. cases where they might be granted by the su- Ne Exeat premc or circuit court ; but no writ of nc exeat not grant- ed, except — — — — Buitisconi- nieuced. siirate remedy in damages. Bonaparte vs. Cain, and Amb. Railroad, 1 Bald. 205, 218. Truly vs. Wauzer, 5 How. 141, 142. A court of the United States will not enjoin proceedings in a state court. Diggs vs. Woolcoot, 4 Cra. 179 ; 2 Cond. 75. ClarJc vs. Rist, 3 McLean 494. Kittredge\s. Emerson, 7 Law Rep. 312, S. C. ; 3 Leg. Obs. 166 ; and a state court has no juris- diction to enjoin a judgment of the circuit court of the United States. McKinnan vs. Voorhees, 7 Cra. 278. Injunctions cannot be granted in the courts of the United States without notice, and hence all of them are special. Pernj vs. Parker, 1 Wood. & Min. 280. It is no objection to an injunction, that the defendant acts under the authority of a law, if he exceeds or abuses his power, or if the law is unconstitutional. Bonaparte \s. Cam, ^ Am. Railroad, 1 Baldwin, 205, 218. An injunction does not necessarily act as a supersedeas ; but it may furnish a ground for the court at law to stay the exe- cution. Boyle vs. Zacharie, 6 Pet. 648, 658. An injunction will not lie against the officers of the govern- ment, against performing any merely ministerial act — as to prevent the secretary of the treasury from paying money or- dered by law. McElrath vs. Mcintosh, in Cir. Ct. Dist. of Columbia in 1848. 4 Law. Rep. N. S. 400. See also generally the above cases, and also Irrin vs. DixoUt 9 How. 10. Oshornc's Case, 9 Whea. 733. Arynstrong vs. United States, 1 Pet. C. C. 46. Terrett vs. Taylor, 9 Cra. 43, 45. Alexander vs. Pendleton, 8 Cra. 422 ; 3 Cond. 216, 220. Atlcins vs. Dick, 14 Pet. 114. Supreme Court. — 'An injunction was granted on the appli* cation of the state of Georgia, to stay money in the hands of a marshal, claimed by the state. Georgia vs. Brailesford, 2 Dall. 402 ; 1 Cond. 3. POWERS IN COMMON. 33 shall be granted unless a suit in equity "be com- act^tw menced, and satisfactory proof shall be made to If the case be clear, a court of equity will interpose to quiet title. Alexander vs. Pendleton, 8 Cra. 462 ; 3 Cond. 216. An injunction will be refused where parties claim lands in a territory in dispute between two states. New- York vs. Con- necticut, 4 Dall. 1 ; 1 Cond. 203. The prohibition in the judiciary act, that writs of injunction shall not be ^-anted " without reasonable notice to the adverse party," extends to injunctions gi'anted by the supreme court, or the circuit court, as well as to those granted by a single judge. New-York vs. Conn. 4 Dall. 1 ; 1 Cond. 203. A shorter notice is reasonable notice, on an application for an injunction to a court, than on an application to a single judge. What will be reasonable notice, until a general rule shall be settled, will depend on the particular circumstances of each case. The particular circumstances of each case must be regarded. Ibid. A judge of the supreme court may. in vacation, allow an injunction in these cases only where it may be granted by the raiprenie court, or a circuit court. Licingston vs. Van Mycr, 4 Hall's Amer Law Jour. 59, cited in note, 1 Cond. 204. A court of equity will interpose by injunction to prevent the transfer of a specific thing, which, if transferred, will be irre- trievably lost to the owner, such as negotiable securities and Gtocks. Oshorn vs. Bank of United States, 9 Whea. 738 ; 5 Cond. 741. An injunction may issue on a judgment obtained on the law side of the circuit court, to stay proceedings on the judgment, althoujih a writ of en-or had been issued in the case from the Guprcme court. Parker vs. Cir. Ct. of Maryland, 12 Wliea. 561; 6 Cond. 644. CiRcrrr Court. — The pruhibilion contained in the judiciary act, thai iiijimcrions shall not be granted without notice, &c., extends to inj mictions gi'anted by the supreme and circuit 34 JURISDICTION OF THE FEDERAL COURTS. ACT, 179?. the court or judge granting the same, that the ~ defendant designs quickly to depart from the courts, as well as to those granted by a single judge. New- York vs. Connecticut, 4 Dall. 1 ; 1 Cond. 203. Can a circuit judge allow an injunction out of tlie Lounds of his own circuit — Quere ? In an application for an injunction in the case of Morse vs. O'Reilly, made at -Washington, D. C, in 1S4S, to restrain the defendant from exercising certain acts in Kentucky, Judge Catron is understood to have held that a circuit judge had no such power out of his own circuit. , There were other points, however, in the case. A circuit court will grant an injunction pro tanto to so much of a judgment as had been recovered by surprise against the defendant, he having a good defence, but no notice of the claim. Bell vs. Cunningliam, 1 Sum. 89. See also Dunlap vs. Stetson, 4 Mason, 349. A perpetual injunction was granted, in order to stay pro- ceedings on a judgment at law, obtained in a suit instituted in the name of a person not interested, whose name v/as used only for the purpose of preventing a defence, which the de- fendant had against the real plaintiff in interest, Greenleaf \&. Maker, 2 Wash. 393. An injunction may be issued to restrain the performance of an official act, by an officer of a state, if the state law requir- ing him to perform the act is repugnant to the constitution of the United States. Oshorn vs. Bank of United States, 9 Whea. 738 ; 5 Cond. 741. Cases in which, and tei-ms on which, injunctions, in cases of alleged infringements of patent rights, are granted. Ogle vs. Ege, 4 Wash. 584. Isaacks vs. Coo2)er, 4 Wash. 259. General cases for granting injunctions. Bonaj)arte vs. Cam. and Amh. Railroad, Bald. 205, 217. See, also, Green vs. Hanherry's Ex'rs, 2 Mar. Dec. 403. Strodes vs. Patten, 1 Mar. Dec. 328. Poor vs. Carlcton, 3 Sum. 70. Spooner vs. McCmmcll, 1 McLean, 238. Boyd vs. POWERS IN COMMON. 35 United States; nor shall a writ of injunction be act^ito. o-ranted to stay proceedings in any court of a iMj..n,ii<.n state; nor shall such writ be granted in any case «'i «x(ei.t without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving for the same. Act, 1793, ch. 22, § 5. District judges may also grant injunctions to act^so?. to operate within their respective districts, in all cases which may come before the circuit courts; but the same continue only until the next term of the circuit court, unless so ordered by the cir- cuit court, and cannot be issued where the party has had reasonable time to apply to the circuit court. Act. 1807, ch. 13. Parker vs. Cir. Ct. Manjland, 12 Whea. 561; Q Cond. 644. Injunctions may also be granted by a judge of actmsso. the supreme court, in cases of issuing warrants of distress from the Treasury Department, where any party feels himself aggrieved by the action of the district judge. Act. 1820, ch. 107, § 6. TO ORDER, PRODUCTION OF PAPERS. ACT, 1789. All of the courts (1) of the United States shall ^ — ^ ' rrodnc- have power in the trial of actions at law, on mo- ii«>u «» pa- ^ , pcis may tion and due notice thereof being given, to require Brown, 3 McLean, 295. Clurlc vs. Rist, Ibid. 494. Ilaiglit vs. Proprietors Morris Aqueduct, 4 Wash. 601. (1) Tlio clause, "in cases under circumstances where tliey might be compelled to pi-oduce the same by the ordinai-y rules of proceeding in chancery cases," was intended as a substitute, 36 JURISDICTION OF THE FEDERAL COURTS. ACTureo. ^jj(3 parties to produce books or writings in their beconipei- posscssion or powcr, which contain evidence per- ofiiotiro- tincnt to the issue, in cases and under circum- ducing. stances where they might be compelled to pro- duce the same by the ordinary rules of proceed- ing in chancery; and if a plaintiff shall fail to comply with such order to produce books or'^writ- ings, it shall be lawful for the courts respec'ively, on motion, to give the like judgment for the de- fendant as in cases of nonsuit ; and if a defen- dant shall fail to comply with such order, to pro- duce books or writings, it shall be lawful for the courts respectively, on motion, as aforesaid, to give so far as written documents are concerned, for a bill of dis- covery in equity, in aid of jurisdiction at law. Guyger's Les- see vs. Gaijger, 2 Dall. 332\ Conk. Trea., Ed. 1842, 263. (2) CiucuiT Court. — It is sufficient for one party to suggest that the other is in possession of a paper, which he has given him notice to produce at the trial, without offering proof of the fact. If the possession is denied, the affirmative must he proved, to enable the party to derive any advantage from the non-production. Hylton vs. Brotvn, 1 Wash. 298, 300. Upon a notice of the defendant to the plaintiff", to produce a title paper to the land in dispute, which is to defeat the plain- tiff^'s title, the court will not compel such production unless the defendant first shows a title to the land. A right of possession is not sufficient. But it is sufficient if he show title to the land, though none is shown to the papers. Ibid. When either party wants papers in the possession of the other party, he must give notice to produce. If not produced, he may give infeiior evidence of their contents, or argue against the party not producing them. But in either case, he must show them in the possession or power of the other party, and give evidence of their contents. The oath of the j)arty, that he POWERS IN COMMON. 37 judgment against him or licr by default. (2) Act aut.itw. 1789, c/i. 20, § 15. has them not, may be met by contrary proof of two witnesses. Bas vs. iitcc/c, 3 Wash. 38^, 386. Whenever a judgment by default, or a nonsuit, is intended to be claimed, the notice to produce papers must give the party information that it is intended to move for a nonsuit, or a judgment by default, as the case may be. Ibid. To entitle the defendant to nonsuit the plaintiff for not pro- ducing papers which he was noticed to produce, the defendant must iirst obtain an order of tlie court under a rule that they should be produced. Eut this order need not be absolute, but may be fiis/.. Dunham vs. Riley, 4 Wash. 126. A notice to produce, at the trial, all papers, letters and books in one's possession, relating to moneys received by him under a particular award, is sufficiently specific. The oath of the party, that he had not such a letter in his possession, or had diligently searched for it, and could not find it, is sufficient to prevent secondary evidence of its contents. Party cannot be asked, if he never received such a letter. Vasse vs. MlJJlin, 4 Wash. 519, 520. Before thi; jury arc sworn, and the trial commenced, it is too soon for a parly to call for a paper, which the othei- party has been nolilied lo produce. Hijlton vs. Brown, 1 Wash. 298. The afiidavlt of a party interested, taken without cross- examination, is competent evidence on a motion for an order on the opposite party, to produce books and writings, under this act. United States vs. 28 Packages of Pins, Gilpin, 306. District Court. — A proceeding in rem is not within the provisions of the act of 1789, which authorise an order to produce books and writings, in an action at law. United States vs. Twenty-eigJit Packages, Gilpin, 306, 310, 315. A court of chancery would not comjiel a party to produce evidence which would subject him to a forfeiture. Ibid. A judgment, as by default, could not be entered against a defendant in a proceeding in rem. Ibid. 38 JURISDICTION OF THE FEDERAL COURTS. ACT. 1739. TO SUSTAIN SUITS IN EQ.UITY. Suits ill Suits in equity (1) shall not te sustained in equity, a. j \ ^ when can- either of the courts of the United States, in any notbesns- i • i taiued. case wherc plain, adequate and complete remedy may be had at law. Act, 1789, ch. 20, § 16. (1) The equity jurisdiction of the courts of the United States is independent of the local law of any state, and is the same in nature and extent, as the equity jurisdiction of Eng- land, from whence it is derived. Therefore it is no objection to this jurisdiction, that there is a remedy under the local law. Gordon vs. Hohart, 2 Sum. 401, 405. Mayer vs. Foulkrod, 4 Wash. 354. Fletcher vs. Morey, 2 Story, 553. Whenever a court at law is competent to take cognizance of a right, and can afford a " jjlain, adequate and complete remedy," the plaintiff' must proceed at law, because the defen- dant has a constitutional right of trial by jury. Baker v?. Biddlc, 1 Bald. 394, 405. Andreivs vs. Solomon, Peters C. C. 188. United States ws. Meyers, 2 Mar. Dec. 516. If the remedy is doubtful, difficult, not adequate to the sub- ject, not so com2:)lcte as in equity, not so efficient and practi- cable to the ends of justice and its prompt administration, equity jurisdiction is not precluded. Ibid. 408. See also 9 Whea. 842. Boyce's Ex'rs vs. Grundy, 3 Pet, 215, Har- rison vs. Rowan, 4 Wash. 202, 205, The 16th section is merely declaratory, making no altera- tion whatever in the rules of equity on the subject of legal remedy. Boyce's Ex'rs vs. Grundy, 3 Pet. 210, 215. The 16th section of the judiciary act is a declaratory act, settling the law as to the cases of equity jurisdiction, in the nature of a proviso, limitation or exception to its exercise. Balicr vs. Biddle, 1 Bald. 394. Though the rules and principles established in the English Chancery at the Revolution are adopted in the federal courts, the changes introduced there since then are not followed here, POWERS IN COMMON. 39 TO GRANT NEW TRIALS. ACTJTW All of the courts (1) of the United States shall IZhli'"^' have power to grant new trials, in causes where "au*ied especially on matters of jurisdiction, as to which the IGth sec- tion is imperative. iZ>/(Z. 394, 411. See Cat^cart vs. Robinson, 5 Pet. 264, 280. Mai/er vs. Foulkrod, 4 Wash. 349, 355. If a case is cognizable at common law, the defendant has a right to trial by juvy, and a suit cannot be maintained in equity. If the case is cognizable in equity, the defendant has ihb right to answer on oath, and have the benefit of it as evidence in his favor, and he cannot in such a case be sued at law. Baker vs. BhUle, Baldwin, 394, 404, 405, 407. The equity practice and mode of proceeding was fixed by the act of 1792, subject only to be changed by rules of the in- ferior courts, or of the supreme courts, and cannot be affected by state laws, either prior or subsequent to the act of 1792. Maijcr vs. FonlJa-od, 4 Wash. 349. Sec also " Constitutional Provisions," Trial hy Jury, page 17, and this same division, Trial of Issnes of Fact, postca. (1) \\'hcn a verdict in favor of the plaintiff is reversed by the supreme court, on a bill of exceptions to instructions to the jury, there must be a new trial awarded by the court below. Hudson vs. Gucsticr, 6 Cra. 281 ; 2 Cond. 374. Where evidence is important in its bearings, and not clearly irrelevant, it is better to admit it at the trial, so as to avoid a motion for a new trial, in case of its rejection. Crocker vs. Lewis, 3 Sum. 1. A niution for a new trial docs not suspend the entering of judgment, but execution will be stayed on application to the court. Arnold vs. Jones, Bee, 104. Motion to review a decree must fail after a writ of error is lodged, unless error appear on the face of the record, or new matter is discovered since the decree. Mc Gratli vs. Canda- lero, Bee, 64. 40 JURISDICTION OF THE FEDERAL COURTS. ACT, 1789. there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. Act, 1789, th 20, § 17. A new trial will not be granted for surprise on account of new evidence, whenever, by reasonable diligence, it could have been previously obtained. Washhurn vs. Gould, 3 Story, 122. The circuit court cannot rehear a cause at a term subsequent to that in which the cause was finally decided. The Avery, 2 Gall. 386. Hudson vs. Guestier, 7 Cra. 1. Rehear in gs are in the sound discretion of the court. Daniel vs. Mitchell, 1 Story 198. A new trial will not be allowed merely to let in new cumu- lative evidence. Alsop vs. Com. Ins. Co. 1 Sum. 451, 476 and cases there cited. S. P., Ames vs. Howard, Ibid. 482. A new trial will not be granted in a capital case, after a ver- dict regularly rendered upon a sufficient indictment. But it may be granted where the jury has been discharged from giv- insr a verdict. United States vs. Gihert, 2 Sum. 19. Can the couits of the United States grant new trials in the cases of misdemeanors ? Query. Ibid. An opinion has however been expressed by McLean, J., holding that there is no constitutional inhibition to the exer- cise of such a power, and that the courts of the United States have power to gi-ant new trials in criminal cases as well as those that are capital, as in others. The position assumed, he sustained from the practice of the state courts, and of the su- preme court in United States vs. Fries, 3 Dall. 515. United States vs. Keen, 1 McLean, 429, 431-437. A new trial will not be granted against strong circumstances of equity, Dcnniston vs. McKcen, 2 McLean, 253 ; nor unless, in the opinion of the court, injustice has been done. United States vs. Martin, Ibid. 256 ; nor unless the rules of law and purposes of justice require it. Benedict vs. Davis' Ex'r, Ibid. 347. But where the verdict is upon two counts, (several having POWERS IN COMMON. 4 l TO ADMINISTKR OATHS. ACT, 1789. All of the courts (1) of tlic United States shall oaihs. . . jKiwerlo have power to impose and administer necessary aJminis- oaths and affirmations. Act, 1789, c/i. 20, § 17. tur. been ubandoned,) wliidi do not lay the foundation for llie da- mages found by the jury, a new trial will be granted. Jones vs. VanzcuiiU, 2 McLean, 612. When a bill of exceptions is taken at the trial, a motion for a new trial will not be entertained, unless the bill of excep- tions is waived. Cunningham vs. Bell, 5 Mason, IGl. The rules which govern in England, relative to new trials of issues out of chancery, arc not applicable to the circuit courts, where the same judges who direct, superintend the trial of such issues. Here the only question can be, are the judges satisfied with the verdict. Harrison vs. Rowan, 4 Wash. 32. See also Thomas vs. Hatch, 3 Sum. 171. Kohne vs. Ins. Com. North America, 1 Wash. 123. Cidhrcath vs. Gracy, Ibid. 198. Walher vs. ^rnith. Ibid. 202. Russel vs. Ins. Co., Ibid. 440. Marshal vs. Union Ins. Co., 2 Wash. 411. Gerhier vs. Emery, Ibid. 413. Blagg vs. Phoenix Ins. Co., 3 Wash. 58. Lonsdale vs. Brown, 4 Wash. 149. Lanning vs. Loudon, 4 Wash. 332. The courts of the United States have no authority to order a peremptory nonsuit against the will of the plaintiff He cannot be deprived of the right to a trial by jur^s which is secured him by law. Elmore vs. Grimes, 1 Peters, 4G9. De Wolf\». Rabaiid, 1 Peters, 476. Crane vs. Lessee of Morris, Sfc, 6 Peters, 598. (1) The power to administer oaths is also conferred on com- missioners by the act of 1812, ch. 25; and on notaries public, by the act of 1850, ch. 52. An aflidavit not sworn to before a judge or a commissioner (or notary public,) appointed to administer an oath, cannot be read in evidence. Ilaight vs. Prdj?rietors of Norris Aqueduct, 4 Wash. 601. 42 JURISDICTION OF THE FEDERAL COURTS. ACT. 1789 TO PUNISH CONTEMPTS. contem'ts, ^w of the coui'ts (1) of tliG United States shall piiuish- ^ meiit of. have power to punish by fine and imprisonment, (1) The courts of the United States have no common law jurisdiction of crimes against the United States. But inde- pendent of statutes, courts have power to fine for contempts, and imprison for contumacy, and to enforce obedience to their orders. United States vs. Hudson, 7 Cra. 32 ; 2 Cond. 405. The jDOwer of punishing contempts is an incident to courts of justice, y Trial of Smith c^ Ogdcn, 73, cited 2 Cond. 407, note. If a pei-son attached for a contempt, purge himself on oath, the court will not hear colhiteral evidence for the purpose of impeaching his evidence, and proceeding against him for the contempt. But if perjury appear, the party Avill be recognized to answer, &;c. United States vs. Dodge, 2 Gall. 313. Any publication pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, counsel, &c., with reference to the suits, or tending to influence the decision of the controversy, is a contempt of court, and punishable by attachment. Hollinsgwo7-th vs. Duane, Wallace 77, decision made in 1801. Unfair practices towards a witness who is to give testimony in court, or oppression under color of its process, although those practices and that oppression were acted out of the dis- trict in which the court is sitting, may be punished by attach- ment, provided the person who has thus demeaned himself comes within the jurisdiction of the court. 1 Burr's Trial, 352. It is not a contempt of court to serve a person, while attend- ing at the court as a party in a cause, or as a witness, with a summons. This privilege extends to exemption from arrest, and no further. BligMs ExWs vs. Fisher, 1 Pet. C. C. 41. But it is a contempt to serve process, either of summons or capias, in the actual or constructive presence of the court. lUd. POWERS IN COMMON. 43 at the discretion of said courts, all contempts of actj7*. authority in any cause or heaving before the same. Ac/, 1789, rA. 20, § 17. The power of the several courts of the United actm=3!. States to issue attachments and inflict summary J-;.";;/';;;;;," punishments for contempts of court, shall not be tempt oc- 1 *■ ^ curling in construed to extend to any cases except the mis- prescie oi court. behavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their offi- cial transactions, and the disobedience or resis- tance by any officer of the said courts, party, juror, ^vitncss or any other person or persons, to any lawful Avrit, process, order, rule, decree or commandsof the said courts. Jcf, 1831, c/?. 79, § 1. Tlie supremo cuuit will not grant a habeas corpus where a party has been committed for a contempt, by a court having competent jurisdiction. Ex parte Kearney, 7 Whea. 38 ; 5 Contl. 225. An attachment is necessary only when the party is not pre- sent in court ; when he is present, the court may make an order that he answer further interrogatories, to purge his sup- posed contempt, to be drawn up at the bar. United States vs. Green, 3 Mason, 482, 484. Fur contempts to inferior jurisdictions, not of record, not having a general power to fine and imprison, (unless committed in presence of the olFiccr and punished instanter,) there is no other method than by indictment. Ilullingsworth vs. Duane, Wallace, 77, 92, note. ^V^lcrc a counsellor practising in the highest court of a state, has been struck off the roll of counsellors of the district court 44 JURISDICTION OF THE FEDERAL COURTS. ACT, 17S?. TO MAKE RULES. Rules, AH of the courts (1) of the United States shall power to make, coij- havc Dowcr to iiiakc and establish all necessary ferred on , . . . , thecouiu. rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States. Acf, 1789, cfi. ACT, 1793. 20, § 17. It shall be lawful for the several courts of the United States, from time to time, as occasion may require, to make rules and orders for their respective courts, directing the returning of writs and processes, the filing of declarations and other pleadings, the taking of rules, the entering and of the United Stales of tlic state where he resides, hy the order of the judge of that court, for a contem^Jt, such order or act will not authorise the supreme court to refuse his admission as a counsellor of said supreme court. Ex parte TiUhigJiaxt, 4 Peters, 108. See also, United States vs. Montgomery, 2 Dall. 33. United States vs. Coolidge, 2 Gall. 3G4. (1) Every court possesses the power to make its own rules, unless forbidden by law; and the 17th section of the judiciary act vests, expressly, this power in the courts of the United States. Golden vs. Prince, 3 Wash. 313. Every court of equity possesses the power to mould its rules in relation to the time and manner of appearing and answering, so as to prevent the rule from working injustice ; and it is the duty of the court to exercise a sound discretion in the use of such power. The rules prescribed by the supreme court were not intended to deprive the courts of the United States of this well known and necessary power. Poultnei/ vs. Cifj/ of La- fayette, 12 Pet. 472, 475. See also notes preceding " Rules of the Supreme Court." POWERS IN COMMON. 45 making up judgments by defLiult, and other mat- acivitm. tcrs in the vacation and otherwise, in a manner not repugnant to the laws of the United States, to regulate the practice of the said courts respec- tively, as shall be fit and necessary for the ad- vancement of justice, and especially to that end to prevent delays in proceedings. Act, 1793, ch. 22, § 7. ACT. 1789. TO RENDER JUDGMENT ACCORDING TO EQUITY. In all cases brought before either of the courts — .ludgmeut, of the United States to recover the forfeiture an- when to be accord- nexed to any articles of agreement, covenant, iug to bond or other specialty, where the forfeiture, breach or non-performance shall appear, by the default or confession of the defendant, or upon demurror, the court before whom the action is, shall render judgment therein for the plaintiff to recover so much as is due according to equity; L>'iniages and when the sum for which judgment should when to , ^ , be assess- be rendered is uncertain, the same shall, if either ^-.iby a of the parties request it, be assessed by a jury. Ac/, 1789, c//. 20, §26. TO TAKE DEPOSITIONS DE BENE ESSE. The mode of proof (1) by oral testimony and Acrjrsg. examination of witnesses in open court, shall be ^/;^Jf ^^ (1) The provisions of the act of 1789, apply only to circuit and district courts. The Argo, 2 Whea. 287 ; 4 Cond. 46 JURISDICTION OF THE FEDERAL COURTS. ACT, 17S0. the same in all the courts of the United States, oral tetti- as wcU in the trial of causes in equit}'-, and of iiiony. I Deponent being a seaman, and liable to be ordered to some other place, not a sufficient reason for taking his deposition under the act of 1789. The Samuel, 1 Wliea. 9 ; 3 Cond. 46G. The authority given by the act of 1789, must be construed strictly ; all the requisites must be complied with before the testimony can be admitted. Bell vs. Morrison, 1 Pet. C. C. 351. Patapsco his. Co. vs. Southgate, 5 Pet. 604. United States vs. Coolidge, 1 G-all. 488. Evans vs. Hetlick, 3 Wash. 408. Tliomas vs. United States, 1 Mar. Dec. 367. The Sa- muel, 1 Whea. 9 ; 3 Cond. 466, 469. United States vs. S7nith, 4 Day, 121. Jo7ies vs. Ncale, N. Carolina Cases, 81. The act of 1789 is not peremptory that depositions shall be taken and used, but only that they may be taken and used. Prouty vs. Rugglcs, 5 Law Rep, 161. If the caption of a deposition state the place where it is taken, it is sufficient. Tooker vs. Thomjyson, 3 INIcLean, 92. The deposition of a person residing out of the state, and more than one hundred miles from the jilace of trial, cannot be read in evidence, unless taken under a commission. Evans vs. Hettich, 3 Wash. 408, 418. Blcecher vs. Bond, 3 Wash. 529, 531. See also explanatory of the above cases. Rhoades'' Lessee vs. Selin, 4 Wash. 715, 724. It has however been held by the supreme court, that the provisions of the 30th section are not confined to dejDositions taken within the district where the court is held. And where the witness lives at a greater distance than one hundred miles from the place of trial, it is not necessary in order to read the deposition in evidence, to show on the trial the disability of the witness to attend personally. Witnesses in such court, are considered permanently beyond a compulsory process. But the deposition, in such case, may not always be absolute ; for the party against w^hom it is used, may prove that the wit- ness has removed within reach of a subpoena after the deposi- POWERS IN COMMON. 47 ACT, 1789. admiralty and marilime jurisdiction, as oi actions _ at common law ; and when the testimony of any person shall be necessary in any civil cause de- tion was taken ; and if that fact was known to the party, he would be bound to procure his personal attendance. The onus, however, of proving this, would rest upon the party op- posing the admission of the deposition in evidence. Patapsco Ins. Co. vs. Sonthgate, 5 Pet. 604, 616. Depositions taken de bene esse cannot be read in evidence, unless the party who offers them, shows that the witnesses were subpoenaed, and cannot attend. Pcnns \s. Ingraliam, 2 Wash. 487. Pcttibone vs. Derringer, 4 Wash 215. TJiomas ^ Henry vs. United States, 1 Mar. Dec. 367. Unless he is so old, and generally so infirm that his attendance could not be expected ; the age of sixty-five not of itself suffi- cient to entitle it to be I'ead. Banert vs. Day, 3 Wash. 243. In a case of attachment against a witness for failing to obey a subpcena to attend before a United States court commission- er. Judge Betts, in United States circuit for the southern dis- trict of New- York, decided that when a witness lives or resides more than one hundred miles from the place of trial, he is bound to obey the subpoena to appear and testify before a commissioner, under the acts of congi'ess ; and a disobedience of such subpoena is contempt of court, for which attachment against him will be sustained. In the judge's decision he re- marked that this had been the practice in the circuit court for the southern district of New- York for twenty years. This decision should dispel the doubts of any United States com- missioner, who has entertained any, on this point of practice, and greatly facilitates the taking of testimony. The deposition of a witness, who resides three hundred miles from where the court is held, taken de hene esse, cannot be read in evidence, unless the witness was served with a sub- poena, and he cannot attend. Broicn vs. Galloway, 1 Pet. C. C. 291. 48 JURISDICTION OF THE FEDERAL COURTS. ACT. US9. pending in any district in any court of the United Testimo- Statcs, who sliall live at a greater distance from ^Ise vvbe"f the place of trial than one hundred miles, or is bonnd on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient or very infirm, the deposition of such person may be taken de bene esse, before any justice or judge of any of the courts of the United States, or before any before chaucellor, justice or judge of a supreme or supe- rior court, mayor or chief magistrate of a city, or judge of a county court, or court of common pleas in any of the United States, (or before any commissioner appointed under the statute of 1 S 1 2, ch. 25, to take depositions — see act, 1817, ch. 30,) not being counsel or attorney to either of the parties, or interested in the event of the cause, provided that a notification from the magistrate "°q,jfj.g'j'. before whom the deposition is to be taken to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party, or his attorney, as either may be nearest, if either Witnesses are entitled to full travel fees, though living more than one hundred miles from the place of trial. Trouty vs. Rugglcs, 5 Law Rep. IGl. If it appear on the face of the deposition, that the officer taking the same w^as authorised by the act, it is sufficient in the first instance, without any proof he was such officer. Rug- gles vs. BucJcnor, 1 Paine 358, POWERS IN COMMON. 49 exauiini'd. is witliiii one himdred miles of the place of such aoiu7S'j. caption, allowing time for their attendance after i.n,:ti,„f notified, not less than at the rate oi one day, Sundays exclusive, for every twenty miles travel. And in causes of admiralty and maritime juris- diction, or other causes of seizure, when a libel shall be filed, in which an adverse party is not named, and depositions of persons circumstanced as aforesaid shall be taken before a claim be put in, the like notification as aforesaid shall be given |"i^y°"' to the person having the agency or possession of '^^"'^^s- the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person (2) deposing as aforesaid, shall howTo be be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the depo- sition, or by the deponent in his presence ; and (2) The person taking the deposition under the act of 1789, must certify it was reduced to writing, either by himself or the deponent in his presence. Pettihone vs. Derringer, 4 Wash. 215, 219. AVlion tlic certificate of a magistrate, taking a deposition, stated it to have lieen ^vritten in his presence, without saying by whom, and it appeared that the substance of it had been reduced to writing by the deponent ten days before, at a dif- ferent phice, when the magistrate was not present, such depo- sition is not admissable. United States vs. Smith, 4 Day, 121. 4 50 JURISDICTION OF THE FEDERAL COURTS ACT, 1783. the depositions (3) so taken shall be retained by Deposition siich magistrate until he deliver the same, with posed of. his OAvn hand into the court for which they were taken; or shall, together with certificate of the reasons as aforesaid of their being taken, and of the notice, if any, given to the adverse party, be by him, the said magistrate, sealed up and direct- ed to such court, and remain under his seal until Witnesses opcucd iu court. And any person may be com- u)'aucid. pelled to appear and depose as aforesaid in the same manner as to appear and testify in court. Testimony And iu tlic trial of any cause of admiralty and ill admi- ralty can- maritime jurisdiction in a district court, the de- .•.ommii- cree in which may be appealed from, if either ted to vvri- n • /• i i ting ; party shall suggest to and satisfy the court that probably it will not be in his power to produce the Avitnesses there testifying before the circuit court, should an appeal be had, and shall move that their testimony be taken down in writing, it shall be so done by the clerk of the court. And when used If an appeal be had, such testimony may be used on app^a . ^^^ ^^^^ tYml of the samc, if it shall appear to the satislaction of the court which shall try the ap- peal, that the witnesses are then dead or gone out (3) It is a fatal objection to a deposition, that it was opened out of court, Beale vs. Thompson, 8 Cra. 70 ; 3 Cond. 35. Uni- ted States vs. Price's Adin'rs, 2 "Wash. 356. Since the act of 1803, ch. 40, in admiralty as well as in equity cases carried up to the supreme court by appeal, the evidence goes with ihe cause, and it must consequently be in writing. ScJir. Boston, 1 Sum. 328, 332. POWERS IN COMMON. 51 stalem of the United States, or to a j>reater distance than Acx^rca. as aforesaid from the place where the court is sit- ting, or that by reason of age, sickness, bodily infirmity, or imprisonment, they are unable to travel and appear at court, but not otherwise. And unless the same shall be made to appear on Deposi- , . , ^ . -, . liiiuK may the trial of any cause, with respect to witnesses i)- "sod ut whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. ProvldecL (4) that nothing herein shall ^';''"''"' be construed to prevent any court of the United ?" '> ^,'" A J issued. States from granting a dedhims potcstutan to take depositions accordhig to common usage, when it may be necessary to prevent a failm'e or delay of (4) Dcposilions taken under a dcdimus potest atem, under the 30th section, act of 17S9, arc under no circumstances to be considered as taken de hene esse ; whether the witnesses reside beyond the process of the court, or within it, the provisions of the act relative to depositions de bene esse being confined to those taken under the enacting part of the section. ScrgcanCs Lessee vs. Bhldle, 4 Whea. 508 ; 4 Cond. 522. Above decision commented on and explained in Rl/oadcs* Lessee vs. Selin, 4 Wash. 715, 723, 724. A deposition, taken before trial, of an informer, who is en- titled to a portion of a fine, forfeiture or penalty, is not ailmis- sable evidence. The act of congress only makes such an in- former a competent witness, when " he shall be necessary as a witness on the trial ;" of which necessity the court must judge after heai'ing the other testimony. TZ/c T/iomas and Henry vs. United States, 1 Mar. 367. Sec nlso, " Rules in Equity," Rules 68 and 70, and notes to the sani''. 52 JURISDICTION OF THE FEDERAL COURTS. ACT, 1781. justice, Avhich power they shall severally possess, Deposi- nor to extend to depositions taken mperpe^wam tions tre prrpdiiam rei vicmo- riam. iu;iy be taken. ACT. 1802. TestiiDO- nyin o(]ui- ty cases when to be by de- position. 7-ei memoi'iarii, which, if they relate to matters cognizable in any court of the United States, a circuit court, on application made thereto as a court of equity, may, according to the usages in chaucery, direct to he taken. Act, 1789, ch. 20, §30. TESTIMONY IN EaUITY BY DEPOSITION. In all suits in equity, (1) it shall he in the dis- cretion of the court, upon the request of either party, to order the testimony of the witnesses therein to be taken by depositions ; which depo- sitions shall be taken in conformity to the regu- lations prescribed by law for the courts of the highest original jurisdiction in equity, in cases of a similar nature, in that state in which the court of the United States may be holden: Providedy however, that nothing herein contained shall ex- tend to the circuit courts, which may be holden in those states in which testimony in chancery is not taken by deposition. Act. 1802, ch. 3 1, § 25. (1) In appeals to the supreme court from tlic circuit court, in chancery cases, the parol testimony whi(-h is heard at the trial, in the coui't below, ought to appear iu the record. Penn. vs. Conn., 5 Whea. 424; 4 Cond. 716. The act of 1802 leaves it to the discretion of the courts in those states where testimony in chancery is taken by deposi- tions, to order, on the request of either party, the testimony of the witnesses to be taken by depositions. Ibid. POWERS IN COMMON. 53 DEPOSITIONS IN PF.RPETUAM RKI MEMORIAW. ACT. 1R12. Ill any cause before a court of the United iiohs;« j)rrprhiom rci mcmo- ,.. . f f ... .-1 ti'im when cretion, to admit in evidence any deposition taken ,ak( n. States, it shall he hiwful for such court, in its dis- in pcrpctuam rei menionaiv, whicii would be so admissible in a court of the state wherein such cause is pending, according to the laws thereof Act. 1812, ch. 25. (1) TO TAKE DEPOSITIONS J3Y COMMISSION. Whenever a commission (1) shall be issued, by act, is27. any court of the United States, for taking the tes- oeposi- tious by — — — — — CDmmis- sioa. (1) There has, tlius far, been no judicial construction of this enactment. (1) Althougli the proper office of a commission is to obtain the evidence of witnesses residing beyond the reach of the process of the court, yet it may be resorted to by consent of parties, for the purpose of examining witnesses residing within the reach of process, and depositions so taken arc absolute. Seargeanfs Lessee vs. Biddlc, 4 Whea. 50S ; 4 Cond. 522, 524. There is no prartice requiring a certificate in whose hand- writing the depositions were taken down. Kecne vs. JMcadc 3 Pet. 1, 8. Querc — If it be not an objection to a deposition that it was committed to writing by the witness before he was shown ? Practice disajiprovcd of in DuiJge vs. Israel, 4 Wash. 323. ]^ut held by Jus. McLean, that it is not material wlitlher the individual be sworn before or after he or the justice writes the deposition. If the dejiosilion is written before the oath, the mind of the witness is drawn specially to the language used, and he swears to it. 7'ooher vs. Thonq^son, 3 McLean, P2, 94. 51 JURISDICTION OF THE FEDERAL COURTS. ArT2^27. finiony of a witness or witnesses, at any place . within the United States, or the territories there- Depositions tiikon iinder a commission issued by the defen- dant, may be read in evidence by the phiintiff', tliough the pUanliff had no notice of the time and place of taking them. Yeaton vs. Fry, 5 Cra. 335 ; 2 Cond. 273. Where tlie execution of a commission has been prevented by the acts of the prosecutor or his agents, the defendant, though guilty of laches in taking out a commission, is entitled to a conlinuance. United States vs. Duane, Wallace, 5. The only mode in which depositions can be taken in a foreign country, is under a commission. Stdn vs. Eoicman, 13 Pet. 209. But the court will not award a commission until the commissioners are named. Van Ste^ihorst vs. Marijland, 2 Dall. 401 ; 1 Cond. 2. It is no objection that ihe depositions are written in English, though the commissioners were Dutchmen. Gil])ins vs. Con- sequa, 3 Wash. 184. S. C. 1 Pet. C. C. 86. It is no objection to depositions, taken under a foreign commission, that some of the witnesses may have been before examined in the United States. Winthroji vs. Union Ins. Co., 2 Wash. 7. Where a commission was executed in a foreign country, the government of which refused to let the commissioners act, but the commission was executed by a judge of a court in the pre- sence of the commissioner, the depositions were permitted to be read. Ibid. Under particular circumstances, the court allowed a special commission to a foreign country, with instructions, that the in- terrogatories should first be fll(;d herein court by both parties; that the commissioners should be directed not to admit other interro should the federal courts observe a different rule from that which has long been established in the state. McKeen vs. De Lancey'^ Lessee, 5 Cra. 22 ; 2 Cond. 179. A fixed and received construction by a state court of its statute laws, makes, in fact, a part of the statute law. Shelby POWERS IN COMMON. 71 ACT 17B9 CAUSES HOW MANAGED. J__ In all of the courts of the United States, the pa'""-*. how man> parties may plead and manage their own causes aged. personally, or by the assistance of such counsel or attorneys at law, as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein. Act, 1789, di. 20, §35. And by act 1813, ch. 14, §3 (3 Stat, at Large, 21) ^ct^^is. it is also provided, that if any attorney, proctor, •^.'.'''''^'jy'^ or other person, admitted to mananreand conduct liable for ^ ' ^ _ costs. <;auses in a court of the United States, or of the territories t hereof j shall appear to have multiplied the proceedings in any cause before the court, so vs. Guy, 11 Whea. 361 ; 6 Cond. 345, 348 ; and that wliether the decisions of the state court are grounded upon statutes of the state, or form a part of the unwritten law. See also, Mutual Assurance Society vs. Watts, 1 "Wliea. 279 ; 3 Cond. 570. Ehnendorfvs. Taylor, 10 Whea. 152 ; 6 Cond. 47. Shdby vs. Guy, 11 Whea. 361 ; 6 Cond. 345. United States vs. Morrison, 4 Peters, 124. SmitJi vs. CJapp, 15 Peters, 125. Watl^ins vs. Holman, 16 Peters, 25. Long vs. Palmer, 16 Peters, Q5. Golden vs. Price, 3 Wash. 313. Camphcll vs. Claudius, Pet. C. C. 484. Henderson vs. Gijfin, 5 Peters, 151. Coatcs, Ex'rx, vs. Muse's Adrn'r, 1 Mar. Dec. 539. Parsons vs. Bedford, 3 Peters, 433. Rohiiuwn vs. Campbell, 3 AMiea. 212; 4 Cond. 235. Toland vs. Sprague, 12 Peters, 300. De Wolf, vs. Rahaud, 1 Peters, 151. Ross vs. McLung, 6 Peters, 283. Preston vs. Brorcder, 1 Whea. 115 ; 3 Cond. 497. Marlutt vs. Silk, 11 Pet. 1. Bank United States vs. Daniel, 12 Pe ers, 32. Inglis vs. Trustees, Sfc, 3 Peters, 127. Broum vs. Jones, 2 Gall. 477. 72 JURISDICTION OF THE FEDERAL COURTS. ACT^sia as ^Q increase costs unreasonably and vexatiously, such pel son may be required, by order of court, to satisfy any excess of costs so incurred. RESPECTING PROCESS. The forms of writs, and the modes of proceed- ing in the federal courts, are regulated by the fol- lowing acts. ACT, 1792. The forms of writs, (1) executions and other Forms of proccss, cxccpt their style, and the forms and process and modes — (1) AH process of the supreme court shall be in the name of the " President of the United States." Supreme Court Rule, No. 5. The seal of the supreme court consists of the arms of the United States, in a circle the size of a dollar, with these words in the margin : — " The Seal of the Supreme Court of the United States." The seal of the circuit courts shall be the arms of the United States, in a circle the size of a half a dollar, with these words in the margin : upper part, " The Seal of the Circuit Court ;" lower part, the name of the district for which it is intended. Congress has, by the constitution, exclusive authority to regulate the proceedings in the courts of the United States ; and the states have no authority to control those proceedings, except so far as the state process acts are adopted by congiess, or by the courts of the United Stales under the authority of congress. Wayinan vs. Southard, 10 Whea. 1; G Cond. 1. Beers vs. Haughton, 9 Peters, 329. Bahcock vs. Weston, 1 Gall. 168. The proceedings on executions, and other process, in the courts of the United States, in suits at common law, are to be the same in each state respectively, as were used in the supreme court of the state in 1789 ; subject to such alterations and ad- POWERS IN COMMON. 73 modes of proceeding in suits in those of common _ law, shall be the same as are now used in the "[.Jj-'uV lu Btates ditions as the said courts of the United States may make, or as the supreme court of tlic United States shall prescribe by rule to the other courts. Wayman vs. Southard, 10 Whea. 1 ; 6 Cond. 1. Beers vs. Ilaugliton, 9 Pet. 329. So far as the process act adopts the state laws, the adoption is expressly confined to those in force in 1789. It does not recognise the authority of any laws, which might be afterwards passed by the state* The system as it then stood is adopted; subject, however, to such alterations and additions as the said courts respectively in their discretion deem expedient, or to such regulations as the supreme court shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same, Wayman vs. Southard, 10 Whea. 1 ; 6 Cond. 1. Beers vs. Havghton, 9 Peters, 329. Anon. Pet. C. C. 1. Bank United States vs. Halsted, 10 Whea. 51 ; 6 Cond. 22. Bell vs. Davidson, 3 Wash. 328. Craig vs. Broun, 3 Wash. 503. This provision enables the several courts of the Union to make such improvements in the forms and modes of proceed- ings, as experience may suggest ; and e^specially to adopt such state laws on this subject, as might vary to advantage the forms and modes of proceeding which prevailed in September, 17S9. Wayman vs. Southard, ]0 Whea. 1; 6 Cond. 1. Bank of United States vs. Halstead, 10 Whea. 51 ; 6 Cond. 22. See also, Fullerton vs. Bank United States, 1 Pet. 604. Yeaton vs. Lenox, 8 Pet. 123. Tolland vs. Sprague, 12 Pet. 3r0. Whenever, by the state laws in force in 1789, a capias might issue from a state court, the acts of 1789 and 1792, extending in terms to that species of writ, must be understood to have adopted its use permanently in the federal courts. Bank of United States vs. January, 10 Whea. 06, in note. The process act of 1789, expressly adopted the forms of writs and modes of process of the slate courts at common law. 74 JURISDICTION OF THE FEDERAL COURTS. ACT^79-2. gj^^^j courts respectively, in pursuance of the act a.imitted entitled "An act to reo-ulate processes in the into the ° ^ Union be- The act of 1792, permanently continued such adoption ; but with this remarkable difference, that they were subject to such alterations and additions as the said courts respectively should, in their discretion, deem expedient ; or to such regulations as the supreme court should think proper, from time to time, by rule to prescribe. The constitutional validity and extent of the power given to the courts of the United States, to make iBterations and addi- tions in the process, as well as in the modes of proceeding, was fully considered in the cases of Wai/man vs. Southard, and Bank of United States vs. Halstcad. The delegation of power was regarded as constitutional, and that the power to alter and add, embraced the whole progress of a suit, from its com- mencement to its termination, and until the judgment should be satisfied. Beers vs. HaugJiton, 9 Peters, 329, 359, 360. The act of 1828 was made after the decision in Wy^nan vs. Southard, and the Bank of the United States vs. Halstead, and was intended to confirm the construction given in those cases to the acts of 1789 and 1792, and to continue the like powers in the courts to alter and add to the processes whether mesne or final, and to regulate the modes of proceedings in suits and upon processes, as had been held to exist under those acts. The language employed seems to have been designed to put at rest all future doubts upon the subject. But a material consideration is, that the act of 1828 expressly adopts the mesne processes and modes of proceeding in suits at common law, then existing in the highest courts under the state laws ; which of course included all the regulations of the state laws as to bail, and exemptions of the party from arrest and impri- sonment. In regard also to writs of execution and other final process, and " the proceedings theretipon,'" it adopts an equally comprehensive language, and declares that they shall be the same as were then used in the courts of the state. The words* TOWERS IN COMMON. 75 ACT. 1702 courts of the United States," passed Sept. 29, ""''12 1789, (that is the same in each state respectively J'J^^^o^'J, '• the proceedings on the writs of execution and other final process," must, from their very import, be construed to include all the laws which regulate the rights, duties and conduct of officers in the service of such process, according to its exigency, upon the person or property of the execution debtor, and also all the exemptions from arrest or imprisonment under such process created by those laws. Beers vs. Haughton, 9 Pet. 329, 361, 362. Walden's Lessee \s. Craig's Heirs, 14 Pet. 147. United States vs. Knight, 14 Pet. 301. Amis vs. Smith, 16 Pet. 303. Ross vs. Duval, 13 Pet. 45. Quere — Does the law of 1828 adopt the processes and modes of proceedings in suits at common law, other than executions and other final process, as such processes and modes of pro- ceeding existed in the highest courts under the state law in 1828, except as to those states which were admitted into the Union since September 29, 17S9 ? Wc think not. If this be so in those states admitted previous to that time, for the pro- cesses and modes of proceeding obtaining therein in the United States courts, we must look to such as were in force in those respective states in 1789 ; and for the other states, to those in force in 1828. The acts for regulating processes, provide that the forms and modes of proceeding in courts of equity, and in those of admi- ralty and maritime jurisdiction, shall be according to the prin- ciples, rules and usages which belong to courts of ecpiity and to courts of admiralty respectively, as contradistinguished from courts of common law, subject, however, to alterations by the courts, &c. These acts have been generally understood to adopt the principles, rules and usages of the court of chancery of England. Hinde vs. Vattier, 5 Pet. 398. The supreme court has not the power to compel the circuit court to proceed according to established rules in chancery cases. All that the court can do, is to prevent proceedings 76 JURISDICTION OF THE FEDERAL COURTS. ACTJ792. as ape now (1789) used or allowed in the supreme courts of the same ") ; in those of equity, and in otherwise, by reversing them, when brought before it on appeal. Gaines vs. Rclf, 15 Pet. 9. Under the process acts, the proceedings in cases of admiralty and maritime jurisdiction in the courts of the United States, are to be according to the modified admiralty practice in our own country engrafted upon the English practice ; and it is not a sufficient reason for rejecting a particular process, which has been constantly in tlie admiralty courts of this country, that it has fallen into disuse in England. Manro vs. Almeida, 10 Whea. 473 ; 6 Cond. 190. The power, under the process acts, to adopt rules as a regu- lation of proceedings on final process, so as to conform the same to those of state laws on the same subject, extends to the future legislation of the states ; and as well to the modes of proceeding on executions, as to the forms of the writs. Ross vs. Duval, 13 Pet. 45, 64. See also, Thompson vs. Phillips, Baldwin, 246, 274. Whenever by the laws of the United States a person is to be arrested, the process of aiTest employed in the state court should be pursued. 2 Burr's Trial (Robertson), 481. So far as the acts of congress have adopted the forms of process and modes of proceeding and pleading in the state courts, or have authorized the courts to adopt them, and have actually adopted them, they are obligatory ; and no further. But no court of the United Stales is authorized to adopt by rule any provision of state laws which are repugnant to, or incompatible with the positive enactment of congress upon the jurisdiction or practice or proceedings of such courts. Keary vs. Far. and Mcch. Bank, Memphis, 16 Pet. 89. Duncan vs. Darst, 1 How. 301. The 34th section of the judiciary act of 1789, does not apply- to the process and practice of the courts. It merely furnishes a rule for decision, and is not intended to regulate the remedy. POWERS IN COMMON. 7T those of admiralty and maritime jurisdiction, ''''^' according to the principles, rules and usages Waytnan vs. Southard, 10 Whea. 1 ; 6 Cond. 1. Thompson vs. Phillips, 1 Bald. 274. The courts may so alter the form of process of execution used in the state courts, as to subject to execution, issuing out of the federal courts, lands and other property not thus subject by the state laws. Ba7ik of United States vs. Halstead, 10 Whea. 51 ; 6 Cond. 22, 30. Beers vs. Houghton, 9 Pet. 329. Ross vs. Duval, 13 Pet. 45. Fullcrton vs. Bank of United States, 1 Pet. 604. No rule, under the third section of the act of 1S28, made by a district judge, will be recognized by the supreme court as binding, except those made by the district court, exercising circuit court powers. A7nis vs. Smit/i, 16 Pet. 303. When the circuit court adopts the process pointed out by a state law, there must be no essential variance between them. Such a variance is a new rule, unknown to any act of congress, or the state law professedly adopted. No state law can be adopted under the act of 1828, which is in collision with any act of congress. McCrachcn vs. Hay ward, 2 How. 608, 616. Kcary vs. Farmers^ and Meek. Bank, Memphis, 16 Pet. 89, 94. Amis vs. Smith, 16 Pet. 303, 312, 314. In an action of replevin by the United States, in the southern district of New- York, on a motion by the defendant to set aside the writ for irregularity, because of want of pledges to prose- cute and return the property, as required by the statutes of New- York, it was held by Judge Nelson, that though the circuit court had adopted the rules of the state in its practice, yet they were only adopted as far as they were appropriate ; and that a sovereign, giving no security for the privilege of suing in his own courts, any requirement in the rules of state courts requiring such security or pledges, did not apply to the United Stales courts. Dexter vs. United States, Cir. Ct. S. D. N. Y., May 5, 1851. See also Duncan vs. Darst, 1 How. 301. 78 JI/RISDICTION OF THE FEDERAL COURTS. ACTV17W. which belong to courts of equity, and to courts of admiralty respectively, as contradistinguished from courts of law ; except so far as may have been provided for by the act to establish the judi- cial courts of the United States, subject however, to such alterations and additions as the said courts respectively shall, in their discretion, deem expedient, or to such regulations as the supreme court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same. Act, 1792, ch. 36, § 2. ACT, 1&28. The forms of mesne process, except the style, lu states and the forms and modes of proceeding in suits, sinTe ioth in the courts of the United States held in those ^^ ' " states admitted into the Union since the 29th of September, 1789, in those of common law, shall be the same in each of the said states respectively, as are now used in the highest courts of original and general jurisdiction of the same, in proceed- ings in equity, according to the principles, rules and usages, which belong to courts of equity, and in those of admiralty and maritime juris- diction, according to the principles, rules and usages, which belong to courts of admiralty, as contradistinguished from courts of common law, except so far as may have been otherwise provided for by acts of congress ; subject, how- ever, to such alterations and additions, as the said courts of the United States respectively shall, POWERS IN COMMON. 79 ACT, 1823. in their discretion, deem expedient, or to such regulations as the supreme com-t of the United States sliall think proper, from time to time, by rules, to prescribe to any circuit or district court concerning the same. Ad, 1828, ch. 68, § 1. Writs of execution and other fmal process Execu- tious aud issued on iudo^ments and decrees, rendered in any liuiii i.ro- '' ~ cess same of the courts of the United States, and the pro- as in the states rea- ceedings thereupon, shall be the same, except their pectiveiy. style, in each state, respectively, as are now used in the courts of such state, saving to the courts of the United States in those states in which there are not courts of equity, with the ordinary equity jurisdiction, the power of prescribing the mode of executing their decrees in equity by rules of court; Provided^ however, that it shall P.ocess . may be be in the power of the courts, if they see fit m altered. their discretion, by rules of court, so far to alter final process in said courts as to conform the same to any change which may be adopted by the legis- latures of the respective states for the state courts. Ibid. § 3. Nothing in this act contained shall be construed Act not \o to extend to any court of the United States now Louisiana. established, or which may hereafter be established in the state of Louisiana. Ibid. § 4. Practice in Louisiana regulated by Act, 1824, ch. 181. The provisions of the act entitled " An act to ^cTvisii regrulate processes in the courts of the L^nited Actoiisss D A exteudea 80 JURISDICTION OF THE FEDERAL COURTS. AC-IW842. States," passed 19th of May, 1828, shall be, and to states they are hereby made applicable to such states admitted ^ ^ }^ since that qs liavc been admitted into the Union since the date. date of said act. Act, 1842, ch. 119. ACT, 1792. All writs and processes issuing from the su- wri~and prcmc or a circuit court, shall bear teste of the EowTeTt- chief justice of the supreme court, (or, if that beStd" office shall be vacant,) of the associate justice next in precedence ; and all writs and processes issuing from a district court, shall bear teste of the judge of such court, (or, if that office shall be vacant,) of the clerk thereof; which said writs and processes shall be under the seal of the court from whence they issue, and signed by the clerk thereof Act, 1792, ch. 3G, § 1. TO ARREST AND DETAIN ALIEN ENEMIES. ACT,i79s. After any proclamation (1) shall be made as Alien ene- aforcsald, (thc proclamatlon of the president of mies after |)roclama- tionbythe , » mi r> i • i t t • i • t • 3 (1) The pov/er of the president under this law, is as unhmited as the legislature could make it. Loclcington vs. Smith, Pet. C. C. 466, 470. Aliens may be restrained or confined for other reasons than their removal from the United States. Ibid. 470. The authority given to confine aliens conferred all the means of enforcing the orders the president should make respecting them. Hid. 471. The marshals of the several districts are the proper officers to execute his orders. Ibid. ill. After the president establishes such regulations as he deems necessary, it is not necessary to call in the aid of the judicial POWERS IN COMMON. 81 the United States in case of war or threatened act, u^i invasion, makin£^ alien enemies, within the Uni- presi.iem ted States, liable to be apprehended, secured or Sd^a" removed,) it shall be the duty of the several courts Ir cdnfm-d of the United States, and of each state, having criminal jurisdiction, and of the several judges and justices of the courts of the United States, and they shall be, and are hereby respectively authorized, upon complaint against any alien, or alien enemies, as aforesaid, who shall be resident and at large within such jurisdiction or district, to tlie danger of the public peace or safety, and contrary to the tenor and effect of such procla- mation, or other regulations which the president of the United States shall and may establish in authority, on all occasions, to enforce them, and the marshals can act without such authority. Ibid. 472-3. The act of congress intended to make the judiciary auxiliary to the executive ; and each department was to act independ- ently of the other, except that the former was to make the ordinances of the latter the rule of ils decisions. Ibid. 474. An alien enemy can not be permitted to make the declara- tion ie(piired by law preparatory to the naturalization of aliens. Ex parte Ncicman, 2 Gall. 11. The fact that the commander of a private armed vessel was an alien enemy at the time of capture, does not invalidate such capture. The Mary and Susan, 1 Whea. 46 ; 3 Cond. 4S0. All that would result from it would be the condemnation of his interest to the government. Ibid. An alien enemy cannot maintain a suit in a prize court. T/ic Emulous, 1 Gall. oG3. Nor in any of the courts of the United States. Muinfurd vs. Mumfurd, Ibid. 3GG. 6 82 JURISDICTION OF THE FEDERAL COURTS. vior. ACT. 179S. the premises, to cause such alien or aliens to be give sure- duly apprehended and convened before such goo/beha- court, judgc or justice ; and after a full examina- tion and hearing on such complaint, and sufficient cause thereof appearing, shall and may order such alien or aliens to be removed out of the territory of the United States, or to give sureties for their good behavior, or to be otherwise restrained, con- formably to the proclamation or regulations which shall and may be established as aforesaid ; and may imprison or otherwise secure such alien or aliens, until the order which shall and may be made, as aforesaid, shall be performed. Act, 1798, ch. 66, § 2. TO HOLD TO THE PEACE. ACT^798. The judges of the supreme court and of the Power to several district courts of the United States, and hold to the peace and all judgcs and justices of the courts of the several behavior, statcs, liaviug authority, by the laws of the United States, to take cognizance of offences against the constitution and laws thereof, shall respectively have the like power and authority to hold to the security of the peace, and for good behavior, in cases arising under the constitution and laws of the United States, as may or can be lawfully exercised by any judge or justice of the peace of of the respective states, in cases cognizable before them. AcL 1798, ch. 83. POWERS IN COMMON. 83 ACT, 183Z TO DELIVKR VESSELS TO CLAIMANTS. I'liwcr to In any cause of admiralty and maritime juris- ',;;|l,7irde- diction, or other case of seizure, depending in eV^-.'^'^nt any court of the United States, any judge of the M'j;*^^' said court, in vacation, shall have the same power and authority to order any vessel, or cargo, or other property, to be delivered to the claimants, upon bail or bond, under the statute, as the case may be, or to be sold when ne(ressary, as the said court now has in term time, and to appoint ap- praisers and exercise every other incidental power necessary to the complete execution of the autho- rity herein granted ; and the said recognizance of bail or bond, under such order, may be executed before the clerk, upon t'le parties producing the certificate of the collector of the district, of the sufficiency of the security offered : and the same proceedings shall be had in case of said order of delivery, or of sale, as are now had in like cases, when ordered in term time ; Proi'kkd, that upon every such application, either for an order of delivery or of sale, the collector and the attorney of the district shall have reasonable notice in cases of the United States, and the party or coun- sel in all other cases. Act, 1832, ch. 6G. 84 JURISDICTION OF THE FEDERAL COURTS. ACT.1S39. "^O ENTERTAIX JURISDICTION WHEN ALL THE Dl^FEN- DANTS MAY NOT BE WITHIN THE DISTRICT. Courts may pro- ceed when 'Whcro, in any suit at law or in equity, (1) deieiitlaiits ' •' ^ i J ^ \ ^ are not all commcnccd in any court of the United States, 111 the uis- "^ trict, but there shall be several defendants, any one or decree to bewiihout more of whom shall not be inhabitants of, or prejudice to such ; found within the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties, not (1) The act of 1839 was intended tp remove the many diffi- culties arising in practice, in cases of law and equity, under the third clause of the 1 llh section of the act of 1789, under which it was necessary to join defendants, some of whom were, and some of whom were not, inhabitants of the district in which the suit was brought : and it aimed to produce this rcsidt, by providing that the persons not being inhabitants, or not found within the district, may either not be joined at all with those who were, or if joined, and they did not waive their personal exemption by a voluntary appearance, the court could go on to judgment or decree against the parties properly before it, as if the others had not been joined. But it did not contemplate a change in the jurisdiction of the court, as it regards the character of the parties as ])rescribed by the judiciary act, and as expounded by the supreme court; that is, that each of the plaintiffs must be capable of suing, and each of the defendants capable of being sued. JDa?i7c of VicJcs- hurgJi vs. Slocomh, 1 4 Pet. GO, 65, 6G. See also, " Rules in Equity," Rule 17, and note to the same' POWERS IN COMMON. regularly served with process, or not volunlnrily act, i83o. appearing to answer; and the non-joinder of par- nonj-indcr ties who are not so niliabilants, or lound williin ..t aimtc- tlie district, shall constiUite no malter of abate- ment or other objection to said suit. Acf, 1839, ch. 36, § 1. TO RF-COVRR PECUXrARY PICNALTI F.S. All pecuniary penalties and forfeitures, accru- act^sso. ing under the laws of the United States, may be rccmiarj _ poipallies, sued for and recovered in any court of competent ^vllero iiiiiy lie juristliction in the state or district where such sucJior. pena'ties or forfeitures have accrued, or in which the olfender or oflenders may be found. Act^ 1S39, ch. 36, §3. TO REMIT RIXOGNIZANCES. In all cases (I) of recognizances in criminal act.isco. causes, taken for, or in, or returnable to, the Recogni. (1) Tlic ])ii\vor which ihc courts of common law exercised over recognizances in England, may be exercised by the United States. U/tiicd States vs. Fcctij, 1 Mar. Dec. 2oo, 257. Independently of statute, the courts of England exercise authority over recognizances. Ihid. 255, 259. The object of a recognizance is, not to enrich the treasury, but to combine the administration of criminal justice with the convenience of a person accused, but not proved guilty. Ihid. 259. An action of debt was instituted in the; district court, upon a recognizance entered into before a magistrate, in a case in 86 JURISDICTION OF THE FEDERAL COURTS ACTV1S39 courts of the United States, which shall be for- wheumay felted bv a brcach of the condition thereofj the bf remit- ted, said court for or in which the same shall be so which a party was charged with having beaten a boy so as to cause liis death, on board a merchant vessel of the United States. The recognizance was as folh)ws : " July 22d. United States vs. Jasper. James Jasper and S. Dillingham, each tent in 8300 for the appearance of said Jasper." The United States had judgment below, and the cause was brought by writ of error, into the circuit court, upon objections, mainly connected with the recognizance. Held : In a recognizance, the material parts of the obligation and the condition should be set forth in the body of it, so as tcj admit of extension, consistently with the terms of it. DUUng- ham vs. United Slates, 2 Wash. 422. It is essential to a breach of a recognizance, that the party who is to appear, should be solemny called before his default ; and in an action on the recognizance, it should be clearly pro- ved that the party was called and warned, and neglected to appear. Ihid. If the non-appearance of the recognizor can bo proved by parol evidence — Query? Ihid. A material variance between the warrant and the recogni- zance set forth in the declaration, and that given in evidence, is fatal. Ihid. Where an individual is charged with the commission of a criminal offence, and enters into a i-ecognizance, conditioned to appear at a given day, and undergo his trial, which recog- nizance is forfeited by the failure of the party to appear and submit himself to the law ; but the accused appears at the succeedinfT term of the court in which the recognizance is filed, has full power to suspend (or discharge ?) it, for good cause shown by the accused, why he did not comply with the condition of the recognizance. United States vs. Feely, 1 Mar. Dec. 255. POWERS IN COMMON. 87 taken, or to which the same shall be returnable, *'1^''^ shall have authority, in their discretion, to remit the whole or a part of the penalty, wherever it shall appear to the court that there has been no wilful default of the parties, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be exacted or enforced. Act, 1839, c/i, 36, § 6. TO TAKE RECOGNIZA^'CES FROM WITNESSES. In all hearings before any justice or judge of ^^^ the United States, or any commissioner, under R'^cogni- "' zances ot and by virtue of the 33d section of the act of wi^"!'''*'''' 1789, ch. 20, it shall be lawful for such iustice, u^i cases ^ who muy judge, or commissioner, where the crime or of- 'a^®- fence is charged to have been committed on the high seas, or elsewhere within the admiralty and maritime jurisdiction of the United States, in his discretion, to require a recognizance of any witnesses produced in behalf of the accused, with such surety or sureties as he may judge necessar}% as well as in behalf of the United States, for their appearing and giving testimony, at the trial of the cause, whose testimony, in his opinion, is important for the purposes of justice at the trial of the cause, and is in danger of being otherwise lost. Act, 1842, ch, 188, § 2. 88 JURISDICTION OF THE FEDERAL COURTS. ACT, 1789. ISSUES OF FACT. HOW TRIED. fact when Tlic trial of issucs of fact,(l) in the dhtrki courts, in all causes except civil causes of admiralty and (1) Only a single case Las over been tried by a jury before the supreme court, and that was only a feigned issue, xi-^on the determination of which no questions of importance were raised, the trial was in the case of Brailsford et al. vs. The State of Georgia, 3 Dall. 1 ; 1 Cond. 8. The equity jurisdiction of the courts of the United States, is independent of the local law of any stale, and is the same in nature and extent as the equity jurisdiction of England, from which it is derived. Therefore, it is no objection to its juris- diction, that there is a remedy under the local law. Gordon et al. vs. liohart et al. 2 Sumner, 401. But this jurisdiction is special, limited and defined, not as in England, where it depends on usage. Baker vs. Davis, Baldwin, 394, 407. Whenever a court of law is competent to take cognizance of a right, and has power to proceed to a final judgment, which affords a remedy, plain, adequate and complete, without the aid of a court of equity, the plaintiff* must proceed at law, because the defendant has a constitutional light of trial by jury. If the right is only an equitable one, or, if legal, the remedy is only equitable, or both legal and equitable, partaking of the character of both, and a court of law is unable to aff()r(3 a remedy, according to its old and settled proceedings, com- mensurate with the right, the suit for its assertion may be in equity. Baker vs. Biddle, Baldwin, 394, 405. The courts can not sustain a suit at law on an equitable right only, adjudge a remedy appropriate only to equity, or sustain a suit in equity on a mere legal right, for which the law affords a complete remedy. Ibid. 407. The right may bo clear at law, but if the remedy is doubtful, difficult, not adequate to the object, not so complete as in equity. POWERS IN COMMON. 89 maritime jurisdiction; and in the cirniit rourf.!^, a<:t.\:so. in all suits except those in equity and of admi- t., hutricd ralty and maritime jurisdiction; and in the '^'^J'"' ' supreme coiirf^ in all actions at law against citi- zens of the United States, shall be by jury. Ac/, 1789, c/i. 20, §§ 9, 12, 13. not so efficient and practicable to the ends of justice and its prompt administration, cciuity may attach. Ibid. 408. A defendant is entitled to a jury trial on an issue of fact in a suit at common law, and to his oath in his answer to a hill in equity, of which he can not he deprived at the option of the plaintiff. Ibid. 407. An information for alleged exportation of arms under the act of 1794, is a case of admiralty and maritime jurisdiction. It is also a civil cause, and triable without the intervention of a jury. United Siatcs vs. La Vengeance, 3 Dall. 297 ; 1 Cond. 132. In cases of seizures made on land, the district courts proceed as courts of common law, and the trial of issues of fact is by a jury ; in seizures on water, it proceeds as an instance court, and the trial is to be by the court. The jurisdictions and pro- ceedings are distinct. I'/ic Sarah, 8 Whea. 391 ; 5 Cond. 472. "Civil causes of admiralty and maritime jurisdiction," com- prehend all maritime contracts; contracts relating to the navi- gation, business or commerce of the sea; and contracts for marilimc service in building, repairing, supplying and navi- gating ships. Daris vs. A new Brig, Gilpin, 471, 477, quoting Dc Loriu vs. Loif, 2 Gall. 47'), and T/ie Jerusalem, 2 Gall. 347. But sec Bains vs. Sc/tr. James and, Catharine, Baldwin, 544, .5GS. See also, Constitutional Provisions, •' Trial by Jury," page 17, and notes; and Powers in Common, "Ecjuity Jurisdiction," ante, page 38, and notes. 90 JURISDICTION OF THE FEDERAL COURTS. Const U.S. JUDGES: TERM OF OFFICE AND SALARY. Art. 111. Judges. The judges, toth of the supreme and inferior office "nd courts, shcill hold their offices during good beha- i^i^yo. ^JQj.. ^j^jj shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Const. U. S., Art. 3, § 1. JUDGES : OATH OF OFFICE. ACT. 1789. The justices of the supreme court, and the dis- .Tudges, trict judges, before they proceed to execute the gffice! duties of their respective offices, shall take the following oath or affirmation, to wit : " I, A. B., do solemnly swear or affirm, that I will adminis- ter justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as , according to the best of my abilities and under- standing, agreeably to the constitution and laws of the United States. So help me God." Actf 1789, ch. 20, § 8. ACT, isi?. It shall not be lawful for any judge, appointed Judges, under the authority of the United States, to exer- pmciisi CISC the profession or employment of counsel or law. 1 • 1 attorney, or to be engaged m the practice of the law. And any person oUbnding against the in- junction or prohibition of this act, shall be deemed guilty of a high misdemeanor. Act, 1812, ch. 6. POWERS IN COMMON. 91 CLERKS OF COURTS. ACT. 17fl0. The supreme court, (1) and the district courts JjJ^""^!^',;^'/ shall have power to appoint clerks for their re- ^^ZS spective courts ; and the clerks for each district court shall be clerk also of the circuit court in such district. Act, 1789, ch. 20, § 7. (1) The appointment of clerks of courts properly belongs to courts of law ; a clerk of the court being one of those officers contemplated by the provision of the constitution, giving to congress the power to vest the appointment of inferior officers as they think proper. And the appointing power was no doubt intended to be exercised by the department of the govern- ment to which the officer to be appointed most appropriately belonged. Matter of Hcnncn, 13 Peters, 230. It was not the intention of the constitution that those offices, denominated inferior offices, should be held during life. In the absence of legal provision as to removal from them, the power of removal must be considered as incident to the power of appointment. Ibid. The law giving the power of appointment of clerks to the courts, does not prescribe any form in which this shall he done. The power vested in the court is a continuing power, and the mere appointment of a successor would, per sc, be a removal of the prior incumbent ; so far, at least, as his rights were concerned. Ibid, The supreme court can have no control over the appoint- ment or removal of a clerk of an inferior court ; or entertain any incpiiry into the gi-ounds of removal. If the judge is chargeable with any abuse of his power, the supreme court is not the Irilmnal to which he is answerable. Ibid. 92 JURISDICTION OF THE FEDERAL COURTS. AOTus-9. All the circuit courts of the United States shall have the appointment of their own clerks; and in case of a disagreement between the jiulges, the appointment shall be made by the presiding judge of the court. Act, 1839, ch. 36, § 2. JURISDICTION FEDERAL COURTS OF THE UNITED STATES. SUPREME COURT. SUPREME COURT ORGANIZATION AND ADJOURNMENT OP. The supreme court consists of a chief justice SupremP ■*■ court cou and eight associate justices, any five of whom sists ot shall constitute a quorum.(a) The associate jus- judges-, tices take precedence according to the date of their commissions; or where the commissions of Jj^ceof; any two of them bear date the same day, accord- ing to their respective ages.(6) It holds annually one session, at the city of session oh Washington, commencing on the first Monday of Deceiiibcr.(r) If a quorum shall not attend on the appointed day, such justice or justices, as may attend, may adjourn the court from day to day, for twenty days; and if a quorum does not con- vene by the expiration of that time, the business of the court shall be continued over to the next (a) Act 1837, ch. 34, § 1. {h) Act 1789, ch. 20, § 1. {c) Act 1844, ch. 96, § 1. 96 JURISDICTION OF THE FEDERAL COURTS. regular session. But, any one or more of the justices so attending, sliall have power to make all necessary orders touching any suit, action, writ of error, process, pleadings or proceedings, returned to the said court, or depending therein, preparatory to the hearing, trial or decision of such action, suit, appeal, writ of error, process, Acijmirn- plcadlugs or procccd ings.(f/) After a quorum has ""'"'''*■ once been formed, any less number may adjourn the court from day to day, until a quorum shall extend, and when expedient and proper, may adjourn the same without day.(r) AVhenever, in the opinion of the chief justice, or of the senior associate justice, a contagious sickness shall render it hazardous to hold a ses- sion of this court at the seat of government, it may be adjourned to such other place within the same, or an adjoining district, as such justice may deem convenient.(/) fa'dgZ'^ The salary of the chief justice is $5,000 per annum ; that of the associate justices, $4,500.(^') For list of chief justices and associate justices, see Appendix. (rZ) Act 1829, ch. 12, § 1. Act 1802, ch. 31, § 1. {e) Act 1829, ch. 12, § 2. (/) Act 1799, ch. 12, § 7. {g) Act 1819, ch. 27. JURISDICTION OF THK FEDERAL COURTS. SUPREME COURT. ORIGINAL JURISDICTION. In all cases (1) aflecting ambassadors, other ^Ibt'iu public ministers and consuls, and those in which origirmi jurisdic- . tioa. (1) Whether the jurisdiction of the supreme court is not only oriiriual but exclubive in " cases aficctinfr ambassadors, other public ministers and consuls," according to the true construc- tion of the second section of the third article of the constitu- tion. United Sf cites vs. Ortega, 11 Whoa. 467; 6 Cond. 394. Cohens vs. Virghua, G Whea. 2G4 ; 5 Cond. 90, 108. United States vs. Ravara, 2 Dall. 297. In the last case which came before the circuit court for the district of Pennsylvania, it was held that congi'ess might vest a concurrent jurisdiction in such cases in other courts. But in tlie case first above cited, the supreme court regarded the (juestion as still suh judice — still undecided. The power of the supreme court to entertain original juris- diction in suits where a state is a party, was maintained in the case of Chisholm vs. The State nf Georgia, 2 Dall. 419 ; 1 Cond. 7 98 JURTSDICTTON OF THE FEDERAL COURTS. ^r"iii.^' ^ state shall be a party, the supreme court shall have original jurisdiction. Const, U. S.^ Art. 3, •Sees. 1 and 2. ORIGINAL AND EXCLUSIVE JURISDICTION. ACTU789. fi^Q supreme court (1) shall have exclusive juris- ori-inai diction of all controversies of a civil nature, and excla- «ive juris- where a state is a party, except between a state diction. 1 J' 1 6 ; and the 11th amentlment of the constitution was adopted in consequence of the decision in that case, by which it was held that a state was suahlc. In respect to that class of cases, in which a state is sued by ^foreign state, in only a single case has the question been raised. But the point was not decided, because the plaintiffs in that caee were held not to constitute xi foreign state. Chero- kee Nation of Indians vs. State of Georgia, 5 Pet. 1. See also, " Constitutional Provisions," notes 5, 6. The supreme court is one of limited and special original jurisdiction; and its action must be confined to the particular cases, controversies and parties, over which the constitution and laws have authorized it to act ; any proceeding without the limits prescribed, is coram nan judice, and its action a nul- lity. Voorheesxs. Bank United States, 10 Pet. 440, 47 J. S. C. 4 Russ. 415. And whether the want or excess of power is objected by a party, or is apparent to the court, it must sur- cease its action, or proceed extra-judicially. Rhode-Island vs. Massachusetts, 12 Pet. G57, 720. Consent of parties can not confer jurisdiction upon the supreme court. Mills vs. Brown, 16 Peters, 525. Kenncdi/ et als. vs. Georgia State Bank, 8 Howard, Gil. (1) Congress has passed no law for the special purpose of prescribing the mode of proceeding in suits instituted against a state, or in any suit in which the supreme court is to exercise SUPREME COURT. 99 and its citizens; and except also between a state ac-t^:*. and citizens of other stati's, or aliens, in which latter Ccise it shall have orli^liiul but, not exclusive jurisdiction ; and shall have (2) cxd us Ivdij all such tlic oiigiiKil jurisdiction conferred by the conslilu'Lion. New- Jersey vs. New- Yorh, 5 Pel. 2S4. A case whicli belongs to the jurisdiction of the supremo court, on account of the interest a stale has in the controver-sy, must be a case in which a state, either nominally or substan- tially, is a party. It is not sufficient that a state may be con- sequentially affected. Fowler vs. Miller, 3 Dall. 411 ; 1 Coi;d- 189. But if the claims of a state may be ultimately affected by the decision of a cause, though the state may not necessarily be a defendant, the court is bound to exercise jurisdiction^ Ujiifcd Slates vs. Judge Peters, 5 Cra. 115: 2 Cond. 202. As to the jurisdiction and modes of proceeding where a state is a parly ; sec New-Jersey vs. New- York, 5 Pet. 2S4. Georgia vs. Jirai/s/orJ, 3 Dull. 1 ; 1 Cond. 8. Chishohn vs. Georgia^ 2 Dall. 419; 1 Cond. G; 2 Cond. App. New- York vs. Con- necticut, 4 Dall. 3 ; 1 Cond. 203. Grayson vs. Virginia, 3 Dall. 320; 1 Cond. 141. Rhode- Isla?id vs. Massachusetts, 12 Pet. 657. See also, 3 Story's Com. Const., §§ 1G52 to 1G57 ; and notes 5, G and 7, to " Constitutional Provisions." (2) A secretary of legation is entitled to the protcclion of the law of nations, against any civil or criminal prosecution. Ex parte Cabrera, 1 Wash. 232. An attache to a foreign legation is a public minister within the act of congress. United States vs. Earner, l.'ald. 234. In an action in a state court against a consul, if the slate court is cognizant of his official diplomatic character, even though it is not apparent from the record itself, the stale juris- diction can not be maintained. Davis vs. Packard, G Pet. 41. 100 JURISDICTION OF THE FEDERAL COURTS. ACT, 1739 jurisdiction of suits or proceedings ajains-^ ambas- sadors, or other public ministers, or their domes- tic, or domestic servants, as a court of Jaw can have or exercise consistently witli the hiw of nations, and orii^lnal bid not, c.rc/itsii;/j jurisdiction of all suits brought by ambassadors, or other public An iiulictmcnt, under the crimes act of 1790, cli. 9, § 28, for infracting tlie law of nations, by offering violence to the person of a foi'eign ministei', is not a case afi'cciing •' ambas- satlors, otlier public ministers and consuls," within the meaning of the constilution. It is a case which affects the United States, and the person whom they seek to punish ; but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecu- tion, or in the costs attending it. The circuit court, therefore, may have jurisdiction of such an oflcnco, under the 11th section of the judiciary act. United States vs. Ortega, 11 Whea. 4G7 ; 6 Cond. 394. This case came up from the circuit court of Pennsylania, and is reported in 4 Wash. 531. It is no defence upon an indictment for an assault and bat- tei'y, that the defendant was ignorant of the public character of the minister. United States vs. Ortega, 4 Wash. 531, 537. United States vs. Liddle, 2 Wash. 205, 210. United States vs. Bcnner, 1 Bald. 234, 240. But if a foreign minister commits the first assault, he forfeits his immunity so far as to excuse the defendant for returning it. United States vs. Ortega, 4 Wash. 531. United States vs. Benner, Baldwin, 234. But to constitute an assault against the house of a foreign minister an offence against the law of nations, the defendant must be aware that it is the domicil of the minister; or other- wise it is merely an offence against the municipal laws of the state where the minister resides. United States vs. Hand, 2 Wash. 435, 439. SUrREME COURT. 101 ministers, or in whicli a consul or vie c consul, AcrjTBa. shall be a party. Acfy 1789, ch. 20, § 13. PROimU riON MANDAMUS. The supreme court ( I ) shall have power to issue actvithx writs of ])rohibkion to the district courts, when fowcr :o proceedings as courts of admiralty and marilimc ''^^^'JJ'/ jurisdiction, and writs of mttmia/yi'ohil>ition to a court of admiralty, and not the civil law ; still less those principles on which the admi- ralty courts in the time of Jac. 1, protested against the right of the King's Bench to grant prohibitions. Bains vs. Schr. James aJid Catharine, Baldwin, 514; 5G3. Mandamus. (2) The authority given to the supreme court to issue writs of mandamus to public officers, appears not to be warranted by the constitution. Marhunj \i. Madison, iCra. 137; 1 Cond. 2G7, 2S3. For a mandamus to a public officer is an cxeicisc of original juristliclion ; and is not provided llir by the constitution. Ex parte Crane, .O Pet. 190, 193. 'J'ho supreme court will not grant a mandamus to compel a district judge to grant an application resting in his discretion. Ex jHutc Roberts, G Pet. 2IG. Ex iiartc Davevjort, G Pet. 6G1. Ex parte Bradstrcet, 7 Pet. G37. Bank of Colmnbia vs. Sweeny, 1 Pet. 5G7. 102 JUEtlSDICTION OF THE FEDERAL COURTS. ACT. ]_^- warranted by tlie principles and usages of law, to manda- any courts appointed, or persons holding office, under the authority of the United States. Act, 1789, ch. 20, § 13. UlUA APPELLATE JURISDICTION. Co.vs', r. S. Aarlll. Appc llati jnri^dic- In all cases (I) affecting ambassadors, other public ministers and consuls, and those in which tioD gene- jj • ^^jjj ^^ compel a iu(l2:e to execute a S(*nteiice pro- rail jf, ami J J O I nounccd by liim. Unt/.cd Slates vs. Peters, 5 Cra. 115 ; 2 Cond. 202. Tliis writ will lie to the circuit court requiring it to sign a bill of exceptions. Ex parte Crane, 5 Pet. 190, 193. But not to compel him to sign a bill of exceptions, which he does not conceive to be proper, or which is not correct. Ex parte Brad- street, 4 Pet. 102. Or to a judge, lo sign a judgment. Life and Fire Ins. Co., New- York vs. Wilson, 8 Pclcrs, 291. Writ of mandamus will lie in the case of the removal or euspensiou of an attorney in the inferior courts, but only when the conduct of the court below was irregular, or lliigranlly improper. Ex parte Burr, 9 Whca. 529; 5 Cond. GGO. And also to stay proceedings in the court below, in a case where the United States is a party. Livingston vs. Dargcnois, 7 Cra. 577. 2 Cond. G18. See al?o, Cvl. Ins. Co. vs. Wlieclrigid, 7 Wliea. 534 ; 5 Cond. 334. United States vs. Laicrcncc, 3 Dall. 42; 1 Cond. 19 Parker vs. Judges of Cir. Court of Maryland, 12 Whea. 561 ; G Cond. 044. Bank of Columbia vs. Sweeny, 1 Pet. 507. Ex parte Roberts, G Peters, 210. Ex parte Davenport, 6 Peters, GOl. Ex parte Bradstrcet, G Peters, 774 ; S. C. 7 Peters, 034 ; S. C. 8 Peters, 5SS. Ex parte Story, 12 Peters, 339. Sec also, "Powers in Common," title Mandamus. (1) The api)ellate jurisdiction given to the supreme court by the constitution (Art. 3, Sec. 3) is, '• with such exceptions and SUPREME COURT. 103 a state shall be a party, the supreme court shall ^■";';; ,",;'» have ori^'uial iurls^diction. In all the other cases — -^ '' . general before mentioned — all cases in law and equity, luiere^ arising under the constitution, the laws ot the United States, and treaties made, or which shall be made, under their authority ; all cases of admi- ralty and maritime jurisdiction; controversies in under such regulations as the congress shall make." If con- gress has provided no rule to regulate such proceedings, the court can not exercise the appellate jurisdiction ; and if the rule is provided, it can not be departed from. Wiscart vs. Dauchy, 3 Dull. 321 ; 1 Cond. 144, 146. The supreme court has no power to review its own decisions, whether at law or equity. Washi-ngton Bridge Co. vs. Stewart, 3 Howard, 413. There is no mode pointed out by law, in which an erroneous judi'^ment or decree of the supreme court can be reviewed or reversed, cither in that or any other court. Martin vs. Hunter's Lessee, 1 Whea. 3U4 ; 3 Cond. 550. Browder vs. McArthur, 7 Whea. 58 ; 5 Cond. 23G. Ex parte Sihbald, 12 Peters, 492. Nor docs the supreme court possess appellate jurisdiction in any form, from the circuit courts in criminal cases ; no such power having been confided to it by congress. United States vs. Moore, 3 Cra. 159 ; 1 Cond. 480. Ex 2}arte Kearney, 7 Whea. 38 ; 5 Cond. 225. Ex parte Wat/cins, 3 Pet. 193. S. C. 7 Pet. 568. United States vs. Gilbert, 2 Sum. 19. The only mode contemplated by the laws of the United States to revise the opinions of the judges of the circuit court in criminal cases is, when the judges are divided in opinion at tlie trial, and then the point of division may be certified to the supreme court, under the act of 1802, ch. 31, § 6. United States vs. Gibtrt, 2 Sum. 19, 104. Sec also, note 6, page 12, "Constitutional Provisions," and the note followinsr. 104 JURISDICTION OF THE FEDERAL COURTS. ^/ut'ih.'^ which the United States shall he n party; con- "~ troversies between citizens of different states; controversies between citizens of the same state claiming lands under grants of different states — the supreme court shall have f/^)/>c//a/e jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make. Const, Art. 3, § 2. ACT.17S9. The supreme court shall also have appellate jurisdiction from the circuit courts, and courts of the several states in the cases hereinafter specially provided for. Act, 1789, ch. 20, § 13. FROM CIIICUIT COUIITS : BY WRIT OF ERROR. ACT. 1789. Final judgments and dtxrecs ( 1 ) m civil actions and Writ of suits in equity, in a circuit court, brought there by error when will ^ — (1) As to the statement of the case, in causes of equity and of admiralty jurisdiction, required to be furnished by the cir- cuit court, and wliicli goes up with the record, sec *' Circuit Court," postca. Mailer in Dispute. The jurisdiction of this court depends on the sum or value in dispute between the parties, as the case stands upon the writ of error in this court ; not on the sum which was in dispute in the circuit court, i. c. the amount mentioned in the declaration. Smith vs. Iloncy, 3 Pet. 4G0 ; Gordon vs Ogdcn, 3 Pet. 33, 35, citing and approving Wise vs. Columlnan Turn- pilcc Company, 7 Cra. 276; 2 Cond. 489; overruling Witson vs. Daniel, 3 Dall. 401 ; 1 Cond. 185. Where the demand is not for money, and the nature of the action docs not require the value of ihc thing to be staled in SUPREME COURT. 105 orij^inal process, or removed there from tlic courts ac"|^"69- of the several states, or removed there by appeal I'c; ""d uniount from a district court where the matter in dispute iK-'cesarj the declaralion, tho practice of the courts lias been to allow the value to be given in evidence. Ex parfc Bradstrcit, 7 Pet. G34. In llic case of difrcrent libels by did'erent seamen, each of vvliom recovered less than two tlxjusand dollais, tliougli the aggregate amounted to over thirty-lwo thousand dolhirs, on appeal from the circuit coui t on such separate decrees, held that the court had no jurisdiction, as the controversy in each case was less than two thousand dollars. Oliver vs. Alexander, 6 Pet. 143, 150. Tlic words "matter in dispute" seem appropriate to civil causes. J3ut in criminal cases, the question is the guilt or inno- cence of the accused. United States vs. Moore, 3 Cra. 159 ; 1 Cond. 480, 482. But see, United States vs. La Vengeanec, 3 Dalh 297; 1 Cond. 132; from which it may be infcired, that in criminal cases the judgment of the inferior court is final. Tlic onvs probandi of showing that the amount in conliover- sy is sufFuient to sustain the jurisdiction of the court, is upon the party who seeks a revision of the case. Ilagan vs. Foison, 10 Pet. IGO. Value of amount in dispute docs not apply to cases brought from the state courts arising under the constitution, tieaties and laws of the Union. Buel vs. Van Ness, 8 Whea. 312 ; 5 Cond. 445. Sec also generally upon this subject, United States vs. McDowell, 4 Cra. 31G; 2 Cond. 122. Coo/c vs. Woodro?v, 5 Cra. 13; 2 Cond. 173 ; Peyton vs. Robertson, Whea. 527 ; 5 Cond. CGO. Lessee of Meredith vs. McKec, 1 Pet. 248. Scott vs. Lunt's Administrators, G Pet. 349. Knapj) vs. Bonis, 2 How. 73. Gordon vs. Longest, IG Pet. 97. Ba7i/c United States vs. Daniels, 12 Pet. 32. Ross vs. Prentiss, 3 How. 771. Barri/ vs. Mercein, 5 How. 103. Sewall vs. Chamberlain, 5 How. G. Olirer vs. Alexander, G Pet. 143. 106 JURISDICTION OF THE FEDERAL COURTS. ACT,i7S9 exceeds the sum or value of two thousand dollars, to warrant excluslve of costs, may, upon a writ of crrm\ be re- tbe same. Writ of Error. Writs of error only lie from a final judgment of llie circuit court ill cases of common law. Rutherford vs. Fisher, 4 Dall. 22 ; 1 Cond. 21G. Boyle vs Zacharic ct al. 6 Peters, 648. Pievious to the act of 1S40, cli. 43, it was held that a writ of error does not lie to the supreme court, to reverse the judgment of a circuit court in a civil action, or remove a civil cause from the circuit court, where such causes have been car- ried up to the circuit court from the district court on writ of error. Those causes originating in a district court, which are taken to the circuit by appeal, are the only ones which can be taken to the supreme court. United States vs. Goodwin, 7 Cra. 108 ; 2 Cond. 434. United States vs. Gordon, 7 Cra. 287 ; 2 Cond. 494. United States vs. Tenhroek, 2 Whea. 248 ; 4 Cond. 109, 111. United States vs. Barlcer, 2 Whea. 395 ; 4 Cond. 181. Put by the act of 1840, ch. 43 (after quoted), writs of error mny now be canicd to the supreme court from the judgments of the circuit courts, in cases brought there by writ of error, from the district courts. When a writ of errtn- is allowed, and th.e amount of the verdict is not enough to make the writ a matter of right, the whole case goes up. Hogg vs. Emerson, 6 Legal Obs. 148. Writs of error may be amended in the return day, teste and direction, if there be any thing to amend by. Mos.s?nan vs. Higginson, 4 Dall. 12 ; 1 Cond. 210. A writ of error must bear teste of the term next preceding that to which it is returnable ; and a term must not intervene between the teste and return. Hamilton vs. Moore, 3 Dall. 371 ; 1 Cond. IGS. Villalahos vs. United States, G How. 81, 90; citing Lloijd vs. Alexander, 1 Cra. 3G5 ; 1 Cond. 334. Bailiff vs. Tifpi'ng, 2 Cra. 40G ; 1 Cond. 433. Wood vs. hide, 4 Cra. SUPREME COURT. • 107 examined and reversed or affirmed in the supreme court, the citation being in such case signed by ISO ; 2 Cond. 7G. PicIccU's Ilcirs vs. Legcncood, 7 Pet. 144. Ycalon vs. Lenox, 8 Pet. 123. S. C. 7 Pet. 220. What are ^nal decrees, and what not. Forgay vs. Conrad, 6 How. 201. Van Ness vs. Van Ness, G How. 62. Weston vs. Cit'/ Charleston, 2 Peters, 449. Gibhons vs. Ogden, 6 Whea. 448 ; 5 Con. 134. Rutherford vs. Fisher, 4 Dall. 22 ; 1 Cond. 210. Young vs. Grvndi/, G Cra. 51 ; 2 Cond. 300. Gibbons vs. Ogden, G Whea. 488; 5 Cond. 134. Pepper \s. Dunhip, 5 How. 51. Lea vs. Kelly, 15 Pet. 213. Armstrong vs. Treas. Athens County, IG Peters, 281. Commercial Bank of Cincin- nati \i^. Buehifigham's Ex'rs, 5 How. 317. Mills vs. Brouji, IG Peters, iJ^Zij. Carr et als. vs. Iloxic, 13 Pet. 4G0. Young et al. vs. Smith, 15 Pet. 287. When writ of error lies : Wilson vs. Daniel, 3 Dall. 401 ; 1 Cond. 185. Gordon vs. Longest, IG Pet. 97. ZT. S. vs. Eliason, 16 Pet. 301. Tucher vs. Oxley, 5 Cra. 34 ; 2 Cond. 182. Ken- nedy vs. Brent, 6 Cra. 187 ; 2 Cond. 345. Brent vs. Chapman, 5 Cra. 358 ; 2 Cond. 279. Shanhland vs. Cor. // Washington, 5 Pet. 300. 7//i,'-/r vs. Coolidge, 2 Whea. 363 ; 4 Cond. 155. Md/cr vs. Nichols, 4 Whea. 311; 4 Cond. 4G6. Ward vs. Gregory, 7 Pet. 633. When not: Penhallow vs. Doane, 3 Dall. 54 ; 1 Cond. 21. Tolland vs. Spragne, 12 Pet. 300. tI?^/* vs. S/«///<, 16 Pet. 303. Evans vs. 6Vr, 14 Peters, 1. Smith vs. Trabeau's Heirs, 9 Pet. 4. L' S. vs. Erans, 5 Cra. 280 ; 2 Cond. 2.JG. 117 /t/t vs. Mandcrille, 7 Cra. 152 ; 2 Cond. 452. Marine Ins. Co. vs. Hodgson, G Cra. 200 ; 2 Cond. 347. U. S. vs. Moore, 3 Cra. 159; 1 Cond. 480. Hinderson vs. il/ow/r, 5 Cra. 11 ; 2 Cond. 172. Barr vs. Gratz, 4 Whea. 213; 3 Cond. 426. Blunl's Lessee vs. Smith, 7 Whea. 248; 5 Cond. 274. Broun vs. C/«/7.-, 4 How. 4. Erans vs. Philips, 4 Whea. 73 ; 4 Cond. 394. Ex parte Dorr, 3 How. 103. Bank of Dubuque vs. United States, 5 How. 213. United States vs. Gibert, 2 Sum. 19. ACT, 1789 108 JURISDICTION OF THE FEDERAL COURTS. ACTU7S9 ^ judge of such circuit court, or justice of the supreme court, and the adverse party having at least thirty days' notice. Revers.ii j^^i thcrc shiill bc uo rcvcrsal on such writ of when will be order- error, for error in ruUng any plea in abatement, other than a plea to the jurisdiction of the court, or such plea to a petition or bill in equity, as is in the nature of a demurrer, or for an error in Tiim fict. And writs of error shall not be brought but wiiid" within five years after rendering or passing the ro'rin^ybu judgmcut or dccrcc complained of, or in case the person entitled to such writ of error be an infant, feme covert, nori compos mentis^ or imprisoned, then within five years as aforesaid, exclusive of the Security ^'mc of sucli disability. And every justice or error'." "' j^^^b^ siguiug a cilatlou on an)^ writ of error as aforesaid, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good. Act, 1789, ch. 20, §22. I.\ REVENUE CASES. ACT. \m. Final jndgmenfs in any circuit court of the Appeih.to United States, in any civil action brought by the jiirisflic- TT • 1 CI r 1 n n ^ lion ill re- Uniicd fetatcs for the enforcement of the revenue cases. laws of tlic United States, or for the collection of the duties due, or alleged to be due, on merchan- dise imported therein, may be re-examined, and reversed or affirmed, in the supreme court of the SUPREME COURT. 109 United States, upon tnii ofcrr.tr, as in other cases, act^w. without re<^nrd to the sum or value in controversy in such action, at tiie instance of either party. Jet, J 844, ch. 31. IN CASES BROUGHT FROM DISTRICT COURTS BY WRIT OF ERROR. IVr'ds of error (1) shall lie to the supreme court ACT^m from all judgments of a circuit court, in cases Appellate brought there by writs of error irom the district tion in discs hro t court, in like manner and under the same regu- in.mdist. lations, limitations and restrictions, as are now writ ol" provided by law for writs of error to judgments rendered upon suits originally brought in the cir- cuit court. Act, 1840, ch. 43, § 3. WRIT OF ERROR A SUPERSEOEAS. A writ of error shall be a supersedeas, and stay actu7S9. execution in cases only where the writ of error ^vritof •' error is served, by a cony thereof being lodged for the whcnasa- ' J L J no persedcas adverse party in the clerk's office where the record remains, within ten days, Sundays exclii- (1) Previous to the passing of tlic act of 1S40, ch. 43, writs of error hiy to the supreme court from the judgments and decrees of the circuit courts, in cases from the district courts, only according to the provisions of the 22d seclion of the judi- ciary act of 1789, which allowed that wjit only in such cases brought irom the district courts, as were so brought there by appeal. Sec references to first note to "Appellate Juiisdiction." no JURISDICTION OF THE FEDERAL COURTS. ACT, 17S9. and stays execuiiuu. Costs on afBrmauce ACT, 1794. Security on writ of error uot being a superse- deas. sive, after rendering 1 he judgment, or passing the decree complained of. Until the expiration of which term of ten days, executions shall not issue in any case where a writ of error may be a supersedeas; and where, upon such writ of error, the supreme or a circuit court shall affirm a judg- ment or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double costs at their discretion. Act, 1789, r;//. 20, §23. The security to be required, (1) and taken on the signing of a citation on any writ of error, which shall not be a supersedeas and stay exe- cution, shall be only to such an amount as, in the opinion of the judge or justice taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decreed to the respondent in error. Act, 1794, ch. 3, Sd Cong, Sess. 2. BY APPEAL. ACT, 1803. From aWJinal judgments and decrees ( 1 ) rendered. Appeals or to be rendered, in any circuit court, or in any when will , • •, . • lie; district court actmg as a circuit court, in any (1) The supreme court will not quasli an execution issued by the court below to enforce a decree, pending a writ of error, if the writ be not a supersedeas to the decree. Wallcn vs. WilUums, 7 Cra. 278; 2 Cond. 491. (1) Previous to the passage of the above act, the only mode of removal of causes to the supreme court, whatever might be SUPREME COURT. 1 1 1 cmes of cqii'Uy, of admiraliy, and maritime jurlsdlc- a^t^*"- lion, and of prize or no prizc^ an appeal, where the matter in dispute, exclusive of costs, shall exceed the nature of the suit, was by writ of error, and it was so held in the case of BJa'in vs. ^h'lp Carter, 4 Dall, 22. This act, so far as admiralty and prize causes are concerned, is applicable to the circuit courts, only as ajipellatc tribunals. Conk. Trca. cd. 1S42, 14, n. The judicial act of 1789 speaks of an aj^j^cal and o£n writ of error; but it does not confound the terms, or use them promis- cuously. They are to be understood in their ordinary accepta- tion. An appeal is a process of civil law origin, and removes a cause entirely, subjecting the fact as well as the law to a re- view and a re-trial ; but a writ of error is a process of common law origin, and it removes nothing for re-examination but the law. Wiseart vs. Dauclnj, 3 Dall. 321 ; 1 Cond. 144, 14G. The distinction between writs of error and appeals can not be overthrown by agreements of counsel. Minor vs. Tilhtson, 2 Howard, 332. The act of 1803, repeals those parts of the judiciary act, which authorize a writ of error, and a statement of facts in chancery ca.ses ; allows an appeal from the decrees of a circuit court sitting in chancery; and directs that a copy of the bill, answer, depositions, and all other proceedings, of what kind soever, in the cause, shall be transmitted to this court, and that no new evidence shall be heard. Conn. vs. Pcnn. 5 Whea. 424 ; 4 Cond. 71G. An appeal under the act of 1803, prayed for and allowed within five years, is valid, although the security was not given until alter the lapse of five years. T/ic Dos Hcrmanos, 10 Whea. 30G ; G Cond. 109. Appeal, proper mode of reviewing causes of admiralty and niiiritime jurisdiction and cases in equity. The Sun Pedro, 2 Whea. 132; 4 Cond. 65. Bayard vs. Lombard, 9 Howard, 530. McCoUom vs. Eager, 2 How. Gl. 112 JURISDICTION OF THE FEDERAL COURTS. ACTJ503. ii^Q g^^fj^ Qj. value of two thousand dollars, shall tvhatpro- be allowed to the saprenie court of the United leedings • r i JO up; States ; and upon such appeal, a transcript of the libel, bill, answer, depositions, and all other pro- Tlie rules, regulations and restrictions contained in the 22d and 23d sections of tlic judiciary act, respecting the time within which a writ of error shall bo brought, and in what instances it shall operate as a supersedeas ; the citation to the adverse party ; the security to be given by the plaintiff in error for prosecuting his suit ; the restrictions upon the appellate court as to reversals in certain enumerated cases, are applicable to appeals under the act of 1803, and are to be substantially observed ; except that where the appeal is prayed at the same term when the decree or sentence is pronounced, a citation is not necessary. The San Pedro, 2 Whea. 132 ; 4 Cond. 66. Previous to the act of 1803, it was held that a writ of error would not lie from a decree in a circuit court overruling a plea, and ordering a defendant to answer. Ruthejford vs. Fisher, 4 Dall. 22 ; 1 Cond. 216. An appeal will not lie from an interlocutory decree dissolv- ing, or refusing to dissolve, an injunction. Young vs. Grundy y 6 Cra. 51 ; 2 Cond. 300. Gibbons vs. Ogdcn, 6 Whea. 448 ; 5 Cond. 134. But it will lie from a decree for sale of mortgaged property, on a bill to foreclose. Ray vs. Laic, 3 Cra. 179 ; 1 Cond. 485. Appeals and writs of error must be dismissed, where no citation has been issued or served on the deftmdant in error, Hogan and al. vs. Ross, 9 Howard, 002. U. S. vs. Curry, 6 Howard, lOG ; citing ViUalabos vs. U. S., lb. 81. Broicn vs. Union Bank of Florida, 4 Howard, 465. Lloyd vs. Alexander, 1 Cra. 365. Bailifvs. Tipping, 2 Cra. 406 ; 1 Cond. 433. Appearance cures want of a monition or irregularity of pro- cess. Pcnhallow vs. Doane^s Adm^strs, 3 Dall. 54 ; 1 Cond. 21. Wood vs. Lide, 4 Cra. ISO. 2 Cond. 76. Knox vs. Summers, 3 Cra. 496. Grade vs. Palmer, 8 Whea. 699 ; 5 Cond. 561. SUPREME COURT. ] 13 ceedings of what kind soever in the cause, shall actjsu;. be transmitted to the said supreme court; and Newevi- dence in no new evidence shall be received in the said whutcasti court, on the hearnig of such appeal, except m taken. admiralty and prize causes: and such appeals shall be subject to the same rules, regulations and restrictions as are prescribed in law in cases of writs of error ; and the supreme court shall be, and is hereby authorized and required to receive, hear and determine such appeals. Act, 1803, ch. 40, § 2. JUDGMENT ON REVERSAL. When a judgment or decree shall be reversed act, nsn. in the supreme court, such court shall render juii-jment such judgment, or pass such decree, as the court sai. below should have rendered or passed ; except where the reversal is in favor of the plaintiif, or petitioner in the original suit, and the damages to be assessed or matter to be determined, are uncertain, in which case they shall remand the cause for a final decision. And the supreme Supreme , ., , . . - court not court shall not issue execution in causes that are to issue removed before them by writs of error, but shall send a special mandate to the circuit court to award execution thereon. Act, 1789, ch. 20, 6 24. 1 14 JURISDICTION OF THE FEDERAL COURTS. ACT, 1S03. ON CERTIFICATE OF DIVISION OF OPINION. jumdic-^ Whenever any question (1) shall occur before a ch'cuit court, upon which the opinions of the (1) The intention of this act is, that a division of the judges of the circuit court, upon a single and materal point, in the progi'ess of a cause, should be certified to the supreme court, and not the whole cause. When a certificate of division brings up the whole cause, it would be, if the court should decide it, in effect, the exercise of original, rather than appellate jui'is- diction. White vs. Turk, 12 Pet. 238. The question certified will alone be considered. Ogle vs. Lee, 2 Cra. 33. Wayman vs. Southard, 10 Whea. 1 ; 6 Cond. 1, 3. Adams vs. Jones, 12 Pet. 207. AVhere the judges below divided on the whole case, and directed the whole case to be certified to the supreme court, it was held irregular, and the cause was remanded back, that further proceedings should be had therein, according to law, Saunders vs. Gould, 4 Pet. 392. Where the points of division are too imperfectly stated to enable the judges to pronounce an opinion, the court will not award a venire dcnovo, nor certify the cause to the court below, but merely certify that the points are too imperfectly stated. Perkins vs. Hart, 11 Whea. 237 ; 6 Cond. 287, 296. Where the court is equally divided, the decree below is affirmed. The Antelope, 10 Whea. 66 ; 6 Cond. 30. Etting vs. Bank of United States, 11 Whea. 59; 6 Cond. 210, 222. United States vs. Worrall, 2 Dall. 388. The district judge can not sit in the circuit court in a cause brought by writ of error from the district to the circuit court ; such a case can not be brought from the circuit court to this court upon a certificate of division of opinion. United States vs. Lancaster, 5 Whea. 434 ; 4 Cond, 720. This court can not take jurisdiction of a question on which the opinions of the judges of the circuit court are opposed. SUPREME COURT. 1 1 5 judges shall be opposed, the point upon which the At-TMso^ disagreement shall happen, shall, during the cas..s.,f ~ ^ ^ divixiiiii of rt[illihill. where tlie division of opinions arises upon some proceedinnj subsequent lo the decision of the cause in that court. Deve- reux vs. Marr, 12 AVhea. 212 ; 6 Cond. 522. Jurisdiction will not be taken, where the division was on a motion for a rule to show cause why taxation of marshal's costs on an execution should not be reversed and corrected. Bank of United States vs. Green, 6 Pet. 2G. A divloion on a motion for a new trial, in a civil or criminal case, is not such a division f»f opinion as may be certified lo the supreme court. United States vs. Da?iicl, 6 Wliea. 542 ; 5 Cond. 170. Lanning vs. London, 4 Wash. 332. No jurisdiction exists in the case of a division of opinion of the judges of the circuit court, for the District of Coliwihia. United States vs. John Tyler, 7 Cra. 285 ; 2 Cond. 492. Wliere the judges below differed on certain points which arose on the trial, before a jury, they were, with the evidence, certified to this court. Carringtoji vs. The Merchant's Ins. Co. 8 Pet. 495. Questions respecting the practice of the circuit court in equity cases, which depend on the sound discretion of the court, in the application of the rules which regulate the course of equity proceedings, to the circumstances of particular cases, arc not questions which can be certified, on a division of opinion of the circuit court. Parker vs. Nixon., 10 Pet. 408. .Turisdiction extends only to points of law and not of fact. Wilson vs. Barnum, 8 How. 258, 262. The court will not object to the practice, in jiropcr cases and on proper occasions, of certifying a point, where the judges rather doubted than differed about it. But they must be cases sanctioned by the judgment of one of the judges of this court, in his ci Till it. A loose practice in this respect, might render the court substantially a court for the original jurl.-^diction of all causes of importance, where the constitution and the laws 116 JURISDICTION OF THE FEDERAL COURTS. ACTV1S02 same term, upon the request of either party, or their counsel, be stated under the direction of the intended to make it altogether appellate in its character, ex- cept in the few cases of original jurisdiction enumerated in the constitution. United States vs. Stone, 14 Pet. 524, 525. Wliere the opinions of the judges of the circuit court are opposed, the judges do not assign any reasons of their respective opinions, but merely state the point of disagreement, that either party may carry it to the supreme court for ultimate decision. Trial of Smith and Ogden, 47 ; cited in note to 1 Cond. 208. As to particular cases, which have come up on a certificate of division of opinion, see Ogden vs. BlacJcledgc, 2 Cra. 272 ; 1 Cond. 411. Hephurn vs. Ellzey, 2 Cra. 445; 1 Cond. 444. United States vs. Gurney, 4 Cra. 333 ; 2 Cond. 132. Tyler vs. Tuel, 6 Cra. 324. McKim vs. VoorJdes, 7 Cra. 279. Umted States vs. Tyler, 7 Cra. 285 ; 2 Cond. 492. Fatten' s Lessee vs. Easton, 1 Whea. 476 ; 3 Cond. 631. Colson vs. Lctcis, 2 Whea. 377 ; 4 Cond. 168. Somcrville's Ex'rs vs. Hamilton, 4 Whea^ 230 ; 4 Cond. 436. Sergeant's Lessee vs. Biddle, 4 Whea. 508 ; 4 Cond. 522. United States vs. Wiltherger, 5 Whea. 76 ; 4 Cond. 593. United States vs. Smith, 5 Whea. 153 ; 4 Cond. 619. United States vs. Holmes, 5 Whea. 412 ; 4 Cond. 708. Green vs. Biddle, 8 Whea. 1 ; 5 Cond. 369. Miller vs. Stewart, 9 Whea. 680; 5 Cond. 727. Wilkins vs. HoUingsivorth, 6 Whea. 240 ; 5 Cond. 79. United States vs. Kelly, 11 Whea. 417 ; 6 Cond. 370. Mason vs. Haile, 12 Whea. 370 ; 6 Cond. 535. Perkins vs. Hart, 11 Whea. 237 ; 6 Cond. 287. Schim- melpimich vs. Bayard, 1 Pet. 264. Wilcox vs. Tlu')nmer''s ExWs, 4 Pet. 172. Dox vs. P. M. General, 1 Pet. 318. Bank of United States vs. Owens, 2 Pet. 527. Buckner vs. Finley, 2 Pet. 568. Inglis vs. Trustees, Sfc, 3 Pet. 99. United States vs. Randenhush, 8 Pet. 288. United States vs. Brev;ster, 7 Pet. 164. United States vs. Wilson, 7 Pet. 150. Backhouse vs. Patton, 5 Pet. 160. United States vs. Rohertson, 5 Pet. 641. United States vs. Bank North Carolina, 6 Pet. 29. Kirkmun SUPREME COURT. H judges, and certified under the seal of the court, ^f tms/j to the supreme court, at then' next session to be held thereafter ; and shall, by the said court, be finally decided. And the decision of the supreme f^^^e tiTui court, and their order in the premises, shall be remitted to the circuit court, and be there entered of record, and shall have eflVct according to the nature of the said judgment and order. Provided, ca.ise *" may be that nothing herein contained shall prevent the proceeded cause from proceeding, if in the opinion of the court farther proceedings can be had Avithout prejudice to the merits : and provided also, that imprisonment sliall not be allowed, nor punish- inent n.r ment in any case be inflicted, where the judges aii..w..im of the said court are divided in opinion upon the question touching the said imprisonment or pun- ishment. Act, 1S02, ch. 31, § 6. IN CASES OF COPYRIGHTS AND PATENTS. From (dl juds^mcnls and decrees ( 1 ) of any circuit act, isn court, as well in equity as at law, rendered in all Appellate j'liisdic- vs. IlamiUon, G Pet. 20. City New- York vs. Milne, 11 Pet. 102. Ilarrin vs. EWvt, 10 Pet. 25. Daris vs. Bradcn, 10 Pet. 286. Elliot vs. Sicarticout, 10 Pet. 137. Denn vs. Rcid, 10 Pet. 524. Fleniing vs. Page, 9 How. 603. United States vs. Marigold, 9 How. 560. Lambert vs. Gliisclin, 9 How. 552. HiU vs. Vnitcd istatvs, 9 How. 386. Harrison vs. Vosc, Ibid. 372. WdVuim- son vs. Btrri/, 8 How. 495. United States vs. Staats, 8 How. 41. McArthiir's Heirs vs. Dun's Heirs, 7 How. 262. Lewis vs Leu-is, 7 How. 776, and other cases. (1) The 14lh and 15th sections of the act of 1836 prescribe 118 JURISDICTION OF THE FEDERAL COURTS. ACTjsio. actions, suits, controversies and cases, arising im- ''■'" '", der any law of the United States, s^ranfins: or wn- cases of •' 'DO c-i.y riyiu iirmhv' to authors or inventors the exclusive ri^ht to ami lit [jii- ..... , '-' teuts. their icritings, inventions and discoveries, a icrit of error or ajypeal, as the case may require, shall lie to the supreme court of the United States, in the same manner, and under the same circumstances, as is now provided by law in other judgments and decrees of such circuit courts. Aci, 1819, ch. 19. From all judgments and decrees, in any circuit court, or in any district court having the powers and jurisdiction of a circuit court, as well in equity as at law, rendered in all actions, suits, controversies and cases, arising under any law of the United States, granting or confirming to in- ventors the exclusive right to their inventions or discoveries, a writ of error or appeal, as the case may require, shall lie to the supreme court of the United States, in the same manner and under the the rules which must govern on the trial of actions for the violations of patent rights ; and these sections are oj)erative, so far as they are applicable, notwithstanding the patent may have been granted before the passage of the act of 1836. McClurgh vs. K'mgsland, 1 How. 202, 209. Where a case is sent to the supreme court under the discre- tion conferred upon the court below by the 17th section of the act of 1836, the Avhole case comes up, and not a few points only. Hogg vs. Emerson, 6 How. 437, 478. The word "reasonable" in the statute applies to the "cases" rather than to the points of the cases. Ibid. SUPREME COURT. 1 H» Ar;T. 1830 same circumstances as is now provided by law in other judgments and decrees of circuit courts, and in aU other cases in ichich the court shall deem it reasonable to allow the same. Act^ 1836, ch. 357, §17. IN CASES OF HABEAS CORPUS. From the judgment of a circuit court, rendered actvis^o. on appeal from any decision of a justice of the Appellate supreme court, or of a judge of a district court, tion in under the act authorizing the issuing of a writ habeas of habeas corpus when subjects of foreign states de^the"" are in the custody of the United States, an appeal act.""* lies to the supreme court of the United States on such terms, and under such regulations and orders, both respecting the person in custody, and all proceedings connected therewith, as the judge hearing the said cause may prescribe. Act^ 1842, ch. 257. FROM DISTRICT COURTS. Appeals and writs of error lie from the decrees '^^'^il^/®'' and judgments of district courts directly to the ^pp^^,c supreme court of the United States, in the same •j"',',",';^^^ manner, and under the same regulations as from jJ.'^j'JJfgi,. a circuit court, when such district courts are '.'i"^\,"t clothed with circuit court powers. ^""'^"' Appenls and writs of error also lie from the f"p«rtirn ^ '■ lar cases. judgments and decrees of the following district 120 JURISDICTION OF THE FEDERAL COURTS. ACTS. 1R31- 1851. courts, under particular acts of congress, and in the particular cases therein specified : From the district court of Western Tennessee, Act. 1838, ch. 118, § 4; of Northern Alabama, Acts, 1831, ch. 28; 1837, ch. 3 1, § 2; 1838, ch. 12, § 2; 1842, ch. 123; of Texas, Act, 1846, ch. 1,§2; of Wisconsin, Act, 1846, ch. 89, §4; of Middle Alabama, Act, 1846, ch. 104; of Northern and Southern Florida, Acts, 1845, ch. 75, § 3; 1847, ch. 210, § 1 ; of Northern Georgia, Act, 1848, ch. 151, § 9; of Iowa, Act, 1849, ch. 124, § 6; of Califor- nia, Acts, 1850, c/j. 86, § 10; 1851, ch. 41, §§ 10, 11 ; and of "Western Arkansas, Act, 1851 , ch. 24, §3.(1) FROM STATE COURTS. ACT. 1798. A final judgment or decree (1) in any suit, in Appellate thc hlghcst court of law or equity in a state in 'uo.?fron. which a decision in the suit could be had, where is (1) Of the above courts those in Southern Florida, Texas, California, Western Tennessee and Iowa, are clothed with full circuit court powers, and those in Northern Florida, Northern Georgia, Northern Alabama, Western Arkansas, and Wiscon- sin, are invested with like authority, except in cases of appeals and vsrrits of error. Of the court in Middle Alabama, the act merely provides for appeals and writs of error from it, saying nothing concerning its jurisdiction. (1) The appellate power of the United States extends to cases pending in the state courts ; and the 25th section of the judici- ary act is supported by the letter and spirit of the constitution. There is no clause in that instrument which limits this power. SUPREME COURT. 121 drawn in question the validity of a treaty or sla- '''^"^_^^- tute of! or an authority exercised under the TJni- '';:'''"'"'» Martin vs. Hunter's Lessee, 1 AVliea. 304 ; 3 Cond. 575, 592, 596. We are admnnishcd by the argument, of the jealousy with which tlie states of the Union view tlie revising power intrusted by the constitution and laws of the United States to this tribu- nal. To observations of this character, the answer uniformly given has been, that the course of the judicial department is marked out by law. We must tread the direct and narrow path prescribed for us. As this court has never grasped at ungranted jurisdiction, so will it never, we trust, shrink from the exercise of that which is conferred upon it. Opinion Ch. J. Marshal. Fislter vs. CohercU, 5 Pet. 248, 259. Under the 25th section the supreme court has no jurisdic- tion, unless the judgrnent or decree of the state court be ^ final one. A judgment reversing a decision of an inferior court, and awaiding a venire de novo, is not a final judgment. Hous- ton vs. Moore, 3 Whea. 433 ; 4 Cond. 286. Gihhons vs. Og- dcn, G AVhea. 448 ; 5 Cond. 134. Weston vs. City Council of Charleston, 2 Pet. 449. It is no objection to the exercise of such jurisdiction, that one party is a state and the other a citizen of that state. Co- hens vs. Virginia, 6 Whea. 264 ; 5 Cond. 90. In order to bring a cause, for a writ of cnor or appeal, within the 25lli section, it must appear on the face of the record : 1st. That some one of the questions stated in that section did arise in the state court : and, 2d. That the question was decided in the slate court, as required in that same section. Crouell vs. Randell, 10 Pet. 368, 398. Inglcc vs. Coolidge, 2 ^\^lea. 363; 4 Cond. 155. Miller vs. Nichols, 4 Whea. 311 ; 4 Cond. 465. Coin. Banh Cincinnati vs. Buckinghatn's Ex'rs, 5 How. 317. The appellate jurisdiclion, in cases brought from the state courts, arising under the conslitutiun, laws and treaties of the 122 JURISDICTION OF THE FEDERAL COURTS. Ar:Tj789. ^g(j states, and the decision is against their vali- conrta, iu dity ; OF Avhcrc is drawn in question the validity cases. union, is not limited by the value of the matter in dispute. Bud vs. Van Ness, 8 Whea. 312 ; 5 Cond. 445. Where the construction of any clause of the constitution, or any statute of the United States, is drawn in question in any state court, the decision must be against the right or title set up under the constitution or statute. It is not enough that the construction of the statute was drawn in question. Williams vs. Norris, 12 Whea. 117; G Cond. 462. Montgomery vs. Hernandez, 12 Whea. 129; 6 Cond. 475. Gordon vs. Cal- cleugh, 3 Cra, 268 ; 1 Cond. 524. Mills vs. Brown, 16 Peters, 525 ; Menard vs. Aspasia, 5 Peters, 505. Where the validity of a treaty, or statute or autliority exer- cised under the United States, is drawn in question, the decision must be against their validity. Crowell vs. Randell, 10 Pet. 368. McCluny vs. Silliman, 6 Whea. 598 ; 5 Cond. 197, 199. Where is drawTi in question the validity of a statute, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, the decision must be in favor of their validity. Martin vs. Hunter's Lsssee, 1 Whea. 304 ; 3 Cond. 575. Com. Bank of Kentucky vs. GriffUh, 14 Pet. 56. Weston vs. City Council of Charleston, 2 Peters, 4'19. Satterlee vs. Matthewson, 2 Peters, 380. It is not indispensable, however, that it should appear on the record in iotidem verbis, or by direct or positive statement, that the question was made, and the decision given by the court below on the very point ; it is sufficient, if it is clear, from the facts stated, by just and necessary inference, that the question was made, and that the court below must, in order to have arrived at the judgment pronounced by it, have come to the very decision of that question as indispensable to that judgment. Crowell vs. Randell, 10 Pet. 368. Armstrong vs. Treasurer of Athens County, 16 Pet. 281. Satterlee vs. Matthewson, 2 Pet. SUPREME COURT. 123 of a statute of, or an authority exercispcl under any state, on the ground of their being repugPxant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the con- struction of any clause of the constitution, or of a A^T. ITPO. 380. Wilson vs. The Blackhird Creek Marsh Association, 2 Pet. 245. Hiclcie vs. Starke, 1 Pet. 94. Harris vs. Dcnnie, 3 Pet. 292, 301. Davis vs. Packard, 6 Pet. 41. Bud vs. Van Ness, 8 Whea. 312 ; 5 Cond. 445. The court has no authority to declare a state law void, on account of its collision with a state constitution. Jackson vs. Lamphire, 3 Pet. 280. McBride vs. Hoey, 11 Pet. 167. The judgment of the supreme court in a case brought by writ of error from a state court, must be confined to the error alleged in the decision of the state court, upon the construction of the act of congress, before the state court. Pottard's Lessee vs. Kihbe, 14 Pet. 353. Tn cases under the 25th .^^ection, the writ of eiTor may be directed to any court in which the record and judgment, on which it is to act, may be found ; and if the record has been remitted by the highest court, &c., to another court of the state, it may be brought by the writ of error from that court. Gelston vs. Hoyt, 3 WTiea. 246 ; 4 Cond. 244. See also The Passenger Cases, 7 How. 283-573. Mager vs. Grima, 8 How. 490. Nathan vs. State nf Louisiana, 8 How. 73. Doe vs. Eslava, 9 How. 421. Doe vs. Mayor of Mohile, 9 Hnw. 451. Maf7tetrsvB. Zanc, 7 Whea. 164; 5 Cond. 265. Holmes vs. Jcnnison, 14 Pet. 540. In the case of CrourU vs. Randall, 10 Pet. 368, the court revised all the cases on jurisdiction under the 25th section of the judiciary act, and laid down the law as they wished it to be universally understood. Chateau vs. JSIargucritc, 12 Pet. 507. 510. 124 JURISDICTION OF THE FEDERAL COURTS. A.T^rs9. treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption, specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or com- mission, may be re-examined and reversed or affirmed in the supreme court of the United States, uprni a ivrit of error, the citation being signed by the chief justice, or judge, or chancel- lor of the court rendering or passing the judgment or decree complained of, or by a justice of the supreme court of the United States, in the same manner, and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon Court mny |j^g rcvcrsal shall also be the same : except that the aHuiiide- supreme court, instead of remanding the cause for a final decision as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned ques- tions of validity or construction of the said con- stitution, treaties, statutes, commissions or autho- rities in dispute. Act, 1789, ch. 20, § 25. SUPREME COURT. 125 FKOM CIFiCUIT COURT, DISTRICT OF COLUMBIA. ACT. 1801. Any final judgment, order or decree,(l) in said -^Xdlr circuit court [of the District of Columbia,] where- """'■^"'" in the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars, may he re-examined, and reversed or affirmed in the (1) The supreme court has jurisdiction of appeals fiom the orphan's court, through the circuit court for the county of Washington, by virtue of tlie act of 1801 ; but by the act of 1816, the matter in dispute, exclusive of costs, must exceed the value of $1,000.00, in order to entitle the party to an appeal. N'ichoUs vs. Hodges, 1 Pet. 562. The plaintiff claimed $1,241.00, and laid his damages at $1,000 . 00 : a general verdict was given. Held, that the matter in dispute is the sum claimed, ad quod damnum. The court can not judicially take notice, that by computation it may pos- sibly be made out as a matter of inference, that the claim may be less than 81,000.00 ; much less can it take notice in a case where the plaintiff mii^lit be allowed interest by a jury, so as to swell th(! cliiini bt'vond that amount. Scott vs. hunt's Adm'r, C Pet. 319. Tlie supreme court has no jurisdiction of causes brought before it, upon a certificate of division of opinion of the judges of the circuit court for the District of Columbia; the appellate jurisdiction extends only to final judgments and decrees. Ross vs. Triphtt, 3 \¥hea. 600; 4 Cond. 351. Nor does an appeal lie, from such court, in a criminal case ; it is confined to civil cases. United States vs. Moore, 3 Cra. 159 ; 1 Cond. 480. A citizen of the District of Columbia, can not bring an action in the circuit courts of the United States, sitting in any of the states ; he is not a citizen of a state. Hepburn vs. Ell- zey, 2 Cra. 445 ; 1 Cond. 444. Wescotfs Lessee vs. Inhahit- a?its, Sfc, 1 Pet. C. C. 45. 126 JURISDICTION OF THE FEDERAL COURTS. ACTviau. supreme court of the United States, by writ of ordrcuu ^^^^^ 0^' appeal, which shall be prosecuted in the ^"'''■^"f ^ same manner, under the same regulations, and Ihstrict of ' o ' Columbia; the sauie proceedings shall be had therein, as is or shall be provided in the case of writs of error, on judgments or appeals upon orders and decrees rendered in the circuit courts of the United States. Act, 1801, ch. 15, § 8. By a subsequent act, it is provided that no cause shall hereafter be removed from said court to the supreme court, by appeal or writ of error, unless the matter in dispute in such cause shall be of the value of one thousand dollars or up- wards, exclusive of costs. wijere Provlded, always, that when any person or per- matlerg in ,' i ii i • i i • dispute sons, body politic or corporate, shall think him, only 10 100 her or themselves, aggrieved by any final judg- ment, order or decree, of the said circuit court, Avhere the matter in dispute, exclusive of costs, shall be of the value of one hundred dollars, and of less value than one thousand dollars, and shall have prayed an appeal, or shall desire to sue out a writ of error to the supreme court of the United States, such person or persons, body politic or corporate, may exhibit a petition in writing, ac- companied by a copy of the proceedings com- plained of, and an assignment of the errors re- lied on, to any judge of the said supreme court; who, if he should be of opinion that such er- rors, or any of them, involve questions of law SUPREME COURT. 127 ACT. IMG sui>i 1 be- di a ■ of such extensive interest and operation as to render the final decision of them by the said supreme court desirable, may, thereupon, at his discretion, and upon the terms and conditions prescribed by law, by his order, to be directed to the clerk of the county in which the proceedings shall have been had, direct such appeal to be al- lowed, or writ of error to be issued ; which shall be done accordingly. When the appeal or writ of error has been ^^'ll\lT directed, and the order filed within thirty days after the rendition of the judgment, order or de- cree, such writ of error, or appeal operates as a supersedeas. Act^ 1816, ch. 39. Appeals also lie to the supreme court, in behalf of or against the United States, from decrees of the said circuit court, insults commenced against the United States, under a special law, by those claiming title to certain lands in the city of Washington, appropriated by virtue of an act of Congress, in draining the low grounds, and orna- menting the public reservations. Acf, 1822, ch. 96, ^ 9. FROM TERRITORIAL COURTS. The superior courts of the several territories of act^soo. the United States, in which a district court has Appeiioie jiirisdic- not been established by law, shall, in all cases in 'iij"^» which the United States are concerned, have and 128 JURISDICTION OF THE FEDERAL COURTS. ACTJS05. exercise, within their respective territories, the superior saine iurisdictlon and powers which are by law courts of '^ ^ •' terrjtoiies. given to, or may be exercised by, the district court of Kentucky district ; and writs of error and appeals shall lie, from decisions therein, to the supreme court, for the same causes, and under the same regulations, as from the said district court of Kentucky. Act 1805, ch. 38. ACTJ7S9. rpj^g jurisdictlou of the district court of Ken- tucky, above referred to, is defined by the judici- ary act, where it is provided, " that the district court in Kentucky shall, besides the jurisdiction given in the act, have jurisdiction of all other causes, except appeals and writs of error, cogni- zable in a circuit court, and shall proceed therein in the same manner as a circuit court ; and writs of error and appeals shall lie from decisions therein to the supreme court, in the same causes, as from a circuit court to the supreme court, and under the same regulations. Act 1789, ch. 20, § 10. ACT 1S47. By an act of 1847, it was provided that the In cases dlstrict court of Florida should take cognizance of all cases pending and undetermined in the court of appeals of the late territory of Florida, in which writs of error, or appeals, could have been taken to the supreme court of the United States ; and writs of error, and appeals, were to lay to the supreme court from the judgments and decrees of the district court in such cases, in the same manner as if such judgments or decrees to district courts. SUPREME COURT. 129 had been made by said court of appeals. Act actuw. 1847, ch. 17, §4. ^--' The same act extended these provisions to which ap- cases pending in the com-ts of Michigan; and a J^i;;.^'"'' later act extended them to cases pending in the courts of Iowa. Act 1848, ch. 12, § 1. These provisions have now been made perpe- acivi848. tual, as follows : All and singular the provisions of the said act (Act 1847, ch. 17), to which this act is a supplement, so far as may be, shall be, and they are hereby made applicable to all cases which may be pending in the supreme or other superior court of and for any territor}^ of the TTnited States, which may hereafter be admitted as a state into the Union, at the time of its ad- mission, and to all cases in which judgments or decrees shall have been rendered in such supreme or superior court at the time of such admission, and not previously removed by writ of error or appeal. Act 1848, ch. 12, § 2. The above are the only general laws in respect to appeals and writs of error to the supreme court from the courts of the difierent territories. In the case of the individual territories, the enact- ments are as follows: — OREGON. Writs of error and appeals from the final deci- _ sions of the supreme court of said territory, shall ]t?fsaiv-° be allowed, and may be taken to the supreme """''^°'" 9 130 JURISDICTION OF THE FEDERAL COURTS. supreme court of territory of Oregon, ACT. 181? court of the United States, in the same manner as from the circuit courts of the United States, where the value of the property, or the amount in controversy, shall exceed two thousand dol- lars, and in all cases where the constitution of the United States, or acts of congress, or a treaty of the United States, is brought in question. Act 1848, ch. 177, §9. MINESOTA. ACT, 1849. Writs of error and appeals from the final de- Appeiiate cisious of Said supreme court (of said territory,) lion from shall bc allowcd, and may be taken to the supreme supreme ' w x court of court of the United States, in the same manner territory ofMineso- and uudcr the same regulations as from the cir- ta. ^ y cuit courts of the United States, where the value of the property, or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent Avitness, shall exceed one thousand dollars. Act, 1849, ch. 121, § 9. UTAH. ACT, 1850. Appellate jurisdic- tion from supreme court of territory of Utah : In cases iuvolvincr Writs of error and appeals lie from the supreme court of this territory to the supreme court of the United States, under the same limitations and conditions as are prescribed for the territory of Minesota (above quoted) with the following ad- dition : " Except only that in all cases involving title to slaves, the said Avrits of error or appeals SUPREME COURT. 131 shall be allowed and decided by the supreme actvis^m rourt, without re^^ard to the value of the matter, tiH'- <" ' " slaves and nropertv or title in controversy: and except, also, questions I r J ' «t personal that a writ of error or appeal shall also be allowed iVeidom. to the supreme court of the T^nited States, from the decisions of the supreme court of the territory, or of any jud^e thereof, or of the district courts of the territory, or of any judge thereof, upon any writ of habeas corpus involving the question of personal freedom. Act, 1850, ch. 51, § 9. NEW MEXICO. The same enactment as for Utah. Act, 1850, actm^ ch. 49, vS 10. JURISDICTION FEDERAL COURTS OF THE UNITED STATES. CIRCUIT COURTS. CIRCUIT COURTS ORGANIZATION AND ADJOURNMENT OP. ACTS, 17o9, The circuit courts (1) for the different districts, i793ri8o-2 consist of a justice of the supreme court, and the circuit (1) A contemporary exposition of the constitution, practised and acquiesced in for a number of years, fixes the construction. As the justices of the supreme court have sat as circuit judges from the time of the first organization of the judicial system, they may lawfully do so, without having distinct commissions for that purpose. Stuart vs. Laird, 1 Cra. 299 ; 1 Cond. 316. The circuit court consists of two judges, any one of whom is capable of performing judicial duties. So, the supreme court consists of seven (now nine) judges, any four (five) of whom may act. It has never been supposed that the death of three (four) of the judges would disqualify the remaining four (five) from discharging their official duties, until the vacancies were filled. There is nothing in the peculiar phraseology of that part of the judicial act, which establishes the circuit courts, that reiiuires a different construction of the words authorizing a single judge to hold those courts, from what is usually given in other cases to clauses authorizing a specified number of courts bow com- posed. 136 JURISDICTION OF THE FEDERAL COURTS. \^^'\m^' district judge of such district ; but no district judge can give a vote in any case of appeal or writ of error from his own decision, but may assign the reasons of such his decision. The supreme court may, however, direct two of its Two jnsti- . . . . ces may iusticcs to hold a circuit court, in cases where hold. '^ , , ' special circumstances shall, in their judgment, render the same necessary. When only one of justices to constitute a court. Pollard and Picheft vs. Dwight ct ah., 4 Cra. 421 ; 2 Cond. 157. If a vacancy occur by the death of the justice of the supreme court, to whom any circuit was allotted, the district judge may discharge the official duties, except that he can not sit upon a writ of error from a decision in the district court. Pollard y%. DwigJu, 4 Cra. 421 ; 2 Cond. 157. United States vs. Lancaster, 5 Whea. 434 ; 4 Cond. 720. The district judge may alone hold a circuit court, although there be no judge of the supreme court allotted to the circuit. Pollard vs. Dwight, 4 Cra. 421 ; 2 Cond. 157. When a district judge docs not judicially sit in a cause in the circuit court, he is considered as absent in contemplation of law, within the meaning of the act of 1793, eh. 22, § 1, though he be on the bench. Bingham vs. Cabot, 3 Dall. 19 ; 1 Cond. 13. It is not necessary to state in the record of a case in the circuit court the absence of the district judge. It is sufficient to state that he did not tit in the cause. Although the judge was present on the bench, yet if he did not sit in the cause, he was absent in contemplation of law. Bingham vs. Cabot, 3 Dall. 19; 1 Cond. 13, 17. The district judge can not sit in the circuit court in a cause brought by writ of error from the district to the circuit court. United States vs. Lancaster, 5 Whea. 434 ; 4 Cond. 720. CIRCUIT COURTS. 137 the said judges shall attend, the court may be ^'^Jf,^• held by the judge so attending. Act.% 1793, c/i. ~ 22, § 1 ; 1789, ch. 20, § 4 ; 1802. ch. 31, § 4. The justice of the supreme court is not required, ^^^"' however, to attend more than one term of a cir- l^^'-l'Jl^^^ cult court in any one year. Such term is desig- jy^tK^Ter naled by him: and at such term, appeals and writs of error from the district court, questions of law arising upon statements of fact agreed by the parties, or specially reserved by the district judge, and cases at law and in equity of peculiar interest or difficulty, shall have precedence. Acty 1844, ch. 96, § 2. The circuit courts held their sessions at the act, 1:93. times and places prescribed by law. But the ^erl^of supreme court, or when that court is not in ses- ^"!^ >." , sion, one of the justices thereof, together with ^^^es. the district judge, may direct special sessions of the circuit courts, for the trial of criminal causes, at any convenient place, nearer Avhere the offen- ces were committed, than the place of the hold- ing of the ordinarv sessions of such courts. Act, 1793, ch. 22, § 3. Special sessions may also be act^'^io. appointed by the presiding judge, and such ses- sions have the same powers as the stated terms. Act, 18 10, ch. 43, § 2. For times when the circuit courts hold their sessions, see Appendix. Where neither of the judges of circuit court ^^^^^^ attend at the commencement of a stated or ad- ^fli^"^; meut of. 138 JURISDICTION OF THE FEDERAL COURTS. ACTU843. journecl session thereof, to open and adjourn the terms of. court in pcrson, either of such judges may, by a written order to the marshal, adjourn said court to any time antecedent to the next stated term. Acf, 1840, ch. 43, § 1. Whenever there is a " con- ACTS 179". 1839. " tagious" or a " dangerous and general" disease at the place where the circuit courts are usually holden, the judges may adjourn the same to some convenient place within the district ; or may, by an order to the clerk, adjourn the same to some future day, specified in such order. Act, 1799, ch. 12, § 7 ; Act, 1839, ch. 3, § 9. JURISDICTION FEDERAL COURTS. CIRCUIT COURTS. GENERAL JURISDICTION.(a) The circuit courts shall have original co^^ni- Acr.nbo O"""" ^"&* zance concurrent with the courts of the several (a) In order to maintain a suit in a circuit court, the juris- diction must appear on the record. Sullivan vs. The Fulton Steamboat Company, 6 Whea. 450 ; 5 Cond. 135. Emory vs. Greenovgh, 3 Dall. 369. Bingham vs. Cabot, 3 Dall. 382 ; 1 Cond. 170. Ttirncr vs. Enrille, 4 Dall. 7; 1 Cond. 205. Abercromhie vs. Dvjmis, 1 Cra. 343 ; 1 Cond. 327. Wood vs. Wagnon, 2 Cra. 9 ; 1 Cond. 335. Capron vs. Van Norden, 2 Cra. 126 ; 1 Cond. 370. Catlett vs. Pacijic Ins. Co., 1 Puine, 594. D' Wolf vs. Harris, 4 Mason, 515. The circuit courts of the United States, sitting in the states of the Union, have no jurisdiction in a case in which a citizen of the District of Columbia is plaintiff. Wcscott's Lessee vs. InJuibitants, ifc, 1 Pet. C. C. Rep. 45. All the cases arising under the laws of the United States are not, per sc, among the cases comprised within the jurisdiction Circuit court. Geaered, 140 JURISDICTION OF THE FEDERAL COURTS ACT^789 states, of all suits (1) of a civil nature at common origiuai, law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners; or an alien is a party,(2) or the suit is between the citizen of the state where the suit is brought, and a citizen of another of the circuit court, under the proA^sions of section 11 of the judiciary act. P. M. General vs. Stockton, 12 Pet. 524. Where the jurisdiction has once attached, no subsequent change in the relation or condition of the parties will oust that jurisdiction. United States vs. Myers, 2 Mar. Dec. 516. Mor- gan vs. Morgan, 2 Whea. 290 ; 4 Cond. 121. Mollan vs. Tor- rance, 9 Whea. 537 ; 5 Cond. 666. Dunn vs. Clarlc, 8 Pet. 1. Clark vs. Matthewson, 12 Pet. 165. (1) The amount laid in the declaration, is the sum in con- troversy. If upon the trial the demandant recovers less, the jurisdiction is not affected. Green vs. Liter, 8 Cra. 229 ; 3 Cond. 97, 100. Den vs. WrigJit, 1 Pet. C. C. 64, 73. Sher- man, vs. Clark, 3 M'Lean, 91. Muns vs. Dupont, 2 Wash. 463. And that whether it be an original suit in the circuit court, or brought by petition fi'om a state court. Gordon vs. Longest, 16 Pet. 97, 104. In cases of concurrent jurisdiction in the state court and the circuit court of the United States, the latter has no discretion- ary authority to stay, or control the suit, or to refuse jurisdic- tion, in order to prevent a collision between the two courts. Wadleigh vs. Veazie, 3 Sum. 165. See also, Tohey vs. County of Bristol, 3 Story, 800, (2) Where both parties are aliens in a civil suit at common law or in equity, the courts of the United States have no juris- diction. Montalet vs. Murray, 4 Cra. 46 ; 2 Cond. 19. Hodg- son and Thompson vs. Bowerbank, 5 Cra. 303 ; 2 Cond. 265. Mossman vs. Higginson, 4 Dall. 12; 1 Cond. 210, CIRCUIT COURTS. HI state. And shall have (3) cxclus'tm cognizance of act^itm. all crimes and offences coornizable under the au- 'xdiuive, ^ uuil cou- But the courts will entertain jurisdiction of a cause where all the parties are aliens, if none of them object to it. Mason vs. Ship Blaireau, 2 Cra. 240 ; 1 Coutl. 397, 402. All the i^arties on each side must be subject to the jurisdiction, or the suit will be discontinued. Corporation of New-Orleans vs. Winter, 1 Whea. 91; 3 Cond. 499. Strawbridgc vs. Curtis, 3 Cra. 267 ; 1 Cond. 523. Ward vs. Arredondo, 1 Paine, 410. But where the parties to a suit are such that the federal courts can entertain jurisdiction, it matters not whether they are administrators, executors, or trustees, and whether those whom they represent are citizens of the same state. Cliappe- deluinc vs. DecJieneau, 4 Cra. 306 ; 2 Cond. 116. Childress \s. Emory, 8 Wliea. 642 ; 6 Cond. 547. Broun vs. Strode, 5 Cra. 303 ; 2 Cond. 265. Briggs vs. French, 2 Sum. 252. United Stales vs. Meyers, 2 Mar. Dec. 516. Where neither of the parties in the suit are citizens of the state in which the action is instituted, the circuit court has no jurisdiction. Shttte vs. Davis, 1 Pet. C.C. 431. A deed executed for the purpose of giving jurisdiction to the federal courts, will not be contenanced so as to sustain the jurisdicti5, § 9. United States vs. Coombs, 12 Pet. 72. The circuit courts are bound to try all crimes committed within the district, which are duly presented before it ; but not to try them in the county where they have been committed. United States vs. Wilson, Bald. 78. The circuit courts have no original jurisdiction in suits for penalties and forfeitures arising under the laws of the United States ; the district courts have exclusive jurisdiction. Ketland vs. The Cassius, 2 Dall. 365. (4) Neither the circuit or district courts, either in suits at law or equity, can send their process into another district. CIRCUIT COURTS. 143 court. And no civil suit shall be brought before actj7w. either of said courts aojainst an inhabitant of the seated out *^ nf th..' dis- united States, by any original process in any ^'''^^i other district than that whereof he is an inhabi- tant, or in which he shall be found at the time of serving the writ, nor shall any district or circuit . . . p . In suits on court (5) nave cognizance 01 any suit to recover promis- except where specially authorized by congress. Ex parte GraJiUJn, 3 Wash. 456. Nor can judgment be rendered against any defendant not served with process issued against his person in the manner pointed out by the judiciary act, unless the defendant waive the necessity of such process by appearance. Levy vs. Fitz- patrick, 15 Pet. 167. TolanA vs. Sprague, 12 Pet. 300. The 11th section of the judiciary act, which relates to the service of process, does not amount to an exception from the general grant of jurisdiction, but secures to parties residing out of the district in which the suit is brought, a privilege of not being liable to be sers'ed with process out of the district in which they reside, or of being compelled by such service to appear in any other district. But this exemption may be waived by a voluntary appearance of the party. But if the party plead the benefit of the privilege, and the cause is set down for a hearing, the docket entries showing a prior appear- ance by a solicitor of the court, can not be taken notice of Harrison vs. Rowan, Pet. C. C. 480, 481, 482, 483. See also, Piquet vs. Swan, 5 Mason, 35. But appearance is a waiver of objection to the jurisdiction. FoUiird vs. Dwiglit, 4 Cra. 421 ; 2 Cond. 157. Logan vs. Fat- rick, 5 Cra. 288 ; 2 Cond. 259. Grade vs. Fahncr, 8 Whea. 699 ; 5 Cond. 561. Flanders vs. Etna Ins. Company, 3 Mason, 158. Harrison vs. Rowan, 1 Pet. C. C. 489. (5) Tlie circuit court, notwithstanding the restrictive clause in the 11th section of the act of 1789, has jurisdiction in a suit 144 JURISDICTION OF THE FEDERAL COURTS. ACTvi;89. f]jQ contents of any promissory note or other sory notes chosc in action in favor of an assignee, unless a l)y an as- 8igi.ee. . — in equity brought by a jutlgment creditor against his debtor and others, they being citizens of difterent states, to set aside conveyances made in fraud of creditors, although the ground of the judgment was a negotiable chose in action, on which, before judgment, a suit could not have been maintained in such court. Bean vs. Smith, 2 Mason, 252. Such restriction does not apply, either directly or construc- tively, to a conveyance of lands from a citizen of one state to a citizen of another state. Briggs vs. French, 2 Sum. 251 : questioning the decisions in Maxwell's Lessee vs. Levy, 2 Dall. 381. S. C. 4 Dall. 330, and Hiirsfs Lessee vs. McNeil, 1 Wash. 70, 83. The circuit court has jurisdiction of a suit brought by the endorsee of a promissory note, who is a citizen of one state, against the endorser, who is a citizen of a different state, whe- ther a suit could be brought in that court by the endorsee, against the maker, or not. Young vs. Bryan, 6 Wliea. 146 ; 5 Cond, 44. An endorsee, being a resident of a different state, may sue in the circuit court, his immediate endorser residing in the state where suit is brought, though the endorsee reside in the same state with the maker. Mollan vs. Torrance, 9 Whea. 537 ; 5 Cond. 6G6. Whore suit is brought against a remote endorser, the plain- tiff, tracing title through an intermediate endorser, must show that such intermediate endorser could sustain an action in the circuit court. Ibid. A general assignee of the effects of an insolvent debtor can- not sue in the federal courts, under the lllh section, if his assignor could not have sued in thole courts. Se7-e vs. Pitot, 6 Cra. 332 ; 2 Cond. 389. The circuit courts have no cognizance of a suit to recover the contents of a promissory note, or other chose in action, in CIRCUIT COUIITS. 145 suit might have been prosecuted in such court lo '^< ^"-s- recover the said contents, if no assignment had had been made, except in cases of foreign bills of exchange. Acf, 1789, c/i. 20, ^^ 1 1. OVER CAUSES REMOVED FROM STATE COURTS : WHERE SUIT IS BROUGHT AGAINST AN ALIEN, OR A CITIZEN OF ANOTHER STATE. If a suit be commenced in any state court (1) Acr^m against an alien, or by a citizen of the state in Removal iiliauses favor of an assignee, unless such suit might have been prose- cuted in such court, if no assignment had been made, except in cases of foreign bills of exchange. Gibson vs. Chew, 16 Pet. 315. Droomgoh vs. Far. 8f McrcJi. Bank, 2 How. 241. Wliere the parties to a note reside in the same slate, at the time of making the note, and the payee afterwards removes to another state, and transfers the note to a citizen of that state, the assignee may maintain an action thereon. The payee liimself could have prosecuted, had no assignment been made. Kirlcman vs. ITamilton, 6 Pet. 20, 25. A note payable to A, or bearer, is payable to any body, and is not affected by the disabilities of the nominal payee. Bank ofKnitucJaj vs. Wisier, 2 Pet. 318, 326. Sinith vs. CIujU^, 15 Pet. 125, 129. Wood vs. Dutnmer, 3 Mason, SOS. The a.ssigneo of a bailbond is not such an assignee as is con- t»^mplated by the 11th section. Bohyshall vs. Oj)cn/icimer, 4 Wash. 482. (1) The judge of a stale court, to which an application is made for the removal of a cause into a court of the United States, must exercise a legal discretion as to the right claimed to remove the cause. The defendant being entitled lo a right to have the cause removed, under the law of the United States, on the facts of the case, the judge of the stale court has no 10 146 JURISDICTION OF THE FEDERAL COURTS. ACTU7S9. which the suit is brought against a citizen of from state auothcr statc, and the matter in dispute exceeds courts brought — discretion to withhold the I'ight. Gordon vs. Longest, 16 Pet. 97, 104. The application having been made in the proper form, and no objection having been made to the facts on which it was founded, it was the duty of the state court "to proceed no fur- ther in the cause;" and every step subsequently taken in the exercise of a jurisdiction in the case, coram non judice. Ibid. One great object in the establishment of the courts of the United States, and regulating their jurisdiction, was to have a tribunal in each state, presumed to be free from local influence ; and to which all who were now residents or aliens might resort for legal redress. And this object would be defeated, if a state judge, in the exercise of his discretion, may deny to the party entitled to it, a removal of the cause. Ihid. Where there are several defendants entitled on appearance to remove a cause to a circuit court from the state court, and some have appeared and some have not, those who have ap- peared can not alone remove the cause. Ward vs. Arredondo, Paine, 410. But this rule only applies, where the judgment or decree must be joint. Ihid. Defendants can remove the cause, or ap];)ear in the circuit court at different times, where their appearance is entered at different times in the state court. Ihid. 415. Where some of the defendants have removed the cause, the others can not enter an original appearance in the court above. Ihid. 415. The circuit court can remand the cause if all the defendants do not originally appear. Ihid. The application to remove the cause must be made at the time of entering an appearance in the state court. Ihid. 415. In order to remove a cause from the state to the circuit court, all the defendants must join in the petition for removal. I CIRCUIT COURTS. \.\' the sum or value of five hundred dollars, cxclu- act, irw sive of costs, to be made to appear to the satis- acaiLst aa faction of the court; and the defendant shall, at citizen of the time ot entermg his appearance in such state state; court, file a petition for the removal of the cause for trial into the next circuit court, to be held in the district, where the suit is pending, or if in the Kentucky district^ to the district court next to he holden It can not be removed as to some of the defendants, and left depending in the state court as to others. Smith vs. Rines, 2 Sum. 338, 347-355. Bcardsley vs. Torrcij, 4 Wash. 286, 288. If a cause be removed from a state court by a defendant, and the phiintift" declares in the circuit court for more than five hundred dollars, the plaintift" can not, by a release of part of his debt so as to reduce it to less than five hundred dollars, take away the jurisdiction of the circuit court. Wright vs. Wells, Pet. C. C. 220. Such cases only are liable to be removed from the state to a circuit court, as might, under the law or constitution of the United States, have been brought before the circuit court by original process. Smith vs. Rines, 2 Sum. 338, 345. Bcardsley vs. Torrey, 4 AVash. 286. Though this section authorises the removal of a suit against an alien, it must be limited, in conformity to the constitution, to cases in which a citizen is a plaintifl'. Conk. Tiea. edit. 1842, 69. Where a defendant had suflered two terms to intervene between the time of his ;i])pearance and his petition for remo- val, the circuit court remanded the cause. Gihsun vs. Johnson, 1 Pet. C. C. 44. Causes improperly removed will aLso be remanded. Pollard vs. Dwight, 4 Cra. 421 ; 2 Cond. 157. Wright vs. Wells, 1 Pet. C. C. 220. 148 JURISDICTION OF THE FEDERAL COURTS. surety ou ; ACT, 1789. therein, (this last paragraph may be regarded as being applicable to those states in which the dis- trict courts have circuit court powers,) and offer good and sufficient surety for his entering in such court, on the first day of the session, copies of said process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the state court to accept the surety, and proceed no farther in the cause, and any bail that may have been originally taken shall be discharged, and the said copies being entered as aforesaid, in such court of the United States, the cause shall then proceed in the same manner as if it had been brought there by origi- nal process. And any attachment of the goods homVoods ^^^ estate of the defendant, by the original pro- cess, shall hold the goods or estate so attached to answer the final judgment, in the same man- ner as by the laws of such state they would have been holden to answer final judgment, had it been rendered in the court in which the suit commenced. Act, 1789, ch. 20, § 12. bail to be discharg- ed : Attach- ment to CIRCUIT COURTS. 149 WHERE LAND IS CLAIMED UNDER GRANTS FROM DIFFERENT STATES. If ill any action (1) commenced in a state act, 17*9. court, the title of land be concerned, and the Removal parties are citizens of the same state, and the 'irom^^taxe matter in dispute exceeds the sum or value of where five hundred dollars, exclusive of costs, the sum da^m Jand or value being made to appear to the satisfaction 't^^^.fs of the court, either party, before the trial, shall r'nt"8tate!! state to the court, and make affidavit, if they require it, that he claims and shall rely upon a right or title to the land, under a grant from a state other than that in which the suit is pending, and produce the original grant, or an exemplifi- cation of it, except where the loss of public re- cords shall put it out of his power, and shall move that the adverse party inform the court, Avhcther he claims a right or title to the land under a grant from the state in which the suit is pend- ing; the said adverse party shall give such infor- (1) Where one party claimed land under a grant from a slate before its division, and the other under a grant from a new state, subsequently formed from a portion of the temtory of the old state, such grants are from different states. Town of Pauht vs. Clark, 9 Cra. 292 ; 3 Cond. 408. And where both parties obtained inchoate titles from tlie same state before its separation into two states, and afterwards, after such separation, received conflicting grants from the two new states, it was held, that the grants were from different statds. Cohon vs. Lewis, 2 ^Vlica. 377 ; 4 Cond. 16S. 150 JURISDICTION OF THE FEDERAL COURTS. ACT, 1769. Party not to give ill evidence any title but that pleaded. mation, or otherwise not be alloAved to plead such grant, or give it in evidence upon the trial; and if lie informs that he does claim under such grant, the party claiming under the grant first mentioned, may then, on motion, remove the cause for trial to the next circuit court to be holden in such district ; or if in Kentucky district^ to the district court neat to he holden therein; but if he is the defendant, shall do it under the same regulations as in the before mentioned case of the removal of a cause into such court by an alien; and neither party removing the cause, shall be allowed to plead or give evidence of any other title than that by him stated as aforesaid, as the ground of his claim. Act, 1789, ch. 20, § 12. ACT, 1789. TO STAY EXECETION ON PETITION FOR A NEW TRIAL. When, in a circuit court, judgment upon a E.Tecu- verdict in a civil action shall be entered, execu- tion may be stayed ^iou may, Oil motiou of cithcr party, at the discre- for peti- tion tor tion of the court, and on such conditions for the a uevv 1 • 1 trial. security of the adverse party, as they may judge proper, be stayed for forty-two days from the time of entering judgment, to give time to file in the clerk's office of said court, a petition for a new trial. And if such petition be there filed within said term of forty-two days, with a certificate thereon from either of the judges of such court. CIRCUIT COURTS. 151 that he allows the same to be filed, which certi- '^^"i^'^o ficate he may make or refuse at his discretion, >'tw trial •^ granted, execution shall, of coarse, be further stayed to the <"""«r next session of said court. And if a new trial be "••oid granted, the former judgment shall be thereby rendered void. Acl, 1789, c/i. 20, § 18. TO FURNISH STATEMENT OF THE CASE. It shall be the duty of circuit courts, (1) in ^'"'^z!!^- causes in equity and of admiralty and maritime facts of i- J J case to iurisdiction, to cause the facts on which they appear on '' ' •' the record; found their sentence or decree, fully to appear ^,'!,,^^^^. upon the record, either from the pleadings and decree itself, or a state of the case agreed by the parties or their coimsel, or, if they disagree, by a stating of the case by the court. Act, 1789, cA. 20, § 19. statemeut. ALLOWANCE OF COSTS. Where in a circuit court, a plaintiff in an action ^^t, i-sg. originally brought there, or a petitioner in equity, costs. when re- covcry is (1) This section is altered and modified by tlic act of 1803, ch. 40, which declares that, on an appeal, a transcript of the liltel. Mil, answer, depositions, and all other proceedings, of what kind soever in the cause, shall be transmitted to the supreme court ; and that no new evidence shall be received, except in admiralty and prize causes. The act of 1S03 repeals those parts of the judiciary act which authorise a writ of error, and a statement of facts in chancery cases. Conn. vs. Pain. 5 Wliea. 424 ; 4 Cond. 716. 152 JURISDICTION OF THE FEDERAL COURTS. ACTv^Tsg other than the United States, recovers less than not equal fhe STim or valiie of five hundred dollars, or a to $5U0. libellant, upon his own appeal, less than the sum or value of three hundred dollars, he shall not be allowed, but, at the discretion of the court, may be adjudged to pay costs. Act, 1789, ch. 20, § 20. OVER. ASSIGNED DEBENTURES. ACTj-99. jj^ cases of assigned debentures,(]) where pay- jurisdic- ii^ent shall be refused by the collectors of the tion over •' assigned districts wlicrc the said debentures were o^ranted, deben- ^ tures. it shall be lawful for the possessor or assignee of the same to institute and maintain a suit in the proper circuit or district court of the United States, a suit against the person to whom such debenture was originally granted, or against any endorser thereof Act, 1799, ch. 22, § 80. OVER SUITS PENDING IN DISTRICT COURTS, WHERE DISTRICT JUDGE IS UNABLE TO PERFORM HIS DUTIES. ACT, 1809. In case of the disability ( 1 ) of the district judge Causes in of either of tlic districts of the United States, to district court (1) These debentures are certificates issued by the various collectors of customs, specifying the amounts due to importers for drawback, in case goods should be re-exported. (1) Under the act of 1809, if the disability of the district judge terminates in his death, the circuit court must remand the certified causes to the district court. This is also in accord- ance with the spirit of the 6th section of the judicial act of 1789, ch. 20, Ex parte, the United States, 1 Gall. 338, 340. CIRCUIT COURTS. lo.'i hold a district court, and to perform the duties of At-T^'^"-' his office, and satisfactory evidence thereof being J^l;.^''';^^'''; shown to the justice of the supreme court allotted isunabi.- J 1^ to periorm to that circuit, in Avhichsuch district court ought histu- the United States, in which it shall appear that fi'nt'>" •^ district the iud"re of such court is any ways concerned court.x. -* '^ ' , where in interest, or has been of counsel for either judg'^-is , iiitLi'aieil, party, or is so related to, or connected with, n.-ybere- . luoved to either party, as to render it improper for him, in circuit „ , . courts. his opinion, to sit on the trial of such suit or ac- tion, it shall be the duty of such judge, on appli- cation of either party, to cause the fact to be entered on the records of the court; and also, an order that an authenticated copy thereof, with all the proceedings in such suit or action, shall be forthwith certified to the next circuit court of the district; and if there be no circuit court in such district, to the next circuit court in the state; and if there be no circuit court in such state, to the most convenient circuit court in an adjoining state ; which circuit court shall, upon such record Cogni- bein^i; filed with the clerk thereof, take cognizance ^udu thereof, in like manner as if such suit or action had been originally commenced in that court, and shall proceed to hear and determine the same accordingly ; and the jurisdiction of such circuit court shall extend to all such cases so removed, as were cognizable in the district court from which the same was removed. Act, 182 1 , ch. 5 1 . zauce in ases. 164 JURISDICTION OF THE FEDERAL COURTS. This act embraces the whole of the 11th sec- tion of the act of 1792, ch. S6, and some further provisions. OBSTRUCTION OF GOVERNMENT SURVEYORS. ACT, 1S30. j\^ny person interrupting, hindering or prevent- lu cases of ing thc siirvcy of the public lands of the United obstruct- , 111- I'll ing gov- States, or of any private land claim, which has surveyors, or may bc confirmed by the United States, shall be considered and adjudged to be guilty of a misdemeanor, and upon conviction in any district or circuit court of the United States, in any state or territory having jurisdiction of the same, shall be fined and imprisoned. Act, 1830, ch. 163 § 1. IN CASES UNDER THE REVENUE LAWS. ACT, 1833. The jurisdiction of the circuit courts of the United States shall extend to all cases, in law or u.u]er°he cqulty, arising under the revenue laws of the United States, for which other provisions are not already made by law; and if any person shall receive any injury to his person or property for or on account of any act by him done, under any law of the United States, for the protection of the revenue, or the collection of duties on imports, he shall be entitled to maintain suit for damage therefor in the circuit court of the United States, in the district wherein the i^arty doing the injury may reside, or be found. Acty 1833, ch. 57, § 2. In cases arisiii revenue laws Damages for inju- ries about such lav/s how reco- vered. CIRCUIT COURTS. 165 OVER CAUSES REMOVED FROM STATE COURTS, AVIIERE SUIT CONCERNS ANY ACT DONE UNDER THE REVENUE LAW. In any case where suit or proceeding shall he actvi833. commenced in a court of any state, aj?ainst any Causes officer of the United States, or other person, for a state court for or on account of any act done under the revenue acts done laws of the United States, or under color thereof, venue or for or on account of any right, authority or title, be remoV set up or claimed by such officer, or other person cuitco'its. under any such law of the United States, it shall be lawful for the defendant in such suit or prose- cution, at any time before trial, upon a petition to the circuit court of the United States, in and for the district in which the defendant shall have been served with process, setting forth the nature of said suit or prosecution, and verifying the said petition by athdavit, together with a certificate, signed by an attorney or counsellor at law of some court of record of the state in which such suit shall have been commenced, or of the United States, setting forth, that as counsel for the peti- tioner, he has examined the proceedings against him, and has carefully enquired into all tlie mat- ters set lorth in the petition, and that he believes the same to be true ; which petition, affidavit and certificate shall be presented to the said circuit court, if in session, and if not, to the clerk thereof, at his office, and shall be filed in said office, and the cause shall thereupon be entered on the Petition auil certi- ficate, aud where liled. 166 JURISDICTION OF THE FEDERAL COURTS. ACTu^. docket of said court, and shall be thereafter pro- Certiorari ccedcd 111 as a causc orijrinally commenced in when pro- " •' per- that court; and it shall be the duty of the clerk of said court, if the suit was commenced in the court below by summons, to issue a writ of certio- rari to the state court, requiring the said court to send to the said circuit court the record and pro- ceedings in said cause ; or if it was commenced Habeas |)y capitts, lic shall issuc 3. Writ of habeas corpus corpus cum J J- causa, cam cttusa — a duplicate of which said writ shall wlieu pro- per, be delivered to the clerk of the state court, or left at his office by the marshal of the district, or his deputy, or some person duly authorized thereto. Stay of p^T^^ thereupon, it shall be the duty of the said proceed- ■*• •' ings below gtatc court to stay all further proceedings in such cause; and the said suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be deemed and taken to be moved to the said circuit court; and any further proceed- ings, trial or judgment therein in the state court, shall be wholly null and void. And if the de- fendant in any such suit be in actual custody on mesne process therein, it shall be the duty of the Marshal to marslial, by virtue of the writ of habeas corpus feiidaut. cum causa, to take the body of the defendant into his custody, to be dealt with in the said cause, according to the rules of law and the order of the circuit court, or any judge thereof, in vacation. meS &c. And all attachments made, and all bail and other security given, upon such suit or prosecution, to conti- uuuo. CIRCUIT COURTS. 167 shall be and continue in like Ibrce and effect, a.s ^civitifl if the same suit or prosecution had proceeded to final judgment and execution in the state court. And if, upon the removal of any such suit or pro- ings'^w'hea secution, it shall be made to appear to the said c'ord'be-'" circuit court that no copy of the record and iloYuehad proceedings therein, in the state court, can be obtained, it shall be lawful for the circuit court to allow and require the plaintiff to proceed de novo, and to file a declaration of his cause of action ; and the parties may thereupon proceed as in actions originally brought in said circuit court : and on failure of so proceeding, judgment oi nonpros, maybe rendered against the plaintiff, with costs for the defendant. Act, 1833, ch. 57, §3. OVER CAUSKS ARISING UNDER THE INDIAN ACTS. So much of the laws of the United States as actvi834 provides for the ininishment of crimes committed incauBes in anv l>lace within the sole and exclusive juris- ^er the diction of the United States, shall be in force in acts. the Indian country: Prmnded, that the same shall not extend to crimes committed by one Indian against the property or person of another Indian. Act, 1834, ch. 161, §25.(1) (1) The exception or proviso in the 25th section of the act of 1834, does not embrace the case of a white man, who, at mature age, is adopted in an Indian tribe. He may, by such adoption, become entitled to certain privileges in the tribe, but he does not thereby become an Indian. The exception is 168 JURISDICTION OF THE FEDERAL COURTS. ACTM834. j^iY penalties which shall accrue under, this act, shall be sued for and recovered in an action of debt, in the name of the United States, before any court having jurisdiction of the same, in any state or territory in which the defendant shall be arrested or found. Ibid. § 27. OVER CAUSES ARISING UNDER ACTS RELATING TO STEAMBOATS. ACTV1838. rpj^g penalties imposed by this act (for carry- lu causes i^or aQods and passeng-ers without a license — for arising un- o o j o tier acts not haviuo^ an inspector's certificate — for not relating to o i steam- havjng experienced and skillful engineers — for not opening the safety valve when the vessel stops — for not having long boats and yawls — for not having fire engine and hose, and iron confined to those who, by the usages and customs of Indians, belong to their race. It can hardly be supposed that congress intended to grant exemption to that class of men who are most likely to become Indians by adoption, and who generally prove to be the most mischievous and dangerous inhabitants of their country. United States vs. Rogers, 5 How. 567. The act of 30th March, 1802, having described what should be considered the Indian country at that time, as well as at any future time when purchases of territory should be made of the Indians ; the carrying of spiritous liquors into a territory so purchased after March, 1802, although the same should be at the time frequented and inhabited exclusively by Indians, would not be an offence within the meaning of the before men- tioned act of congress, so as to subject the goods of the trader, found in company with those liquors, to seizure and forfeiture. American Fur Company vs. United States, 2 Peters, 358, 368. CIRCUIT COURTS. 169 tiller chains or additional steering apparatus— act^sjs. and for not having signal lights at night), may be sued for and recovered in the name of the United States, in the district or circuit court of such district or circuit where the offence shall have been committed, or forfeiture incurred, or in which the owner or master of said vessel may reside ; or the said penalty may be prosecuted for by indictment in either of the said courts. Act, 1838, cJi. 191, § 11. Every captain, enofineer, pilot or other person Peuaities J i- ' ^ * for iiiaii en- employed on board of any steamboat or vessel, tion and propelled in whole or in part by steam, by whose persons misconduct, negligence or mattcntion to nis or boats their respective duties, the life or lives of any person or persons on board said vessel may be destroyed, shall be deemed guilty of manslaugh- ter, and upon conviction thereof before ^ny circuit court in the United States, shall be sentenced to confinement at hard labor for a period not more than ten years. Ihid. § 12. OVER SUITS AND ACTIONS WHERE CIRCUIT JUDGES ARE INTERESTED. In all suits and actions in any circuit court of act, isso. the United States, in which it shall appear that overcau- n 1 • 1 1 r ^ ^^^ where both the judges thereof or the judge thereoi, who circuit IS solely competent by law to tr}^ the same, shall mieresi'd. be any ways concerned in interest therein, or shall have been of counsel for either party, or is, « 170 JURISDICTION OF THE FEDERAL COURTS. ACTV1830, Qj. ^j.g gQ related to or connected with either party as to render it improper for him or them, in his or their opinion, to sit in the trial of such suit or action, it shall be the duty of such judge or judges, on application of either party, to cause the facts to be entered on the records of the court ; and also to make an order that an authenticated copy thereof, with all the proceedings in such suit or action, shall be forthwith certified to the most convenient circuit court in the next adja- cent state, or in the next adjacent circuit; which Oogni- circuit court shall, upon such record and order removal, bciug filed with tlic clcrk thereof, take cognizance thereof in the same manner as if such suit 5r action had been rightfully and originally com- menced therein, and shall proceed to hear and determine the same accordingly, and the proper process for the due execution of the judgment or decree rendered therein, shall run into and may be executed in the district where such judgment or decree was rendered, and also into the district from which such suit or action was removed. Act, 1839, ch. 36, § 8. UNDER POST OFFICE ACTS. ACT,iw> All causes (I) of action arising under this act In causes may bc sued, and all ofiendcrs against this act arising un- (1) The postmaster-general can not sue in the federal courts, under that part of the constitution which gives jurisdiction in CIRCUIT COURTS. 171 may be prosecuted, before any circuit or district •'^^"^■^'*- court of the United States, or tlie district of Co- '-'^JV""''. consequence of the character of the party ; nor is he authorized to sue by the judiciary act. He comes into the federal courts under the authority of an act of congress, the constitutionality of which rests ujion the admission that his suit is a case arising under a law of the United States. Oshorn vs. Bank of United States, 9 Whea. 738 ; 5 Cond. 741, 750. P. M. General vs. Early, 12 Whea. 136 ; 6 Cond. 4S0. Wliere an issue of fact is taken upon the negligence of the postmaster himself, it is not competent to give in evidence the neglect of his assistant. Dunlop vs. Munroe, 7 Cra. 242 ; 2 Cond. 484. In order to make a postmaster liable for negligence, it must appear that the Iops or injury sustained by the plaintiff', was the consequence of the negligence. Ibid. The neglect of the postmaster-general to sue for balances due by postmasters, within the time prescribed by law, although he is thereby rendered personally liable, is not a discharge of such postmasters or their sureties, from liability on their bonds. Locke vs. P. M. General, 3 Mason, 446. Nor does an order from the post-office department, directing a postmaster to retain the balances due, until drawn for by the general post-office. Ibid. Notwithstanding the neglect of the postmaster-general to commence suit, the postmaster and his sureties remain debtors to the government. The responsibility of the postmaster- general is superadded to, not substituted for, that of the obli- gors. Box vs. P. M. Ge?iei-al, 1 Pet. 317, 323. The claim of the United States is not released by the laches of the offie entered before the adjournment sine die, of the district court, unless a different time is specially allowed by the district court, or prescribed by the general rules. The CIRCUIT COUKTS. 17 matter in dispute exceeds the sum or value ^'^'[^'' of three hundr(>d dollars, exclusive of costb, an Steamboat Ncio-England, 3 Sum. 495, Norton vs. Rich, 3 Ma- son, 443. A party may appeal from an interlocutory decree, liavinju^ the effect of a final decree; or may wait until llie final decree is actually entered and then appeal. Ibid. No appeal lies, by any party, from a decree of a district court, unless on his part the matter in dispute exceeds the sum or value of fifty dollars. Shirley vs. Titus, 1 Sura. 447. An appeal must he prayed for and allowed to the next cir- cuit court held within tlu; dislrict. U?)/fri7 S/dfoi vs. Haijncs, 2 McLean, 155. In cases of appeals, the court is very cautious in admitting new matters of defence or allegation to be introduced, where the facts are not new or newly discovered. Cojin vs. Jenhim, 3 Story, lOS. If a final decree be not apj)ealed from, no appeal lies upon any subsequent proceedings. Brig Holhn, 1 Mason, 431. In suits for assaults and batteries on the high seas, no appeal ran be sustained from a decree of the district court, unless there be an ad dumf/um laid in the libel, exceeding fifty dollars. Jenli.s vs. Lcifis, 3 Mason, 503. An appeal may be sustained in part, and be dismissed as to part. Wcscot vs. Bradford, 4 Wash. 492. The rules, regulations and restrictions contained in the 22d and 23d sections of the act of 1789, respecting the time within which a writ of error may be brought, and in what instances it shall operate as a supersedeas ; the citation to the adverse party ; the security to be given ; and the restrictions upon the appellate court in certain cases, ai-e applicable to appeals under tlie act of 1803, and are to be substantially observed, except thai where the appeal is prayed at the same term where the decree or sentence is made, a citation is not necessary. The S,if! Pedro, 2 Whea. 132 ; 4 Cond. 65, 69. Reih/ vs. Lamar, 12 178 JURISDICTION OF THE FEDERAL COURTS. ACT^7s<). appeal shall be allowed to the next circuit court to be held in such district. Jet, 1 789, ch. 20, § 2 1 . See, however, Act, 1803, cJi. 40, following: ACT, 1603. From nil final judgments and deci'ecs in any of AVheii un- the district courts of the United States, an appeal, 1803. where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars shall be allowed to the circuit court next to be holden in the district, where such final judgment, or judgments, decree or decrees, may be rendered ; and the circuit court or courts are hereby autho- rized and required to receive, hear and determine such appeal. Act, 1803, ch. 40. 2 Cra. 349 ; 1 Cond. 419, sustaining last clause of above opi- nion. An appeal under the acts of 1789 and 1803, prayed for and allowed within five years, is valid, although the security was not given until after five years. The mode of taking the secu- rity and the time for perfecting it, are within the discretion of the court. The Dos Hennanos, 10 Whea, 306; 7 Cond. 109. Since the act of 1803, ch. 40, in admiralty as well as in equity causes carried up to the supreme court, the evidence goes with the cause, and and it must consequently be in writing. Anon. 1 Gall. 25. The Schooner Boston, 1 Sum. 328. See also, Wcscot vs. Bradford, 4 Wash. 492. In admiralty, a suit on a money demand already due and payable, under 850.00, but which with the addition of interest exceeded $50.00 at the time the decree was entered, and upon which a decree for more than $50.00 was rendered, is appeal- able under the acts of congress, and by the rules of this court is a plenary action and cames full costs. Godfrey vs. Gilmar- t'm ; MSS. South. Dist. N. Y. Dist. Court,, Oct. 15, Judges Nelson and Betts. CIRCUIT COURTS. 179 JUDGMENT ON REVERSAL. When a judgment or decree shall he reversed act, wm. in a circuit court, such court shall proceed to judgment render such judgment, or pass such decree as the sa'i'** "^ district court should have rendered or passed. Act, 1789, ch. 20, § 24. JUDGMENT ON APPEAL OR WRIT OF ERROR. In all cases which, by appeal or writ of error, ^^"^'^■ are or shall be removed from a district to a circuit J'ldgmeut when to court, judgment shall be rendered in conformity ^® '" ^^■ , , cordance to the opinion of the judge of the supreme court withopi- presiding in such circuit court. Act, 1802, ch. 31, justice of sn[)reine ^ 5. court. FROM FINAL DECREES RENDERED IN STATE COURTS IN SUITS ON FORFEITURES, ETC. By the act hereafter cited, state and county ^^^^'^• courts, within or next adjoining any collection Appe'l'^'^ district established by cono:ress, were authorized '^'"" \" '' o ' cases from to take cognizance of all complaints, suits and ^'•'^''' . ^ * courts in prosecutions for taxes, duties, fines, penalties, s"i'.^'""- ■"■ forJeiiiires and forieitures arising and payable under any of the acts of congress for the collection of taxes or internal duties of the United States ; such juris- diction attached without regard to the amount or sum in controversy, and was concurrent with the district courts. Final decrees and judgments in civil actions, passed or rendered in any state court by virtue 180 JURISDICTION OF THE FEDERAL COURTS. AC1M813. thereof, may he re-examined in the circuit courts of the United States, in the same manner and under the same limitations as are prescribed by the twenty-second section of the act to establish the judicial courts of the United States, passed the twenty- fourth of September, seventeen hun- dred and eighty-nine. Act, 1815, ch. lOJ, §§ 1, 2. IN CASES OF DISTRESS WARRANTS. ACT^B.o. The act of 1820, ch. 1 07, authorizes the issuing Appellate of distrcss Warrants against any delinquent dis- juiisflic- tiori from burslug officcr of the moneys of government ; and decisions of district also provided that if any person felt himself ag- cases of grlcvcd by the issuing of any such warrant, he distress warrants, might prcfcr his complaint to a district judge, who was empowered to issue an injunction, if he thought proper, arid that the same proceeding should be had upon such injunction, as in other cases. And it was further provided, " that if any person shall consider himself aggrieved by the decision of such judge, either in refusing to issue the injunction; or, if granted, on its dissolution, it shall be competent for such person to lay a copy of the proceedings, had before the district judge, before a judge of the supreme court, to whom authority is hereby given, either to grant the injunction, or permit an appeal, as the case may be, ifj in the opinion of such judge of the supreme court, the equity of the case requires it: and thereupon the same proceedings shall be had CIRCUIT COURTS. 181 upon siir-h injunction in the circuit court, as are act^pm prescribed in the district court, and subject to the same conditions in all respects whatever." Acf, 1820, <:h.l07, §§3, 4, 6. CASES OF HABEAS CORPUS UNDJCR THE MCLEOD ACT. By the habeas corpus act of 1842, the justices **^Tl! of the supreme court, or a judge of the district jJ/r^'Jc'^ court, were empowered to grand the writ oi habeas cases'of corpus when the suhjects of foreign states are in '^^''«''''' ± JO corpus custody of the United States, or any one of them, ^^ ?',",!""' on account of any act done, or omitted under any -^*Leod alleged right or authority, set up or claimed under the commission or order or sanction of any foreign state or sovereignty, the validity and effect where- of depends upon the law of nations, or under color thereof From any decision of such justice or judge, an appeal may be taken to the circuit court of the United States for the district in which the said cause is heard. Act, 1842, ch. 257. JURISDICTION FEDERAL COURTS OF THE UNITED STATES. DISTRICT COURTS. DISTRICT COURTS ORGANIZATION AND ADJOURNMENT OF. The district courts are held by the district judge, actvitso who is required to reside in the district for which District ^ courts l.y he is appointed. Jet, 1789, ch. 20, 6 3. ,^vhoir. ^ held. The sessions of these courts are held at the Terms of; tunes and places appointed by law; and special sessions may be held at the discretion of the judge. Act, 1789, ch. 20, §3. In case of the inability of the judge to attend *^T^^"^- on the day appointed for the holding a stated or ^^ ~,j. special or adjourned term of the court, the court ^^ats. may, by a written order from the judge thereof, directed to the marshal of the district, be adjourn- ed to the next stated term of the court, or to such day prior thereto, as may be appointed in such order. Act, 1799, ch, 12, § 6. And whenever a contagious sickness shall render it hazardous to hold any term of the court, the judge thereof, by order issued to the marshal of the district, may adjourn the same to some convenient place with- in the district. Acty 1799, ch. 12, § 7. 186 JURISDICTION OF THE FEDERAL COURTS ACTJ850. jjj (>j^gg of ^i^g sickness or other disability of a whenheid district iiidffe, to hold any term of a district court, by another J f^ ' J ^ . , ■■ judge- in hig.district, or of a circuit court, in the absence of a circuit judge, upon such fact being certified by the clerk to the circuit judge, such judge may appoint any other district judge of any other judi- cial district to hold such term of the court. In case of the non-residence or inability of the cir- cuit judge to make such appointment, the clerk may certify the same facts to the chief justice of the United States, who may make such an ap- pointment. A new designation and appointment of any other district judge may be made when necessary. Act, 1850, ch. 30, §§1,2, 4. D.'ath of In case of the death of a district iudge,(l) and distnct judge, his vacancy not being supplied, all process, plead- eliect of. ings and proceedings, of what nature soever, pending before a district court, shall be continued (1) Where a cause was removed by certiorari from a district court to a circuit court under the act of 1809, ch. 20, § 6, on account of the disabihty of the circuit judge, and after the is- suing of the order, but before the commencenent of the term of the circuit court, the district judge died, it was held that the cause must be certified back to the district court ; since the act of 1809 only provided for the case of disability, and the act of 1789 required, that in cases of death, all causes were continued of course to the next term of the district court. Ex parte the United States, 1 Gall. 338. Judgments and decrees of circuit and district courts in any state cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such state. Act 1840, ch. 43, § 4. DISTRICT COURTS. 197 of course until the next stated session after the a^t. i?*. appointment and acceptance of office by his suc- cessor. Act, 1789, c/i, 20, § 6. For limes when the district courts in the va- rious districts have their sessions. See Appendix. .Judgments and decrees docketed in the United States courts are liens upon lands situated any where within the district, and it is not necessary to file a transcript in any state office. State laws limiting the period of a lien apply to judgments and decrees of United States courts ; but state acts prescribing what acts arc necessary to be done to create or make a lien, do not embrace those judgments and decrees. The above opinions declared by judges Nelson and Betts, in the case of Crandall, resjy. and Cleaveland Stip. ads. Cropsey, MSS., Oct. 15, 1851; Dist. Court, South. Dist. of New- York, where execution had been levied upon lands in another county than that in which judgment had been rendered, and where no transcript had been filed, on a motion to set aside the execu- tion, because no lien had been acquired under the laws of the state of New York. In pleading judgments of the United States courts, it is not necessary to show that they had jurisdiction. Bement vs. Wis- ner. Sup. Ct. New-York, 1 Code. Reports, N. S. 143. It is universally understood that the judgments of the courts of the United States, although their jurisdiction be not shown on the pleadings, are yet binding on all the world : and that though erroneous, they are binding until reversed; and that want of jurisdiction can only be made available on a writ of enor. Ex parte Watkins, 7 Pet. 193, 207. JURISDICTION FEDERAL COURTS. DISTRICT COURTS. GENERAL JUllISDICTIOK. The district courts (1) shall have, exclusively of Acrjres the courts of tJie several slates, cognizance of all r)istrict courts, (1) Punishment by whipping, and hy standing in the pillory, abolished by Acts 1839, ch. 36, § 5, and 1842, ch. 188, § 4. By a late act of Congress, the district courts have jurisdiction, concurrent with the circuit courts, of all crimes, except in ca- pital cases. Act 1842, ch. 188, § 3. See same, postea. Admiralty jurisdiction now extends over the lakes and inland waters. Act 1845, ch. 20. See s,:i.vne, postea. In cases where the United States sue, jurisdiction now at- taches without regard to amount. Act 1815, ch. 101, § 4. See .same, postea. The principles of the common law arc inapplicable to pro- cess and proceedings in courts of admiralty. Clarhe vs. Neiv- Jerscy Steam Nav. Com., 1 Story 531 ; S. C. 4 Law Rep. 134. Ehvcll vs. Mart'm, Ware 53. Brown vs. Lull, 2 Sum. 443. 190 JURISDICTION OF THE FEDERAL COURTS. ACTV1789. crimes and offences that shall be cognizable under cogniz'nce tlic autliorlty of the United States, committed ot crimes, &c. The rules of pleading in the admiralty do not require all the technical precision which is required by the common law; but they require that the cause of action should be clearly set forth, so that a plain and direct issue may be made up on the charge, and the evidence must be confined to the matter in issue. Jenks vs. Lewis, Ware 51. Ellison vs. Shift Bellona, Bee 106. Brig Sarah Ann, 2 Sum. 206. Brown vs. Lull, 2 Sum. 443. Sckr. Hoppet vs. United States, 7 Cra. 389 ; 2 Cond. 542. Brig Caroline vs. United States, 7 Cra. 496 ; 2 Cond. 584. Schr. Anne vs. United States, 7 Cra. 570 ; 2 Cond. 611. The Samuel, 1 Whea. 9 ; 3 Cond. 446. The Merino, 9 Whea. 391 ; 5 Cond. 623. The Palmyra, 12 Whea. 1 ; 6 Cond. 397. The district courts, in their practice, follow the general lules of the admiralty. Jennings vs. Carson, 4 Cra. 2 ; 2 Cond. 2. Decisions under the 13 and 15 statutes of Rich. II. are not binding on the courts in this country. Steele vs. Thacher, Ware 91. The subject matter of the controversy generally determines the question of admiralty jurisdiction. Davis vs. a new brig, Gilpin 473. Sloop Mary, Paine 671. Zane vs. Brig President, 4 Wash. 453. Each district court of the United States possesses all the powers of a court of admiralty, whether considered as an in- stance or prize court. Glass vs. Sloop Betsy, 3 Dall. 6; 1 Cond. 10 ; 4 Dall. 426, 429. The Amiable Nancy, Paine 111 ; S. C. 13 Whea. 546, 4 Cond. 322. Burke vs. Trevitt, 1 Mason 96. Penhallow vs. Doane's admWs, 3 Dall. 54, 1 Cond. 21. Broicn vs. United States, 8 Cra. 110; 3 Cond. 56. As to how far the district courts, when sitting as instance courts, are to regard the law of the admiralty court of England on questions of jurisdiction and rules of decision, Zane vs. Brig President, 4 Wash. 453. DISTRICT COURTS. 191 within their respective districts, or upon the high '^' t. itw. seas, where no other punishment than whipping, As to cases oi prize, see fui'tlier Jennings vs. Carson, 4 Cra. 2 ; 2 Cond.2. The XJlpiano, 1 Mason 91. The St. Lawrence, 2 Gall. 20. Mahoon vs. Brig Glocester, Bee 395. They have at least as full a jurisa Vengeance, 3 Dall. 297; 1 Cond. 132. In cases of seizure made on land, the district courts proceed as courts of common law, and the trial of issues of fact is by a jury : in seizures on water, it proceeds as an instance court, and the trial is to be by the court. The jurisdictions and proceed- ings are distinct. The Sarah, 8 Whea. 391 ; 5 Cond. 472. When the seizui-e is made within the limits of any judicial district, the district court of that district has exclusive cogni- zance ; but the cognizance of seizures on the high seas bclono-s to any district court into which the property is brought. Sloop Abhy, 1 Mason 360.' The Meri7io, 9 Whea. 391 ; 5 Cond. 623. Brig Little Ann, Paine 40. The revenue jurisdiction of the district courts, proceeding in rem, only extends to cases of seizure for forfeiture under laws of impost, navigation or ti-ade. Hence those courts have no jurisdiction, by way of libel, to enforce the payment of duties. United States vs. Chests of tea, 12 Whea. 4SG, 6 Cond. 593. See also in respect to seizures, Slocu7n vs. Mayberry, 2 AVliea. 1, 4 Cond. 1. Gelston vs. Hoyt, 3 \Vliea. 246, 4 Cond. 244. Schr. Bolina, 1 Gall. 75. Burke vs. Trevitt, 1 Mason, 96. 192 JURISDICTION OF THE FEDERAL COURTS. ACT^789. jjqi^ exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment The district courts have exclusive jurisdiction of forfeitures. Hall vs. Warren, 2 McLean, 332. As to the admiralty jurisdiction in cases of Salvage, Mate- rial Men, Colluian,, Wages, Pilotage, Hypothecation, and Bot- tomry Bonds, see "Admiralty Rules," under those titles. See also, in respect to Charter Parties, Schr. Volunteer, 1 Sum. 551 ; Certain Logs of Mahogany, 2 Sura. 589 ; Bills of Ransom, Maisonnaire vs. Keating, 2 Gall. 341 ; and generally. Brig Alerta, 9 Cra. 359 ; 3 Cond. 425. The Josefa Segunda, 10 Whea. 312 ; 6 Cond. 111. Hudson vs. Guestier, 6 Cra. 281 ; 2 Cond. 374. Brown vs. United States, 8 Cra. 110; 3 Cond. 56. Thomson vs. The Ship Catharine, Peters Adm. Dec. 104. U Arina vs. Manwaring, Bee, 199. Bains vs. Schr. Jamesand Catharine, Baldw^in, 544, 567. The district courts, in admiralty, though unlimited as to the subject matter over which they have cognizance, are neverthe- less limited in point of locality, as they cannot send their pro- cess out of their particular district. Ex parte Graham, 4 Wash. 211. Where the district and state courts have a concurrent juris- diction, the right to maintain the jurisdiction attaches to that tribunal which first exercises it. Ship Robert Fulton, Paine 620. The district courts, as courts of adrriiralty and maritime jurisdiction, may entertain suits for all torts, damages and un- law^ful seizures at sea; and as a court of revenue, may enter- tain suits for the trial of property seized for violation of muni- cipal law^ ; and as incident to this jurisdiction may compel a redelivery of the property, and award damages for any loss of, or injury to it. Burke vs. Trevitt, 1 Mason, 96. See also note to Rule 16, " Admiralty Rules." The courts of the United States have exclusive jurisdiction of all seizures made on land or water, for a breach of the laws DISTRICT COURTS. 193 not exceeding six months, is to be inflicted; and ac-m^w. shall also have exclusive orimnal cognizance of all of causcB <-J <-> of admiral- civil causes of admiralty and maritime iurisdic- 'yau.imu •^ ntima ju- of the United States ; and any intervention of a state autliority, which, by taking the thing seized out of the liands of the United States officer, might obstruct the exercise of this jurisdiction, is illegal. Slomm vs. MayherrTj, 2 Wliea. 1 ; 4 Cond. 1. As an abstract question, it is difficult to understand on what ground a state court can claim jurisdiction of civil suits against foreign consuls. By the constitution, the judicial power ex- tends to all cases affecting ambassadors, other public ministers and consuls ; and the judiciary act of 1789 gives to the district courts, exclusively of the courts of the several states, jurisdic- tion of all suits against consuls and vice-consuls, except for certain offences enumerated in that act. Davis vs. Packard, 7 Pet. 276. If a consul, being sued in a state court, omits to plead his privilege of exemption from the suit, and afterwards, on re- moving the judgment of the inferior court to a higher court hy writ of error, claims the privilege, such an omission is not a waiver of the privilege. If it was to be viewed merely as a personal privilege, there might be grounds for such a conclusion; but it can not be so considered : it is the privilege of the coun- try or government which the consul represents. This is the light in which foreign ministers are considered by the law of nations, and our Constitution and laws seem to put consuls on the same footing in this respect. Ibid. Proceedings by libel and process of arrest, and by attach- ment, were taken against the commander and an armed vessel of the French Republic, for an alleged illegal capture, on the high seas, of a neutral merchant vessel, the property of a citizen of the State of Pennsylvania ; the commander and the armed vessel being in the poit of Philadelphia. The supreme court granted a writ of prohibition to the district judge ; by which 13 194 JURISDICTION OF THE FEDERAL COURTS. ACTW789. xiQYi^ including all seizures under laws of impost, risdiction navigation, or trade of the United States, where and 801- '^ , 1 . 1 ETires oa the sejzures are made on waters which are navi- wator. further proceedings were prevented, as the district court had no jurisdiction. United States vs. Peters, 3 Dall. 121 : 1 Cond, GO. For a full examination of the lav/ concerning admiralty jurisdiction in cases of maritime contract, and in cases of torts and injuries received on the high seas, see De Lovio vs. Boit, 2 Gall. 398. Hoffman, in his Course of Legal Study, vol. 2, p. 465, 2d ed., speaking of this case, says, " This case is a very remark- able one, being in truth a learned and elaborate essay on ad- miralty jurisdiction, and one of the most elementary and lumi- nous vicw^s of the subject extant. This great opinion ought to be thorouglily studied by those w^ho aim at solid attainments in this department of the law." See also Corfield vs. Coryell, 4 Wash. 371. The act of congress, giving to the district courts cognizance of all civil cases of admiralty and maritime jurisdiction, com- prehends all maritime contracts ; contracts relating to the na- vigation, business, or commerce of the sea ; and contracts for maritime service, in the building, repairing, supplying and navigating ships. Davis vs. A new brig, Gilpin 471, 477 ; quoting De Lovio vs. Boit, 2 Gall. 475, and The Jerusalem, 2 G all. 347. But sec contra. Bains vs. ScAr James and Catherine, Bald. 544, 568. The same strictness does not apply to maritime contracts, as prevails at common law. Ellison vs. Ship Bellona, Bee 106. The terms, " usages and principles of law," " courts of law and equity" and " admiralty," as used in the acts of congress, refer to the common law, and not to the civil law. Bains vs. Schr. James and Catharine, Baldwin 544, 557, 563. The admiralty courts of the United States may proceed under their general powers, in every case in which they are DISTRICT COURTS. 195 gable from the sea by vessels often or more tons ^^'^^^ burthen, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive original cognizance of all oulaLY*^' seizures on land, or other waters than as aforesaid, suits*' for made, and of all suits for penalties and forfeitures J^^°* "*""' incurred, under the laws of the United States. not restrained from the exercise of those powers by statute. United States vs. Schr. Little Charles, 1 Mar. Dec. 380. In general, set-offs are not admissible in admiralty. The Mentor, 4 Mason 84. The forfeiture of a vessel, under the acts of congress against the slave trade, is a case of admiralty and maritime jurisdic- tion, and not of common law. United States vs. The Sally, 2 Cra. 405 ; 1 Cond. 432. See also, Ibid. vs. La Vengeance, 3 Dall. 297 ; 1 Cond. 132. All seizures, under laws of impost, navigation and trade of the United States, where the seizures are made in water navi- gable from the sea, by vessels of ten or more tons burthen, are ci^^l causes of admiralty and maritime jurisdiction, and are triable without a jury. United States vs. The Betsey, 4 Cra. 443; 2 Cond. 168. WJiclan vs. United States, 7 Cra. 112; 2 Cond. 437. The clause " saving and reserving to suitors in all cases a common law remedy where the common law is competent to give it" means, that in cases of concurrent jurisdiction in ad- miralty and common law, the jurisdiction in the latter is not taken away. The plaintiff may sue either in the admiralty or at common law, but the defendant cannot after suit brought, force the plaintiff into a common law court. Waring vs. Clark, 5 How. 441, 4G0-1. 1*96 JURISDICTION OF THE FEDERAL COURTS. ACT^789. j^j-^j shall also have cognizance, concurrent with Of causes iJiq courts of tJic scvcral states, or the circuit courts, where alien sues gg tlio casc mav bc, of all causes where an alien for a tort. "^ , r ^ ^ j? sues for a tort only in violation of the law of na- tions, or a treaty of the United States. And shall ^r -. u also liave cognizance, concurrent as last mentioned, ()i suits by <-> United Q^ ^1^ g^^^g ^i common law where the United states ; States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And shall also have jurisdiction, and of exclusively of the courts of the several states, of all against sults agslust cousuls, or vlcc-consuls, except for offences above the description aforesaid. Act^ 1789, ch, 20, § 9. TO APPOINT COMMISSIONERS BEFORE WHOM APPRAISERS OF VESSELS MAY BE SWORN. ACT. 1794. The district judges of the United States shall To anoint be authorized to appoint a commissioner or com- JJou^^rto missioners, before whom appraisers of ships and ^!:!»;l?rf''" vessels, or goods, wares and merchandise, seized anrother ^^^ brcachcs of any law of the United States, property, j^^y. |^g swom or affirmed ; and such qualifica- tions made before such commissioner or commis- sioners, shall be, to all intents and purposes, as effectual as if the same were taken before the said judges in open court. Act^ 1794, ch. 64, § 1. DISTRICT COURTS. 197 IN CASES OF PETITION FOR REMISSION OF FINES AND FORFKITURES. Whenever any person or persons, (1) who shall act.uw have incurred any line, penalty, Ibrfciture, or dis- in cages ot , .,. , , . , . petitions ability, (a) or shall have been interested in any i<>r remij- vessel, goods, wares, or merchandise, which shall ianes, &c. (a) Such, for example, as the incapacity to hold any office under the United States for the period of seven years, inflicted by the 50th section of the collection act of 1799 (vol, 3, p. 136), for a violation of its provisions. (1) The petition for remission is generally verified by the oath of the claimant {Dun. Aclm. 284 ; Conk. Prac. 487) ; and is exhibited to the collector and district attorney, and verbal notice given to the marshal of the time and place of the hear- ing [Ibid. 285) ; or a notice given to the attorney, collector and naval officer when necessary [Conk. Prac. 488, 490). Some secretaries of the treasury have refused to act upon such petitions, until after a judgment at law, or an admission that the forfeiture had been incurred. The judge of the district court of Massachusetts declines to act upon a petition for a remission, unless all proceedings at law have been determined, or the forfeiture is admitted in the petition to have been incurred. Dun. Adm. 287. See also Dun. Adm. 281 - 288, 2d ed. Cmk. Prac. ed. 1842. 484 - 494. Under the act of 1797, the district judge is bound, upon a petition for remission, to state the facts, and not merely the cndence of the facts ; and the secretary is bound by this state- ment of facts, and can not legally act upon other evidence. The district judge, in slating such facts, acts judicially ; and the proof before him must be made by competent, as well as by credible testimony. A statement by the district judge, that the claimant only swore to the facts before him, is no legal 198 JURISDICTION OF THE FEDERAL COURTS. ACT^797. j^ave been subject to any seizure, forfeiture or disability, by force of any present or future law- proof upon whicli the secretary is authorised to remit. The Margoretta, 2 Gall. 515. The secretary of the treasury has authority to remit a for- feiture or penalty accruing under the revenue laws, at any time before or after a final sentence of condemnation or judgment for the penalty, wntil tlic money is actually paid over to tJie col- lector for distribution. United States vs. Morris, 10 Wliea. 246; 6 Cond. 90. United States vs. Lancaster, 4 Wash. 64. Whether, after payment, the secretary may remit the share belonging to the United States — query? Conic. Prac. ed. 1842, 486. Petitions in such cases have been presented to the district judge of Massachusetts ; but the proceedings have not been 60 far maintained as to be transmitted to the secretary of the treasury. Dun. Adm. Prac. 2d ed. 284. But he can not remit penalties, unless in cases provided for by law. If he recites his authority under a special act, and remits in pursuance of that act, the remission, if unsupported by that act, can not be supported under the general act of 1797. The Margarctta, 2 Gall. 515. After Jlnal judgment, the share belonging to the collector vests absolutely, and can not be remitted. The Margaretta, 2 Gall. 505. The Hollcn and cargo, 1 Mason, 431. United States vs. Lancaster, 4 Wash. 64. The contrary has, however, been held by the supreme court in United States vs. Morris, 10 Whea. 246 ; 6 Cond. 90, and in McLane vs. United States, 6 Peters 404 ; in which cases it was considered that the right of the collector was subject to the right of the government to release. But whatever is reserved to the government oixt of the for- feiture, is reserved as well for the seizing officer as for itself^ and is distributable accordingly. The government has no au- thority to release the collector's share as such, and yet retain DISTRICT COURTS. 199 of the United States, for the laying, levying, or A^r^^-j; collecting any duties or taxes, or by force of any present or future act, concerning the registering and recording of ships or vessels, or any act con- cerning the enrolling and licensing ships or ves- sels employed in the coasting trade or fisheries, and for regulating the same, shall prefer his peti- tion to the judge of the district, in which such ^vhat pe- fine, penalty, forfeiture or disability shall have ilJ^^el ^° accrued, truly and particularly setting forth the circumstances of his case ; and shall pray that the same may be mitigated or remitted, the said Power of judge shall enquire m a summary manner into the same. the circumstances of the case ; first causing rea- sonable notice to be given to the person or persons claiming such fine, penalty or forfeiture, and to the attorney of the United States for such dis- trict, that each may have an opportunity of show- ing cause against the mitigation or remission thereof; and shall cause the facts v/hich shall appear upon such enquiry, to be stated and an- nexed to the petition, and direct their transmis- to itself iho other part of the forfeiture. McLane vs. United States, G Pet. 404. The Margaretta, 2 Gall. 515. Courts, in considering the question of forfeiture, disregard a refusal of the secretary of the treasury to remit a penally. Ship Cotton Planter, 4 Paine, 23. It is doubtful whether fines for offences can be remitted under this act, as the President has the power to grant reprieves and pardons for offences. Ex parte Marquand, 2 Gall. 555. United States vs. Mann, 1 Gall. 177, 186. 200 JURISDICTION OF THE FEDERAL COURTS. ACT^797. gjQjj ^Q ^Yie secretary of the treasury of the Uni- To send fed States, who shall, thereupon, have power to facts to the secretary niitifiTate or remit such fine, forfeiture or penalty, ofthotrea- ^ ... . Bury, who or rcmove such disability, or any part thereof, if, may remit. . in his opinion, the same shall have been incurred without wilful negligence, or any intention of fraud, in the person or persons incurring the same; and to direct the prosecution, if any shall have been instituted for the recovery thereof, to cease and be discontinued, upon such terms or condi- tions as he may deem reasonable and just. Act, 1797, sess. 2, cli. 13, § 1, made perpetual by Act, 1800, ch. 6. State courts have the same power. OVER ASSIGNED DEBENTURES ACT, 1799, _L ' Act, 1799, ch. 22, § 80. Same powers as a cir- j^jg. cuit court. See " Circuit Courts," page 152, Over as- •igne benturea CASES OF INJUNCTIONS. ACTV1807. xhe judges of the district courts of the United To grant Statcs, shall havc as full power to grant writs of injun'tions in cases injunctiou to opcratc within their respective dis- ■where • n i • i judges of tricts, in all cases which may come before the thesup'mo , . . , . , . . , court can. circuit courts withm their respective districts, as is now exercised by any of the judges of the su- preme court of the United States, under the same rules, regulations and restrictions, as are prescrib- ed by the several acts of congress, establishing DISTRICT COURTS. 201 the judiciary of the United States, any law to act^«"- the contrary notwithstanding; Piwickd, that the ""w long same shall not, unless so ordered by the circuit tiuue. court, continue longer than to the circuit court next ensuing, nor shall an injunction be issued not^bJ^' by a district judge, in any case where a party has ^^'^'^^^ ' had a reasonable time to apply to the circuit court for the writ. Act, 1807, ch. 13. As to notice required on the issuing of injunc- ^°'^^^^ °"- tions generally, see Act, 1793, ch. 22, § 5, quoted in " Powers in Common," p. 35 ; and see also reference following the same. As to injunctions in " Cases of Distress War- Canicular " cases. rants," see that title, postea. As to injunctions in cases of California land claims, see postea. PRIZE CASES. In the case of all captured vessels,(l) goods and act^siz. effects, which shall be brought within the juris- Jurisdic (1) There is some doubt and uncertainty as to Avhether this section, and the act of 1812, is still in force, or is obsolete. This act was in fact supplemental or additional to the act of 1812, ch. 102, passed June 18, dcclai-ing war between the United States and England, and authorizing the president to employ the land and naval forces in its prosecution, and also authorizing him to issue letters of marque and reprisal. Chap. 107, specifies the conditions upon which letters of marque and reprisal could be granted, and the duties and liabilities of those receiving them. Both acts, therefore, with an additional act, (Act 1813, ch. 13,) have been, by some, deemed obsolete, as tion m cases of prize. 202 JURISDICTION OF THE FEDERAL COURTS. ACTV1S12. diction of the United States, the district courts of the United States shall have exclusive original being limited in their effect to the war of 1812. In the statutes at large, both acts of 1812 are marked as "obsolete;" and in Gordon's Digest, and in Conklin's and Dunlap's treatises on Admiralty Practice, no allusion is made to them, as being still in force. Benedict, however, in his late work on Admiralty Jurisdiction and Practice, (page 281,) cites the above sixth sec- tion as still in force ; and Mr. Chancellor Kent, in his Commen- taries, (vol. 1, 6th ed., page 355, note,) also refers to the act as still binding. So far, however, as the question of jurisdiction of the dis- trict courts in cases of prize is concerned, it is held that such courts have an inherent jurisdiction in such cases, and there- fore it is a matter of but little importance, whether the act of 1812 is still in force, or expired when the motive which dic- tated its enactment — the war of 1812 — terminated. The fol- lowino" are some of the decisions on this point. Every district court possesses all the powers of a court of admiralty, whether considered as an instance or a prize court. Glass vs. Sloop Betsey, 3 Dall. 6 ; 1 Cond. 10. Questions of prize are exclusively of admiralty jurisdiction. Bingham vs. Cahot, 3 Dall. 19; 1 Cond. 13. See also The Amiahle Nancy, 3 Whea. 546 ; 4 Cond. 322. Penhallow vs. Doan's ExWs, 3 Dall. 54 ; 1 Cond. 21. The Emulous, 1 Gall. 563, 575. And in cases of capture without just cause, the court may decree restitution in whole or in part. Jennings vs. Carson, 4 Cra. 2 ; 2 Cond. 2. L'Amistad de Rues, 5 Whea. 385 ; 4 Cond. 697. And may carry into effect the sentences of the old continen- tal courts of appeal in prize cases. Ihid. Eut they have not jurisdiction on a libel for damages, for the capture of a vessel as prize by the commissioned cruizer of a belligerent power, although the captured vessel belongsd to DISTRICT COURTS. 203 cojrnizance thereof, as in civil causes of admiralty Acivisia. and maritime jurisdiction ; and the said courts, or the courts being courts of the United States, into which such causes shall be removed, and in which they shall be finally decided, shall and may decree restitution, in whole or in part, when the capture shall have been made without just cause. And if made without probable cause, or otherwise unreasonably, may order and decree damages and costs to the party injured, and for whicli the owners and commanders of the ves- sels makin^!^ such captures, and also the vessels, shall be liable. Act, 1812, ch. 107, § 6. citizens of the United States, and the capturing vessel and her commander be found and proceeded against within the juris- diction of the court, the captured vessel being carried infra prasidia of the captors. United States vs. Peters, 5 Cra. 115 ; 2 Cond. 202. The Cassius, 3 Dall. 121. They have jurisdiction over captures made by foreign vessels of war, of the property of our citizens, of other nations with whom we are at peace, where such vessels act under a com- mission issued wilhin the United States, or are equipped, or their force augmented in this country in violation of its laws and neutrality ; and this, whether such capturing vessel be a public ship of war, or a privateer. Talbot vs. Janscn, 3 Dall. 133 ; 1 Cond. 62. Moody vs. The Betsey, 3 Dall. 288, n. Brig ' Alerta, 9 Cra. 159 ; 2 Cond. 425. The Estrclla, 4 Whea. 298 ; 4 Cond. 459. Santissi?na Trinidad, 7 Whea. 283 ; 5 Cond. 284. See also Kent Com. 355. Benedict's Adm 281. Dunlap's Adm. 61, 67. Ser. Cons. Law, 197. 204 JURISDICTION OF THE FEDERAL COURTS. CASES OF CAPTURES. ACT, 181?. Oa com- plaints ia cases of captures. The district courts shall take cognizance of complaints by whonisover instituted, in cases of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof Act^ 1818, ch. 88, § 7. ACT, 1815. Where U. S. or its officers sue. IN CASES WHERE UNITED STATES SUE, OR ITS OFFICERS SUE. The district courts of the United States shall have cognizance, concurrent with the courts and magistrates of the several states, and the circuit courts of the United States, of all suits at common law, where the United States, or any officer there- of, under the authority of any act of congress, shall sue, although the debt, claim or other mat- ter in dispute, shall not amount to one hundred dollars. Act, ]8l 5, ch. 101, § 5. See " Circuit Courts," ante, page 155, and the above act there quoted, and the notes to same. IN CASES OF DISTRESS WARRANTS. ACT. 1820. The act of 1820, which authorises the issuing la cases of of dlstrcss warrauts against delinquent disburs- warraSs. ing officcrs of the government, for the amounts with which such delinquents are chargeable, also provides : DISTRICT COURTS. 205 Bond ou. That if any person (1) should consider himself Acx^isao. aff<]rrieved by any warrant issued under this act, ii-junciiou he may prefer a bill of complaint to any district granted. judge of the United States, setting forth therein the nature and extent of the injury of which he complains; and thereupon the judge aforesaid may, if in his opinion the case requires it, grant an injunction to stay proceedings on such Avar- rant altogether, or for so much thereof as the nature of the case requires ; but no injunction shall issue till the party applying for the same shall give bond and sufficient security, condi- tioned for the performance of such judgment as shall be awarded against the complainant, in such amount as the judge granting the injunction shall prescribe; nor shall the issuing of such injunc- (1) Where a warrant of distress has been issued under the act of 1820, any person feeling himself aggrieved, whether an officer or not an officer, a debtor or not a debtor, may, if the warrant has been levied on his person or property, bring his case by appeal before a district judge, and have a final adjudi- cation by him. United States vs. Nourse, 9 Peters, 8. The validity of the act of 1820, which authorises the agent of the treasury to issue a distress warrant against a defaulting officer and his sureties, may well be doubted. This procedure deprives the citizen of the right of a trial by jury. It is a most liarsh and unnecessary proceeding; and must always be inju- rious, if not ruinous, to the parties against whom it is instituted. United States vs. Taylor and sureties, 3 McLean, 539, 541. No appeal lies in behalf of the United States from the deci- sion of the district judge, granting an injunction under this act. United States vs. Nourse, 6 Pet. 470. 206 JURISDICTION OF THE FEDERAL COURTS. ACTV920. iJQj^ jj^ jjj^y jjiannei' impair the lien produced by Effect of the issuin<]i: of such warrant. injunction. " Such injunctions may be granted or dissolved Granted t t • i • in or out oy such judge, either m or out of court. Acty of court. 1820, ch. 107, §§4, 5. Appeals lie from the decisions of such judges under this act, to the circuit courts. See "Circuit Courts/' "Appellate Jurisdiction." IN CASES OF PIRACY. ACTV1S23. The district courts of the United States, in Incases f dlstrlcts where no circuit courts are holden, shall piracy. . . have cognizance of all cases arismg under an act of Congress, approved May 15, 1820, (for punish- ing the crime of piracy,) and shall have the same power and jurisdiction therein, as the circuit courts of the United States under the same acts. Act, 1823, ch, 72. See further " Circuit Courts," title " Piracy," page 159, where the act of 1820 is given; and see notes thereto. UNDER THE SLAVE TRADE ACTS. Underacts Same powcrs as circuit courts. See " Circuit S'e*^tradS Courts," page 160, and notes thereto. ACT. 1830. OBSTRUCTION OF GOVERNMENT SURVEYORS. tiJnorgo Act, 1830, ch. 163, § 1. Same powers as a cir- vernment sarveyora. cuit court. Sec " Circuit Courts," page 164. DISTRICT COURTS. 207 OVER CAUSES ARISING UNDER INDIAN ACTS. Act, 1834, c//. 161, §§ 25, 27. Same powers as Acxjasi. a circuit court. See " Circuit Courts," page 167. under the Iiidian OVER CAUSES ARISING UNDER ACTS RELATIVE TO STEAMBOATS. ACT, 1838. Act, 1838, cA. 191, §§ 11, 12. Same powers as ''''!ll a circuit court. See " Circuit Courts," page 168. ""*^" steamboat acts. CRIMINAL JURISDICTION. ACT, 1842. The district courts of the United States shall j^ ~j,i. have concurrent jurisdiction with the circuit courts, "^ ^**®'" of all crimes and oifences against the United States, the punishment of which is not capital. And in such of the districts where the business of the court may require it to be done for the purposes of justice, and to prevent undue expen- ses and delays in the trial of criminal causes, the feSns said district courts shall hold monthly adjourn- ^°'"'"^^°'- ments of the regular terms thereof, for the trial and hearing of such causes. Act, 1842, ch. 188, §3. aUASI ADMIRALTY JURISDICTION. The district courts (1) of the United States act, i845. shall have, possess and exercise, the same juris- Quasi ad- mi raityj a ■ — risdiciion. (1) The cases designated in this act are, in their nature, of common law jurisdiction. **** The object of tlic act appears 208 JURISDICTION OF THE FEDERAL COURTS. ACT^sio. (^[(.(JQj^ jjj matters of contracts and tort, arising kkes and ^^' upoH, or conccming steamboats and other to be, first, to bring these cases within the cognizance of the district courts, without regard to the citizenship of the parties, as cases arising under a law of the United States (that is to say, under the act itself) ; and, secondly, as far as it could con- stitutionally be done, to apply to them the same rules, both of procedure and of decision, as if they had pertained to ocean instead of inland navigation, and so been strictly of admiralty jurisdiction ; or, in other words, to subject them to the operation of the maritime law of the United States. This new jurisdic- tion can, however, be exercised only at the option of the party seeking redress ; because the act contains an express saving " to the parties" of " the right of a concurrent remedy at the common law, where it is competent to give it, and any concur- rent remedy which may be given by the state laws." In obe- dience to the seventh amendment of the Constitution, the act also contains a saving, even in suits commenced by the admiralty form of process, of " the right of trial by jury, of all facts put in issue in such suits, where either party shall require it ; " so that in no case can the civil law mode of trial be followed, without the assent of both parties. Conk. Adm. Prac. 5, 6. In cases under this act, in the northern district of New- York, the objections to trial by jury have seemed of so grave and embarrassing a character, that the right to such trial has never been exercised, but the cases have been tried according to the usual practice in admiralty. Ibid. 7. The only objection to this necessary law seems to be, that Congress, in passing it, was shivering and trembling under the apprehension of what might be the ultimate consequence of the decision of the supreme court in the case of the Tho?nas Jefferson (10 Whea. 428; 6 Cond. 173). It pitched the power upon a wrong location. Its proper home was in the admiralty and maritime grant, as, in all reason, and in the common sense of all mankind out of England, admiralty and maritime juris- DISTRICT COURTS. 209 vessels of twenty tons burthen and upwards, en- *^^84& rolled and licensed for the coastinj? trade, and at watem ^ connecl'Dg the time employed in business of commerce and ^^*^ same navigation between ports and places in different states and territories upon the lakes and naviga- ble waters connecting said lakes, as is now pos- sessed and exercised by the said courts in cases of the like steamboats and other vessels employed in navigation and commerce upon the high seas or tide waters, within the admiralty and maritime jurisdiction of the United States; and in all suits brought in such courts in all such matters of rrocess contract or tort, the remedies and the forms of of prTeed' process, and the modes of proceeding, shall be casJl!'"*' the same as are or may be used by such courts in cases of admiralty and maritime jurisdiction ; and the maritime law of the United States, so far Maritime as the same is or may be applicable thereto, appiic'bie. diction ought to extend, and does extend to all navigable wa- ters, fresh or salt, Webster, arguendo in the case of The New- Jersey Steam Navigation Company vs. The Merchants' Bank, 6 How. 344, 378. This act docs not embrace the great navigable rivers which do not connect the lakes, such as the Mississippi. Benedict's Adm. 142, § 252. And it is limited to matters pertaining to navigation and commerce carried on between ports and places in different stales and territories. It does not therefore embrace cases arising out of the commercial intercourse between American ports and the neighboring British dominions ; unless, by pos- sibility, these dominions should be adjudged to have been in- tended by the terra territories. Conk. Adm. 7. 14 210 JURISDICTION OF THE FEDERAL COURTS. ACTV1S45. shall constitute the rule of decision in such cases, in the same manner, and to the same extent, and with the same equities, as it now does in cases of admiralty and maritime jurisdiction : saving, however, to the parties the right of trial by jury of all facts put in issue in such suits, where eitlier party shall require it ; and saving laTreme- also to the parties the right of a concurrent reme- to^ suitors, dy at the common law, where it is competent to give it, and any concurrent remedy which may be given by the state laws, where such steamer or other vessel is employed in such business of commerce and navigation. Act, 1845, ch. 20. UNDER POST-OFFICE ACTS. Under Act, 1845, ch, 43, § 20. Same powers as a cir- acts° ""^ cuit court. See "Circuit Courts,*' page 170. ON APPLICATION OF FOREIGN CONSULS TO CARRY OUT TREATY STIPULATIONS. ACT^sie. jif.(^ 1846, ch. 105. Same powers as a circuit Appiica- court. See "Circuit Courts," page 172. tions of foreign cousuls. IN CASES OF CONFLICTING CLAIMS OF LANDS IN CALI- FORNIA, ADJUDICATED UPON BY THE BOARD OF COMMISSIONERS. ACT. 185L In cases of Califoruia land claims. In all cases of the rejection or confirmation of any claim by the board of commissioners, it shall and may be lawful for the claimant or district DISTRICT COURTS. 2 1 1 attorney, in behalf of the United States, to pre- actjssi. sent a petition to the district court of the district I'etition, what to in which the land claimed is situated, prayinsr contain . and set the said court to review the decision of the said f"r»i'. if presented commissioners, and to decide on the validity of by daim- . ... 1 ants. the said claim; and such petition, if presented by the claimant, shall set forth fully the nature of the claim, and the names of the original and present claimants, and shall contain a deraign- ment of the claimant's title, together with a tran- script of the report of the board of commissioners, and of the documentary evidence and testimony of the witnesses on which it was founded: and such petition, if presented by the district attorney by u. s. in behalf of the United States, shall be accompa- ney! nied by a transcript of the report of the board of commissioners, and of the papers and evidence on which it was founded, and shall allege and distinctly set forth the ground on which the said claim is alleged to be invalid ; a copy of which te^iFvVd; petition, if the same shall be presented by a s^iir^'tobe claimant, sliall be served on the district attorney JJereto. of the United States, and if presented in behalf of the United States shall be served on the claim- ant or his attorney ; and the party on whom such service shall be made shall be bound to answer the same within a time to be prescribed byiJhe judge of the district court; and the answer of the Answer of 1 • , 1 . . , , claimauts. claimant to such petition shall set forth fully the nature of the claim, and the names of the origi- 212 JURISDICTION OF THE FEDERAL COURTS. ACTussi. nal and present claimants, and shall contain a Answer of derai court, by act 1838, ch. 192, the circuit court having i" <<-i8''» where power only by writ of error from the criminal p^rdesaro residents. court), and of all cases in law and equity between parties, both or cither of which shall be resident in suita or found within said district ; and also of all ac- by°umted tions or suits of a civil nature at common law or in equity, in which the United States shall be plaintiffs or complainants; and of all seizures on lu cases of land or water, and all penalties or forfeitures and for pe- made, arising, or accruing under the laws of the United States. Act 1801, ch. 15, § 5. AGAINST WHOM SUITS MAY BE BROUGHT. All local actions shall be commenced in their act^wi. proper counties; and no action or suit shall be Against _ 11/ • 1 1 \vhom brought belore said court, by any original process suits may be bro'ght agamst any person who shall not be an inhabitant of, or found within said district, at the time of serving the writ. Act 1801, ch. 15, § 6. But see act 1802, ch. 52, § 5, page 222. TO HAVE POWER OF LEVY COURTS OF MARYLAND. The circuit courts shall have and exercise the ^*^*^ same power and authority as have heretofore been ^^""^ * •' power as exercised by the county and levy courts of the '^y'-oa't" •'■'•' nt Mary- state of Maryland ; with power to appoint to all •''"'^• offices necessary for the said district, under the laws of Maryland. Act 1801, ch. 24, § 1. 222 JURISDICTION OF THE FEDERAL COURTS. ACT, 1823. Amount to give ju- risdictiou. AMOUNT REQUIRED TO VEST JURISDICTION. The judges of the circuit court of the District of Columbia shall not hold original plea in the said court, of any debt or damage, in cases within the jurisdiction given to justices of the |)eace by this act, which shall not exceed fifty dollars ex- clusive of costs, any law to the contrary not- withstanding. Act 1823, ch. 24, § 6. TO DELIVER CRIMINALS AND FUGITIVES. ACT, 1801. In all cases where the constitution or laws of To deliver the United States provide that criminals and fu- criminals . . _ . . i i i i t • and fugi- gitives irom justice, or persons held to labor m •ervice. any statc, escaping into another state, shall be delivered up, the chief justice of the said district shall be, and he is hereby empowered and required to cause to be apprehended and delivered up such criminal, fugitive from justice, or persons fleeing from service, as the case may be, who shall be found within the district, in the same manner and under the same regulations as the executive au- thority of the several states are required to do the same. Act 1801, ch. 24, ^ 6. WHERE EITHER OF THE PARTIES ARE NON-RESIDENTS. ACT. 1802. So much of the original act, to which this is a supplement, as confines the jurisdiction of the courts of this territory to cases between parties who are inhabitants of, or residents within the Where parties are non- residents, COURTS OF THE DISTRICT OF COLUMBIA. 223 same, shall not be construed to extend to any act, isoa. case where, by the laws of Maryland and Vir- when miy ginia respectively, attachments may issue to affect uchnTenu the property of absconding debtors, or others having property within the district, and whose persons «Re not answerable to the process of the court. Act 1802, ch. 52, § 5. The circuit court shall have power to proceed Same ^ power in all common law and chancery cases which ovemon residents now are or hereafter shall be instituted before it, as sup. court of in which either of the parties reside without the ^hau. of Maryland. territory, in the same way that non-residents are proceeded against in the general court, or in the supreme court of chancery in the state of Mary- land. Act 1802, ch.52, § 1. TO GRANT LICENSES. Ordinary licenses, retailer's licenses, and hawk- ^^^^ er's and pedler's licenses, shall be granted by the T" s""*"* circuit court of the said district, as the same are granted by the circuit of Maryland ; and the several judges of the said circuit court shall have like authority to grant such licenses in vacation, as the justices of the courts of Maryland. Act 1802, ch. 52, § 9. IN CASES OP ALTERING, ETC., PUBLIC ROADS. If any person shall alter or change, or in any * _ " manner obstruct or encroach upon a public road ; aUerfn'or 224 JURISDICTION OF THE FEDERAL COURTS. ACTJ812. oj. (.^^^ destroy, deface, or remove any mile-stones obstruct- set up on said road ; or put or place any rubbish, ing public ^ J r r J » as- dirt, logs, or make any pit or hole therein : such roa persons may be indicted in the circuit court for the District of Columbia, and, being convicted thereof, shall be fined or imprisoned, ill the dis- cretion of the court, according to the nature of the offence. Act 1812, ch. 117, § 7. IN CASES OF INSOLVENT DEBTORS. ^*^?^' ^i^y one of the judges(l) of the circuit court, In c^s of ^pon petition filed by any debtor in confinement, debtorT^ "wlio sliall liavc been a resident of the district for one year, offering to deliver up all his property for the benefit of his creditors, and upon the debtor complying w^ith the other provisions of the act, may appoint a trustee of his effects, and, upon satisfactory evidence, discharge the debtor from imprisonment. Who may No pcrsou, hov^cvcr, who is imprisoned for any charged, brcacli of tlic laws, can be discharged ; and the discharge is only of the same effect of the different states, as if made under the insolvent laws of such state. What will Such discharge will not be granted, if there has prevent a r> i t • discharge. Dccn any fraud or deceit on the part of the debtor (1) A citizen of the district can not be discharged by the insolvent law of Maryland, out of the district. Reilly vs. La- mar, 2 Cra. 344 ; 1 Cond. 419. COURTS OF THE DISTRICT OF COLUMBIA. 225 towards his creditors ; or if he has lost at any one ^'^'j^ij;'*"' time, within the previous twelve months, more ~ tlian three hundred dollars by gaming, and has assigned or conveyed any part of his property witli intent to give a preierence to any one. Act 1803, ch.Sl ; 1806, ch. 36, § 2, See also Act 1812, ch. 106, § 2. TO SELL infant's ESTATES. Where a guardian thinks the interests of his act, i843. ward will be promoted by the sale of his real To seu 1 • • 1 •!! 1 • 1 ^'^'*' estate estate, the circuit court, on a bill being presented oi iufants. it for that purpose, will decree such sale, if deemed best from the evidence in the case ; but not, however, if the testator has otherwise expressly directed. In the case of the death of the infant before twenty-one, the proceeds of such sale are to be deemed as real estate. Act 1843, ch. 87. OVER TRUSTPJES OF RELIGIOUS SOCIETIES. When any conveyance or devise of any lot, ^^^ tract or parcel of land, for the use and benefit of Toappoim trustees any religious congres^ation as a place of worship, overpm- has been heretofore or shall hereafter be made, religious societiea. whetlier by the intervention of trustees or not, the circuit court of the District of Columbia shall, on application of the United States attorney far the District of Columbia, on behalf of the authorised authorities of any such religious congregation, 15 226 JURISDICTION OF THE FEDERAL COURTS. have full power and authority to appoint trustees, originally, where there are none, or to substitute others from time to time, in cases of death, re- fusal or neglect to act, removal from the county, or other inability to execute the trust beneficially and conveniently; and the legal title shall there- upon become exclusively vested in the whole number of the trustees and their successors. Act 1844, ch. 101, § 3. UNDER POST OFFICE ACTS. UaJer Same as circuit and district courts. See " Cir- po8t ofiice acts. cuit Courts," a?i^e page 1 70. IN CASES OF CLAIMS MADE UPON AWARDS OF THE BOARD OP MEXICAN COMMISSIONERS. ACTJ849. jn all cases arising under this act, where any In cases of persou or persons, other than those in whose favor claims to° thc award has been or may be made, shall claim awarded thc amouut SO awardcd, or any part thereof; and Mexican shall, witliiu thirty days from the passage of this Bion. act or from the date of the said award, notify the secretary of the treasury of his, her, or their in- tention to contest the payment of the same as awarded, and shall file with the district attorney of the United States a bond, with good and suf- ficient surety to be approved by him, for the pay- ment of the costs and damages arising therefrom, the amount so awarded, and the payment of which is contested as aforesaid, shall be and remain in COURTS OF THE DISTRICT OF COLUMBIA. 227 the treasury of the United States, subject to the actusw. decision of the courts of the United States thereon ; injunctiou may bt? and thereupon the said party so claimino^ the sum granted, so awarded, or any part thereof, shall be at liberty obeyed by . . . . , . . treasury to file his bill for relief and injunction in the circuit depaniu't. court of the District of Columbia, upon the prin- ciples which govern courts of equity; and any injunction thereupon granted by the court, shall be respected by the treasury department ; and the said case in ecpity shall thereupon be conducted and governed in all respects as in other cases in equity. Act 1849, ch. 107, § 8. APPELLATE JURISDICTION. FROM CRIMINAL COURT. The circuit court of the District of Columbia, ^^"^i^'.^' or any judge thereof during the vacation of the ^ ^^^^^^ court, shall have power to award a writ of error, .jv"^'? *^" in any criminal case whatever, wherein final ^oJj"""'^^ judgment shall have been pronounced by the cri- minal court, returnable to the circuit court then in session, or to the next stated term thereof, convicting any pcrsonof any crime or misdemea- nor ; and to reverse said judgment, or remand the case, and order a new trial, or such other proceeding therein as the nature of the case may require. Act, 1838, ch. 192, § 5 ; and 1839, ch. 31, §5. 228 JURISDICTION OF THE FEDERAL COURTS. FROM justices' COURTS. Aciufs. ifj all cases where the debt or demand doth From jus- exceed the sum of five dollars, and either plaintiff tice's courts. or defendant shall think himself aggrieved by the judgment of any justice of the peace, he or she shall be at liberty to appeal to the next circuit court, before the judges thereof; who are hereby, be^sum^ ° upon tlic petition of the appellant, in a summary ™^'^^' way, empowered and directed to hear the allega- tions and proofs of both parties, and determine upon the same according to law and the equity and right of the matter, at the same term in which the said petition shall be exhibited, without fur- ther continuance or delay, unless it shall appear to the said court that farther time ought to be given to the party apjilying for the same ; and b"byj^ry cithcr of the said parties may demand a trial by jury, or leave the cause to be determined by the court, at their election ; and in any case of an When appeal from the decision of a justice of the circuit judgment miiy be court, wlicrc two summouses against the appellee tiiken, on default of shall DC rcturncd 7ion est, or one attachment re- turned non estj and the said appellee shall not appear, the court may proceed to hear and deter- mine such case, in the same manner as if the When ap. appellee had regularly appeared : Provided that Sot brilis- 110 appeal from the judgment of any justice of the missed. peacc to the circuit court of the District of Co- lumbia shall be dismissed because the same had not been prayed to the circuit court next after the COURTS OF THE DISTRICT OF COLUMBIA. 229 rendition of such judgment, unless the court shall ^ciwaaa. be satisfied that the defendant had notice of such judgment at least ten days before the sitting of said circuit court. Act, 1823, ch. 24, § 7. The corporation of Georgetown may recover act, mu fines, Sec, incurred under their charter, before any win ro magistrate of the district ; and appeals lie from S'o?" such judgments, as in other cases of small debts, lowiwi e Act, 1841, cA. 11. P'""'^- FROM orphans' COURTS, AND COURTS OP REGISTER OF WILLS. Appeals(l) from the said courts shall be to the act.isoi. circuit court of the District of Columbia, who Appluate shall therein have all the powers of the chancellor il'o.rfrom ofthe state of Maryland. Act, 1801, ch. 15, § 12. ^J'i'rt &c. For an enumeration of the cases in which the judgments and decrees of the said circuit court may be carried to the supreme court of the United States, see "Supreme Court, Appellate Jurisdic- tion," page 125. (1) The supreme court of the United States has jurisdiction of appeals from the orphans' court, through the circuit court, by virtue of the act of 1801. Nicholls vs. Hodge's ExWs, 1 Pet. 565. 230 JURISDICTION OF THE FEDERAL COURTS. DISTRICT COURT. GENERAL JURISDICTION. ACTvisoa. rpj^g chief judge of the District of Columbia District s\\vl\] hold a district court of the United States for court, who holds, iuid ti^e sai(t district : which court shall have and powers of. exercise, within the said district, the same powers and jurisdiction which are by law vested in the district courts of the United States. Act, 1802, c/i.31, §24. For terms of court, see Appendix. ON APPEAL FROM THE DECISION OF THE COMMISSIONER OF PATENTS, ACTV1839. jj^ cases(l) where an appeal is now allowed On appeal bv law from thc dccislon of the commissioner of from deci- eiou of . (1) The seventh section referred to in the last above quoted act, is as follows : On the filing of any such application, description and spe- cification, and the payment of the duty hereinafter provided, the commissioner shall make, or cause to be made, an exami- nation of the alleged new invention or discovery ; and if, on any such examination, it shall not appear to the commissioner that the same had been invented or discovered by any other person in this country, prior to the alleged invention or dis- covery thereof by the applicant ; or that it had been patented or described in any printed publication in this or any foreign country, or had been in public use or on sale, with the ap- plicant's consent or allowance, prior to the application, if the commissioner .shall deem it to be suflTiciently useful and im- portant, it shall be his duty to issue a patent therefor. But COURTS OF THE DISTRICT OF COLUMBIA. 231 patents to a board of examiners provided for in ^^'^ '^'^ commis- sioner o patents. the seventh section of the act to which thiiS is commis sioner of whenever, on such examination, it shall appear to the com- rnissioner that the applicant was not the original and first in- ventor or discoverer thereof, or that any part of that which is claimed as new had before been invented or discovered, or patented or described in any printed jiublication in this or any foreign country as aforesaid, or that the description is defective and insufficient, he shall notify the applicant thereof, giving him briefly such information and reference as may be useful in judging of the propriety of renewing his application, or of altering his specifioation to embrace only that part of the in- vention or discovery which is new. In every such case, if the applicant shall elect to withdraw his application, relinquishing his claim to the model, he shall be entitled to receive bftk twenty dollars, part of the duty required by this act, on filing a notice in writing of such election in the Patent Office ; a copy of which, certified by the commissioner, shall be a sufficient warrant to the treasurer for paying back to the said applicant the said sum of twenty dollars. But if the applicant, in such case, shall persist in his claim for a patent, with or without any alteration of his specification, he shall be required to make oath or affirmation anew in manner as aforesaid ; and if the spe- cification and claim shall not have been so modified, as, in the opinion of the commissioner, shall entitle the applicant to a patent, he may, on appeal, and upon request in writing, have the decision of a board of examiners, to be composed of three disinterested persons, who shall be appointed for that purpose by the secretary of state, one of whom at least to be selected, if practicable and convenient, for his knowledge and skill in the particular art, manufacture, or branch of science to which the alleged invention appertains ; who shall be under oath or af- firmation for the faithful and impartial performance of the duty imposed upon them by said appointment. Said board shall be furnished with a certificate in writing of the opinion and dcci- 232 JURISDICTION OF' THE FEDERAL COURTS. ACTU339. additional, the party, instead thereof, shall have refusing right to appeal to the chief justice of the district tiou for a court of tlic United States for the District of Co- patent. sion of the commissioner, stating the particular grounds of his objection, and the part or parts of the invention which he con- siders as not entitled to be patented. And the said board shall give reasonable notice to the applicant, as well as to the com- missioner, of the time and place of their meeting, that they may- have an opportunity of furnishing them with such facts and evidence as they may deem necessary to a just decision ; and it shall be the duty of the commissioner to furnish to the board of examiners such information as he may possess, relative to the matter under their consideration. And on an examination and consideration of the matter by such board, it shall be in tleir power, or of a majority of them, to reverse the decision of the commissioner either in whole or in part ; and their opi- nion being certified to the commissioner, he shall be governed thereby in the further proceedings to be had on such applica- tion. Act 1836, ch. 357. An appeal is also given to the said judge by the 8th section of the act of 1836, in the case of interfering applications. The judge can not decide upon any other matter than that which arises upon the reasons of appeal. He is to revise the decision of the commissioner only in respect to the points in- volved in the reasons of appeal. Arnold vs. Bishop, decided by the chief judge, Nov. 25, 1841. The judge's " decision, so certified, shall govern the further proceedings of the commissioner in such case." This applies only to so much of the case as is involved in the reasons of appeal ; and the appeal itself can be considered only as an appeal to so much of the decision of the commissioner, as is affected by such reasons. If, therefore, after the judge shall have decided in favor of the applicant upon the points involved in his reasons of appeal, other sufficient reasons remain for rejecting the claim for a patent, untouched by the decision of COURTS OF THE DISTRICT OF COLUMBIA. 233 lumbia, by giving notice thereof to the commis- *ctmi^ sioncr, and filing in the patent office, within such time as the commissioner shall appoint, his rea- the judge, it would seem that the commissioner might properly- still reject it. Ihid. The power and jurisdiction given to the board of examiners, and to the judge, are special and limited, and must be construed and exercised strictly. The judge can only decide such ques- tions, and render such judgment as he is expressly by the sta- tute to decide and render. Under the 8th section, the judge is only " to determine which, or whether cither of the applicants is entitled to rtceive a patent as prayed for." He can only act in a case where there are contending applicants for a patent, and those applicants must have ''prayed for" a patent. A patentee is not an applicant. Therefore where A applied for a patent, which, in the opinion of the commissioner, interfered with an already existing patent granted to B, and notice was given to the holder of the existing patent, under the Sth section of the act of 1836 ; and the patentee and the applicant contested their rights before the commissioner, who decided " that a patent ought to issue to the applicant A, as the first original inventor," from which decision the patentee B appealed, it was held that the judge had no jurisdiction upon an appeal from the decision of the commissioner, not rejecting but granting the application ; and that in no case could an appeal be taken from a decision of the commissioner, unless the application had been rejected by him. The reason assigned for giving an appeal from the rejection of an application for a patent, and not giving an appeal from thetgranting of a patent, was, that the applicant whose application was rejected, had no other remedy. He can not go into a court of law or of equity to obtain a patent, nor maintain any action for the use of his invention. But if the commissioner grant a patent erroneously, its validity may bo tried ; and any person interested may defeat it, by a suit at law or in equity. Pomcroy vs. Connison, decided Nov. 21, 1842. 4 JURISDICTION OF THE FEDERAL COURTS. ACTWS30. gQfjg Qf appeal specifically set forth in writing; and also paying into the patent office, to the credit of the patent fund, the sum of twenty-five dollars. And it shall be the duty of said chief justice, on petition, to hear and determine all such appeals, and to revise such decisions in a sum- mary way, on the evidence produced before the commissioners, at such early and convenient time as he may appoint, first notifying the commis- sioner of the time and place of hearing ; whose duty it shall be to give notice thereof to all parties who appear to be interested therein, in such manner as said judge shall prescribe. The com- missioner shall also lay before the said judge all the original papers and evidence in the case, to- gether with the grounds of his decision, fully set forth in writing, touching all the points involved by the reasons of appeal, to which the revision shall be confined. And at the request of any party interested, or at the desire of the judge, the commissioner and the examiners in the patent office may be examined under oath, in explanation of the principles of the machine or other thing for which a patent in such case is prayed for. And it shall be the duty of the said judge, after a hear- ing of any such case, to return aW the papers to the commissioner, with a certificate of his pro- ceedings and decision, which shall be entered of record in the patent office ; and such decision, so certified, shall govern the further proceedings of COURTS OF THE DISTRICT OF COLUMBIA. 235 the commissioner in such case : Provided, how- act. isw. ever, that no opinion or decision of the judge in any such case shall preclude any person interested in favor or against the validity of any patent which has been or may hereafter be granted, from the right to contest the same in any judicial court, in any action in which its validity may come in question. Act, 1839, cA. 88, § 11. CRIiMINAL COURT. The criminal court consists of a single judge, actvi838 at the yearly salary of $2000.00. Act, 1838, ch. Criminal court, how 192, & 1. composed. It holds its terms at the times and places spe- ^^I'^JJ ""^ cified by law; and the judge of the court has power to hold special terms whenever it shall seem to him necessary to order the same, of which order ten days' previous notice must be given. J bid. § 2. In case of the inability of the judge, from sick- ^^^^39. ness or any other le^al cause, to hold the court, )^''^" ^'j Jo' ' liold when it may be held by the chief judge of the circuit J'j^'?'' ".'j^*- court ; or, in case of his inability to hold the same, by the senior assistant judge of said circuit court. Act, 1839, c/t.3l, § 1. If, after the court has commenced its session, oristak'n sick diir- the judge should he taken sick, he, or, in his ab- iugtcrm. 236 JURISDICTION OF THE FEDERAL COURTS. ACT, 1839. sence, the clerk, may adjourn the same from day to day, or from week to week ; but if the sickness of the judge shall continue longer than a month, the chief judge of the circuit court, or, in case of his inability, the senior assistant judge of the circuit court, shall hold the same. Act, 1839, ch. 31, § 7. w* te!t'd "^^^ writs and process which shall issue from the said court, shall be tested in the name of the judge of the said court. Act, 1839, ch. 31, § 2. For times of sitting of the court, see Appendix. GENERAL JURISDICTION. ACT, 183?. From and after the passage of this law, a cir- Criminai cuit court shall bc established in the District of court, ju- n ^ • 1 /> 11 • ^ n~ risdiction Columbia, for the trial ot all crimes and onences of. against the laws now in force in the said district, and such as may hereafter be enacted ; which court shall be styled the Criminal Court of the District of Columbia. Act, 1838, ch. 192, § 1. OT«r The said criminal court shall have all the crimes, and fmea, jurisdiction uow held by the circuit court in said district, for the trial and punishment of all crimes and offences, and the recovery of all fines, for- feitures and recognizances. Act 1838, ch. 192, § 4. TO POSTPONE EXECUTION FOR WRIT OP ERROR. ACT, V3\ To illt- To enable a person, convicted by the judgment pone exe- ^^ ^^^ ^^j j Criminal court, to apply for a writ of COURTS OF THE DISTRICT OF COLUMBIA. 237 error, in all cases where the judgment shall be ^cTjesa death or confinement in the penitentiary, the said J",;,'^" j,^"/ criminal court shall, on application of the party ^[.^^^''^°^ accused, postpone the final execution thereof, to a reasonable time beyond the next term of said circuit court, not exceeding in any case thirty days after the end of such term of the circuit court. Acty 1838, ch. 192, § 6. TO ADJOURN QUESTIONS OP LAW TO CIRCUIT COURT. The said criminal court, in any case, may, with ^^^^ the consent of the person accused, adjourn any ToadjoVn ^ ' J J questions question of law to the circuit court, which may "/ '".^ ^F ^ •' the circuit be there argued and decided, though such accused court. person be not present. Act, 1838, cJl. 192, § 7. POWERS OF JUDGE, OUT OF COURT. The judge of the said court shall, out of court, actvis^. in all criminal matters, and breaches of the peace Powers of and good behavior, have and exercise all the of court. powers by law vested in the circuit court of the United States and the judges thereof, and which were vested by the acts establishing the circuit court of the District of Columbia, and the judges of the same. Act 1839, ch. 31, § 3. TO MAKE RULES, AND HOLD TO BAIL. ACT 1901 The judge of the said criminal court shall have _ power to make all needful rules of practice for JuleTaud 238 JURISDICTION OF THE FEDERAL COURTS. ACT^839. ^jjg orderly and speedy administration of the hold to business of the same, as he shall deem expedient, not inconsistent with the laws and constitution of the United States; and he shall have the same power and authority as is exercised by the judges of the circuit court of the District of Columbia to require bail, in all cases where by law bail may be required. Act, 1839, ch. 31, § 4. WHEN THE JUDGE IS RELATED TO ANY OF THE PARTIES. ACT, 1839. In any case wherein the parties, or any of them, Proceed- may bc related to the judge of the criminal court, ings when i i o i ^ judge is then such case and the record thereoi may be sent related to .. n ^ t\' . ' . n r^ parties. to the ncxt circuit court 01 the District oi L^o- lumbia, to be there tried and determined, and sentence passed and executed. Act 1839, ch. 31, §8. For appeals from, see " Circuit Court." REGISTER'S AND ORPHAN'S COURTS. ACTS. 1801, ifflo. These courts are composed each of a single Eeeister's iudgc, wlio rcccives a Salary of one thousand dol- and or- phan'8 lars. Acts, 1801, ch. 15, § 12; 1830, ch. 162, § 2. courts. Judge of, and salary ^^- GENERAL JURISDICTION. ACT^soL They have all the powers, perform all the du- Generai tics, and leccive the like fees, as are exercised, COURTS OF THE DISTRICT OF COLUMBIA. 239 performed and received by the registers of wills *"^'[^^*- and judges of the orphan's court within the state {j^^"^^^' of Maryland. Act, 1801, c/i. 15, § 12. See also further as to jurisdiction, Act, 1846, chs. 8 and 97. ON FOREIGN LETTERS OF ADMINISTRATION. It shall be lawful(l) for any person or persons Acr^isia to whom letters testamentary or of administration Over for- '' eigu let- ters of ad- (1) The act of 1842, ch, 106, § 11, gives to an executor or administrator, appointed in any state, a right to recover from any individual within the District of Columbia, effects or moneys belonging to the testator or his executor, in w^hatever way the same may have been received ; and to receive and give dis- charges for such assets, without suit ; and to receive from the government of the United States, either in the District of Co- lumbia, or where letters may have been granted, any money due to the testator or his representatives. Kane vs. Paul, 14 Pet. 33. The act places the foreign administrator on the same footing cis if letters had been granted to him in the District of Co- lumbia, and places him under the same responsibilities ; and the court is bound to take notice of foreign administrators coming within the district. Vaug/ian vs. Northrup, 15 Pet. 1. The power is limited by its terms to the institution of suits, and does not authorise suits against an executor or administra- tor, Ih'ul. The effect of this law was to make all debts due by persons in the district, not local assets, for which the administrator was bound to account in the courts of the district ; but general assets, which he had full authority to receive, and for which he vyas bound to account in the courts of the state from which ho derived his letters of administration. Ihid. 240 JURISDICTION OF THE FEDERAL COURTS. IAC1U812 ijath been or may hereafter be granted by the ministra- proper authority in any of the United States, of the territories thereof, to maintain any suit or action, and to prosecute and recover any claim in the District of Columbia, in the same manner as if the letters testamentary or of administration had been granted to such person or persons by the proper authority in the said district ; and the letters testamentary or of administration, or a copy thereof, certified under the seal of the authority granting the same, shall be sufficient evidence to prove the granting thereof, and that the person or persons, as the case may be, hath or have ad- ministration. Acty 1812, ch. 106, § 11. LEVY COURTS. ACT^aoi. ipjjg |g^ court(l) is composed of the magis- i-evy trates of the district, and possess and exercise the courts, ^ powers of. game powers, perform the same duties, and re- ceive the same fees and emoluments, as the levy courts or commissioners of county for the state of Maryland. Act, 1801, ch. 24, § 4. (I) The levy court of Washington county is not entitled to one half of all the fines, penalties, and forfeitures imposed by the circuit court in cases at common law, and under the acts of congress, as well as the acts of the assembly of Maryland, adopted by congress as the law of the District of Columbia. Levy Court of Washington vs. Ringgold, 5 Pet. 45 L COURTS OF THE DISTRICT OF COLUMBIA. 041 See also as lo their further jurisdiction, Act, act^^'- 1812, ch. 117. JUSTICES' COURTS. For jurisdiction of, see Acts, 1801, ch. 15, § 11; Ji.siices- courts, 1823, ch, 24; and 1841, ch. 11(1). power's of. (1) A justice of tlie peace, in the District of Columbia, is an ofiicer of the government of the United States ; and is exempt from militia duty. Wise vs. Wi/Zwrs, 3 Cra. 331 ; 1 Cond. 552. 16 JURISDICTION FEDERAL COURTS OF THE UxXTTED STATES. TERRITORIAL COURTS. TERRITORIAL COURTS. GENERAL PROVISIONS. CHARACTER OF. The territorial courts are not constitutional Term rial courts, not courts, in which the judicial power conferred by ^-'^Jlj^l^jit the constitution on the general government can legislative ~ '-' courts. be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but is conferred by congress in the execution of those general powers which that body possesses over the territories of the United States. In legislating for them, congress exercises the combined powers of a general and of a state government. Aincr. Ins. Co. vs. Canter, 1 Pet. 511, 546. 246 JURISDICTION OF THE FEDERAL COURTS. GENERAL JURISDICTION OF. tlouor^e- '^^^^ powers conferred on the courts of the neural lawa United Statcs by the various acts of congress, do not apply to the territorial courts, unless they are specially named. In the following cases, such powers have been conferred on these courts. IN CASES UNDER THE INDIAN ACTS. Powers Same powers as circuit courts. Act, 1834, ch. dian acu. 161, § 27. Scc " Circult Courts," page 167. IN CASES UNDER THE POSTOFFICE ACTS. ACT^wa ^ij p3^ggg of action may be sued, and all of- Powera fendcrs prosecuted before any circuit or district under ■•■ J pust ofTice court of the United States, or of the District of Columbia, or of the territories of the United States. Act, 1845, ch. 43, § 20. See " Circuit Courts," page 170, for notes. POWER TO APPOINT COMMISSIONERS. ACT, 18:50. The supreme court of each organized territory Mayap of thc United States shall have the same power mis8i(me?s to appolut commissioncrs to take acknowledg- uiCaffi- ments of bail and affidavits, and to take deposi- davits, &c. .. .... I'l" 11 tions m civil causes, which is now possessed by the circuit court of the United States; and all conmiissioners who shall hereafter be appointed for such purposes by the superior court of any TERRITORIAL COURTS. 247 A CT. 1850. ers r i'u- organized territory of the United States, shall *^^ possess all the powers, and exercise all the duties, J^'"^* conferred by law upon the commissioners an- g'l'vi- pointed by the circuit courts of the United States for similar purposes, and shall moreover exercise and discharge all the powers and duties conferred by this act (the fugitive slave act, so called). Ac/, 1850. ch. 60, § 2. JURISDICTION FEDERAL COURTS. TERRITORIAL COURTS. OREGON. Judicial power how vest- ed. The judicial power of said territory shall be ^^^^® vested in a supreme court, district courts, probate courts, and in justices of the peace. The jurisdiction of the several courts herein Jurisdic- provided for, both appellate and original, and that raiiy. of the probate courts and of justices of the peace, shall be as limited by law : Provided, that jus- or justices tices of the peace shall not have jurisdiction of any case in Avhich the title to land shall in any wise come in question, or where the debt or da- mages claimed shall exceed one hundred dollars. And the said supreme and district courts, respec- tively, shall possess chancery as well as common law jurisdiction. courts. 250 JURISDICTION OF THE FEDERAL COURTS. ACTV1348 "Writs of error, bills of exception, and appeals, Writs of shall be allowed in all cases from the final deci- error courts. whou lie sions of said district courts to the supreme court, to 8upr me ■"■ court- under such regulations as may be prescribed by law ; but in no case removed to the supreme court, shall trial by jury be allowed by such court. tiono'fdig. Each of said district courts shall have and exercise the same jurisdiction in all cases arising under the constitution and laws of the United States, and the laws of said territory, and other- wise, as is vested in the circuit and district courts of the United States. Act, 1848, ch. 111. § 9. For appeals to supreme court of United States, see "Supreme Court," page 129. MINNESOTA. ACT, 1849, Judicial power how vest- ed. General The judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. The jurisdiction of the several courts herein jarisdic- providcd for, both appellate and original, and that of probate courts, and of justices of the peace, Of jnsticea shall bc as limited by law : Provided, that the justi- ces of the peace shall not have jurisdiction of any matter in controversy when the title or bounda- ries of land may be in dispute, or when the debt or sum claimed shall exceed one hundred dollars; and the said supreme and district courts, respect- ivc'y, shall possess chancery as well as common law jurisdiction. TERRITORIAL COURTS. 251 1819. Writs of error, bills of exceptions and appeals a'^'^^^ shall be allowed in all cases from the final deci- wriisof when he yions of said district courts to the supreme court, losupr'mo court. under such regulations as may be prescribed by- law; but in no case removed to the supreme court, shall trial by jury be allowed in said court. Each of the said district courts shall have and juristiic- , • • ^• J' • 11 ' • tion of dis. exercise the same jurisdiction in all cases arising couns. under the constitution and laws of the United States, as is vested in the circuit and district courts of the United States ; and the first six days Prcfer-nre of causes of every term of the said courts, or so much thereof as shall be necessary, shall be appropriated to the trial of causes arising under the said Con- stitution and laws ; and writs of error and appeals in such cases shall be made to the supreme court of said territory, the same as in other cases. Act, 1849, ch. 121, § 9. For appeals to supreme court of United States, see "Supreme Court," page 130. at cotn- mencem't of term. NEW-MEXICO. In respect to the courts of this territory, there act, laso is the same enactment as for the territory of j„riI7ic- Minnesota, with the following addition : " And ^^Z\ilm. the said supreme and district courts of the said territory, and the respective judges thereof, shall ^'»y ?>■»" and may .i88. The act of 1842, ch. 188, § 7, gives the supreme court power to regulate costs in the circuit and district courts; which, however, has never yet heen done. 1B47, ch.55. The act of 1847, ch. 55j reduces the costs and expenses of proceedings in admiralty, against ships and vessels. These three last mentioned acts will be found below. foTce^ The following, it is believed, is a correct list of such acts, or parts of acts, as are now in force, re- specting costs, except such as relate more parti- cularly to fees of jurors, witnesses, &c. : Act 1789, c7i. 20 (the judiciary act so called, the various sec- tions of which have before been referred to on pages 256 and 257) ; Act 1792, c7i. 36, §§ 4, 5, 6, 7, referred to on page 258 and on the following page; Act 1793, cL 20, § 2, re-enacted hy Act 1799, ch. 19, § 3, referred to on page 259, and in- corporated in table No. 2 ; Act 1799, ch. 19, §§ 1, 3, 4, 6, 7, 8, referred to on page 259, and inserted COSTS. 2&1 i in force. hereafter; Ad 1799, rh. 22, § 71, referred to on f^"^^^^ page 259; Act 1807, eh. 19, referred to on page 259; Act 1813, ck 14, § 1, 2, 3, hereafter given; Act 1815, r/^ 31, § 9, referred to on page 260; Act 1841, ch. 35, hereafter given; Act 1842, ch, 29, hereafter given; A<'t 1842, rV/. 188, § 7, here- after given ; and Act 1847, c-A. 35, also hereafter given. Act 1792, ch.36. As before remarked, the>ur^/i 1:92,^.38. section of this gives a percentage to the marshal for his disbursements in the payment of court expenses, and is not important to our present purpose. The sixth declares that fees shall be collected as in the several states ; and the seventh prescribes the penalty for demanding and re- ceiving unlawful fees. The fifth section is as follows : " In every prosecution for any fine or forfeiture when de- /» 1 TT • 1 CI fendant to incurred under any statutes of the United States, pay costs. if judgment is rendered against the defendant, he shall be subject to the payment of costs. And on every conviction for any other offence not capital, the court may, in their discretion, award that the defendant shall pay the costs of prosecution. And informer ^ •' . ■^ wheu to if any informer or plaintiff, on a penal statute, to pay coeti. whose benefit the penalty or any part thereof if recovered is directed by law to accrue, shall dis- continue his suit or prosecution, or shall be non- suit in the same, or if upon trial the verdict shall pass for the defendant, the court shall award to 262 JURISDICTION OF THE FEDERAL COURTS. Acts iu force. 1792, Ch 36. 1799, Ch 19. Fees of clerks. District attoriK ys. Jarors, witnesses When in- f(jrrner to pay. the defendant his costs, unless such informer or plaintiff be an officer of the United States special- ly authorized to commence such prosecution; and the court before whom the action or informa- tion shall be tried, shall, at the trial, in open court, certify upon record that there was reasonable cause for commencing the same, in which case no costs shall be adjudged to the defendant." This section is amended, as to its latter clause, by the eighth section of the act of 1799, which is hereafter given. Act 1799, cA. 19. The first section specifies the fees of United States marshals. We append them in tabular form (No. 3). The third section specifies the fees of the clerks of the supreme court, and of the circuit and dis- trict courts in common law cases ; and re-enacts the second section of the act of 1793, ch. 20, as to the fees of district clerks in cases of admiralty. These are also annexed in tabular form (No. 2). The fourth section specifies the fees of United States district attorneys. These are also appended in tabular form (No. 1). The sixtJi and seventh sections refer to the com- pensation of jurors, witnesses, and criers of courts. The eighth section is an amendment of a part of the fifth section of the act 1792, ch. 36, and is as follows : "If any informer on a penal statute, and to whom the penalty, or any part thereof, if re- COSTS. 263 covered, is directed to accrue, shall discontinue ^c^u '" his suit or prosecution, or shall be nonsuited in i^n en, 19. the same; or if, upon trial, judgment shall be rendered for the defendant, unless such informer be an olHcer of the United States, he shall be alone liable to the clerks, marshals and attorneys, for the fees of such prosecution ; but if such in- former be an officer whose duty it is to commence such prosecution, and the court shall certify there was reasonable ground for the same, then the United States shall be responsible for such fees." Section nine repeals the third section of cJi. 36 of- 1792, and the second section of c/i. 48 of 1796. Act of IS \S, c//. 14, jidssed July 22. Whenever isis.ch. r. there shall be several actions or processes against when persons who might legally be joined in one action oui/one or process, touching any demand or matter in dispute before a court of the United States or of the territories thereof, if judgment be given for the party pursuing the same, such party shall not thereon recover the costs of more than one action or process, unless special cause for several actions or processes shall be satisfactorily shown on mo- tion in open court. Sec. 2. Whenever proceedings shall be had on ^^«° °° *^ ° only one several libels against any vessel and cargo, which I'l^ei. might legally be joined in one libel, before a court of the United States or of the territories thereof, there sliall not be allowed thereon more costs than on one libel, unless special cause for libelling 264 JURISDICTION OF THE FEDERAL COURTS. Acts in the vessel and carjro severally shall be satisfacto- 1813, ch. 14. jjiy shown as aforesaid. And in proceedings on several libels or informations against any cargo or parts of cargo or merchandize seized as forfeited for the same cause, there shall not be allowed by the court more costs than would be lawful on one libel or information, whatever may be the number of owners or consignees therein concerned ; but allowance may be made on one libel or informa- tion, for the costs incidental to several claims : When Provided, That in case of a claim of any vessel toi)ay()iiiy or otlicr property seized in behalf of the United costa. States, and libelled or informed against as forfeited under any of the laws thereof, if judgment shall pass in favor of the claimant, he shall be entitled to the same upon paying only his own costs. Courts Sec. 3. Whenever causes of like nature, or Tu\^"u, ^ relative to the same question, shall be pending prevent, j^gf^j-g ^ court of the United States or of the ter- ritories thereof, it shall be lawful for the court to make such rules and orders concerning proceed- ings therein as may be conformable to the prin- ciples and usages belonging to courts for avoiding unnecessary costs or delay in the administration of justice; and accordingly causes maybe con- solidated, as to the court shall appear reasonable. Attornftys j\^nd if auy attorney, proctor, or other person ad- wiieii lia- ble to pay. rnitted to manage and conduct causes in a court of the United States, or of the territories thereof, shall appear to have multiplied the proceedings COSTS. 265 in any cause before the court, so as to increase ^^tB in •' lorco. costs unreasonably, such person may be required, by order of court, to satisfy any excess of costs so incurred. Act of 1841, ch. 35. So far as this act refers to is4i. cb.35. costs, is as follows; • Hereafter, in lieu of all fees, emoluments, and Fees of attorneys. receipts, now allowed in districts where the pre- marshals, and clerks sent entire compensation of any of the officers wheu compeusa- hercinaftcr named shall exceed the sum of one tion ex cecds thousand five hundred dollars per annum, it shall $1500 per auuum. and may be lawful for the United States' clerks, attorneys, counsel and marshals, in the district and circuit courts of the United States in the several states, to demand and receive the same fees that now are, or hereafter may be, allowed by the laws of the said states respectively where said courts are held, to the clerks, attorneys and counsel, and sheriffs, in the highest courts of the said states in which like services are rendered ; and no other fees or emoluments, except that the marshals shall receive in full, for summoning- all the jurors for any one court, thirty dollars ; and shall receive, for every day's actual attendance at any court, five dollars per day; and for any ser- vices, including the compensation for mileage performed by said officers in the discharge of their official duty, for which no compensation is provided by the laws of said states respectively, the said officers may receive such fees as are now 266 JURISDICTION OF THE FEDERAL COURTS. Acts^in allowed by law according to the existing usage 1841,^.35. g^jjj practice of said courts of the United States; and every district attorney, except the district attorney of the southern district of IN ew- York, shall receive, in addition to the above fees, a sakiy of two hundred dollars per annum: Pro- vided, that the fees and emoluments retained by the district attorneys, marshals and clerks, exclu- sive of any reasonable compensation to their de- puties, to be allowed in their accounts by the courts of the respective districts to which they belong, and after the payment of such necessary office and other expenses as shall be allowed by the secretary of the treasury, not to exceed, as to any one of the said offices in the southern district of New- York, the sum of three thousand dollars per annum, and in any other district the sum of one thousand dollars per annum, shall in no case exceed, for the district attorneys and the marshals, or either of them, the sum of six thousand dol- lars for each ; and those for each of the clerks shall not exceed, in any case, four thousand five hundred jdollars ; the overplus of fees and emolu- The over- • ' ^ plus to be ments to be paid into the public treasury, under the trca- such rules and regulations as may be prescribed sury. ° J I by the secretary of the treasury, subject to the disposition of congress. Act of 1842, ch. 29. This act, so far as it refers fe™°o?dis. to costs, is as follows : SS "No district attorney shall be allowed by the clerks, &c. ISl", Cb. 29. COSTS. 267 said secretary of the treasury, to retain of the fees f^^'J° and emoluments of his said office, for his own ''^-'-^ » personal compensation, over and above his ne- cessary office expenses, the necessary clerk hire included, to be audited and allowed by the proper accounting officers of the treasury, a sum exceed- ing six thousand dollars per year, and at and after that rate, for such time as he shall hold the office ; and no clerk of a district court, or clerk of a circuit court, shall be allowed by the said secretary, to retain of the fees and emoluments of his said office, or in case both of the said clerk- ships shall be held by the same person, of the said offices, for his own personal compensation, over and above the necessary expenses of his office, and necessary clerk hire included, also to be au- dited and allowed by the proper accounting offi- cers of the treasury, a sum exceedmg three thou- sand five hundred dollars per year, for any such district clerk, or a sum exceeding twenty-five hundred dollars per year, for any such circuit clerk, or at and after that rate, for such time as he shall hold the office ; and no marshal shall be allowed by the secretary, to retain of the fees and emoluments of his said office, for his own per- sonal compensation, over and above a proper allowance to his deputies, which shall in no case exeed three-fourths of the fees and emoluments received as payable for the services rendered by the deputy to whom the allowance is made, and 268 JURISDICTION OF THE FEDERAL COURTS. Acts in niay be reduced below that rate by the said secre- force. "^ 1842, ch 29. tary of the treasury, whenever the return shall show that rate of allowance to be unreasonable, and over and above the necessary office expenses of the said marshal, the necessary clerk hire in- cluded, also to be audited and allowed by the proper accounting officers of the treasury, a sum exceeding six thousand dollars per year, or at and after that rate, for such time as he shall hold the Surplus to office ; and every such officer shall, with each into the return made by him, pay into the treasury of the &c. ' United States, or deposit to the credit of the treasurer thereof, as he may be directed by the secretary of the treasury, any surplus of the fees and emoluments of his office, which his half yearly return so made as aforesaid shall show to exist over and above the compensation and allow- ances hereinbefore authorised to be retained and paid by him. And in every case where the re- turn of any such officer shall show that a surplus may exist, the said secretary of the treasury shall cause such returns to be carefully examined, and the accounts of disbursements to be regularly audited by the proper officers of his department, and an account to be opened with such officer in proper books to be provided for that purpose, and the allowances for personal compensation for each calendar year shall be made from the fees and diemTobe cmolumcnts of that year, and not otherwise: And 2)rovided, further, That nothing in any exist- inado in certain cases. COSTS. 269 ing law of congress, authorizing the payment a^^^^»° of a per diem compensation to a district attor- ^'--^'^^■^■ ney, clerk of a district court, or clerk of a circuit court or marshal, or deputy marshal, for atten- dance upon the district or circuit courts during their sittings, shall be so construed as to autho- rize any such payment to any one of those officers for attendance upon either of those courts, while sitting for the transaction of business under the bankrupt law merely, or for any portion of the time for which either of the said courts may be held open, or in session by the authority conferred in that law; and no such charge in an account of any such officer, shall be certified as payable, or shall be allowed and paid out of the money hereinbefore appropriated for defraying the ex- penses of the courts of the United States, unless such district attorney, clerk or marshal, shall be required by the judge of said court or the solici- tor of the treasury, to attend the sessions of the same, and shall actually attend for the perfor- mance of the duties of his said office. And no per diem or other allowance shall be made to any such officer for attendance at rule days, of the circuit or district courts, and when the circuit and district courts sit at the same time, no greater per diem or other allowance shall be made to any such olhcer than for an attendance on one court: JJf^^J^'i^. And proviiJcd furtficr, that the district attorney, em and ■t -^ ' ■' smilhern marshal, clerk of the circuit court and clerk of i'*»'-'^^»"J ' New- York 270 JURISDICTION OF THE FEDERAL COURTS. Acuin the district court of the United States for the )&i24cii.29. northern and southern districts of New-York, shall not hereafter receive any greater or other fees or emoluments, including fees and emolu- ments, under the act entitled " An act to esta- blish a uniform system of bankruptcy throughout the United States," for services rendered by them, respectively in the said courts, than now are or hereafter may be allowed by the laws of the state of New- York to attorneys, solicitors, counsel, sheriffs and clerks, in the highest courts of law or equity, of original jurisdiction, of the state of New- York, according to the nature of the pro- ceedings, for like services rendered therein : Pro- vided, That no part of the fund hereby appro- priated, shall be applied unless in addition to the certificates now required by law, the clerk of the said court shall certify in his official capacity, that the services have been rendered, and the supplies furnished for and used by the court, and that the charges therefor were legal and proper." The provisions and requirements of this section are referred to, and made permanent by the acts of 1843, di. 100, vol. 5, Stat, at Large, p. 639; of 1844, ch, 105, vol. 5, Stat, at Large, p. 690; and of 1845, ch. 71, vol. 5, Stat, at Large, p. 764. The salaries of the clerks of the circuit and district courts, are also made the same in amount by the act of 1849, ch, 100. COSTS. 271 Act, 1842, ch. 188, § 7. This section, giving to ^c^^y° the supreme court power to regulate costs, is as i842^.i88. folloWS(l): Sapreme ^ ' court may " For the purpose of further diminishin^f the ™^ke ^ ^ " rules as to costs and expenses in suits and proceedings in taxation of the federal courts, the supreme court shall have full power and authority, from time to time, to make and prescribe regulations to the district and circuit courts, as to the taxation and payment of costs in all suits and proceedings therein; and to make and prescribe a table of the various items of costs which shall be taxable and allow- ed in all suits to the parties, their attorneys, soli- citors and proctors, to the clerk of the court, to the marshal of the district, and his deputies, and other officers serving process, to witnesses, and to all other persons Avhose services are usually taxable in bills of costs. And the items so stated in the said table, and none others, shall be taxable or allowed in bills of costs ; and they shall be fixed as low as they reasonably can be, with a due regard to the nature of the duties and services, which shall be performed by the various officers and persons aforesaid, and shall, in no case ex- ceed the costs and expenses now authorized, where the same are provided for by existing laws. Act, 1847, ch. 55. This act provides that the 1&17, chm — — . Costs on (1) Thus far, no action has been taken by the supreme ° court under tlic power, and for the purposes specified in this act. 272 JURISDICTION OF THE FEDERAL COURTS. Acts in marshal shall stay execution in admiralty cases torce. "' •' 1847,^. 55. and discharge the property arrested, on receiving of proper- suitable bond and security from the claimant to ty HI aumi- _ r'Uycases. abide tlic dccrcc of the court, and has also the following proviso : " That the entire costs in any such case, in which the amount recovered by the libellant shall not exceed one hundred dollars, shall not be more than fifty per cent of the amount recovered in the same, which costs shall be ap- plied first to the payment of the usual fees for witnesses, and the commissioner, where a com- missioner shall act in the case, and the residue to be divided pro rata between the clerk and mar- shal, under the direction of the judge of the court where the cause may be tried : Provided Jw^ther, That no attorney's or proctor's fees shall be al- lowed or paid out of the said costs." In what From the above acts, which, we believe, are cases sta- tutes ap- all that apply particularly to costs, except those ply. which define and regulate the compensation and fees of jurors, witnesses, criers, &c., it will be seen that they generally apply only to officers proper of the federal courts, such as the district attorneys, clerks and marshals, parties!* As to what and how much compensation (1) shall be taxed or allowed in the federal courts, in (1) Where neither the laws of a state, nor the acts of Con- gress provide for the allowance of any particular item of costs, it is to be taxed only when relating to the competent evidence in the case, and connected with what is appropriately a matter, COSTS. 273 favor of parties obtaining judgments therein, or cosu to in favor of those who may be entitled to costs in of cost rather than damages and expenses in preparing a cause. Hathaway vs. Roach, 2 Woods and Meir, 63. In a cause wliicli was argued on the question of costs, Mr. Justice Story held that costs rested in the sound discretion of the court ; but that such a discretion was a sound one, to be exercised upon principle, and with a reference to the general rules of practice. Brooks vs. Bijam, 2 Story, 553. In the ordinary course of practice, when a bill is dismissed, costs are not awarded to the defendant. Ibid. When a bill is dismissed on account of ihe want of jurisdic- tion over the person, no costs are allowed. Burnhain vs. Ran- gcley, 2 Wood and Min, 415. Where a bill might be demurred to, but answer is put in, and the bill is dismissed on its merits, because the plaintiff does not show sufficient title, the defendants are not entitled to costs. Brooks vs. Byam, 2 Story, 553. A complainant residing in another state, but in the same circuit, is not bound to give security for costs, except at the first terra. Foster vs. Swazey, 2 Wood and Min, 217. But if the defendant do not demand security for costs within a reasonable time, it shall not be ground for a continuance that such security has not been given when the cause is called for trial. Hawkins vs. Willbank, 4 Wash. 285. In the first circuit the practice in patent cases has been, not to require the plaintiff to give security for costs. Woodwarth vs. Sherman, 3 Story, 171. When a court will set aside a dismission of a cause \%'ithout costs, harming vs. Dolph., 4 Wash. 624, 630. If the court had jurisdiction of the cause, when the action was commenced, the repeal of the law giving the jurisdiction, docs not take away the plaintiff's right to costs. Walker vs. Smith, 1 Wash. 202. 18 274 JURISDICTION OF THE FEDERAL COURTS. Costs to any proceedings in such courts, for their travel and attendance ; or what shall be the fees and "Wliere three attorneys appear for a defendant, to suits insti- tuted against him, and all are called upon and act, but no war- rant of attorney is given to either ; the attoraey's fee is to be equally divided betw^een them. Hurst vs. Durnell, 1 Wash. 438. Where a cause is removed from a state c'ourt into the cir- cuit court, under the 12th section of the act of 1789, ch. 20, the plaintiif is entitled to costs, although he has a verdict for less than five hundred dollars. Ellis vs. Jarvis, 3 Mason, 457. In an action at common law, or one arising under the con- stitution or laws of the United States, if a plaintiff recovers less than five hundred dollars, he does not recover costs but may be adjudged to pay them. Kneass vs. The Schuylkill Bank, 4 Wash. 106 : under the 20th section of the judiciary act. Query ? Whether if in a patent cause, the plaintiff recover five hundred dollars, he is entitled to costs. Ibid. Where the plaintiff prevails in an action, the court will not, in the exercise of their discretion, tax the costs against him, where he might naturally and fairly suppose he was entitled to recover more than five hundred dollars. Cottle vs. Payne, 3 Day, 289. A party who obtains a continuance of a cause must pay the costs of the term. Patton^s Lessee vs. Blockwell, 2 Overt. 114. It is the common practice not to allow costs to the prevail- ing party, where the district judge differs from the circuit judge. Veazie vs. Williams, 3 Story, 612. If a consul, who sues for a penalty in his own name, but for the benefit of the United States, is liable to costs. Query ? Levy vs. Burley, 2 Sum. 355. In admiralty costs and expenses are not matters positively limited by law, but are allowed in the exercise of a sound dis- cretion of the court. Canter vs. Amer. and Ocean Ins. Com COSTS. 275 compensation of counsel, attorneys, proctors and ^"su to advocates, in private suits prosecuted in the United States courts, the statutes are mainly silent ; the only acts ever passed, which referred directly to such fees and costs, being those of 1789, ch. 21, § 2, and 1792, cli. 20, § 4, both of which have long since expired(l). 3 Pet. 319. Sec also, Dun. Aim. Practice, 2d Ed. 109, 215, 261, et alia. Conk. Adm. Prac. 771 to 780. See also Bonne's Lessee vs. Brown, 2 Wash. 271. The Langdon Cheeves, 2 Mason, 58. The Ulpiana, 1 Mason, 91. Ship Packet, 3 Mason, 334. Croshy vs. Folger, 1 Sum. 514. Whipjdc vs. CumherJand Cotton Co., 3 Story, 84. Scriha vs. Deancs, 1 Mar. Dec. 166. The Hiram, 2 Gall. 60. The Louisetta, Ibid, 307. Oioings vs. Tiernan, 10 Pet. 447. Lan- ing vs. Dolph, 4 Wash. 630. Willings vs. Consequa, 1 Pet. C. C. 301. Den. vs. Bacon et al. 4 Waah. 578. Boicne's Les- see vs. Arbuncle, 1 Pet. C. C. 234. See also, " Supreme Court," note to Rule 45. Under the act of 1842, ch. 29, it has been held, in reference to the fees of clerks of the United States courts, that where the two offices of circuit and district clerk are held by one per- son, he is entitled to the compensation given to each ; and that where his fees as district clerk amount to more than thirty-five hundred dollars, and his fees as circuit clerk to less than twenty- five hundred dollars (their compensation is now equal) he is entitled to the first mentioned sum as district clerk, and to the actual fees as circuit clerk. U. States vs. Bassett, 2 Story, 389. (1) Compensation to jurors and witnesses is ^gulated by the sixth section of the act of 1799, ch. 19, at the rate of one dol- lar and twenty-five cents for each day they shall attend in court ; and for travelling, at the rate of five cents per mile, from their respective places of abode, to the place where the court is holden, and the like allowance for returning. 276 JURISDICTION OF THE FEDERAL COURTS. The rules of the federal court are hardly more explicit. The supreme court, however, have regulated, to some extent, costs in suits brought before it by the following rule : Rule 45. Supreme " In all cases where any suit shall be dismissed, court rule No. 45. in this court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed for the defendant in error, or appellee, as the case may be, unless otherwise agreed by the parties. "In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee, as the case may be, unless otherwise ordered by the court. " In all cases of reversals of any judgment or decree in this court, except where the reversal shall be for want of jurisdiction, costs shall be allowed in this court for the plaintiff in error or appellant, as the case may be, unless otherwise ordered by the court. " Neither of the foregoing rules shall apply to cases where the United States are a party ; but in such cases, no costs shall be allowed in this court for or against the United States. " In all cases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue a mandate, or other proper process in the nature of a procedendo, to the court below, for the purpose of informing such court of the proceedings in this COSTS. 277 court, so that further proceedings may be had in s. c. Rule such court as to law and justice may appertain. " When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other pro- per process, sent to the court below, and annex to the same the bill of items taxed in detail." (See Rules 21 and 37.) Costs in suits in equity have also been made the in equity subject of one of the rules prescribed by the supreme court for the government of the federal courts in equity cases, as follows : Rule 25. " In order to prevent unnecessary costs and ex- Equity penses, and to promote brevity, succinctness, and S.^ directness in the allegations of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the sum which is allowed in the state court of chancery in the district, if any there be ; but if there be none, then it shall not exceed the sum of three dollars for every bill or answer." This rule was promulgated in 1842 ; and has construc- -, 11. -, , tionofthis been regarded, m cases where the question of its r"ie- construction and of its meaning has come before any of the federal courts, as adopting the fee bill of the highest court of any state, as such fee bill existed in 1842; and it has also been held that changes and alterations which may have been made since 1842 in any such fee bills, by a change 278 JURISDICTION OF THE FEDERAL COURTS. Construe- of law or practice in any such state, did not apply tion of the • • ji n i i , 25ihruie. to or govcm the practice in the lederal courts. This construction has lately been sustained by Mr. Justice Nelson, in the case of an appeal from the taxation of costs by the clerk of the circuit court for the northern district of New- York. The plaintiff had charged by the folio for the draft and copies of his bill of complaint, according to the Revised Statutes of New- York and the fee bill of 1842, when the equity rules were adopted. The defendant claimed that the only charge, which could be made, was either $3-00 under the 25th equity rule, or the amount now allowable under the Code (passed 1849). The court held that the true rule was to tax under the New- York chancery fee bill, as it existed in 1842. IVade vs. Mathews, Mass. June 30, 1851. The facts in this last mentioned case were briefly as follows : Wade had filed his bill against Mathews, and taken a default according to the general rules in equity, for want of an answer. The defendant, on motion, obtained an order vacating the default, with permission to file his answer upon payment of all the costs in the suit. The measure of costs in equity cases may there- fore be considered as established, at least partially, in those states in which there was existing in 1842 any recognized fee bill. In other states, a quantum meruit principle must almost necessarily be adopted. COSTS. 279 The bill of costs referred to as taxed by Mr. Justice Nelson in the case of Wade vs. Mathews, is hereto aiinexed(5) as a guide and precedent in cases in equity. We append also(6) a copy of a bill of costs in a case at law, as taxed by the clerk of the district court for the southern district of New- York. In cases at law. there is neither statutory enact- i" cases at law. ment, nor any rule of court in respect to costs, unless we except the rules of particular districts and circuits, which are of course entirely local in their authority. It has, however, been the uniform practice for Practice 1,1/. 11 .,, in such more than halt a century, that the prevaihng cases. party in civil actions in the federal courts should recover costs to some extent or other. His risfht to such a recovery is recognized, as we have seen, by general provisions of law ; and it is further strengthened by some of the rules of the supreme court, and also by various decisions. Bonne's Lessee vs. Brmvn^ 2 Wash. 271. Seahring's Les- sees vs. WanJ^ 4 Wash. 546. And as a general rule, fees for attendance and attorneys have been allowed or Avithheld, as the state laAvs or the highest courts under them have been accustomed to withhold or allow them. In New- York it has b^en the />;'« New York. allowed as proctor) $3 75 Drawnng libel, plea, answer, claim, exceptions, necessaiy affidavits, &c., each folio of 100 words, 25 Copy same for each folio. 12^ Every necessary motion made in court — 62-2 Attendance in com-t on every necessary proceeding in a cause (not being the advocate) 62^ Drawing interrogatories, each folio of 100 w^ords- 25 Copy same per folio - 12^ [But taxation is never to exceed $2-50 for draft, and $1-50 for copy of interrogatories.] Brief on special motion or petition argued in court on both sides -- 1 12^ Brief on final argument in court upon the merits _ 2 50 [These briefs to include all abbre\dations of pleadings, proofs, &c., and no separate allowance made therefor.] Attending judge or commissioner on taking testi- mony de bene esse out of court (if not the advocate), 5 00 Attending clerk or assessors on reference and com- putation of damages (if not the advocate) 3 00 [But no more than one attendance taxed in ei- ther of the two last cases.] Attending taxation of costs, when notice thereof has been given or received — 50 Copy of bill of costs for opposite party 37^ Every necessary notice actually given 37| Arguing a motion or cause in court (if not the ad- vocate, and if the charge is not taxed for an an- vocate in the cause) 1 25 COSTS. 289 FEES Of ADVOCATES AND PROCTOnS ON PROCEEDINGS TO OBTAIN OUDER FOR PROCESS FOR SEAMKN's WAGES IN PLENARY CASES. Drawing attiilavit and account, per fol. of 1 00 words, 25 j,^.^^ j^jj, ^^^ Copy " 12.V ■;"l'"inihy •i •' "in sdutu rn Attendance before judge _- 02^- New ^ork Sunnnons forjudge, per Iblio 2-5 For copies, per folio 12.V Motion for process — G2.V Arguing motion wlu'u o[)posed 1 25 Copy costs for opposite party 37.V Attendance on taxation -- 50 Witnesses' fees per day _ 1 25 Drawing affida\'it of serving summons, per folio-- 25 Copy, per folio — 12.V And disbursements actually made. If before a U. S. commissioner, or state officer, his fees are to be added. (5.) FEE BILL LN SUITS IN EQUITY. Retaining fee for counsel $5 00 Fee bill in equity. Perusing and signing bill - — 2 50 Retaining fee for solicitor - 3 00 Arguing every special motion _- - 2 50 Drawing bill, 78 folios at 2S cents, --- 22 24 Engrossing, with copies of papers, SI folios at 14 cents, n 34 Copy to keep, at 7 cents, - 5 07 Clerk, filing bill, - _._ 50 Clerk, for subpcrna, &:<:., 3 00 Marshal, serving do., 10 91 Rule to answer, 2^c., clerk entering same, 50c.,-- 78 Solicitor attending entering nde 50 Dr. atll. for default, tbl. 2, 5Gc., eng. 2Sc., copy 14c.- 98 19 290 JURISDICTION OF THE FEDERAL COURTS. Fee bill in Oath to Same - _ 12.^ "'"""■ Clerk, filing same,-- -50 Dr. order for default, fol. 1, 28c., clerk entering same, 50c., 50 Solicitor attending entry 50 Dr. afft. to take bill as confessed, fol. 2, .-- 56 Eng. 2Sc., copy 14, oath 12.^, clerk filing 50c., _. 1 04| Dr. order pro confessio, fol. 1, 28c., clerk enter- ing same, 50c -- 78 Solicitor attending, 50., copy order, 25c., -- 75 Dr. aff't. to oppose motion to open default, fol. 10, 2 80 Eng. $1-40, copy 70c., oath 12^, 2 22| Clerk filing 50c., copy order 25, solicitor attend- ing 75c., 1 50 Dr. brief $1'25, dr. order for costs 2Sc., solicitor attending 50c., 2 03 Dr. costs, fol. 5, $1-40, copy 50c., taxation $2, at- tendance 50c., — -- — 4 40 Proof disbursements 5Gc., dr. demand costs fol. 1, 28c., copy 7c., 35 Exemplifications necessary to draw bill of com- plaint, ^- 4 19 Postages and disbursements necessary, in addition. (G.) FEE BILL IN SUITS AT LAW, AS TAXED IN THE CIRCUIT COURT FOR THE SOUTHERN DISTRICT OF NEW-yORK(a). Fee bill in Retaining fee, attorney and counsel ,{h) $8 GO suits at . , . law. Notice retamer and service, __ 25 (a) This bill of costs was in a patent cause. {b) Same for each term when attorney and counsel attended prepared for trial. COSTS. 29 1 Draft plea, SI --50; 3 copies, 2-2-5, 3 75 Fee bill i:. Buila ill Filing plea 12.^ h law. -'- yi\) 2o o 00 42 2 00 •_> 50 2 00 '2 00 25 25 Attendance on takiiiu; deposition, for each per- son,(r) - 1 00 Draft notice testimony inider commission, fol. S,(r) 2 00 Copy same to keep and serve,''each l'OO(c) S2 00 Service of same — (r) Procuring order for commission (r) Clerk entering rule for same (r) Drawing commission and instructions, (r) Draft interrogatories, 2-50 ; copy, 1 '00, {c) Counsel perusing, &:c... {() Copy to serve, 1-00; to annex, l-OO.. (r) Notice of, and seiTice (r) Notice of retm-n of commission & service, (c) Copy specification (a), to annex fol. 5 — 02^- Affidavit merits, and copies and oath S7i Clerk filing, 0-17 ; notice of, 0-25 42 Draft notices of special matter(«) under the statute, fol. 17 _ - 4 25 Copy to serve and keej), 4-25 ; service, 0-25 4 50 Notice to produce letters, and-ser\nce 25 Notice to produce invoices, and service-- -- 25 Subpoena tickets (each) 0-25 ; service, 0-12i 37^ Subpoena duces tecum, 1-00; ticket, 0-25 1 25 Service --- _ 12.V Attorney and counsel fee and brief on trial 11 00 Draft order to make a case 37i Attendance on same _. 1 00 Service of order and copy -- — 37^ (fl) See note (a) on previous page. (r) Same for each commission necessary, Avitnesses' fees and conimissioncr's fees in addition. 292 JUraSDICTION OF THE FEDERAL COURTS. Fee bill in Draft CHSO, O'OO ; engTossing, 2-50 $7 50 law. Counsel perusing _ 2 00 Service of same _. _ 25 Notice of settlement of case, and service _- 25 Notice of argument to attorney and clerk 50 Proof of service .-_ ._ 62^ Note of issue, 0-25 ; filing, 0-25 50 Copy lease as settled to serve & keep (each 2*50), 5 00 Copy for court __ 5 00 Brief and points on argument __ 5 00 Attorney and counsel arguing 8 00 Clerk's fees thereon __ 37^ Draft rule for new trial _ 25 Clerk entering the same ._ 37^ Notice of same _ _. 25 Draft notice of intention to issue new commission, and statement of testimony expected, fol. 4 and copy 1 50 Copy to serve, 0-50; notice, 0-25 75 Attorney and counsel attending on motion for re- argument -- -_ _ 3 50 Draft affidavit to oppose fol. 3, copy and oath 1 25 Affidavit to sei*ve for j udgment 1 25 Copy to serve, 0-37^ ; service, 0-25 G2| Notice of motion for judgment 25 Proof of service _ 62^ Attoniey and counsel arguing motion — 6 00 Draft order and copy, fol. 1 37^ Attendance on entering order 25 Motion for same _ 62^ Notice of same, 0-25 ; clerk's fees, 0-50 75 Notice of stipulation _ __ 25 Draft affidavit to oppose issuing new commission, fol. 5 1 25 COSTS. 293 Copy of same, and oath - SO 62^ Draft allitlavit of no stij)ulation having been re- law ceived, fohl 2o Copy of same, and oath 25 Ckn-k's fees on fiHnir & entering rule for judgment, 87^ Draft rule for, 0-2-3 ; motion for, 0-G2.V -- 87^ Notice of same, and service — 2-5 Draft affidavit to oppose motion to suppress de- positions, fol. 7 I 75 Copy, 0-87 i- ; oath, 0-12i 1 00 Attorney and counsel on argimient - _ 00 Clerk entering rule denying motion - 1 14 Notice of rule and service; - 25 Costs, 1-00 ; copy to keep and serve, 1-00 2 00 Notice of taxation-- 50 Affidavit of disbursements - G2| Judgment record ^ 00 Attendance on taxation — 50 Taxation--- - 07 Filing record — - - 1 00 Fi. fa., 1-00; return, 0-19 - 1 19 Clerk docketing judgment OG Signing record, 0-33 ; sealing fi. fa., 0-34 G7 F'ee hill in fiiii'a at INDEX. »*, References in italics are to the noUs : otherwise to the texf. Pagb. Abatement of suit : Death of the parties does not cause 60 At common law, contra 60 Rule confined to personal actions 60 Not for defects in matters of form 62 Affidavit : Before whom ?nust be sworn to be evidence 41 Administrators : When may appear, on death of party 60 Effect of refusing to become a party 61 Entitled to a continuance 62 Of one of the parties may come in 62 Can not appear at common law 60 When death may haj^pen 60 Can come in only on personal actions 60 When sci.fa. not necessary to compel appearance 61 May be required to produce letters 61 Admiralty and maritime jurisdiction : In what courts vested 8 Extent of 8, 52 Principles of, not according to common law 8, 190 May be vested in territorial courts 8 296 INDEX. Admiralty and maritime jurisdiction (continued) : DISTRICT COURT. Vested in 193 Pleading, rules of, liberal 190 General rules of, ohtairv^ in federal courts 190 Not governed hy decisions of 13 and 15 Riftliard II 190 Is not limited hy amount 192 Depends on subject matter 190 Limited as to locality 192 BotJi as an instance and prize court 190 In cases of j^rize 190 As complete as in England 190 In cases of seizures 191, 192 When seizures are made in some particular district 191 When seizures arc made on the high seas 191 Seizures are civil causes of 195 In cases of forfeitures 192 of salvage 192 of material men 192 of collision 192 of rvages 192 of pilotage 192 of hypothecation 192 of bottomry bonds 192 of charter parties 192 of bills of ransom 192 Attaches to court first acting 192 When jurisdiction is concurrent 192 In cases of re-delivery of property 192 Against foreign men of tear, for alleged seizure 193 Extent of 194 Set-offs not ad?fiissible generally 195 Forfeiture of a vessel under the slave trade is an admiralty cause 195 Quasi, over inland waters 207 - 210 Nature of cases under such law 207 - 8 Jwy trial under, waived, in practice 208 Limits of such act 209 INDEX. 297 Paob. Admikaltv cases : Depositions in, dc hene esse, when may be taken 50 How may be certified and used 50 New evidence in, on appeal 32 % Aliens : Circuit court has jurisdiction in cases respecting 140 Where an alien is sued in a state court 145 But not where all the jpartics arc 140 Except hij consent of parties 141 District court, jurisdiction of", respecting 196 Alien enemies : May be seized, arrested or removed, in time of war 80 Power of circuit and district courts over 81 Pou-cr of President over, unlimited 80 Orders against, marshal to enforce 80 " " judicial power to enforce 80 Can not mahc declaration to become a citizen 81 Capture by, as commander of a jirivate vessel, not illegal or invalid 81 Can not sue in a prize court 81 Ambassadors : Federal courts have jurisdiction of cases affecting 7 Supreme court has original jurisdiction of 12, 97 Is not such original jurisdiction exclusive? 97 When the supreme court has exclusive, and when original but not exclusive jurisdiction in cases respecting 100 Indictment under act of 1790 for infracting law of nations by assaidting one, not a case under the Constitution affect- ing ambassadors 100 Circuit court may therefore have jurisdiction of such a case, 100 Commencing assault, forfeit their immunity 100 Amendments : Of defects in form always allowed 62 Except as to those demurred to ^5 298 INDEX. Page. Amendments (continued) : Allowed in appellate courts G2 At any time heforc jttdgyncnt 63 In matters of form, allowed at any time 63 Always in the discretion 9fthe court 63 Allowance or disallowance of, no cause of error 63 In judgments, only as to matters of form 63 BY SUPREME COURT. Way he viade to a record hefore it 63 Not to introduce new subjects of contror,ersy 64 By, cause to he remanded 64 Writ of error may he amended in its return day 31 BY CIRCUIT COURTS. Alloxocd in revenue cases, or in rc7n 64 For matters of form in court below 64 But not for errors in substance 64 Reference to cases respecting 64 Appeals to supreme from circuit court : From final judgments in equity cases 110 in admiralty cases Ill in cases of prize Ill ^ Amount necessary to entitle one to 112 Differ from writs of error Ill, 176 Governed by the 22d and 23d sections of judiciary act — . 112 Proper, to revieto equity and ad?mralty causes Ill May he taJcen tvithinfive years, though security is not taken until after that time Ill Does not lie frovi an interlocutory decree, dissolving or re- fusing to dissolve injunction 112 Lies from a decree of sale of mortgaged premises 112 Dismissed, no citation being issued and served 112 In cases of copyrights, see also Copyrights 117 In cases of patents, see also Patents 117 Sec also Courts, Supreme and Circuit, Appellate Juris- diction. INDEX. 299 pa6b. Appeals to circuit from DfsTRic t courts : From all final decrees 176 W/iat arc final decrees 176 Must he taken i?i open court before adjournment 170 From interlocutory decree, lehen 177 Matter in dispute must equal ffty dollars 177, 178 When in cases where demand is less than ffty dollars 178 Must he taken to the next circuit court 177 New matters of defence not admitted on 177 If none taken from the final decree, none can he taken from any suhsequcnt proceedings 177 In suits for assaults, &fc., when - - - ■ 177 May he sustained in part and dismissed in part 177 Rules adopted hy act of 1803 177 If taken icithin 5 years, sujfcient, though security not taken until after that time - - - ■ 178 Evidence goes up with- an 178 Judgments on 179 Appearance : Waives objection to jurisdiction 143 Arrest : For crimes, who may order 65 Proceedings on 66 To he according to state process (jQ, 76 Process of, can not run beyond district 142 Assignee : Law respecting right to sue 143 Can not commence action on note, &c., if assignor could not 143 Foreign bills of exchange excepted 145 Rule applies to case of a general assignee 144 Rule does not apply to assignee of a hail bond 145 does not apply to conveyances of land v • • ■ - 144 300 INDEX. Attorneys : Parties entitled to have suits managed by 91 Multiplying suits, liable for costs 71 Attachc : Not liable to be sued 99 Bail : Excessive, not to be demanded 19 SuprcDie court may talcc, when jfcrson is committed hy a dis- trict court 19, 65 May be taken in cases of treason 19, 65 Questions of, do not involve the merits of a case 20 Princijiles on which granted 20 When in criminal cases 20 Who may take, in criminal cases 65, 67 In capital cases, can be taken only by the federal court or their judges 67, 68 Laws of various states respecting, adopted 75 Captures : Jurisdiction in cases of 204 Causes : Hovv^ managed 71 See also titles Equity and Common law. Circuit court : See Courts, circuit. Citizens : Jurisdiction of suits between those of same state 11 *' ♦' between those of different states 10 " " between those of a state and foreigners, 12 " " between those of a slate and a state. . . 9 Citizens of a state : Inhabitants of District of Columbia are not 9, 35, 56 A corporation is 9, 10 INDEX. 301 Paob Clerks of courts : How appointed 91, 92 Hotv removed 91 Not permanent officers 91 Of inferior courts, not under the control of tlic supreme court, 91 Fees of 64 When same person is clerk both of circuit and district court, 66 Commission, testimony by : Clerks to issue subpoenas to witnesses 53-55 Witnesses to obey process 56 Witnesses entitled to fees 57 Witnesses not compelled to go out of county 57 " •' " nor more than forty miles. 57 Subpoena duces tecum may issue 57 Obedience to, enforced 58 Copy of paper to be made 58 To bring witness in contempt, fees must be paid 58 Generaihj to take testimony of persons beyond reach of process, 53 By consent, may issue in any case 53 May he in any one's handwriting 53 Taken hy one party, may he read hy other 54 One party preventing, other may have continuance 54 When will not issue from equity side of court 54, 55 Need not necessarily he signed hy witness 55 Not to he opened before trial 55 Commissioners to take bail, acknowledgments, d:c. : Circuit courts may appoint 154 Territorial courts may appoint 62, 155 Bail taken by, valid 154 False swearing before, perjury 154 May exercise authority of a judge under the 30th section judicial act 154 Power in respect to criminals 1 56 Power in respect to seamen 155 May administer oaths 41. 154 302 INDEX. Pagb Commissioners to appoint appraisers, &c. of vessels : How appointed ^ 196 Commissioners to take depositions : May be appointed by federal courts 53 Practice on commissions 54 - CO, & notes. Can not issue hab. cor. ad tes. when 2>erso7i is in cortjinement under U. S. process 55 Fees of 59 See also titles Depositions and Testimony. • Commission, foreign : Onl>/ iray to take foreign testimony 54 May he written in English, though commissioners arc Dutch, 54 In foreign country may include ivitnesses examined at home, 54 Taken abroad, may he read if taken hy a judge in presence [ ': of commissioner 54 When under a special commission 54 Not in an enemy^s country b^ Will not issue till commissioners are named 54 Common law : Suits at, to be tried by a jury 18 " 7neaning of the term 18 Facts found by a jury can only be reviewed at common law, 18 Remedy, when it exists, secured to suitors 50 Suits not tried hy, when equity jurisdiction ohtains 88 Consent : Will not confer jurisdiction in cases hefore the sujiremc court, 98 Hut will in the circuit court 141 Constitution cited : • Art. .3, § 1. Judicial power, when vested 3-6 Art. 3, § 2. Judicial power, extent of 6-16 Art. 3, § 2. Original jurisdiction supreme court 97 i Art. 3, § 2. Appellate jurisdiction supreme court 102 INDEX. 303 I'aub. Constitution citkd (cotitiiiiied) : AMENDMENTS TO. Art. 5. Indictment, &c IG " G. Jury trial to criminals 17 " 7. .] ury trial in civil suits 18 " 8. Jiail, fines and punishment 19 " 11. Limitation of judicial power ^0 Constitution : In what courts judicial power vested by 3 Extent of judicial jjower 6 Original jurisdiction of supreme court under 12 Appellate jurisdiction of supreme court under 14 Jury trial in criminal cases guarantied 15 And place of trial designated 15 Criminals not to be tried without indictment 16 Nor be twice put in jeopardy 17 Persons not to be a witness against themselves 17 Persons not to be deprived of life, liberty or property, without due process of law 17 Private property not to be taken for public use, without remuneration 17 Criminals to have a speedy trial 17 " to know accusation against llieni 18 " to be confronted with witnesses 18 " to have compulsory process for witnesses 18 " to have assistance of counsel 18 Jury trial in civil cases, when secured 18 Excessive bail not to be demanded 19 Excessive fines not to be imposed 19 Unusual punishments not to be infliclcd 19 Judicial power not to extend to suits brought against a state, by citizens of another or of a foreign state 20 Constitution, amendments of : Effect rff amendments 1 G Higher authority than the Constitution itself 10 304 INDEX. Page. Constitutional courts : Supreme court 3 Inferior courts ^ hatter may he cstahlisJtcd hy Congress 4 Meaning of. 4 Territorial courts are not constitutional ones 5, 245 See also titles Courts, Jury, Crimes, &c. Consuls : Cases respecting, where tried 8 "When supreme court has original jurisdiction of cases re- specting 100' 101 When district courts have exclusive jurisdiction of cases against 196, 193 in note. Can not he sued in a state court 99, 193 It is a right of, to he sited in the federal courts 196 Omission to claim this privilege, not a waiver of it 193 Contempts : May be punished hy fine and imprisonment 42 But only in cases in presence of or near the court 43 Or in cases of misdemeanor of its officers 43 Or of resistance to lawful process 43 Power to punish for, independent of statute 42 " " incident to all courts 43 Party 'purging himself of , will not he met tvith collateral evi- dence 42 What is a 52 Publication reflecting on a court is . 52 So unfair practice toward a witness 42 So oppression under color of process 43 So serving process in the actual or constructive jn-escnce of the court 42 J^ut not serving a party, while attending court, toith a sum- mons 42 Will not he relieved against by habeas corpus 43 Attachment for, only necessary when party is not in court . . 43 Courts not of record can only jmnish hy indictment, except when committed in the presence of the court 43 INDEX. 305 Contempts : A person struck off' the rolls of an inferior court on account of may still he admitted in the supreme court 43 General references respecting 44 Copyrights : Circuit courts have cognizance of cases respecting 156 Such jurisdiction is constitutional 156 " can not he ousted 156 Jurisdiction extends to all cases of 156 " is exclusive, 156 Cases respecting may be carried before the supreme court like other cases 117 Corporation agreggate : Is a citizeji of a state 9, 10 Costs : Statutes respecting, list of 255, 256 " " abstract of 260 " " in force 260-272 " " indefinite 255 Excluded in estimating sum to give jurisdiction 256 " " " right of appeal 256 How collected 261 Misdemeanor to receive unlawful ones 261 When in but one action, if more than one is commenced . 259 Courts may make rules to prevent 260, 264 Attorneys to pay, if proceedings multiplied 264 Rule of taxing as regards particular items 272 Security for, not required if plaintiff is a citizen 273 " effect of not demanding 273 " not required in patent cases 273 On dismissal of bill generally 273 " " for leant of jurisdiction 273 On setting aside a dis?nission of a cause 273 When jurisdiction has hccn tahcn away 273 When more than one attorney appears 274 20 306 INDEX. Paob. Costs (continued) : On continuance, who to ])ay, 274 None, tchen judges differ as to 274 Can a consul, suing for the United States, receive 274 None against the United States 276 Are generally in the discretion of the courts 274 Supreme court may regulate 271 Cases rcforrcd to 275 IN SUPREME COURT. On dismissal of writ of error 276 " to be inserted in the mandate 277 On affirmance of writ of error 276 On revei-sal of writ of error 576 None against the United States 276 IN CIRCUIT COURT. When plaintiff in equity recovers less than $500 64, 151 «' " admiralty " " $300 64, 151 In equity proceedings generally 277 On removal of causes from state courts 274 And when less than $500 is recovered 274 IN ADMIRALTY CASES. Generally according to a sound discretion 274 Against defendants, on suits for fines, &c 261 Against defendants, when discretionary, 261 Informer when liable for 261, 262 When claimant to pay only his own 264 On discharging property arrested 26 J IN FAVOR OF PARTIES 272 IN CASES AT LAW 279 OF DISTRICT ATTORNEYS. Secured to 256 Measure of 265-270 Attorney to make return of 268 Amount may retain 265 - 270 When no per diem allowance 268 INDEX. 307 Paoi. Costs (continued) : OF CLERKS. Measure of 2G5 - 270 Clerks to make return of 2G8 Amount may retain 2G5 - 270 When no per diem allowance 268 When same person holds two offices 275 OF MARSHALS. Measure of 2G5-270 Percentage allowed to 258 Of marshal northern and southern district New- York — . 2G9 Marshals to make return of 268 Amount may retain 265-270 Where no per diem allowance 268 OF JURORS 262, 275 (n.) OF WITNESSES 262, 275 (n.) OF CRIERS 262 Counsel : Right of, secured to persons charged with crime 18 Causes may be managed by 71 Multiplying proceedings, liable for costs 71 Courts under the constitution : Judicial power, by the Constitution, vested in the supreme and inferior courts 3 Extent of their jurisdiction 6 Their jurisdiction limited 3 Jurisdiction dcjjcnds on the Constitution and the statute laiv, 3 Are bound to take cognizance of state laws 4 Of territories not constitutional ones 5 Jurisdiction, vhen dcj^ends on character of cause 6 " when on the character of the parties 7 Have power to commit for offences 19 Jurisdiction of, limited in suits against a state 20 308 INDEX. Pagb. Courts under the constitution (continued) : Jurisdiction determined hy tlie parties to the record, and not hy those in interest 10, 21 Judges of, see title Judges. Supreme, original jurisdiction defined by Constitution 12 •' appellate jurisdiction ditto 12 Inferior, what is meant by 4 " jurisdiction of, estahlished hy Congress 4 " jurisdiction of, how exercised 4 Courts, proceedings in : Regulated by Congress 72 Adopted as in the several states 72 Not changed by subsequent state laws 73 May be altered by federal courts 73 Capiat cohere adopted 73 Tower to alter constitutional 74 Effect of act of 1828 74 Statutes relating to, regarded as adopting principles, Sfc. of English court of chancery 75 In inferior courts, cannot be controlled by supreme 75 Tower to regulate, by adopting state laws, extends to future legislation 76 How far state laws obligatory 76 State laws adopted must not be repugnant to acts of Congress, 76 In replevin 77 In admiralty, nature of 76 District courts cannot adopt or alter 77 Courts, powers in common : To issue writs 25 " of habeas corpus, see that title. " of scire facias, do. " of mandamus, do. " of execution, do. " of ne exeat, do. " of injunction, do. INDEX. 309 Pasi. Courts, powers in common (continued) : To devise process 25 To order production of papers, see title Papers, produc- tion OF. To sustain suits in equity, see title Equity. To grant new trials, see title New trials. To administer oaths (see also title Oaths) 41 To punish contempts, see title Contempts. To make rules, see title Rules. To take testimony, see titles Deposition, Commission, Testimony. To prevent abatement of suits on death of parties, see title Administrators. To amend pleadings, &^., see title Amendment. To arrest, hold to bail, &c., see titles Crimes, Recogni- zances, and Bail. To issue execution, see title Execution. To hold to peace, see title Good behavior. To maintain jurisdiction when all the parties are not in the district, see title Parties. To have jurisdiction over suits for penalties, see title Pe- nalties. To remit recognizances, see title Recognizances. See also titles State laws. Process, Jury trial, Issues OF FACT, Clerks, Judgments, Decrees, Alien Ene- mies. COURTS. Supreme court : general provisions. Created by the Constitution 3 Number of justices composing 95 Quorum, number necessary to make 95 Precedence of justices 95 Session of 95 Adjournment of 96 Salary of justices of 96 310 INDEX. Paob. COURTS. Supreme court (continued) : GENERAL PROVISIONS. Jurisdiction of, is sjjccial and limited 3, 98 Can not act extrajudicially 3, 98 Can not act hy consent of 2-)arties 98 ORIGINAL JURISDICTION. Defined by the Constitution 12, 97 In cases affecting ambassadors, public ministers and con- suls 12, 97 Is not jurisdiction in cases a^ecting ambassadors, exclusive as well as original 97 In cases where a state is a party 13, 97 Kind of interest necessary to make a state a party 99 Congress can not extend it 12 Depends on the character of parties 13 Does not exclude appellate 13 Congress has not pointed out any mode of proceeding in cases of 98 EXCLUSIVE JURISDICTION. In v^hat cases, when state is a party 98 In suits against ambassadors, &c 12, 100 IN OTHER CASES. May issue writs of prohibition to district courts, see title Prohibition. May issue writs of mandamus, see title Mandamus. Can not compel circuit court to adopt particular proceedings, though may reverse its decisions 75 APPELLATE JURISDICTION. In cases arising under the Constitution 14, 102 " arising under the United States laws 14, 103 •• arising under treaties 14, 103 " of admiralty 14, 103 INDEX. 311 COURTS. SuPREiME COURT (contiiiued) : APPELLATE JURISDICTION. In cases where United States is a party 14, 103 " between citizens of different states 14, 104 " between citizens of same state 14, 104 " claiming land under grants from different states, 14, 104 Extends to law and facts, 14, 13 (n). Depends on the character of the case 13 Must he exercised in accordance with Constitution and statute law 13 Appellate excludes original jurisdiction 13 Can he exercised only in cases provided for by Congress, and in the manner pointed out 13 Docs not extend to reversing its own decisions 103 Does not extend to criminal cases 103 As to matter in dispute, see title Matter in dispute. As to when the appellate jurisdiction should be invoked by writ of error, see title Writ of error. As to when it should be invoked by appeal, see title Ap- peal. In cases of certificate of division of opinion, see title Divi- sion OF opinion. In cases of copyrights, see title Copyrights. In cases of patents, see title Patents. In cases of habeas corpus, see title Habeas corpus. FROM district COURTS. When such courts ai'e clothed with circuit court powers, appeals lie from their decisions as from circuit courts . . 119 In particular cases, as provided by law 119 FROM CIRCUIT COURT OF DISTRICT OF COLUMBIA. From final judgments, when matter in dispute equals 1000 dollars 126 When allowed in cases amounting to 100 dollars 125 312 INDEX. Page. COURTS. Supreme court (continued) : FROM CIRCUIT COURT OF DISTRICT OF COLUMBIA. When appeal or writ of error a supersedeas 127 Cases arising in the orphans' court, how reviewed 125, 229 Can he exercised only in final cases 125 Not in cases of division of opinion 125 Nor in criyninal cases - 125 Matter in dispute is the sum claimed 125 FROM TERRITORIAL COURTS. Generally in same cases as from circuit courts 127 - 9 OREGON. From final decisions of supreme court of territory, where matter in dispute exceeds 2000 dollars 129 ■ . MINESOTA. In like cases as in Oregon, where matter in dispute exceeds 1000 dollars 130 UTAH. In like cases as in Minesota 130 . In all cases, without regard to value, where title to slaves or personal freedom comes in question 130 NEW-MEXICO. In like cases as in Utah 130 FROM DECREES OF STATE COURTS. Where the decision is against a treaty, statute, or authority of the United States 120 Or in favor of a state law, claimed to be repugnant to such a treaty, law, &c 123 On such appeal, decision final 124 Error must be apparent from the record 124 But need not he stated in so many words 122 Judgment of state court must he a final one 121 INDEX. 313 COURTS. Supreme court (continued) : FROM DECREES OF STATE COURTS. Jurisdiction constitzifional, hut a delicate power 121 Jurisdiction maintained, when one party is a state, and the other a citizen of the same state 121 Some of the qtiestions specified in the statute must arise and he decided as there required 121 Requisites of decisions of state courts 28, 29, 121 Jurisdiction not limited hy value of matter in dispute 105 Jurisdiction ivill not he exercised of conflict of state laws and a state constitution 123 Judgment of this court must he confined to the particular error 123 Writ of error may he directed to any court, where the record is 123 General cases referred to 123 PRACTICE ON APPEAL. Judgment of, on reversal, to be such as should liave been given in the court below 113 Can not issue execution 113 Nor assess damages 113 Must remand cause, when reversal is in favor of the plain- tiff", or damages are to be assessed 113 As to matter in dispute determining jurisdiction, see title Matter in dispute. from territorial courts. Generally, in like cases, as from circuit courts, 127, 128 For particular cases, in the various territories, see title Courts, territorial. From decree of state courts, see title Courts, state. Circuit Courts : general provisions. Judge of 135 District judge can not act on appeal from his own decision 136 Two justices may be required to hold 136 Justice required to attend but one session annually 137 314 INDEX. Paoi. COURTS. Circuit courts (continued) : GENERAL PROVISIONS. At such term, what business entitled to preference 137 Sessions of, see Appendix. Special criminal sessions may be ordered near the place where the crime was committed 137 Other special sessions may be ordered 137 Adjournment of, when judges are not present 137, 138 Adjournment in case of dangerous sickness 138 Judges of, have no separate commission 135 " dead, another may sit 136 District judge may hold, when no allotment oj" justices has been made 136 District judge not sitting judicially is deemed absent in laxo, 136 Jurisdiction of, limited 4 Decrees of, may be erroneous, but are not nullities 3, 4 Can not be compelled by supreme court to adopt particular proceedings, though decision may be reversed 75 Can not arrest out of its district 142 , Can not send process beyond the district 143 and note. Can not render judgment against a person not served with process, unless he voluntarily appears 143 Jurisdiction must appear on the record 139 Jurisdiction does not extend to all cases under the laws of the United States 139 Jurisdiction having attached, is not lost by a change in the condition of parties 140 When jurisdiction does not attach in suit brought by an assignee, see title Assignee. As to amount in controversy, see title Matter in dispute. Has no jurisdiction in cases where a deed has been executed to confer jurisdiction , 141 All parties on both sides must be subject to jurisdiction of . . 141 But they may be administrators, 8fc. as well as j^'t'ivatc per- sons 141 INDEX. 315 Fa«l COURTS. Circuit courts (continued) : GENERAL PROVISIONS. Appearance waives ohjection to jurisdiction 141, 143 May proceed to judgment, though all the parties are not be- fore it °* Has jurisdiction of a suit on a judgment, when it could not have had on note the subject of the judgment 143 Has jurisdiction of suit, endorsee against endorser, though could not have of endorsee against maker 144 Must try all crimes presented before it 142 Parties may consent to jurisdiction 141 ORIGINAL JURISDICTION. In cases where United States is a party 140 " where an alien is a party 140 " where the suit is between citizens of different states, 140 Has none when a citizen of the district of Columbia is plain- tiff 139 Has none where both parties are aliens, except by consent of all 140 Nor where neither of the parties reside in the state 141 Nor where a state sues citizens of the same or another state . 141 Nor in suits for j^enalties and forfeitures 142 EXCLUSIVE JURISDICTION. In criminal cases which are capital 141 In cases arising under acts respecting patents and copy- rights, see titles Pattnts and Copyrights. CONCURRENT JURISDICTION WITH THE DISTRICT COURTS. In cases of crimes and offences, except when the same are punishable with death 141, 189 («.) Has jurisdiction of all offences against the United States. . . 141 Has jurisdiction of robbery committed on the high seas, or on a vessel 142 o 16 INDEX. Pagb. COURTS. Circuit courts (continued) : CONCURRENT JURISDICTION WITH THE DISTRICT COURTS. Has jurisdiction of an indictment under act of 1790, ch. 9, for assaulting an ambassador 100, 142 May try crimes out of the county where they were committed, 142 See District courts. In suits upon assigned debentures 152 See title Debentures. In suits brought by the United States or its officers, whe- ther the amount reaches $100 155 Extends to all cases 155 In cases of piracy, see title Piracy. In cases of slave trade, see title Slave trade. In suits brought against persons obstructing or hindering government surveyors 164 Over causes arising under the revenue laws 164, 165 Over crimes committed in the Indian country 167 But does not extend to crimes committed by one Indian against the jjerson or property of another 167 But does extend to the case of a white man who assumes In- dian hahits 167 Construction of act of 1802 168 Over penalties under the Indian acts 168 Over suits for infractions of laws regulating steam trans- portation and conveyances 168, 169 Over causes arising under the post-office acts 170 INDEX. 317 Pas COURTS. Circuit courts (continued) : CONCURRENT JURISDICTION WITH THE DISTRICT COURTS. Over hands of dcj'Utij postmasters 171 Cases referred to 172 See title Post-offices. To enforce treaty stipulations 172 On application of foreign consuls 172 May issue necessary process 173 May arrest and imprison offenders 173 Foreign consuls to bear the expense 173 concurrent jurisdiction AVITH state COURTS. In cases where the United States is a party 1^9 " where an alien is a party 140 " where suit is between citizens of different states . 140 Can not refuse to act in cases of concurrent jurisdiction .... 140 JURISDICTION IN OTHER CASES. In cases pending in a district court, when district judge is unable to act 152 Causes to be certified to in such cases 153 When such a disahility terminates by the death of district judge, cause to he remanded 152 To appoint commissioners to take testimony. ■. 154 See title Commissioners. To stay execution on a petition for a new trial 150 See title New trial. In cases pending in a district court, when district judge is interested 163 How such cases are removejL 163 Jurisdiction full and complete 163 In cases in other circuit courts, where judge is interested. 169 Such cases to be certified 169 318 JURISDICTION OF THE FEDERAL COURTS. PAoa. COURTS. Circuit courts (continued) : JURISDICTION IN OTHER CASES. Mode of removing the same 170 To have full cognizance in such cases 170 To render judgment and issue execution 170 Over suits brought for injuries received in caring for the revenue 164 APPELLATE JURISDICTION. Generally 173 Can he exercised only according to law 173 From final decrees in civil actions 174 Transcript in such cases 174 Citation thereon 174 In admiralty cases 174, 177, 178 A statement of the case to he furnished 177 Practice changed hy the law of 1803 177 From final decrees in state courts in suits on forfeitures . . 179 On what conditions 179, 180 In proceedings on distress w^arrants 180 See title Distress warrants. In proceedings on habeas corpus under the McLeod act . . 181 See title Habeas corpus. ON REMOVAL OF CAUSE FROM STATE COURTS. Where an alien is sued 145 Or where a citizen of one state sues a citizen of another state 145, 146 Mode of removal 147, 148 Original bail to be discharged 148 Attachment to hold good 148 Right of removal cannot he withheld 145 If withheld, all proceedings^oid 146 Defendants must all ask for removal 146 This rule confined to ca^es where the judgment must he joint, 146 Defendants may remove cause at different times 146 INDEX. 319 Paob. COURTS. Circuit courts (continued) : ON REMOVAL OF CAUSE FROM STATE COURTS. Cause will he remanded, unless all the defendants remove the same 146 Application to remove must he made on entering appearance, 146 Cause can not he removed as to some, and not as to others, 146-7 Plaintiff can not, hij releasing j^CLi't of the deht after suit brought, take away right to remove 147 SucJi causes can only be removed, as could have been origin- ally in the circuit court 147 Only when a citizen is a plaintiff 147 None after resting two terms 147 Improperly removed, will he remanded 147 "Where parties claim lands under grants from different states 149 Mode of removal 149, 150 ^ Applies when the grants are from different states though ori- ginally they formed hut one, 149 Applies to inchoate titles, obtained from the same state, and after ratified by the two states formed out of that original state 149 Where causes are commenced for some act done under the revenue laws 165 Defendant may have such removed 165 Mode of removal 165 Certiorari, when allowed on petition 166 Habeas corpus cum causa, when proper 166 Duty of state court 166 Defendant in arrest, marshal to take charge of 166 Attachments &c. to remain in force 166 Proceedings when no copy of the record or proceedings below can be obtained 167 320 INDEX. Pagb. COURTS. District courts : general provisions. By whom held 185 Terms of regular and special 185 Adjournments of 185 When may be held by another judge 185 Effect of death of judge 186 On death of judge of, when causes will be remanded from the circuit court 186 In what districts have same powers as circuit courts 119 District judge deemed absent when not present judicially 136 EXCLUSIVE JURISDICTION. In cases of admiralty and maritime jurisdiction 189 Admiralty jurisdiction extended to inland waters 207 'Principles of common law inapplicable 189 Rules of pleading, liberal 190 To follow general rules of admiralty 190 Decisions under 13 and 15 Rich. II, not binding on 190 Jurisdiction determined by subject matter 190 " unlimited as to subject viatter 192 " limited in points of locality 192 " both instance and prize 190 How far English admiralty law holds in instance cases — 190 And in cases of prize 191 Jurisdiction as complete as in England 191 " attaches to court first acting, when state or territorial courts have a concurrent one 192 Over admiralty torts 192 May order property redelivered Extent of admiralty jurisdiction Set-offs not generally admissible Decrees final 191 Revenue jurisdiction, extent of 191 In cases of forfeitures 192 INDEX. 321 Paoe. COURTS. District courts (continued): EXCLUSIVE JURISDICTION. In cases (j/* salvage 192 " of MATERIAL MEN 192 " of COLLISION 192 " of WAGES 192 " of PILOTAGE 192 " of HYPOTHECATION 192 " rf BOTTOMRY BONDS 192 " of CHARTER PARTIES 192 " of BILLS OF RANSOM 192 " of seizures 195 On land and on water 191 When seizure is made on land, trial is hy a jury 191 When on water, trial hy the court 191 When seizure is made on high seas and in no particular district, when tried 191 When seizure is made in some district, when tried 191 Foreign man-of-war can not he lihelled for an alleged illegal seizure 193 Jurisdiction exclusive 192 In suits respecting consuls 196 Jurisdiction exclusive 193 See also title Consuls. In cases of prize 201 See title Prize. CONCURRENT JURISDICTION WITH THE CIRCUIT COURTS. Over crimes and offences 189 e^ seq., 207 Punishment hy whipping aholishcd 1S9 " pillory " 189 See Circuit courts. 21 322 INDEX. Paob. COURTS. District courts (continued) : CONCURRENT JURISDICTION WITH THE CIRCUIT COURTS. In suits upon assigned debentures 200 See title Debentures assigned. In suits brought by the United States of its officers, whether amount reaches $100 204 Extends to all cases 155 In cases of piracy 206 See title Piracy. In cases of slave trade -206 See title Slave trade. In suits brought against persons obstructing and hindering government surveyors , . 206 In cases under the Indian acts 207 See title Circuit courts. Over suits for infraction of law, regulating steam transpor- tation and conveyances 207 In cases arising under the post-office acts 210 See titles Circuit courts, and also Post-offices. To enforce treaty stipulations 210 See title Circuit courts. appellate jurisdiction. In cases of distress warrants 204 See title Distress warrants. In cases of rejection or confirmation of California land claims by board of commissioners 210 INDEX. 323 Pagb. COURTS. District courts (continued) : IN OTHER CASES. To appoint commissioners to qualify appraisers of vessels and other property 196 On petition for remission of fines and penalties 197 See title Fines. To grant injunctions 200 See title Injunctions. Over all complaints in cases of captures 204 In suits for penalties 195 Extent of revenue jurisdiction in such cases 204 In suits brought by an alien 196 In suits brought by the United States 196 District of Columbia : circuit court. Judges of, and salary 219 Terms of, see Appendix. Adjournments of 219 Writs and processes of, how tested 219 General jurisdiction of 220 Juries of, defined hy the repealed act of 1801, c7^. 4 220 Has all necessary powers 220 May issue mandamus to government officers 220 Has no original jurisdiction in cases under fifty dollars . . . 222 Of crimes and offences 220 Of cases brought by the United States 221 Of cases of seizures 221 324 INDEX. Page. COURTS. District of Columbia (continued) : CIRCUIT COURT. Of suits of fines, penalties 221 Of all cases when either party resides in the district 221 Against non-residents, 221 None generally, unless found within the district 222 In some cases, same as supreme court chancery, Maryland 223 May issue attachments against absconding debtors 223 Same power as levy courts of Maryland 221 To deliver up fugitives from labor 222 To grant licenses 223 In cases of altering, &c., public roads 223 In cases of discharging insolvent debtors 224 A citizen of the district cannot he discharged hy a court out of it 224 To order sale of infants' real estate 225 To appoint trustees over property of religious corporations 225 In cases under post-office acts 226 See title Circuit courts, and also POST-OFFICES. In cases of contested claims to money, awarded by board of Mexican commissioners 226 May issue injunction to secretary of treasury 227 INDEX. 325 Faob. COURTS. District of Columbia (continued): APPELLATE JURISDICTION. From criminal court 227 From all final decisions 227 May reverse such decision 2~-7 Or reward the same "27 Or declare a new trial 227 From Orphans' courts 229 Decisions in orphans' court may he reviewed by supreme court 229 Fiom Courts of registers of wills 229 From Justices' courts 228 Wlien debt exceeds five dollars 228 Proceedings to be summary 228 Parties may demand a trial by jury 228 Wlien may proceed on non-appearance of appellee 228 When appeal to be to the next circuit court 228 In suits brought by corporation of Georgetown 229 DISTRICT COURT. Judge of 230 general JURISDICTION. iSame as other distiict courts 230 appellate JURISDICTION. From decisions of commissioner of patents, refusing a patent 230-235 Extent of power on such appeal 232 Effect of decision of the judge 232 Appellate powers, special and litnited 233 Only exists when there are contending parties 233 No appeal from decision granting a patent 233 326 INDEX. Page. COURTS. District of Columbia (continued) : APPELLATE JURISDICTION. Only on a refusal to grant 233 From decisions of commissioners of patents on interfering amplications 232 CRIMINAL COURT. Judge of, and salary 235 Powers of judge out of court , 237 Regular and special terms of 235 Who to hold, judge being unable 235 Writs and processes of, how tested 236 Circuit court to have jurisdiction of cases when district judge is related to any of the parties 238 GENERAL JURISDICTION. Over crimes and offences 236 Over all against the laws of the district, as full as circuit court had 236 "i May delay sentence or execution to allow a writ of error 236 To adjourn questions of law to the circuit court 237 To make rules of practice 237 To hold to bail 237 orphan's COURTS. Judge of, and salary 238 Same power as orphans' court of Maryland 238 Over foreign letters of administration 239 Such power defined 239 Puts foreign and local admimstrators on same footing 239 Power limited to bringing suits 239 Effect of the law conferring such power 239 INDEX. 327 Paob. COURTS. District of Columbia (continued) : COURTS OF REGISTER OF WILLS. Judge of, and salary 238 Same power as similar court in Maryland 238 LEVY COURTS. How composed 240 Jurisdiction of 240, 241 Not entitled to half of Jines, ^c 240 justices' courts. Acts conferring jurisdiction 241 Justice of the peace is an officer of government 241 Territorial courts : Are not constitutional but legislative courts 245 General acts of Congress do not apply to 246 GENERAL JURISDICTION. In cases under the Indian acts 246 In cases under post office acts 246 To appoint commissioners 246 Powers of such officers 247 See titles Circuit courts and Commissioners. OREGON. Judicial power, how vested 249 Judicial power, extent of 249 Jurisdiction of district court 250 Appeals from district to supreme court 250 No trial by jury in cases removed 250 328 INDEX. Pagb COURTS. Territorial courts (continued) : MINESOTA. Same powers as in Oregon 250 Appeals in similar cases 251 First six days of term constitutional 251 Causes have a preference 251 NEW MEXICO. Orjranized and regulated as in Mincsota 251 Courts may issue writs of habeas corpus, where same can be issued from courts of District of Columbia 251 UTAH. As in Mew Mexico 252 Crimes : How and where tried 14, 17 Unusual punishments not be inflicted 19 When indictment jfbr 16 May be tried by a circuit or district court 141, 207 Capital cases only hy the circuit court 141, 207 Need not he tried hy circuit court in the county where they were committed 142 Criminals : When must be indicted 16 Entitled to a trial by jury 14 Not to be twice put in jeopardy for same offence 16 What is a har to a second trial, and what not 17 To be informed of accusation against them 18 Need not be witnesses against themselves 18 To be confronted with witnesses against them 18 Entitled to due process of law 17 To have compulsory process for witnesses 18 To have assistance of counsel 18 When may have separate trial, and when not 14 Pardon, hov) pleaded 14 INDEX. 329 Paoi. Criminals (continued) : Who may arrest and hold to bail G5-68 When bail may be taken of 65 Witnesses against, may be recognized 66 Witnesses for, may be recognized 87 Witnesses for, removal of 66 Criminal cases : Can not he carried before supreme court on appeal 103 Can be examined only on certificate of division of opinion. . lOli Damages : Can not be assessed in supreme court 113 Death: Of parties, how administrators or executors may be substi- tuted 60 In crimes punished by, who may bail 65-68 Debentures assigned: Circuit and distinct courts have jurisdiction of suits brought upon 152, 200 Decree : Not reviewed after writ of error, except when 39 Not to affect parties out of the district 84 Hoic long a lien on real estate, 8fc 186 Are a lien, without filing a transcript 187 State laws requiring filing of transcripts do not opphj to. . . 187 Hoiv to be pleaded, 187 Arc binding on all the world 187 Dedimts potestatem: Testimony may be taken by 51 Dejwsitions by are not de bene esse 51 330 INDEX. Page. Default : Judgment as for, or failure to produce papers, 36 Notice for, in such cases 37 Judgment on, to be according to equity 45 Judgment on, uncertain, amount to be assessed by jury. . . 45 Demurrer : Judgment on, according to equity 45 To specify, particularly defects 65 Deposition : Equity testimony may be taken by 52 In states where such is the j^ractice 52 Such taking is discretionary with the judge 52 Depositons de bene esse : In what cases may be taken 45 Before whom 48 On what notice 48 Mode of taking 49 Disposition of, by officer taking 50 Witnesses compelled to testify 50 In admiralty cases, when 50 " " when to be be taken down by clerk . . 50 '• " when used on appeal 50 Wlicn may be used at trial 51 Can be taken only in circuit and district court 45 Statute must be strictly followed 46 Taking of, optional, not compulsory 46 May be taken in all cases where the witness is 100 miles from place of trial 46 Not absolute, witness returning 46 Can be read only on proof that witness cannot attend 47 Witness may he attached fur not ap2>earing to testify 47 Witness entitled to travel fees 48 Certificate as to who wrote depositions 49 Must not be opened out of court 50 INDEX. 331 Pacb Depositions de bene esse (continued) : Cannot he talccn in case of a seaman 46 " " an informer 51 Dcpositiotis under a dcdimus potestatem are not 51 Depositions in perpetuam rei memoriam : May be admitted at discretion of judge 52, 53 See also titles Commission and Testimony. District of Columbia : How formed, extent of 217-218 What laws are adopted in 218 Effect of cession upon the inhabitants 217 Inhahitants of are not citizens of a state 217 Effect of cession, in respect to soil 217 Statute 27 Elizabeth, in force in 217 Courts in, have same jurisdiction as respects personal pro- perty as Etiglish courts 218 For jurisdiction of courts in, see title Courts ; District OF Columbia. District courts : See title Courts, District. Distress warrants : Jurisdiction of district court in cases of ISO, 204 General jurisdiction 205 May stay proceedings on same by injunction 205 Lien not destroyed by such stay 205 Appeals lie from decision of district court ^180, 206 Wlio vraij appeal ISO, 205 When United States can not 205 Constitutionality of act doubted 205 Division of opinion of circuit judges : In case of, point may be sent to supreme court 114 Decision of supreme court final 117 332 INDEX. Page. Division of opinion of circuit judges (continued) : Cause may be proceeded in, in other respects 117 Imprisonment or punishment not allowed in cases of divi- sion 117 Only ijarticular 'point and not the wJiolc cause goes up 114 Points must he clearly stated 114 Decree affirmed, if court above equally divided 114 Can not exist in a case carried from, district to circuit court 114 Does not apply to any proceeding subsequent to the decision of the cause 114 Nor to question of taxation of costs 115 Nor to motion for a new trial 115 • Nor to cases in the circuit court of the District of Columbia 115 Nor to questions of 'practice 115 Confined to points arising at the trial 115 Confined to points of late 115 Sometimes allowed, when judges rather doubted than differed 115 Reasons of difference not to be stated in certificate 116 Cases referred to generally 116 Endorsee : Suit by 144 May sue endorser, though could not maker 144 Living in same state with maker, may sue endorser living in another state 144 Ha,s only same rights as Ms endorser 144 EQUITY : Suits in, not sustained when there is a remedy at law 38 Jurisdiction, independent of state law 38 same as in England 38 sustained if remedy is doubtful or uncertain. . . 38 not allowed when common law obtains 38 and vice versa 38 defmed by lQ)th section, act 1789, chap. 20. . . . 38 extent of 39 INDEX. 333 Equity (continued) : Jurisdiction, when suits come within it 'jS " v:hen remedy is not perfect at law 38 Practice in, regulated by act 1792 39 Suits in, answer has right to be on oath 39 Equity suits : Testimony in, may be taken by deposition 52 Such taking discretionary with the judge 52 On appeal of, parol testimony to appear on record 52 Proper mode of reviewing, by appeal Ill Evidence: See titles Testimony, Depositions and Commissions. Execution : Writs of, by what authority issued 27 Practice in respect to, how regulated 27 Same as in the several states 72 Form of, may be altered 79 " " " and enlarged 77 When not to be issued by supreme court 113 Executors : See title Administrators. Fines : Excessive, not to be imposed 19 Remission of 197 Proceedings by judge of district court 197 Petition, what to contain 199 " to whom to be presented .* 199 Proceedings of judge thereon 199 Facts to be sent to secretary of treasury 199 Judge bound to state the facts 197 334 INDEX. Paob. Fines (continued) : Stafcmc/it of claimant not legal irroof. 197 Wlien remission may he made 198 WheiJicr after imyment 198 Remission must he according to laic 198 " may he after final judgment 198 " can not he of collector^ share alone 198 Refusal to reriiit not considered hy the court on questions of forfeiture 199 None in cases of offences 199 Petition for ?mist he verified 197 " notice of, to whom given 197 Judge not to act, unless forfeiture is proved or ad/mitted. . . . 197 Seretary not to remit, unless forfeiture is proved or achnitted 197 Good beiiavior : Meaning of the words 5 Federal courts may hold to 82 Habeas corpus : Federal courts may issue 25, 28 When not to issue 40 When persons in confinement under U. S. law 30 When persons confined for an act done by authority of a foreign government 30 No law prcscrihing when it may issue 28 Is in nature of a writ of error 28 When to persons in confinement 28 Confined on civil or criminal process 28 Nature and poicer of writ 28 SUPREME COURT. Will not issue same, until power is shown 28 Can issue it only as a jxi^rt of appellate jurisdiction 28 To those confined under orders of federal coiirts 28 Not to those confined under orders of state courts 29 Nor to those imprisoned for contempt 29 f When cases of may be appealed to supreme court, 119 INDEX. 335 Paob. Habeas corpus (continued) : CIRCUIT COUUT. Can not issue to f/iose confined under orders of a state court. 29 Sentence oj" court below having jurisdiction, can not he looked into on tJiis icrit 29 M.ay inquire whether capias rightfully issued 29 Can not issue to discharge a secretary of legation from pro- cess of a state court 29 Appellate jurisdiction under McLeod act 181 DISTRICT COURT. In cases under the army laws 29 Habeas corpus ad testificandum : Federal courts may issue 28 Commissioners can not issue 55 Indians : Tribes of, are not foreign states 10, 28 Indictment: For crimes when necessary, and when not 16 Informer : Deposition of, can not he taken de hone esse 51 When liable for costs 261, 262 Injunctions : Not to be granted except on notice 35 Nor to stay proceedings in state courts 35 Great caution required in its exercise 31 Is the strong arm of equity 31 Arc all special 32 Not necessarily a supercedeas 32 Can not issue from state to federal courts 32 Lies against a person abusing exercise of authority under a state law 32 336 INDEX. Pagb. Injunctions (continued) : Will not lie to restrain the perforniance of a mere ministe- rial act 32 But may, in some certain cases, from circuit court of Dis- trict of Columbia 220 Must be on notice 33 Only short notice necessary on application to a court 33 Longer notice on application to a single judge 33 Circumstances of each case must govern 32 SUPREME COURT. "When may be issued by 31 Has been granted to stay money in a marshal's hands, be- longing to a state 32 And to quiet title 33 And to prevent a transfer of a specific article 33 And to stay proceedings after writ of error tvas issued 33 Has been refused to parties claiming lands in a territory in dispute between two states 33 Must be on notice 33 Short notice and long notice, when 33 Circumstances of each case to govern 33 CIRCUIT COURT. When may be issued by 31 Only on notice 33 When judgment has been g? anted by surprise 34 To stay perpetually a judgment obtained by fraud 34 To stay an official act under a state law, when such law is repugnant to the Constitution of the United States 34 Can circuit judge grant out of his circuit 34 In cases of patent rights 34 General causes for granting 34 DISTRICT COURTS. Judges of, have same power to grant as justices of supreme court 35, 200 In cases before circuit courts 35, 200 INDEX. 337 rAr;K. Injunctions (continued) : In such cases to continue only to next term of circuit court 35 But not to issue if party can apply to circuit court for. . . . 35 In cases of treasury warrants 35, 201 CIRCUIT COURT OF DISTRICT OF COLUMBIA. In cases of contested claim, for moneys awarded under Mexican commission 227 Issues of fact: When to be tried by a jury 88 Journeys account : CoTitinuancc by, abolished 61 Judges op federal courts : Term of office, during good behavior 90 Salary of, not decreased during tenn of office 90 Oath of office 90 Can not practice law 90 Territorial 07ies are not constitutional 5 Good behavior, propriety of having their term of office limited by 5 Permanency of office, necessity of 5 supreme court. Judges of, number of, 95 Precedence of 95 List of, see Ai)pendix. CIRCUIT COURT. Judges of 135 Have no separate commissions I35 See also title Courts, Circuit. DISTRICT COURTS. Judges of 185 See also titles Courts, District of Columbia, and Terri- torial. 22 338 INDEX. Paok. Judgment: To be according to equity on default or demurrer 45 Amount of, on a default uncertain, to be assessed by a jury 45 To be accordinsf to the riffht of the case 64-65 Of nonsuit, when may he against plaintiff 19, 41 Of nonsuit, on failure to pi'oduce papers 36 On reversal 113, 179 On appeal and writ of error, in Circuit Court 179 Judgment of default : See title Default. Judgment of nonsuit : See title Nonsuit. Judicial power: Where vested 3 Extent of 6 General decision respecting 11 Does not extend to suits against a state by citizens of other states 20 Jurisdiction of federal courts : Is limited 3 Depends of the Constitution and the laws 3 When hascd on the character of cause 6 When hascd on the cJiaracter of parties 7 Determined hy p)arties to the record, and not those in interest 21 Is limited in suits against a state 20 Of supreme court defined by the Constitution 12, 14 Inferior courts defined hy Congress 4 Can not he conferred, on supreme court hy consent 98 Hut may on circuit courts 141 Ohjection to, viaived hy appearance 143 See also titles Courts and Admiralty. INDEX. 3 39 Pack. Jury : To assess judgment on default when amount uncertain .... 45 When may he dtscJiargcd, without consent of priscmer . . 1(3, 17 Facts found by, can not be re-examined, except by com- mon law 18 Jury trial : When in cases in the federal courts 88 Secured in criminal cases 17 But not in impeachments 15 Accused entitled to 17 Where to be had 15, 17 In all cases at law, where over twenty dollars is at issue. . 18 In all cases except in equity and admiralty 18 Plaintiff can not be nonsuited except he consents 19, 41 When there is a plain remedy at law 88 In cases of seizures on land 89 But nut of seizures on water 89 Nor on information under act 1794 89 Has been hut one in the supreme court 88 What is a bar to a second one, and what not 17 Separate, v^hen allowed 14 Laws of statk : See title State laws. Lktters rogatory: Isstie to a foreign government when a commission not permit- ted to be executed 55 Form of. 56 Sufficient if all the interrogatories are substantially answered 56 Mandamus : Uy what authority issued 25 340 INDEX. Pagb. Mandamus (continued) : SUPREME COURT. May issue in cases warranted by the usages and principles of law 101 To inferior courts 26, 101 And to persons holding office 26, 102 But power to issue to jyersons holding office is unconstitu- tional 26, 101 Such power only resides in circuit court of the District of Columbia 26, 220 Does not lie to control discretion of an inferior court. . . 25, 101 Nor to correct an erroneous judgment 25 Nor to compel the circuit court to adopt particular proceed- ings 75 Nor to a district judge to compel the exercise of a discretion- ary power 101 Liies to compel the execution of a sentence 102 And the signing of a hill of exceptions 102 In case of removal of an attorney of an inferior court 102 To stay proceedings in a court hclow tvhen the United States is a party 102 CIRCUIT COURT. Confined to cases necessary for exercise of its jurisdiction . . . 26 Is not issued after the practice of the Icing's bench 26 Lies to a collector to issue a clearance 26 To a state court to transfer a cause 26 To a district court to compel a judgment 27 But not to expunge amendments 27 DISTRICT COURT. Covfined to cases necessary for exercise of its jurisdiction. . . 21 Matter in dispute : When not necessary to be stated in the pleading may be proved 104 Does not apply to criminal actions 105 INDEX. 341 Paoi. Matter in dispute (continued) : Nor to cases brought from state courts arising under the Const, laws and treaties of the United States 105 Must he shown afjirmatively 105 Must he sufficient in each suit 105 Can not he aggregated from many 105 SUPREME COURT. Is measured as the case stands in such court, and not as case was in the court belotv 104 Is the measure of writ of en-or or appeal 106 But not in revenue cases 108 CIRCUIT COURT. Is the amount laid in the declaration 140 Whether suit is original or hrought from a district court. . 140 Ne exeat : May lie granted l)y puprcme or circuit court 31 Or by a judge thereof, when court could grant 31 But not until suit is commenced 33 Nor except on proof defendant is soon to leave country ... 34 Not without a jjositive affidavit of a debt due 31 Can not be granted by a district court 31 New trials : May be granted where there has been a trial by jury 39 Granted according to the principles of the common law . . 40 •' where iiTong instructioiis Jiave been given to a jury 39 " where jnopcr evidence is rejected 39 " in cases of surprise of new evidence 40 Docs not suspend entering judgment 39 Execution will be stayed on 39 Not granted after a writ (f error, except for error apparent on the record, or for evidence discovered since the decree. . 39 Nor on account of cumulative evidence 40 In a'iminal as well as in civil cases 40 342 INDEX. Paob. New trials (continued): But not in a capital case after verdict 40 May he where jury have been discharged icithout verdict. . . 40 ]^ot against strong circumstances of equity 40 Nor except injustice has been done 40 Or justice requires it 40 When counts do not support the verdict 41 Not when hill of exceptions have been taken 41 Unless they are waived 41 Question on granting is, are the judges satisfied with the verdict 41 General cases in respect to 41 On petition for, circuit court may stay execution 160 Granted, execution is permanently stayed 150 " judgment is void 150 Nonsuit : Judgment of, can not he ordered against plaintiff without his consent 19> 41 Judgment of, on failure to produce papers 36 On what notice in such cases 37 Notaries public: May administer oaths 41 Oaths: May be administered by courts 41 " " commissioners 41, 154 May he administered by notaries public 41 Offences: See title Crimes. Courts may commit for 19 Papers : Production of - 35 INDEX. 343 VxaB Pai'krs (coiUinued) : Necessary ones, in the possession of parlies to a suit, may be demanded 35 On neglect to produce, judgment of nonsuit or of default will be ordered 36 Demandable in actions at law or in equity 36 Substitute Jor a bill of discovery 35 Suggestion of possession enough to require productiott 36 Possession of denied, it must be proved to derive advantage from non-production 36 Mere notice to produce not sufficient to require production of a paper defeating title of the possessor 36 Effect of non-production 36 Denial of possession may be shovm false 36 ^ Notice must specify that judgment will be ashed, if it is in- tended to tahc it 37 For judgment of non-suit, order must be obtained 37 What sufficient notice 37 Production can not be called for before trial commences 37 Afft. of party interested sufficient to obtain order to produce 37 Production not ordered in a proceeding in rein 37 Nor when papers will subject the party to a forfeiture 37 Paruon : Must he pleaded 14 Considered as a public law 14 Part IKS : Death of, executors and administrators may be cited 60 When all are not in district, courts may proceed 84 Such parties not bound by decrees 84 Non-joinder of such, no reason of abatement 85 Such parties may appear voluntarily 85 Law respecting such, does not affect general jurisdiction — . 84 Only rcyncdies former difficulties 84 May appear by attorney, or counsel, or in person 71 Multiplying proceedings liable to costs 71 344 INDEX. Page. Patents : Cases respecting, cognizable by circuit courts 156 SucJi jurisdiction is exclusive 156 Extends to all cases 156 May be carried before supreme court, as other cases 117 And in other cases deemed reasonable 118 Meaning of word " reasonable " 118 W7wle case goes up in *' reasonable " cases 118 14 and 15 sec. of act 1836 apply to patents obtained before tJieir passage 117 Peace : Federal courts may hold to 82 Penalties : b Pecuniary, in what courts suits may be instituted for 85 Remission of, see title Fines. Perishable property: Judge may deliver to claimants or direct to be sold, in vacation 83 Notice on such proceeding 83 Phrases and words, meaning of: " Admiralty" 194 " Agreeable to principles and usages of law" 25 "Appear' Ill, 176 " Cases " 9 " Cases in law " 18 " Civil causes of admiralty and maritime jurisdiction " — - 89 " Common law remedy " 195 " Controversies " 9 " Courts of law and equity " 194 •• Good behavior " 5 INDEX. 345 PiiKAsKs AND WORDS (continued) : " Inferior courts " 4 " Jeopardy " 16 " Suits at common law " 18 " Usages and principles of law " 194 " Writ of error " Ill Pillory : Punishment hy, abolished 189 Piracy : Cases respecting, cognizable by the circuit and district courts 158, 206 State courts also have jurisdiction 159 Term defined 159 Congress may define what is 158 When robbery is, and when not 158 Co7n?non laic may also be referred to for definition 158 Not the same as murder 158 Prize: District courts have exclusive jurisdiction of 201, 203 Act 1812, is it in force ? query 201 Vested exchisively in district courts 202 Restitution may be ordered 202 Sentences of continetUal courts may be enforced 202 /Zizrc no jurisdiction of capture by a common cruiser (fa belligerent power 202 When over captures by foreign vessels 203 Post-office : Cases respectincj, rn^iiizablc in the circuit and district and territorial courts 170, 210, 226 Character of right (f jwstmaster-gcneral to sue 170 Negligence of an assistant can not be shoicn on an issue of negligence of a postmaster 171 Postmaster, ivhcn liable for negligence 171 346 INDEX. Pagb. Post-office (continued) : Neglect, of a postmaster-general to sue for a penalty does not discharge postmaster and his sureties 171 Nor an order to retain money I'^'l Laches of officer no waiver of claim of government 171 Sureties, tchcn released 1 ' 1 Jurisdiction of circuit courts on bonds of deputy postmasters 172 Cases generally referred to 171 Process mesne : Form of, at law, same as in respective states 72 " in admiralty, to be according to the principles of admiralty 77 Form of, in equity, to be according to the principles of equity 77 Form of, may be altered 78 Final 79 Same as in each state 79 May be altered 79 How tested, and in whose name 80 Of supreme court to be in the name of the President 72 To be sealed 80 Not governed by state laws when such are adopted 68 Proctors : When liable to costs 71 Prohibition : Supreme court may issue to district courts in admiralty cases 101 In case of libel when court had no jurisdiction 101 Issues according to the principles of the common law 101 Punishments : Unusual ones not to be inflicted 19 Public ministers: Suits affecting, where tried 6, 97 and notes INDEX. 347 Paoe. Recognizancks : Of witnesses, against accused when taken arty ajqx'ars at a succeeding term 86 Penalty of when may be remitted 85 Remission of a common law right 85 And independent of statute 85 Object of a recognizance 85 Rehearing : Kests in the discretion of the court 40 Not allowed at a subsequent term 40 Removal of causes from state courts: See title Courts, circuit, appellatk jurisdiction. Replevin : Practice in 77 Review : Not allowed after writ of error brought 39 Rules : Federal courts may make their own 44 Can not be repugnant to law 44 Courts have power to make unless forbidden by law 44 Courts can mould their rules so as not to work injustice. ... 44 Sale : See title Perishable property. 348 INDEX. Paob. Scire facias : Federal courts may issue ^5 On death of parties 61 Seal : Of suprcvie court, design of. 72 Circuit court, design of 72 Of court, to be affixed to process 80 Slave trade: Acts respecting 160-162 Cases respecting, cognizable by the circuit and district courts 160, 206 Vessel forfeited, as soon as preparations are completed, and before sailing 160 Object of the act of 1794 160 Guilty intention works forfeiture 160 'Building a vessel for slave trade, no forfeiture for 160 Slaves can not be carried as freight 160 Under act of 1800 vessel seized, though no slaves actually taken on board, is forfeited 160 Act 1794 applies to all concerned in the slave trade 161 Act 1 803 does not apply to colored seamen 161 Under act 1818, vessel must sail out of port 161 " form of indictment 161 Not piracy by law of nations 161 Cases generally referred to 161 Forfeitures, under such acts, are admiralty cases 195 States : Suits where a state is a party, where tried 9 Suits where citizens of states are parties, where tried. ... 10 Suits respecting boundaries between, where tried 10 Kind rf interest necessary to make one a party 99 No mode of proceeding declared when state is a party 98 As to mode adopted in practice 99 INDEX. 349 Paob. States (continued) : Can not be sued by citizens of other or foreign states . 20-21 But exemption only applies to cases when states are parties to the record 21 Indian tribes are not foreign ones 10, 98 District of Columbia is not a 10 A corporation is a citizen of a 9, 10 State laws : Are taken notice of by federal courts 4 HoiD authenticated 4 Adopted as rules of decision, in trials of common law. ... 68 Must not be repugnant to Constitution 76 But do not apply to process or practice 68, 76 Nor corf er jurisdiction 69 Only help ascertain the right and assist in the remedy 69 Are only rules of decision 69, 76 Govern as to evidence 69 Adopted only as to local rights and title 69 Not as to general contracts 70 As to written instruments 70 As to commercial laio 70 Acts of limitation adopted 70 As rules of property 70 Adopted in cases depending on such laws 70 How far obligatory 76 Effect of not adopting 76 Include lares regarding hail and imprisonment 75 Include construction of state courts 70 Include laws respecting rights, duties and conduct of officers 75 Include laics respecting service of process 75 Cases generally referred to 71 Statutes cited and referred to : 1789, ch. 20, § 1. Supreme court, precedence of judges 95 " § 3. District courts, and terras of 185 350 INDEX. Faoe. Statutes cited and referrkd to (continued): 1789, ch. 20, § 4. Circuit courts, by whom held 135 " § 6. District judge, death of 186 " § 7. Clerks, appointment of 91 § 8. Judges, oath of 90 " § 9. District courts, jurisdiction of 189, 196 § 9. Costs 256, 260 " § 10. Supreme court, appellate jurisdiction from Kentucky 128 " §§ 9, 12, 13. Issues of fact, how tried 88 § 11. Costs 256, 260 " § 11. Circuit courts, original and exclusive and con- current and appellate jurisdiction of 139, 173 " §12. Circuit courts jurisdiction, causes removed from state courts 145, 149 '• § 13. Supreme court, mandamus 101 «' § 13. Supreme court, original and exclusive jurisdic- tion 98 " § 13. Supreme court, appellate jurisdiction 104 " § 13. Supreme court, prohibition 101 " § 14. Issuing w^rits 25-27 " § 15. Production of papers 35 " § 16. Equity suits, when sustained 38 *' § 17. Contempts, punishment of 42 § 17. Oaths 41 " § 17. New trials 39 " § 17. Rules, power to make 44 " § 18. Circuit courts, staying execution 150 " § 19. Circuit courts, statement of case 151 '« § 20. Circuit courts, when to allow costs 151 § 20. Costs 256, 260 " § 21. Circuit court, appellate jurisdiction 176 § 21. Costs 256 " § 22. Supreme court, appellate jurisdiction by writ of error 104 " § 22. Costs 256, 260 " §23. Writ of error, and when a supersedeas. . 109, 174 I INDEX. 351 Pass. Statutes cited and referred to (continued) : 1789, ch. 20, § 23. Costs 256, 260 " § 24. Judji^mcnt on reversiil 113, 179 " § 25. Supreme court, appellate jurisdiction from state courts 120-125 •' § 26. Judgment, when according to equity 45 " § 30. Depositions de bene esse 45-52 " § 31. Executors, appearance of 60-63 § 32. Amendments 62-65 § 33. Arrest and bail 65-67 " § 34. Slate laws, adoption of 68-71 •' § 35. Causes, management of 71 § 35. Costs 256, 260 ch. 21, § 2. Costs 257, 275 1790, ch. 13, Costs 257 1791, ch. 8, Costs 257 " 22, Costs 257 1792, ch. 36, § 1. Process, test and seal of 80 § 2. Process, form of 72-78 § 3. Costs '. 257 § 4. Costs 258, 260, 261 § 5. Costs 258, 260, 261 § 8. Costs 257 1793, ch. 20, Costs 258, 260 " ch. 22, § 1. Circuit courts, by whom held 135 " § 3. Circuit courts, criminal terms of 137 " § 4. Bail, by whom taken 67 " § 5. Ne exeat and injunction 31-35 " § 7. Power to make rules 44 1794, ch. 3. Security on Wrii of Error 110, 176 " 11, § 1. Slave trade 160, 206 " 64. § 1. Appointment of commissioners to qualify ap- praisers 196 1795, ch. 28. Costs 258 1796, ch. 11. Costs 258 ch. 48, § 2. Costs 258 1797, ch. 13. § 1. Remission of fines and penalties 197-201 352 INDEX. Paob. Statutes cited and rkferred to (continued) : 1798, ch. 66, § 2. Alien enemies, arrest of 80 ch. 83. To hold to peace 82 1799, ch. 12, §§ 6, 7. District courts, adjournment of 185 " § 7. Supreme court, adjournment of 96 " § 7. Circuit courts, adjournments of 138 ch. 19, § Costs 258, 259, 260, 262, 263 ch. 22, § 71. Costs 259, 261 " §80. Assigned debentures, jurisd'n of suits on. 152, 200 1800, ch. 51, §§ 1, 5. Slave trade 162, 206 1801, ch. 15, § 1. District of Columbia, laws adopted in 218 " § 3. Circuit court District Columbia, by whom held, and general powers 219, 220 " § 3. Circuit court District Columbia, criminal juris- diction 220 " §6. Jurisdiction circuit court, District of Columbia. . 221 " § 8. Supreme court, appellate jurisdiction from cir- cuit court of 125 " § 10. Salary chief justice circuit court. District Colum- bia 219 " §11. Jurisdiction justices' courts, District of Columbia 241 " § 12. Appellate jurisdiction circuit court, District of Columbia, juris, reg. and orp. court 229, 238 " § 15. Teste of writs, &c., circuit court, District Co- lumbia 219 ch. 24, §§ 1,6. Jurisdiction circuit coixrt, Dist. Columbia 221, 222 " § 4. " levy courts, " 240 1802, ch. 31, § 1. Supreme court, powers to make orders, &c 96 " § 4. Circuit court, by whom held 135 " § 5. Circuit court judge, on appeal, a writ of error. . 179 " § 6. Supreme court, appellate jurisdiction on division of opinion 114-117 " § 24. Jurisdiction district court, District of Columbia 230 " § 25. Depositions in equity 52 ch. 52, §§ 1, 3, 5, 9. Circuit court, Dist. Columbia 219, 222, 223 1803, ch. 10, § 1. Slave trade 162, 206 ch, 31, Jurisdiction circuit court District of Columbia. . 224 INDEX. 353 Paob. Statutes cited and referred to (continued) : 1803, ch. 40, §2. Supreme court, jurisdiction by ujqjcal ll(t eh. 40. Circuit court, appellate jurisdiction 178 1805, ch. 38, Supreme court, appellate jurisd'n from territories 127 180G, ch. 3G, § 2. .Jurisdiction circuit court. District of Columbia 224 1807, ch. 13, Injunctions 35, 200 ch. 19, Costs 259, 261 ch. 22, § 9. Slave trade 1G2, 206 1809, ch. 27, § 1. Circuit courts' jurisdtion, inability of district judge 152—154 ISll, ch. 40, Salary justice circuit court, District of Columbia 219 1812, ch. 5, Judges not to practice law 90 ch. 25, Oaths 41 (n) " Deposition in perpctuara rei memoriam, 53 " § 1. Commissioners, how appointed 154 ch. 106, § 2. Jurisdiction circuit court. District of Columbia. . 225 ch. 107, § 11. Orphans' court, " " 239,240 ch. 107, § 6. Prize cases, jurisdiction over 201-203 ch. 117, § 7. Jurisdiction circuit court. District of Columbia. . 223 " Levy courts, " " . . 241 1813, ch. 14, § 3. Attorneys, liable for costs 71, 259, 261, 264 1814, ch. 79, Costs 259 1815, ch. 31, Costs 260, 261 ch. 101, §2. Circuit court, appellate jurisdiction 179 " § 4. Jurisdiction, when United States sue 155, 204 1816, ch. 39, Supreme court, appellate jurisdiction from cir- cuit court, District of Columbia 126, 127 " Supreme court, appeal from circuit court, Dis- trict Columbia, when a supersedeas, 127 1817, ch. 30, Commissioners, powers of 154 1818, ch. 88, § 7. Captures, jurisdiction in cases of 204 ch. 91, §§ 2, 4. Slave trade 162, 206 ch. 94, Salary judges circuit court, District of Columbia 219 1819, ch. 19, Jurisdisction copy right cases 156 " Supreme court, appellate jurisdiction copyright cases 117 ch. 27, Supreme court, salaries 96 23 54 INDEX. Paob. Statutes cited and referred to (continued) : 1819, ch. 77, § 5. Piracy, definition and punishment of 158 1820, ch, 107, §§ 3, 4, G. Circuit court, appelhite jurisdiction. . . . 180 ch. 107, §§ 4, 5. Distress warrants, district court jurisdic'n 204-6 " § 6. Injunctions 35 ch. 113, §2. Piracy, what is, and slave trade... 159, 162, 206 1821, ch. 51, Jurisdiction circuit court over causes in a dis- trict court 163 1822, ch. 96, § 9. Supreme court, appellate jurisdiction from cir- cuit court. District Columbia 127 1823, ch. 24, §6. .Turisdict'n circuit court, Dist. of Columbia 222, 228 " Jurisdiction justices* courts of Dist. Columbia 24!. ch. 72, Piracy, district courts may try 159, 206 1825, ch. 25, Circuit court, District of Columbia, 219 1827, ch. 4, Depositions by commission 53-59 1828, ch. 68, §§ 1, 3, 4. Process, form of 78, 79 1829, ch. 12, §§ 1, 2. Supreme court, adjournment of 96 ch. 162, § 2. Jurisdiction register's and orphans' court. Dis- trict of Columbia 238 1830, ch. 163, § 1. Jurisdiction of cases of obstructing government surveyors 164, 206 1831, ch. 28, Supreme court, appellate jurisdiction from dis- trict court of N. Alabama 120 ch. 79, § 1. Contempts, punishment of 43 1832, ch. 06, Vessels, sale of, &c 83 1833, ch. 57, § 1. Suits under revenue laws 164 " § 3. Suits under revenue law, removal of from State courts 165-167 " § 7. Habeas corpus 30 1834, ch. 161, §§ 25, 27. Suits under Indian acts 167, 207, 246 1836, ch. 357, § 17. Supreme court, appellate jurisdiction, patent cases 118 ch. 357, § 17. Jurisdiction patent cases 157 1837, ch. 34, § 1. Supreme court, organization of 95 " § 2. Supreme court, appellate jurisdiction from dis- trict court of N. Alabama 120 INDEX. 355 Pao«. OTATUTKS CITED AND REFERRED TO (contillUetl) : 1838, cb. 12, § 2. Supreme court, appellate jurisdiction from dis- trict court of N. Alabama 120 ch, 118, § 4. Supreme court, appellate jurisdiction from dis- trict court of West Tennessee 120 ch. 191, §§11, 12. Suits under acts relative to steamboats. 1G8, 207 " 192, §§ 1, 2, 4, G, 7. Criminal court of District of Colum- bia, terms of, and jurisdiction of 235, 237 " §5. Appellate jurisdiction of circuit court District of Columbia 227 1839, ch. 3, § 9. Circuit courts, adjournment of 138 ch. 31, § 1, 7. Criminal court of District Columbia, by whom held 235, 236 " § 2. Criminal court of District Columbia, writs of, how tested 236 " §§ 3, 4, 8. Criminal court of District Columbia, pow- ers of 237, 238 " § 5. Appellate jurisdiction circuit court of District Columbia 227 ch 3G, §1. Jurisdiction of the federal courts; defendants out of district 84 " § 2. Clerks, appointment of 92 " § 3. Penalties, recovery of 85 " § G. Reco^izances, remission of 85-87 " § 8. Jurisdiction circuit court, when circuit judge is interested 169 ch. 88, § 11. Appellate jurisdiction district court District of Columbia 230-235 1840, ch. 43, § 1. Circuit courts, adjournment of, 137 " §2. Circuit courts, special sessions of, 137 " § 3. Supreme court, appellate jurisdiction in cases brought from district courts 109 1841, ch. 11, Appellate jurisdiction of circuit court of District of Columbia 229 Jurisdiction of justices' courts 241 ch. 35, Costs 2G0, 2G1, 263 1842, ch. 29, Costs 2G0, 2G1, 266 356 INDEX. Page. Statutes cited and referred to (continued) : 1842, ch. 119, Process, form of 79, 80 ch. 123, Supreme court, appellate jurisdiction from dis- trict court of N. Alabama 120 ■ch, IBS, § 1. Commissioners, powers of. 155 " § 2. Recognizances in criminal cases 87 " § 3. District courts, criminal jurisdiction 207 § 7. Costs 260, 261, 271 ch, 263, § 5. Jurisdiction, patent cases 157 ch. 257, Habeas corpus, McLeod act 30 " Supreme court, appellate jurisdiction; habeas corpus (McLeod act) 119 " Circuit court, appellate jurisdiction 181 1843, ch. 87, Jurisdiction circuit court. District of Columbia 225 1844, ch. 31, Suj)reme court, appellate jurisdiction, (revenue cases) 108 ch. 96, § 1. Supreme court, session of 95 "■ § 2. Circuit courts, by whom held 137 " 101, § 3. Jurisdiction circuit court, District of Columbia. 225 1845, ch, 20, Quasi admiralty jurisdiction over lakes, &c. 207-210 ch. 43, §20. Suits under post office acts 170, 210, 226, 246 ch. 75, § 3. Supreme court, aj^pellate jurisdiction district courts of Florida 120 1846, ch. 1, § 2. Supreme court, appellate jurisdiction district court of Texas 120 ch. 8, Jurisdiction register's and orphans' court. District of Columbia 239 ch. 89, § 4. Supreme court, appellate jurisdiction district court of Wisconsin 120 ch, 97, Jurisdiction register's and orphans' court, District of Columbia 239 ch, 104, Supreme court, appellate jurisdiction district court of M, Alabama 120 ch. 105, Enforcement of treaty stipulations 172, 210 1847, ch, 17, § 4. Supreme court, appellate jurisdiction from Flo- rida 128 ch. 55, Costs 260, 261, 271 INDEX. 357 Pacb. Statutes cited and referred to (coiilinued) : 1847, ch. 201, §1, Supreme court, appellate jurisdiction district courts of Florida 120 1848, cb. 12, § 1. Supreme court, appellutejurisdiction from Michi- gan 129 " § 2. Supreme court, appellate jurisdiction from terri- tories 129 cli. 151,§ 1. Appellate jurisdiction supreme court from dis- trict court N. Georgia 120 ch. IGG, Commissioners, fees of 59 ch. 177, § 9. Appellate jurisdiction supreme court from courts of Oregon 129 " § 9. Jurisdiction courts in Oregon 249, 250 1849, ch. 100, Commissioners, fees of 59-60 " Clerks' salaries 270 ch, 107, Jurisdiction circuit court, District of Columbia 226 cb. 121, § 9. Supreme court, appellate jurisdiction from Mi- nesota 130 " § 9. Jurisdiction courts in Mincsota 250 ch.l24,§6. Supreme court, appellate jurisdiction district court of Iowa 120 1850, cb. 30, §§ 1, 2, 4. District courts 186 ch. 49,§ 10. Supreme court, appellate jurisdiction from New Mexico 131 " § 10. Jurisdiction courts in New Mexico 251 cb. 51, § 9. Supreme court, appellate jurisdiction from Utah 130 " § 9. Jurisdiction courts in Utab 252 cb. 52, Oaths 41 (n"^ cb. 60, § 2. Commissioners in territories 155, 246 cb. 86, § 10. Supreme court, appellate jurisdiction district court of California 120 1851,cb. 24, § 3. Supreme court, appellate jurisdiction district court of \V. Arkansas 120 cb. 41, §§ 10, 11. Supreme court, appellate jurisdiction dis- trict court of California 120 " §§9, 10, 11, 13. District court jurisdiction California laud claims 210-213 358 INDEX. Paob. SUBPCENA : Federal courts may issue 26 To witnesses to be examined on commission 56 Subpoena duces tecum : To witnesses to be examined on commission 57 Lies to the President of the United States 5d Testimony: Oral, to be llie same in all the courts 45-46 De bene esse; see title Depositions. By commission ; see title Commission. See also title Dedimus potestatem. Treason : When hail may he taken in cases of. 19 Treaties : Cases under, in what courts tried 6 When an action of ejectment is not a case under 7 Stipulations of, how enforced 47 Trial : See title Jury trial. Separate, when allowed 14 What is a bar to a second, and what not 17 United states : A party to suit, where suit tried 8 Suit can not he brought against 9 Costs are not recoverable against 276 Vessel : Sale of, may be ordered in vacation 83 See title Peuisuadle pkoperty. INDEX. 3/59 Paob Whipping : Punishment by, abolished 1^0 Witness : One not to be against himself 1'^ Accused, to be confronted with those against him IB " may have compulsory process for IB Recognizances of, in criminal cases GG, 87 Examination of, de bene esse, see title Depositions ; see also title Commission. Words : Meaning of, see title Piiuases. Writs : Federal courts may issue such as are necessai-y for the ex- ercise of their jurisdiction 25 New ones may he devised 25 How tested ^0 To be scaled ^^ See also titles Habeas corpus. Scire facias, Mandamus, Execution, Ne exeat, Jurisdiction, &c. Writ of error : Proj)cr method to correct errors in cases of common law 111, 174 Only lie from final judgmtnts in cases at common laic 106 What are final decrees, and lohat not 107 May he amended in the return day 106 Must he tested of a previous term than one to ichich it is rc- turnahlc 106 Must be brought within five years 108 When a supersedeas * 109 Security on 108 Security on, when not a supersedeas IIC Security may he tahen after lapse of five years Ill 360 INDEX. Pagb. Writ of error (continued) : Will be dismissed wJicn no citation has been issued and served 112 Want of monition for, cured by appearance 112 Judgment on such as should have been given in the court below 113, 174 No reversal on, for error in ruling a plea of abatement, except on a plea to jurisdiction 108 Costs on, when judgment affirmed 110 From circuit to supreme court 104 In suits originally brought in circuit courts 104 In suits brought by appeal from district courts 105 Jn suits brought by appeal on tcrit of error from district courts 109 Where amount in dispute exceeds 2,000 dollars 106 In revenue cases, without regard to amount 108 Amount in dispute is learned from the case as it stands in the supreme court 104 What notice necessary to opposite party 108 Carries up the whole case, when verdict not large enough to mahe it a matter of right 106 See title Courts, Supreme court. Appellate jurisdic- tion, from State courts, from Circuit court op Dis- trict or Columbia, and from Territorial courts ; see also titles Patents, and Copy rights. From district to circuit court, in what cases 174 Citation on 174 What notice of to be given 175 Notice, how estimated 174 Time of allowance only applies to cases of writs of error in law, and not coram nobis 174 Proper mode to correct errors in common law cases 174 See Writ of error, General requisites. RULES AND ORDERS SUPREME COURT OF THE UNITED STATES, ASV OF THB UNITED STATES COURTS, EQUITY PROCEEDINGS, AND IN CASES OP ADMIRALTY AND MARITIME JURISDICTION, NOTES AND REFERENCES. 9 e DECISIONS APPLICABLE TO ALL THE FOLLOWING RULES. It is not necessary that any court, in establishing and changing its practice, should do so by writttm rules. A practice may be established by an miiform mode of pro- ceeding for a number of years, and this forms the law of the court. Duncan's Heirs vs. Ufiitcd States, 7 Peters, 435. FuUcrton vs. BanJc United States, 1 Pet. 604. Tlie general orders of a court are to be considered as laying down genei-ul rules, but not as being so imperative that they can, under no circumstances, be departed from. Burrell vs. Nicholson, 6 Simons, 212. Attorney General vs. Mayor, SfT., of Carlisle, 2 Simons, 421. Baring vs. Prinsepp, 1 Modd., 52G. Motions, of course, cannot be opposed, though the party moving had unnecessarily given notice thereof. Eylcs\&. Ward, Uosely, 255. 1 AW. Chan. Prac, 199. 1 Barb. Chan. Prac, 5G6. It is the duty of a party, on whose aiyplication an ord^r is made, to draw it up correctly. Landers vs. Allai. Si- mons, G20. A court may at any time reverse an intcrlocutoi-y decree. Osle vs. Lee, 2 Cra., 33. RULES SUPREME COURT OF THE UNITED STATES. FROM THE YEAR 1790 TO 1852. RULES SUPREME COURT. Rule I. ( February 3. 1790. ) Ordered, That John Tucker, Esq., of Boston, be RULE 1. the clerk of this court. t-^ifk's (irnce to be That he reside and keep his office at the seat at "pat of govenim't. of the national government, and that he do not (^i^j-u ,,,,1 practice either as an attorney or counsellor in this |^"J^'', ^^'.'^^ court while he shall continue to b. clerk of the J'^Si^'r same. The clerk of the supreme court is appointed by the court, and may be removed by the same body {Ex parte Hennen, 13 Pet. 225). Before entering upon the duties of his office, he takes an oath or affirmation to truly and faithfully enter and record all the orders, decrees, judgments, and proceedings of the court, and that he will faithfully and impartially discharge the duties of his office. He also gives bond with sufficient sureties (to be approved by the court), to the United States, in the sum of two thousand dollars, for the performance of his duties. Act I'SO, ch. 20, § 7. His fees are ten dollars a day, J68 RULES OF THE FEDERAL COURTS. RULE I. for his attendance in court ; and for his other services in dis- charging the duties of his office, double the fees of the clerk of the supreme court of that state in which the supreme court of the United States shall be holden (i. e. Maryland). Act 1792, ch. 36, § 3 ; and 1799, ch. 19, § 3 (1 Stat, at Large, 277, 625). For list of clerks, see Appendix. Rule IL ( February 5, 1790 ) It shall be requisite (until further ordered) to the Qualifica- RnLE2. sellors. tions oT admission of attorneys or counsellors to practice a?d"ioim. ill tlj^is court, that they shall have been such for three years past in the supreme courts of the state to which they respectively belong, and that their private and professional character shall appear to be fair. That a counsellor, practicing in the highest courts of one of the states in which he resides, had been struck off the roll of counsellors of the district court of the United States in that state, by the order of the judge of that court, for a contempt, does not authorise the supreme court to refuse his admission as a counsellor of the supreme court. Ex parte Tillinghast, 4 Pet. 108. Rule III. ( February 5, 1790. ) RULES. Counsellors shall not practice as attorneys, nor Counsel- attomcys as counsellors, in this court. lors not to act as ;it- tornoys: By Rule 14, counsellors *can be admitted as attorneys, and vice versa. upon taking the usual oath. SUPREME COURT. 369 Rule IV. ( Felrvary .0, 1790. ) [ReschiJed.'] Counsellors and attorneys shall rule 4 respectively take the following oath, viz : *' I, oaih of at- torueys and cou sellors. solemnly swear that I will demean myself (as an and coua- attorney or counsellor of the court) uprightly, and according to law; and that I will support the Constitution of the United States." See Rule 6, by which a new oath is substituted. Rule V. ( February 5, 1790. ) All process of this court shall be in the name roles. of the President of the United States, (unless and Process to until it shall otherwise be provided by law.) JiameU ^ the Presi- deut. Rule VI. ( February!, 1791. ) Counsellors and attorneys admitted to practice rules. in this court, shall take either an oath, or in pro- oathTfat- per cases, an affirmation, of the tenor prescribed auT^coan. by the rule of this court on that subject, made suil"",ut'd Fcbruarv term, 1790, viz.: "I, do "'pii'^eof ' ' ' oath pre- solemnly swear, (or affirm, as the case may be,) g^jg''/ ^^ that I will demean myself as an attorney or counsellor of this court, uprightly, and according to law ; and that I will support the constitution of the United States." 24 ill EnglaVl to furnish outlines of practice. 370 RULES OF THE FEDERAL COURTS. Rule VIL ( August 8, 1791. ) RULE 7. The chief justice, in answer to the motion of PraJtiLeof ^hc attomey-gcneral, made yesterday, informs of kiggg from the counsel on each side of a cause. Such statement must be a printed brief or abstract of the cause, containing the substance of all the material pleadings, facts, and documents on which the parties rely, and the points of law and facts intended to be presented at the argument (Rule 29) ; together with the points intended to be made, and the authorities intended to be cited in support of them, arranged under the respective points ; and no other book or case can be referred to in the argument (Rule 53). SUPREME COURT. 371 Twelve copies of the same must be filed with the clerk, three niir.E a, days before the case is called for argument (Rule 57) ; and if one of the parties omit to file such statement, he can not be heard; and the case will be heard ex 'parte, upon the argument of the party by wliom such a statement has been filed (Rule 53). Unless these statements are furnished, the cause \\\\\ be dis- missed. Peyton vs. Brooke, 3 Cra. 92; 1 Cond. 4G4. The Ca- tharine vs. United States, 7 Cra. 99 ; 2 Cond. 431. Rule IX. ( February 17, 1735. ) All evidence on motion for a discharge upon rule 9. bail nuibt be Avay of dq)06ition^ and not viva voce. Evitu^ce for dis- The supreme court has jurisdiction, under the constitu- jj^-j \^ ^g tion and laws of the United States, to bail a person committed ^y deposi- . tlOIl. for trial on a criminal charge by a district judge. United States vs. Hamilton, 3 Dal. 17. The circumstances of the case must be very strong, which will, at any time, induce a court to admit a person to bail, who stands charged with high treason. United States vs. Stewart, 2 Dal. 343. Upon a question incidental to and closely connected with the subject of bail, what would be tlic proper process to bring an accused person into court to answer an indictment, the chief justice held that a cajnas was the more pioper process, and more in conflirmity with the spirit of the o3d section of the judiciary act of 1789 ; and even though the laws of a state might declare a summons proper, in like cases : for the laws of the stales had not been adopted as rules of practice in criminal cases. U. S. vs. Burr, 2 Robertson's Report of that trial, 481. Dupon. on Juris, app. 227. This doctrine combatted by Du- ponceau, Dujw/i. on Juris. 37. 372 RULES OF THE FEDERAL COURTS. Rule X. ( August 12, 179G. ) RULE 10. When process at eommon law, or in equity, Process shall issue against a state, the same shall be served sfatlToii^ on the governor, or chief executive magistrate, be served, aud attomcy general of such state. Subpoena Proccss of subpoeua, issuing out of this court, ed CO Jays iu auy sult in equity, shall be served on the de- returuday fcudaut sixty days before the return day of the Defendant Said proccss ; and further, that if the defendant, pearlng, ou sucli scrvicc of the subpoena, shall not appear an?may" at tlic retum day contained therein, the complain- ^"parte. aut sliall be at liberty to proceed ex ixirte. Service on one of these officers ( chief magistrate and attorney general) not sufficient to entitle the court to proceed. State of Neic-Jerscy vs. State of New-York, 3 Pet, 461. But where the attorney general of the state of New- York, who was also a regular practitioner in this court, filed a de- murrer in behalf of the state of New- York to a bill filed by the state of New-Jersey, it was regarded an appearance. New- Jersey vs. Ncio- York, G Pet. 323. Service of subpoena, in a suit of one state against another, sixty days before return day is sufficient. New-Jersey vs. New- York, 5 Pet. 283, citing Grayson vs. State of Virginia, 3 Dal. 320 ; 1 Cond. 141. But the practice seems to be well settled, that in suits against a state, if the state shall refuse or neglect to appear, upon due service of a process, no coercive measures will be taken to compel appearance ; but the complainant or plaintiff will be allowed to proceed ex parte. Rhode-Island vs. Massachusetts, 12 Pet. 755, 761. SUrREME COURT.* 373 Rule XI. ( Ftlniary 13, 17.07. ) The clerk of the court to which any writ of uuleh. error shall be directed, may make return of the Ret,^to same, by transmitting a true copy of the record, Jrm'r'Vow and of all proceedings in the cause, under his '"'''^'^' hand and the seal of the court. By Rule 31, no cause can be heard until a complete record, containing in itself, without references aliunde, all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in this court, shall be filed. Citation is not necessarily a part of the record, Innerarrity vs. Byrne, 5 How. 295 ; but should accompany it Lloyd vs. Alexander, 1 Cra. 365 ; 1 Cond. 334. Rule XII. ( Avgvst 7. 1797. ) No record of the court shall be suffered by the rule 12. clerk to be taken out of his office, but by the Rec^sof consent of the court ; otherwise to be responsible to be taK for it. f';""! , , clerk s of- fice exc'pt By Rule 35, no original record can be taken from the su- ^^o^^- preme court room, or from the office of the clerk of the court, under any circumstances. Rule XIII. ( Augvst 15, 1800. ) IN THE CASE OF COURSE VS. STEAD's EXECUTORS. 4 Cm. 403, 2 Coiul. 151. The plaintiff in error shall be at liberty to show RI'le 13. to the satisfaction of this court, that the matter Sum or 374 RULES OF THE FEDERAL COURTS. RULE 13. value iu dispute how may be shown. RULE 14. Couiisel- Inrs may- be attor- neys. RULE lo. Defendant not ap- pearing, plaintiii' may pro- ceed ex parte. ill dispute exceeds the sum or value of two thou- sand dollars, exclusive of costs ; this to be made appear by affidavit, on days' notice to the opposite party, or their counsel in Georgia. Rule as to affidavits to be mutual. In an action for dower, and in equity, the value of the matter in controversy does not appear : its real value may be shown by affidavits Williamson vs. Kincaid, 4 Dal. 20 ; 1 Cond. 215. Course vs. Stead, 4 Dal. 22 ; 1 Cond. 217. And time will be given to procure such affidavits. Rush vs. Parker, 5 Cra. 287 ; 2 Cond. 259. See also to the same effect. United States vs. Brig Union, 4 Cra. 216 ; 2 Cond. 91. Ex parte Bradstreet, 7 Peters 634. Viva voce evidence will be permitted, to show the value of the amount in dispute. United States vs. Brig Union, 4 Cra. 216; 2 Cond. 91. Rule XIV. ( Augvst 12, 1801. ) Counsellors may be admitted as attorneys in this court, on taking the usual oath. See Rule 3. Rule XV. ( December 9, 1801. ) In every case where the defendant in error fails to appear, the plaintiff may proceed ex 'parte. By Rule 19, it is ordered that if the defendant refuse to plead to issue, and the cause be called for trial, the court may proceed to hear an argument on the part of the plaintiff, and may give a judgment according to the right of the cause. It is in general of no importance to the appellant, whether an appearance of the appellee is or is not entered on the record. SUPREME COURT. 375 16 If the apiJOJil has been regularly prosecuted, he is as much entitled to judgment in the one case as in the other. United States vs. Yates et al., 6 How. 605. Rule XVI. ( Fdniary Term, 1803. ) Where the writ of error issues within thirty rii-e days before the meeting of the court, the dcfen- ^v^u.u d..- . 1 . feliilaiit dant in error is at liberty to enter his appearance, ,„aygo to and proceed to trial ; otherwise, the cause must havJcalse , coutinued be continued. on writ of error. See Rules 19 and 43. Rule XVII. ( Fcbntary Term, 1803. ) In all cases where a writ of error shall delay rile 17. the proceedings on the judgment of the circuit Damages court, and shall appear to have been sued out nfe^rroT" merely for delay, damages shall be awarded, at for dcky. the rate oUenper centum 'per annum on the amount of the judgment. By Rule 20, such damages are to be calculated to the day of the affirmance of the judgment in this court. Interest may be allowed on the amount of the debt, as as- certained by the decree of the court below, but not upon the da- mages. Jennings vs. Brig Perseverance, 3 Dal. 336 ; 1 Cond. 154, Where a judgment or decree in an admiralty suit is affirmed on writ of error, there can be no allowance of damages but for delay. Cotton vs. WaUacc, 3 Dall. 302 ; 1 Cond. 134. The supreme court is authorised by the act of 1789, ch. 20, § 23, to award to the respondent just damages for his delay ; but "it is solely for the decision of the supreme court, whether 376 RULES OF THE FEDERAL COURTS. any damages or interest (as a part thereof) are to be allowed. The circuit court, in carrying into effect the decree of affirmance, can not enlarge the amount decreed. Boyce Ex'rs vs. Grundy, 9 Pet. 274. RULE IS. Damages where there is a real con- troversy. Rule XVIIL ( February Term, 1803. ) In such cases, where there exists a real contro- versy, the damages shall be only at the rate of six per centum per annum. In both cases the in- terest is to be computed as part of the damages. See previous rule, and cases cited. RULE 19. When cau- ses at trial for the term. When not. Where writ of er- ror is a superse- deas, when plaintiff to file copy of the record. Rule XIX. ( February Term, 1806. ) All causes, the records in which shall be deli- vered to the clerk on or before the sixth day of a term, shall be considered as for trial in the course of that term(«). Where the record shall be de- livered after the sixth day of the term, either party will be entitled to a continuance (/>). [In all cases where a writ of error shall be a super- sedeas to a judgment rendered in any circuit court of the United States, except that for the District of Columbia, at least thirty days previous to the commencement of any term of this court, it shall be the duty of the plaintiff in error to lodge a copy of the record with the clerk of this court within the first six days of the term ; and if SUPREME COURT. 377 he shall fail so to do, the defendant in error shall rule lo. he permitted afterwards to lodge a copy of the ^vh~th« record with the clerk, and the cause shall stand lll'ly ^£"1 for trial in like manner as if the record had come JS'/^'" up within the first six days; or he may, on pro- ducing a certificate from the clerk, stating the the wnt cause, and that a writ of error has been sued out, docketed which operates as a supersedeas to the judgment, ll'.bsLd. have the said writ of error docketed and dismis- j,„ij,,„.,„3 sed(c).] This rule shall apply to all judgments ;;; S;'„V- rendered by the court for the District of Colum- bia at any time prior to a session of this court. ti-d. \Ml.Ml In cases not put to issue at the August term, it "^[^^^'l"' shall be the duty of the plaintifi'in error, if errors ^^/^J^'^f^^i*. shall not have been assigned in the court below, 'g"^/^.^*/" to assign them in this court at the commence- •""". ment of the term, or so soon thereafter as the re- cord shall be filed with the clerk, and the cause placed on the docket; and if he shall fail so to do, and shall also fail to assign them when the cause shall be called for trial, ihe writ of error neft. refu- sing to may be dismissed at his costs; and if the defen- i-i'^^^Jpiff- J may l)e dant shall refuse to plead to issue, and the cause i"'a"i« shall be called for trial, the court may proceed to hear an argument on tlie part of the plaintiff, and rm: not to give judgment according to the right of the delSuut' cause((/) ; and that where there is no appearance n',r,'s the for the plaintift^in error, the defendant may have Zn^or^^ the plaintift' called, and dismiss the writ of error ; nreVit"'affi?- or may open the record, and pray for an affirm- Uieil. 378 RULES OF THE FEDERAL COURTS. RULE 19. ance. In such a case eos/-9 go of course. Monta- Costs of let vs. Murray, 3 Cranch 249, 1 Cond. 516. course. {a) By Rule 16, when the writ of error issues within thirty days before the meeting of the court, the defendant, at his option, may appear and proceed to trial, or the cause must be continued. {!>) By Rule 43, when the writ of error or appeal is docketed and the record filed, after the first six days of the term, the cause stands for argument at the term, or maybe continued, at the option of the defendant. (c) That portion of the rule included in brackets has been rendered more broad and comprehensive by Rules 30 and 43, and is made to extend to appeals as well as to writs of error ; and whether such writs of error act as a supersedeas, or not ; and whether such writs of error and appeals are from a judg- ment, or decree of a circuit court, or of any other court. {d) See Rule 15, and decision there cited, as to the right of the plaintiff to proceed ex parte. See Rules 30 and 43, Rule XX. ( Fdrnary Term, 1808. ) Where damages are given by the rule passed in Febrnaiy term, 18i)3(fl), the said damages shall be calculated to the day of the affirmance of the judgment in this court. RULE 20. Damages to what titnti cal culated. («) Rules 17 and 18, and cases there cited. RULE 21. Non-resi- deuts to Rule XXL ( February Term, 1807. ) All parties of this court, not being residents of the United States, shall give security for the costs SUPREME COURT. 379 rive Hecii- Cl.-rk riirt have attachir'at to collf ct accruing in this court, to be entered on the re- rule 21. cord. Upon the clerk of this court producing satis- "'f,/'"' factory evidence, by affidavit, or the acknowledg- ment of the parties or their sureties, of having served a copy of the bill of costs due by them '''^'^"sts respectively, in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties respectively, to compel payment of the said costs By Rule 37, tlic clerk is requireJ, in all cases, to take from the plaintiff a bond with competent security, to respond to costs, in the sum of two hundred dollars; or a deposit of that amount must be placed in bank, subject to his draft. See Rule 37, and cases there cited Rule XXII. ( February Term, ISIO. ) Upon the reversal of a judgment or decree of rjule 22. the circuit court, the party in whose favor the q„ ~,.r. reversal is shall recover his costs in the circuit ^^'«^"'*'' '•'^ go to party- court. >uccLO(l- In all cases of reversal, if this court direct the court below to enter judgment for the plaintiff in error, the court below will, of course, enter the judgment with the costs of that court. McKnight vs. Craig' s Adminisfraiors, 6 Cranch 1S3 ; 2 Cond. 345. This rule is supposed by Judge Coxkling to be hosed upon the dictum of the chief justice, in the case above quoted; and that the general language of the nde is not ^warranted by that case. Coyik. Trca., Ed. 1842, p. 462. See also third clause Rule 45. 380 RULES OF THE FEDERAL (50URTS. Rule XXIII. ( February Term, 1812. ) RULE 23. Only two counsel will be permitted to argue Only two for eacli party, plaintiff and defendant in a cause. counsel lo be heard iu a cause. Only two counsel will be heard on eacli side, whatever may be the number of points. Anon, 7 Cra. 1. This rule has been dispensed with in a cause of great public importance, where the sovereign rights of the United States and a state were involved, and the Government of the United States had directed the attorney general to appear for one of the parties. McCulloclivs. State of Maryland, 4 Whea. 316 ; 4 Cond. 470 (»). The court will, in its discretion, continue a cause on account of the death of counsel. Hunter vs. Fairfax's Devisee, 3 Dall. 306.. Counsel can not be heard, who represent parties not on the record, although they may think themselves interested ; as the only parties the court can know are those in the record, Har- rison vs. Nixon, 9 Pet. 483, 538. Rule XXIV. ( February Term, 1812. ) RULE 24. There having been two associate justices of the Aiiotoent court appointed since its last session, It is ordered, ofjustices, rpj^^^ ^j^^ followlug allotment be made of the chief justice and the associate justices of the said supreme court, among the circuits, agreeably to the act of congress in such case made and pro- vided; and that such allotment be entered on record, viz: For the first circuit — the Hon. Joseph Story. SUPREME COURT. 381 For the second circuit* — the Hon. Brockholst rule 24. Livingston. For the third circuit — the Hon. Bushrod Wash- ington. For the fourth circuit — the Hon. Gabriel Duval. For the fifth circuit — the Hon. John Marshall, C.J. For tlie sixth circuit — the Hon. William John- son. For the seventh circuit — the Hon. Thomas Todd. The last allotment of the chief justice and the associate jus- tices of the supreme court was made at the December term of the court for 1S17, and was as follows : For the first circuit, The Hon. Levi Woodbury. For the second circuit, The Hon. Samuel Nelson. For the third circuit. The Hon. Robert C. Grier. For the fourth circuit, The Hon. Roger B. Taney, C. J. For the fifth circuit, The Hon. John McKinley. For the sixth circuit, The Hon. James M. Wayne. For the seventh circuit, The Hon. John INIcLean. For the eighth circuit, The Hon, John Catron. For the ninth circuit. The Hon. Peter V. Daniel. On every appointment of a chief justice or associate justice, an allotment is made of the circuits among the justices, and is entered of record. If no such allotment be made by the jus- tices at the session next succeeding such appointment, and also after the appointment of any judge, and before any other allot- ment shall have been made, the President may make such al- lotment as he shall deem proper, which shall be binding until another allotment shall be made. Act 1802, ch. 31, § 5. The death of one of the justices, the Hon. Levi Woodbury, having occurred since the above allotment, and a new justice having been appointed, there will probably be made another 382 RULES OF THE FEDERAL COURTS. RULE 24. allotment at the terra of the supreme court for the winter of ~ 1851 - 52. For a list of the chief justices and of the associate justices of the supreme court, since its organization, see Appendix. * The Hon. Smith Thompson having been appointed associate justice of the supreme court, in the place of the Hon. Brock- HOLST Livingston, deceased, the President of the United States assigned to him the second circuit, by an instrument dated the day of A. D. one thousand eight hun- dred and twenty-three. Rule XXV. ( February Term, 1816. ) RULE 20. In all cases where further proof is ordered by luc^soi the court, the depositions which shall be taken shall be by a commission to be issued from this court, or from any circuit court of the United States. further proof, c]( positions to be by commis- 8i-act ■^ liled. ties intended to be cited in support of them, arranged under the respective points; and no other book or case be referred to in the argu- ment. If one of the parties omits to file such a state- statement '■ not hied, ment, he can not be heard, and the case will be cause may be heard heard ex parte upon the argument of the party ^xparteM^ by whom the statement is filed. same. This rule to take effect on the first day of De- cember term, 1849. See Rule 8, and cases there cited ; also Rule 29, and Rule 57. Rule LIV. ( December Term, 1819. ) [ Rescmded. ] When an appearance is not en- rule &4. tered on the record for either the plaintiff or Noa^ear- defendant, on or before the second day of the Jed aiice ente- at se- 406 RULES OF THE FEDERAL COURTS. RULE 54. term next succeeding that on which the case is condttrm, docketed, it shall b.^ dismissed at the costs of the case will i • A-rn bedismis- plamtitt. sed. See Rule 59, bv which above Rule is rescinded. Rule LV. ( December Term, 1849. ) RULE 55. When a case is called for argument at two Casecaii'd succcssive terms, and upon the call at the second ment^uvo term neither party is prepared to argue it, it shall Sher^" he dismissed at the costs of the plaintiff, unless pare^,wiu sufficieiit causc is shown for further postpone- he dismis- , . Bed. ment. Radford vs. Craig, 5 Cra. 289 ; 2 Cond. 260. Rule LVL ( December Term, 1849. ) RULE 56. Printed arguments, under the fortieth Rule, PrinlTd shall not hereafter be received, unless filed within tiXl^fikHi the first ten days of the term. within ten days of See Rule 40. ^*"^"^' Rule 52 rescinded by effect of this rule. Rule LVIL ( December Term, 1849. ) RULE 57. Twelve printed copies of the abstract, points, Twelve and authorities required by the fifty-third Rule, abJtrac^to luust bc filcd with the clerk three days before the and Vow case is called for argument; nine of these copies jstn u- ^^^ ^j^^ court, one for the reporter, one for the SUPREME COURT. 407 opposing counsel, and the remaining one to be rule 67. retained by the clerk. This order to take effect on the first day of May next. See Rules 8, and cases there cited ; 29 and 53. See Rule 37, as to the printing of abstract. Rule LVIII. ( December Term, 1850. ) When a case is taken up for trial, upon the rule m. regular call of the docket, and argued orally in can^ar- behalfofonly one of the parties, no printed argu- jy^'byTne ment will be received, unless it is filed before the Ee'^h^'ard" oral argument begins, and the court will proceed pri,uedar- to consider and decide the case upon the ex parte fh!!^nlhef argument. This rule to take effect after the pre- ^^'''^" sent term. See Rules 40 and 52. Rule LIX. C December Term, 185L ) When a case is reached in the regular call of rule 59. the docket, and no appearance is entered for ~ either party, the case shall be dismissed at the cost of the plaintiff, and the fifty- fourth Rule, adopted at December term, 1849, be, and the same is hereby rescinded. INDEX TO SUPREME COURT RULES Ruu. Abstract of cause : What to contain 8, (n) 29, 53 To be furnished before argument 8, (n) 29 When must be filed 8, (nj 57 Number of copies to be filed 8, (nJ 57 How disposed of by clerk 57 Effect of not filing 8, (nJ 53 By whom printed 37 (n) Adjournment : Day of, when announced 47 Within three days, no case will be taken up 47 Admiralty cases : New evidence in, how taken 27 Decisions respecting 27 (n) Objections to evidence in, to be taken below 33 Decisions respecting 33 (nJ Affidavits : Amount in dispute may be shown by 13 Decisions on this point 13 (nJ For attachment to collect costs 21 To move for a certiorari 32 410 INDEX. RULK. Affirmance : Costs on 45 Decisions respecting 45 (n) Plaintiff to be charged for one copy of record 37 Affirmation : Of counsellors and attorneys 6 Allotment : Of judges, 1812 24 1847 24 (n) Amendment ; Of records, power of court over 11 (n) Amount in dispute : May be shown by affidavit 13 Decisions concerning the same, 13 (n) Appeal : When to be docketed 43 Decisions respecting 43 (n) On what terms plaintiff may docket, after first six days of the term 43 Wlien plaintiff may not docket 43 Not docketed within thirty days after beginning of term, cause will be continued 43 How may be dismissed, representatives of a deceased party not coming in 28 When defendant may have dismissed 30, 43 Decisions respecting 43 (n) Appellant : In what cases to docket cause and file record 19, 30, 43 Within what time to do same 19, 30, 43 Decisions respecting above 43 (n) When may proceed ex parte 10, 15 INDEX. 411 RULB. Appellant (continued) : Decisions respecting same 15 (nj But two counsel can argue for 23 When may move for dismissal of a cause 28 Appearance by counsel : By the filing of written argument 44 Wlien cause will be dismissed for want of 54, 59 When to be made to subpoena 10 Argument : After what time, none will be heard 47 How many counsel may make, on each side 23 Length of, except on special leave 53 Not heard on Saturdays 50 Printed, will be received by court 40 " filing of, an appearance 44 " must be signed by attorney or counsel 61 " when must be filed 56 " when will not be received 58 Attachment : When will issue for costs 21 Attorneys : Who may be admitted as 2 Can not practice as counsellors 3 Oath or affirmation of, on admission 6 Or counsel must sign printed arguments 51 Attorney general : Of a state, when process served on 10 Appearance of, when an appearance of a state 10 (n) Service of subpoena on, when not sufficient 10 (n) Bail : Motion to discharge from, how evidence taken on 9 Supreme court may take, on a criminal charge 9 (nJ 412 INDEX. RULB. Bill of exceptions : Allowed by judges in courts below 38 Not to contain judges' charge in full 38 Matters of law only to be inserted 38 Decisions respecting 38 (n) Bond : For costs, to whom given, and penalty of 37 Without, clerk not required to docket cause 37 (n) Books : Of law library, who may take, and terms 39 " penalty for not returning 39 " j^i<^g6s may take as they wish 39 Of court library, where to be put 48 " judges can only take 48 Brief : Printed, to be furnished before argument 29 " when causes will not be received on 47 " what to contain 8, 29, 53 " at whose expense 37 (n) Causes : When regarded as for trial for a term 19 When argued at first term, at option of defendant 16, 43 When continued, at option of defendant 16, 43 Will not be heard without a printed brief 29 Will not be heard, except a complete record filed 31 On docket, when court commences to call 36 How many called each day 36 Go to bottom of calendar, if neither party ready 36 Decisions respecting above 36 (n) Not taken out of their order, except when 36 Will not be set down for a particular day 36 Called twice, goes over to next term 36 May be submitted on printed arguments 40 INDEX. 413 RVLS. Causes (continued) : Within what time appellant to docket 43 Decisions respecting same 43 (n) When appellant can not docket 43 When defendant may docket or have dismissed 43 When defendant may move to have dismissed 28, 43 Decisions respecting same 43 (nj When goes over to next term for delay in docketing 43 Will not be argued within three days of adjournment 47 When not received on printed briefs 47 When heard ex parte, in behalf of appellant 10, 15 When heard ex parte, on behalf of defendant 19 When heard ex parte, in behalf of either 53, 58 Certificate of clerk : To dismiss cause, what to contain . . 43 Decisions respecting 43 (n) Certiorari : In what cases awarded 32 Motions for, when and how made 32 When not granted, except on special cause 32 Decisions respecting _ 32 (n) Chancery : Practice of England, how far adopted 7 " may be altered as necessary 7 " decisions 7 (nJ Circuits : Allotment of judges for 24 Circuit courts : Judgments of, when writ of error to first term of this court 43 Judgment reversed, to whom goes costs 22 414 INDEX. Rdlb. Circuit courts (continued) : May issue commissions in cases of further proof 25 " to take evidence in admiralty cases 27 Judges, allotment of 24 " when may send up original papers 26 " what exceptions to allow 38 Citation : Not necessarily a part of the record 11 (n) Clerk : Appointment of John Tucker as 1 How appointed, and oath of, and bond required of 1 (n) Fees of, double those allowed in state courts 1 (n) Names of, since 1790 app. To keep his office at seat of government 1 Not to practice as counsel or attorney 1 Not to allow records to be taken, except with consent of court 12 Not to allow original records to be taken in any case .... 35 When responsible for records taken out of office 12 To take security from plaintiff for costs, in all cases 37 Not required to docket cause without security 37 (n) May have attachment to collect costs 21 To have printed for the court fifteen copies of record 37 To deliver one copy to each party 37 When to allow books to be taken from the library 39 To keep a record thereof; and may require their return. . 39 To preserve and record opinions of the court 41, 42 In cases of dismissal, to send mandate to court below. ... 45 To take charge of the books of the court 48 Not to permit any one, except the judges, to take them. . . 48 To distribute copies of the " printed abstract" 57 Clerk's certificate : To dismiss cause, what to contain 43 INDEX. 415 ROLB. Commissions : For farther proof, by whom issued 25 In admiralty cases, who may issue 27 In admiralty cases, terms and conditions of 27 Decisions respecting 25, 27 (n) Continuance of cause: When to next term 3G, 43 When at option of defendant 16, 43 When on death of counsel 23 (n) Costs : Security for, from plaintiff, in all cases 37 Security for, to be by bond, or a deposit 37 Decisions respecting 37 (n) Attachment for, on bill being served 21 To whom, in circuit court, upon reversal 22 Decisions on this point 22 (n) For record, when each party charged with 37 On dismissal, to defendant, unless otherwise agreed 45 " decisions respecting 45 (n) On affirmance, to defendant, unless otherwise ordered. ... 45 " decisions respecting 45 (n) On reversal, to plaintiff, unless otherwise ordered 45 " decisions respecting 45 (n) To be inserted, with taxed items in mandate 45 Not allowed for or against United States 45 Decisions respecting 45 (n) None on dismissal for want of jurisdiction 45 None on reversal for want of jurisdiction 45 Decisions respecting 45 (n) When cause dismissed for want of appearance 54 When cause has been called at two terms and dismissed . . 55 Decisions respecting 45 (n) Counsel : Who may be admitted as 2 Oath or aflirmalion of 6 416 INDEX. RaLB. Counsel (continued): May be admitted as attorneys 14 To furnish a brief to the court 8 But two to argue on each side 23 When this rule dispensed with 23 (n) May submit cause on printed arguments 40 Appearance of, by filing printed arguments 44 Or attorney must sign such arguments 51 Not to speak over two hours, without leave 53 Will not be heard, unless printed abstract be first filed. ... 53 Can not be heard for parties not on the record 23 (nj When cause will be continued on death of 23 (nJ Court : Clerk to keep his office at seat of government 1 Process of, to be in the name of the President 5 To be furnished with statement and points 8 To be furnished with abstract, before argument 29 May issue commissions for further proof 25 May issue commissions in admiralty cases 27 When original papers may be sent to 26 When may order original papers from court below. ... 26 (n) When commences to call the docket 36 How many cases will call each day 36 Will decide causes on printed arguments 40 Opinions of, to be filed and recorded by the clerk 41, 42 Opinions, originals to be delivered to the reporter 42 When will not receive cases on printed briefs 47 When will announce time of adjournment 47 When will cease to hear further arguments 47 Cross interrogatories : On commissions in admiralty cases 27 To be filed in twenty days after notice 27 INDEX. 417 RVLB. Damac.ks : Interest a part thereof 18 Rate of, when writ of error sued out for delay 17 Rate of, when there is a real controversy 17 To what time calculated, when given 20 Interest can not be allowed on 17 (n) Within discretion of the supreme court 17 (n) Nature of, in an admiralty suit 17 (n) Death of party : How representatives may come in 28 How, and decisions respecting same 2S (n) Death of counsel : When cause will be continued for 23 (n) Defendant : Non-appearance of, on service of subpoena, appellant may proceed ex parte 10, 15 When may appear and proceed to trial 16 When may have cause continued IG, 43 When may move for dismissal of cause 2S, 43 When may proceed ex parte 19 But two counsel can argue for 23 Decisions on last point 23 (n) Deposit for costs : When clerk may require 37 Decisions respecting 37 (n) Deposition : Evidence by, on motion to discharge from bail 9 In cases of further proof 2-5 Decisions concerning same 25, 27 (n) Diminution of record : Certiorari for, how awarded 32 Decisions respecting 32 (n) 27 418 INDEX. RULB. Dismissal : Of cause, when defendant entitled to 43 Decisions respecting 43 (n) Of cause, how effected 43 Of cause, representatives of deceased party not coming in 28 Of cause, when one record to be taxed against appellant. . 37 Of cause, when both parties to pay for same 37 Of cause, costs on to defendant 45 Of cause, decisions respecting 45 (n) Of cause, mandate to be sent to court below 45 Of cause, for want of appearance, and costs on 54 Of cause, after being twice called, and costs on 55 District of Columbia : Judgments in courts of, when may be heard, at first term of court, after rendition 19, 43 District courts : Judges of, what exceptions to allow 38 Docket : When court commences to call 36 How many causes of called each day 36 When causes to go to foot of 36 Causes put at foot of, can not be taken up 36 (n) When plaintiff to put causes on 43 A\l)en defendunt may put causes on 43 When plaintiff" may not put causes on 43 Equity causes : All objections to evidence in, to be made in court below 33 Decisions on above 33 (nj Evidence : On motion to discharge bail, how taken 9 New, in admiralty cases, how taken 27 Decisions respecting 27 (n) Objections to, not allowed, unless made below 33 Decisions respecting 33 (nJ INDEX. 419 ROLB. Ex PARTE : When appellant may thus proceed 10, 15 Decisions on this point 15 (n) \Vlicn defendant may thus proceed 19 Fridays : What motions preferred 50 Further proof : Taken by commission 25 Decisions as to 27 (n) 25 (n) Governor of a state : When service of process on 10 Hearing of cause : Not without a printed brief 29 Not unless a complete record filed 31 Will not be set down for a given day 36 When goes over to next term 36 May be by pi'inted arguments 40 Not within three days of adjournmenk 47 Ex parte on behalf of appellant .%. 10, 15 Ex parte on behalf of defendant 19 Interest : To be computed as part of damages 18 But can not be allowed on the damages 17 (n) Interrogatories : On commissions in admiralty cases 27 Judges : Allotment of, for the circuits, 1812 24 " for the circuits, 1847 24 (n) List of, since organization of supreme court ('''PP-) Of circuit court, may send uji original papers 26 Of courts below, what exceptions to allow 38 420 INDEX. RCLB. Judges (continued) : Charge not to be inserted in bill of exceptions 38 To have free use of books in law library 39 Alone to take books from court library 48 Judgments : Of circuit courts, when may be brought up to this court, first term after being rendered 43 Of courts in District of Columbia, when do 19, 43 Of circuit court reversed, to whom costs below 22 Transcrijjt of, for reporter 42 Damages on, how calculated 20 King's bench : Practice of, how far adopted 7 Practice of, may be altered 7 Law : Matters of, only to be inserted in bills of exceptions 38 Mandate : To be sent to court below, on dismissal 45 Decisions respecting 45 (n) What the nature cf, and why sent 45 Costs, with taxed items, to go with 45 Motions : To be reduced to writing and what to contain 46 To discharge on bail, evidence in 9 To substitute representatives of deceased party 28 For certiorari in case of diminution 32 To dismiss cause, 43 What ones entitled to a preference, and when 50 New evidence : In admiralty causes, how taken 27 Non-appearance : Of defendant, to subpoena, effect of 10 Of defendant, to writ of error, effect of 15 Generally, effect of 54 INDEX. 421 Rdlr. Notice : Of interrogatories on commissions in admiralty 27 To file cross interrogatories 27 To appear to subpcena 10 Oath : Of counsellors and attorneys 6 Office, clerk's : To be kept at seat of government 1 Objections to evidence : Must be taken in court below 33 Opinions of court : To be filed with the clerk -• 41 To be recorded, and when 42 Originals to be delivered to reporter 42 Oral tkstimony : When may be given in open court 27 Law respecting same 27 fnj Decisions respecting same ". 27 fnJ Orders : Defendant not appearing, to subpoena 10 To issue commission for further proof 25 To issue commission in admiralty and equity cases 27 To dismiss or reverse writ of error or appeal, if represen- tatives of deceased party do not appear 28 In such case, when, where, and how long to be printed. . . 28 For certiorari on diminution 32 Original papers : When may be sent from court below 26 When may be ordered from court below 26 ('nj When a part of the proceedings below 26 422 INDEX. Rule. Original records : Not be taken from clerk's office or court 35 Parties : May show amount in dispute by affidavit 13 To give secui'ity for costs 21 Attachments may issue against, for costs 21 To insert only matters of law in bills of exceptions 38 Not appearing at second term, cause dismissed 54 Death of, representatives may come in 28 I. aw and decisions respecting same 28 (n) Payment of costs : Attachment to compel 21 Plaintiff : May proceed ex-parte, if defendant not appears on service of subpcEna 10 May proceed ex parte, if defendant in error does not ap- pear 15 Decisions on this point 15 (n) When to file record and docket cause 43 Failing to file record, defendant may do so 43 But two counsel may argue for 23 May have record reversed, if representatives of deceased defendant do not come in 28 Liable to costs, on dismissal for want of appearance 54 Liable to costs, on dismissal for neglect to argue 55 Points : To be fiirnished the court 8 Practice of court : How far controlled by that of king's bench, and chancery of England 7 President : Process of court to be in his name 5 INDEX. 423 Re LB. PrINTKH AnSTRACT : Twelve copies to be filed with clerk '07 When to be filed, and how disposed of 57 Printed argumknts : Causes may be submitted on 40 Filing- of, an appearance 44 Must be siffned by attorney or counsel 51 When must be filed 56 When will not be received 58 Printkij briefs : After, when case will not be received on 47 Printed statement : Twelve copies to be filed, and what to contain 8, 53, 57 When filed, and how disposed of 8, 53, 57 Effect of not filing 8, 53, 58 Not furnished, cause will be dismissed — decisions 8 (n) Printing records : Expense, how borne 37 Process : To be in the name of the President 5 Afi^ainst a state, on whom to be served 10 To compel payment of costs 21 In nature of a procedendo to the court below 45 Procedendo : Process in nature of, when to issue 45 Records : When and how may be taken from clerk's office, 12 Original, not to be taken 35 Record : True copy of, to be sent on writ of error 11 Citation not necessarily a part of 11 (n) 424 INDEX. Rule. Record (continued) : Power of court over, to amend, and generally 11 (n) "When to be delivered, that cause may stand for trial in the course of the term 19 When so delivered, as that cause to be continued 19 Complete one must be filed, before argument 31 Certiorari in case of diminution of 32 Fifteen copies to be printed for court 37 Expense of printing same 37 One copy to be given each party 37 When each party to pay half fees for a copy 37 When plaintiff may file 43 AVhen defendant may file 43 When plaintiff" may not file 43 When filed so that cause may be continued 43 Reporter : To use original opinions of the court 42 How long may retain the same 41 To have transcript of judgment or decree 42 Salary of, &c i2 (n) Representatives : Of a deceased party, how may come in 28 " how may be brought in 28 " effect of not coming in 28 " law and decisions respecting 28 (n) Return to writ of error : How made 10 Reversal : Of cause, if representatives do not come in 28 Of judgment or decree, costs on 22, 45 Decisions respecting 45 (n) Saturdays : No arguments heard on 50 INDEX. 42.0 -- Uri.E OEAL : To be attached to return of writ of error H Security : For costs, in what to be 21 Statement of case : To be furnished tlic court S What must contain 29, r>3 Twelve copies to be filed 57 How disposed of 57 Consequence of not filing 53 SUBPCENA : VVlicii must be served ] Time of service of, when state is a party 10 f/ij Effect of not appearing on service of 10 Sum in dispute : May b^shown by affidavit 13 DecisioBS respecting 13 /fij Sureties for costs : Attachments may issue against 21 Time : Service of subpcrna 10 Within which plaintiff may file record 43 Wlien plaintiff may not file record 43 When defendant may file record ... 43 To file cross interrogatories in admiralty and equity cases 27 Of docketing writs of error and appeals 43 In wliich to file printed arguments 06 In wliicli to file printed abstracts 57 Testimony : When taken by commission 25, 27 Decisions respecting same 25, 27 fnj When oral in open court 27 426 INDEX. RCLB. Testimony (continued) : Law respecting same 27 (n) Decisions respecting same 27 (n) Trial : When at first term 16, 19 When may be continued at option of defendant to next term 16, 19, 43 When goes over in any event 43 Value of amount in dispute : May be determined by affidavit 13 Decisions on this point 13 (nj Viva voce testimony : When not allowed 9 When received 27 United States : Costs not allowed for or against *. 4t'> Witnesses : In admiralty cases, testimony of how taken 27 Writ of error : Return to how made 11 When to issue, that cause may be tried at first term 16 When issues so that cause is continued 16 Damages, when sued out for delay 17 Damages, when a real controversy 18 How dismissed, case of deceased party 28 How reversed, case of deceased party 28 When plaintiff' may docket 43 Wlien plaintiff may have a second 43 (n) Decisions respecting 43 fn) When plaintiff may not docket 43 When defendant may docket 43 When defendant may have dismissed 43 INDEX. 427 KltE. Writ of error (continued) : Dismissal of, costs to ilcfcn Jant 45 Affirmance of, costs to defendant 45 Reversal of, costs to plaintiff" 45 Dismissal of for want of appearance, plaintiff" to pay costs 54 Dismissal of for failure to argue, plaintiff" to pay costs ... 55 RULES OF PRACTICE COURTS OF EQUITY OF THE UNITED STATES, PROMULGATKD BY THK SUPREME COURT OF THE UNITED STATES, JANUARY TERM, 1842; IN PURSUANCE OF THE ACT OF 1892, CHAP. 30, § 2. RULES OF PRACTICE FOR THE COURTS OF EQUITY. Ri;i-E 1 Circuit courts rtl- RULE I. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers and other pleadings, for issuing and re- waysopuu turning mesne and final process and commissions^ imrpu.es. and for making and directing all interlocutory motions, orders, rules and other proceedings, preparatory to the hearing of all causes upon their merits. The circuit courts, as courts of equity, shall be always open for the purpose of filing bills, petitions, answers, pleas and other pleadings, for issuing and returning mesne and final process and commissions, and for making and directing all interlocu- tory motions, orders, rules and other proceedings whatever, preparatory to the hearing of all causes pending therein upon their merits. And it shall be competent for any judge of the court, upon reasonable notice to the parties, in the clerk's office, or at chambers, and in vacation as well as in term, to 432 RULES OF THE FEDERAL COURTS; RULE 1, make, direct, tint! award all siicli process, commissions and — interlocutory orders, rules, and other proceedings, whenever the same are not grantablc of course according to the rules and practice of the court. Act 1842, ch. ISS, § 5. Rule II. RULE 2. The clerk's office shall be open, and the clerk Clerk's of- shall bc in attendance therein on the first Hon- or fi S" day of every month, for the purpose of receiving, of"eHy whom , to be by the court for that purpose, and not otherwise ; made. in the latter case, the person serving the process Proof of shall make affidavit thereof service. The marshal is to execute, throughout his district, all lawful precepts directed to him and issued under the authority of the United States. Act 1789, c/^ 20, § 27. (1 Stat, at Large 87). He performs this duty under the guidance of the law, and at his peril ; but he must of course exercise some judgment in the performance. Lije and Fire Ins. Co. of N. Y. vs. Adams, 9 Pet. 573. Attachments for the non-attendance of witnesses must be served by the marshal of the court, though the persons may reside in a distant county. United States vs. Montgomery, 2 Dall. 33. The marshal is bound to serve process as soon as he reason- ably can, and is liable for loss aribing from his neglect. Ken- nedy vs. Brent, C Cra. 187 ; 2 Cond. 345. And he is liable for the failure of his deputy to serve original process ; but the measure of such liability is the extent of the injury received by the plaintiff, produced by such negligence. United States vs. Moore's Admrs., 2 Mar. Dec. 317. Ex parte Iloyt, 13 Pet. 279. He may be ruled to return process, Oswald vs. State oj" New- York, 2 Dall. 415; 1 Cond. 6; but the court will not dictate what return he shall make to process in his hands. Wortman vs. Conynghain, 1 Pet. C. C. 241. 442 RULES OF THE FEDERAL COURTS. RULE 15. The marshal may have an attachment to enforce the pay- ment of his fees of office, against suitors in the court. So a"-ainst an endorser on the writ, who by the lex loci is liable to respond the costs. Anon, 2 Gall. 101. It is a contempt of court to serve process either in the ac- tual or constructive presence of the court. Blight's Exrs., vs. Fisher, 1 Pet. C. C. 41. RULE 16. Subpirna served, Clerk to enter tlie suit as peudiug. Rule XVL Upon the return of the subpoena, as served and executed upon any defendant, the clerk shall en- ter the suit upon his docket as pending in the court, and shall state the time of the entry. RULE 17. Appear- ice day ant, when. APPEARANCE. Rule XVII. The appearance day of the defendant shall be the rule day, to which the subpoena is made re- oTdeiend- tumablc ; provided, he has been served with the proce^s twenty days before that day; otherwise, his appearance day shall be the next rule day succeeding the rule day, when the process is re- turnable. The appearance of the defendant, either per- sonally or by his solicitor, shall be entered in the order book on the day thereof by the clerk. A defendant entered his appearance, but put in no answer and was in contempt. An attachment with proclamations was issued and returned non est inventus. The court ordered a commission of rebellion to issue, returnable immediate, and a Appear- ance, how eutered. CIRCUIT COURTS IN EQUITY CASES. 443 sequestration was ordered, and on further motion, that the bill un.K n be taken as confessed. Boudinot vs. St/mmcs, Wallace 139. Voluntary aj)j)earance is a waiver of ])rocess. Knox vs. Summers, 3 Cra. 496 ; 1 Cond. 307. Grade vs. Palmer, 8 Whea. 699 ; 5 Coud. 561. Carrington's Heirs vs. Brent ct al, 1 McLean 174. Appearance cures defects in service of writs. KiUrcdge vs. Etnerson, 3 Leg. Obs. 166. S. C, 7 Law. Rep. 312. BILLS TAKEN PRO COKFESSO. Rule XVIIL It shall be the duty of the defendant, unless kuleis. the time shall be otherwise enlarged, for cause neLnKhmt vvlieu to shown, by a judge of the court upon motion for f''" I'l' a- demurrer that purpose, to file his plea, demurrer, or answer 01 uuswer. to the bill in the clerk's office, on the rule day next succeeding that of entering his appearance: in default thereof, the plaintiff may, at his elec- in default tion, enter an order (as 01 course) in the order i.iiimay book, that the bill be taken pro confesso; and procmifasso thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed Andde- by the court at the next ensuing term thereof ariLu *"" accordingly, if the same can be done without an answer, and is proper to be decreed ; or the plain- orpiaintii! tiff, if he requires any discovery or answer to !',?L'ta7h- enable him to obtain a proper decree, shall be ".anpcTau entitled to process of attachment against the de- """''*''■• fendant, to compel an answer; and the defendant And de- shall not, when arrested upon such process, be IZyXe discharged therefrom, unless, upon filing his an- ''"^'***' " 444 RULES OF THE FEDERAL COURTS. RULE la And re- tained till makes answer. swer, or otherwise complying with such order, as the court or a judge thereof may direct, as to pleading to, or fully answering the bill, within a period to be fixed by the court or judge, and un- dertaking to speed the cause. RULE 19. Decree pro covfesso absolute, except when. Set aside only on payment of costs. And npon terms. Rule XIX. When the bill is taken pro confesso, the court may proceed to a decree at the next ensuing term thereof, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem rea- sonable, and unless the defendant shall under- take to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speed- ing the cause. On a default being opened it is optional with the plaintiff to try or continue the cause. But in no case can a defendant take advantage of his own negligence, by procuring a continuance on the ground that the issue was not made up. Kimball vs. Stewart, 1 McLean 332. A decree pro confesso, when irregularly entered, as a matter of course, will be set aside on motion. Fclloivs vs. Hall, 3 McLean 281. CIRCUIT COURTS IN EQUITY CASES. 445 FRAME OF BILLS. Rule XX. Every bill, in the introductory part thereof, shall rdle 20 contain the names, places of abode, and citizen- biu. intro ductory ship, of all the parties, plaintiffs and defendants, pan what to contain, by and against whom the bill is brought. The andibrm form, in substance shall be as follows: "To the judges of the circuit court of the United States for the district of . A. B. of , and a ci- tizen of the state of , brings this, his bill, against C. D., of , and a citizen of the state of , and E. F., of , and a citizen of the of : And thereupon your orator complains and says, that, &c." Rule XXL The plaintiff, in his bill shall be at liberty to rule 21. omit, at his option, the part which is usually plaintiff called the common confederacy clause of the bill, common averring a confederacy between the defendants ly clause: to injure or defraud the plaintiff; also what is commonly called the charging part of the bill, audcharg- settmg forth the matters or excuses, which the defendant is supposed to intend to set up by way of defence to the bill; also, what is commonly called the jurisdiction clause of the bill, that the and juns- acts complained of are contrary to equity, and ckuse" that tli^ defendant is without any remedy at law; and the bill shall not be demurrable therefor. \ 446 RULES OF THE FEDERAL COURTS. RULE 21 ^j^j ^j^g plaintiff may, in the narrative or stating auYavoid P^^*^ ^^ ^^^^ ^^^^' state and avoid, by counter aver- matters of nients, at his option, any matter or thing which he supposes will be insisted upon by the defend- ant, by way of defence or excuse, to the case hW\ "f made by the plaintiff for relief. The prayer of relief to the bill shall ask the special relief, to which the ask for. plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunction, or a writ of ne exeat regno, or any other special order pending the suit, is required, it shall also be specially asked for. Every bill must contain sufficient matter in itself, per se, to maintain the case of the plaintiff. Harrison vs. Nixon, 9 Pet., 483. Where a specific relief is asked for, even though there be a prayer for general relief, the circuit court can not grant a re- lief which is inconsistent with, or entirely different from that which is prayed. Wilson vs. Graliam., 4 Wash. 53. Under the prayer for general relief, the court will grant such relief only as the case stated in the bill and sustained by the proofs will justify. English vs. Foxall, 2 Pet., 595 ; Walden vs. Bodlexj, 14 Pet., 156 ; Hobson vs. McArtJmr, 16 Pet., 182. But any relief may be granted not inconsistent with the bill or specific prayers. Boone vs. Chiles, 10 Pet., 177. The party may frame his bill with a double aspect, so that if the court decide against him upon one view of the case, it may afford him relief in another. Hohson vs. McArthur, 16 Pet., 195, If an answer neither admits nor denies the allegations of a bill, they must be proved on the final hearing ; but on a ques- tion for a dissolution of any injunction, they are to betaken as true. Young vs. Grundy, 6 Cra., 51 ; 2 Cond., 300. CIRCUIT COURTS IN EQUITY CASES. 447 In order to support a motion for an injunction, the bill should rule 21. set forth a case of probable right, and a probable danger that the right would be defeated, without the special interposition of the court. State of Georgia vs. Brailsford, 2 Dall., 405 ; 1 Cond., 3. The bill must show how the plaintiff will be wronged, that the court may judge whether the wrong complained of entitles him to an injunction. Spooner vs. McConnell et. al., 1 McLean, 337, 383. Rule XXII. If any persons, other than those named as de- rule^>2. fendants in the bill, shall appear to be necessary wam of proper or proper parties thereto, the bill shall aver the parties, 1 .• 1 1 averment reason, why they are not made parties, by show- ofbuias ing them to be without the jurisdiction of the court, or that they can not be joined without ousting the jurisdiction of the court as to the other parties. And as to persons, who are without the parties jurisdiction, and may properly be made parties, r'sdrcVlo.i, the bill may pray, that process may issue to make Seni- them parties to the bill, if they should come "'S- within the jurisdiction. Rule XXIII. The prayer for process of subpoena in the bill rule 23. shall contain the names of all the defendants subp.ma named in the introductory part of the bill, and if the nanua any of them arc known to be infants under age, defend-'" or otherwise under guardianship, shall state the state", if fact, so that the court may take order thereon as miaors. justice may require, upon the return of the pro- 448 RULES OF THE FEDERAL COURTS. RULE 23. cess. If an injunction, or a writ of ne exeat Need not legno, or any other special order pending the suit, prayer" for is askcd for in thc prayer for relief, that shall be Sn sufficient without repeating the same in the prayer for process. Rule XXIV. ULE 24. Every bill shall contain the signature of coun- Biii~be sel annexed to it, which shall be considered as cSfei ^ an affirmation on his part, that upon the instruc- tions given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. If a bill is not signed by counsel, it is demurrable. But if the bill is endorsed by counsel, it is a sufficient signing within t le rule. Dwight vs. Humphreys et al, 3 McLean 104. Rule XXV. * RULE 25. In order to prevent unnecessary costs and ex- Cos^Toa penses, and to promote brevity, succinctness, and a.?swer dircctucss iu the allegations of bills and answers, reg'Iiated. the rcgular taxable costs for every bill and an- swer shall in no case exceed the sum, which is allowed in the state court of chancery in the dis- trict, if any there be ; but if there be none, then it shall not exceed the sum of three dollars for every bill or answer. As to thc efi'ect and meaning of this rule, the following de- cision has been made : CIRCUIT COURTS IN EQUITY CASES. 449 United States Circuit Court — Northern Uistrict of New- i^^le 25. York. — Before Hon. Mr. Justice Nelson. June 30, 1851. IN EQUITY. Wade vs. Matthews. This was an appeal from the taxation of costs by the clerk of this court. The plaintiff had charged by the folio for the draft and copies of his bill of complaint, according to the Rcviiicd Statutes of New-York, as they ex- isted in 1842, when the equity rules were adopted. The de- fendant claimed that the only charge which could be made was either $3 under the 25th equity rule, or the amount now allow- able under the code. Judge Nelson held that the true rule was to tax under the New York chancery fee bill, as it existed in 1842. See also "Costs" ante p. 277. SCANDAL AND IMPERTINENCE IN BILLS. Rule XXVI. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, docu- ments, contracts or other instruments, in hcec verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may on exceptions be referred to a mas- ter by any judge of the court for impertinence, or scandal, and if so found by him, the matter shall be expunged at the expense of the plaintiff, and h(^ shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the mas- ter shall report, that the bill is not scandalous or 29 RULE 26. Bill to be brief; con- tain no re- citals; nor scandal or imperti- nence. If it does, the same may be expunged at costs of the plain- tiff. Not scan- dalous &c, defendant to ^ay costs. 450 RULES OF THE FEDERAL COURTS. RULE C6. impertinent, the plaintiff shall be entitled to all costs occasioned by the reference. There is no general rule as to what constitutes multifarious- ness ; each case must depend upon its own circumstances ; and much must necessarily be left to the sound disci-etion of the court. The doctrine laid down by Lord Campbell in Camp- hell vs. Mackay, 1 Mylne & Craig, 603, affirmed. Gaines vs. Chew, 2 How. 619. Oliver vs. Piatt, 3 How. 333. McLean vs. Banh of Lafayette, 3 McLean, 415. The objection of multifariousness must be taken advantage of by plea, demurrer or answer, and can not be insisted upon by the defendant at the hearing; Oliver vs. Piatt, 3 How. 333, 411 ; and in a later case, it was held that the objection can only be taken advantage of by demurrer or exception to the pleading, and must be made hcfore answer, and can be tested only by the structure of the bill itself. Nelson vs. Hill, 5 How. 127, 132. The court may take notice of it, at any time, sua sponte, but this will not be done at so late a period as the hearing, unless it is essential to the due administration of justice. A fortiori, an appellate couit would scarcely entertain the objection, if it was not forced upon it by a moral necessity. Nelson vs. Hill, 5 How. 127, 132. Oliver vs. Piatt, 3 How. 333, 412. A bill is not multifarious because it embraces the distinct claims of several parties, if the interests of all are so mingled in a series of complicated transactions, that entire justice could not be done without such an union, or if without being so joined the bill would have been open to the objection that all the proper parties were not before the court. Oliver vs. Piatt, 3 How. 333, 412. See also as to multifariousness, Story's Eq. Plead., § 530 to 540, and authorities there cited. Atty. Gen. vs. Cradock, 3 Mylne & Craig, 85. Whaley vs. Dawson, 2 Scho. & Lef. 370. Ward vs. Cooke, 5 Madd. 80. CIRCUIT COURTS IN EQUITY CASES. 451 Rule XXVII. No order shall be made by any judge for refer- R'l^??. ring any bill, answer, or pleading, or other mat- J?^^;j«p-^ ter, or proceeding depending before the court for Bcandai scandal or impertinence, unless exceptions arc iu writing *■ , audsigned taken in writing and signed by counsel, describ- by counsel ing the particular passages, which are considered to be scandalous or impertinent; nor unless the '^ll^^^l'"'^ exceptions shall be filed on or before the next rule ^Ji^j.'^^J^. day, after the process on the bill shall be return- J^'fJji'J"' able, or after the answer or pleading is filed, gfgd"''''^' And such order, when obtained, shall be consi- dered as abandoned^ unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the such or- same on or before the next succeeding rule day, deemed a- or the master shall certify, that further time is necessary for him to complete the examination. On exceptions to an answer for impertinence antl scantlal, courts of equity give the answer a liberal consideration, hav- ing regard to the nature of the case as made by the bill. Grisu'old vs. IliU, 1 Paine, 390. AMENDMENTS OF BILLS. Rule XXVIII. The plaintiif shall be at liberty as a matter of rule 2s. course, and without payment of costs, to amend Biii~hen his bill iu any matters whatsoever, before any "Inended copy has been taken out of the clerk's olfice, and aluu'""''' in any small matters afterwards, such as filling J^icts'^^ 452 RULES OF THE FEDERAL COURTS. RULE 23. When on payment of costs, and on serving coj)y of amend- ments. When to furnish a copy of the whole bill. blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical er- rors, and generally in matters of form. But if he amend in a material point (as he may do of course,) after a copy has been so taken, before any answer or plea, or demurrer to the bill, he shall pay the defendant the costs occasioned thereby, and shall without delay, furnish him a fair copy thereof, free of expense, with suitable references to the places, where the same are to be inserted. And if the amendments are nume- rous, he shall furnish in like manner to the de- fendant, a copy of the wholes bill as amended, and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. For statutory enactment and further references respect- ing amendments, see "Poivers in Common," title Amendments. An amendment of a bill upon which an injunction has been granted, before answer filed, particularly if filed within a short time after filing the original bill, will not affect the injunction granted on the original bill. Read vs. Consequa, 4 Wash. 175. The amendment should be by a separate bill and not by in- terlining the orignal bill. The amended bill should call on the original defendants to answer the new matter, or the new parties, if any, to answer both. Pierce vs. West's ExWs., 3 Wash. 354. An amendment of an original bill, asserting a new title, is considered a new bill. Hohnesvs. TrouVs Heirs, 1 McLean, 1. Where a bill is amended, process need not be issued against the defendants, who are in court, as they have notice of the amendment, and are subject to the orders of the court. Long- worth vs. Taylor, 1 McLean, 514. CIRCUIT COURTS IN EQUITY CASES. 453 RULE 28. Amendments, which change the character of the bill or an- swer, so as to make substantially a new case, should rarely if ever be admitted, after the cause has been set for hearing; much less after it has been heard, TT7//J('w vs. Bodlcij, 14 Pet. 156. Rule XXIX. After an answer, or plea, or demurrer is put in, and before replication, the defendant may, upon motion or petition, without notice, obtain an f^^'fand '■ beiore re- order from any judge of the court, to amend his f''^^!J!^' bill on or before the next succeedin«^ rule day, upon "'"v he payment of costs or Avithout payment of costs, as the court or a judge thereof may in his discretion After re RULE 29. After an- direct. But after replication filed, the plaintiff liir ' '"' shall not be permitted to withdraw it and to ody ou amend his bill, except upon a special order of a "n i i • not be sel, that in his opmion it is well founded m point ceptupon of law, aud supported by the affidavit of the certificate ... . i r i i i of counsel, defendant, that it is not interposed for delay ; and if a plea, that it is true in point of fact. A plea is a special answer to the bill, setting forth the facts sufficient to delay, bar, or dismiss the suit, and need not cover any other parts of the bill than such as concern the particular subject of the bar. If the plea be to the whole bill, it must cover the whole ; if the plea be only to a part of the bill, the rest ought to be answered, or it will be regarded by the court as true. "When the plea contains in itself a full defence to the bill, an answer is unnecessary ; and the plaintiff may argue the plea on its merits, or reply to it, as he thinks proper. Sims vs. Lyle, 4 Wash. 301, 303-4. A plea in bar to a bill in equity, denying only a part of the material facts stated in the bill, is not good. A mere denial of facts is proper for answer, but not a plea. Milligan vs. Mil- ledge et. ux., 3 Cra. 220 ; 1 Cond. 503. CIRCUIT COURTS IN EQUITY CASES. 455 Rule XXX IT. The defendant may, at any time before the bill "^'l;^^^ is taken for confessed, or afterwards with the i>'^f'n'iant ' may plead leave of the court, demur or plead to the whole f"" ''•^"i"' ' ■•■ to bill, in bill, or to part of it, and he may demur to part, ^^^'"'"^ y plead to part, and answer as to the residue ; but ^'^y ^^' in every case, in which the bill specially charges fraud or combination, a plea to such part must be ^^^^^ ^^ accompanied with an answer fortifying the plea, and explicitly denying the fraud and combination, and the facts on which the charge is founded. liave an- swer with it. 'to^ It is an established and universal rule of pleading in chan- cery, that a defendant may meet a complainant's bill, by seve- ral modes of defence. He may demur, answer and plead to different parts of the bill; so that if a bill for discovery contain proper matter fur the one, and not for the other, the defendant should answer the proper and demur to the improper matter ; and if he demurs to the whole bill, the demurrer must be over- ruled. Livingston vs. Story, 9 Pet. 632. It is a general rule, that a plea ought not to contain more defences than one. Various facts can never be pleaded in one plea ; unless they are all conducive to the single point on which the defendant means to rest his defence. State Rhode Island vs. State Massachusetts, 14 Pet. 210. Inordinary cases, between individuals, the court of chancery has always exercised an equitable discretion in relation to its rules of pleading, whenever it has been found necessary to do so for the purposes of justice. In a case, in which two sove- reign states are concerned, the most liberal principles of prac- tice and pleading are adopted. Iljid. Wlicii a bill charges cii'cumstances calculated to avoid the anticipated bar of the defendant, the plea should be supported by an answer ; for then it is proper, not only that the plea 456 RULES OF THE FEDERAL COURTS. RULE 32. should contain all necessary averments to remove those cir- cumstanccs out of its way, l)ut the defendant must support his plea by an answer also denying the same circumstances. The reasons assigned in the books for this necessity of supporting a pica by an answer is, that otherwise the plaintiff would lose the opportunity of excepting, and thus drawing from the de- fendant some confession, which might destroy the bar set up by the plea. Ferguson vs. O'Harra, 1 Pet. C. C. 493, 494. Rule XXXIIL RULE 33. The plaintiff may set down the demurrer or riaimiff plea to be argued, or he may take issue on the pieaS"- plea. If, upon an issue, the facts stated in the murrer. ^^ea. be determined for the defendant, they shall taiifed. ef- avail him, as far as in law and equity they ought feet of. •! 1 • to avail mm. If a plea be set down for argument by the complainant, without replying to it, the matter contained in it must be re- garded as true. Gallagher's Exrs. vs. Roberts, 1 Wash. 320. It is an established rule on demurrers, that although the pleading demurred to may be defective, the court will render judgment against the party whose pleading was first substan- tially defective. United States vs. Arthur, 5 Cra. 257. Sprigg vs. Ba7iJc oj" Mount Pleasant, 10 Pet. 257. Gormon vs. Lexox's Exrs., 15 Pet. 115. But the fault must be one that is bad on general demurrer, and one not cured by a verdict, and one not discovered by the court and desired to be amended so as to present the merits properly. Jackson vs. Rundlet, 1 Wood & Min. 381. A plea may be good in part, and not so in the whole ; and the court will allow it as to so much of the bill as it is properly applicable to, unless it has the vice of duplicity in it. Kirk- patrickrVQ. White ct al, 4 Wash. 595. CIRCUIT COURTS IN EQUITY CASES. 457 Tho party who liiis put in a plea, wliitli is the subject of dis- Ull^^- cussion, has a right to open and conclude the argument. Rhode Island vs. MassacJiusetts, 14 Pet. 210. .F ai. Rule XXXIV. • If, upon the hearing, any demurrer or plea is ^^^_ overruled, the plaintiff shall be entitled to his DcM,uri.r ' -i or pliM costs in the cause up to that period, unless the ..yerr..i..i ••• [)laliillti tn court shall he satisfied, that the defendant had bavcc...st.s except good ground in point of law or fact to interpose wheu. the same, and it was not interposed vexatiously or for delay. And upon the overruling of any f;;;',;|;;- ,„ plea or demurrer, the defendant shall he assigned J"„^^.;:.';'" to answer the hill, or so much thereof as is *'"'*^- covered by the plea or demurrer, the next suc- ceeding rule day, or at such other period, as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done ; in default whereof, i„ d.fanit the bill shall be taken against him, pro confesso, p,'-,, c 1 ' n f^ \ niatters of the character 01 the parties, or matters 01 form) d frnce in bar of or to the merits of the bill, of which he by pieu. 460 RULES OF THE FEDERAL COURTS. RULE 39. may be entitled to avail himself by a plea in bar ; and in such answer he shall not be compellable Answer to unswcr any other matters, than he would be only such compellable to answer and discover upon filing a i.ec t S8ary plca in bar, and an answer in support of such plea, i>ieaciio. touching the matters, set forth in the bill to avoid or repel the bar or defence. Thus, for example, a bona fide purchaser for a valuable consideration without notice, may set up that defence by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. If the answer admits a fact, but insists on matter by way of avoidance, the complainant need not prove the fact admitted, but the defendant must prove the matter in avoidance. Clarke vs. White, 12 Pet. 178. When the answer neither admits nor denies the allegations of the bill, they must be proved on the final hearing. Young^ vs. Grundy, G Cra. 51 ; 2 Cond. 300. An answer responsive to the bill is evidence in favor of the defendant, Russell vs. Clark's Exrs., 7 Cra. G9 ; 2 Cond. 417. But an answer though positive and directly responsive to an allegation in the bill, may be outweighed by circumstances, particularly if it be respecting a fact, which in the nature of things, can not be within the personal knowledge of the defend- ant. Clark's Exrs. vs. Van lliemsdyk, 9 Cra. 1/53 ; 3 Cond. 319. See also Bank United States vs. Beverly, 1 How. 134. A party can not state one case in a bill or answer, and make out a different one by proof: the allegata and probata must agTee. Boone vs. Chiles, 10 Pet. 177. The rule allowing a defendant, instead of filing a formal de- CIRCUIT COURTS TN EQUITY CASES. 461 murrer or plea, to insist on any special matter in his answer, R^'i^ ^ is 8imj)ly in aiiirmance of the common practice of courts of equity, and applies to matters to the merits, and not to such objections as arc in abatement merely. Wood vs. Mann, 1 Sum. 579. Livingston vs. Story, 11 Pet. 351. The general rule is that an answer directly responsive to the bill must prevail, unless contradicted by the testimony of two witnesses, or one witness corroborated by probable cir- cumstances. Higbee vs. IIoj)Iciris, 1 Wash. 230. Clark's Exrs. vs. Van Riemsdyk, 9 Cra, 153 ; 3 Cond. 325. Hughes vs. Blahe, G Whea. 453; 5 Cond. 136. Union Bank of George- town vs. Geary, 5 Pet. 99. Carpenter vs. Prov. Wash. Ins. Co., 4 How. 185, 217 and cases there cited. And this rule is not affected by the fact that the defendant is interested to the whole amount of the controversy. Lenox vs. Prout, 3 Whea. 520; 4 Cond. 310. For qualifications and limitations of this rule see 4 Howard, 185, above cited. But where the bill is sworn to, one witness is sufficient. Learcy vs. ParmeU, 1 Cooke, 110, cpioted in a note in 2 Cond. 294. An answer not under oath is to be considered merely as a denial of the allegations in the bill ; analogous to the general issue at law; so as to put the complainant to the proof of such allegations. Union Bank Georgetoum vs. Geary, 5 Pet. 99. On a bill filed for an injunction to stay proceedings in a suit at law, the answer of the attorney of the defendant in the suit at law, can not be filed as a substitute for the answer of the defendant himself. Head vs. Consequa, 4 Wash. 174. An answer by a defendant beyond sea must be taken and sworn to by a commissioner under a dedimns jiotcstatcm issued by the court, directing him to administer the oath in the most solemn forms observed by the laws and usages of the country where the defendant may be. Read vs. Consequa, 4 Wash. 335. Herman vs. Herman, 4 Wash. 5oo. The general rule is, that if the defendant answer to the same matter which is covered by his plea, and which by his plea he 462 RULES OF THE FEDERAL COURTS. RULE 39. contends he is not bound to answer, the answer overrules the plea. The only exception is the case where an answer is ne- cessary to support the j)lea. Fcrgtison vs. O'llara, 1 Pet. C. C. 493. A bill in C(|uity may cliargc a felony and may be sustained by proof; but the defendant is not bound to make a discovery thereof. Ocean his. Co. vs. Fields, 2 Story, 59, 73. The answer of a nominal party may be taken under a com- mission. Camac vs. Francis, 3 Wash. 108. See also as to how far answers are evidence ; Leeds vs. Mar. Ins. Co. of Alexandria, 2 Whea. 380 ; 4 Cond. 170. Osborn vs. Ba}ik United States, 9 Whea. 738; 5 Cond. 741. Randall vs. Phillips, 3 Mass. 378. Va7i Reimsdyk vs. Kane, 1 Gal. 630. Field vs. Holland, 6 Cra. 8, 24. Learey vs. Farmell, 1 Cooke, 110; quoted 2 Cond. 294. Rule XL. RULE 40. [ Itescinded. ] A defendant shall not be bound to answer any statement or charge in the bill, unless specially and particularly interrogated thereto ; and a defendant shall not be bound to answer any interrogatory in the bill, except those interrogatories which such defendant is required to answer ; and where a defendant shall answer any statement or charge in the bill, to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent. See Rule 93. Rule XLL RULE 41. The interrogatories contained in the interro- interroga- gating part of the bill, shall be divided as conve- CIRCUIT COURTS IN EQUITY CASES. 463 nru: 4i, fied. niently as may be from each other, and numbered consecutively 1, 2, 3, &c. ; and the interrogate- J;;--^;; ries, which each defendant is required to answer, ^^''^■ shall be specified in a note at the foot of the bill, tiri.s re- in the form or to the effect following ; that is to Jped"f „,, -. ^ , . . -r-* \ • • 1 J. answers to say: "The defendant (A. B.) is required to an- bespeci- swcr the interrogatories numbered respectively 1, 2, 3, &c. ;" and the office copy of the bill taken by each defendant shall not contain any interro- gatories except those, which such defendant is so required to answer, unless such defendant shall require to be furnished with a copy of the whole bill. Note at foot of bill Rule XL II. The note at the foot of the bill, specifying the interrogatories, which each defendant is required a pari if ^ ' the bill. to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill. Rule XLIII. Instead of the words of the bill now in use, F«>in of bill prcce- preccding the interrogating part thereof, and be- ii'"cJ ti'« ginning Avith the words "To the end, therefore," 'ingpart. there shall hereafter bo used words in the form or to the effect following: "To the end, therefore, that the said defendants may, if they can, sliow 464 RULES OF THE FEDERAL COURTS. RULE 43. -vvhy your orator should not have the relief hereby prayed, and may, ii2}oii tlieir several and respec- tive corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, * as by the note hereunder written they are respectively required to answer; that is to say,— " 1. Whether, &c. " 2. Whether, &c." Bills need not necessarily be sworn to, and in practice gene- rally are not verified, and in many districts, they are never sworn to, except when an injunction, or a discovery, or some special relief is prayed for. Bills, however, may be sworn to in any case ; but the effect is to permit the defendant to an- swer under oath, and his answer is thus made evidence, to overcome which it will require the testimony of two witnesses, or one witness with corroborating testimony. Therefore, where the placing such power in the hands of the defendant is for any reason dangerous or doul)tful, it would be the safer course not to verify the bill, or call for an answer under oath. If an answer under oath is waived, the fijrm prescribed in the rule may be varied in such a case by omitting the words in italics, and inserting after the * " this complainant hereby waiv- ing the necessity of the answer of such defendants being put in under the oaths of the said defendants or the oath of either of them." As to how far answers are made evidence, see note to Rule 39. CIRCUIT COURTS IN EQUITY CASES. 465 Rule XLIV. A defendant shall be at liberty, by answer, to J^ule 44. decline answerin^]^ any interrogatory or part of what an interrogatory, from answering which he might t.-rics de- have protected himself by demurrer ; and he shall n'ucd\iot auswer. be at liberty so to decline, notwithstanding he shall answer other parts of the bill, from which he might have protected himself by demurrer. Rule XLV. No special replication to any answer shall be rule 46. fded. But if any matter alleged in the answer spedai shall make it necessary for the plaintiff to amend tion ueed his bill, he may have leave to amend the same lued.^ with or without the payment of costs, as the But plain titr am( bill court, or a judge thereof, may in his discretion ame'Ild^hiB direct. Special replications are disused. If* the plaintiff finds it ne- cessary from the answer to prove new matter, the practice is to amend the bill But if a special replication is filed, denying all the material parts of the answer, and also charging new matter, the new matter will be considered as surplusage at the hearing. Duponti vs. Mussy, 4 Wash, 128. If the complainant does not file a general replication, the answer is to be taken as true, and no evidence can be given by the complainant to contradict it. Pierce vs. West Exrs., 1 Pet. C. C. 351. A party can not, in his replication, make out a new case dif- ferent from that stated in the bill, Vattier vs. Hinde, 7 Pet. 252, 274. 30 466 RULES OF THE FEDERAL COURTS. RULE 46. New or supple- meutal answer, when will be requir- ed; effect of not put- tiuii iu. Rule XLVL In every case where an amendment shall be made after answer filed, the defendant shall put in a new or supplemental answer, on or before the next succeeding rule day after that on which the amendment or amended bill is filed, unless the time therefor is enlarged or otherwise ordered by a judge of the court ; and upon his default the like proceedings may be had as in cases of an omission to put in an answer. RULE 47. If all pro- per per- isous can not be made par- ties, court may pro- ceed, with- out thtm. Decree shall not prejudice Buch per- sons. PAETIES TO BILLS. Rule XLVIL In all cases where it shall appear to the court, that persons, who might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion proceed in the cause without making such persons parties; and in such cases the de- cree shall be without prejudice to the rights of the absent parties. All persons materially intcresled in the subject of a chan- cery suit ought to be made parties, either plaintiffs or defend- ants ; but this is a rule established for the convenient adminis- tration of justice, and is more or less within the discretion of CIRCUIT COURTS IN EQUITY CASES. 467 the court ; and it should be restricted to parties whose interests Ri'LE 47. are in the i.ssue, and to be affected by the decree. The relief granted will always be so modified, as not to affect the interests of others. MecJi. Bunk of Ahxandria vs. Seton, 1 Pet. 299, 306. It is a general rule in equity, that all persons materially in- terested in the matter of a bill, as plaintiffs or defendants, ought to be made parties to it, however numerous they may be. But there are many exceptions to the rule. West vs. Randall, 2 Mason, 181. As a general rule, all persons in interest must be made par- ties to proceedings in equity before a decree. Hoxic vs. Carr, 1 Sum. 173. Osborn \s. Bank United States, 9 Whea. 733 ; 5 Cond. 7G0. But no one need be made a party, against whom, if brought to a hearing, there can be no decree. Van Riems- dijk vs. Kane, 1 Gall. 371. The rule which requires all the parties in interest to be brought before the court, does not affect the jurisdiction, but is subject to the discretion of the court, and may be modified according to circumstances. Elme?idofJ' \s. Taylor, 10 Whea. 152 ; 6 Cond. 47. The want of proper parties is not a good plea, if the bill suggests that such jiarties are not of the jurisdiction of the court. And the want of proper parties is not sufficient ground f<)r dismissing the bill. Milligan vs. Milledge, 3 Cra. 220; 1 Cond. 503. The joinder of improper parties can not affect the juiisdic- tion of the court as to*the parties properly before it. Carneal vs. Banks, 10 Whea. 181; 6 Cond. G4. Wormley vs. Wonn- ley, 8 Whea. 421 ; 5 Cond. 473. It has been for a long time the practice of the courts of the United States to dispense with the joinder of parties, who, if they wore made parties to the suit, would in consequence of their citizenship, oust the jurisdiction of the court, whenever withotit jinjudice to their rights, the court could proceed to decide the merits of the case between the other parties pro- 468 RULES OF THE FEDERAL COURTS. RULE 47. perly before it. Harrison vs. Urann, 1 Story, 64. West vs. Randall, 2 Mason, 181. Wormlcy vs. Wormley, 8 Whea. 421, 451. Russell vs. Clarice's Exrs., 7 Cra. 69 ; 2 Cond. 417. Mech. Bank Alexandria vs. Scton, I Pet. 306. Vattier vs. Hindes, 7 Pet. 252. Boone's Heirs vs. Chiles, 8 Pet. 532. Elmendorf \s,. Taylor, 10 Whea. 152; 6 Cond. 47. Carneal vs. Banks, 10 Whea. 181; 6 Cond. 54. Harding vs. Handy, 11 Whea. 103; 6 Cond. 236. MilUgan vs. Milledge, 3 Cra. 220 ; 1 Cond. 503. A lunatic must be made a party, and if he has a committee, the committee must answer for him ; if he has none the court appoints a guardian to defend and answer for him. Still he must be made a party and process prayed against him. Har- rison vs. Roioen, 4 Wash. 202. A certified bankrupt against whom no relief can be had, is not a necessary party. Dc Wolf vs. Johnson, 10 Whea. 367 ; 6 Cond. 140. Where there is no change of the parties to a suit, during its progress, a jurisdiction depending on the condition of the par- ties is governed by that condition as it was at the commence- ment of the suit. ConoUy vs. Taylor, 2 Pet. 556. What are active and passive parties. Joy vs. Wurtz, 1 Wash. 517. As to parties generally see cases above cited, and as follows : Morgan's Heirs vs. Morgan, 2 Whea. 290; 4 Cond. 120. Finley vs. Bank United States, 11 Whea. 304; 6 Cond. 319. Mallow vs. Hinde, 12 Whea. 193 ; 6 Cond. 515. Joy et al vs. Wurtz, 1 Wash 517. Gcrjion vs. Bccatine, 2 Wash. 199. Dandridge vs. Washington' s Exrs., 2 Pet. 370. Mandeinlle vs. Riggs, 2 Pet. 482. Caldwell vs. Taggart, 4 Pet. 190. Corm. vs. Pcnn., 5 Whea. 424; 4 Cond, 716. Marshal vs. Beverly, 5 Whea. 313; 4 Cond. 660. Riddle vs. Mandeville, 5 Cra. 322 ; 2 Cond. 268. United States vs. Howland, 4 Whea. 108, 117; 4 Cond. 404. Hunt vs. Wyclife, 2 Pet. 201, and cases cited to the following rules. CIRCUIT COURTS IN EQUITY CASES. 469 Rule XL VIII. Where the parties on either side are very nu- ^^^'J^*^ meroiis, and cannot, witliout manifest inconvc- i'-^'^''''*^^" '"r very nience and oppressive delays in the suit, be all ""meroui, •^ ' ... court may brought before it, the court in its discretion may (iisjense ^ _ wiiu 8ome dispense with making all of them parties, and may proceed in the suit, having sufficient parlies before it to represent all the adverse interests of the plaintiffs and the defendants in the suit pro- perly before it. But in such cases the decree shall „|'bc p?e- be without prejudice to the rights and claims of f r*ee. ^ all the absent parties. When the parties are very numerous and it is very difficult to bring them all in ; or where the question is of general inter- est and a few may sue for the whole ; or where the parties form part of a voluntary association, the plea of want of par- ties will be repelled and the court proceed to a decree. But the other parties may afterward come in and have a rehearing. West vs. Randall, 2 Mason, ISl, 193. See also Mandcvillcws. Riggs, 2 Pet. 482. Rule XLIX. In all suits concerning real estate, which is rule 49. vested in trustees by devise, and such trustees are when competent to sell and give discharges for the pro- nmyrep- ceeds of the sale, and for the rents and profits of [hoseben- the estate, such trustees shall represent the per- Lterestcd. sons beneficially interested in the estate or the proceeds, or the rents and profits, in the same manner, and to the same extent, as the executors or administrators in suits concerning personal 470 RULES OF THE FEDERAL COURTS. RULE 49. estate represent the persons beneficially interest- when ed in such personal estate : and in such cases it such per- '■ sonsueed shall uot be nccessarv to make the persons bene- notbe , ^ ^ '' '■ parties. ficially interested in such real estate, or rents and And when profits, parties to the suit ; but the court may, ™*^ * upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. In a proceeding by bill to sell land for the payment of debts, where the heir is a proper party, it is not necessary to make the executor a party. Milligan vs. Milledge, 3 Cra. 220 ; 1 Cond. 503. On a bill filed by an executor against a devisee of lands, charged with the payment of debts, for an account of the trust fund, and the creditors are not necessarily parties to the suit, the fund may be brought into court, and distributed, under its direction, according to the rights of those who may apply for it. Potter vs. Gardiner, 12 Whca. 498 ; 6 Cond. 606, S. C. ; 3 Mason, 178. Reo-ularly, claimants to land, who have only an equitable title, ought to make those whose title they assert, as well as the person from Avhom they claim a conveyance, parties to the suit. For omitting to do so, an original bill may be dismissed. Simms vs. Guthrie, 9 Cra. 19 ; 3 Cond. 281. When a debtor conveyed real estate to a trustee, who died, and a second was appointed by the court, in a proceeding re- lative to the trust, the heirs at law of the first trustee must be made parties, as the legal title of the trust remained in them. GrecnleafvB. Queen, 1 Pet. 138, 149. Rule L. RILE CO In suits to execute the trusts of a will, it shall whenheir not bc ucccssary to make the heir at law a party; at law CIRCUIT COURTS IN EQUITY CASES. 471 but the plaintiff shall be at liberty to make the riie m heir at law a party, Avhere he desires to have the need not Avill (\ei)o that any of the plaintiff's witnesses are ag^ed or essewheu infirm, or going out of the country, or that any of taken. 488 RULES OF THE FEDERAL COURTS. RULE 70 them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commissioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony. See note to rule 68. RULE 71. Form of last inter- rogatory. FORM OF THE LAST INTERROGATORY. Rule LXXI. The last interrogatory in the written interroga- tories to take testimony now commonly in use, shall in the future be altered, and stated in sub- stance thus : "Do you know, or can you set forth any other matter or thing, which may be a bene- fit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause ? if yea, set forth the same fully and at large in your answer." If the general interrogatory is not answered, it is fatal to the deposition. All the interrogatories must be substantially answered. Richardson vs. Golden, 3 Wash. 109. Dodge vs. Israel, 4 Wash. 323. It is no objection to a deposition that a material part of the evidence comes out under the general interrogatory. Rhoade^s Lessee vs. Selin, 4 Wash. 715. A witness can not be asked if the facts stated in an ex parte CIRCUIT COURTS IN EQUITY CASES. 489 certificate are true ; he should be interrogated as to those facts •*' ^^ "^ particularly. Richardson vs. Gohltn, 3 Wash. 109. CROSS BILL. Rule LXXII. Where a defendant in equity files a cross bill i^"le 72. for discovery only ag^aiiist the plaintiff in the ori- neivndaut ffinal bill, the defendant to the original bill shall i>iii, to an- .... swer first first answer thereto, before the original plaintiff oric.'iii'-e rs. pointed to take testimony, or before a master or Ik.w may 1 . -, I , Ije 8UII)- exammer appointed m any cause, by subpa?na m moned the usual form, which may be issued by the clerk master; in blank, and filled up by tlie party praying the same, or by the commissioner, master, or examin- er, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for at- tendance in court ; and if any witness shall re- allowed a fuse to appear, or to give evidence, it shall be ti"m1oraN deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attendinjr, or for refusiu"- to aive tes- 'r>' timony in the court. But nothing herein con- May be Tin 1 . . ^ . examined tamed shall prevent the examination of witnesses viva voce in oj)cii viva voce when produced in open court, if the court. court shall in its discretion deem it advisable. In tiiking evidence, although the bettor plan is to take the answers in writing, upon written interrogatories, witnesses may be examined viva voce : the parties to the suit being pre- sent, personally or by counsel, and not objecting to such a course. The same reason which allows the examination of witnesses rira voce in open court, permits it to be done before a master. Sfonj vs. Livingston, 13 Pet. 359, 368. If a cause has been referred, by an interlocutory decree, to a master, and either party desires to take the testimony of wit- nesses, in order to establish the incompetency of a witness, who has already been examined in the cause, and whose depo- 494 RULES OF THE FEDERAL COURTS. RULE 73. sition was before ihe court, when the decretal order was passed, the a])plication to the master shoukl be by petition in writing, verified by affidavit. Goss vs. Stinson, 2 Sum. G05. After a hearing and interlocutory decree, a party can not object before the master to the credibility of a witness, whose testimony was read at the hearing without objection. Ibid. A witness, who has given his deposition, which has been read at the hearing, can not be examined anew before the master, without a special order of the court, Ibid., and then only in respect to facts not before testified to by them, and not then in issue. Jenkins vs. Eldredge, 3 Story, 300. Rule LXXIX. All parties accounting before a master shall bring- in their respective accounts in the form of debtor and creditor ; and any of the other parties, who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the ac- counting party viva voce, or upon interrogatories in the master's office, or by deposition, as the master shall direct. RULE 79. Accounts, how pro- duced ; Account- ing party may l)e examined. RULE 80. What affi- davits may be used be- fore mas- ter. RULE 81. Master may ex- RuLE LXXX. All affidavits, depositions and documents, which have been previously made, read, or used in the court, upon any proceeding in any cause or matter, may be used before the master. Rule LXXXL The master shall be at liberty to examine any creditor or other person coming in to claim be- fore him, either upon written interrogatories, or CIRCUIT COURTS IN EQUITY CASES. 495 viva voce, or in both modes, as the nature of tlie rli^si. case may appear to him to require. The evi- cmiitor dence upon such examination shall be taken ant. down by the master, or by some other person by Evidence his order and in his presence, if either party re- aowu." quires it, in order that the same may be used by the court, if necessary. IfULE LXXXII. The circuit courts may appoint standing mas- j^^^e fs. ters in chancery in their respective districts, both g^^^^"^, the iudges concurrin": in the appointment; and « "^her o o o X r" ? masters they may also appoint a master pro hac vice in "'^y }'^ , \^ , ai>poiuted; any particular case. The compensation to be al- lowed to every master in chancery for his servi- ces in any particular case shall be fixed by the pensation circuit court in its discretion, having regard to [|y ^.e'^'^ all the circumstances thereof; and the compen- 3*11?" sation shall be charged upon and borne by such i"^'^'''*^ of the parties in the cause, as the court shall di- rect. The master shall not retain his report as security for his compensation ; but when the Ituihi re- compensation is allowed by the court, he shall be Ttcuii^y; entitled to an attachment for the amount against 1.11 1 • n i"^V lia^e the party, who is ordered to pay the same, ii, up- aiiaci.- on notice thereof, he does not pay it within the collect time prescribed by the court. It is completely williin the discretion of the court, to ascer- tain the facts themselves, if the evidence enables them to do it, or refer the question to a jury, or to auditors, (or referees). Field vs. Holland, G Cra. 8 ; 2 Cond. 285. same. 496 RULES OF THE FEDERAL COURTS. RULE S3. To returu rcpi)rt to clerk's office ; when may be except- ed to ; when deemed admitted. Excep- tions to, when stand for hearine. EXCEPTIONS TO KEPOllT OF MASTER. Rule LXXXIIL The master, 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 in the order book. The parties shall have one month from the time of filing the report, to file exceptions thereto ; and if no exceptions are within that period filed by either party, the re- port shall stand confirmed on the next rule day after the month is expired. If exceptions are filed, they shall stand for hearing before the court, if the court is then in session, or if not, then at the next sitting of the court, which shall be held thereafter by adjournment or otherwise. Tn exceptions to a master's report, a general assignment of errors is insufficient, unless specific errors are shown. And exceptions must be founded on the facts stated in the report, or in the accompanying documents and proofs. Dexter vs. Ar- nold, 2 Sum. 108. No practice can be more dangerous than to open accounts, which the parties themselves have adjusted. But if palpable errors are shown, the settlement is so far considered as made upon mistake or imposition, and is not obligatory on the in- jured party. The whole labor of proof lies on the objecting party. C/iajypedcIaine vs. DecJimaux, 4 Cra. 306; 2 Cond. IIG. Exceptions to a master's report are regarded by the court only so far as they are supported by the statements of the mas- ter, or a distinct reference to the particular portions of testi- mony on which the excepting party relies. The court does not investigate the items of an account, nor review the whole mass CIRCUIT COURTS IN JEQUITY CASES. 497 of testimony taken before the master. Harding vs. Handy, rule . to transmit a printed copy thereof, duly certified, to the clerks of the several courts of the United States, and to each of the judges thereof Rule XCill. The fortieth rule, heretofore adopted and pro- ^^^ ^^ mulgated by this court as one of the rules of ^^^,^\^l'^^ practice in suits in equity in the circuit courts, be and the same is hereby repealed and annulled. And it shall not hereafter be necessary to interro- Defendant need not ffate a defendant, specially and particularly, upon b spcciai- Iv intern - any statement in the bill, unless the complainant gated uu- . less a dis- desires to do so, to obtam a discovery. covery is sought. The above rules, with tlie exception of the last, were pro- mulgated by the supreme court, on the second day of March, in the year of our Lord one thousand eight hundred and forty- two. The last (93d) rule was promulgated December term, 1850. INDEX TO RULES IN EQUITY. ft* it References in italics are to the notes : otherwise to the rules. RULB. Affidavit : Necessary for attachment on execution 8 " writ of assistance on execution 9 When necessary to prove service of process 15 " to amend bill 29 Must accompany demurrer and plea 31 Before whom to be made 91 W/ien can not he read 91 Affirmation : "Wlien may be substituted for an oath. ; 91 Amendment : Motion for, a motion of course -. 5 " power of judge to suspend, &c 5 To bill, when of course and without costs 28 " when on payment of costs 28 Statute and decisions respecting 28 After plea, answer and demurrer, how made 29 After replication, how made 29 Order for, when deemed abandoned 30 \Vlien on order without notice 29 506 INDEX. Rule- Amendment (continued) : When on order, with notice 29 Of note at foot of bill, an amendment of bill 42 Of answer, when of course 60 " when on motion and notice 60 " when to be separately engrossed 60 Decisions respecting 60 Of decree, when on petition without a hearing 85 Answer : May be filed at any time 1 Before whom to be sworn 59 Within what time to be filed and penalty of not filing .... 18 How may be compelled 18 Time to file may be enlarged 19 Taxable costs on, how regulated, 25 Being in, how bill can be amended 29 When to accompany a plea 32 Plea overruled, when to be put in 34 When need not be to all the matters in the bill 39 May insist upon all matters in bar of, or to the merits, which could have been plead *. . - 39 Need not be to other matters than must have been an- swered in filing plea in bar 39 Decisions respecting 39 What interrogatories need not regard 44 Alleging matters requiring amendment of bill, on what terms bill may be amended 45 Need not be specially replied to 45 Decisions, as to how far evidence 39 Supplemental or new, when defendant may put in 46 " effect of default in filing the same. . 46 " time to put in may be enlarged. . . 46 How sworn to, and tvhen need not he 59 Amendment of, when of course 60 " when on motion and notice 60 " when must be engrossed 60 INDEX. 507 RCLB. Answer (continued) : Dccisiofis respecting, GO When may be excepted to for insufficiency Gl VVlien deemed and taken to be sufficient Gl Decisions respecting Gl Exceptions to, when may be set down for a hearing, G3 " when deemed abandoned G3 " allowed, how defendant to answer 64 " overruled, defendant entitled to costs 65 Exceptions to, allowed, plaintiff has costs 65 Exceptions to, allowed, further answer how compelled ... 64 Separate ones by same solicitor, costs on 62 To cross bill, when to be put in 72 To cross bill, how may be used by original defendant 72 Reference to master for scandal or impertinence, how made 27 Reference to master, order for, when deemed abandoned . 27 Appearance : Of defendant, when must be made 17 Of defendant, how entered 17 Decisions respecting 17 Of nominal parties, rule as to 54 Of nominal parties, effect of 54 Arrest : For disobeying execution, when ordered 8 For disobeying execution, how discharged from 8 Of defendant to compel an answer, when made IS Of defendant to compel an answer, how discharged from . 18 Assistance : Writ of, when proper process 7 Writ of, to enforce order for delivery of possession 9 Attachment : Writ of, when proper process 7 To compel obedience to execution 8 508 INDEX. Rule. Attachment (continued) : To compel answer 18 To compel better answer after exception 64 By masters to collect compensation — 82 Bill : May be filed at any time 1 Before whom may be sworn 59 Motion to take as confessed, a molion of course 5 Motion to take as confessed, may be made at any time ... 5 Must be filed before subpcena can issue 11 Pro confesso, when plaintiff entitled to take 18 " decree on, when may be made 18 " when decree may be set aside 19 Decisions respecting 19 Introductory part, form of 20 Common confederacy clause — charging part and jurisdic- tion clause may be omitted 20 Not demurrable for such omissions 21 Stating part, what may contain 21 Prayer of, for special and general relief 21 Decisions respecting 21 Must specially ask for injunction, ne exeat, or other spe- cial order 21 Necessary persons not made parties to, reason of omission must be stated 22 Necessary parties to, beyond jurisdiction, what prayer must contain, relating thereto 22 Must be signed by counsel 24 Decisions respecting 24 Taxable costs on, how regulated 25 Must be brief and succinct 26 Decisions resj^ectitig 26 To contain no unnecessary recitals, or impertinent or scan- dalous matter 20 If does, may be referred to a master 26 Not to be referred, unless excej^lions particularly taken in writing and filed 27 INDEX. 509 Rule. Bill (continued) : Ordt-r of reference, when deemed abandoned 27 Amendments to, when of course, and without costs 28 " when on payment of costs 28 " after plea, answer or demurrer 29 " after replication 29 " by amending note at foot of 42 " when copy to be served on defendant ... 28 Order to amend, when deemed abandoned 30 How may be amended, when answer makes amendment necessary 45 Amended after answer, a new answer necessary 46 May be plead and demurred to, or answered, in whole or in part, at the same time 32 May be dismissed if plea is not replied to, or set down for argument 38 To specify in a note the interrogatories each defendant is to answer 41 Office copy, what interrogatories need not contain ; . . . 41 Note at foot of same, a part thereof 42 Introduction to interrogating part thereof 43 Need not he on oath 43 Revivor, when proper 5Q Revivor, what need not be set forth in 58 Decisions respecting 56 Supjilemental, when proper 57 " what need not be set forth in 58 " when defendant must answer 57 May be dismissed if replication is not filed QQ When to contain special interrogatories 93 Clerk : In attendance on first Monday of each month at ofiice, for what purpose 2 To keep order book, and enter all orders therein 4 When to issue ^vI•it attachment on execution 8 Wlien to issue writ assistance 9 When to issue writ subpa?na 12 510 INDEX. Rule. Clerk (continued) : When to enter a suit as pending 16 To enter appearance of defendant 17 Supreme court, to whom to send equity rules 92 Office, for what purpose always open 1 Office, for what open on first Monday of every month 2 COMMMISSIONS : May be issued and returned at any time, 1 To take testimony, when and how obtained 67 Interrogatories and cross interrogatories on 67 When may be executed on oral interrogatories 67 Interrogatories, how settled 67 All of the interrogatories must he answered 67 Within what time must be executed 60 AVhen master may order to issue 77 Notice of, to tvhom 68 Wlien adverse party entitled to, having had no notice of former commission 68 Statute and decisions respecting 67, 68, 69 To take testimony de bene esse 70 Form of last interrogatory in 71 Commissioners : Who must be named by 67 Duties of, (l^c, and decisions respecting 67 Fees of. 67 Compensation : Of masters, how fixed and collected 82 Complainant : Seeking discovery to interrogate defendant 93 Contempt : To refuse to obey orders of a master 78 Decisions respecting same generally 7 INDEX. 511 RULB. Costs : Plaintifi'to have, on vacating order pro conf'esso !'• On bill of answer, how fixed 25 On reference of exceptions to bill, when to plaintiff" 2G On reference of exceptions to bill, when to defendant 26 When plaintiff" to pay, on amendment of bill 28 When to plaintiff", demurrer and plea overruled 34 When to defendant, demurrer and plea allowed 35 When nominal party entitled to 5 i When to same solicitor, on separate answers 02 On exceptions to answer, when allowed 65 On exceptions to master's report, when and how allowed . . 84 Counsel : To sign bill, and eff"ect of so doing 24 To certify demurrer or plea 31 To sign petition for rehearing 88 Courts : General decisions concerning Pre. For what purposes always open 1 Statute relating to 1 Any judge of same power to make rules, &c., as the court 3 Statute relating to 3 Can two he lield at same time, at same place 3 Orders and decrees of, how obedience to compelled 7 May appoint persons to serve process 15 May enlarge time to comply with an execution 8 May open order pro confesso, on what terms 19 Decisions respccti/ig 19 When may proceed in a cause, if all proper persons are not made parties 47, 48 What decree can make in such a case 47, 48, 53 Decisions respecting 47, 48 May appoint standing masters, or pro hoc vice 82 Decisions respecting 82 May regulate master's compensation 82 512 INDEX. Rule- Courts (continued) : May appoint guardian ad litem and prochein amis 87 May make and alter rules of court 89 Decisions respecting 89 Cross-bill : Need not be answered until original bill 72 Answer to, how may be used at hearing 72 Cross-examination : Under a commission, when may be had 68 Cross-interrogatories : To commission, when must be filed 67 Death of party : How cause may be revived 56 De bene esse : Witnesses when may be examined before answer 70 Upon what terms may be examined 70 Decrees : Interlocutory or final, how enforced 7 How enforced against those not parties 10 When not to prejudice the rights of absent parties 47, 48 Saving rights of absent parties, when made 53 For an account, when to be referred to a master 73 Form of commencement of 86 Not to contain any of the pleadings 86 When may be amended without a hearing 85 Decisions respecting 86 Defendant : Subpoena against, may be joint or several 12 Appearance day of, when 17 Appearance, how entered 17 May appear personally or by a solicitor 17 INDEX. 513 Rule. Defendant (continued) : When to file plea, demurrer or answer 18 May be compelled to answer by attachment 18 IIow discharged from arrest on attachment 18 When liable to costs, bill not scandalous 26 Must verify plea or demurrer 31 When may plead and demur, and how 32 When to accompany plea with answer 32 Decisions respecting 32 When to pay costs, demurrer or plea overruled 34 When to have costs, demurrer or plea allowed 34 To answer, plea or demurrer overruled 34 Rule that he must answer fully, when not to apply 39 May answer all matters in bar of, or to the merits which he could avail himself of by plea 39 Need not answer other matters than if he had answered with plea 39 Need not answer such parts of bill, as could protect him- self from by demurrer 44 Suggesting in his answer want of parties, plaintiff may set down the cause on that objection 52 Not appearing when injunction asked for, injunction grant- ed of course 55 Must plead, demur or answer to supplemental bills 57 To answer anew, exceptions to answer allowed 64 May be attached to compel new answer 64 When discharged from such attachment 64 To pay costs, answer adjudged insufficient 65 Need not specially interrogate, except when discovery sought 93 Demurrer : When to be filed, and penalty of default 18 Put in, how bill may be amended 29 Must be certified by counsel before filing 31 When defendant may take 32 May be to whole or part of the bill 32 33 514 INDEX. Rule. Demurrer (continued) : Plaintiff" may sit down for argument 33 Overruled, when plaintiff" to have costs 34 Overruled, defendant to answer, or bill may be taken as confessed 34 Decisions respecting 34 Allowed, defendant to have costs 35 Allowed, when plaintiff" may amend bill 35 Decisions respecting 35 Not bad, because not as broad as might be 36 Not bad, because answer may cover same thing 37 Not set down for argument, truth of deemed admitted — . 38 Deposition : When testimony may be taken by 68 Taken without notice, adverse party entitled to cross ex- amination 68 When to be returned to clerk's office 69 Decisions respecting 67, 68, 69 Discovery : Sought, defendant to be specially interrogated, 93 When sought, how to be obtained 18 Ex PARTE : Cause may be proceeded in, if defendant does not appear 18 Decree, when may be made, defendant not appearing 18 Decree, when deemed absolute 19 When master may proceed, on reference 75 Examination : Of parties on oath, before master 77, 79 Of creditors before master 81 Exceptions : Motion for filing a motion of course 5 To bill, when may be taken 26 " may be referred to master 26 INDEX. 515 Rdlb. Exceptions (continued) : To bill sustained, matter to be expunged 2G " sustained, plaintiflf to pay costs 2G " not sustained, plaintiff" lias costs 20 *' to be in writing, and particular 27 " when must be filed 27 " when deemed abandoned 27 To answer for insufficiency, when may be made Gl " not made, answer deemed sufficient Gl " when plaintiff" may set down for hearing 63 " when deemed abandoned 63 " allowed, defendant to answer fiilly, or bill may be taken confessed 64 " allowed, plaintiff' may have attachment to com- pel an answer 64 " allowed, plaintiff' has costs 65 " overruled, defendant has costs 65 To master's report, within what time to be filed 83 To master's report, when to stand for hearing S3 To mastcr^s report, decisions respcvting 83 To master's report, costs on and how fixed 84 Execution : For payment of money, form of 8 For performance of any specific act, what to contain 8 Not complied with, attachment may issue 8 When followed by writ of sequestration 8 Statutes, and decisions respecting 8 Guardian ad litem : When may be appointed by court 87 Suits may be in their name 87 Heir at law : When not a necessary party to a bill 50 AVlicn plainllff' may make a party 5 516 INDEX. RULB. High court of chancery : Rules of, when and how far applicable 90 Decisions respecting 90 Husband and wife : To be included in one subpoena 12 Injunction : Must be specially asked for in prayer for relief 21 Need not be asked for in prayer for process 23 Granted of course, defendant not appearing 55 Special, grantable only on notice 55 Awarded in vacation, how long continues 55 Statute and decisions respecting 55 Impertinent matter : In bill, exception taken, may be referred to a master 26 " if found, to be expunged 2Q " if found, plaintiff to pay costs 26 " not found, plaintiff has costs 26 " exceptions to be in writing and particular, or no reference ordered 27 " exceptions when to be filed 27 " order to refer exceptions when deemed abandoned 27 " decisions respecting 27 Interlocutory proceedings : May be taken at any time 1 Disposed of, first Monday of every month 2 May be made and directed by a judge in vacation 3 Notice to show cause, when made by judge in vacation. . 3 Interrogatories : In bills, to be numbered 41 Note at foot of bill to specify those each defendant is to answer 41 Which ones, office copy of bill need not contain 41 On commissions to take testimony 67 INDEX. 517 Rdlb. Interrogatories (continued) : On coniTnissions, may be written or oral C7 On commissions, notice of" filing 67 Cross, on commissions, when to be filed 07 On commissions, form of" last one 71 Decisions respecting 07, 71 Issue : Cause at, on filing general replication 66 Joint debtors : Need not all be proceeded against 51 Judge : Single, same power to make rules, &:c., as court 3 " may make rules, &:c., in vacation, and term 3 " but upon notice to adverse party 3 Judges : May abridge time of rules, &c., when solicitors for all the parties reside in or near the same town 4 Marshal : Or his deputy to serve process generally 1 .5 Decisions respecting service 15 Master : Reference to, on exceptions to bill for scandal and imper- tinence 26 On what terms such reference will be made 27 When such order deemed abandoned 27 To determine when same solicitor to have costs for sepa- rate answers 62 Reference to on a decree for account, when 73 Decisions respecting 73 Within what time such a reference to be made 74 Duty of party procuring such reference 74 When adverse party may proceed at expense of other party 74 518 INDEX. RULB. Master (continued) : Duties of, on such a reference 75 When may proceed ex parte or adjourn 75 May be ordered to speed his proceedings 75 Report of, on such a reference, what to contain and what not 76 Decisions respecting 76 May regulate all proceedings before him 77 May examine parties under oath 77 Decisions respecting 77 May require production of documents 77 May examine witnesses, viva voce 77 May order commission to issue to take testimony 77 May subpoena witnesses within the district 78 Decisions respecting 78 Accounts of parties, how brought before 79 Accounting party may be examined before 79 May use affidavits, depositions and documents previously made or used in court 80 May examine creditors and others 81 To take down such evidence, if required . - 81 Standing ones, or pro hac vice, may be appointed 82 Compensation of, how determined 82 Can not retain his report as security 82 May have attachment to collect his fees 82 Master's report : When to be returned to clerk's office 83 Within what time to be excepted to 83 When deemed confirmed 83 Exceptions to, when to stand fur hearing 83 Decisions resp>er,ting 83 Exceptions to, allowed or overruled, how to carry costs. . 84 Motions : Interlocutory may be made at any time 1 Interlocutory received and disposed of on first Monday of every month 2 INDEX. 519 Rdlb. Motions (continued) : Of course, what so regarded 5 Of course, may be altered, &c, on special cause 5 Not of course, to be made and entered on a rule day. ... G " to be heard on next ride day 6 " when may be heard ex parte G To set aside order taking bill confessed, on what terms granted 19 To amend bill, after plea &c. filed, how granted 29 To amend answer, after replication, how granted GO Ne exeat : Eill to specially ask in prayer for relief 21 Need not be asked for in prayer for process 23 Notice : To show cause on interlocutory proceedings, when 3 Of orders, when entry in order book sufficient 4 To solicitors, when good for parties 4 To parties, when must be personal 4 Of orders, &:c., length of when may be abridged 4 For injunction, when must be given 55 For injunction, when need not be given 55 To amend bill, after replication 29 To withdraw replication 29 To amend answer, after replication 60 Upon issuing commission to take testimony G7 Of hearing before a master 75 Oath : When affirmation in place of 91 Orders : Interlocutory, may be made at any time 1 Interlocutory, may be disposed of on first Monday every month 2 To be entered in a book 4 520 INDEX. Rdlb. Orders (continued) : What regarded as of course 5 AVhat regarded as not of course 5 How enforced against parties and others 7, 10 How enforced in favor of those concerned 7, 10 Pro confesso, on what terms may be set aside 19 To refer bill for scandalous and impertinent matter, how obtained 27 When such order deemed abandoned 27 Order book : To be kept by clerk 4 To be always open for inspection 4 Entry of orders in, when notice to parties 4 Party : Death of, how suit revived against representatives 56 " representatives may be cited to show cause — . 56 " effect if representatives do not show cause 56 Procuring reference to master, duty of 74 Parties : When notified by notice to their solicitors 4 When may be arrested for disobeying execution 8 When proper persons not made, reasons to be given 22 Out of jurisdiction, prayer respecting 22 Proper persons not made, when court may proceed. ... 47, 48 Very numerous, when need not be made parties 48 Decree not to prejudice rights of absent ones 47, 48 Statute and decisions respecting 47, 48 When may be represented by their trustees 49 Decisions respecting 49 Want of may be suggested by answer 52 Proceedings on such suggestion 52 Decisions respecting 52 Proceedings when answer makes no such suggestion 53 Decisions respecting 53 INDEX. 521 IlDLB. Partiks (continued) : Nominal, who are and when need not appear 54 '* effect of appearance of 54 " appearing when to have costs 54 Decisions respecting 54 May be examined by a master on a reference 77 Accounts of, how presented liefore a master 79 May be examined touching their accounts 79 Plaintiff : Wlien may take bill confessed 18 When may have attachment to compel answer 18 Wlien to pay costs, on reference of bill for scandalous and impertinent matter 26 May set down demurrer for argument 33 May take issue on plea 33 When to have costs, demurrer or plea overruled 34 May amend bill, demurrer or plea allowed So When admits truth of demurrer or plea 38 When should make heir at law a party 50 May proceed against one or more persons severally liable 51 When may not amend bill, of course, for want of parties. 52 Bill of, when may be dismissed, for want of parties 52 Decisions respecting 52 When to file replication 66 When may file replication, nunc pro tunc 66 Not filing replication, effect of 66 When may take testimony, before answer 70 Answer to cross-bill, how may be used by defendant 72 Pleadings : May be filed at any time 1 Replication the last 66 Bill, see title Bill. Answer, see title Answer, Replication, see title Replication, 522 INDEX. RVLB. Plea : Must be certified to by counsel 31 Decisions respecting 31 AVhen must be filed, and penalty of default 18 Must be verified 31 Put in, terms of amending bill 29 Within what time may be put in 32 When to be accompanied by answer 32 May be to the whole or part of a bill 32 Plaintiff" may take issue upon 33 Determined for defendant, how far to avail him 33 Dccisiofis respecting 33 Overruled, defendant to answer, or bill may be taken as confessed 34 Overruled, when plaintiff to have costs 34 Decisions respecting 34 Allowed, defendant to have costs 35 Allowed, plaintiff' may amend bill 35 Decisions respecting 35 When not to be held bad 36, 37 If not replied to, deemed true 38 Prochein amis : Suits may be in their name 87 Process : May be issued and returned at any time 1 Decisions respecting 7 Same kind issues in favor of all, whether parties or not . . 10 By whom to be served 15 In what district may he served 15 Prayer for, what to contain 23 Recitals : Not to be made in bills 26 INDEX. 523 RULB. Reference : Of bills for scandal and impertinence 20, 27 When same solicitor puts in separate answer G2 To master, on decree for an account 53-85 See title Master. Rehearing : Petition for, what to contain 88 " must be signed by counsel 88 " when must be verified 88 When will not be granted 88 Decisions respecting 88 Rejoinder : Not required 66 Report of master : When may be hastened 75 What to contain and what not 76 Can not be retained for fees 82 Replication : Filed, terms of amending bill 29 Decisions respecting 29 No special one needed to answer 45 Decisions respecting 45 When to be filed 66 Filed, cause is at issue 66 Not filed, bill may be dismissed 66 When may be filed nunc pro tunc 66 The last pleading 66 Decisions resjjccting G6 Revivor : Bill of, when proper 56 Decisions resjjccting 56 524 INDEX. RULB. Rules : Interlocutory, may be made at any time 1 Interlocutory, may be disposed of first Monday every month 2 To be entered in order book 4 Circuit court may make and alter 89 Decisions respecting 89 High court of chancery, England, when and how far ap- plicable 90 Decisions respecting 90 When to take effect 92 Repeal former ones 92 To whom to be sent 92 40lh, repealed 93 Rule days : First Monday of every month 2 Scandalous matter : Not be inserted in bill 26 Exceptions for, referred to a master 26 When ordered to be expunged 26 When plaintiff to pay costs for 26 When plaintiff has costs on 26 Exceptions to, must be in writing, and particular, or no re- ference ordered 27 When order of reference deemed abandoned 27 Sequestration : Writ of, to compel obedience to execution 8 Writ of, to compel obedience to orders of court 7 Service : When must be personal 4, 7 (n) W^hen may be on solicitor 4 When entry in " order book " sufficient 4 Of subpoena, how made 13 Of process, who to make 15 INDEX. 525 RCLB. Service (continued) : Of process, proof of 15 Of amended bill, when necessary 28 Signature of counsel : To bill, what is understood by 24 Decisions respecting 24 Solicitor : Notice to, when good 4 Of adverse parties, living in same place, time of service may be abridged 4 Appearance of defendant by 17 SuBP(ENA : First mesne process 7 Not to issue until bill filed 11 When returnable 12 Memorandum in, what to contain 12 May issue separate to each defendant 12 To be joint against husband and wife 12 How to be served 13 Extraordinary service on agents ifc 13 May issue toties quoties 14 By whom to be served 15 Proof of service of 15 Return of as served, suit to be entered in docket 16 Suit : When clerk to enter on docket as pending 16 When revived by bill of revivor 56 When revived by supplemental bill 57 Supplemental bill : When proper 57 Defendant to answer &c 57 What need not set forth 5S 526 INDEX. Rule. Testimony : Decisions rcsjjccting 5Qt 58 Either party may take, cause being at issue 67 Commissions to take, how obtained 67 When taken on written or oral interrogatories 67 Statute cifid decisions respecting 67 When by deposition 68 By deposition, when adverse party may cross-examine ... 68 Decisions respecting 68 Notice of taking, to whom to he given 68 Within what time to be taken 69 When time may be extended 69 When can not be read on hearing 69 Publication of, when may be ordered 69 Publication of, when by consent 69 Decisions respecting 69 De bene esse, plaintiff may take, before answer 70 De bene esse, when may be taken 70 Form of last interrogatory 71 How taken by a master on a reference 77 Time : Of notice, to show cause on interlocutory orders, &c 1 AVhen suit is deemed pending 16 Of notices of orders, &:c., when may be abridged 4 Of compliance with execution may be enlarged 8 Within which defendant is to appear 17 Of filing plea, answer or demurrer 18 Of amendment of bills 28, 29 Of amendment of answers 60 Within which to take testimony 69 Of rules going into effect 92 Trustees : May represent their cestui que trusts 49 INDEX. 527 ROLB. Verification : Of answer, before whom may be made 59 Of plea, must be made 31 Of petition for rehearing 88 Writs : Subpcpna, when issues 7 Attaclmient 7, 8 Sequestration 7, 8 Assistance 9 Witnesses : Examination of, under commission 67 " by deposition 68 " de bene esse 70 " before a master 77, 78 Guilty of contempt, not appearing before a master 78 RULKS OF PRACTICE COURTS OF THE UNITED STATES IN CAUSES OF ADMIRALTY AND MARITIME JURISDICTION, INSTANCE SIDE OF THE COURT, PROMITLOATKD BY THE SUPREME COURT OF THE UNITED STATES, IN PURSUANCE OF THE ACT OF 1842, CHAP. 188, § 6. 34 RULES OF PRACTICE, &c. Rule I. No mesne process shall issue from the district "^"^ ' court in any civil cause of admiralty and mari- ^'^^ue •' '' process time iurisdiction, until the libel or libel of infor- notiois- •^ sue, until mation shall be filed in the clerk's office, from ''"^^i 'ii^^'- which such process is to issue. All process shall i''oc«;ss '■ '■ l)y whom be served by the marshal or by his deputy, or ^"^®, where he or they are interested, by some discreet and disinterested person appointed by the court. The district courts, as courts of admiralty, shall be deemed always open for the purpose of filing libels, bills, petitions, an- swers, pleas, and other pleadings, for issuing and retui'ning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules and other pro- ceedings whatever, preparatory to the hearing of all causes pending therein upon the merits. And it shall be competent for any judge of the court, ujuin roasoniiblo nolice to the par- ties, in the clerk's office, or at chambers, and in vacation as well as in term, to nuike and direct, and award all such pro- cess, commissions and iiiti-rlocutory orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the couit. Act 1S42, ch. 188, § 5. 532 RULES OF THE FEDERAL COURTS. Rri.E 1 As to service of process by marslial, see note to equity I'ule ~ No. 15. The district judge is a court, wherever and whenever he pleases. No notice to parties is recjuired ; no previous order is necessary. He constitutes a court whenever he proceeds on judicial business. United States vs. Sc/ii\ Charles, 1 Mar. Dec. 3S2. Conk. Admr. 3G0-365. Conkling defines a "Libel of Information" to be the libel filed by the district attorney of the United States, who "gives the court to understand and he informed^' of the breach of the laws on which the suit is founded. Conk. Adm. 417, 7i. But he further remarks a few pages later, that the pleading filed by the district attorney, by which the suit is commenced, when the suit is on the common law side of the court, is called sim- ply an information ; and when on the admiralty side, a libel of information. Conk. Adm. 420, n. This latter view is corroborated by Dunlap, who speaks of an inforrmation, as a proceeding at common law, which may terminate in questions for a jury ; but of a libel of information as a proceeding founded on the practice of the civil law, and in which all the questions are referred to the court. Dun Adm. 2d ed. 408, n. See also Benedict's Adm. Prac. § 372. [The inability of the editor to avail himself of the late valu- able work of E. C. Benedict, Esqr., on Admiralty Jurisdiction, until this compilation was placed in the hands of the printer, must be the excuse for the few and very general references to that work.] KULE 2. Mesne process in fcrsonam ; nature ot. Rule IL In suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant, in the nature of a capias, or by a warrant of arrest of the person of the defendant, with a clause therein, that if he can not be found, DISTRICT COURTS IN ADMIRALTY CASES. 533 to attach his goods and chattels to the amount ^^^^ '•■ sued for, or if such property can not be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named there- in ; or, by a simple monition, in the nature of a Orbymo- ' ' "^ ^ ' _ union. summons, to appear and answer to the suit, as the libcllant shall, in his libel or information, pray for, or elect. The process of attachment may issue, wherever the defend- ant has concealed himself, or absconded from the country, and the goods to be attached are within the jurisdicrion of the ad- miralty ; it may be against his goods and chattels, and his cre- dits and effects in the hands of third persr^ns ; it applies even where the same goods are liable to the process f)f foreign attach- ment, issuing from the courts of common law; it applies to the case of a piratical capture, and the civil remedy is not merged in the criminal offence ; in case of default, the property attached may be condemned to answer the demand of the libellant ; the property to be attached need not be specified in the libel ; and the attachment may issue simultaneously with the monition, though it can not issue without the express order of the judge, Monro vs. AhneiJa, 10 Whea. 473 ; 6 Cond. 190. Attachments may issue to com])el appearance, both in cases of maritime torts and contracts, Ibid. Also see McGrath vs. Can- dalero, Bee. 64 ; North vs. Brig EagJe, Bee. 78 ; Bonysson vs. Miller, Bee. 186; Del. Col. vs. Arnold, 3 Dall. 333; 1 Cond. 150. They may issue against the goods or debts of an absent per- son to make him a party to the suit. Bee. 186. The process is drawn and signed by the clerk, and may be tested of the day on which it is issued, and made returnable on any future day. Con/,-. Advi. 473. The attachment against the goods and chattels of the defend- ant is the simple attachincnt ; that again.->t his credits and effects is called -a foreign attachment. Ibid, 478. 534 RULES OF THE FEDERAL COURTS. Ri i.E J. The monition should be sei-\'ed on the defendant personally ; when it is made by copy, the marshal should state the mode, and will be held valid or otherwise according to the degree of pro- bability of its actual receipt by the defendant. Conk. Adm. 486-489 ; Betfs' Adm. Prac. 33; Dun. Adm. Pmr. See also Rule 48, which abolishes imprisonment, and there- fore arrest on process issuing out of the admiralty court in all cases where, by laws of the different states, it is abolished upon similar or analogous process issuing from a state court. See also Benedict's Adm. Prac. §§ 407, 433. Rule IIL RiLK 3. jj^ oil suits in personam, where a simple war- it. suits m rant of arrest issues and is executed, the marshal personam i ^r» • • /» xl wheuuKu- may take bail, with sufficient sureties, irom the shal iiiav ... take bail, party arrested, by bond or stipulation, upon con- dition that he will appear in the suit and abide by all orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final decree rendered therein, in the court to which the process is returnable, or in any appel- siimmary late court. And upon such bond or stipulation, bai bund, summary process oi execution may and snail be issued against the principal and sureties, by the court to which such process is returnable, to en- force the final decree so rendered, or upon appeal, by the appellate court. By Rule 48, passed at the December term, 18-50, it is pro- vided tlial in suits in perHonam, bail shall be taken in those cases only in which it is required by the laws of the state, where an ariest is made upon similar or analogous process, issuing from the state courts. Tlie word "bond," in the third, fourth and sixth Rules, sup- DISTRICT COURTS IN ADMIRALTY CASES. 535 posed to mean the instrument known under that appellation in '" '^ •"• ihc connnon law courts. Conic. Adin. 450-455. The officer taking a IkhhI or sli])ulati(>u is hound to have re- gard to the sufficiency ot" the sureties, who may he sworn, and the stipulation is to be returned to the court. Act 1847, c/t. 55 ; Conk. Adm. 456. And the sureties are not relieved from their liability either by the surrender of their principal, or the death of the party. Conh. Adm. 458; citing 2 Bro. Cir. and Ad. Law, 412; and IlaIVs Adm. Prac. 25, n. Such bonds or stipulations may be enforced summarily as well against the sureties as the principal. Conk. Adm. 459, 774. " Summar>/" means ''instantaneous." Gahics \s. Traris, S Legal Obs. 48. See also. United States Sc?t/: Little Charles, 1 Mar. Dec. .382. The bond should be generally taken in double the sum for which the action is brought. In the stipulation, theje is usu- ally inserted the amount claimed by the libellant, and one hun- dred dollars to answer costs. The security, whether in one form or the other, is to the libellant by name, and is transmitted to the clerk. Conk. Adm. 475, 47G. See also Rule 48, as to cases in which im])risonment is abol- ished. Previous to the passing of Rule 48, it had been held by Judge Betts of the district court for the southern district of New- York, that the act of 1841, abolishing iijiprisonment for debt, on pro cess issuing out of the L^nited Stales courts, in states where imprisonment was abolished on process issuing out of state courts, did not apply to proceedings in courts of admiralty. Gaines vs. Travis, 8 Legal Obs. 45 ; Gardner vs. Isaacson, 8 Legal Obs. 77. A contrary opinion had, however, been given by Judge Mc- Caleb of the district court of New-Orleans. United Sfatr,s vs. Burke and ah. Manuscript, Jan. 11, 1849. See also Benedict's Adm. Prac. §§ 422, 424, et xeq. 536 RULES OF THE FEDERAL COURTS. RULE 1 When ut- tHcbnitMit in perso- nam may he dis- solved. Rule IV. In all suits in personam, where goods and chattels, or credits and effects are attached, un- der such Avarrant autliorizing the same, the at- tachment may he dissolved, by order of the court, to which the same warrant is returnable; upon the defendant, whose property is so attached, giving a bond or stipulation, with sufficient sure- ties, to abide by all orders, interlocutory or final, of the court, and pay the amount awarded by the final decree rendered in the court to which the process is returnable, or in any appellate Summary , i i i • i • process on court ; aud upou such bond or stipulation, sum- mem mary process of execution shall and may be is- sued against the principal and sureties, by the court to which such warrant is returnable, to en- force the final decree so rendered, or upon appeal by the appellate court. The "order of court" necessary to dissolve an attachment is obtainable only on application. The application, however, may be made at any time, and sliould be by peliliou, briefly setting forth the case. The application may be also ex j>arte. The party obtaining the "order" must serve a certified copy on the marshal, though the better and safer way, as well for the party and the marshal, would be to sue out a writ of su- persedeas, in analogy to the English practice. Conk. Adm. 484, 485. See also Act 1847, ch. 55. See also Benedict's Adm. Prac. §§ 428-434. DISTRICT COURTS IN ADMIRALTY CASES. 537 Rtlk V. Bonds or stipulations in admiralty suits may '^^^'^ be oivcn and taken in open court, or at chambers, J^/i";;^\y""^ or before any commissioner of the court who is 'i';"«. ^^y authorized by the court to take affidavits of bail '";')• '•« and depositions in. cases pending before the court. This aiul the tliiity-fiflli nilc ;in,' sinular, ;iii(l prohal)ly but one of them was in fact intended to have been promulgated. The last one is much the most complete, and includes all the ground covered by this, and therefore may be regarded as the effective rule. This same view has also been taken by Judge Conkling in his Adm. Prac. 450-453. Rule VI. In all suits in personam, where bail is taken, R"^ ^ the court may, upon motion, for due cause shown, wimi bail reduce the amount of the sum contamed m the .educed in I'll "' perso- bond or stipulation tJiereior; and m all cases nam; or where a bond or stipulation is taken as bail, or upon dissolving an attachment of property as aforesaid, if either of the sureties shall become insolvent pending the suit, new sureties may be required by the order of the court to be given, upon motion and due proof thereof The practice prescribed by this rule is in accordance with the doctrine laid down in ClarJces Praxis, title 15, 16. See also Conk. Adm. 457, 458. Dunlajy's Adm. 143. Bctfs' Adm. Prac. Though the rule only provides for reducing bail, after it has actually been taken, and for requiring now security, for sub- sequent insolvency, it is presumed it is broad enough to reach ties ro quired. 538 RULES OF THE FEDERAL COURTS. ri:le c. the case of a person imprisoned, or held in custody on a de- mand of exorbitant bail or when insufficient security has been taken through imposition or mistake. Conk. Adm. 458. Rule VIL RIILE7. ii^ y^i|s ii^ personam, no warrant of arrest, Warrant either of the person or property of the defendant, ill perso- shall issue for a sum exceeding five hundred dol- uiay issue, lars, uuless by the special order of the court upon affidavit or other proper proof showing the pro- priety thereof. Conk. Adm. 474, 475. See also Benedict's Adm. Prac. § 415. Rule VIII. Rt;LE 8. jn all suits in rem against a ship, her tackle, Suits ill sails, apparel, furniture, boats, or other appurte- lh\\k nances, if such tackle, sails, apparel, furniture, tackle, , , • xi • &c.. how boats, or other appurtenances are m the posession obtaiued; -, n ,i • i ^i 4 possession or custody of any third person, the court may, cour.^'" 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 olficer, if upon the hearing, the same is required by law and justice. See Benedict's Adm. Prac. § 440. Rule IX. — In all cases of sei/.ure, and in other suits and Sizure,'^ proceedings in rem, the process, unless otherwise process in pj-Q^ij^j f^^ }yj statutc, shall bc by warrant of DISTRICT COURTS IN ADMIRALTY CASES. 539 arrest of the ship, goods, or other thing to be klle j. arrested ; and the marslial shall thereupon arrest i„„,~^,.. and take the ship, goods, or other tiling into his ^.^eci't'e possession for safe custody, and shall cause pub- ^^'^,■,^,^1 lie notice thereof, and of the time assio^ned for the "•'!''^^ ^" ' o give. return of such process and the hearing of the cause, to be given in such newspaper within the district as the district court shall order, and if Ihere is no newspaper published therein, then in such other public places in the district as the court shall direct. If the property named in the warrant is in the custody of the law under process from a state court, the marshal may still arrest the same property, by virtue of the process in rem, and supersede the possession of the sheriff. A maritime lien or privilege is prior to any right acquired by a judgment creditor, and the right of any such credilf)r is only to the surplus remaining after the satisfaction and liquida- tion of such prior lien. The Flora, 1 Hagg. 298. Certain logs of Mahoganij, 2 Sum. 5S9. Poland et al vs. Freight and Cargo of Brig Sj?artan, 1 Ware, 134, 137. But where persons have equal claims and liens in rem, and some proceed in the state courts, and some in the admiralty, and the district courts and state courts have concurrent juris- diction, the tribunal first exercising jurisdiction takes possession of the thing. The Ship Robert Fulton, 1 Paine, 620; see also Conh. Adm. 497-505. What are "appurtenances." The Dun- dec, 1 Hagg. i09. As to the exception, "unless otherwise provided for by statute," see Act 1844, ch. 8, directing summary proceedings in the case of seizure of property of a less value than one hundred dollars. By tlie Revenue Act of 1799, ch. 22, § 89, such notice must be fourteen days ; though in private suits, it has not been the 540 RULES OF THE FEDERAL COURTS. RULEO. practice of posting the notice "near the place of trial," that is, on or near the court house door. See also, Conic. Adm. 489-496. Rule X. RULE 10. In all cases where any goods or other things Perisha- arc arrcstcd, if the same are perishable, or are lia- ble goods, how may ble to deterioration, decay, or injury, by being be sold ; 1 . , . , T 1 • 1 detained in custody, pending the suit, the court may, upon the application of either party, in its discretion, order the same, or so much thereof, to be sold, as shall be perishable or liable to depre- ciation, decay, or injury, and the proceeds, or so much thereof as shall be a full security to satisfy in decree to be brought into court, to abide the or may I e cveut of tlic sult ; or tlic court may, upon the ap- to claim- pHcatiou of the claimant, order a delivery thereof hisglvh"' to him upon a due appraisement to be had under tion" ^ 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 the appellate court, if any appeal intervenes, as the one or the other course shall be ordered by the court. Whether this rule applies to any other than perishable pro- perty. Qucre ? Conk. Adm. 442, n. It does not apply to vessels, as they are provided for by the following rule. Either ])arly may make the application ; and when the op- posite parly is not in court, the application should be on rea- sonable notice, Conh. Adm. 485. DISTRICT COURTS IN ADMIRALTY CASES. 541 A judge in vacation nuiy exercise the same power and m '■': 1(>. The RII.k i,' Jerusalem, 2 Gall. 345. In tlio United States this claim (^xists only in cases of foiciiru ships, or ships of one state furnished in another. La?iexs. Brig President, 4 Wash. 4o3. The Levi Dearborn, 4 Hall's Am. L. .Tour. 88. The Robert Fulton, 1 Paine, G20. The Aurora, 1 Whea. 105; 3 Cond. 501. The Nestor, 1 Sum. 73. But such a lien may exist in a home port, if the ship has been falsely represented by her owners as a foreign ship. The St. Jngo de Cuba, 9 Whea. 409 ; 5 Cond. 631 ; and where a lien is given by the local law ; The General Smith, 4 Whea. 438; 4 Cond 493. Pnjroux vs. Hoicard, 7 Pet. 324. The Jerusalem, 2 Gall. 345. The Fvlton, 1 Paine, 620. A New Brig, (lilpin, 473. But if tlie material man has given an exclusive per,sonal credit to the master, he can not afterwards resort to the ship. The Nestor, 1 Sum. 73. See also as regards material men, Rainsaij vs. Allcgre, 12 WTiea. 611 ; 6 Cond. 667. Pritchard vs. Lady Horatio, Bee* 167. -S///> Fortitude, Cir. Ct. Boston, 1838. Brig Sjmrtan, Ware, 149 Shejmrd vs. Taylor, 5 Pet. 675. Schooner Ma- rion, 1 Sto. 68. Rule XIII. In all suits for mariners' wages, the libellant ^^'^■'^ ^^• may proceed against the ship, freight, and mas- Suits for tor, or against the ship and freight, or against the against whom aud owner or master alone in personam. what. Over the subject of seamen's wages, the admiralty has an undisputed jurisdiction, in rem as well as in personam ; and whert'ver the lien exists and attaches upon the proceeds, it is the familiar practice of the court to exercise its jurisdiction by way (»f monition to the parties holding the proceeds. Shephard vs. Taylor, 5 Pet. 675 ; Pitman vs. Hooper, 3 Sum. 50. Seamen have a fourfold remcdv for the recovery of their 544 RULES OF THE FEDERAL COURTS. RULE 13. wages, against the ship, against the master, against the owner, and against the freight. Abb. on SJiijh ed. 1846, 781 ; Bronde vs. Haven, Gilpin, 592; ShcjyJiard vs. Taylor, 5 Pet. 675; Broicn vs. LuU, 2 Sum. 443 ; Pitman vs. Hooper, 3 Sum. 50. The lien will follow the ship and proceeds into whose hands soever they may come, and takes priority of all other claims. Brown vs. Lull, 2 Sum. 443 ; Lewis vs. I'he Elizabeth and Jane, 7 Amer. Jur. 30 ; TJic St. Jago de Cuba, 9 Whea. 409 ; 6 Cond. 631; Kent Com. 3d ed. 197; The Manj, 1 Paine, 180; The Eastern Star, Ware, 185. But the lien does not exist when the voyage is illegal. Brig Landon Cheeves, 2 Mason, 58 ; The St. Jago de Cuba, 9 Whea. 409; 6 Cond. 631; The Vanguard, 6 Rob. 207 ; The Lean- der, Edw. 35. The court has no jurisdiction except where the service is substantially performed on the sea ; but the commencement or termination of the voyage may be beyond the reach of the tide. The Thomas Jefferson, 10 Whea. 428 ; 6 Cond. 173 ; The Steamboat Orleans, 11 Pet. 175. See also, The Sydney Cone, 2 Dod. 14. Each seaman may sue separately. Oliver et. al. vs. Alexan- der et. al., 6 Pet. 143. Mariners, include the officers and seamen, surgeons, carpen- ters, coopers, stewards, cooks, women as well as men, the pilot, deck hands, engineer and firemen, but not musicians. The service rendered must pertain to navigation. Conic. Adm. 71, 72. See also, as to wages, above cases, and 'Philips vs. The Thomas Scattergood, Gilpin 1 ; L'Arina vs. The Exchange, Bee. 198; L'Arina vs. Manwa? ing. Bee. 199; Hainmond ws. Essex, F. and M. Ins. Co., 4 Mason 196 ; Bronde vs. Haven Gil. 592; and generally Curtis Ad?n. Dig. 26-31 and 508-525; and Conk. Adm. 71-123; Kent's Com. 6th ed. 1, 379; 3d, 186-198, See also, Act 1790, ch. 29 ; Act 1803, ch. 9 ; Act 1813, ch. 2 ; Act 1840, ch. 23. DISTRICT COURTS IN ADMIRALTY CASES. 545 Rule XIV. In all suits for pilotage, the libcllant may pro- ^ivle^xa. coed arainst the ship and master, or against the Sni's for ~ pilotage ship, or against the owner alone, or the master against whum and alone, in personam. what. Suits for pilotage on the high seas, and on waters navigable from the sea, as far as the ebb and flow of the tide, are within the admiralty and maritime jurisdiction of the United States. The Atme, 1 Mas. 508. Hobart vs. Drogan, 10 Pet. 108. Ilyer vs. Schr. Wave, 7 Leg. Obs. 97. If such a service is performed on the inland waters of the United States, an action would also probably lie, under the act extending admiralty jurisdiction upon the lakes and the waters connecting the same. Act 1845, ch. 20. No action lies for piloting a foreign vessel into an enemy's port. The Benjamin Franklin, 6 Rob. 350. See also Act 1789, ch. 9, § 4. Act 1837, ch. 22. Conh. Adm. 226, 232. Curtis' Adm. Dig., lit. Pilotage. Kent's Com. vol. 3, p. 176, n. Dun. Adm. 2d ed. 51. Rule XV. In all suits for damage by collision, the libel- R^le 15. lant may proceed against the ship and master, Suits for _ coliisiou, or against the ship alone, or against the master against whom and or the owner alone, in personam. what. In cases of collision, happening upon the high seas, or within the ebb and flow of the tide, as far up a river as the tide ebbs and flows, though it may be iTifra corpus co?nitatus, courts of admiralty of the United States have jurisdiction. Waring vs. Clarh, 5 Howard, 441. Conh. Adm. 21. Dun. Adm. 2d ed. 51. The jurisdiction has been asserted when damage has hap- pened to a vessel lying at a wharf. Livingston vs. The Ex- 35 546 RULES OF THE FEDERAL COURTS. RULE 15. 2^rcss, 6 Legal Obs. 401. See also cases in same court, (South. Dist. New York.) Nangatuch Nav. Co. vs. St?u. Bt. Rhode Island, Ibid. 12 ; and Wells vs. The Bay State, Ibid. 198. As to the liability for damages, see The Leopard, Davies 193. Peters vs. Warren Insurance Company, 1 Law. Rep. 281. Lowry vs. Steamhoat Portland, Ibid. 313. Clapp vs. Young, 6 Law. Rep. 111. Rogers vs. Brig Rival, 9 Law. Rep. 28. The Sciota, 1 Law. Rep. N. S. 16. Hale vs. Washington Ins. Compa7iy, 2 Sto. 176. Smith vs. Condry, 1 How. 28. The burden of proof lies on the libel! ant. Conk. Adm. 303. The Catharine of Dover, 2 Hagg. 145. Crews of the vessels concerned are admitted as witnesses, ex necessitate rei, Ibid. The Celt, 3 Hagg. 321 ; and see The Betsey Caines, 2 Hagg. 28. See also generally Kent's Com. vol. 3, p. 230, 302, n. Conk. Adm. 298-312. Dun. Ad?7i. 32, 51, 265. Cur. Adm. Dig. tit. Collision. RULE 16. Suits for assaalt &c., against whom. Rule XVI. In all suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in perso- nam only. Courts of the United States, proceeding in admiralty, have jurisdiction in cases of marine torts, in personam and in rem. Manro vs. Almeida, 10 Whea. 473 ; 6 Cond. 190, citing Maley vs. Shattuch, 3 Cra. 458 ; 1 Cond. 597 : Murray vs. Charming Betsy, 2 Cra. 64 ; 1 Cond. 358 : The Apollon, 9 Whea. 362 ; 5 Cond. 612. Conk. Adm. 312. Dun. Adm. 49. Such torts however must be committed on the high seas, or within the ebb and flow of the tide. Thomas vs. Lane, 2 Sum. 1. Of torts committed by the master on a passenger. Cham- berlain vs. Chandler, 3 Mason, 242. The Ruckers, 4 Rob. 73. Roberts vs. Dallas, Bee. 239. See also Plummer vs. Webb, 4 Mason, 380. The Betsey Caines, 2 Hagg. 28, and n. DISTRICT COURTS IN ADMIRALTY CASES. 547 See also Conk. Adm. 312-334. Dun. Adm. 49, 50, Cur. rlle ic Adin. Dii!. tit. Turts. Ad 1835, ch. 40, — Rule XVII. In all suits against the ship or freight founded Rur.c 17. upon a mere maritime hypothecation, either ex- suits for press or implied, of the master, for moneys taken cation up in a foreign port, for supplies, or repairs, or Nvi'iat and wliuui. other necessaries for the voyage, without any claim of marine interest, the libellant may pro- ceed either in rem or against the master or the owner alone in personam. To constitute a right to liypotliccate the ship, there must be an urgent necessity. O'Hara vs. SJiip Mary, Bee 102. Lie- bart vs. Ship Emperor, Bee. 339. Turnhull vs. Ship Entcr- prize. Bee, 345. Forbes vs. Brig Hannah, Bee. 348. The Aurora, 1 Whea. 96 ; 3 Cond. 501. Sloan vs. McMillan, Bee. 250. The different states are foreign states. Selden v. Hendrick- son, 1 Mar. Dec. 396. Hypothecation can not be to a consignee. Bee. 339. See also, Patton vs. The Randolph, Gilpin, 457. Hurry vs. Sliip John Sf Alice, 1 Wash. 293, Crauford vs. The William Penn, 3 Wash. 484, Rule XVIII, In all suits on bottomry bonds, properly so f^i'iE is called, the suit shall be in rem only against the Suits on property hypothecated, or the proceeds of the CndT^ property in whosesoever hands the same may be nv/Tami found, unless the master has without authority p™Jl given the bottomry bond, or by his fraud or mis- 548 RULES OF THE FEDERAL COURTS. RULE18. conduct has avoided the same, or has subtracted the property, or unless the owner has by his own misconduct or wrong, lost or subtracted the pro- perty, in Avhich latter cases the suit may be in personam against the wrong doer. The admiralty jiirisdiclion lias always been regarded as in- cluding suits on bottomry bonds. Siory^s Com., vol. 3, § 1665; The Aurora, 1 Whea. 96; 3 Cond. 501; The Mary, 1 Paine, 671 ; Conk. Adm. 14 ; Dun. Adm. 28, 29. Bottomry bond can not be enforced in a court of prize. The Mary, 9 Cra, 126 ; 3 Cond. 306. It gives no indefeasable right to the ship, but only a claim, w^hich may be enforced. Blaine vs. Charles Carter, 4 Cra. 328; 2 Cond. 127. A bond, given to pay off a former bond, must stand or fall with the first hypothecation. The Aurora, 1 Whea. 96 ; 3 Cond. 501. A bottomry bond preferred to any claim, except wages. The Charles Carter, 4 Cra. 328 ; 2 Cond. 127. See The Virgin, 8 Pet. 538. May be good in part, and bad in j^art. The Virgin, 8 Pet. 538 ; The Packet, 3 Mason, 255. Premium may be moderated and reduced. Ship Packet, 3 Mason, 255 ; The Cognac, 2 Hogg. 377. May be made in a foreign or home poit. The Draco, 2 Sum. 157 ; contra, Turnhull vs. The Enterjmze, Bee. 345. The burden of proof rests on the libellant. Cravford vs. T?ie William Penn, 3 Wash. 484. The bond last given entitled to priority of payment. The Betsy, 1 Dod. 289. See also, Ship Fortitude, 1 Law Rep. 124, S. C; 3 Sum. 228 ; The Jerusalem, 2 Gall. 1 00, and cases cited in note on page 191; Cnr. Adm. Dig., title Bottomry, and Cotik. Adm. 194-226 ; Brig Draco, 2 Sum. 157. DISTRICT COURTS IN ADMIKAI/JY CASES. 549 Rule XTX. In all suits for salvage, the suit may be in rem nui.n lo. against the property saved, or the proceeds there- Suiis for of, or in personam against the party at whose re- wheirm quest and for whose benefit the salvage service wheitw 11 f 1 personam. has been periormcd. Admiralty jurisdiction may be exercised in cases of salvage, as well in j^f^sonam as in rem. The Schooner Boston, 1 Sum. 328; TJie Scliooner Emnlons, 1 Sum. 207; Brccrort \s. The Fair A?nerican, 1 Pet. Adm. Dec. 87 ; The Hope, 3 Rob. 215 ; The Trclau-ny, Ibid, note; Conk. Adm. 21, 273 ; House7nan\s. Schr. North Carolina, 15 Pet. 40 ; McDonough vs. Dannery, 3Dall. 188; 1 Cond. 94. Seamen may become entitled to salvage. Hohart vs. Dro- gan, 10 Pet. 108. As may the pilot. Hand vs. The Elvira, Gilpin, 60. On what principles regulated. The Emulous, 1 Sum. 207. See Talhot vs. Seeman, 1 Cra. 1 ; 1 Cond. 229. Rates of salvage. Pcisch vs. Ware, 4 Cra. 347 ; 2 Cond. 137 ; The Emulous, 1 Sum. 207 ; Ti/son vs. Prior, 1 Gall. 133 ; Hand vs. The Elvira, Gilpin, 60 ; 'The Henri/ Ewbank, 1 Sum. 400 ; Hindry vs. The Brisccilla, Bee. 1. See further Cur. Adm. Dig., tit. Salvage, and Conk. Trea. 273-298; The Nathaniel Hooper, 2 Law Rep. 133. Rule XX. In all petitory or possessory suits between part rule 20. owners or adverse proprietors, or by the owners j„ ~ito- of a ship or the majorily thereof against the mas- |7,ss"L- ter of a ship, for the ascertainment of tlie title 'J^^^^f^l' and delivery of the possession, or for the posses- "^'"'^'^"f- sion only, or by one or more part owners against 550 RULES OF THE FEDERAL COURTS. Rll Jf^^- the others to obtain security for the return of the ship from any A^oyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the ship for any voyage upon giving security for the safe return thereof, the process shall be by an arrest of the ship and by a monition to the adverse party or parties to appear and make answer to the suit. Suits in the admiralty, touching the property in ships, arc of two kinds, one called petitory suits, in which the mere title to the pi'operty is litigated, and sought to be enforced, inde- pendently of any possession, which has previously accompanied or sanctioned that title ; the other called j)osscssorij suits, which seek to restore to the owner the possession, of which he has been unjustly deprived, when that possession has followed a legal title, or as it has been sometimes phrased, when there has been a possession under a claim of title with a constat of pro- perty. 2 Browne's Civ. and Adm. Laiv, 113, 114, 117, 118, 397, 406, 430. This distinction between petitory and possessory suits, in point of jurisdiction, has never been admitted into the actual practice of the courts of the United States. The Tiiton, 5 Ma- son, 465. See also, Conk Ad?n. 260-273 ; Cur. Adm. Dig. 377,378. RULE 21. Decrees, when en- forced by attach- ment or execution, and when by attach- ment alone. Rule XXL In all cases where the decree is for the pay- ment of money, the libellant may, at his election, have an attachment to compel the defendant to perform the decree, or a writ of execution in the nature of a capias and of a fieri facias, command- ing the marshal or his deputy to levy the amount thereof of the goods and chattels of the defend- DISTRICT COURTS IN ADMIRALTY CASES. 551 ant, and for want thereof to arrest his body to ^^^2.' answer the exigency of the execution. In all other cases the decrees may he enforced by an attachment to compel the defendant to perform the decree; and upon such attachment the de- fendant may he arrested and committed to prison until he performs the decree, or is otherwise dis- charged by law, or by the order of the court. This rule may be regarded as extending to suits in rem, as well as in personam ; and as applying to the sureties of a de- fendant, as well as to the defendant himself; and probably as making the lands of the defendant and his sureties no longer subject to the admiralty process of execution. Conk. Adm. 112-115. Rule XXII. All informations and libels of information upon seizures for any breach of the revenue or naviga- tion or other laws of the United States, shall state the place of seizure, whether it be on land, or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States ; and the district within which the proper- ty is brought, and where it then is. The informa- tion or libel of information shall also propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture and RULE 22. Informa- tions and libels ou seizures, what to state. To pro- pound grounds of for- feiture ; and have prayer for process. 552 RULES OF THE FEDERAL COURTS. RULE 22. ^Q giyp notice to all persons concerned in inter- est to appear and show cause at the return day of the process why the forfeiture should not be decreed. The courts of the United States have exclusive cognizance of questions of forfeiture upon all seizures under the laws of the United States. Gelston vs. Hoyt, 3 Whea. 346 ; 4 Cond. 244. Slocum vs. Mayhernj, 2 Whea. 1 ; 4 Cond. 1. In cases of seizures made on land under the revenue law^s, the district court proceeds as a court of common law, accord- ing to the course of the exchequer on informations in rem, and the trial of issues of fact is to be by a jury ; but in cases of seizures on waters navigable from the sea. it proceeds as an instance court of admiralty, by libel, and the trial is to be by the court. The two jurisdictions and the proceedings under them, are to be kept entirely distinct. The SaraJi, 8 Whea. 391 ; 5 Cond. 472. Musi state the place of seizure. The Sarah, 8 Whea. 391 ; 5 Cond. 472. An information for a statute forfeiture should conclude con- tra forman statuti, or at least refer to some statute authorizing the forfeiture. The Larh, 1 Gall. ^)5. The Nancy, Ibid. 67.. Schooner Hoppet vs. United States, 7 Cra. 389 ; 2 Cond. 542 Brig Caroline vs. United States, 7 Cra. 496; 2 Cond. 584. Contra, The Merino, 9 Whea. 391 ; 5 Cond. 623 ; and sec Sears vs. United States, 1 Gall. 257. Smith vs. United States, Ibid. 261. In general it is sufficient to describe the offence in the words of the statute. The Samuel, 1 Whea. 9 ; 3 Cond. 466. The Mary Ann, 8 Whea. 380 ; 5 Cond. 471. The Emily ^ Caro- line, 9 Whea. 381 ; 5 Cond. 623. Cross vs. United States, 1 Gall. 31. Dun. Adm. 2d ed. 117. The Palmyra, 12 Whea. 1 ; 6 Cond. 397. But must specially aver all the facts which constitute the of- fence. Schr. Anne, vs. United States, 7 Cra. 570 ; 2 Cond. 611. DISTRICT COURTS IN ADMIRALTY CASES. 553 Informations in rem arc not criminal, but civil proccedinf^s Riii.E '>i. of the admiralty and maritime jurisdiction. Anon. 1 Gall. 22. Rule XXIIT. All libels in instance causes, civil or maritime, rule 2:1. shall state the nature of the cause; as for exam- Lii.^in pie, that it is a cause civil and maritime, of con- cause!!!^ tract, or of tort or damage, or of salvage, or of g^^fe/" possession or otherwise, as the case may be ; and if the libel be in rem, that the property is within the district; and if in personam, the names and occupations and places of residence of the parties. The libel shall also propound and articulate in dis- tinct articles the various allegations of fact, upon pound ai- which the libcllant relies in support of his suit, so iciiedoii! that the defendant may be enabled to answer dis- tinctly and separately the several matters con- tained in each article ; and it shall conclude with a prayer of the process to enforce his rights in rem, or in personam, (as the case may require) and for such relief and redress as the court is competent to give in the premises. And the May re- libcllant may farther require the defendant to sw.rou answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof It is not necessary, nor tlic general practice, to have the lihcl sworn to, though there is no objection to such a course if the libellant chooses. Cmik. Adm. 424 ; Hutson \s. Jordan, IS Amer. Jur. 295 ; Coffin vs. Jm/cins, 3 Story, 109, 121. But the debt or cause of action on which the libel is founded. 554 RULES OF THE FEDERAL COURTS. RILE 23. must be verified, Hutso7i\s. Jordan, 18 Amer. Jur. 295 ; S. C, ~~ Ware, 385, 392. Affidavit may be made by the agent or attorney of the party, when party is necessarily absent. Hutsmi vs. Jordan, Wai-e, 392. Sec also, Schr. Adeline, 9 Cra. 244 ; 3 Cond. 397. The libellant may unite in one suit as many actions of a like nature as he pleases ; subject, however, to the discretionary power of the court to strike out such actions, when the privi- leo^e has been unreasonably and oppressively used. Conk. Adm. 377. The doctrine asserted in Dunlap, (pp. 88, 89) that in suits in personam, all causes of admiralty cognizance existing between the same parties, whether founded on contract or tort, may be joined in the libel and stated in distinct articles, combatted and repudiated, in part by Ware, district judge. Pratt -vs. Thomas Ware, 427, 437. It is irregular to allow in a libel, in rem and quasi, for posses- sion, the introduction of other matters of an entirely different character, as an account of the vessel's earnings, or the claim of a part owner for wages and advances. Stm. Bt. Orleans vs. PJioehus, 11 Pet. 175. Separate and distinct trespasses can not be joined in the same libel against defendants not jointly liable. Thomas vs. Lane, 2 Sum. 1. Generally, proceedings in rem and in personam can not be joined in one libel. Citizens'' Bank vs. Nantucket Steamboat Company, 2 Story, 17. But as to when such a joinder will be allowed see Rules 13, 14, 15, and Conk. Adm,. 382-388, and cases there cited. As to libels generally, and their requisites, and their conclu- sions, see Conk. Adm. 417-426; Dun. Adm.. 116-132; Rich- ard Sears vs. United States, 1 Gall. 257 ; Joseph Smith vs. United States, 1 (iall. 260. Libels must be signed by the proctor of the libellant. Conk. Adm. 426. Bctts' Adm. 22. The form of the libel is varied according to the customs of different courts. DISTRICT COURTS IN ADMIRALTY CASES. 555 It should, however, contain a narration and conclusion, to he RtiLE -a. short, and contain nothing superfluous; char, so as to avoid all ambiguity ; apt, i. e. that the prayer for relief should accord with the nature of the grievance, and sufliciently certain as to tlie quantity, quality and nature of the subject matter. 2 Tiro. Civ. and Adtn. Laio, 3G1. There are five substantial requisites which it should contain : 1. The name, and description or addition, of the plaintiff. 2. The name, and description or addition, of the defendant. 3. The name of the judge, with a respectful designation of his office and court. 4. The thing or relief, general or special, which is demand- ed in the suit. 5. The grounds upon which the suit is founded, or as the following distich has it : Quis, quid, coram quo, quo jure petatur, et a quo, Recte compositus quiscjue libellus habet. Clcr/ce's Praxis. Dun. Adiu. 112. Conk. Adm. 809. Libel need not state matters of defence. Brig Aurora, 7 Cra. 382 ; 2 Cond. 540. Sec also, in reference to the statement of the nature of the cause, in the libel. The Schr. Adeline, 9 Cra. 244; 3 Cond. 397 ; Orne vs. Tow?iscnd, 4 Mason, 541 ; The Schr. Boston, 1 Sum. 329. The allegations in a libel, not admitted or denied, must be proved. Brig Dodge Heal y, 4 Wash. 65 L As to evidence, see The Schr. Boston, 1 Sum. 329 ; The William Harris, Ware, 367. See also Benedict's Adm. Prac. §§ 399, 402. Rule XXIV. In all informations and libols in causes of ad- r,.i,k n. miralty and maritime jurisdiction, amendments a,„~^. in matters of form may be made at anv time "r"/\!° on motion to the court as of course. And new "*■<=«""«; 556 RULES OF THE FEDERAL COURTS. terms im posed oil libellant. RULE 21. counts may be filed and amendments in matters ou moiiuii; of substance may be made upon motion at any time before tlie 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 libellant. Where an application to the court is necessary for the al- lowance of amendments, a copy of the proposed amendments should be served on the proctor of the opposite party, with a notice of the time of applying to the court to grant an order for their allowance. Conk. Adm. 617. Belts' Adm. 58. Amendments of informations in personam are now con- sidered so much a matter of coui'se, that they are even made on an application to a judge at chambers. Ibid. 23. An amendment can not introduce a new subject of contro- versy. Houseman vs. (SVZr. North Carolina, 15 Pet. 40. Where merits appear on the record, it is the settled prac- tice, not to discuss the libel, but to allow the jiai-ty to assert his rights by a new allegation. Schr. Adeline, 9 Cra. 244 ; 3 Cond. 397. Crauford vs. The WiUiam Penn, 3 Wash. 484. For statutory enactment, and further references in respect to amendments, see " Powers in Common," title Amendments. See also Benedict's Adm. Prac. § 483. RULE 25. In liVjels in pn-sn- nam. de- fendant to j^ive secu- rity for costs. when. Rule XXV. In all cases of libels in personam the court may, in its discretion, upon the appearance of the de- fendant, where no bail has been taken, and no attachment of property has been made to answer the exigency of the suit, require the defendant to give a stipulation with sureties in such sum as DISTRICT COURTS IN ADMIRALTY CASES. 557 the court sliall direct, to pay all costs and ex- R11K25. penses, which shall be awarded against him in the suit upon the final adjudication thereof, or by any interlocutory order in the process of the suit. This rule provides for the case of a vohiiitary appearance of the (lefeiidant ; and probably to the case of a defendant arrested, and held in custody for want of bail and brought into court on the return of process. Conk. Adin. 43S, 439. It is supposed the court may annex to the stipulation the further condition of abiding all interlocutory orders and the final judgment of the court. Ibid. 440. According to the English practice Uhellants are not required to give security for costs, except when they are non-residents. The Sophie, 1 W. Rob. 32G. The Volant, Ibid. 383. See also The Minerva, Ibid. 169, 172. In the United States the practice seems to be regulated ac- cording to the rules of the various district courts. But a mo- tion for such security will bo denied, when its effect would be a denial of justice. Polijdorc \&. Prince, Ware, 402. The other party may waive the security, and if the party can not find sureties, his jui'atory caution may be taken in- stead. Ibid. Seamen are never required to give such a stipulation. Ibid' 403. Conk. Adm. 463-472. Rule XXVI. In suits in rem, the party claiming the property rule 2c. shall verify his claim on oath or solemn affirma- tion, stating that the claimant, by whom or on whose behalf the claim is made, is the true and '''''^• bona fide owner, and that no other person is the owner thereof And where the claim is put in oath by by an agent or consignee, he shall also make oath ''°^°^* In suits ill rem. claim to be veri- 558 RULES OF THE FEDERAL COURTS. RILE 2G. that he is duly autliorized thereto by the owner, Claimant or if the property be at the time of the arrest in to give . security possession of a master of the ship, that he is the fur cosis. lawful bailee thereof for the owner. And upon putting in such claim, the claimant shall file a stipulation with sureties in such sum as the court shall direct, for the payment of all costs and ex- penses which shall be awarded against him by the final decree of the court, or upon an appeal by the appellate court. Claims in the prize court should be made by the parties themselves, if within the jurisdiction, and not by mere agents. The Schooner Lively, 1 Gall. 315. The Schooner Sally, 1 Gall. 400. The Schooner Adeline, 9 Cra. 244 ; 3 Cond. 397. If the claim be made by an agent, the agent must make oath as to his belief of the verity of the claim, and if necessary produce proof of his authority, before he can be admitted to put in the claim. United States vs. 422 Casks of Wine, 1 Pet. 547, 549. Houseman vs. Schir. North Carolina, 1 5 Pet. 40. A consul may make a claim in behalf of the subjects of his country. The Bello Corrunes, 6 Whea. 152 ; 6 Con. 45. The Anne, 3 Whea. 435 ; 4 Cond. 286. The Antelope, 10 Whea. 66 ; 6 Cond. 30. The London Packet, 1 Mason, 14. Gernon vs. Cochran, Bee. 209, but without special authority he can not receive actual restitution. The Bello Corrunes, 6 Whea. 152 ; 6 Cond. 45. The Antelope, 10 Whea. 60; 6 Cond. 30. An underwriter can not make a claim. The Packet, 3 Mas. 255. A claimant must have an interest in the property in a legal and technical sense. The Boston, 1 Sum. 328, 333. In instance causes the answer of the claimant should be ve- rified by his oath. Gammel vs. Skinner, 2 Gall. 45. The affidavit of the claimant is not evidence; it is only " the exclusion of a conclusion." The Thomas and Henry vs. Uni- ted States, 1 Mar. Dec. 367. DISTRICT COURTS IN ADMIRALTY CASES. 559 See also, Stratton vs. Jarvis, 8 Pet. 4 ; The Amiable Isabella, rile a;. 6 Whea 1 ; C> Coiul. 1 ; TJie Venus, 5 Wliea. 127 ; 4 Cond. ~ 613 ; T/ie Dos Heniumos, 2 Wliea. 7G ; 4 Cond. 39 ; Cm/,: Adin. 440, 540-550. See also BenedicCs Adm.Prac. §§ 461, 463. Rule XXVII. Ill all libels in causes of civil and maritime rule 27. jurisdiction, whether in rem or in personam, the Answer of answer of the defendant to the allegations in the to beVu" libel shall be oil oath or solemn affirmation ; and °^^ ' the answer shall be full and explicit and distinct to be fuii , • 1 1 n • •^'"^ expli- to each separate article and separate allegation cn. 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. This rule does not apply to cases where the sum in dispute does not exceed fifty dollars, unless the court are of the opin- ion that such proceedings are necessary for the purposes of justice in any such case before it. Rule 80, passed at Decem- ber term, 1850. If a respondent wishes to avail himself of any particular matter in defence, he must present it with proper averments in his answer, or by plea. The William Harris, Ware, 367. The answer must be verified by oath of the respondent. Cojin vs. Jenkins, 3 Story, 109. Hutsm vs. Jordan, Ware, 385. Gammcll vs. Skinner, 2 Gall. 46 ; and signed by his proctor. Cank. Adm. 426. General replication is not required. Conk. Adm. 593. Protracted pleadings may be made use of, but they are rare ; when used they take the names which they bear at common law. Conk. Adm. 5G5. The Lord Cochrane, 2 Rob. 320. The degree of credit to be allowed an answer must depend on the apparent good faith with which it is made ; and is not 560 RULES OF THE FEDERAL COURTS. RULE 27. measured by any technical rule as in equity. The Crusader, ~ Ware, 437, 443. It is a matter, that can only be referred to the sound discre- tion and conscience of the tribunal, which has the cause to decide. Hutson vs. Jordan, Ware, 385, 394. But when the libellant requires the answer to be under oath, it is evidence. Randull vs. Philips, 3 Mas. 378. The Rambler, Bee. 9. Jay vs. Abnj/, 1 Wood. & Min. 262. No special replication is admissible, unless the respondent requires the libellant to give an answer on oath ; and then it is in the nature of a cross-bill, or revocatio of the civil law. Cof- Jin vs. Jenkins, 3 Story, 108, 121. But see Waring vs. Clar/c, 5 How. 441, where there was "an amended or supplemental libel," and "an amended or supplemental answer." Double pleading is not allowed, or necessary. 2 Bro. Civ. and Adm. Law, 415. The answer is the most important pleading on the part of the defendant. The commencement should contain a descrip- tion of the court, the names of the paities, and of the proctor for the defendant, and tlie date of the answer ; and it should be respectfully addressed to the judge of the court, by his name, and with the addition of a description of his office. It ought to be pertinent to the matter in question. It ought to be absolute and unconditional. It ought to be clear and certain. Like the libel, it should be free from impertinence, scandal, vulgarity and profanity. All allegations in respect to offensive subjects should be in general terms, that the records of the court may not be stained with disgusting statements. Dun. Adm. 201-202. See also, Wilson vs. Graham, 4 Wash. 53 ; Conk Adm. 564- 606 ; Dun. Adm. 198, et seq. See also Benedicts Adm. Prac. § 472. DISTRICT COURTS IN ADMIRALTY CASES. 561 Rule XX\ III. The libellant may except to the sufficiency or kulkss. fulhiess or distinctness or relevancy of the answer Libeiiam to the articles and interrogatories in the libel; ^ep^tto and if the court shall adjudge the same excep- ^"*^*''' tions, or any of them, to be good and valid, the court shall order the defendant forthwith, or within such time as the court shall direct, to an- swer the same, and may further order the defend- ant to pay such costs as the court shall adjudge reasonable. • defendant, when to answer over. The substitution of an amended libel or answer in place of a replication and rejoinder, and other pleadings, was frequently- urged by Mr. Justice Story during his life time. The Sarah Ann, 2 Sum. 20G, 208. Coffin vs. Jen/cins, 3 Story, 108, 121. But such a substitution is not required by the rules in admiralty. Exceptions arc j^crpctual or temporary ; perpetual when they are founded on objections in matters of substance, which de- stroy the libellant's right of action, and which constitute a com- plete bar ; temporary when they are merely of a formal char- acter, and operate to occasion only delay or postponement. 2 Bro. Civ. and Adm. Law, 362, 363. See also Conk. Adm. 589 et scq. Dun. Adm. 193. Ben. Adm. Prac. §§ 466, 470. Rule XXIX. If the defendant shall omit or refuse to make rule 29. due answer to the libel upon the return day of Defiant the process or other day assigned by the court, "vveHng the court shall pronounce him to be in contuma- pro coi^*° cy and default, and thereupon the libel shall be ^^"°' adjudged to be taken pro confesso against him, 36 562 RULES OF THE FEDERAL COURTS. RULE 29. and the court shall proceed to hear the cause ex parte, and adjudge therein as to law and justice Default shall appertain. But the court may, in its dis- may beset ^^ 1 1 T agide. crctiou, sct asidc the default, and upon the appli- cation 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. Only one order is necessary for the default, and for taking the libel pro confesso, and such order may also include a refer- ence, if necessai'y. Conk. Adm. 518. The party may, however, compel an answer by attachment, if he prefer. Dun. Adm. 206. Answers intended merely to cause delay, or to defeat the ends of justice are not considered answers. Ihid. 204. For form of order pro confesso, see Co7ih. Adm. 519, n. The application to vacate the order ^;ro confesso may be made on petition. It is addressed to the discretion of the court, and is not grantable as of course. Conk. Adm. 521, 522. Before the defendant can be heard in his defence, 'or intro- duce evidence he must appear and contest the suit either by exceptions to the libel, or by answering it. If he does neither the court will proceed ex parte. The David Fratt, Ware, 495. But if the defendant has neglected to put in his answer through ignorance of the practice of the court, and is absent at the time of hearing, the court is not precluded from receiving any evidence which his counsel may offer as amicus curice. Ibid* The court is not bound to defer the "final hearing and de- cree" out of any indulgence to the defendant, but may pro- ceed, without delay to the actual entry of the decree. But in practice the final decree is withheld for a few days. Conk. Adm. 521. See also Conk. Adm. 517-537 and rule 40 ; and Benedict's Adm. Prac. § 450. DISTRICT COURTS IN ADMIRALTY CASES. 563 Rule XXX. In all cases where the defendant answers, but i^^'^e 3° does not answer fully and explicitly and distinctly D.iendaut when to all the matters in any article of the libel, and r. .iuir.-.i exception is taken thereto by the libellant, and luniie. 1 • • 11 1 1 1 1 auswer. the exception is allowed, the court may, by attach- ment, compel the defendant to make further answer thereto, or may direct the matter of the exception to be taken pro confesso against the defendant to the full purport and effect of the ar- ticle to which it purports to answer, and as if no answer had been put in thereto. If the tlcfentlant refuse to make further answer, his confes- sion is called a presumptive confession, as confessing those things to which he refuses to answer fully. Dun. Adm. 204. The court should not, however, pronounce generally for the confession, hut s})ccify the articles, or the portions of them, not fully answered, to which the presumptive confession ap- plies. Ibid. 204. The costs in such cases must he defrayed hy the party from whose neglect or fault the proceeding has been rendered neces- sary, or has been taken. Ibid. 204. See also Benedict's Adm. Prac. § 471. Rule XXXI. The defendant may object by his answer to rule si. answer any allegation or interrogatory contained in the libel which will expose him to any j^rose- cution or punishment for a crime, or for any j^en- alty or any forfeiture of his property for any penal offence. Wliat alle- gations ili-fi'iulant need not answer. 564 RULES OF THE FEDERAL COURTS. RULE 31. An oath can not be required when the party might be com- pelled thereby to charge himself, or confess or purge himself of any crime or breach of any penal law. Dun. Adm. 207. A man is not obliged to discover what may subject him to a penalty, nor what must only. United States vs. 28 Packages, Gilpin, 306, 313. Ben. Adm. Prac. § 476. RULE 32, Defendant may re- quire an- swer of the libel- lant to interroga- tories ; on default of same, libel may be dis- missed Rule XXXII. The defendant shall have a right to require the personal answer of the libellant upon oath or solemn affirmation to any interrogatories which he may, at the close of his answer, propound to the libellant touching any matters charged in the libel, or touching any matter of defence set up in the answer, subject to the like except'on as to matters which shall expose the libellant to any prosecution or punishment or forfeiture, as is pro- vided in the 31st Rule. In default of due answer by the libellant to such interrogatories, the court may adjudge the libellant 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 favour of the defendant, as the court in its discretion shall deem most fit to promote public justice. Each party in the admiralty has a right to require the per- sonal answers of the other party, under oath, to any interrog- atories touching the matter in issue. The David Pratt, Ware, 495. Gamviel vs. Skinner, 2 Gall. 4G. Dnn. Adm. 129. And such a demand may be made at any time, even down to the hearing. 2 Bro. Civ. and Adm. Law, 416. ClerJce's Praxis, Tit. 14. Ben. Adm. Prac. §§ 477, 479. DISTRICT COURTS IN ADMIRALTY CASES. 555 Ut/le XXXIII. Where either the libeHant or the defendnnt is rile 33 out of the country, or unable from sickness or Answer otlier casualty to make an answer to any interro- ""111" gatory on oath or solemn afhrmation at the proper wa'iTcd or time, the court may, in its discretion, in fur- di'/icoln- therance of the due administration of justice, °""'"°- dispense therewith, or may award a commission to take the answer of the defendant, when and as soon as it may be practicable. Tlie oalli is sometimes taken in court, but more generally before the clerk of" the district court, or one of the commis- sioners of the projjcr court ( f the United States. Dun. Adm. 2d ed. 192, 449, /i. See also Ben. Adm. Prac. § 4S1. Rule XXXIV. Jf any third person shall intervene in any cause ^^'^-^ ^^ of admiralty and nuiritime jurisdiction in rem, interve- for his own interest, and he is entitled Recording may come 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 proceed- ings shall be had, and decree rendered by the court therein, as to law and justice shall apper- tain. But every such intervenor shall be required '^" ^\''^ •' 1 sti|)iila- upon filirjg his allegations to give astipulation """ '"i: with sureties to abide by the final decree rendered 566 RULES OF THE FEDERAL COURTS. RULE^i. jj^ ijjg cause, and to pay all such costs and ex- penses, and damages, as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court. According to the English practice, all persons having liens or claims against the property proceeded against, which are In their nature cognizahle in a principal suit in the admiralty, are entitled to intervene for their interest; but general credit- ors can not intervene. Conk. Adm. 553, citing The Tobago, 5 Rob. 221 ; The Marianna, 6 Rob. 24; The Portsea, 2 Hagg- 84 ; The Exmouth, Ibid. 88, n; The Fruit Preserver, Ibid. 181 ; The Prince George, 3 Hagg, 178; The Neptune, Ibid. 129; The Perseij, Ibid. 402 ; The Maitland, 2 Hagg. 255 ; The Flo- ra, 1 Hagg. 298 ; The John, 3 Rob. 288 ; The Dawthorpe, 2 W. Rob. 73 ; The Fortitude, Ibid. 217. In the United States it seems to be the rule, that all persons having an interest in the thing may intervene ^ro interesse suo, file their claims, and make themselves parties to defend their own interest. The Mary Anne, Ware, 104, 106. The right of intervention and defence may be regarded as coextensive with that of intervention, against remaining pro- ceeds, under rule 43, as such right is defined in Ilarpcv vs. The New Srig, Gilpin, 536. See Conk Adm. 549-562 referring to pages 38-51 ; and Bene- dict's Adm. Prac. §§ 460, 465. Rule XXXV. RULE 33. Stipulations in admiralty and maritime suits stipuia- may be taken in open court, or by the proper fire whom judge at chambcrs, or under his order by any takeu!'' commissioner of the court, who is a standing commissioner of the court, and is now by law authorized to take affiidavits of bail and also de- DISTRICT COURTS IN ADMIRALTY CASES. 567 positions in civil causes pending in the courts of ^^^^ the United States. When a commissioner takes a stipulation, he should trans- mit it to the court, hut he may do so hy the heads of the mar- shal. Con/c. Adm. 47G. Stipulations taken in the progress of a cause are taken un- der the order of the court, or of the law. And they are to be interpreted according to the intention of the court, or the law, and not according to the intention of the party. Lane vs. Tozcnsend, Ware, 286, 292, 293. A stipulation, in its terms and meaning pointing exclusively to a remedy for one object of complaint, can not be made a peg on which to hang a jurisdiction for other purposes. The Apollo, Ilagg. 306. Practice of the admiralty in regard to stipulations. Lane vs. Townsend, Ware, 286. Words "affidavits of haiV^ supposed to mean acknowledg- ments of bail and affidavits. Conk. Adm. 450. See Ibid. 450-455, and rule 5 and notes to same. Rule XXXVI. Exception may be taken to any libel, allega- ^^^^ tion, or answer, for surplusage, irrelevancy, im- ^,^,^g?"i, pertinence, or scandal ; and if upon reference to ^l^'^fg^^to a master, the exception shall be reported to be 'j'^'^x- ' ^ ^ puuged. so objectionable, and allowed by the court, the matter shall be expunged at the cost and expense of the party in whose libel or answer the same is found. See Benedict's Adm. Prac. §§ 466, 470. Rule XXXVII. rule 37 In cases of foreign attachment, the garnishee Garnishee shall be required to answer on oath or solemn ouoath; 568 RULES OF THE FEDERAL COURTS. RULB 37. affirmation, as to the debts, credits, or effects of the defendant in his hands, and to such interro- gatories touching the same as may be propounded ^Jy"!;/' by the libellant ; and if he shall refuse or neglect arreated. g^ ^^ ^^^ ^|^g court may award compulsory process in personam against him. If he admit any debts credits, or effects, the same shall be held in his hands liable to answer the exigency of the suit. Foreign attachment is the process against the credits and ef- fects of the defendants in the hands of third persons, as distin- guished from simple attacJiment, which is a process against his own goods and chattels. Conk. Adm. 478, n. (a.) The writ of attachment and foreign attachment do not issue until after a return, upon a warrant of arrest in j)crsonam, that the defendant can not be found. Dun. Adm. 139. They are served by delivering to tne defendant, and to the alleged trustees, attested copies of the process, or by leaving Buch copies at their usual places of residence, with some suit- able person. Dun. Adm. 139. Conk. Adm. 481. The process of attachment may issue though the same goods may be liable to process of foreign attachment issuing from the courts of common law. And the properly to be attached, need not be specified in the libel. Munro vs. TIlc Almeida, 10 Whea. 473 ; C Cond. 190. It is no ground for dismissing a foreign attachment that the plaintiff had sued out another attachment against the defend- ant in a state court, and afterwards discontinued it. Fisher vs. Consequa, 2 Wash. 328. See also British Consul vs. Thomp- son, Ware, 141, cited in 10 Whea. 473. Bouijsson vs. Miller, Ware, 186. The term "credits" embraces all debts owing to the defend- ant. The term "effects" refers to properly not strictly falling within ihc scope of the terms "goods and chattels" and "cre- dits," such as shares in stock of companies, money in the hands of a sheriff or agent, or the like. Conk. Adm. 481. DISTRICT COURTS IN ADMIRALTY CASES. 569 l)n>uj,'lit iuto court. But money in tin; liands of a purser is not alta(lial»l(! ; for rli.e 37. such money is in tlic hands of" the government, Ihirhmian vs. Alexander, 4 How. 20. The return clay of the process is llie proper time for tlic garnishee to make answer. Conk. Adm. 482. Whether llic libclhint can contest \.\\v. truth of the garnishee's answer — Quere 1 Ibid. 483. See also Benedict's Adm. Prac. §§ 407, 433, 459. Rule XXXVIIL In cases of mariners' wages, or bottomry, or rm.e ss. salvage, or other proceedings in rem, where freight [.,,.J^rty, or other proceeds of property are attached to, or £;;js'„( are bound by the suit, wliich are in the hands or s.Zl'i<'w 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 iuto court to answer the exigency of the suit; and if no sufficient cause be shown, the court may order the same to be brought into court to answer the exigency of the suit, and upon failure of the party to comply with the order, may award an attachment or other compulsive process to compel obedience thereto. Whore the coui't of admiralty has parted with the possession of property, and it is desirahh; to retake the ])ro])erly into the custody of the court, the ])roper process against any pcnson, alleged to have the actual or constru(;tive possession, when such person is not a party to a stijjulation, is a monition in the first instance. Conk. Adm. 507. T/ic Uran Para, 10 Whea. 497 ; 6 Cond. 199. 570 RULES OF THE FEDERAL COURTS. RULE 3S. Wherever a lien for wages exists and attaches upon the pro- ceeds, it is the familiar practice of the court to exert its juris- diction over them, hy way of monition to the parties holding the proceeds. This is familiarly known in the cases of prize and bottomry, and salvage, and is equally applicable to the case of wages. The lien will follow the ship and its proceeds, into whose hands soever they may come by title or purchase from the owner. Shej)pard vs. Taylor, 5 Pet. 675, 711. Admiralty liens generally are within the meaning of the above rule. Conk. Adm. 50G. See also BcncdicCs Adm. Viae. § 441. RULE 39. Rule XXXIX. If in any admiralty suit, the libellant shall not Libeiiaut appear and prosecute his suit according to the pearing, coursc and orders of the court, he shall be deemed 1iI)h1 to 1)0 disMiissfci. \yi default and contumacy, and the court may, upon the application of the defendant, 'pronounce the suit to be deserted, and the same may be dis- missed with costs. Before the default of the libellant is taken, he should be called. Co^nk. Adm. 514. The court may afford him a further opportunity to appear, though this will n(jt be done except under special circumstan- ces, and when so done, it will be until some particular day, and only on payment of costs. Ihid. 515. See also Benedict's Adm. Frac. § 455. Rule XL. RULE 40. The court may in its discretion, upon the mo- Decree tion of the defendant and the payment of costs, defendant, rcsciud thc dccrec in any suit in which, on ac- w ien may ^^^^^ ^^ j,^^^ coutumacy and default, the matter DISTRICT COURTS IN ADMIRALTY CASES. 571 of the libel shall have been decreed against him, «' J^^" and ffrant a rehearing thereof, at any time within bei-e- 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. Bv rule 29, the court can, also in its discretion, set aside a default of the defendant, "at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave therefor," See Rule 29, and notes thereto. The rules however make no provision for varying a decree in a contested suit. In regard to tlic practice in such cases it has been held in Kngland that the court might, in a case of di- rect fraud, or something etpiivalent lo it, suffer a cause, which had been once closed, to be reupened ; but there must be strong reasons and mere negligence or oversight would not be suffi- cient ground. The Fortitude, 2 Dod. 70. And in an application made to modify a decree, it was held by LushingtoH, that the variation must be confined to an alter- ation of an error arising from a defect of knowledge or infor- mation upon a particular point in the case, and the error must be brought to the attention of the court with the utmost dili- gence. The Monarch, 1 \Vm. Rob. 21. In the United States, it has been remarked by a distinguished judge. Story, that "if the district court has a right to entertain a libel of review in any case, it must be limited to very special cases ; and either where no appeal by law lies, because the matter is less in value than is required by law to justify an ap- peal, or the proper time for any appeal is passed, and the de- cree remains unexecuted ; or where there is clear error in matter of law ; or if not, where the decree has been obtained by fi'aud; or where new facts changing the entire merits, have been discovered since the decree was passed, and there has not only been the highest good faith (uhcrrlma fides), but also the 572 RULES OF THE FEDERAL COURTS. RULE 40. highest diligence and an entire absence of just imputations of negligence; and finally, where the principals of justice and equity require such an interference to prevent a manifest wrong. Further than this 1 am not prepared to go ; and I may say, that with my present impressions I should go thus far with some hesitation, and pause at every step." The Steamboat New England, 3 Sum. 495, 500. Sec also Conk. Adm. 705-711. Dun. Adm. 324-327; Ben. Adni. Prac. § 451. Rule XLI. RiTLE 41. ^]i sales of property under any decree in admi- Saiestobe rally shall be made by the marshal or his deputy, by a mar- • i i i shai; pro- or otlier proper officer assigned by the court, CCCQS to be paid where the marshal is a party in interest, in pur- registiy. suance of the orders of the court; and the pro- ceeds thereof, when sold, shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law. In judicial sales there is no warranty. Neither the marshal, nor his agent the auctioneer, has any authority to warrant the thing sold. The Monte Allegrc, 9 Whea. 610 ; 5 Cond. 709. How far the marshal would be liable, in his private capacity, if he warranted, or did what would imply a warranty — Quere ? Ibid. Where the proceeds of a sale are brought into court, they are not liable to make good a loss sustained by the purchaser, in consequence of a defect being discovered in the thing sold. Ibid. Rule XLU. RULE 42. All moneys paid into the registry of the court Moueyato shall bc dcpositcd in some bank designated by DISTRICT COURTS IN ADMIRALTY CASES. 573 the court, and shall be so deposited in the name rule 42 of the court, and shall not be drawn out except be d,;p„- • 1 r A sited, and by a check or checks signed by a jud'^e of the ii..w drawu. 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 containing a memorandum and copy of all the checks so drawn, and the date thereof Rule XLIII. Any person having an interest in any proceeds Ri^i^« in the registry of the court, shall have a right by interve- petition and summary proceeding to intervene proceeds, how to pro interesse suo, for a delivery thereof to him; come in-, and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to decree therein according to law and justice; and if such peti- eHbct if 1 1 • claim dis- tion or claim shall be deserted or upon a hearing missed, be dismissed, the court mny, in its discretion, award costs against the petitioner in faA^or of the adverse party. In a suit in rem, on a bottomry bond, underwriters, to whom an abandonment is made, which has not been accepted, are not admissible as claimants. T/te Ship Packet, 3 Mason, 265. So held also, under like circumstances, in a case of libel in rem for salvage. The ScJiooncr Boston and Cargo, 1 Sum. 328. Generally underwriters can not appear as claimants, unless the property is abandoned to them, and accepted, so that they have an interest in the thing, and not a mere interest in the cause. The Henry Eivbanh, 1 Sum. 400, 405. 574 RULES OF THE FEDERAL COURTS. RULE 43. But any person claiming an interest in the tiling may inter- vene. The Mary Anne, Ware, 104. Where a surplus remains in court from the proceeds of a sale, made for the benefit of a lien creditor, it may be appro- priated in payment of other liens on the original property, but not of debts arising on contracts merely personal. Brackett vs. The Herculcsy Gilpin, 184. Where a surplus remains in court, a party having a lien or approprialion, attaching to the thing from whence the surplus proceeded, and antecedenlly legally fixed, whatever may be the nature or origin of the lien or I'ight, may claim a distribution of such surplus, and that although the original demand was not such as could have been proceeded for in admiralty. Har- per vs. The Netv Brig, Gilpin, 536. Where a vessel, bona fide assigned by the owner, is after- wards sold under a lien of workmen, the assignee is entitled to a distribution of the surplus, in preference to a creditor having no such appropriation. Ibid. See also The Favorite, 2 Rob. 232. The John, 3 do. 288. Gardiner vs. Ship Nciv Jersey, 1 Pet. Adm. Dec. 223, and Conh. Adm. 38 to 52. Rule 34 and notes. Rule XLIV. In cases where the court shall deem it expe- ^^ dient or necessary for the purposes of justice, the refe? maN court may refer any matters arising in the pro- gress of the suit to one or more commissioners, to be appointed by the court to hear the parties and make report therein. And such commis- sioner or commissioners shall have and possess all the powers in the premises which are usually given to or exercised by masters in chancery in references to them, including the power to admin- RULE 44. ters to commis- sioners ; aud pow- ers of such. DISTRICT COURTS IN ADMIRALTY CASES. 575 ister oaths to and examine the parties and wit- '^^J^" nesses toucliing the premises. The act of Congi-ess of 181.'^, ch. 155. (2 Stat, at Large) authorizing the marshal to make distribution of prize proceeds, docs not narrow the jurisdiction of the proper prize court to refer any mutters connected tlierewith. The St. Lawrence and Cargo, 2 Gall. 20. In the above case the matter was referred to commissioners with directions to state the accounts of the cruise, including the charges, disbursements, advances and commissions, of the general agents so far as they may respect the petitioners be- fore the court — and further to state the shares to which the pe- titioners are entitled and the number of shares in the whole concern — and the liens or special claims, if any, of the general agents. The commissioners were also required to give notice to the agents or attorneys of the parties of the times and pla- ces of their meeting, and to report their doings to the court, as soon as conveniently could be. Ibid. 26. The rule is intended to subserve the despatch of business, by preventing delays in court for want of lime; and to save ex- pense of parties, when the witnesses reside at a distance from the court. Co7ik. Adin. 525. Rule XLV. All appeals from the district to the circuit court rule 45. must be made while the court is sitting, or within Appeals, such other period as shall be designated by the be made. district court by its general rules, or by an order specially made in the particular suit. An appeal suspends the effect of a decree appealed from. Penhallow vs. Doanc's Admx., 3 Dall. 54, 87, 119 ; 1 Cond. 21. Yeaton vs. United States, 5 Cra. 281 ; 2 Cond. 256. A?ion. 1 Gall. 22. 576 RULES OF THE FEDERAL COURTS. RULE 45. The rights of a party in the inferior court, not affected by tlio part of the decree appealed from, will not be noticed in the court above. ^FcDonovgh \s. Danneri/, 3T>rI\. ISS; 1 Cond.94- In proceedings in rem, on appeal, the proceeds follow the cause into the circuit court, but not into the supreme court. The Collector, 6 Whea. 194; 5 Cond. Q>2. The arotius, I Gall. 503. Daris vs. The Seneca, 2 Gilpin, 34, 40, and see The Grotius, 1 Gall. 503. Courts of admiralty will not encourage appeals in salvage cases upon slight or frivolous giound, or indeed, in any cases, except upon some plain, clear and determinate mistake of law or fact in the court below. Bearse vs. 340 Pigs of Copper, 1 Story, 314. The Sybil, 4 Whea. 98 ; 4 Cond. 399. An appeal from a decree of the district coui't must be taken in open court, before the adjournment sine die, unless a differ- ent period be prescribed by the court. Norton vs. Rich, 3 Ma- son, 443. See also Canter vs. Amer. and Ocean Ins. Co., 3 Pet. 307. Oliver vs. Alexander, 6 Pet. 143. Stratton vs. Jarvis, 8 Pet. 4. Wescott vs. Bradford, 4 Wash. 492. Tiie Woodbridge, 1 Hagg. 63. RULE 46. Courts to regulate further practice. RtJLE XLVL In all cases not provided for by the foregoing rules, the district and circuit courts are to regu- late the practice of the said courts respectively, in such manner as they shall deem most expe- dient for the administration of justice in suits in admiralty. Rule XLVIL RULE 47. — These rules shall be in force in all the circuit takee'ttect aud district courts of the United States, from and 1845.' ' after the first day of September next. DISTRICT COURTS IN ADMIRALTY CASES. 577 And it is ordered by the court, that the forego- ulle 47. ing rules be, and they are adopted and promul- Extent ot gated as rules for the regulation and government S.'*"^ of the practice of the circuit and district courts of the United States, in suits of admiralty on the instance side of the courts. Rule XL VIII. C December Teitn, 1850, ; In all suits in personam, where a simple war- Rur^E 48. rant of arrest issues and is executed, bail shall Arrest, be taken by the marshal and the court in those ttT '"' cases only in which it is required by the laws of the state, where an arrest is made upon simi- lar or analogous process issuing from the state courts. And imprisonment for debt, on process issuing imprison- out of the admiralty court, is abolished in all cases where where, by the laws of the state in which the court ''''°^"^'''^- is held, imprisonment for debt has been or shall be hereafter abolished, upon similar or analogous process issuing from a state court. The twenty-seventh rule shall not apply to 9"^^'^.^^- cases where the sum or value in dispute does not Kuiesr. exceed fifty dollars, exclusive of costs, unless the district court shall be of opinion that the proceed- ings prescribed by that rule are necessary for the purposes of justice in the case before the court. 37 578 RULES OF THE FEDERAL COURTS. RULE 48. All rules and parts of rules heretofore adopted, Repeal of inconsisteiit wltli this Order, arc hereby repealed and annulled. [The above rules, with the exception of the last, were pro- mulgated by the supreme court, in January, 1845. The last (48th) rule was promulgated December term, 1850.] INDEX TO RULES IN ADMIRALTY References ia italics are to the notes : otherwise to the rules. Amendments : To informations and libels, when of course 24 To informations and libels, when on motion 24 To informations and libels, upon special exceptions 24 To informations and libels, decisions respecting 24 Answer : Monitions to require in suits in jiersonam 2 In instance cases, may be required to be on oath 23 To libels in rem and in personam, to be on oath 27 Exceptions to this rule 48 To be full and explicit to each allegation 27 To be to each interrogatory propounded 27 Imjiortant qualifications of, and decisions respecting 27 Libellant may except to 28, 30 Exceptions to, held good, defendant to answer further and pay costs 28, 30 Not made on return day, defendant in contumacy and de- fault 29 580 INDEX. Rule, Answer (continued) : Not matle, libel taken pro confesso 29 How may be put in after default 29 What not esteemed an answer 29 Decisions resjyccting 29 Further, may be compelled by attachment 30 Costs on further anstoer 30 To what allegations, &c., need not be made 31 Of libellaiit, when may be required on oath 32 " not made, libel may be dismissed 32 " how compelled 32 Oath to, when dispensed with 33 When taken under a commission 33 Required to allegations of an intervenor 34 Of garnishee, what to contain 37 Appeals : From district to circuit court, when must be made 45 Effect of an a'pi)eal 45 Decisions respecting 45 Arrest : Warrant of, in suits in personam, nature of 2 in suits in personam, bail on 3 in suits in 2>ersona7n, attachment, how dissolved 4 in suits in personam, when not to issue 7 in suits in rem, how executed 9 in suits in rem, may take projyerty from sheriff 9 in suits in rem, notice of to be given 9 in suits in rem, length of time (f notice 9 in suits in rem, perishable projierty seized un- der, how disposed of 10 in suits in rem, on the apjilication of either jiarty 10 in suits in rem, ship arrested, how disposed of 11 to compel defendant to perform decree 21 howr defendant discharged from 21 How limited 48 INDEX. 581 RULB. Assault : Suits for, to be in 2^cr.sonam only 16 Decisions rcs2>ccting IG Attachment : Distinction between simple and foreign 2 In suits in personam, nature and power of 2 " in ichat cases may issue 2 " how dissolved 4 Order Jor dissolution, Jioic obtained and enforced 4 To compel defendant to obey decree 21 Extends to stiits in rem and in 2>ersonam 21 Defendant may be imprisoned on 21 To compel further answer of defendant 30 To compel answer of libcllant 32 Against property in hands of third persons, proceedings on 38 Foreign, answer of garnishee in oases of 37 " how answer compelled 37 " effects in hands of garnishee how held 37 " what is 2, 37 " when may issue 37 " hotv served 37 " decisions respecting 37 Bail : In suits in j^orsonam, when marshal may take 3 *' when can not be demanded 3 " how may be reduced 6 Exorbitant demanded, j^ractice on 6 Bonds : On taking bail in suits in personam, condition of 3 Meaning of the word " bond'" 3 How should be drawn 3 On taking bail in suits in personam, may be ei forced sum- marily 3 Meaning of icord ^summarily'' 3 582 INDEX. RCLB. Bonds (continued) : On dissolving attachment in suits in ■personam, condition of 4 On dissolving attachment in suits in fcrsonam, may be en- forced summarily ^ Before whom may be taken «'>» 35 When new sureties to may be required 6 Bottomry bonds : Suits on, when in rem and when in personam 18 Tref erred to every claim except wages 18 Decisions respecting 1° On proceedings in rem, how attached property brought in- to court 38 Circuit court : Appeals to, when to be made 45 When may make other rules 46 Claimant : When may receive perishable property 10 When may receive ship if arrested 11 To verify his claim, in suits in rem 26 In suits in rem, to give stipulation for costs 26 Who may he 26 Decisions respecting 26 Clerk : Libel must be filed with before process can issue 1 To keep account of moneys paid into court, and for whom paid out 42 Collision : Suits for, against what libellant may proceed 15 Decisions respecting 15 In suits for, how attached property may be brought into court 38 INDEX. 583 Rdlb. Commissioners : • May take bonds and stipulations 5, 35 When references may be made to 44 Powers of, on such references 44 Decisons respecting same, 44 Commissions : When awarded to take defendant's answers 33 Confession : What called a presumptive 30 Contumacy : When libellant deemed in 39 Libellant in, suit may be dismissed 39 Decree for, against defendant, when may be rescinded and a rehearing granted 40 When defendant deemed in 29 Defendant in, libel taken pro confesso 29 Court : Always open, for what furposcs 1 Judge co7istitutes the, wherever he may he 1 When may dissolve attachments in personam 4 When may take bonds and stipulations 5, 35 When may reduce bail in 2^crsonani 6 When may require new sureties in personam 6 When, in suits in rem, may direct property to be delivered by third persons to marshal 8 When may deliver perishable property to claimant 10 When may deliver arrested ship to claimant 11 When may order arrested ship sold 11 When will hear libel ex parte 29 When will set aside default of defendant for not answering 29 When will require further answer 30 When will dismiss libel for default of libellant to answer interrogatories 32 Will order answer to claim of intervenor 34 584 INDEX. Rule. Court (continued) : When may set aside decree for contumacy - 40 When may vary or alter decree 40 Court, circuit : See title Circuit court. Court, district : See title District court. Costs : In libels in jpersonam, when defendant to secure 25 " when liheUant to secure 25 " decisions respecting 25 In suits in rem, when claimant to secure 26 On exceptions to answer, when defendant to pay 28 On setting aside order pro confesso 29 On further answer of defendant 30 On dismissal of suit for contumacy of libellant 39 When petitioner or intervener to pay 43 Credits : Of defendant may be attached in jnrsonam, 2 In hands of garnishee to be held to abide exigency of suit 37 Meaning of the word " credits'''' 37 Decree : For payment of money, how enforced 21 In other cases, how enforced 21 Against defendant for contumacy 30 Against libellant for contumacy 39 Against defendant for contumacy, whem may be rescind- ed 40 When court can alter or vary ■>■ 40 Default : Of defendant to answer libel 29 Of defendant to answer, when may be set aside 29 INDEX. 585 Kl-lb. Default (continued) : Decisions rcsjiccting 29 Of libellant to answer libel, it may be dismissed 32 Of libellant for want of prosecution 30 JjthcUant to he called before 39 Of defendant for contumacy, when set aside 40 Defendant : How compelled to perform decree 21 Decisions resj)ecti/>g 21 May be arrested to compel ])erformance of decree 21 How discharged from such arrest 21 To answer all interrogatories on oath 23 In libels in jtersonam, when to secure costs 25 Decisions respecting 25 To answer all libels on oath, generally 27 Answer of, when taken by commission 33 Oath of, when may be dispensed with 33 When libt'l taken confessed against for want of answer . . 29 When may have such default set aside 29 When to make further answer CO Decisions respecting 30 When libel may be taken confessed against, for insufficient answer 30 When may object to answering libel 31 May require answer of libellant 32 May have attachment to compel such answer 32 May have libel dismissed, in default of 32 When may have decree for contumacy rescinded, and a re- hearing 40 District court : Appeals from, when to be made 45 Wlicn may make other rules 46 Exceptions : To answer for insufficiency, &c., when lie 28 Arc temporary or perpetual. 28 586 INDEX. RCLB. Exceptions (continued) : To answer deemed good, defendant lo answer further 28 Decisions respecting 28 To answer, for want of fullness 30 " allowed, further answer 30 " allowed, libel taken pro confesso 30 May be referred to a master 36 Allowed, objectionable matter to be expunged 36 Execution : To enforce decree, nature of 21 Foreign attachment : See Attachment, Foreign. Freight : When material men may proceed against 12 When suits for wages may be against 13 Suits against for hypothecation 17 How brought into court 38 Garnishee : Answer of, to be on oath 37 " how compelled 37 Effects in hands of, how disposed of 37 Hypothecation : Suit for, in rem or in personam 17 Can not he to an assignee 17 Wust he onlij on urgent necessity 17 Impertinence : Exceptions for, referred to master 36 Exceptions allowed, effect of 36 Imprisonment : Where abolished 48 INDEX. 587 Rdlb. Informations : Upon seizures, wliat to contain 22 Decisions rcsjwctlng 22 Upon seizures, to state causes of forfeiture 22 Upon seizures, to conclude witli prayer for process 22 To conclude against the statute 22 Upon seizures, to recjuire those in interest to appear 22 Arc not criminal proceedings 22 Amendments in, wlien of course 24 Amendments in, when on motion 24 Decisions respecting 24 Exceptions to, referred to master 3G Exceptions to aHowed, effect of 36 In personam : Mesne process in 2 Process to contain warrant of arrest 2 When marshal may take bail 3 Stipulation of bail, conditions of 3 Stipulation, summary proceedings on 3 Attachment in, how dissolved 4 Bail in may be reduced 6 New sureties may be required 6 Warrant of arrest for, only in cases over $500.00 7 Property and credits how attached 2 Suits by material men 12 Decisions respecting 12 Suits for wages 13 Decisions respecting 13 Suits for pilotage 14 Decisions respecting 14 Suits for damage by collision 15 Decisions respecting 15 Suits for assault IG Decisions respecting IG Suits for hypothecation 17 Decisions respecting 17 588 INDEX. Rule. In personam (continued) : Suits on bottomry bonds 18 Decisions respecting 18 Suits for salvage 19 Decisions respecting 19 Libels what to contain 23 Decisions respecting 23 When defendant to secure costs 25 When lihellunt to secure costs 25 Answer to be on oath and explicit 27 Answer may be excepted to 28 Compulsory process against garnishee 37 In rem : Suit against ship, &c., proceedings in 8 Property in hands of third persons, to be delivered to mar- shal 8 Process to be by warrant of arrest 9 Process, duty of marshal on 9 When ship delivered to claimant 11 When ship will be sold 11 Suits by material men 12 Decisicms resjyecting 12 Suits for mariners' wages 13 Decisions respecting 13 Suits for pilotage 14 Decisions respecting 14 Suits for damage by collision 15 Decisions respecting 15 Suits for hypothecation 17 Decisions respecting 17 Suits on bottomry bonds 18 Decisions respecting 18 Suits for salvage 19 Decisions respecting 19 Libels, what to state 22, 23 Decisions respecting same 22, 23 INDEX. 589 RULB. In rem (continued) : Claimant to verify his claim 20 Claimant to secure costs 26 Answer to be on oath, and explicit 27 Intervener, how may come in 34 Who may he intervenors 34 How freiffht, Sec, brought into court 38 Interrogatories : Defendant to answer on oath 23 What ones defendant need not answer 31 When libellant to answer 32 When libellant need not answer 32 Wlien taken pro confcsso 32 When oath to waived 33 Garnishee to answer 37 Intervenor : In rem, how may come in 34 " allegations of to be answered 34 " to give stipulation for costs 34 In rem, who may he intervenors 34 AVhen may apply for proceeds in court 43 When liable for costs, in such cases 43 Who may he intervenors in such cases 43 Decisions respecting 43 Irrelevancy: Of answer, libellant may except to 28 Of answer allowed, effect of 28 Exceptions for, referred to master 36 Exceptions allowed, effect of 36 Judge : Is a court, wherever lie may he 6 May order sale of perishable j^ropcrfy in vacation 10 590 INDEX. RVLB. Libel : W/iaf is a libel 1 Must be filed before pi'ocess can issue 1 Upon seizures, what to contain 22 " to jrive causes of forfeiture 22 o " must pray for process 22 Upon seizures, to give notice to all persons in interest to appear 22 In instance causes, what to contain 23 " to slate facts relied on 23 " may require answer on oath 23 Decisions respecting 23 Amendments in, when of course 24 Amendments in, when on motion 24 Decisions respecting 24 In personam, when defendant to secure costs 25 Answer to, to be on oath and explicit 27 When may be taken pro confesso 29 When heard ex parte 29 Order />ro confesso, when set aside 29 Decisions respecting 29 Penalty of not answering fully 30 AVhen defendant need not answer 31 When may be dismissed 32 Exceptions to, for surplusage, &c 36 " referred to a master 36 " allowed, effect of 36 Dismissed, suit not being prosecuted 39 LinEL OF INFORMATION : What is 1 lil BELL ANT : How to proceed in suits by material men 12 «< in suits for mariners' wages 13 " in suits for pilotage 14 " in suits for collision 15 INDEX. 591 ROLB. Li BELT- ANT (continuecl) : How to proceed in suits for assault IG " in suits for hypothecation 17 " in suits on l)ottomry bonds 18 " in suits for salvage 19 What process may have to enforce decree 21 May except to answer for insufficiency 28 Decisions resjyccting 28 May except to answer for not being full, &c 30 To answer on oath defendant's interrogatories 32 How compelled to make answer 32 Penalty for not answering 32 When oath of, waived 33 Effect of not prosecuting his suit 39 To he called before default 39 When to give security for costs 25 Mariners' wages : Suits for, in rem or in personam 13 A fourfold remedy for 13 Seamen may sue separately for 13 Suits for, how freight Sec, brought into court 38 Mariners : WJw constitute 13 Not reqxiired to secure costs 25 Marshal : To serve process, except when interested 1 When may take bail, in personam 3 When to receive property from third persons 8 How to execute warrant of arrest, in rem 9 How to execute writ of execution 21 To sell property except when interested 41 Can not gire varranty 41 Decisions respecting same 41 592 INDEX. Rule. Material men : Suits by, in rem and in personam 12 Claim of, a preferred claim 12 Only on foreign vessels 1" Mesne process : See Process, Mesne. Monition : In suits in personam, nature of 2 How to he served 2 In petitory and possessory suits 20 The jirocess to gain possession of property in the hands of a third person 38 Moneys : Proceeds of sale to be paid into court 42 In court, how disposed of 43 Notice : Of execution of warrant of arrest, when given 9 On seizures to be given to all interested 22 Oath : When libellant may require answer under 23 Statement of claimant to be under 26 Answers to libels to be on 27 When defendant may demand answer of libellant to be under 32 Either party may demand an ansiver under oath 32 When may be dispensed with 33 When can not he required 31 How administered 33 Owners of ships : Suits by, how commenced 20 INDEX. 593 Rdle. Pari'iks : May be exiimincd on oath by commissioners 44 Answers of, may he required under oath 32 Perishable property : When may be sold 10 AVhcn delivered to claimant 10 Stipulation on such delivery 10 Petitory suits : Commenced by warrant of arrest 20 Monition in, to appear and answer 20 Dejinition of 20 Pilotage : Suits for, in rem or in personam 11 8uits for, not in the case of foreign vessels 11 Suits for, how freight &c., brought into court 38 Pleadings : Double, not allowed 27 Protracted ones, when may he nsed 27 Requisites of. 27 Possessory suits : Commenced by warrant of arrest 20 Monition in, to appear and answer 20 Definition of. 20 Practice : Decisions concerning the general practice of the district courts, ante pp. 189 - 203. Process, mesne : Not to issue until libel fded 1 In suits in personam 2 In suits in rem 'J Process : Marshal to sei^e except when interested 1 Hoic drawn, signed and tested 2 38 594 INDEX. Rui.B. Process (continued) : Of execution, summary on stipulations 3 In proceedings m rem 9 In rem., notice of execution of 9 In suits by material men 12 " for mariners' wages 13 " for pilotage 14 " for collision 15 " for assault 16 " for hypothecation 17 " on bottomry bonds 18 " for salvage 19 " petitory and possessory 20 Pro confesso : Libel against defendant so taken for want of answer 29 Such order when set aside 29 Libel taken for inexplicit answer 30 Interrogatory taken against libellant 31 Property : How attached in personam 2 How attached in rem 9 In hands of third persons, how brought into court 38 Decisions respecting the same 38 Sales of, to be by marshal 41 Proceeds to be paid into court 41 Claimants for such proceeds 43 Who majj make such claim .... 43 Rehearing : In case of contumacy and default of defendant, when granted 40 Reference : To a master of exceptions for surplusage, &c 36 Of matters to commissioners, when 44 Decisions respecting same 44 INDEX. 595 Rule. Relkvancy : Of" answer, exccplions lor 28 Reference to master for 30 Uei'lication : When not necessary, and uhen maij he made 27 Rules : When the courts may make others 46 When to take efl'ect 47 Repeal of 47 Sale of property : By whom to be made 41 No warranty 07i 41 Proceeds of, how disposed of 41 Decisions respecting same 41 Salvage : Suits for, in rem or in fcrsonam 19 Decisions respecting 19 How regulated, and rates of 19 Suits for, how attached properly brought into court 38 ScAiXDAL : Exceptions for, may be taken 3G " referred to a master 36 allowed, effect of 36 Ship : When may be delivered to claimants 11 When may be sold II Claimant can not disfi//e ralue designated in tJie stipulation 1 1 Stipulation : When marshal may take in suits in personam 3 Condition of, in such cases 3 May be enforced summarily 3 596 INDEX. Rule. Stipulation (continued) : On dissolution of attachment in jicrsonam 4 How such enforced 4 Before whom may be taken 5, 35 When amount of may be reduced 6 On delivery of perishable property to claimant 10 On delivery of ship lo claimant 11 For costs by defendant, in suits m personam 25 For costs by claimant, in suits in rem 26 By an intervenor to abide by decree, &c 34 Taken hy commissioners, practice in 35 Hoic construed, and decisions concerning 35 Sureties : To bonds and stipulations in suits in personam, how pro- ceeded against 3 Sufficiency of, liow determined 3 Not relieved hy surrender or death of j^rincipal 3 On dissolution of attachment in, personam, how proceeded against 4 To stipulation on delivery of perishable property 10 " on delivery of ship to claimant 11 " of defendant in 2)ersonam, to secure costs . . 25 " of claimant in rem, to secure costs 26 " of intervenor 34 Surplusage : Exceptions for, may be taken 36 " to be referred to master 3G " allowed, effect of 36 Torts : Marine, jurisdiction in cases of. 16 Witnesses : May be examined by commissioners on refin^ence 44 Warrant V : None given on sales of property 41 APPENDIX: CONTAINING TUE ORDERS OF THE HIGH COURT OF CHANCERY IN ENGLAND, IN FORCE 1st august, 1842; AND ALSO THE NEW ORDERS OF THE SAME COURT, ADOPTED IN 1845; AND ALSO A LIST OF THE JUSTICES, REPORTERS AND CLERKS OK THE SUPREME COURT, ANI> OK TllK. TIMES AND PLACES OF HOLDING THE FEDERAL COURTS, AND OK THE OFFICERS OF THE SAME. O 11 D E 11 S HIGH COURT OF CHANCERY OF ENGLAND : As in Force August 1st, 1842. PREFACE. The practice of the High Court of Chancery, in England, has always been regarded by the Federal Courts of the United States, since the time of their organization, as aifording outlines for their practice, subject, however, to the right of making such altera- tions of the same as circumstances should render necessary. As early as 1791, the Supreme Court had its attention directed to this subject by the then Attorney General of the United States, and at that time promulgated the following order, which is the seventh rule of that court. " The Chief Justice, in answer to the motion of the Attorney General, made yesterday, informs him and the bar, that tliis court consider the practice of the courts of King's Bench, and of Chan- cery, in England, as affording outlines for the practice of this court ; and tliat they will, from time to time, make such altera- tions therein as circumstances may render necessary." A like recognition of tlie general efficacy and force of the rules of the English Court of Chancery, and of the King's licnch, is found in an anonymous case reported in 2 Dallas, 411. The late Rules of Ei^u'ity, pronuilgated by the Supreme Court in 1S42, have also a provision similar to the one in the rule above quoted. It is numbered as ruU' ninety of the Rules of E(|uity, and is as follows : " In all cases where tlie rules prescribed by this court, or by the Circuit Court, do not apply, tlie practice of tlie Circuit 602 PREFACE. Court shall be regulated by the prese7it practice of the High Court of Chancery in England, so far as the same may reasona- bly be applied consistently with the local circumstances and local convenience of the district, where the court is held, not as positive rules, but as furnishing just analogies to regukite the practice." The principle and extent of this rule have also been maintained and supported by the Supreme Court in the cases of Story vs. Livino-ston, 13 Pet. o59, 3GS: and of Rliodc IsIandxB. Massachusetts, 12 Pet. 735, 739 ; and by the same case in 14 Pet. 210, 256 ; and also by the Circuit Court of the first circuit, in the case of Emer- son vs. Davies, 1 Wood, and Min. 21, 24 ; and S7nith vs. Burnham, 2 Sum. 612. The Code of Rules, of which the one last quoted makes a part, was promulgated on the 2d of JVIarch, 1842, to take effect on the 1st of August following ; and as those rules adopted the then ^^ present jmiciice'' of the English Court of Chancery, it would not probably be maintained by any one, that changes made in the English practice, since that time, are of any binding force, or would be recognized and acted upon by the Federal Courts, without some further rule or order of adoption. But as great and important changes and modifications have been going on in the English courts for the last five years, and as in 1845 the English Court of Chancery revised the whole body of their rules of practice, and adopted an entire new code, I have thought it would be well, or at least not inappropriate, to give the orders of 1845, as well as those in force in 1842. I annex hereto, firstly, the orders of the High Court of Chan- cery of England in force on the 1st of August, 1842 ; and secondly, the new and revised orders of 1845, for the convenience and satisfaction of those who may wish to note the changes and modifications adopted. — (Ed.) ORDERS OF APRIL 3, 1828, As amended November 2;)d, ISol. Order I. That every plaintiff, avS well in a country cause as in a town cause, shall be at liberty, tvithout affidavit^ to ol)tain an order for a subpoena returnable immediately ; but such subpoena in a country cause is to be without prejudice to the defendant's I'ight to eight days' time to enter hia appearance after he has been served with the subpoena. Order II. That a writ of subpoena to appear^ or to appear and anstver^ shall be sued out for each defendant, except in the case of husband and wife defendants; and that the costs of all such*writs shall be costs in the cause. Vide 5th order of 1833. Order III. That a defendant in a country cause, shall no longer be permitted to crave the common dedimus ; but shall either put in his answer within eight days after his appearance, or shall obtain the usual orders for time. Vide lOth order of 1833. 604 APPENDIX. Order IV. Tliat in all cases, whether the defendant's answer be tiled in term time or in vacation, the plaintiff shall be allowed two moiiths to deliver exceptions to such answer; l)ut if the exceptions be not delivered within the two months, the answer shall thenceforth be deemed sufficient, and the plamtift' shall have no order to deliver exceptions nunc pro tunc. This order relates to exceptions for insvjjiclency only, (see Bradbury vs. Boohcr, 4 Simons, 325) not to exceptions for impertinence. Ibid. See 19 th order. Order Y. That when exceptions taken to an answer for insuffi- ciency are not suljmitted to, the plaintiff may at the ex]:)iration of eight days after the exceptions are delivered, but not before, unless in injunction causes^ refer such answer for insufficiency ; and if he do not refer the same within the next six days, he shall be considered as having abandoned the exceptions; in which latter case such answer shall be thenceforth deemed sufficient. Vide 12th and 19th orders. • Where the plaintiff has, before answer, obtained an injunction, and when the anwer is put in he excepts thereto, he can not move to refer the exceptions inMantcr, but it seems that the defendant may so move where by overruling the exceptions he will dissolve the injunctions. 6 Madd. 102. Order VI. [.1 s cmiended^ That if the plaintiff do not, within three weeks after a defendant's second or third answer is filed, APPENDIX. 605 refer the same for insufficiency on the old exceptions, such answer sliall thenceforth be deemed sufficient. Vide 12lh and 19th orders. Order VII. That if tlie plaintiff do refer a defendant's second or third answer for insufficiency on the old exceptions, then the particular exception or exceptions to which he requires a further answer shall be stated in the order. Order VIIT. That if upon a reference of excej^tions the master shall find the ansAver insufficient, he shall fix the time to be allowed for putting in a further answer, and shall specify the same in his report, from the date whereof such time shall run, and it shall not be necessary for the plaintiff to serve a subpcena for the defendant to make a better answer. And any defendant who shall not put in a further answer within the time so allowed, shall be in contempt, and be dealt with accordingly. See ISth order of 1833. Ordinarily a defendant who is in custody for want of an answer, is, on putting in an answer, entitled to be discharged witlwut waiting for the report that it is sufficient. 16 Ves. 418 ; Farquharson vs. Balfour, Turn, and Russ. 184. The master's report shouhl be actually filed before any proceeding upon it is taken by the plaintiff', as, for instance, obtaining an order for an injunction JVynnc vs. Jachson, 2 Sim. and Stuart, 226 ; Rushto/i vs. Troughto7i, 2 Simons, 33. The master allowed exceptions to an answer for insufficiency, and fixed a time for putting in a further answer. After that time expired, the defendant moved for further time; motion refused, the defendant 606 APPENDIX. being in contempt under this order ; the vice-chancellor observing that the defendant ought to have applied for further time before the time fixed by the master had expired. W?ieat vs. Graham, 5 Simons, 570. See 19th order of 1S33, by which a povs'^er is given to the master on hearing exceptions for insufficiency to award costs. Order IX. Tlaut if iij)oii a reference of exceptions the answer be certified sufficient, it shall be deemed to be so from the date of the master's report ; and if the defendant submit to answer without a report from the master, the answer shall be deemed insufficient from the date of the submis- sion. Order X. That upon a third answer being reported insufficient, the defendant shall be examined upon interrogatories to the points reported insufficient, and shall stand committed until such defendant shall have perfectly answered such interrogatories; and shall pay, in addition to the four pounds costs heretofore paid, such further costs as the court shall think fit to award. Order XL That no order shall be made for referring any pleading or other matter depending before the court for scandal or im/pertinence^ unless exceptions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent, nor unless such order be obtained within six days after the delivery of such exceptions. For the form of exceptions for impertinence under this order, see Wagstqff \&. Bryan, 1 Russ. and My. 28. APPENDIX. 607 It appears that interrogatories and depositions will not be referred for impertinence alone, without scandal. White vs. Fusstll, I'd Ves. 113. An exception for impertinence fails if «??j/ y^for/ of the passage in- cluded in it be not impertinent. 1 Russ, and My. 28. An answer to the usual interrogatories in a bill against an executor as to the particulars of personal estate, and for what it sold, a schedule annexed to the answer in which every particular article of personal estate was set foi'th, and what it sold for, was, on exceptions, held to be impertinent ; it being only necessary to state the whole amount for which it sold. The V. C. stating that the defendant might have satis- fied himself by alleging that the household furniture was sold by auc- tion at such a time and place, and by such a person, and produced such a sum. Beaumont vs. Beaumont, 5 Madd. 51. Statements in an answer arc impertinent if they are neither called for by the bill, nor material to the defence with reference to the order or decree which may be made on the bill ; and — Statements in an answer to a bill of revivor, which merely show irregularity and misconduct in the former proceedings in the suit, are impertinent. Wagsta^' vs. Bri/an, 1 Russ. and My. 28 ; Devaynes vs. Morris, 1 My. and C. 213. See also Mefcalfe\&. Metcalfe, 1 Keen. 74. Upon the general question of what is and what is not scandal and impertinence, see Alsagcr vs. Johnson, 4 Ves. 217 ; Lord, St. John vs. Ladij St. John, 11 Ves. 526 ; Corbett vs. Tottenham, 1 Ball and B. 59 ; Norway vs. Roicc, 1 Meriv. 347 ; Parker vs. Fairlie, 1 Sim. and St. 295 ; 15 Ves. 477 ; 2 Madd. 176 ; 5 Madd. 450. Bill filed for the common injunction to stay proceedings at law; the dcfeiidant referred the bill for impertinence ; the master leported it not to be impertinent. Held that the plaintiff was entitled to his injunc- tion, as of course, no answer having been filed. 3 Swanst. 232, n. A plaintiff" can not refer an answer for impertinence after replication, or an undertaking to speed the cause ; but it is stated tluit he may refer for scandal at any time. 3 Swanst. 232, n. Sed quare, if not too general — Ed. See also Re Burton, 1 Russ. 380. A plaintiff can not refer for impertinence an afBdavit filed in support of a motion, if after that affidavit was filed, he has filed any aflRdavit in opposition to the motion. Keeling vs. lloskins, 2 Russ. 319. Contra as to scandal. See also Re Burton, 1 Russ. 380. 608 APPENDIX. After a reference for insvjfjcienci/, an answer can not, it seems, be referred for impertinence. Per Lord Eldon, 6 Vesey, 458. An answer was referred for scandal, on tlie motion of another de- fendant. Coffin vs. Coffin, 6 Ves. 514. It seems also to be competent to a person, not a party to the record, to apply- Lb. Although it was said by the lord chancellor, in J(Jj'<'nj vs. McCahe, 1 Russ. and My. 739, that it was too late to except to an answer for impertinence, when the time has expired after which, according to the new orders, the answer is to be deemed sufficient, the contrary was de- cided by the V. C. in Bradhunj vs. Booker, 5 Simons, 325, Order XII. That when any order is made for referring an answer for insufficiency^ or for referring an answer or other pleading or matter depending before the court for scandal or impertinence., the order shall be considered as aban- doned, unless the party obtaining the order shall procure the master's report within a fortnight from the date of such order, or unless the master shall within the fortnight certify that a further time, to be stated in his certificate, is necessary, in order to enaljle liim to make a satisfactory report; in which case the order shall be considered as abandoned if the report be not obtained within the further time so stated ; and where such order relates to alleged insufficiency in an answer, such answer shall be deemed sufficient from the time when the order is to be considered as abandoned. This order was held not to apply to cases in bankruptcy. Ex j^a'rte Chester, matter of Yates, 1 Montague's Cases in Bankruptcy, 17. Vide 8th order and 19th order; et vide 22d order of 1833, {post) as to the mode of proceeding upon a reference to the master for scandal or impertinence. APPENDIX. 609 Okdeh XIII. [A,9 arnpjndfid. \ Tluit after an answer has been filed the plaintiff shall be at liljerty, before filing a replication, to o])tain, upon motion or petition without notice, one order for leave to amend the bill ; but no further leave to amend shall be granted after an answer and before i-eplication, unless the court shall be satisfied by aflidavit that the draft of the intended amendments has been settled, approved and signed l)y counsel, and that such amendments are not intended to be made for the purpose of delay or vexation, but because the same are considered to be material to the case of the plaintiff; such afifidavit to be made by the plaintiff, or one of the plaiutifts where there is more than one, and his, her, or their solicitor, or by such solicitor alone, in case the plaintiff or plaintiffs, from being abroad or otherwise, shall be unable to join therein; but no order to amend shall be made after answer and before replication, either ^vithout notice or upon affidavit, in manner heroin before mentioned, unless such order be obtained within six weeks after the answer, if there be only one defendant, or after the last of the answers, if there be two or more defendants, is to be deemed suffi- cient. But this order shall not extend to amendments which are made only for the purpose of rectifying some clerical error, error in names, dates or sums; in which cases, the order to amend may be obtained upon motion or petition without notice. The practice is now governed by the IGth amended order, but the following notes upon this, are considered by the editor to be ajiplicable to that order. It was held by the vice chancellor to be irregular to amend when 39 610 APPENDIX. more than six weeks had elapsed from the time when the answer oi all tlie defendants, who were by the bill stated to be within the jurisdiction, were to be considered sufficient, though no answer had been filed by the party alleged to be out of the jurisdiction, against whom process was prayed when he should come within the jurisdiction ; the iiarty stated to he ovt of the jurisdiction being, for this pttrposc, not con- sidered as a defendant on the record. See The King of Spain vs. Hul- lett, 1 Russ. and My. 7. Where, upon exceptions being allowed, or submitted to, the jilaintiff moves to amend, and that the defendant may answer the amendments and exceptions at the same time, it was held that neither notice of the motion, nor an affidavit in support of it, is necessary. Mendizahcl vs. The King of Spain, V. C. 24th March, 1830, Ed. MSS. See also Mendizahel vs. Ilullett, 1 Russ. and My. 324 ; Bird vs. Hustler, Ibid, 325. Where, after a replication had been filed, the plaintiff had, on spe- cial leave, amended his bill in such a manner as to call for an answer, it was held that he might afterwards obtain, as of course, xx. further order to amend at any time before the answer to the amended bill was put upon the file. Wharton vs. Swann, 2 My. and K. 362. See notes to 15th order, the 19th order and notes, and the 20th order of 1833. By the present practice a plaintiff may, before answer, obtain by mo- tion or petition of course, and without notice, any number of orders to amend which he may think fit. See Bird vs. Hustler, 1 Russ. and My. 325 ; and CoUingworth vs. Grundy, 2 My. and K. 359. But this pro- position must not be understood to apply to those cases in which, before the new orders came into operation, as now, a special application for leave to amend, even in the first instance, is necessary, as in the case of a motion to amend without prejudice to the common injunc- tion. The plaintiff, after the defendant had answered, amended by adding another defendant. After that other defendant had answered, the plain- tiff again moved ex parte to amend, not requiring any answer from the original defendant; motion granted by the V. C, the plaintiff under- talcing not to serve the original defendant with a subpoena to answer the amendments. Evans vs. Hughes, 5 Simons, 666. It was held by the L. C, that if a defendant is added by amendment ArPENDIX. 611 after answer, no further amendment of the 1)ill can be made, even as against that defendant, except upon an apphcation supported in the manner required hy this IStli order. The Attorney Ciemrol \:i. Nether- coat, 2 My. and C. G04. Amendment of a bill after exceptions allowed and not answered, does not prejudice tiie common injunction previously obtained. There- fore it is a motion of course for leave to amend, and that the defendant may answer the amendments and exceptions together. Dijijx^r vs. Durant, 3 Meriv. 465; Aclncy vs. Flood, 1 Madd. 449. Where, under an order to amend, after the defendant had answered the original bill, the plaintiff" amended the bill hij making (piitc a diffe- rent case, as where by the original bill he sought to set aside a deed, but by the amended bill he sought lo establish it. The court ordered him to pay the costs of the original bill, and of certain accounts set forth in the answer, in compliance with the prayer of that bill, as well as the costs of tlic motion. Maror vs. Dry, 2 Sim. and St. 113. It was said by the court that there was no instance of a bill of dis- covery being amended by adding parties as plaintiff's. ChoJmondcley vs. Clinton, 2 Meriv. 74. After answer to a bill of discovery, a motion to amend the bill, by adding a prayer for relief, was refused with costs. Biitteruorth vs. Bailey, 15 Yes. 358. See, however, what is said in Lord Rcdcsd. Treat. p. 201, 4th ed. After answer to a bill for disrorcry and relief, amotion to amend by striking out the prayer for relief was refused. Earl Cholmondeley vs. Lord Clinton, 2 Ves. and Bea. 113. The practice of amendment^ as connected with exceptioiis to the answer for iiisiffficicncij. Exceptions to an answer held to be waived by a motion of course to amend the bill ; the plaintiff" should move specially for liberty to amend, without prejudice to the exceptions. De La Torre vs. Bcrnalcs, 4 Madd. 396. It was held that exceptions to an answer filed afler tlie hill had been amended, would not be taken off" the Hie, if no answer was required to the amendments. Miller vs. Whcatlcy, 1 Sim. 29G ; et vide the case of Dipper vs. Durant, 3 Meriv. 465. 612 APPENDIX. Tke 'pracUcc of amendment in Lij miction Causes. The general opinion of the profession is, that a plantiff" may amend after havino; obtained a special injunction, as in all other cases, and that such motion will not prejudice the injunction so obtained, but it is clear that a phiintitr having obtained the common injunctions (i. e. to stay pro- ceedings at law) loses that injunction by obtaining the common order to amend ; the course that a plaintiff", having obtained the common injunc- tion, and being desirous to amend his bill, should adopt is, to apply by special motion, on notice, to the court, for liberty to amend without pre- judice to the injunction, and although this application is a special one, it was held by Lord Langdale not to be within the jurisdiction of the master under 3 and 4 W. 4, c. 9i, ss. 13, 14, by reason that the plaintiff so applying to amend, applies for something more, viz : that the amend- ment may be without prejudice to the injunction. See llecs vs. Ed- wards, 1 Keen, 4G5. In reference to this subject it may be useful to draw the reader's attention to the case oi Sharp vs. Ashton, 3 Ves. and B. 144, in which Lord Eldon appears to have settled the practice by holding that the plaintiftMn a bill for an injunction to stay proceedings at law, must state at once the whole case within his knowledge, but that the court, though very jealous of amendment without prejudice to the injunction, permits even re-amendment, ascertaining precisely its nature, and by clear and positive affidavit that the plaintiff had not a knowledge of the facts, enabling him to bring that case upon the record sooner, and on payment of costs. See also Turner vs. Bazelcy, 2 Ves. and B. 330. As to amendments hij merely adding parties, vide the notes to the 15th order. As to amendments which arc allowed on tlie hearing. The court, notwithstanding the new orders, will, on the hearing of a cause, permit it to stand over, and give the plaintiff' leave to amend by adding the necessary parties ; and in a case in which a specialty creditor filed a bill for the payment of his debt out of his debtor's real estate, the court, holding upon the opening of the plaintiff's case that no decree could be made, unless the specialty creditor sued on behalf of himself and all other the creditors of the deceased, gave the plaintiff' liberty to amend by so framing his bill. Johnson vs. Conipton, 4 Sim. 47. See also Attorney General vs. Newcombe, 14 Ves. 1. APPENDIX. 613 Where money had been secured by a mortgage for a term, and by a trust for sale of tho fee, and the mortgagee had filed a bill praying for a sale only, and upon the vice chancellor holding on the hearing, that upon the bill so framed the plaintiff was not entitled to foreclose the fee, nor, unless he prayed for it, to a foreclosure of the term, gave the plaintiff", on the hearing, leave to amend his bill by praying lor such foreclosure of the term. Kerrick vs. tiaj'enj, 7 Sim. 317. A bill in relation to a married woman's separate property had been filed in the name of the husband and wife. The court held that this must be considered as the suit of the husband, and refused to en- tertain it in that form, but gave leave iijr the cause to stand over, with liberty to the plaintiffs to amend by introducing a next friend for the wlf(' in the place of the husband, and striking out the name of tlu^ husband as a co-plaintiff, and security for costs up to the time of such amendment. Oicden vs. CamjiheJl, V. C, April 28, 1837. Ed. MkSS. But it has been held that under an order made at the hearinor, that the cause should stand over, with liberty to the plaintiff" to amend his bill by adding parties as he should be advised, or showing why he was unable to bring all proper parties before the court; the plaintiff" is not entitled to add parties as co-plaintiffs, and intioduce new statements and charges in the bill relating to such co-plaintiff"s. Milligan vs. Mitchell, 1 My. and C. 433. See also Bierderman vs. Seymour, 2 My. andC. 117. Order XIV. That every order for leave to amend the bill shall contain an midertaking by the plaintitt* to amend the l.ill within three weeks from the date of the order ; and in deftinlt thereof such order ^hall become void., and the cause shall, ct'sfar as relates to any ^notion to dismiss the hill for want of prosecution., stand in the same situation as if such order had not been made. Vide 19th order, and the notes thereto. 614 APPENDIX. Order XV. That after a rejflkation has been filed, the phiintiff shall not be permitted to withdraw it and to amend the bill without a special order of the court for that purpose, made upon a motion, of which notice has been given; tlie court he ing satisfied h>j affidavit that the matter of the proposed amendment is material^ and could not^ tvitli rea- sonahle ddigence^ hctve been sooner introduced into the hill. The special application prescribed by this order must now be made to the master, Seej^ost, pp. 66, 82. See Wharton vs. Swann, 2 My. and K. 362, in which it was held that where, after a replication had been filed, and the plaintiff' had, on special leave, amended his bill in such a manner as to call for an an- swer, he might afterwards obtain, as of course, a further order to amend at any time before the answer to the amended bill was put upon the file. The above mentioned 15th order does not apply to an amendment by adding parties only. Brattle vs. Waterman, 4 Sim. 125. An application for leave to amend by adding parties, even after re- plication, is a motion of course, and should, therefore, be made to the court and not to the master. Ed. et vide next note. A plaintiff" may amend by adding parties after replication without withdrawing it ; so he may amend, without withdrawing his replica- tion, by stating that a defendant already on the record Jills another character, such as a personal representative, where such personal re- presentative is a necessary party, and the fact has not been previously stated by the bill. See Andrec vs. , Dick, 768. The reason why an amendment by adding j^artics merely in any stage of the cause before the hearing is permitted, is, that as the court invaria- bly allows a cause to stand over at the hearing where a want of proper parties appears, and gives the plaintiff" liberty to amend by adding parties, it would be absurd that he should be compelled to set down and bring on his cause to bo heard for the mere purpose of having the objection taken on the hearing, and ol)taining leave to amend, through such a circuity of proceeding : and the reason why an amendment APPENDIX. 015 after replication by adding parties may be made without withdrawing the replication is, that it is never willidrawn wliere the pluititiff avails himself of the leave to amend by adding parties given him by the court upon a cause standing over for that purpose. Ibid. It appears that where a plaintiff obtains leave to amend by merely adding parties, he will be held strictly to that particular amendment, and to the insertion of the matter, if any, necessary to show the mate- riality of such new parties; thus, where a cause had gone off' at the hearing for want of parties, with liberty to the plaintiff" to amend by adding the necessary parties, and the plaintiff", under the order giving that liberty, extended the amendment by striking out many charges in the bill which the former defendant had answered, such charges were ordered, on the application of that defendant, to be restored, that the court might give him the costs incurred by such part of the bill as the plaintiff' had waived. Bullock vs. Perkins, Dick, 110. When a cause stands over with liberty to amend, a motion mav afterwards be made by the defendant to accelerate the amendment of the bill, and for the costs of the application, and the court will order the plaintiff' to amend within a limited time, and if the notice of motion asks for them, to pay the defendant's costs of the application. Cox vs. AUingham, 3 Madd. 393. Order XVI. [As amended^ That wliere the answer of a defendant is to be deemed sufficient, whether it be in term-time or in vacation, if the pLiintiif or plaintiff sliall not i)roceed in tlie cause, the defendant shall be at liberty, after the expiration of two months, to move, on notice, that the bill be dismissed witli costs for Avant of prosecution; and the bill shall accordingly be dismissed \\\i\\ costs, unless the plaintiff or ]>laintifts shall api)ear upon such motion, and give an undertaking to file a replication, and serve a subpcena to rejoin ; and in case he requires a connnission to examine witnesses, shall obtain and serve an order for such commission, within three weeks from the date of such 616 APPENDIX. undertaking : or unless the plaintiff or plaintiffs, without filing a replication, shall appear upon such motion, and give an undei'taking to hear the cause as against the defendant, making the motion uj)on bill and answer : or unless it shall appear tliat the plaintiff or plaintiffs, is or are imable to proceed in the cause, by reason of any other defendant or defendants not having sufficiently answered the bill, and that due diligence has been used to obtain a sufficient answer or answers, from such other defendant or defendants ; in which case, the court shall allow to the plaintiff or plaintiffs, such further time for proceeding in the cause jis shall appear to the court to be reasonable. And in case the plaintiff or plaintiffs do appear upon the motion to dismiss, and give the undertaking to file a rephcation, and take the other proceedings consequent thereon, herein before required, then all the rules and regulations, with respect to the commission and the return thereof, and the settmg down the cause for hearing, and the rights of the defendant with respect to the commission, in case of any default on the part of the plaintiff, which are particularly expressed in the next order, shall apply to all cases under this order. A defendant may move to dismiss a bill for want of prosecution pending an injunction, and also pending a notice given by him of a motion to dissolve an injunction which the plaintiff had obtained. Far- quharson\^. Pitcher, 3 Russ. 383; Naylor vs. Naylor, 16 Ves. 127. If a notice of a motion to dismiss a bill for want of prosecution is given for too early a day, the defect is not cured by the motion being accidentally postponed to a day when it might have been regularly made. De Geneve vs. Ilannam, 1 Russ. and My. 494. If a defendant, who is in a situation to dismiss a bill for want of prosecution after application filed, does not avail himself of his right, but permits the plaintiff to file interrogatories and examine witnesses, APPENDIX. 617 he can not afurwards dismiss the hill liir want id' prusr-culiun, and an order of dismissal subsequently obtained may be discharged iur irre- gularity. Femes vs. ITutckinson, 1 lluss. and My. 22. Upon a motion to dismiss for want of prosecution, the delay in pr*;- secuting the suit was satisfactorily accounted fur. The court refused to make any order upon the motion or to require the plaintifl' to undertake to speed the cause. Vent vs. Paeey, 3 Sim. 382 ; sed vide Barber vs. Kavanagli, (^w*^ p. /^/3) and Partington vs. BaiUie, (jjost p. 56). If between the time of giving a notice of motion to dismiss for want of prosecution and the making of the motion, the plaintiff" obtains an order to amend, the plaintiff", must pay the costs of the motion to dismiss, but no order will be made upon it. Davenport vs. Maimers, 2 Sim. 514. Peacock vs. Sierier, 5 Sim. 553. But it seems, that if the amendment is one which requires no fuilher answer, it will not operate against a motion to dismiss for want of prosecution. Branston vs. Carter, 2 Sim. 458. Hollings vs. Kirhy, V. C. 17 July, 1835. Ed. MSS. ; 1 Turn. & Russ. 310. If the plaintiff" ,^/c* a rcjjJicdtion after a notice of motion lo dismiss for want of prosecution, but l)ef()rc llie motion is made, it (the motion) is not sustainable, but the defendant is entitled to the costs of it. Spurrier vs. Bennett, 4 Madd. 39. A motion to dismiss a bill to j'erpctuate tcstiinomj for want of prose- cution, is irregular. The proper application is, that the plaintiffs may proceed loilhin a given time, or mau pay the difendant his costs. IVrig/tt vs. Tat/tam, 2 Simons, 459. An application to dismiss a bill of discovery for want of prosecution, is irregular — the proper course to be pursued by the defendant for payment of his costs being an ex parte a])plication by motion for an order for the taxation and payment thereof; but this order should not be applied for until the time allowed to the plaintiff" for taking e.xcep- ticns to the answer for insufficiency has expired. See 4 Ves. 746 ; 5 Ves. 86; 1 Madd. 344; but if the plaintiff" obtains an order to amend the bill of discovery, which may be done either to obtain a fuller discovery, or, if the case appearing on the answer will warrant the proceeding, by adding to the bill a prayer for relief (see Lord Kedesd. Treat. 201, 4th ed ) ; the defendant cannot, it seems, obtain the com- 618 APPENDIX. nion order for his costs, until after, in the first case, the amended bill shall have been answered, and the time for excepting to such answer expired ; or, in the second case, before the hearing of the cause, unless the bill should become dismissible for want of prosecu- tion. The difficulty in getting in the answer of a party stated by the bill to be 07it of the jurisdiction of the court, would seem to form no excuse for the plaintiff's not proceeding, and consequently be no answer to a motion to dismiss. See The King of Spain vs. Hullett, 1 Russ. & My. 7. An order to dismiss a bill for want of prosecution, after an ahate- ment, although irregular, is not to be regarded as a nullity ; consc- (piently, that order must be discharged before the plaintiff can obtain an order lo revive the suit. Boddij vs. Kent, 1 Meriv. 3G1. The order made upon the plaintiff's meeting a motion to dismiss, by giving the usual undertaking to speed the cause, is to the following effect, viz : " That the plaintiff do file a replication, serve subpoenas to rejoin, and obtain and serve order for a commission to examine witnesses, if he rerp/ire such commission within three weeks from this time, and give rules to produce witnesses, and pass publication in term [the term next hut one after the order'], and set down the cause for hearing, and serve suhpamas to hear judgment in term next [the third term after the date of the order], or in default thereof, that the plaintiff's bill do stand dismissed out of this court with costs to be taxed by the master in rotation, in case the parties differ. " The plaintiff's solicitor, before he instructs counsel to give this undertaking, should consider the effect of it with regard to the situation of the parties and the state of the record ; for where the bill is so framed that it is necessary to add parties, it will in most cases be difficult, and in some impossible, to bring up the new parties lo the same level of proceeding, upon which he will be obliged to place the former defendants by his undertaking to speed. In a case so cir- cumstanced, the plaintiff's solicitor should by affidavit account for the delay in bringing the new parties before the court, and show the state of the record, and the necessity of adding parties. Upon the court being satisfied on these points, it will neither dismiss the bill, nor put the plaintiff upon any undertaking to speed the cause, but will order APPENDIX. 6 1 9 the motion to .stand over, giving the plaintiff, by the same order, liberty to make the necessary amendment. IlolVivgs vs. Kirhhi/, \. C, 11 th March, 1835. Ed. MSS. In this case the plaintifl", pursuant to the leave of the court, amended the bill, by adding new parties; and the defendants, who liad previously moved to dismiss, a i^cw davs after answering the amendments, renewed the motion ; but the vice chan- cellor, iiudcr tlic lirrinustancrs, directed it again to stand over till the first day of the following Michaelmas term. HoUings vs. Kirkhy, V. C, 17th July, 1835. Ed. MSS. Where a cause had come on to be heard, and had stood over witli liberty for the plaintiff to amend hi/ adding y^rt/-//V.v, and he had accordingly amended, but j)roceeded no further, it was held that the original definulant might move to dismiss the bill for want of pi-osecu- tion, and that it was not necessary to set the cause down again for that purpose. Mitchcl y?,. Loundc.s, 2 Cox, 15. Scd fjnnre. As a sole plaintiff" or defendant, or jnoche'ni amy, or one of several plaintiffs or defendants, in a bill for relief may die or become bank- rupt, or insolvent, before the hearing, it may be useful to show the distinctions which exist in those cases, and ihe pioceedings which can be regularly taken by a defendant who may be desirous of urging on or dismissing the suit for want of prosecution. 1st, Where a sole -plaintiff becomes bankrupt or insolvent after ansivcr. The proper proceeding is a motion by the defendant, upon notice served on the assignee of the plaintiff [and, since the new orders, I should think on the bankrupt], that the assignee may file a supple- mental bill within a given time, (generally a fortnight,) or that the bill may stand dismissed without costs. Randall vs. Muniford, IS Ves. 424. Porter vs. Cox, 5 Madd. 80. f/^ow the hanlcruptcij of a sole idainl iff, in an injunction hill. Lord Eldon stated the practice to be not to dissolve the injunction, but that the defendant might move that the assignees should come in, or tlie injunction be dissolved. See 18 ^'es. 427 ; see also 2 Dick. 471. But where a perpetual injunction had been decreed, it was held not to be necessary upon an abatement to revive, merely to keep that 620 APPENDIX. injunction on foot. Yeoman vs. Kilvington, 1 Dick. 351 ; Askew vs. Tou-/iscnd, 2 ib. 471. 2d. Where one of several plaintiffs becomes bankrupt or insolvent. The practice was settled by the vice chancellor, that the defendant may make the common motion to dismiss for want of prosecution with costs. Craddick vs. Masson, 1 Sim. 501 ; vide also IS Yes. 426. 3d. When a defendant becomes a bankrupt. It has been held that he may, notwithstanding his bankruptcy, move to dismiss for want of prosecution with costs. Monteith vs. Taylor, 9 Ves. 615. See also Booth vs. Smith, 5 Simons, 639. 4th. Where one of several plaintiff's dies, even before answer. A defendant may move that the surviving plaintiffs may be ordered to revive the suit within a given time, or that the bill may be dismissed with costs. See Adamson vs. Hall, 1. Tui'n. 258. And where one of several plaintiffs dies after answer, such a molion is regular. See Wood vs. Bethmie, 2d June, 1S20; Reg. Lib. B. 1819, 1183. The editor conceives that the same proceeding may be taken when a suit abates by the death of a co-defendant. The difference in the course of proceeding on the part of a defend- ant in the several cases of death and bankruptcy, arises from the dis- tinction that death ordinarily works an abatement, but that bankruptcy or insolvency merely renders the suit defective for tcant of proper par- ties. See IS \^es. 426 ; Booth vs. Smith, 5 Simons, 639. On the death of a prochein amy. A married woman being plaintiff, and her j^rochein amy having died, it was ordered that she should name a new prochein amy within two months, or that in default the bill should be dismissed, and the defend- ant's costs paid out of the fund in court, Barlee \&. Barlce, 1 Simon, and St. 100. After a decree the proclicin amy of an infant plaintiff died. On mo- tion of a defendant, a reference to the master was directed to appoint unolhc.r jfrochei /I amy. Bracey vs. Sandiford, 3 Madd. 468. It is not the ordinai-y practice to restore a bill which has been regu- larly dismissed for want of prosecution, but this may be done under circumstances. Ilanriam vs. South London Water Works, 2 Meriv. 63. Thus where a replication had not been filed through mistake, the court restored the bill, notwithstanding an order to dismiss. Attorney General vs. Fellowcs, Mad. and Geld. 111. APPENDIX. 621 Okdkk XVII. [.'I.v ame)i: of the repli- cation ; and such commission shall, at the latest, be returna- ble on the first return of the second term then next following, and the plaintifl' shall give his rules to produce witnesses, and pass publication at the latest in the same term, and shall set down his cause for hearing, and duly serve the sul)p(ena to hear judgment returnable in the succeeding term ; and if the plaintift' shall make default herein, then, upon appli- cation by the defendant, upon notice of motion, the plain- tiff's l)ill shall stand dismissed out of court witli costs, unless the court shall make special order to the contrary. And in case the plaintiff serves a subprenato rejoin, within three w^eeks after filing the replication, but does not obtain and serve an order for a commission to examine witnesses within that time, then the defendant shall be at liberty, without notice, to obtain an order for a commission to examine witnesses, returnable at the like period as the plaintiff is entitled to, pursuant to this order, and shall have the carriage of such commission. And if the plaintiff' obtains an order for and sues out a commission, and neglects to execute and return the same, at or within the time stated in this order, the defendant shall be entitled to an order as before stated, for a commission returnable on the last return of the term following that which is allowed to the plaintiff by this order, for the return of his commission. 622 APPENDIX. And when any commission issues pursuant to tliis order, or the last foregoing order, the parties sliall ha^'e liberty to execute the same in term time, and publication shall stand enlarged until the commission shall be returnable ; and the plaintiff shall be at liberty to set down the cause, in the mean time, without the necessity of inserting such du'ec- tions in the order for the commission. Okder XVIII. [^4* amended.'] That publication shall not be enlarged, except upon -special application to the court, made upon notice supported by affidavit, and at the cost of the party applying, unless otherwise ordered by the court. The practice is now governed in part by the stat. 3 and 4 Wm. 4 c. 9 J, s. 13, and the 20th order of 1833 {j^ost). Order XIX. [As amended^ That the time which occurs between the last seal after Trinity term and the first seal 1)efore Michael- mas term, and l)etween the last seal after Michaelmas term and the first seal before Hilary term, shall not be reckoned in the computation of time wliich is allowed to a party for amending any bill, for filing, delivering, or referring ex- ceptions to any answer, or for obtaining a master's report upon any exceptions. Atfy Gen. vs. Jones ^ 5 Sim. 246 ; Arujell vs. We-stcomhe, 1 My. & C. 48. Order XX. That service on the clerk in court, of any suT)poena to rejoin, or to answer an amended bill, or to hear judgment, shall be deemed good service. APPENDIX. 623 Order XXT. That the order nisi for eoiifiniiiiif^ a report may be o]> tained upon petition as A\-ell as 1)}' motion, and that service thereof upon the clerk in court of any party, shall be deemed good service u])()ii snrh pai-tv. Order XXII. That every notice of motion, and every petition, notice of which is necessary, shall ])e served at least two clear days l)efore the hearing of such motion or petition. 'Order XX HI. That the order nisi for dissohang the common injnuc- tion, may be obtained upon petition as well as l)y motion, and that every such order be served two dear days at least before the day upon which cause is to be shown against dL^- solving the injunction. Order XXIV. [^Ls- amended.'] That when a defendant in contempt for want of answer, obtains, u})on filing his answer, the com- mon order to l)e discharged as to his contem]it, on pay- ment or tender of the costs thereof, or the plaintiff accepts the costs, ^^'ithout order, he shall not by such acce])tance be compelled, in the event of the answer l^eing insufficient, to re-commence the process of contempt against the de- fendant, but shall ]>(' at liberty to take up the process at the point to \\ liicli he had before proceeded. Order XX\'. That no Avitncss to be examined l)efore either of the examinei-s for any ])arty in a cause, be in future i>ro(luced 624 APPENDIX. at the seat of the clerk in court for the opposite party ; but that a notice in writing!:, containins; the name and description of the witness, be served there as heretofore. Order XXVI. That tlie examiner who shall take the examination in chief of any witness, shall be at liberty to take his cross- examination also. Order XXVII. That where the same solicitor is employed for two or more defendants, and separate answers shall have been filed, or other proceedings had, by or for two or more defendants separately, the master shall consider, in the taxation of such solicitor's bill of costs, either between party and party, or between solicitor and client, whether such separate answers or other proceedings were necessary or projDer ; and if he is of opinion that any part of the costs occasioned thereby has been unnecessarily or im- properly incurred, the same shall be disallowed. Order XXVIII. That where a plaintiff obtains a decree with costs, there the costs occasioned to the plaintiff hy the insufficiency of the answer of any defendant^ shall be deemed to be ])art of the plaintiff's costs in the cause, such sum or sums being deducted therefrom as w^ere paid by the defendant, ac- cording to the course of the court, upon the exceptions to the said answer ])eing su])mitted to or allowed. Vide the further provision contained in the 19tli order. APPENDIX. 625 Okder XXIX. That where the i:)laiiitift* is directed to pay to the de- fendant tlie costs of the suit, there the costs occasioned to a defendant hy any amendment of the hill shall Ije deemed to be part of such defendant's costs in the cause (except as to any amendment Avliich may have been made hy special leave of the court, or which shall appear to have been rendered necessary by the default of such defendant) ; but there shall l^e deducted from such costs any sum or sums which may have been paid by the i^laintift', according to the course of the court, at the time of any amend- ment. Order XXX. That when upon taxation, a plaintiff who has obtained a decree with costs is not allowed the costs of any amend- ment of the bill, upon the ground of its having been unnecessarily made, the defendant's costs, occasioned by such amendment, shall be taxed, and the amount thereof deducted from the costs to be paid by the defendant to the plaintiff. Order XXXI. That upon the allotvance of any plea or demurrer^ the plaintiff or plaintiffs shall pay to the defendant or de- fendants the taxed costs thereof ; and when such plea or demurrer is to the whole l)ill, then the further taxed costs of the suit also ; unless in the case of a plea the plaintiff or plaintiffs shall undertake to reply thereto, and then the costs shall be reserved, unless the com-t shall think lit to make other order to the contrary. 40 526 APPENDIX. The plaintiff set clown a plea to be argued, and afterwards moved that it might not stand in the paper, and then obtained an order to amend the bill ; the defendant under these circumstances, was held to be entitled to taxed costs. Jones vs. Watticr, 4 Sim. 128. Order XXXII. That upon the overruling of any plea or demurrer^ the defendant or defendants shall pay to the plaintiff or plaintiffs tlie taxed costs occasioned thereby, unless the court shall make other order to the contrary. When a defendant puts a demurrer on record, and also demurs ore tenus, if the demurrer on record is overruled, but the demurrer ore tenus is allowed, the defendant must pay the costs of the demurrer on record, unless the court, at the time, makes other order to the contrary ; and, Semhle, the court will not be disposed to make such other order. Mor- timer \s. Fraser, 2 Mylne and Craig, 173. A witness, on the overruling of his demurrer, is liable to pay the costs as a defendant, by analogy to this 32d order. Sawyer vs. Birch- more, 3 My. and K. 572. Order XXXIII. That when two counsel appear for the same party or parties, upon the hearing of any cause or matter, and it shall appear to the master to have been necessary or proper for such party or parties to retain two counsel to appear, the costs occasioned thereby shall be allowed, although both of such counsel may have been selected from the outer ha/r. Order XXXIV. That when a cause which stands for hearing is called on to be heard, but cannot be decided by reason of a want of parties, or other defect on the part of the plaintiff, and APPENDIX. 627 M therefore stTiich out of the paper^ if tlie same cause Is ajraiii sot down, tlie defendant or defendants shall ])e allowed the taxed costs occasioned l)y the first setting down, althomjh he or they do not ohtain tlie co-s-t-s of the suit A cause was called on to be heard ; the defendant's counsel took an objection for want of parties, upon wliich it was ordered to stand over, with the usual liberty given to amend by adding the necessary parties. Such amendment was afterwards made, and the cause again set down forbearing; upon an application ex j'cirtc by the plaintiff's counsel to advance the cause, the M. R. (Sir John Leach) made an order accord- ingly, and added that he would for the future make the same order in every similar case, llattenhury vs. Fenton, Rolls, April, 1S33. Ed. MSS. • Order XXXV. That where a cause being in the paper for hearing, is ordered to be adjourned upon payment of the costs of the day^ there the party to pay the same, whether before the lord high chancellor, the master of the rolls, or the vice- chancellor, shall pay the sum of ten pounds^ unless the court shall make other order to the contrary. Order XXXVI. That whenever upon the hearing of any cause or other matter, it shall aj)pear that the same cannot conveniently proceed, ))y reason of the solicitor for any party having neglected to attend personally, or by some proper pei-son on his behalf, or having omitted to deliver any paper necessary for the use of the court, and which according to its practice ought to have been delivered, such solicitor shall personaUy pay to all or any of the j^arties such costs as the court shall think fit to award. 628 APPENDIX. It may be stated as a general rule, that where either of the parties in a suit is made liable to the payment of costs, or has actually paid costs, through the gross negligence or misbehaviour of his solicitor, the court will, upon motion, order such solicitor in the former case to pay the costs instead of his client, and in the latter to reimburse liini. 2 Hullock on Costs, 485, and cases there cited. Wi/ait's Prac. Reg. 397 ; 1 P. W. 593. Order XXXVII. That the sworn clerks of the court and the waiting clerks shall not be entitled to receive any fees for attend- ance in court, except in cases where they shall actually attend, and where their attendance shall be necessary. Order XXXVIII. That where any cause which is set down to be heard, either in the court of the lord chancellor, or in the court of the master of the rolls, shall be afterwards set down to be heard in the other of the said two courts, there the solicitor for the plaintiff shall certify the fact to the registrar of the court where the cause was first set down, who shall cause an entry thereof to be made in his book of causes, opposite to the name of such cause ; and the solicitor for the plaintiff shall be allowed a fee of six shillings and eight-pence for so certifying the fact, if he shall certify the same within eight days after the said cause is so set down a second time. Order XXXIX. That where any cause shall become abated, or shall be compromised, after the same is set down to be heard in either of the said two courts, the solicitor for the plaintiff APPENDIX. 629 shall also certify the fact, as the case may be, to the registrar of the court where the cause is so set down, who shall in like manner cause an entry thereof to be made in his cause- book, and the solicitor for the plaintiff shall Ik; allowed the same fee of six shillings and eight-pence for such certificate, if he shall certify the fact as soon as the same shall come to his knowledge. Order XL. That the penal sum in the bond to be given as a security to answer costs by any plaintift' who is out of the jurisdiction of the court, be increased from forty pounds to one hundred pounds. Order XL I. That the deposit upon exceptions to a master'^s report shall be increased ten pounds^ to be paid to the adverse party, if the exceptions are overruled ; in which case the exceptant shall also pay the further taxed costs occasioned by such exceptions, unless the court shall otherwise order ; but in case the exceptant shall in part succeed, the deposit shall be dealt with, and costs shall be paid as the com't shall direct. Where one general exception, consisting of several distinct objections which are specified as the grounds of the exception, is taken to a re- port in favor of a title, and the court overrules the exception as to some of the objections, and allows it as to others, the deposite will be divided. Wliitton vs. Pcacodi, 3 My. and K. 325 ; sed vide the V, C.'s order in Ward vs. F'ltzhurgh, 7 Sim. 42, The V. C. decided, tliat where the exception to an answer for insuffi- ciency embraced several interrogatories, which it alleged were insuffi- ciently answered, and the master had reported the answer to the whole of the interrogatories embraced by such exception to be insufficient' 630 APPENDIX. and the court on exceptions to the report had held that the defendant had sufficiently answered the first question comprised in the exception for insufficiency, but had not sufficiently answered the other questions embraced by the exception for insufficiency, that the exception to the master's report might be allowed in part, and disallowed in part, although such allowance in part, and disallowance in part, applied to the same exception for insufficiency, and to the same exception to the master's report. Amor vs. Fcaron, 12th July, 1834. Ed. MSS. Order XL II. That the deposit upon every ])etition of a^ypeal or re- Jiearing^ be increased to twenty pounds^ to be paid to the adverse party when the decree or order appealed from is not varied in any material point, togetlier with the further taxed costs occasioned by the appeal or rehearing, unless the cowrt sluill otherwise order. Order XLIII. That for the purpose of enabling all persons to obtain precise information as to the state of any cause, and to take the means of preventing improj^er delay in the progress thereof, any clerk in court shall, at the request of any per- son, whether a party or not in the suit or matter inquired after, procure and furnish a certificate from the Six Clerks' office, specifying therein the dates and general description of the several proceedings which have been taken in any cause in the said office, whether such clerk in court be or not concerned as clerk in court in the cause ; and that he shall be entitled to receive the sum of three shillings and fourpence for such certificate, and no more. Order XLIV. That whenever a person idIio is not a party appears in any proceeduig, either before the court or before the mas- APPENDIX. 631 ter, service upon the solicitor in London, l)y wliom such party appears, whether such solicitor act as princij)al or agent, shall Ije deemed good service, except in matters of contempt requiring j)ersonal service. OllDEH XLV. That clerical mistakes in decrees or decretal orders^ or errors arising from any accidental slip or omission, may at any time before enrollment Ije corrected upon petition^ with- out the form and ex]jense of a reheaiing. This order applies only to decrees or decretal orders; it appears to have been unnecessary to extend the advantage of it to other cases, for Lord Eldon allowed a clerical mistake in the title of an order for a sequestration to be amended, by inserting the words '' and others." See Loivton vs. Colchester, 2 Meriv. 395. Where, by mistake, sums of money paid into court under the decree, were included in the balances reported due from the defendant, and the decree on further directions ordered those balances to be paid into court, it was held that the mistake could not be rectified without a rehearing of the cause on the latter decree. BrooJcfeld vs. Bradley, 2 Sim. & St. 64. See also 7 Ves. 293; 12 Ves. 456; ihid. 458. Wesionc vs. Haggerstone, Coop. Rep. 134. Hawker vs. Duncomhe, 2 Madd. R. 391 ; 3 Swanst. 234; 1 Russ. 475. The decree, amongst other things, directing that the parties should produce before the master all books, papers, &c., the words, " as the master shall direct," were on motion added. 5 Madd. 121. Order XL VI. That every application to stay proceedings upon any decree or order which is appealed from, be made first to the judge who pronounced the decree or order. Vide the note to the next order. 632 APPENDIX. Order XL VII. That every application for the new trial of any issue at law directed by a judge of this court, be first made to the judge ^clio directed s^ich issue. It was held that a motion for a new trial must be made before the same jurisdiction which directed the former trial, although the judge, who had directed the former trial when vice chancellor, had since resio-ned that office, and been appointed M, R., which latter office his honor held at the time of making the motion for a new trial. Footner vs. Figis, 2 Sim. 319. In other words, this order applies to the office, and not to the person of the judge. See also Rcece vs. Reece, 1 My. & C. 372. Order XLVIII. That where any decree or order referring any matter to a master is not brought into the master's office within two months after the same decree or order is pronounced, there any party to tlie cause^ or any otlier party interested in the matter of the reference^ shall be at liberty to apply to the courts by motion or petition, as he may be advised, for the purpose of expediting the prosecution of the said decree or order. Order XLIX. That every master shall enter in a book to be kept by him for that purpose, the name or title of every cause or matter referred to him, and the time when the decree or order is brought into his office, and the date and descrip- tion of every subsequent step taken before him in the same cause or matter, and the attendance or non-attendance of the several parties on each of such steps, so that such book may exhibit at one view the whole course of proceeding which is had before him in each particular cause and matter. APPENDIX. 633 Order L. Tliat upon tlie bringing in of every decree or ordei-, tlie solicitor bringing in tlie same shall take out a warrant aj). pointing' a time, wliicli is to be settled by the master, for the purpose of the master taking into con-nderation the matter of the said decree or order ^ and shall serve the same upon the clerks in court of the respective parties, or upon the parties or their solicitors in cases where they shall have no clerks in court. Order LI. That at the time so appointed for considering the mat- ter of the said decree or order, tlie master shall proceed to regulate^ as far as may he^ the Tnanner of its execution j as, for example, to state what parties are entitled to attend future proceedings, to direct the necessary advertisements, and to point out which of the several proceedings may be properly going on pari pass-v., and as to what particular matters interrogatories for the examination of the parties appear to be necessary, and Avhether the matters requii'ing evidence shall be proved by affidavit or by examination of witnesses ; and in the latter case, if necessary, to issue his certificate for a commission ; and if the master shall think it ex]:)edient so to do, he shall then fix a certain time or certain times within ^^ liicli parties are to take any certain proceeding or proceedings before him. It seems that if the master receives affidavits, and they are not objected to on the other side, the report cannot be objected to on the ground that the w^itnesses ought to have been examined upon interro- gatories. Morgan vs. Lewis, 1 Newl. Pr. 333 n. 634 APPENDIX. Order Lll. That upon any mihsequent attendance befoTe him in the same cause or matter, the master, if he tliinks it expedient so to do, shall fix a certain time or certain times within which the parties are to take any other proceeding or pro- ceedings before hira. Order LIII. Tliat where some or one, but not all, the parties do attend the master at an appointed time, whether the same is fixed by the master personally or upon a warrant, there the master shall be at liberty to proceed ex parte^ if he thinks it expedient, considering the nature of the case, so to do. Order LIV. That where the master has proceeded ex parte^ such pro- ceeding shall not in any manner be reviewed in the master's office, unless the master, upon a special application made to him for that purpose by a party who was absent, sliall he mtisfied that he iva-s- not guilty of ivilful delay or neglir gence^ and then only npon payment of all costs occasioned by his non-attendance; such costs to be certified by the master at the time, and paid by the party or his solicitor before he shall be permitted to proceed on the warrant to review. Order LV. That where a proceeding fails, l)y I'cason of the non- attendance of any party or parties, and the master does not think it expedient to proceed ^^<2r^ there the master shall APPENDIX. 635 be at liberty to certify wliat amount of costs, if any, lie tliinks it reasonable to Ix- [>airoiluced, tlic phiintiff' is entitled to move foi* their production, although the ansicer positively swears that they form part of the defendant'' s title, and in no way assist or 7nahc out the title of the plaintiff. Ilardman vs. Ellames, 2 My. and K. 732. To a bill of discovery of stock standing in the name of llic jjlaintiff's late father, cither alone or jointly for 20 years before, and at his death, and for an inspection of the Bank of England books, containing the entries of such stock, the bank in their answer set forth an account of the stock, but declined to set forth a list of the books containing the entries. Held that they were not exempted from the liability to produce their books, and therefore ought to set forth a list of them. Heslop vs. Bank of England, G Sim. 192. The plaintiff was held to be entitled to the production of documents referred to in the answer, and admitted to be in the custody of the defendant, although an injunction obtained by the plaintiff had been dissolved on the ground that the contract which the bill sought to enforce was illegal. Expte. Smith, 1 Svvanst. 7. Where a defendant admits books in the West Indies to be in his possession, custody, or power, the court will order him to bring them here within a reasonable time ; and if they are not brought, will con- sider it the same as if he had them hero, in the first instance, and had refused to produce them. Per Lord Eldon, Turn. Rep. 190. Papers belonging to a defendant were held to be in his custody, possession, or power, although they were in the West Indies. Ibid. A bill of discovery was filed by the directors of an insurance com- pany, in aid of their defence to an action brought by the defendant to recover the amount of the sum secured by a policy of assurance effected on the life of a person who died shortly after the date of the policy. The bill alleged that the declaralion on the basis of which the insurance had been effected was untrue ; and it contained the usual charge, that the defendant had in his possession documents by which the truth of the matters alleged in the bill would appear. The defendant admitted that he had in his possession the various documents enumerated in the first schedule to his answer, but he said that since 640 APPENDIX. the death of the person whose life was insured, he had, by reason of certain information, contemplated the bringing his action against the plaintiffs, if they should dispute their liability to pay the amount of the sum secured by the policy, and that the documents contained informa- tion as to evidence which could be procured on the defendant's behalf, and that the producing the same, or permitting the plaintifts to inspect the same, might disclose the names of witnesses intended to be examined, and evidence intended to be given on behalf of the defendant in the action which he had brought against the plaintiffs, and he submitted that he ought not to be compelled to produce such docu- ments, or any of them. But Lord Langdale held that the defendant could not protect himself from producing documents communicated by or to parties who stood in no confidential relation to him, on the gi'ound that their production might disclose the names of witnesses, and evidence intended to be given at the trial, and that he was bound to produce all the documents enumerated in the schedule, except the letters written to and from his solicitors, the statements for the opinions of counsel, and the opinions of counsel thereon. Storey vs. Lord George Lennox, 1 Keen, 341 ; and this decision was afterwards affirmed by Lord Cottenham on appeal. See 1 Mylnc and Craig, 525. The following case may be considered as throwing additional light on this doctrine : A demurrer put in by a witness examined by the plaintiffs, on the ground that he had been the solicitor of some of the defendants, and that the interrogatory required the disclosure of confidential communications, was overruled, the witness being bound to produce letters communicated to him from collateral quarters to which the interrogatory pointed, and to answer questions seeking information as to matters of fact, as distinguished from confidential communications. Sawyer vs. Birchviorc, 3 My. and K. 572. 2dhj. Cases in which the Court has refused to order the p-oduction of Documents. The court will not compel the production of documents for the mere purpose of enabling the plaintiff to inform himself of the nature or materials of the defendant's defence. See Curling vs. Perring, 2 My. and K. 380 ; 2 Sim. and St. 300 ; 2 Sim. 489 ; 3 Sim. 396 ; 4 Sim. 46L APPENDIX. 641 A defendant will not be ordered to produce papers containing confidential communications between him and his solicitor ; or between ?iis country solicitor and town solicitor, made in the relation oj" solicitor and client, during the progress of the suit, or with reference to it previous to its commencement. Hughes vs. Biddulj'h, 4 Russ. 190. A plaintiff was held not to be entitled to the production of a letter admitted by the defendant to be in his possession, but which the defendant stated was written by him to his solicitor, and directed the solicitor to take the opinion of counsel upon the question in dispute between the parties. Vent vs. Pacey, 4 Russ. 193. The court will not oi'der a defendant to produce letters which passed between him and his solicitor, in the relation of solicitor and client, in the lirogrcss of the cause, or with reference to it previously to its being instituted, or which contain legal advice. Garland vs. Scott, 3 Sim. 396. Motion for the production of the correspondence referred to in the answer between the solicitor of the defendants and a person not a party to the suit, refused by the master of the rolls, his honor observing that the correspondence having taken place after the dispute which was the subject of the litigation between the parties had arisen, formed no ' part of the plaintiff's title ; and added, that if the right of inspecting documents were carried to the length contended for, it would be impossible for a defendant to write a letter for the purpose of obtaining information on the subject of a suit, without the liability of having the materials of his defence disclosed to the opposite party. Curling vs. Ferri?ig, 2 My. and K. 380. The defendants had brought an action against the plaintiffs to recover a sum alleged to be due for town dues ; the plainlifis filed their bill, alleging that the defendants had in their custody cases for the opinion of counsel, by which it would appear that the defendants had no right to levy the dues, and also various charters, deeds, &c., by which the truth of the statements in the bill would appear; the defendants adniittcil in llieir answer tliat they had in their custody se\era\ cases, two of which were prepared many years ago, and without reference to the existing proceedings ; but which contained mistaken representations as to the nature of their title to the dues, and the rest of which cases were prepared j)cnding, or in contemplation of, the existing 41 642 APPENDIX. proceedings, and that they also had, in theii" custody, charters, deeds, and copies of accounts from pubUc offices which evidenced their title to the dues. A motion by the plaintiffs for a production of all the documents was granted by the vice chancellor as to the two old cases only. This motion was afterwards renewed before the L. C, who coincided with his honor in opinion and dismissed it; saying — " I am of opinion that cases laid before counsel in the progress of a cause, and prepared in contemplation of and icith reference to an action or suit^ can not be ordered to be produced for the purj^oses of that action or suit." 'Bolton vs. Corporation of Livcrjwol, 1 My. and K. 88. See also Gi-eenough vs. Gaskell, 1 My. and K. 98. A mortgagee is not {unless in a case of fraud, or under other special circumstances) compellable to produce books, papers, &c., 6 Madd. 48; Anon. Mosely, 246. The case in Mosely was to this effect : After a decree for a fore- closure, nisi, the defendant moved that the plaintiff" might lay the deeds before counsel, in order that the defendant might have the mortgage assigned to one who would advance the money; the plaintiff' insisted that such an order was never made, but where the mortgagee consents to a sale, for by that he submits to do every thing that is necessary to such sale ; the lord chancellor made an order simply that the plaintiff" should give the defendant a copy of the mortgage deed, at the defend- ant's charge, hut would not ohlige him to produce the title deeds. The rule which protects a mortgagee from the production of documents, or to the exposure of his mortgagor's title, has, in its application, been so strictly adhered to, that a motion on the part of a plaintiff" for the production of a deed alleged to be in the possession of the defendant as tenant in common with the plaintiff", was refused, it appearing by the answer that the defendant had sold his share previous to the filing of the bill, and was in possession of the deed in question only as mortgagee to the purchaser. Lambert vs. Rogers, 2 Meriv. 489. A plaintiff" in a tithe suit is not entitled to a production of receipts for moduses and compositions given to the defendants by the plaintiff' and his predecessors, some of those receipts relating to tithes not sued for, and the others being evidence for the defendants, and not for the plaintiff. Tomlinson vs. Lymer, 2 Sim. 489 ; and see Tomlinson vs. Booth, 4 Sim. 461. APPENDIX. 643 Where a bill was filed to set aside a conveyance on the ground of fraud, and the answer dc/iicd the fraud, the schedule annexed to the answer set forth, as required by the bill, a list of the title deeds, the settlement, and the difendanV s purchase deeds; the plaintifi" moved for the production of all the deeds mentioned in the schedule, or such of them as the court should be of opinion that ho was entitled to inspect : the only deeds which the defendant objected to produce tcere the purchase deeds. The vice chancellor refused to make an order for their pro- duction, observing, that where a defendant referred to his schedule as containing all deeds, &c., in his custody or power relating to the matters in question, there the plaintiff was entitled to the inspection of all such deeds, &c., as of course, unless it appeared by the descrip- tion of any particular instrument in the schedule, or by affidavit, that it was evidence not of the title of the plaintiff" but of the defendant, or that the plaintiff" had otherwise no interest in its production ; and he refused to order the defendant to produce the j^ur chase deeds. 2 Sim. and St. 309. See also Ilall vs. AtJdnson, 1 Eq. Ca. abr. 333, pi. 4. A mere heir-at-law was held to have no equity, except to remove incumbrances out of the way of his legal right; and that he could not call for an inspection of all the deeds in the possession of the devisees or any of them, except as to the deeds of settlement admitted to be in the possession of the defendants, creating estates in tail general. Ladij Shafteshury vs. Arrowsmith, 4 Ves. 66. A defendant admitted by her answer that at a time j>ast she had a deed in her power; but as she did not admit she then had it, a motion to produce it was refused. Hceman vs. Midland, 4 Madd. 391. The court will not on motion compel a plaintiff to produce docu- ments in his possession, although the defendant swears that an inspection of them is necessary to enable him to answer the bill. Pevfold vs. Nunn, 5 Sim. 409. See also Milligan vs. Mitchell, 6 Sim. 180, and Dick. 778. Motion by a defendant for inspection of letters referred to by the plaintirt"'s depositions, as exhibits, refused with costs. Wiley vs. Tisler, 7 Ves. 411. A defendant to a mere bill of discovery in aid of an action at law, will not be ordered to produce, upon the trial of tJic action, or ?//>o7i any proceeding incident thereto, documents which he admits by his answer 644 APPENDIX. to be in liis possession. Broii-n vs. Thornton, 1 My. and C. 243 ; this, of course, will not protect him against their production here under the common order. Order LXI. That all parties accounting before the masters shall bring in their accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the accounts so brought in, shall be ut liberty to examine the accounting parties upon interrogatories, as the master shall direct. Order LXII. That all such accounts, when passed and settled by the master, shall be entered in a book to be kept for that pur- pose in the master's office, as is now the practice with respect to receiver's accounts, and with proper indexes, in order to be referred to, as occasion may require. Order LXIII. That the masters, in acting upon the order of the court of 23d April, 1796, shall be at liberty upon the appoint- ment of a receiver, or at any time subsequent thereto, in the place of annual j^eriods for the delivery of the receiver's accounts and payment of his balances, to fix eitlier longer or shorter periods at his discretion ; and when such other periods are fixed by the master, the regulations and prin- ciples of the said order shall in all other respects be applied to the said receiver. Order LXIV. Tliat in every order directing the appointment of a receiver of a landed estate, there be inserted a direction APPENDIX. 645 that such a receiver shall manage, as well as set and let, with the a])])r()l)ation of the master; and that in actino- under such an order it shall not be necessary that a peti- tion l)e presented,to the coui-t in the first iastance, but the master without special order shall receive any jiroposal for the management or letting of the estate from tlie par- ties interested, and shall make his report thereon, Avhich repoi-t shall be submitted to the court for confirmation in the same manner as is now done with respect to reports on such matters made upon special reference ; and until such report he wvfinned., it shall not give any authm-ity to the receiver. Order LXV. That all aflSdavits which have been previously made and read in court, upon any proceeding in a cause or matter may be used before a master. Order LXVI. Tliat ^'here, upon an inquiry before the master, afi&davits are received, there no afiidavits in reply shall be read, except vpon a new matter^ which may he stated in the affida- vits in ans^ver ; nor shall any further affidavits be read unless specially required by the master. Order LXVII. That the master shall not receive fui-ther evidence as to any matter de})ending before him after issuing the warrant on prejKiring his report ; but that he shall not issue such warrant without previously requiring the pai-ties to show cause why such warrant should not issue. 646 APPENDIX. Order LXVIII. That no warrant to revieio any proceedings in the mas- ter's office, shall be allowed to be taken out. exce][>t hy permission of tlie master^ vpon special gwunds to he shown to him for that purpose j and the costs of such review, when allowed, shall be in the discretion of the master, and shall be paid by and to such persons and at such tune as he shall direct. Order LXIX. That the master shall have power at his discretion to examine any witness viva voce; and in such case the suh- posna for the attendance of the witness shall, upon a note from the master, be issued from the suhpoena office ; and that the evidence ujion such viva voce examination shall be taken down by the master, or by the master's clerk in his j^resence, and preserved in the master's office, in order that the same may be used by the court if necessary. The direction given to the master by this order to examine witnesses viva voce, can not be exercised after issuing the warrant on preparing his report. Trotter vs. Trotter, 5 Sim. 383. Order LXX. Tliat in all matters referred to him, the master shall be at liberty, upon the application of any party interested, to make a separate report w' reports from time to time as to him shall seem expedient ; the costs of such separate reports to he in the discretion of the court. Order LXXI. That where a master shall make a separate i-eport of debts or legacies, there the master shall be at liberty to APPENDIX. (547 make such certificate as he thinks fit with respect to the state of the assets; and every person interested shall thereupon be at liberty to ai)ply to the court as he shall be advised. Order LXXII. That the master shall be at liberty to examine any cre- ditor or other ^lerson coming in to claim before him, either upon written interrogatories or viva voce^ or in both modes, as the natui-e of tlic^ case may appear to him to require; the evidence upon such examination being taken down at the time by the master, or by the master's clerk in his presence, and preserved, in order that the same may be used by the court, if necessary. Order L XXIII. That if any l")arty wishes to complain of any matter introduced into any state of facts, affidavit or other pro- ceeding Iff ore the master ^ on the ground that it is scandalous or imi)ertinent, or that any examination taken in the mas- ter s office is insufficient, he shall be at liberty, without any order of reference hy the court^ to take out a warrant for the master to examine such matter, and the master shall have authority to expunge any such matter which he shall find to be scandalous or impertinent. Order LXXIV. That the master, in deciding on the sufficiency or insuffi- ciency of any answer or examination, shall take into con- sideration the relevancy or materiality of the stutement or question referred to. It was hold by the V. C. that although an interrogatory, and the statement in the bill on which it is founded, may be immaterial, yet 648 APPENDIX. if the defendant attempts to answer it, and he answers it imperfectly, the defendant can not, upon exceptions to the sufficiency of his answer, avail himself of the objection that the statement or question so imper- fectly answered are immaterial. Amor vs. Fcaron, V. C. 12th July, 1834. Ed. MSS. Order LXXV. Tliat in cases where estates or otlier property are directed to be sold l)efore the master, the master shall he at liherty, if he shall think it for the benefit of the parties interested, to order the same to be sold in the country, at such place and by such person as he shall think fit. Order LXXVI. [^-5- amended7\ That where a master is directed to settle a conveyance, or to tax costs in case the parties differ about the same, then the parties claiming the costs, or entitled to prepare the conveyance, shall bring the bill of costs, or the draft of the conveyance, into the master's office, and give notice of his having so done to the other party ; and at any time withui eight days after such notice, such other party shall have liberty to inspect the same without fee, and may take a copy thereof, if he thinks fit. And at or Ijefore the expiration of the eight days, or such fm-ther time as the master shall in his discretion allow, he shall then either agree to pay the costs or adopt the conveyance, as the case may be, or signify his dissent therefrom, and shall there- upon be at liberty to tender a sum of money for the costs, or to dehver a statement in writing, of the alterations which he proposes in the draft of the conveyance. But if he make no such tender, nor deliver any such statement in writing, or if the other party refuses to accept the sum so APPENDIX. 649 tendered, or to a(l()])t the proposed alterations in tlie draft of the conveyance, tlie master shall then proceed to tax the costs, or settle the coiiNeyance accordinf^ to tlic jiractice of tlie court. And in ca.se the taxed costs shall not exceed the sum tendered, or the master shall adopt the i)ro])osed alterations in the draft of the conveyances, then the costs of the taxation, or the costs of the proceeding with respect to the conveyance, shall be l>orne by the other party. Order LXXVII. That whenever in any proceeding before a master the same solicitor is employed for two or more parties, such master may, at his discretion, require that any of the said ]:)arties shall be represented before him by a distinct soli- citor, and may refuse to proceed until such party is so represented. Order L XXVIII. That such of the foregoing orders as limit or allow any specified time for any party to take any 2-)roceeding, or for any other puri)ose, shall only appl}^ to ca^es where the period from which such specified time is to be comjMited shall be on or sul)sequent to the fii-st day of Easter term next ensuing. Order LXXIX. That such of the foregoing orders as relate to the manner in which the costs of any suit or proceeding are to be taxed, and to the amount of costs to be ])ai(l on an\ occasion, shall not apply to any costs which shall have l)een incurred, or to the costs of any proceeding which shall have been had or taken pre\^ously to the first day of Easter term next ensuincr. 650 APPENDIX. Order LXXX. That siicli of tlie foreofoinor orders as relate to tLe course of proceeding in tlie offices of tlie masters of tlie court, or to the authority of the masters, shall have effect from and after the fii-st day of Easter term next ensumg, (1828) and shall be acted upon by the masters in all cases, except where, from the then advanced stage of any proceeding, they are not practically applicable. Order LXXXI. That the subject to the regulations hereinbefore specified, the foreo:oino: orders shall take effect as to all suits, whether now depending or hereafter commenced, on the first day of Easter term next (1828). Order LXXXIl. (As 01-dercd 23tZ November, 18131. J And whereas the present practice that causes can only be entered for hearing during the time of term, and that the siiJypwiia ad midiendam jiidkimn^ can only l)e then returnable, is productive of great delay and inconvenience ; it is hereby further ordered, by the said lord high chan- cellor, with the ad\nce and assistance aforesaid, that from henceforth causes may be set down for hearing, and the mihp(enas ad audiendum judicium^ served and returnable on any day, as well out of term as in term, and this order is to be called the 82d order. And it is hereby further ordered, that the aforesaid 82d order shall take effect immediately, and the aforesaid amended orders shall take effect on the first day of Hilary term next (1832). APPENDIX. g52 WOicn a cause is scjt down ami a suhpa-na to hear judgment is served, and afterwards a bill of revivor is filed, no new suhpama to liear judgment is necessary. Bray vs. Woodran, 6 Madd. 72. Contra, where the cause having abated had come on, and been ordered to stand over, and then a bill of revivor was liled. Coc/churn vs. Raphael, 4 Sim. 18. Lyndiit^rst akd Brougham, C. John Leach, M. R, , Launcelot Siiadwell, V. C. ORDERS OF DECEMBER 21, 1833. It i9 hereby deelared and directed^ by tlie lord high chancellor, by and with the concurrence of the master of the rolls, and of the \dce chancellor, that from and after the 10th day of January next, the several orders which herenfter follow, shall be considered as a substitution for the said orders of the SGth day of IN'ovember last. Order I. That all writs of mdypoena in this com't shall be prepared by the solicitor of the party requiring the same, and that the seal for sealing the same shall be marked or mscribed Avith the words '' Sul/jxena Office, Chancery;" and such writs shall be in the forms mentioned at the foot of these orders, or as neai' iis may be, with such alterations and \aii- ations as circumstances may require. Order II. That a praecipe in the usual form, containing further the particulars hereinafter mentioned, (as to the names and residences of the solicitors issuing the same) shall in all cases be dehvered and filed at the sulipcena office ; and that on a sidypama for costs being sealed, the cei"tificate or report fchaH be produced to the officer sealing the writ, as his au- thority for seahng it. 654 APPENDIX. Order III. That tlie name or firm, and tlie ]^lace of hiisiness or resi- dence of tlie solicitor or solicitors issuing a suhpcena^ shall be endorsed thereon ; and where such solicitors shall be agents only, then there shall be further indorsed thereon the name or fimi, and place of business or residence of the ])i"incipal solicitor or solicitors. Order IV\ That the service of suhpoenas shall l)e effected by deliver- ing a copy of the writ and of the endorsement thereon, and at tlie same time producmg the original writ ; and. that in all cases where a siibpoena might heretofore have been served by lea\dng the body thereof at the party's dwelling house or otherwise than personally, it shall be sufficient to leave a copy of such subprena, in the same manner pro- ducing the original writ to the person with whom such copy shall be so left. Order V. I'hat every smJyimna^ other than a suhprnnii duces teaimi^ shall contain three names where necessary or requii'ed, and that a gross sum or fee of twelve shillings and sixpence shall be the amount allowed in costs for every suhp(jena duces tecum^ including the praecipe, attendance, and sum paid for sealing, and five shillings and ten-pence each for all other sul/pcenas ; in addition to which last mentioned sum, the solicitor suing out the same shall be allowed one fee of six shillings and eight-pence for the precipes and attendance on sealing such sidjpoenas as heretofore, where the number of names included therein shall not exceed APPENDIX. e55 nine; and it' they sliull exceed nine in nunilM-i-, then an additional fee of six sliillin^-s and eii^ht-pence ; and if tliey exceed ei^'hteen, a fnrtlier fee of six sliillinu-s and ci'jlit- ])enee, and so in proportion for every achlition.il niiinl»er of nine names, included in snch s-tihpmna. Order VI. That no more than three persons shall be included in one 'S-i(I>pi^t the same. Order VIII. That when any defendant has been taken into custody upon attachment or other process, foi' A\'ant of apj)earance 656 APPENDIX. to a bill of revivor, and such defendant shall have been taken thereon, and shall refuse or neglect to enter an appearance to such bill within eight days after the return of such attachment, the plaintiff shall be entitled, as of course, upon motion or petition, to tlie common order to revive ; and if the defendant cannot be found so as to be taken upon such attachment, and a return of '■^ non est inventus " shall have been made thereon, the plaintiff shall, upon pi'oducing such return, and an affidavit that due diliirence has been used in endeavoring to execute such attachment, and that there was good reason to believe that the defendant was in the county to wliich such attachment issued at the time of suing out the same, be also entitled, as of course, upon motion or petition, at the end of eight days after the return of such attacliment, to obtain the common order to revive ; and that in either of such cases the order shall recite, as the ground for granting the same, that the defendant is in contempt, and that the time limited by the court to show cause against reviving the suit has ex2)ired. Order IX. That a defendant shall be at liberty, vntlmit ordei\ to sue out a dedimus to take his plea, answer, or demurrer (not demurring alone), in the country, on giving two days' notice in writing to the plaintiff's clerk in court to give commissioners' names to see the same taken, and in default thereof the defendant shall be at liljerty to sue out the same, directed to his own commissioners ; and in case of severe illness or other bodily infirmity, whereby a de- fendant, resident not less than four miles from Lincoln's APPENDIX. 657 Inn ILill, sliall Ix' renderetl iiiiaMc to travel or IcaNc home, he shall, upon arti(hivit first made thereof ami duly filed, be entitled to such dedinius as aforesaid, on such notice first giv^en as herfiubefore directed. A defendant can not file a demurrer to part of the bill, and an an- swer to the remainder upon a common dcdimus, but he must sue out a */>pr/rt/dedimus for that purpose. TomUnsun vs. Sivinnerton, 1 Keen's Reports, 9. Order X. That in every cause where an original or supplemental bill, or bill of revivor, hiis been filed sul)sequent to the 25th day of November last, or shall hereafter be filed, a defendant shall, after appearance, and without order, be allowed ei(/Iit weeks ui a town cause and ten weeks in a country cause^ to plead, answer, or demur (not demurring alone) to any such original or supplemental bill, or any such bill of revivor, to which an answer is required ; and five weeks in a toirn canse^ and seven y:eeks in a country cause, to i)lead, answer, or demur (not demurring alone) to any amended hill to icldcli the plaintiff shall require an answer ; but that twelve days only shall be allowed a de- fendant to demur alone to any such original, amended, or su])])leniental bill, or bill of revivor. And in every cause for an injunction to stay proceedings at law, if the defend- ant do not i)l('ad, answer, or demur to the plahitiff^s l)ill within eight da}-s after api)earance, the plaintiff shall be entitled, as of course, upon motion to such injunction; and if the deftuidant shall not, within eight days after ap- pearance to a l>ill of re\ivor, show cause by plea, answer, or demurrer filed, the i)laintitf shall be entitled, as of coui-se, upon motion or petition, to the common order to re\nve 42 658 APPENDIX. wliicli order shall recite, as the G^ronnd for granting the same, that the time limited l)y the court to show cause against reviving the suit has expired. It has been {Iccidcd that a (Icfriidant can not, hy aji.su-cr, show cause against reviving a suit ; ho must do so by ])lea or dernuncr. See Lewis vs. Bridgman, 2 Sim. 4G5 ; Codrington vs. Iloulditdi, 5 Simons, 286. But it seems that if it shouhl appear at the hearing that the plain- tiff had no title to revive, he can not have a decree. Harris vs. Pol- lard, 3 P. W. 348. As to Demurrer. The court (under special circumstavccs) will give a defendant leave to file a demurrer after the expiration of the time allowed by the gen- eral order of the court ; this indulgence was extended to defendants after they had obtained a second order for time to answer under the former practice, the suhpcma having been made returnable immediately, and it appearing that the defendants had not been guilty of willful de- lay. See Attorney General vs. M.. and, C. nf Carlisle, 2 Sim. 427. Order XL That where a coinmon injunction for want of answer is awarded, the order shall recite, as the ground for granting the same, that the defendant has omitted to put in his answer, plea, or demurrer, Avithin the time limited by the court in that behalf. Order XII. That where a defendant is in contempt to an attachment for want of aiypearance.^ the interval between the day fixed by the -s-ufyimna for appearance, and that on which the same is actually entered, shall Ije de(hicted from the time hereinbefore allowed to a defendant to plead, answer, or demur, not demurring alone to the j)laintiff's bill. APPENDIX. 059 OwoKK xiir. Tliat the (lay oil uliicli an <»r(l('i' t'oi- tlic ])laiiitirt" to U(li sce-urit}' is aiNcn, shall not 1)0 reekoiit'd in tlic computation of the time allowed a defendant to plead, answer, or demur. Okdek XI N. That where the plaintitV ol)tains an order to amend without i-ecjuirinii' any further answer, and shall amend the l)ill any otherwise than 1)y an altei'ation of names, date, or sums, or the eori-eetion of clerical ci'i'ors only, the defendant shall, as of course, have eight days' time to con- sider whether it is necessary for him or her to answer the same, at the end of which time the plaintiff shall be at lil)erty to tile a i'e})lication, or set down the cause for hearing on bill and answer, unless the defendant shall have previously serve(l an (>r(l('r for time to answer, or taken out and served a wairant for time to answer such amended bill; in which last case, the master may allow the defendant such time (if any) for that pui'pose as he shall think fit. Order XV. That as to all bills, whether original, amended, su])ple- mental, or of revivor, now filed or to be filed, whenever a ])arty ma}' desire to make an a])])lication to a master under the said act, or under these orders, or whenever it shall be necessary to make any reference to any master, and no previous application or reference to any master has been made in the said cause, the name of the master in rotation shall be ascertained, and entered in books to be kept a;5 660 APPENDIX. after directed in tlie manner hereinafter mentioned ; and all api)licatious authorized by tlie said recited act, or by these orders, to be made to a master ; and every such reference ius aforesaid shall l)e made to the said master in rotation. Order \VI. That as to all bills which shall have been filed before this day, where any reference has been made in the cause, the name of the master to whom the last refi^rence Avas made in such cause, shall, at the request of either of the parties thereto, or of his or her solicitor, and on producing such order of reference, with the master's name certified thereon, or appearing therein, be added by the six clerk to the original entry of the cause in the six clerk's book, and entered in the book to be kept as hereinafter directed, before any application under the said recited act shall be made in that cause ; and all such applications, and all such references as aforesaid, shall be made to such last-mentioned master. Order XVII. That in all cases where it shall become necessary to ascer- tain the name of th(? master in rotation, for the purposes of the two preceding or any succeeding orders, one of the six clerks shall give to the solicitor for the plaintiff or de- fendant requiring the same, a certificate of the bill filed, which certificate shall, on tlie same or the following day, be marked by the master of the day at the public office in chancery, with the name of the master in rotation for such cause ; and such certificate, so marked, ( having first been produced to the said master in rotation, who shall APPENDIX. 661 cause a minute thereof to 1)e taken,) sliall, on tlie same day, ])e returned to the six eh'rk, and IIIimI l.y liim; and lie shall add tlic name of such master to tlie oriL^iiial entry of tlie cause in tlie six clei'kV hook, and shall also caiLse the name of the cause, and of such master, to be entered in a l)Ook to l>e kept l)y the six clei-k for tlnit purj)ose in the six clerk's otHce, and which shall l)e o])('n to inspec- tion at all times dui'iny the office hours without fee. Okueu XV ITT. That where a vlefendant wlio is not in contem])t, oi- has not entered his a|)])earance with the registrar in mainier hereinafter mentioned, .sn/nnif-s- to (ui-s-wer exception-s tahen fo (f Jirsf <(ns-wei\ before a in/ order to refer the Miiiie has been obtained^ lie shall he allowed, as of course, and without ordei', four weeks in a toA\n cause, and six weeks in a country cause, to 2)ut in a fui'ther answer thereto; l)ut if sucli ordei- of reference lias l»een ohtaiiieil and served ])rior to such sul niis'-ion, then tlie )n((-ster to wlioiii the reference has heen made, shall fix the time, which shall Le allowed the defendant to ])ut in such further answer. OUDER XIX. That the master to uhom any exceptions to an answer for insufficiency shall be referred, shall be at liberty in making a report upon such exceptions, if he shall think fit, to certify l)y whom, and in Avhat ]iroportions (if am) the costs of such exceptions and of the reference thereon ought to be borne; and that upon the taxation of the genei-al costs in the cause under the ttrentij-eigJith order^pronoinioed on the Zrd April ^ 18*28, regard shall be had to such cei-tifi- f562 APPENDIX. cate, and tlie costs to he allowed to eitlior party, sli:ill l)e taxed and apportioned aecordinji'ly. OUDEII XX. That all ^peciid applications />>/'Vw?'^ to )rif]iJraw re- 'pliraihni^ as wdl as- to amend liU, -sJiaU he lieard and detenu ined hy SKch master in rotation; and sucli applica- tions, and edl other specicd applications under tlie said recited act, sliall be made Ly taking out a warrant, at tlie foot \\liereof a notice sliall be written, specifying tlie ob- ject of the application; and tlie same sliall be served two clear days before the return thereof. Order XXI. That in every order granted by a master for further time to answer, it shall l)e made a condition of such order, that the defendant shall enter his api)earance with the registrar, and consent to a sergeant-at-arms, as in the case of a commission of rel)ellion returned '^non est inventus'^'' unless under any special circumstances the said master sliall otherwise direct, and which circumstances shall l)e shortly stated in the order. Order XXII. That all orders to refer an answer, or otln^r pleading, or matter depending lefore tie conrt for scandal or iui[)erti- nence, shall contain a direction t<^ the master to ex])unge any such scandalous or ini})ertin('nt matter as he shall cer- tify to be contained therein, and which shall have been the subject of the reference ; and the master shall be at li})erty, without further order, to tax the costs of such reference and consequent thereon, and to direct by whom the same APPENDIX. 663 sliall lie jiaid, and tlic same >Iiall lie rcroxcraltlc li\' v/z/y- jHDKt; l)ut siu'li scaiiilaloiis (»r iiiipcitiiiciit matter >]iall ii]iall sign his initials thereto in this form: '■'• Eiif.^ A. 11. y and the said ordeis shall then he binding, (unless reversed or vai-ied on ap[)eal) and shall be enforced in like manner as if made by the court ; and the original order, or any 664 APPENDIX. duplicate thereof, wliicli the master is directed to grant on the ap]ilicati()n of any "i)arty, so signed and entered as aforesaitl, sliall l)e a suihc-ient warrant to every officer of the court to do the act tlierein mentioned, or to ])ermit the same to he done ; and each party shall he at liherty to inspect the entry of all siu-li orders in the said entei-ing hook, without fee. Order XX^^ That in case it shall hecome necessary to make any application to a master under the said recited act, during the period hetween the last seal after Trinity term, and the seal next before Michaelmas term, such application shall be made to the sitting master of the vacation., and his dicision and order thereon shall be equally l)inding, and acted upon and enforced in the same way and manner, as if made by the master in rotation, to whom the same has, or ought otherwise to have been referred ; but all subsequent appli- cations, and all references in the cause, shall l)e made to such master in rotation. Order XXVI. That a defendant shall not be at liberty to serve a notice of motion to dismiss for want of prosecution, imtil after the time limited by the rules of the court witliin which a i)lain- tiff, may obtain an ordei" to amend, as- to 6-uch dc^'endant, shall have expired, anything in any former order contained to the contrary notwithstanding. Order XXVII. That each registrar shall attend in succession the three several courts of the lord chancellor, the master of the rolls, and the vice chancellor. APPENDIX. 665 That foi" file piiri»()se of avoidiiiij, as much as may })0, expense niid delay in tlic drawiiiir of tlie deei-ees and orders of tlii> coni-t, it is liei-cKy directed, tliaf, except in orders for sjx-cial injniictions, in wliicli tlie n-nal i-ecitals shall be inserted as heretofore, neither tlie hill nor answers, nor any part thereof, he stated or reeited in the oi'iii-inal decree or order; and that no ])ai-t of the master's rejx)!! he stated in any decree n|)()n furthei- directions, except the master's iindinu\ or (»})ini()n upon the snhject referred to him; and that in orders made upon petitions, no \)iivt of the petition l)e stated or recited, except the i)rayer; and that the same prim*i[)le of l)revity he oT)served in all the orders of this court math' nj)on motion, so far as mav be consistent m itli a statement exjdaining the ij-rounds njxni which the order is made. And for the bettej- undei- standinii: of this order, certain foi'ms of deei-ees and orders drawn pursuant hereto are subjoined. And it is hereby directed, that such forms shall be observed in all cases as nearly as may be, and tliat before any order made on a petition be passed, Me orifjuud petition he f fid irif], tlie derh of the rqwrt-s: Order XXVIII. That ill all cases where any sums of money, or any securities, or other eftects beloncfin^- to the suitors of the court of chancery, shall ])e directed to be j)aid into or deposited in the bank of Enu'land, in tlie name and with the ])ri\ity of the act-onntaiit u't'iiei'al of the said coiii-t ; and in all cases where any such sum of nionev, or any securities, or other effects, be directed to be ])aid out, or invested in the ])urchase of securities, transferred or carried over, or delivered out, the exact sum of money and amount 666 APPENDIX. of securities so to be i)ai(l out, invested, transferred, or carried over, l)e asc'ertaiiied l)y the registrar, and s])ecitied and expressed in tlie order of court, in words written at leny the account- ant general, — shall he descrihed by nam(», except in the case of bodies coi"j)orate, com})anies, or societies, in such order, and not mei-ely as plaintiffs, or jxititioners, or the like, excei>t in cases of j)a\-ments, transfers, or carryings over, directed to Ix; made to, or by rei)resentatives, where no probate or letters of administration shall have been taken out at the time of making such orders ; and the appi:nf)I\. 667 fliristmn and suniaiiKN, or titles of honor of all sncli persons, anetent sum, and not soonei-. That in all cases, where it shall he referred t(.) a master of the court of chaneery, to ascertain and a])portion the amount of money or securities to he paid into the hank of England, in the name and w ith the pi-i\ ity of the ac- countant genei'al, and of any securities to he cai'ried o\'er or transferred to the accountant general, or to ascertain or aj)poi'tion the amount of money to he [)aidout, or invested in the purchase of securities to he ])aid out, or of securities to he sold, cari-ied over, or transferred hy the accountant general, the exact amount «>f such money or securities, re- spectively, shall 1)6 ascertained hy the masters and stated in the re])ort in Avords at length, e.\ce[)t in the case of resi- due of money or secin-ities remaining after a ]K>rtion di- rected to l)e applied to certain |)urpose-<, and the amount of which portions can not he ascertained at tht' timi' o\' making such I'cport, in wliicli case the amount >if sui-h re- sidue and i)oi'tions shall he ascertained hy ai1ida\ it. 66S APPENDIX. AikI that in all caster, where a residue of cash or securi- ties sliall l)e directed hy an order to l)e operated upon by the accountant c^eneral, the exact amount of such residue, where the same can be done, shall he ascertained by the mastei*s, and expressed and specified in the order in words at leng-th, so that the amount of such residue sliall appear on the face of the order. And in all such cases, the persons by (n^ to whom mo- ney is to be paid, or securities carried over or transfeiTed as aforesaid, shall l)e described l)y name, except in the case of bodies corporate, companies, or societies, in such re])orts, and not merely as ])laintifis, or petitioners, or the like; ex- cept in the cases of payments, transfers, or carryings oyer, directed to be made to or by representatiyes, where no probate or letters of administration shall have been taken out at the time of making the said rej)ort, and the chris- tian and surnames or titles of honor of all such persons, and the titles of all such bodies corporate, companies, and societies, shall be written at full length in the said report. OllDEU XXIX. That with a yiew to the conyenience of the suitors and their solicitors, and for the purpose of diminishing the ex- pense of orders on petitions of cour^e^ which, according to the practice of the court, may be })r(^s(Mited to the master of the rf)lls, one of the secretaries of the master of the rolls shall, u[)on any such petitions of course^ (except upon 2)etition-st for .s-eftimj doiim eau^e^ to he reheard^) which shall be presented to his honor, instead of answering such peti- tions as heretofore, draAV u]) the orders thereon in such form as the master of tlie rolls shall from time to time APPENDIX. 669 direct, every such ordiT to 1)l' si^iu'd as ]>ass(*(l witli tlic ini- tials of such secretary; and tlie under secretary shall enter, or cause to ])e entered, ever}' such order in a hook to he kej)t at the secretary's office at the rolls for that ])urj)ose, and shall then mark and siu'n such order with his initials, as entered; and the suitors of the court and their solicitors shall have access to the said hook, during office hours, with- out the ])aynient of any fee; and for every such order so to he made as aforesaid, there shall he paid the same fees as have hitherto l)een i)ayal)le in respect of such petitions as aforesaid, in lieu of the fees on such petitions. And there shall be also paid to the chief secretary, for filing every such petition, the sum of one shilling; and to the under secretary, for entering every such orth^r, the sum of six-])ence. And every such order so to he made as afore- said, shall have the same force and effect as orders of course passed hy the registrars now have, and without the payment of the fees heretofore payable on such orders at the registrar's office ; and for every office co])y that may be required of any such order, there shall l)e paid to the chief secretary (who shall mark the same as examined, and authenticate it by affixing his initials thereto) the sum of six-i)ence, and no more, for making the same. Order XXX. That the (Uities to be performed in the office of the master of reports and entries, shall be carried on as the same were heretofore done ])y the master of the re])ort office; and tliat all decrees and orders of the high court of chancery, shall l)e entered by the clerks of entries under the direction of the master of reports and entries. 670 APPENDIX. Tliat j)roi)er calendars or indexes sliall Ije kept l)y tlie clerks of entries, so that the same may he conveniently referred to wlicii riMinii-cd ; and such calendars or indexes, and the liooks of entries, shall, at all times dnrhig office hours, he accessilde to the jnihlic, on payment of the usual fees. That all re])orts, and exceptions to rejxn'ts, and ])etitions, shall l)e left A\ith the clerk of re])oi-ts, to he by him hied or preserved uiidci' the direction of the master of reports and entries, and all office copies thereof, or of any part thereof, that ma}' he recpnred, shall he i-eady to be de- livei'ed to the ])arty retpiiring the same within forty-eight hours after the same shall have l)een bespoken ; and that all decrees and orders shall be entered within one week after the same shall be left for enti'}', and that all such enti'ies shall be examined ]>y one of the clerks of entries, and be marked Avitlihis initials, to denote such examination. That })roper indexes or calendars to the files or bundles of the reports and excei)tions to re})orts and petitions shall be kept, so that the same may be conveniently referred to when required ; and such calendars and indexes, and the said original re|)orts and excej)ti<)nsto reports and petitions, shall, at all times during office hours, be accessible to the public, on payment of the usual fees. Tliat in addition to such calendars, the said clerks of re})oits shall enter in a book, to l^e ke[)t l)y them for that pui'])ose, the time when any report and set of exceptions is delivered to them to be filed, with the name of the cause anli;ill contain two folios in each l>au"e, except as to (»ffice c()j)ies of hills, wliicli shall contain only one folio, such folios to consist of ninety words eacli, and to be reckoned as to scli(Mhiles ac- C(>rdin<4' to the manner directed by the general oidei- of this court, hearinu- date the I's/// ddij of Novemljei\ \1\?>. Okdkk xxxir. Tliat the hist intei'rouat(»i'y now ct>nini(»nly in use, he in future altei-ed, and shall stand and he in the woids or to the eftect following': "YAy ijoii lii<>ii\ oi- cdii ijon sy/ forfJi^ any other mattd- or thhuj irjiich may he of hen eft or (iiJran- tage to the jKtrtie-s- (it issue in this- caits-e^ or either of them^ or theit may he material to the -whyect of thi-'s your examina- tion^ or to the matters in question in this cause^ if yea^ set forth the smne^'' ctv. A party is not hound to insert this interrogatory. OUDEII XXX 11 h That the masters extraordinary of this eoui-t sludl be at hl)erty in future to take any affidtivit, or do any other act incident to the office of master extraordinary in chancery, at any place which is distant not h.\-\- tJian ten miles from the hall in Liiivoln^-s Inn, any existini;' order to tlie contrary notwithsttuidinLT. Okdimi XXXTV. Tliat tile fees set foi'th in the schedule after stated shall constitute the schedule of fees to be receiveil bv the mas- 672 APPENDIX. ters and tlieir clerks, and the registrars and tlieir clerks, under the said recited act. Order XXXV. That, except a.s may he herein otherwise directed, the offices of this court shall continue open for the despatch of l)usiness, and tlie officers and clerks belonging thereto, sliall attend in sncli offices in the discharge of their busi- ness, during- sncli times and for such number of hours in each day, as they have hitherto done^ under any existing order or practice of the said court. Order XXXM. That the office of the clerk of the affidavits, and of the patentee of the subpcena office, Ije open from the hour of ten in the forenoon until four in the afternoon, and, during the sitting of either of the courts, from the hour of seven to eight in the evening, except that from the 1 st of Sep- tember to the 20th of October, those offices shall be open only from eleven to one o'clock. That all co2)ies of affidavits l)e ready for delivery within foi-ty-eight hours after any copy shall be bespoken. Brougham, C. John Leach, M. R. Lancelot Shadwell, V. C. ORDERS OF MAY 5, 1837. Order I. That, from and after tlie 20tli day of May now instant, every original information or l)ill of complaint filed in the liigh court of chancery, shall (at the option (jf the party, informant or complahiant, by or on whose behalf the mformation or bill shall be filed) be distinctly marked at or near the top or upper part thereof, either with the woi'ds "Lord Chancellor," or with the words "blaster of the llolls ;'• and that the six clerks and clerk in court, to Avhom the filing of the information or bill belongs, shall, in the l)Ooks and indexes in which the same shall be entered, add to the entry thereof such distinguishing words or maik as ma}^ make it appear from such entry, whether the information or bill is marked with the words "Lord Chancellor," or AA'itli the words "Master of the Rolls;" and that, from and after the said 20tli day of May, the six clerks and clerks in court are not to file any original information or bill of complaint which shall not be marked in the manner liereinbefore directed. Order II. That, in every cause in which the original information or bill shall be marked with the words "Lord Chancellor," 43 674 APPENDIX. or ^\ ith the words " Master of tlie llolls," the six clerk to wliom it belongs to give or sign the certificate that the cause is ready for hearmg, shall, upon being applied to for such certificate, see that the same certificate is marked, or cause the same to be marked, with the words "Lord Chancellor," or with the words '' Master of the Rolls," in conformity with the like w^ords marked on the original information or 1)ill. Order III. That, in every cause now in court, but which h^is not yet been set down for hearing, the clerk in court, who, on the behalf of the informant, or of the plaintifl:' or defend- ant, shall, at any time after the 20th day of May instant, apply to the six clerk to set down the cause for hearing, or for the certificate that the cause is ready for hearing, shall state or certify to such six clerk whether any orders or order disposing of any pleas or plea, demmTers or demurrer, or any special orders or order uj^on merits shoTVTi by answer or by afiidavit, have or luis been made in the cause, or (in case no such order as aforesaid has been made) whether the party, on whose behalf the appli- cation is made, desires the cause to be heard before the lord chancellor or the master of the rolls ; and in case the clerk in court so applying shall certify that any such order as aforesaid has been made by the lord chancellor or vice chancellor, and not l)y the master of the rolls, or that such orders as aforesaid have been made Ijy both the lord chancellor or vice chancellor and the master of the rolls, but that the last of such orders has been made by the lord chancellor or vice chancellor, or (in case no such order has been made in the cause) that the party desires APPENDIX. G75 tlie cause to he heard before the hml chancellor, the six clerk givhig the certificate shall see that the same certifi- cate is marked, or shall cause the same to Le marked, Avith the Avords " Lord Chancellor ;" and the six clerk and clerk in court shall cause the entries of the cause in their hooks and indexes to he marked Avith such distinguishing words or marks as shall signify that the cause is to l)e heard before the lord chancellor ; and in case the clerk in coui-t so appl}dng as aforesaid shall certify that any such order as aforesaid has l)een made by the master of the rolls, and not by the lord chancellor or vice chancellor, or that such orders as aforesaid have been made ]>}' l)Oth the lord chancellor or vice chancellor and the master of the rolLs, but that the last of such orders has Ijeen made by the master of the rolls, or (m case no such order as afore- said has been made in the cause) that the party desires the cause to be heard before the master of the rolls, the six clerk giA^ing the certificate shall see that the same certificate is marked, or shall cause the same to be marked, Avith the Avords " Mjister of the Rolls ;" and the six clei-k and clerk in coui't shall cause the entries of the cause in their books and indexes to be marked Avitli such distin- guislmig Avortls or marks as shall signify that the cause is to be heard before the master of the rolls. Order IV. That the registrars of the court, and the secretaries of the lord chancellor and of the master of the rolls, are not at any time after the said 20th day of May instant, to set doAA'n to 1)e heard any cause in Avhich the certificate of the cause bemg ready for hearing shall not l)e marked in the 676 APPENDIX. manner directed by tlie second and third orders, and are not, after the date of these orders, to set down to "be heard before the master of the rolls any cause, furtlier directions, or exceptions, which is or are now set down to l)e heard before the lord chancellor, and are not, without special order of the lord chancellor, to set down to be heard before the lord chancellor any cause, further directions, or exceptions, which is or are now set down to be heard before the master of the rolls. Order V. That in every petition, praying that a day may be appointed for arguing a lAen or demurrer put in to any information or bill filed on or after the said 20th day of May, it shall be stated whether the information or bill to which such plea or demurrer is put in is marked with the words " Lord Chancellor," or with the words " Master of the RoUs." Order VL That, from and after the said 20th day of May instant, the several causes and matters hereinafter mentioned, not already set down, shall be set down to be heard before the lord chancellor, and shall not, without special order of the lord chancellor, be set down to be heard before the master of the rolls. 1. Every plea or demiuTer, and all exceptions in any cause in which the information or bill shall be marked with the words "Lord Chancellor," or inwliich the entries of the cause in the six clerks' books shall Ije so marked as to signify that the same is to he heard before the lord chancellor. APPENDIX. 677 2. Every cause in wliieli tlie certificate of the cause beiui^ ready for liearing shall be marked w itli th(3 ANords "Lord Chancellor." 3. Every cause requiring to be heard for further direc- tions, or on the equity reserved, and in which the niaster^H report has l)een or shall be made, or a trial at law has been or shall be had, or the certificate of a court of com- mon law has been or shall be obtained in pursuance of a decree or order pronounced by the lord chancellor or \4ce chancellor. 4. Every exception or set of exceptions taken to any report made by a master in ordinary, in pursuance of a decree, or an order of reference, (not being an order ob- tained as of course,) made ])y the lord chancellor or the vice chancellor. Vide WiIJd?is vs. Stevens, 10 Sim. G17. Order VII. That, from and after the said 20th day of May instant, every petition presented or motion made under or pursu- ant to the lil)erty to apply contained in any decree or de- cretal order of the lord chancellor or vice chancellor, shall, as to petitions, be addressed to and set down to be heard before the lord chancellor, and shall as to motions be made before the lord chancellor or vice chancellor ; and that no such petition or motion shall, without special order of the lord chancellor, be addressed to or made before the master of the rolls. Order VIII. That all such pleas, demurrers, causes, further directions, exceptions, and petitions, to be so set down to be heard 578 APPENDIX. before the lord cliaiicellor, as liereinbefore is directed, shall be heard and determined in the same manner, and be sul )- ject to the same rules, as pleas, demurrers, canses, further directions, exceptions, and petitions set down before the lord chancellor, have heretofore been heard and deter- mined. Order IX. Til at, from and after the said 20th day of May instant, all interlocutory applications by way of motion or petition, (other than applications for orders of course,) shall, in the several cases hereinafter mentioned, be made to the lord chancellor or to the \ace chancellor, and shall not, without special order of the lord chancellor, l)e made to the mas- ter of the rolls ; ^az. in the several cases following : 1. Where the original information or bill is marked with the words " Lord Chancellor." 2. Where the cause has not been set down for hearing, and any order disposing of any plea or demurrer or any special order upon merits, shown by answer or l)y affida- vit has been made in the cause by the lord chancellor or vice chancellor, and no such order has Ijeen made Ijy the master of the rolls. 3. Where the cause has not T)een set down for hearing, and orders disposing of pleas or demurrers or special orders upon merits, shown l>y answer or affidavit, have been made by Ijoth the lord chancellor or \'ice chancellor and the master of the rolls, but the last of such orders was made by the lord chancellor or vice chancellor. 4. Where the cause lias been set down for hearing be- fore the lord chancellor, either for original hearing or for further directions, or on the equity reserved. APPENDIX. 679 !). AVliciv tlio decree oi* hist decretal ordci- was madr liy the loid cliaiiccllni- or \ ice cliaiicclloi-, except jii cases wliere tlie decree or last decretal ordei' was made; l)y tlic loi'd rliaiicellor on a reliearing- of a decree or decretal nidci- luade ])y the master of the rolls. Order X. That, from and after the said 20th day of May instant, the several causes and matters hereinafter mentioned, not already set down, shall he set down to be heard before the master of the rolls, and shall not otherwise than for the ])nrpose of rehearing be set down to be heard before the lord chancellor, 1. Every })lea or demurrer, and all exceptions in any cause in which the information or bill shall l)e marked ^dtli the Avords "Master of the Ivollsf or in which the en- tries of the cause in the six clerk's books shall l)e so marked as to sig-nify that the same is to be heard l)efore the master of the I'olls. 2. Every cause in M-hich the cei-tificate of the same being ready for hearing shall be mai-ked with the words "Master of the liolls." 3. Every cause requiring to be heard for further direc- tions or on the equity reserved, and in which the masters re])ort has been or shall be made, or a trial at hnv has been or shall be had, or the certificate of a court of com- mon lav» lias been or shall be obtained, in ]tursuance of a decree or order ])ronounced by the master of the rolls. 4. Every exception, or set of exceptions, taken to any report made by a master in ordinary, pursuant to a decree or an order of reference (not being an order obtained as of course) made bv the ma-;ter of the r(»lls. 680 APPENDIX. Order XI. Tliat, from and after tlie said 20tli da}- of May instant, every petition presented, or motion made, nnder or pnrsn- ant to tlie liljerty to apply contained in any decree or de- cretal order of tlie master of the rolls, sliall Ije addressed to and set down to be heard, or sliall be made, before the master of the rolls ; and that, except for the pnrpose of rehearino; an order of the master of the rolls, no such pe- tition or motion shall be addressed to or made before the lord chancellor. Vide Ahurrow vs. Ahnrroio, 10 Sim. 602. Order XII. That, from and after the said 20th day of May instant, all interlocutory applications, by way of motion or petition, (other than ai)plications for orders of course,) shall, in the several cases hereinafter mentioned, Ije made to the master of the rolls, and shall not, except for the purpose of re- hearing an order of the master of the rolls, be made to the lord chancellor; viz. in the several cases folloTvdng: 1. Where the original information or 1jill is marked with the words " Master of the Eolls." 2. Where the cause has not been set down for hearing, and any order disposing of any plea or demurrer, or any special order upon meiits shown by answer or affidavit, has been made in the cause by the master of the rolls, and no such order has been made by tlie lord chancellor or vice chancellor. 3. Where tlie cause has not been set down for hearing, and orders disposing of pleas or demurrers, or special order upon merits shown by answer or affidavit, have been made APPENDIX. 681 l)y Loth tlic lord cliMiiccllor or vice clianocllor aiio made hy one jud<^e for anotlicr under the circumstances aforesaid sjiall l>e relieard for tlic ])U]'|)ose of Ix'ini^- discharuci] or xai-icij otlier\\is(i tlian jjy the hjrd cliancellor. Order XVI. Tliat, from and after the said 20tli day of May instant, all matters Avhich under and Ly virtue of any act of ])arlia- ment or otherwise tlu; court hath jurisdiction to licai- and determine in a sminnary way, and -which shall he in the fii-st instance hrought under the consideration of tlie court upon a petition presented to the lord chancel hn-, shall, in any subsequent stage of the proceedings res])cctiny, shall be deemed sufficiently served if such document, or a copy thereof, as the case may be, shall be left at the place lastly entered in the solicitor's book by the solicitor of such party ; and if any solicitor shall neglect to cause such entry to be made in the solicitor's book as is required by the second order, then the fixing up a copy of any such writ, notice, order, warrant, rule, or other document, proceeding, or written communication for such solicitor in the said six clerks' office, shall be deemed a sufficient service on him, unless the court shall, under special cii'cumstances, think fit to direct otherwise. Order IV. That if any solicitor shall give his consent in writing that the service of all or any writs, notices, orders, warrants, rules, or otlier documents may be made upon him through the post-office or otherwise, such service shall be deemed sufficient, if made in such manner as such solicitor shall have so agreed to accept; but it shall be competent for any solicitor giving such consent, at any time to revoke the same by notice in writing. APPENDIX. 695 Ordkh V. Tliat no person sliall Lc allowed to appear or act, either in person, by solicitor or counsel, or to take any ])rocee(l- in,o-s A\^liatever in tills court, eitlier as plaintill* defendant, })etiti()ner, respondent, party intervening, or otliervvise, until an entiy of the name of his solicitor and his solicitor's agent, if tliere he one, or if he act in person, his own name, and address for ser\ice shall have been made in the solicitor's book at the oflice of the six clerks; but if such address of any person so acting in person, shall not be within London, "Westminster, or the borough of South- wark, or within two miles of Lincoln's Inn Hall, then all services uj^on such person, not requiring to be made personally, sliall l)e deemed sufficient, if a copy of the writ, notice, order, warrant, rule, or other document to be served, be transmitted to him through her majesty's post- office, to such address as aforesaid. Order VI. That no writ of attachment with proclamations, nor any writ of rebellion, l)e hereafter issued for the purpose of compelling obedience to any process, order, or decree of the court. Order VII. That no order shall hereafter be made for a messenger, or for the sergeant-at-arms, to take the body of the defend- ant for the purpose of compelling him to appear to the bill. Order VIII. That if the defendant, being duly served with a sub- poena to appear to and answer the bill, shall refuse or 696 APPENDIX. neglect to appear thereto, the plaintiff shall, after the expiration of eight days from such service, be at liberty to apply to the court for leave to enter an appearance for the defendant. And the court, being satisfied that the sub- poena has been duly served, and that no appearance has been entered by the defendant, may give such leave accordingly; and that thereupon the plaintiff may cause an appearance to be entered for the defendant. And thereupon such further proceedings may be had in the cause as if the defendant had actually appeared. Order IX. That upon the sheriff's return, ^^non est ■inventus^'' to an attachment issued against the defendant for not answering the bill, and upon affidavit made that due diligence was used to ascertain where such defendant was at the time of issuing such writ, and in endeavoring to apprehend such defendant under the same, and that the person suing forth such writ verily believed, at the time of suing forth the same, that such defendant was in the county into which such writ was issued, the plaintiff shall l)e entitled to a writ of sequestration in the same manner that he is now entitled to such writ, upon the like return made by the sergeant-at-arms. Order X. That no writ of execution, nor any writ of attachment shall hereafter be issued for the purpose of requiring or compelling obedience to any order or decree of the high court of chancery ; 1)ut that the |)arty required by any such order to do any act, shall, upon being duly served APPENDIX. 697 with such order, be held bound to do sucli uct in o])edi- ence to the order. Order XI. Tliat if any party who is by an order or decree ordered to pay money, or do any other act in a hmited time, shall, after due service of such order, refuse or neglect to obey the same according to the exigency thereof, the party duly prosecuting such order, shall, at the expiration of the time limited for the performance thereof, be entitled to an order for a sergeant-at-arms, and such other process as he hath hitherto l)een entitled to upon a return, '■^non est invent iLS^'' by the commissioners named in a commission of rebellion issued for non-performance of a decree or order. Order XII. That every order or decree requiring any party to do an act thereby ordered, shall state the time after service of the decree or order within wliic-h the act is to be done; and that upon the copy of the order, which shall be served upon the party required to obey the same, there shall be endorsed a memorandum, in the words, or to the effect following, viz : " If you, the within named A. B., neglect to perform this order by the time therein limited, you will be liable to be arrested by the sergeant-at-arms attending the high court of chancery ; and also be liable to have your estate sequestered for the purpose of compelling you to obey the same order." Order XIII. That upon due ser\'ice of a decree or order for delivery of possession, and upon proof made of demand and refusal 698 APPENDIX. to obey such order, the party prosecuting the same shall be entitled to an order for a writ of assistance. Order XIV. That the memorandum at the foot of the svlijoana to appear and answer, shall hereafter be in the form following, that is to say : " Appearances are to be entered at the Six Clerks' office in Chancery Lane, London ; and if you do not cause your appearance to be entered within the time limited by the above writ, the plaintiif will be at liberty to enter an appearance for you ; and you will be subject to an attachment and the other consequences of not answer- ing the plaintiif 's bill, if you do not put in your answer thereto within the time limited by the general orders of the court for that purpose." Order XV. Tliat every person not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be entitled to enfore obedience to such order by the same process as if he were a party to the cause ; and every person, not being a party in any cause against whom obedience to any order of the court may be enforced, shall be liable to the same ]3rocess for enforcing obedience to such order as if he were a party to the cause. Order XVT. That a defendant shall not be bound to answer any statement or charge in the bill, unless specially and particu- larly interrogated thereto ; and a defendant shall not be bound to answer any interrogatory in the bill, except those APPENDIX. G99 interrof-atories wliicli sucli defeiidaut is required to answer ; and where a defendant shall answer any statement or charge in the hill, to which he is nut interrogated, only hy stating his ignorance of the matter so stated or charged, such an- swer shall be deemed impertinent. Order XVII. That the interrogatories contained in the interrogating part of the hill shall l)e divided ms conveniently as may be from each other, and nund)ered consecutively 1, 2, 3, &c. ; anil the interrogatories which each defendant is re- quired to answer shall l)e specified in a note at the foot of the bill, in the form or to the effect following, that is to say: "The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 8, y the twenty-first order, and with the same effect, unless the court shall, upon overruling such demurrer or plea, give time to the defendant to i)lead, answer, or demur; and in such case, if the defendant shall file no plea, answer, or demurrer, within the time so allowed by the court, the plaintiff, if he does not require an answer, shall, on the expu-ation of such time, be at liberty to file such note. Order XXXIV. That where the defendant shall file a demurrer to the whole bill, the demurrer shall be held sufticient, and the plaintiff' be held to have submitted thereto, unless the 45 706 APPENDIX. plaintiff shall, within twelve days from the expiration of the time allowed to the defendant for filing such demurrer, cause the same to be set do^m for argument ; and where the demurrer is to part of the hill, the demurrer shall be held sufficient, and the plaintiff be held to have submitted thereto, unless the plaintiff' shall, within three weeks from the expiration of the time allowed for filing such last men- tioned demurrer, cause the same to be set down for argument. Order XXXV. That where the defendant shall file a plea to the whole or part of a bill, the plea shall be held good to the same extent, and for the same purposes, as a plea allowed upon argument, unless the plaintiff shall, within three weeks from the expiration of the time allowed for filing such plea, cause the same to be set down for argument, and the plaintiff shall be held to have submitted thereto. Order XXXVI. That no demurrer or plea shall be held bad and over- ruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to it. Order XXXVTI. That no demurrer or plea shall be held bad and over- ruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. ArPENDIX. 707 Order XXXVIII. That a defendant shall be at liberty by answer to decline answering any interrogatory or ]):iit of* an interro- gatory, from answering which he might have protected himself l)y demurrer ; and that he shall be at lil)ei'ty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer. Order XXXIX. That where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintift' shall be at lil^erty, within fourteen days after answer filed, to set down the cause for argument upon that objection only ; and the purpose for which the same is so set dowTi shall be notified by an entr}^, to be made in the registrar's book, in the form or to the effect following, that is to say: "Set down upon the defendant's ol)jection for want of parties ;" and that where the j^laintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course, to an oi'der for liberty to amend his l)ill by adding parties. But the com't, if it thinks fit, shall be at hberty to dismiss the bill. Order XL. That if a defendant shall, at the hearing of a cause, ol)ject that a suit is defective for want of parties, not ha\^ng by plea or answer taken the objection, and therein specified by name or description the parties to whom the 708 APPENDIX. objection applies, the court, if it sliall tliink fit, shall be at liberty to make a decree saving the rights of the absent pai'ties. Order XLT. That where a defendant in equity files a cross-bill ao-ainst the plaintiff in equity for discovery only, the costs of such bill, and of the answer thereto, shall be in the discretion of the court at the hearing of the original cause- Order XLII. That where a defendant in equity files a cross-bill for discovery only against the plaintiff in equity, the answer to such cross-bill may be read and used by the party fihng such cross-bill, in the same manner and under the same restrictions as the answer to a bill praying relief may now be read and used. Order XLIII. That in cases in which any exhibit may by the present practice of the court be proved viva voce at the hearing of a cause, the same may be proved by the afiSdavit of the witness who would be competent to prove the same viva voce at the hearing. Order XLIV. That where a defendant makes default at the hearing of a cause, the decree shall be absolute in the first instance, without giving the defendant a day to show cause, and such decree shall have the same force and effect as if the same had been a decree nisi in the first instance, and after- wards made absolute in default of cause shown by the defendant. APPENDIX. 709 OUDEII XIjV. That every decree, for an account of tlie personal estate of a testator or intestate, shall contain a direction to the master to inquire and state to the couit what i)arts (if any) of such personal estate are outstanding or undisposed of, unless the court shall otherwise direct. Order XLVL That a creditor, whose debt does not curry interest, who shall come in and establish the same before the master, under a decree or order in a suit, shall be entitled to inter- est upon his debt, at the rate of £4 per cent, from the date of the decree, out of any assets which may remain after satisfying the costs of the suit, the debts estabUshed, and the interest of such debts as by law carry interest. Order XL VII. That a creditor, who has come in and estal)lis]ied his debt before the master under a decree or order in a suit, shall be entitled to the costs of so establishing his debt, and the same shall be taxed by the master, and added to the debt. Order XLVIII. That in the reports made by the mtisters of the court, no part of any state of flicts, charge, affidavit, deposition, examination, or answer, brought in or used before tliem shall be stated or recited. But such state of fiicts, charge, affidavit, deposition, examination, or answer shall be iden- tified, specified, and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, examina- tion, or answer were so brought in or used. 710 APPENDIX. Order XLIX. Tliat it sliall not be necessary in any bill of revivor, or supplemental bill, to set forth any of tlie statements in the pleadings in the original suit, unless the special circum- stances of the case may require it. Order L. That in any petition of rehearing of any decree or order made by any judge of the court, it shall not be necessary to state the proceedings anterior to the decree or order appealed from or sought to be reheard. Order LI. That the foregoing orders shall take effect as to all suits, whether now depending, or hereafter commenced, on the last day of Michaelmas term, one thousand eight hundred and forty-one. cotteniiam, c. Langdale, M. R. INDEX TO THE ORDERS OF THE HIGH COURT OF CHANCERY, IN ENGLAND, IN FORCE IN 1842. *** The figures refer to the pages of the vohimc. Pagb. Abatement : Distinction between the ahatemcnt of a suit and the bill becoming defective for want of proper parties G20 Vide tit. Dismissal of hill for leant of prosecution. Revivor; subpoena to hear judgment. Accounts : Mode of rendering in master's office G44 Mode of keeping accounts there 644 Advancing cause : The court will advance a cause after adding parties, when a cause has stood over for that purpose 627 Affidavits : Order respecting use of affidavits before the master 633 All affidavits previously read in court may be used before the master 645 712 INDEX. Paoe. Affidavits (continued): No affidavits in reply before the master to be read, except as to new matter arising out of the affidavits in answer 645 Not to be recited in master's report 709 No objection to affidavits having been used before the mas- ter can be taken on the report, unless the objection was originally taken before the master 633 Amendment of bill, and order for : Orders governing the present practice 662 What amendments are considered as not within those or- ders 609, 615 Mode of obtaining orders to amend before answer, and other orders to amend as of course 610 Any number of amendments hefore answer will be allowed as of course 610, 611 As to viore than one amendment after such answer has been filed, and when such amendment, and of what nature, may be made as of course 609, 615 What applications to amend are of course 609, 610 What are special applications 611, 614 When and what amendments will be allowed after replica- tion and without withdrawing such replication 614, 615 How order to amend withdrawing replication is to be ob- tained G14, 662 Under what circumstances a still further amendment will be allowed as of course 610 Within what time the bill should be amended after the date of the order 613 Form of the affidavit upon a special application for leave to amend bill 609 Effect of an order to amend, as against a motion to dismiss for want of prosecution 617 What order to amend will not defeat such motion 617 But the plaintiff" must pay the defendant's costs of the mo- tion 617 INDEX. 713 Pagb. Amendment of bill, and ordkh kok (continued) : The defendant's costs of aun-uduiciit of tlie liill by tlic plaiiitifl" provided for 025 What amendments the court will permit on the hearing, or on appeal 012 Mode of compelling the plaintiff to amend when the cause has stood over fctr that purpose GLO, G18 Restrictions on the plaintiff in amending by adding parties pursuant to leave given on the hearing G13 Amendment of bill : Under what circumstances the court will order the resto- ration of matter struck out of a bill by amendment, in order to give the defendant his costs as to such matter. . G15 Practice as to amendment in injunction causes : Restrictions on the power of amending in common injunc- tion cases Gil Mode of applying to amend in common injunction cases, without prejudice to the injunction 612, GS6 Such application must be made to the court G12 Circumstances necessary to enable the plaintifi" to obtain leave to amend in such cases G12 Vide tit. Injunction. Practice as to amendment as connected with exceptions for insufficiency CIO, Gil Of hills of discovery : By adding prayer for relief Gil Answf.r : Mode of taking in the country GoG Attachment for want of GOG Sequestration for want of GOG Of defendant, when need not be made GOG Of defendant, when impertinent GOS Suggesting want of parties, proceedings on 707 To cross-bill, how read and used 708 Vide tit. Costs, Exceptions. 714 INDEX. Pa OB. Answer, further : When a defendant may file a further answer, pending ex- ceptions 606 Answering, time for : Orders governing the present practice 656, 659, 685 No order for time now requisite, except where time is re- quired for that purpose, beyond the time allowed by the orders of 1833, and corresponding with the third order under the old practice 657 Extent of time allowed for answering without any order. In town causes : An original hill 657 An amended bill, when an answer is required to the amend- ments 657 A bill of revivor, to which an answer is required 657 A supplemental bill 657 In country causes : An original bill 657 An amended bill, where an answer is required to it 657 A Inll of revivor, to Avhich an answer is required 657 A supplemental bill 657 What time shall he dediicted from the above mentioned pe- riods, when a defendant is in contempt to an attachment for want of ai^pearance C58 What further time a defendant shall be entitled to when a plaintiff is ordered to give security for costs 659 What time a defendant is entitled to take, to put in an an- swer to amended bill, although the order does not require a further answer 659 How he may obtain further time for that purpose 659 Upon exceptions to a first answer, time allowed for putting in a further answer. Where the defendant submits to exceptions hrforc order of reference 661 Where he so submits after an order of reference 661 INDEX. 715 Paob. Answering, time for (continued): Whore the master reports the answer to be insufficient. . . G05 A defendant, after he is in contempt, can not obtain further time to answer 605 Appearance : Time within which it should be entered upon an original or supplemental bill, or bill of revivor 603 Process to enfoice 695 When plaintiff" may enter defendant's 695 Assets : Power of master to certify the state of, on making a sepa- rate report 646 Assistance : Writ of 697 Attachment : For want of answer 696 Bills : How marked 673 Cases for the opinion of counsel : The general rule now is, that their production can not be compelled G40, 643 Certificate : Any person entitled to a certificate from the six clerks' office, specifying the dates and nature of the proceedings in the cause 630, 674 Official fee thereupon 630 Ofviastcr, of state of proceedings in his office, is due to any person 635 Clerks in court : Not entitled to fees for attendance in court, except where such attendance is necessary 628 When personally liable to pay costs for negligence 634 Vide tit. Solicitor. 716 INDEX. Paob. Commission : To examine witnesses may now be executed in term time 621 Within what time the plaintiff &\\on\d obtain an order for, in case he requires it 02 1 AVhen commission to be returnable 621 A\nien the defendant may obtain order for, and issue a commission to examine witnesses, and have the carriage thereof 621 Confirmation of master's report: Order nisi for, obtainable on petition, as 7vc?l as- hy viotion 623 Service on the clerh in couit of a party, good service 623 Construction : General construction of orders 363 Contempt : When a defendant in contempt for want of answer obtains, on putting in his answer, his discharge under the com- mon oi'der, the acceptance of costs by the plaintiff shall not prejudice his right, in case the answer should be insufficient, to take up the process at the point to which he had before proceeded 623 Vide tit. Discharge. Conveyance : When directed to be settled by the muster, mode of pro- ceeding prescribed, in order to avoid the costs of its beinjr so settled, and in a certain event to throw those o costs on the party vexatiously or impi'operly objecting to the form which the other side may have agreed to, and the master may adopt 648 Costs : Of insufficiency of answer provided for 624, 661 Upon successful or unsuccessful exceptions to an answer for insvfficiency 624, 661 Payable on report of the insufficiency of a tliird answer. . 606 INDEX. 717 Pace. Costs (continued) : Oi separate answers in master's discretion G24 Upon reference for scandal or impertinence in proceedings hvfore the court 662 Upon applications by way of motion to the master GCrj Mode of recovery 6G3 On alloivancc of a plea or demurrer, what costs payable . . 025 Costs payable after a plea or demurrer set down 626 On overruling a plea, or disallowance of a demurrer, what costs payable 626 On overruling the demurrer on record, and allowing a demurrer ore tenus 626 Costs payable by a witness overruling his demurrer 626 On amending bill 625 Upon a motion to dismiss for want of prosecution 616 Of defendants, when cause struck out for want of parties or other defect on the plaintiff's part 626 Process to collect 689 When defendant liable to, in suits where no relief is sought 702 When plaintiff liable to, in snits where no relief is sought 702 Of cross-bill for discovery 708 To creditors, before a master 709 Of separate report : In the discretion of the court 646 Defendant's costs of bill of discovery : As to the mode and time of obtaining the same 617 After abatement 620 Ultra deposit : On petition of appeal or rehearing 630 On exceptions to master's report 629 On proceedings in master's office upon special applications 663 Remedy for recovery of 663 Liability of solicitor or clerk in cowtX. personally to pay in case of neglect or misbehavior 634 Vide tit. Contempt, Deposit. 718 INDEX. Pagb. Costs (continued): In viastcr^s office: Vide tit. Master. Security for : In what cases the court will order a sole plaintiff out of the jurisdiction to give 629 Of the day : Amount of, on cause standing over 627 Allowed to defendant on the cause being struck out of the paper 626 In proceedings before master, upon reviewing proceedings 634 Upon failure of proceedings by the non-attendance of par- ties and mode of recovering 634 Taxation of: Mode of proceeding when the master is directed to tax costs, in order to throw the costs of taxation on the party- refusing a tender, when the master adopts in the taxation the amount of such tender, or a less sum 648 Counsel : Costs of two counsel, when both are selected from the outer bar, now allowed 626 Signature of, necessary to exceptions for scandal or imper- tinence in proceedings before the court 606 Courts : For orders regulating the courts in which causes are to be heard, vide tit. Judge. Creditor : "When he may obtain the conduct of the suit in the master's office upon the plaintiff's delay 635 Liability of creditor, or any other person coming in before the master, to be examined by him upon interrogatories or viva voce 647 When entitled to costs 709 INDEX. 719 Vxaa. Deckers : How enforced G95 What writs to cnlbrcc, abolislied G9/3 Not obeyed, proceedings on G97 To specify lime within which to be obeyed G97 Wlien made absolute at the hearing 708 In administrator's suits 709 Vide tit. Entry of decrees and orders, errors. De die in diem : Master may proceed in all matters in his discretion 635 Dedimus : Should be sj)ccial, to enable a defendant to put in a demur- rer to part, and an answer to the remainder of the bill G57 To take answer, may now be obtained without order .... 656 When and how a defendant residing not less ih^njvur miles from London, may sue out such dedimus 656 Defendant : Need not answer, unless specially interrogated 698 To plead, &c., in same time in country as in city causes. . 700 Not pleading, effect of 700 How served with process when no relief is sought 701 Not appearing in such case, eftcct of 702 When may compel proceedings against him as in ordinary way 703 Special appearance in such case 703 Special appearance not after usual time 703 May by answer protect himself from discovery 707 Default at hearing, effect of 708 Delay in prosecuting suit : When and how, upon such delay, a party, or am/ jyerson interested, may apply to the court for the purpose of ex- pediting the cause G31, 635 Vide tit. Expediting Proceedings. 720 INDEX. Pagb. Demurrer : Time allowed to a clcfendant to demur alone to an original, amended or supplemental bill, or bill of revivor, except in common injunction causes, to stay proceedings at law, twelve days 657 Orders regulating the court in which to be set down .... 676 When the court will let in the defendant to demur general- ly, after the expiration of the time allowed by its general orders 658 Time allowed to a defendant to demur alone in injunction causes, to stay proceedings at law, eight days 657 Overruled, effect of 705 When to be held sufficient 705 When not to be disallowed 706 Vide tit. Costs, revivor. Deposit : Amount of, upon exceptions to a master'' s report 629 Power and mode of the court in dealing with 629 Amount of, upon petition of appeal or rehearing 630 Power and mode of dealing with, by the court 630 Vide tit. Costs, ultra deposit. Devisees : When to represent their cestui que trusts 704 Discharge : Of a defendant in custody for want of answer, when he is entitled to 605 Discovery, biij. of: ^ Vide tit. Amendment, Costs, Dismissal of bill. Dismissal of rill for want of prosecution : Order now regulating the practice as to the time within, and the circumstances under, which the defendant may make this motion 664 Vide tit. Time. ENGLISH ORDERS IN FORCE 1842. 721 Paoi. Dismissal of bill for want of proskcution (continued): Cases in which this motion is irregular with regard lo the nature of the svlt 616, 621 Time at whicli this motion may be regularly made (jlo When the court will refuse to make any order on the mo- tion 616, 618 When the court will direct the motion to stand over, and by the same order give the pi aintitl' liberty to perfect his bill 61S Form of order on the plaintiff's undertaking to speed the cause 618 Times within which the various proceedings therein men- tioned must be taken 618 Observations on the effect of such undertaking 618 Effect of an order t/) amend, as against a motion to dismiss for want of prosecution 617 Effect of a replication after notice of motion to dismiss, and before the motion is made 617 A motion to dismiss for want of prosecution cannot now be made, until the time allowed for amending as to such defendant has expired 664 Vide tit. Amendment. A motion to dismiss for want of prosecution pending an ahatement of the suit, irregular 618 But such an order to dismiss is not a mere nullity 618 Cases in which such a motion to dismiss may be regularly made, notwithstanding the hanliruptcy or insolvency of a party to the suit 620 Cases in which it cannot be made after the bankruptcy or insolvency of a sole plaintiff' 620 The proper course of proceeding when the common motion to dismiss for want of prosecution would be irregidar, by reason of abatement or otherwise 619 Vide tit. Revivor. In injunction cases : Practice as to 619 Vide tit. Stay of j^rocccdings. 46 722 INDEX. Paob. Election : Wlien plaintiff may be compelled to take, if bringing two suits for same matter 685 Elegit : Vide tit. Writs. Entry of decrees and orders: By whom to be entered 668, 669 Time within which the officer of the court is bound to make such entry 668, 669 Errors in decrees and decretal orders : When they may be corrected without a rehearing 631 When they cannot be so corrected 631 In other orders : When they may, and cannot, be corrected 631 Evidence before the master : No further aid to be received after issuing the warrant on jpreparing his report 645 Examination before the master : Mode of objecting to, on the ground of insufficiency 647 Vide tit. Viva voce. Examiner : Same examiner who takes the examination in chief of a witness, to be at liberty to take his cross-examination . . 624 Exceptions for insufficiency of answer : Time within which they should be filed 604 Time within which order of reference should be obtained and served [except in injunction causes) 604 In common injunction causes such order may be obtained immediately by the plaintiff, where no injunction has been obtained before answer 604 ENGLISH ORDERS IN FORCE 1842. 723 Paob. Exceptions for insufficiency of answer (continued): Contra, when an injunclion has been obtained before an- swer G04 Time within which the muster's report should be obtained G08 Power of the master to enlarge such time 608 Time within which a second or third answer shouhl be referred on the old exceptions GO 4 Mode of referring such answer, and form of the order . . . G04 Proceedings consequential upon a third answer being re- ported insufficient GOG Time from which answer shall be deemed insufficient upon exceptions submitted to or allowed GOG Power of the master in dealing with exceptions for in- sufficiency or impertinence, to take into consideration the relevancy or materiality of the question G47 Exceptions to master's report : Vide tit. Costs ; Ultra Dejwsit, and Deposit. When a general excejjtion was held by the vice chancellor, to be capable of being allowed in part, and disallowed in part '. G29 Exhibits : A party not compellable to produce before the hearing . . G43 Vide lit. Amendmcftt ; Answering, time for ; Costs; Exa- mination before master ; Impertinence ; Instfftcicncy ; Scandal. When may be proved by affidavit 708 Ex PARTE : When proceedings may be so taken before the master . . . G34 Expediting proceedings : Powers of master in regard to, and to commit the prosecu- tion of the cause to a party to the suit, or any other person who has come in hefore him and established his claim 635 Vide tit. Delay in j^t'osecuting suit. 724 INDEX. Page. Fees of masters and their clerks : Vide tit. Subpama. Of solicitors : Vide tit. Subpcrna. Of their attendance upon warrants 636 Upon their certifying to the registrar a cause to be set down in two courts 628 Upon their certifying to the registrar that a cause has abated or been compromised . . : 628 Power of master to disallow for neglect 636 Fieri facias : See Writs. Foreclosure suits : When may be advanced for hearing 687 Further directions : Orders regulating the court before which causes to be set down for further directions 678 Hearing cause : Vide tit. Setting dotim cause for hearing. Pro confesso, Ad- vancing causes, Costs of the day. Heir-at-law : Generally not entitled to an inspection o? all the title deeds 643 When not a necessary party 705 Husband and wife : Vide tit. Baron and feme. Separate projycrty. Impertinence : In j)roccedings before the court : Mode of excepting for scandal or impertinence in pro- ceedings before the court 608 As to form of 608 What is impertinence 607 ENGLISH ORDERS IN FORCE 1842. 725 Pa OB. Impertinence (continued) : Time of excepting for scandal or impertinence not governed by the order as to exceptions for insufficiency COS Time within which order of reference for scandal or im- pertinence in proceedings before the court should be obtained after the delivery of exceptions 607 Time within which the master's report should be obtained "after the date of the order of reference G08 Mode of obtaining the enlargement of such time G08 An exception for impertinence fails if any part of the pas- sage included in it be not impertinent 607 Interrogatories and depositions will not be referred for impertinence alone without scandal 607 Circumstances under which an order of reference for im- pertinence can, and can not be regularly obtained. 607^ 647 As to form of order of reference 662 Costs upon report of scandal or impertinence, how to be obtained, taxed and recovered 662 Matter reported scandalous or impertinent not to be ex- punged or costs taxed until the expiration of four days from the filing of the master's report 662 A party may, however, take exceptions to the report at any time before such matter is actually expunged 662 No reference for impertinence after reference for insuffi- ciency 608 Nor for answer after replication or an undertaking to speed the cause 607 In proceedings before the master : Mode of objecting to for scandal or impertinence, and man- ner of proceeding 647, 662 Indulgence : The court will under circumstances relax its general orders 363 Vide tit. Demurrer, Injunction to stay proceedings at law. At what time the plaintiff is entitled to move for, as of course, before answer 657, 685 726 INDEX. Paob. Injunction to stay proceedings at law (continued): Form of order for 657, 685 A plaintiff is entitled to the co?/wion injunction on the master rcpoi'ting- the bill not to he impertinent, on the defendant's reference for imjiertinence 607 Injunction, dissolving : Order nisi for, may be obtained on petition, as well as by motion 623 Such order to be served at least two clear days before the day for showing cause 623 Vide tit. Dismissal Jbr want of prosecution, Vrochcin amy, Securitij for costs. Insufficiency : Master in deciding on the sufficiency or insufficiency of an answer or examination, may now take into considera- tion the relevancy or materiality of the subject 647 Vide tit. Exceptions, Examination Infore master. Interest : When and from what time allowed 709 Interrogatory : When parties may be examined upon, in cases of account before the master 644 Last, altered form of 671 Not necessary to be used 671 New form of 699 Interrogatories in the master's office: Parties at liberty lo prefer 644 To be numbered 699 To be answered, to be specified in note at foot of bill .... 699 Such note a part of the bill 699 Lien of solicitor : Vide tit. Production of documents. ENGLISH ORDERS IN FORCE 1842. 727 Paob. Lunatic : Vide lit. 'Protector. Master : Duties of, prescribed G32-G40, G67 Applications to, by way of motion, mode of making pre- scribed G62 Powers of master upon G62 ct scq. Mode of drawing up and entering orders of the master — GG3 Costs upon, master's power as to 663 Mode of recovering 663 Powers of, to expedite and continue proceedings 633-63G And to punish delay or negligence of parties or their solicitors 6.''3— 635 Power of, to award costs 633-636, 646, 663 Power of, to require parties to be represented by another solicitor 649 Power of, to take preliminary accounts 687 Vide tit. Assets, Certificate, Costs, Fees, Expediting pro- ceedings, Orders, Reviewing proceedings and wairant before master. Master of reports and entries: Duties of 669 Master in rotation : Mode of obtaining the name of, and practice in regard to 660 Vide tit. Master of the vacation. Master of the vacation: WHien proceedings may be taken before him 665 Masters extraordinary : Limit of their jurisdiction 671 Mistakes : Vide tit. Errors. 728 INDEX. Page. Money : Vide tit. Orders. Mortgagee : Not generally bound to produce deeds 642 Motions of course : Cannot be opposed, tliough notice has been given 363 Vide tit. Orders of course. New trial : Application for, to be first made to the same jurisdiction which directed the issue 632 Notice of motion : To be served at least two clear days before it is to be made 623 Notices : Where to be served 694 Office copies : Mode of making 628 Of reports and exceptions to reports, when to be ready . . 670 Offices of the court : Hours of attendance at, regulated 672 Orders : Forms of, prescribed Q&5 On fet'ilions of course to the master of the rolls, present mode of drawing up and entering 668 Fees of secretary of the rolls upon 669 Vide tit. Master. Where to be served 694 How to be enforced against persons not parties 698 Of 1841, when to take effect 710 By masters, vide tit. Master. For transfer of stock, or payment or laying out money, form of, regulated 667 ENGLISH ORDERS IN FORCE 1842. 729 Paob. Drawin<; up : It is the duty of the party obtaining an order, to draw it up correctly 3G3 Order to amend rill : Vide tit. Amendment of hill. Orders of course : Not within the operation of the orders of the 5tli May, re- gulating the mode of hearing causes, and making special application 678, GSO Mode of drawing up, &c., at the rolls 668 Fees upon 669 Motion to discharge 688 To amend : Still obtained by motion of course, of the rolls 681 Parties : "When one or more joint ones may be sued alone 705 AVant of, suggested by answer 707 Want of, when not so suggested 707 Petition : Must be filed after order j^ronounccd or made upon it. . . 665 Orders regulating the court to which sj>ccial petitions are to be presented, and by which to be heard 678 For rehearing, what need not state 710 Service of: Two clear days at least before it is to be heard 623 Plea : Time allowed to a defendant to plead to original or sup- plemental bill, or bill of revivor to which an answer is required, or to an amended bill to which an answer is recjuired, in town causes 657 Time allowed, &c., in country causes 700 Orders regulating the setting down of 678 730 INDEX. Paob. Plea (continued) : Overruled, effect of 705 AVhen to be held good 705 When not to be disallowed 706 Process : To enforce decrees 695 Prochein amy : Course of proceeding on death of 620 Pro confesso : Vide tit. Advancing cause. Produce witnesses : Vide tit. Rules to j'roduce witnesses, Sfc. ; Witness. Production of documents : Order regulating this before the master 636 As to the master's discretionary power under this order. . 636 et seq. As to enforcing production of documents adinitted hy the answer to he in the defendants possession or power : General rule of the court is to compel production 636 In what cases, and as to what particular documents the court will order the production 636 In what cases, and as to what particular documents the court will refuse to compel production 640 The solicitor's lien will not protect his client from being ordered to produce documents in the solicitor's posses- sion on the motion of the other party 638 A plaintiff is not compellable to produce documents on motion of a defendant, even on his affidavit that an in- spection of ihem is necessary to enable him to answer the bill 643 When the documents are in a foreign country 639 As to production at law in cases of discovery here. . 638, 644 ENGLISH ORDERS IN FORCE 1842. 731 Publication, enlarc;ing or staying : Generally by special application 662 Vide tit. Rules to produce witnesses, Sfc. Mode of applying for 622 Receiver : His accounts may now be delivered and his balances paid at such times as the master may direct 644 Form of order appointing 644 Powers of master enlarged 644 Mode of acting under order 644 May now let with the approbation of the master without a petition previously presented for a reference as to such letting 644 But the master's report approving of such letting must be confirmed by petition 644 Recitals : In decrees and orders, vide tit. Orders of the court. Rehearing : Vid tit. Costs, Deposits. Registrars : Duties of, prescribed 664 Report, master's : Should be actually filed before any proceeding is taken upon it 605 Upon exceptions to a first answer for insufficiency, within what time to be obtained 608 Mode of obtaining enlargement of such time 60S Time within which report oi scandal ov impertinence should be obtained after order of reference 60S Mode of obtaining an enlargement of such time 60S Report, separate : May be now made without an order 646 732 INDEX. Page. Report separate (continued) : Costs of indiscretion of the court 646 A-^ide tit. Confirmation of report. Restoring bill after dismissal for want of prosecu- tion : A'ide tit. Dismissal for want of Prosecution. Reviewing proceedings before master : Practice as to 034, 646 Costs of 634, 646 Revivor : At what time, and under what circumstances, and how the plaintiff" may apply for the common order to revive he- fore appearance 655 After appearance 657 Defendant can not show cause against reviving suit other- wise than by plea or demurrer 658 Bills of^ what need not state 710 Sale of estates in master's office : Powers of master as to 648 Scandal : Vide tit. Impertinence. Separate property op a feme covert : Form of a bill in the an-angement of parties in respect of 613 Separate report : Vide tit. Report. Service : On the solicitor in London of a person appearing in any proceeding before the court or master, and not heing a party, good, except in matters of contempt requiring personal service 630 ENGLISH ORDERS IN FORCE 1842. 733 Paob. Servick of process : Vide tit. Process, Suhpmna, Subjjoma to appear and answer. When no direct relief is sought 701 Memorandum in such cases 7f'l Defendant not appearing on such, effect of 701 Setting down cause for hearing : Time within which the plaintiff should set down the cause, G16 Solicitor : Is liable to pay or reimburse his client costs occasioned by his negligence or misbehavior "- ' Power of master to direct parties to be represented by a different solicitor "'^^ When service on good "'^" Vide tit. Costs, Fees, Lien, Master, Production of documents, Solicitor and client, Subpoena to appear and ansxcer. Solicitor's book: What, and where kept 693 Entries in said book by 693 Entry in, necessary before proceedings 695 Solicitor and client: When correspondence between, is protected from produc- tion 611 Vide tit. Solicitor, Speeding cause : Form of order on plaintiff's undertaking to speed cause. . 618 Plaintiff must pay the defendant's costs of motion to dis- miss on giving this undertaking 618 Stay of proceedings : Application to stay proceedings upon any decree or order appealed from to be now made to the judge who pro- nounced such decree or order 631 734 INDEX. Pa OB. SUBPCENA, GENERAL DIRECTIONS : All writs of, to be prepared by the solicitor 653 Mode of issuing 653 Service 654 Time prescribed for service of all writs of subpoena (ex- cept for costs) 655 Mode of correcting errors in t . 655 To appear and answer : Form of memorandum at foot of 698 May in all cases be returnable immediately 603 Solicitor's fees upon 654 Mode of correcting errors in 655 To rejoin : Service on clerk in court good 622, 655 To hear judgyncnt : Service of, on clerk in court good 622 Supplemental bills : What need not state 710 Time: For answering, vide tit. Answering, time for. Vide tit. Month ; Anstvering, time for ; Demtirrer ; Plea; Sunday. For pleading, same in country as in city causes 700 Traversing note : What and when plaintiff may file it 700 Not to be filed without order 700 On overruling of plea or demurrer 705 Trustee : Vide tit. Escheat, Forfeiture, Process. Undertaking to speed cause : Vide tit. Dismissal of hill for tvant of prosecution. ENGLISH ORDERS IN FORCE 1842. 735 Paob Vice chancellor : Vide tit. Lord cliancellor. Viva voce : When and xcliom the master at liis discretion may examine 646 Mode of such examination 646 Warrant before the master : Every warrant now peremptory 636 Extent of attendance upon 636 Fees thereof 636 To be taken out and scrvedyor considering decree or order, 636 Manner of proceeding thereupon, and regulating future proceeding in the reference, and tlie form of such pro- ceedings 633 A warrant to show cause why a warrant on preparing re- port should not issue, is now necessary 645 Vide tit. Master. Witness : Not now necessary to produce at the seat of the clerk in court 623 Notice of his name and description to be served 629 Writings : Vide tit. Production of documents. Writs : To collect money 689 Entry of order for 689 To whom delivered 690 When vcn. cxp. will issue 690 Endorsement on 690 Fees on 691 Where to be served 694 Of assistance 697 ORDERS OF MAY 8, 1845. The Right Honorable John Singleton, Lord Lyndhurst, Lord High Chancellor of Great Britain, by and with the advice and assistance of the Right Honorable Hexry Lord Lang- dale, Master of the Rolls, the Right Honorable Sir Lance- lot Shadwell, Vice Chancellor of England, and the Right Honorable the Vice Chancellor Sir James Wigram, doth hereby, in pursuance of an Act of Parliament passed in the fourth year of the reign of her present Majesty, intituled " An Act for facilitating the administration of justice in the Court of Chancery," and of an act passed in the fourth and fifth years of the reign of her present Majesty, intituled " An Act to amend an act of the fourth year of the reign of her present Majesty, intituled * An Act for facilitating the administration of justice in the Court of Chancery,'" and in pursuance and execution of all other powers enabling him in that behalf, order and direct that all and every the rules, orders, and di- rections hereinafter set forth shall henceforth be, and for all purposes be deemed and taken to be General Orders and Rules of the High Court of Chancery, viz : Order I. Tlie several orders comprised iu the general oi-der of the 3d of April, 1828, which are respectively ininibered 1, 2, 3, 4, 5, 6, 8, 11, 12, 13, 14, 15, IG, 17, 18, 10, 20, 22, 31, 37, and 38, and the amendments made by the general 47 738 APPENDIX. order of the 23d day of November, 1831, in sucli of the same orders as are respectively numbered 6, 13, IG, 17, 18, and 19, and also the general order of the 3d day of April, 1830, and also the several orders comprised in the general orders of the 21st of December, 1833, which are respec- tively numbered 1, T, 8, 10, 12, 13, 14, 18, 21, 22, 26, 34, 35, and 36, and the several orders comprised in the general order of the 9th of May, 1839, which are respectively num- bered 1 and 2, and the several orders comprised in the general order of the 26th of August, 1841, which are re- spectively numbered 1, 2, 3, 4, 5, 8, 14, 20, 21, 22, 33, 34, and 35, and the several orders comj)rised in the general order of the 11th of April, 1842, which are respectively numbered 1, 2, 4 and 5, and all other orders and parts of orders, so far as such other orders and parts of orders are inconsistent with these orders, but not further or otherwise, are hereby abrogated and discharged. Order II. All former orders and parts of orders not specified in Order I, so far as the same are now in force, and consistent with these orders, are to remain in full force and effect. Order III. These orders are, as to all suits now pending or hereafter to be commenced, to take effect on the 28th day of Octo- ber, 1845. Order IV. In these orders the following words have tlie several meanings hereby assigned to them, over and above their ENGLISH ORDERS OF 1845. 739 several ordinary meanings, unless there be something in the suLject or context repugnant to such construction, viz : 1. Words importmg the singular numher include the })lural number, and words»inij)orting the plural numljer in- clude the singular number. 2. Words importing the masculme gender includes females. 3. The word person or party includes a body pohtic or corporate. 4. The word bill includes information. 5. The word plaintiff includes informant. Order V. The several offices of the court, except the offices of the accountant general and of the masters in ordinary and tax- ing masters, are to l^e open on every day of the year, except Sundays, Good Friday, Monday and Tuesday in Easter week, Christmas day, and all days appomted by proclama- tion to be observed as days of general fast or thanksgiving. Order VI. The offices of the accountant general, and of the masters in ordinary and taxing masters, are to be open on every day of the year, except the days specified in Order V., and excej)t during vacations. Order VIT. The offices of the vacation master in ordinary, and of the vacation taxing master, are to be open during the vacations on every day except the day specified in Order V. 740 APPENDIX. Order VIII. The Yacatlons to be observed in several offices of tbe court, except in tlie office of the accountant general, are to be four in every year, viz : the Editer vacation, the Whitsun vacation, the Long vacation, and the Christmas vacation. 1. The Easter vacation is to commence and terminate on such days as the lord chancellor shall every year spe- cially direct. 2. The Whitsun vacation is to commence on the third day after Easter term, and to terminate on the second day before Trinity term in every year. 3. The Long vacation is to commence on the 10th day of August, and terminate on the 28th day of October, in every year. 4. The Christmas vacation is to commence on the 24th day of December in every year, and terminate on the 6th day of the following month of January ; and 5. Tlie days of the commencement and termination of each vacation are to be included in and reckoned part of such vacation. Order IX. The vacations in the office of the accountant general are to be the same as in the other offices, except as to the long vacation, which, in that office, is to commence and termi- nate on such days as the lord chancellor shall every year direct. Order X. The loi'd chancellor may from time to tune, l)y special order, direct the offices to be closed on days other than those mentioned in Order V, and direct any of the vaca- ENGLISH ORDERS OF 1845. 741 tions to commence and terminate on days different from the fixed days mentioned in Order VIII. Order XI. When any limited time fi'om or after any date or event is appointed or allowed for doing any act or taking any proceeding, tlie computation of such limited time is not to include the day of such date or of the happening of such event, but is to commence at the begmniug of the next fol- lowing day ; and the act or proceeding is to be done or taken at the latest on the last day of such limited time ac- cording to such computation. Order XII. When the time for doing any act or taking any proceed- ing is lunited by months not expressed to be calendar months, such time is to be computed by Imiar months of twenty-eight da}^s each. Order XIIT. Wlien the time for doing any act or taking any proceed- ing expires on a Sunday or other day on which the offices are closed, and by reason thereof such act or proceeding can not be done or taken on that day, such act or proceed- ing is, so far as regards the time of doing or taking the same, to be held to be duly done or taken, if done or taken on the day on which the offices shall next open. Order XIV. The times of vacation are not to be reckoned in the com- putation of the times appointed or allowed for tlie following purposes : 742 APPENDIX. 1. Amending or obtaining orders for leave to amend bills, 2. Filing or referring exceptions, or obtaining a master's report on exceptions, in cases where tbe time is not limited by tlie order of reference, or by notice given pursuant to article 21, of Order XVI. 3. Setting down pleas, demmTers, or objections, for want of parties. 4. Filing replications, or setting down causes under tlie directions of article 41, of Order XVI. Order XV. The day on which an order that the plaintiff do give security for costs is served, and the time thenceforward until and including the day on which such security is given, is not to be reckoned in the computation of time allowed a defendant to plead, answer, or demur. Order XVI. The times of procedure are to be the same in town causes and country causes ; and in the cases hereinafter mentioned are to be as follow : 1. The service of any subpoena, except a subpoena for costs, is to be of no validity if not made within twelve weeks after test of the writ. 2. The service of a copy of a bill upon a defendant under the 23d of the orders of the 26th August, 1841, is to be of no validity if not made within twelve weeks from the filing of such bill, unless the court shall give leave for such ser\'ice to be made after the expiration of such twelve weeks. 3. If a defendant be served with a subpoena to appear to, or to appear to and answer a bill, he is to appear ENGLISH ORDERS OF 1845. 743 thereto witliiu eiglit days uf'ter the service of such subpa'iiti. If lie does not, he becomes sultject to the fulLjw- ing Habihties: 1. An attachment may be issued against him. 2. An appearance may be entered for him on the ai^phcation of the pLaintiff. 3. If the bill prays for an injunction to stay pro- ceedings at law, the plaintiff may obtain an order for the common injunction, if no injunc- tion has been previously obtained. 4. In cases where a subpoena has been served in the manner si:)ecified by Order XXIX, and a defendant is in default for want of apj)earance, the plaintiff may, within three weeks after such service, cause an ap- pearance to be entered for such defendant by a record and Avrit clerk, "uithout special order. 5. A defendant, served with a copy of a bill under the 23d of the orders of the 26th August, 1841, may, within twelve days after such service, enter a common or special appearance under the 26th or 27th of the same orders. If he does not do so, he can not afterwards enter either a common or special appearance without leave of the court ; and he is bound by the proceedings in the cause, unless the court otherwise directs. 6. Any pei*son or party ha\dng filed exceptions to any pleading or other matter depending before the court for scandal, and any party having filed exceptions for impertinence, is to obtain an order to refer the same to the master within six days after the filing thereof. 744 APPENDIX. If he does not, the exceptions are to be considered as abandoned, and the costs are to be paid l)y the exceptant. 7. Any person or party having obtained an order to refer exceptions to the master for scandal, and any party ha^dng obtained an order to refer exceptions to the master for impertinence, is to obtain the master's report thereon within fourteen days after the date of the order, or within such further time as the master thinks fit to allow. If he does not, the order is to be considered as abandoned, and the costs are to be paid by the exceptant. 8. Any person or party objecting to the master's report that any pleading or other matter referred to him is scandalous, and any party objecting to the master's report that any pleading or other matter referred to him is impertinent, has four days after the filmg of the report, within which he may file and set down exceptions thereto and serve the order for setting down the same, before the scandal or impertinence is expunged. If he does not do so, the scandalous or impertinent matter is to be expunged. 9. Any person or party objecting to the master's report that any pleading or other matter referred to him is not scanclalous, and any party objecting to the mas- ter's report that any pleading or other matter referred to him is not impertinent, has four days after the filing of the report, within which he may file and set down exceptions thereto, and serve the order for setting down the same. ENGLISH ORDERS OF 1845. 745 10. A (lefendant may demur alone to any "bill Tvithin twelve days after Lis a})2)earance thereto, Lut not afterwards. 11. A defendant desiring to avoid tlie common injunction for default of answer has for that purpose only eight days after appearance, within which he is to plead, answer, or demur to a hill pra}'ing an injunction to stay proceedings at law. If he does not plead, answer, or demur wdtliin such eight days, the plaintiff is entitled as of course, and without an attachment, to the common uij unction. 12. A defendant who has appeared in person or ]jy his own solicitor, and desires to show cause against an order to revive being made, has for that purpose only eight days after such appearance, within which he is to plead or demur to a hWl of revivor. If he does not plead or demur A^dthin such eight days, the plaintiff is entitled as of course to the com- mon order to revive. 13. A defendant is to plead, answer, or demur, not de- murring alone, to any original or supplemental bill, within six weeks after appearance thereto has been entered by or for him. If he does not, and if he procures no enlargement of the time allowed, he is subject to the following liabilities : 1. An attachment may be issued against him. 2. He may be committed to j^rison, and brought to the bar of the court ; and 3. The plaintiff may file a traversing note, or pro- ceed to have the bill taken p?'o confesso against him. 746 APPENDIX. li. If the plaintiff amends his "bill under an order for leave to amend obtained and served before answer, a defendant is to plead, answer, or demur, not demur- riuir alone, to sucli amended bill, within six weeks after he is served with notice of the amendment of such bill. If he does not, and if he procures no enlargement of the time allowed, he is subject to the following Habilities : 1. An attachment may be issued against him. 2. He may be committed to prison, and brought to the bar of court. 3. The plaintiff may file a traversing note, or proceed to have the bill taken p?'0 confesso against him. 15. If a defendant is ordered to answer amendments and exceptions together, he is to put in his further answer and his answer to the amendments of the bill within four weeks after he is served with notice of the amendment of such bill. If he does not, and if he procures no enlargement of the time allowed, he is subject to the follo-wdng liabilities : 1. An attachment may be issued against him. 2. He may be committed to prison, and brought to the bar of the court. 3. The plaintiff may file a traversing note, or pro- ceed to take the bill pro confesso against him. 16. If a defendant, having already answered, is served with a svJ^pmna to appear to and answer an amended bill, he is to plead, answer, or demur, not demurring alone, to such amended bill, within four weeks, after an appearance thereto has been entered by or for him. ENGLISH ORDERS OF 1845. 747 If he does not, and if he procures no enlargement of the time allowed, he Is subject to the follo^ving lia1)ilities : 1. An attachment may be issued against him. 2. He may be committed to prison, and brought to the bar of the court ; and 3. The plaintiff may file a traversing note, or proceed to have the bill taken ^;/'0 confess-o against him. 17. Within twelve days after the filing of a demuiTer to the whole bill, the plaintiff desiiiug to submit such demurrer to the judgment of the coui-t Ls to cause the same to be set down for argument. If he does not, such demurrer is to be held suffi- cient, and the plaintiff is to be held to have submitted thereto. • 18. Within three weeks after the filing of a demurrer to part of a bill, the plaintiff desiring to submit such demurrer to the judgment of the com-t is to cause the same to be set down for argument. If he does not, such demurrer is to be held sufficient, and the plaintiff is to be held to have submitted thereto. 19. Within three weeks after the filing of a plea to the whole or part of a bill, the plaintiff' desiring to submit such plea to the judgment of the court is to cause the same to be set down for argument. If he does not, such plea is to be held good, to the same extent and for the same purposes as a plea allowed upon argument, and the plaintiff is to be held to have submitted thereto. 20. A defendant whose answer is not excepted to, or referred back on former exceptions, alleging that the 748 APPENDIX. plaintiff is prosecuting him in tliis court, and also at law for the same matter, may, upon the expiration of eight days after his answer or fm-ther answer is filed, obtain as of course, on motion or petition, the usual order for the plaintiff to make his election in which court he vnR proceed. 21. A defendant whose answer is excepted to, or referred back on former exceptions, alleging that the j)laintiff is prosecuting him in this court, and also at law for the same matter, may by notice in writing require the plaintiff to procure the master's report upon the exceptions within four days from the service of the notice. And if the plaintiff does not obtain the master's report within suc^fi four days, such defendant is entitled as of course, on motion or petition, to obtain the usual order for the plaintiff to make his election in which court he will proceed. 22. After the filing of a defendant's answer, the j^laintiff has six weeks within which he may file exceptions thereto for insufficiency. If he does not file exceptions within six weeks, such answer on the expiration of the six weeks is to be deemed sufficient. 23. A defendant desiring to avoid a reference to the master of exceptions to his answer for insufiiciency, has for that purpose only eight days after the filing of such exceptions within which he may submit to the same before reference. 24. If a defendant, not being in contempt, submits to exceptions to his answer for insufficiency before the plaintiff has obtained an order to refer the same to ENGLISH ORDERS OF 1845. 749 the master, lie is allowed three weeks from the date of the suTnmssion within which he is to put in his further answer to the bill. 25. The i)laintiif, having filed exceptions for insufficiency to a defendant's answer, is not to procure an order to refer them to the master before the expiration of eight days from the filing of such exceptions, unless in a case of election he is required by notice in writing from such defendant to procure the master's report on such exceptions in four days, pursuant to article 21 of this order. 2G. The plaintiff, having filed exceptions for insufficiency to a defendant's answer, is to procure an order to refer them to the master after the ex]3iration of eight days, Init T\ithin fourteen days from the filing of such exceptions. If he does not, the answer, on the expiration of such fourteen days, is to be deemed sufficient. 27. The plaintifi^ ha^ang obtained an order for referring to the master exceptions to a defendant's answer for insufficiency, or for referring back a defendant's answer on former exceptions for insufficiency, is to obtain the master's report thereon within fom*teen days from the date of the order, or within such fm'ther time as the master shall allow. If he does not, the answer, on the expiration of such fourteen days or further time, is to be deemed suffi- cient. 28. The i)laintiif, ha^^ng shown exceptions to a defendant's answer for insufficiency as cause against dissohdng an injunction, is to obtain the master's report thereon 750 APPENDIX. within four days after tlie date of tlie order to refer tliem. If lie does not, tlie injunction is dissolved. 29. After tlie filing of exceptions to a defendant's answer for insufficiency, and any further answer put in, the plaintiff has fourteen days from the filing of such further answer witliin which he may refer the answer back to the master on the old exceptions. The answer, if not referred back on the old excep- tions within fom-teen days after such further answer put in, is, on the expiration of such fom*teen days, to be deemed sufficient. 30. If, after a reference of exceptions for insufficiency, or a reference back of the answer on the old exceptions, a defendant, not being in contempt, submits to answer, or the master finds the answer to be insufficient, the master is in such cases to appoint the time within which such defendant is to put in his farther answer. If such defendant does not obtain time from the master, or does not answer within the time which the master allows, the plaintiff may sue out process of contempt against such defendant. 31. The answer of a defendant ls to be deemed sufficient — 1. If no exception for insufficiency be filed thereto within six weeks after the filing of such answer. 2. If (exceptions being filed) the plaintiff* does not, ^vithiii fourteen days after the fihng thereof, oljtain an order to I'efer them. 3. If (after obtaining such order) he does not obtain the master's report thereon within four- teen days from the date of the order, or within such further time as the master may allow. ENGLISH ORDERS OF 1S45. 751 4. If lie does not obtain an order to refer tlie answer l)ack to tlie master on the old exceptions within fourteen days after the filing of a further answer. 5. If (after obtainhig such order) he does not obtain the master's report thereon within fom-teen days from the date of the order, or within such further time as the master may allow. 32. In cases Avhere there is a sole defendant, or where, there being several defendants they all join in the same answer, the plaintiff may, after answer and before replication or undertaking to reply, obtain one order of course for leave to amend the bill, at any time within four weeks after the answer is deemed or found to be sufficient. 33. In cases where there are several defendants who do not join in the same answer, the plaintiff (if not pre- cluded from amending, or limited as to the time of amending by some former order) may, after answer and before replication or undertaking to reply, at any time within four weeks after the last answer is deemed or found to be sufficient, obtain one order of course for leave to amend his bill. 34. The plaintiff, ha^dng obtained an order for leave to amend his bill, has, in all cases in which such order is not made without prejudice to an iuj miction, fourteen days after the date of the order within which he may amend such bill. If such bill be not amended within such fourteen days, the order for leave to amend ]3ecomes void, and the cause, as to dismissal, stands in the same situation as if such order had not been made. 752 APPENDIX. 35. The i)Lilntiff, liaving obtained an order for leave to amend Lis Lill without prejudice to an injunction, must amend such bill Avdthin seven days from the date of the order. If such bill be not amended within such seven days, the order for leave to amend becomes void, and the cause, as to dismissal, stands in the same situation as if sucli order had not been made. 36. A defendant, being served with subpoena to answer an amended bill praying an injunction to stay pro- ceedings at law, and desiring to avoid a motion for an injunction on affidavit of the truth of the amend- ments, has, for that purpose, only eight days after appearance, within which he is to plead, answer, or demur to such amended bill. 37. The plaintiff (not obtaining an order for leave to amend his Ijill) must either file his replication or set doTVTi the cause to be heard on bill and answer, within four weeks after the last answer is deemed or found to be sufficient. Otherwise any defendant may move to dismiss the bill for want of prosecution. 38. If the i)laintiff amends his bill without requiring an answer to the amendments, any defendant desiring to answer the same, must put in his answer thereto within eight days after being served with notice of the amendment of the bill, or within such further time as the master may allow. 39. Where the plaintiff amends his ])ill without requiring an answer to the amendments, and no answer is put in thereto, and no warrant for further time to answer the same is served within eight days after service of ENGLISH ORDERS OF 1845. 753 the notice of the amendment of such Ijill, the })haintlff is, after the expiration of such eight days, hut witliiii fourteen days from the time of such ser\ ice, either to file his replication, or to set down the cause to he heard upon hill and answer. Otherwise any defendant may move to dismiss the hill for want of prosecution. 40. Where the plaintiff amends his bill without requiring an answer to the amendments, and a defendant, within eight days after the service of the notice of the filing of the amended hill, serves a warrant for further time to answer the amendments, but the master refuses to grant such further time, the plaintiff is, within fourteen days after such refusal, either to file his rephcation or to set down the cause to be heard on bill and answer. Otherwise any defendant may move to dismiss the bill for want of prosecution. 41. If a defendant puts in an answer to amendments to which the plaintiff' has not requu*ed an answer, the plaintiff' must, within fourteen days after the filing of such answer, either file his rephcation or set down the cause to be heard on bill and answer, unless, in the mean time, he oljtains from the court a special order for leave to except to such answer or to amend the bill. Otherwise any defendant may move to dismiss the bill for want of prosecution. 42. Parties desuing to examine witnesses by commission, are not to apply for a warrant to name commissioners to examine witnesses, until after the expiration of four days from the filing of the rephcation. 48 754 APPENDIX. 43. After the replication is filed, parties have two months to examine their witnesses ; and if such two months expire in the Long vacation, the time, wdthin which the parties are to examine their witnesses, is extended to the second day of the ensning Michaehnas term. 44. After the ex]^)iration of two months from the filing of the replication, publication is to pass, nnless the time for publication has been enlarged, in which case it is to pass on the expiration of the enlarged time ; but if the two months or the enlarged time expire in the Long vacation, publication is not to pass till the second day of Michaelmas term ; and on that day it is to pass, unless the time has been enlarged. 45. Within four weeks after publication has passed, the plaintiff is to set down his cause and obtain and serve a subpoena to hear judgment. Otherwise any defendant may move to dismiss the bill for want of prosecution. 46. A subpoena to hear judgment is not to be returnable at any time less than one month from the test of the writ ; and it is to be served at least ten days before the return thereof. 47. There must, unless the court gives special leave to the contrary, be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion, and at least two clear days between the service of a petition and the day appointed for hearing the petition ; but, in the computation of such two clear days, Sundays and other days on which the offices are closed, except Monday and Tuesday in Easter week, are not to be reckoned. ENGLISH ORDERS OF 1845. 755 48. There must Le at least six clear days Ijetweeu the service of a notice of motion, Ijy the plaintiff, for the appointment of a guardian, Ly whom a defendant who is an infant or a person of Aveak intellect or unsound mind may defend the suit, and the day named in the notice for hearing the motion. 49. At any time within three wrecks after the execution of an attachment for A\'ant of answer, the plaintiff may serve a defendant so attached with a notice of motion that the bill may be taken pro confesso against him, and may move the court accordingly as directed by Order LXXVI. Order XVII. No order is to be made for leave to file excejitions nunc 2W0 tunc. Order XVIII. If a defendant, using due diligence, is unable to put in his answer to a bill within the times allowed by Order XVI, the master (on sufficient cause being shown) may allow to such defendant such further>time, and on such, if any, terms as to the master seems just. Order XIX. The master may enlarge the time for making his report upon exceptions, in all cases where the time is not limited by the order of reference, or by notice given pursuant to article 21 of Order XVI. Order XX. In all cases where the master is authorized to appoint the time for any proceeding, or to enlarge the time allowed 756 APPENDIX. for any proceeding by general order, lie may further enlarge any time so appointed or enlarged, by himself, and on such, if any, terms as to Mm seem just, provided the application for such enlargement is made before tlie expi- ration of the time previously allowed, and he is satisfied that such enlargement is required for the purposes of justice, and not with a view to create unnecessary delay. Order XXI. The power of the court to enlarge or abridge the time for doing any act, or taking any proceeding in a cause, upon such, if any, terms as the justice of the case requires, is unaffected by these orders. Order XXII. Subpoenas to appear, or to appear and answer, which are served within the jurisdiction of the court, are to be made returnable within eight days after the service thereof Order XXIII. Subpoenas to appear or to appear and answer, which are served out of the jurisdiction of the court, are to be made returnable at such time after the service thereof as the court by special order may direct ; and if an answer be required, each such subpoena is to specify the- time after service, within which the defendant is requu'ed to answer. Order XXIV. All writs of subpoena in this court are to be prepared by the solicitor of the party requiring the same ; and the seal for sealing the same is to be marked or inscribed with the words " Subpoena Office, Chancery ;" and such writs are to ENGLISH ORDERS OF 1845. 757 be in tlie terms mentioned at the foot of these orders, or as near as may Le, with such alterations and variations as circumstances may require. Order XXV. In the interval between the suing out and service of any subpoena, the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ re-sealed, upon paj-ment to the clerk of the subpcona office of a fee of one shilling, and at the same time leaving a corrected praecipe of such subpoena, marked, altered and re-sealed, and signed Avith the name and address of the solicitor or solicitors sumg out the same. Order XXVI. Service upon a defendant's solicitor of a subpoena to answer an amended bill, or to hear judgment, is to be deemed good service upon the party. Order XXVII. After the allowance of or submission to exceptions to an answer for insufficiency, a defendant is to answer within the time appointed, without being served Avith any sub- poena to make a better answer. Order XXVIII. Where the plaintiff has omitted to serve any defendant with a copy of the ))ill under the 23d of the orders of the 26th of August, 1841, within twelve weeks from the fding of such bill, the court may, if it shall think fit, upon the motion of the plaintiff, without notice, give the plaintiff 758 APPENDIX. leave to serve such defendant with sncli copy, within such time and \\Y)on such terms as to the court seems just. Order XXIX. If any defendant, not appearing to be an infant or a person of weak or unsound mind, unable of himself to defend the suit, is, when within the jurisdiction of the court, duly served with a subpoena to appear to, or to appear to and answer a bill, and refuses or neglects to appear thereto within eight days after such service, the plaintiff may, after the exj^iration of such eight days, and within thi-ee weeks from the time of such service, apply to the record and writ clerk to enter an appearance for such defendant; and, no appearance having been entered, the record and writ clerk is to enter such appearance accord- ingly, upon being satisfied, by affidavit, that the subpoena was duly served upon such defendant personally or at his dwelling-house or usual place of abode; and after the expiration of such three weeks, or after the time aUowed to such defendant for appearing has exj^ired, in any case in which the record and writ clerk is not hereby required to enter such appearance, the plaintiff may a2:>p]y to the court for leave to enter such appearance for such defendant ; and the court, being satisfied that the subpoena was duly served, and that no appearance has been entered for such defendant, may, if it so thinks fit, order the same accord- ingly. Order XXX. Any appearance entered at the instance of the plaintiff for a defendant who, at the time of the entry thereof, is ENGLISH ORDERS OF 1845. 759 nil infant or a person of weak ov unsomid inind, iinaljle of himself to defend the suit, is irregular and of no validity. Ordkr XXXI. In case it appears to the court, l»y sufficient evidence, that any defen(hint against whom a suhpa3na to appear to, or to appear to and answer c-f hill has issued, has been within the jurisdiction of the court, at some time not more than two years before the suhpcena was issued, and that such defendant is beyond the seas, or that upon inquiry at his usual place of abode, (if he had any,) or at any other place or places where, at the time when the subpcena Avas issued, he might probably have been met with, he could not be found, so as to be served with process, and that, in either case, there is just ground to believe that such defendant is gone out of the realm, or otherwise absconded to avoid being served with process, then, and in such case, the court may order that such defendant do aj^j^ear at a certain day to T)e named in the order ; and a copy of such order, together with a notice thereof to the eftect set forth at the foot of this order, may, within fourteen days after such order made, be inserted in the London Gazette, and be otherwise published as the court directs ; and in case the defendant does not appear within the time limited 1 )y such order, or within such further time as the court appoints, then, on proof made of such publication as aforesaid of the aforesaid order, the court may order an appearance to be entered for the defendant on the appli- cation of the plaintiff. Xotice. — "A. B., take notice, that if you do not ap])ear pursuant to the above order, the plaintiif may enter an appearance for you, and the court may afterwai'ds 760 APPENDIX. grant to tlie plaintiff such relief as he may appear to be entitled to on his own showing." Order XXXII. If, upon default made ])y a defendant in not isppearing to, or not answering a bill, it appears to the court that such defendant is an infant^or a person of weak or unsound mind not so found by inquisition, so that he is unable of himself to defend the suit, the court may, upon the appli- cation of the plaintiff, order that one of the solicitors of the court be assigned guardian of such defendant, by whom he may appear to and answer, or may answer the bill and defend the suit. But no such order is to be made, unless it appears to the court, on the hearing of such application, that the subpoena to appear to and answer the bill was duly served, and that notice of such application was, after the expiration of the time allowed for appearing to, or for answering the bill, and at least six days before the hearing of the appli- cation, served upon or left at the dwelling-house of the person, with whom or under whose care such defendant was at the time of serving such subpcBna, and (in the case of such defendant being an infant not residing with or under the care of his father or guardian) that notice of such application was also served upon or left at the dwelling-house of the father or guardian of such infant, unless the court, at the time of hearing such application, thinks fit to dispense with such last mentioned services. Order XXXIII. Where a defendant in any suit is out of the jurisdiction of the court. ENGLISH ORDERS OF 1845. 761 1. The court, upon a})plicatioil supported Ijy such evidence as sliall satisfy the court in wliat place or country such defendant is or may probably be found, may order that the subpoena to appear to, or to appear to and answer the bill, may Tje served on such delendaut, in such place or country, or within such limits aa the court thinks fit to direct. 2. Such order is to limit a time (depending on the place or country within which the subpcena is to be served ) after service of the subpoena, within which such defendant is to appear to the bill, and also (if any answer be required) a tune, Tvdthin which such de- fendant is to plead, answer, or demur, or obtain from the court further time to make his defence to the bill. o. At the time when such subpoena sliall be served, the plaintiff is also to cause such defendant to be served with a copy of the bill, and a copy of the order giving the plaintiff leave to serve the subpoena. 4. And if, upon the expiration of the time for api^earinir, it appears to the satisfaction of the court that such defendant was duly served with the subpoena, and with a copy of the bill and a copy of the order, the court may, upon the application of the plaintiff, order an appearance to be entered for such defendant. Order XXXIV. Affidavits filed for the purpose of pro-sdng the service of a subpcena upon any defendant are to state when, where, and how such sul^poena Wiis served, and by whom such service was effected. 762 APPENDIX. Order* XXXV. The 2^hiintiff, liu^dng duly caused an appearance to be entered for any defendant, is entitled, as against the same defendant, to the costs of and incident to entering such appearance, whatever may be the event of the suit ; and such costs are to be added to any costs which the plaintiff may be entitled to receive from such defendant, or set off against any costs which he may be ordered to pay to such defendant; but payment thereof is not to ]je otherwise enforced without the leave of the coui't. Order XXXVI. A defendant, notwithstanding that an appearance may have been entered for him by the plaintiff, may afterwards enter an appearance for himself in the ordinary way ; but such appearance, by such defendant, is not to affect any proceeding duly taken, or any right acquired by the plaintiff under or after the appearance entered by him, or prejudice the plaintiff's riglit to be allowed the costs of the first appearance. Order XXXVTI. No party is to enter either a common or special appear- ance under the 26th or 27th of the orders of the 26th of August, 1841, after the expiration of twelve days from the service of the copy of the bill, without first obtaining an order of the court for that purpose, such order to be obtained on notice to the plaintiff, and to be granted, if the court thinks fit, upon such terms as are just; and any party so entering such common or special appearance is bound by all the proceedings in the cause prior to such appearance being entered, unless the court otherwise directs. ENGLISH ORDERS OF 1845. 763 Order XXXVIII. No order is to be made for referring any pleading or other matter depending Ix^.fore tlie court for scandal or impei-tinence, miless exceptions are taken in writing and signed by counsel, descril)ingtlie pai-ticular passages which are alleged to be scandalous or impertinent. Order XXXIX. Wliere any person or party, having filed exceptions to any pleading or other matter depending before the court for scandal, and any party having filed such exceptions for impertinence, does not obtain an order to refer the same to the master within six days after the filing thereof, such exceptions are to be considered as abandoned, and the person or party by whom such exceptions were filed Is to pay to the opposite party, such costs as may have been incurred by such party in respect of such exceptions. Order XL. Where any person or party, having obtained an order to refer exceptions to the master for scandal, and any party having obtained an order to refer such exceptions to the master for impertinence, does not obtain the master's report thereon within fourteen days after the date of the order, or within such further time as the master thinks fit to allow, the exceptions and the order referring the same are to be considered as abandoned, and the person or party by A\liom such exceptions were filed is to pay to the opposite party such costs as may have been incurred by such party, in respect of such exceptions, order and reference. 764 APPENDIX. Order XLI. Upon tlie expiration of four days from the filing of the master's report that any pleading or other matter depend- ing before the court is scandalous or impertinent, the officer having the custody or charge of such pleading or other matter is, upon production to him of an office copy of the master's report, and a certificate that no exception thereto was filed, or an affidavit that no order to set down any such exception was served within four days after the filing thereof, to expunge from such pleading or other matter, such parts thereof as the master has found to be scanda- lous or impertinent, and thereupon, the person or party requuing such scandalous or impertinent matter to be expunged, is to pay to the officer expunging the same, the same fee as on the like occasion has heretofore been paid to the master. Order XLII. The master having found any pleading or matter de- pending before the court to be or not to be scandalous or impertinent, is to direct by whom the costs of and conse- quent upon the reference are to be paid. Order XLIII. All commissions to take answers are to be made returnable without delay; and a defendant in a country cause is not to be permitted to crave the common dedimus. Order XLIV. A demurrer or plea need not be entered with the registrar; but upon the filing thereof by a defendant, ENGLISH ORDERS OF 1845. 765 either party is to be at libei-ty to set the same down for argument immediately. Order XLV. Wliere a demurrer to the whole or part of a T)ill is alloAved upon argument, the plaintiff, unless the court orders to the contrary, is to pay to the demurnng party the costs of the demurrer, and if the demurrer be to the whole bill the costs of the suit also. Order XL VI. Where a demuri'er to the whole bill is not set down for argument 's\dthin twelve days after the filing thereof, and the plaintiff does not, within such twelve days, serve an order for leave to amend the bill, the demurrer is to be helcf sufficient, to the same extent and for the same pur- poses, and the plaintiff is to pay to the demurring party the same costs, as in the case of a demurrer to the whole bill allowed upon argument. Order XLVII. Where a demurrer to part of a bill is not set down for argument within three weeks after the filing thereof, and the plaintiff does not, within such three weeks, serve an order for leave to amend the bill, the demurrer is to be held sufficient, to the same extent, and for the same pur- poses, and the plaintiff is to pay to the demurring paily the same costs, as in the case of a demm-rer to part of a bill allowed ujx^n argument. Order XL VIII. Where a plea to the whole or part of a bill is allowed upon argument, the plaintiff, unless he undertakes to reply 766 APPENDIX. to tlie plea, or tlie court orders to tlie contrary, is to pay to tlie party by wlioui tlie plea is filed tlie costs of the plea, and if tlie plea be to the whole bill, the costs of the suit also; and in such last mentioned case, the order allowing the plea is to direct the disndssal of the bill. OllDEU XLIX. AVhere a plea to the whole or part of a bill is not set down for argument .within three weeks after the filing thereof, and the plaintiff does not, within such three weeks, serve an order for leave to amend the bill, or does not, within such three weeks, by notice in writing, undertake to reply to the plea, the plea is to be held good, to the same extent, and for the same purposes, and the same costs are to be paid by the plaintiff, as in the case of a plea to the whole or j)art of a bill allowed upon argument ; and where the plea is to the whole bill, the defendant by whom such plea was filed, may, at any time after the expiration of such thi'ee weeks, obtain as of course an order to dismiss the bill. Order L. The plaintiff havmg undertaken to reply to a plea to the whole bill, is not, without the special leave of the court, to take any proceeding against the defendant by whom the plea was filed till after replication. Order LI. A defendant whose answer is excepted to or referred back on former exceptions, alleging that the plaintiff is prosecuting him in this court and also at law for the same ENGLISH ORDERS OF 1845. 767 matter, may, by notice in writing, require the plaintiff to procure tlie master's report on tlie exceptions witliin four days after tlie service of sucli notice ; and if the plaintiff does not procure the master's report in four days accord- ingly, or if the exceptions be not allowed, such defendant may obtain, as of course, on motion or petition, the usual order for the plaintiff* to elect in which court he will proceed, with the usual directions; but the plauitiff* may move to discharge such order on the merits confessed in the answer. Order LII. After the expiration of the time allowed to a defendant to plead, answer, or demur (not demurring alone) to any original or supplemental Ijill or bill amended before answer, if such defendant has filed no plea, answer, or demurrer, the plaintiff" ma)' file a note at the record and writ clerk's office to the following effect : " The plaintiff intends to proceed with his cause as if the defendant had filed an answer traversing the case made by the bill." Order LIII. After the expiration of the time allowed to plead, answer, or demur, not demurring alone, to a bill amended after answer, the ]>laintiff (if a defendant has not filed any plea, answer, or demurrer) may file a note at the record and writ clerk's office to the folloAving effect : " The plaintiff* intends to proceed with his cause, as if the defendant had filed an answer traversing the allegations introduced into the bill by the amendment." 768 APrENDIX. Order LIV. After the expiration of the time allowed to a defendant to put in liis further answer to any bill, the plaintiff (if such defendant shall not have put in any further answer) may file a note at the record and writ clerk's office to the followuig effect: "The 2)laintiff intends to proceed with his cause, as if the defendant h;',d filed a f mother answer traversing the allegations in the bill whereon the excep- tions are founded." Order LV. Wliere a demurrer or plea to the whole bill is overruled, the plaintiff, if he does not require an answer, may imme- diately file his note in manner directed by Orders LII. or LIII., as the case may require, and with the same effect, unless the court, upon overruling such demurrer or plea, gives time to the defendant to plead, answer, or demur ; and in such case, if the defendant files no plea, answer, or demurrer within the time so allowed by the court, the plaintiff, if he does not then require an answer, may on the expiration t)f such time file such note. Order LVI. A traversing note having been filed, a copy thereof is to be served on the defendant against whom the same is filed, in the manner directed by the nineteenth and twenty-first of the orders of the 26th of October, 1842, for the service of documents not requiring personal service. Order LVII. A traversing note being filed, and a copy thereof duly served, is to have the same effect, as if a defendant had ENGLISH ORDERS OF 1845. 759 filed a full answer or further answer, traversing the wliole bill, or such parts of the bill as the note relates to, on the day on which the note was filed. Order LVIII. After the service of the copy of a traversing note filed as aforesaid, a defendant is not at liberty to plead, answer or demur to a bill or to put in any further answer thereto, without the special leave of the court, and the cause is to stand in the same situation as if such defendant had filed a full answer, or further answer to the bill on the day on which the note was filed. Order LIX. The plaintiff in a bill praying an injunction to stay proceedings at law is entitled, as of course, on motion or petition, and without an attachment, to the common injunction for want of appearance, if a defendant has not appeared, in pei-son or by his own solicitor, on or after the expiration of eight days from the service of the subpcena, and for want of answer, if a defendant is in defiiult for want of answer, on or after the expiration of eight days from the day on which an appearance was entered by or for him. Order LX. The plaintiff in an injunction cause having obtained the common injunction to stay proceedings at law, may (either before or after the answer of a defendant is put in, and whether such injunction be or be not continued to the hearing of the cause) ol)tain one order, tis of course, to amend his l)ill without prejudice to the injunction ; and if 49 770 APPENDIX. such bill he amended piu-suant to siicli order, sucli defendant may, thereupon and altliongli he may not have put in his answer to such bill or the amendments thereof, move the court, on notice, to dissolve the injunction, on the ground that such l)ill as amended does not, even if the amendments be true, entitle the plaintiff thereto. Order LXI. The plaintiff in a bill of revivor, or of revivor and sup- plement, is entitled as of course, upon motion or petition, to the common order to revive, if a defendant, having appeared in person or by his own solicitor, does not, within eight days after such appearance, plead or demur to the whole bill, or to so much thereof as prays the revivor. Order LXII. If the plaintiff in a bill of revivor or of revivor and supplement, has caused an appearance thereto to be entered for any defendant against whom it is sought to revive the suit, and such defendant does not, withm eight days after such appearance, plead or demur to the whole bill, or to so much thereof as prays the revivor, the court may, if it thinks fit, make the common order to revive, upon motion ; such motion being made on notice to be served on such defendant as other notices of motion, if such defendant was a party to the suit at the time of the abatement thereof; but if such defendant was not a party to the suit at such time, then such motion is to be made on notice served on such defendant personally, unless it appears on affidavit, that the plaintiff* is unable or ought not to be bound to serve such notice personally, by reason of such defendant being out of the jurisdiction, or being concealed, or for ENGLISH OUDEU8 OF 1845. 771 any otlier cause; and it" it a])])eai's to the court that tlie pLiintilV can not, or ought not to Le bound to serve Huch notic(; |)crs(^nally, then uj)on notice otherwise served or pul)lislied as the court may direct. Order LXIII. In cases where a suit abates by the deatli of a sole plaintiff, the coui't, upon motion of any defendant made on notice served on the legal representative of the deceased j)laintift* may order that such legal representative do revive the suit wthin a limited time, or that tbe bill be dismissed. Order LXIV. An order for leave to amend a bill may be obtained, at any time before answer, upon motion or petition, without notice. Order LXV. An order for leave to amend a bill, only for the purpose of rectifying some clerical error in names, dates or sums, may be obtained at any time, upon motion or petition, without notice. Order LXVI. One order of course for leave to amend a bill, as the plaintiff may l)e advised, may be obtained by the i)hiintiil^ at any time before filing (or undertaking to file) a re})li- cation, and witbin four weeks after tbe answer, or t lie last of several answers, is to be deemed sufficient; but no further order of course for leave to amend a bill is to be granted after an ansAver lias been filed, unless in the case provided for by Order LXV. 772 APPENDIX. Order LXVII. A special order for leave to amend a 1)ill is not to be granted without affidavit, to the effect, first, that the draft of the proposed amendments has been settled, approved, and signed by counsel ; and second, that such amendment is not intended for the purpose of delay or vexation, but because the same is considered to be material for the case of the plaintiiJ'. Order LXVIII. After the plaintiff has filed or undertaken to file a repli- cation, or after the expiration of four weeks from the time when the answer or last answer is deemed sufficient, a special order for leave to amend a bill is not to be granted, without further affidavit showing that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into such bill. Order LXIX. Such affidavits as are mentioned in Orders LXVII. and LXVIII. are to be made l)y the plaintiff and his solicitor, or by the solicitor alone in case the plaintiff, from being abroad or otherwise, is unable to join therein. Order LXX. Where the plaintiff obtains an order for leave to amend his bill, and does not amend the same within the time limited for that purpose, the order to amend becomes void, and the cause, as to dismissal, stands in the same situation as if such order had not been made. ENGLISH ORDERS OF 1845. 773 Order LXXI. A\niere tlie plaintiff amends his Lill without requiring an answer to the amendments, no warrant for time to answer such amendments is to be granted after tlie expi- ration of eiglit days from the service of the notice of the amendment of tlie bill. Order LXXII. If there is just reason to believe that any defendant means to abscond before answering the bill, the court may, on the ex parte application of the plaintiff, at any time after appearance has been entered for such defendant by the plaintiff* order an attachment for want of answer to issue airainst him; and such attachment is to be made returnable at such time as the court directs. Order LXXIII. If any defendant, being in custody of the sergeant-at- arms, or of a messenger under an attachment for want of his answer, is not brought to the l)ar of the court within ten days after he was taken into custody, he is to be discharged out of custody by the sergeant-at-arms or messenger in whose custody he is, without payment by him of the costs of his contempt, which in such case are to be paid by the plaintiff ; but if such defendant does not put in his answer within eight days after such discharge, the phiintiff may cause a new attachment to be issued against liim for the want of liis answer. Order LXXIV. If any defendant be in prison under, or being already in prison, be detained under an attachment for not answering, 774 APPENDIX. and be not brought to the bar of tlie court within thirty days fi'om the time of his being actually in custody or detained (being already in custody under such attachment,) he is to be discharged from the process for want of answer under which he was arrested or detained, by the sheriff, jailer, or keeper of the jail in whose custody he is, without payment of the costs of his contempt, which in such case are to be paid by the plaintiff; but if such defendant does not put m his answer within eight days after such discharge, the plaintiff may cause a new attachment to be issued asrainst him for want of his answer. Order LXXV. A defendant being brought up in custody for want of his answer, and maldng oatli in court that he is unable, by reason of poverty, to employ a solicitor to j)ut in his answer, the court is thereupon to refer it to the master to inquire into the truth of that allegation, and to report thereon to the court forthwith ; and tlie court may appoint a solicitor to conduct such inquiry on the behalf of such defendant ; and if the master reports such defendant to be unable, by reason of poverty, to employ a solicitor to put in his answer, the court may assign a sohcitor and counsel for such defendant to enable him to put in his answer. Order LXXVI. Upon the execution of an attachment for want of answer against any defendant, or at any time within three weeks afterwards, the plaintiff may cause such defendant to be served with a notice of motion to be made on some day not less than three weeks after the day of such service, that the bill may be taken pro confesso against such ENGLISH ORDERS OF 1845. 775 defendant; and tlierenjx)!!, unless such defendant has, in the mean time, ])ut in his answer to the Itill or obtained fui-tlier time to answer the same, the court, if it so thinks fit, may order tlie hill to be taken pro confemo against such defendant, either immediately or at such time, and upon such terms, and suliject to sucli conditions, as, under the circumstances of the case, the coui-t thinks proper. Order LXXVII. In cases where any defendant, either being or not being witliin tlie jurisdiction of tlie court, does not put in liis answer in due time after ap])earanee entered by or for him, and the plaintiff is unable, with due diligence, to procure a writ of attachment or any subsequent process for want of answer to be executed against such defendant, by reason of his being out of the jurisdiction of the court, or being concealed, or for any other cause, then such defendant is, for the purpose of enabling the plaintiff to oT)tain an order to take the bill^j);'6> confe-sso^ to be deemed to have absconded to avoid, or to have ^refused to obey the process of the court. Order LXXVIII. In cases where any defendant who, under Order LXXVII., may be deemed to have absconded to avoid, or to have refused to ol>ey the process of the court, has appeared in person or by his own solicitor, the plaintiff* may serve upon such defendant or his solicitor a notice, that on a day in such notice named (being not less than fourteen days after the ser\dce of such notice) the court will be moved that the bill may be taken pro confesso agamst such defendant; and the plaintiff* is, upon the 776 APPENDIX. hearing of sneli motion, to satisfy the court, that such defendant ought, under the provisions of order LXXVII., to 1)0 deemed to have absconded to avoid, or have refused to obey the process of the court ; and the court being so satisfied and the answer not being filed, may, if it so thinks fit, order the bill to be taken pro confesso against such defendant, either immediately or at such time or upon such further notice as, under the circumstances of the case, the coui-t may think proper. Order LXXIX. In cases where any defendant who, under Order LXXVIL, may be deemed to have absconded to avoid, or to have refused to obey the process of the court, has had an appearance entered for him under Orders XXIX., XXXL, or XXXIII., and has not afterwards appeared in person or by his own solicitor, the plaintiff may cause to be inserted in the London Gazette a notice, that on a day in such notice named (being not less than four weeks after the first insertioji of such notice in the London Gazette) the court will be moved that the bill may be taken j9ro confesso against such defendant ; and the plaintiff is, upon the hearing of such motion, to satisfy the court that such defendant ought, under the provisions of Order LXXVIL, to be deemed to have absconded to avoid, or to have refused to obey the process of the court, and that such notice of motion has been inserted in the London Gazette, at least once in every week from the time of the first insei-tion thereof up to the time for which the said notice is given ; and the court, being so satisfied and the answer not having been filed, may, if it so thinks fit, order the bill to be taken pro confesso against such defendant, either ENGLISH ORDERS OF 1845. 777 immediately or at sucli tiiiK; oi- upon siicli furtlier notice as, uikIci' tlic circumstances of the case, the court may- think ])ro])er. Order LXXX. Any (lefen(hint being in custody for want of his answer, and submitting to have tlie bill taken pro coiifesfio against him, may apply to the court, upon motion with notice to be served on the plaintiff, to be discharged out of custody ; and thereupon the court may order the bill to be taken pro co)ife-s-so against such defendant, and may order him to be discharged out of custody uj)on such terms as ap])ear to be just, unless it appears, from the nature of the j)laiutiff''s case or otherwise, to the satisfaction of the court that justice can not be done to the plaintiff without discovery or further discovery from such defendant. Order LXXXI. No cause, in which an order is made that a bill be taken pro confe-sso against a defendant, is to be heard on the same day on which the order is made ; but the cause is to be set down to be heard, and the court, if it so thinl-cs fit, may appoint a special day for the hearing thereof. Order LXXXII. A defendant against whom an order to take a bill j^^'o confes-so is made, is at liberty to a})pear at the heai'ing of the cause ; and if he waives all objections to the order, but not otherwise, he may be beard to argue the case upon the merits as stated in the bill. 778 APPENDIX. Order LXXXIII. Upon the hearing of a cause in which a bill has been ordered to be taken 'pro confesso^ such decree is to be made as to the court seems just; and in the case of any defendant who has appeared at the hearing and waived all objection to such order to take the hiWpro confesso^ or against whom the order has been made after appearance by humself or his own solicitor, or upon notice served on or after the execution of a writ of attachment against him, the decree is to be absolute. Order LXXXIV. In pronouncing the decree, the court may, either upon tLe case stated in the bill, or upon that case and a j)etition presented by the plaintiff for the purpose, as the case may require, order a receiver of the real and personal estate of the defendant against whom the l)ill has been ordered to be taken p^o confesso to be appointed, with the usual directions, or direct a sequestration of such real and per- sonal estate to be issued, and may (if it appears to be just) direct payment to be made out of such real or personal estate, of such sum or sums of money as, at the hearing or any subsequent stage of the cause, the plaintiff appears to be entitled to ; provided that unless the decree be abso- lute, such payment is not to be directed without security being given by the plaintiff for restitution, if the court afterwards thinks fit to order restitution to be made. Order LXXXV. A decree founded on a bill taken pro confesso is to be passed and entered as other decrees. ENGLISH ORDERS OF 1S45. 779 Order LXXXVI. After a decree founded on a 1)111 taken ^>;'0 rovfe-^so has been passed and entered, an office copy thereof is (unless the coui-t dispenses with ser^^ce thereof) to Ije served on the defendant, against whom the order to take the M\\\ ^yro coiifesso was made, or his solicitor; and if the decree be not absolute under Order LXXXIIL, each defendant or his solicitor is to be, at the same time, served ^dtli a notice, to the effect, that if such defendant desires per- mission to answer the plaintiff's bill and set aside the decree, application for that purpose must be made to the court within the time specified in the notice, or that such defendant will be absolutely excluded from making any such application. Order LXXXVII. If such notice as is mentioned in Order LXXXVI. is to be served within the jurisdiction of the court, the time therein specified for such application to be made by the defendant is to be three weeks after service of such notice ; but if such notice is to be served out of the jurisdiction of the court, such time is to be specially appointed by the court, on the ex;pavte application of the plaintiff. Order LXXXVIII. No proceeding is to be taken, and no receiver appointed under the decree nor any sequestrator under any seques- tration issued in pursuance thereof is to take possession of, or in any manner intermeddle with, any part of the real or personal estate of a defendant, and no other 2)rocess is to issue to compel performance of the decree, without 780 APPENDIX. leave of the court, wliicli is to be obtained on motion with notice served on such defendant or his solicitor, unless the court dispenses with such service. Order LXXXTX. Any defendant waiving all objection to the order to take the bill pro coiifesso^ and submitting to pay such costs as the court may direct, may, before enrolment of the decree, have the cause reheard upon the merits stated in the bill, the petition for rehearing being signed by counsel as other petitions for rehearing. Order XC. In cases where a decree is not absolute under Order LXXXIIL, the court may order the same to be made absolute on the motion of the plaintiff, made, 1 . After the expiration of three weeks from the service of a copy of the decree on a defendant, where the decree has been served within the jurisdiction. 2. After the expiration of the time limited by the notice provided for by order LXXXVI., where the decree has been served without the jurisdiction. 3. After the exjiiration of three years from the date of the decree, where a defendant has not been served with a copy thereof And such order may be made either on the first hearing of sucli motion, or on the expiration of any further time which the court may, on the hearing of such motion, allow to the defendant for presenting a petition for leave to answer the bill. ENGLISH ORDERS OF 1845. 781 Order XCI. Where the decree is not absohite under Order LXXXIIL, and has not been made absolute under Order XC, and a defendant lias a ca^e upon merits not appearinii; in the bill, he may .i])ply to the court by petition stating such case, and submitting to such terms with respect to costs and otherwise as the court may think reasonable, for leave to answer the bill ; and the court, being satisfied that such case is proper to l)e submitted to the judgment of the* court, may, if it thinks fit, and upon such terms as seem just, vacate the enrolment (if any) of the decree, and permit such defendant to answer the bill ; and if permission be given to such defendant to answer the bill, leave may be given to file a separate replication to such answer, and issue may be joined, and witnesses examined, and such proceedings had as if the decree had not been made, and no proceedings against such defendant had been had in the cause. Order XCII. The rights and liabilities of any plaintiff or defendant under a decree made upon a bill taken fro coiife-sso extend to the representatives of any deceased plaintiff or defendant, and to any persons or person claiming under any person who was plaintiff or defendant at the time when the decree was pronounced ; and with reference to the altered state of parties and any new interests acquired, the court may, upon motion or petition served in such manner, and sup- ported by such evidence as under the circumstances of the case the court deems sufficient, permit any party, or the representative of any party, to file such bill or bills, or adopt such proceedings as the nature and circumstances of 782 APPENDIX. tlie case require, for tlie purpose of having the decree (if absolute) duly executed, or for tlie purpose of ha\diig the matter of the decree (if not absolute) duly considered, and the rights of the parties duly ascertained and determined. Order XCIII. No subpoena to rejoin is hereafter to be issued; and only one replication is to be filed in each cause, unless the . Court otherwise orders ; and the replication is to be in the form set forth at the foot of this Order, or as near thereto as circumstances admit and require ; and upon the filing of such replication, the cause is to be deemed to be com- pletely at issue; and each defendant may, without any rule or order, proceed to examine his witnesses, and the plaintilf may, in like manner, proceed to examine his wit- nesses so soon as notice of the replication being filed has been duly served on all the defendants who have filed an answer or plea, or against whom a traversing note has been filed. Form of JReplication. " Between A. B. Plaintiff. "and " C. D., E. F., G. H., e made returnable without delay; and the commissionei-s are to be either barristers or solicitors not concerned in the cause, and each one of such two commissioners is to have all such power and authority to examine witnesses, as have hereto- fore been vested in the acting commissioners named in the commissions to examine witnesses which have heretofore been issued; but the commissioner first named in the commissions to be hereafter issued is alone to act in the execution of any commission, unless he is, by illness or other sufficient cause, incapacitated from acting therein, in which case the commissioner secondly named is alone to act in the execution of such commission. Order XCV. Immediately after the replication is filed, the pluintifi", if he thinks fit, may give notice to all other parties entitled to examine witnesses in the cause, of his intention to sue out a commission for that purpose ; and the plaintifl^, if he gives such notice within two days after the filing of the replication, or before any defendant has given notice of his intention to sue out a commission, is to have the carria£!:e of the commission. Order XCVI. After the expiration of two days from the filing of the rej)lication, if the plaintiff* has not previously given notice to all other parties entitled to examine witnesses in the cause of his intention to sue out a commission for that 784 APPENDIX. purpose, any defendant may give notice to all the other parties entitled to examine witnesses in the same cause, of such defendant's intention to sue out a commission for that purpose; and any defendant so giving such notice is to have the carriage of the commission, unless such notice be given by more than one defendant, in which case the defendant who first gave such notice is to have the carriage of the commission. Order XCVII. Where the parties entitled to examine witnesses in the cause agree to the nomination of persons to be commission- ers, and to the order in which such commissioners are to be named, the record and wiit clerk upon being applied to for the purpose, is to cause a commission directed to such persons to be sealed and delivered to the person entitled to have the carriage thereof. Order XCVIII. If all the parties entitled to examine witnesses in the cause have not, within four days after the filing of the rej^lication, agreed to the nomination of persons to be commissioners, any party entitled to examine witnesses in the cause may apply to the master to whom any former reference in the cause has been made, or to the master in rotation in case no former reference has been made, for a warrant, returnable in two days requiring the other parties to attend for the purpose of having commissioners named ; and such master is to grant such warrant, and the same being duly served, all j)arties, on the return thereof, are to propose commissioners ; and if, among the persons so proposed, there are two or more to whom no just objection ENGLISH ORDERS OF 1845. 785 is made, the master is to select or nominate and certify to be commissionei*s such two of the proposed pei*sons as ap})ear to him most proper to perform the duty ; but if it api)ears that no one or only one of such proposed persons is free from just objection, the master, as the case may be, is to nommate and certify two ])roper persons, or to nomi- nate one proper person and certify him and the person free from objection, to be the commissioners. Order XCIX. If any question arises as to the commissioner who is to be first named, or as to the party who is to have the carriaere of the commission, the master is to determine such question, and to name the party who is to have the carriage of the commission. Order C. If any party entitled to examine witnesses in a cause shall desire to liave any additional commission or commis- sions, application is to l)e made to the master for leave to sue out such additional commission or commissions ; and upon the master's certificate that such additional commis- sion or commissions is or are proper to be issued, the same may be sued out in the same manner as a first or only commission; and in Ciise the parties do not agree, any question respecting the commissionei's to be named or the order in which they are to be named in the commission, or any question respecting the carriage of any such additional commission, is to be settled by the master as in the case of a fii'st or only commission. 50 786 APPENDIX. Order CI. The master is to deliver his certificate of the nomination of the commissioners to the solicitor of the party who is to have the carriage of the commission ; and such solicitor is, on the same day, or at the latest on the day next following the date of the master's certificate, to file the same, and is, within two days from the date thereof, to take an office copy thereof to the record and writ clerk, who is, on the same day or at the latest on the day next following his receipt of such office copy, to seal a commission directed to the persons named in the certificate, and to deliver such commission to the solicitor from whom he received the certificate ; and such sohcitor having received the commis- sion is, within one week after the teste thereof, to deliver the same to the commissioner therein first named, if he be at the time able to act in the execution of the commission ; but if not then, to the commissioner secondly named. Order CII. If any solicitor having the carriage of a commission does not, within six days after the date of the master's certificate, obtain the commission, and duly deliver the same to the commissioner by whom the same is to be executed, any other party entitled to examine witnesses may apply to the master for leave to take out a new commission direct- ed to the same commissioners, and to have the carriage of such commission ; and the costs of such application are to be paid by the party in default, whether the apphcation succeeds or not. ENGLISH ORDERS OF 1845. 787 Form of Commission. Order CIII. The form of a commission to be hereafter issued for the examination of witnesses is to "be as follows, with such (if any) variations as the circumstances of the case require : — "Victoria, pointed for that purpose, cause the said witnesses to come before you, and then and there examine each of them, apart, upon the said interrogatories, either on their resj^ective corporal oaths fii^st taken before you upon the holy Evangelists, or in the case of quakers upon theii* solemn affirmation and declaration, or m such other solemn manner as is or may be authorized by law, and that you do take such their examinations and reduce them into writing on parchment ; and when you shall have so taken them, you are to send the same to us in our chancery without delay, wheresoever it shall then l)e closed up and under your seal, distinctly and plainly set together with the said interrogatories and this writ. And we further command you, that before you act in or be present at the swearing or examinhig any Avitness or witnesses you do take the oath fii-st specified in the 788 APPENDIX. schedule lieremito annexed. And we further command, that all and every the clerk or clerks employed in taking, writing, transcribing, or engrossing the deposition or depositions of witnesses to be examined by virtue of these presents shall, before he or they be permitted to act as clerk or clerks as aforesaid, or be present at such examination, severally take the oath last specified in the said schedule annexed ; and we also give to you full power and authority to administer such oath to such clerk or clerks in manner aforesaid. Witness ourself at Westminster, the day of in the year of our reign. " Langdale." (Endorsement.) "By order of Court." (Name and address of agent and solicitor issuing writ.) Order CIV. The oath to be taken by a commissioner is to be set forth in a schedule annexed to the commission, and is to be in the form following, viz : " You shall, according to the best of your skill and knowledge, truly, faithfully, and without partiality to any or either of the parties in this cause, take the exami- nations and depositions of all and every witness and witnesses, produced and examined by virtue of the commission hereunto annexed, upon the interrogatories produced and left with you ; and you shall not pub- Hsh, disclose, or make known to any person or persons whatsoever, except to the clerk or clerks l)y you em- ployed and sworn to secrecy in the execution of this ENGLISH ORDERS OF 1845. 789 commission, tlie contents of all or any of tlie depositions of the witnesses, or any of tliem, to be taken by you ]>y virtue of the said commission, until publication sliall pass ])ursuant to some general or special order of the High Court of Chancery. " So help you God." And the said oath is to be taken by the commissioner who is to act in the execution of the commission previoasly to his acting therein, before any master in ordinary or before any master extraordinary of the court who is not employed or concerned in the cause, and such master extraordinary is hereby authorized and required to ad- minister such oath. Order CV. Tlie oath to be taken by the clerk or clerks employed in taking, writing, transcribing, or engi'ossing the deposition or depositions of witnesses to be examined Ijy virtue of a commission, is to be set forth in a schedule annexed to the commission, and is to be in the form foUowinsr, ^nz : " You shall truly and faithfully, and without partiality to any or either of the parties in this cause, take and write down, transcribe and engross, the depositions of all and every witness and witnesses produced before and examined by either of the commissioners named in the commission hereunto annexed, as fiir forth as you are directed and employed by the said commissioner to take, Avrite down, or engross the said depositions or any of them ; and you shall not publish, disclose, or make known to any person or persons whatsoever, the contents of all or any of the depositions of the witnesses or any 790 APPENDIX. of tliem to be taken, written down, transcribed, or engrossed by you, or whereto you shall have recourse, or be any ways privy, until publication shall pass pur- suant to some general or sj)ecial order of the high court of chancery. " So help you God." And the said oath is to be taken before the actinir com- missioner, by the clerk or clerks employed as aforesaid, before he or they be permitted to act as such clerk or clerks, or to be present at the examination of witnesses under the commission; and the commissioner is hereby authorized and required to administer the said oath to such clerk or clerks accordingly. Order CVI. The commissioner having taken such oath is, at the instance of any party entitled to examine witnesses, to sign and deliver to such party a notice in writing specifying the time and place when and where he will proceed to examine witnesses, and such notice is to be duly served by the party who obtains it upon the solicitors of all the other parties entitled to examine witnesses under the commission, and in case any such party has no solicitor, upon such party, at least ten clear days before the day therein named for proceeding to examine witnesses. Order CVII. All depositions of witnesses are to be taken and ex- pressed in the first person of the deponent. ENGLISH ORDERS OF 1845. 791 Order CVIII. If the examination of witnesses can not he completed in one clay, and tlie circumstances of tlie case jjermit, the commissioner is to proceed de die in diem^ during six hours of each day between the horn's of eight in the morning and six in the afternoon, until the witnesses for all parties are fully examined ; nevertheless, the commissioner may, if in his opinion the circumstances of the Ciise require an adjournment, adjourn the proceedings, from time to time and from place to place, in such manner as lie thinks proper ; but he is in all cases to enter on the dej^ositions any adjournment, and, where such adjournment is from place to place, or otherwise than de die in diem^ the cause or reason of such adjournment, and he is also to enter on the depositions the hours of the day on which he com- mences and concludes the examination of witnesses on each day, and the true cause of his not proceeding for the full time of six hom's on each day, if such should be the case. Order CIX. When the examination of witnesses is completed, the commissioner is to seal up the depositions, and is to transmit the same, sealed up w4th the commission, to the record and writ clerk's office. \ Order CX. The commissioner is, for the performance of his duty as such commissioner, entitled to receive the following sums of money; viz: For every day in which he is, necessarily and without any default of his own, detained in 792 APPENDIX. tlie execution of the commission, for his £ s. d. expenses the sum of 2 2 For every day in whicli he is hona fide em- ployed in the examination of witnesses, the further sum of 3 3 For every mile that he travels directly from his place of residence to the place where he opens the commission, and from place to place where the commission is adjourned, and from the place where he last acts in the execution of the commission to his place of residence, the sum of 1 6 Order CXI. Publication is to pass, without rule or order, on the expi- ration of two months after the filing of the replication, unless such time expires in the Long vacation, or is enlarged by order. Order CXII. If the two months after the filmg of the replication exjnre in the Long vacation, publication is to pass on the second day of the ensuing Michaelmas term, unless the time is enlarged by order. Order CXIII. If the time is enlarged by order, pul)lication is to pass, without rule or order, on the expiration of the enlarged time, unless the enlarged time expires in the Long vaca- tion, in which case publication is to pass, without rule or order, on the second day of the ensuing Michaelmas term, unless the time is further enlarged by order. ENGLISH ORDERS OF 1845. 793 Order CXIV. Any defendant may, ni)on notice, move tlie court, that the bill may l)e dismissed with costs f(jr want of prosecu- tion, and the court may order accordingl}'. 1. If the plaintifl-^ ha\dng obtained no order to enlarge the time, does not ol)tain and serve an order for leave to amend the bill, or does not file tlie replication, or set down the cause to be heard on bill and answer, within four weeks after the answer, or the last of the answers, is found or deemed to be sufficient, or after the filing of a traversing note ; or 2. If the plaintitf, having undertaken to reply to a plea to the whole bill, does not file his replication within four weeks after the date of his undertakinfr ; or 3. If the plaintiff, havmg obtained no order to enlarge the time, does not amend the bill within fourteen days after the date of the order for leave to amend ; or 4. If the plaintiff, having obtained no order to enlarge the time, does not set down the cause to be heard, and ol)tain and serve a sithpoena to hear judgment within four weeks after publication has passed. Order CXV. Where the plaintiff has, after answer, amended his bill without requiring an answer to the amendments, any defendant may, upon notice, move to dismiss the bill with costs for want of prosecution, if the plaintiff, having obtained no order to enlarge the time, does not file the replication, or set down the cause to be heard on bill and answer, within the times following, viz : 794 APPENDIX. 1. Witliin fourteen days after tlie service of notice of the amendment of the hill, in cases where the defendant does not desire to answer the amendments. 2. "Within fourteen days after the master's refusal to allow further time, in cases where the defendant, desiring to answer, has not put in his answer within eight days after the service of notice of the amendment of the bill, and the master has refused to allow further time. 3. Within fourteen days after the filing of the answer, in cases where the defendant has put in an answer to the amendment, unless the plaintiff has, within such fourteen days, obtained from the court a special order for leave to re-amend the bill. Order CXVI. If, after publication passed, the plaintiff neglects to set down the cause to be heard, any defendant, after the expiration of four weeks, may set the same down at his own request, instead of proceeding to dismiss the bill for want of prosecution, and may obtain a subpcena to hear judgment, and serve the same on the plaintiff. Order CXVII. If the plaintiff, after the cause is set down to be heard, causes the bill to be dismissed on his application, or if the cause is called on to be heard in court and the plaintiff makes default, and by reason thereof the bill is dismissed, then, and in such case, such dismissal is, unless the court otherwise orders, to be equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter. ENGLISH ORDERS OF 1845. 795 Order CXVIII. A defendant is not to be at liberty to move to dismiss a bill for want of prosecution, until after the expiration of the time within wliich a plaintiii' may obtain an order to amend such bill. Order CXIX. In all cases where any person or party, lla^'iug obtained from the court or from the master any order upon condi- tion, does not perform or comply with such condition, he is to be considered to have waived or abandoned such order so far as the same is beneficial to himself, and any other party or person interested in the matter may, on breach or non-performance of the condition, take either such proceedings as the order may in such case warrant, or such proceedings as might have been taken if no such order had been made, unless the court orders to the contrary. Order CXX. Where costs are to be taxed as between party and party, the taxing master may allow to the party entitled to receive such costs all such just and reasonable expenses as appear to have been properly incurred in The service and execution of writs, and the service of orders, notices, petitions, and warrants; Advdsing with counsel on the pleadings, e\ddence and other proceedings in the cause ; Procuring counsel to settle and sign pleadings, and such petitions as may appear to have been proper to be settled by counsel ; 796 APPENDIX. Procuring cousnltations of counsel ; Procuring tLe attendance of counsel in the master's offices ujwn questions relating to pleadings or title ; Procuring evidence by deposition or affidavit, and the attendance of witnesses; and Su2:)plying counsel with copies of or extracts from necessary documents. But in allowing such costs, the taxing master is not to allow such party any costs which do not aj^pear to have been necessary or proper for the attainment of justice, or for defending his rights, or which appear to have been incurred through over caution, negligence, or mistake, or merely at the desire of the party. Order CXXI. The costs of such copies of pleadings and proceedings as have heretofore been allowed in the taxation of costs Ijetween party and party in country causes, are, hereafter, t(j l)e allowed in the taxation of costs between party and pai'ty in town causes. Order CXXIL If upon the hearing of any cause, petition, or motion, the court is of opinion that any pleading, petition, or affida\nt which has not been referred for imjDertinence, or any part of any such pleading, petition or affidavit, is improper or of unnecessary length, the court may either declare such pleading, petition, or affidavit, or any part thereof, to be improper or of unnecessary length, or may direct the taxing master to look into such pleading, peti- tion, or affidavit, and distinguish what parts or part thereof ENGLISH ORDERS OF 1845. 797 are or is improper or of unnecessary lenj^li, and may direct the taxing master to ascertain the costs occasioned to any part}' l)y such parts or part thereof as, in the one case, may have been declared to be, and hi the otlier case may have been dLstmguished as being improper, or of unneces- sary lengtli, and may make such order as is just for the payment, set-off, or other alhjwance of such costs. Order CXXIII. Upon interlocutory applications, where the court deems it proper to award costs to either party, the court may, l>y the order, direct payment of a sum in gross in lieu of taxed costs, and direct by and to whom such sum in gross is to be paid. Order CXXIV. In cases where a bill or petition is dismissed \A'ith costs, or a motion ls refused with costs, or any costs are by any general or special order ordered or decreed to be paid, the taxing master may tax such costs without any order referring the same for taxation, unless the court, upon the api)lication of the party alleging himself to Ije aggrieved, prohibits the taxation of such costs ; and the costs to be certified by the taxing master are to be recovered by Order CXXV. The costs of a 1 )ill of discovery filed by any defendant to a l)ill for relief are to be costs in the oriirinal cause, unless the court otherwise orders. 798 APPENDIX. Order CXXVI. All affidavits are to be taken and expressed in the first person of the dej)onent. Order CXXVII. All copies of affidavits are to be ready for delivery within forty-eight hours after the same are bespoke. Order CXXVIII. Any solicitor, party, or person filing an affidavit not taken and expressed in the first person of the deponent, is not to be allowed the costs of preparing and filing such affida\dt in any taxation of costs. INDEX TO TIIK ORDERS OF THE HIGH COURT OF CHANCERY, IN ENGLAND, IN FORCE IN 1845. *-* The references arc to the orders. Ordbb. Affidavits : How expressed 126 Copies of when to be ready 126 To amend bill, who to make G9 To prove service of subpojna 34 When no costs on 128 Amendments : To bill before answer 64 " in clerical errors 65 " when as of course, Arts. 32, 33 16 ; 66 " on special order 67 " after replication 68 " affidavits for who to make 69 " within what time to be made 70 " limitation of time for. Arts. 34, 35 16 " in cases of injunction, Art. 35 16 ; 60 800 INDEX. Order. Answer : To avoid injunction, when to be put in, Art. 11 16 To Orig. or Sup. bill, when to be put in, Art. 13 16 To amended bill, when to be put in. Art. 14 16 To amendments and exceptions, when to be put in, Art. 15, 16 To amended answer, after one answer. Art. IG 16 Exceptions to, when to be made, Art. 22 16 " submitted to. Arts. 23,24 16 " referred. Arts. 25, 26 16 " Mas. Rep. on, Arts. 27, 28 16 Referring back on old exceptions, Art. 29 16 Found insufficient, further, Art. 30 16 When deemed sufficient, Art. 31 16 To amended bill, to avoid injunction, Art. 36 16 To amended bill, when none required. Art, 28 16 When may be taken by commission 43 Further time to put in 19 Attachment for want of 72 " discharge of 73, 74 " new one 73, 74 Time not computed in case of ... - 15 Appearance : Of defendant, when. Art. 3 16 " when may be entered adversely, Art, 4 . 16 " when served with copy bill. Art. 5 10 ; 37 " neglecting or refusing to appear 29 " being an infant or lunatic 30 " absconding 31 " after his appearance has been adversely entered 36 Of absent defendant 33 Bill: Copy of when to be served, Ai't. 2 16 Amendments to ; see Amendments. Pro confesso ; see Tro Confesso. ENGLISH ORDERS OF 1845. 801 Obdbb. Bill (continued) : Time to serve copy may be extended 28 Copy when to be served on absent defendant 33 Amended and no answer required, warrant to answer when obtained 71 When may be dismissed 114 When dismissed, after amendments 115 " " publication 116 " " cause set down 117 No motion to dismiss, until when 118 Commission to examine witnesses: When may be applied for, Art. 42 16 To be issued to two commissioners 94 But only one to act 94 When plaintiff may give notice for 95 When defendant may give notice for 96 Carriage of 95, 96 Commissioners may be agreed on 97 Commissioners, how selected 98, 99 Additional one may be allowed 100 Sealing and delivery of 101 Default of obtaining 102 Form of 103 Oath of commissioners 104 Oath of clerks 105 Notice of examination under 106 Depositions how expressed 107 How executed and adjournment of 108 How transmitted with depositions 109 Commissioner's fees 110 To take answer 43 Costs : Of scandal and impertinence. Arts. 6, 7 16 ; 42 " entering a})pcaraiice of defendant 35 " successful demurrer 45 51 802 INDEX. Order. Costs (continued) : Demurrer to wliole bill 46 Demurrer to part of bill 47 Of plea, when same is allowed 48 Of plea, when not set clown 49 For what allowed 120 Rule of taxation 120 Same in town and country causes 121 When pleadings unnecessarily long 122 Upon interlocutory applications 123 When taxed without order 124 Of cross-bill of discovery 125 Of affidavits 128 Death : Of sole plaintiff, how suit revived 63 Defendant : When to appear, Art. 3 16 Adverse appearance of. Art. 4 16 Appearance of, on service of copy of bill. Art. 5 16 When to demur, Art. 10 16 plead. Arts. 11, 12, 13 16 " answer. Arts. 14, 15, 16 16 May compel plaintiff to elect. Arts. 20, 21 16 Absent, service of subpoena on 33 " time of appearance 33 " adverse appearance 33 May appear after adverse appearance 36 Attachment of, for want of answer 72 *' discharge from 73, 74 " new 73, 74 In poverty, assignment of counsel for 75 Attachment against. Arts. 3, 14, 15, 10 16 Imprisoned, Arts. 3, 14, 15, 16 16 ; 73, 74 Demurrer: When to be put in. Art. 10 16 To avoid injunction. Art. 11 16 ENGLISH ORDERS OF 1845. 803 OnoBR. Demurrkr (continued) : To j)icvcnt revivor, Art. 12 1 ') To Orig. or Sup. bill, Art. 13 1 G To amended bill, Art. 14 ] 'i To amended bill, alter one answer. Art. IG 1 G To whole bill. Art. 17 1 G Need not l)e entered with registrar 44 Either party may set down 44 Costs on, successful 45 Costs on, to whole bill 47 Costs on, to part of l»ill 48 Time not computed in putting in 15 Exceptions : Not to be filed nunc 'pro tunc 17 Mas. report on, further time for 19, 20 See Auiswer. When to be referred, Art. 6 1 G Mas. report thereon, Art. 7 16 Mas. report excepted to. Arts. 8, 9 IG GUAUDIAIN AD LITEM". To be appointed for infant or lunatic defendant 32 Impertinence : See Scandal. Injunction to stay proceedings at law: When plaintiff entitled to 59 Obtained, bill may be amended GO Motion to dissolve, before answer Gl Di'murrer, &c., to avoid, Art. 10 IG Common, when plaintiff may have, Art. 11 [iS Judgment : Subpoena for, when. Art. 45 IG Subpoena for, when returnable, Art. 46 16 804 INDEX. Order. l\l0TI0NS : Time between notice and lieariiig of, Arts. 47, 48 IG Offices : Of the com t, when open 5 Of accountant general, when open 6 Of vacation masters, when open 7 Orders: Former ones repealed 1 Former ones adopted 2 When to go into operation 3 Conditional, when deemed waived 119 Petitions : Time between notice and hearing of. Art. 47 16 Plaintiff: Time of giving security for costs 15 When may enter defendant's appearance. Art. 4 16 When may have common injunction, Art. 11 16 When may have order to revive, Art. 12 16 May be rccpare^d to elect, vVrls. 20, 21, 51 16 See Aiucndmcrits and Dismissal. Not to proceed till after replication, having undertaken to reply to plea 50 Plea To avoid injunction. Art. 11 16 To avoid revivor. Art. 12 16 T.J Orig. or Sup. bill, Art. 13 KJ To amended bill, Art. 14 16 To amended bill after one answer, Art. 15 16 When to be set down, Art. 19 16 Need not be entered with registrar 44 Either party may set d(jwn 44 Allowed, costs G. Died. .^). WILLIAM T. CARROLL, of District of Columhio. Appointed •27tli January, 1827. Present incumbent. REPORTERS OF THE SUPREME COURT. ALEXANDER J. DALLAS, from 1789 to 1800, inclusive. WILLIAM CRANCH, from 1801 to 1815, inclusive. HENRY WIIEATON, from 1816 to 1827, inclusive. RICHARD PETERS, Jun., from 1828 to 1842, inclu«;ive. BENJAMIN C. HOWARD, from 1843. Present re- porter. UNITED STATES COURTS. TIMES AND PLACES OF HOLDING, AND OFFICERS OF SAME. N. B. — It is believed that this list, though differing somewhat from that found in the American Almanac for 1852, is correct; as it has been compiled from a careful examination of the United States Statutes. CIRCUIT COURTS. FIRST CIRCUIT. Hon. Benja^iin R. Curtis, Jastice, Bo-'iton^ Ma-'^-'f. MAINE : Portland — Twenty-third day of April and Sep- tember. NEW HAMPSHIRE : Portsmouth — Eighth day of May. Exeter — Eighth day of October. MASSACHUSETTS : Boston — Fifteenth day of May and Octol^er. RHODE ISLAND: Netvport — Fifteenth day of June. Providence— Y\itQQni\i day of November. 822 APPENDIX. SECOND CIRCUIT. Hon. Samuel Nelson, Justice, Cooperstown^ J^. Y. VERMONT : Windsor — ^Twenty-first day of May. Hutland — Tliird day of October. CONNECTICUT; New-Haven — Fonrtli Tuesday In April. Hartford — Tliird Tuesday in September. NEW-YORK : Northern District. Alhany — Third Tuesday in May and October. Canandaifjua — Tuesday after Third Monday in June. Southern District. Netv- Yorh — First Monday in April. " Third Monday in October. " Last Monday in February, for Crimi- nal and Equity causes. THIRD CIRCUIT. Hon. Robert C. Grier, Justice, Pittshurgh^ Pa. NEW JERSEY : Trenton — Fourth Tuesday in March and Septem- ber. UNITED STATES COURTS, &c. 823 PENNSYLVANIA : Eastern District. Pldladelphia — First Monday in April and Octo>)er. Western District. Pittsburgh — Second Monday in May and November. Western District. WilUamqwrt — Third Monday in June and Septem- ber. FOURTH CIRCUIT. Hon. Roger B. Taney, C. Justice, Baltimore^ Md. MARYLAND : Balt'unore — First Monday in April and September. DELAWARE : New Castle — Tuesday after Fonrtli Monday in May. Dover — Tuesday after Third Monday in Noveml)er. VIRGINIA: Eastern District. Biclnnond — First Monday in May, and Fourth JNIonday in November. Western District. Lewishuvgli — Fii-st Monday in August. 824 APPENDIX. FIFTH CIRCUIT. Hon. John McKinley, Justice, Louisville^ Ky. ALABAMA: Mobile — Second Monday in Api-il and Fom-tli Mon- day in December. LOUISIANA: Easterjs- District. New Orleans — Fourtli Monday in April and Third Monday in December. Western District, District Com-t clothed with Circuit Court powers. SIXTH CIRCUIT. Hon. James M. Wayne, Justice, Savannah^ Ga. NORTH CAROLINA: Baleigh — First Monday in June, and Last Monday in December. SOUTH CAROLINA: Charleston — Wednesday before Fourth Monday in March. ColumUa — Fourth Monday in November. OEORGIA : Southern District. Savannah — Second Monday in April. Milledgeville — ^Thursday after First Monday in November. Northern District. District Court clothed with Circuit Court powers. UNITED STATES COURTS, &c. 825 SEVENTH CIRCUIT. Hon. John McLean, Justice, Cincinnati^ 0. OHIO : Columhus — ^Tliird Tuesday in April and OctoLer. INDIANA : Indianai^olis — Tliu'd Monday in May and Novem- ber. ILLINOIS : Springfield — First Monday in July, and Third Monday in December. Chicago — First Tuesday in October, and Third Tuesday in April. MICHIGAN: Detroit — Third Monday in June, and Second Mon- day in October. EIGHTH CIRCUIT. Hon. John Cateox, Justice, Nashville, Tenn. KENTUCKY: Franhfort — ^Third Monday in May and October. TENNESSEE: Eastern District. Knoxville — Third Monday in April and October. 826 APPENDIX. TENNESSEE— Continued : Middle District. Kas'hviUe— Fust Monday in Marcli and September, Western District. Jackson — Second Monday in April and October. MISSOURI: St. Louis — Fii'st Monday in April. NINTH CIRCUIT. Hon. Peter V. Daniel, Justice, Richmmid^ Va. MISSISSIPPI: Jackson — First Monday in May and November. ARKANSAS: Little Roch — Second Monday in April. DISTRICT OF COLUMBIA. Hon. William Ceanch, Circuit Judge, Waslmigton. WasJiington — ^Fourth Monday in March, and Third Mon- day in October. UNITED STATES COURTS, &c. 827 NEW STATES. TEXAS, IOWA, FLORIDA, ARKANSAS, West. Dist., WISCONSIN, CALIFORNIA. District Courts clothed with Circuit Court jioAvers. TERRITORIES. OREGON, UTAH, MINNESOTA, NEW MEXICO. Territorial Courts clothed, in certain cases, with Circuit Court powers. DISTRICT COURTS. MAINE. Hon. AsHTJE Ware, Judge, Portland. Portland — First Tuesday in February and December. Wiscasset — Fii'st Tuesday in September. Bangor — Fourth Tuesday in June. Thomas A. Delois, District Attorney, Portland. Willia:m Paixe, Marshal, Bangor. Geokge F. Emery, Clerk Circuit Court, Portland. William P. Preble, Clerk District Court, Portland. 828 APPENDIX. NEW HAMPSHIRE. Hon. Mathew Harvey, Judge, HopTcinton. Fortsmoutli — Third Tuesday in Marcli and September. Exeter — ^Third Tuesday in June and December. William H. PixcKisrEY, District Attorney, Exeter. Sa.aiuel Gaefield, Marshal, Langdon. Albert K. Hatch, Clerk, Portsmouth. VEEMONT. Hon. Samuel Prentiss, Judge, Montpelier. Jiutland'^— Sixth day of October. Windsor — Twenty-fourth day of May. Abel Underwood, District Attorney, Wells liiver. John Pettis, Marshal, Windsor. Edward H. Prentiss, Clerk, Montpelier. MASSACHUSETTS. Hon. Peleg Sprague, Judge, Boston. Boston — ^Third Tuesday in March; Fourth Tuesday in June ; Second Tuesday in September ; First Tuesday in December. George Lunt, District Attorney, Boston. Charles Devans, Jr., Marshal, Boston. Isaac O. Barnes, Clerk Circuit Court, Boston. S. E. Sprague, Clerk District Court, Boston. UNITED STATES COURTS, &c, 829 connp:cticut. Hon. Andrew T. Judson, Judge, Canterhury. New-Haven — Fourth Tuesday in February and August. Hartford — Foui-th Tuesday in May and November. Thomas C. Perkins, District Attorney, Hartford. A. A. Pettexgall, Marshal, Bridgeport. A. A. BuRNiiAir, Clerk, New Haven. KHODE ISLAND. Hon. John Pitman, Judge, Providence. Providence — First Tuesday in February and August. Newport — Second Tuesday in May, and Third Tuesday in October. James M Clark, District Attorney, Providence. George W. Jackson, Marshal, " John T. Pitman, Clerk, " NEW-YORK. lion. Alfred Conkling, Judge, Aiihurn. Northern District. Albany — Third Tuesday in January. Utica — Second Tuesday in July. 830 APPENDIX. Rochester — Tliird Tuesday in May. Atihirn — ^Tliird Tuesday in August. Buffalo — Second Tuesday in November. One term for the counties of St. Lawrence, Clinton and Franklin, as tlie judge may direct. James R. La whence. District Attorney, Syracuse. Joim T. Busir, Marslial, Buffalo. Augustus A. Boyce, Clerk Circuit Court, TJtica. A. CoNKLiNG, Clerk District Court, Auhirn. Hon. Samuel R. Betts, Judge, JSfeiv- Yorh. SouTHEEN District. New- YorJc — First Tuesday of every montli. J. Peescott Hall, District Attorney, JVew- Yorh H. F. Talmadge, Marslial, " John W. Nelson, Clerk Circuit Court, " James W. Metcalf, Clerk District Court, " NEW JERSEY. Hon. Philemon Dickehson, Judge, Patersoii. Trenton — Third Tuesdays in January, April, June and September. William Halsted, District Attorney, Trentom. Robert J. Kennedy, Marslial, Steioartville. Edward N. Dickerson, Clerk, Paterson. UNITED STATES COURTS, &c. 831 PENNSYLVANIA. Hon. Joiix K. Kane, Judge, riuladelx>fiia. Eastern District. Philadelx>1iia — Tliird Mondays in February, May, August and November. John W. Asihiead, District Attorney, Pldladelpliia. Anthony E. Roberts, IMarshal, Lancaster. George Plitt, Clerk Circuit Court, Pldladel/pliia. Thomas L. Kane, Clerk District Court, " Hon. Thomas Irwin, 3\x(\ge^ Pittshurgh. Western District. PiUsburcjli — First Monday in May, and Tliird Monday in October. WUliamsjport — ^Third Monday in June, and First Monday in October. J. Bowman Sweitzer, District Attorney, Pittsburgh. John Dicker, Mai-slial. Henry Sproule, Clerk, Ci\al Court, Pittshurgh. R. B. Roberts, Clerk District Court, Pittshurgh. James Armstrong, Clerk District Court, William-sport. DELAWARE. Hon. Willard Hall, Judge, Wilmington. Nmv Castle — Third Tuesday in June, and Second Tuesday in December. 832 APPENDIX. Dover — ^Tuesday after Third Monday iu March ; Tuesday after Fourth Monday in September. P. Sheward Johnsotvt, District Attorney, Wilmington. Samuel Bark, Marshal, " Leonard E. Wales, Clerk, " MARYLAND. Lion. John Glenn, Judge, Baltimore, Baltimore — ^First Tuesdays in March, June, September and December. Z. Collins Lee, District Attorney, Baltimore. Thomas H. Kent, Marshal, " Thomas Spicer, Clerk, " DISTRICT OF COLUMBIA. CIRCUIT COURT. Hon. William Cranch, Chief Justice, Washington. Hon. James Morrell, Associate Justice, Georgetown. Hon. James Dunlop, Associate Justice, WasJmigton Wasliington — ^Fourth Monday in March ; Third Monday of October. Philip H. Fendall, District Attorney, Washington. Richard Wallack, Marshal, Wasliington. John A. Smith, Clerk, Washington. UNITED STATES COURTS, &c. 833 DISTRICT COURT, lion. William CIlA^'CIr, Judge. Washington — First Mondays in June and December. CRLAIINAL COURT. lion. T. Hartley Crawfoed, Judge, Wa-sliington. Wa-sldngton — First Mondays in Marcli and December; Thii'd Monday in June. VIRGINIA. Hon. Ja^ies D. Hallyburton, Judge, New Kent C. H. Eastern District. Norfolk — Thirtieth day of May and First day of November. Richmonil — ^Twelftli day of May and November. William P. Joynes, District Attorney, Petersburg. Tiio:mas S. Hall, Mai-shal, Riclimond. A. A. CowDERY, Clerk, Norfolh. P. ^Iayo, Clerk, Itichnond. Hon. Joiix W. Brockenbrougit, Judge, Lexington. Western District. Clarhshurgh — Last Mondays in jMarcb and August. Wheeling — Wecbiesday after First Monday in April and September. Charleston — (Kanawha County) Wednesday after Second Mondays in April and September. Staunton — First day of May and October. 53 834 APPENDIX. WijtJie Court IIov 6'e—FirBt Wednesday after Tliird Mon- days in April and September. Benjaiviin H. Smith, District Attorney, Charleston, Kanaioha Court House. James Points, Marslial, Staunton. RiciiAKD "W. Moore, Clerk, Clarhshurgli. Erasmus Stribling, Clerk, Staunton. NORTH CAROLINA. Hon. H. Potter, Judge, Raleigh. Edenton — ^Third Mondays m April and October. Ketvhern — Fourtli Mondays in April and October. Wilmmgto72^-First Monday after Fourtli Mondays in April and October. Hieam W. IIusted, District Attorney, Balelgh. George Little, Marshal, William H. Haywood, Clerk Circuit Court, " John M. Jones, Clerk District Court, Edenton. Benjamin W. Brown, Clerk District Court, Newlern. William E. Anderson, Clerk District Court, Wilming- ton. SOUTH CAROLINA. Hon. Robert B. Gilchrist, Judge, Charleston. Eastern District. Chmiestonr—T\i\Y^ Mondays in March and September; First Monday in July, and Second Monday in December. UNITED STATES COURTS. &c. 835 Westkux I) i>'nncT. Laureihs Court House — Tuesday after adjonrninent of Cir- cuit Cuui*! at Columbia. (Circuit Court uioetd on Fourtli Monday in Xoveniljer.) J. L. PE'rriGREW, District Attorney, Charleston. Tiio:mas D. Condy, Mai'slial, Cltarleston. 11. Y. Gray, Clerk, Cltarleston. GEORGIA. Hon. J. C. NicoLL, Judge, Savannah. Northern District. Marietta — Second Monday in March and September. Southern District. Savannah — Second Tuesdays in February, May, August and November. Hexry Williams, District Attorney, Savannah. WiLLiA^i C. Mills, Marshal. George Glenn, Clerk, Savannah. William H. Hunt, Clerk, Marietta. FLOEn)A. Hon. Isaac II. Bronson, Judge, St. Aitgustine. Northern District. Tallahassee — Fii-st JMonday in January. Apahivhicola — First Monday in February. 836 APPENDIX. Pensacola — ^First Monday in Marcli. St, Aiigustine — Fii'st Monday in April. Geoege W. Call, District Attorney, Madison. John T. Mykick, Marshal, Marianna. Geoege E.. Faiebank, Clerk, St. Augustine. HoBAET H. Hilton, Clerk, Tallahassee. Joseph S. Mays, Clerk, Apalacliicola. CiiAELEs N. JoEDON, Clerk, Pensacola. Hon. William Maevin, Judge, Key West. SOUTHEEN DiSTEICT. Key West — First Mondays in May and November. William K. Hackley, District Attorney, Key West. Waltee C. Maloney, Marshal, Key West. TiiEODOEE A. PiNCKNEY, Clerk, Key West. ALABAMA. Hon. Joim Gayle, Judge, Mobile. NOETIIEEN DiSTEICT. HuntsviUe — Third Monday in May, and Fourth Monday in November. Jeffeeson F. Jackson, District Attorney, Montgomery. Willis H. Gibson, Marshal, Courtland. Benja^iin F. Mooee, Clerk, Himtsville. Middle Disteict. Montgomery — Fourth Monday in May ; First Monday after Fourth Monday in November. UNITED STATES COURTS, &c. 837 Jefferson R Jackson, District Attorney, Montgcmiery. Charles BiNGiiA:vr, jVIarshal, Mobile. Mait Gayle, Clerk, Montgomery, Southern District. Mohile — Fii*st Monday in May, and Second Monday in Deconil^r. Peter Hamilton, District Attorney, Mohile. Charles BiNOHA:yr, JVIarslial, Mohile. John Fiti's, Clei'k, Mohile. MISSISSIPPI. Hon. Sajiuel J. Gholson, Judge, Athetis. Northern District. Pontotoc — First Mondays in June and December. Woodson L. Ligon, District Attorney, Ahenken. William McQuinston, Marshal, " R. W. Edmonson, Clerk, Pontotoc. Southern District. Jackson — Fourth Mondays in June and January. Horatio J. Harris, District Attorney, Viclcshurg. F. Da^^is, Marshal, Woodville. Willia:\i H. Brown, Clerk Circuit Court, Jackson. Willia:^! Burns, Clerk District Coiu-t, " 838 APPENDIX. LOUISIANA. Hon. TiiEODOKE H. McCaleb, Judge, New Orleans. Eastern District. New Orleans — Third IMondays in February and May, and Second Monday in December. ^ Logan Hunton, District Attorney, New Orleans. William S. Scott, Marshal, " J. W. GuRLY, Clerk Circuit Court, " X. Iv. Jennings, Clerk Dist. Court, " Hon. Henry Boyce, Judge, Alexandria. Western District. Opdousas — First Monday in August. Alexandria — First Monday in September. Slireveport — ^First Monday in Octoljer. Monroe — First Monday in November. St. Joseplis^ Tensas Parlsli — First Monday in December. Lawrence P. Crane, District Attorney, Sltreveport. Frederick Gr. Smith, Marshal, St. Joseplis. Charli:s Scott, Clerk, Alexandria. Charles J. Mitchell, Clerk, Shreve/j)ort. Thojias II. Thompson, Clerk, Opelousas. TEXAS. Hon. John C. Watrous, Judge, Galveston. Galveston — First Monday in February. Austin — At such times as the judge may direct. UNITED STATES COURTS, &c. 839 Tyler — At siu-li times as tlu; judge uuiy direct. BrowiU'ville — " William P. Ballinger, District Attorney, Galveston. Joseph Bates, IVIarslial, " James Love, Clerk, CALIFORNIA. I Ion. Ogdex IIoff.max, Jr., Judge, San Francisco. NoiiTiiEKX District. San J'Wnicisco — First Mondays in June and December. San Jo6e — First Monday in Ai)ril. SoAyramento — Fii-st Monday in September. Stockton — Second Monday in October. Calhoun BENirA:\r, District Attorney, San Francisco. David T. Douglass, INIarslial, San Jose. J. A. Monroe, Clerk, San Francisco. Hon. Joseph P. IIealy, Judge. Southern District. Monterey — First Monday in June. Los Angelos — First Monday in Deceml^er. Alfred Wheeler, District Attorney, San Francisco. Pablo Norieago, Marshal, San Jose. Clerk. The judges of l)oth districts may hold extra sessions of the courts, at their discretion. 840 APPENDIX. ARKANSAS. Hon. Daniel Restgo, Judge, Little Mock. Eastern District. Little Rock — First Mondays in April and October. Absalom Fowler, District Attorney, Little Mock. Luther Chase, Marslial, Little Moch. 'VyiLLiA:\i Field, Clerk, Little Mode. Western District. Van Bv/ren {Oraivford county) — Second Mondays in May and jS^ovember. Jesse Turner, District Attorney, Van Buren. George K. Knox, Marslial, " WiLLiAin Field, Clerk, Little Mock. MISSOURI. Hon. Robert W. Welles, Judge, Jefferson City. Jefferson City — First Mondays in March and September. John D. Cook, District Attorney, Fredericks-town. John W. Twitchell, Marshall, St. Louis. Benjamin F. Hickman, Clerk Circuit Court, St. Louis. Jason Harrison, Clerk District Court, Jefferson City. UNITED STATES COURTS, &c. 841 TENNESSEE. lion. MoiiGAN W. BuowN, Judge, Ka-'^h'ilh. Eastern Distkict. Knoxville — Tliird Mondays in April and October. Samuel R. Rogers, District Attorney, KnoxmlU. Daniel McCuLLu:\r, Marshal, Knoxville. James W. Cajipbell, Clerk, Knoxville. Mlddle District. Naskville — First Mondays in March and September. W. F. Kerciieval, District Attorney, FayettevilU. Willia:si M. Brown, Marshal, KaslLville. Jacob McGavock, Clerk, N^ctshville. Western District. Jackson — Second Mondays in April and October. Charles N. Gibbs, District Attorney, Jackson. Andrew Guthrie, Marshal, Jackson. James L. Talbot, Clerk, Jackson. KENTUCKY. Hon. Thomas B. Monroe, Judge, Frankfort. Frankfort — Third Mondays in May and October. Willia:m II. Caperton, District Attorney, liicJunoiK.f. James S. Speed, Marshal, Louisville. John H. IIanna, Clerk Cii'cuit Coui-t, Frankfort. J. A. Monroe, Clerk District Court, Franlfort. 1 842 APPENDIX. OHIO. lion. IlrMPiiKEY II. Leavitt, Judge, Steuhenvllle. Columlms — ^Tliircl Tuesday in April; Tliird Tuesday in October. Sa:^ison Mason, District Attorney, Sjyringfield. GosBOKx A. Jones, Marshal, Mount Vernon. William Minor, Clerk, Cohtmbus. INDIANA. Hon. Elisha M. Huntington, Judge, Cannelton. ImlkuiaiJoliH — Third Mondays in May and November. Hugh O. Neil, District Attorney, Indianapolis. Solo:mon Meredith, Marshal, Camhridge City. Horace Basseit, Clerk, Indianapolis. ILLINOIS. Hon. T. DRi'^L^roND, Judge, Galena. Springfield — First Monday in July and Third ]\Ionday In December. Chicago — First Tuesday in October and Tliird Tuesday in April. Archibald Williams, District Attorney, (2uincy. Benjamin Bond, Marshal, Carlysle. William Poi'e, Clerk, Springfield. UNITED STATES COURTS. &c. 843 MICHIGAN. IIox. Koss WiLKi.xs, Judge, Vttrult. Detroit — 'riiird Moiulay in June, and Second Monday in October. George C. Bati^^, District Attorney, Detroit, Chakles H. Knox, Mai-shal, Centreville. Willia:\i 1). WiLKiNS, Clerk, Detroit. WISCONSIN. Hon. Andkew G. Miller, Judge, Mllwaiikee. Madimn — Fii-st Monday in July. Milwmihee — First Monday in January. George W. Lakin, Dist. Attorney, IHattevUle., Grant Co. Lister II. Coltox, Marshal, Milwaul-ee. Georcje S. West, Clei'k, Milwaukee. IOWA. Hon. Jonx J. Dyer, Judge, Duluque. Northern District. Diihuqjie — First Monda\' in January. Middle District. Iowa City — Fii'st Monday in October. Southern District. Burlington — First Monday in June. Stephen Whicher, District Attorney, Muscat ine. Stephen B. Shelladay, Marshal, Oscahosa. T. S. Parvin, Clerk, Mu^hitine. 844 APPENDIX, TERRITORIES. OEEGOK Hon. Thomas Nelson, Chief Justice, Oregon City. Hon. William Strong, Associate Justice, " Hon. W. C. Pratt, Associate Justice, " Territory divided into tliree Districts, in which courts are to be held as may be provided by law. An annual term of the Supreme Court at the seat of government. Amory Holbrook, District Attorney, Oregon Olty. Joseph L. Meek, Marshal, Oregon City. Clerk MINNESOTA. Hon. Jerome Fuller, Chief Justice, St. Paul. Hon. Da\t:d Cooper Associate Justice, " Hon. Bradley B. Meeker, Associate Justice, 8t. Paul. Territory divided, and courts held as in Oregon. Henry L. Moss, District Attorney, Stillwater. J. W. FuRBUR, Marshal, Cottage Grove. Clerk. UNITED STATES COURTS, &c. 845 UTAH. Hon. Samuel G. Branderberry, Cliief Justice, Salt LaTce. Hon. Zerubable Snow, Associate Justice, Salt Lake. Hon Perry E. Brociius, Associate Justice, " Territory divided, and courts held as in Oregon. Setu Blair, District Attorney, Salt Lake. Joseph L. Haywood, Marshal, " NEW MEXICO. Hon. Grafton Parker, Chief Justice, Santa Fe. Hon. Horace Mower, Associate Justice, " Hon. John S. Watts, Associate Justice, " Territory divided, and courts held as in Oregon. Elias p. West, Disti-ict Attorney, Santa Fe. John Jones, Mai-shal, " ERRATA. Page 8 ; 5th line from bottom for ' 3 Cond. 440, ' read 3 Cond. 460. " 26 ; 5th line from top, for ' 2 Pet. 567," read 1 Pet. 567. " 31; 9th line from top, for 'Ch. 527," read Ch. 257. " 45; note. for '4 Cond." read 4 Cond. 119. " 46; 5th line from bottom for ' Court," read Cases. " 174; bottom lino, for '110," read 106. " 227 ; bottom of page. for " 1838, ch. 31, ' read 1839, ch. 31. " 261 ; 7th line from top. for ' ch. 35," read ch. 55. " 526 ; top line, for "56, 58," read 67, 68, 69, 71 " 567 4th line from top, for " heads," read liands. LITTLE & COMPANY, £avo Booksellers aub Pubiioljcrs, 53 STATE STREET, ALBANY, Invite the Jittcntion of the Legal Profession to flicir extensive Stock of LAW BOOKS AND STATIONERY. For Sale on Liberal Terms. IMPORTANT NEW LA W BOOKS. JUDGE HAYDEN'S NEW PRACTICE AND FORMS. The Practice of the Courts of tliis State, adajUcd to the Code of Pro- cedure, as amended by the Act of April 11, 1849; with the Rules of the Supreme Court, adopted at the Convention of Judges, on the first of August — to whicli is added a copious Appendix of Practical Forms — in 1 vol., octavo : By Chester Hayden, Counsellor at law. JUDGE HAYDEN'S NEW PRACTICE AND FORMS, For the JUSTICES' COURTS of the Stateof New-York— one vol., 8vo: By Chester Hayden, Counsellor at Law, REVISED STATUTES. Third Edition — now ready, Revised Statutes of New- York, in three volumes, octavo — prepared by tlie Hon. Joim C. Spencer. This edition contains the Laws of tlie State of New- York, passed during tlie last twenty years. BARBOUR'S REPORTS Of the Supreme Court of the State of New- York. Volume four now ready — price $3.50. Little Sf Co.^s Law Catalogue JUDGE CONKLING'S ADMIRALTY. Just published by the subscriber, the Jurisdiction, Law, Practice, Plead- ings, and Forms of the Court of Admiralty of the United States : By Hon. Alfred Conkling, U. S. Judge of the Northern District of New-York. COMSTOCK'S REPORTS. The Reports of the Court of Appeals of the State of New- York: By G. F. Comstock, Esq., Reporter. Price for the two volumes, complete and bound in calf, $2-50 per vol. PAIGE'S CHANCERY REPORTS. Volume XI. Reports of Cases argued and determined in the Court of Chancery of the State of New- York : By Alonzo C. Paige, Counsellor at Law. Calf. THE SESSION LAWS FOR 1849. The Laws of New- York, with the Certificate of the Hon Christopher Morgan, Secretary of State, (without which no copy is legal,) that the said volume was printed under his direction, according to law. (See Laws of 1843, chap. 98.) HON. JUDGE STORY'S WORKS. COMMENTARIES ON THE LAW OP BAILMENTS, With Illustrations from the Civil and the Foreign Law : By Joseph Story, LL. D., one of the Justices of the Supreme Court of the United States, and Dane Professor of Law in Harvard University. Fourth edition — re- vised, corrected, and enlarged. COMMENTARIES ON THE CONSTITUTION Of the United States — with a Preliminary Review of the Constitutional History of the Colonies and States, before the adoption of the Constitu- tion : By Joseph Story, LL. D. Little ^ Co.'s Law Catalogue. COMMENTARIES ON THE CONFLICT OF LAWS, Foreign and Domestic, in regard to Contracts, Riglits, and Remedies, and especially in regard to Marriages, Divorces, Wills, SuccesBions, and Judgments: By Josepli Story, LL. D. Third edition— revised, corrected and greatly enlarged. COMMENTARIES ON EQUITY JURISPRUDENCE, As Administered in England and America: By Joseph Story, LL. D. Fourth edition— revised, corrected aud enlarged. COMMENTARIES ON THE LA^W OF AGENCY, As a Branch of Commercial and Maritime Jurisprudence, with Occa- sional Illustrations from the Civil and Foreign Law: By Joseph Storj', LL. D. Thii-d edition— revised, corrected and enlarged. COMMENTARIES ON THE LAW OF PARTNERSHIP, As a Branch of Commercial aiid Maritime Jurispnidence, with Occa- sional Illustrations from the Civil and Foreign Law: By Joseph Story, LL. D. Second edition. COMMENTARIES ON THE LAW OF BILLS OF EXCHANGE, Foreign and Inland, as Administered in England and America, with Occasional Illustrations from the Commercial Law of Nations of Conti- nental Europe : By Joseph Story, LL. D. Second edition. COMMENTARIES ON EQUITY PLEADINGS, And the Incidents thereto, according to the Practice of the Courts of Equity of England and America: By Joseph Siorj', LL. D. Third edi- tion — revised, corrected and enlarged. COnXIVISM'TAItlBS ON THE LAW OP FROKISSOR'Sr NOTES, Aiul Guarantees of Notes, and Checks on Banks and Bankers, with Oc- casional Illustrations from the Conmicrcial Law of tiie Nations of Con- tinental Europe : By Joseph Story, LL. D. Second edition— corrected and enlarged. Little ^' Co.^s Law Catalogue. JUST P UB LISHE D ANGELL ON COMMON CARRIERS. A Treatise on the Law of Carriers of Goods and Passengers, by Land and Water : By Joseph K. Angell. One vol., 3vo. GREENLEAF'S CRUISE ON REAL PROPERTY. The first vohirne of Cruise's Digest of the Law of Real Property, re- vised and considerably enlarged, by Henry Hoplcy White, Esq. ; further revised and abridged, with additions and notes, ibr the use of American Students: By Simon Greenleaf, LL. D. Three vols., royal 8vo. A TREATISE ON THE LAW OF PATENTS, For Useful Liventions in the United States of America, and the Reme- dies for their Infringement: By George Ticknor Curtis, Counsellor at law. ANGELL ON WATER COURSES. Treatise on the Cmmon Law in relation to Water Courses : By Joseph K. Angell. New and fourth edition — ^revised and greatly enlarged. DAVEIS'S REPORTS. Reports of Cases determined in the District Court of the United States for the District of Mame, with some Opinions of the District Judge, in Cases determined in the Circuit Court, 1839 — 1849 : By Edward H. Da- veis. 8vo ; law sheep. $3-50. CUTITIS ON COPYRIGHT. A Treatise on the Law of Copyright in Books, Di*amatic and Musical Compositions, Letters and other Manuscripts, Engravings and Sculpture, as administered in England and America; with some Notices of the His- tory of Literary Property : By George T. Curtis. 8vo. Little ^ Co.'s Law Catalogue. GREENLEAF ON EVIDENCE. A Treatise on tlic Law of Evulcnce: By Simon Greenlealj LL. I)., Royall Professor of Law at Harvard University. Third edition. 2 vols. ; royal 8vo. ANGELL AND AMES ON CORPORATIONS. Treatise on the Law of Private Corporations Aggregate : By Joseph K. Augell and Samuel Ames. Third edition. 8vo. JARMAN ON WILLS. A Treatise on Wills, with a copious Dissertation on the Construction of Devises: By T. Jarmun. With Notes and References to American Law: By J. C Perkins, Esq. 2 vols., 8vo. COLLYER ON PATNERSHIP. A Practical Treatise on the Law of Partnership ; with an Appendix of Forms: By John Collyer. Third American, from the second English Edition; with large Additions to the Text and Notes: By J. C. Perkins. Thick 8vo. ABBOTT ON SHIPPING. A Treatise of the Law relative to Merchant Ships and Seamen ; in five Parts: By Charles, Lord Tenterden, late Chief Justice of England. The seventh English edition, by William Shee, Serjeant at Law. The tifth American edition, with the Notes of Mr. Justice Story, and additional Annotations, by J. C. Perkins, Esq. HOWARD'S SUPREME COURT REPORTS. Reports of Cases Argued and Determined in the Supreme Court of the United States, January Term, 184G-7: By Benjamin C. Howai-d, Counsellor at Law, and Rcponer of the Decisions of the Supreme Court of the United States. Vols. IV, V, and VL Little &; Co.'s Law Catalogue. MASSACHUSETTS REPORTS. Tyug's Reports of Cases in the Supreme Judicial Court of Massachu- setts, from 1804 to 1822: By Ephraiin Williams. Vol. I. 17 vols., 8vo. PICKERING'S REPORTS. Reports of Cases in the Supreme Judicial Court of Massachusetts, from 1822 to 1841 : By Octavius Pickering. 24 vols., octavo. METCALF'S REPORTS. Reports of Cases Argued and Determined in the Supreme Judicial Court of Massachusetts, from 1840 to 1846: By Theron Metcalf. 11 vols., octavo. VESEY'S REPORTS. Reports of Cases Argued and Determined in the High Court of Chan- cery, from the year 1789 to 1817, with a Digested Index: By Francis Vesey, Jr., Esq., of Lincoln's Inn, Barrister at Law. From the last Lon- don edition ; with the Notes of Francis Vesey, Jr., Esq., and the Exten- sive Annotations of John E. Ilovenden, Esq., of Gray's Inn, Barrister at Law. The whole edited, with Notes and References to American Law, and subsequent English Decisions: By Charles Sumner and J. C. Per- kins, Esqrs. 20 vols., octavo. UNITED STATES EQUITY DIGEST. In active preparation, and will soon be ready, a Digest of all the Re- ports in Equity, decided in the United States Courts, and in the Courts of the several States, from the earliest period to the present time. In one volume, royal octavo — corresponding with the United States Digests of Common Law and Admiralty Reports, by Messrs. Metcalf, Perkins, Curtis, and Putnam ; and forming, with that, a complete Digest of all the Reports to 1847 — from which 'period Mr. Putnam's Annual Digest will include the Common Law, Admiralty, and Equity Reports : By John Phelps Putnam, of the Boston Bar. Little Sf Co.^s Law Catalogue. THE ANNUAL SUPPLEMENT TO THE UNITED STATES DIGEST FOR 1847. A Supplement to the United States Digest; being a Digest of Decis- ions of the Courts of Common Law and Admirahy in the United States, to 1848, not previously digested in the first five volumes : JJy John Phelps Putnam, of the Boston Bar. 1 vol., royal Bvo. UNITED STATES STATUTES AT LARGE. SESSION LAWS. Public Laws of the United States of America, passed at the First and Second Sessions of the Twenty-nicth Congress, 1845-1847, and the First Session of the Thirtieth Congress, 1847-48. Carefully collated with the Originals at Washington : Edited by George Minot, Counsellor at Law. In two Parts ; royal octavo. INDEX OF CASES. An Index of the Names of all the Cases in the three volumes of the United States Digest, and the two volumes of the Supplement, Alpha- betically arranged, with References for each Case, to the volume and page of the Reports whence the Case is taken, and to the volume and page of the Digest where it is found — thus making an Index of Cases, as well for all the Reports in the United States, as for the United States Digest. 1 vol., 8vo. WOODBURY AND MINOT'S REPORTS, VOL. 11. Reports of Cases argued and determined in the Circuit Court of the United States for the First District: [By Charles L. Woodbury and Geo. Minot Vol. U. WEBSTER'S DICTIONARY. Price reduced to Six Dollars. The entire work, unabridged, in one volume; crown quarto, of 1452 pages — containing all tiie matter of Dr. Webster's original work, his improvements, up to the time of his death, and now thoroughly revised, and greatly enlarged and improved: By Professor Chauncey A. Goodrich, of Yale College. Little ^ Co.'s Law Catalogue. CURTIS'S EQUITY PRECEDENTS. Equity Precedents, designed to illustrate and accompany Mr. Justice Story's Treatise on Equity Pleadings: By George T. Curtis. LIFE AND TIMES OF GRATTAN. Memoirs of the Life and Times of the Rt. Hon. Henry Grattan : By his son, Henry Grattan, Esq. 5 vols., 8vo ; Portrait, cloth, $7*50. BROUGHAM'S STATESMEN. Historical Sketches of Statesmen who flourished in the time of George III.; to which are added Remarks on the French Revolution: By Lord Henry Brougham. Third series ; 8vo, cloth. $2*00. NORTH'S LIVES. The Lives of the Rt. Hon. Francis North, Baron Guilford, Lord Keep- er of the Great Seal; the Hon. Sir Dudley North ; and the Hon. and Rev. John North — with Notes and Illustrations, Historical and Biographical: By the Hon. Roger North. 3 vols., 8vo ; cloth. $7-50. BROUGHAM'S SPEECHES. Speeches of Hemy, Lord Brougham, upon Questions I'elating to Public Rights, Duties, and Interests ; with Historical Introductions, and a Critical Dissei'tation upon the Eloquence of the Ancients. 4 vols., 8vo; cloth. $8-00. PITT'S SPEECHES. The Speeches of the Rt. Hon. William Pitt, in the House of Com- mons. 4 vols,, 8vo ; calf. SKvOO. HARRIS'S LIVES. An Historical and Critical Account of the Lives and Writings of James L and Charles L; and of the Lives of Oliver Cromwell and Charles IL: By William Harris. ,5 vols., 8vo ; half morocco. $18-00. lAttle Sf Go's Imw Catalogue. TYRRELL'S ANTIENT CONSTITUTION. An Inquiry into tiic Antient Constitution of the English Government, with Respect to the Just Extent of the Regal Power, and the Rights and Liberties of the Subject : By James Tyrrell. Folio; old calf. London, 1718. $3-50. PUFFENDORF'S LAW OF NATURE. The Law of Nature ajid Nations; or, a General System of the most important Principles of Morality, Jurisprudence, and Politics: By Baron Puffendorf; with Notes, by Barbeyrac. Folio; old calf. London, 1747. $13-50. BURLAMAQUI'S NATURAL LAW. The Principles of Natural and Politic Law: By J. J. Burlamaqui. 2 vols., 8vo ; calf. $2*25. JURISPRUDENTIA ROxMANA ET ATTICA: Continens varios Conuneutatores, Qui Jus Romanum et Atticum: Item Classicos aliosque Auctores Veteres emendarunt, explicarunt, illus- trarunt, cum Priefatione: Jo. Gottl. Heineccii. 3 vols., folio; vellum. Lugduui Batavorum, 1738. Very fine copy. $21-00. HOWELL'S STATE TRULS. A Complete Collection of State Trials and Proceedings for High Treason, and other Crimes and JMisdemeanors, from the earliest period to the year 1784; with Notes and other Illustrations: Compiled by T. B. Howell, Esq. 21 vols., royal 8vo; neat half calf. $40-00. HISTORY OF THE SIEGE OF BOSTON. History of the Siege of Boston and of the Battles of Lexington, Con- cord, and Bunker Hill. Also, an Account of the Bunker Hill Monu- ment, with Illustrative Documents; Embellished with sixteen Maps emd Engravings : By Richard Frotliingham, Jr. 8vo ; cloth. $2-25. 10 Little Sf Co.'s Law Catalogue. BUCKINGHAM'S SKETCHES. Sketches of Newsjiaper Literature, with Personal Memoirs, Anec- dotes, and Reminiscences: By Joseph T. Buckingham. EVERETT'S ORATIONS. A Revised Edition of the Volume of Everett's Orations, published in 1836; together with a second volume, comprising the Orations and Ad- dresses since delivered by the same author. GROTIUS ON WAR AND PEACE. The Rights of War and Peace, in three Books ; wherein are explained the Law of Nature and Nations, and the principal Points relating to Gov- ernment: By Hugo Grotius. Notes by J. Barbeyrac. Folio, best edi- tion ; old calf. London, 1838. $12'00. SIDNEY ON GOVERNMENT. Discourses Concerning Government: By Algernon Sidney, Esq. To which are added Memoirs of his Life. Foho; Portrait: old calf. Lon- don' 1751, $375. DUGDALE'S ORIGINES JURIDICALES; Or, Historical Memorials of the English Laws, Courts of Justice, Terms of Ti7al, Punishment in Cases Criminal, Law Writers, Law Books, Grants and Settlements of Estates, Degree of Sergeant Innes of Court of Chancery. Also, a Chronologie of tlie Lord Chancellors and Keepers of the Great Seal, Lord Treasurers, Justices Itinerant, Justices of the King's Bench and Common Pleas, Barons of the Exchequer, Masters of the Rolls, King's Attorneys and Solicitors, and Serjeants at at Law: By William Dugdale, Esq. Folio; old calf Savoy, 17GL $15. BECCARIA ON CRIMES. An Essay on Crimes and Punishments. Translated from the Italian. 8vo; calf $1-25. LITTLE & GO'S Al)l)ott on Shipping, new edition. Barbour and Harrington's Equity Di- Adams on Ejectment, new edtion, by gcst, (English and American Ca- Tillin^'liust, ses,) .3 vols., 183(i. Abridirtucnt of American Reports, by IJarboin's Chancery Rej)orts, 3 vols. Wiieclcr, 8 vols. Barbonrs Supreme Court Reports, Addison on Contracts. 4 vols. Adinirahy Decisions, 2 vols. Barbour's Law of Set-ofF. Allen on Mortgages — in press. Barton on Equity. Allen on Sheriffs. Barnewall and Alderson's Reports, Ambler's Reports, 2 vols, royal 8vo. 4 vols. AmericanChancery Digest, by Camp- Bayley on Bills of Exchange. bell and Carnbreling. Bay's South Carolina Reports, 2 vols. American Constitutions, 12mo., new Beamcs's Lex ^lercatoria, 2 vols. edition. lieames's Pleas in Equity. American Jurist, new series, 10 vols., Bcames's Ne Exeat Regno. 1838-42. Beccaria on Crimes. American Railroad Laws, (Summary Beck's Medical Jin-is{)rudence, 2 vols. of") — in press. Beebee's Questions adapted to Gra- Angell on Common Carriers. ham's Practice. Angell on Water Courses — 1850. Bee's S. C. Admiralty Reports. Angell on Tiile Waters. Bell on Husband and Wife — Lon- Angeil on Adverse Enjoyment. don, 181S>. Angell on Limitations. Belt's Supplement to Vesey Senior's Angell and Ames on Coqtorations. Ciiancery Reports. Anthon's Nisi Prius Reports. Benecke and Stevens on Insurance Anthon's Analysis of Blackstone. by Phillips. Andrews's Rei)orts, (King's Bench.) Bigelow's Digest of Massachusetts Archbold's Practice of the Court of Reports. King's Bench, 2 v., new ed. Bingham on Infancy and Covertm-e. Archl)f>ld's Criminal Pleading and Blackstone's (Henry) Reports, 2 vols. Evidence. Blackstone's (Sir William) Reports, 3 ArchboUI's Civil Pleading. vols. Archbold's Forms and Entries. Blackstone's Commentaries, byWen- Archbold's Nisi Prius. dell, 4 vols. Atkyn's Reports, 3 vols., by Sanders. Blackstone's Commentaries, by Chit- Attorney's Comi)anion. ty, 2 vols. Aziuii's Maritime I^aw, 2 vols. Blake's Chancery Practice. Backus's Digest of Laws relating to Blunt's Commercial Digest. Siierirt", 2 vols. Booth on Real Actions. Bacon's Abridgement, 7 vols. Booth's Suit at Law. Baldwin's Circuit Coiu't Reports — Bosanquet and Puller's Reports, 5 continuation of Washington. vols. Ballentine on the Statute of Liinita- Bourier's Law Dictionarv, 2 vols, tions, with notes and additions, Brady on Wills, thin 8vo., bds. by Tillinghast. Branche's Principia. 12 Little and Co.^s Law Catalogue. tj' Bridjiniaii's Equity Digest, 4 vols. Coke Abridged, by Diinlap. Brown's Crises in Parliament, 8 vols. Collyer on Partnership, by Perkins. Brown's Civil and Admiralty Law, Coleman and Gaines's N. York Cases, 2 vols. Commercial Code of France. Brown's Chancerv Reports. COMSTOCK'S REPORTS OF N. Brockenbrough's "l^^ports, (Chief Jus- YORK COURT OF APPEALS, tice jMarshall's Decisions,) 2 vols. 2 vols. Bidlard and Cmry's Louisiana Di- Comyn's Reports. gest. Comyn's Digest, by Hammond, 8 v. Buller's Nisi Prius. Coniyn on Contracts. Bunbury's Reports. Conkling's Practice of the U. States Burire on Law of Sm-etysliip. Courts. Burrill's (Alexander M.) New Law CONKLING'S ADMIRALTY JU- Dictionary, 1 large super-royal RISDICTION AND PRACTICE. 8vo. vol.— in press. Cooper's (Judge) Oi)inion — Admiral- Burrill's Practice, 3 vols. ty Case. Burrows's Reports, (King's Bench,) 5 Cooper's Institutes of Justinian. vols, in 2. Cooper's Chancery Cases. Burns's Justice, 4 vols. Cooper's Equit>' Pleading. Burlamaqui's Natural &- Politic Law, Corpus Juris Civilis, 3 vols., royal 2 vols., new ed. 8vo — Leipsic. Burr's trial, 2 vols. Coventry and Hughes's Digest, 2 vols. Butler's Horse Juridicsp. Cowen's New-York Justice, 2 vols. Bynkershoek's Law of War, by Du- Cowen's New-York Reports, (cont. of ponceau. Johnson,) 9 vols. CAINES' NEW-YORK TERM RE- Cowper's Reports, (King's Bench,) PORTS, 3 vols. 2 vols. Caines's Cases in Error, 2 vols, in 1. Coxe's New Jersey Reports. Caldwell on Arbitration. Coxe's Digest United States Reports. Campbell's (Lord) Lives of the Lord Cranch's Reports, 9 vols., (Supreme Chancellors and Keepers of the Court United States.) Great Seal of England, 7 v., 8vo. Cruise on Real Property, by Simon Campbell's (Lord) Lives of the Chief Greenleaf, 3 vols., new edition. Justices of England, 2 vols., 8vo. Crabb's History of the English Law. Campbell's Nisi Prius Reports, 4 vols. Curtis on the Law of Copyright. Chambers's Landlord and Tenant. Curtis on the Law of Patents. Chandler's American Criminal Trials, Curtis on the Rights and Duties of 2 vols., 12mo. Merchant Seamen. Chitty's Medical Jurisprudence. Cushing's Massachusetts Reports, vol. Chitty's Criminal Law, 3 v., new ed. 1 — continuation of Metcalf. Chitty's Pleadings, 3 vols. Dallas's Re|)orts, 4 vols. CHltTY ON BILLS OF EX- Daniels's Chancery Practice. CHANGE, &c. Day's Connecticut Reports, 5 vols. Chitty's General Practice, 3 vols. Dayton's Surrogate. CHITTY ON CONTRACTS. Debates on the Adoption of the Fed- Chitty's Medical Jurisprudence. eral Constitution Reported by Chiprnan on Government. James Madison, vol. 5 — supple- Christison on Poisons. ment to Elliott. City Hall Recorder, 6 vols, in 3. Debates in the New-York State Con- Clancy's Rights of Married Women. vention for the Revision of the Clerk's Assistant, new ed., enlarged. Constitution, in the year 1846. Clerk'a New-York Digest, 4 vols., new Delolme on the English Constitution, edition — in i)ress. Digest of New-York Reports, 2 vols. Code Napoleon, translated. Denio's New- York Reports, 4 vols. Coke upon Littleton, 3 v., by Thomas. Doctrina Placitandi, or System of Coke's Reports, 7 vols. Pleading. Little Sf Co's Law Catalogue. 13 Doiif^las's Ke|)oits, '^ voLs. (iraliuni on New TrialH. Diittoii's Coiim-ciiciit Dijjest. (jtraliam's Practict; of tlio Sujironic J)iiiila|)'s Adrniially I'ractice. Court ol" New-York. Diinilord and least's Reports, 8 vola. Gresley's Kcjiiity Kvideiice. Diipoiiccau (ill Jurisdiction. Greenltjaf's Overruled Cases, new Dyer's l{e|)orts, 3 vols. edition. East's K('|)orts by l^ay, 10 vols. Greenlcat's Law of Evidence, 2 vols., East's Crown Law, 2 vols. new edition. Eden on JnJMnctions. Griffith's Law Register, 2 vols. Edwards's Ciiancery Re|)orts. Gritn's Essay. Edwards on Parlies to liilis in Chan- (Jny's Eoietis. eery. Hale's (Sir IMatliew) Tleaa of the Edwar(ls's Treat, on Justices' Courts. Crown, 2 vols. Edwards's Jiuy man's Guide. Hale's (Sir Matliew) History of the Elliott's Debates in the Several States, Enjrlisii Common I^aw. on the Adoption of the Federal Hall's Admiralty Practice. Constitution, 4 vols., and Sup'nt. Hall on Maritime Loans. Emerigon on Bottomry and Respon- Hall's Re|)orts of the Superior Court dentia. of New York, 2 vols. English Common Law Reports, 57 Hall's (IJ. E.) Trial of Freertian. vols, in 1(5. Halsted's New Jersey Reports, 7 vols. English Chancery Reports, 18 vols. Halsted's Digest of N. Jej-sey Rep'ts. English Ecclesiastical Rej)orts, 2 vols. Hanunond's Treatise on Nisi Prius. English Exchequer Reports, vol. 1, Hannnond on Parties to Action. new series — continuation of Mee- Hare on the Discovery of Evidence by een and Welsby. Bill and Answer in Ecpiitj', 1837. Equity Draftsman, by Van Heythuy- Hardre's Reports. sen, with Notes, by Hughes, 1832. Harrison's Chancery, 2 vols. J^spinasse on Penal Actions. Harrison';i5 Digest of Cases Deter- Espinasse's Reports, G vols. mined in the House of Lords, Espinasse's Nisi Prius, 2 vols. Courts of Common Law and Fearne on Contingent Remainders. Courts of Bankruptcy, from 175G Fell on Mercantile Guanmty. to 1848, C vols, large 8vo. Federalist — by Hamilton, Madison, Harrison's Digested Inclex, 3 vols. and Jav. Hawkins's Pleas of the Crown, 2 vis. Field's Analysis of Blackstone. HAYDEN'S LAW and PRACTICE Fitzherbert's Natura Brevium. of JUSTICES, in their IMiscella- Fonldanqiie's Eciuity, 2 vols., new neons Duties and Jurisdiction — edition, with Notes, by Laussat. 1850. Foster's Crown Law. Highmore on Lunacy. Francis's Maxims in Equity, by Hen- Hill's New York Reports. ing. Hilliard's Ai)ridgment, 2 vols. Gallison's Circuit Court Reports. llinde's Practice in Ciiancery. Gilbert's Evidence. Hobart's Reports, by AVilliams. Gilbert on Rents. Hotiinan's New York Chancery Prac- Gili)ert on Devises. tice, 2 vols. Gilbert on Ejoetment. HofiVnan's Legal Study, 2 vols., new Gilbert's Cases in Law and Equity. edition, enlarged. Gilbert's Common Pleas. Hoflfinan's Master in Chancery. Gilbert's Distress and Replevin. Holcomb's Leading Cases upon Com- Gilp-in's Reports, (Decisions of Judge mercial Law. Hopkinson.) Holt's Law of liibel. Gordon's Digest of Revenue Laws. Hopkins's Chancery Reports. Gordon's Digest of Laws of U. States. Hovenden on Frauds, 2 vols. Gould's Pleading, 2d edition. Hovenden's Supplement to Vesey,jr., Gow ou Partersliip. 2 vols. 14 Little and Go's Law Catalogue. Howard's Siipreinc Co\irt Special IM'Cord's S. C. Reports, 4 vols. Term Reports, wiiji the Points Macnaily's Evidence, 2 vols. of Practice decided, 4 vols. — Maddock's Chancery, 2 vols. large type. Maddock's English ClianceiyReports, Howard's Supreme Coui-t United 6 vols, in 3. States Reports, 7 vols. Manning's Digest of Nisi Prius Re- Hughes on Insurance. ports. Inirersol's Digest of Laws of U. S. Mason's Circuit Court Reports, 5 vols. Ingersol's Translation of Rocus on Massachusetts Reports, 17 vols. Insurance. JMatthews on Presumptive Evidence. Jacob's Law Dictionary, 6 vols. Maule & Sehvyu's Reports, G vols. Jacob and Walker's Chancery Rep'ts. Meeson and Welsby's Exchequer Re- Jacobsen's Sea Laws. ports, 16 vols. Jarman on Wills, 2 vols. Merivale's Chancery Reports, 3 vols. Jeremy's Equity Jurisdiction of the Metcalf's Massachusetts Reports, 12 Court of Chancery. vols. Johnson's New York Reports, 20 vols. Minot's Massachusetts Digest. new edition. Mitford's Chancery Pleadings, new Johnson's N. Y. Chancery Reports, edition, by Edwards— si 833. 7 vols. Monell's Practice, adapted to the Johnson's New York Cases, 3 vols. Code. Johnson's. Digest of New York Re- Montagu on Set-OfT. ports and Supplement, 3 vols. Montagu on Lien. Jones on Bailments, new edition. Montagu on Partnership, 2 vols. Juryman's Guide. IVIontefiore's Mercantile Laws. Kelvii"''s Reports. Montefiorc's Notarial Precedenis. Keiit's" Conunentaries, 4 vols., 6th ]\Ioore's Index to Term Reports, 2 edition. vols. Kj'd on Awards. Mosely's Chancery Reports. Laws of United States, bv Story, 4 vs. Moulton's Chancery Practice of the Laws of United States, 9 vols., Bio- State of New York, 3 vols. ren's edition. Maxims in Law and Equity, by Hen- Laws of New York, revised, 3 vols., ing. 2d edition. Newland's Chancery Pi-actice,2 vols. Law of Bailments, by Jones. NeAvland on Contracts. Law of Carriers, bv Jeremy. Norris's Peake's Evidence. Law of Fixtures, by Amos & Ferard. Noy's Maxims, by W. W. Hening. Law of Lien, by Whittaker. Ohio Reports, condensed, 4 vols, in 1. Law of Patents, by Fcssenden. Oliver's American Precedents. Law of Patents, bv Phillips. Oliver's Practical Conveyancer. Law of Slavery, by Wheeler. Oliver's Law Sununary. Law Glossary.' Paine's Circuit Court United States Law LibraiT, 65 vols. Reports. Lawes on Pleading in Assumpsit. Paine & Duer's Practice, 2 vols. Lawes on Charter Parties. Paige's Clianceiy Reports, 10 vols. Lawyer's Common-place Book. Paley on Agency. Leach's Crown Law. Park on Insurance. Leigh's Nisi Prius, 2 vols. Peake's Evidence by Randall. Lex°Mercatoria Americana Peake's Evidence by Norris. Livingston's Penal Code of Louisiana. Peere Williams's Chancery Reports, Lilly's Entries, 2 vols. 3 vols. Livermorc on Agency, 2 vols. Peters's Admiralty Reports, 2 vols. Lockwood's Reversed Cases. Peters's Circuit Court United States Lon"- on Sales. Reports, for Tliird Circuit. Lofft's Reports. PETERS'S SUPREME COURT U. Lovelass on Wills, &c. S. REPORTS, 17 vols. Little and Co's Law Catalogue. 15 Peters's coiulfiiised United States Re- ])oits, () vols. Phillips on ICvidence, 2 vols. Phillips's l)i<;est of Pickering's Rep. Pliillil)s on Insnraucc, 2 vols. Phillips on Patents. Pickering's JMassachusetts Reports, 24 vols. Pothier on Obligations, by Evans, 2 vols. Pothier on Contract of Sale. Powell on Mortgages, by Coventry, ',i vols. Powell on Contracts. Powell on Devises. Powell on Powers. Preston on Estates, 2 vols, in 1. Preston on Legacies, 1 vol. Preston on Abstracts of Title, 3 vols, in 2. Precedents in Chancery. Park's Law of Dower. Petersdorft"'s Abridgment, 15 vols. Rawle on the Constitution of the United States. Ray's IMedical Jurisprudence. Reeve's English Law, 4 vols. Reeve's Domestic Relations. Reeve on Descents. Richardson's Supreme Couat Re- ports. Robinson's Admiralty Reports, 6 vols. Roberts on Frauds, new edition. Roberts on Fraudulent Conveyancing Roberts on Wills and Codicils, 2 vols. Root's Connecticut Reports, 2 vols. Roscoe on Civil Evidence. Roscoe on Criminal Evidence. Roper on Wills. Roper on Legacies, 2 vols. Rojjcr on Law of Husband and Wife, 2 vols. Rutherford's Institutes, new edition. Rules of the Court of Appeals. Rules of the Supreme Court. Rules of the Superior Court. Rules of the U. S. Circuit Court. Russell on Crimes and Misdemean- ors, 2 vols. Russell's Chancery Reports. REVISED STATUTES OF NEW YORK, ie4i», 3 vols. Salkcld's Reports, by I'2vans, 3 vols. Sanders on Uses and Trusts. Sanford's Superior Court Repoits, 1 vol. Saunders' Reports, by Williams and Patterson 3 vols. Saunders on Pleadiiiasand Evidence, 2 vols, new edition. Scaton's Forms of Decrr-es iti Equity. Sedwiek's Measure of Damages. Sehvyn's Nisi Prius, by Wheaton and Wharton, 2 vols. ScIIon's Practice Courts of K. B. and C. P. 2 vols. Sergeant on Constitutional Law, Sergeant & liOwber's Eug. Com. Law Rep., condensed. SESSION LAWS OF N. YORK. Sheppard's Touchstone, 3 vols, in 2. Spence's (George) Equitable Juris- diction of the Court of Chance- ry, vol. 1st. Starkic's Nisi Prius Reports, 2 vols. Starkie on Slander. Starkie on Criminal Pleading. j] Starkie on Evidence, 2 vols, new cd. 'i STEPHENS'S NEW CO.■^LME^ - j TARIES OF THE LAWS Oi / ENGLAND, 4 vols. /l STEPHENS'S NISI PRIUS, 3 vols. Stephens on Civil Pleading, new edi- tion. Stevens on Average. Stevens &- Benecke on Marine Insu- rance, by Phillips. STORY ON AGENCY. STORY ON BAILMENT. Storv on Bills of Exchange. STORY ON CONFLICT OF LAWS. STORY ON THE CONSTITU- TION, 3 vols. Storv on Law of Contracts. STORY ON SALES. STORY ON PARTNERSHIP. STORY on PROMISSORY NOTES Storv's Circuit Court Reports. STORY'S EQUITY JURISPRU- DENCE, 2 vols. STORY'S ECiUITY PLEADINGS. STORY'S PLEADINGS, by Oliver. Sugden's Letters on Property. Sugden on the Law of Vendors, 2 vols., imp. edition. Sugden on Powers. Supplement to Johnson's Digest. Sullivan's Lectures on Feudal Law, 2 vols. Sumner's Circuit Court Reports, con- tinuation of Mason. i 16 Little Sf Co.'s Law Catalogue. Siippleineiit to Vesey, Jr's, Reports, by Hovciidcn, 2 vols. Supplement to Petersdorff 's Abridg- ment, 2 vols. Swanston's Chancery Reports, 3 vols. Snineburue on Wills, 3 vols. Swiit on Evidence. Swift's Digest, 2 vols. Stearns on Real Actions, nev*' ed. Taunton's Reports, 8 vols. Taylor's Law Glossary. Thomas's Coke upon Littleton..*? vs. Tidd's Practice, 3 vols. Tidd's Appendix, by Caines. Tillinghast's Forms. Toller's Law of Executors, new ed. Tomlin's Index to Crown Law. Tomlin's Law Dictionary, by Gran- ger, 3 vols. 1836. Trial of Robert 1\L Goodwin Trials of Smith and Ogden. Trial of Aaron Burr for Treason, 2 vols. J f> ,' of Judge Peck. . . TED STATES DIGEST, 3 vols. Supplement to do., 2 vols. United States Statutes at Large, 8 vols. Tal)le of Cases, 1 vol. Annual volumes for 1847, 1848, 1849, 3 vols. United States Session Laws. Vattel's Law of Nations, by Chitty Vesey Jr's, Chancery Reports, 20 vols. Vesey and Beames's Chancery Re- ports, 3 vols, in 2. Vesey Sen's, Chancery Reports, 2 vols. Vernon's Chancery Reports, by Rath- by, 2 vols. Van Heythuysen's Equity Draftsman, new edition, by Hughes, 1837. Warren's Law Studies. Wai-ren's Moral, Social and Profes- sional Duties of Attorneys, 12mo. Washington's Reports Circuit Court United States, 4 vols. Welford's Equity Pleadings. Wendell's Reports, (continuation of Cowen,) 26 vols. Wendell's Digest. Wentworth's Pleadings, 10 vols. Wentworth's Index to do. Wentworth on Executors. Whai-ton's American State Trials. Wheaton's Reports Supreme Court. United States, 12 vols. Wheeler's Criminal Cases, 3 vols. Wheeler's Abridgment of all the American Reports, 8 vols. Wheeler's Law of Slavery. Wheaton's Digest, 2 vols. Wheaton on Captures. Wheaton's International Law. Wigram on Discovery. Willes's Reports. Wilson's Reports, 3 vols. Williams on Executors, 2 vols. Williams's Caseslin Equity, Temp. Talbot. Williams's (Peere,) Chancery Rep'ts., 3 vols. Woodfall's Landlord and Tenant. Woodeson's Lectures, 3 vols. Yelverton's Reports, by Metcalf. Yates's Forms of Pleading. LITTLE & CO., Law Booksellers, JYo. 53, State Street, Jilhany. 1 I AA 000 760 066 ri i! ' "*' ■ • '■ ' '■IV^M ' T''- '