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Ik rJ SS •■" ^OFCAUFOi?^ ^( I ^lOSANCEl^^ o ^ ^^lUBRARYQ^ ..vVillBRARYQ^ ^WEUNIVERJ/A ^mm^i^ -^'aojiivDjo^ ^jijudnvsoi^ INIVERi-//, o vvlOSANCElfj^, o ^OFCAIIFO% ,4.,)FCAllF0fiU^ ,^WEUNIVERy/A "^/^ajMNrt-iykV ^^Aavaan# '^:>\uivaaiH'*^'^ <(5u3nvsoi^ JRARYQ^ I ^ ^^lUBRARYQ^ I1V3J0^ %^OJ11VOJO^ ^WEUNIVERS/A '^J'iUDKYSOl^ ;>;U)SANCEl^y> f h U -< ^lUBRARYO/^ ^^ lA^ %aaAiNn3WV^ ^^tfOJiwDJo'^ ^ AllFO% ^.OFCAIIFO% ,^WEl)NIVERr/A 5 ^'JUONVSO)^^ ^)AOSANCEl£r^ ^OFCAIIFO% NIVER% ^lOSANCEl£j> -ri O '^ ^ ' ■ ' 4A£UBRARY<7/r, ..'eHIBRARYQ^^ 5l ir^i Si ir^^ =3 \V\EUNIVERy//i J A TREATISE CONSTITUTION AND JURISDICTION THE COURTS OF THE UNITED STATES, PLEADING, PRACTICE AND PROCEDURE THEREIN, THE POWERS AND DUTIES OF COMMISSIONERS OF THE CIRCUIT COURTS ' (Jjorms for bM djourls attti dfommtssioners. BY GEORGE W. FIELD, AUTHOR OF A TREATISE ON "THE LAW OF DAMAGES," "THE LAW OF PRIVATE CORPORATIONS," ETC. PHILADELPHIA: T. & J. W. JOHNSON & CO., LAW BOOKSELLERS AND PUBLISHEES, 53 5 CHESTNUT STREET. 1883. T F^l 5-5*2 CO Entered according to Act of Congress, in the year 1883, by T. & J. W. JOHNSON & CO., In the office of the Librarian of Congress at Washington, D. C. PRESS OP HENRT B. ASHMEAD, 1102 & 1104 SanBom Street. CJ PREFACE. The several courts of the United States are of growing interest and importance to the profession, and the author of this treatise cherishes the hope that it will be found a useful guide to practice in them. The jurisdiction, pleading and practice of the Court of Claims have heretofore received no special treatment by any author, if we except the valuable monograph of the Hon. William A. Richardson, one of its judges, from which, with his permission, we have freely copied in the notes in treating these subj"-t_. It is believed that the practitioner will find in this volume all that will be necessary to guide him to practice in this court. We have also herein considered the powers and duties of com- missioners of the circuit courts, and furnished forms for these numerous and important officers and the profession, in proceedings before them. G. W. Field. July, 1883. J67419 CONTENTS. CHAPTER I. PAGE JUDICIAL POWER OF THE UNITED STATES ....... 1 CHAPTER II. CONSTITUTION AND OIJGANIZATION OF FEDERAL COURTS ..... 10 CHAPTER III. ORGANIZATION OF DISTRICT COURTS ........ 20 CHAPTER IV. TERMS AND SESSIONS OP THE DISTRICT COURTS ...... 37 CHAPTER V. JURISDICTION OF THE DISTRICT COURTS ........ 54 CHAPTER VI. PLEADING AND PRACTICE IN ADMIRALTY IN THE DISTRICT COURTS . . .70 CHAPTER VII. JUDICIAL CIRCUITS AND ORGANIZATION OF THE CIRCUIT COURTS . . . 101 CHAPTER VIII. JURISDICTION OF THE CIRCUIT COURTS . 108 CHAPTER IX. PRACTICE AND PROCEDURE IN SUITS AT LAW IN THE CIRCUIT COURTS . . 175 CHAPTER X. PRACTICE AND PROCEDURE IN EQUITY IN THE CIRCUIT COURTS . . . 184 CHAPTER XI. SUPREME COURT, ORGANIZATION AND SESSIONS ...... 222 CHAPTER XII. ORIGINAL JURISDICTION OP THE SUPREME COURT AT LAW AND IN EQUITY . 227 CHAPTER XIII. JURISDICTION ON WRITS OF ERROR AND APPEAL ...... 239 CHAPTER XIV. PRACTICE AND PROCEDURE ON WRITS OF ERROR AND APPEAL .... 272 CHAPTER XV. WRITS OF PROHIBITION • 293 VI CONTENTS. CHAPTER XVI. PAGE WRITS OF MANDAMUS 298 CHAPTER XVII. WRITS OF HABEAS CORPUS .......... 304 CHAPTER XVIII. COURT OF CLAIMS — JURISDICTION, PLEADING, PRACTICE AND PROCEDURE . . 314 CHAPTER XIX. COMMISSIONERS OF THE CIRCUIT COURTS 385 CHAPTER XX. PROCEDURE IN CRIMINAL CASES 415 CHAPTER XXI. PROVISIONS OF THE REVISED STATUTES COMMON TO MORE THAN ONE COURT . 425 CHAPTER XXII. PROVISIONS OF THE REVISED STATUTES RELATING TO JURIES, ETC. . . . 448 CHAPTER XXIII. FEES AND COSTS . . .- 456 CHAPTER XXIV. PROVISIONS OF THE REVISED STATUTES RELATING TO EVIDENCE . . . 475 CHAPTER XXV. PROVISIONS OF THE REVISED STATUTES REGULATING PROCEDURE . . . 504 CHAPTER XXVI. PROVISIONS OF THE REVISED STATUTES ON LIMITATIONS 526 RULES. General Rules of the Supreme Court 529 Rules in Equity 546 Rules in Admiralty ........... 575 Rules for the Court of Claims . . . . ... . .' . 593 CLASSIFICATION OF FORMS. Forms of Caption and Title of Causes in Suits at Law and in Equity 611 Forms in Suits at Law 613 Forms in Equity 625 Forms in Admiralty 704 Forms for the Removal of Causes 764 Forms in Criminal Cases 775 Forms in Proceedings before Commissioners 785 Forms for the Supreme Court .......'.. 801 Forms for the Court of Claims . 845 TABLE OF CASES. Abby, The . PAGE 82 Atocha V. United States PAGE 344 Ablemau v. Booth 55, 149 Ault V. Zeheriug . 494 About 18,000 Gals. Dist. Sp r. 83 Aurora, The 60, 62 Abraucher v. Schell 156 Austin V. Miller . 432 Adaline, The 70 Avery, The . 2^ , 90 Adams v. Board of Com. 112 Ayers v. Carver . 248 V. Jones . 171 V. Law 428 Bacon v. Howard , 498 V. Lesher . 494 Bagley v. Yates . , 435 V. Woods . 528 Bagnel v. Broderick , 270 V. Wray . 494 Baker v. Peterson , 155 iEgo, The . Akerly v. Vilas 203 167 Ballenger v. Mackay Bangel v. Brodrich 213 270 Aldrich v. Etna Ins. Co. 269 Bank v. Dalton 498 Alecta, The . 295 V. Deveaux . 135 136 Alice Tainer, The 17 8, 186 V. Green 172 Alicia, The . 7, 246 V. Halstead . 183, 427 429 Alire d.. United States . 341 V. Hoof 245 Allen V. Allen 215 V. Labilut . 180 V. Blunt . . 140, 18 2, 478 V. McVeigh . . 265 V. Massey . V. McKay . V. Newberry V. Robinson 11 431 93 67 0, 148 V. Wheeler . of Bethel v. Pahquioque of Kentucky v. Wister of United States v. Danie 1 '. 497 143 230 242 V. Thaxter . 494 V. Deveaux 136 V. United States . 345 V. Moss 112 Almeida, The 66 V. Planters' Alston V. Manning Amelia, The 449 64 V. Bank . Ritchie . 230 220 American Ins. Co. v. Canton 449 V. Smith . 286 Ames V. Smith 182 V. Swan 277 Amiable Nancy, The . 80 V. White 111, Amory v. Amory . 15 7, 497 184, 18C , 199, 221 238 Andrews v. Wall . 60 of West Tennes see V. Citi- Anna, The . 3 5, 466 zens' Bank 266 Anne, The 66 Baker v. Jackson . . 431 Appling V. Bailey 300 Banks v. Carrolton R. 205 Arapahoe Co. v. Kan. Pac. R. Co 116, Barber v. Barber . 111 157 V. Root , 500 Arcy V. Ketchum . 499 Barlow v. Steel 496 Arlington v. Van Huton 300 Barnard v. Fowler , 497 Armstrong's Foundry . 8 1, 139 Barnes v. United State s 476 Armstrong v. Brown 481 V. Williams , 260 286 V. Carson . 500 Barnet v. Day 407, 478 V. Treasurer 266 Barney v. Baltimore C ity 116, 132, 205, Arndt v. Arndt 499 208 Arthurs v. Hart . 244 V. Globe Bank 110 133 Atherton v. Fowler 268 Barns, In re 305 Atkyns v. Buitows 58 Barrett v. Failing. 497 Atlantic and Ogdensburgh, The 68 Barron v. City of Baltimore 125, 264 Atlee V. Potier 155. Barrow v. Hunton , 149 Vlll TABLE OF CASES. PAGE PAGE Barrow v. Steele . 495 Blossom V. Railroad Co. 251 Barry v. Mercein . lie , 243 Bogert V. United States 341, 343, 349 Bartemcyer v. Iowa 264 Bollman, Ex parte 125 Barth v. McKeever 121, 183 1 Bonaparte v. Camden & N R. Co*. 124 Bartlett v. Crittenden . 141 Bond V. Brown 360 Bas V. Steele , 434 V. United States . 347 Bassett t^. United States 170 Bonnafee v. Williams 119, 120 121, 136 Bates V. Lyon , 500 Bonnafon v. United States 345 Batesville Inst. v. Kauffman 132 Bonner v. United States 31*4, 339 Bath County v. Amy . 175, 301 1 Bonyson v. Miller . 73 Battin v. Tagget . 14 2, 426 Boon V. Chiles . 194 Batting, Ex parte . 299 Borgandus v. Trinity Church 238 Bayden v. Burke . 489 Boston, The 70, 83 Bayerque v. Coben 235 Bottomley v. United States . 463 Beale v. Berryman 500 Boudereau v. Montgomery 481 Beardsley v. Little 180 Bourcicault v. Fox 14*1, 426 Bechtel v. United States 487 V. Hart 141, 426 Beckwith v. Easton 458 Bowen v. United States 80 Beebe v. Russell . 24 7, 248 Bowie V. Talbut . 404, 407 Beebes, Ex parte . 43 5. 481 Boyce v. Grundy . 433 Beecher v. Gillett 11 0, 148 V. Tabb 432 Beers v. Haughton 70, £ 6, 18 O', 427 Boyd V. Alabama . 431 Belfast, The 58, 59, 66 Boyle V. Zacherie 182, 227 229 239 Bell V. Davidson . 214 Brackett v. The Hercules 65, 91 V. Morrison . . 4( )5, 40 6,431 V. People . 496 Bellows V. Bank . 286 Bradford v. Jenks 135 Belton V. Fisher . 496 Bradley v. Reed . 429 Benchley v. Gilbert 164 V. Rhines 134 Benner v. Porter . 449 V. United States 340 Bennett v. Bennett 496 Bradstreet, Ex parte 244, 300 301 304 V. Boggs . 114 Bragg V. Lorio 27 V. Butterworth 112 Branches v. Schell, 164 Bentley v. Phelps 220 Brashear v. West . 431 Bently v. Sevier . 427 Breadlove v. Nicolet 124 Bernard v. Gibson 24 9, 250 Breithaupt v. Bank 124 Berry v. Mercein . 281 Brig Aldebaran, The 86 Bertonneau v. Directors 149 Brig Blohm, The . 65 Bethel v. Damaret 268 Brig Caroline, The 82 Bevans v. United States 285 Brig Nestor, The . 60 Bible Society v. Grove 1. )5, 15 7, 158 Briggs V. Johnson Co. 300 Bicknell v. Field . 49 7, 498 V. Campbell 500 Biddle, Ex parte . 110 Ex parte . 298 Bill V. Davidson . 480 Bright V. White . 495 V. Morrison . 40 3, 478 Briscoe v. Bank . 118 136 Bingham v. Cabot 11 7, 137 Bristol, The . 94 V. Luddington . 44 1, 442 British Prisoners, The 411 V. Wilkins 74, 80, 90 Britton v. Butler . 528 Binghamton Bridge 265 Brobst V. Brobst . 171 Bird of Paradise, The . 59 Brockett v. Brockett 248 Bishop V. United States . 349 Bronde v. Haven . 65 Bissel V. Edwards . 495 Bronson v. Keokuk 442 Bissill V. Briggs . . 499 V. Kinzie 189 Blackwell, The . 63 V. La Cross & \L R.'Co. . 215 Blair v. Allen . 170 V. Railroad Co 250 Blauchard v. Sprague . . 142 Brooks V. Byam . 211 456 Blanche Page, The 79 V. Hunt 239 Blease v. Garlington . 175 V. Norris . . 251 Blitz V. Columbia Nat. Bank £ 7, 425 Broughtour v. United S ta.les 340, 341 Block V. United States . . 34 7, 481 Brown v. Aspden . 290 Blodget V. Jordan . 495 V. Atwell, . 266 TABLE OF CASES. IX PAGE Bro'tt'n V. Brown . . . .119 V. Chesapeake & 0. Canal Co 179 V. Edson . . . 495, 501 V. Johnson . . . 496 V. Keene . . .117, 137 V. Lull .... 65 V. Pierce . . . .211 V. Piatt . . . .404 V. Pond . . . .176 V. Shannon 142, 158, 245, 426 V. Strode . . . .118 V. Tarkington . . .481 V. The Independence . 490 V. United States . 314, 340 V. Union Bank . . 249, 250 Browne?;. Browne . . .119 Bruce v. United States . . 487 Bryan v. Bates .... 267 V. United States . . 343 Buchanan v. Post . . . 500 Buckley v. United States . . 503 Buford V. Buford .... 497 Bullock V. Wallingford . . 489 Burdett v. Abbott . . .309 Burdick v. Hale, .... 155 Burdwick v. Hale . . .16, 156 Burleigh Rock Drill Co. v. Lobdel 142 Burlen v. Shannon . . . 500 Burnett v. Butterworth . . 285 Burnley v. Stevenson , . . 497 Burr V. Des Moines Co. . . 260 V. Durgee . . . 142, 426 V. Gratz . . . .239 V. Gregory . . . 141, 426 Bushnell v. Kennedy . . . 133 Bussard v. Catabino . . . 405 Butler V. Young .... 175 Butner v. Miller . . . 164, 167 Butterfield v. Usher . 247, 249, 251 Cacullu V. Emerling Cadle V. Tracy Caldwell v. Jackson V. Target Camanche, The Cambuston v. United States Cameron v. McRoberts Campbell, In re . V. Boyreau . V. Read V. The Uncle Sam V. United States Canadian Prisoners' case Cannon v. New Orleans Canton v. American Ins. Co Caperton v. Bowyer Cappell V. Hall Carey v. Curtis Carleton v. Bickford . 260 . 143 . 274 . 205 63 . 248 117, 132 . 475 . 169 . 262 71 . 341 . 309 . 266 259, 457 . 265 . 82 . 113 . 498 PAOE 495, 501 132, 204 215 11 Carlisle v. Tuttle . Carneal v. Banks . Carnocan v. Christie Caroline, The Carpenter v. Providence Ins. Co. V. United States V. Williams . Carraher v. Brennan . Carrington v. Bents V. Florida R. Co V. Pratt V. Stimpson Carter v. Bennett . Case V. McGee Case of Runaways Sewiug Machine Co Cassidy v. Leetch Centurion, The Certain Logs of Mahogany Chadwick v. United States Chaires v. United States Chamberlain v. Chandler V. Eckford Chappedelaine v. Dechenaux Charles Mears, The Charter Oak v. Star Ins. Co Cheen v. Gray Cheever v. Wilson Chemung Can. Bank v. Lowrey Cherokee Nation v. Georgia 230 Cheshire, The Chicago V. Sheldon Chiles, In re Chisholm v. Georgia . Chittenden v. Darden . Christian v. United States Christmas v. Russell 117, 120, 137, 498, 499 Christy, In re . . . 295, 296 Church V. Crossman . . . 499 V. Hubert . . . 490 V. Stack . . . .300 Chusan, The ... 59, 61 Circassian, The Steamship . 60, 463 City V. Lamson .... 432 City Nat. Bank v. Paducah City of Lexington v. Butler Norwich, The . Phila. V. The Collector Washington, The Clare v. Nat. Cit. Bank Clark's Ex. v. Van Reimsdyk Clark V. City of Janesville V. Depew V. Hackett . V. Mathews V. Mathewson V. Pratt V. Reyburn . V. Smith 78 201 342 270 157 191 166 61 404, 478 496 495 464 114 498 62 72 485 287 69 135 124 62 0, 148 498 500 179 235 76 432 436 4, 5 182 352 181 13 143 136 94 164 463 457 101 135 494, 495 278 209 120 500 205 110 TABLE OF CASES. Clark t'. White Clearwater v. Meredith Clement, The Cleveland, etc., R. Co. v. Clic-quot's Champagne . Cliftou V. Sheldon I'. United States Climents v. Moone Clinton v. Englebricht . Coal Co. I'. Blatchford 131, 114 Coates I'. Muse Cochrane v. Duner Cockroft V. Vose . Coddington v. Richardson Coffee V. Hayward V. Planters' Bank Coffie V. Neely Coffin V. Jenkins . Cohens v. Virginia 113, 11 PAGE 201 440 72 236 503 2, 245 503 204 449 118, 119, 134, 151 . 431 . 142 266, 268 260, 270 . 128 . 135 . 494 84 149, 234, 264, 270, 285 132, 205, 441 Coiron v. Millandoa Coleman v. Martin . . .212 V. Waters . . . 495 Collie V. United States . . 428 CoUum V. Eager .... 248 Colson jj. Lewis . . . - . 123 Colt V. Milliken . . . .494 Commercial Bank v. Slocumb 114, 135 Commissioners v. Aspinwall . 302 V. Philadelphia . 300 Commonwealth v. Denison . . 298 V. Feely . . 425 V. Green . . 496 Bank v. Griffith . 269 Sav. Bk. V. Corbett 156 Condit V. Blackwell Cone V. Hooper Confiscation Cases, The Connolly v. Taylor Connor v. Scott . V. Peugh . Conway, Ex parte Cook V. Burnley . V. Ford V. Moffatt V. United States . Cooke V. Woodrow Coons V. Gallagher Cooper V. Galbreth V. Gordon . Copeland v. Memphis & Ch ton R. Co. Copelin v. Ins. Co. Corbet v. Gibson . V. United States Corbin v. Van Buent . Corfield v. Coryell Cornell v. Williams Cornet v. Williams 117, 110, 240, 240, 24 arles- 170, 501 498 27 121 156 243 300 405 158 113 347 244 269 115 131 122 260 180 349 152 496 403 475 Corning v. Troy Iron, etc. Fac. Cornwell i'. White Water, etc. R Co Cotton V. United States Course v. Stedman Cousin V. Blane . Covington, etc., Co. v. She Cox V. Co.K . Crafts 0. Clark Craig V. Brown Craighead v. Wilson Craigie v McArthur Craine v. McCoy . Crane, Ex parte . Crawford v. Addison . V. Points V. The Wm. Penn V. White Crenshaw, Ex parte Cropper v. Coburn Crosby v. Buchanan Cross V. De Valle . Crouch V. Collins . Crowell V. Gallagher . V. Hopkinton . V. Randall Crussell v. United States Cucuta V. Emerling Culbertson v. Wabash N. Co Cummings v. The Akron C. Co Cunningham v. Olis Curtis V. The Cent. R. Co Cutler V. Rae PAGE 248 121 56 244 266 herd 121, 135, 138 . 500 . 496 494, 495, 496 . 247 . 157 . 433 300, 301 . 299 . 247 62, 72 . 497 287, 289 . 433 & P. 247 215 293 269 485 266 348 260 122 47 481 480 284 Cutting, Ex parte Dailey v. United States Daily v. Doe Daniel v. Twentyman Daniels v. Railroad Co. V. United States Dart V. McKinley . Davenport v. Dows V. Fletcher David Pratt, The Taylor, Ex parte V. Porter . Davis, The . Ex parte V. Braden . V. Child V. Couch V. Grey V. Headley . V. Packard V. Smith Davison v. Johnson Day V. Cbism V. Hayward . 247, 250, 299 . 340 . 58 . 124 253, 254 . 171 . 155 279, 280 . 257 86, 87 . 299 . 500 63 . 309 1, 172, 254 58, 60 268, 289 14, 116, 489 497 98 497 238 286 142 TABLE OF CASES. XI Day V. Newark Man. Co. 128, V. Washburn . V. Woodward De Arcy v. Kotcliun:i De Celis ik United Stales De Greet, Ex parte V. United States De Kraft v. Barney De Sobey v. Nicholson . De Wolf V. Rabaud Dean v. Chajjin V. Mason Dedekam v. Vose . Deitsch v. Wiggins Deneal v. Archer . Deneale v. Stump Deuham v. Railway Co. Dennis v. Eddy V. United States Dennistouii v. Stewart 170, V. Draper . 110, Derry v. Hersey Deshler v. Dodge . Devereux v. Marr . Devlin v. United States Dexter v. Arnold . Dickersou v. Grissom . Diggs V. Walcott . Dimick v. Brooks Dirst V. Morris Ditson V. Ditson . Dixon V. Field Dock Bridges, Ex parte Dodge t>. Israel . . 214, V. Wolsey 111, 113, 144, Doe V. Doe . V. Eslava Doherty v. United States Doig, In re . Dollman v. Insurance Co. Donnell v. The Starlight Dooley v. Smith . Doremas v. Bennett Dorr, Ex parte Dorsey v. Maury . Dorsheimer v. United States Doswell i>. De Lanza . Doughty V. Doughty Douglas V. Pike . Douro, The . ... Dow V. Johnson . Dowell V. Griswold Downham v. Alexandria Draggoo v. Graham Drawbridge Co.- v. Shepherd Dred Scott v. Sanford 113, Drew V. Judges Dromgoole v. Farmers' & M. Drummond v. Magruder PAGE 143 182 246 426 498 340, 342 299 291, 344 113, 243 237 117 494 259 456, 457 272, 275 241 257 194 456, 472 339 171 254 148 167 457 133, 135 172 . 343 219 501 430 501 169, 260 500 300 425 215 481 405 433 495 269 340 310 267 78 269 114, 440 305 494 340 239 500 432 289 255 149 266 494 494 115, 118, 137, 140 300 134 501 PAGE Dubourg V. United States 216 Dugan, Ex parte . 278 Dun t). Clark . 119, 120, 121, 209 Dunbar v. Hallowell 498 Duncan v. Durst . 185 V. Grigan 166 V. United States 178, 186 Duncommon v. Hysinger 496 Dunkle v. Worcester 407 Dupont V. Vance . 70 Duponti V. Massy . 203 Durant v. Washington Co , 33 Dureusseau v. United States 306 Duval V. Fearson . 500 Duygan v. United States 56 Dwight V. Humphrey . 195 V. Merritt . 176, 179 227 Eads V. The H. D. Bacon 63 Eager v. Stover . 498 Eagle, The . . 67, 69, 93 Earley v. Rogers . 239 240 East Boston Ferry Co. v. Boston . 300 Eastern Star, The . 65 Easton, Ex parte . 293, 296 297 V. Hodges 176 180 Eaton V. Hasty , 501 Eberley v. Moore . llV 137 Eddy, The . 59 Edmonds v. Montgomery 498 Edmonson v. Bloomshire 275 Edwards v. Bond . 471 V. Elliott 58, 59 266 Elastic Fabric Co. v. Smith . 247 Eleanor Higgins, In re 472 Elly Warley, The . 76 Elmonderf v. Taylor 431 Ely V. Northern P. R. Co. 159 V. Peck . 57 425 Emerson v. Davis . 220 Emily, The . . 140 English V. Foxall . 194 Erb V. Scott 496 Estella, The 80 Evans v. Eaton 403, 478 V. Gee 135 V. Hettick . 478, 481 V. Pack , 430 Ewer V. Coffin . 498 Ewing V. Blight . 198 Express Co. v. Kounts Brothers . 137 Fairfield v. Gallatin 431 Farey, In re . 410 Farlow v. Lea 119 Farmers' Co. v. Central R Co. 160 Farrar v. United States 123 Featherman v. Louisa St. Sem 180 Fellows V. Hall 193, 200 Feltus V. Starke . . . 499 Xll TABLE OF CASES. 227 Fcneniore v. United States Ferguson v. O'llarra Ferrell i'. Allison Ferrens, In re Feuscher, Ex pane Louis Fidelity, The Field V. Holland . V. Lownsdale V. Milton V. Saunderson Filer V. United States . Filpin, Ex parte . Findlaj v. Bank . First National Bank of Omah County of Douglas . First National Bunk v. Kidd Fish V. Union P. R. Co. 159, Fisher v. Consequa Fitch V. McDiarmid Flanders v. Tweed Fleitas v. Cockreni Fletcher v. Morey V. United States Fleeker v. United States Florida v. Georgia V. Gibbs . Flourenoy v. Duke Floyd Acceptances Folger V. Insurance Co. Foot V. Link Forbes v. Parsons Ford V. Surget Forgaj^ V. Conrad Forsyth v. United States Fortitude, The Foster v. Glazner V. Goddard Fourth Nat. Bank v. Neyhardt Fouvergne v. Bryant V. New Orleans Fowle V. Alexandria Fowler v. Lindsey V. Miller . Fox V. Ohio Francois Farez, In re . Frazier, In re Free Trader, The Freeman v. Howe French, Ex parte V. Hay V. Shoemaker . Frewall v. Bache Friendship, The . Fritch V. Creighton Fuller V. Clafiin , FuUerton v. Bank V. United States Fulson V. Marsh . Fulton, The PAGE 428 200 429 305 424 75 101, 216 151, 168 . 428 . 497 . 349 299, 302 . 131 1 V. . 143 . 495 167, 168, 429, 430 . 177 . 300 . 260 169, 260 . Ill . 344 . 347 228, 235 . 301 . 494 . 122 . 499 . 234 68 . 265 , 250, 251 . 262 62 . . 500 . 219 . 180 . 148 . 109 . 286 230, 428 . 231 125, 264 310, 411 310 463 121 302 430 7, 428 481 64 110 247 179 178 142 78 206, 24 th 11 Fulton V. Gilmore V. McAffee Furman v. Nichol Gaines v. Chew . V. Fuentes . 11 V. Relf V. Traverse Gale V. Babcock . Gallagher v. Roberts Galpin v. Page Galvin v. Boutwell Gammel v. Skinner Garden City Man. Co. v. Smi Gardner v. Isaacson V. Sharp . Garland, Ex parte V. Davis Garneau v. Dozier Garrett v. Woodward Garrison v. Memphis Ins. Co. Gass V. Stinson Gassies v. Ballon . Gates V. Johnson . Gay V. Lloyd Gaylords v. Kelshaw Gazelle, The Gearing v. United States Gelpcke v. Dubuque General Smith, The . . 58 Genesee Chief, The . . 66 Georgia, The V. Brailsford V. Grant V. Madrazzo V. O'Grady V. Stanton Gerardy v. Moore . Germain v. Mason Gernon v. Boecaling Gettings v. Crawford Geyger v. Geyger Giacomo, In re Gibbons v. Ogden V. United States Gibson v. Chauteau V. Chew . V. Hunter . Gibbs V. Uslier, Giesler, Ex parte . Oilman v. Oilman V. Illinois, etc., R. Co. 1 V. Lewis . Givin V. Breedlove Glass V. Sloop Betsey Gleason v. Florida Glenn v. United States Goddard v. Ordway Gold W. & W. Co. V. Keye Golden v. Prince . P.tGE . 402 . 270 . 265 . 196 0, 113, 148 . Ill 74, 79, 186 . 116 . 238 . 495 . 167 84, 87 . 166 . 74 . 115 139, 303 285, 286 271 404 433 218 137 70 494 235 57 347 432 59, 60 67, 93 96 230 232 230 455 234, 235 152 241 429 98 434 411 248 9, 340 265 135 286 110, 148 310 499 0, 260 499 179 80 264 352 429 149 431 346, TABLE OF CASES. ZIU Cxoldsmith, The . Good V. Martin Goodrich, In re . . . 27, V. Chicago Goodwin v. Goodwin Goodyear v. Bourn . . 191, 198 V. Day . V. Folsom V. Osgood V. Providence Rub. Co V. Union Rub. Co Goodvear's Adms. v. Toby . 1 112, 242, Ohio 100, 122, 128, 177, 260, 494 253, 339, Gordon, Ex parte V. Caldcleugh V. Hobart V. Longest V. Ogden Gorman v. Lenox Governor of Ky. v. Gov. of Grace Gridler, The Gracie v. Palmer Graham, Ex parte V. Bayne V. Norton V. Stucken Gran Para, The . Grand Chute v. Winegar Grand Gulf R. Co. v. Marshall Grant v. Hamilton V. Henry Clay Coal C V. Poillon . V. Raymond t'. United States . Grapeshot, The Gratiot v. United States Gray v. Blanchard V. Chicago, etc., R. Co V. Railroad Graydon v. Sweet Grayson v. Virginia . . 228 Green v. Bishop V. Sarmiento . 494, 496, V. Taylor V. United States . 113, V. Van Buskirk . . 428, Gregg V. The Clarissa Ann Gregory v. McVeigh . . 266, Grier v. Gregg Griffing v. Gibb Gruner v. United States . 246, Guild V. Frontin . . . 169. Gupp V. Brown Gustine v. Ringgold Guttapercha Co. v. Goodyear Gwin V. Barton V. Breedlove Hackett v. Bonnell Hadley v. San Francisco 141, 1, 293, PAGE 91 475 460 431 494 1 141 430 457 142, 426 426 198 296 269 433 157 244 240 303 245 191 296 286 301 429 89 433 266 110 501 58 254 343 62 487 242 186 430 528 232 219 499 475 475 499 64 267 211 234 251 244 481 479 142 29 29 496 155 Co. 249 266 218, Hagan v. Walker Haile v. Hill Hale V. Wash. Ins Hall V. Allen V. Gaines V. Jordan V. Laming V. United States Halstead v. Lyon Hamilton Co. v. Massachusetts Hammond v. The Essex Fire Ins. Co Hampton v. McConnell V. Rouse Hanger v. Abbott Hankin v. Squires Hanley v. Sharp . . . . Hannaur v. Woodruff . Hanrick v. Barton Hanson v. Fowle Happet and Cargo, The Hardeman v. Harris Harding V. Handy 132,21 Harness v. Green Harpending v. Reformed Dutch Church . . . . . Harper v. The New Brig Harris v. Barnett V. Wall Harrison v. Hadley V. Harrison V. Nixon V. Rowan Hartshorn v. Day V. Wright Hartzel v. Tilghman Harvey v. Mid. R. Co. . V United States Harvey's case Hatch V. Chicago, etc V. Dorr V. The Boston Hatcher v. Rochelau Hauze v. Hauze Havermeyer v. Iowa Co. Havre, The . Hawthorn v. Shepherd Hayford v. GriflBth Haynes v. Cowen Healy v. Root Heath v. Austin PASE 131 495 68 250 268 289 499 346 136 265 65 500 240 146 180 425 255 489 69 78 211 , 2:!4 496 . 494 91 . 489 . 403, 478 . 118, 136 . 500 193, 230, 231, 234 . 127 . 141, 426 . 112 . 141, 170, 426 . 116, 157 341, 344, 345 . 338 Co. 166 R. 167 120 528 496 495 432 83 501 458 496 495 167, 168 V. Erie R. Co. . . 199, 237 Heathfield v. United States . . 343 Heavey v. 111. Mid. R. Co. . .118 Heinrich, In re . . 310, 410, 411 Helbron, In re . . . . 310 Heminway v. Fisher . . . 285 Henderson v. Grigin . . . 431 V. Moore . . .239 i;. Steinford . 497, 499 X17 TABLE OF CASES. PAGE PAGE Henderson v. Tennessee . 268 Hussey v. Bradley 456 Henderson's Distilled Spirits 8 2, 170 Huston V. Dunn . 499 Hennessy v. Sheldon . . 289 V. Moore . 125 Henry v. United States 348 Hutchins i'. Gerrish 496 Hensley v. Force . 500 Hutchinson v. Patrick . 501 Hepburn v. Ellzey 116 Hyde v. Boorman . 260 Herman v. Herman 210 V. Ruble 152 Herndon v. Ridgeway . 189 Hewit V. Phelps . 152 lasigi V. Brown 434 Hibernia, The 463 Illinois, The 186 Higbee v. Hopkins 201 Inbusch V. Farwell 131, 440 Hill V. Mendeuhall 499, 500 India Rubber Co. v. Phelps 211 Hine, The . . . 58, 67, 78, 93 Indianapolis, etc., R. Co. o. Horst 180 Hinley v. Rose 289 & St. L. R. Co . V. Hiriat v. Ballou . 179, 248 Horst . 175 Hobart v. Drogan . 57 Inerarity v. Byrne 273, 428 Hobson V. McArthur 194 Ingle V. Coolidge . 261 Hodge V. Williams 257 V. Jones , 214 Hodges V. Vaugh 428 Insurance Co. v. Adams 191 Hoffman v. Hoffman 500 V. Boykin 283 Hogan V. Ross 429 V. Comstock 240, 300 Hoge V. Railway Co. 279 V. Dunham 255 V. Williams 257 V. Dunn .55 157 167 Holcomb V. McKusick . 239 V. Folson 260 Holliday v. Boston 257 V. Francis 138 Hollingsworth v. Adams 177 V. Hendren 267 Holmes v. Trout . 197, 428 V. Pechner 156 Home Ins. Co. v. City Council 266 V. Piaggio 285 V. Mullen . 208 V. Ritchie 113, 138 Hood V. Hood 500 V. Tweed 170, 260 Hook V. Payne 206 V. United States 139 Horn V. Lockhart 117, 121 132, 268 Irons V. Manufacturers' Bank 143 144 Horner v. Spilman 295 Irvine v. Lowry , 134 Hornet, The 83 Isabella, The 57 Hornthall v. The Collector . 117, 137 Island City, The . . 65 Horton v. Critchfield 498 Hotel Co. V. Wade 119 Jackson v. Ashton 235, 289 Hough V. Railway 432 V. Rose . 57, 425 Howe V. Freeman 182, 183 V. Simonton . 29 Howe Machine Co. w Edwards 179, 180 V. Steamboat Magnolia . 92 Howell V. United States 352 V. Twentyman 137 Hoxie V. Carr 205 Jacques v. Collins 433, 434 Hoyt V. Hammakin 481, 487 Jacquette v. Hugunon . 500 Hubbard v. Northern R. Co. 113, 136 James v. Jenkins . 177 Huber v. Reiley . 425 Jameson v. Willis 404 Hudnal v. United States 347 Jansen v. The Magdalena 57 Hudson V. Dailey . 500 Jardine v. Richert 498 Huger V. South Carolina 228 Jecker v. Montgomery . 82 236, 256 Hughes V. Blake . 201 Jefferson Bank v. Skelly . 113 V. Davis . 500 Jenkins v. Banning , 289 V. United States 238 V. Carson ro, 78, 80 Humiston v. Stanthorp 250 V. Eldridge . 210, 218, 220 Humphreys, Ex parte . 408 V. United States 348 Hungerford v. Sigerson 433 Jennison v. Leonard 170, 260 Hunt V. Hunt 500 Jones V. Andrews . 120, 192 V. Louis . . . 200 V. Hayes 494 Hunter v. Marlbro' 220 V. League . 236 Huntingdon v. Texas . 268 V. McMasters 124 Hurst V. McNeill 405 V. Morehead 259 V. W. & N. R. Co. 158 V. Ocean Steam Nav. Co 160 TABLE OF CASES. XY Jones V. Oregon Cent. R. Co V. Schell . V. Spencer . V. United States V. Van Zant V. Warner . Jerusalem, The Jesse Hoyt, Ex parte Jetter v. Hewitt . Jewett V. Hone John and Alice, The John Griffin, The . Johnson v. Dobbins V. Donaldson V. Healey V. Jamel . V. The Coriolanus V. United States Jordan, Ex parte . Jose Ferreirados, In re Joseph Bradley, Ex parte Joseph Stupp, In re Joy V. Wirtz Judson, Ex parte . In re V. Macon Co. Juneau Bank v. McSpedden PAGE 481 458 499 345 253 498 62 302 431 432 62 503 497 476 176, 179 165 490 308, 342 246 411 299 310, 411 205, 208 408 405 112 129 Kaeiser v. III. Cent. R. Co. . .156 Kain v. Texas P. R. Co. . . 159 Kaine, Ex parte . . 307, 309, 310 In re ... 410, 411 Kanouse v. Martin . . 112, 167 Kean v. Rice .... 494 Kearney, Ex parte . . 306, 308 Keary v. Farmers' Bank . . 134 Keene v. Meade . . . .481 V. United States . . 80 Kellum V. Emerson ... 58 Kelsey v. Forsyth . . . 244 V. Pennsylvania R. Co. 122, 137 Kendigw. Dean . . 232, 208, 441 Kennebeck Railroad v. Portland Railroad ..... 266 Kennedy w. Bank 170,172,191,210, 254 V. Gibson . . . 143 Kentucky v. Dennison ... 7 Kerr v. Kerr 498 V. Watts . . . .206 Ketchum v. Farmers', etc., Co. . 114 Ketland v. Bissett . . . 214 Ketridge w. Race . . . .211 Key V. Vaughn .... 501 Kidd V. Manley .... 501 Kilburn v. State Sav. Inst. . . 289 Killam v. Toms ..... 496 Kimbal v. Merrick . . . 499 V. Mobile . . . 431, 433 King V. Dale . . . .501 King V. United States V. Wilson V. Worthington Kingman v. Cowles Kingsbury v. Yniestra Kinney, Ex parte . Kinnier v. Kinnier Kirkman v. Hamilton V. Hendrick Kirtland ?>. Hotchkiss Kitchen v. Woodfin Klinger v. Missouri Knapp V. Banks . Knode v. Williamson Knote V. United States Knowles v. Gas L. Co. Knox V. Summers Kohl V. United States Koning v. Bayard Kramme v. The New England Kuhn V. McMillen Kynoch v. Ives Lackland v. Pritchett . Lady Horatio, The Lafayette Ins. Co. v. French Lamb v. Briard Landsberg, In re . Langdon Cheeves, The Lange v. Benedict Ex parte 343, 25 49 Langford v. United States L'Arina v. Brig Exchange Latham v. Almy . Latham's Appeal . Latimer v. Union Pac. R. Co Latteratt v. Cook . Lawrence v. Jarvis V. Pool . Laylor v. Kilgore . Leavenworth v. Barnes Leavy v. Seymour Lee, Ex parte V. Hamilton V. Lee . V. Rogers V. Watson Leeds v. Marine Ins. Co. Legal Tender Cases Legee v. Thomas . Leiper v. Bickley . Leland v. Wilkinson Lenox v. Front Leon V. Galcerean Lessee of Nelson v. Moon Lessieur v. Price . Levy V. Burley V. Fitzpatrick Levy Court v. Ringgold Lewis V. The Elizabeth and Jane PAGE 458 112 157 494 498 307 500 135 498 150 466 266 244 481 342, 343 . 498 191, 234 109, 110 183, 186 71 498 64 501 61 499 490 527, 528 64 265 165, 305, 309 178, 7, 344 65 426 292 494 500 238 496 431 311 460 495 245 432 242 201 269 208 404 1, 254 201 78 192 270 490 127, 128, 177, 182 34 65 113 11 17 XVI TABLE OF CASES. 299. Lewis V. Wilder . Life Ins. Co. v. Wilson Life & Fire Ins. Co. v. Adams Lilley v. United States Lincoln v. Tower . Lindsey v. United States Little V. Alison Littlefield v. Perry Liverjiool Ins. Co. v. Massachusett Livingston v. JeflPerson V. Moore V. Story Livingstone v. Dorgenois Lloyd V. Fulton . Locke V. United States Lockhart v. Horn . Logan V. Patrick . V. The Eolian Lombard v. Bayard Long V. Converse Lorin, Ex parte . Loring, Ex parte . Lorman v. Clark . Lorway v. Lousada Lotbop V. Blake . Lottawanna, The . Louis Feuscher, Ex parte Louisville R. Co. v. Setson Louisville, etc., R. Co. v. Gaines Lowe V. Lowe V. Williams . Lower v. United States Lucas V. Bank V. Brooks , Lucille, The Luckenbach v. Anderson Lucy, The Lulee, The . Luminary, The Luth V. Luth Luther v. Borden . Lyell V. Miller Lyon V. Lyon PAGE 500 301 300 344 498 349 496 142 138 111 114 111, 199, 237 300 431 503 528 120 66 183 268 299 299, 302 110 97 494 59, 99 424 135 432 498 155 300 499 475 250 497 244, 246, 251 58, 12 248 Macauley v. United States . Macdonnell, In re Macomber v. Clarke Magee v. Union Pac. R. Co. . Maggie Hammond, The . 59, Maguire v. Card . Main v. Second Nat. Bank of Chi- cago .... 143, 175, 179 Mallow V. Hinde . . 132, 204, 440 Malone v. United States . . 352 Mankin v. Chandler ... 73 Mann v. Richardson . . . 236 Manor v. McCall . . . .300 Manro v. Almeida . 70, 73, 88, 182 Manufacturers' Bank, In re . . 143 Manufacturing Co. v. Brack . 138 62 503 500 171 456 500 345 310 434 160 61, 82 67 Many, Ex parte Marbury v. Madison Marengo, The Margaret, The Marin v. Lalley Marine Ins. Co. v. Hodson Marion, The . Marqueze v. Bloom Marsh v. Bennett . 247, 209, Marshall w. Baltimore, etc., R. Co. V. Bazin V. Beverly V. Vicksburg Martin v. Criscuola V. Hunter Marx V. Fore Mary Anne, The Mason v. Gamble V. Haile V. Laurason V. Rollins . Massachusetts v. Rhode Massingill v. Downs Masterson v. Herndon Maston v. McRea . Matthews v. McStea V. Roberts Mattoon v. Clapp . Maudeville v. Riggs Mauldin v. Carroll Maxwell v. Newbold V. Stewart May, In re . V. Leclare Maye v. Carberry Mayhew v. Thatcher Mayor v. Rainwater McArthur v. Goddin V. Porter McCardle, Ex parte McCargo v. Chapman McClurg V. Kingsland McCoUough V. Sch. Fu McCollum V. Eager McComb V. Commissioners McCormic v. Deaver V. Sullivant McDearmid v. Fitch McDermott v. Clary McDonald v. Smalley McDonnell, In re . McElmoj'le v. Cohen McElrath v. United States McFarlan v. Harrington McFarland v. White McGarrahan v. Mining Co. McGinnis v. Pontiac McGinnithy v. White . McGlinchy v. United States . 176, 3, 116,425, 11 Island 182 499, 307, niture Co 410, 496, 527, PAGE 302 7,8 64 78 250 239 61 265 429 121, 135 75 205 198 179 495 498 82 258 182 494 137 232 183 240 405 266 236 496 206 129 266 500 435 433 434 499 300 497 286 311 239 142 155 247 268 495 117 300 498 137 411 498 350 494 496 489 62 112 528 TABLE OP CASES. XVll PAGE PAGE McGrath v. Candalero . 73 Mitzger, Ex parte 307 McGuire v. Commoawealth 266 Moffat V. Soley 133 Mclver v. Wattles 289 Molan V. Torrance 117, 121, 135, 287 McJilton V. Love . 497 Montalet v. Murray 124 McKeever v. United States 344 Montgomery v. Anderson 145, 247, 249 McKinlay v. Morrisli 71 V. Hernandez 30, 269, 270 McKinney v. Carroll 269 Moore v. Huntington 206 McKuight V. United States 345 V. Mississippi 266 McLaurens v. Monroe . 498 V. Nelson 404 McLean v. Lafayette Bank . 189, 196 V. Robbins . 250 V. Winchester 494 V. State of Illinois 125 In re 460 V. United Stales 341, 342, 348 McLure v. Bencene 496 Mordecai v. Lindsay 145 McMicken v. Perin 248 Morewood v. Enequist. 57 McMuUin v. State 300 Morgan v. Beloit . 433 McNiel V. Holbrook 494 V. Curtenius 278, 428 McNulty V. Batty . 262 V. Morgan 120 McNutt V. Bland . 118 V. Thomhill . 250 V. United States 292 Morrell v. United States 341 McVicker v. Beedy 499 Morris' Cotton 81, 139 Mead v. Thompson 250 Moses Taylor, The j7, 67, 93 Mechanics' Bank v. Setons 2 05, 208 ,481 Mossman v. Higginson 124 Medbury v. State . 269 Moulin V. Insurance Co. . 498 Medora, The 90 Moutin V. Insurance Co. 501 Meek v. Meek 498 Mowrey v. Ind. & C. R. C 0. . 429 Meister v. Moore . 431 Mrs. Alexander's Cotton 81 , 82 Melhop V. Doane , 499 M. R. Tel. Co. V. First Na t. Bank 57 Melvin v. Lyons . 495 Mudd V. Beauchamp 495 Mercer Co. v. Racket . 136 MuUer v. Dows 122 Merchants' & Mechanics' N. Bank Mumm V. Owens . 475 V. Wheeler 155 Munns v. Dupont . 481 Merill v. Dawson . 406, 481 Murdock v. City of Memphis 266, 269 V. Petty . .11 2, 246, 451 Murphy v. United States 352 Merino, The . 82, 140 Mussina v. Cavazos 240 Mesa V. United States . 276 Myra Clark Whitney, Ex parte . 299 Messenger v. Mason 266 Mewster D. Spaulding . 11 0, 194, 195 Nabor, Ex parte . 300 Meyer v. Del. R. C. Co. 155 Narragansett, The 68 Mezeix v. United States 348 Nathaniel Hoper, The 77 Michoud V. Girod 247, 251 National Bank v. Carpenter . 200 Middlesex Bank v. Butman 498 V. Colby 143 Middleworth v. McDowell 500 Nations v. Johnson 499 Miller v. Insurance Co. 260 Nazro v. Cragin . 180 189 V. Joseph . 267 Neale v. Neale 198 V. Nichols . 261 Nefif V. Pennoyer . 178 186 456 V. Pennington . 500 Neilson v. Layow . 123 270 V. State 279 Nelson v. Hill . 196 V. United States 86 V. Justices 301 Milligan, Ex parte 307, 308 V. Leland . 92 V. Millege 206 Nesmith v. Shelden 171 253, 254 Mills V. Brown 244, 269 Nestor, The . 61, 62 V. Dnryee 496, 500 Neustra, The 99 100, 256 Milne v. Van Buskirk . 499 Neversink, The 62 Milwaukee R. Co., Ex parte 299 New England, The 89 Mining Co. v. Bullion Minin gCo! 149 New Jersey v. New York 229 232, 233 Minnesota Co. v. St. Paul C 3. 120, 121 Steam Nav. C o.v. Mer- Mississippi v. Johnson . 232, 235 chants' Bank . 66 Missouri River Tel. Co. v. First New Orleans v. Gaines 219 Nat. Bank 425 V. Morris 183 Mitchell V. Burlington . 432 V. Winter . 116 xviii TABLE OF CASES. PAGE 69 429 268 180 84 New World, The, v. King New York v. Connecticut . 229 Life Ins. Co. v. Hindren Newcomb v. Wood Newell V. Norton .... Newman, Ex parte . . 299, 300 V. Goza . . . 496 Newton v. Mutual Benefit Life Ins. Co 496 Nicholas v. Nicholas . . . 500 Nichols V. Levy . . , .431 V. United States . 340, 342 V. White . . . .481 Nicholson Pav. Co. v. Mayor . 301 Nickols V. Brunswick . . . 472 Nonsuch, The . . . 244, 246 Norris «. Crocker . . .113 V. Jackson . . . 260 North Carolina v. Dewey . .116 Northern Ind. R. Co. v. Mich. Cent. R. Co 137, 441 Northern Railroad v. The People 265 Norton v. Rich .... 99 Norwich v. Wright . . 92, 93 Norwood V. Cobb . . . 498 Nourse v. Allen .... 196 Nudd V. Burrows . . ., 175,180 Oats V. National Bank . . . 432 Ober V. Gallagher . , . 130 O'Brien v. Brown . . . 120 V. Weld . . . .267 Ocean Ins. Co. v. Fields . 199, 234 Ocean Queen, The ... 96 O'Doud V. Russell . . .240 Oelrichs v. Spain . . . 433 Ogle V. Lee . . 141, 172, 254 O'Hara v. MacConnell . . .193 Ohio L. and F. Co. w. Debold . 114 and Miss. R. Co. v. Wheeler 121 Trust Co. V. Debolt . . 432 O'Keefe v. United States . . 348 Olcott V. Supervisors . . . 432 Oldens V. Hallett . . . 496 Oliver v. Alexander . . 295, 401 V. Pratt . . . 196, 218 Ordway v. Central Nat. Bank 57, 425 V. Conroe . . 494, 496 O'Riley v. Morse . . 142, 426 Orleans v. Pha-bus . . .431 Orne v. Townsend ... 70 Osborn t). Bank . . 113,116,132, 149, 230 V. Mich. A. L. R. Co. . 120 Osborne v. Mobile . . . 266 V. President, Directors, etc 201 V. United States . . 81 Osgood V. Chicago, etc., R. Co. 143, 167 V. Chicago, D. & V. R. Co. 156 Owing V. Hull PAGE . 494 Owings V. Kincannon . V. Norwood V. Speed . . 257 . 113, 270 . 269 ns. Co. 266, Paca V. Dutton .... 501 Pacific R. Co. V. Ketchum 116, 117, 133, 143, 247, 277 Packer D. Nixon . . . 172, 254 Packet Co. v. Clough Packet, The . Paine v. Schenectady I V. Wright . Palmer v. Call V. Marston Palte V. Derby Panama, The Parcels v. Johnson Parish v. Ellis Parker v. Bigler . V. Cartzler V. Hotchkiss V. Judges . V. Williams Parkhurst v. Kinsman Parkman v. Overman Parks, Ex parte . Parson v. Hunter . Parsons v. Howard V. Lyman Partington, Ex parte Paschal, In re Patapsco Guano Co 475 62 497 431 155 268 .' 426 91 . 249, 268 . 249 . 463 . 472 . 129 . 430 . 494 . 210 110, 137, 148 . 165, 308 . 528 . 441 . Ill . 309 . 436 Morrison . 431 Ins. Co. V. Southgate 403, 406, 407, 478 Patapsco, The . . .60, 61, 62 Patrick v. Gibbs .... 495 Patterson v. Boon Co. . . . 149 V. McLaughlin . . 429 V. State . . . . 497 V. United States . 349, 428 V. Winn . . . 178 Payne v. Hook . . . Ill, 142 Payton v. Bliss .... 164 V. Robertson . . . 112 Pearce v. Olney .... 497 Peaslee v. Haberstro . . . 227 Peck, Ex parte .... 408 I'. Sanderson . . . 265 Peet V. McGraw . . . .240 Pelton V. Platner . , , 494, 499 Pendleton v. Evans . . 192, 216 Penhallow v. Doan . . 80, 429 Penn v. Quicksilver Co. 138, 229, 230, 244, 349 Pennell v. Wyant .... 501 Pennoyer v. Neif .... 495 Pennsylvania v. Wheeling Br. Co. Ill, 185 Penywit v. Eaton . . . .289 TABLE OF CASES. ZIZ People V. Baker . V. Board of Police V. Darwell V. Easton . V. Green . V. Head V. Hilliard V. Judge, etc. . V. Loucks . V. Pearsons V. Smith . V. Supervisors . V. Thompson People's Ferry Co. v. Beers Pepin V. Lachenmejer . Pepper v. Dunlap . Perkins v. City of Watertown V. Hart V. United States Perrin v. United States Perry v. Corning . Perseverance, The Peters v. Prevost . Peterson v. United States Petigrew v. United States Pettibone v. Derringer , Peyton v. Howard V. Robertson Pharo V. Smith Phebe, The . Phelps V. Holker . Philadelphia, etc., R. Co. v. son Philadelphia v. The Collector Philip Henrich, In re . Phillip V. Nock Phillips V. Moone . Pickett V. Bates . Picquet v. Swan . 129, 1 Pierce v. West Pine Grove v. Talcott . Pioneer, The Piquignot v. Penn. R. Co. Pitcher v. United States Pitman, In re Pittilon V. Noble . Pittman v. Hooper Piatt's Appeal Pleasants, Ex parte Plitt, Ex parte Plummer v. Conn. Mut. Ins. Plymouth, The . Pollard, The V. Baldwin V. Dwight V. Pickett Pomeroy v. Main . V. N. Y. & N. H. R State Bank PAGE . 500 . 300 . 500 . 301 . 301 . 301 . 301 . 300 . 301 . 301 . 500 , . 301 j 300, 301 58 . 496 . 249 176, 179 . 172 527, Porcheller v. Bronson . Porter v. Foley V. Harris . Portland v. United States . Postmaster-General v. Cross V. Early Potter V. Gardner V. Muler V. Wilson . Poultney, Ex parte V. La Fayette 272, 528 339 194 64 479 286 259 407 66 244 84 463 499 221 138 248 258 259 495 181, 189 197, 212 . 432 Stim- 184, 79. 143. 85 124 342 435 152 65 600 435 460 433 69 . 475 . 498 117, 234 . 122 . 185 Co. . 143 178, 240 Co. Pond V. Vermont Valley R. Co. . 131 PASS 496 257 301 340 112 123 206, 207, 208 . 142 . 142 . 300 111, 184, 188, 201, 221 . 501 113, 243 . 496 . 289 . 115 116, 124 . 260 . 460 . 499 498, 500 Powell V. Knox Pratt V. Fitzhugh V. King Prentice v. Pickersgill . Prentiss v. Barton V. Brennan V. Zane . Prescott, The Price V. Hekok V. Ward Prigg V. Commonwealth V. Pennsylvania . Prime v. United States Propeller Commerce, The Protector, The . . 246, 251 Providence Bank v. Billings Provine v. United States Pryor v. Moore .... Public Schools v. Walker . Public Works v. Columbia Col. Pueblo Case, The Pugh V. United States . Pullian V. Christian Pulte V. Derby .... 270 125 352 92 , 257 150 349 498 290 496, 497 33 349 248 141 Railroad Co. Ex parte . 177, 246, V. Ailing . V. Clinton Co. . V. Harris . 116, V. Maryland V. McMinley 155, V. Kountz V. Pollard V. Swasey V. Whitton 57, V. Wiswell Railway Co., Ex parte V. Ramsey Raines v. United States Raleau v. Barnard Rambler, The Ramsey v. Allege V. United States Randall v. Phillips 128 156, 182, 189, 249, 302 . 302 . 301 121, 135 . 266 , 158, 167 . 157 . 475 . 248 110, 121, 135 240, 300 248, 303 166, 231, 244 349 124 84 60 341 201 XX TABLE OF CASES. PAGE PAQE Randolph , Ex parte 309, 487 Rodd V. Heartt 242, 245 V. Kesler 495 Rogers v. Burlington . 240 Rangley v. Webster . 498 V. Guinn . . 497 Ranson, Ex parte . , 303 V. Law . 252 Rapahoe Co. v. Kansas, etc., 118 Roman v. United States 345 Raymond v. United States , 528 Root V. Root 500 Read v. Consequa , 210 Rosenbach v. Dreyfuss . 179, 180 Reading i'. Cummlngs . . 300 Ross V. Carpenter . 198 Reber v. Wright . , 495, 498 V. Duval 182, 235 Rector v. Ashley . 265, 269, 270 V. Georgia 425 Reed, Ex parte 308 Rowland v. Jarvis , 497 V. House 183 Rowley v. Williams , 238 V. Hussey . . 73 Ruggles V. Simonton , . 430 Reg. V. Chichester 298 Rumbold v. Forteath . , 237 Reichart i'. Felps , , 270 Rush V. Parker 244 Reid V. Boyd , , 498 Russell V. Ashley 30 178 RelUy t'. Goldlng . 120 V. Clarke 132 Removal cases . 115, 147, 151, 155, V. Elliott . 301 156, 157 277 V. Kearney 495 Republic Ins. Co. v. Williams 175, V. McLean 178, 186 221 478 179 180 V. Thomas , 428 Revenue Cutter, The . 58 Russia, The . 463 Reynolds v. United States 449 Ryan v. Bindley . . 243 Rhoades v. Silin 214, 215, 406, 479, 481 Sackett v. Davis . 136 Rhode Island v. Massachusetts . 185, Sadler v. Hoover . 171 199 229 285 V. Hudson . 129, 182 Ribon V. Railroad Co. . 205 441 Sadley v. Hover . 253 Rice V. Huston 119 215 Sage V. Railroad . 247, 249 251 407 Richard Busteed, The . 59 V. Tanszky . 180 Richardson v. Golden . 214 480 Sail V. Cent. R. Co. , 246 Richmond v. Milwaukee 245 Saltmash v. Tuthill 429 etc., R. Co. V. Railroad Sampson v. Welch 244, 246, 251 Co. . , 267 Samuel, The 82, 96, 403, 407, 481 V. Smith 431 Samuel Strong, The . 59 Ricketts v. Henderson . , 499 San Jago, The , 140 Riggs V. Johnson Co. . 183 , 301 Sandwich, The 62 Rio Grande, The . 428 Sanford v. Portsmouth 3 175 Rison V. Cribbs , 113 V. United States 339 Ritchie v. Manro . . 243 Sarah, The . .80 81, 139, 296 Roach V. Chapman 58 Sargeant v. Biddle 481 V. Hulings 195 , 230 Saule V. United States 487 Robbing, Ex parte 35 Saulet V. Shepherd 169 Robert v. Hodges 496 Saunders v. Gould 172, 253, 254 Robert Fulton, The 57, 60 Sawin v. Kenny . 179 Roberts, Ex parte 292 Sawyer v. Oakman 73, 402 V. Bolles 432 Schacker v. Hart. Fire In 3. Co 242 V. Dallas , 6 Schlesinger v. United States , 342 V. United States . 344 Schollenberger, Ex parte , , 122 Robertson v. Barbour . , 495 School Ins. V. People . , , 300 V. Carson . . 132 Schooner Marion, The . , 6 V. Cease . 137 Schoonmaker v. Lloyd , 497 Robins v. Ward . 499 Schuchardt v. The Anglique 90 Robinson, Ex parte 248 , 303 ,435 Schwabacker v. Reilly 3C ,71, 177, 179 In re . 436 Schwaub, Ex parte 299, 303 V. Campbell . 111 , 185 Scott V. Allen , 30 V. Insurance C 0. . . 180 V. Cleveland . 495 V. Payton , 498 V. Jones 266, 269 V. Satterlee . , 212 Seaborn v. Henry 495 Eockhold V. Rockhold . . 267 Searle v. Railroad . 430 TABLE or CASES. XXI PAGE 133 431 303 300 145 191 61 136 178 135 116 270 266 114 244, 261 347 91 132 250 431 135 137 34 57, 89 . 429 . 137 . 489 118, 118, Seckel v. Backhaus Secomb v. Railroad Secombe, Ex parte Secretary v. McGarraghaa Sedwick v. Fridenburgh Segee v. Thomas . Seldon v. Heudrickson V. Sill Sellers v. Corwin . Sere v. Petot V. Pilot Sessieur v. Price . Sevier v. Huskell . Sewing Machine Co. Shankland v. Washington Sharp V. United States Shaw V. Collier Shedds v. Barrow Sheets v. Seldon , Shelby v. Gay Sheldon v. Sill . . 113 Shelton v. Tiffin . . 115 V. United States Shepart v. Taylor Shephard, In re . Shepherd v. Graves Sherman v. Champlain Co. . Shields v. Barrow 132, 147, 215, 440 V. Thomas . . . 499 Ship Virginia, The ... 60 Shoemaker v. Mechanics' Bank . 144 Shrew v. Jones .... 183 Shrewsbury v. United States . 350 Shufford V. Cain .... 134 Shufield V. Buckley . . . 500 Shutte V. Thompson . 404, 407, 481 Siebald, Ex parte . 165, 308, 309 Silliman v. Hudson R. Br. Co. 254, 255 Sillman v. Hud. Riv. R. Co. . 171 Silsby V. Fort .... 169 Silver Lake Bank v. Harding . 494 Silverhill v. United States . . 291 Silvey v. United States . . 348 Simms t). Guthrie 119,120,206,209 Simons v. Cook .... 494 Simpson v. Brooks , , . 456 V. Greely . . . 240 V. Railroad . . . 261 Sims V. Sims .... 496 Sipes V. Whitney . . . 495^ 497 Siren, The 80 Sizer v. Many .... 258 Skillern v. May .... 287 Slack V. Walcott .... 495 Slaughter House Cases 161, 428, 430 Slawson v. United States . 347, 349 Slocum V. Pomeroy . . . 285 Smith, Ex parte . . .117, 300 V. Adsit . . . 266, 269 V. Buruham . . . 185 Smith V. Clark V. Condry . V. Gaines . V. Honey V. Kernochen V. Little V. Maryland V. Redden . V. Ross V. Sac County V. Seek Co. V. Smith V. United States 123, V. Vaughen Smyth V. Strader . Snyder v. Wise South Ottawa v. Perkins Sparrow V. Strong . 113 Spaulding v. Tucker Spencer v. Brockway . V. United States Stafford v. Union Bank Starbuck v. Murray Starkweather v. Loomis State V. Adams V. Armington V. Com. Council V. Duffy V. Helmer . V. Hull V. Kirkpatrick V. McBride . V. Pike V. Warmouth State Bank v. Knoop State Tax on Foreign-held B Steamboat Burns . Company, The Co. V. Chase London, The N. E., The . Orleans, The Steamer Virginia v. West Steamship Circassian, The Stearns v. United States 65, 12 Steere v. Tenney . Steiger v. Bonn Stein V. Bouman . V. Bowman . Steins v. Franklin Co. . Stevenson v. Williams . Stewart v. Ingle . V. Salmon Stimpson v. Brooks V. Pond V. Westchester Stone V. Bishop V. Palmer . V. Wisconsin PAGE . 257 68 . 179 242, 244 119, 121 . 129 . 264 . 501 . 499 . 260 . 260 . 500 347, 349, 487 172, 254 . 241 496, 501 . 431 240, 244 . 472 . 495 . 347 . 289 499, 500 . 495 . 425 . 500 . 300 . 300 495, 497 . 301 . 425 . 425 . 425 . 300 . 113 nds 149 241, 257 67 57 401 89 58, 65 276 60 278 494 129 407 478, 479 265 158 278, 428 252 458 528 428 121 489 431 XXll TABLE OF CASES. PAGE Stoner v. Ellis .... 489 Story, Ex parte . . . . 287 V. Livingston 185, 207, 208, 216, 217, 219 V. Rennell .... 88 Sturgess v. Harold . . 275 Sturgiss V. Boyer . ' . . .92 St. Jago de Cuba, The . . 64 St. Lawrence, The . 57, 58, 59, 186 St. Louis R. Co. V. Indiana & St. L. R. Co 121 St. Louis V. Ferry Co. . . . 149 St. Luke's Hospital u. Barclay 8, 119 V. Barkley , 98 Stockwell V. Coleman . . . 498 V. McCracken . , 499 Strade v. Churchill . . . 494 Stratton v. Jarvis . . . 246 Strauder v. West Virginia . .161 Strawbridge tJ. Curtis . .114, 133 Strong, Petitioner . . . 301 Stub V. McCrillus . . .300 Sudbury v. Stearns . . . 300 Sumner ik Hicks . . . .431 V. Marcy .... 496 Sunny Side, The . . . .472 Supervisors v. United States - 302, 431 Sutton V. Bancroft . . . 289 V. Manderville . . . 478 Suydam v. Beals .... 200 v. Williamson 169, 170, 260 Suydan v. Williamson 240, 244, 260, 285 Swasey v. North Car. R. Co. . 116 Swift V. Tyson . . . .432 Syms V. Lyle . . . .237 Taitv. DeEnde . . . .498 Talbot V. Janson .... 80 V. Wakeman ... 70 Tancred v. Christy . . .260 Tardy v. Morgan .... 497 Tarvin v. Rankin .... 500 Taylor, Ex parte . . . 299, 300 The 56 V. Barron .... 495 V. Benham . . . 204 V. Brigham . . . 179 V. Cook . . . 131, 440 V. Maguire . .210, 270 V. Merchants' Fire Ins. Co. 194 V. Salmon . . .229 V. Secor .... 431 V. United States . . 503 Tennessee v. Davis . . 163, 164 Bank v. Bank of Louis- ville . . .268 Terry v. Commercial Bank . . 248 V. Imp. Fire Ins. Co. . . 153 Texas v. Chiles .... 475 V. White . . . .268 68, 83 PAGE 135 471 138 83 460 457 458 265 80 78 295 122 309 266 457 2 69 458 HI 257 33 93 296 500 411 , 170 494 431 248 247, 250 136, 432 . 495 . 434 . 485 . 498 . 243 . 164 . 405 . 496 Thurston v. U. P. R. Co. 149, 156, 160 Tilton, The 64 Tinstman v. First National Bank . 243 Tipton V. Mayfield . . .498 Titson V. United States . 339, 344 Todd V. Daniel . . . .240 Toland v. Sprague . 127, 129, 177, 179, 181, 189, 234, 239 . 489 . 406 . 110 . 69 83, 85 . 260 . 123 250, 268 , 205 . 149 . 301 . 498 Thaxter j;. Hatch . The Akron C. and P. Co. The Assessors v. Osborne The Aurora v. United States The Avery .... The Baltimore The Bay City The Binghamton Bridge The Brig Alerta v. Moran The Caroline v. United States The Exchange v. McFadden . The Floyd Acceptances The King v. Luddis The License Cases The Liverpool Packet . The Moses Taylor The New World v. King The Pacific The Phil., etc., R. Co. v. Stimpson The Protector The Pueblo Case . The Steamboat Co. v. Chase The Union Insurance Co. v. United States Thom V. Batory . Thomas, In re V. Lane . V. Robinson . V. Scotland V. Woodbridge Thompson v. Dean V. Lee Co. . V. Manrow . V. Selden V. Smith V. Whitman . Thomson v. Butler Thornhall v. The Collector Thorpe v. Simmons Thrasher v. Ingram Toohey v. Harding Tooker v. Thompson Torny v. Beardsley Towboat Co. Town V. Steamship Co. of Ohio V. Marcy Parolet t;. Clark Tracy v. Holcomb . 249, Traders' Bank v. Campbell . Trafton v. Nougues Traver v. Commissioners Trayden v. Justis TABLE OF CASES. XXlll Treadwell v. Joseph Trebilcoch v. Wilson . Trial, The . Trigg V. Conway . Triplett v. Bank . Troy V. Evans Iron and Nail Fac. i'. Corn- ing . . . 218, 456, 457 Trust Co. V. Railroad Co. . . 430 PAGE 70, 71, 83 269 401 496 434 243 Tufts V. Tufts Turner, In re V. Bank . V. United States . 220 110, 148 . 137 . 340 Twitchell v. The Commonwealth Udell V. Davidson Union Bank v. Geary . V. Stafford 117, 118, Ins. Co. V. Kellogg . V. United States . Sugar Refinery v. Matheeson United States v. Adams 278, 291, V. Addison V. Alberty V. Alire . V. Ambrose V. Ames V. Anderson V. Armstrong' Foundry V. Arwo . 127, V. Avery V. Ayers V. Backus V. Bailey 153, 254, V. Baker 122, 127, V. Ballard V. Bank of Met. V. Barney 54, 125, V. Barrels of Alcohol V. Baugh V. Bayley V. Bench . 56, V. Betsey V. Bevans 54, 125, V, Biebusch V. Bird . V. Blackford V. Blaisdell V. Block V. Bostwick V. Bradley V. Breitling V. Bridgman V. Briggs V. Bromley V. Brown 264, 270 270 201 131 429 81 129 292, 428 303 439 339 449 74 347 33, 34, 110, 339, 123, 178, 170, 164, 526, 296 439 255 292 440 255 439 526 122 136 85 420 171 254 92 126, 136 495 439 422 421 240 342 255 186 129 255 259 528 PAGE United States v. Buford . 487 V. Burnes 344, 420 V. Burnett . 423 V. Burr . . 418 V. Canal Co. . . 430 V. Carey . 276 V. Carter . 435 V. Catou . 435 V. Chicago . 254 V. Cigars . 472 V. City Bank . 170, 171 V. Claflin . 138 V. Clark 118 136, 346, 352 V. Cogswell . . 464 V. Collier . 487 V. Collins 430, 449 V. Commissioners . 300 V. Conaut . 421 V. Cook . . 526 V. Cooledge 54 , 125, 158, 435 V. Coppersmith . 455 V. Cornell . 127 V. Cornie . 34 V. Corrie . 439 V. Cruikshank . 421 V. Crussell . 292 V. Curtis . 422 V. Daniel . 255 V. Daniels . 172 V. Darling . 472 V. Davidson 29 V. Davis . 411 V. Devaughan . 435 V. Devereux . 123 V. Devlin . 449 V. Dickinson . 420 V. Donlan 126, 136 V. Doughty . 33 V. Douglass . 449 V. Dunham . 431 V. Dunn 56, 122 V. Dustin . 627 V. Ebart . 420 V. Eckford 11 3, 118, 136, 487 V. Edward . 487 V. Eggleston . 487 V. EUiasen . 261 V. Emerson . 435 V. Fossalt . 248 V. Freeman . 127, 248 V. Furlong . 126 V. Gardner . 449 V. Gaussen . 487 V. Gear . 56 V. Girault . 240 V. Godbold . 30 I'. Gomez 2 75, 289, 428 XXIV TABLE OF CASES. PAGE United States v. Goodwin 249 V. Grand Trunk R. Co. . 431 I'. Graves 183 V. Hage . 123 275 V. Hall . 124 V. Halliiiay , 55 V. Halstead 182 !'. Hamilton 418 V. Hare . 422 V. Barker 463 V. Hawkins , 286 V. Hajnes 145 V. Hirsch 526, 527 V. Hoffman 293, 296 V. Holliday 125, 126 V. Holmes 126 r. Huckabeer 284 V. Hudson 5^ I, 118, 125, 13 6, 138, 435 V. Hughes 234, 476 V. Humphreys 182, 183 V. Ingersol 418, 466 V. Insurgents 422 V. Irvine 125, 526 V. Jackalow 127, 140 V. Jackson 421 V. Jacoby 420, 421 V. Johns 494 V. Johnson 302 V. Jones . 487 V. Kaufman 343 V. Keokuk 183 V. Kimbal 3C 0, 347 349 V. King . 260 V. Knight 18 1, 182, 290, 431 V. Kuhn 487 V. Lancaster . 125, 172 V. Lathrop 57, 425 V. Lawrence . 300 V. Leonard 422 v'. Little Char es . 74 V. Maguire 421 V. Marchant . , 127 V. Martin 487 V. Maun . , 436 V. Maxwell 42 !'. Mayo . 527 V. McAvoy . 33 V. McDowell . 112 V. McFarlane . 420 V. McGill 12 6, 127, 439 V. McKee 423 V. McLemone . 314 V. Mingo . 439 V. Mitchell 490 V. Monson 145 V. Moore 191, 306 V. Morris 423 PAGE United States v. Morrison . 183, 431 V. Murphy . . 423 V. Myers . . 476 V. New Orleans 300, 302 V. Noelke . . 421 V. Norton . . 527 V. Nourse . . 248 V. O'Brian , . 527 V. O'Callahan , 420 V. O'Grady . 345, 346 V. O'SuUivan . , 423 V. One Horse . . 27 V. Package . . 456 V. Parrott , 189, 479 V. Pings . . . 180 V. Pirates . 180, 420 V. People . . 269 V. Peters . 149, 301 V. Pugh . 294, 296, 348 V. Rand ... 50 V. Ravara . . 8 V. Reed 255, 431, 449, 450 V. Reese . . . 161 V. Robertson . . 64 V. Robins . . 424 V. Rosenburgh 171, 255 V. Ross . . 127, 347 V. Russell 243, 339, 349 V. Sawyer . . 420 V. Schooner Sally . 80 V. Schumann . . 34 V. Scott . . .420 V. Seamen . . 300 V. Seuart . . 422 V. Shackelford . 449 V. Shares of Capital Stock . . 81 V. Smith 404, 418, 456, 463, 464 V. Southmayd . 422 V. State Bank . 343 V. Stone 171, 453, 454 V. Tallman . . 449 V. The Chusan, . 62 V. The Little Charles 71 V. The Steamship Queen . . 79 V. Thompson 439, 267 V. Three Tons . 433 V. Three Tons of Coal 476 V. Tilden 408 V. Tingey V. Tracy V. Tuska 421, 123 179 449 V. Tyler . V. Vanzandt 255 487 V. Waller 42 V. Watkins 526 V. Watson 34 V. Weed . 82, 255 TABLE OF CASES. XXV PAGE United States v. White 125, 526, 527 V. Wiley . . 528 V. Williams 422, 429, 435, 449, 481 V. Wilson . 255, 449 V. Woodruff . . 449 V. Worrell . .125 V. Wright . 527, 528 V. Young 292, 420, 428 V. 28 Packages , 434 V. 28 Packages ofPins 86 V. 37 Barrels of Rum 145 V. 469 Barrels . 434 V. 5100 in Specie . 145 V. 500 Barrels 458, 463 Ex parte . 49, 301 University v. People . . 265, 269 Upton V. Triblecock . . 27, 460 Vallandigham, Ex parte . 7, 428 Van Antwerp v. Hulbard . 143, 144 Van Arnam, Ex parte . . 310, 428 Van Orden, Ex parte . . 278, 428 Van Rensselaer v. Kearney . . 431 Vannevar v. Bryant . . 148, 155 Vansant v. Gaslight Co. . . 252 Vattier v. Hinde 117, 121, 132, 189, 204, 209, 481 Vaughan, The . , , .100 Venable v. Richards . . . 152 Venice, The .... 82 Ventremaitre, In re . . . 310 Verden v. Coleman . • . 248, 268 Victor V. Cisco .... 164 Villabolos v. United States . . 275 Virgil Paris, Ex parte . . . 463 Virginia, The ... 62, 76 V. Rivers . . . 161 V. West Virginia . . 230 Von Brocken v. Brooklyn . . 431 Voorhees v. Bank of United States 234 Voss V. Luke .... 435 Wakeley v. Muscatine . . 300 Walburn v. Babbitt . . . 285 V. Skinner . 116, 118, 119 Walden t;. Bodley . 194, 197, 211 Walker v. Beal . . . .119 V. Commissioners . . 431 V. Parker . . . 481 V. Taylor . . 244, 269 V. United States 112, 242, 243, 244 Wallace v. Clark . . . 178, 186 V. Holmes . . . 208 Wallen v. Williams . . . 429 Walls V. Thornton . . ,90 Walsh V. Rogers ... 92 Walter v. Belding . . . 300 Walton V. United States . 487 498, 494, 306, 307, PAGE Waltz V. Amer. Ex. Co. . . 138 Wanata, The .... 99 Wanderer, The .... 140 Ward V. Arredondo . 114, 117, 135 V. Chamberlain . 172, 183, 254 V. Peck .... 64 V. Quinlivin . . . 497 V. State . . . 279, 280 V. The Ogdensburg . . 68 V. Tompson ... 58 Warden v. Town Council . . 300 Warfield v. Chaffee . . . 268 Waring v. Clark . Warmouth, Ex parte . . 165, 296 Warner v. Fowle .... 164 Warren Manufac. Co. v. Etna Ins. Co Warren v. Flagg . V. McCarthy V. Wade . Washabaugh v. Entriken Washington, The . Waters v. United States Watkins, Ex parte Watson V. Bondurant . V. Jones . V. Sutherland . V. The City Council Watts V. Waddle . Wave, The . Way V. Bagshaw . Waymouth v. Railroad Co. Weaver v. Owens Webster D. Cooper . 117, 253, V. Hunter V. Lee County Weed V. Kellogg . Sewing Machine Co. Wicks Weeks v. Pearsons Weems v. George Welch V. Sykes Wells V. McGregor West V. Aurora V. Brashear . V. Randall . V. Smith . . .179 Tennessee v. Citizens' Bank Wisconsin R. Co. v. Foley Western Metropolis . Western Union Tel. Co. v. Rogers 500 500 500 495 496 70 349 309 110 430 433 266 497 66 236 499 59 431 498 302 407 Westerville v. Lewis Weston V. Charleston . V. City Council Wethers v. Buckley Weyanga v. Ayling Weyanwega v. Ayling . Wheeler v. Raymond . Wheeling v. Mayor 116, 119, 179 500 124 499 227 149 275 206 197 266 289 84 242, 243 498 109 266 264 171 255 496 301 XXVI TABLE OF CASES. PAGE PAOB Whipple V. Cumberland Cotton Wilson's case 309 Co 472 Winchester v. Jackson . 289 "Whitaker v. Bramson . 497 V. United States 347 White V. Commonwealth 125 Winder v. Caldwell . 427 V. Railroad 136 Windsor v. McVeigh 267 V. Smith 269 Winter v. Simonton 481 V. Strother 495, 496 Winthrop v. Ins. Co. . 405 V. Turk 176, 254 V. Union Ins. Co. . 479, 480 V. Vermont & M. R. C 0. 136 Wiscart v. Dauchy 7 White's Bank v. Smith 269 Wisconsin v. Duluth 113 Whiting V. Bank of United States 219, Wise V. Columbia Turnpike Cc . 242, 247, 250 260, 262 Whitlock V. The Thales 62 V. Turnpike Co. . 242 Whitney, Ex parte 111, 302 Withenbury v. United States 255 V. Bank . 251 Withers v. Buckley . 264 V. Cook . 277 Wolf V. Rabaud . 115 V. Hunt . 403 V. Stix 266 Whittaker v. Murray . 498 V. Usher 253 Whittlesey v. United States 352 Wood, Ex parte . 427 Wiclifife V. Hill . 481 V. Davis 117 118 V. Owings 137, 199 V. Kellogg . . 478 Wiggins V. Gray . 172, 254 V. Mathews 167 Wigman v. Southard . 427 V. Wagnon 235 Wilcox V. Cassock 498 Woodman v. Latimer . 431 V. Hunt 179 Woods V. United States 503 Wilder v. Union Nat. Bank 149 Woodward v. Tremere . 498 499 Wilie V. Cox 248 Woodworth v. Edwards 235 Willard v. Dorr 65 Worcester v. Georgia . 264 270 Willford V. Miller . 479 V. Truman . 209 William D. Rice, The . , 64 Wormley v. Wormley 118, 132, 205, William Many, Ex parte 299 208 Williams v. Bank . . 240 257 Worthy v. Commissioners . 265 V. Bankhead . 441 Wright V. Ellison 434 V. Benedict . 183 V. Wersinger 499 V. Bruffy 265 Wymau v. Southard . 172, 182, 183, V. Norris 266 269 185 429 V. Suffolk Ins. Co. 432 V. Wilkes 494 Yeaton v. Fry 481 Williamson v. Berry 431 V. Lenox . 257 Wills, Ex parte 307 Yerger, Ex parte . . 7 307 311 Wilson Sewing Machine ( ^0. V. York City v. Miln 125 Jackson , 405 York Co. V. Central R. Co. . 481 Wilson V. City Bank . 124 Young V. Bryan . 135 V. Fisher's Ex. . 134 V. Pott 205 208 V. Graham , 194 Yungling v. Johnson 429 V. Insurance Co. 240 V. Jackson 498 Zane v. The President . 58 V. Life and Trust Ins '. Co.' 257 Zeller v. Switzer . , 249 V. Sandford 141, 2 38, 259 , 426 Zyanga del Valie v. Harrison . 243 V. Stolly . . 203 FEDERAL PLEADING, PRACTICE AND PROCEDURE. CHAPTER I. JUDICIAL POWER OF THE UNITED STATES. § 1. Independent po^wers of the legislative, judicial and executive departments. — The wisdom of those concerned in framing the Con- stitution of our government is nowhere more conspicuous than in those provisions of it which relate to the judicial power. They were familiar with the theories of political philosophers as well as the experiences of other nations in their efforts to establish free governments, and, with the knowledge derived from these sources, they wisely resolved that our government should consist of three departments — legislative, judicial and executive — each having powers to be exercised independent of the others. These elements had been urged as essential to the success of a free government b,v patriots, statesmen and speculative philosophers, and it was be- lieved by them, if not generally regarded as a maxim, that these three necessary departments of a government should be kept sep- arate and distinct and independent of each other. The distinguishel political writer Montesquieu had maintained this doctrine with great force and vigor in his commentary on the English Constitution, wherein he observed : " When the legislative and executive powers are united in the same person or in the same body of magistrates there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws or execute them in a tyrannical manner ;" that were the judicial power "joined with the legislative, the life and liberty of the sub- ject would be exposed to arbitrary control; for the judge would be the legislator:" and that "where it is joined to the executive 2 FEDERAL PLEADING, PRACTICE AND PROCEDURE. power, the judge might behave with violence and oppression." And he concludes by saying: "There would be the end of every- thing were the same man, or the same body, whether of tlie nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."^ Sir William Blackstone had also impressed the necessity of an independent exercise of these functions of a well-regulated govern- ment, in his usual terse and forcible style. In his Commentaries on the Laws of England, be observes : " In all tyrannical govern- ments the supreme magistracy, or the right both of making and of enforcing laws, is vested in the same man, or one and the same body of men ; and wherever these two powers are united together there can be no public liberty. The magistrate may enact tyran- nical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But Avhere the legislative and executive authority are in distinct hands, the former will take care not to intrust the latter with so large a power as may tend to the subversion of his own independence, and there- with of the liberty of the subject."^ It requires no argument to show the importance of a judiciary department of the government of all civilized people, or that the scope of judicial power should be co-extensive with the legislative department. If it were otherwise there would be no power to enforce the rights of persons, and there would be no remedy for a violation of those rights. On this subject Mr. Story observes : " Where there is no judicial department to interpret, pronounce and execute the law, to decide controversies and to enforce rights, the government must either perish by its own imbecility, or the other departments of govern- ment must usurp powers for the purpose of commanding obedience, to the destruction of liberty."^ There must be a judicial powgr to give effect to the will of the legislative power, and the want of this was among the vital defects of the original confederation of the states.^ ^ Montesquieu, B. 11, ch. 6. ^ Story on the Const. | 1574. See 2 1 BL Com. 146. See also The also 1 Kent Com. 294. Federalist, No. 47. * The Federalist, Nos. 33, 39, 80 ; 1 Story on Const. 344-384. JUDICIAL POWER. '6 § 2. "Where the judicial power is vested. — The Constitution de- clares that " the judicial power of the Uniterl States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."^ It has been maintained with much ability that, under this pro- vision, Congress had no discretion as to the creation or organization of a Supreme Court and of inferior courts ; that the language was mandatory, and that Congress could not have refused to create these courts without a violation of its duty.- But it is unnecessary to discuss this question, as power was, by the Constitution, conferred on Congress for this purpose, and it has provided for the organiza- tion of a Supreme Court and of inferior courts. The importance of limiting the court of final resort to one Su- preme Court will be obvious. If there were more than one, a diversity of decisions might and probably would occur ; and this diversity, relating not only to general principles of the municipal law, but to the interpretation of statutes and the Constitution, would lead to doubts, distrust and disputes, and subject the admin- istration of justice by the federal courts to reproach and disgrace. The Constitution left Congress to provide for the organization and constitution of the federal courts. It prescribes the extent of the judicial power of the United States, and expressly provides in what cases the Supreme Court shall have original jurisdiction ; giving it appellate jurisdiction in other cases. § '6. Extent of judicial power. — On the subject of the extent of judicial power the Constitution provides : " The judicial power shall extend to all cases, in law and equity, arising under this Consti- tution, the laws of the United States, and treaties made or which shall be made under their authority ; to all cases affecting ambas- sadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party ; to controversies between two or more states ; between a state and citizens of another state ; between citizens of different states ; between citizens of the same state claim- ing lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens or subjects."^ ' Const, art. 3, § 1. The Moses Taylor, 4 Wall. 411 ; 1 2 Martin v. Hunter, 1 Wh. 304; Kent Com. 318. ^ Const, art. 3, § 2. 4 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 4. Amendment construing this section. — It may be proper here to refer to a controversy that arose soon after the ratification of the Constitution in 1787, as to the proper construction of a clause of the foregoing section. The question presented was, whether a stale could be sued in a federal court by a citizen of another state. Congress had provided for the organization of the Supreme Court and district and circuit courts, and given them, respectively, juris- diction in certain cases. It had long been a maxim of the law that a sovereign power could not be sued in its own courts except by its consent. On the other hand a government in its corporate capacity may sue like an individual, and the various states of the Union have authority to sue in the state and federal courts. In the case of Chisholm v. Georgia,' the Supreme Court held that the Constitution gave that court jurisdiction of a suit brought against a state by a citizen of another state. This interpretation of the Constitution, however, excited much opposition and dissatisfaction, and led to the adoption of an amendment which prohibited the construction which it had received by the Supreme Court. The amendment is as follows: '* The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against orie of the United States by citizens of another state, or by citizens or subjects of any foreign state."' i2I)all. 419. United States in a very different '' Amend. Const, art. 11. In Ohis- view." Iiolni V. Geort the contracting state ; See Rev. Stat. ch. 21. 6 FEDERAL PLEADIN«;, PRACTICE AND PROCEDURE. by authority derived from only one of them. 2. To all cases arising under the laws of the United States,, because, as such laws, constitutionally made, are obligatory on each state, the measure of the obligation and obedience ought not to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the parties. 3. To all cases arising under treaties made by their authority ; because, as treaties are compacts made by and obligatory on the whole nation, their operation ought not to be affected or regulated by local laAvs or courts of a part of the nation. 4. To all cases affecting ambassadors, or other public ministers and consuls ; because, as these are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cogniz- able by national authority. 5. To all cases of admiralty and maritime jurisdiction ; because, as the seas are the joint property of nations, whose rights and privileges relative thereto are regu- lated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. 6. To controversies to which the United States shall be a party ; because, in cases in which the whole people are interested, it would not be equal or wise to let any one state decide and measure out justice due to others. 7. To controversies between two or more states ; because domestic tran- quillity requires that the contentions of states should be peaceably terminated by a common judicatory ; and because in a free country justice ought not to depend on the will of either of the litigants. 8. 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 her demands in a national court than in a court of the 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 state, the cause of liberty and the rights of men forbid that the latter should be the sole judges of the justice due the former ; and true republican government requires that free and equal citizens should have free, fair and equal justice. 9. 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 land are drawn JUDICIAL POWER. i into question, neither of the two states ought to decide the contro- versy. 10. To controversies between a state, or the citizens thereof, and foreign states, citizens or subjects ; because, as every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations or people ought to be ascertained by, and depend on, national authority. Even this cursory view of the judicial powers of the United States leaves the mind strongly impressed with the importance of them to the preservation of the tranquillity, the equal sovereignty and the equal rights of the people." The profound wisdom which dictated these provisions of the Con- stitution is manifest from this clear outline and condensed state- ment of the grounds on which they rest, and the experience of a century has fully confirmed the views of its earlier expounders. § 6. Jurisdiction of the Supreme Court. — The original as well as the appellate jurisdiction of the Supreme Court is fixed by the Constitution. It provides that in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.' It is manifest that the Supreme Court cannot lawfully exercise original jurisdiction except in the enumerated cases, and that no act of Congress could give it any additional jurisdiction, or take from it any of the judicial powers conferred upon it by this pro- vision of the Constitution.^ § 7. The original jurisdiction of the Supreme Court not exclusive. — It -has been a question of considerable controversy whether the grant of original jurisdiction to the Supreme Court in the specific cases mentioned in the Constitution was designed to make this juris- diction exclusive; whether it should be construed to give it juris- diction in such cases, exclusively of other federal courts which might be, and have since been, erected and organized under acts of Congress, in pursuance of the authority given by the Constitution ' Art. 3, sec. 2, Const. U. S. et seq. ; Ex parte Vallandingham, 1 ■^ Marbury v. Madison, 1 Cr. 137; Wall, 248 ; ii^x j^arie Yerger, S Wall. (1801) Wiscart v. Dauchy, 3 Dall. 85; The Alicia, 7 Wall. 571 ; Kentucky 321 ; 1 Kent. Com., sec. 15, p. 314, v. Dennison, 24 How. 66. 8 FEDERAL PLEADIN(J, PHACTICL AM) PROCEDURE. for this purpose. This question has never been authoritatively settled bj the Supreme Court; for, although in the case of United States V. Ravara/ commenced in the circuit court for the district of Pennsylvania, it was held that Congress could give other federal courts concurrent jurisdiction in such cases, the opinion of the Supreme Court in the subsequent case of Marbury v. Madison - would appear to be in conflict with this doctrine; and in the still later case of United States v. Ortega,^ the question was involved in the record, but the court did not find it necessary to decide it. It has, however, been maintained by jurists of great eminence and ability that it is not essential to construe this provision of the Constitution as giving the Supreme Court exclusive original juris- diction in the cases specified, and that there is nothing in it incon- sistent with the power of Congress to create inferior courts, and- confer upon them original jurisdiction concurrent with the Supreme Court, in the same specific cases ; and this construction was ably maintained by Mr. Justice Nelson, in Graham v. Stucken.^ The judicial powers of the United States, as we have seen, were vested in the Supreme Court, and in such inferior courts as Con- gress should establish. When inferior courts were first organized and established, as they were by the Judiciary Act of 1789, Con- gress gave the circuit and district courts jurisdiction of certain causes of which the Supreme Court also had jurisdiction, by virtue of the provisions of the Constitution. The provisions of this act have remained unchanged in this respect, and were incorporated into the Revised Statutes.^ This practical contemporaneous exposition and legislative inter- pretation of the Constitution by Congress, some of whose members were especially interested in framing the Judiciary Act and had been members of the convention that framed the Constitution, and the long acquiescence in and tacit recognition of this interpre- tation by the courts, both state and federal, and by Congress, is certainly quite satisfactory if not conclusive on this question. In support of this view, Mr. Justice Nelson, in Graham v. Stucken, supra, says: "The last clause of section 2, article 3, of the Con- 1 2 Dall. 297. on Constitution, ? 1705 ; 1 Kent Com. ■^ 11 Wh. 467. »'stat. at L. 78 ; Rev. Stat. U 629, «4 Blatch. 50. See also St. Luke's 687; act March 3, 1875, eh. 137, IS Hospital V. Barclay, 3 Id. 259 ; Story Stat. 470. JUDICIAL I'OAVEIl. S:* stitution declares tljat in all cases afiocting aoibassadors, and other public ministers and consuls, and in those in which a state shall be a party, the Supreme Court shall have original jurisdiction. Congress, in distributing and regulating this grant of jurisdiction, provided, in section 13 of the Judiciary Act, that the Supreme Court should have exclusive jurisdiction in all cases against ambas- sadors, etc. ; and original, but not exclusive, jurisdiction in all cases 'in which a consul or vice-consul shall be a party,' thus clearly rejecting the idea that the grant in the Constitution in re- spect to consuls was exclusively to the Supreme Court." I apprehend that it may be safely affirmed that Congress has the powder to confer on any or all of the inferior courts of the Uniteii States, which she has constituted or mav hereafter constitute, ori^;- inal jurisdiction in any or all of the class of cases in which the Constitution has also conferred original jurisdiction on the Supreme Court. CHAPTER II. CONSTITUTION AND ORGANIZATION OF FEDERAL COURTS. >j 8. Duty of Congress to provide for. — The Constitution vested the judicial power of the United States in one Supreme Court and such inferior courts as Congress might from time to time constitute. It was further provided by the Constitution that the President "shall nominate and, by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court ;"^ and that "the judges, both of the Supreme and inferior courts, shall liold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be dimin- ished during their continuance in office.""^ ■ It was the manifest duty of Congress, under the circumstances, to provide for the organization of a Supreme Court and inferior courts of the United States. In pursuance of this plain duty Congress did, by the act of Sep- tember 24, 1789, divide the United States into judicial districts and provide for the organization of the Supreme Court and district and circuit courts, and their jurisdiction, the number of justices of the Supreme Court, their precedence and salaries, and the appoint- ment of clerks and marshals. Some changes have necessarily been made in this organic act, but its provisions remain substantially the >ame in the Revised Statutes, which, with the amendments thereof, divide the United States into districts as follows : § 9. Provisions of the statutes creating judicial districts. Judicial Districts. — Sec. 530. The United States shall be divided into judicial districts as follows ; States constituting one district. — See. 531 (as amended by act of June 26, 1876, 19 Stat. 61). The states of California, Colorado, Connecticut, Delaware, Indiana, Iowa, Kansas, Ken- tucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, Oregon, Rhode Island, Vermont and West Virginia, each, constitute one judicial district. ' Const, art. 2, ? 2. '^ Const, art. 3, | 1. FEDERAL COURTS. 11 Alabama. — Sec. 532. The state of Alabama is divided into three districts, which shall be called the southern, middle and northern districts of Alabama. The southern district includes the counties of Mobile, Washington, Baldwin, Sumpter, Clarke, Ma- rengo, Greene, Pickens, Wilcox, Monroe and Conecuh. The middle district includes the counties of Montgomery, Autauga, Coosa, Tallapoosa, Chambers, Talladega, Randolph, Macon, Rus- sell, Barbour, Pike, Henry, Dale, Coffee, Covington, Lowndes, Dallas, Perry, Bibb, Shelby, Butler and Tuscaloosa. The northern district includes the remaining counties of said state. Arkansas. — Sec. 533 (as amended by act of January 31, 1877, 19 Stat. 230). That the state of Arkansas is divided into two districts, which shall be called the eastern and western districts of Arkansas. The western district includes the counties of Benton, ^Vashington, Crawford, Sebastian, Scott, Polk, Sevier, Little River, Howard, Montgomery, Yell, Lognn, Franklin, Johnson, Madison, Newton, Carroll, Boone and Marion, and the country lying west of Missouri and Arkansas known as the Indian Territory. The eastern district includes the residue of said state. Colorado.— The act of June 2d, 1876, ch. 147, § 1, 19 Stat. <31, provides : That the state of Colorado shall constitute one judicial district, to be called the district of Colorado. . . . Florida. — Sec 534 (as amended by act of February 3, 1879, ch. 43, § 1, 10 Stat. 280). The state of Florida is divided into two judicial districts, which shall be called the northern and southern districts of Florida. The southern judicial district of the state of Florida shall embrace the counties of Hernando, Hillsborough, Polk, Manatee and Monroe, in said state ; and all the territory within the remaining counties shall constitute the northern judicial district. Georgia. — Sec. 535 (as amended by act of January 29, 1880, ch. 17, § 1, 21 Stat. 62). The state of Georgia is divided into two districts, which shall be called the northern and southern districts of Georgia. The northern district includes the counties of Troup, Meriwether, Morgan, Green, Taliaferro, Wilkes and Lincoln, as they existed August 11, 1848, with all the counties north of them. The southern district includes the counties of Harris, Talbot, Up- son, Monroe, Jones, Putnam, Hancock, Warren and Columbia, Pike, Butts and Jasper, as they existed at said date, with all the counties south of them. 12 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The act of January 29, 1880, ch. 17, § 2, 21 Stat. 63, provides: The said southern district of Georgia shall be divided into two divisions, to be known as the eastern and western divisions of tlie southern district of Georgia. The western division shall consist of forty-three counties,, to wit : Bibb, Monroe, Jones, Twiggs, Hous- ton, Crawford, Baldwin, Wilkinson, Laurens, Pulaski, Dooly, Ma- con, Taylor, Upson, Pike, Butts, Jasper, Putnam, Hancock, War- ren, Dodge, Wilcox, Telfair, Sunipter, Schley, Marion, Talbot, Harris, Muscogee, Chattahoochee, Stewart, Webster, Lee, Terrell, Randolph, Quitman, Clay, Calhoun, Dougherty, Baker, Early, Miller and Mitchell. The eastern division shall consist of the remaining counties in said district. No additional clerk or marslial shall be appointed in said district. Illinois. — Sec. 536. The state of Illinois is divided into two districts, which shall be called the northern and southern districts of Illinois. The northern district includes the counties of Hender- son, Warren, Knox, Peoria, AVoodford, Livingston and Iroquois, as they existed February 13, 18. Allen, 6 Phila. 484; Rus- Hernandez, 18 Wheat. 120. sell v. Ashley, Hemp. 546; Scott c. « Rev. Stat. |§ 787, 788. Schwabacker v. Reilly, 2 Dill. 127. ORGANIZATION OF DISTRICT COURTS, 31 ances in office of sucb deputies, during such interval, as lie would be entitled to if the marshal had continued in life and in the exer- cise of his said office, until his successor was appointed and duly qualified."^ § 27. District attorneys ; appointment. — One of the most im- portant officers of the court is the district attorney, who acts as the attorney for the government within the district for which he is appointed. It is provided by statute that there shall be appointed in each district, except in the middle district of Alabama, and the northern district of Georgia, and the western district of South Carolina, a person learned in the law, to act as attorney in such district ; that the district attorney in the northern district of Alabama shall perform the duties of district attorney of the middle district of that state ; that the district attorney of the southern district of Georgia shall perform the duties of district attorney of the north- ern district of that state ; and that the district attorney of the eastern district of South Carolina shall perform the duties of the office for the western district of that state. ^ The district attorney for the Iowa district is required to perform the duties of district attorney in all the divisions of said district.^ § 28. Duties of district attorney. — It is the duty of this officer to prosecute in his district all delinquents, for crimes and offences cognizable under the laws and authority of the United States, and all civil actions in which the United States are concerned, and to appear in behalf of the defendants in all suits or proceedings pend- ing in bis district against collectors or other officers of the revenue of the United States, for any act done by them, or for the recovery of any money exacted by or paid to such officers, and by them paid into the treasury of the United States, unless otherwise instructed by the Secretary of the Treasury.* He is further required, on in- stituting any suit for the recovery of any fine, penalty or forfeiture, to transmit, immediately, a statement thereof to the Solicitor of the Treasury;^ and, immediately after the end of every term of the circuit and district courts for his district, to forward to the Solicitor of the Treasury a full and particular statement of all causes pend- 1 See also Rev. Stat. 790. For fur- Feb. 24, 1879, ch. 97, ^ 8, 20 Stat. ther infonnation on the subject refer- 320. ence may be had to chapter 14, Rev. ^ Rev. Stat. | 768. Stat. ■» Rev. Stat. | 771. * Rev. Stat. ? 767 ; amended act '^ Rev. Stat. | 772. 32 FEDERAL PLEADING, PRAuTICE AND PROCEDURE. ing in said courts respectively, and of all causes decided therein during said term in which the United States are a party, which statement must he accompanied by the certificate of the clerks of said courts respectively;^ provided, however, that if any suit or proceeding is commenced, under the internal revenue laws, to which the United States are a party, or any suit or proceeding is instituted against a collector or other officer of the internal revenue, wherein a district attorney appears, it is made the duty of the attorney of the district in which it is brought to report to the Commissioner of Internal Revenue the full particulars relating to the same, and, im- mediately after the end of each term of the said courts where such suit is pending, forward to said commissioner a full and particular statement of its condition.^ He is further required, on the first day of October in each year, to make a return to the Solicitor of the Treasury of the number of suits and proceedings commenced, pending and determined within his district within the fiscal year next preceding the date of such return, showing the date of the commencement of such suit or pro- ceeding ; and if the determination of the same has been delayed beyond the usual or a reasonable period, he must state the reasons therefor, and the measures taken by him to press such suits or pro- ceedings to a close. ^ He is also required, immediately after the end of a term in which any suit for moneys due on account of the Post-Office De- partment has been pending in his district, to forward to the Depart- ment of Justice a statement of any judgment or order made or steps taken in the same during such term, accompanied by a certificate of the clerk showing the parties to and the amount of every such judgment, with such other information as the Department of Justice may require. It is also his duty to direct speedy and effectual execution upon any judgment, and the marshal to whom it is directed must make return of his proceedings thereon to the same department at such times as it may direct.'* When any collector of customs or of internal revenue shall report to him, according to law, any case in which any fine, penalty or forfeiture has been incurred in his district for the violation of any law of the United States relating to the revenue, it is his duty to 1 Rev. Stat. | 773. » Rev. Stat. ? 773. * Rev. Stat. | 774. ' ■* Rev. Stat. ^ 775. ORGANIZATION OF DISTRICT COURTS. U cause the proper proceedings to be commenced and prosecuted without dehiy for the fines, penalties and forfeitures in such cases provided, unless he shall determine, upon- an examination and inquiry, that the proceedings could not be sustained or that the ends of justice do not require it ; in which case it is his duty to report the facts in customs cases to the Secretary of the Treasury, and in internal revenue cases to the Commissioner of Internal Revenue, for their direction.' § 29. Duty to prosecute for crimes. — As it is made the duty of the prosecuting attorney " to prosecute in his district all delinquents for crimes and offences cognizable under the authority of the United States, and all civil actions in Avhich the United States are con- cerned," it has been held that the federal courts could not properly take cognizance of a cause in the name of the United States unless it is prosecuted by the district attorney of the district;^ and where the prosecution was for a contempt of court in which the United States was interested as plaintiff, it was held that the district attorney should appear as prosecutor.^ But he has no power to dismiss a criminal charge under examination before a commissioner, although after indictment found and before the trial is commenced, it seems he has absolute power to enter a nolle prosequi.* § 30. He is the recognized officer of the government. — The fed- eral courts will not recognize a suit, civil or criminal, as legally before them in the name of the United States, unless it be instituted and prosecuted by a district attorney duly appointed and commis- sioned for that purpose.^ He is the officer of the government who has the proper charge of its legal proceedings within the district, subject only to the supervision of the Attorney-General. If other attorneys or counsel are employed by the government it is to aid him, and not as official representatives of the government.^ And if the bill, declaration or other pleading on the part of the govern- ment does not show that the suit was instituted by the proper dis- trict attorney, it would be demurrable.'^ The court can only have ' Rev. Stat, f 838. * United States v. Schumann, 2 ^ United States v, McAvoy, 4 Blatch. Abb. U. S. 523. 418; United States v. Doujihty, 7 Id. * United States t-. McAvoy, 4 Blatcli. 424; United States i?. Blaisdell, 3 Ben. 418 ; United States v. Doughty, 7 Id. 132. 424. *Durant v. AVashington Co., 1 ® The Pueblo Case, 4 Saw. 553. Woolw. 377. ' United States v. Doughty, 7 Blntrh. 424. 34 FEDERAL PLEADING, PRACTICE AND PROCEDURE. communication with the executive oflBcers of the government through the district attorney.^ It is made, as we have seen, the duty of the district attorney to prosecute in his district all delinquents for crimes and oifences cognizable under the authority of the United States, and all civil actions in which the United States are concerned ; and it is his further duty to provide the marshal with the necessary process to carry into execution the judgments of the courts.^ He sliould attend the sessions of the grand jury, to advise that body on ques- tions of law that may be presented, to examine witnesses, and, when required by them, to draw indictments. But he has no right to control the action of a grand jury or prevent its consideration of any particular case before it, by representing or declaring that the government will not prosecute it.^ Nor can he enter a nolle prosequi in a criminal case without the consent of the court.* § 31. District attorney's fees and compensation. — Chapter xvi. of the Revised Statutes provides for the fees and compensation of district attorneys, clerks, marshal"?, commissioners and other offi- cers ; and sections 823 and 824 of said chapter, what costs may be taxed and allowed to attorneys, solicitors and proctors in the courts of the United States, which embraces district attorneys.^ Various sections of this chapter, as will be seen by a reference to it, provide for extra compensation for special and extraordinary services ; but he is required semi-annually in each year, to wit, " on the first days of January and July, or within thirty days there- after, to make to the Attorney-General, in such form as he may pre- scribe, a written return for the half year ending on said days respectively, of all fees and emoluments of his office of every name and character, and of all the necessary expenses of his office, in- cluding necessary clerk-hire, together with the vouchers for the payment of the same for such last half year." Said returns are required to be verified by the oath of the district attorney making the same.^ The return is required to embrace all fees, charges and emolu- 1 United States v. Blaisdell, 3 Ben. * United States v. Corrie, 23 L. R. 132. 145. But see United States v. Wat- ^ Levy Court v. Rinfr^old, 5 Pet. son, 7 Blatcli. 60 ; United States v. 451 ; 8. c, 2 Cr. C. C. 659, Schumann, 2 Abb. C. C. 523. * United States v. Schumann, 2 ^ See chapter xiii.,^05<. Abb. C. C. 523. « Rev. Stat. | 833. ORGANIZATION OF DISTRICT COURTS. 35 ments to which he may be entitled bj reason of the discharge of the duties of his office/ except fees he may have received in suits or proceedings arising under the revenue laws of the United States, conducted by him, and in which the United States were a party, in which he is allowed two per centum upon the moneys collected,^ and except such compensation as he may have received for official duty performed by direction of the Secretary or Solicitor of the Treasury, on behalf of any officer of the revenue in any suit against such officer, or for the recovery of any money received by him and paid into the treasury of the United States, in the performance of his official duty ; in which case he is allowed such compensation as may be certified to be proper by the court in which the suit is brought, and approved by the Secretary of the Treasury.^ But section 835 of the Revised Statutes provides: "No district attorney shall be allowed by the Attorney-General to retain of the fees and emoluments of his office which he is required to include in his semi-annual return, for his personal compensation, over and above the necessary expenses of his office, including necessary clerk-hire, to be audited and allowed by the proper accounting officers of the Treasury Department, a sum exceeding six thousand dollars a year, or exceeding that rate for any time less than a year."* The district attorney for the southern district of New York, however, is entitled to receive quarterly a salary at the rate of six thousand dollars a year ; and for extra services the district at- torney for the district of California is entitled to receive a salary at the rate of five hundred dollars a year, and the district attorneys for all other districts at the rate of two hundred dollars a year ; ^ and in addition to the salary of the district attorney of the south- ern district of New York, above mentioned, he is entitled to such additional sum as may be necessary, together with the costs and fees allowed him by law, to pay such amount as may be fixed by the Attorney General for the proper expenses of his office. But the restrictions above referred to do not prevent the allowance of additional compensation for services in prize cases." In such cases 1 Rev. Stat. § 834. Pr. Cas. 337 ; Ex parte Robbins, 2 * Rev. Stat. I 825. Gallis. 320. » Rev. Stat. ^ 827. * Rev. Stat. ? 770. * Rev. Stat. | 835. For construction ' Rev. Stat. I 836. of this section see The Anna, Blatch. 36 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the district attorney is allowed just and reasonable compensation, to be adjusted and determined by the court.* For fees of officers see post, ch. xiii. § 32. Term and oath of office of district attorney. — District attor- neys are appointed for the term of four years, and their commissions expire at the end of four years from the date of the same ; and every district attorney is required, before entering upon the duties of his office, to be sworn to a faithful execution of the duties of his office.^ But no official bond seems to be required of him. 1 Rev. Stat. ? 464G. . '^ Rev. Stat. | 769. CHAPTER IV. TERMS AND SESSIONS OF THE DISTRICT COURTS. ^ 33. Regular terms of the district courts. — The Revised Statutes provide for the regular terms of the district courts, and other matters relating to them, which with various subsequent amend- ments are as follows: — Terms of district courts. — Sec. 572. The regular terms of the district courts shall be held at the times and places follow- ing; but when any of said dates shall fall on Sunday, the terms shall commence on the following day : Alabama. — In the southern district of Alabama, at Mobile, on the fourth Monday^ of December and the first Monday of June in each year; for the middle district, at Montgomery, on the first Monday of May and the first Monday of November in each year : for the northern district, at Huntsville, on the first Monday of April and the second Monday of October in each year. Arhansas. — In the eastern district of Arkansas, at Little Rock, on the first Monday in April and October,'^ and at Helena, on the second Monday in March and October ; in the western district of Arkansas, at Fort Smith, on the first Monday in February, May, August and November. California. — In the district of California, at San Francisco, on the first Monday in April, on the second Monday in August, and on the first Monday in December. Connecticut. — In the district of Connecticut, at New Haven, on the fourth Tuesday in February ; at Hartford, on the fourth Tuesday in May ; at New Haven, on the fourth Tuesday in August, and at Hartford, on the^ first Tuesday in D ecember. Colorado. — '^That terms of the circuit and district courts of the United States for the district of Colorado shall be held at the times and places hereinafter designated, namely: At Denver, on the first ' As amended hy act of June 22, ^ As amended by act of June 30, 1S74, ? 6, IS Stat. 195. 1879, ch. 49. 21 Stat. 41. ■^ As amended by act of January * As amended by act of April 20, :-.]. 1S74, ch. 41, 19 Stat. 230. " 1880, oh. 58. § 1, 21 Stat. 7('.. 38 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Tuesday in May and the first Tuesday in October in each year ; at Pueblo, on the first Tuesday in March in each year ; at Del Norte, on the first Tuesday in September in each year. Delaware. — In the district of Delaware, at Wilmington, on the second Tuesday in January, April, June and September. Florida. — In the northern district of Florida, at Tallahassee, on the first Monday in February, at Pensacola, on the first Monday in March, and at Jacksonville, on the first Monday in December. In the southern district of Florida, at Key West, on the first Monday in May and November. That a term of the district and circuit courts of the United States shall be held in each year at Tampa, in said district, com- mencing on the first Monday in March, provided that nothing herein contained shall be construed to impair or aff'ect the juris- diction of the district court of the United States for the northern district of Florida, in any case, civil or criminal, pending therein at the time of the passage of this act, but the same shall be pro- ceeded in to final disposition as if this act had not been passed. Georgia. — In the northern district of Georgia, at Atlanta, on the first Monday in March and September. In the southern district of Georgia, at Savannah, on the second Tuesday in February, May, August and November. 'A term of the circuit court and of the district court for the southern district of Georgia shall be held at Macon, in said state, on the first Monday of May and October in each year. lUhiois. — In the northern district of Illinois, at Chicago, on the first Monday in July and the third Monday in December. In the southern district of Illinois, at Springfield, on the first Monday in January and June, and at Cairo, on the first Monday in March and October. Indiana. — In the district of Indiana, at Indianapolis, on the first Tuesday in May and November, and at New Albany, on the first Monday in January and July, and at Evansville, on the first Mon- day in February and August. ^That there shall be two terms of the United States district and circuit courts for the district of Indiana, held in the city of Fort Wayne, Indiana, in each year, from and after the passage ^ As amended by act of January ^ As amended by act of June IS, 29, 1880, oh. 17, g 3, 21 Stat. 63. 1878, eh. 269, | 1, 20 Stat. 166. DISTRICT COURTS. 39 of this act, the time and length of the terms to be fixed by the judges of said courts respectively. ^That each of said courts shall be held in a building to be provided for that purpose by the county or city authorities without expense to the United States. Iowa. — In the northern district of Iowa, at Dubuque, on the third Tuesday in April and November, at Fort Dodge, on the third Tuesday in January and June, and at Sioux City, on the second Tuesday in February and July." In the southern district, at Keokuk, on the third Tuesday^ in January and the third Tuesday in June. In the central division, at Des Moines, on the second Tuesday in May and the third Tuesday in October. In the western division, at Council Bluffs, on the fourth Monday in March and the fourth Monday in September. Kansas. — In the district of Kansas, at the seat of government, on the second Monday in April, and at Leavenworth, on the second Monday in October. ^That there shall be one term of the United States district and circuit courts for the district of Kansas, held in the city of Fort Scott, in each year, the terms of said courts to be held on the second Monday in January from and after the passage of this act. But no cause of action or proceeding shall be tried or considered in the courts respectively herein provided for, unless by consent of all the parties thereto or order of the court for cause. ^That each of said courts shall be held in a building to be pro- vided for that purpose by the county or city authorities without expense to the United States. If no suitable building is provided without expense to the United States, then and in that case no court shall be held at that place. 'Kentucky. — In the district of Kentucky,^ at Covington, on the second Monday in May and the first Monday in December ; at Louisville, on the third Monday in February and the first Monday in October ; at Frankfort, on the first Monday in January and the ^ As amended by act of June 18, * As amended by act of March 3, 1878, ch. 269, § 3, 20 Stat. 166. 1879, oh. 177, | 1, 20 Stat. 355. * As amended by act of July 20, * As amended by act of March 3, 1882. ch. 312, § 7. 1879, ch. 177, § 3, 20 Stat. 355. 'As amended by act of February * As amended by act of July 1, 9, 1874, ch. 24, g 1, 18 Stat. 15. 1879, ch. 39, U, 21 Stat. 45. 4f) FEDERAL PLEAPIXG, FllACTICK AND PROCEDURE. fiocond Monday in June ; and at Paducah, on the first Monday in April and the third Monday in November. Louisiana. — In the district of Louisiana, at New Orleans, on the third Monday in February, May and November. BIdine. — In tho district of Maine, at Portland, on the fii'st Tues- day in February; at Bangor, on the fourth Tuesday in June; at Bath, on the first Tuesday in September, and at Portland, on the first Tuesday in December. Maryland. — In the district of Maryland, at Baltimore, on the first Tuesday in March, June, September and December. 3IassacJiusetts. — In the district of Massachusetts, at Boston, on the third Tuesday in March, on the fourth Tuesday in June, on the second Tuesday in September, and on the first Tuesday in December. Michigan. — In the eastern district of Michigan, at Detroit, on the first Tuesday in March. June and November. 'There shall be one or more terms of the district court for the eastern district of Michigan, held annually at the United States court room in the city of Port Huron in said district, at the discre- tion of the judge of said district court, and at such times as he shall appoint therefor. -The regular terms of the circuit and district courts in said southern division (of the western district of Michigan) shall be held at the city of Grand Rapids, commencing on the first Tuesday in March and October in each year. The regular terms of the circuit and district courts in said northern division (of the western district of Michigan) shall be held at the city of Marquette, commencing on the first Tuesday in May and September in each year. And all issues of fact shall be tried at the terras of said courts to be held in the division where such suits shall hereafter be com- menced; but nothing herein contained shall prevent tlie said circuit and district courts from regulating by general rule the venue of transitory actions, either in law or in equity, and from changing the same for cause. Minnesota. — In the district of Minnesota, at Winona, on the first Monday in June, and at St. Paul, on the first Monday in October. Mississijyjn. — In the northern district of Mississippi, at Oxford, on the first Monday in June and December. ^ As amended by act of June 19, ^ As amended bv act of June 19, 1878, ch. 336, § 9, 20 Stat. 177. 1S7S, ch. 32fi, § 2, 2(J Stat. 17fi. DISTRICT COURTS. 41 In the southern district of Mississippi, at Jackson, oa the fourth Monday in January and June. 3Iis80uri. — In the eastern district of Missouri, at St. Louis, on the first Monday in May and November. In the western district of Missouri, at Jefferson, on the first Monday in March and September. The ^western district of Missouri is hereby divided into two divisions, which shall be known as the eastern and western divisions of the western district of Missouri. The western division shall in- clude the counties of Andrew, Atchison, Barton, Bates, Buchanan. Caldwell, Carroll, Cass, Chariton, Cla}^ Clinton, Daviess, De Kalb, Gentry, Grundy, Harrison, Holt, Jackson, Jasper, La Fayette. Linn, Livingston, Mercer, Nodaway, Piatt, Putnam, Ray, Saline, Sullivan, Vernon and Worth, and a term of the district court and circuit court of the United States for said district shall be held therein at the city of Kansas, on the third Monday in May and the third Monday in October of each year. The remaining counties embraced in said district shall constitute the eastern division thereof, and the terms of the circuit and district court? of the United States for said district shall be held therein at tht- times and places now prescribed by law. Nebraska. — In the district of Nebraska, at Omaha, on the first Mon- day in May and on the ^second Monday in November in each year. That ^ there shall be one term of the United States district and circuit courts for the district of Nebraska, held in the city of Lin- coln, Nebraska, on the first Monday in January in each year, from and after the passage of this act, and one grand jury and one petit jury only shall be summoned and serve in both of said courts at each term thereof. Nevada. — In the district of Nevada, at Carson City, on the first Monday in February, jMay and October. New Hampshire. — In the district of New Hampshire, at Ports- mouth, on the third Tuesday in March and September; at Exeter, on, the third Tuesday in June and December. New Jersey. — In the district of New Jersey, at Trenton, on the third Tuesday in January, April, June and September. New York. — In the northern district of New York, at Albany, ' As amended by act of January ^ As amended by .act of June 19. 21, 1879, ch. 20, | 1, 20 Stat. 263. ' 1S7S. di. 31.3, 20 Stat. 169. ' As amended by act of February 17, 1877, ch. 60, 19 Stat.. 232. 42 FEDERAL PLEADING, PRACTICE AND PROCEDURE. on the third Tuesday in January ; at Utica, on the third Tuesday in March ; at Rochester, on tlie second Tuesday in May ; at Buffalo, on the third Tuesday in August ; at Auburn, on the third Tuesday in November ; and, in the discretion of tlie judge of said court, one term annually at such time and place within the counties of Saint Law- rence, Clinton, Jefferson, Oswego and Franklin as he may from time to time appoint. Such appointment shall be made by a notice of at least twenty days published in the state paper of the state of New York, and in one newspaper published at the place where said court is to be held ; and said term shall be held only for the trial of issues of fact arising within said counties. In the southern district of New York, at the city of New York, on the first Tuesday in every month. In the eastern district of New York, at Brooklyn, on the first AVednesday in every month. North Carolina. — In the eastern district of North Carolina, at Elizabeth City, on the third Monday in April and October ; at New Berne, on the fourth Monday in April and October ; and at Wilming- ton, on the first Monday after the fourth Monday in April and October. In the western district of North Carolina, at Greensborough, on the first Monday in April and October ; at Statesville, on the third Monday in April and October; and at Asheville, on the first Mon- day in May and November. ^ That additional terms of the district and circuit courts of the United States for the western district of North Carolina shall here- after be held at the city of Charlotte, in said state, and that said terms shall commence respectively on the second Monday in June and the second Monday in December in each and every year, and shall continue until the business is disposed of. Ohio. — In the eastern division of the northern district of Ohio, at Cleveland, on the first Tuesday in January, April and October. ^ That a term of the circuit court and district court for the western division northern district of Ohio shall be held at Toledo, in said state, on the first Tuesday in the months of June and December in each year, and one grand jury and one petit jury only shall be summoned and serve in both of said courts at each term thereof. ^A term of the circuit court and of the district court for the ' As amended by act of June 19, ^ As amended by act of February 4, 1878, ch. 322, 20 Stat. 173. 1880, ch. 18, g 2, 21 Stat. 64. ^ As amended by act of June 8, 1878, ch. 169, 20 Stat. 101. DISTRICT COURTS. 43 southern district of Ohio shall be held at Columbus, in said state, on the first Tuesday in the months of June and December in each year. In the southern district of Ohio, at Cincinnati, on the first Tuesday in February, April and October. Oregon. — In the district of Oregon, at Portland, on the first Monday in March, July and November. Pennsylvania. — In the eastern district of Pennsylvania, at Philadel- phia, on the third Monday in February, May, August and November. In the western district of Pennsylvania, at Pittsburgh, on the first Monday in May and on the third Monday in October ; at Williamsport, on the third Monday in June and on the first Mon- day in October ; at Erie, on the second Monday in January and the third Monday in July. Rhode Island. — In the district of Rhode Island, at Providence, on the first Tuesday in February and August ; at Newport, on the second Tuesday in May and the third, Tuesday in October. South Carolina. — In the eastern district of South Carolina, at Charleston, on the first Monday in January, May, July and October. In the western district, at Greenville, on the first Monday in August. Tennessee. — In the eastern district of Tennessee, at Knoxville, on the second Monday in January and July. In the middle district of Tennessee, at Nashville, on the third Monday in April and October. In the western district of Tennessee, at Memphis, on the fourth Monday in May and November. ^A term of the circuit court and of the district court for the eastern district of Tennessee shall be held at Chattanooga, in said state, in each year on the first Monday in April and October. -The western district of Tennessee is hereby divided into two di- visions, which shall be known as the eastern and western divisions thereof. The eastern division shall include the counties of Benton, Carroll, Decatur, Gibson, Henderson, Henry, Madison, McNairy, Hardin, Dyer, Lake, Crockett, Weakley and Obion ; and terms of the circuit and district courts of the United States for said dis- trict shall be held therein at the town of Jackson, in the county of Madison, at least twice in each year, at such times as the judges ^ As amended by act of June 11, 1^78, ch. 359, 20 Stat. 235, and March 1880, ch. 203, § 2, 21 Stat. 175. 3, 1879, ch. 1820, 2 Stat. 398. ^ As amended by act of June 20, 44 FEDERAL PLEADING, PRACTICE AND PROCEDURE. thereof shall respectively fix. The remaining counties embraced in said district shall constitute the western division thereof, and terms of the district and circuit courts of the United States for said district shall be held therein at the time and place now pre- .'■cribed by law. Texas. — 'That the courts in the northern judicial district (of Texas) shall be held twice in each year at Waco, Dallas, and ar Graham in Young County ; and the courts in the eastern judicial district shall be held twice in each year at Galveston, Tyler and Jefferson ; and the courts in the western judicial district shall be hehl twice in each year at Brownsville, San Antonio and Austin. The courts shall be held in the city of Waco on the first Monday in April and October ; in the city of Dallas, on the first Monday in June and December; in the town of Graham, Young County, on the first Monday in February and August ; in the city of Galveston, on the first Monday in November and March ; at the city of Tyler, on the second Monday in January and May ; at the city of Jefferson, on the second Monday in February and. September ; at the city of Brownsville, on the first Monday in January and July ; at San Antonio, on the first Monday in May and November;- at Austin, on the first Monday in February and August. And the district judge of each of said districts shall have power to fix adjourned terms at all of said places, so as to dispose of the whole of the business of said courts. Vermont. — In the district of Vermont, at Burlington, on the fourth Tuesday in February ; at Windsor, on the ^third Tuesday in May ; at Rutland, on the first Tuesday in October. Virginia. — In the eastern district of Virginia, at Richmond, on the first Monday in April and October ; at Alexandria, on the first Monday in January and July ; and at Norfolk, on the first Monday in May and November. In the western district of Virginia, at Danville, on the Tuesday after the fourth Monday in February ^and on the fifteenth day of November, but if said last-mentioneil day shall fall on Sunday, the term shall commence on the following day ; at Lynchburg, on the Tuesday after the third Monday in March and September ; at ^ As amended by act of February ''As amended by act of June 11, 24, 1879, ch. 97, H, ^0 Stat. 31S. / 1S7J>, ch. 1SL>, 20 Stat. 111. ■^ As amended by act of June 5. 1874, ch. 214, 18 Stat. 53. DISTRICT COURTS. 45 Abingdon, on the Tuesday after the fourth Monday in May and October; and at Harrisonburg, on the Tuesday after the first Monday in May, and the Tuesday after the second Monday in October. West Virginia. — ' That hereafter the district court of the United States for the district of West Virginia shall be held at the times and places following, but when any of said dates shall fall on Sun- day, the term shall commence the following Monday, to wit : At the city of Wheeling, on the first day of March and the first day of Sep- tember ; at Clarksburg, on the first day of April and the first day of October.; at Charlestown, on the first day of May and the first day of November. Wisconsin. — In the eastern district of Wisconsin, at Oshkosh, on the ^second Tuesday of July of each year; at Milwaukee, on the first Monday in January and October. In the western district of Wisconsin, at Madison, on the first Monday in June ; and at La Crosse, on the third Tuesday in September. Effect of changing time of holding district courts. — Sec. 573. No action, suit, proceeding or process in any district court shall abate or be rendered invalid by reason of any act changing the time of holding such court ; but the same shall be deemed to be returnable to, pending and triable in the terms estab- lished next after the return day thereof. Court always open as a court of admiralty for certain purposes. — Sec. 574. The district courts, as courts of admiralty, and as courts of equity so far as equity jurisdiction has been con- ferred upon them, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final pro- cess, and of making and directing all interlocutory motions, orders, rules and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. And any district judge may, upon reasonable notice to the parties, make, and direct and award, at chambers, or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules and other pro- ceedings, whenever the same are not grantable of course, according to the rules and practice of the court. ^ As amended by act of March 9, - As amended by act of June 1(>, 1878, ch. 27, 20 Stat. 27. 1874, ch. 286, § 1, 18 Stat. 75. 4g federal pleading, practice and procedure. District court in the southern district of Florida. — Sec. 575. The district court for the southern district of Florida shall at all times be open, for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction. District courts in Wisconsin. — Sec. 576. The district courts of the districts of Wisconsin shall at all times be open, for the pur- pose of hearing and deciding causes of admiralty and maritime jurisdiction, so far as the same can be done without a jury. District courts in Kentucky and Indiana. — Sec. 511. In the districts of Kentucky and Indiana the terms of the district courts shall not be limited to any particular number of days, nor shall it be necessary to adjourn by reason of the intervention of a term of the court elsewhere ; but the court intervening may be ad- journed over till the business of the court in session is concluded. Adjournment in criminal cases. — Sec. 578. District courts shall hold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and delays in such cases. Adjourned terms. — Sec. 579. The judge of any district court in Indiana, Kentucky, Louisiana, Michigan, Ohio, Pennsylvania and Texas may adjourn the same from time to time, to meet the necessities or convenience of the business. Adjourned terms in Kentucky and Indiana. — Sec. 580. In the districts of Kentucky and Indiana the intervention of a term of the district court at another place, or of a circuit court, shall not preclude the power to adjourn over to a future day. Special terms. — Sec. 581. A special term of any district court may be held at the same place where any regular term is held, or at such other place in the district as the nature of the business may require, and at such time and upon such notice as may be ordered by the district judge. And any business may be transacted at such special term which might be transacted at a regular term. Tennessee; when circuit judges may act as district judges. — Sec. 582, In the case of the non-attendance of the district judge of Tennessee at any term of the district court in either of the districts thereof, the circuit justice or circuit judge of the circuit to which such district belongs may hold such term, and shall have and exercise the jurisdiction and powers given by law to a district judge. DISTRICT COURTS. 47 Adjournment in case of non-attendance of a judge. — Sec. 583. If the judge of any district court is unable to attend at tlie commencement of any regular, adjourned or special term, the court may be adjourned by the marshal, by virtue of a written order di- rected to him by the judge, to the next regular term, or to any ear- lier day, as the order may direct. The same in certain states. — Sec. 584. If the judge of any district court in Alabama, California, Georgia, Indiana, Iowa, Kentucky, North Carolina, Tennessee or West Virginia is not present at the time for opening the court, the clerk may open and adjourn the court from day to day for four days ; and if the judge does not appear by two o'clock after noon of the fourth day, the clerk shall adjourn the court to the next regular term. But this section is subject to the provisions of the preceding and next sections. Adjournment in Indiana and Kentucky. — Sec. 585. In the districts of Indiana and Kentucky, the district judge, in the case provided in the preceding section, may, by a written order to the clerk within the first three days of his term, adjourn the district court to a future day within thirty days of the first day. The clerk shall give notice of such adjournment by posting a copy of said order on the front door of the court house where the court is to be held. Intermediate terms in California, Iowa and Tennessee. — See. 586. Whenever the judge of any district court in the dis- tricts of California, Iowa and Tennessee fails to hold any regular term thereof, it shall be his duty, if it appears that the business of the court requires it, to hold an intermediate term. Such intermediate term shall be appointed by an order under his hand and seal, ad- dressed to the clerk and marshal at least thirty days previous to the time fixed therein for holding it, and the order shall be pub- lished the same length of time in the several newspapers published within such districts respectively. And at such intermediate term the business of the court shall have reference to and be proceeded with in the same manner as if it were a regular term. Business certified to circuit court in case of disabil- ity OF district judge. — Sec. 587. When satisfactory evidence is shown to the circuit judge of any circuit, or, in his absence, to the circuit justice allotted to the circuit, that the judge of any dis- 48 FEDERAL PLEADIXit, PRACTICl-: AND PROCEDURE. trict therein is disabled to hold a district court, and to perform the duties of his office, and an application accordingly is made in writing to such circuit judge or justice, by the district attorney or marshal of the district^ the said judge or justice, as the case may be, may issue his order in the nature of a certiorari, directed to the clerk of such district court, requiring him forthwith to certify into the next circuit court to be held in said district all suits and pro- cesses, civil and criminal, depending in said district court, and undetermined, with all the proceedings thereon, and all the files and papers relating thereto. Said order shall be immediately published in one or more newspapers printed in said district, at least thirty days before the session of such circuit court, and shall be sufficient notification to all concerned ; and thereupon the circuit court shall proceed to hear and determine the suits and processes so certified. And all bonds and recognizances taken for, or return- able to, such district court, shall be held to be taken for, and returnable to, said circuit court, and shall have the same effect therein as they could have had in the district court to which they were taken. (See § 637.) Suits brought in district court after order to certify TO CIRCUIT COURT. — See. 588. When an order has been made as provided in the preceding section, the clerk of the district court shall continue, during the disability of the district judge, to certify, as aforesaid, all suits, pleas and processes, civil and criminal, there- after begun in said court, and to transmit them to the circuit court next to be held in that district ; and the said court shall proceed to hear and determine them as provided in said section ; provided, that when the disability of the district judge ceases or is removed, the circuit court shall order all such suits and proceedings then pending and undetermined therein, in which the district courts have an exclusive original cognizance, to be remanded, and the clerk of such court shall transmit the same, with all matters relating thereto, to the district court next to be held in that district ; and the same proceedings shall then be had in the district court as would have been had if such suits had originated or been continued therein. Construction of the foregoing section. — The language of the statute evidently supposes a district judge in existence to whom the causes may be remanded. It does not direct a certiorari on his death, but on his disability. It does not suppose a vacancy, DISTRICT COURTS. 49 but an incumbency, in the office. The meaning of the statute must be that while there is a judge in office who is disabled to hold a court, his duties shall be performed by the circuit court during the disability. With his death the disability ceases, a vacancy ensues in the office, and a new appointment awakens in full vigor the powers of the district court. ^ P0V7ERS OF DISTRICT JUDGE VESTED DURING DISABILITY IN CIRCUIT JUDGE. — See. 589. In the case provided in the two pre- ceding sections, the circuit judge, and in his absence the circuit justice, shall have and exercise, during such disability, all the powers of every kind vested by law in such district judge. But this provision does not require them to hold any special court, or court of admiralty, at any other time than that fixed by law for holding the circuit court in said district. Preparatory examinations and orders in admiralty cases »-jBY the clerk. — Sec. 590 (as amended by act of February 18, 1875, T^ch. 80, 18 Stat. 317). When the business of a district court is ^>certified into the circuit court on account of the disability of the ^ 'district judge, the district clerk shall be authorized, by order of .the circuit judge, or, in his absence, of the circuit justice within Ph whose circuit such district is included, to take, during such dis- <^ ability, all examinations and depositions of witnesses, and make all necessary rules and orders, preparatory to the final hearing of all causes of admiralty and maritime jurisdiction. District judge designated to perform duties of disabled JUDGE. — Sec. 591. When any district judge is prevented, by any disability, from holding any stated or appointed term of his district court, or of the circuit court in his district, in the ab- senCj^ of the other judges, and that fact is made to appear by the certificjteof the clerk, under the seal of the court, to the circuit ju(^ge, jir,jjn his absence, to the circuit justice of the circuit in whi Forbes v. Parsons, Crabbe 288. * Hale w.Wash. Ins. Co., 2 Story 176. DISTRICT COURTS. 69 presumed where he had knowledge of it and did not interfere to prevent it.^ The authority of the master or captain of a vessel to punish sea- men for disobedience ends, it seems, with the voyage ; and if an offending seaman is afterwards taken again on board, the officer cannot thereafter punish or assault and beat him for an offence committed before he discharged him.^ § 54. Injury to passengers. — The admiralty jurisdiction of the district courts extends to assault and battery of passengers as well as to seamen, and they may recover damages for willful and wanton injuries, whether they are the result of direct force or merely consequential and indirect, as where a passenger has been subjected to gross ignominy and mental suffering by the brutal maltreatment and insults of the master of the vessel. It extends to every species of torts and wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law would be an action on the case.^ 1 Hanson v. Fowle, 1 Saw. (C. C.) 242; Phila., W. & B. R. Co. v. Tow- 539. boat Co., 23 How. 209 ; The Plymouth, ^ Roberts v. Dallas, Bee's Adm. 239. 3 Wall. 20 ; The New World v. King, ^ Chamberlain v. Chandler, 3 Mas. 16 How. 469 ; The Eagle, 8 Wall. 15. CHAPTER VI. PLEADING AND PRACTICE IN ADMIRALTY. § 55. General principles.— The general rules, principles and modes of procedure which obtained in the English courts of ad- miralty and maritime jurisdiction at the inception of our govern- ment are substantially applicable to our federal courts of admi- ralty and maritime jurisdiction. These have in some cases been changed or modified by acts of Congress, and regulated by rules prescribed by the Supreme Court, and by local rules of the courts in the various districts.^ But the exercise of powers and usages by the district courts, generally recognized as belonging to courts of admiralty and maritime jurisdiction, cannot be restrained by mere rules of court. ^ § 56. The libel. — The first pleading on the part of the libellant or party instituting proceedings on the admiralty side of the court is the libel, which should contain a clear statement of the ma- terial facts of the case in distinct articles or paragraphs, con- secutively numbered — of the wrongs done for which he claims dam- ages, and the grounds on which he bases his claims to property, with such sufficient fullness and precision as to enable the defendant to answer distinctly each material averment; and it should especially contain averments which bring the case within the admiralty juris- diction of the court. ^ The pleadings in admiralty are simple and untechnical, and in this respect they correspond more closely with pleadings in equity than those of the common law. § 57. Process cannot issue until the libel is filed. — No mesne pro- cess can issue in any civil cause of admiralty or maritime jurisdic- tion until the libel or libel of information is filed in the office of the clerk of the court from which relief is sought. And all process must be served by the marshal or his deputy, or, where they are 1 Manro v. Almeida, 10 Wh. 473 : ' The Boston, 1 Sum. 328 ; Talbot United States v. The Little Charles, v. AYakeman, 19 How. Pr. 36; Du- 1 Brock. 380 ; .Jennings v. Carson, 4 pont v. Vance, 19 How. 162; The Cr. 2 ; Adm. Rule 46 ; Beers v. Adaline, 9 Cr. 244 ; Thomas v. Lane, llaughton, 9 Pet. 329. 2 Sum. 1 ; Orne v. Townsend, 4 Ma.s. ^ Gates V. Johnson, 11 L. Rep. N. S. 541; Treadwell v. -Joseph, 1 Sum. 279. 390 ; The Washington, 4 Blatch. 101. PLEADING AND PRACTICE IN ADMIRALTY. 71 interested, by some discreet and disinterested person appointed by the court. ^ The process must be directed to the marshal or his deputy, or, where he or they are interested, to some discreet and disinterested person appointed by the court ; and it cannot be served by a private person, although by the laws of the state orii^inal pro- cess may be so served.^ For form of citation in such case, see post, No. 124. § 58. The mesne process. — In suits in personain, the mesne pro- cess may be by a simple warrant of arrest of the person of the defendant in the nature of a capias, or warrant of arrest of the person of the defendant, with a clause therein that, if he cannot be found, his goods and chattels be attached to the amount sued for; and if such property cannot, be found, his credits and effects be attached to the amount sued for in the hands of garnishees named therein, or by a simple monition in the nature of a summons to appear and answer to the suit, as the libellant shall in his libel or information pray for or elect.^ For appropriate forms in such cases, see post, Nos. 123, 137. § 59. Several claims for damages. — If several claims for damages are united in one libel, it would seem advisable to state the facts of each separately in a distinct article or paragraph, as otherwise the defendant might not be able to make a proper answer and it would be subject to exception.* If the libel is for damages for an assault and battery, it is sufficient to set forth the facts constituting the offence; but if it is designed to recover for several distinct and separate torts of this kind, it is desirable, if not necessary, to set them out distinctly in separate and distinct articles, in order that proper evidence may be offered in support of them, as it is a gen- eral rule in admiralty as well as at law and in equity, that the proofs must be confined to and follow the allegations of the pleadings.'^ Under a rule, however, prescribed by the Supreme Court, amend- ments in pleadings in admiralty may be made in matters of form, on a mere motion to the court, as of course, in matters in substance, upon motion at any time before a decree, upon such terms as the court shall impose. But evidence variant from the pleadings will 1 Adm. Rule 1. * Treadwell v. Joseph, 1 Sura. 390. ^ Schwabackerr. Reilly, 2Dill. 127; * McKinlay v. Morrish, 21 How. The United States v. The Little 343 ; Kramme v. The New England, Charles, 1 Brock. 380. • Newb. 481 ; Campbell v. The Uncle 3 Adm. Rule 2. ^ Sam, 1 McAll. 77. i2 FEDERAL PLEADING, PRACTICE AND PROCEDURE. not furnish grounds for excluding it, unless it is calculated to mislead.^ For various forms of libel, see post, Nos. 110-121. § 60. Suits against the ship's tackle, etc. — In case of proceedings against a ship, her tackle, sails, apparel, furniture, boats or other appurtenances, if such tackle, sails, apparel, furniture, boats or other appurtenances are in the possession of any third person, the court may, after the filing of the libel, issue a monition to such person to show cause, if any, why the same should not be delivered to the marshal, and the court may upon the hearing, if any, award and decree that the same be delivered into the custody of the marshal if it appears to be required by law and justice.^ For forms of bond or stipulations for costs, order for process, and forms of process of various kinds, see post, Nos. 127, 128, 129, 130, and 136-188. § 61. Order for process to issue ; stipulation for costs. — There does not appear to be any positive statutory provision or rule pre- scribed by the Supreme Court requiring the libellant to give security for costs ; but this is perhaps generally required by rules adopted by the various district couros. Nor is there any statute or rule requiring the issuance of process, but the practice is to obtain an order of the judge for the proper process to issue; and this is especially required where the suit is in personam, and a warrant of arrest either of the person or property is asked, for a sum exceed- ing five hundred dollars.^ For a form of order in such a case, see post, No. 136. It is further provided by rule that bonds and stipulations in ad- miralty suits may be given and taken in open court or at chambers, or before any commissioner of the court who is authorized by the court to take affidavits of bail or depositions in cases pending before the court or any commissioner of the United States author- ized to take bail and affidavits in civil cases.* The stipulation should be signed by the libellant and the sure- ties, and be acknowledged before the proper officer, who should require a justification by affidavit on the part of the surety. If, however, there is a defective stipulation filed with the clerk, the ^ Adm. Rule 24; Crawford v. The Certain Logs of Mahogany, 2 Sum. William Penn, 3 Wash. 4S4 ; The 589. Clement, 2 Curt. 363. ' ^ j^^j^ Ryig y^ " Adiu. Rule 8. See also, as to at- * Adm. Rule 5. t;ich!iie)its or replevin of property, PLEADING AND PRACTICE IN ADMIRALTY. 73 defect will be deemed waived unless excepted to by the party in- terested therein before the close of the term of court next subse- quent to its becoming known to him.^ § 62. New sureties, when required ; bail reduced. — It is further provided by rule that in all suits in personam, where bail is taken, the court may on motion therefor reduce the amount of the bail ; and in all cases where a bond or stipulation is taken as bail, or upon dissolving an attachment of property as provided by the rules, 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 due proof thereof.^ § 63. In case of contracts or torts, may attach. — The district courts have, as we have observed, jurisdiction of maritime contracts and torts, and of suits in personam as well as in rem. If the suit is in personam, the court may issue a process of arrest which may contain an attachment clause, and if the defendant has absconded or cannot be found within the jurisdiction of the court, the property of the defendant may be attached ; and in case of default, the at- tached property may be condemned to answer the claim of the libellant. If property of the defendant cannot be found, the credits and effects of the defendant in the hands of the third parties may be garnisheed.^ The primary object in all such cases is to secure the appearance of the defendant in the suit, and not the arrest of the property. § 64. When attachments may be dissolved. — When property is at- tached in a suit in personam, under a warrent authorizing the same, the attachment maybe dissolved by order of the court to which the warrant is returnable, by the giving of a bond or stipulation by the defendant, with sufficient sureties, to abide by all orders of the court, interlocutory or final, and to pay the amount awarded by the final decree rendered by said court or any appellate court; and execu- tion may issue against said principal and sureties from either of said courts, to enforce a final decree rendered therein.^ The bond in such a case becomes a substitute for the property seized, and the question as to the right to subject the property to the claim of the ^ Abb. Adm. 327; Sawyer v. Oak- Candalero, Bee's Adm. 64; Bouyson ham, 11 Blatch. C. C. 65. o. Miller, Id. 186 ; Keed v. Hussey, 1 2 Adm. Rule 6. Blatch. & H. 525 ; Mankin v. Chan- ^ Adm. Rule 2 ; Manro v. The Al- dler, 2 Brock. 125. meida, 10 Wh. 473; McGrath v. The * Adm. Rule 4. 74 FEDERAL PLEADING, PRACTICE AND PROCEDURE. libellant must be determined before a final decree can be rendered on the bond, either by the district court or the circuit court on appeal, and the Supreme Court cannot review this question. And if suoh a bond or stipulation is given by a member of a firm, at their re- quest and for their benefit, this bars a suit against the other part- ners.^ § 65. "When the marshal may take bail ; summary process. — It is further provided by rule, that " In all suits in persona7n where a simple warrant of arrest issues and is executed, the marshal may take bail with sufficient sureties from the parties arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final decree rendered therein in the court to which the process is returnable, or in the appellate court. And upon such bond or stipulation summary process of execution may and shall be issued against the principal and sure- ties by the court to which such process is returnable to enforce the final decree so rendered, or upon appeal by the appellate court." ^ It is not sufficient under this rule, in order to release the party in custody, that he give a stipulation for costs on the return day of the process, but he is required to give a bond or stipulation to satisfy any decree which may be rendered against him in the suit, and until this is done he cannot be discharged from arrest.^ Where the condition of the bond provided that the parties w^ould perform the decree of the court, etc., it was held that this meant the court that should ultimately decide the case.* But the court will not suffer a party to be held to bail in two places at the same time, for the same cause of action.^ "When a decree is rendered against the principal in the bond or stipulation, execution may properly issue again.st the stipulators, upon the decree rendered, as well as against the principal." For various forms of bonds or stipulations in such cases, see 2)ost, Nos. Ill, 114, 128, 129, 130. § 66. When a warrant of arrest cannot issue. — It has already been incidentally observed that no Avarraut of arrest, either of the person 1 United States v. Ames, 99 U. S. ■• The U. S. v. Little Charles, 1 3.5. Brock. C. C. 380. '^ Adm. Rule 3. * Bingham v. Wilkins, Crabbe 50. ^Gardner v. Isaacson, Abb. Adm. ® Gaines v. Travers, Abb. Adm. 141. 422. PLEADING AND PRACTICE IN ADMIRALTY. 75 or property of the defendant, in suits in personam, can issue for a sum exceeding five hundred dollars, unless by special order of the court, upon affidavit or other proper proof, showing the propriety thereof.^ § 67. The claim ; pleading of a claimant in proceedings in rem. — A person who claims the property involved in a proceeding in rem may, by a sort of pleading called a claim, intervene in the suit and have his right to the same adjudicated in the same suit. He may obtain the property, in the first instance by depositing in court so much money as the court shall order, or by giving a stipulation Avith sureties, after an appraisement of the property, in such sum and on such conditions as the court may direct. The court on the hearing may adjudge the property to him, or that he receive the balance of its proceeds after satisfying any decree in favor of the libellant, as the case may require.^ For forms of claims see post, Nos. 113, 118. § 68. Where the property arrested is owned by several or jointly. — It frequently occurs that property arrested by proceedings in admiralty is owned by several parties, as, for instance, a vessel or its cargo, in which latter case there might, and usually "would, be several owners of it. In such a case it seems to be the practice to allow one of them to make a claim on behalf of himself and the other owner or owners ; but, where the property interests are distinct, it is required by the general principles of admiralty practice that the claims be set up by each of the several owners. Between such parties there is no pri- ority of interest, and their interests are, therefore, independent matters of adjudication. Several parties owning distinct parts of a cargo, separately may interpose in case of a libel for salvage, although the libel is against the whole, and the claims of the several parties would be adjusted in the one proceeding, as if it had been a distinct proceeding against the particular property of each owner. And in case any particular part of the property arrested is not claimed, it is the practice of the court to retain possession of it for at least a year and a day from the time the proceedings are insti- tuted, unless some claimant sooner appears. ^ Adm. Rule 7 : Marshal v. Bazin, release a vessel is not a waiver of the 7 N. Y. Leg. Obs. 342. question of orijiinal liability ; The ^ Conk. Adm. 203, and Dotes; Adm. Fidelity, 16 Blatch. 569. Rule 10, 11. But a stipulation filed to 76 FEDERAL PLEADING, PRACTICE AND PROCEDURE. As a general rule the claimant is required to intervene on the return day of the process, and then be ready to file his elaim in court; and in case of failure so to do, or of the defendant to appear and answer by that time, the libel may be taken joro confesso; but it is usual to allow a reasonable time thereafter to the defendant to prepare an answer, where he applies for further time.* Sometimes the claim of proprietory right is joined with an an- swer, and called a claim and answer ; but as the right of a claimant in court rests upon his right of property or that of his principal, and this alone gives him a right to interpose a claim, it has been considered the better practice to put in the claim separately.^ § 69. The claim must be verified ; stipulation for costs. — It is required by a rule of practice in admiralty prescribed by the Supreme Court that, "in suits in rem, the party claiming the property shall verify his claim on oath or solemn affirmation, stat- ing that the claimant by whom or on whose behalf the claim is made is the true tindihond fide owner, and that no other person is the owner thereof. And where the claim is made by an agent or consignee, he shall also make oath that he is duly authorized thereto by the owner ; or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the law- ful bailee thereof for the own6r." The claimant in such a case is required to file a stipulation with sureties in such sum as the court may direct, for the payment of all costs and expenses which shall be awarded against him by the final decree of the court, or upon an appeal by the appellate court.^ For forms of claims, see post, Nos. 113, 118, 122. § 70. When the ship will be delivered to a claimant. — If any ship shall be arrested, it may, upon the application of a claimant, be delivered to him upon an appraisement had under the direc- tion of the court, and upon his depositing in the 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 that may be awarded by the final decree rendered by the court, or the appellate court if an appeal intervenes, as the one or the other course shall be ordered by the court ; and if the claim- ant shall fail to make such application, then the court may, on the application of either party, upon due cause shown, order a sale of 1 Conk. U. S. Adm. 303 et seq.; Adm. ^ Id. Rule 29. 2 Adm. Rule 26. PLEADING AND PRACTICE IN ADMIRALTY. 77 the ship which has been ai-rested, and the proceeds thereof to be brought into court, or otherwise disposed of it as it may deem most beneficial for all concerned.^ § 71. Stipulation by one of the o'wners of a vessel. — The ap- praisement provided for by the rules of court on an application for the delivery of a ship to a claimant as aforesaid is conclusive upon the party to whom it is delivered upon such an application. He cannot afterwards insist that the ship was of less value than that at which it was appraised ; nor can he be held beyond this ap- praised value, or show that he had discharged other liens, dimin- ishing the amount for which he was personally liable in the first instance.^ § 72. Perishable goods sold. — If the goods or other things ar- rested are perishable or liable to deterioration, decay or injury by detention in the custody of the marshal pending the suit, the court will, upon the application of either party, in its discretion, order the same or so much thereof as shall be perishable or liable to de- preciation, decay or injury by detention, to be sold, and the pro- ceeds, or so much thereof as shall be suflScient to satisfy any decree which may be rendered in the case, to be brought into court to abide the event of the suit ; or the court may, upon the application of a claimant, order a delivery thereof t« him, upon due appraisement to be had under its direction, either upon the claimant 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 which may be rendered by the court, or the appellate court if an appeal is taken, as the one or the other course is ordered by the court.^ It is not a matter of absolute right in such cases for either party to have a delivery of property on bail ; but if a ship is liable to be injured by a delay during a suit for salvage or the cargo to dete- riorate, it is proper to apply to the court for a sale thereof; and if, on a proper showing of facts, it would appear to be for the interest of all parties concerned, the court should order the sale.^ In case of ap- peal the thiyig does not follow the appeal to the higher court, but 1 Adm. Rule 11. ^ Adra. Rale 10. ^ The Virgin, 8 Pet. 538. But the * The Nathaniel Hoper, 3 Sum. ffiving of a stipulation waives no 543. See also The Cheshire, Blatch. rights of the stipulator in reference Pr. Cas. 1G5; The Elly Warley, Id. to original liabil^^y : IG Blatch. 569. 213. 78 FEDERAL PLEADING, PRACTICE AND PROCEDURE. remains in the court below, which may thereafter order a sale of the property on a proper application and showing as aforesaid.^ § 73. Where a state court has acquired jurisdiction. — The dis- trict courts will not interfere in a proceeding in rem with property properly in the custody of a state court. The tribunal having juris- diction, and first exercising it in such a case, may proceed with- out the interference of the other. Thus, if a party attaches a ves- sel by a process issued from a state court, and under the statutes of a state providing for such a proceeding, to secure a claim for mate- rial furnished, and a libel is subsequently filed by another person in a district court to enforce a lien for material furnished to repair the same vessel, the attachment issued from the state court would have priority over that of the federal court, and the plaintiff in the former suit could not be prejudiced by the latter.^ § 74. Information and libel on seizures. — It is required that "all informations and libels of information upon seizures for any breach of the revenue or navigation, or other laws of the United States, shall state the place of seizure, Avhether it be on the land or the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and the district within which the property is brought, and where it then is."^ It is further required that the information or libel of information " propound in distinct articles the matters relied on as causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such cases provided as the case may require ;" and it must " conclude with a prayer of due precess to enforce the forfeiture, and to give notice to all persons concerned in interest to appear and show cause at the return day of the process why the forfeiture should not be decreed."* It is necessary that the information or libel information should aver specially all the facts constituting the offence charged ; and a gen- eral reference to the provisions of the statutes claimed to have been violated is not sufficient.^ But liberal provisions are made for ' Jennings v. Carson, 4 Cr. 1. '" The Caroline v. United States, 7 2 The Fulton, 1 Paine 520. See also Cr. 496 ; The Happet and Cargo i\ Hine u. Trever, 4 Wall. 55 ; s. c, 17 United States, 7 Cr. 389; The Mar- Id. 349 ; Leon w. Galcerean, 11 Wall, garet, 9 Wh. 421. There must be 185; Donnell v. The Starlight, 103 certainty, in case several illegal acts Mas. 227. are charged, as to which constitutes ^ Adm. Kule 22. the offence : The Caroline, 1 Brock. Md. 384. . PLEADING AND PE^^CTICE IN ADMIRALTY. 79 amendments/ and an informal libel or information may be amended by leave of the court. And where a suit was brought against a vessel and master jointly, to recover a penalty for importing goods which were not included in the manifest, it was held proper to dismiss the suit as to the master, as he would be entitled under the statute to a jury trial, and proceed against the vessel in rern? It is manifest from the provisions of this rule that the owner of the libelled property may be represented by another in the presenta- tion of the claim. Thus while the ship against which the proceedings are instituted is at the time of the arrest in the possession of the master of the ship, he may put in the claim as bailee, for the owner, and verify it.^ Such claim and verification is by no means conclusive of the right of property, but only enables the claimant to controvert the claims of the libellant and allows him by proofs to establish his rights tliereto. If it should, however, appear on the trial that his claim was not well founded, whether the claims of the libellant were established or not, and that some other party not represented by the claimant was the owner, or had an adverse interest in it, the court would retain the property, and allow him an opportunity to claim it.* § 75. How decrees may be enforced. — The final decree of the district court in admiralty for the payment of money may be enforced by a writ of execution, to which the libellant is entitled, in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chat- tels, lands and tenements, or other estate of the defendant or his stipulators.' The execution issues summarily against stipulators, upon a decree being rendered against the principals, the execution of the stipula- tion by them being regarded as an agreement to submit to such decrees as may be entered against those for whom they have become thereby bound. ^ For form of execution, see post, Nos. 135, 146. § 76. Prize causes. — The district courts have exclusive cogni- zance of all prize causes, except as provided by paragraph six of 1 Adm. Rule 24. * Conk. Adm. ^ The United States v. The Steam- ^ Adm. Rule 21. ship Queen, 1 1 Blatch. 416. ^ Gaines v. Travis, 1 Abb. Adm. 422 : ^ Adm. Rule 2^, see ^os<. The Blanche Page, 16 Blatch. 1. 80 FEDERAL PLEADING, PRACTICE AND PROCEDURE. section G29 of the Revised Statutes,' which also confers concurrent jurisdiction upon the circuit court, in proceedings to condemn prop- erty taken as prize which is used or intended to be used to aid any insurrection.^ In the adjudication of these cases they may decree a restitution of the whole or a part of the captured property, and they may decree damages against the captors, where the capture was wrongful and without probable cause ;^ and if the seizure was not only illegal, but a gross and wanton outrage, the court is not limited, in its decree of damages against the captors, to the actual pecuniary loss sus- tained by the seizure, but may, in analogy to the doctrine of the com- mon law relating to damages for willful outrage and oppression, give such damages to the injured party as will compensate for the men- tal suifering and humiliation which may have been sustained thereby, or damages of a punitive or exemplary character.* By the general principles of the admiralty law, seizures must be made upon the high seas, or on contiguous waters where the tide ebbs and flows ;^ but the section under consideration confers exclu- sive jurisdiction on the district courts in all cases where the seizure is made on land, or on waters not within admiralty jurisdiction, except in cases of proceedings for the condemnation of property captured under a claim that it was used or intended to be used in aid of an insurrection against the government of the United States, in which latter case the circuit courts have also jurisdiction.^ § 77. In cases of seizure ; process. — In all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, must be by warrant of arrest of the ship, goods or other things to be arrested; and the marshal is thereupon required to arrest and take the ship, goods or other thing into his possession for safe custody ; and it is his duty to give public notice thereof, and of the time assigned for the return of such process and the hearing of the cause, in such newspaper within the district as 1 Rev. Stat. ^ 629, par. 6 ; Id. par. 9. Siren, 7 Wall. 162 ; The Brio; Alerta 2 Rev. Stat. ^ 629 ; sub. 6 ; Id. ^ 5308. v. Moran, 9 Gr. 359 : The Estella, 4 =* Glass V. Sloop Betsey, 3 Dall. 6 Wh. 307-, Keene i). The United States, (1793); Penhallow v. Doan, 3 Dall. 54; 5 Cr. 304; United States v. Schooner Talbot V. Janson, 3 Dall. 133 ; Bino;- Sally, 2 Cr. 406. ham V. Cabot, 3 Dall. 19; Jennino;a v. ^ The Sarah, 8 Wh. 391 ; Id. 1 Pet. Carson, 4 Cr. 2 ; Bowen v. United 549. States, 8 Cr. 110 ; The Estella, 4 Wh. s ^^^, st^t. ^ .'iGS, sub. 8 ; Id. 629, 298; The Siren, 7 Wall. 152. sub. 6 : Id. 5308. * The Amiable Nancy, 3 Wh. 546; The PLEADING AND PRACTICE IN ADxMIRALTY. 81 the court shall order ; and if there is no newspaper published therein, then in such other public places in the district as the court shall direct.' For appropriate form in such cases see post, No. 1.58. § 78. Condemnation of property employed in aid of insurrection. — The statutes provide for the seizure and condemnation as prize of any property used or intended to be used in aid of any insur- rection against the government of the United States ; ^ and, as we have seen, both the circuit and district courts have cognizance of such causes.^ This provision of the Revised Statutes is a substan- tial re-enactment of the provisions of the act of Congress of August 6, 1861, under which it was determined that it covered all descrip- tions of property both real and personal, whether on land or water ; that the proceedings under the act for condemnation of real estate or other property on land should be shaped in conformity with the general practice in admiralty cases; and that the issues of fact in such cases should, on the request of either party, be sub- mitted to a jury.'* § 79. Authority of the court over funds derived from confiscated property. — The proceeds of confiscated property paid into court are under its control until they are distributed pursuant to a final decree in the cause ; and if they are withdrawn without authority of the court, it can by summary proceedings compel their restitu- tion.^ § 80. Distinction betv^een instance and prize causes- — The distinc- tion between the instance and prize side of the court, in the exer- cise of admiralty jurisdiction, is clear and important to be observed. In the former case the power of the court rests upon the statutes, in the latter upon the general principles of the common law, relat- ing to admiralty practice and procedure. Hence, if the records show that the case is on the instance side of the court for a for- feiture under a statute, the property sought to be condemned cannot be condemned as prize; and if it shows a proceeding for the ^ Adm. Rule 9. 474. See also Morris' Cotton, 8 2 Rev. Stat. | 5308. Wall. 507 ; Mrs. Alexander's Cotton, 2 3 Rev. Stat. I 563, par. 9, and I Wall. 404; Union Ins. Co. v. United 629, par. 6. States, 6 Wall. 759 ; Armstrong's * Union Ins. Co. v. United States, 6 Foundry, 6 Wall. 766 ; United States Wall. 759. See also The Vengeance, v. Shares of Capital Stock, 5 Blatch. 3 Dall. 297; The Sarah, 8 Wh. 394. 231. ^ Osborne v. United States, 91 U. S. 6 ■ 82 FEDERAL PLEADING, PRACTICE AND PROCEDURE. condemiuition of property as prize, it cannot be condemned under the statutes for a forfeiture on the instance side of the court. ^ § 81. Seizures cognizable in the district court of the district into •which the property may be taken. — In case of the seizure for for- feiture of any vessel or cargo entering any port or harbor which has been closed by the President of the United States in ^rsuance of law, or of goods or chattels coming from a state or section of the country declared by the President to be in insurrection, into other parts of the United States, or of any vessel or vehicles conveying such property, or conveying persons to or from such state or sec- tion, or of any vessel belonging in whole or in part to any in- habitant of such state or section, the proceeding may be prosecuted in any district court into which the property so seized may be taken and proceedings instituted ; and the district courts have in such cases as full and complete jurisdiction over such proceedings as if the seizure had been made in that district.^ By the general practice in such cases, where there is a seizure upon the high seas, any district court may take cognizance of proceedings for the for- feiture, in any district into which the property is brought.^ § 82. Trial by jury, when. — Section 566 of the Revised Statutes provides that " the trial of issues of fact in the district courts, in all causes except cases in equity and cases of admiralty and mari- time jurisdiction, . . . shall be by jury." And in certain admiralty cases which relate " to any matter of contract or tort, upon or con- cerning any vessel of twenty tons burden or iipward enrolled and licensed for the coasting trade, and at the time employed in the business of commerce and navigation between places in different states and territories upon the lakes and navigable waters connect- ing the lakes, the trial of issues of fact shall be by jury when either party requires it." Although the statute provides for a trial of issues of fact in cer- tain cases b}' a jury, still this right may be waived, and the parties may stipulate for a trial of these issues by the court, even upon an ngreed statement of facts. ^ 1 United States v. Weed, 5 Wall. - Rev. Stat. ^ 5G4. '■'2; Jecker v. Montgomery, 13 How. ^ The Abby, 1 Mason 360. See 4y8 ; The Brig Caroline, 7 Cr. 49(5 ; also The Maggie Hammond, 9 Wall. The Samuel, 1 Wh. 9; The Mary 435; The Merino, 9 Wh. 391. Anne, 8 Wh. 380: The Venice, 2 Wall. MIenderson's Distilled Spirits, 14 258; Cappell v. Hall, 2 Wall. 542: AVall. 40. Mrs. Alexan Lee V. Lee, 8 Pet. 44; Barry v. Blatchf. 84; Dred Scott v. Sanford.- Mercien, 5 How. 103; Sparrow v. 19 How. 393. Strong, 3 Wall. 97; Gaines i'. Fu- ^Insurance Co. r. Ritchie, 5 Wall, entes, 92 U. S. 10; Pratt v. Fitz- 541; Norris v. Crocker, 13 How. 429. hugh, 1 Black. 271; DeKraft v. Bar- * Cohens v. Virginia, 6 Wh. 264: ney, 2 Id. 704; Green v. U. S., 9 Owings v. Norwood, 5 Cr. 344; Os- Wall. 655; Bison v. Cribbs, 1 Dill, borne v. Bank of U. S., 9 Wh. 738. 181. See also Cook v. Moffatt, 5 How. 295 ; ■' Sheldon v. Sill, 8 How. 441 ; Abb. Nat. Dig. Lit. Const. Law. United States v. Eckford, 6 Wall. « Osborne v. Bank of U. Si, 9 Wh. 484; Carey v. Curtis, 3 How. 236 ; 738 ; Dodge v. Wolsey, 18 How. 331 ; Wisconsin v. Duluth, 2 Dill. 206 ; State Bank v. Knoop, 16 How. 369 ; Hubbard v. Northern R. Co., 3 Jefferson Bank v. Skelly, 1 Black. 8 114 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 123. Controversy bet-weeir citizens of different states. — If the suit and the amount in dispute is Avithin the provisions of the stat- ute, and it appears from the declaration or bill that the " contro- versy is between citizens of different states," the circuit court has original jurisdictioii. Under similar provisions of the Judiciary Act (1789), it was held that the statute meant that each distinct interest should be repre- sented by parties, all of whom might sue and be sued in the federal courts ; and that where the interest of either party was joint, each of the persons interested must have the requisite citizenship to sue or be sued in those courts, and that the circuit courts would have no jurisdiction if some of the defendants Avere citizens of the same state W'ith the plaintiffs.^ And under a subsequent act, which provided " that where, in any suit at law or in equity commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of or found within the district where suit is brought, or shall not -voluntarily appear thereto, it shall be law- ful for the court to entertain jurisdiction and proceed to the trial and adjudication of such suit betw'een the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer; and the non- joinder of parties who are not so inhabitants, or found within the dis- trict, shall constitute no matter of abatement or other objection to said suit," it was held that the joinder of a defendant, who was a cit- izen of the same state with the plaintiff, and who was duly served with original process, with others who were not citizens of the same state, would oust the court of jurisdiction.^ 436; Ohio L. and F. Co. v. Debold, 18 tutions. See also Livingstone t'. Moore, How. 380 ; Davis v. Grey, 16 Wall. 1 Bald. 424. 203. > Strawbridge v. Curtis, 3 Cr. 267 ; In Bennett v. Boggs, 1 Bald. 60, Ward v. Arredondo, 1 Paine (C. C.) the question of the constitutionality 410. See also Commercial Bank v. of a state law was the matter in con- Slocomb, 14 Pet. 60; Coal Co. v. troversy. It was held that the legis- Blatchford, 11 Wall. 172. lature of a state had paramount au- - Act of February 28, 1839, 5 Stat, thority to legislate and regulate its at Large 321 ; Ketchum v. Farmers', lisheries unless restrained by its con- etc., Co., 4 McLean 1. See also Coal stitution. and that a common law Co. f. Blatchford, 1 1 Wall. 172 ; Case right of fishery may be taken away of the Sewing Machine Co., 18 Wall, by legislative prohibition, as it is not 553 ; Doremus v. Bennett, 4 McLean fk right founded upon contract, or 224. secured by the federal or state consti- CIRCUIT COURTS. 115 One of the provisions for jurisdiction under the act of 1875 is that there "be a controversy between citizens of different states." In construing this language, the Supreme Court has held that, if there is a controversy between citizens of diiferent states, about which the suit is brought, it is immaterial as to the position of the parties on the record or in the pleadings as plaintiffs or defendants ; and that in determining the question of jurisdiction the court might "ascertain the real matter in dispute and arrange the parties on one side or other of that dispute ; and that if in such arrangement it appeared that those on one side were all citizens of different states from those on the other, jurisdiction might be entertained and the cause proceeded with."^ § 124. Who are citizens. — A citizen, in the sense of the statute, is one who resides in, and is an inhabitant of, the state. It is evident that he need not possess the qualifications which would enable him to exercise the election franchise or hold real estate. Those who have resided in and been inhabitants and citizens of one state, within the meaning of the statute, may remove to another state to remain either temporarily or permanently, and various matters connected therewith may properly be considered in deter- mining the question of citizenship. It has been held that, on the removal of a citizen from one state to another, citizenship may de- pend upon his intentions. The exercise of the right of suffrage in such a case in the state where he resides would perhaps ordinarily be conclusive upon the subject ; but even where the right of suffrage has not been exercised, the acquiring of the right so to do, accom- panied by such acts as indicate a permanent location, would be quite satisfactory on this question. And where an individual who is a citizen of the United States has resided in a state for a con- siderable length of time, during which he has there been engaged in business, he may well be presumed to be a citizen of such state, unless circumstances appear to the contrary.^ ^ The Pacific Railroad v. Ketchum, Gardner' v. Sharp, 4 Wash. 609 ; De 101 U. S. 290. The same doctrine was AVolf v. Rabaud, 1 Pet. 476 ; Shelton maintained in Removal Cases, 100 v. Tiffin, 6 How. 163. There was, U. S. 457, the latter construing the however, an exception to this rule in same language in the second section case of negroes of the African race, of the same act, relating to the re- before slavery in this country was moval of causes. abolished. In 1856 the Supreme Court ^ Prentiss v. Barton, 1 Brock. 389 ; of the United States determined that Cooper V. Galbraith, 3 Wash. 546 ; a free negro of the African race 116 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Under the Judiciary Act of 1789 it was held that a citizen of the District of Columbia was not a citizen of a state within the mean- ing of that act, and that he could not maintain an action against a citizen of a state in the circuit court. ^ Nor could a citizen of a territory, under that act, sue a citizen of a state in the federal courts, when the jurisdiction depended upon citizenship of the parties ; as a citizen of a territory is not a citizen of a state within the meaning of the statute." The circuit courts have no juris- diction of a case, either at law or in equity, in which the plaintiff and defendant are citizens of the same state, as neither the judi- ciary acts of Congress nor the Constitution of the United States confers jurisdiction in such cases. ^ § 125. Parties, merely nominal or formal. — If the real controversy is between citizens of different states, the fact that there are merely formal or nominal parties to it, who have not the requisite citizen- ship, does not affect the jurisdiction of the court. " Where the real and only controversy is between citizens of diff'erent states, or an alien and a citizen, and a plaintiff" by some positive rule of law is compelled to use the name of another to perform some minis- terial act, who has not and never had any interest in or control over it, the courts of the United States will not consider any others as parties to the suit than the persons between whom the real contro- versy and litigation before them exists."* So where certain parties whose ancestors were brought to this alienage of the defendant: Prentiss counti-y and sold as slaves could not v. Brennan, 2 Blatch. (C. C.) 162. be a citizen within the meaning of the ^ North Carolina v. Dewey, 1 federal judiciary acts: Dred Scott v. Hughes 133 -, Galew. Babcock,4'W'ash. Sanford, 19 How. 393. . (C. C.) 199 ; Osborn v. U. S. Bank, 9 1 Hepburn v. Ellzey, 2 Cr. 445; Bar- Wh. 738 ; Cohen v. Virginia, 6 Wh. noy V. Baltimore City, 6 Wall. 280. 264 ; Martin v. Hunter, 1 Wh. 237. But see Sere v. Pitot, 6 Cr. 332 ; If property of a state is in the hand-s Eailroad Co. v. Harris, 7 Wall. 574. of an officer or agent as trustee, and ^ New Orleans v. Winter, 1 Pet. 91. the officer or agent is within the juris- Where the plaintiff was a native of diction of the court, it may take juris- New York, but had resided and done diction of the suit without requiring business in Canada for thirty years, the state to be a party: Swasey i'. and resided there at the time of bring- North Carolina R. Co., 1 Hughes 17 ; ing this suit and had taken an oath Osborne v. U. S. Bank, 9 Wh. 738. of allegiance to the queen of Great * Opinion of Mr. Justice Clifford in Britain, and the defendant was a citi- Walden v. Skinner, 101 U. S. 577. zen of Canada, it was held that the See also Mr. Justice Miller in Ara- circuit court of New York had no pahoe Co. v. Kansas Pacific R. Co., jurisdiction of the case, as the plain- 4 Dill. 277 ; Harvey v. The Hlinois tiff was not a citizen of the state. Mid. R. Co., 7 Biss. 103 ; Davis v. Grey. This suit was, of course, based upon 16 Wall. 203. See also Weed Sewing the citizenship of the plaintiff and the Machine Co. v. Wicks, 3 Dill. 261. CIRCUIT COURTS. 117 had only a nominal interest, and they resided beyond the jurisdic- tion of the court, it was held error to dismiss the bill on the ground that they were not made parties, where all the parties who had a beneficial interest were in court. The court, in such a case, should proceed to a decree against the defendants if equity requires it.^ If the parties are not indispensable, and the court has no jurisdiction over them for want of proper citizenship, they may be dismissed, if a decree can be made without prejudice to their rights, and the court may retain jurisdiction as to the other parties to the bill.2 § 1-0. The proper citizenship of the parties should appear in the record. — It is a general if not a universal rule that where jurisdic- tion depends upon citizenship, the proper citizenship of the parties should appear in some manner in the record, as the federal courts are all courts of defined and limited jurisdiction, and no presump- tions will be made in favor of them.^ Under the act of 1789, in cases where jurisdiction depended upon citizenship, it was necessary for the declaration or bill to show not only that the parties were citizens of different states, but that one of them was a citizen of the state where the suit was brought. But under the act of March 3, 1875, it is sufficient, where jurisdiction depends upon citizenship, if it appears from the record that the controversy is between citizens of diff'erent states. And under this act the courts will not regard the position of the parties on the record, as plaintiffs or defendants, as determining the question whether the controversy is between citi- zens of diff'erent states, but will ascertain the real matter in dispute and arrange the parties on one side or the other of that matter, as cir- cumstances seem to require ; and if after such arrangement it ap- pears that those on one side are all citizens of different states from all those on the other side, the court has jurisdiction.* Circuit and district courts have such powers only as have been 1 Union Bank v. Stafford, 12 How. thall v. The Collector, 9 Wall. 560; 327; Wood V. Davies, 18 How. 467 ; Bingham v. Cabot, 3 Dall. 382: Gas- Ward V. Arredondo, 1 Paine 410. sies v. Ballon, 6 Pet. 761 ; Eberley v. 2 Horn V. Lockhart, 17 Wall. 570. Moore, 24 How. 157 ; Christinas v. See also Vattier v. Hinde,7 Pet. 252; Russell, 5 Wall. 290; Mason v. Rol- Mollan V. TorrancCj 9 Wh. 537 ; Cam- lins, 13 Wall. 602. It cannot be in- eron v. McRoberts, 3 Wh. 591 ; Con- ferred argnmentatively : Brown v. nolly y. Taylor, 2 Pet. 556. Keene, 8 Pet. 115. ^ McCormic v. Sullivant, 10 Wh. * The Pacific Railroad v. Ketchum, 192 ; De Wolf V. Rabaud, 1 Pet. 476 ; 101 U. S. 289. Ex parte Smith, 94 U. S. 455 ; Horn- 118 FEDERAL PLEADING, PRACTICE AND PROCEDURE. conferred upon them by acts of Congress not inconsistent ■with the Constitution of the United States.^ § 127. Nominal and formal parties. — It is a doctrine recognized by the federal courts that the jurisdiction of the courts is not affected by merely nominal and formal parties who are without the requisite citizenship, if the real matter in controversy is between parties having a proper citizenship.^ And if it appears that the real controversy is between citizens of different states, or an alien and a citizen, and the plaintiff is by some positive rule of law com- pelled to use the name of another to perform merely a ministerial act who has not, nor ever had, any interest in or control over it, the courts of the United States will not consider any others as parties to the suit than the persons between whom the litigation before them exists.' § 12b. Evidences of citizenship ; persons of African descent. — A person who resides within a state and has cari'ied on business within the same for a considerable length of time would be pre- sumed to be a citizen of the same, in thq absence of evidence to the contrary. In case of a recent removal of a person from one state to another, citizenship may depend upon the circumstances and the intentions of the parties. The exercise of the right of suffrage would ordinarily be quite conclusive of the latter ; and if a party acquires the right of suffrage in a state to which he has removed, accompanied by acts and conduct indicating a permanent location, this may be quite satisfactory evidence of citizenship.* But it was held, during the time that slavery existed in this country, that a free negro of African descent, whose ancestors were brought to this country and sold as slaves, could not become a citizen.^ § 129. Executors and administrators. — If executors or adminis- trators are personally qualified by their citizenship to bring suit in the circuit courts, the jurisdiction will not be defeated by the fact that the parties whom they represent would be disqualified from ^ United States v. Eckford. 6 Wall, hoe County v. Kansas Pacific R. Co., 4«4; Seldon v. Still, 8 How. 441; 4 Dill. 277; Hervey v. Illinois Mid. United States v. Clark, 8 Pet. 444 ; R. Co., 7 Biss. 103; Wood v. Davis, Eriscoe v. Bank, 11 Pet. 257 ; Harri- 18 How. 467 ; Union Bank«j. Stafford, son V. Hadley, 2 Dill. 229 ; United 12 Id. 327. States V. Hudson, 7 Cr. 52. ^ See ante, 1 125, Walden v. Skinner, ■' Browne v. Strode, 5 Cr. 303 ; 101 U. S. 577. Wormley v. Wormley, 8 Wh. 421 ; * Shelton v. Tiffin, 6 How. 163. McNutt V. Bland, 2 How. 1 ; Coal Co! ^ Dred Scott v. Sanford, 19 How. V. Blatchford, 11 Wall. 172; Arapa- 393. CIRCUIT COURTS. 119 bringing suit on account of their citizenship.^ So the jurisdiction of the circuit court cannot be defeated by the fact that with the principal defendant are joined, as nominal parties, the executors of a deceased trustee who are citizens of the same state as the com- plainant, where the bill only requires of them the ministerial act of conveying title to the lands in controversy, if the power so to do is vested in them by the laws of the state where the suit is brought."^ So an administrator who is a resident of one state may sue a citizen of another state in the circuit court of the state where he resides, although letters of administration were granted in the latter state. ^ So if a receiver of a corporation is a citizen of a state other than that of the defendant, he may sue in this court in the state where the latter resides, although the corporation is a citizen of the same state with the defendant.* § 130. Parties having only equitable interests. — The circuit court, in determining its jurisdiction, based upon the proper residence of parties, will not, in suits at law, always inquire intq the residence of those who may have a more equitable interest in the matter in controversy.^ But trustees cannot maintain a bill to foreclose a trust deed or mortg-age, where one of them is a citizen of the same state with the defendant, although the cestui que trusts are citizens of another state. ^ § 131. Where citizenship in equity not important. — In proceed- ings in equity the citizenship of the parties is not always important in determining the jurisdiction of the court. Thus where a bill was filed in the circuit court to stay proceedings at law in the same court, the equity suit was held to be auxiliary to the action at law, and maintainable without regard to the citizenship or alienage of either party to the record. But the complainant in such a case can maintain the suit for any other relief or for any other purpose, without showing the proper residence of the parties, as required by the statute.^ 1 Coal Co. V. Blatchford, 11 Wall. « Coal Co. v. Blatchford, 11 Wall. 172. 172. See also Hotel Co. v. Wade, 97 ^ Walden v. Skinner, 101 U. S. 577. U. S. 13. But see Browne v. Browne, 3 Rice V. Houston, 13 AN^all. 66. See 1 Wash. 429. also Walker v. Beal, 3 Cliff. 155; ' St. Luke's Hospital v. Barclay, 3 Weed Sew. M. Co. v. Weeks, 3 Dill. Blatch. 359; Simms v. Guthrie, 9'Cr. 261. 19 ; Dunn w. Clark, 8 Pet. 3. If citi- * Farlow v. Lea, C. L. B. 329. zenship of the parties gives the circuit ^ Bonnafee ?J. Williams, 3 How. 574 ; court jurisdiction, a party having a Smith V. Kernochen, 7 Id. 198. legal right to maintain an action at 120 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Where a bill was filed in order to procure a construction of orders, decrees and acts done or made by the court in which it was filed, it was held proper, although the parties interested in having the con- struction made would not, for want of proper citizenship, be entitled to proceed by an original bill of any kind in such court.^ So, where a party had obtained judgment at law in the circuit court of the state of Michigan against a citizen of that state, he at the time being a resident of the state of New York, and afterwards, having moved to the state of Michigan, where the defendant still resided, filed a bill of discovery in aid of execution in the same court where the original judgment was obtained, to which there was a'demurrer for want of jurisdiction, the court held that the change of residence of the plaintiff to the state of Michigan, after the commencement of the original suit, did not oust the court of jurisdiction in this auxiliary proceeding.^ But in such a case it should appear from the averments of the bill that the matter has already been litigated in the same court by the same persons, and is in addition and aux- iliary or ancillary to such original suit ; otherwise the circuit court would have no jurisdiction.^ If the bill is not an original one, but a bill of revivor filed on the death of the original complainant, this court has jurisdiction of the suit, if it had original jurisdiction, even though the complainant in the last proceeding may be a resident of the same state as the defendant.^ If a bill be filed to set aside a judgment of the court on the ground of fraud, the court has jurisdiction, although both parties thereto are citizens of the same state.^ And where the interest of parties becomes complicated by protracted litigation, and it is necessary to prevent a failure of justice, the circuit court will take cognizance of a bill for the purpose of settling the rights and protecting the interests of the parties, without regard to the citizenship of the parties. But the jurisdiction in such cases law will not be defeated for the want ■* Dunn v. Clarke, 8 Pet. 1 ; Morgan of proper citizenship of persons who v. Morjian, 2 Wh. 290 ; MoUan v. Tor- Iiave mere equitable interests : Bon- ranee, 9 Id. 537 ; Jones v. Andrews, nafee w. Williams, 3 How. 574. 10*\Vall. 337 ; Logan v. Patrick. 5 Cr. ^ Minnesota Co. v. St. Paul Co., 2 288 ; Simms v. Guthrie, 9 Id. 19. AVall. 609. ^ O'Brien Co. v. Brown, 1 Dill. 588 ; ■•'Hatch V. Dorr, 4 McLean 112. Simms t'. Guthrie, 9 Cr. 19. See also See also Reilly v. Goldins, 10 Wail. Osborne c. Mich. Air L. R. Co., 11 C. 56 ; Clarke v. Mathewson, 12 Pet. 164. L. N. 367. 3 Christmas v. Russell, 5 Wall. 290. CIRCUIT COURTS. 121 would rest upon the ground that they were merely auxiliary to former suits. ^ § 132. When parties may be dismissed. — If the court has no jurisdiction over parties to a suit for want of proper citizenship, and they are not indispensable, and a decree can be rendered as to the other parties without prejudice to them, they may be dismissed, and the court proceed to determine the cause between the remain- ing parties.^ Nor will the court inquire into the residence of those who have a mere equitable interest in the subject in controversy, where the plaintiff has a legal right to sue, and where, so far as the legal right is concerned, the parties to the controversy have the requisite citizenship.^ § 133. Corporations are citizens. — In the construction of the Constitution and of acts of Congress conferring jurisdiction on the federal courts on the grounds of citizenship of the parties, corpo- rations have come to be regarded as citizens within the meaning of the law ; it being conclusively presumed that the members of the corporations are residents of the state creating them, or under whose laws they were organized. And a suit brought by a citizen of one state against a corporation in the circuit court of the state where it was created or organized, other than that of the residence of the plaintiff, is a suit between citizens of different states, not- withstanding members or stockholders of the corporation may reside in the same state with the plaintiff.* If railroad corporations created by or under the laws of different states are consolidated, and the railroad is operated by virtue of that consolidation as one continuous entire line of road, the corporation thus consolidated may be treated for the purpose of jurisdiction as a citizen of either state ; and if a corporation is created under the laws of two states, a citizen of one of these states may, so far as citizenship is concerned, sue it in the other. ^ ^ Cornwell v. White Water, etc., R. ^ Bonnafee v. Williams, 3 How. 574 ; Co., 4 Biss. 195; Barth v. MoKeever, Smith v. Kernochen, 7 How. 198. 4 Id. 206 ; Freeman v. Howe, 24 How. * Ohio & Miss. R. R. Co. v. Wheeler, 450; Minnesota R. Co. v. St. Paul R. 1 Black. 296; Louisville R. R. Co. v. Co., 2 Wall. 609. But see also Dunn Letson, 1 How. 497 ; Marshal v. Bal- V. Clarke, 8 Pet. 1 ; Stone v. Bishop, timore, etc., R. R. Co., 16 How. 314; 4 Cliff. 593. Covington, etc., Co. v. Shepherd, 21 2 Horn ». Lockhart, 17 Wall. 570; How. 212; Railroad v. Harris, 12 Mollan t\ Torrance, 9 Wh. 537 ; Con- Wall. 65; Railroad Co. v. Whitton, noUy V. Taylor, 2 Pet. 556 ; Vattier v. 13 Wall. 270. Hinde, 7 Pet. 252. '" Railway Co. v. Whitton, 13 Wall. 122 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 134. Burden of proof of citizenship of corporations. — Where a suit was brought against a corporation in a state court which was removed by the corporation to a circuit court of the United States on the ground that it was a controversy between citizens of different states, on motion of plaintiff to remand the cause it was held that the burden of proof was on the corporation to show that it was not a citizen of the same state with the plaintiff, and that it was generally incum- bent upon the suitors who invoke the jurisdiction of the courts of the United States to show that they are within its jurisdiction.^ If a corporation has appeared generally in an action, it cannot afterwards deny the jurisdiction of the court on the ground that original process was not duly served upon it in the district of which it was an inhabitant at the time of service.^ Nor can a circuit court be ousted of jurisdiction by a stipulation of a foreign corporation that process issued in any suit brought against said corporation may be served upon any of its agents with like effect as if service had been made on the company within the state.^ § 135. When the United States are plaintiffs. — When the United States are plaintiffs or petitioners, the circuit court has jurisdiction, if the amount in controversy exclusive of costs exceeds five hun- dred dollars.* It has been held that an act of Congress was not necessary to enable the United States to sue ; that they have an inherent right to sue in their own name, unless a different mode is prescribed by statute;^ and that if they sue on commercial paper they have all the rights and are subject to all the responsibilities of individuals who are parties to such instruments.® So in relation to the proprie- torship of real or personal property, the United States have the 270 ; Muller v. Dows, 94 U. S. 444 ; 14 Blatch. 89. See also Gracie v. St. Louis, etc., R. R. Co. v. Ind. & St. Palmer, 8 Wh.699; Pollard w. Pickett, Louis R. R. Co., 12 C. L. A. 73. 4 Cr. 421. In such case the citizen of a state ^ Ex parte Schollenberger, 96 U. S. other than either of the states under 369. Avhose laws the corporation was * Rev. Stat. i§ 629, sub. 2 and 3 ; created may sue it in the circuit act March 3, 1875, | 1. court for either, where the directors ^ United States v. Baker, 1 Paine generally meet to transact business: 156. See also United States u. Baker, . Culbertson v. Wabash N. Co., 4 Mc- 12 Wh. 589. Lean 544. ^ United States v. Bank of the Me- ^ Cope] and v. The Memphis & tropolis, 15 Pet. 377 ; United States «. Charleston R. Co., 3 Woods. (C. C.) Dunn, 6 Pet. 51; The Floyd Accept- 651. ances, 7 Wall. 666. ^ Kelsey v. Pennsylvania R. R. Co., CIRCUIT COURTS. 123 same rights and remedies, and are subject to similar liabilities in managing and dealing with it through their agents, as natural persons.^ So the United States courts have jurisdiction in case of suits on bonds of the agents or officers of the United States, given in pursuance of the statutes of the United States.^ And where a bond was given by a postmaster to the Postmaster-General of the United States, it was held that the Postmaster-General could main- tain an action in his own name in the circuit court of the United States on the bond.^ § lob. Where citizens of the same state claim lands under grants of different states. — Under the present statutes, if the amount in controversy is sufficient, the circuit courts may take cognizance of cases where the parties to a controversy are citizens of the same state, provided they claim lands under grants from different states. The Constitution contained this provision, as well as the act of 1789, under which it was held that the circuit court in Vermont had jurisdiction where both parties were residents of that state, and one party claimed land under a grant from the state of New Hamp- shire, and the other under a grant from the state of Vermont, although, at the time of the first grant, Vermont was a part of the state of New Hampshire.* So it was held that the jurisdiction of a circuit court extended to a controversy between citizens of Kentucky claiming lands under different grants, — one under a grant from the state of Kentucky, — but upon warrants issued by the state of Vir- ginia, and locations founded thereon prior to the separation of Kentucky from Virginia, and the other based upon a grant from the state of Virginia. The court in this case, in construing the Constitution and the act of Congress, held that it was the grant that gave the title and jurisdiction.^ §■1 0*7 io<. Controversy bet'ween citizens of a state and foreign states, citizens or subjects. — Under the provisions of the statute, which is also the language of the Constitution on the same subject, it has been decided that where both the plaintiff and defendant were ^ Neilson v. Lao:ow, 12 How. 98; ^Postmaster-General v. Early, 12 United States v. Tingey, 5 Pet. 115; Wh. 136, United States v. Bradley, 10 Pet. 343: * The Town of Parolet v. Clark, 9 United States v. Hage, 6 How. 279 | Cr. 292 (1815) ; act March 3, 1875, s. c, 13 How. 478. eh. 137, ^ 1, 18 Stat. L. 470, 2 Smith V. United States, 5 Pet, ' Colson v. Lewis, 2 Wh, 377, See 293; Farrar v. United States, 5 Pet, also the Bank of the U, S, ?;, Devereux, 373, 5 Cr. 61 (1809), 124 FEDERAL PLEADING, PRACTICE AND PROCEDURE. aliens, a federal court would have no jurisdiction.^ The provisions of the first section of the act of 1875, conferring powers upon the circuit courts, follow the language of the Constitution. And we shall hereafter notice more particularly that the language of the second section of the act relating to the removal of causes from the state courts to the circuit courts is similar to the lansuage of the section we are considering, so that if by reason of the proper citizenship of the parties a suit may be brought originally in a circuit court, for the same reason may a cause originally commenced in a state court be removed to the circuit court.^ But we will hereafter consider the subject of the removal of causes from the state courts to the circuit courts of the United States. In case of the alienage of one party, the other party must be a citizen in order to confer jurisdiction on the ground of proper citizenship ; and these facts, as well as all other jurisdictional facts, should be averred in the pleadings.^ Where the alienage of one party is the ground of jurisdiction, it should be not only so averred, but also that he is a citizen or subject of some one foreign state^^ But an alien legatee or executor may sue an executor who is a citizen of the state where the suit is brought, although the testators whom they represent were both citizens of the same state.^ § 138. Exclusive cognizance of crimes. — The first section of the act of March 3, 1875, provides that the circuit courts " shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein." The criminal jurisdiction of the circuit court is expressly con- ferred by this provision, which is the language of the Judiciary Act of 1789,^ and of the Revised Statutes on the same subject.'' The federal courts have no jurisdiction in criminal cases, except 1 Montalet v. Murray, 4 Cr, 46 ; Breithaupt v. Bank, 1 Pet. 238. See Mossman v. Higginson, 4 Dall. 12-, also Bi-eadlove v. Nicolet, 7 Pet. 413 ; Piquignot v. The Pennsylvania Pt. Co., Jones v. McMasters, 20 IIow. 8 ; 16 How. 104; Hinckley v. Byrne, 1 Weems v. George, 13 How. 190; Deady 224. Bonaparte v. Camden and A. R. Co., " Act of 1875, U 1, 2. 1 Bald. (C. C.) 205 ; United States v. ^ Montalet v. Murray, 4 Cr. 46 Prentiss v. Brennan, 2 Blatch. (C. C.) 162 ; Bateau v. Bernard, 3 Blatch 244 ; Daniel v. Twentyman, 2 Pet, 146. * Wilson V. City Bank, 3 Sum. 422 Hall, 98 U. S. 343. ^ Chappedelaine v. Dechenaux, 4 Cr. 306. « Judiciary Act of 1789, see. 2 ; 1 Stat, at Large 78. ' Rev. Stat, g 629, sub. 20. CIRCUIT COURTS. 125 such as is expressly conferred upon them by the Constitution and the acts of Congress, and they can try no offences except such as are permitted by said Constitution and acts.^ They have, strictly speaking, no common law jurisdiction.^ The jurisdiction of the circuit courts is expressly made concur- rent with the district courts of crimes and offences cognizable therein. It is important, therefore, to understand the facts and cir- cumstances under which the district court may exercise jurisdiction in such cases. The statute provides, in reference to the criminal jurisdiction of the district courts, as ' we have already seen, that they shall have jurisdiction " of all crimes and offences cognizable under the authority of the United States, committed within their respec- tive districts, or upon the high seas, the punishment of which shall not be capital, except in the cases mentioned in section 5412, title Crimes."* The state courts have no jurisdiction of offences committed against the laws of the United States, and no part of the judicial power of the United States can consistently be delegated to the state courts. It sometimes occurs that the same act is a transgression, not only of a law of the United States, but of a statute of a state. Thus it may be an offence under a state law to pass counterfeit coin, although the same act is an offence under an act of Congress. In such a case a conviction and punishment under the state law is no bar to a prosecution under the act of Congress.* So where an assault upon a marshal, or a hindering of him in the execution of process, is an offence against the laws of the United States, as well as of the state where the offence is committed, he may be tried and convicted by both, and a conviction by either would be no bar to a- prosecution and conviction by the other. ^ ' United States v. Barney, 5 Blatch 29-1(1866). '^ Ex parte Bollman, 4 Cr. 75 United States v. Hudson, 7 Cr. 32 United States v. Coolidge, 1 Wh. 415 United States v. Wilson, 3 Blatch * Fox V. Ohio, 5 How. 410; Prigi; V. Pennsylvania, 16 Pet. 540; City of New York v. Miln, 11 Pet. 142; Bar- ron V. Baltimore, 7 Pet. 243 ; Huston V. Moore, 5 Wh. I ; White v. Com- monwealth, 4 Bin. 418; Stearns v. 435; United States v. Lancaster, 2 United States, 2 Paine (C. C.) 300 McLean 431 ; United States v. Irwin, United States v. Holliday. 3 Wall. 407. 5 McLean 178 ; United States v. Wor- ^ Moore v. The State of Illinois, 14 rell, 2 Dall. 384; United States v. IIow. 13. See also The United States Reese, 4 Saw. 629. v. Bevans, 3 Wh. 336. * Rev. Stat. | 563, sub. 1. 126 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 139. Cognizance of crimes where the punishment is death. — We have observed that the circuit court has exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where it is otherwise provided bj law, and concur- rent jurisdiction with the district court of all offences cognizable therein. As the district courts have jurisdiction of all crimes and offences cognizable under the authority of the United States com- mitted in their respective districts, or upon the high seas, " the punishment of which is not capital," etc., it follows that the circuit courts have cognizance of all capital offences, except where other- wise provided by law. The exception embraces those cases that, under the provisions of the statute, are triable by a general court- martial for offences committed by a person while in the service of the army or navy of the United States.' There are, however, several offences under the statutes of the United States punishable by death, of which the circuit courts of the United States have exclusive cognizance. These offences em- brace piracy upon the high seas,^ and accessories thereto ; ^ treason ; * and murder in certain places within the territorial or maritime jurisdiction of the United States. Section 5339 of the Revised Statues provides : Every person who commits murder — First. Within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States ; Second. Or upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay within the admiralty jurisdic- tion of the United States, and out of the jurisdiction of any par- ticular state ; Third. Or who, upon any such waters, maliciously strikes, stabs, wounds, poisons or shoots at any other person, of which striking, stabbing, wounding, poisoning or shooting such other person dies, either on land or at sea, within or without the United States, shall suffer death. ^ 1 Rev. Stat. | 1342, art. 58 ; ? 1624, * Id. ? 5331. art. 4. As to criminal jurisdiction of * Rev. Stat. § 5339; The United the circuit courts, see further, United States v. Bevans, 3 Wh. 336. For States V. Holliday, 3 Wall. 4U7 ; Same farther construction of the language V. Donlan, 5 Blatch. 284. of this act, see U. S. v. McGill, 4 Datl. ■' Rev. Stat. § 5323. 426 ; U. S. v. Furlong, 5 Wh. 184 ; 3 Id. § 5324. U. S. V. Holmes, 5 Wh. 412 ; U. S. v. CIRCUIT COURTS. 127 § 140. Capital cases remitted from the district to circuit courts. — As capital offences cannot be tried by the district courts, it is pro- vided by statute that "every indictment of a capital offence pre- sented to a district court, together with the recognizances taken therein, shall, by order entered on the minutes, be remitted to the next session of the circuit court for the same district ; and on the filing of such order and indictment with the clerk of such circuit court, that court shall proceed thereon in the same manner as if said indictment had been originally found and presented therein."' It is obvious that cases must occur where there may be some un- certainty as to the character of the offence, as whether it is capital or otherwise; and where it is developed before a grand jury of the district court that it is a capital one, the provision of the foregoing section, which authorizes the finding and presenting of an indictment therefor to the district court, and the remittal of the same to the circuit court of the same district, is manifestly wise and beneficent. For forms of indictments, see post, Nos. 188, 189, 190. § 141. Offences on the high seas, where triable. — The trial of of- fences committed upon the high seas or elsewhere out of the juris- diction of any particular state or district must be in the district where the offender is found or into which he is first brought.^ The foregoing provision of the Revised Statutes last cited is a sub- stantial re-enactment of former acts of Congress, under which it has been held that in order to confer jurisdiction upon a federal court in such cases it must appear, not only that the accused was first ap- prehended in or first brought into the district where the trial is had, but that the offence was committed out of the jurisdiction of any state, and not within any other district of the United States. This is a matter for the jury to determine. And where they merely found that the offence was committed at a certain place designated in the indictment, but omitted to find that this place was outside the limits of any state, the verdict was set aside. ^ Marchant, 12 Wh. 480 ; U. S. r. Dong- circuit to the district courts: Rev. lass, 2 Blatch. 207; U. S. v. Magill, 1 Stat, ^l 1037, 1038. Wash. 463 ; U. S. v. Ross, 1 Gallis. ^ Rev. Stat. § 730. 624 ; U. S. V. Cornell, 2 Mas. 91 ; U. ^ United States w. Jackalow, 1 Black. S. V. Ferman, 4 Mas. 505. 484. See also United States v. Arwo, ^ Rev. Stat. I 1039. We shall here- 19 Wall. 486 ; United States v. Baker, after consider the power to remit in 5 Blatch. 6. See also ch. xxi., note to other cases, not only from the district § 730 of Rev. Stat. to the circuit courts, but also from the 128 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 142. Offences in other cases, where triable. — It is further pro- vided by statute that in other cases, " the trial of offences punish- able with death shall be had in the county where the offence was committed, where that can be done without great inconvenience;"* and that, "when any offence against the United States is begun in one judicial circuit and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined and punished in either district, in the same man- ner as if it had been actually and wholly committed there." ^ The latter provision, it is manifest, applies as well to district as to the cir- cuit courts of the United States. The statutory provisions referred to clearly point out the particular forum that has cognizance of offences against the laws of the United States, whether capital or otherwise. § 143. Where a civil suit must be brought. — " No civil suit can be brought before either a circuit or district court, against any per- son by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceedings, except as hereinafter provided."^ This prohibition has been a part of the statutes since the adoption of the Judiciary Act of 1789. The service should be personal. The want of proper service may, however, be waived by entering an appearance to the suit.* It is not necessary to aver on the record that the defendant is an inhab- itant of the district, and when he appears without objection it is an admission of the regularity of service.^ § 144. Attachment of property will not confer jurisdiction. — If the defendant is not an inhabitant of the district where the suit is brought, nor served with original process therein, jurisdiction can- not be acquired by means of an attachment of his property within the district under the statutes of the state. ^ Nor can the process of foreign attachment be properly issued where the defendant is 1 Rev. Stat. | 729. '" Grade v. Palmer, 8 Wh. 605 ; Pol- 2 Rev. Stat. I 731. "No person lard ??. Pickett, 4 Cr. 421. shall be arrested in one district for ^ Day u. Newark Man. Co., 1 Blatch. trial in another in any civil action 628 ; Caffee v. Hayward, 20 How. 208 ; before a circuit or district court :"' ^xjjar^e Railway Company, 103 U. S. act of March 3, 1875, | 1. 794. In this case the court held that ^ Act of March 3, 1875, | 1. a judgment of the circuit court relat- * Levy V. Fitzpatrick, 15 Pet. 167; ing to its jurisdiction would not be Toland v. Sprague, 12 Pet. 300; Har- reviewed upon a petition for a man- rison v. Rowan, 1 Pet. (C. C.) 489. damns. CIRCUIT COURTS. 120 domiciled abroad, though a citizen of the United States, if he is not dulj served with original process within the district.^ Nor can a party be said to be found within the district, or properly served there, who has been inveigled into it for the purpose of making ser- vice there, by the false representations or deceitful contrivances of the plaintiff, or who is there merely to attend the trial of a case to which he is a party, or to plead to an indictment against him.^ § 145. Where service may be had by publication. — Section 8 of the act of March 3, 1875, provides : " That when in any suit com- menced in any circuit court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incum- brance or lien or cloud upon the title to real or personal property found within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent de- fendant or defendants to appear, plead, answer or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in charge of said property, if any there be; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six successive weeks ; and in case such absent defendant shall not appear, plead, answer or demur within the time so limited, or within some further time to be allowed by the court in its discretion, and upon proof of the service or publication of said order, and the perform- ance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction and to proceed to a hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district ; but said adjudication shall, as regards said absent defendant or defendants, without appearance, affect only the property which shall have been the subject of the suit, and under the jurisdiction of the 1 Toland v. Sprague, 12 Pet. 300; 1 Wall, Jr., 267; Smith v. Little, 5 Mauldin v. Carrol, 3 Hughes 249; Biss. 159; Steiger v. Bonn, 4 Fed. Picquet w. Swan, 5 Mason 35; Sadler Rep. 17; s. c, 13 C. L. N. 60; Ju- V. Hudson, 2 Curt. 6. neau Bank v. McSpedden, 5 Biss. 64 ; ^ Union Sugar Refinery v. Mathie- U. S. v. Bridguian, 8 A. L, Rec. son, 2 CliflP. 304 ; Parker v. Hotchkiss, 541. 9 130 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court tborein within said district. And where a part of said real or personal property against which such proceedings shall be taken shall be within another district, but within the same state, said suit may be brought in either district in said state; jjrovided, however, that any defendant or defendants not actually personally notified, as above provided, may at any time within one year after any final judgment in any suit mentioned in this section enter his appear- ance in said suit in said circuit court; and thereupon the said court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein on pay- ment by him or them of such costs as the court shall deem just ; and thereupon said suit shall be proceeded with to final judgment, according to law."^ There can be no doubt that this section repeals, by implication, section 738 of the Revised Statutes, as it contains fuller provisions on the same subject. Where a suit was brought by a citizen of Louisiana, in the circuit court of the United States for the district of Arkansas, to enforce a lien on lands situated within that district, and one of the defendants, a citizen of the state of Tennessee, was served with process in the state of Arkansas, it was held that such service gave the court jurisdiction of his person and of the subject matter; and that where it acquires such jurisdiction it will retain it for all purposes within the general scope of the equities sought to be enforced.^ § 146. Where all of the defendants cannot be served in other cases. — In other cases where personal service cannot be made upon all of the defendants, section Y37 of the Revised Statutes provides that the circuit court may take cognizance of suits and proceed to the trial and adjudication thereof between the parties who are properly before the court, in which case, however, the judgment or decree rendered therein will not prejudice other parties not regularly served with process or voluntarily appearing to answer. The non-joinder of parties who are not inhabitants of nor found within the district does not constitute matter of abatement or objection to the suit.^ This ' 18 Stat. L., ch. 137, ? 8. district in which the suit is brought, - Ober V. Gallagher, 93 U. S. 199. and do not voluntarily appear, the ^ The language of the provision is court may entertain jurisdiction and as follows: proceed to the trial and adjudication "When there are several defend- of the suit between the parties who ants in any suit at law or in equity," are properly before it; but the judg- and one or more of them are neither ment or decree rendered therein shall inhabitants of nor found within the not conclude or prejudice other par- CIRCUIT COURTS. 131 section evidently remains unrepealed by the provisions of the act of March 3, 1875, as there is nothing therein contained providing for such a case ; nor is it inconsistent with any provision of said act. Under its provisions a party residing out of the district and not served with process within it may voluntarily appear and become a party to the suit, when otherwise the court would have no jurisdiction over him.^ So if there are several parties jointly and severally liable on a contract, as for instance in case of the endorsers of a bill of exchange, and the makers and endorsers of a joint and several promissory note, the court would have jurisdiction of those defend- ants properly served with process within the district, and could proceed to judgment against them, though the other parties reside without the district, and are not served within it and do not volun- tarily appear.^ § 147. When a party may be omitted ; when not. — The court will make no decree in favor of a complainant where no relief can be given without taking an account between an absent party and one before the court, though the defect of parties for this purpose may not, strictly speaking, defeat jurisdiction. But if a prior incumbrancer is out of the jurisdiction of the court, or cannot be joined without defeating it, it has been held proper for the court to dispense with his presence and order a sale subject to his incum- brance, which would not be affected by such an order or decree.^ If parties have a merely nominal interest in the suit or proceeding as defendants, and reside beyond the jurisdiction of the court, it should not dismiss a bill because they are not made parties, but proceed to a decree against the actual defendants.* But where the subject-matter of the action lies beyond the limits of the territorial jurisdiction of the court, and the process of the court cannot reach the locus in quo, the provisions of the act relating to non-resident parties do not apply, ^ ties not regularly served with process Clearwater v. Meredith, 21 How. 489; nor voluntarily appearing to answer ; Inbusch v. Farwell, 1 Black. 5.')6. and non-joinder of parties who are not ^ Hagan v. Walker, 14 How. 29; inhabitants of nor found within the Louisville R. R. Co. v. Letson, 2 How. district as aforesaid shall not consti- 497; Findlay v. Bank, 11 Wh. 304. tute matter of abatement or objection * Union Bk. v. Stafford, 12 How. 327. to the suit." 5 Northern Ind. R. R. Co. v. Mich. 1 Taylor v. Cook, 2 McLean 516; Central R. R. Co., 15 How. 233 ; s. c, Pond V. Vermont Valley R. R. Co., 12 5 McLean 444. Blatch. 282. Under a former act, similar to the ^ Cooper V. Gordon, 4 McLean 6; section under consideration, it was 132 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 148. Formal parties may be dispensed with. — Merely formal parties may, as we have observed, be dispensed with, and if they are made parties they may be dismissed if there can be a complete adjudication between other parties without them.^ But if persons have such an interest in the subject-matter of the suit that a final decree cannot be made without prejudice to that interest and a defeat of their just and equitable rights, they must be made parties, and after being made parties they cannot be dismissed,^ If, how- ever, one defendant has a severable interest in the matter in con- troversy, and a decree may be rendered against the other defendants without prejudice to him, the suit may be dismissed as to him, and retained as to the others, where the court would have no jurisdic- tion over the former for want of proper citizenship.^ § 149. Suits on contract in favor of an assignee. — Section 1 of the act of March 3, 1875, provides that neither the circuit nor dis- trict courts shall " have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in case of promissory notes negotiable by the law merchant and bills of exchange." This provision was undoubtedly adopted to prevent assignments of contracts other than notes and bills of exchange merely for the purpose of conferring jurisdiction on the federal courts. If a suit, however, should be brought on such a contract in a state court, and it should appear that the real parties in interest were citizens of different states, it could perhaps be removed to a circuit court of the United States, and be there adjudicated, under the provisions of the second section of the same act, providing for the removal of held that no decree in equity could jection to the decree in such a case he made in the absence of an indis- may be taken at the time of the hear- pensable party whose rights must ino; or in the appellate court : Coiron necessarily be affected by the decree, v. Alillaudon, 19 How. 113; Robertson Thus where a bill was filed in the cir- v. Carson, 19 Wall. 94 ; Kendig v. cuit court to set aside an agreement Dean, 97 U. S. 423. executed by six individuals, four of ^ Wormley v. Worraley, 8 Wh. 421 : whom resided in the state where the Carneal v. Banks, 10 Wh. 181 ; Vat- suit was brought and two in another tier v. Ilinde, 7 Pet. 252; Osborn v. state, it was held that the court could Bank, 9 Wh. 738 ; Harding v. Handy, not rescind the contract as to the two 11 Wh. 132. and allow it to stand as to the four: - Barney v. Baltimore City, 6 Wall. Shields v. Barrow, 17 How. 130. See 280; Shields v. Barrow, 17 How. 130. also Mallow v. Hinde, 12 Wh. 193; =* Horn v. Lockhart, 17 Wall. 570: Cameron v. McRoberts, 3 Wh. 591 ; Batesville Institute v. Kauffman, 18 Russell V. Clark, 7 Cr. 09. And the ob- Wall. 151. CIRCUIT COURTS. 133 causes. The provision referred to should have been incorporated into the section for the removal of causes, in order to secure the object of the provision in the first section.^ The Judiciary Act of 1789 contained a provision somewhat similar to that act, providing that the circuit courts should not have " cognizance of any suit to recover the contents of any promissory note or other chose in ac- tion, in favor of an assignee, unless the suit might have been prose- cuted in such court to recover the contents if no assignment had been made, except in case of foreign bills of exchange." This provision has been held to apply only to rights of action founded on contracts which contain within themselves some promise to be fulfilled or duty to be performed, and not to rights of action founded upon some wrongful act or neglect of duty to which the law attaches damages, even though based upon contract.^ It has been held also that this provision does not apply to municipal bonds or attached coupons, where they are payable to bearer or endorsed to bearer, as they pass from one to another merely by delivery, and without the necessity of a formal assignment.^ If a note is made payable to bearer he may maintain a suit on it in the circuit court if it is averred that he and the maker are residents of different states,* although under the former statute it was essential to aver that the maker was a citizen of the state where the suit was brought and the holder a resident of another state.^ Where a suit was brought to recover damages for the failure of the defendants to take the proper steps to preserve the value of commercial paper, it was held, under the act of 1789, that the suit was not one for the purpose of recovering the contents of a promissory note or other chose in action, and therefore was not within the provisions of the statute limiting the jurisdiction of the court in suits on promissory notes or other clioses in action.^ Under the provisions of the Judiciary A ct of 1789, the assignee of a chose in action could sue thereon in the circuit court where the requisite citizenship of the parties existed, and the ^ Bushnell v. Kennedy, 9 Wall. 387. where there was an assignment by ^ Bushnell v. Kennedy, 9 Wall. 387. will, the representative of the decedent ^ City of Lexington v. Butler, 14 need not aver the citizenship of the AVall. 282. maker or of the original payee of a * The Pacific R. R. Co. v. Ketchum, note. Chappdeleaine c. Dechenaux, 4 101 U. S. 298. Cr. 306. See also Seckel v. Backhaus, ' Strawbridge v. Curtiss, 3 Cr. 267 ; 7 Biss. 354. Moffat V. Soley, 2 Paine 103. Under « Barney v. Globe Bk., 5 Blatch. 107. the act of 1789 it was held that See also Deshlerr. Dodge, 16 How. 622. 134 FEDERAL PLEADING, PRACTICE AND PROCEDURE. assignor might have done so if no assignment had been made, although the assignor at the time of the assignment was a citizen of the same state with the maker.^ The same rule would be appli- cable under the provisions of section 1 of the act of 1875. Under the provisions of the latter act, a circuit court would have jurisdic- tion of a bill to foreclose a mortgage given to secure negotiable notes of the mortgagor, which notes and mortgage, by written assignment and delivery, came into the hands of the complainant, he being a non-resident of the state where the suit is brought, and the defend- ant a resident thereof, although the original payee and assignor could not by reason of his citizenship have brought the suit.^ Where a judgment was recovered by a citizen of New York against a citizen of Pennsylvania in the state court of the latter state, and the former assigned the judgment to a citizen of Penn- sylvania, whose executors assigned it to an alien, it was held that the latter could maintain a bill in the circuit court to enforce the judgment, notwithstanding the intermediate assignment to a citizen of Pennsylvania.^ The assignee of a common chose in action must show affirmatively by his pleading, and, if controverted, by his proofs on the trial, that the obligee could have maintained the suit if no assignment had been made.* It may be safely affirmed that in al 1 cases of suits by assignees upon contracts other than negotiable promissory notes or bills of exchange, it is sufficient to give the proper circuit court jurisdiction, so far as the parties are concerned, that they are citizens of different states and that the original assignor could have maintained an action thereon in the circuit court if no assignment had been made at the time of the commencement of the suit by the assignee. If the payee resided in the same state as the maker of a non-negotiable note at the ti me of its execution, but afterwards removed to another state, he could of course maintain an action in the proper circuit court if the amount involved was sufficient. So the assignee of such a party could, under like circumstances of citizenship, maintain an action ^ White V. Leahy, 3 Dill. 378. payee and indorser, who are residents '^ Seckel v. Backhaus, 7 Biss. 354. of the state wiiere the suit is brought, ^ "VVilson V. Fisher's Executors, 1 the circuit court would have no juris- Bald. 133 (1830). See also Irvine v. diction: Shufford v. Cain, 1 Abb. 302. Lowry, 14 Pet. 293 (1840). Where Keary v. Farmers' Bank, 16 Pet. 89. the suit is on a non-negotiable prom- ^ Bradley v. Rhines, 8 Wall. 393 : issory note by a non-resident assignee, Coal Co. v. Blatchford, 11 Wall. 172. and against the maker and the CIRCUIT COURTS. 135 thereon, if at the time of the commencement thereof the payee could have maintained it, and it would not affect this right if the payee or assignor should afterwards become a resident of the same state as the maker.^ § 150. Suits by indorsees. — It is evident that, under the existing statutes, an indorsee, being a citizen of a different state from that of an indorser, whether of a promissory note negotiable by the law merchant or a bill of exchange, could, so far as citizenship is con- cerned, maintain q;n action against the indorser, whether a suit could be maintained by the assignee or the payee against the maker or not.^ §151. Corporations citizens; bonds and coupons not promissory notes or bills of exchange. — A corporation is a citizen of the state where it is created, in the sense of the statute requiring the proper citizenship of parties to confer jurisdiction upon the federal courts, it being conclusively presumed that the individual members of it are citizens of such state.^ This doctrine is applicable to both pri- vate and municipal corporations. Where bonds were executed by a municipal corporation, with coupons attached, to a railroad cor- poration, and both corporations were created by and located in the same state, and the bonds and coupons were transferred to the bearer in blank, it was held that the latter could not sue for the recovery of their contents in the circuit court, as such instruments are not promissory notes negotiable by the law merchant, nor bills of exchange, and the payee or original holder could not maintain a suit thereon in said court for the want of jurisdiction to take cog- nizance of such suits.* But in such a case the action could be ^ Chamberlain v. Eckert, 2 Biss. 227 ; Railroad Co. v. Harris, 12 Wall. 126 ; Thaxter v. Hatch, 6 McLean 68 65 ; Railroad Co. v. Whitton, 13 Id. (1869); Kirkman ?7. Hamilton, 6 Pet. 270. It was formerly held that a cor- 20. A general assignee under the in- poration was not, in the sense of these solvent laws of a state is an assignee statutes, a citizen, and that in order within the meaning of the statute, to confer jurisdiction in such cases it and he cannot sue if his assignor was necessary to aver and prove that could not: Bradford w. Jenks, 2 Mc- all the members of it had the requisite Lean 130 ; Sere v. Pitot, 6 Cr. 332. citizenship : Bank of U. S. v. Deveaux. 2 Young V. Bryan, 6 Wh. 146; 5 Cr. 84 (1809) ; Commercial Bank u. Evans v. Gee, 11 Pet. 80; Coffee v. Slocomb, 14 Pet. 60 (1840) ; Ward v. Planters' Bank, 13 How. 183 ; Mollan Arredondo, 1 Paine 410. V. Torrance, 9 Wh. 537. * Clark v. City of Janesville, 1 Biss. * Louisville R. Co. v. Letson. 2 (C. C.) 98. See also Sheldon w. Sill, How. 497 (1844) : Marshal v. Balti- 8 How. 441 ; Deshler v. Dodije, 16 Id. more, etc., R. Co.', 16 Id. 314; Cov- 622; Gibson v. Chew, 16 Pet. 315; ington, etc., Co. v. Shepherd, 20 Id. Dromgoole v. Farmers' and Merchants' 13t5 FEDERAL PLEADINCJ, PRACTICE AND PROCEDURE. commenced in a state court, and if the value of the amount in con- troversy exceeded five hundred dollars it might be removed to the proper circuit court, as it would be between citizens of different states. This would appear to be sufficient cause of removal, with- out regard to the right of the payee or original holder to maintain an action thereon in the circuit court, if the contract had not been assigned ; and it would appear that the circuit court would, upon the removal, acquire jurisdiction of the suit. § 152. Where a corporate bond is payable to bearer. — If a corpo- rate bond is made payable to bearer, and is transferred by mere delivery, and not by a written endorsement or assignment, the holder is not an assignee within the meaning of the statute; and he may bring suit thereon in the circuit court if the amount is sufficient and there is the requisite citizenship of the parties.^ The right to bring suit in such cases in the state where the plaintiff resides, if personal service can be made on the non-resident de- fendant therein, is authorized by the provisions of the first section of the act of March 3, 1875. § 153. Facts showing jurisdiction must be averred. — The circuit courts of the United States have no powers except those conferred by acts of Congress. There are no presumptions in favor of their jurisdiction, and where their judicial action is invoked, the facts upon which their jurisdiction rests must in some form appear in the record. This doctrine is applicable to both civil and criminal cases. ^ They have no common law jurisdiction of criminal cases, it being limited to that conferred by acts of Congress, and they can try no offences except such as are made so by said acts.^ As the federal courts have a special and not a general jurisdic- tion, and there can be no presumption of jurisdiction, it is necessary to make a special allegation of the facts required to give the court Bank, 2 How. 241 ; Thomson v. Lee 484; United States v. Bevans, 3 Wh. County, 3 Wall. 327. A different rule 336; United States f. Hudson, 7 Cr. prevails where no assignment has 32 ; United States v. Clark, 8 Pet. been made: City of Lexington v. 444; Briscoe v. Bank, 11 Cr. 321; Butler, 14 ^V"all. 283. United States v. Donlan, 5 Blatch. 1 White I'. Railroad, 21 How. 275; 294; Bank of the United States v. Mercer Co. v. Ilacket, 1 Wall. 830. Deveaus, 5 Cr. 61; Seldon v. Sill, 8 See also Bonnafee ?;. AVilliams, 3 How. How. 441; Harrison v. Hadley, 2 574 ; White v. A'ermont and Mass. K. Dill. 229 ; Hubbard v. Northern 11. Co., Co., 2 How. 575 ; Halstead v. Lyon. 2 3 Blatch. 84. McLean 226 ; Sackett v. Davis, 3 Mc- ^ United States v. Barney, 5 Blatch. Lean 101 (1842). 294. - United States v. Eckford, 6 Wall. CIRCUIT COURTS. 137 jurisdiction in each particular case. Thus, where the jurisdiction depends upon the proper citizenship of the parties, as that they are citizens of different states, that fact should be distinctly averred, and the particular states of which they are citizens should also be alleged ; ^ although it is not always necessary to show, under the act of 1875, that one of them is a citizen of the state where the suit is brought. In case a partnership is a party, it would be sufficient to aver that it is a firm, the members of which are citizens of a different state from that of the other party to the suit. But where there was an averment that the plaintiffs were a firm organized to carry on a banking business at Omaha, Nebraska territory, and had been for eighteen months in said business at that place, it was held that this was a sufficient averment of citizenship.^ As a general rule, however, it is safer to aver the facts consti- tuting the proper citizenship of the parties in a positive and distinct manner, and not leave it to be inferred argumentatively from the averments of the declaration or bill.^ It has also been held that citizenship and residence are not synonymous but distinct terms. ^ An omission to aver sufficiently the proper citizenship of the parties is, however, amendable;^ and if the defendant makes no objection to the want of a proper aver- ment of it, and proceeds to trial, the Supreme Court will, on writ of error, grant leave to amend the pleadings in this respect.^ In the case of a corporation, its citizenship should be averred to be of the state where it was created, and it would not be necessary to allege, as we have observed, that the members composing it were residents of such state.^ Hornthall v. The Collector, 9 the plaintifiTs ancestors were imported " from Africa and sold as slaves, the plaintiff could not be a citizen of a state, and was not entitled to sue in that character in a circuit court of the United States. Express Co. v. Kountz Brothers, 8 Wall. 560 ; Mason v. Rollins, 13 Wall 602 ; Christmas v. Russell, 5 Wall 290 ; Bingham v. Cabot, 3 Dall. 382 Turner v. Bank of America, 4 Dall 8 ; Gassees v. Ballou, 6 Pet. 761 McDonald v. Smalley, 1 Pet. 623 Jackson v. Twentyman, 2 Pet. 136 ; Wall. 342, Eberly v. Moore, 24 How. 157 ; Shel- ^ Brown v. Keene, 8 Pet. 115. ton V. Tiffin, 6 How. 163 -, Shepherd * Parker v. Oveirman, 18 How. 137 ; V. Graves, 14 How. 393 ; Wickliffe v. Railway v. Ramsey, 22 Wall. 322. Owings, 17 How. 47 ; Dred Scott v. * Kelsey v. Pennsylvania R. Co., Sanfdrd, 19 How. 395. In the latter 14 Blatch. 89. case the Supreme Court decided that ® Robertson v. Cease, 97 U. S. 646. as it appeared from the record that ' See ante, § 151. 138 FEDERAL PLEADING, PRACTICE AND PROCEDURE. An averment in a declaration tliat the defendant was a corpora- tion created by an act of the legislature of the state of New York, but located and doing business in Aberdeen, in the state of Missis- sippi, under the laws of that state, was held to be insufficient as an averment that the corporation was a citizen of Mississippi, where the suit was brought, but was in legal effect an averment that the defendant was a citizen of the state of New York.^ § 154. Implied and resulting powers. — While the federal courts have a limited and restricted jurisdiction, the mode of practice and procedure may conform to the rules of the common law or chan- cery practice ; and they have certain implied powers necessarily resulting from their institution. Thus they have power to punish for contempt and contumacy, and to enforce the observance of order, as these are necessary to the exercise of those powers expressly conferred.^ § 155. A statute covering the subject of a former one is substitu- ted therefor. — We have already alluded to the construction of stat- utes where two or more refer to the same subjects. In such a case, if the objects are not the same, they may all be valid and stand. But if the whole subject of former statutes is covered by a subse- quent one, and the mode of practice or procedure is varied by the latter, it operates by way of substitution, and repeals all the former ones on the same subjects.^ This doctrine would seem to be appli- cable in the construction of the first and second sections of the act of 1875, relating to the jurisdiction of the circuit courts and the removal of causes thereto from the state courts. The provisions of the Revised Statutes conferring original jurisdiction upon the circuit courts and providing for the removal of causes there from state courts would appear to be repealed by implication by the act of 1875. ^ Insurance Company v. Francis, United States w. Coolidife, 1 Wh. 415 ; 11 Wall. 210. See also Covington, 1 Gallison 4S8 ; United States f. Bev- etc, Co. V. Shepherd, 20 How. 227 ; ans, 3 Wh. 336. Manufacturing Co. v. Brack, 8 Blatch. ^ United States v. Claflin, 97 U. S. 137. 546. So where the jurisdiction of a As to the case of joint stock com- suit depends upon a statute, a repeal panics not fully possessed of corporate of the statute during the pendency of powers, see Liverpool Ins. Co. v. it takes away the jurisdiction : Insur- Massachusetts, 10 Wall. 506 ; Penn- ance Co. v. Ritchie, 5 Wall. 541 ; Phila- sylvania v. Quicksilver, etc., Co., 10 delphia v. The Collector, 5 Wall. 720; Wall. 553 ; Waltz v. Am. Ex. Co., 3 Hornthall v. The Collector, 9 Wall. Cent. Law .Jour. 157. 561 ; The Assessors v. Osborne, 9 2 United States v. Hudson, 7 Cr. 52 : Wall. 567. CIRCUIT COURTS. 139 § 156. Suits under import, revenue and postal la-ws, and for the enforcement of penalties and the condemnation of property. — iue act of 1875, like the previous statutes, provides for the jurisdiction of the circuit courts in all suits of a civil nature where the amount or value in controversy exceeds five hundred dollars, and arising under the laws of the United States. This includes all suits aris- ing under any act of Congress, "providing for revenue from imports or tonnage," and "all causes arising under any law providing in- ternal revenue," and "all causes arising under the postal laws." ^ Cognizance may be taken by the circuit courts of such cases, with- out regard to the citizenship or character of the parties, as well as of suits under statutes for the enforcement of penalties,^ and the condemnation of property taken as prize if used for insurrectionary purposes.^ Under the provisions of the act of August 6, 1861, re- lating to prizes, of which our present statute is a substantial copy, the questions presented to the Supreme Court were whether the cir- cuit courts had jurisdiction of such prizes taken on land ; what the proper pi'acticeand procedure in such a case should be; and whether the statute covered both personal and real property. It was held that the act covered all descriptions of property, both real and personal, on land or on water ; that the circuit court had jurisdiction under the statute of proceedings to condemn property on land, including real estate; and that the procedure in such cases might be in general conformity with the practice in admiralty, but not to the extent of preventing parties from having a jury to try issues of fact, in this respect differing from the strict course of admiralty practice.* § 157. Suits for the enforcement of liens or the removal of incum- brances. — Provision is made by the eighth section of the act of March 3, 1875, for suits to enforce liens upon or claims to, "or to remove any incumbrance or lien or cloud upon the title to real or per- sonal property within the district where such suit is brought," where one or more of the defendants is not an inhabitant of the dis- trict, nor found therein, and shall not voluntarily appear thereto. This provision gives a more extended and complete remedy to the plaintiff in these particular cases.^ ' Rev. Stat. | 629, sub. 4. The Vengeance, 3 Dall. As to effect a ^ Rev. Stat. | 629, sub. 5. pardon in such a case, see Arm- Md. sub. 6; Rev. Stat. ^§ 5308, strong's Foundry, 6 Wall. 766; Ex 5309. imrte Garland, 4 Wall. 380 ; Morris" * Union Ins. Co. v. U. S., 6 Wall. Cotton, 8 Wall. 507. 759. See also The S%rah, 8 Wh. 394 ; ^ See ante, I 145. 140 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The first section of this act, among other things, provides: "No civil suit shall be brought before either of said courts [circuit or district] against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in ■which he shall be found at the time of serving such process or com- mencing such proceedings, except as hereinafter provided." And section 10 provides: "That all acts and parts of acts in conflict with the provisions of this act are hereby repealed." Now it is evident that this act repeals section 737 of the Revised. Stat- utes, and limits the coo-nizance of these courts to suits where the defendant is an inhabitant of the district where the suit is brought, or in which he shall be found at the time of serving the process or commencing the proceedings, except as provided by the eighth sec- tion of said act. § 158. Suits for seizure under the slave-trade laws. — The Circuit courts have jurisdiction of all suits arising under the laws relating to the slave-trade. This jurisdiction was conferred by an act of Congress as early as 1794.-^ The cognizance of such cases is vested exclusively in the federal courts, and the state courts could not exercise jurisdiction therein.^ Under the original statute on this subject, it was held that the court of the district where the original seizure was' made, or where the property was first carried and pro- ceeded against if it was seized upon the high seas, had jurisdiction of the case.^ And under the act of 1791, which provided for the seizure of a vessel, in case of preparing to sail, or causing her to sail, for the purpose of embarking in the slave-trade, it was held that it was not necessary that the vessel should be completely fitted out and ready for saijing before the right of seizure attached, but that it was sufficient if the preparations had proceeded so far as to manifest an intention to sail in violation of the statute.* § 159. Suits arising under the patent and copyright laws. — All suits arising under the patent or copyright laws of the United States must necessarily be originally instituted in the circuit courts. Their jurisdiction is exclusive,^ and state courts can take 1 Act of March 22, 1794, c. 11, I 1, Rev. Stat. I 730; U. S. v. Jackalow, V. 1, p. 347. 1 Black. 484. 2 Dred Scott u. Sanford, 19 How. "The Emily, 9 Wh. 381 (1824). 393. See also U. S. Const., art. 1, See also The Wanderer, Sprague 515; § 9 ; act of March 3, 1819; xMay 10, The San Jago, 9 Wh. 409. isOO; and January 1, 1808. ^ Rev. Stat. I 711, sub. 5. 3 The xMerino, 9 Wh. 391. See also CIRCUIT COURTS. 141 no cognizance of such cases. The subject-matter confers the juris- diction upon the federal courts in such cases, and the citizenship of the parties is quite immaterial; but it would be necessary to make service of original process in the district where the suit is brought.' If, however, the controversy does not arise out of patent or copy- right laws, or depend upon a construction of them, but on a con- tract of assignment of a patent or copyright, or an interest in it, the circuit courts would have no exclusive cognizance of it ; ^ and their jurisdiction in such a case would depend entirely upon the proper citizenship of the parties. Thus, when a suit was brought by a patentee in a circuit court on a contract governing the rights of the parties to the use of a patented invention, and the defendant admitted the validity of the patent and his use of the same, the Supreme Court held that the circuit court had no jurisdiction of the suit, on the ground of the subject-matter of it, and as the suit was between citizens of the same state the circuit court had no right to take cognizance of the case.^ So, where a bill was filed for the specific performance of a contract for the transfer of an interest in a patent-right, it was held this was not alone sufficient to give the court jurisdiction.* This doctrine would of course apply to contracts relating to the use of a copyright. Thus, where an author made a contract with certain publishers by which he gave them the exclusive right to print a manuscript and publish and sell the same, for which the latter was to pay the author a fixed sum for each copy of the work sold, and with the assent of the author the publishers secured the copyright to the same in their own names ; and afterwards the author revised the work, and secured the copyright of the revised edition in his own name, and sought to restrain the publishers from further sales of the work by an injunction from the circuit court, it was held that the subject-matter did not give the circuit court juris- diction, as the suit was not based upon the copyright laws of the United States, but upon a contract made between the parties.^ 1 Act of 1875, § 1 ; Allen v. Blunt, ^ Ilartzel v. Tilghman, 99 U. S. 1 Blatch. 480; Ogle ??. Ege, 4 Wash. 547. 584. * Burr v. Gregory, 2 Paine 420 MVilson V. San ford, 10 How. 99; (1827). Hartshorne v. Day, 19 How. 211; ^ Pulte v. Derby, 5 McLean 328 Goodyear v. The Union Rubber Co., (1852). See also Boucicault v. 4 Blatch. 63; Goodyear v. Day, 1 Hart, 13 Blatch. 47. See also Bou- Blatch. 565. cicault v. Fox, 5 Blatch. 97; Bartlett 142 FEDERAL PLEADING, PRACTICE AND PROCEDURE. In case, however, the whole interest in a patent, or the right in certain territory of the United States, is duly assigned and recorded under the provisions of the patent laws, the assignee may sue for infringement of the same, and a circuit court could entertain juris- diction of the same on the ground of the subject-matter without regard to the citizenship of the parties,^ and restrain by injunction such infringements.^ But if a claim for damages is made, and an injunction is asked to restrain an alleged infringement of a patent-right or copyright, whether by the patentee or author or by his assignee, and the defendant denies the originality of the invention or authorship, or affirms that the patent was made broader than the invention of the patentee, the controversy would be one arising under the patent or copyright laws of the United States, and the subject-matter would give the circuit courts jurisdiction.^ It may be observed that the circuit courts always exercise their discriminating power in granting or refusing injunctions to restrain the sale or use of inventions, before a judgment has at law been had sustaining the patent thereto, and in all such cases the infringement should be made clear and palpable before an injunc- tion is allowed.* It may be proper here to observe that Congress has the exclu- sive power to legislate on the subject of patents, and a state cannot impose any restrictions upon the right of a patentee to sell his invention.^ § 160. Suits by and against national banks. — Associations for the purpose of carrying on banking business under the statutes re- lating thereto mav sue and be sued in the circuit courts of the United States. But their jurisdiction is not exclusive, as it is ex- pressly provided by the fifth subdivision of section 5136 of the Revised Statutes that when such associations are duly organized V. Crittenden, 4 McLean 300; and dence Rubber Co., 2 Fisher Pat. Fulsom V. Marsh, 2 Story 113, as to Cases 499; Burr v. Durgee, 1 Wall. authority of circuit courts to restrain 531 ; 0' Riley v. Morse, 15 How. 112 ; by injunction unauthorized publica- Battin v. Taggart, 17 How. 74. tions where they have jurisdiction. * Cochrane v. Duner, 94 U. S. 780 ; 1 Littlefield t\ PerryJ 21 Wall. 205. Burleigh Rock Drill Co. v. Lobdell, 1 * Brown v. Shannon, 20 How. 56; Holmes 450; Guttapercha Co. r. Good- Day V. Hayward, 20 How. 208. year Co., 3 Saw. 542. ^ Potter V. Muler, 2 Fisher Pat. * McClurg v. Kingsland, 1 How. Cases 465 ; Potter v. Wilson, 2 Fisher 206 ; Blanchard v. Sprague, 3 Sum. Pat. Cases 102 ; Goodyear v. Provi- 279 ; Payne v. Hook, 7 Wall. 425. CIRCUIT COURTS. 143 under the provisions of the statutes they may " sue and be sued, complain and defend, in any court of law and equity as fully as natural persons." They may therefore sue or be sued in any state, county or municipal court, in the county or city where they are located, having jurisdiction of similar cases between natural persons, unless there is some special provision of statute to the contrary.^ But a national bank cannot be sued in a federal court outside the district where it is located.^ Corporations are residents of the state and district where they are located and established.^ § 161. Suits by receivers of national banks. — Before a receiver of a national bank can be appointed under the National Banking Act, on the ground of the failure of the bank to pay its notes, it re- quires certain action on the part of the Comptroller of the Cur- rency ; * and in any action by a receiver against the stockholders of a bank to enforce their personal liability as provided by the statute, it is necessary that he aver in his bill this preliminary action on the part of the Comptroller ; but a receiver can sue as such in the circuit courts without regard to his citizenship ; ^ and he may sue for demands due the bank, either in his own name or in the name of the bank, without any order of the Comptroller of the Currency so to do. But it has been held that a state court has no jurisdiction of a suit by a creditor against a receiver of a national bank, duly appointed after the insolvency of a bank, to recover a debt alleged to be due from the bank to him, and that the circuit courts of the United States have exclusive jurisdiction of such cases.^ The power of the Comptroller of the Currency to proceed in the circuit ^ Bank of Bethel v. Pahquioque, 14 ^ Day v. Newark Ind. Rub. Man. Wall. 383 ; Pittilon v. Noble, 7 Biss. Co., 1 Blatch. 628 ; Pomroy v. N. Y. 450. They may sue in the federal & N. H. R. Co., 4 Blatch. 120. See courts and enjoin the collection of ante, ? 151. state and county taxes levied upon its * Rev. Stat. §| 5226, 5227. capital : First Nat. Bank of Omaha ^ Kennedy v. Gibson, 8 Wall. 498. V. County of Douglas, 3 Dill. 298 ; « National Bank v. Colby, 21 Wall. City Nat. Bank v. Paducah, 3 Cent. 609. But vrhere the bill presented a L. -J. 347. question of property between the 2 Main v. Second Nat. Bank of Chi- plaintiff and receiver, and they re- cago, 6 Biss. 26. But in other cases, sided in the same state, the circuit at least under the act of March 3, court held it had no jurisdiction: Van 1875, it is no lonjjer necessary that Antwerp v. Hulbard, 8 Blatch. 282. one of the parties should be a citizen See also Cadle v. Tracy, 11 Blatch. of the state where the suit is brought: 101; In re Manufacturers' Bank, 5 Osgood. V. Chicago, etc., R. Co., 6 Biss. 499 ; Irons v. Manufacturers' Biss. 330; Pacific R. Co. v. Ketchum, Bank, 6 Biss. 301. 101 U. S. 298. 144 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court to wind up a national bank in certain contingencies, and to appoint a receiver therefor, does not, however, exclude the authority of other competent tribunals to appoint a receiver in other cases. ^ But the circuit court has no jurisdiction of a suit by a private person to control, restrain or interfere with the official action of the Treasurer or Comptroller of the Currency in respect to bonds deposited to secure the redemption of the circulating notes of banks. ^ It may, however, take cognizance of a suit by a stock- holder to enjoin the officers of a national bank from any applica- tion of its funds not authorized by its charter, or which would amount to a breach of trust if there is the requisite citizenship of the parties.^ § 162. Suits to redress the deprivation of rights. — Under the act of 1875 the circuit courts would have cognizance of all suits insti- tuted " by any persons to redress the deprivation under color of any law, statute, ordinance, regulation, custom or usage of any state, of any right, privilege or immunity secured by the Constitu- tion of the United States, or by any law of the United States pro- viding for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States,"* as such suits would be those arising under the Constitution or laws of the United States.^ The powers of the federal courts under this provision have mainly been invoked to redress the wrongs of colored persons, whose equal rights were undoubtedly intended to be secured by the statutory provisions referred to in the notes. ^ § 163. Appellate jurisdiction of the circuit courts. — The Statute provides for an appellate jurisdiction of the circuit courts: "From all final decrees of a district court in causes of equity or of admi- ralty jurisdiction, except prize causes, where the matter in dis- pute exceeds the sum or value of fifty dollars exclusive of costs, an appeal shall be allowed to the circuit court next to be held in such district, and such circuit court is required to receive, hear and determine such appeal." '^ ^ Irons V. Manufacturers' Bank, 6 * Rev. Stat. | 629, sub. 16. Biss. 301. s Rev. Stat. M «'^8. 1977, 1979. 2 YanAntwerpu. Hulbard,7Blatcli. « Act of May 31, 1870, and March 426; s. c, SBlatch. 282. _ 1, 1875. '^ Shoemaker I'. The Mechanics' Nat. '' Rev. Stat. | 637. Bank, 2 Abb. (U. S.) 416 ; Dodge v. Woolsey, 18 How. 341. CIRCUIT COURTS. 145 § 164. The'decree must be a final one. — The decree of the district court must be a final one or the circuit court cannot act upon it, as it would have no jurisdiction ; and it should appear in the record brought up on appeal that the decree was final. Even the consent of counsel to the insertion of a final decree, and an amendment of the record to that effect, will not suffice to give the circuit court jurisdiction in such cases. ^ Where a district court sitting in admi- ralty adjudged that a sum of money was due, but the amount could not be determined, as it depended upon other claims that might be established, and no order could be made for the payment of money from the fund in court until it should be further advised, this was held not to be a final decree that would confer appellate jurisdiction on the circuit court. ^ § 165. It must be a cause of equity or of admiralty or maritime jurisdiction ; -when an appeal •will be dismissed. — To authorize an appeal the cause must be of equity or of admiralty jurisdiction, except it be a prize cause. If the cause belongs to the law side of the court it can only be reviewed by a writ of error. Thus, where property was seized on land and libelled as forfeited to the United States for a violation of the revenue laws, it was held that the cause belonged to the law side of the court, and that the circuit court, to which it was appealed, could not entertain jurisdiction.^ The appeal must be taken to the next term of the circuit court to be held in the district after the rendering of the decree by the district court. If not so taken, it will be dismissed.^ § 165. Jurisdiction on error to judgments of district courts. — The circuit courts have also jurisdiction of civil actions to re-examine the judgments of the district courts on writs of error. In such a case the judgment of the district court must be a final one; the matter in dispute must exceed the sum or value of fifty dollars exclusive of costs ; and it can only be reviewed by a circuit court holden in the same district. The judgment below may be either reversed or affirmed by the circuit court ;^ or it may modify the judgment, decree or order, or direct such judgment, decree or order 1 Mordecaiw. Lindsay, 19 How. 199. * U.S.r. $5100 in Specie,] Woods 14. ^ Montgomery t). Anderson, 21 How. ^ Rev. Stat. | 633. The circuit court 386. for the three districts of Alabama can ^ United States v. Thirty-seven Bar- exercise appellate and revisory juris- rels of Rum, 1 Woods 19; United diction of the decrees and judgments States V. Haynes, 2 McLean 155; of the district courts of said districts : United States v. Wonson, 1 Gallis. 5. Id. | 634. 10 146 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to be rendered, or such further proceedings had by the district court, as the justice of the case may require.^ But the statute provides that " no judgment, decree or order of the district court shall be reviewed in a circuit court on writ of error or appeal, unless the writ of error is sued out or the appeal taken within one year after the entry of such judgment, decree or order," except where the party entitled thereto is an infant, or non compos mentis, or im- prisoned, in which case the appeal may be taken or the writ of error prosecuted within one year after the removal of the disability.^ Under a similar exception limiting the time of bringing a writ of error or the taking of an appeal for review in the Supreme Court, of a judgment, decree or order of a circuit or district court in a civil action,^ it has been held that the statute did not run, during the war of the rebellion, against a non-resident of a rebellious state in favor of a resident.* § 167. Jurisdiction in cases transferred from the district courts on account of the disability of the judge. — The statute also provides for the removal of causes from the district to the circuit courts, where the district judge is disabled, or interested in the suit, or has been of counsel for either party, or is related to either party .^ In such cases the circuit court may take cognizance of the cause if properly certified to it, whether civil or criminal, or of whatever nature, in the same manner as it might have done if the same had originally and lawfully commenced therein.^ § 168. Always open for certain purposes. — It may be well to ob- serve, in this connection, that the circuit courts, as courts of equity, are always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules and other proceedings pre- paratory to a hearing upon their merits ; and any judge of the court may, upon reasonable notice to the parties, at chambers or at the ■clerk's ofiice, and in vacation as well as in term time, make, direct and award all such process, commissions, orders, rules and other proceedings, whenever they are not grantable of course, according to the rules and practice of the court.^ 1 Rev. Stat. U 634, 636. Hanger v. Abbott, 6 Id. 532. ■' Rev. Stat. | 635 ; Sedgwick v. Fri- ^ Rev. Stat. || 587, 588. ^ienburgh, 11 Blatch. 77. * Rev. Stat. I 637. See also || 587, 3 Rev. Stat. § 1008. 601. * The Protector, 9 Wall. 687 ; ' Rev. Stat. § 638. CIRCUIT COURTS. 147 § 169. Causes for removal of suits from state courts jurisdiction. — Bv the provisions of various acts of Congress adopted since the Judiciary Act of 1789 the jurisdiction of the circuit courts has been enlarged and their business has been thereby greatly increased. This is largely owing to the liberal provisions therein made for the removal of causes from the state courts. The act of March 3, 1875, provides : " That any suit of a civil nature at law or in equity, now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hun- dred dollars, and arising under the Constitution or laws of the United States, or treaties made or which shall be made under their authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between citizens of different states, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citi- zens of a state and foreign states, citizens or subjects, either party may remove said suit into the circuit court of the United States for the proper district ; and when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually inter- ested in such controversy may remove said suit to the circuit court of the United States for the proper district."^ This phraseology is similar to the first section of said act, and follows the language of the Constitution on the same subject.^ If, therefore, a circuit court may take original cognizance of suits for any of the causes mentioned in the first section of the act, for the same causes may suits be removed from a state court to the proper circuit court, where the suits are originally commenced in a state court. In fact, as we have noticed, there would appear to be author- ity to take cognizance of certain suits on removal, that could not originally be brought in the circuit courts, as in case of a suit founded upon contract, other than a promissory note negotiable by the law mei-chant or bill of exchange, brought by an assignee of the same. In such a case the circuit court could have no cognizance of the suit unless it could have been brought in that court to recover there- on if no assignment had been made. But a suit on such a contract may be brought in a state court, and on a proper application, and 1 Act March 3, 1875, ch. 137, § 2 ; ^ Removal Cases, 100 U. S. 457. 18 Stat. L. 471. 148 FEDERAL PLEADING, PRACTICE AND PROCEDURE. for any of the causes mentioned in section 2 of the act, •which makes no exception of suits founded on common contract, it could perhaps be properly removed to the proper circuit court.* As the conditions and causes for removal are similar to those giving original jurisdiction to the circuit courts in civil cases, it is manifest that decisions construing the statute and determining its application in one class of cases ^vould be equally applicable to the other. § 170. Two classes of causes for removal. — It will be observed that there are two classes of causes authorizing a removal. In one class of cases mentioned in the statute, a removal may be had with- out regard to the citizenship of parties, as where a suit of a civil nature at law or in equity arises "under the Constitution or laws of the United States, or treaties made or which shall be made under their authority, or in which the United States shall be plaintiff or peti- tioner." In this class of cases the citizenship of the parties is not involved. In the other class of cases the right of removal depends upon the proper citizenship of the parties. In all cases the suit must be one of a civil nature at law or in equity, and the matter in dispute must exceed the sum or value of five hundred dollars exclu- sive of costs ; and in the class of cases last mentioned it must be — 1. A controversy between citizens of different states; or, 2. A con- troversy between citizens of the same state claiming lands under grants of different states ; or, 3. A controversy between citizens of a state and foreign states, citizens or subjects. § 171. All suits of a civil nature. — It must be a controversy of a civil nature, at law or in equity, which can be removed. This em- braces all suits on contracts as well as for torts,^ and all kinds of actions cognizable in courts of equity.^ It covers a suit in a state ^ It may be observed, however, that to extend to suits removed to, as well the first section of the act provides as those originally brought in, the that no "circuit or district court shall circuit courts. have cognizance of any suit founded ^ Yannevar v. Bryant, 21 Wall. 41 ; on contract in favor of an assignee, Fouvergne v. New Orleans, 18 How. unless such suit might have been 470 ; In re Turner, 3 Wall. Jr. 260 ; prosecuted in such court to recover Beecher v. Gillett, 1 Dill. 308 ; Allin thereon if no assignment had been v. Robinson, Id. 119; Dennistoun v. made, except in cases of promissory Draper, 5 Blatch. 336 ; Gibbs v. Usher, notes negotiable by the law merchant 1 Holmes 348. and bills of exchange." In the ab- ^ Charter Oak Co. i'. Star Insurance sence of a construction of this Ian- Co., 6 Blatch. 208 ; Gaines w. Fuentes. guage, it may perhaps be unsafe to 92 U. S. 10; Parker v. Overman, 18 assume that it will not be construed How. 137. CIRCUIT COURTS. 149 court to restrain or stay the execution of a judgment of a state court ; ^ and suits not regularly brought in a state court, such as suits pending in a state court, but brought there under the provisions of the statute of a state, from an appraisement of lands by commis- sioners duly appointed for that purpose, which is sought to be ap- propriated by a corporation under the right of eminent domain.^ For forms in cases of removal, see j^ost (" Forms for Removal of Causes "), No. 175, et seq. § 172. Suits arising under the Constitution or lavrs or treaties of the United States.^Under the second clause of the section above referred to, the cause of removal depends upon the suit " arising under the Constitution or laws of the United States, or treaties made or which shall be made under th^ir authority." The petition in such a case should show, by the facts and circum- stances stated therein, that some disputed question of construction of the Constitution or laws of the United States, or some treaty made under their authority, is involved in the suit ; and it is not suffi- cient that the petitioner states merely his opinion or conclusion that the suit arises under the Constitution or laws of the United States, or a treaty made by their authority.^ And if the suit is to deter- mine the rights of claimants to mines, and the only questions pre- sented relate to the local laws, rules, regulations and customs by which the rights of the parties are governed, and whether the parties have observed them, this is not a ground for jurisdiction or removal.^ If a judgment in a suit depends upon a proper construction of the Constitution or laws of the United States, the suit may be removed ;^ but the Constitution will not be construed so as to authorize the federal courts to correct mere abuses of power committed by a state government.^ The following case is one where original jurisdiction was entertained on the ground of a constitutional question being pre- iWest V. Auroria, 6 Wall. 139; v. Directors, 3 Woods (C. C.) 177; Patterson v. Boone Co., 3 Dill. 465. Barrow v. Hunton, 99 U. S. 80. 2 Gold W. and W. Co. v. Keyes, 96 * Cohens v. Virginia, 6 Wh. 264 ; U. S. 199 ; Wilder v. Union National Osborne v. Bank, 9 Wh. 821 ; United Bank, 12 C, L. N. 75. States v. Peters, 5 Cr. 115 ; Ableman * Trafton V. Nougues, 4 Saw. (C. C.) v. Booth, 21 How. 506; Thurston v, 178 ; The 420 Mining Co. v. The Bui- Union Pacific K. Co., 3 Dill. 366. lion Mining Co., 3 Saw. 634 ; Dowell ^ St. Louis ?;. The Ferry Co., 11 0. Griswold, 5 Saw. 39 ; Bertonneau Wall. 423 ; State Tax on Foreign- held Bonds, 15 Wall. 300. 150 FEDERAL PLEADING, PRACTICE AND PROCEDURE. sented, but the facts of the case would also authorize a removal from a state court to the proper circuit court, and confer jurisdic- tion upon the latter. A suit was instituted in the state of Connecticut to restrain the collection of taxes levied on the real estate of the plaintiff, for the satisfaction of taxes assessed against him bj reason of his owner- ship of certain bonds, executed and made payable in the state of Illinois and secured by a trust deed upon real estate therein situ- ated, the statute of the state of Connecticut providing for such assessment and levy in that state. The question presented in the circuit court where the suit was brought was whether the statute authorizing such assessment and levy in Connecticut was repugnant to the Constitution of the United States. The case was taken by writ of error to the Supreme Court, which held that the statute of Connec- ticut authorizing such levy was not repugnant to the Constitution of the United States. The court say : " So long as the state by its laws prescribing the mode and subjects of taxation does not trench upon the legitimate authority of the Union, or violate any right recognized or secured by the Constitution of the United States, this court, as between the state and its citizens, can afford him no relief against state taxation, however unjust or oppressive or erro- neous." ^ § 173. Either party may remove when the controversy is between citizens of different states. — It will be observed that the section under consideration provides for a removal by either party, where a case of removal exists ; and that where the " controversy is wholly between citizens of different states, and which can be fully deter- mined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the circuit court of the United States for the proper dis- trict." The Supreme Court of the United States, in construing the pro- vision allowing a removal by either party of suits in which there shall be a controversy between citizens of different states, say: " This we understand to mean that where the controversy about which a suit in the state court is brought is between citizens of one or more states on one side and citizens of other states on the other ^ Kirtland v. Hotchkiss, 100 U. S. 491. See also Providence Bank v. Billings, 4 Pet. 563. CIRCUIT COURTS. 151 side, either party to the controversy may remove the suit to the circuit court, without regard to the position they occupy in the pleadings as plaintiiFs or defendants. For the purpose of removal the matter in dispute may be ascertained, and the parties to the suit ranged on the opposite sides of the dispute. If in such ar- rangement it appears that those on one side are all citizens of dif- ferent states from those on the other, the suit may be removed."^ Under former statutes the right of the parties to remove a cause depended upon the position they occupied as plaintiffs or defend- ants in the pleadings.^ But under the present law the parties are placed upon different sides of the suit, according to the facts of the case; and where all of the parties on either side desire a removal, they are entitled to it, if the requisite citizenship exists; that is, if those on one side are all citizens of different states from those on the other. In Removal Cases, above cited, Mr. Justice Bradley, while con- curring with the opinion of the court therein given, maintained a broader interpretation of the statute, sustained by the following argument : " In my judgment a controversy is such, as the expres- sion is used in the Constitution and in the law, when any of the parties on one side thereof are citizens of a different state or states from that of which any of the parties on the other side are citizens. * * * It seems to me clear that in construing the present law we are not bound by the construction given to the old Judiciary Act. The words of that act, conferring jurisdiction upon the circuit courts in respect to citizenship, were not the same as those used by the present law or by the Constitution. It only conferred jurisdiction when 'the suit is between a citizen of a state where the suit is brought and a citizen of another state.' The singular number only was used, and the courts, in applying the law to cases in which there was a plu- rality of plaintiffs and defendants, construed it (perhaps unjustly) as requiring that each plaintiff and each defendant should have the citizenship required by law. But now it is not so. The present law follows the language of the Constitution, and gives the juris- diction to the circuit courts in the broadest terms, namely, when- ever in any suit there is 'a controversy between citizens of different ^ Waite, C. J., ia Removal Cases, Act, it was held that it was not neces- 100 U. S. 457. sary for all the parties entitled to a "^ Coal Co. V. Blatchford, 11 Wall, removal to join therein at one time: 174. Under sec. 12 of the Judiciary Field v. Lownsdale, 1 Deady 288. 152 FEDERAL PLEADIN'G, PRACTICE AND PROCEDURE. states ;' and this broad and general expression, as I think I have shown, gives jurisdiction where any of the contestants on opposite sides of the controversy are citizens of different states."^ Where a suit was brought in a state court for the recovery of lands and damage for the detention of them, and the whole con- troversy, so far as the title was concerned, was between the plain- tiff, a citizen of the state where the suit was brought, and some de-. fendants, also citizens of that state, and others, citizens of other states, but the latter had no rights separate from the other defend- ants, and they were dependent wholly upon the resident defendants' right to the possession of the property, it was held that the contro- versy was not removable.^ Where a decree of a state court was rendered in 1874, and an appeal therefrom was taken in 1876 to the supreme court of the state, and in 1877 the decree was reversed and the cause remanded, " with leave to both parties to amend pleadings as they may be ad- vised, and to take testimony, and for an account to be taken in accordance with the views taken in the opinion" of the court, and on the day after the mandate from the supreme court was received in the court of original jurisdiction, the defendant filed his petition praying that, by reason of the citizenship of the parties, the cause be removed to the proper circuit court, it was held that neither the date when nor the stage of the cause at which the petition was filed precluded the removal.'^ A suit cannot be removed from a state court to the circuit court unless either all the parties on one side of the controversy are citi- zens of difi"erent states from those on the other side, or there is in such a suit a separable controversy, wholly between some of the par- ties who are citizens of different states, which can be fully deter- mined as between them.* For forms in cases of removal, see i^ost, Forms Nos. 175-184. 1 See also Girardy r. Moore, 3 ^ Hewit «;. Phelps, 105 U. S. 393 ; Woods (C. C.) 379 (1877); Pettelon distinguished from Jifkins v. Sweet- V. Noble, 7 Biss. (C. C.) 449. If a zer, 102 U.S. 177. Section 643 of the pei'son who is a party to the suit Revised Statutes is not superseded by joins with one who is not, in a peti- the act of March 3, 1875, c. 137 : Ven- tion for removal, this does not affect able v. Richards, 105 U. S. 636; 1 the right of the real party, as the pe- Hugh. 326. tition will be treated in legal effect as * 1 Hyde v. Ruble, 104 U. S. 407. liis own petition : Meyer v. Delaware This case also holds that the second 11. Co., lOO U. S. 457. clause of sec. 639 of the Revised Stat- ^ Corbin v. Van Brunt, 105 U. S. utes was repealed by the act of March 576. 3, .1875. CIRCUIT COURTS. 153 § 174. "Where one party is an alien. — In considering the grounds of original jurisdiction of the circuit courts, we have shown that where an alien is a party, the other party must be a citizen of a state, and that it is not sufficient to allege that one party is an alien, but it is necessary to aver that he is a subject or citizen of some one foreign state ; and that it is no objection to the jurisdic- tion of the court in such a case that the alien resides in the same state with the other party. ^ The same doctrine would apply in the case of an application for removal. We have also shown that a corporation is a citizen of the state creating it.^ So also a corpora- tion may be an alien ; and where a suit is between a citizen of a state and an alien corporation, this would confer original jurisdic- tion upon the circuit courts, and constitute a cause of removal on the ground of citizenship.^ § 175. Manner of removal. — The mode or manner of removal of causes from the state to the circuit courts is specifically pointed out by the statute ; but, as is usual with new statutes, new questions have been presented to the federal courts, requiring a construction of it. The act on this subject provides: "That whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preceding section [§ 2], shall desire to remove such suit from a state court to the circuit court of the United States, he or they may make and file a petition in such suit in such state court before or at the term at which said cause could be first tried, and before the trial thereof, for the removal of such suit into the circuit court to be held in the district where such, suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrong- fully or improperly removed thereto, and also for there appearing and entering special bail in such suit, if special bail was originally requisite therein ; it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken shall be discharged ; and the said copy being entered as aforesaid in such circuit court ^ See ante, I 195. * Terry v. The Imperial Fire Ins. ^ See ante, I 191. Co., 3 Dill. 408. 154 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of the United States, the cause shall then proceed in the same manner as if it had been commenced in the said circuit court ; and if in any action commenced in a state court, the title of land be concerned, and the parties are citizens of the same state, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim and shall rely upon a right or title to the land under a grant from a state, and produce the original grant, or an exempli- fication of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other state, the party or parties so required shall give such information or other- wise not be allowed to plead such grant, or give it in evidence upon the trial; and if he or they inform that he or they do claim under such grant, any one or more of the party moving for such informa- tion may then, on petition and bond, as hereinbefore mentioned in this act, remove the cause for trial to the circuit court of the United States next to be holden in such district ; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim ; and the trial of the issues of fact in the circuit courts shall in all suits, except those of equity and of admiralty and maritime jurisdiction, be by jury." ^ For form of petition and bond in such cases, see post, Form No. 175, et seq. § 176. When the petition for removal must be filed. — The peti- tion must be filed in the state court " before or at the term at which said cause could first be tried, and before the trial thereof." If the suit was pending at the time of the passage of the act, an application for removal would be in time if made before the trial and at the first term of the court after its passage, Where a trial was had in a state court, but there was a disagreement of the jury in the case, and the cause was continued until the next term, at which term it was again continued till the following one, when a petition for removal was filed, 1 Act of March 3, 1875, ch. 137, | 3. CIRCUIT COURTS. 155 it was held proper not to grant it.^ This application did not com- ply with the provision of the statute requiring it to be made before or at the next term at which the cause could be tried. But where one trial has been had and the judgment has been set aside or vacated, so that the cause stands again for a new trial, a petition for removal may then be made as if there had been no trial. In case of a reversal of a judgment of a state court on appeal or error, the right to another trial must be perfected before the application can be made.^ Thus where the supreme court of a state reversed the judgment of a state court and granted a new trial, but on application allowed a rehearing of the same, it was held that the supreme court of the state still held jurisdiction, and that a petition filed in the meantime for a removal of the cause from the state to the circuit court was premature.^ The petition must be presented to the court before the trial is entered upon ; but to bar the right of removal on this ground it must appear that the trial was actually and in good faith begun when the application was made ; and no mere attempt of a party to get himself on the record as having commenced the trial will avail him.* § 1<7. The act must be substantially complied Tvith ; sufficiency of the bond. — It is essential that the provisions of the section be at least substantially complied with. A bond with good and suflScient surety must be filed with the petition for removal ; and hence where the bond given on the application for a removal contained a blank space where the penalty of the bond should have been inserted, it W'as held not to be a compliance with the statute, and consequently that no right of removal existed.^ The petition for the removal should state the grounds of the re- moval clearly, whether arising from the subject matter or the citizenship of the parties, and the sufficiency of the amount in con- 1 Bible Society v. Grove, 101 U. S. niture Co., 4 Dill. 563 ; Palmer v. 610; Removal Cases, 100 U. S. 457. Call, 4 Dill. 566. 2 Insurance Co. v. Dunn, 19 Wall. * Removal Cases, 100 U. S. 457 ; 214. Baker v. Peterson, 4 Dill. 562 ; Had- ^ Railroad Co. v. McKinley, 99 U. ley v. San Fi'ancisco, 3 Saw. 553 ; S. 147. See also Lowe v. Williams, Merchants' and Man. Nat. Bk. v. 94 U. S. 650; Yannevar v. Bryant, 21 Wheeler, 13 Blatch. 218. Wall. 41. See also Dart v. McKin- ^ Burdick v. Hale, 7 Biss. 96. The ney, 9 Blatch. 359; Atlee v. Potter, 4 state court has no discretion in the Dill. 559; McColough v. School Fur- matter; Meyer v. Del. R. C. Co., lOU U. S. 457. 156 FEDERAL PLEADING, PRACTICE AXD PROCEDURE. troversy, where that is required ; and if the right of removal is based upon the citizenship of the parties in different states, the record or petition should show this affirmatively, and that at the time of the commencement of the suit the parties were citizens of different states.^ AVhere the petition shows proper grounds for removal, and is duly verified and filed, with a proper and sufficient bond, it is the duty of the court to accept the petition and bond, and proceed no further in the case ; in fact it has no further jurisdiction of it ; but if the court refuses to allow a removal, and the party entitled thereto defends the action in the state court, he loses none of his rights by so doing.^ § 178. The state court may pass upon the sufficiency of the applica- tion for removaL — There is no right to a removal until a good petition and a bond with a good and sufficient surety are filed in the state court. These are conditions precedent to the right of removal ; and the question whether they comply with the law must, in the first in- stance, be decided by the state court. The court in such cases is called upon to yield its jurisdiction to another court, on the ground of a compliance with certain statutory conditions, and it would appear reasonable that the state court should be allowed to pass upon this question.^ The amount of the penalty and the required conditions should be inserted in the bond.* In case of a good and sufficient petition and bond being filed in the state court, the better practice would be for the court to make an order for the removal of the cause. But this does not seem to be absolutely necessary.^ Where a sufficient cause for removal is shown by a petitioner, therefore, it is the duty of the state court to proceed no further with the suit. The jurisdiction of the proper circuit court then attaches, and is not lost by the failure of the petitioner to enter the record and docket the cause on the first day of the next term of 1 Insurance Co. w.tPechner, 95 U. S. R. Co.), 100 U. S. 457, where it was 183 ; Abranches v. Scheil, 4 Blatch. also held that it is not necessary that 256 ; Thurston v. Union P. R. Co., 3 two persons should sign the bond as Dill. 366 ; Railway Co. v. Ramsey, 22 sureties. Wall. 322 ; Kaeiser v. Illinois Central * Burdick v. Hale, 7 Biss. 96. R. Co., 2 McCrary 187. ^ Osgood v. Chicago, D. & V. R. 2 Removal Cases, Meyer v. Del. R. Co., 6 Biss. 330; Connor r. Scott, 4 C. Co., 100 U. S. 457. Dill. 242 ; Commercial and Sav. Bk. ^Removal Cases (Meyer v. Delaware v. Corbett, 5 Saw. 172. CIRCUIT COURTS. • 157 the circuit court ; but the entry on a subsequent day may be per- mitted upon good cause shown, and good cause is shown where the petition for removal has been overruled by the state court and the petitioner forced to trial upon the merits ; and he loses no right by contesting the suit on its merits in the state courts in such a case.^ § 179. Personal citizenship of the parties. — Where jurisdiction or the right of removal depends upon the proper citizenship of the parties, it requires the personal citizenship of them, even though they may act in a representative capacity, as executors or adminis- trators. Thus, where a suit was brought by executors, and a peti- tion for a removal averred that they, personally, had the required citizenship, it was held sufficient.^ But merely nominal parties can- not affect the right whatever may be their citizenship.^ § 180. When a controversy is wholly betv^reen citizens of different states. — A part or fragment of a cause cannot be removed. But when in any suit mentioned in section 2 of the act of 1875 there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove the suit.* § 181. Removal on account of prejudice or local influence. — The third subdivision of section 639 of the Revised Statutes provides for the removal of suits brought by a citizen of a state against a citizen of another state, on the ground that the non-resident party applying for the removal cannot obtain justice in the state court on account of prejudice or local influence. The provision is as fol- lows : " When a suit is between a citizen of the state in which the suit is brought and a citizen of another state, it may be removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of filing said petition, he makes and files in said state ' Railroad Company v. Koontz, 104 S. 610; Insurance Co. v. Pechner. 9.'> U. S. 5 ; Gordon v. Longest, 16 Pet. U. S. 183. 97 ; Insurance Co. v. Dunn, 19 Wall. '^ See ayite, | 12.5. 214. See also King v. Worthington, * Harvey v. 111. Mid. R. Co., 7 Biss. 104 U. S. 44. 103 ; Carraher v. Brennan, 7 Id. 497 ; ^ Amory v. Amory, 95 U. S. 186 •, Arapahoe Co. v. Kansas Pac. K. (Jo., Craigie v. McArtliur, 4 Dill. 474. The 4 Dill. 277 ; Removal Cases, 100 U. record should show the proper citizen- S. 457. ship : Bible Society v. Grove, 101 U. 158 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court an affidavit, stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such state court." The right of removal under this provision depends not only upon the proper citizenship of the parties, but upon prejudice or local influence; and suits cannot be removed on these grounds, unless they are between a citizen of the state in which the suit is brought and a citizen of another state, and then onlj on the petition of the non-resident party, though he may be either plaintiff" or defendant.^ For form of petition in such cases, see post, Form No. 180. For forms of bonds on removal, see post, Forms Nos. 178, 181. § 182. Application must be made to a state court of original juris- diction. — The statute authorizing the removal of causes from a state to the circuit court has been construed to authorize a re- moval only from a state court of original jurisdiction. If a cause has been tried in a state court of original jurisdiction and an ap- peal taken therefrom, or a writ of error obtained, and the cause stands for a rehearing in the appellate court of a state, it cannot be removed from thence to a circuit court of the United States under the federal statutes providing for the removal of causes from a state court to a circuit court of the United States.^ § 183. Removal in case of suits against corporations organized under laws of the United States. — The Revised Statutes expressly provide that " Any suit commenced in any court other than a circuit or district court of the United States, against any corpora- tion other than a banking corporation, organized under a law of the United States, or against any member thereof as such member, for any alleged liability of such corporation or of such member as a member thereof, may be removed for trial in the circuit court for the district where such suit is pending, upon the petition of such defendant verified by oath, stating that such defendant has a de- fence arising under or by virtue of the Constitution or of any treaty or law of the United States. Such removal in all other respects shall be governed by the provisions of the preceding sec- tion." ^ It will be noticed that the ground of removal in this case is "a ^ Bible Society v. Grove, 101 U. S. ' Stevenson v. Williams, 19 Wall. GIO ; Cook V. Ford, 4 Cent. L. J. 561 ; 572 ; Railroad Co. v. McMinley, 99 U. 2 C. L. B. 108. See also Hurst v. W. S. 147. & A. R. Co., 93 U. S. 71. ^ Rev. Stat, g 640. CIRCUIT COURTS. 159 defence arising under or by virtue of the Constitution or any treaty or law of the United States." There seems to be no limit to the jurisdiction on account of the sum or value of the matter in dispute, as is provided by the second section of the act of March 3, 1875, which also provides for the removal of a cause from a state court by either party in case the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and the suit arises "under the Constitution or laws of the United States, or treaties made or which shall be made under their authority." But this question does not appear to be authoritatively settled. As a corpora- tion may be a party and a citizen, the question might arise whether section 640 of the Revised Statutes was not repealed by the pro- vision of the act of March 3, 1875, above referred to. The former statute is not in conflict with the latter, and the larger rights and privileges of corporations and members of the same under the sec- tion of the Revised Statute referred to can hardly be considered as repealed by any reasonable construction of the later act. If so, the time and mode of application of the parties mentioned in the Revised Statute would be governed by the provisions of the third subdivision of section 639 of the Revised Statutes, which does not limit the time of application so strictly as the act of 1875, nor does the right of removal depend upon the value of the matter in con- troversy.^ Under this provision the truth of the allegations of the grounds for the removal, in the petition therefor, cannot be tried on affidavits on a motion to remand, but this may be put in issue in the circuit court and settled on the trial of the case there. Nor can the rio-hts of the corporation defendant, or a member thereof, be defeated of the right of removal by being joined with other parties not within the provisions of the statute.^ If it is averred in the petition for removal that the defendant is a corporation or a member thereof, and if a corporation that it is not a banking corporation, organized under a law of the United States, and that the defendant has a de- fence under an act of Congress, giving the title of the act, this is a sufficient compliance with the statute, although it does not allege what the defence is, or the facts constituting it. But the statute 1 That it is not repealed by the act ^ Fish v. The Union Pac. R. Co., 8 of March 3, 1875, see Kain v. Texas Blatch. 243. See also Fisk v. Union Pac. R. Co., 3 Cent. L. J. 12 ; Ely v. Pae. R. Co., 6 Id. 362. Northern Pac. R. Co., 36 Leff. Int. 164 ; s. c, 7 W. N. 145. 160 FEDERAL PLEADING, PRACTICE AND PROCEDURE. has no application to a corporation created by a foreign state or government.^ Where in the petition for removal it was averred that the defend- ant was a corporation created under and by virtue of the laws of the United States, and not a banking corporation, and that it had a defence under the aforesaid laws, it was held that the corporation was entitled to a removal of the cause.^ For form of application for removal in such cases, see post, No. 180. § 184. Removal of causes, civil or criminal, against persons denied any civil right. — Section 641 of the Revised Statutes provides that " when any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in that part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the juris- diction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment, or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next circuit court to be held in the district where it is pending." The section further provides that bail or other security given shall continue, that the clerk of the state court shall furnish the defendant a copy of the record, and that when it is properly filed in the circuit court, such court shall have cognizance of the same as if originally commenced there; that if the clerk refuses to furnish a copy, the circuit court may require the plaintiff, upon reasonable notice, to file a declaration, petition or complaint in the cause, and on failure so to do may order a non- ^ Jones V. The Oceanic Steam Xav. the defendant that the defence does Co., 11 Blatch. 406. not arise under the Constitution or ^Turton v. Union Pac. R. Co., 3 laws or treaties of the United States, Dill. 366. See also Farmers Co. v. the cause will be remanded : Magee Central R. Co., 3 Dill. 379. If, how- v. The Union Pac. R. Co., 2 Saw. ever, it appears from the answer of (C. C.) 447. CIRCUIT COURTS. 161 suit and dismiss the cause ; and that if, without the refusal of the clerk to furnish such copy, the defendant fails to file such copy in the circuit court as aforesaid, a certificate thereof is required to be given by the clerk of the circuit court, upon the production of which in the state court the cause shall proceed as if no petition for a removal had been filed. Under this section it has been held that the denying of any right secured to a person by any law providing for the equal civil rights of citizens of the United States means a denial by some statutory provision of the state or by legislative action, and an inability to enjoy some right secured to him by the Constitution of the United States or acts of Congress providing for the equal civil rights of citizens of the United States. And it is incumbent upon the de- fendant who seeks a removal under this section to state the facts upon which he bases his claim for removal in his petition, duly ver- ified by his oath, and it is not sufiicient to state his belief that he cannot enforce his rights at some subsequent stage of the proceed- ings, as the statute has no application to judicial infractions of the constitutional amendment securing equal rights after the trial has commenced. And if there is a failure to show the facts in the petition which entitle the petitioner to a removal, the circuit court has no power to try a cause on removal, and should remand it to the state court.^ A criminal prosecution cannot be said to have commenced, in the sense of the law, in the state court until after an indictment is found. The object of the statute was evidently to provide a remedy for the infraction of those rights secured by the provisions of the fourteenth amendment of the Constitution to a recently emancipated race which had for a long time been held in slavery, and to give them the pro- tection of the laws in the enjoyment of such rights.^ § 185. When the petitioner is in actual custody of a state court. — If the defendant petitioning for a removal of a cause, as provided by the section of the statute last referred to, is in actual custody under process issued by the state court, and his petition for the re- moval of the cause has been duly filed in the circuit court, it is the 1 Virginia v. Rivers, 100 U. S. 313. ^ Slaughter-House Cases, 16 Wall. This provision was held not to be in 36 ; United States v. Reese, 92 U. S. conflict with the Constitution of the 214. United States : Strauder ik West Vir- ginia, 100 U. S. 303. 11 162 FEDERAL PLEADING, PRACTICE AND PROCEDURE. duty of tlie clerk of said court to issue a writ of habeas corpus cum causa ; and it is the duty of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said court according to law and the orders of said court, or of any judge thereof in case of vacation ; and it is made the duty of the marshal, in such a case, to file with or deliver to the clerk of the state court a duplicate copy of said writ.^ § 186. Removal of suits and prosecutions against revenue and other federal officers. — ^." When any civil suit or criminal prosecution is commenced in any court of a state against any ofiicer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under .or by authority of any such officer, on account of any act done under <;olor of his office or of any such law, or on account of any right, title or authority claimed by such officer or other person under any such law ; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law; or is commenced against any officer of the United States, or other person, on account of any act done under the provisions of title xxvi., ' The Elective Franchise,' or on account of any right, title or authority claimed by such officer or other per- son under any of the said provisions, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending, upon the petition of such defendant to said circuit court, and in the following manner : said petition shall set forth the nature of the suit or prosecution, and be verified by affida- vit, and, together with a certificate of some counsellor at law of some court of record of the state where such suit or prosecution is com- menced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceedings against him and care- fully inquired into all the penalties set forth in the petition, and that he believes them to be true, shall be presented to the said cir- cuit court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the circuit court, and shall proceed as a cause originally commenced in that court ; but all bail and other security given in such suit or prosecution shall continue in like 1 Rev. Stat. I 642. CIRCUIT COURTS. 163 force and effect as if the same had proceeded to final judgment and execution in a state court." ^ If the suit was commenced in a state court by summons, subpoena, petition or any other process except capias, it is the duty of the clerk of the circuit court to issue a certiorari to the state court, requiring it to send to the circuit court the record and proceedings in the cause ; and if it was commenced by a capias or other process by which a personal arrest is ordered, it is the duty of the clerk to issue a habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the state court or left at his office by the marshal of the district or his deputy, or by some person duly au- thorized thereto ; and it then becomes the duty of the state court to stay all further proceedings in the cause, and it would have no further jurisdiction of it. If the defendant is in custody on mesne process therein, it is the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with according to law and the order of the circuit court, or, in vacation, of any judge thereof. If it is made to appear to the circuit court that no copy of the record and pro- ceedings therein in the state court can be obtained, it may require the plaintiff to proceed de novo, and the parties can then proceed as in actions originally brought in the circuit court. If the plain- tiff fails thus to proceed, the circuit court may enter a judgment of non prosequitur against him, with costs for the defendant.^ § 187. Petition verified ; certificate of counsel. — Under the pro- visions of this section of the statutes, it is only necessary to set forth in the petition facts showing the nature of the suit or prose- cution so as to enable the court to determine whether it falls within the class of cases that may be removed. Where a petitioner for the removal of a prosecution in a state court, where he was held to answer an indictment for murder, stated that at the time the alleged act for which he was indicted was committed, he was, and still con- tinued to be, a deputy collector of internal revenue of the United States ; that the act for which he was indicted was done in his own necessary self-defence while engaged in the discharge of the duties of said office, and what was done in the premises was done under and by right of said office; that it was his duty as such officer to ^ Rev. Stat. ^ 643. held to be constitutional in Tennessee 2 Rev. Stat. I 643. This statute was v. Davis, 100 U. S. 725. 164 FEDERAL PLEADING, PRACTICE AND PROCEDURE. seize illicit distilleries and the apparatus used for the illicit and unlawful distillation of spirits, and that while so engaged in enforc- ing his duty and the law, he was assaulted and fired upon by a number of armed men, and in defence of his life he returned the fire, which was the offence mentioned in the indictment; it was heM that this was a sufficient statement of the nature of the case to require a removal, and that the circuit court to which it was removed had jurisdiction to try the case.^ If the cause is a civil suit against any of the persons named in the statute, the petition should show this fact and the ground upon which the right of removal is based, as provided by the statute,^ It has been held that the post-office laws of the United States are revenue laws Avithin the meaning of the statute providing for the removal of causes against an officer for an act done under the rev- enue laws of the United States. And if a suit is brought in a state court against a postmaster for a wrongful refusal to deliver a letter the latter would, under the provisions of section 643, be entitled to a removal of the same to the proper circuit court.' So, an action brought in a state court against a United States collector of customs to recover damages for alleged slanderous words, spoken while he was in the discharge of his duty and relating to it, is removable.* But a suit against a commissioner of a circuit court of the United States, to recover back money alleged to have been illegally exacted of the plaintiff, or a suit against an assistant treasurer of the United States to recover the value of bonds alleged to be unlawfully detained by him, is not suit against an officer appointed under or acting by authority of any revenue law of the United States, and is not removable from a state court on that ground.^ § 188. Suits to determine the right to an olEce in certain cases. — It is provided by statute that "whenever any person is deprived of his right to any office except elector for President or Vice-President, representative or delegate to Congress, or member of a state legis- lature, by reason of the denial to any citizen who may offer to vote , 1 Tennessee v. Davis, 100 U. S. 257. ** Buttner v. Miller, 1 Woods (C. C.) See also City of Philadelphia v. The 620. Collector, 5 Wall. 720 ; Hornthall v. ' Benchley v. Gilbert, 8 Blatch. 147: The Collector, 9 Wall. 560. Victor v. Cisco, 5 Blatch. 128. See * Branches V. Schell, 4 Blatch. 257. also Pavton v. Bliss, 1 Woolw. (C. C.) ^ Warner v. Fowler, 4 Blatch. 311; 170. United States v. Bromley. 1 2 How. 88. CIRCUIT COURTS. 165 of the right to vote, on account of race, color or previous condition of servitude, his right to hold and enjoy such office and the emolu- ments thereof shall not he impaired bj such denial, and the person so defeated or deprived may bring any appropriate suit or proceed- ing to recover possession of such office ; and in cases where it appears that the sole question touching the title to such office arises out of the denial of the right to vote to citizens who so offered to vote, on account of race, color or previous condition of servitude, such suit or proceeding may be instituted in the circuit or district court of the United States of the circuit or district in which such person resides." This jurisdiction is made concurrent with the state courts.^ If such a suit should be instituted in a state court, this section providing for the removal of causes would entitle the defendant to a removal to the next circuit court to be held in the district where the suit is pending, on a proper application to the court therefor. But the original jurisdiction of the circuit court in such cases, as well as that acquired by removal from a state court, depends upon the deiaial of certain parties the right to vote, and is limited to those actions for the recovery of title to an office of which the plain- tiff has been deprived, by a denial of the right to vote on account of race, color or previous condition of servitude. Therefore, the circuit court would have no jurisdiction of a cause to recover an office into which the plaintiff had been inducted after an election, but from which he had been subsequently ejected by legal pro- ceedings.^ § 189. Process of attachment, injunction, etc., not affected by re- moval. — The act provides : " That when any suit shall be removed from a state court to a circuit court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the state court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered in the court in which such suit had been commenced ; and all bonds, undertakings or ' Rev. Stat. tit. " The Elective Fran- ^Johnson r. Jurael, 3 "Woods 69. chise," 1 2010; Const. 15th art. of Am.; Special provision is made for the re- Ex parte Warmouth, 17 Wall. 64. See moval of personal actions brought by also Ex parte Siebald, 100 U. S. 371 ; an alien aijainst a citizen of a state, Ex parte Lange, 18 Wall. 163 ; Ex parte or an officer of the United States. See Parks, 93 U. S. IS. Kev. Stat. | |-.44. 166 FEDERAL PLEADING, PRACTICE AND PROCEDURE. security given bj either party in such suit prior to its removal shall remain valid and eiFectual notwithstanding such removal ; and all injunctions, orders and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed."^ Under this provision the circuit court takes the suit precisely in the state and condition it was in when sent from the state court, and any action of the state court, or record made by it, will be re- garded the same as though the suit had been originally commenced in the circuit court, and the same action and record there made.^ The proceedings of the state court are in no particular vacated by the removal, and matters disposed of by it cannot be reconsidered by the circuit court, the judgment of the state court being conclusive as to them.^ § 190. "When a suit may be dismissed or remanded. — The act of 1875 provides that the circuit court may, in case of the removal of a suit thereto from a state court, dismiss or remand the suit to the state court. Section 5 of that act provides : " That if in any suit commenced in the circuit court, or removed from a state court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after said suit has been brought or removed thereto, that such suit does not really and substantially in- volve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been im- properly or collusively made or joined, either as plaintiffs or de- fendants, for the purpose of creating a case cognizable or removable ^ Act of March 3, 1875, | 4. This that injunctions were not within the provision would seem to repeal, by im- saving clause of the act, and were plication, section 646 of the Revised ipso facto dissolved on removal : Statutes. Hatch v. Chicago, etc., R. Co., 6 Blatch. ^ Section 6 of the act of 1875 pro- 105. The fourth section of the act of vides : " That the circuit court of the 1875, however, expressly provides that United States shall, in all suits re- they, as well as all orders and other moved under the provisions of this proceedings, shall remain in full force. act, proceed therein as if the suit had So it was held that a motion to dis- heen originally commenced in said solve an attachment might be made circuitcourt, and the same proceedings after removal, although the same mo- had been taken in such suit in said tion had been passed upon by the circuit court as shall have been had state court : Garden City Man. Co. v. therein in said state court prior to its Smith, 1 Dill. 305. See also Carring- removal." This would prevent any ton v. Florida R. Co., 9 Blatchford reconsideration of any question passed 467, as to proper practice in the cir- upon by the state court. cuit court on motions to dissolve in- ^ Duncan v. Grigan, 101 U. S. 810. junctions. Under the act of 1806 it was held CIRCUIT COURTS. 167 under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit, or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just ; but the order of said circuit court dis- missing or remanding said cause to the state court shall be review- able by the Supreme Court, on writ of error or appeal, as the case may be." If it is manifest from the pleadings in a suit originally brought in a circuit court, or from the petition for removal thereto from a state court, that, either for want of proper subject-matter, or want of proper parties, or want of proper citizenship of the parties, to confer jurisdiction, the circuit court has no jurisdiction of the cause, it could, without request, dismiss or remand it as the case might require. But the usual practice is to call the attention of the court to these defects by demurrer or motion, as the case may re- quire. When a suit is originally instituted in the circuit court, or brought there from a state court, it is always a proper subject of of inquiry, whether the court has or can take jurisdiction.^ If the petition and bond for the removal are regular and suffi- cient on their face, then the state court has no further jurisdiction, and it has no discretion in the matter.^ If a motion is made to remand the suit to the state court, this admits the averments of the petition for the removal, like a demur- rer to a pleading ; and if in either case these do not show the juris- diction of the court, the cause should be remanded or dismissed.^ And, as we have noticed, if the bond is manifestly defective, as where no sum for the penalty is inserted in it, this would be ground for remanding the cause to the state court from whence it came.* If there appears to be no defect in the papers, and they conform to the requirements of the statute, issue may be taken in the circuit court on the facts stated in the petition as the ground for the re- ^ Railroad Company v. McKinley, ^ Buttner v. Miller, 1 Woods (C. C.) 99 U. S. 147. 620 ; Dennistoun v. Draper, 5 Blatch. •^ Fisk V. Union Pac. R. Co., 6 Blatch. 336 ; Heath v. Austin, 1 2 Blatch. 320 ; 362 ; Hatch u. Chicago, R. I. and P. R. Galvin v. Boutwell, 9 Blatch. 470; Co., 6 Blatch. 105 ; Railroad Co. v. Wood v. Mathews, 2 Blatch. 370 ; Os- Ramsey, 22 Wall. 322 ; Insurance Co. good v. Chicago, etc., R. Co., 6 Biss. V. Dunn, 19 Wall. 214; Akerly v. 330. A^ilas, 2 Biss. 110 ; Kanouse v. Martin, * Burdick v. Hale, 7 Biss. 96. 15 How. 198 ; Osgood v. Chicago and C. R. Co., 6 Biss. 330. 168 FEDERAL PLEADING, PRACTICE AND PROCEDURE. moval, and the juristiiction of tlie court would then be determined on a final hearing.^ § 191. "When a copy of the record should be filed ; refusal of the clerk to furnish it ; -when a -writ of certiorari •will issue- — Ample provision is made to enable a party entitled thereto to procure a copy of the record on the removal of a cause, and to punish the clerk of a state court who shall refuse to furnish one on a proper application made therefor. Section 7 of the act of March 3, 1875, provides: " That in all causes removable under this act, if the term of the circuit court to which the same is removable, then next to be holden, shall commence within twenty days after filing the petition and bond in the state court for its removal, then he or they who apply to remove the same shall have twenty days from such application to file said copy of record in said circuit court and enter an appearance therein, and if done within said twenty days, said filing and appearance shall be taken to satisfy the said bond in that behalf ; that if the clerk of the state court in which any such cause shall be pending shall refuse to any one or more of the parties or persons applying to remove the same a copy of the record therein, after a tender of the legal fees for such copy, said clerk so offending shall be deemed guilty of a misdemeanor, and on conviction thereof in the circuit court of the United States to which said action or proceeding was removed, shall be punished by imprisonment not more than one year, or by a fine not exceed- ing $1000, or both in the discretion of the court. And the circuit court to which any cause shall be removable under this act shall have power to issue a writ of certiorari to said state court, com- manding said state court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this act for the removal of the same, and enforce said writ according to law ; and if it shall be impossible for the parties or persons re- moving an}^ cause under this act, or complying with its provisions for the removal thereof, to obtain such copy, for the reason that the clerk of the state court refuses to furnish a copy on payment of legal fees, or for any other reason, the circuit court shall make an order requiring the prosecution in any such action or proceeding to 1 Field w. Lownsdale, 1 Deady 288 ; 243; Heath v. Austin, 12 Blatch. Fisk V. Union Pac. R. Co., 8 Blatch. 320. CIRCUIT COURTS. 169 enforce forfeiture or recover the penalty as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine, and in default thereof the court shall dismiss the said action or proceeding ; but if said order shall be complied with, then said circuit court shall require the other party to plead, and said action or proceeding shall proceed to final judgment; and the said circuit court may make an order requiring the parties thereto to plead de novo^ and the bond given, conditioned as aforesaid, shall be discharged so far as it requires a copy of the record to be filed as aforesaid." § 192. Issues of fact, -when tried by a jury ; v^hen by the court. — The trial of issues of fact in the circuit courts is required to be by jury ; except in cases in equity and of admiralty and maritime jurisdiction, and in cases of a civil nature where the parties or their attorneys file a stipulation in writing with the clerk of the court, waiving a jury, in which case the suit may be tried by the court, and the finding of the court upon the facts, which may be either general or special, has the same effect as the verdict of a jury.^ But under former statutes on the subject, parties, by con- sent, could waive the trial of issues of fact in civil cases by a jury, in the circuit and district courts of the United States, and submit both the law and the facts to the court, in conformity with the practice of the courts of the state where the trial was had.^ When the record showed that an issue was '' called for trial by the court, the jury having been waived in writing," the Supreme Court held this conclusive that the requisite agreement had been made, in the absence of anything to the contrary.^ No review in the Supreme Court can be had upon writ of error in such a case, unless there is a special finding from the evidence of ultimate facts by the court. If the court finds generally for one side or the other, instead of making a special finding of the facts, there can be no redress for error in that respect, although there would be for the wrongful rejection or admission of evidence during the trial.* If the facts are found by the court, to which exception J Rev. Stat. l\ 648, 649, 700. In v. Frontin, 18 How. 135. See also cases of admiralty and maritime juris- Suydam v. Williamson, 20 How. 432 ; diction, on the instance side of the Campbell xi. Boyreau, 21 How, 223; court, the court should find and state Saulet v. Shepherd, 4 Wall. 502 ; the facts and conclusions of law sepa- Silsby v. Fort, 14 How. 219. rately : act of February 16, 1875. I 1. » Feleitas v. Cockrem, 101 U. S. 301. ■M3 U. S. Stat. 501 (1845); Guild * Dirst zj. Morris, 14 Wall. 484; 170 FEDERAL PLEADING, PRACTICE AND PROCEDURE. is taken and judgment has been rendered upon them, the question for the Supreme Court on error would be, whether the facts found were sufficient to support the judgment.^ The provision authorizing a waiver by the parties of trial by jury relates to the circuit courts only, and does not extend to dis- trict courts. But we have noticed that the right of trial by jury of issues of fact in the district court might be waived by the parties to a suit.^ § 193. Division of opinion in civil and criminal causes ; certifi- cate of division. — If there is a difference of opinion between the judges in a civil cause or proceeding in the circuit court, held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge, as to any matter or thing to be decided, ruled or ordered by the court, the opinion of the presiding justice or judge will be considered the opinion of the court for the time being ;^ but whenever any question occurs on the trial or hearing of a criminal proceeding before the court upon which the judges are divided in opinion, the point upon which they disagree must, on the request of either party or their counsel, be stated under the direc- tion of the judges, during the same term of court, and certified, under the seal of the court, to the Supreme Court at their next ses- sion. There may be further proceedings in the case in the circuit court if they may be had without prejudice to the merits of it ; but where the question relates to the punishment or imprisonment of a party, no imprisonment can be allowed or punishment inflicted.* And when a final judgment or decree is entered in any civil suit or proceeding in any circuit court, held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge, and on the trial or hearing thereof any question has occurred upon which the opinions of the judges were opposed, the point upon which they disagree must during the same term be stated under the Gillman v. 111. and Miss. Tel. Co., 91 ^ Blair v. Allen, 3 Dill. 101. Under U. S. 603 ; Insurance Co. v. Tweed, 7 the act of 1845, which also provided Wall. 44; Coddingtoa v. Richardson, a right of trial by jury of issues of 10 Wall. 516. fact in the district courts, it was held ^ Jennisons W.Leonard, 21 Wall. 302; that parties might waive a trial by Dennistoun y. Stewart, 18 How. 565 ; jury, and submit the cause to the United States v. City Bank, 19 IIow. court to try it even on an agreed 385. See also Suydam v. Williamson, statement of facts: Henderson's Dis- 20 How. 432 ; Basset v. United States, tilled Spirits, 14 AVall. 40. 9 Wall. 38 ; Copelin v. Insurance Co., ^ Rev. Stat. § 650. 9 Wall. 461. * Rev. Stat, g 651. CIRCUIT COURTS. 171 direction of the judges and certified, and such certificate is required to be entered of record.^ For form of certificate, see post^ Form No. 259. § 194. The point of division must be distinctly stated. — We shall consider in another place the practice and procedure in the Supreme Court on a certificate of division of opinion by the judges of a circuit court ; but it may be proper here to state that the point upon which the difference occurs should be distinctly stated. If the division of opinion is on a demurrer to an indictment, it is not sufficient to cer- tify that they were divided in opinion whether the indictment should or should not be sustained, but the particular point of disagreement should be stated."^ The same doctrine applies to demurrers in civil suits ^ and to motions to quash indictments.^ Nor will the Supreme Court take cognizance of a cause divided into points pro /or?wa, and certified without an actual division, or of a division of opinion upon points merely hypothetical.^ § 195. The question must relate to a point of law and not of fact. — A whole case cannot be sent up on a certificate of division of opinion, as where, in a case of chancery, the certificate stated that the judges were unable to agree in opinion as to which party was entitled to a decree, one judge being of opinion favorable to the complainant and the other favorable to the defendant, and the record of the whole case was presented to the Supreme Court. In such a case the Supreme Court will dismiss it for the want of jurisdiction.^ The question presented must be one of law and not of fact, and. not a mixed one of law and fact.^ And the Supreme Court will dismiss a certified cause for want of jurisdiction, where the question to be de- termined requires an examination of the evidence in the record.^ § 196. Where the point certified is one of practice or discretion. — If the question about which there is a division of opinion relates to 1 Rev. Stat. U 652, 693. See Wey- ^ Webster v. Cooper, 10 How. 54 ; auwega v. Ayling, 99 U. S. 112. Ex parte GovdiOn, 1 Black. 503; United "^ The United States v. Brings, 5 States v. Stone, 14 Pet. 524 ; Luther How. 208 ; United States v. Bailey, v, Borden, 7 How. 1. 9 Pet. 272. 6 Sadler v. Hoover, 7 How. 646 ; ^ Havemeyer v. Iowa County, 3 Nefemith v. Shelden, 6 How. 41. Wall. 294; White v. Turk, 12 Pet. ' Dennistoun v. Stewart, 18 How. 238 ; Adams v. Jones, 12 Pet. 213. 565 ; Kennedy v. Bank, 8 How. 610 ; * United States v. Rosenburgh, 7 United States v. City Bank, 19 How. Wall. 580 ; Davis v. Braden, 10 Pet. 385 ; Daniels v. Railroad Co., 3 Wall. 288. But see qualification of doc- 250; Silliman W.Hudson River & C. trine : United States v. Chicago, 7 Co., 1 Black 582. How. 185; Leland v. Wilkinson, 10 « Brobst v. Brobst, 4 Wall. 2. Pet. 294. 172 FEDERAL PLEADING, PRACTICE AND PROCEDURE. a matter of practice in the circuit court, and this rests upon the exercise of a sound discretion in the application of the rules which regulate the practice in the particular case, the Supreme Court will not entertain the cause. ^ § 197. The Supreme Court can act only on the point presented in the certificate of division. — The Supreme Court, on a certificate of division of opinion, will only consider the point stated in the certifi- cate. Nothing can come before that court for its consideration in such a case except such single and definite questions as shall have actually arisen in the circuit court and become the subject of disa- greement by the judges thereof.^ If the division of opinion arises on some question subsequent to the decision of the causes in the circuit court, as where the judges disagree as to the amount of a bond for security to be given by a party on applying for a writ of error,^ the Supreme Court would have no cognizance of it. And if a certificate of division is certified between the circuit and district judges, when the latter had no authority to sit in the case, this would not give the Supreme Court jurisdiction.* § 198. Appellate jurisdiction of the circuit court in criminal cases. — Besides the jurisdiction of the circuit courts which has hereto- fore been considered, there was conferred by the act of March 3, 1879, an appellate jurisdiction in certain criminal cases. Section 1 of that act provides: "The circuit court of each judicial dis- trict shall have jurisdiction of writs of error in all criminal cases tried before the district court where the sentence is imprisonment, or where, if fine only, the fine shall exceed the sum of three hun- dred dollars ; and in such case a respondent feeling himself aggrieved by a decision of a district court may except to the opinion of the court, and tender his bill of exceptions, which shall be settled and allowed according to the truth, and signed by the judge, and it shall be a part of the record of the case." Section 2 provides for a writ of error from the judgment of the district court within one year, and for a bond with sureties as 1 Wiggins V. Gray, 24 How. 303 ; v. Southard, 10 Wh. 1 ; Saunders v. Smith V. Vaughan, 10 Pet. 366 ; Gould, 4 Pet. 392. Packer v. Nixon, 10 Pet. 411 ; Davis =* Devereux v. Marr, 12 Wh. 212 ; c. Braden, 10 Pet. 288. Bank v. Green, 6 Pet. 26 ; U. S. v. Dan- 2 Perkins v. Hart, 11 Wh. 237; iel, 6 Wh. 548. Kennedy v. Georgia State Bk., 8 How. * United States v. Lancaster, 5 Wh. 611 ; Ogle V. Lee, 2 Cr. 33 ; AYard v. 344. Chamberlain, 2 Blatch. 430 ; Wyman CIRCUIT COURTS. 173 follows : "Within one year next after the end of the term at which such sentence shall be pronounced, and not after, the respondent may petition for a writ of error from the judgment of the district court in the cases named in the preceding section, which petition shall be presented to the circuit court or circuit judge in term or vacation, who, on consideration of the importance and diflficulty of the questions presented in the record, may allow such writ of error, and may order that such writ shall operate as a stay of proceedings under the sentence ; but the allowance of such writ shall not so operate without such orders. The judge or justice allowing such writ of error shall take a bond with suflScient sureties that the same shall be prosecuted to effect, and that the respondent shall abide the judgment of the circuit court thereon. And if the writ shall be allowed to operate as a stay of proceedings under the sentence, bail may in like manner be taken for the appearance of the respondent at the term of the circuit court to which such writ of error shall be returnable, and that he will not depart without leave of court." § 199. Return and proceedings thereon. — Section 3 of said act further provides: "Such writ of error so allowed shall be re- turnable to the next regular term of the circuit court for the dis- trict, and shall be served on the district attorney of the United States for such district. The circuit court may advance all such writs of error on its docket in order that speedy justice may be done. And in case of the affirmance of the judgment of the dis- trict court, the circuit court shall proceed to pronounce final sen- tence and to award execution thereon; but if such judgment shall be reversed, the circuit court may proceed with the trial of said cause de novo, or remand the same to the district court for further proceedings." § 200. Writ of error or appeal in case of the death of a party. — Previous to the act of March 3, 1875, there was no adequate remedy, by the representatives of deceased persons by writ of error or appeal, where the deceased was a party to a final judgment or decree rendered in a circuit court, and died before the two years allowed for taking an appeal or bringing a writ of error had expired.' But the ninth section of that act provides in such cases as follows : "That whenever either party to a final judgment or decree, which has been or may be rendered in any circuit court, has died or shall 1 Rev. Stat. § 1008. 174 FEDERAL PLEADING, PRACTICE AND PROCEDURE. die before the time allowed for taking an appeal or bringing a writ of error has expired, it shall not be necessary to revive said suit by any formal proceeding aforesaid. The representative of such deceased party may file in the office of the clerk of such circuit court a duly certified copy of his appointment, and thereupon may enter an appearance or bring writ of error as the party he represents might have done. If the party in whose favor such judgment or decree was rendered has died before appeal taken or writ of error brought, notice to his representative shall be given from the Su- preme Court, as provided in case of the death of a party after appeal taken or writ of error brought." CHAPTER IX. CIRCUIT COURTS — PRACTICE AND PROCEDURE IN SUITS AT LAW. § 201. Practice and procedure in other than equity causes. — The practice, pleadings and forms and modes of procedure in civil causes, other than those in equity and admiralty, in the circuit and district courts must conform as near as may be to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held.^ But the jurisdiction of the circuit court is not in any respect extended by the provisions of the section last cited.^ The practice, pleadings, forms and mode of proceedings in civil causes embraced in this section are those established by the statutes of the state, and not modes of procedure established by judicial construction of the common law remedies ; although the term "prac- tice " embraces rules adopted to facilitate the transaction of busi- ness before the court in a proper and orderly manner, as rules of practice when framed by the courts or embodied in statutes. But no construction should be given to a statute of the state relating to practice or procedure, to affect the substjintial rights of any suitor secured by act of Congress.^ The language of the statute is that the practice, pleadings, forms and modes of proceeding " shall conform as near as may be to the practice, pleadings and forms and modes of proceeding existing at the time in the courts of record of the state." The words " as near as may be " are quite indefinite, but they were perhaps wisely conceived, as they give the judges some latitude in their construction, and enable them to reject any rule or provision of the state statutes relating to practice or procedure which in their judgment would encumber the proper administration of the law or defeat the ends of justice.* 1 Rev. Stat. ? 914. 147 ; Republic Ins. Co. v. Williams, 3 2 Bath County v. Amy, 13 Wall. Biss. 370; Nudd v. Burrows, 91 U. 244; Main v. Second Nat. Bank, 6 S. 426. Biss. 26. * Indianapolis & St. L. R. R. Co. v. 3 Butler V. Young, 5 C. L. N. 146 ; Horst, 93 U. S. 291 ; Sandford v. Sandford v. Portsmouth, 6 Cent. L. J. Portsmouth, 6 Cent. L. J. 147. The 176 FEDERAL PLEADING, PKACTICE AND PROCEDURE. If follows from the provision of tlie statute under consideration that the federal courts have no authority by rules or otherwise to prescribe any mode of practice or procedure in derogation of the provisions of this statute ; but where a law of Congress has pointed out a special mode of procedure in relation to the particular sub- ject-matter involved in the proceeding, the federal court cannot adopt the forms and modes of proceeding of the state courts, but should follow the forms and modes pointed out by the act.' § 202. The summons or other original process and service. — The original process issued to the defendant at the commencement of a suit at law should be signed by the clerk and under the seal of the court ; and it should substantially comply with the requirements of the state law in reference to original process for the commencement of a suit.^ Where a state law required that upon every process issued in an action to recover a penalty or forfeiture there should be endorsed a general reference to the statute under which the pen- alty or forfeiture is claimed, it was held that this provision should be observed in commencing suits in the federal courts, and that a reference to such statute should be indorsed upon the original pro- cess issued by said courts in like cases. ^ In reference to the service of process it may be said that it is a "mode of proceeding" within the meaning of the section under consideration ; that this should be in accordance with the require- ment of the state law, and the federal courts can prescribe no other mode of service.^ The process should run in the name of " The President of the United States," and be directed to the marshal of the district, whose duty it-is to execute all lawful precepts directed to liim and issued under the authority of the United States.^ The marshals and their deputies have in each state the same powers in executing the laws and process issued by the courts of the United States as the sheriffs and their deputies have in such state in exe- section has no application to cases in the commencement of an action by a equity or admiralty: Blease v. Gar- summons issued in the name of the lington, 92 U. S. 1. plaintiff's attorney, although that ^ Easton v. Hodges, 7 Biss. ?>'1A. may be the mode prescribed by the ^ Rev. Stat. § 911 ; Johnson r. Hea- state law: Martin v. Criscuola, 10 ley, 9 Ben. 318 ; Dwight v. Meritt, 4 Blatch. 211. Fed. Rep. 614. * Perkins v. City of Watertown, 5 3 Brown v. Pond, 5 Fed. Rep. 31 ; Biss. 320. Brown v. Pond, 5 Fed. Rep. 41. The ' Rev. Stat. I 787. section last cited does not authorize CIRCUIT COURTS — SUITS AT LAW. 177 cuting the laws and process of the courts thereof, and a deputy marshal may execute process directed to the marshal.^ Original and all other process issued from the federal courts must bear test from the day of such issue, and if the marshal or his deputy is a party in any cause, the writs and precepts therein must be directed to such disinterested person as the court or any justice or judge thereof may appoint, and the person thus appointed has authority to execute and return them.^ But it has been held that subpoenas and ordinary notices stand on different grounds, and that they may be served by any person in conformity with the statutory provisions of the state within which the cause is pending.^ § 203. Jurisdiction not acquired by attachment against a non- resident. — The questions recently presented to the Supreme Court were whether jurisdiction of the circuit court over a non-resident de- fendant could be acquired by an attachment of property within the district, and whether, on the dismissal of a cause by the circuit court for the want of jurisdiction in such a case, the Supreme Court ought by mandamus to compel the circuit court to restore the cause and proceed to try it. On a motion to the court for the writ it was refused.* Under the provisions of the act of 1789 it was also held that the process of foreign attachment would not confer jurisdiction where the defendant was not an inhabitant of nor served with pro- cess within the district where the suit was brought.^ § 204. Service of process may be waived. — The service of process against the person of the defendant must be made within the district where the court is held, but if not so served and the defendant is not a resident of the district, he may waive the necessity of such service by a voluntary appearance to the suit without objection. And in such a case the omission to aver on the record that the de- fendant is an inhabitant of the district or found therein will not be fatal, but the regularity of the service will be presumed.^ ' Schwabacker v. Reilly, 2 Dill. 127 ; the Post-Office Department, Rev. Stat. James v. Jenkins, Hemp. 187 ; Rev. § 924. Stat. § 788. s Hollingsworth v. Adams, 2 Dall. 2 Rev. Stat. U 912, 922 ; Admi- 396 ; Pollard v. Dwight, 4 Cr. 4l'l ; ralty Rule 1. Fisher v. Consequa, 2 Wash. C. C. » Schwabacker v. Reilly, 2 Dill. 127. 382 ; Ex parte Railroad Co., J 03 U. S. * Ex parte Railroad Co., 103 U. S. 794 ; ante, ^ 202 ; post, § 208. 794. But see attachments against ^ Gracie v. Palmer, 8 Wh. 605 ; the property of defaulting or delin- Pollard v. Dwight, 4 Cr. 421 ; Toland quent postmasters, contractors, or v. Sprague, 12 Pet. 300 ; Levy v. Fitz- other officers, agents or employes of patrick, 15 Id. 167. 12 178 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 205. In -what cases the several circuit and district courts may make their own rules and orders. — The circuit and district courts may from time to time, in any manner not inconsistent with any law of the United States or any rule prescribed by the Supreme Court of the United States in relation to the practice, procedure and pleadings in equity and admiralty, make rules and orders di- recting the returning of writs and processes, the filing of pleadings, the taking of rules, the taking and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advance- ment of justice and the prevention of delays in proceedings in said courts.^ Under the section last cited it is not essential that the rules be adopted, written rules, but rules recognized by a uniform mode of procedure for a series of years are equally binding and become the rules of the court. ^ No rule of a federal court, however, can ex- clude competent evidence which is admissible by the general prin- ciples of law.^ But under this provision the circuit courts may adopt rules providing a form for a bill of exceptions, requiring parties to print their briefs, and for making up the trial docket.* And a court may suspend its own rules or except a particular operation of them whenever the purposes of justice require it.^ § 200. Pleading, practice and procedure to conform to state courts. — In reference to the pleadings, practice and procedure in civil causes other than those of equity and admiralty, the language of the statute is as follows : " The practice, pleadings and forms and modes of procedure in civil causes other than equity and ad- miralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding."^ For appropriate forms in various suits at law, see post, No. 1, and following. 1 Rev. Stat. | 918. * Neff v. Pennoyer, 3 Saw. 335; 2 Duncan v. United States, 7 Pet. The Alice Tainter, 14 Blatch. 225 ; 435 ; FuUerton v. Bank, 1 Id. 6U4 ; Pomeroy v. State Bank, 1 Wall. 592. Koning v. Bayard, 2 Paine 251 ; Bus- ^ United States i?. Breitling, 20How. sell V. Ashley, Hemp. 540 ; Sellers v. 252 ; Russell v. McLellan, 3 W. & M. Corwin, 5 Ohio 398. 157 ; Wallace v. Clark, Id. 359. » Patterson i'. Winn, 5 Pet. 233. •* Rev. Stat. I 914. CIRCUIT COURTS — SUITS AT LAW. 179 If the original process is substantially in compliance with the state law it will not be set aside, but a summons issued to the defendant at the commencement of the suit must be under the seal of the court and signed by the clerk*/ and it must be served by a mar- shal or his deputy, unless he. is interested, although the state laws allow such a service to be made by a state officer or by a private person.^ The service may be made in the mode prescribed by the law of the state.^ But the jurisdiction of this court cannot be ex- tended over persons who are not rightfully within the reach of such process under the federal statutes.* If the state law allows a suit, jointly, against parties severally liable upon a bond;^ or permits a joint action against the makers and endorsers of a note ;^ or the principal to sue on a bond made to an agent ;^ or advantage to be taken of the statutes of limitation by demurrer ;^ or an amendment of pleading as a matter of course after a demurrer ;^ the same practice is proper in the federal courts. In fact the practice here must conform to the state law as inter- preted by the state courts, as nearly as practicable.^** If a state law permits a judgment to be entered on a supersedeas bond, after a return of nulla bona on an^ execution against the debtor, a similar judgment may be entered in the federal courts ;^^ and a state law permitting a plaintiff, on motion, to take judgment against a marshal for money collected and not paid over will be adopted in the federal courts, although they cannot enforce a pen- alty in this summary way against the marshal for the neglect. ^^ Although a state law may provide for the reference of causes, the federal courts cannot adopt this practice without the consent of both parties, as by the federal statutes either party is entitled to a trial by jury in suits at law.^^ But a circuit court may grant a new ^Johnson v. Ilealy, 9 Ben. 318; ^ Rosenbach v. Drey fuss, 1 Fed. Dwijrhti). Merritt, 4 Fed. Rep. 614; Rep. 391; West w. Smith, 101 U. S. Martin v. Criscuola, 10 Blatch. 211. 263. ■•' Schwabacker v. Reilly, 2 Dill. 127. ^° Republic Ins. Co. v. Williams, 3 ^Perkins v. City of Watertown, 5 Biss. 370; Brown v. Chesapeake ani Biss. 320. 0. Canal Co., 4 Fed. Rep. 770 ; Wil- * Main v. Second Nat. Bk., 6 Biss. cox v. Hunt, 13 Pet. 378 ; Sawin c. 24 ; Toland v. Sprague, 12 Pet. 300 ; Kenny, 93 U. S. 289 ; Taylor v. Brig- Picquet v. Swan, 5 Mas. 35. ham, 3 Woods 377. * United States v. Tracy, 8 Ben. 1. " Smith v. Gaines, 93 U. S. 341 ; * Fullerton v. Bank, 1 Pet. 604. Hiriat v. Ballou, 9 Pet. 156. ' Weed Sewing Mach. Co. v. Weeks, '- Givin v. Breedlove, 2 How. 29. 3 Dill. 261. " Howe Machine Co. v. Edwards, * Chemung Canal Bank i\ Lowrey, 15 Blatch. 402. 93 U. S. 72. 180 FEDERAL PLEADING, PRACTICE AND PROCEDURE. trial after a report by a referee, when a case has been properly referred to him, if such is the proper practice in the state court. ^ The practice of taking depositions, and to compel the production of books and writings in the possession of an adverse party, is pro- vided for by the federal statutes, and therefore is not governed by the state laws.^ Nor can a party to an action at law be examined before the trial at the instance of the adverse party, except in cases where it is specially authorized under the federal statutes.^ If a state law allows a defendant to appear specially and move to quash an attachment for want of jurisdiction, or a judgment by default to be set aside, or requires notice to be given of a hearing of a demurrer, the practice of the state courts must be pursued.* But statutes of a state relating merely to the mode of submitting a case to a jury, or requiring a judge to instruct the jury specially upon particular questions of fact involved in the issues in addition to their general verdict, or requiring the judge to reduce his instruc- tions to writing, or that permit the jury to take the instructions and books and papers, which have been used in evidence, with them when they retire to agree on their verdict, or that allow a second trial, or motions for a new trial, are not binding upon the federal courts and have no application to federal practice.^ § 207. Intervention, reference, bail, imprisonment. — If a state law allows a party to intervene for the purpose of claiming prop- erty, or for any other purpose, the same practice may be pursued in the federal courts.^ If, with the consent of both parties, a cause is referred to a referee, a judgment may be entered upon his report, if that would be in accordance with the state law ; and if a new trial may be granted by the law of the state it may be granted by the federal courts ; but a cause cannot be referred with- out the consent of both parties where they have a right to a trial by jury .7 * Kobinson v. Insurance Co., 16 ^ Indianapolis, etc., R. Co. w. Horst, Blatch. 194. 93 U. S. 291 ; Hankin v. Squires, 5 ^ Sage V. Tauszky, 6 Cent. L. J. 7 ; Biss. 186 ; Nudd v. Burrows, 91 U. United States v. Pings, 4 Fed. Rep, S. 426 ; Newcomb v. Wood, 97 U. S, 714 ; Easton v. Hodges, 7 Biss. 324. 581. •^ Easton v. Hodges, 7 Biss. 324 ; ' Featherman v. Louisiana State Beardsley v. Little, 14 Blatch. 102 ; Sem., 2 Woods 71 ; Bank v. Labilut, Corbett v. Gibson, 16 Blatch. 336. 1 Woods 11. * Rosenbach v. Dreyfuss, 2 Fed. '' Howe Machine Co. v. Edwards, Rep. 23 ; Republic Ins. Co. v. Wil- 15 Blatch. 402 ; Fourth Nat. Bank v. liauis, 3 Biss. 370; Nazro v. Cragin, Nevhardt, 13 Blatch. 393; Robinson 3 Dill. 474. V. Insurance Co., 16 Blatch. 194. CIRCUIT COURTS — SUITS AT LAW. 181 Special bail, in a cause in the circuit courts, may surrender the debtor in pursuance of the state laws;^ and a debtor imprisoned under an execution from a federal court is entitled to the privileges of the jail limits as fixed by the law of the state.^ § 208. Attachments in common law causes. — In common law causes, in the circuit and district courts, the plaintiff is entitled to similar remedies by attachment and other process, against the prop- erty of the defendant, to those which are provided by the laws of the state in which such court is held for the courts thereof; and such circuit and district courts may from time to time, by general rules, adopt such state laws as may be in force in the states where they are held, in relation to attachments and other process ; but similar preliminary affidavits or proofs, and similar security, as required by such state laws, must be first furnished by the party seeking such attachment or other remedy.^ Original process from the circuit courts cannot be served on parties beyond the limits of the district where they are issued, so as to confer jurisdiction on the courts ; and the provisions of the statute last cited, giving the remedies by attachment and other process against the property of the defendant which are provided by the laws of the state, adopts the state remedy and the form and mode of service of the process, but it does not enlarge the sphere of jurisdiction of the court by enabling the plaintiff to compel the appearance of a defendant where he is not amenable to the process of the court in personam. The process of foreign attachment served on the property of a non-resident of the district does not confer jurisdiction on the court, unless he is found and served within the district with process in personam. This must be done before or at the time of serving the attachment ; and it has been held that service after the attachment was levied would not give the court jurisdiction. But a general and voluntary appearance of a defendant in a suit where there is service only of the attachment within the district will give the court jurisdiction.* In case of an attachment, it can only properly issue as a part of ^ Beers v. Hau^hton, 9 Pet. 329. officer or other person under authority ^United States v. Knight, 14 Pet. of any revenue laws is not repleviable : 301. Id., § 934. » Rev. Stat. | 915. For mode of * Toland v. Sprague, 12 Pet. 300 ; proceeding on attachment in special Picquet v. Swan, 5 Mason 35 ; Chit- cases, see Rev. Stat. § 924, et seq. tenden v, Darden, 2 Woods 437. Property taken or detained hy any 182 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and in connection with process to be served upon the defendant in personam; and he must be served with the latter process, and have an opportunity to defend himself, or the federal court cannot have jurisdiction of the suit^ An attachment cannot afford the means of acquiring jurisdiction over a person who is not an inhabitant of nor found within the state where the suit is brought. The court m&st acquire jurisdiction over the defendant personally before the plaintiff can have the benefit of this auxiliary remedy by attach- ment.^ The attachment must be contemporaneous with the personal service of original process within the district, or follow it, or the federal court can take no cognizance of the cause. ^ § 209. Executions in common law causes. — The party recover- ing a judgment in any common law cause in any circuit or district court is entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are provided in like causes by the laws of the state as they existed at the time of the adoption of the Revised Statutes, or any such laws thereafter enacted which may be adopted by general rules of the circuit or district court ; and such courts have authority to adopt, from time to time, such state laws, by general rules.* The rights conferred upon parties by virtue of the section last cited are subject to the provisions of the statutes of the state relat- ing to bail, stays and exemptions of property from execution.^ The forms of writs, executions and other process of the state courts may undoubtedly be followed in the federal courts by the clerks thereof.^ But writs of execution issued from the federal courts cannot be controlled, in their general effect and operation, by the pro- visions of the state law.'^ Thus, if a state law requires the plaintiff to endorse on the execution that certain bank notes will be received in 1 Sadler v. Hudson, 2 Curt. 7 ; Al- Boyle v. Zacherie, 6 Pet. 648 ; Ross len V. Blunt, 1 Blatch. 480; Day v. v. Duval, 13 Pet. 45; United States i\ Newark Man. Co., 1 Blatch. 628 ; Knight, 14 Pet. 301 ; Ames v. Smith, Levy V. Fitzpatrick, 15 Pet. 171; 16 Pet. 303 ; Massingill v. Downs, 7 Manro v. Almeida, 10 Wh. 473; How. 760 ; Wyman v. Southard, 10 Chittenden v. Darden, 2 Woods 437. Wh. 1 ; Mason v. Haile, 12 Wh. 370. ^ Nazro v. Cragin, 3 Dill. 474; ante, * Rev. Stat. § 911 ; United States v. I 303. Humphreys, 3 Hughes 201, ^ Chittenden v. Darden. 2 Woods ' United States v. Halstead, 10 Wh. 437 ; Ex parte Railroad Co., 103 U. 51 ; Ross v. Duval, 13 Pet. 45 ; Ames S. 794. V. Smith, 16 Pet. .303 ; Howe v. Free- * Rev. Stat. § 916. man, 80 xMas. 566. s Beers v. Houghton, 9 Pet. 329 : CIRCUIT COURTS — SUITS AT LAW. 183 satisfaction of the same, sucli a provision is not applicable to an execution issuing from the federal courts.^ If a mandamus is the proper remedy in the highest state court, to compel the levy of a tax for the satisfaction of a judgment against a municipal corporation, where the judgment creditor has no other means of obtaining satisfaction, this remedy would be appropriate in the federal courts, and a party having such a judgment would be entitled to this remedy in any of those courts held in the state, and an injunction issued by a state court to restrain such a levy would be inoperative against such a mandamus.^ A judgment creditor may have the same remedy against a muni- cipal corporation as the state law allows against private individuals in similar cases, even though the state law does not allow that remedy against the corporation.^ So, if a state law requires a demand and notice in case of an attachment of mortgaged property by virtue of judgment, it does not apply to an attachment issued on a judgment in a federal court.* If land is liable to be taken on execution under the laws of the state, it may be taken on execution issued upon a judgment of a federal court, rendered within the state. ^ § 210. Judgment liens. — The judgment of a federal court is a lien from the fact that its effect and the process thereon are the same as on judgments in the state courts ; and these liens extend throughout the district in which they are rendered, in all cases and in like circumstances, as judgments of the state courts are liens in more limited districts where they are rendered. In those states where the lien of a judgment of the state courts is limited to the lands or other property within the county where the judgment is rendered, a similar judgment in a federal court, entered in such state, would create a similar lien upon the same property within the territorial limits of the district.® 1 Wyman v. Southard, 10 Wh. 1. 4 Pet. 124 ; Barth v. MeKeever, 4 Biss. '^ United States v. Keokuk, 6 Wall. 206 ; Williams v. Benedict, 8 How. 514; Riggs W.Johnson Co., 6 Wall. 107; Ward v. Chamberlain, 2 Black 166; Wyman v. Southard, 10 Wh. 1. 430; Koning v. Bayard, 2 Paine 251 : 'NewOrleansr. Morris, 3 Woods 115. Massingill v. Downs, 7 IIow. 760; * Howe V. Freeman, 80 Mas. 566. Lombard v. Bayard, 1 Wall. Jr. 196 ; ^ United States v. Graves, 2 Bock. Reed v. House, 2 Humph. 576. Judg- 379 ; Bank v. Halstead, 10 Wh. 51 ; ment and decrees of federal courts Koning v. Bayard, 2 Paine 251. cease to be liens within the same * United States v. Humphreys, 3 period of limitation as the judgments Hughes 201 ; Shrew v. Jones, 2 Mc- and decrees of state courts : Rev. Lean 78 ; United States v. Morrison, Stat. ^ 967. CHAPTER X. CIRCriT COURTS — PRACTICE AND PROCEDURE IN EQUITY. § 211. Mesne process and proceedings in equity. — oection Jlo of the Revised Statutes provides : " The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty jurisdiction in the circuit and district courts shall be according to the principles and usages which belong to courts of equity and admiralty, respectively, except when it is otherwise provided by statute or by rule of court made in pursuance thereof; but the same shall be subject to such alteration by the Supreme Court, by rules prescribed from time to time, to any circuit or district court, not inconsistent with the laws of the United States." The Supreme Court has promulgated at various times rules of practice and procedure -for the courts of equity of the United States,^ and given the circuit courts authority to make other rules and regulations for the practice, proceeding and process, mesne and final, in their respective districts, not inconsistent with federal statutes or those prescribed by the Supreme Court, and from time to time to alter and amend the same.^ These courts may, as courts of equity, establish rules in relation to time and manner of appearing and answering, and may mould them in this respect so as to enlarge the time when it shall appear that the admin- istration of justice requires it.^ So they may establish the practice relating to the mode of conducting trials, the order of introducing evidence, and the time when it must be introduced, unless these matters shall be regulated by some fixed general rules by the Supreme Court under some act of Congress, or by some federal statute.* § 212. Equity and admiralty rules prescribed by the Supreme Court. — The Supreme Court has authority to regulate the practice and procedure in equity and admiralty in the several circuit and district courts of the United States; but they should be consistent ^ See post, Rules in Equity. ^ Poultney v. City of Lafayette, 12 ■^ Equity Rule 89 ; Bank of U. S. v. Pet. 472. White, 8 Pet. 262. * The Philadelphia, etc., R. Co. v. Stimpson, 14 Pet. 448. CIRCUIT COURTS — SUITS IN EQUITY. 185 with the principles, rules and usages which belong to courts of equity and admiralty respectively. That court has, in reference to chancery practice, provided that, in all cases where the rules prescribed by the Supreme Court or by the circuit court under the rule last cited do not apply, the practice of the circuit court shall be regulated by the practice of the High Court of Chancery in England, so far as the same may reasonably be applied consist- ently with the local circumstances and local conveniences of the district where the court is held ; not as positive rules, but as fur- nishing just analogies to regulate the practice.^ By this rule the practice of the English High Court of Chancery regulates the practice of the circuit courts in the exercise of chan- cery jurisdiction, subject to the limitations contained therein. The jurisdiction and practice of these courts in equity are the same in all the states, and the rule of decision is the same in all of them. They cannot be regulated by the law or practice of the states; but equitable remedies must be according to the practice of courts of equity in the parent country as contradistinguished from courts of law, subject to such changes as may be made by acts of Congress, or by rules adopted by the courts of the United States in the exer- cise of the powers delegated to them by such acts.^ § 213. Power of the Supreme Court to regulate the practice in the circuit and district courts, in equity and admiralty. — The power of the Supreme Court to prescribe rules regulating the practice and procedure in equity in the circuit and district courts is expressly conferred by the Revised Statutes, which provide as follows ; " The Supreme Court shall have power to prescribe from time to time, in any manner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discovery, of proceeding to obtain relief, of drawing up, entering and enrolling decrees, and of proceeding before trus- tees appointed by the court, and generally to regulate the whole practice to be used in suits in equity or admiralty by the circuit ^ Equity Rule 90 ; Pennsylvania v. ^ Boyle v. Zacherie, 6 Pet. 648 ; Wheelino;, etc., Bridge Co., 18 How. Story v. Livingston, 13 Pet. 359; 421 ; Robinson v. Campbell, 3 Wh. Rhode Island v. Massachusetts, 12 212; Story v. Livingston, 13 Pet. Pet. 657 ; s. c, 15 Pet. 233 ; Smith y. 359; Wyman v. Southard, 10 Wh. 1 ; Burnham, 2 Sum. 612. Duncan v. Durst, 1 How. 301 ; Poni- eroy v. Main, 2 Paine 476. 186 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and district courts."^ But the several circuit and district courts may from time to time, and in a manner not inconsistent with any law of the United States, or any rule prescribed by the Supreme Court under the preceding paragraph, make rules and orders directing the returning of writs and processes, the filing of plead- ings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary and convenient for the advancement of justice and the prevention of delays in proceed- ings.^ These courts can adopt a practice not inconsistent with the rules of practice prescribed by the Supreme Court for them ; and they may exercise discretionary powers in those cases where no provision is made by such rules or by acts of Congress.^ It is not necessary that they should adopt written rules, but these may be established by a uniform course of proceeding for a series of years.* Under the provisions of the Revised Statutes, the circuit and district courts may require parties to print their briefs ; ^ and may adopt a rule for making up the trial docket, and for making the clerk's fee for note of issue a part of the taxable costs.^ And these courts may suspend their own rules, or except a particul'ar case from their operation, wherever the demands of justice require it.^ § 214. Affirmation in lieu of oath. — Where under the general equity rules an oath is or may be required or taken by a party, if he has conscientious scruples against taking an oath he may, in lieu thereof, make solemn affirmation to the truth of the facts stated by him.^ § 215. The circuit courts as courts of equity alw^ays open ; Tvhen clerk's office open ; rule days. — By virtue of the delegated authority conferred upon the Supreme Court of the United States, it has framed and adopted certain general rules of practice for the courts 1 Rev. Stat. § 917. The rules pre- ^ Bank of United States v. White, 8 scribed by the Supreme Court have Pet. 262. the force and effect of statutory pro- * Duncan v. United States, 7 Pet. visions, if not inconsistent with the 435: Koning ij. Bayard, 2 Paine 251. laws of the United States : The Illi- * Netf t;. Pennoyer, 3 Saw. 335. nois, 1 Brown 13; Gaines v. Travis, * The Alice Tainter, 14 Blatch. 225. Abb. Ad. 422 ; Grav v. Chicago, etc., ' United States I'.Breitling, 20 How. R. Co., 1 Wool. 63; The St. Lawrence, 252; Russell w. McLellan, 3 W. & 1 Black. 522. ' M. 157; Wallace v. Clark. 3 W. & 2 Rev. Stat. §918. M. 359. 8 Equity Rule 91. CIRCUIT COURTS — SUITS IN EQUITY. 187 of equity of the United States, and the first is that "the circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers and other pleadings, for issuing and returning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules and other proceedings, preparatory to hearing of all causes upon their merits."^ The clerk's office shall be open, and the clerk shall be in attend- ance therein, on the first Monday of every month, for the purpose of receiving, entertaining and disposing of all motions, rules, orders and other proceedings which are grantable of course and applied for or had by parties or their solicitors, in all causes pend- ing in equity in pursuance of the rules prescribed.^ § 216. Certain orders by a judge in vacation to have the same effect as if made by the circuit court in term time. — It is provided by Equity Rule 3 that " any judge of the circuit court, as well in vacation as in term time, may, at chambers or on the rule days of the clerk's office, make and direct all interlocutory orders, rules and other proceedings preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the circuit court could make and direct the same in term, reasonable notice thereof being first given to the adverse party or his solicitor to appear and show cause to the contrary, at the next rule day thereafter, unless some other time is assigned by the judge for the hearing." § 217. Entry of orders, rules and motions by the clerk; rule days. — All motions, rules, orders and other proceedings made and di- rected at chambers or on rule days at the clerk's office, whether special or of course, must be entered by the clerk in an order-book, to be kept at the clerk's office, on the day when they are made and directed, which book must be open at all hours to the free inspection of the parties in any suit in equity and their solicitors. And, except in cases where personal or other notice is specially required or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices and other proceedings entered in such order-book, touching any and all matters in the suits to and in which they are parties and solicitors. And notice 1 Equity Rule 1. ^ Equity Rule 2. 188 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. And where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders or other proceedings not requiring personal service on the parties, in their discretion.^ § 218. Motions for process, etc., granted by the clerk of course. — It is also provided by a general rule regulating the practice in equity that "all motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and exe- cute decrees ; for filing bills, answers, pleas, demurrers and other pleadings ; for making amendments to bills and answers ; for taking bills fro confesso ; for filing exceptions, and for other proceedings in the clerk's office which do not by the rules require any allowance or order of the court or of any judge thereof, shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended or altered or rescinded by any judge of the court, upon any special cause shown." ^ For forms in such cases, see post^ No. 31, et seq. § 219. Motions not grantable of course. — Equity Rule 6 provides for the practice in case of motions not granted as a matter of course. It is as follows : " All motions for rules or orders and other pro- ceedings, which are not grantable of course or without notice, shall, unless a different time be assigned by the judge of the court, be made on rule day and entered in the order-book, and shall be heard at the rule day next after that on which the motion is made. And if the adverse party or his solicitor shall not then appear, or shall not show good cause against the same, the motion shall be heard by any judge of the court ex j^ctrte and granted as if not objected to or refused, in his discretion." A motion to produce a paper in the possession of the opposite party, and which it is desired to use in evidence, is not a motion grantable of course, or without notice ; but if it is desired to enable the party to plead, it may be granted in the discretion of the court, ^ Equity Rule 4. pearing and answering, so as to pre- ^ Equity Rule 5. A federal court, vent them from working injustice: in equity, may mould its rules in re- Poultney v. Lafayette, 12 Pet. 472. lation to the time and manner of ap- CIRCUIT COURTS — SUITS IN EQUITY. 189 without notice.^ Nor is a motion for the appointment of commis- sioners to take testimony grantable of course. Special motions are not grantable of course, and generally require the allowance of the judge, after notice to the opposite party. ^ But previous notice of a motion for the appointment of a receiver is not necessary, where the counsel for the opposite party is present in court at the time.^ For forms in equity, see post^ No. 25, et seq. §220. Subpoena and attachment; proper mesne process. — The process of subpoena constitutes the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill ; and unless otherwise provided by the general rules in equity, or specially ordered by the circuit court, a writ of attachment, and, if the defendant cannot be found, a writ of sequestration or a writ of assistance, to enforce the de- livery of possession, as the case may require, is the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court.^ Jurisdiction over parties in the circuit or district courts in equity, in personam, can only be acquired by the proper service of the pro- cess of subpoena within the district where the court is held, or by their voluntary appearance in the suit. If the necessary parties cannot be served within the district, and they do not voluntarily appear, the bill will be dismissed for want of jurisdiction.^ The statute, as we have seen, does not allow jurisdiction of a suit against a non-resident to be acquired merely by attachment of property of the defendant within the state, so as to authorize a personal judg- ment, unless personal service upon the defendant is made within the district. The auxiliary remedy by attachment does not afford the means of acquiring jurisdiction.^ Proceedings in equity against property of a non-resident defendant are, however, authorized in cer- tain cases ;^ but no process of subpoena can issue from the clerk's office in any suit in equity until the bill is filed in his office.^ We ^ Bronson v. Kinzie, 3 McLean 180. * Toland v. Spraojue, 12 Pet. 300 ; - United States v. Parrott, 1 MeAll. Picquet v. Swan, 5 Mason 3o ; Nazro 447. V. Cragin, 3 Dill. 474; Ex parte llail- =* McLean v. The Lafayette Bank, 3 road Co., 103 U. S. 794 ; Kev. Stat, g McLean 503. 739 ; act June 4, 1880. * Equity Rule 7. ^ Act March 3, 1875, c. 137, g 8. ^ Herndon v. Ridgeway, 17 IIow. * Equity Rule 11. 424. See also Vattigr v. Hiude, 7 Pet. 252. 190 FEDERAL PLEADING, PKACTICE AND PROCEDURE. ■will hereafter consider the proper form and frame of bills in equity, and what they must contain and what may be omitted in them. For form of subpoena, see fost, No. 32, § 221. Original process of subpcEiia, vrhen returnable. — Whenever a bill is filed, it is the duty of the clerk to issue the process of sub- poena thereon, as of course, upon the application of the plaintiff, which must be returnable into the office of the clerk the next rule day, or the next rule day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpoena must be placed a memorandum that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable, or the bill may be taken as confessed. If there is more than one defend- ant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, except in case of husband and wife defendants, or a joint subpoena may be sued out against all the defendants.^ § 222. Mode of serving process of subpoena ; alias subpoenas ; who may serve, — The service of a subpoena must be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member of or resident in the family.^ If any subpoena is returned not executed as to any defendant, the plaintiff is en- titled to another subpoena, toties quoties, against such defendant, if he requires it, until due service is made.^ The service of all pro- cess, mesne and final, shall be by the marshal of the district or his deputy, or by some person specially appointed by the court for that purpose, and not otherwise. In the latter case the person making the service must make affidavit of the same.* In the case of service by the marshal or his deputy, a certificate of the fact would be suf- ficient evidence of the same. For form in such cases, see post, No. 32. It is the duty of a marshal to serve process as soon as he reason- ably can, and he is liable on his bond for any loss occurring through the negligence or unreasonable delay of himself or his deputy in serving the same. The measure of his liability is the extent of the 1 Equity Rule 12. '' Equity Rule 14. * Equity Rule 13. * Equity Rule 15. CinCUIT COURTS — SUITS IN EQUITY. 191 injui'j caused by the negligence or delay. If the loss of a debt is the direct legal consequence of the failure to serve or of negligent delay, the amount of the debt is the measure of damages ; but the mere failure to serve a subpoena does not necessarily infer the loss of the debt, because the plaintiff may sue out another one. The question whether the loss of a debt resulted from the delay or failure of the marshal or his deputy to serve the process is a ques- tion of fact depending upon the circumstances, of which a jury must judge.^ If the deputy fails to obey the commands of the writ with- out legal excuse, or if in the execution thereof he violates the rights of others, the marshal is liable to the party injured.^ § 223. Docketing cause ; appearance day ; entry of appearance. — It is the duty of the clerk, upon the return of a subpoena served and executed upon any defendant, to enter the suit upon his docket as pending in the court, and to state the time of the entry. The defendant must appear on the rule day to which the subpoena is made returnable, provided he has been served with the process twenty days before that day ; otherwise his proper appearance day will be the next rule day succeeding. And. the appearance of the defendant, either personally or by his solicitor, should be entered by the clerk in the order book on the day thereof.^ But no civil action can be brought before either the district or circuit court, by any original process or proceeding, in any other district than that whereof the defendant is an inhabitant or in which he shall be found at the time of service of such process or commencing such proceedings, except in some special cases, which we have noticed.* The defendant, however, by an appearance in the case without objection to the service, will thereby waive the omission or defect of service, and give the court jurisdiction of the person. Thus, if the defendant in a suit in equity appears and answers the bill, he cannot, on the hearing, object that the bill con- tains no prayer for process, or that he was not served with process. And a general appearance, personally or by counsel, cures all ante- cedent defects or irregularities of process.^ ^ The United States r. Moore's * Act of 1875. || 1, 8. Adm"s, 2 Brock. 317; Kennedy v. ^ Knox v. Summers, 3 Cr. 496; Brent, 6 Cr. 187. Gracie c. Palmer, 8 Wh. 699 ; Car- ^ Insurance Co. v. Adams, 9 Pet. rinj^ton v. Bents, 1 McLean 167 ; 573. Segee v. Thomas, 3 Blatch. 11 ; Good- ^ Equity Rules 16, 17. year v. Bowen, 3 Blatch. 266. 192 FEDERAL PLEADING, PRACTICE AMD PROCEDURE. The special appearance of a defendant for tlie purpose of making objection of the want of proper service might not have this effect; but if he appears in person or by counsel and moves to dismiss the bill for want of jurisdiction and also for want of equity, it is a waiver of want of jurisdiction of the person, on account of the defend- ant's non-residence in the district and want of service therein.^ But this doctrine does not apply in case of infant defendants, whose appearance, personally or otherwise, would not be a waiver of want of proper service of process.^ § 224. Bills taken pro confesso ; •when defaults may be entered. — The defendant is required to file his plea, demurrer or answer to the bill in the office of the clerk, on the rule day next succeeding that of entering his appearance, unless the time is otherwise enlarged by the judge of the court for cause shown upon motion for that purpose. In default thereof, the plaintiff may, at his election, enter an order, as of course, in the order book, that the bill be taken pro confesso; and thereupon the cause must be proceeded with ex parte, and the matter of the bill may be decreed by the court at the next ensuing term thereof accordingly, if the same can be done without an answer, and is proper to be decreed ; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, is entitled to process of attachment against the defendant to compel an answer, and the defendant cannot, when arrested upon such process, be discharged therefrom unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct as to pleading to or fully answering the bill within a period to be fixed by the court or judge, and undertaking to speed the cause.^ § 225. Decree on default. — When a bill is taken pro confesso, the court may proceed to a decree at the next ensuing term, and such decree rendered must be deemed absolute, unless the court shall at the same term set aside the same, or enlarge the time for filing the answer, for cause shown, upon motion and affidavit of the defendant. But no such motion can be granted except upon payment of costs of the plaintiff in the suit up to that time, or such part thereof as the court may deem reasonable; and unless the defendant shall ^ Jones V. Andrews, 10 Wall. 327. pearance, see post, Form No. 33; form ^ Lessee of Nelson v. Moon, 3 Mc- of order, see post, Form No. 34. Lean 319. For form of entry of ap- ' Equity Kule 18 ; Pendleton v. Evans, 4 Wash. 336. CIRCUIT COURTS — SUITS IN EQUITY. 193 undertake to file his answer within such time as the court may direct, and submit to such other terms as the court shall direct for the pur- pose of speeding the cause.^ The court cannot render a final decree for want of appearance at the first term after the service of a subpoena, unless another rule day has intervened ; and if a decree pro confesso is irregularly entered it will be set aside on motion as a matter of course.^ § 226. Frame of bills; introductory part. — The rules framed and promulgated by the Supreme Court for pleading, practice and pro- cedure in the federal courts in equity prescribe to some extent the form and frame of bills and other pleadings, what they must contain, and what may be omitted in the frame of pleadings from the forms of pleadings in use in the High Court of Chancery in England. Every bill in the introductory part thereof must contain the names, places of abode and citizenship of all the parties, plaintiffs and defendants, by and against whom the suit is brought. This may be in the following form : "To the judges of the circuit court of the United States for the district of : A. B., of , and a citizen of the state of , brings this his bill against C. D., of , and a citizen of the state of , and E. F., of , and a citizen of the state of . And thereupon your orator complaining says that," etc.^ It is, however, quite common and convenient to preface this intro- duction to the bill with the following caption : " Circuit court of the United States for the district of , in the cir- cuit." § 227. What may be omitted from the bill. — It is provided by rule that the plaintiff shall be at liberty to omit the part which is usually called the common confederacy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiffs ; also what is commonly called the charging part of the bill, that is, the part usually setting forth the matters or excuses which the defendant will, it is supposed, set up by way of defence to the bill ; also what is commonly called the jurisdiction 1 Equity Rule 19. 150; Fellows v. Hall & Allen, 3 2 O'llara v. MacConnell, 93 U. S. McLean 281. •' Equity Rule 20. 13 194 FEDERAL PLEADING, PRACTICE AND PROCEDURE. clause of the bill, that is, that part that sets forth that the acts com- plained of are contrary to equity, and that the defendant is without any remedy at law. If these common averments of a bill in chancery are omitted, the bill will not be demurrable therefor. The complainant may also, in the narrative part of his bill, state and avoid by counter averments, at his option, any matter or thing which he supposes will be insisted upon by the defendants by way of defence to the case made by the plaintiif for relief.^ § 228. The prayer for relief of the bill. — The prayer of the bill must ask for the special relief to which the plaintiff supposes him- self entitled, and must also contain a prayer for general relief; and if an injunction or writ of ne exeat regno, or any other special order pending the suit, is required, it must be specifically asked for.^ The complainant's bill should give a general statement of the facts of the case, and it should contain sufiicient matters of fact to main- tain his case. The proofs must sustain the allegations ; and a party will not be allowed to state one case in his bill or answer and make out a different one by his proof. The allegata and probata, must agree.^ Under the general prayer for relief, other relief may be granted than that which is particularly prayed for ; but it must be consist- ent with the case made by the bill.* A bill in equity praying for a discovery and an account of profits on account of an infringement of a patent is not demurrable on the ground that the complainant has an adequate remedy at law.* For various forms of bills, see post, No. 25, et seq. § 229, Parties beyond the jurisdiction of the court. — If other par- ties than those named as defendants in the bill appear to be neces- sary or proper parties thereto, the bill should aver the reason why they are not made parties, by showing them to be without the juris- diction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to other parties. As to persons who are without the jurisdiction of the court, and may be properly made 1 Equity Rule 21. Walden v. Bodley, 14 Pet. 156 ; Hob- ^ Equity Kule 21. son v. McArthur, 16 Pet. 182; Taylor * Harrison v. Xixon, 9 Pet. 483 : v. Merchants' Fire Ins. Co., 9 How. Boon V. Chiles, 10 Pet. 177 ; Denham 390 ; Wilson v. Graham, 4 Wash. 53. v. Railway Co., 1 Bond. (C. C.) 442. = Perry v. Corninjr, 7 Blatch. 195. * English V. Foxall, 2 Pet 595 ; CIRCUIT COURTS — SUITS IN EQUITY. 195 parties, the bill may pray that process may issue to make them par- ties to the bill if they should come within the jurisdiction of the court.' § 230. "What the prayer for process of subpcjena must contain. — The prayer for process of subpoena must contain the names of all the defendants named in the introductory part of the bill. If any of them are infants under age, or otherwise under guardianship, it should state the fact, so that the court may take order thereon as justice may require, upon the return of the process. If an injunction or writ of ne exeat regno, or any other special order pending the suit, is asked for in the prayer for relief, it is sufficient without repeating the same in the prayer for process.^ § 231. Signature of counsel. — Bills in chancery should have the signature of counsel annexed to them ; and this is considered as an affirmation on his part that, upon the instructions given to him and the case laid before him, there is good ground for the bill in the manner in which it is framed.^ If the bill is not signed by counsel, it is demurrable; but signing on the back of it is sufficient, and if it is demurred to for this defect, it may be amended so as to obviate the objection made by the demurrer.* § 232. Scandal and impertinence in bills. — It is required that every bill should be expressed in as succinct terms as it reason- ably can be, and that it contain no unnecessary recitals of deeds, documents, contracts or other instruments in Jiec verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may, on exceptions thereto for this cause, be referred to a master by any judge of the court ; and if so found by him to be scandalous or impertinent, the scandalous or impertinent matter may be expunged at the expense of the plain- tiff, and he will be required to pay the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall other- wise order. But if the master reports that the bill is not scandalous or impertinent, the plaintiff is entitled to all costs occasioned by the reference.^ ^ Equity Rule 22. allowed, an amendment may be al- 2 Equity Rule 23. lowed in the discretion of the court, Equity Rule 24. on such terms as may be deemed * Dwight V. Humphrey, 3 McLean reasonable : Equity Rule 35. 104; Roach v. Hulings, 5 Cr. (C. C.) ^ Equity Rule 26. G37. If a demurrer to a bill shall be 196 FEDERAL PLEADING, PRACTICE AND PROCEDURE. No general rule can be laid down as to what constitutes multi- fariousness, scandal or impertinence. Each case must be governed bj the circumstances, in regard to which the court or examiner should exercise a sound discretion.* § 233. No order of reference to a master, for scandal or imperti- nence, unless exceptions are taken in vrriting. — No order can be made by any judge for referring any bill, answer or pleading, or other matter or proceeding depending before the court, for scandal or impertinence, unless exceptions are taken thereto in writing and signed by counsel, describing the particular passages that are con- sidered to be scandalous or impertinent. Such exceptions must be filed on or before the next rule day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned unless the party obtaining it shall, without any unnecessary delay, pro- cure the master to examine and report the same on or before the next succeeding rule day, or the master shall certify that further time is necessary for him to complete the examination.^ § 234. Amendment of bills, when of course. — The plaintiff is at liberty, as a matter of course and without payment of costs, to amend his bill in any respect, before any copy has been taken out of the clerk's oflBce, and in any small matters afterwards, such as fill- ing blanks, correcting errors of dates, misnomer of parties, misde- scription of premises, clerical errors, and generally in matters of form. But if he amend in a material point, which he may do of course, even after a copy has been taken out of the clerk's office, but before any answer or plea or demurrer to the bill, he must pay to the defendant the costs occasioned thereby, and must with- out delay furnish him a fair copy thereof, free of expense, with suit- able references to the places where the amendments are to be inserted. And if the amendments are numerous he must furnish in like man- ner to the defendant a copy of the whole bill as amended ; and if there be more than one defendant, a copy must be furnished to each defendant affected thereby.^ Under the privilege of amending a party is not at liberty to abandon the entire case made by the bill and make a new and dif- » Gaines v. Chew, 2 How. 619 : ■^ Equity Rule 27. Oliver v. Piatt, Oliver v. Piatt, 3 How. 333 ; McLean 3 How, 333 : Nelson v. Hill, 5 How. r. Lafayette Bank, 3 McLean 415; 127. Nourse v. Allen, 4 Blatch. 376. " Equity Rule 28. CIRCUIT COURTS — SUITS IN EQUITY. 197 ferent case. Amendments are properly allowable when the bill is found defective in proper parties to it, in its prayer for relief, or in the omission or mistake of some fact or circumstance connected ■with the substance of the case ; but not for putting in issue new matter to meet allegations of the answer. Amendments which chancre the character of the bill or answer so as to make substan- tially a new case should rarely if ever be admitted, especially after a cause has been set for a hearing.^ If an amendment is made of course or on leave, as we shall hereafter notice, it should be by a separate bill, and not by interlineation of the original bill.^ An amendment of the. bill may be made by leave of the circuit court, after the removal of a cause from a state court, by inserting new counts for the same cause of action as that alleged in the original bill.^ § 235. Amendment of bill may be made after answer, plea or demurrer. — The plaintiff may, even after an answer, plea or de- murrer to his bill, but before replication, obtain an order from any judge of the court to amend his bill, upon motion or petition with- out notice on or before the next succeeding rule day, upon payment of costs or without payment of costs, as the court or a judge thereof in his discretion may direct. If, however, a replication has been filed, the plaintiff will not be permitted to withdraw it and amend his bill, except upon a special order of a judge of the court, upon motion or petition after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause.* Under the provisions of the rule last cited, a bill may be amended after a hearing and case for relief made out, but not the case made by the bill. Thus, where the original bill was for a specific perform- ance, but did not state the facts and circumstances on which the relief was based with sufficient fullness, and the amended bill em- braced the subject-matter and general purpose of the original one, 1 Shields v. Barrow, 17 How. 130; ^ Pierce & McDonald v. West, Ex'r, Walden v. Bodley, 14 Pet. 156 -, 3 Wash. 354. Holmes v. Trout, 1 xMcLean 1. =• West v. Smith, 101 U. S. 263. * Equity Rule 29. 198 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and stated the contract, consideration, promise and acts of part performance with sufficient accuracy and precision, and the proof taken under the original bill entitled the complainants to the relief sought, it was held that the amendment after the hearing should be allowed.^ But an amendment will not be allowed after replication, where the purpose of it is to bring in a new party who was known to the original plaintiif or his agent at the time the bill was filed. ^ Although the ruling on a demurrer to a bill may be erroneous, yet if the plaintiff amends his bill in conformity with the ruling, and the defendant answers the bill as amended, neither party can take advantage of the erroneous rulins;.^ § 236. When amendments must be filed after order of allo'wance. — If the plaintiff obtains an order to amend, as provided by the rule last cited, he should file his amendments or amended bill, as the case may require, in the office of the clerk, on or before the suc- ceeding rule day. If he fails to do so he must be considered to have abandoned the same, and the cause will proceed as if no appli- cation for an amendment had been made.* For form, see post, Form No. 41. § 237. Demurrers and pleas; allowance of. — No demurrer or plea is allowed to be filed to any bill unless upon a certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay ; and if it be a plea, that it is true in point of fact.^ If the demurrer or plea is not accompanied by the proper cer- tificate of counsel and the required affidavit of the defendant, the proper practice would be to move to strike it from the files. If the plaintiff should file a demurrer to a plea, and the cause is regularly brought to argument on the question of the sufficiency of it, the want of the certificate and affidavit will be regarded as waived.^ For form of demurrer, see 2^ost, Nos. 42, 43, 44. § 238. Demurrer ; plea ; answer. — The defendant may at any time before the bill is taken for confessed, or afterwards with leave of the 1 Neale v. Neale, 9 Wall. 1. Blatch. 130. If a plea is filed irreg- ^ Ross i;. Carpenter, 6 McLean 382; ularly, the complainant cannot treat Goodyear v. Bourn, 3 Blatch. 266. it as a nullity and take a decree pro ^ Marshall v. Vicksburg, 15 Wall, confesso. He should, before taking 146. such a decree, obtain an order setting * Equity Rule 30. the plea aside or striking it from the ^ Equity Rule 31. files: Ewiug v. Blight, 3 Wall. Jr. * Goodyear's Adm'rs v. Toby, 6 134. CIRCUIT COURTS — SUITS IN EQUITY. 199 court, demur or plead to the whole bill, or to a part of it, and he may demur to part and plead to part of it, and answer to the residue. But if a bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea and explicitly denying fraud and combination, and the facts on which the charge is founded.^ A defendant may meet a plaintiff's bill by several modes of de- fence. He may demur, plead or answer to the whole or to different parts of the bill. But a demurrer to the whole bill will not be sustained if any part of the bill is good and entitles the plaintiff to relief.^ Matters in abatement and relating to the jurisdiction of the court are preliminary in their nature, and must be taken advantage of by a plea, and cannot be by a general answer which admits the right and capacity of the plaintiff to sue.^ The office of a demurrer to a bill is to present the question of the right to maintain it, admitting all its allegations to be true. The court will not therefore examine, aliunde, what facts might or might not defeat it, for this is the office of an answer or plea.* The office of a plea is to furnish some fact or facts not shown by- the bill, but which, if stated therein, would have made the bill demurrable. For forms of pleas and answers, see post, Nos. 47, 48. § 239. Argument on demurrer or plea. — The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon issue taken, the facts stated in a plea be deter- mined for the defendant, they avail him so far as in law they ought to avail him.^ If a bill in chancery avers that the defendant is a citizen of a state other than that of which the plaintiff is a citizen, the issue therein should be raised by a plea to the jurisdiction of the court.^ The complainant should either demur to a plea and set it down for argument, in which case he admits the facts stated in the plea, but denies their legal sufficiency to prevent the relief claimed in the bill, or he should reply to the plea, denying the truth ^ Equity Rule 32. But the confed- ^ Livingstone v. Story, 1 Pet. 351, eracy clause may be omitted : Equity * Ocean Ins. Co. v. Fields, 2 Storv Rule 21. 59. ^ Livingstone v. Story, 9 Pet. 632 ; ^ Equity Rule 33. Heath v. Erie R. Co., 8 Blatch. 347. « Wickliffe v. Owings, 17 How. 47. 200 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of the statements of the same, or some of them, in which case he admits that if the controverted facts are true, then they are sufficient in law to bar a recovery. And if they are proved to be true, the bill should be dismissed.' § 240. Costs •where the demurrer or plea is overruled. — If upon a hearing of a demurrer or plea it is overruled, the plaintiff is entitled to his costs up to that time, unless the court is satisfied that the defendant had good ground to interpose the same, and that it was not interposed vexatiously or for delay. Upon the overruling* of a demurrer or plea, the defendant must be assigned to answer the bill, or so much thereof as is covered by the demurrer, the next succeed- ing rule day, or at such other period as, in the opinion of the court, it can be done consistently with justice and the rights of the de- fendant, in default of which the bill will be taken as confessed and the matter proceeded in and decreed accordingly.^ If a decree pro confesso is taken before the time given for answer, it is, of course, irregular and may be set aside on motion.^ If a demurrer to a bill is interposed by one of several defendants and overruled, and there is a failure of all the defendants to answer within the required time, the bill will be taken as confessed as to all of them.* § 241. Amendment of a bill on allowance demurrer; costs. — If the demurrer or plea is sustained, the court may allow the plaintiff to amend the bill upon such terms as it shall deem reasonable; but the defendant is entitled to his costs. The allowance of an amend- ment is in the discretion of the court, and an order refusing leave to amend is not subject to review in the Supreme Court.^ A demurrer or plea cannot be held bad and overruled upon argu- ment merely because it does not cover so much of the bill as it might have done.^ It may cover a part only of the bill, and the defendant may answer the balance. § 242. Effect of failure to reply. — If the plaintiff does not reply to any plea, or set down any plea or demurrer for argument on the rule day when the same is filed, or on the next rule day, he is deemed to admit the truth and sufficiency thereof, and his bill must ^ Rhode Island v. Massachusetts, 14 ^ Equity Rule 35; National Bank «?. Pet. 21U. Carpenter, lUl U. S. 567 ; Hunt v. ■' Equity Rule 34 ; Bank of U. S. v. Louis, 2 Mason 342. White, 8 Pet. 262. « Fer«;uson v. Ollarra, 1 Pet. (C. C.) ^ Fellows V. Hull, 3 McLean 4^7. 49S ; Equity Rules 36, 37. ^ Suydam v. Beals, 4 McLean 12. CIRCUIT COURTS — SUITS IN EQUITY. 201 be dismissed of course, unless the judge shall allow liim further time for that purpose. A replication, as we have noticed, is an ad- mission of the suflSciency of the plea, and all the defendant has to do is to prove it true.^ § 243. Effect of the answer as evidence. — The general rule in chancery practice is that averments of the answer of the defend- ant uncontradicted on the trial are conclusive evidence in his favor ;- and if it admits averments of the bill, but insists upon matters by way of avoidance of such facts, the plaintiif need not prove the facts admitted, and the burden is on the defendant to prove the matters in avoidance. So the general rule in chancery is that, if the facts charged in a bill as the ground for a decree are positively denied by the answer, the answer in this respect is equivalent to the adverse evidence of at least one witness ; and if the averments of the bill w^iich are thus denied are sustained by only one wit- ness, the court would ordinarily be compelled to dismiss the bill. But if the averments thus contradicted are supported by one wit- ness, corroborated by facts and circumstances established by the proof, it may be sufficient to outweigh the answer, unless the latter is also supported by other proof.^ The matters of the bill not denied by the answer, or admitted, are considered as true ; but, as a general rule, the answer of one defendant cannot be used as evidence against his co-defendant ; nor can the admissions in the answer of an agent be evidence against his principal ; nor can the admissions of an agent, in pais, be evi- dence against his principal unless they were a part of the res gesta.* If, however, one defendant claims, as a defence, rights or interests derived from or through his co-defendant, the answer to the latter may be proper evidence against the former.^ The general rule above stated, relating to the answer as evidence, has been somewhat limited and modified by a general rule promul- gated by the Supremu Court, as we shall hereafter notice.^ ^ Equity Rule 38; Hughes w. Blake, 4 How. 185; Higbee v. Hopkins, 1 6 Wh. 453 ; Poultney v. La Fayette, Wash. 230. 3 How. 81. * Leeds v. Marine Ins. Co., 2 Wh. ^ Lenox v. Front, 3 Wh. 520 ; Clark 380 ; Clark's Ex'r e. Van lleirasdyk, V. White, 12 Pet. 178; Ttandall v. 9 Cr. 153. Phillips, 3 Mason 378. ^ Field v. Holland, 6 Cr. 8 ; Osborne ^ Union Bank v. Geary, 5 Pet. 98 ; v. The President, Directors, etc., 9Cr. Carpenter v. The Providence Ins. Co., 738. ^ Amended Equity Rule 41, post. 202 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 244. Interrogating part of the bill ; answer to. — It is not essen- tial to interrogate the defendant specially and particularly upon any statement of the hill, unless the complainant desires to do so to obtain a discovery. If, however, he inserts interrogatories in the interrogating part of it, they should be divided as conveniently as may be from each other, and numbered consecutively 1, 2, 3, etc.; and those interrogatories which each defendant is required to answer, where there are more than one, must be specified in a note at the foot of the bill to this effect: "The defendant, A.-B., is required to answer the interrogatories numbered respectively 1, 2, 3," etc. "The defendant, C. D., is required to answer the inter- rogatories numbered respectively," etc.^ § 245. When the answer is not evidence. — We have noticed the general rule in chancery in reference to the answer as evidence. But this has been restricted in certain cases by the ruks of practice in equity prescribed by the Supreme Court. An amendment to Equity Rule No. 41 (December term, 1871) provides: "If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answers of the defendant, though under oath, except such parts thereof as shall be directly responsive to such, interrogatories, shall not be evidence in his favor, unless the cause is set down for hearing on the bill and answer only ; but may, nevertheless, be used as an affidavit with the same effect as hereto- fore, on a motion to grant or dissolve an injunction, or on any other incidental motion in a cause." But this does not prevent the defend- ant from becoming a witness in his own behalf, under section 858 of the Revised Statutes, which provides that no witness shall be excluded in any civil action because he is a party or interested in the issue tried, except in certain cases. § 246. Note at the foot of the bill treated as a part of the bill. — By the provisions of the rule last referred to, the complainant may only require an answer under oath to certain interrogatories to be spec- ified in a note at the foot of the bill. This note is considered and treated as a part of the bill, and any alteration in or addition to such note after the bill is filed will be considered and treated as an amend- ment of the bill.^ The words preceding the interrogating part of ^ Equity Rule 40, as amended, Dec. ^ Equity Rule 42. term, 1850, 10 How. 5 ; Equity Rule 41. CIRCUIT COURTS — SUITS IN EQUITY. 203 a bill should be in the form or to the effect following: " To the end, therefore, that the defendants may, if they can, show why your orator should not have the relief hereby prayed, and may upon their several and respective corporal oaths, and 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 re- quired to answer ; that is to say — " 1. Whether, etc. "2. Whether, etc."^ § 247. Interrogatories a defendant may decline to answer. — A defendant may, by answer, decline answering any interrogatory, or part of an interrogatory, from the answering of which he might have protected himself by demurrer ; and he is at liberty so to decline, notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer.^ § 248. Replication to answer.— No special replication to any answer is allowed to be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may obtain leave to amend the same with or without the payment of costs, as the court or a judge thereof may in his discretion direct.^ Spec- ial replications can no longer be used in chancery. If, from the nature of the answer, it becomes necessary to prove other matters than those contained in the bill, the proper practice would be to amend the bill in this respect, and insert the proper and necessary averment therein. Thus if a suit is brought in equity to restrain the use of a machine on the ground of an infringement of a patent thereon, and the defendant in his answer sets up a license therefor, the plaintiff cannot prove an abandonment of the license under a special replication, but should amend his bill and allege such aban- donment.* So special facts in excuse for not bringing suit within the period prescribed by the Statute of Limitations should be set forth in the bill, such as coverture, minority or residence abroad. If these matters are omitted, the bill may be amended in this respect after answer, on leave of court, but they cannot be set up by special 1 Equity Rule 43. ^ Equity Rule 45 ; Dupontl v. Massy, 2 Equity Rule 44. 4 Wat^h. 128. ■* Wilson V. StoUy, 4 McLean 275. 204 FEDERAL PLEADING, PRACTICE AND PROCEDURE. replication.^ Although amendments of bills, after answer, cannot be made without leave of the court, objections to amendments without leave cannot be made for the first time in the appellate court.^ In case of an amendment of a bill after an answer filed, the defendant is required to put in a new or supplemental answer on or before the next succeeding rule day, which would be the first Mon- day of the next succeeding month after that on which the amend- ment or amended bill is filed, unless the' time is extended or it is otherwise ordered by the court. And in case of the default of the defendant so to do, like proceedings may be had as in case of omis- sion of a defendant to put in answer to an original bill.* § 249. Parties to bills; absent parties. — It is provided by Rule 47 in equity that " 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 \^ould oust the jurisdiction of the court as to the parties before the court, the court may in their discretion proceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent party." If the cause can be fully and finally decided between the parties litigant without bringing in others who might also be made parties, and the latter cannot be reached by the process of the court, as where they cannot be served with process within the district, such parties may be dispensed with, and the cause be determined between the parties before the court.^ Nor will the improper joinder of par- ties who are citizens of the same state affect the jurisdiction of the court if a decree may be properly entered as between the parties who are properly before the court. ^ The general doctrine of chancery practice, however, is that all persons materially interested in the subject-matter of the suit ought to be made parties, either as plaintiffs or defendants; but this gene- ral rule is for the convenient and equitable administration of justice, and its application is more or less in the sound discretion of the court, and will usually be restricted to parties whose interests are 1 Taylor?;. Benham, 5 How. 233. ^ Mallow v. Hinde, 12 Wh. 193; 2 Clements v. Moone, 6 Wall. 299. Vattier v. Hinde, 7 Pet. 252. 3 Equity Rule 46. For form of rep- » Carneal v. Banks, 10 Wh. 181; lieation, see post, No. 52. Vattier v. Hinde, 7 Pet. 252. CIRCUIT COURTS — SUITS IN EQUITY. 205 in issue, and to be affected by the decree. And in all cases tbe decree will be so framed and modified as not to prejudice tbe inter- ests of those not made parties to the suit, or properly served with original process.^ A court of equity should aim to do complete justice by embracing the whole subject, and deciding upon and set- tling the rights of all persons interested in the subject of the suit, in order to prevent future litigation ;^ and if the rights of an absent party must necessarily be affected and prejudiced by a decree, it should not be rendered, and objection to such a decree can be taken not only upon the hearing but in the appellate court.^ Where real property, after being mortgaged, was conveyed in trust for the ben- efit of children, including those in being and those that might be born, and a bill was brought to foreclose the mortgage, it was held that all the children in esse at the time of filing the bill were indis- pensable parties to bar a right of redemption, and that a decree against the trustee would not bind the cestui que trusts.* So part owners or tenants in common of real property have an interest in the subject-matter of a suit to partition the same, and each one is so intimately connected with his co-tenant that if they cannot all be subjected to the jurisdiction of the court, the bill should be dismissed.^ But a court of equity of the United States will not suffer its jurisdiction to be ousted because of the non-joinder of merely for- mal parties who are not entitled to sue or liable to be sued in its courts.^ Where four parties had a dispute about their respective rights and interests in the stock of a railroad company, and entered into a contract of settlement by which the stock was to be divided in certain proportions between them, but one of the parties thereto refused to carry out the agreement, and another party filed a bill to compel him to stand by the agreement and to carry it into execution, to which the former answered, objecting that the other parties to the contract of settlement should have been made parties to the bill, it 1 Mechanics' Banki'. Setons, 1 Pet. also Ribon v. Railroad Co., 16 Wall. 299. 446. 2 Caldwell V. Taggart, 4 Pet. 190; ^ Barney w. The City of Baltimore, 6 Marshal v. Beverly, 5 Wla. 313 ; Banks Wall. 280 ; Traders' Bank v. Campbell, v. Carrolton Railroad, 11 Wall. 624. 14 Wall. 87. See also Hoxie v. Carr, ^ Coiron v. Mellandon, 19 llow. 1 Sum. 173 ; Marshall v. Beverly, 5 113; Joy V. Wirtz, 1 Wash. 517. Wh. 313. * Clark V. Reyburn, 8 Wal. 318. See « AVormley v. W^ormley, 8 Wh. 421 ; atife, I 12.5, et seq. 206 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ■was held that, as no relief was asked of the other parties, they were not necessary parties to the bill.^ So where a person filed a bill as administrator of a deceased partner, to have an account of the partnership concerns, and alleged in his bill that he was the sole heir of the deceased partner, it was held that the fact that he was not so could not affect the case, and that the bill was not objection- able for the want of necessary parties, as a decree in the case in his favor would not affect the rights of heirs who might claim a distribution of the money which might be decreed the com- plainant.^ § 250. When parties are numerous. — Although it is a general rule in equity that all persons interested in the subject-matter of the suit should be made parties, to this there is an exception, as where the parties are so numerous as to make it impracticable, in which case a few, representing the interests of the many, are suf- ficient.^ This exception is also embraced in the forty-eighth rule of practice prescribed by the Supreme Court for the courts of equity of the United States. It provides as follows : " Where the parties on either side are very numerous, and cannot, without man- ifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making them all parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But in such cases the decree shall be without prejudice to the rights and claims of all the absent parties."* And, as we have seen, proper but not necessary parties to a bill may be omitted or not served with process ; as where they cannot be made parties without ousting the court of jurisdiction.^ § 251. Trustees represent parties beneficially interested ; execu- tors and administrators. — In all suits concerning real estate which is vested in trustees by devise, if they have, by virtue of the devise, power to sell and give discharges for the proceeds, and charge of the rents and profits of the estate, they may properly represent, as 1 French v. Shoemaker, 14 WalL ^ ]yiiilio;an v. Millese, 3 Cr. 220; 314. Siinnis v. Guthrie, 9 Cr. 20 ; Kerr v. =* Moore v. Huntington, 17 Wall. Watts, 6 Wh. 550 ; Potter w. Gardner, 417. 12 Wh. 498 ; Hook v. Payne, 14 Wall. •^ Mandeville v. Risj^s, 2 Pet. 482. 252 ; ante, § 125, et seq. * West V. Randall '2 Mason 181. CIRCUIT COURTS — SUITS IN EQUITY. * 207 parties to a bill, the persons beneficially interested in the estate or the rents and profits thereof, in the same manner and to the same extent as executors and administrators in suits concerning personal estate represent the persons beneficially interested in such personal, estate ; and in such cases it is not necessary to make the persons beneficially interested in such real estate, or the rents and profits thereof, parties to the suit. But the court may, upon consideration of the matter on the hearing, order such persons or any of them to be made parties.^ § 252. ■When an heir-at-law is not a necessary party ; joint and several debtors. — It is not necessary to make the heirs-at-law parties in suits brought to compel the execution of the trusts of a will, but the plaintiff is at liberty to do so where he desires to have . the will established against them.^ And if the plaintiff has a joint and several demand against several persons either as principals or sureties, it is not necessary to bring before the court all the persons liable on the contract or other demand, but he may proceed against one or more of them severally liable.^ § 253. Defect of parties suggested in the ans-w^er ; practice. — If the complainant omits to bring before the court persons who are necessary parties, and the defect does not appear on the face of the bill, the proper practice would be to set forth the defect by a plea or answer. If it is patent on the face of the bill, however, it could be taken advantage of by demurrer.* If it is suggested in the answer that there is a defect of parties to the bill, the plaintiff is at liberty to set the cause for hearing on that objection only ; but it is necessary for him to state, in the entry of the hearing in the clerk's order-book, the purpose for which the same is set down, to the following effect, that is to say : " Set down upon the defendant's objection for want of parties." If he shall not so set down the cause for defect of parties, he will not, as of course, be alloAved to amend his bill in this respect on the hearing of the cause.^ But if on a final hearing a bill is dismissed on the ground of a defect of parties, it should be without prejudice, as the complainant ought to be permitted to file a bill against all the proper and neces- ^ Equity Rule 49; Potter v. Gard- ^ Equity Rule 51. ner, 12 Wh. 498. * Story v. Livingstone, 13 Pet. 359. '' Equity Rule 50. ^ Equity Rule 52. 208 FEOERAL PLEADING, PRACTICE AND PROCEDURE. sary parties at any time afterwards.^ If, however, no objection is made to the bill for the want of necessary parties, either by demur- rer, plea or answer, the court is at liberty, on the hearing of a .cause, and on objection being made by the defendant on this ground, to proceed to a decree saving the rights of the absent parties.^ But, if a decree cannot be rendered without manifest prejudice to the rights of those who should have been made parties, no decree should be entered, although no objection is made on that ground.^ § 254. Nominal parties need not appear. — The parties served with a subpoena need not appear and answer a bill, where no account, payment, conveyance or other direct relief is sought against them, unless the plaintiff specially requires them to do so by the prayer of his bill. But they may appear and answer at their option. In case, however, they do not appear and answer, they will be bound by all the proceedings in the cause ; and if the plaintiff shall require them to appear and answer, they are entitled to all the costs of the proceedings against them, unless the court shall otherwise direct.^ The omission, as we have seen, of merely formal parties will not oust the jurisdiction of the court. If com- plete relief can be given in a cause to those who seek it, without affecting the interests of others not made parties, a decree for relief will be granted.^ § 255. Injunctions; when granted of course. — If an injunction is asked for in the bill to stay proceedings at law, and the defendant does not enter his appearance and plead, demur or answer to the same within the time prescribed therefor by the rules of practice in equity, the plaintiff is entitled as of course to such injunction, upon motion and without notice. Special injunctions are grantable only on due notice to the adverse party, by the court in term time or by a judge thereof in vacation, after a hearing. But the hearing may be ex ijarte, if the adverse party does not appear at the time and place designated in the notice. And in case an injunction is awarded in vacation, it will, unless previously dissolved by the judge granting the same, continue until the next term of the court 1 Kendicr v. Dean, 97 U. S. 423; 299; Legee w. Thomas, 3 Blatch. 11 ; Barney v. Baltimore City, 6 Wall. Story v. Livingstone, 13 Pet. 359. 28U ; Home v. Mullen, 22 Wall. 42. * Equity Rule 54. ^ Equity Rule 53. ^ Joy v. Wirtz, 1 Wash. 517 ; ^ AVallace ». Holmes, & Blatch. 65; Wormley v. Wormley, 8 Wh. 421; Mechanics' Bank v. Setons, 1 Pet. Mechanics' Bank v. Setons, 1 Pet. 299. See also Young v. Pott, 4 Wash. 521. CIRCUIT COURTS — SUITS IN EQUITY. 209 or until dissolved by some other order of the court.* Unless other parties than those in the suit at law are made parties to the bill to enjoin, and different interests are involved, a bill to enjoin a judg- ment at law is not treated as an original bill ; but if the bill makes others parties, having different interests, it is considered an original ' bill.- For form of order for injunction, see post, No. 70 ; form of injunction, see No. 255. § 256. Bills of revivor and supplemental bills; abatement. — On general principles a suit is abated on the death of either party, but it is provided by Rule 56 for the equity courts of the United States that "whenever a suit shall become abated by the death of either party, or by any other event, it may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require." The bill should be filed by the proper parties entitled to revive the suit, and may be filed in the office of the clerk at any time ; and upon the suggestion of the facts the process of subpoena should be issued as a matter of course by the clerk, requiring the proper representatives of the other party to appear and show cause, if any, why the cause should not be revived. If at the next rule day occurring after fourteen days from the service of said process of subpoena, that is to say, the first Monday of the month after fourteen days from the service of the same, no cause shall be shown, the suit will stand revived as of course.^ In such a case the practice is to allow on the final hearing, the use of any testimony taken before the abatement, and which might have been used if no abatement had occurred. The suit, after revival, proceeds in the new form, unaffected by the change.* But it seems a bill of revivor cannot be entertained where the original jurisdiction depended upon the proper citizenship of the parties, and the controversy which it seeks to revive will be between citizens of the same state, although there was the requisite citizenship of the original parties ; as where a bill of revivor is brought by an admin- istrator who is a citizen of the same state with the defendant.-^ For forms in such cases, see post, No. 38, et seq. 1 Equity Rule 55. 3 Equity Rule 56 ; Equity Rule ^ Simms v. Guthrie, 9 Cr. 19 ; Dunn 2. V. Clark, 8 Pet. 1. See also Marsh v. * Vattier v. Hinde, 7 Pet. 252. Bennett, 5 McLean 117 ; Worcester tJ. ^Clarke v. Mathews, 2 Sum. Truman & Smith, 1 Id. 483. 262. 14 210 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 257. When supplementary bills are proper. — If a suit in equity becomes defective by some event occurring after the filing of the bill, as, for instance, by the change of interest of parties in the matter in controversy, or for any other reason, a supplemental bill or a bill in the nature of a supplemental bill may be necessary. Leave to file the same may be granted by any judge of the court on any rule day, upon any proper cause shown and on due notice to the other party. If leave is granted, the defendant must demur, plead or answer thereto on the next succeeding rule day after the supplemental bill is filed in the clerk's office, unless some other time is assigned by a judge of the court. ^ But it is not necessary, in any bill of revivor or supplemental bill, to set forth any of the statements of the original bill, unless the special circumstances of the case may require it.^ § 258. Answers and amendments thereof. — We have remarked that the rules in equity require an appearance of the defendant, hi person or by attorney, on the next rule day, that is, the first Mon- day of the next succeeding month, if the defendant has been served with process twenty days'before that time ; if not, then at the next succeeding rule day. And he is required to file his plea, answer or demurrer to the bill on the next succeeding rule day after enter- ing his appearance, unless the court shall, for cause shown, extend the time. In default of which the plaintiff may enter an order, as of course, in the order book, that the bill be taken pro confesso.^ And unless there is a waiver of answer under oath, the defend- ant must verify it. This may be done before any justice or judge of any court of the United States, or before any commissioner ap- pointed by any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or territory.* An answer may be amended of course, in any matter of form, or by filling up a blank, or correcting a date, or by reference to a docu- ment or other small matter, at any time before a replication is put in, or the cause is set down for a hearing upon the bill and answer ; but the defendant should reverify it unless there is a waiver of the same. After a replication or such setting down for a hearing, it '■ Equity Rule 57 ; Kennedy v. ^ See mite, § 225. Georgia State Bank, 8 How. 610; * Equity Rule 59. In case of answer Jenkins v. Eldredge, 3 Story 299; of a defendant beyond the seas : Read Parkhurst v. Kinsman, 2 Blatch. 72. v. Consequa. 4 Wli. 335 ; Herman v. ^ Equity Rule 58. Herman, 4 Wash. 555. CIRCUIT COURTS — SUITS IN EQUITY. 211 cannot be amended in any material matters, as by adding new facts or defences, or qualifying or altering the original statements, except by special leave of the court or a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported if required by aflSdavit. If granted, the court or judge granting the same may require it to be separately engrossed as an amendment to the original answer, so as to be distinguishable therefrom.^ Leave to amend an answer after replication, or the cause is set down for a hearing, will not ordinarily be granted where the matter set up in the amended answer constitutes a new defence, and es- pecially where it appears that the matters thus set up could with reasonable diligence have been introduced into the original answer.^ For forms of answers and amended answers, see post, No. 48, et seq. § 259. Answer; exceptions thereto. — If an answer is filed on any rule day, the plaintiff is allowed until the next succeeding rule day to file exceptions thereto for insufficiency, unless a longer time shall be allowed for that purpose upon cause shown to the court or a judge thereof; and if no exception is filed thereto within that time, the answer will be taken to be sufficient.^ If exceptions are taken on the ground that certain allegations of the bill are neither answered, admitted nor denied, it is neces- sary to inquire whether the facts charged in the allegations are material and might contribute to establish the equity of the bill. If they do not, the exceptions should be overruled.* If an excep- tion to an answer is taken on the ground of insufficiency, it should state the charges in the bill, the interrogatories applicable thereto to which the answer is responsive, and the language of the answer, so that the court may determine whether it is sufficient or not ; and any exception is considered as waived by going to trial on the merits.^ For forms of exceptions, ?,qq post, No. 49. § 260. "When exceptions will be set dow^n for a hearing ; answ^er after allowance. — If exceptions are filed to an answer for in- sufficiency, within the time prescribed by the rules of practice in equity, and the defendant does not submit to the same and file an 1 Equity Rule 60. * Hardeman v. Harris, 7 How. 726. 2 India Rubber Co. v. Phelps, 8 ^ Brooks v. Byam, 1 Story 296 ; Blatch. 85; Grier v. Gregg & Wald,4 Kitridge v. Race, 92 U. S. 116. See McLean 202 ; Walden v. Bodley, 14 as to construction of pleadings, Pet. 156. Brown v. Pierce, 7 Wall. 205. 'Equity Rule 61. 212 FEDERAL PLEADING, PRACTICE AND PROCEDURE. amended answer on the next succeeding rule day, the defendant may forthwith set them down for a hearing on the next succeeding rule day thereafter before the court, and may enter as of course, in the order book, an order for that purpose. If he shall not so set down the same for a hearing, the exceptions shall be deemed aban- doned, and the answer must be deemed sufficient ; provided, how- ever, that the court or any judge thereof may, for good cause shown, enlarge the time of filing exceptions or for answering the same upon such terms as may be deemed reasonable.^ If the exceptions are allowed, it is the duty of the defendant to put in a full and complete answer on the next succeeding rule day, other- wise the bill may be taken as confessed so far as the matter referred to in the exceptions is concerned ; or the plaintiff at his election may have a writ of attachment to compel the defendant to make a better answer to the matter of such exceptions, from which he will not be discharged except by putting in such answer, and complying with such other terms as the court or a judge may direct.^ And if the exceptions shall be overruled, or the answer shall be adjudged insufficient, the prevailing party is entitled to the costs occasioned thereby, unless otherwise directed by the court or a judge thereof at the time of the hearing of the exceptions.^ For form of exceptions, see post, No. 49. § 261. Replication and issue. — If the answer shall not be except- ed to, or shall be adjudged sufficient, the plaintiff is required to file the general replication thereto on or before the next succeeding rule day thereafter, when the cause will be deemed at issue without further pleading on either side. But if the plaintiff omits to file a replica- tion within the time prescribed, the defendant is entitled to an order, as of course, for the dismissal of the suit, unless the court or a judge thereof shall, upon motion for cause shown, allow a replica- tion to be filed nunc pro tunc, and the plaintiff submit to such other terms as may be directed. If no replication is filed, the answer is taken as true, and no evidence will be allowed to contradict it.* On failure to put in a general replication to an answer, the order of dismissal may be entered by the clerk of course, without any application to the court or a judge.^ 1 Equity Rule 63, Coleman v. Martin, 6 Blatch. 291 ; 2 Equity Rule 64. Equity Rule 66. ^ Equity Rule 65. " Robinson v. Satterlee, 3 Saw. 134. * Pierce v. West, 1 Pet. (C. C.) 351 ; CIRCUIT COURTS — SUITS IN EQUITY. 213 The rule last cited provides that the court or a judge thereof may upon motion, and for cause shown, allow a replication to be filed. Where a bill was dismissed, but before the final decree was entered the plaintiff by motion asked leave to file a general replication and to take testimony, and offered to pay the accrued costs, but made no suggestion of mistake or inadvertence, it was held that the motion must be denied.^ For form of replication, see post, No. 52. § 262. Depositions ; commissions and commissioners. — When the cause is at issue, commissions to take testimony upon interroga- tories may jointly or severally be taken out by the parties. If either party desires so to do, he is required to file the interroga- tories in the clerk's office, and give ten days notice to the opposite party to file cross interrogatories, before the issuing of the com- mission. If no interrogatories are filed at the expiration of the time, the commission may issue ex parte. The commissioner may be designated by the court or a judge thereof, or the court or a judge thereof may vest in the clerk power to name commis- sioners to take testimony. Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all witnesses to be examined shall be examined orally before one of the examiners of the court, or before an examiner specially appointed by the court. The examiner must in such a case be furnished with a copy of the bill and answer, if any, and the parties must have an opportunity to be present on such examination, personally or by their counsel or solicitors, and the witnesses are subject to cross-examination and re-examination. The evidence must be taken down by the examiner, in writing, in a narrative form, unless the examiner determines that it shall be by questions and answers in special instances. When completed the depo- sitions must be read over to the witness and signed by him in the pres- ence of the parties or counsel, or such of them as may attend. But if the witness shall refuse to sign the deposition, the examiner may sign the same, and he may state any such special matters to the court as he shall think fit. Any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he cannot decide on the competency, materiality or relevancy of such questions. The court has power to deal with the costs of incompe- tent, immaterial or irrelevant depositions, or parts of them, as may ^ Ballenger v. Mackey, 14 Blatch. 355. 214 FEDERAL PLEADING, PRACTICE AND PROCEDURE. be just. The examiner has the same power to coerce the attendance of witnesses as in case of examination on written interrogatories. The examiner in such cases may require reasonable notice to be given of the time and place of examination of witnesses to the oppo- site party ; and when the same is concluded, the deposition, duly authenticated, should be transmitted by him to the clerk of the court, and be filed by him. Testimony, however, may be taken by commission on written interrogatories and cross interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge. If the evidence in a cause is to be taken orally, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of his bill, and a time thereafter within which the defendant must take his evi- dence in defence, and a time thereafter in which the complainant must take his evidence in reply ; and no further evidence can be taken in the cause unless by agreement of the parties or by leave of court first obtained on motion for cause shown. Parties may also agree to take testimony orally.^ For forms in such cases, see post, Nos. 80, 81 ; and Commission- ers' Forms. § 263. Three months allowed after the cause is at issue for the taking of testimony. — It is provided by a rule in equity that three months and no more shall be allowed for the taking of testimony after the cause is at issue, unless a court or a judge thereof shall, upon special cause shown by either party, enlarge the time ; and no testimony taken after such period can be read in evidence at the hearing except as aforesaid.^ This rule applies to the testimony of both parties ; and the ques- tion whether the time should be enlarged is largely in the sound discretion of the court, and unless there should be a clear abuse of this discretion, the Supreme Court would not interfere.^ § 264. Testimony de bene esse ; notice ; form of the last interroga- tory. — If after any bill is filed, and before the defendant has answered the same, an affidavit is made and filed in the office of the clerk of ^ Equity Rule 67. Each interroga- Dod2;e v. Israel, 4 Wash. 323 ; Richard- tory should be answered fully: Ket- son v. Golden, 3 Wash. 109; Rhoades land V. Bissett, 1 Wash. 144; Bell v. v. Selin, 4 Wash. 715. Davidson, 3 Wash. 328. They should ^ Equity Rule 69. be at least substantially answered : " Ingle v. Jones, 9 Wall. 486. CIRCUIT COURTS — SUITS IN EQUITY. 215 the court, stating that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk is required to issue, as a matter of course, a commission to such commissioner or commis- sioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon due notice to the adverse party of the time and place of taking his or their testimony. The last interrogatory must be in substance as follows : "Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause ? If yea, set forth the same fully and at large in your answer." ^ § 265. Defendant must ans"wer the original bill before the plaintiff is required to answer the cross-bill. — If a defendant in equity files a cross-bill for discovery only against the plaintiff in the original bill, he must answer the original bill before the plaintiff is required to answer the cross-bill.^ The answer in such a case to the cross- bill may be. used at the hearing by the party filing the same in the same manner and under the same restrictions as an answer to an original bill may be read and used. A cross-bill depends upon the original one, and may be said to be a mere auxiliary suit. If its purposes are entirely different from those of the original bill, it cannot properly be considered a cross-bill, although the matters therein may have some relation to the same general subject. Nor can new parties be brought into a cause by a cross-bill.^ If a bill is filed to set aside an agreement or conveyance, and the defendant desires to have it established by a decree of the court, he may do so by filing a cross-bill for that purpose.^ But a cross-bill cannot be properly filed without leave of court, and if so filed it will be set aside or dismissed.^ § 266. Appointment of masters and their compensation. — The circuit courts have power to appoint standing masters in chancery in their respective districts, both the judges concurring therein, ^Equity Rules 70, 71. See also ^ Shields v. Barrow, 17 How. 130; Richardson v. Golden, 3 Wash. (C. C.) Cross v. De Valle, 1 Wall. 1. 109; Dodge V. Israel, 4 Id. 323; * Carnocan u. Christie, 11 Wh. 64r). Rhoades v. Selin, Id. 715. ^ Bronson v. La Crosse & M. R. Co., ■' Equity Rule 72 ; Allen v. Allen, 2 Wall. 283. Hemp. 58 ; Young v. Pott, 4 Wash. 521. 216 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and they may appoint a master pro hac vice, in any particular case. But no clerk of the district or circuit court or his deputy can be appointed either as receiver or master in any case, except where the judge shalTdetermine that special reasons exist therefor, to be assigned in the order of appointment. The compensation to be allowed the master is to be fixed by the court in each particular case, and such compensation must be charged upon and borne by such of the parties in the cause as the court shall direct. He cannot, however, retain the report as security for his compen- sation, but where it is allowed he is entitled to an attachment against the party who is ordered to pay the same, if upon notice thereof he does not pay it within the time prescribed by the court. ^ § 267. Reference and proceedings before masters. — It is not the practice in all cases for courts of equity to refer causes to a jury or master, to ascertain the facts, but they may do so themselves, or refer them to a jury or a master. If, however, the bill calls for an account, and this is complex and intricate, it should be referred to a commissioner or master, to be examined and reported by him. This reference can only be made after an interlocutory decree, on the general merits of the plaintiff's bill. The master may take evidence upon written interrogatories, or viva voee, the parties to the suit being present personally or by counsel, or having due notice thereof, and an opportunity to appear before him.^ Exceptions to the report of a master may be taken by either party. The errors should be specifically pointed out, as the parts not excepted to will be considered as correct and admitted.^ It is the duty of the master, upon every reference to him, within a reasonable time to assign a time and place for proceedings on the same, and to give due notice thereof to each of the parties or their solicitors ; and if either party fails to appear at the time and place appointed, he may proceed ex parte, or in his discretion adjourn the examination and proceedings to a future day, giving the absent party or his solicitor due notice thereof. It is the duty of the mas- ter to proceed with all reasonable diligence in every reference to ^ Equity Rule 82 ; act of Congress, be referred to a master : Pendleton v. 1S79, ch."l83, p. 415. Evans' Ex'r, 4 Wash. 391; Equity '^ Field V. Holland, 6 Cr. 8; Story Rule 77. V. Livingston, 13 Pet. 359. If the " Dubourg v. United States, 7 Pet. Itill for the balance of an account is G'^d. taken pro confesso, the account must CIRCUIT COURTS — SUITS IN EQUITY. 217 him, and with the least practicable delay; and either party may apply to the court, or a judge thereof, for an order to the master to speed the proceedings, and to make his report, and to certify to the court or judge the reasons for any delay.^ It is the duty of the party procuring a reference to cause the same to be presented to the master for a hearing on or before the next rule day succeeding the time when the reference is made ; and if he fail to do so, the adverse party is at liberty forthwith to cause proceedings to be had before the master at the costs of the other party.^ The report should not contain any state of facts, charge, affidavit, deposition, examina- tion or answer, or any part thereof, brought in or used before the master, but they should be referred to and identified so as to enable the court to determine what was brought in or used.^ The court will not investigate the items of an account, nor review the whole testimony taken before a master.* Exceptions should be filed point- ing out the particular portion of the testimony on which the party excepting relies. For forms in such cases, see post, Nos. 56, 57, 78. § 268. Hearing before a master; evidence. — The master has full authority to examine the parties in a cause upon oath touching all matters contained in the reference; and he has authority to require the production of all books, papers, writings, vouchers and other documents relating thereto. He may also examine on oath, viva voce, all witnesses produced by the parties before him, and order the examination of other witnesses to be taken, under a commission issued upon his certificate, from the clerk's office, or otherwise as provided by acts of Congress or by the rules in equity ; and may direct the mode in which the matters requiring evidence shall be proved before him, and do all other acts, and direct all other in- quiries and proceedings in the matters before him, which he may deem necessary and proper to the justice and merits of the case and the rights of the parties.* § 269. How witnesses are procured. — Witnesses who live within the district may, upon due notice to the opposite party, be sum- moned to appear before a commissioner appointed to take testi- mony, or before a master or examiner appointed in any cause, by a subpoena in the usual form, which may be issued by the clerk of ' Equity Rule 75. 5 Equity Rule 77 ; Harding v. 2 Equity Rule 74. Handy, 11 Wh. 103; Story v. Liv- 3 Equity Rule 76. ingston, 13 Pet. 359. arding v. Handy, 11 Wh. 103. 218 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the court, in blank, and filled up by the party praying for the same, or the commissioner, master or examiner, requiring the attendance of the witness at the J;irae and place specified ; and he is allowed for his attendance the same fees as for attendance in court. If he refuses to appear after due service of the subpoena, he is guilty of a contempt of court, which being certified to the clerk's office by the commissioner, master or examiner, an attachment may issue for a contempt on the order of the court or a judge thereof, in the same manner as for failure to attend, or for refusing to testify in court.^ When a witness has been once examined, and his deposition used on the hearing, he cannot be re-examined before the master without a special order of the court ; and if leave is thus granted, he can, usually, only be examined in respect to facts not before testified to by him, and not then in issue.^ But the court may in its dis- cretion, if it is deemed advisable, allow the examination of wit- nesses viva voce, in any case, in open court. ^ § 270. How accounts must be brought in ; examination of party. — All parties accounting before a master must bring in their re- spective accounts in the form of debtor and creditor, and any of the other parties not satisfied therewith may examine the account- ing party viva voce, or upon interrogatories in the master's office, or by deposition, as the master may direct.* And 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. So the master may examine any cred- itor or other person coming in to claim before him, either upon writ- ten interrogatories or viva voce, or in both modes, and the testimony must be taken down, if either party requires it, for use in court.^ § 271. Exceptions to the report of a master; when filed. — Excep- tions may be taken to the rulings of a master in chancery, but they should be taken at the time and entered in his minutes.^ When the master's report is completed it is his duty to return the same into the clerk's office, and of the clerk to make an entry of the day of the return in the order-book. After that is done the parties have one month in which to file exceptions to the same. If no excep- tions are filed by either party within that time, the report will stand 1 Equity Rule 78. ' Equity Rule 80. 2 Gass V. Stinson, 2 Sum. 605 ; .Jen- * Troy Iron and Nail Factory v. Cor- kins V. Eldridge, 3 Story 299. nincr, 6 Blatch. 328 ; Oliver v. Piatt, 3 Equity Rule 78. 3 How. 333 ; Harding v. Handy, 1 1 1 * Equity Rule 79. Wh. 103. CIRCUIT COURTS — SUITS IN EQUITY. 219 confirmed on the next rule day after the month is expired. But if they are filed, they will stand for a hearing before the court if then in session : if not in session, then at the next sitting which shall be held thereafter.^ In making exceptions a general assignment of errors is insufiScient, but they should state article by article the parts of the report to which exception is taken.^ An exception to a master's report is not in the nature of a special demurrer, nor is it required to be so full and specific ; but it should distinctly point out the finding and conclusions of the master which it -seeks to set aside.^ If a master or referee has followed the order and judgment of the court on the reference, no objection can be taken on appeal from the final judgment of the court on account of error in the original or interlocutory judgment by which the refer- ence was made and the specific directions given.^ Costs on exceptions are regulated by rule as follows : the party whose exceptions are* overruled must, for the overruled exceptions, pay costs to the other party, and for those sustained or allowed he is entitled to costs, the costs in each case to be fixed by the court, by a standing rule of the circuit court.'' § 272. Decrees; clerical mistakes may be corrected; what decrees should contain. — It is provided by rule that any clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before the enrollment thereof, be corrected by order of the court or a judge thereof upon petition, without the form or expense of a rehearing.^ The practice in England is to recite in the decree the substance of the bill and answer and other pleadings, and the facts on which the court founds its decree. But in this country the pleadings arid decree are a part of the record ; and by a rule of court in equity, neither the bill, answer nor other pleadings should be recited or stated in the decree or order. *" They should begin as follows: "This cause came on to be heard (or to be further heard as the case may be) at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz. :" 1 Equity Rule 83. * N. Orleans v. Gaines, 15 Wall. 624. 2 Dexter v. Arnold, 2 Sum. 108; ^ 7 Equity Rule 84. Story V. Livingston, 13 Pet. 359; ® 6 Equity Rule 85. Green v. Bishop, 1 Cliff. 186. ^ Whitinji v. Bank of U. S., 13 Pet. ^ Foster v. Goddard, 1 Black 506. 6 ; Equity Rule 86. 220 FEDERAL PLEADING, PRACTICE AND PROCEDURE. [Here insert the decree or order.] For forms of decrees, see joos<(" Forms in Equity"), No. 87, et seq. § 273. Guardians and prochein amis, appointment of. — The law supposes infants to be incapable of understanding and managing their affairs, and the duty of watching their interests devolves to a considerable extent upon courts both of law and equity. They defend by guardian, who is usually the nearest relation not inter- ested in the matter in question or controversy.^ It is provided by a rule in equity as follows : " Guardians ad litem to defend a suit may be appointed by the court, or any judge thereof, for infants or other persons who are under guardianship or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami, sub- ject, however, to such orders as the court may direct for the pi*o- tection of infants and other persons."^ § 274. Rehearing ; what the petition for should contain. — A re- hearing is only allowed where some plain omission or mistake has been made, or where somethincz; material to the decree has been brought to the notice of the court, which had been overlooked.^ The rule in equity on this subject provides : " Every petition for a rehearing shall contain special matter or cause on which such re- hearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, and shall be verified by the oath of the party or some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Supreme Court. But if no appeal lies the petition may be ad- mitted at any time before the end of the next term of the court, in the discretion of the court."* The petition must usually state some reason for the rehearing which would be good ground for a new trial at common law.^ If the ground for the rehearing is newly-discovered evidence, it should appear that it was unknown at the trial and could not with due diligence have been discovered.® But a new trial will not be granted on the mere certificate of counsel that there is sufiicient cause for it.^ 1 Bank of U. S. v. Ritchie, 8 Pet. '" Hunter v. Marlboro', 2 Woodb. & 128. M. 168. 2 Equity Rule 87. ' Bentley v. Phelps, 3 Wood.& M.403. 3 Jenkins v. Eldridge, 3 Story 299. ' Emerson v. Davis, 1 Woodb. & M. * Equity Rule 88. 21 ; Tufts v. Tufts, 3 Id. 426. CIRCUIT COURTS — SUITS IN EQUITY. 221 § 275. Rules may be made by the circuit courts. — We have ob- served that the Supreme Court has, by virtue of the statute con- ferring that power, prescribed certain rules for the circuit courts, both at law and in equity ; and that court has, by rule, conferred authority upon the circuit courts to make other and further rules and regulations for the practice, proceedings and process, mesne and final, in their respective districts, not inconsistent with the rules pre- scribed by the Supreme Court, provided both judges concur therein. They may also alter and amend such rules. ^ The power thus con- ferred gives the circuit courts the right to prescribe the time and manner of appearing and answering, the mode of conducting trials, the order of introducing evidence and the times when it must be intro- duced ; but these rules may be waived or modified by the circuit court so as to prevent them from working injustice, and they must not be inconsistent with the general rules of practice prescribed by the Supreme Court.^ § 276. Decrees in cases of foreclosure. — It is further provided by a general rule of the Supreme Court that in suits in equity for the foreclosure of mortgages in the circuit courts, or in any court of the territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due the complainant over and above the proceeds of the sale or sales, and that execution may issue for the collection of the same, in the same manner as where the decree is solely for the payment of money .^ ^ Equity Rule 89. v. White, 8 Id. 262 ; Russell v. Mc- ' Poultney v. La Fayette, 12 Pet. Lellan, 3 Woodb. & M. 157. 472 ; Philadelphia and Trenton R. Co. ^ Equity Rule 92. V. Stimpson, 14 Id. 448 ; Bank of U. S. CHAPTER XL SUPREME JOURT — ORGANIZATION AND SESSIONS. § 277. Provisions for the organization of the Supreme Court. — The provisions of the Revised Statutes relating to the organization of the Supreme Court are as follows : Constitution of. — Sec. 673. The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. Precedence of justices. — See. 674. The associate justices shall have precedence according to the dates of their commissions, or when the commissions of two or more of them bear the same date, according to their ages. Vacancy in the office of Chief Justice. — Sec. 675. In case of a vacancy in the office of Chief Justice, or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly quali- fied. This provision shall apply to every associate justice who succeeds to the office of Chief Justice. Salary of Judges. — Sec. 676. The Chief Justice of the Supreme Court of the United States shall receive the sum of ten thousand five hundred dollars a year, and the justices thereof shall receive the sum of ten thousand dollars a year each, to be paid monthly. Appointment of clerk, marshal and reporter. — Sec. 677. The Supreme Court shall have power to appoint a clerk and a marshal of said court, and a reporter of its decisions. Appointment of deputy clerk. — Sec. 678. One or more depu- ties of the clerk of the Supreme Court may be appointed by the court on the application of the clerk, and he may be removed at the pleasure of the court. In case of the death of the clerk his deputy or deputies shall, unless removed, continue in office and per- form the duties of the clerk in his name until a clerk is appointed and qualified ; and for the defaults and misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties on his official bond, shall SUPREME COURT — ORGANIZATION. 223 be liable ; and his executor or administrator shall have such rem- edy for any such default or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. Records of the court of appeals. — Sec. 679. The records and proceedings of the court of appeals, appointed previous to the adoption of the present Constitution, shall be kept in the office of the clerk of the Supreme Court, who shall give copies thereof to any person requiring and paying for them in the manner provided by law for giving copies of the records and proceedings of the Supreme Court, and such copies shall have like faith and credit with all other proceedings of said court. Marshals and duty. — >S'gc.-680. The marshal is entitled to receive a salary at the rate of three thousand five hundred dollars a year. He shall attend the court at its sessions ; shall serve and execute all process and orders issuing from it, or made by the Chief Justice or an associate justice in pursuance of law ; and shall take charge of all property of the United States used by the court or its members. With the approval of the Chief Justice he may appoint assistants and messengers to attend the court, with the compensation allowed to officers of the House of Representatives of similar grade. Duty of the reporter. — Sec. 681. The reporter shall cause the decisions of the Supreme Court made during his office to be printed and published within eight months after they are made; and within the same time shall deliver three hundred copies of the volumes of said reports to the Secretary of the Interior. And he shall, in any year when he is so directed by the court, cause to be printed and published a second volume of said decisions, of which he shall deliver in like manner and time three hundred copies. Salary of reporter and price of reports.— aS'^c. 682. The reporter shall be entitled to receive from the treasury an annual salary of twenty-five hundred dollars when his report of said de- cisions constitutes one volume, and an additional sum of fifteen hundred dollars when, by the direction of the court, he causes to be printed and published in any year a second volume. But said salary and compensation, respectively, shall be paid only when he causes such decisions to be printed, 'published and delivered within the time and in the mannei* prescribed by law, and upon the con- 224 FEDERAL PLEADING, PRACTICE AND PROCEDURE. dition that the volumes of said reports shall be sold by him to the public for a price not exceeding fivQ dollars a volume. Section 683 provides for the disposition of the copies of said reports delivered to the Secretary of the Interior. Without the means thus provided by Congress, the Supreme Court could not have been properly constituted or organized. For to constitute a court in the sense used in the Constitution, there should not only be a judge or judges to hear and determine causes, but clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and judgments and secure due order in its proceedings. Judicial power signifies the power with which courts are clothed, and this embraces not only the power to try and determine, but to execute its orders and judgments. Under these provisions the Supreme Court was duly constituted, and it may take original cognizance of the cases specified in the Constitution. But we will consider its jurisdiction more particu- larly in a subsequent chapter.' § 278. Tenure of office of the judges. — Having set out the stat- utes providing for the organization of the Supreme Court, and shown the mode of appointment of the judges, it may be well to consider briefly the tenure by which the judges hold their offices. We have noticed that the Constitution provides that "the judges of both the Supreme Court and inferior courts shall hold their offices during good behavior." The question as to the policy and wisdom of a permanent tenure of office of judges received much attention at the time of the for- mation of the Constitution, and it has been the subject of discus- sion ever since that time. Many of the state constitutions have made these offices elective, and for a short term ; and it can hardly be affirmed, in the light of experience under this mode of securing judicial officers, that the judges of the state courts have not gene- rally maintained a character for ability and integrity equal to that secured by appointment and a holding for life or during good behavior. Notwithstanding many objections urged by speculative theorists and political philosophers, it is believed that judges select- ed by popular election and for sh(?rt terms have generally given satisfaction ; and there is certainly one advantage enjoyed by this ^ See^os^, ch. xii. SUPREME COURT — ORGANIZATION. 225 mode of selecting judges as well as other oflBcers, and that is that if they prove incompetent or un«worthy, there is an opportunity for removal without much delay. But owing to the complicated char- acter of our national government, and considering that the judic- iary department is a co-ordinate and independent one, there are some important reasons why the judges should be appointed in the manner provided by the Constitution, and that the tenure of the office should continue during good behavior. This question was much discussed before the adoption of the Constitution. A contem- poraneous writer of rare ability said: "The standard of good be- havior for the continuance in office of the judicial magistracy is cer- tainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is an excellent barrier to the despotism of the prince ; in a republic, it is a no less excel- lent barrier to the encroachments and oppressions of the represent- ative body. And it is the best expedient which can be devised in any government to secure a steady, upright and impartial adminis- tration of the laws. Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution, because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judici- ary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or the wealth of society; and can take no active resolution whatever. It may be truly said to have neither force nor will, but merely judgment; and must ulti- mately depend upon the aid of the executive arm for the efficacious exercise even of this faculty. . . . Upon the whole, there can be no doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of judicial offices in point of duration ; and that, so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government."^ 1 The Federalist, No. 78. 15 226 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 279. Terms of the Supreme Court. — The provisions of the Statute relating to the terms of th§ Supreme Court require that it shall hold one term annually at the seat of government, commencing on the second Monday of October, and such adjourned or special terms as it may find necessary for the despatch of business ; and that " suits, proceedings, recognizances and processes pending in or returnable to said court shall be tried, heard and proceeded with as if the time of holding said session had not been" altered; that if at any session of the court a quorum does not attend on the day appointed for holding it, the justices who do attend may adjourn it from day to day for twenty days after the appointed time, unless before that time a quorum shall attend ; that if a quorum does not attend within that time, the business of the court shall be continued over till the next appointed session ; and that if, during a term, after a quorum has assembled, less than a quorum attend on any day, the justices attending may adjourn the court from day to day until there is a quorum, or may adjourn without day. They further provide that the justices attending at any term when less than a quorum is present may, within the twenty days men- tioned, " make all necessary orders touching any suit, proceeding or process depending in or returned to the court preparatory to the hearing, trial and decision thereof."^ 1 See Rev. Stat, gg 684, 685, 686. CHAPTER XII. ORIGINAL JURISDICTION — AT LAW AND IN EQUITY. § 280. Rules of practice. — Having treated of the constitution and organization of the Supreme Court, we will now proceed to consider its original jurisdiction, and the pleadings, practice and pro- cedure therein. It may be observed that there are no statutes or general rules of the court that specifically point out the practice or mode of procedure in the Supreme Court, as a court of original jurisdiction, or that prescribe the forms of pleadings therein. But a general statutory provision requires that " all writs and process issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof;" that "those issuing from the Supreme Court or a circuit court shall bear the teste of the Chief Justice of the United States, or when that office is vacant, of the associate justice next in precedence;" ^ and that "all process issued from the courts of the United States shall bear teste from the day of such issue." ^ It is further declared by a general rule of the court that " this court consider the practice of the courts of the King's Bench and of Chancery in England as affording outlines for the practice of this court ; and they will, from time to time, make such alterations therein as circumstances may render necessary."^ The practice of chancery referred to is the practice of the High Court of Chancery of England. This practice would undoubtedly regulate the procedure in the federal courts so far as it would be applicable, not in all cases as positive rules, but as furnishing just analogies relating to the prac- tice in the absence of rules of court or statutes prescribing the prac- tice, and in cases where the rules of the English High Court of Chan- cery would not be strictly applicable.* The rules of this court further ^ Rev. Stat. § 911. A summons or the Supreme Court, is void: Wells v. notice must be under the seal of the McGregor, 13 Wall. 188. court and signed by the clerk : Peas- ^ Gen. Rule 3. lee V. Haberatro, 15 Blatch. 472; * Equity Rule 90 ; Boyle r. Zache- Dwight V. Merritt, 4 Fed. Rep. 614. rie, 6 Pet. 648 ; Poultney v. La Fay- * Rev. Stat.- § 912. A writ of error ette, 12 Pet. 472; Rhode Islands, bearing the teste of the clerk only, Massachusetts, 14 Pet. 210 ; Florida and not that of the Chief Justice of v. Georgia, 17 How. 478. 228 FEDERAL PLEADING, PRACTICE AND PROCEDURE. provide that all process of the court shall be in the name of the President of the United States ; that all process in common law or in equity issued against a state shall be served on the governor or chief magistrate and attorney-general of such state ; that the pro- cess of subpoena issuing out of this court in any suit in equity must be served on the defendant sixty days before the return day of such process ; that if, after due service of the same, the defend- ant does not appear at the return day contained therein, the plain- tiff is at liberty to proceed ex parte ; and that all motions must be in writing.^ For some time after the adoption of the Constitution and the organization of this court, it was a question much discussed whether, without an act of Congress regulating the practice and mode of procedure, this court could exercise any original jurisdiction in cases where the forms and modes of procedure of the English High Court of Chancery were not applicable. This question was first presented to the court in the case of Florida v. Georgia.^ In this case the state of Florida filed a bill in this court against the state of Georgia, to establish a boundary between them, thereby invoking the aid of the original jurisdiction of the court. The Attorney-General filed a motion therein for leave to appear and plead on behalf of the United States, in such time and form as the court should order. The case was a novel one, there being nothing in the practice or precedents of the English courts furnishing any guide, and but imperfect analogies as to the proper forms and practice in such a case. It was, however, determined that, although Congress might prescribe the modes and forms of proceeding for this court, yet; this was not essential, and having failed so to do, the court should not on this account be deprived of jurisdiction; that it was the duty of the court under such circumstances to prescribe these to accom- plish the ends for which the jurisdiction was given by the Constitu- tion ; and that, if the established forms and usages of law and equity afforded no precedents for a case within the jurisdiction of the court, it was the further duty of the court to mould and adopt the requisite forms so to attain the ends of justice, disregard- ing nice technicalities.^ ' Gen. Rules 5 and 6. ' See also Grayson v. Virginia, 3 2 17 How. 478 (1854). Dall. 339; Huger v. South Carolina, SUPREME COURT — ORIGINAL JURISDICTION. 229 The general rules of pleading, practice and procedure applicable to circuit courts of the United States, which we have already consid- ered, would be equally applicable to the Supreme Court. § 281. Procedure in equity; essentials of a bill. — A party desir- ing to invoke the original jurisdiction of the Supreme Court on its equity side should first prepare his bill in the form required by the chancery practice in England, subject to such changes as have been made by the rules of this court and acts of Congress. Under the rules of this court he may omit the part usually called the confed- eracy clause, and the clauses commonly called the charging part of the bill ; also what is generally known as the jurisdiction clause, that is, the clause " that the acts complained of are contrary to equity, and that the plaintiff is without any remedy at law."^ And he " may, in the narrative or stating part of his bill, state and avoid by counter-averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant by way of defence or excuse to the case made by the plaintiff;" and the prayer of the bill must ask for the special relief to which the plaintiff supposes himself entitled. The bill must also contain a prayer for general relief; and if an injunction or writ of ne exeat regno, or any other special order pending the suit, is required, it must be specially asked for.^ The prayer for process or subpoena must also set forth the names of all the defendants named in the introductory part, and if any of them are known to- be infants or under guardianship, it should state this fact, that the court may be able to make such orders on the return of the subpoena as justice may require. But it is sufficient to ask for an injunction ne exeat regno, or any other special order, pending the suit, in the prayer for relief, without repeating the same in the prayer for process.^ It is further required that " Every bill shall contain the signa- ture of counsel annexed to it, which shall be considered as an affir- mation on his part that upon the instruction given to him and the 3 Dall. 371 ; New York w. Connecticut, Pennsylvania v. Quicksilver Co., 10 4 Dall. 1 ; New Jersey v. New York, Wall. 553. 5 Pet. 284 ; Rhode Island v. Massachu- ^ Equity Rule 21. setts, 12 Pet. 657 ; s. c, 15 Pet. 233 : ^ Equity Rule 21. Taylor v. Salmon, 4 Mylne & Craig * Equity Rule 23. 141 ; Boyle v. Zacherie, 6 Pet. 648 ; 230 FEDERAL PLEADING, PRACTICE AND PROCEDURE. case laid before him there is good ground for the suit in the manner in which it is framed."^ Notwithstanding the formal jurisdiction clause may be omitted from a bill, it is essential that it should show facts giving the court jurisdiction. The original jurisdiction of the court is quite limited, depending in all cases upon the citizenship or character of the par- ties, and not upon the subject-matter or the value of the matter in controversy. The required citizenship or character of the parties should of course be set forth in the bill in order to show the juris- diction of the court.^ § 282. "When a state is a necessary party. — Where the jurisdiction of the court depends upon the fact that a state is a party, it must appear from the bill that it is so in fact, and it is not sufficient that it be made to appear that the state is indirectly interested in the controversy and may be consequentially affected by the result. The state must in such cases be made a party on the record, or objection may be taken by demurrer on that ground.^ But it is sufficient that the state be substantially a party, as where the bill is filed by the governor of a state on its behalf,* or where the claim made in a libel in admiralty is upon the governor as such, and officially, and not against him personally.^ If the suit is by the state against a corporation, it should be shown by the bill or declaration that the corporation is a citizen of another state, that is, incorporated by or organized under the laws of some other state, naming it; and it is not sufficient merely to aver that the corporation defendant is a body politic by the laws of another state and doing business within it.^ Jurisdictional facts should be clearly averred and not left for inference.^ Every bill must contain in itself sufficient matter of fact, both as to jurisdiction 1 Equity Rule 24. Where a bill Peters 110 ; Osborne y. Bank of U. S., for an injunction was filed without 9 Wh. 738 ; Bank of U. S. ». Planters' the proper signature of counsel it Bank, 9 Wh. 904. ■was ordered to be taken from the files ; * Georgia v. Brailsford, 2 Dall. 405. but on being amended in this respect * Governor of Georgia v. Madrazzo, it was, on motion, reinstated, and the 1 Pet. 110. injunction granted as on a bill and ® Pennsylvania v. Quicksilver Co., motion de novo : Roach v. Hulings, 5 10 Wall. 5.53. Cr. (C. C.) 637. ' Railway v. Ramsey, 22 Wall. 322 5 * Rev. Stat. \ 687 ; Equity Rules 20 Virginia v. West Virginia, 11 Id. 39. and 21 ; Georgia v. Brailsford, 2 Dall. See also Bank of U. S. v. Planters' 405 ; Georgia v. Madrazzo, 1 Pet. 110. Bank, 9 Wh. 904 ; Bank of Kentucky * Fowler v. Lindsey, 3 Dall. 411 ; v. Wister, 2 Pet. 321 ; The Cherokee Governor of Georgia v. Madrazzo, 1 Nation v. Georgia, 5 Id. 1. SUPREME COURT — ORIGINAL JURISDICTION. 231 and the subject of the claim made, to maintain the case of the plaintiff.^ § 283. Frame of bills; interrogatories. — The introductory part of a bill should usually contain the names, places of abode, and a statement of the citizenship of all the parties, plaintiffs and defend- ants. Where, however, a state is a party, it would not be necessary or practicable to state the abode or citizenship of the state, but a statement of the fact that it is a state would be suflScient. The general principles of equity pleading, practice and procedure are applicable to all the federal courts having equity jurisdiction.^ For forms in the Supreme Court, see post, No. 220, et seq. It is not necessary to interrogate the defendant, specially and particularly, upon any statement in the bill, unless it is desirable to do so to obtain a discovery.^ If interrogatories are inserted, they should be numbered consecutively, 1, 2, 3, etc. And the in- terrogatories which either of the defendants are required to answer should be specified in a note at the foot of the bill, as follows : " The defendant A. B. [or others named] is required to answer the interrogatories numbered respectively 1, 2, 3," etc. And if the complainant in his bill waives an answer under oath, or only requires an answer under oath in regard to certain specified interrogatories, the answer of the defendant may be under oath to the whole bill, but it will not be evidence in his favor, except as to such part thereof as shall be directly responsive to such interrogatories, un- less the cause is set down for a hearing on the bill and answer only.^ The answer may in such cases also be used as an affidavit, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; and an answer under oath to certain interrog- atories will not prevent the defendant from becoming a witness in his own behalf, as provided by law.* It is further prescribed that where interrogatories are used in a bill they shall be preceded by the following form : " To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and according to * Harrison v. Nixon, 9 Pet. 483. * Equity Rule 41 and Amend. « Equity Rule 20. See also Fowler * Rev. Stat. § 858 ; Equity Rule 41, r. Miller, 3 Dall. 411. as amended. ^ Amended Equity Rule 40. 232 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the best and utmost of their several respective knowledge, remem- brance, 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, etc. "2. Whether, etc." For form of bill to settle the boundary between states, see jjost., No. 221. For form of bill to restrain the use of a trade mark, see post, No. 230. § 284. Leave to file a bill ; practice ; subpoena. — The practice of obtaining leave to file a bill in this court is quite anomalous ; but it seems common, if not universal, although there is no statute or rule of court upon the subject. The usual course is to file a motion asking leave to file the bill, which is generally heard ex parte on a regular motion day.^ Where, however, the bill prayed an injunc- tion to restrain the President of the United States from executing a law of Congress, it was held proper, under the peculiar circum- stances of the case, to hear an argument against the motion for leave to file the bill.^ If the leave to file a bill is granted, the clerk will as a matter of course, and without any order of the court or a judge thereof, issue a subpoena. But the order may be sus- pended or rescinded by any judge of the court, upon special cause shown therefor.^ For forms for Supreme Court, see post, No. 220, et seq. § 285. Subsequent proceedings. — It has been determined that if the state shall fail to appear after due service of process upon her, no coercive measures will be allowed to compel an appearance, but the complainant or plaintiff will be allowed to proceed ex parte;* and he may move for commissions to issue to take the depositions of witnesses ; or he may move the trial of the cause on oral testi- mony, in the usual way, as soon as the cause is reached for trial, or as soon as permitted by the rules or orders of the court. It may be observed that the Supreme Court, in the exercise of its original jurisdiction, has the right to prescribe rules of practice and pro- ^ Georgia w. Grant, 6 Wall. 241. * Massachusetts v. Rhode Island, ^Mississippi v. Johnson, 4 Wall. 12 Pet. 755; Grayson v. Virginia, 3 475. See also Poultnev v. La Fay- Dall. 320; New Jersey ?;. New York, ette, 12 Pet. 472. " 5 Pet. 284. * Equity Rule 5. SUPREME COURT — ORIGINAL JURISDICTION. 233 cedure for itself or the inferior federal courts, and to make such deviations from the English common law and admiralty and chancery practice as are necessary to adapt the process and pro- cedure of the court to the peculiar circumstances of cases arising in this country, limited only by such alterations or regulations as Congress may provide. In the exercise of this authority, the court framed General Rule 5, prescribing the persons on whom original process should be served, and the time of service, and the proceed- ings on a failure of appearance ; and in the case last cited, on the failure of the defendant to appear after due service of process, it was, on motion of the complainant, ordered and decreed that the complainant be at liberty to proceed ex parte ; and that unless the defendant, after being served with a copy of the order and decree sixty days before the next following term of the court, should ap- pear before said term and answer the bill, the court would proceed to hear the cause on the part of the complainant, and to decree on the matter of said bill. Within the time required by the order and decree of the court, the state of New York appeared in the case by its attorney-general and filed a demurrer to the bill, and the ques- tion was raised whether this was a compliance with the order of the court requiring the defendant to answer. The court held that in a legal sense a demurrer was an answer, though not so in a tech- nical sense, and that it was a sufficient compliance with the order.^ For form of decree and order on default in such cases, see post, No. 250. § 286. Proceedings on the part of the defendant. — If the de- fendant desires to appear and defend the cause, or for any purpose connected with it, he should at or before the return day of the pro- cess, which, as we have seen, must be at least sixty days after its service, cause an appearance to be entered by the clerk, either per- sonally or by his solicitor, and for that purpose should file with him a precipe for an appearance. The appearance may be general, or special for some particular purpose. For form of precipe for an appearance, see post, No. 236. § 287. When a bill will be dismissed on motion. — We have noticed that jurisdictional facts should be clearly set forth in the bill or declaration. A failure to do so would be fatal on a motion to dis- miss or a demurrer for want of jurisdiction. In the case of Rhode ^ New Jersey v. New York, 6 Pet. 323. 234 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Island V. Massachusetts,' a motion was made to dismiss on the ground of a want of jurisdiction, which the court entertained although made after a plea in bar had been filed. But the court overruled the motion, holding they had jurisdiction of the parties and of the subject-matter.^ The general prinoiple in relation to the special limited original jurisdiction of this court is that the court will not take cognizance of a cause where its authority to do so is not manifest from the record, and the court will take notice of this when it is apparent, whether objection for want of jurisdiction is made or not. See post, Form No. 226. A motion to dismiss a cause, pending in the courts of the United States, is not analogous to a plea to the jurisdiction of a court of common law or equity in England. There, owing to the peculiar organization and powers of the courts, the rule is that a party claiming an exemption from the jurisdiction of the court must set out the reasons by a special plea in abatement, and show that some other court has the exclusive cognizance of the case, and must point out to the court where the case belongs. In order to quash a writ or dismiss a bill in England, for want of jurisdiction, the plaintiff must give a better one, and he can never put in a second plea to the jurisdiction of the court. But in the federal courts, irregularity of process or defective service of the same is waived by an appearance and pleading to the issue.^ And when the objection is that the court has no jurisdiction over the parties or the subject-matter, the defendant need not give the plaintiff a better writ or bill. § 288. Demurrer for want of jurisdiction. — A demurrer to a bill or declaration operates as an admission, for the purposes of the de- murrer only, that all the averments which are properly pleaded are true. Its purpose is to bring before the court the question of the right to maintain the suit, admitting the allegations to be true ; and the court will not inquire aliunde what facts might or might not defeat it, as this is the office of a plea or answer.* > 12 Pet. 657. * Voorhees v. Bank of the U. S., 10 ^ Equity Rule 6. See also United Pet. 449 ; Toland v. Sprague, 12 Pet. States V. Hughes, 11 How. 552 ; Geor- 300 ; Knox v. Summers, 3 Cr. 496 ; gia V. Stanton, 6 Wall. 50; Cohens v. Pollard v. Dwight, 4 Cr. 421. Virginia, 6 Wh. 264; Harding v. " Griffing v. Gibb, 2 Black 519; Handy, 11 Wh. 103; Harrison ». Foot v. Link, 5 McLean 616; Ocean Nixon, 9 Pet. 483. Insurance Co. v. Fields, 2 Story 59 ; SUPREME COURT — ORIGINAL JURISDICTION. 235 It is manifest that if there is a want of allegations showing that the parties to the suit are the necessary and proper parties to give the court jurisdiction, this would be good ground for demurrer, and for a dismissal ; and the proper practice would be to demur, although advantage of the defect might be taken afterwards by motion, plea or answer.^ So far as our present purpose is concerned it will be necessary to consider the demurrer only in relation to its office where there is a want of proper allegations in a bill or declaration as to the character of the parties, as it is this which gives the court original juris- diction. We should, however, observe that even where the contro- versy is between states, the court will not take cognizance of a contro- versy which relates solely to matters of a political character ; and a bill which asks for relief in such a case would be subject to a demurrer.^ But where the political question involved, as 'that of the right of sovereignty and jurisdiction of a state over disputed territory, is merely incidental to the main question to be determined, as in case of a bill to settle the question of a disputed boundary between states, the question is not a political one, so as to oust the jurisdiction of the court. ^ In Georgia v. Stanton the objection to the jurisdiction of the court was taken by motion, but it illustrates the general doctrine equally as well as if it had been raised by a demurrer. The court determined that the bill, both in the body of it and in the prayer for relief, called for the judgment of the court upon political ques- tions ; that the rights for the protection of which the authority of the court was invoked were not those of a private character, but related to those of sovereignty and political jurisdiction ; and that the court had no jurisdiction over the subject-matter presented by the bill." For form of demurrer for want of jurisdiction, see post, No. 225. § 289. Certificate of counsel and affidavit required. — It is further provided by rule that "no demurrer or plea shall be filed to any Woodworth v. Edwards, 3 Woodb. & Wall. 50 ; The Cherokee Nation v. M. 120; Bayerque v. Cohen, 1 McAll Georj^ia, 5 Pet. 1. 113 ; 1 Dan. Ch. PI. 543. ^ Khode Islands. Massachusetts, 12 ^Jackson v. Ashton, 8 Pet. 148; Pet. 657 ; Florida r. Georgia, 17 How. Wood V. Wagnon, 2 Cr. 9 ; Ross v. Du- 478 ; Cherokee Nation v. Georgia, 5 vail, 1 3 Pet. 45 ; Gaylords v. Kelshaw, Pet. 1. 1 Wall. 81. * 6 Wall. 50. See also Mississippi v. * State of Georgia v. Statiiton, 6 Johnson, 4 Wall. 475. 236 FEDERAL PLEADING, PRACTICE AND PROCEDURE. bill, unless upon a certificate of counsel that in his opinion it is well founded in point of law, and supported by affidavit of the defend- ant that it is not interposed for delay, and if a plea, that it is true in point of fact. For form of certificate of counsel to a demurrer, see post, No. 226; for form of affidavit, No. 227. § 290. Office of a plea. — The office of a plea is to furnish some fact or facts not apparent on the bill, but which, if they had been therein stated, would have rendered the bill demurrable. The plea should contain averments which, if true, would defeat the relief asked for by the plaintiff. It is allowed in order to save expense and to protect the defendant from a discovery which ought not to be required under the facts and circumstances of the case ; and it enables the court to decide upon the issues, taking the bill to be true so far as it is not contradicted or qualified by the plea. An illustration of the office of plea might be found in case of a bill filed in this court by a consul against a citizen. If it should be averred in the bill that the complainant was a consul, which would be an essential jurisdictional fact to be shown, when in fact he was not a consul, the objection on this account could not be taken by demurrer, because a demurrer admits the facts well pleaded. The question could in such a case be raised by a plea denying that the plaintiff was in fact a consul. The jurisdictional question would thus be presented and determined by the judgment of the court on the single issue whether the plaintiff was or was not a consul. This would be a plea to the jurisdiction of the court in abatement, and not in bar of another action in another court. ^ Another appropriate case for a plea would be where there was another suit pending for the same matter, where it would also be in abatement.^ It is sometimes necessary to accompany a plea with an answer ; especially is this required in certain cases by the rules of practice prescribed for the courts of equity of the United States. Equity Rule 32 provides that "in every case in which the bill specially charges fraud or combination, a plea to such part must be accom- panied with an answer fortifying the plea and explicitly denying 1 1 Dan. Ch. PI. (4 Am. ed. Perkins) Way v. Bagshaw, C. E. Green (16 N. 626 ; Jones v. League, 18 How. 76. J.) 213 ; Cleveland, etc., R. Co. v. '' Dan. 2 Ch. PI. (4 Am. ed.) 633 ; Erie, 27 Pa. St. 380; iMann v. Richard- Mathews V. Robers, 1 Green, Ch. 338 ; son, 21 Pick, 259. SUPREME COURT — ORIGINAL JURISDICTION. 237 the fraud and combination, and the facts on which the charge is founded."^ It is not, however, within the proper scope of this treatise to consider fully the various kinds of pleadings at law and in equity ; and the reader is referred to those special treatises on these sub- jects where these matters are discussed and illustrated. We may remark in this connection that by the general rules of equity practice, the plea was required to be verified by affidavit, and under a rule of this court a plea as well as a demurrer is not only required to be supported by the affidavit of the defendant that it is not interposed for delay, and in case of a plea, that it is in point of fact true, but the certificate of counsel is required that in his opinion it is well founded in point of law.^ For forms of plea, certificate and verification, see post, Nos. 47, 231. For form of affidavit to demurrer, see post, No. 46. § 291. Setting down for a hearing. — To set down a demurrer or plea for a hearing is to enter the title of the cause in the list of matters ready k) come on for a hearing at the next rule day of the court, specifying the matter to be heard, and of which the opposite party must take notice. The entry may be made as a matter of course. On the argument of a plea it has been held that the alle- gations of the bill may be taken less strongly against the plaintifl" than they would be on the argument of a demurrer.^ " If a plea is supported by an answer, upon the argument of the plea the answer may be read to counterprove the plea ; and if the defendant appears not to have sufficiently supported his plea by his answer, the plea must be overruled or ordered to stand for an answer only." Where a defendant answered to an original bill, which was after- wards amended, and the defendant put in a plea to the amended bill, the plaintiff was permitted to read the answer to the original bill, to counterprove the plea to the amended bill.* On the argument of a plea the general rule is that the averments of the bill must be taken as true, except as to those denied by the plea, and by the answer if one is filed in support of the plea ; and 1 1 Dan. Ch. PI. (4th Am. ed.) 614 ; « Equity Rule 31. Story's Eq. PI. g 681, et seq. ; Syms v. * Rumbold v. Forteath, 2 Jur. N. S. Lyle, 4 Wash. (C. C.) 3U3 ; Living- 686. ston V. Story, 9 Pet. 632; s. c, 11 *1 Dan. Ch. PI. (4th Am. ed.) Pet, 352 ; De Sobry v. Nicholson, 3 695. Wall. 420; Heath v. Erie R. Co., 8 Blatch. 347. 238 FEDERAL PLEADING, PRACTICE AND PROCEDURE. if set down by the plaintiff for a hearing, without a reply, the aver- ments contained in it must be treated as true.^ So the general rule is that no plea or demurrer can be held bad and overruled upon the argument merely because it does not cover so much of the bill as it might have extended to.^ Nor shall it be overruled merely because the answer of the defendant may extend to some part of the same matter as is covered by it.^ § 292. "Where the plea or demurrer is overruled. — If, upon the hearing of a plea or demurrer, it is overruled, the plaintiff, on gen- eral principles, is entitled to his costs up to that time, unless the court is satisfied that he had good ground, in point of law or fact, to interpose the same, and that it was not put in vexatiously or for the purpose of delaying the cause ; * and the court may, in accord- ance with the general procedure in such cases, order the defendant to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeeding rule day or at such other time as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done ; in default whereof the bill may, if so ordered, be taken against him pro con- fesso, and the matter thereof proceeded in and decreed accordingly.^ § 293. "Where the plea or demurrer is allowed. — If a plea or demurrer is allowed upon the hearing, the court may allow the plaintiff, on motion, to amend the bill upon such terms as appear reasonable, but the defendant is entitled, as we have stated, to his costs.® In case of a failure of the plaintiff to reply to a plea, or to set down the same for a hearing at the proper time, he may be con- sidered as admitting the truth and sufficiency of it, and his bill must be dismissed of course, unless the court shall allow him further time to reply or to set the plea down for argument.^ But the dismissal of a bill in such a case would be no bar to another suit. For form of answer to a bill of complaint, see post, No. 232. For form of oath to an answer, see post, No. 233. ^ Borgandus v. Trinity Church, 4 ^ Equity Rule 37. Paige 178 ; Lawrence v. Pool, 2 Sand. * Equity Rule 34. S. C. 540; Gallagher v. Roberts, 1 Ud. ; Bank of U. S. w. White, 8 Wash. (C. C.) 320; Rowley r. Wil- Pet. 262. liams, 5 Wis. 151 ; Davison v. John- ^ Equity Rule 35. son, 1 C. E. Green (16 N. J. Eq.J 112. ' Hughes v. United States, 4 Wall. « Equity Rule 36. 232. CHAPTER XIII. WRITS OF ERROR AND APPEAL. § 294. Appellate jurisdiction of the Supreme Court. — The appel- late jurisdiction of the Supreme Court is the most extensive and important of its functions. The Revised Statutes provide that " all final judgments of any circuit court or any district court acting as a circuit court, in civil actions brought there by original process or removed there from courts of the several states, and all final judg- ments of any circuit court in civil actions removed there from any district court, by appeal or writ of error, where the matter in dis- pute, exclusive of costs, exceeds the sum or value of five thousand dollars, may be re-examined and reversed or aflSrmed in the Supreme Court upon a writ of error." ^ Besides this, it can on appeal, as we shall hereafter more particularly notice, review the decisions of the inferior federal courts in equity and admiralty cases ; and, in some special cases, without regard to the value of the matter in contro- versy ; and the final judgments of state courts may also be reviewed on writs of error.^ § 295. Writ of error ; final judgments. — It will be observed that the judgments that may be reviewed upon a writ of error are final ones. If a cause is not finally disposed of by the judgment of the circuit court, it is not such a final judgment as may be reviewed on error. Thus, an order of the circuit court to quash an execution;^ or a decision of the court upon a rule or motion;* or a judgment upon a demurrer to some parts of a replication, and a motion to strike out other parts, still leaving in the replication some essential allegations,^ are not such final judgments as can be reviewed by the Supreme Court on a writ of error. ^ * Rev. Stat. § 691, as amended by Brooks v. Hunt, 17 John. 484; Dos- the act of February 16, 1875, ch, 77, well v. De La Lanza, 20 How. 29 -, \ 3, 18 Stat. 316. Henderson v. Moore, 5 Cr. 12; Barr 2 Rev. Stat. II 692, 709, See also v. Gratz, 4 Wh. 220; Marine Ins. Co. post, \ 327. V. Hodgson, 6 Cr. 206. * McCargo v. Chapman, 20 How. * Holcombe v. McKusick, 20 How. 555 ; Boyle v. Zacherie, 6 Pet. 648 ; 552. Early v. Rogers, 16 How. 599. ® If a circuit court on motion dis- * Toland v. Sprague, 12 Pet. 300 ; miss a suit on the ground that it has 240 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The whole cause in the court below must be disposed of, as set- tled by the general practice in this country and by the King's Bench in England, or the writ will not lie ; and the cause cannot be sent up in fragments.^ So an order of the court, affirming the refusal of the court below to grant a new trial, is not a final judgment which can be reviewed in this court.^ Nor will a writ of error lie from a decision refusing a change of venue, or to postpone a trial. ^ But a final disposition of the whole case, and as to all the parties thereto, is a final judgment from which a writ of error or an appeal will lie ; and where the circuit court sustains a demurrer that de- termines the merits of the case and renders judgment thereon, this may be re-examined on a writ of error, without any formal bill of exceptions.* For forms in such cases, see post^ No. 236, et seq. § 296. All the parties must join in a -writ of error or appeal. — It is essential that all the parties against whom a joint judgment has been rendered should join in the application for a writ of error or in the appeal, unless sufficient cause be shown for the non-joinder.^ If one of two parties refuses to join in a writ of error, the other party may issue a writ of summons, by which the party refusing to join may be brought before the court ; and if he still refuses, an order or judgment of severance may be made by the court in which case the party desiring to prosecute a writ of error or appeal can do so alone. The effect of the judgment of severance is that the party refusing to proceed is barred from prosecuting the same right in another action, and the defendant in the writ of error cannot be harassed by a subsequent suit or proceeding for the same cause of action, by the party thus refusing to unite in the application for the writ, it being joint in its nature.^ no jurisdiction, a writ of error will Gorman v. Lenox, 15 Pet. 115; Suy- not lie to revise the judgment: In- dam v. Williamson, 20 How. 436. surance Co. v. Comstock, 16 Wall. * Williams v. Bank, 11 Wh. 414; 258; Kailroad Co. v. Wiawall, 23 Masterson i>. Herndon, 10 WalL 416 ; Wall. 507. Hampton v. Rouse, 13 Wall. 187 ; 1 United States w. Girault, 11 How. Simpson v. Greeley, 20 Wall. 162; 22 ; Peet v. McGraw, 21 Wend. 667. O'Dowd v. Russell, 14 Wall. 402. ' Simpson v. Greeley, 20 Wall. 152 ; Mussina v. Cavazos, 6 Wall. 355 ; Masterson v. Herndon, 10 Wall. 416 ; Williams v. Bank of the U. S., 11 ^ Sparrow v. Strong, 4 Wall. 584 Connor v. Peugh, 18 How. 394 Earley v. Rogers, 16 How. 599 Pomeroy v. State Bank, 1 Wall. 592 Steamboat Burns, 9 Wall. 237. Wh. 414 ; Todd v. Daniel, 16 Pet. Cook y. Burnley, 11 Wall. 659. 521; Wilson v. Insurance Co., 12 Rogers v. Burlington, 3 Wall. 654 ; SUPRKME COURT — APPELLATE JURISDICTION. 241 But there are cases where, although there are several parties de- fendant, one of them may hring a writ of error without joining the others. For example, where a suit was brought by the plaintifts against a defendant to recover a balance due for work and materials furnished in building a house, and to enforce a lien therefor against the house and the lot on which it was situated ; and several other parties who " had or claimed to have some interest, claim or lien on the incumbered premises," as stated in the petition or bill, were mad,e defendants ; but it was also claimed by the plaintifif in his said petition or bill that " their interest, claim or lien, if any, had accrued subsequently to that of plaintiifs ;" and it prayed for a per- sonal judgment only, against the party for whom the work and materials were furnished, and that the other defendants be barred and foreclosed of all right, claim, lien, etc., in, on and to the jiremises, and that the premises be decreed to be sold, etc., and a judgment was rendered against the defendant first above mentioned in personam^ for the debt, and a decree entered that the premises should be sold, etc., and to this judgment the latter sued out a writ of error, it was held by the Supreme Court that the judgment was of such a separate character as authorized him to ask to have it reviewed in the latter court, without joining with him his co- defendants in the court below. ^ § 297. Proper parties on the record. — A judgment will not be re- examined upon a writ of error unless there are proper parties to it. An inanimate object, like a vessel, has not the legal capacity to prosecute legal proceedings in the federal courts ; and hence it cannot prosecute a writ of error or appeal. But in proceedings in rem, if a person claims the thing or its proceeds, he becomes a party to the proceedings, and has all the rights in respect to a writ of error or an appeal that any other party has.^ § 298. Amount in controversy. — The provision of the statute under consideration limits the right to the writ to cases " where the matter in dispute, exclusive of costs, exceeds the sum or value of $5000."3 Pet. 140; Brooke's Abr. 238, tit. ^ Germain w. Mason, 12 Wall. 2&9. " Summons and Severance;" 2Rolle"s ^ Steamboat Burns, 9 Wall. 137. Abr., ifiY. same, 488 : Ai-ch. Civ. Plead. ^ Rev. Stat. I 691, as amended by 54 ; Tidd's Prac. 129, 1136, 1169; De- the act of February 16, 1875. neal v. Archer, 8 Pet. 526 ; Smyth v. Strader, 12 How. 327. 16 242 FEDERAL PLEADING, PRACTICE AND PROCEDURE. It is manifest that the judgment itself frequently determines the question as to the right so far as the value in controversy is con- cerned, as, for example, where it is against a defendant and it does not exceed ^5000, exclusive of costs. In such a case if he were to prosecute a writ of error the Supreme Court would have no juris- diction, although the claim of the plaintiff might exceed that sum.' Thus where the plaintiff claimed for the infringement of a patent more than the amount required to entitle him to a writ of error, but obtained a judgment for only $400, it was held on a writ of error by the defendant that the amount in controversy as to him was only $400, and that the court had no jurisdiction of the writ.^ If the judgment below is against the defendant, the amount of the judgment on general principles would fix the amount in contro- versy as to him, in the absence of a counter claim ; but if the judg- ment be less than $5000 for either party, and the plaintiff sues out the writ of error, this court has jurisdiction if the damages claimed in the declaration, less the amount of the judgment, exceed that sum.^ The matter in controversy is the amount at the time the judgment is rendered, and when the right to a review attaches ; hence the interest accruing thereafter cannot be added to the judgment in computing the amount in controversy.* The amount in dispute is usually found in the pleadings, but the court will not be confined to them in determining this question of the sufficiency of the matter in controversy, and it is sufficient to defeat the right review if it otherwise appears in the record.^ In an action upon a money demand where the general issue is pleaded, the value in dispute is the debt claimed and its amount stated in the body of the declaration, and not merely the damages claimed in the prayer for judgment at its conclusion ; and if the debt does not exceed $5000 the plaintiff is not entitled to a review on a writ of error, although the amount of damages claimed exceeds that sum.^ But if an action is brought to recover less than the juris- dictional amount required on a writ of error, and the defendant pleads a set-off or counter claim in excess of that amount in a state 1 Smith V. Honey, 3 Pet. 469. * Bank of U. S. v. Daniel, 12 Pet. ■^Gordon v. O^den, 3 Pet. 33 32 ; Smith y. Honey, 3 Pet. 469 ; Wal- (1830). See also Rodd «;. Heartt, 17 ker v. United States, 4 Wall. 163; Wall. 354 ; Clifton v. Sheldon, 23 Western Union Tel. Co., 93 U. S. 565. How. 481 ; Wise v. Turnpike Co., 7 ^ Gray v. Blanchard, 97 U. S. 564. Cr. 276. 6 Lee v. Watson, 1 Wall. 337 : * Walker v. United States, 4 Wall. Schacker v. Hartford Fire Ins. Co., 93 163 ; Gordon v. Ogden, 3 Pet. 33. U. S. 241. SUPREME COURT — APPELLATE JURISDICTION. 243 where he is entitled to a judgment for the excess of such a set-off or counter claim, if the judgment is against him he may sue out a writ of error.^ The amount of the matter in controversy must exceed $5000, or there would be no jurisdiction on a writ of error ; hence if it is precisely that amount, no Writ of error lies.^ And if the verdict is for more than $5000, and the party in whose favor it is rendered will enter a remittitur for the excess before the entry of a judgment on the verdict, this will defeat any right to the writ, as the amount of the matter in controversy at the time of the judgment entry would be less than the amount required.^ And if a judgment is for more than $5000, yet if the cause was tried on an agreed statement of facts in which the defendant admitted that he owed sufficient of the amount claimed to reduce the matter in dispute to less than that sum, no writ of error will lie.* The same general principles prevail where the value of the amount in controversy is an element of jurisdiction in all the various federal courts, whether at law or in equity, and whether on a writ of error or appeal.^ § 299. Where the matter in controversy is not susceptible of valuation. — The matter in controversy must be such as is capable of a pecuniary estimate of its value, otherwise there can be no appellate jurisdiction of the suit. Thus, for 'example, where the matter in dispute is the right to freedom;^ or the right to the cus- tody of a minor child ;^ or whether the defendant below is liable to imprisonment on execution process ;* or as to the right of guardian- ship of the persons and property of children, but not on account of any pecuniary value attached to the office,^ — there is in such cases no right of revision on writ of error or appeal, as there is no matter in dispute susceptible of a pecuniary valuation. But it has been held that a " mining claim" in Nevada may be * Ryan v. Bindley, 1 Wall. 66. contrary is shown : Troy v. Evans, ^ Walker u. United States, 4 Wall. 97 U. S. 1. If the value of the amount 163 ; Western Union Tel. Co. v. in controversy is precisely $5UUU, no Rogers, 93 U. S. 565. writ of error lies: Western Union » Thompson v. Butler, 95 U. S. 694. Tel. Co. v. Rogers, 93 U. S. 565. * Tinstman v. First Nat. Bk., 100 « Lee v. Lee, 8 Pet. 44. U. S. 6. ' Barry v. Mercein, 5 How. 103. * See ante, ch. 8; also Yzanga Del * Pratt v. Fitzhugh, 1 Blatch. 271. Valie V. Harrison, 93 U. S. 233 ; Cook » De Kraft v. Barney, 2 Black 704 ; V. United States, 2 Wall. 518. The Ritchie v. Manro, 2 Pet. 243. A writ judgment against the defendant is of error will not lie to a refusal to set prima facie the amount in contro- aside a judgment on motion : Connor versy, and this continues until the v. Peugli, 18 How. 394. 244 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the subject of a controversy, and of value in money, even though the land on which the claim exists has never been surveyed and brought into market ; and if it appears that it is of the requisite value, the Supreme Court will take cognizance of the case upon a writ of error or appeal.' It is not sufficient, as we have noticed, that the value of the matter in dispute is precisely five thousand dollars, but it must exceed that sum to give this court jurisdiction ; and where the judg- ment is for that amount in favor of the plaintiflf, and the defendant prosecutes in error, the amount in controversy is fixed by the judg- ment, and this court has no jurisdiction.^ § 300. Value a jurisdictional fact ; consent cannot confer jurisdic- ^jjjn — It is evident that the value of the matter in dispute is an essential jurisdictional fact, and this court will not take cognizance of a writ of error or appeal unless it be made in some manner to appear that it is of the value fixed by the statute. And it is a ffeneral doctrine of the federal courts that consent cannot confer jurisdiction in respect to the value of the amount in controversy.^ The statute carefully restricts the appellate jurisdiction of this court, and where this is wanting, or is not made to appear from the record, it will not examine into the questions presented in a case by the consent of parties or on the request of counsel.^ § 301. Where the value of the matter in controversy does not appear on the record. — In some cases it is not essential that the value of the matter in controversy be stated in the declaration or other pleading; as for instance in cases of replevin, and of pro- ceedings for a writ of mandamus, and in suits in ejectment and for dower. On a writ of error or appeal in such cases, the practice is to allow affidavits in the Supreme Court to show the value of the matter in the controversy.^ But this will not be allowed on appeal 1 Sparrow v. Strong, 3 Wall. 97. * Mills v. Brown, 16 Pet. 525 ; The "^ Walker v. United States, 4 Wall. Lucy, 8 Wall. 307 ; The Nonesuch, 9 163: Knapp w. Banks, 2 How. 73; Wall. 504; Pennsylvania v. Quick- Smith V. Honey, 3 Pet. 469 ; Gordon silver Co., 10 Wall. 558 ; Railway V Ogden, Id. 33. Company v. Ramsey, 22 Wall. 322 ; ^' Kelsey v. Forsyth, 21 How. 85 ; Walker v. Taylor, 5 How. 64. Guilds. Frontin, 18 How. 135; Suy- ^ Rush v. Parker, 5 Cr. 287; Ex da,m V. Williamson, 20 How. 428; parte Bradstreet, 7 Pet. 634; Course Sampson v. Welsh, 24 How. 207. But v. Steadman, 4 Dall. 22. See also see Arthurs v. Hart, 17 How. 6 ; Peyton v. Robertson, 9 Wh. 527 ; Shankland v. Washington, 5 Pet. 390 ; Cooke v. Woodrow, 4 Cr. 13. Railroad Co. v. Ramsey, 22 Wall. 322. SUPREME COURT — APPELLATE JURISDICTION. 245 after the cause has been dismissed for want of jurisdiction apparent upon the record.^ The same practice prevails in admiralty cases ; and where it does not appear from the record in those cases what the value of the interest of the appellant is, he will be permitted in this court to make proof that his interest exceeds the jurisdic- tional sum, and allowed time therefor.^ § 302. When the value stated in the pleading is conclusive. — - Where the declaration or bill states the value of the property or interest in controversy, this is held to be conclusive of that fact, and affidavits will not, generally, be received to show the property or interest of more value.' Where there was a claim on a fund in the registry of the admiralty of several mortgages secured by one mortgage, and the fund exceeded the jurisdictional amount, it was held that an appeal would lie to this court by the mortgagees in a body, though the claim of no one of them exceeded that sum.* But where a decree was made by the circuit court sitting in admiralty that two persons should pay a certain amount of freight in different sums, neither of which amounted to the sum that gave the right of appeal, though the sums decreed to be paid by both exceeded that amount, the court, on appeal by one of the parties, held that it must be dismissed for want of jurisdiction, as the rights of the two were distinct and independent, and that if the freight was a joint mat- ter, both should have joined in the appeal.^ So where, in proceed- ings under libels in admiralty, for seamen's wages, the circuit court adjudged that there was due the libellants over $32,000 from the respondents, and a separate decree was entered for the amount due each libellant respectively, but none of the sums thus decreed amounted to the jurisdictional sum required for an appeal, and from these separate decrees the respondents in the circuit court prayed an appeal to this court, and gave a separate appeal bond upon the appeal from each, as well as a joint appeal from the whole, the appeal was dismissed, upon the ground that the sum in controversy in each case was less than the amount required to confer jurisdiction on this court.* ^ Richmond v. Milwaukee, 21 How. Bank of Alexandria v. Hooff, 7 Pet. 391. 168. 2 The Grace Girdler, 6 Wall. 441 ; * Rodd v. Heartt, 17 Wall. 354. Richmond v. Milwaukee, supra. ^ Clifton v. Sheldon, 23 How. 481. ^ Richmond v. Milwaukee, 21 How.. ^ Oliver v. Alexander, 6 Pet. 143. 391 : Brown v. Shannon, 20 How. 55 ; 246 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The same doctrine applies in proceedings bj a libel, for salvage, and in proceedings in rem generally. When separate claims are interposed for salvage, although the libel is joint against the whole property, each claim is treated as a separate and distinct proceeding. In form it is joint, but in its nature and effect it is a several suit of each claimant, upon which there may be a separate and independent hearing and decree. It follows therefore, in such cases, that to entitle the claimants to an appeal there must be the jurisdictional amount required as to each of the claimants.^ § 303. Appeals in equity and admiralty cases. — The Statutes pro- vide for an appeal in equity cases as follows : "An appeal shall be allowed to the Supreme Court from all final decrees of any circuit court or of any district court, in cases of equity and of admiralty and maritime jurisdiction, where the matter in dispute, exclusive of costs, exceeds the sum or value of [five] thousand dollars, and the Supreme Court is required to receive, hear and determine such appeals."^ It will be observed that the sum or value of the matter in contro- versy is the same as in case of writs of error, and that the amount in controversy is an essential element of jurisdiction on an appeal. The decisions on this question which we have cited in presenting the jurisdiction of this court on a writ of error would be equally appli- cable in cases of appeals from the decisions of the circuit courts, and the district courts acting as circuit courts, in cases of equity, and of admiralty and maritime jurisdiction. An appeal can only be taken in the mode prescribed and under the circumstances provided for by the statute. The conditions required by the statute must exist, or the Supreme Court will have no jurisdiction ; as even the agreement or consent of parties will not confer it. Its appellate power is regulated and limited by the statute.^ § 304. Final decrees. — An appeal from a decree of the circuit or district court, in cases of equity and of admiralty and maritime juris- ^ Stratton v. Jarvis, 8 Pet. 4. 338 ; Sampson v. "Welsh, 24 How. 207. "^ Rev. Stat. | 692, as amended by See also, as to right to appeal in case the act of Feb. 16, 1875, ch. 77, ^ 3, of intervention and other special cases, 18 Stat. 316. Sail v. Central R. Co., 93 U. S. 412 ; * Gruner w. United States, 11 How. iJx ;9aHe Jordan, 94 U. S. 248; Ex 163 ; The Lucy, 8 Wall. 307 ; The i)arte Railroad Co., 95 U. S. 221 ; Day Nonesuch, 9 Wall. 505 ; The Alicia, v. Washburn, 23 How. 309. 7 Wall. 572 ; Merrill v. Petty, 16 Wall. SUPUEME COURT — APPELLATE JURISDICTION. 247 diction, can only be taken from a final decree.^ But a decree by con- sent is a final one, from which an appeal may be taken. ^ It is mani- fest that any decree of a circuit court, or of the district court acting as a circuit court, which settles all the legal rights of the parties in a cause within the pleadings, and determines the whole matter in controversy, is final, and an appeal may be taken therefrom.^ One who was not a party to the original proceeding cannot appeal unless he shows that he has been admitted as a party by the express order of the court, or has been treated as a party to the record.* § 305. Illustration. — Where a decree in admiralty was made that a sum of money was due, without ascertaining the amount of money or decreeing its payment, it was held that this was not a final decree, and the appeal therefrom was dismissed on that account.^ But a decree setting aside certain deeds as fraudulent and void ; that certain lands and personal property should be delivered to com- plainant ; and that an account of profits should be taken ; and further providing that the bill be retained for certain matters referred to a master for a report, and that as to other matters it be dismissed without prejudice, was held to be a final decree within the meaning of the statute.^ And a decree deciding the right to property in controversy and directing it to be delivered by the defendant to the complainant, and providing for its immediate execution, but leaving some accounts to be adjusted in pursuance of the decree, was held to be a final decree within the statute.^ § 306. What decrees are not final. — If the decree does not settle the rights of the parties to the controversy, nor substantially deter- mine the rights of the parties under the pleadings, it is not a final one from which an appeal can be taken. Thus, no appeal can be taken from a decree for costs alone ; ^ or from an order refusing to permit a person to intervene ; ^ or from a decree of the circuit » McCollum V. Eacrer, 2 How. 61; * Ex parte Cuttina:, 94 U. S. 14; Beebe v. Russell, 19 Id. 283; Craw- Saije v. Central R. Co., 93 Id. 412; ford V. Points, 13 Id. 11 ; Craighead Ex parte J or dun, 94 Id. 248. i>. Willson, 18 Id. 190. ^ Montgomery w. Anderson, 21 How. ^ Pacific Railroad v. Ketchum. 101 386. U. S. 289. ■ « Forgay v. Conrad, 6 How. 201. ' Crosby v. Buchanan, 23 Wall. 420 ; See also Michoud v. Girod, 4 Id. 503 ; Beebe». Russell, 19 How. 283; French Whiting v. Bank of U. S., 13 Pet. V. Shoemaker, 12 Wall. 86 ; Thompson 15. V. Deem, 7 Id. 343 ; Marin v. Lalley, ' Thompson v. Dean, 7 Wall. 342. 17 Id. 14; Butterfield v. Usher, 91 U. ^ Elasti* Fabric Co. v. Smith, 100 S. 246; Sage v. Railroad Co., 96 Id. U. S. 110. 712; Fuller w. Claflin, 92 Id. 14. » Ex parte Cutting, 94 U. S. 14. 248 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court, affirming a decree of the district court, enjoining proceedings under a treasury warrant of distress ; ^ or from an order of the circuit court refusing to release a party on a writ of habeas corpus ;^ or from an order disbarring an attorney;^ or from an entry of a decree merely in pursuance of a mandate;^ or from a decree directing a defendani to execute a conveyance of certain property, and referring the case to a master to take an account of the rents and profits;^ or from a decree declaring an assignment for the benefit of creditors void, and referring the cause to a master ta take an account of the property ; ® or from a decree for the sale of property to enforce a lien, which does not ascertain the property nor the amount of the debt;^ or from a decree dissolving an injunction without dismissing the bill;^ or from an order refusing to set aside a decree;^ or from a decision upon an application to set aside a decree and permit a party to except to a master's report;^" or from an order refusing to grant a rehearing;" gr from a decree either maintaining or dismissing a cross-bill;'^ or from a decree upon a cross-bill made before the final decree upon the original bill.'^ § 307. Decisions illustrating the subject. — Where a case in admi- ralty is appealed from the district to the circuit court, the latter pro- ceeds de novo, as though no trial had been had in the district court, and a new decree is made. Hence the circuit court should not make an order affirming the decree of the district court, and if such an order is made in such a case, it is not a final decree from which an appeal lies to this court.'* Nor does an appeal lie from a decision upon a motion made to dissolve an injunction.'^ Nor does it lie from the decision of the circuit court, in the exercise of its revisory powers, over the decisions of registers in bankruptcy relating to 1 United States v. Nourse, 6 Pet. 470. » Brockett v. Broekett, 2 How. 238 : '^ In re Philip Henrich, 5 Blatch. Wvlie v. Ooxo, 14 Id. 1 ; McMickin 414. V. Perin, 18 Id. 507. ^ Ex parte Robinson, 19 Wall. 513. ^^ Torry v. Commercial Bank, 92 U. * United States iJ. Fremont, 18 How. S. 454. 30; Corning v. Troy Iron, etc., Fac- " Canibuston v. United States, 95 tory, 15 Id. 451 ; United States v. U. S. 285. Fossalt, 21 Id. 445. ^^ Ayers v. Carver, 17 How. 591. ° Beebe v. Russell, 19 How. 283. ^^ Ex parte Railroad Co., 95 U. S. « Pullian V. Christian, 6 How. 209. 221 . ■' Railroad Co. v. Swasey, 23 Wall. " The Lucille, 19 Wall. 73. 405. ^^ Colluni V. Eager, 2 How. 61 ; Ver- * Hiriat v. Ballou, 9 Pet. 156; den y. Coleman, 18 How. 86; Gibbons Thomas v. Wooldridge, 23 Wall. 283. v. Ogden, 6 Wh. 448. SUPREME COURT — APPELLATE JURISDICTION. 249 the adjustment of priorities of creditors and conflicting interests in a bankrupt's estates, taken on appeal to the circuit court, under the provisions of the late Bankrupt Act.' We have observed that on appeal from the district court in admi- ralty to the circuit court,^ that court must render a judgment as though the suit had been instituted in that court. The same is true in case of appeals from the decisions of the district court sitting in equity, or where the circuit court reviews the decision of a district court on the law side of it by a writ of error. ^ Hence, where there was a decree in the circuit court reversing a decree for the foreclos- ure of a mortgage in the district court, and remanding the case to the latter court, this was held not a final decree, from which an appeal could be taken to this court.^ But where an order was made for the sale of real estate, and afterwards a decree was made confirming the sale, it was held that an appeal lay from this final decree.^ Where there was a decree in chancery in the circuit court, in which there was a reference to a master to ascertain the amount of damages sustained by the plaintiff for an infringement of a patent right by the defendant, and the decree perpetually enjoined the fur- ther use of it by the defendant, but did not decree the payment of costs, they and all other questions in the cause being reserved until the coming in of the report of the referee, it was held that this was not a final decree from which an appeal would lie to this court.® The decree must be filed in order to give jurisdiction on appeal. Therefore where a decree was made in admiralty that a sum of money was due, but the amount was not determined at the time of the appeal and no order made for its payment, it was held on appeal that this was not a final decree from which an appeal could be taken, and that it could not be cured by any amendment in the Supreme Court.'^ But where a decree decided the rights of litigants 1 Hallu. Allen, 12 Wall. 452. 712; Butterfield v. Usher, 91 U. S. ' See section 631 of the R< v. Stat. 247 ^ See section 632 of the Rev. Stat. * Bernard v. Gibson, 7 How. 650. ■* Moore v. Robins, 18 Wall. "588; Suits at law can only be broujj;ht to Davis «. Crouch, 94 U. S. 514. See the Supreme Court by a writ of error, and not by appeal : Sarchet v. United States, 12 Pet. 143 ; Parish v. Elfis, 16 Pet. 451 ; United States v. Good- Pepper V. Dunlap, 5 How. 51 ; Tracy win, 7 Cr. 108. f. Holcomb, 24 How. 426. ' Montgomery^. Anderson, 21 How. ^ Sage V. Railroad Co., 96 U. S. 336. also Zeller v. Switzer, 91 U. S. 487 Parcels v. Johnson, 20 Wall. 653 Brown v. Union Bk., 4 How. 465 250 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to the property in controversy, and entitled the complainant to have it carried into execution, but left certain accounts to be adjusted between the parties in pursuance of the decree, this was held to be appealable.^ So a decree entered at chambers for the foreclosure of a mortgage and a sale of the mortgaged property pursuant to a power contained in a mortgage importing a confession of judgment on non-payment, and under a proceeding in Louisiana called " exec- utory process," was held to be a final decree and appealable.^ So where a decree was made setting aside certain deeds as fraudulent and void, and that certain lands and slaves be delivered up to the complainant, and that the master should take and report an account of the rents and profits of the lands and slaves and of certain money and notes, retaining the bill for this latter purpose, this was held to be a final decree from which an appeal could be taken, as the determination of the question of title to the land and slaves was a final one within the meaning of the statute.^ But appeals cannot be taken from merely interlocutory orders;* or from the decision of a court as to the terms on which an amend- ment will be allowed on sustaining a demurrer to a bill;^ or from the decision of a court adjusting priorities and conflicting interests in a bankrupt's estate ; ^ or from a decree reversing a decree in the court below for the foreclosure of a mortgage and remanding the cause back for a new trial.'^ Where there is an appeal from the district to the circuit court in an admiralty case the decree of the former is practically vacated, and the proceeding in the later is de novo, as though no trial had been in the district court, and a new decree should be made. Therefore a decree of the circuit court in such a case merely affirm- ing the decree of the district court is not such a decree as should be rendered, and an appeal therefrom cannot be taken.^ But an 1 Thompson v. Dean, 7 Wall. 342. ^ Forgay v. Conrad, 6 How. 201. But a decree awarding a permanent * Forgay v. Conrad, 6 How. 201. injunction to restrain infringements of See also ^x parte Cutting, 94 U. S. a patent, and for an account and a 14. reference to a master to take and state ^ Sheets v. Seldon, 7 Wall. 416. the same and report thereon, was held * Hall v. Allen, 1 2 Wall. 452 ; Mor- not to be appealable: Humiston v. gan v. Thornhill, 11 Wall. 65; Mead Stanthorp, 2 Wall. 106; Bernard v. v. Thompson, 15 Wall. 635. Gibson, 7 How. 650. ' Moore v. Robbins, 18 Wall. 588; 2 Marin v. Lalley, 17 Wall. 14. See Tracy v. Holcomb, 24 How. 426 ; also Bronson v. Railroad Company, Brown v. Union Bank, 4 How. 465. 2 Black 524 ; Whiting v. Bank of tl. » ^he Lucille, 19 Wall. 73. See S., 13 Pet. 15. ante, I 307. SUPREME COURT — APPELLATE JURISDICTION. 251 appeal will lie from a decree of the circuit court confirming a sale made by its previous order, and which disposes of the whole matter of the suit.^ § 308. Time for review limited. — The time within which a writ of error may be prosecuted or an appeal taken in a civil action at law or in equity is limited to two years after the entry of the judgment, decree or order, except where the party entitled to prosecute a writ of error or to take an appeal is an infant, or insane, or imprisoned, in which case the writ may be prosecuted or the appeal taken within two years after the judgment, decree or order is entered, exclusive of the term of such disability.^ The writ of error must be brought or the appeal taken within two years, except in the cases above stated; and a writ of error is not brought, within the meaning of the statute, until it is filed in the court where the judg- ment, decree or order was entered. It is not sufficient that the writ is tested or issued within the time limited, but all the steps necessary for the perfecting of the right to a writ or an appeal, on the part of the party desiring a review of the decision, must be taken.^ The lan- guage of the section of the Revised Statutes just cited is that "no judgment, decree or order of a circuit or district court in any civil action at law or in equity shall be reviewed in the Supreme Court on writ of error or appeal, unless the writ of error is brought or the appeal taken within two years after the entry of such judgment, decree or order," etc. The entry of a "judgment, decree or order" here referred to has been construed to mean such a one as substantially disposes of the whole case, and not a mere preliminary, discretionary or incidental judgment, or an interlocutory order or decree, which does not thus dispose of the matter in controversy.* § 309. "Want of jurisdiction apparent of record. — If it is apparent on the record that this court has no jurisdiction of an appeal, it will dismiss it without any motion for that purpose, and even if both parties should oppose it ; ^ and in such a case an appellant may of ' Sao;e v. Railroad Company, 96 U. durinc; its continuance: The Protect- S. 712; Blossom v. Railroad Com- or, 9 Wall. 687. pany, 1 Wall. 655 ; Butterfield v. * Forgay v. Conrad, 6 How, 201 ; Usher, 91 U. S. 246. Whitney v. Bank of U. S., 13 Pet. 15 ; ^ Rev. Stat. § 1U08. Michoud v. Girod, 4 How. 503. 'Brooks V. Norris, 11 How. 204, * See a?i^e, ^ 358 ; Gruner j;. United Objection may be taken by motion: States, 11 How. 163; Sampson v. Id. A rebellion in the state where Welsh, 24 How. 207; The Lucy, 8 the court sits suspends the limitations Wall. 307 ; Merrill v. Petty, 16 Wall. 338, 252 FEDERAL PLEADING, PRACTICE AND PROCEDURE. course have it dismissed on motion therefor, even though it be resisted by the appellee.^ And where the Supreme Court has once reviewed a case, and a mandate has been issued and a judgment entered in the circuit court in accordance with such mandate, an appeal therefrom will be dismissed with costs, on motion of the appellee, as a matter of course.^ If an appeal has been once dis- missed, it cannot be redocketed without a new appeal;^ and if an appeal is not allowed in open court at the term at which it was rendered, it will be dismissed, where no citation has been issued and the appellee does not appear.* § 310. Right of the appellant to dismiss an appeal. — An appellant has the right to dismiss his appeal, and this right could be exercised at any time before the submission of the cause, unless the adverse party should also appeal ; and even though resisted by the other side.^ § 311. -When dismissed of course. — If an appeal is not allowed in open court at the term at which the decree was rendered, and no citation has been issued, the appeal will be dismissed, even though the appellee does not appear;^ and the appeal from a decree of the circuit court entered in accordance with a mandate of this court will of course be dismissed on motion of the appellee, as the matter, having once been determined by the court, could not be reheard and redetermined in this way/ § 312. Revie-w of decisions on certificate of division. — IhlS court has further power to review the final judgments or decrees of the circuit courts in any civil suit or proceeding before them which was held by a circuit justice and a circuit judge or a district judge, wherein the said judges certify, as provided by law, that their opinions were opposed upon any question which occurred on the trial of said suit or proceeding. In such a case the judgment or decree may be affirmed, reversed or modified by the Supreme Court, on writ of error or appeal, according to the nature of the case, and subject to such provisions of the law as are applicable in other cases of writs of error or appeals, in regard to bail and supersedeas.^ 1 Latham's Appeal, 9 Wall. 145. ' Stewart v. Salamon, 97 U. S. 361. ^ Stewarts. Salamon, 97 U. S. 361. A cause dismissed under a rule of ^ Rogers v. Law, 21 How. 526. court cannot, at a subsequent term, * Vansant v. Gaslight Co., 99 U. S. be redocketed without a new appeal : 213. Rogers v. Law, 21 How. 526. » Latham's Appeal, 9 Wall. 145. » Rev. Stat. ? 693. See also Rev. « Vansant v. Gaslight Co., 99 U. S. Stat, g 652. 213. SUPREME COURT — APPELLATE JURISDICTION. 253 It is further provided : " When any question occurs on the hear- ing or trial of any criminal proceeding before a circuit court, upon which the judges are divided in opinion, and the point upon which they disagree is certified to the Supreme Court according to law, such point shall be finally decided by the Supreme Court ; and its decision and order in the premises shall be remitted to such circuit court, and there entered of record, and shall have effect according to the nature of the said judgment and order." ^ It is further provided in such cases that imprisonment shall not be allowed or punishment inflicted where the judges are divided in opinion upon the question touching the imprisonment or punish- ment.^ This would, of course, be limited to the time when this court should determine the question. § 313. The specific point of law must be stated. — By section 652 of the Revised Statutes, relating to the same subject in civil cases, it is provided that where "any question has occurred upon which the opinions of the judges were opposed, the point upon which they so disagreed shall, during the same term, be stated under the direction of the judges and certified, and such certificate shall be entered of record." Under the provisions of these sections it has been held neces- sary to state the particular point of disagreement. It is not suf- ficient to certify that the judges were divided in opinion as to which party was entitled to a decree;^ nor that they disagreed pro fortna in order to take the opinion of this court ;^ but there must be an actual division of opinion upon a question of law duly certified. It must arise during the trial of a cause, and not be a mere incidental or collateral question arising after the judgment or decree.^ This court will not, as a general rule, consider several questions that arose at different stages of the trial and relate to independent points.® But where the several questions require an opinion virtually and substantially on one point, and this is shown by the questions pre- ' Rev. Stat. § 697. ^ Daniels v. Kailroad Company, 3 ^ Rev. Stat. I 651. Wall. 250. ■' Sadler v. Hover, 7 How. 646 ; « United States v. Bailey, 9 Pet. 267 ; Wolf V. Usher, 3 Pet. 269. Nesmith v. Sheldon, 6 How. 43 ; White * Webster y. Cooper, 10 How. 54 ; v. Turk, 12 Pet. 238; United States Nesmith v. Sheldon, 6 How. 41; v. Stone, 14 Pet. 524; Saunders v. United States w. Stone, 14 Pet. 524. Gould, 4 Pet. 392 ; Grant ». Raymond, But see an exception, Jones v. Van 6 Pet. 218. Zant, 5 How. 224. 254 FEDERAL PLEADING, PRACTICE AND PROCEDURE. sented, and the decision of this one may dispose of all of them, this court will decide the point.' If a certificate of division is brought to this court, only the points certified are before the court ; and the cause may be pro- ceeded with in the circuit court, in its discretion, as though no certificate had been sent up ;^ and the determination of the question here does not affect the right to bring up the case by appeal or writ of error, after the case has been determined in the court below. ^ § 314. The question must be one of la'wr and not of discretion. — The particular points of difference in opinion should be clearly and distinctly presented, and these must involve questions of law and not of fact,* and not matters which rest solely in the discretion of the court below ;^ and the authority of the Supreme Court in such cases is strictly limited to the precise questions thus presented.^ But the court will, as we have noticed, entertain jurisdiction even where the division of opinion arises on a preliminary motion, if it involves the merits of the case, and several questions may be certified up if they involve substantially one point and arose at one time.'' But it is otherwise if they arose at diflferent stages of the trial and relate to independent matters. And the court will not take cognizance of a cause upon a certificate of division where the whole case has been sent up for the opinion of this court.^ Appro- priate forms for certificates of division in criminal cases may be found post, No. 195 ; in civil cases, No. 259. § 315. Certificate of division in criminal cases. — The same general principles of construction are applicable in cases of certificates of disagreement in criminal cases, under section G97 of the Revised Statutes, as under section 693 in civil cases. In such cases this court will not act upon a certificate of division ^ United States v. Chicago, 7 How. Smith v. Vaughn, 10 Pet. 366 ; Packer 185-, Leland v. Wilkinson, 10 Pet. f. Nixon, 10 Pet. 411 ; Davis j;. Bra- 294. den, 10 Pet. 288. ^Kennedy v. Bank of Georgia. 8 *Ward v. Chamberlain, 2 Black How. 5S6. ' 430. ^ Ogle V. Lee, 2 Cr. 33 ; United "> United States v. City of Chicago, States V. Stone, 12 Pet. 524. 7 How. 185; Leland v. Wilkinson, 10 * Dennistoun v. Stewart, 17 How. Pet. 294. 565; Kennedy u. Bank, 8 How. 610; * United States v. Bailey, 9 Pet. United States «. City Bank, 19 How. 267; White v. Turk, 12 Pet. 238; 385 ; Daniels v. Railroad Company, 3 United States v. Stone, 14 Pet. 524 ; Wall. 250; Silliman v. Hudson River Saunders v. Gould, 4 Pet. 392; Grant Company, 1 Black 582. v. Raymond, 6 Pet. 218; Nesmith v. ^Wiggins V. Gray, 24 How. 303; Sheldon, 6 How. 43. SUPREME COURT APPELLATE JURISDICTION. 255 on a motion for a new trial, ^ or to quash an indictment,' or to dis- miss the prosecution for want of jurisdiction of the court,^ or on a demurrer containing several grounds of objection,* or on a motion to instruct the jury, that the evidence did not conduce to establish the offence under which the indictment was framed, where the whole case is transferred to this court. ^ The reason for the rule in the latter case will be manifest when it is considered that this court, in such a case, would be called to pass upon the law and the facts of the case ; and if against the prisoner it might be brought again to this court on a writ of error, for a reconsideration of the same question. But on a point relat- ing to a motion in arrest of judgment, this court will take juris- diction of a certified division of opinion, as it is a question arising during the trial.* For form of certificates of division, see post, Nos. 195, 259. § 316. When the Supreme Courtis divided in opinion. — If there are questions duly certified to this, court on a division of opinion of the judges of a circuit court, and the judges of this court are also divided in opinion upon the questions presented, the case will be remitted to the circuit court for such further action as may be required by law and the rules of such court. If there are several questions, and one of them relates to the jurisdiction of the court below, this will be first determined ; for if determined against its jurisdiction, it would dispose of the others. If a cause is remitted in such a case it is the established rule for the court below to dis- miss the cause, and a decree or judgment to that effect should be entered, so that the aggrieved parties may, if they desire, bring the questions to this court for review, by appeal or writ of error, as the case may require.^ § 317. Appeals in prize causes. — It is provided by section 695 of the Revised Statutes as follows : " An appeal shall be allowed to ^ United States v. Daniel, 6 Wh. 542. ' Silliman v. Hudson River Bridge * United States v. Rosenbur;ih, 7 Co., 1 Black 582; Hannaur d. Wood- WaH. 580; United States v. Wilson, ruff, 10 Wall. 482. The jurisdiction 7 Pet. 150; United States w. Reid, 12 in such cases is not limited by the How. 361. amount in controversy : Dow v. John- » United States v. Avery, 13 Wall, son, 100 U. S. 158. A division of 251. opinion between a judge, associate * United States v. Brig^s, 5 How. justice and a circuit judge may be 208 ; United States v. Bradley, 9 Pet. taken up on a certificate of division 267. of opinion : Insurance Co. v, Dunham, * United States v. Bailey, supra. 11 Wall. 1 ; Weyauwega v. Ayling, « United States o. Tyler, 7 Cr. 284. 99 U. S. 112. 266 FEDERAL PLEADING, PRAmCE AND PROCEDURE. the Supreme Court from all final decrees of any district court in prize causes, where the matter in dispute, exclusive of costs, exceeds the sum or value of five thousand dollars, and shall be allowed Avithout reference to the value of the matter in- dispute on the cer- tificate of the district judge that the adjudication involves a question of general importance. And the Supreme Court shall hear and determine such appeals, and shall always be open for the entry thereof." We have seen that under the preceding provisions of the statutes for allowing writs of error and appeals the decision must be final and dispose of the whole matter so far as the appellant is con- cerned.^ Where the United States filed several libels for condem- nation, as prize of war, of a large quantity of cotton and other captured property, and on motion these were consolidated and various claims were interposed in the consolidated suit for portions of the libelled property, among which was one by parties who de- nied the validity of the capture and insisted on the title and the right to a portion of the cotton, but upon the hearing in the district court an order was made dismissing the claims with costs, and the claimants appealed therefrom, it was held, upon a motion to dismiss the appeal in this court on the ground that the decree was not final, that, so far as these appellants and the United States were con- cerned, it was a final judgment, leaving nothing to be litigated be- tween them, and that the court had jurisdiction thereof.^ § 318. Time of appeal in prize cases. — In prize cases the time for appeals is more limited. The statute provides in such cases as follows : " Appeals in prize causes shall be made within thirty days after the rendering of the decree appealed from, unless the court previously extends the time, for cause shown in the particular case ; 2^rovided, that the Supreme Court may, if in its judgment the purposes of justice require it, allow an appeal in any prize cause, if it appears that any notice of appeal, or intention to appeal, was filed with the clerk of the district court within thirty days next after the rendition of the final decree therein."^ ' See ante, ?| 295, 304. Id. 91. A technical objection will not '■' Withenbury v. United States. 5 be entertained in this court, where it Wall. 819; The Admiral, 3 Id. (5U3. is not raised in the court below: Where this court will remand a cause Jecker v. Montgomery, 18 How. 111. t^) the district court, see United States ^ Rev. Stat. § 1009 ; The Neustra r. Weed, 6 Wall. 62; The Watchful, Senora de Regla, 17 Wall. 29. SUPREME COURT — APPELLATE JURISDICTION. 257 The statute further provides that " appeals from the circuit courts, and district courts acting as circuit courts, and from district courts in prize causes, shall be subject to the same rules, regulations and restrictions as are or may be prescribed in law in cases of writs of error."' § 319. Appeals cannot be taken in the name of a steamboat or a partnership. — An appeal must be taken in the name of some person. An inanimate object, like a steamboat or other vessel, has no capacity to prosecute legal proceedings or to take an appeal, even where the proceedings are in admiralty and in rem? Nor can an appeal be taken in a partnership name where the record does not set forth the names of the parties to it. The doc- trine is the same in this respect whether the proceeding is by writ of error or appeal, or in equity, admiralty or prize cases. In all these cases the names of the individual parties to the suit or pro- ceeding must be stated, and where the interest is joint, as we have already seen, all those on the same side must join in the appeal. Where in admiralty the appeal was taken by and in the name of "William A. Freeborn & Co.," this court, on motion to dismiss for want of jurisdiction, sustained the motion and refused to allow the appellant to amend the petition of appeal, citation, bond or the libel.^ So where, in a writ of error, the parties were described as Holliday et al. v. Boston et al., the same rule was applied.* § 320. Writs of error and appeals, •without reference to amount. — Section 699 of the Revised Statutes provides : "A writ of error may be allowed to review any final judgment at law, and an appeal shall be allowed from any final decree in equity hereinafter men- tioned, without regard to the sum or value in dispute : " First. Any final judgment at law or final decree in equity of any circuit court, or of the supreme court of the District of Columbia,, or of any territory, in any case touching patent rights or copy- rights. ^^S^cotid. Any £nal judgment of a circuit court, or of any district 1 Rev. Stat. ^ 1012; Yeaton v. Williams, 22 How. 87 ; Williams z?. Lenox, 7 Pet. 220 ; The Protector, 11 Bank, 11 Wh. 414. Wall. 82. * Holliday v. Boston, 4 How. 645, ^ Steamboat Burns, 9 Wall. 237. See also Deneale v. Stump, 8 Pet. 526 ; 3 The Protector, 11 Wall. 82. See Wilson v. The Life and Trust Ins. Co.. also Smith v. Clark, 12 How. 21; 12 Pet. 140; Davenport v. Fletcher, Owings V. Kincannon, 7 Pet. 399; 16 How. 142. Porter w. Foley, 21 How. 393 ; Hodge v. 17 258 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court acting as a circuit court, in any civil action brought by the United States for the enforcement of any revenue law thereof. " Third. Any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action against any officer of the revenue for any act done by him in the performance of his official duty, or for the recovery of any money exacted by or paid to him which shall have been paid into the treasury. ^^ Fourth. Any final judgment at law or final decree in equity of any circuit court, or of any district court acting as a circuit court, in any case brought on account of the deprivation of any right, ■privilege or immmiity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States. ^^ Fifth. Any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action brought by any person on account of injury to his person or property by any act done in furtherance of any conspiracy mentioned in section 1980, title 'Civil Rights.' "Suits under this provision are reviewable by the Supreme Court under the same conditions and regulations as are now provided by law for the review of other causes in said court." ^ § 321. Cases not embraced in this statute. — The first clause of the foregoing section does not cover the case of a bill in equity to enforce the specific performance of a contract between parties relating to a patent right or a copy-right. And where the suit is brought to restrain the fraudulent violation of such a contract, this court has no appellate power under the provisions of said clause, and cannot entertain jurisdiction of a writ of error- or appeal in such a case unless it is made to appear that the matter in contro- versy exceeds five thousand dollars.^ So the second clause of said section was held not to embrace an action brought against a collector of a port of entry to recover back, duties alleged to have been illegally exacted by him and paicf under protest.^ Such a case is not within the letter of this clause, which provides only for a review of final judgments in civil actions brought ' Act of March 1, 1875, oh. 114, I 5, clause relates only to cases which in- 18 Stat. 337. volve a construction of the patent ^ Brown v. Shannon, 20 How. 55. laws and the righfe of patentees under See also Wilson v. Sandford, 10 Id. 99 ; them : Sizer v. Many, 16 How. 98. Philip V. Nock, 13 Wall. 185. This » Mason v. Gamble, 21 How. 390. SUPREME COURT — APPELLATE JURISDICTION. 259 by the United States. If the suit is brought to enforce the revenue laws, this court may take cognizance of the cause on a writ of error, without regard to amount.^ The general observations heretofore made in reference to the nature and finality of decisions which may be reviewed would be equally applicable under the provisions of this statute.^ § 322. Cases tried -without a jury ; bill of exceptions. — It is pro- vided by section 649 of the Revised Statutes that issues in civil causes may be tried in the circuit court without the intervention of a jury, whenever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury ; and that the finding of facts, whether general or special, shall have the same effect as the verdict of a jury.^ And section 700 provides that when such issues are thus tried, " the rulings of the court in the progress of the trial of the cause, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal ; and when the finding is special, the review may extend to the determination of the sufficiency of the facts found to support the judgment." § 323. General and special finding of facts. — In case the finding is special, under the provisions of the foregoing section it should be of ultimate facts and not a mere report of the evidence in the case. It must be a finding of certain fact propositions which the court believes to be established by the evidence, and not the evi- dence on which those conclusions rest. If the finding is general, it usually includes mixed questions of law and fact, in which case it is conclusive upon both ; and whether general or special, it has the same effect as the verdict of a jury, and consequently is conclusive of the facts found. If there is a general verdict, there can be no review in this court except on a bill of exceptions taken to the ruling of the court on some question of law. But if the verdict is special, the question would be presented by the record whether the facts thus found require a judgment for the plaintiff or defendant, 1 Petigrew v. United States, 97 U. S. 20 How. 198 ; Jones v. Morehead, 1 385 ; United States v. Bromley, 12 Wall. 155 ; Canton v. American Ins. How. 88. Co., 3 Pet. 307. ^ See ante, | 303, et seq. ; Wilson v. ^ This section was not repealed by Sandford, 10 How. 99. A ruling of the act of March 3, 1875, ch. 137, § 3, the court on a matter in its discretion 18 Stat. 471 ; Phillips v. Moore, 100 is not a final decree within the mean- U. S. 208. ing of the statute : Dean v. Mason, 260 FEDERAL PLEADIXa, PRACTICE AND PROCEDURE. as a matter of law, and this court could review it on the record with- out a bill of exceptions.^ Although the issues of fact in any civil case may be tried and determined by the court without the intervention of a jury, and the court may find upon the facts, either general or special, there is nothing making it the imperative duty of the court to find either way ; and if the court chooses to find generally for one side or the other, the losing party has no redress on error or appeal, except for errors in the admission or rejection of evidence, duly excepted to at the time and brought before this court by a bill of exceptions.^ To entitle a party to a judgment on the special findings of the court, they should cover all the essential facts, which must exist and concur to constitute a right of recovery.^ § 324. Writ of error upon an agreed case. — It is the well-estab- lished practice in this country, and especially in the federal courts, to take the judgment of the court upon a case stated, or an agreed statement of facts. In such cases it is usual for counsel represent- ing their clients to sign the statement, which becomes a part of the record of a cause, and a writ of error will lie from a decision thereon, if it is an agreement of ultimate facts, and not the mere evidence of the facts. In this respect it is in the nature of a special verdict. Like a special verdict, if it is ambiguous or imperfect, if it con- tains only the evidence of facts and not the facts themselves, or contains only a part of the facts in issue essential to be shown,* and is silent as to others, this court will remand the case for a new trial. ^ There would in such a case be nothing from which the court could ^ Norris v. Jackson, 9 Wall. 125; man, 16 Pet. 176; United States v. Burr V. Des Moines Co., 1 Id. 99 ; Kin^, 7 How. 853. Insurance Co. v. Tweed, 7 Id. 44; ^ Smith d. Sac County, 11 Wall. 139. Graham v. Bayne, 18 How. 62; See also Copelin v. Insurance Co., 9 Barnes v. Williams, 11 AVh. 415; Wall. 461 ; Insurance Co. «. Tweed, 7 Suydam v. Williamson, 2U How. 432 ; AVall. 44 ; Coddington v. Richardson, Cucullu i\ Emmerling, 22 Id. 83; .10 Wall. 516; Norris v. Jackson, 9 Copelin v. Ins. Co., 9 Wall. 461; Wall. 125 ; Flanders v. Tweed, 9 Wall. Coddington v. Richardson, 10 Id. 425 ; Jennisons v. Leonard, 21 Wall. 516. 302; Fleitas v. Cockrem, 100 U. S. •'' Dirst V. Morris, 14 Wall. 484 ; 301 ; Gilman v. Illinois & M. T. Co., Town of Ohio v. Marcy, 18 Id. 552; 91 U. S. 603. Insurance Co. v. Folsom, 18 Id. 237; * Norris v. Jackson, 9 Wall. 125 ; Miller v. Insurance Co., 12 Id. 297 ; Insurance Co. v. Tweed, 7 Wall. 44. Norris y. Jackson, 9 Id. 125 ; Copelin ^Graham v. Bayne, 18 How. 60; V. Insurance Co., Id. 461 ; Tanered v. Prentice v. Zane, 8 How. 481 ; Burr v. Christy, 12- M. & W. 323: Bond v. Des Moines Co., 1 Wall. 99. Brown, 12 How. 251; Hyde v. Boor- SUPREME COURT — APPELLATE JURISDICTION. 261 determine whether the judgment is consistent with the facts. But where the ultimate facts relating to the points in issue are properly admitted in the court below, the judgment of the court below, based upon such stated case, may be here reviewed on a writ of error, with- out a bill of exceptions.^ § 325. Writs of error and appeals from other courts. — The statute further provides for the review of final judgments of the supreme court of any territory except the territory of Washington, where the value of the matter in dispute, exclusive of costs, exceeds one thousand dollars, in the same manner and under the same regulations as the decisions of a circuit court may be reviewed ; and that any final judgment or decree of the supreme court of Washington ter- ritory, where the value of the, matter in dispute exceeds two thou- sand dollars, exclusive of costs, may be reviewed in like manner, in any case where the Constitution or a statute or treaty of the United States is brought in question.^ And such appeal or writ of error may be taken within the time and in the manner provided by law, although such territory may have been admitted as a state after the judgment or decree was rendered; and the Supreme Court is re- quired to direct the mandate in such cases to such court as the nature of the case requires.^ " When any territory is admitted as a state, and a district court is established therein, the said district court shall take cognizance of all cases which were pending and undetermined in the superior court of such territory, from the judgments or decrees to be rendered in which writs of error could have been sued out or appeals -taken to the Supreme Court, and shall proceed to hear and determine the same."* In such cases the judgments or decrees of the district court may be reviewed in this court on writs of error or appeal, in the same manner and with the same effect as if such judgments or decrees had been rendered in the superior court of such territory ; and man- dates and writs necessary to the exercise of appellate jurisdiction in ^ Stimpson v. Raih'oad, 10 How. ^ Rev. Stat. § V03. The provisions .329; United States v. Eliason, 16 Pet. of these sections were extended to the 291 ; Ingle v. Coolidge, 2 Wh. 363 ; territory of Utah, by an act of June Miller v. Nichols, 4 Wh. 311; 23, 1874, IS Stat. 254. See also Rev. Shankland v. Washington, 5 Pet. 390. Stat, g 704. ^ Rev. Stat. | 702, as amended by * Rev. Stat. I ■")C>9. See also §| 567, act February 27, 1877, ch. 69, 19 Stat. 568. 241. See also Rev. Stat. §§ 1909, 1911. 262 FEDERAL PLEADING, PRACTICE AND PROCEDURE. such cases must be directed to such district judge, who is required to obey the same.^ In like manner may the final judgments or decrees of the supreme court of the District of Columbia be reviewed, and under the same regulations as are provided in cases of writs of error or appeals from circuit courts, where the value of the matter in controversy, exclusive of costs, exceeds the sum of twenty-five hundred dollars." If, however, in the latter case the value of the matter in dispute, ex- clusive of costs, exceeds one hundred dollars but is less than twenty- five hundred dollars, and either party desiring a review of the cause presents a petition in writing to any justice of the Supreme Court, accompanied by a copy of the proceedings complained of, and an assignment of errors, and he is of opinion that such errors involve questions of law of such extensive operation as to render a decision upon them by the Supreme Court desirable, he may allow the writ of error or appeal, by a written order, to the clerk of the supreme court of said district, directing him to issue the writ of error or allow the appeal.^ But even in such a case, if there is no principle of law of extensive application involved in the case, the appeal will be dismissed,* and if the judgment was for less than one hundred dollars the defendant is not entitled to a writ of error, although the amount claimed was for a larger sum.' § 326. Appeals from the Court of Claims. — The United States may also take an appeal from any judgment of the Court of Claims adverse to the United States, and the plaintiff may also appeal in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of the said court as provided by section 1089.® Appeals must be taken within ninety days after the rendition of the judg- ment, and the procedure is regulated by the rules for the Court of Claims promulgated b}' the Supreme Court.'' § 327. Judgments and decrees of state courts upon a writ of error. — The section of the Revised Statutes providing for a review and 1 Rev. Stat. § 704. For construction act of February 25, 1879, eh. 99, § 4, of this section, see Forsvth v. United 20 Stat. 321. States, 9 How. 571 ; McNulty v. Batty, * Campbell v. Read, 2 Wall. 198. 10 How. 72. " * Wise v. Columbia Turnpike Co., 7 ^ Rev. Stat. | 705, as amended by Cr. 276. act of February 25, 1879, ch. 99, § 4, « Rev. Stat. I 707 ; Id. | 1089. 20 Stat. 321. ' Rev. Stat. § 708. See^>os< for the ^ Rev. Stat. I 706, as amended by Court of Claims Rules. SUPREME COURT — APPELLATE JURISDICTION. 263 re-examination of the judgments and decrees of state courts is as follows: "A final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity ; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties or laws of- the United States, and the decision is in favor of their validity ; or where any title, right, privilege or immunity s claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States, and the proceedings upon the reversal shall be the same, except that the Supreme Court may at their discretion proceed to a final de- cision of the case, and award execution or remand the same to the court from which it was so removed. The Supreme Court may reverse, modify or affirm the judgment or decree of such state court, and may at their discretion award execution, or remand the same to the court from which it was removed by the writ." ^ The authorities referred to in considering the jurisdiction of the Supreme Court on writs of error to and appeals from the circuit courts, and the observations there made in reference to the con- struction of the language "final judgment or decree" used in the section relating to those cases, are equally applicable to this one.^ There is, however, at least one important difference in the provisions of the two sections. The former only provides for a review of the final decisions of circuit courts in civil cases, while the latter statute makes no limitation in respect to the character or subject-matter of the suit. If there could have been any question concerning the appel- late jurisdiction of this court in criminal cases under the provisipns of the Judiciary Act, it would appear to be settled by the provision 1 Rev. Stat. | 709. See Rev. Stat. ^ See ante, | 303. I 1017 ; act of February 18, 1875. 264 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of section 710 of the Revised Statutes,^ which provides as follows: " Cases on wiMts of error to reverse the judgment of a state court in any criminal case shall have precedence, on the docket of the Supreme Court, of all cases to which the government of the United States is not a party, excepting only such cases as the court, in its discretion, may decide to be of public importance."^ § 328. "Writs of error to state courts; not of right. — Writs of error to the state courts are issued in the same manner and under the same regulations, and have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States;^ but they are not allowed as of right. The practice is to submit the record of the state court to a justice of the Supreme Court, who upon examination of it determines whether any question was made or decided in the state court which is cog- nizable by this court, and whether there is a case made by the record to justify the allowance of the writ. If the decision appears to involve a question that gives the court jurisdiction, it is generally allowed ; but if no such question ap- pears to have been made or decided in the court below, or Avhere, althouirh a claim of rio;ht under the Constitution or laws of the United States was made, yet it is clear that the jurisdiction of the court does not extend to the case presented, the want Avill not be allowed.* But any act, from whatever source originating, to which the state gives the sanction and the force of a law is within the meaning of the statute providing that a judgment or decree of a state court maybe re-examined by this court, "where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is. in favor of their validity." If a state recognizes a statute as legal, though in fact it may not be so, this becomes an act and a statute of the state within the meaning of the provision under consideration : and ^ This provision was embraced in * Twitchell v. The Commonwealth, an act of Conrrress, .July 13, 1866, ch. 7 Wall. 321 ; Gleason v. Florida, 9 184, ^ 69, 14 Stat. 172. Wall. 779; Bartemeyer v. Iowa, 14 •■'•T'witchell v. The Commonwealth, Wall. 26 ; Barron v. The City of Bal- 7 Wall. 321 ; Cohens v. yiro;inia, 6 tiinore, 7 Pet. 243 ; Fox v. Ohio, 5 Wh. 264; Worcester v. Georgia, 6 How. 434; Smith v. Maryland, 18 Pet. 515. How. 76; Withers v. Buckley, 20 =* Rev. Stat. § 1003. How. 90. SUPREME COURT — APPELLATE JURISDICTION. 265 if the question is presented to a state court, whether such " statute or authority exercised under any state" is void on the ground of its being repugnant to the Constitution of the United States, and the decision is in favor of the validity of the statute or authority, a writ of error lies to revise the decision of the state court.^ For various forms on writ of error and appeal, see post, No. 236, et seq. § 329. A proper question must be presented by the record. — In order to confer jurisdiction upon this court to review, on a writ of error, the final decision of the highest state court, it must appear in the record certified to this court that a federal question was pre- sented to the court below ; that is, it should clearly appear, either that there was drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and that the decision was against its validity, or the validity of a statute of, or an authority exercised under, any state, on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity; or that some title, right, privilege or immunity was claimed under the Constitution, or some treaty, statute of or commission held or authority exercised under the United States, and the decision was against the title, right, privilege or immunity specially set up or claimed by the plaintiff in error. If the record fails to show this, the writ will be dismissed for want of jurisdiction.^ If the question presented is one of pre- scription, or of discretion in refusing to grant a motion for a new trial, or a rehearing in an equity suit, or whether a statute is repug- nant to the constitution of the state, there is involved no federal question, and a writ of error to review a final judgment of the highest state court thereon will be dismissed.^ § o30. A specific question must be presented by the record. — The record must present a specific question or specific questions for review ; and it is not sufiicient that it state in a general way that ^ Williams v. Bruffy, 96 U. S. 176. Worthy v. The Commissioners, 9 See also Ford v. Suriret, 97 U. S. 594; Wall. 613 ; Northern Railroad v. The Binghamton Bridge, 3 Wall. 51; The People, 12 Wall. 384; Rector University v. People, 99 U. S. 309. v. Ashley, 6 Id. 174 ; Furman v. '^ Caperton v. Bowyer, 14 Wall. 216 ; Nichol, 8 Id. 56 ; Peck v. Sanderson, Steines V. Franklin Co., Id. 15; Ham- 18 How. 42; Bank v. McVeigh, 98 ilton Co. V. Massachusetts, 6 Id. 636. U. S. 332 : Lange v. Benedict, 99 =* Marqueze v. Bloom, 16 Wall. 351 ; Id. 68. Gibson v. Chauteau, 8 Wall. 314; 266 FEDERAL PLEADING, PRACTICE AND PROCEDURE. "the charge of the court, the verdict of the jury and the judg- ment below are each against and in conflict with the Constitution and laws of the United States," but the specific clause in the Constitution, or the particular statute or act of Congress, should be indicated, that the court may determine not only what the claim is, but whether it was denied.^ Nor will this court entertain jurisdiction where it appears from the record that the judgment or decree of the court below may be well sustained upon other grounds than the one involved in the federal question presented, although there was error in the decision as to the latter.^ But where the judgment or decree cannot be maintained on other grounds, and a federal question has been pre- sented and the highest state court has decided against the right claimed by the plaintiff in error, this court will entertain jurisdic- tion of the case and re-examine the judgment below, and determine whether it was a proper one, and either reverse or aflSrm it.' An annual license tax was imposed upon insurance companies located and having an office and doing business within a city, by an ordinance of the city. The question raised in the highest state court was whether such an ordinance was not repugnant to the Con- stitution of the United States, and the state court decided that it was not. This court held that a writ of error would lie from the decision.* So an objection to the introduction of a deed as evidence for the want of a revenue stamp, required by the statutes of the United States, but which was admitted in evidence notwithstanding the ob- jection,^ was held to present a question as to the proper interpretation 1 Maxwell v. Newbold, 18 How. 511 ; 20 Wall. 591 5 Armstrong v. Treasurer, Wolf V. Stis, 96 U. S. 541 ; Mathews 16 Pet. 281 ; Crowell v. Randall, 10 «. McStea, 6 Wall. 646 ; Messenger?;. Id. 368; Cousin v. Blane, 19 How. Mason, 10 Wall. 507 ; Edwards v. El- 202 ; Grand Gulf R. Co. v. Marshall, liott, 21 Wall. 532 : Scott v. Jones, 5 12 How. 165 ; Williams v. Norris, 12 How. 343. AVh. 117 ; Brown v. Atwell, 92 U. S. 2 Kennebec Railroad v. Portland 327 ; Rev. Stat. ^ 709. Railroad, 14 Wall. 23. See also Kling- ^ Home Insurance Co. v. City Coun- evv. Missouri, 13 Id. 257; Railroad oil, 93 U. S. 116. See also Osborne v. Company t;. Maryland, 20 Id. 643; Mobile, 16 Wall. 479 ; Cannon v. New Cockroft V. Vose, 14 Id. 5 ; Bank of Orleans, 20 Id. 577 ; Sevier v. Ilas- West Tennessee v. Citizens' Bank, 14 kell, 14 Id. 15 ; McGuire v. The Corn- Id. 9 ; Palmer v. Marston, Id. 10 ; monwealth, 3 Id. 382 ; The License Sevier v. Haskell, Id. 12 ; Smith v. Cases, 5 Id. 462 ; Weston v. City Adsit, 16 Id. 185; Moore v. Missis- Council, 2 Pet. 449. sippi, 21 Wall. 636. ^ Hall v. Jordan, 15 Wall. 393. ^ Murdockt?. The City of Memphis, SUPKEME COURT — APPELLATE JURISDICTION. 267 of a United States statute ;^ and so the power of the court in bank- ruptcy under such statutes to order a sale of property in a particu- lar case^ was also held to present a proper federal question and to give the Supreme Court jurisdiction on a writ of error. For form of writ of error to the state court, see post, No. 239. § 331. Right of the United States to a writ of error. — Where the United States is a party to a suit in a state court, it has the same right to a review by a writ of error, and no more than a private in- dividual, and they are entitled to it under the same circumstances.^ § 332. Highest court of a state ; construction. — The statute pro- vides for the removal of a cause by a writ of error in the cases specified, from the final judgment or decree of " the highest court of a state in which a decision in the suit could be had." It does not follow, therefore, that the decision sought to be reviewed should have been rendered by the highest court or court of last resort in the state ; but it is only necessary that it be the court of last resort, or the highest court where a decision could be had in the particular case in which a review of the decision is desired. If there is a trial in a state court of original jurisdiction, and a federal ques- tion is presented, if there is no right of appeal therefrom to the highest court of review in the state for want of the sufficiency of the amount in controversy, or for any other cause, then the writ may issue to such state court of original jurisdiction, and the Supreme Court can take cognizance of the cause. ^ And this has been held to be proper where a party has a clear right to appeal from an inferior to a higher state court, but this right is unlawfully refused ; in which case it has been held proper to send the writ to the former, and to hear and determine the cause when the record is properly certified from such court.^ There are other cases where the writ will issue to an inferior state court ; and the letter of the law will not be permitted to destroy its spirit and purpose. Thus, where a cause involving a federal question has been duly passed upon and determined against the 1 Gregory v. McVeigh, 23 Wall. * Miller v. Joseph, 17 Wall. 655. 294. sQi-egory i\ McVeigh, 23 Wall. 2 O'Brien v. Weld, 92 U. S. 81. 294 ; Downham v. Alexandria, 9 Wall. * United States v. Thompson, 93 ()59 ; Richmond, etc., R. Co. v. Rail- U. S. 586. See also Dolman v. In- road Company, 13 How. 80; Windsor surance Co., 14 Wall. 666 ; Insurance v. McVeigh, 93 U. S. 274; Bryan v. Co. V. Hendren, 92 U. S. 287 ; Rock- Bates. 94 Mass. 201. hold V. Rockhold, 92 U. S. 130. 268 FEDERAL PLEADING, PRACTICE AND PROCEDURE. party insisting upon rights under federal laws, in the highest court of the state, and has been remanded to an inferior court of the state, requiring it to proceed in accordance with the opinion, and enter judgment there, the inferior court would in such a case be treated as the highest court of the state, and the writ of error would properly issue to it.^ In case the highest court of the state reverses the judgment or decree of the inferior court, and remands the cause for further pro- ceedings, a writ issuing to the former for the purpose of review- ing a federal question would be dismissed ;^ mere reversal by the highest state court of the judgment or decree of an inferior court is not such a final judgment of the highest state court as is con- templated by the statute giving jurisdiction to the Supreme Court on writs of error to the state courts.^ § 333. What the certified record must contain. — The record should clearly show that a proper federal question was presented, and in case a right, title, privilege or immunity was set up and claimed, it must appear that this was claimed by the plaintiif in error for him- self and not for another, and that the decision was against him.* It must further appear from the certified record that the state court decided the very case relied upon to give the Supreme Court jurisdiction;^ and if it appears from the record that it was not necessary for the state court to pass upon the question, or that such a question was not in fact passed upon,^ or that the decision rested upon the general principles of the law of nations, or upon a consti- tutional provision which merely declares a settled rule of juris- prudence,^ this court will not take cognizance of the cause, but will dismiss the writ for the want of jurisdiction.^ § 334. Jurisdiction cannot be conferred by consent. — It is a doc- trine universally recognized that jurisdiction, either original or appellate, of federal courts cannot be conferred by consent. The 1 Atherton v. Fowler, 91 U. S. 143. ^ Cockroft v. Vose, 14 Wall. 5. 2 Davis V. Couch, 94 U. S. 514. ^ l^q^ ^_ Converse, 91 U. S. 105 ; ^ McComb V. Commissioners, 91 Texas w. White, 7 Wall. 733 ; Hunt- U. S. 1 ; Tracy v. Holcomb, 24 IIow. ingdon v. Texas, 16 Id. 412; Horn v. 427 ; Parcels v. Johnson, 20 Wall. Lockhart, 17 Id. 580. 054. ' Tennessee Bank v. Bank of Louis- * Warfield v. Chaffe, 91 U. S. 690 ; iana, 14 Wall. 9 ; Palmer v. Marston, Long V. Converse, Id. 105 ; Verdea v. Id. 10. Coleman, 1 Black 472 ; Henderson v. ^ JVew York Life Ins. Co. v. Hen- Tennessee, 10 IIow. 311; Hale v. dren, 92 U. S. 286 ; Bethel y. Damaret, Gaines, 22 Id. 149. 10 Wall. 537. SUPREME COURT — APPELLATE JURISDICTION. 269 jurisdiction of these courts is conferred by the Constitution and by acts of Congress, and is special and limited ; and they have no jurisdiction except in the particular cases provided for them. Neither the consent of both parties nor of their counsel can give jurisdiction either of an original case or on appeal or writ of error, but the record must show the requisite facts conferring it.^ § 335. Constitutionality of state laws. — If the question presented was whether a statute of a state was void on the ground of its repugnance to the Constitution of the United States, it must appear from the record that the decision was in favor of its validity, or the Supreme Court could not take cognizance of the case.^ But if it is claimed that the legislature of a state had no authority to make the statute, or did not pass the statute involved in the controversy, this would not present a federal question which could be reviewed on a writ of error.^ § 336. Illustration of the application of the statute. — The con- struction and application of the provision of the federal statute under consideration may be illustrated by a few recent cases. Thus, where the plaintiff in error sued upon certain notes, claiming that under a proper construction of the Constitution of the United States he was entitled to the payment thereof in gold and silver coin, and the decision of the court below was against his claim, this was held to be a proper case for review on a writ of error,* So where the question presented was whether the mortgage of a vessel, duly recorded in pursuance of an act of Congress, gave a better lien than an attachment under the statute of a state, and the decision was that it did not, this was held reviewable on a writ of error. ^ § 337. Claim under a statute, grant or treaty of the United States. — If a title, right or privilege is claimed under a statute, grant or 1 Mills V. Brown, 16 Pet. 525; r. Gallao;her, 15 Pet. 18 ; Williams u. Walker v. Taylor, 15 How. 64 ; Med- Norris, 12 Wh. 117; Owings v. Speed, berry v. State, 24 Id. 413; Murdock 5 Id. 420; McKinney v. Carroll, 12 V. Memphis, 20 Wall. 590 ; Smith v. Pet. 70 : Crowell v. Gallagher, 10 Id. Adsit, 16 Id. 185. 368. ••= Walker v. Taylor, 5 How. 64; * Trebilcockw. Wilson, 12 Wall. 687. Commonwealth Bank v. Griffith, 14 See also Dooley ij. Smith, 13 Id. 604 : Pet. 56; Rector v. Ashley, 6 Wall. Legal Tender Cases, 12 Id. 457; Uni- 142 ; Gordon v. Caldcleugh, 3 Cr. 268 ; versity v. People, 99 U. S. 309. Doe V. Eslava, 9 How. 421; Mont- ^ ^Idrich w. .Etna Co., 8 Wall. 491. gomery v. Hernandez, 12 Wh. 129. See also White's Bank v. Smith, 7 Id. * Scott V. Jones, 5 How. 343 ; Coons 640. 270 FEDERAL PLEADING, PRACTICE AND PROCEDURE. treaty of the United States, the decision must be against the title, right or privilege specially set up or claimed by the party seeking a review of the judgment of the state court. Thus, "where a defendant in a suit in ejectment claimed the land in controversy under a title which sprung from a reservation in a treaty between the United States and an Indian tribe, and the state court decided against the validity of the title thus set up, it was held by the Supreme Court that the title thus asserted grew out of a treaty, and that the case presented a proper federal question which gave the court jurisdiction.^ So where the claim of title to land rested upon an act of Congress, it was held that it must appear that the decision was against the claim thus asserted, to give the Supreme Court jurisdiction on a writ of error.^ And where the question presented to the state court was as to the validity of a patent of lands granted by the United States, and the decision of the state court was against its validity, this was held to be review- able on a writ of error. ^ § 338. Review on error in criminal cases. — The Statute covers decisions in criminal cases as well as in civil suits, and there is no distinction between them in respect to the right of re-examination in this court. ^ The statute gives precedence in such cases on the docket of the Supreme Court. It provides as follows : " Cases on writs of error to revise the judgment of a state court in any criminal case shall have precedence on the docket of the Supreme Court of all cases to which the government of the United States is not a party, ex- cepting only such cases as the court in its discretion may decide to be of public importance."^ For forms on writs of error and on appeals, see post, No. 236, et seq. For forms of various writs, see post, No. 254, et seq. § 339. Transcripts and other papers on appeal. — In case of appeal of any cause in equity or of admiralty and maritime jurisdiction, ^ Henderson v. Tennessee, 10 How. See also Taylor v. Maguire, 17 Wall. 311 ; Owings v. Norwood, 5 Cr. 344 ; 253; Neilson v. Lagow, 12 How. 110 j Udell V. Davidson, 7 How. 769 ; Ful- Carpenter v. Williams, 9 Wall. 786. ton V. McAffee, 16 Pet. 149 ; Mont- * Prigg v. Commonwealth, 16 Pet. gomery v. Hernandez, 12 Wh. 129. 539 ; Worcester v. Georgia, 6 Pet. 515 ; ^ Rector v. Ashley, 6 Wall. 142 ; Cohens v. Virginia, 6 Wh. 264 -, Bagnel v. Brodrick, 13 Pet. 436 ; Les- Twitchell v. Commonwealth, 7 Wall, sieur v. Price, 12 How. 60. 32. ' Reichart v. Felps, 6 Wall. 160. » Rev. Stat. § 710. SUPREME COURT — APPELLATE JURISDICTION. 271 or of prize or no prize, a transcript of the record and copies of the proofs, and of such entries and papers on file as may be necessary on the hearing of the appeal, must be transmitted to the Supreme Court. And either the court below or the Supreme Court may order any original document or other evidence to be sent up in ad- dition to the copy of the record or in lieu of a part of it. On such appeals no new evidence can be received in the Supreme Court except in admiralty and pi'ize cases. ^ The transcript is required to be under the hand of the clerk with the seal of the court; but it is sufiiciently authenticated if it be signed by a deputy clerk in the name of and for his principal, and sealed with the seal of the court.^ 1 Rev. Stat. | 698 ; Id. ^ 750. « Garneau v. Dozier, 100 U. S. 7. CHAPTER XIV. PRACTICE AND PROCEDURE ON WRITS OF ERROR AND APPEAL. § 340. The writ and record. — Having considered the jurisdiction of the Supreme Court on writs of error and appeal, we now proceed to point out more particularly the practice and procedure in such cases. When a writ of error is allowed it will be issued by the clerk of the court, as we shall hereafter more particularly notice, signed by him and under the seal of the court, and bear teste of the Chief Justice, and be directed to the clerk of the court the judgment of which it is sought to review.^ It is the duty of the clerk to which it is directed to make return thereto, and to annex to and return with the writ, " at the day and place mentioned, an authenticated transcript of the record, and assignment of errors, and a prayer for reversal, with a citation to the adverse party ;"^ and in all cases brought to the Supreme Court by writ of error or appeal, the clerk of the court by which the judgment or decree was rendered is also required to annex to and remit with the record a copy of the opin- ion or opinions filed in the case; and no cause will "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." ^ If there is a failure in these respects, the circuit court may either dismiss the writ or appeal or may dispose of the case so far as it can consistently be done on the record returned.* But it is the duty of the plaintiff in error to see that a proper transcript is pre- pared, and if it does not contain all that it should contain, he may, on a proper showing, procure a certiorari for diminution of record, and thereby secure a full and proper return. But the citation is not considered as a part of the record, as it is not a part of the proceedings of the court, and hence a cause will not be dismissed ^ Gen. Rule 8. form required by Gen. Rule. 21 : 2 Rev. Stat. § 997. Portland Co. v. United States, 15 '^ Gen. Rule 8, par. 2 and 3. Wall. 1 ; Deitsoh v. Wiggins, 15 Wall. * It was so held also where there 539. Avas a failure to file a brief, in the SUPREME COURT — APPELLATE JURISDICTION. 273 on this account, but proof thereof may be shown aliunde} For forms in case of writ of error or appeal, seejoos^, No. 236, et seq. § 341. Rules relating to the transcript and papers. — Rule 8 pro- vides that whenever it shall be necessary or proper, in the opinion of the presiding judge of the circuit court or district court exercis- ing circuit court jurisdiction, that original papers of any kind should be inspected in the Supreme Court upon appeal or writ of error, he may make such rule or order for the safe keeping, transportation and return of such papers as to him may seem proper, and the Supreme Court will receive and consider such papers in connection with the transcript of the proceedings. And Rule 11 provides that whenever any record transmitted to this court upon a writ of error or appeal shall contain any document, paper, testimony or other proceeding in a foreign language, and the record does not con- tain a translation of such document, paper, testimony or other pro- ceeding, made under the authority of the inferior court or admitted to be correct, the record shall not be printed, but the case shall be reported to the court by the clerk, and the court will thereupon remand it to the inferior court in order that a translation may be there supplied and inserted in the record. For form of writ of error to state court, see post, No. 239. For form of writ of error to federal court, see post, No. 240. §342. Writs of error ; when returnable. — In reference to the time of the return of a writ of error and citation, it is provided by rule that "in cases where final judgment is rendered more than thirty days before the first day of the next term of this court, the writ of error and citation, if taken before, must be returnable on the first day of said term, and be served before that day ; but in cases where the judgment is rendered less than thirty days before the first day, the writ of error and citation may be made returnable on the third Monday of the said term, and be served before that day."^ It is further required by statute that the adverse party shall have at least thirty days notice on a citation to the Supreme Court.^ For form of citation, see post, No. 341. § 343. Bond for costs. — It is the duty of the clerk of the Supreme Court to take a bond of the plaintiff in error or appellant^ with competent surety to secure his fees in the penalty of two hun- * Innerarity v. Byrne, 5 How. 295. ^ Rev. Stat. § 999. See also Gen. 2 Gen. Rule 8, par. 5. Rule 9. 18 274 FEDERAL PLEADING, PRACTICE AND PROCEDURE. tired dollars; or to require of the said party a deposit of that amount to be placed in bank subject to his draft, or otherwise satisfy him in that behalf.' Each party is, however, primarily liable to the clerk for such fees, for services he performs for such party, without regard to the party who recovers costs ; and these costs may be enforced by process of attachment.- Rule 10 on this subject provides : " Upon the clerk of this court producing satisfactory evidence, by affidavit or the acknowledgment of the parties or their sureties, of having served a copy of the bill of fees due them respectively in this court, on such parties or their sureties, an attachment shall issue against such parties or their sureties respectively, to compel payment of the said fees."^ § 344. Appearance of counsel ; and the parties. — Upon the filing of the transcript of the record, brought up either by writ of error or appeal, the appearance of the counsel for the plaintiff in error •or appellant shall be entered.* If there should be no appearance entered for the plaintiff or appellant when the case is called for trial, the defendant or appellee may have the case called and dis- miss the writ of error, or may open the record and ask for an affirm- ance of the judgment below. ^ If the defendant fails to appear when the cause is called for trial, the court may proceed to hear an argument on the part of the plaintiff, and to give judgment ac- cording to the right of the case.^ If neither party appears when the case is reached on a regular call of the docket, and no appear- ance is entered for either party, the case must be dismissed at the .cost of the plaintiff;'' and if at the second term neither party is prepared to argue the cause, it will be dismissed at the cost of the plaintiff, unless sufficient excuse is shown for a postponement.^ § 345. Docketing cases ; filing transcript. — If a writ of error or an appeal is brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it is the duty of the plaintiff in error or the appellant, as the case may be, to docket the cause and file the record thereof with the clerk of the Supreme Court, within the first six days of the term ; and if the writ of error or appeal is brought from a judgment or decree ren- ' Gen. Rule 10, as amended May 8, * Gen. Rule 9, par. 3. ]87G. '" Gen. Rule 16. ^ Caldwell v. Jackson, 7 Cr. 277. * Gen. Rule 17. ^ For form of bond, see post, No. ' Gen. Rule 18. 242. * Gen. Rule 19. SUPREME COURT — APPELLATE JURISDICTION. 2(0 (lerecl less than thirty days before the commencement of the term, it is the duty of the plaintiif in error or appellant to docket the cause and file the record thereof with the clerk of the court within the first thirty days of the term. If he fails so to do, the defend- ant in error or appellee, as the case may be, may have the case docketed and dismissed by producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause and certifying that the writ of error or appeal has been duly sued out and allowed; and in no case will the plaintiff in error or appellant be allowed to docket the cause and file the record after the same shall have been docketed and dismissed as aforesaid, unless by the order of the court. ^ But in cases of writs of error or appeals from California, Oregon, Washington, New Mexico, Utah, Nevada, Arizona, Montana and Idaho, the time mentioned above is extended to sixty days.^ Under the provisions of this rule the appellee cannot use the copy of the record, brought up by the appellant and lodged with the clerk of this court, to have the case docketed and dismissed, on the ground that the appellant has failed to comply with the rule which requires a bond to be given for the clerk's fees.^ To sustain such a motion it would be necessary to procure and produce a certificate of the clerk of the court below, stating the cause and showing that the appeal had been duly allowed.* And it has been held that the certificate of the clerk of the court below, that he cannot consistently with his other duties certify the record in time to comply with the rule, is not a sufficient reason for extending the time prescribed by the rule.^ But in a more recent case the court was disposed not to enforce it, where the delay in procuring the transcript arose from no fault of the appellant, but resulted from the fraud of the other party, or the ill-founded order of the court, or the contumacy of the clerk below. ^ In the absence of any showing of excuse for the delay, the transcript must be filed and the case docketed in the Supreme Court at the term next fol- lowing the date of the appeal, or the court will not have jurisdic- ^ Gen. Rule 9. See also Edmondson v. Bloomshire, 7 2 Id. Wall. 306. 3 Gen. Rule 10. « United States v. Gomez, 3 Wall. * West V. Brashear, 12 Pet. 101. 752. See also United States v. Hodge, » Sturgess i?. Harrold, 18 How. 40. 3 How. 534; Villabolos v. United States, 6 How. 81. 276 FEDER/iL PLEADING, PRACTICE AND PROCEDURE. tion and the cause "will be dismissed ; but this would not prevent another appeal at any time within two years, and this court would take cognizance of the case on such subsequent appeal, if the tran- script was properly filed and the case docketed at the term and within the time prescribed after the date of the last appeal.* § 346. Duty of the clerk ; records to be printed. — It is the duty of the clerk of this court to have fifteen copies of the record, in all cases, printed for the use of the court, to be charged to the govern- ment with the expenses of the court ; and it is his duty to furnish manuscript copies to the printer for this purpose, and to supervise the printing, and to take care of and distribute the printed copies to the judges, the reporter and the parties, from time to time, as required. He is required to deliver to each party a copy of the printed record, and in case of dismissal, reversal, or affirmance with costs, the fees for the said manuscript copy of the record shall be taxed to the party against whom the costs are given ; which in- cludes the charge for the copy furnished him. But in case of dis- missal for want of jurisdiction, the fees for the copy must be taxed against the party who brought the cause into court, unless the court shall otherwise direct.^ § 347. Motion day. — By a rule of this court Monday of each week is motion day, on which all motions ready for argument will be heard. All motions not required by the rules of the court to be put on the docket are entitled to a preference, and will be heard immediately after the rendering of opinions, if such motions shall be made before the court shall have entered upon the hearing of a cause upon the docket.^ For forms of motion in difi'erent cases, see post, Nos. 220, 228. § 348. Motions to dismiss and affirm. — All motions must be in writing, and contain a brief statement of the facts on which they are based and the objects of the motion ; and no motion to dismiss can be heard unless previous notice thereof is given to the adverse party or the attorney or counsel of such party, unless the court shall make a special assignment to docket and dismiss appeals and writs of error. And all such motions, except those to docket and ' Steamer Virginia w. West, 19 IIow. ^ Gen. Rule 10. 182: United States y. Carey, 6 How. * Gen. Rule 6, as amended December 106: Mesa v. United States, 2 Black 14, 1874. 721. SUPREME COURT — APPELLATE JURISDICTION. 277 dismiss, as provided for by the ninth rule, must be submitted in the first instance on printed briefs or arguments ; and if the court de- sires further argument on the subject, it will be ordered in connec- tion with the hearing on the merits. The party moving to dismiss is required to serve notice of the motion, with a copy of his brief or argument, on the counsel for the plaintiff in error or the appel- lant of record in this court, at least three weeks before the time fixed for submitting the motion, except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice must be served at least thirty days before the time fixed for the hearing of the sarae.^ With a motion to dismiss a writ of error to a state court there may also be united a motion to affirm on the ground that, although the record may show that the court has jurisdiction, it is manifest that the writ was sued out for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument.^ But in such a case, if there is no color of right to dis- miss and the case is clearly within the jurisdiction of the court, the motion to affirm merely will be denied.^ If the appeal is dismissed for failure of the appellant to file a transcript in due time, the clerk cannot properly give a certificate thereof or issue a mandate thereon during the term, as the appellant may thereafter move the court for leave to file a transcript during the term, and to have the cause re- docketed.* If the court below, having no jurisdiction, gives a judgment in a cause for either party, or improperly decrees affirmative relief to a claimant, this court will reverse it, and not merely dismiss the suit. But it is not important on error or appeal when or how the court below obtained jurisdiction. It is sufficient that? it had jurisdiction at the time the judgment or decree was rendered, even though ren- dered by consent, and no errors of law will be considered which were waived by such consent.^ § 349. Mode of service of notice and proof — Service of the notice of a motion to dismiss may be made on counsel by mail ; and an affidavit of the deposit in the mail of the notice and brief ^ Gen. Rule 6. " The Bank of U. S. v. Swan, 3 Pet. '^ Gen. Rule 6, as amended May 8, 68. 1876, November 4, 1878. 5 Pacific Railroad v. Ketchum, 101 3 Whitney v. Cook, 99 U. S. 607. U. S. 2S9 ; Removal Cases, 100 U. S. ■lo7. 2(8 FEDERAL PLEADING, PRACTICE AND PROCEDURE. or argument to the address of the counsel to be served, duly post- paid, at such time as to reach him by due course of mail three weeks or thirty days, as the case may require, before the time jBxed by the notice for a hearing, will be regarded as 'prima facie evidence of service on counsel who reside without the District of Columbia ; and on proof of such service the motion will be considered, unless for satisfactory reasons further time be given by the court to either party.i § 350. Procedure in case of diminution of record. — We have re- ferred to certiorari as the proper remedy in case of diminution of the record sent up to this court in case of a writ of error or appeal.^ But this will not be awarded unless a motion therefor is made in writing, and the facts on which it is based shall be verified by affi- davit or admitted by the opposite party. It is further required that all motions for a certiorari shall be made at the first term of the entry of the cause ; otherwise it cannot be granted, unless upon special cause shown to the court, accounting satisfactorily for the delay.^ A return to a certiorari is sufficient if made by the clerk, without being signed by the judge.* If there appears to be an omission of an important paper from the record sent up, which may be necessary for a correct decision of the case, the court may, on its own motion, order the case continued and a certiorari to be issued to bring it up.^ The writ of certiorari is properly used in such cases only to bring up to the court of error documents, writings and other portions of the record which have not been sent up, and it cannot be used to compel the Court of Claims to supply certain supposed defects in its conclusions deducible from the evidence before it." For form of writ of certiorari, see j^ost, No. 260. § 351. Where either party dockets the case; rights of appellee. — Either party may docket a cause ; and if docketed and a copy of the record is filed with the clerk, either by the plaintiff in error or ' Gen. Rule 6, par. 5. ' United States v. Adams, 9 Wall. ■^ Ante, I 374. 661. The circuit court had no power ^ Gen. llule 14. to issue a writ of certiorari to a com- * Stewart v. Ingle. 9 Wh. 526; missioner appointed by the court Worcester v. Georgia, 6 Pet. 515. under the act of September 18, 1850, ^ Morgan V. Curtenius, 19 How. 8. he being in no legal sense a magis- See also Ex parte Dugan, 2 Wall. 134 ; trate inferior to the circuit court : Ex Clark «;. Hackett, 1 Black 77 : Stearns parte Van Orden, 3 Biatch. 166. V. United States, 4 Wall. 1. SUPREME COURT — APPELLATE JURISDICTION. 279 appellant, within the time prescribed by Rule 9, or by the defendant in error or appellee at any time thereafter during the term, the case stands for argument during the term.^ § 352. "When the state is a party. — In certain cases a state is entitled to priority on the docket, where it is a party to a suit. Section 949 of the Revised Statutes provides : " When a state is a party, or the execution of the revenue laws of a state is enjoined or stayed in any suit in a court of the United States, such state, or the party claiming under the revenue laws of a state the execution whereof is enjoined or stayed, shall be entitled, on showing sufficient reason, to have the cause heard at any time after it is docketed, in preference to any civil cause pending in such court between private parties." Under the provisions of this section, if the state is plaintiff merely ex relatione^ the cause will not be advanced even on the consent of both parties, as where the suit is in the name of a state and in the nature of a quo warranto to try the title to an office.^ Nor are the ordinances of a municipal corporation levying taxes, revenue laws of a state within the meaning of the statute, and a case arising under them is not entitled to priority on the docket.^ Nor will preference be given to cases in which the execution of the revenue laws of a state is enjoined, unless it satisfactorily ap- pears that the operations of the government of the state will be embarrassed by the delay. The court may determine, under all the circumstances of the case, what is a "sufficient reason" for the preference given by the statute.* The motion for the advancement of a cause under the statute must be made by a state or by a party claiming under the laws of a state.'' Where a person was indicted and convicted in one of the inferior courts of the state of Maryland for trading without having a license as required by the laws of that state, and the judgment was affirmed in the court of appeals of that state, and brought to this court on a writ of error, where a motion was made by the plaintiff in error to advance the cause, it was' held that the motion was not within the foregoing statute, as the motion was not filed by the state nor by a party claiming under the laws of the state; that under the 26th 1 Gen. Rule 9, par. 2. * Hoi^e v. Railway Co., 93 U. S. - Miller v. State, 12 Wall. 159. 1. •'' Davenport City v. Dows, 15 Wall. * Ward v. State, 12 Wall. 163. 391). 280 FEDERAL PLEADING, PRACTICE AND PROCEDURE.. rule of the court it was a motion addressed to its discretion, and that inasmuch as it appeared that the phiintiff in error was not in jail, the court refused to grant the motion.^ And, as we have observed, the statute does not apply to the ordi- nances of a municipal corporation, as they cannot be classed as revenue laws of a state ; and the preference given to the state when it is a party, or when its revenues are enjoined, to any party claiming under such laws, is from the presumed importance of such cases to the internal welfare of such state and because of its dig- nity as a member of the Union, and these reasons for the prefer- ence do not apply to municipal more than to private corporations.^ § 353. Submission of causes on printed arguments. — Causes may be submitted to the court on printed arguments, where counsel on both sides choose to do so, within the first ninety days of the term ; but in such cases twenty copies of the arguments, signed by at- torneys and counsellors of this court, must be first filed, — ten copies for the court, two for the reporter, three to be retained by the clerk, and the residue for counsel. And if a case is reached on a regular call of the docket, and a printed argument shall be filed for one or both parties, the case stands on the same footing as if there were an appearance by counsel. But if a case, under such circum- stances, is argued orally on behalf of one party only, a printed argument on behalf of the other party will not be received unless it is filed before the argument begins, and if none is filed, the court will consider and decide the case upon the ex parte argument; and no brief or argument will be received, through the clerk or other- wise, after the case has been argued and submitted, except after notice to the opposite party, and upon leave granted in open court.'* § 354. Call of the docket. — The mode of procedure on a call of the docket is pointed out by the rules of the court. The call com- mences on the second day of the term, and cases will be taken up for argument in the order they stand on the docket, if the parties or either of them are ready when the cases are called. If neither party is ready, the case will go down to the foot of the docket ; but only ten causes will be considered as liable to be called each day, including: the one under ar^iument.- ' Ward V. Maryland, 12 Wall. 163. '' Gen. Rule 20. - Davenport City v. Dows, 15 Wall. * Gen. Rule 26. 390. SUPREME COURT — APPELLATE JURISDICTION. 281 Criminal cases, however, may be advanced, on motion of either party, by leave of court; and revenue cases in which the United States are concerned, which also involve or affect some matter of general public interest, may also, by leave of court, be advanced on motion of the Attorney-General ; but all motions to advance cases must be printed, and must contain a brief statement of the matter involved, with the reasons for the application.^ No other cause will be taken up out of the order on the docket, or be set down for any particular day, except under special and peculiar cicumstances to be shown to the court ; and every cause which shall have been called in its order and passed, and placed at the foot of the docket, will, if not reached again during the term, be continued to the next term. But after a cause has been passed, under circumstances which do not require it to be placed at the foot of the docket, the parties may have it heard by filing with the clerk a joint request to that effect. The clerk must then reinstate the case for call ten cases after the case under argument, or next to be called at the end of the day the request is filed. If the parties will not unite in such a request, then either party may move to take up the cause, and it will then be assigned to such a place on the docket as the court may direct. But no stipulation to pass a cause Avithout placing it at the foot of the docket will be recognized as binding upon the court, and a cause can otherwise be passed only upon an application made for that purpose, and by leave granted in open court.^ Two or more cases involving the same question may, however, by leave of court, be heard together, but they must be argued as one case.^ § 355. The argument ; preparation for the same ; procedure on. — Only two counsel will be heard for each party on the argument of a cause, and only tAvo hours on each side will be allowed for argu- ment, unless by special leave of the court, granted before the argu- ment begins. This time may be apportioned between the counsel in their discretion ; but there must be a fair opening of the case by the party having the opening and closing arguments. At least six days before the argument, the counsel for the plain- tiff in error or appellant is required to file with the clerk of the ^ Gen. Rule 26. If a cause has been portance have been assigned for what placed at the foot of the docket, the may be the remainder of the term : court will not take it up on motion Berry v. Mercein, 4 How. 574. and assign a day for its argument, '^ Gen. Rule 26, par. 7. when other cases of great public im- ^ Id., par. 6. 282 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court twenty copies of a printed brief, one of wliich on application he is required to furnish to each of the counsel engaged upon the other side. This brief is required to contain, and in the order hereinafter stated — 1. A concise absti act or statement of the case, presenting suc- cinctly the questions involved and the manner in which they are raised. 2. An assignment of the errors relied upon, which, in cases brought up by writ of error, shall set out separately and specifically each error asserted and intended to be urged, and in cases brought up by appeal the assignment shall state, as specifically as may be, in what the decree is alleged to be erroneous. If error is assigned to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it. 3. A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record, and the authorities relied upon in support of each point. When the statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 4. When the error alleged is to the charge of the court, the specification shall set out the part referred to tofidein verbis, whether in the instructions given or instructions refused. 5. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. 6. Counsel for a defendant in error, or appellee, shall file with the clerk twenty printed copies of his argument, at least three days before the case is called for a hearino;. His brief shall be of a like character with that required of the plaintiff or appellant, except.no assignment of error is required, and no statement of the case unless that presented by the plaintiff or appellant is controverted. 7. Without such an assignment of errors, counsel will not be heard except at the request of the court, and errors not assigned according to this rule will be disregarded, though the court, at its option, may notice a plain error not assigned. 8. When, according to this rule, the plaintiff in error or appel- lant is in default, the case may be dismissed on motion, and when a defendant in error or an appellee is in default, he will not be SUPREME COURT — APPELLATE JURISDICTION. 283 lieard except on consent of his adversary and with request of the court. 9. When no counsel appears for one of the parties, and no printed brief or argument is filed, only one counsel Avill be heard for the adverse party ; but if a printed brief or argument is filed, the adverse party will be entitled to be heard by two counsel.^ The plaintiif or appellant is entitled to- the opening and closing argument, except when there are cross appeals, when they are required to be argued together, and the plaintiff in the court below is entitled to open and conclude the argument.^ § 356. Judgment on review. — This court may, on review of any judgment, decree or order of the circuit court or the district court act- ing as a circuit court, or in prize cases, affirm, modify or reverse it, or may direct such judgment, decree or order to be rendered, or such further proceedings to be had by the inferior court as the justice of the case may require. But the court is prohibited from issuing executions in such cases, and is required to send a mandate to the court below to award execution on the judgment.^ There is, how- ever, a discretion in the court in respect to giving a judgment and awarding execution in case of a writ of error to a state court. In such a case it may proceed to a final decision and award the exe- cution or remand the same to the court from which the case was removed.* The practice and power of this court in such cases may be illus- trated by its procedure in a recent case. In Insurance Companies V. Boykin,^ the defendant in error brought a suit on a policy of in- surance for a loss sustained. The policy was signed by four com- panies who were made defendants, each of whom had agreed to become liable for one-fourth of any loss to the extent in all of ten thousand dollars, and the plaintiffs in error had consented that the action might be brought against all of them jointly instead of severally. The verdict of the jury was "that said defendants did promise and assume as said plaintiff hath alleged, and they assess the damages of the said plaintiff at ten thousand dollars, with interest from the 20th of March, 1867," and the court rendered a joint judgment accordingly. This was one of the errors assigned in this court. 1 Gen. Rule 21. * Rev. Stat. 709, amended February 2 Gen. Rule 22. 18. 1875. •' Rev. Stat. § 701. M2 Wall. 433. 284 FEDERAL PLEADING, PRACTICE AND PROCEDURE. . It was here held that the verdict was a good one, but that the court ought to have rendered a judguicnt that the plaintiff recover of each of the defendants severally for the one-fourth part of the ten thousand dollars, and interest from the time mentioned in the verdict, and joint judgment against all of the defendants for costs. And this court entered the judgment which the circuit court should have done. It is the usual practice of this court to dismiss a cause where the court below had no jurisdiction of it. But this in some cases would work injustice, as, for instance, where the inferior court has given a judgment or decree for plaintiff, or improperly decreed affirmative relief to a claimant in a case where it had no jurisdiction. " In such a case the judgment or decree of the court below must be reversed, else the party which prevailed there would have the benefit of such judgment or decree, though rendered by a court which had no authority to hear and determine the matter."^ In such a case the judgment or decree should be reversed for want of jurisdiction, and the cause remanded with directions to dismiss the case.^ § 357. Judgment >Arhere there are errors apparent in the record. — Where there is manifest error apparent on the face of the record a re-examination in this court will be had, whether it appears by a bill of exceptions or otherwise. Whatever the error may be, the facts must appear on the record in order to enable the court to review the case ; but neither a bill of exceptions nor a special verdict nor an agreed case is always necessary in order to make the error apparent to a court of review. The error may otherwise appear, and where it is thus manifest, this court will consider and revise the judgment. Thus, where a suit was brought on a policy of insur- ance on a vessel and cargo for a total loss, and the jury found a verdict for the whole amount insured with interest, and five thousand dollars damages besides for the detention of the money and interest, and judgment was entered therefor, on error, it was held that the plaintiff below could not recover damages beyond the legal interest ; that the error did not require a venire de novo, as it con- sisted in giving judgment for the five thousand dollars damages. This court therefore reversed and modified the judgment by disal- lowing the five thousand dollars, and the cause was remanded with ' United States v. Huckabeer, 16 - Cutler v. Rae, 7 How, 729. Wall. 414. SUPREME COURT — APPELLATE JURISDICTION. 285 directions to enter judgment for the residue found by the jury with interest.^ § 358. Judgment; interest; damages. — Where the judgment of the inferior court is affirmed on a writ of error, interest on the same at the same rate that similar judgments bear interest in the state where the judgment is rendered is allowed from the date of the judgment below until it is paid.^ And "in all cases where a writ of error shall delay the proceedings of the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at the rate of ten per cent., in addition to interest, shall be awarded upon the amount of the judgment."^ And "the same rule is applied to decrees for the payment of money in cases in chancery, unless otherwise ordered by this court."* But interest is not generally allowed in admiralty cases. ^ § 359. Where the verdict is clearly right, the court will not reverse for technical inaccuracies in the charge. — Where there is no evidence to impeach the claim made, and it is established by competent evidence, and there is no set-off, counter-claim, release or payment pleaded or shown, the court may instruct a jury to find for the plaintiff the amount so proven, as such an instruction is in accordance with the legal effect of the evidence, and there would be no disputed facts on which the jury could pass.*" And if it clearly appears in any case that there are no disputed facts bear- ing on the real matters in issue, and the verdict is manifestly right, and especially where the record shows that no other result would be obtained by a new trial, this court will not reverse the case, although there may have been some technical inaccuracies in the instructions given to the jury.*" § 360. When a new trial will be awarded. — Under the sanction of the Revised Statutes allowing this court, on a review of a judg- ment or decree of the inferior court, to direct " such further pro- ceedings to be had by the inferior court as the justice of the case may require," this court may, unquestionably, direct a trial to be ^ Insurance Co. v. Piaggio, 16 Wall. ^ Id., par. 2. 378 : Suydam v. Williamson, 20 How. * Id., par. 3. 427 ; Burnett v. Butterworth, 1 1 How. * Ilemmenway v. Fisher, 20 How. t)t39 ; Slocum v. Pomeroy, 6 Cr. 221 ; 255. Garland v. Davis, 4 How. 131 ; Cohens * Bevans v. United States, 13 Wall. V. Virginia, 6 Wh. 410. 56. -' Gen. Rule 23, par. 1. "^ Walburn v. Babl)itt, 16 Wall. 577. 286 FEDERAL PLEADING, PRACTICE AND PROCEDURE. had de novo, where in its opinion justice requires it. This was the practice under the Judiciary Act, and is in accordance with the practice at common law where the record did not furnish facts upon which to base a judgment. In such a case the statutes would re- quire this court, in the exercise of its proper functions as an appel- late court, and in furtherance of justice, to remand the cause for a new trial. If there is a demurrer to evidence, there should be a joinder in demurrer, and this supposes that the facts are admitted ; the proper function of such a demurrer being to submit to the court the law arising from the facts. The party demurring to the evi- dence cannot insist upon a joinder in demurrer, under the common law practice, without distinctly admitting upon the record every fact and every conclusion which the evidence given for the adverse party conduces to prove ; and if there should be a joinder in the demurrer, without such admission and a judgment thereon, the judgment would be reversed for this cause, and in such a case this court would necessarily have to remand the cause for a new trial.^ So, where the special verdict of a jury is too imperfect to enable the court to render a judgment upon it, although it may reverse the judgment of the court below, it will remand the cause, with directions to set aside the verdict and award a vetiire facias de 710V 0.^ § 361. When a cause -will be remanded for amendments. — In an action on the case, there was a plea of "non assumpsit," and the issue and verdict followed the plea. On error, it was held by this court that this defect was a material one and not cured by the ver- dict ; that it did not contain enough of substance to put in issue the material parts of the declaration ; that the judgment on the verdict was not properly rendered ; and although this court would not direct amendments or a repleader, it reversed the judgment and remanded the case for further proceedings.^ A new trial has sometimes been awarded in courts of error to enable parties to amend,* and in one case this court not only reversed a judgment and awarded a venire de novo, but gave " directions also to allow the parties liberty 1 Gibson v. Hunter, 2 H. Bl. 187 ; ^ Garland v. Davis, 4 How. 131 ; Day Fowle V. Alexandria, 11 Wh. 320; r. Chism, 10 Wh. 404. Bank of U. S. v. Smith, 11 Wh. * United States y. Hawkins, 10 Pet. 171. 125 ; Barnes v. Williams, 11 Wh. 416 ; ^ McArthur v. Porter, 1 Pet. 626. Bellows j?. Bank, 2 Mason 31 ; Peter- See also Farr v. United States, 5 Pet. son v. United States, 2 Wash. (C. C.) 373 ; Graham v. Bayne, 18 How. 60. 30. SUPREME COURT — APPELLATE JURISDICTION. 287 to amend their pleadings."^ For forms of judgments and decrees, see i^ost, Nos. 245, 246, 248, et seq. See also Nos. 252, 253. § 362. The mandate. — It will be noticed that the Supreme Court, in the excercise of its jurisdiction on appeals from the inferior federal courts, does not possess the power to execute its judgments except in certain cases. It can only send a special mandate to the inferior federal court to award execution. But on a writ of error to a state court, as we have noticed,^ this court " may reverse, modify or affirm the judgment or decree of such state court, and may at their discretion award execution." For form of mandate, see post, Nos. 247, 251. § 363. Mandate conclusive upon the court below. — The court to which the mandate is directed must execute it according to its direc- tions and the intentions of this court. Where the mandate is uncer- tain and ambiguous in its terms, the court to which it is directed must exercise its judgment in the matter in the light of the opinion and decision of this court and the reason and justice of the case. The authority of this court or the jurisdiction of the inferior court to try the cause cannot be inquired into. Where the merits of the controversy are decided, and the mandate requires the execution of the decision, it is final. ^ Nor will a mandamus in the nature of a procedendo be granted thereafter by the Supreme Court, to the judge of the court below, to compel him to sign a bill of exceptions in the case,* nor can such court entertain a petition for a rehearing of the case after a decision of the Supreme Court and the issue of a special mandate for its execution, as the court has no authority to disturb the final judgment or decree of the Supreme Court, and can only settle what remains to be done, by the execution of the mandate.^ § 364. The mandate may be revoked. — Notwithstanding the court below cannot question the authority of the Supreme Court in issuing the mandate, or disobey its requirements, the Supreme Court may, in a proper case, declare the judgment rendered by it null and void, and revoke the mandate. Thus, where an appeal from a circuit court Avas prosecuted, and a decree was rendered ^ United States v. Kilpatrick, 9 parte Story, 12 Pet. 339 ; Ex parte Wh. 73U ; Mollan v. Torrance, 9 Wh. Dubuque, etc., R. Co., 1 Wall. 69. 537. * Ex parte Story, supra. 2 See ante, ? 350 ; Rev. Stat. § 709. * Chaires v. United States, 3 How. ^Skillern v. May, 6 Cr. 267; Ex 611. 288 FEDERAL PLEADING, PRACTICE AND PROCEDURE. against the appellee without an appearance on his part, and a man- date was issued to the circuit court, and at a subsequent term it ■was made to appear that there had been no citation served upon the appellee, the court declared the former judgment null and void, and the mandate was revoked.^ This practice was followed in the subsequent case of United States V. Gomez. ^ The cause was docketed and dismissed on motion of the appellee and remanded, and a mandate sent down to the court below. A motion was afterwards made in the Supreme Court for the rescision of the order of dismission and for a recall of the man- date; and the court being satisfied from the evidence before it that no appeal in the case had been granted by the court below, and that the cause was not properly before it when it was remanded at the instance of the appellee, it rescinded and annulled the decree of dismissal and revoked and cancelled the mandate. For form of decree in such a case, see post, No. 252. § 3b5. Costs on aflirmance, reversal, dismissal. — By the 24th rule, costs are allowed to the defendant in error or appellee, as the case may be, in all cases of dismissal, except where the dis- missal is for the want of jurisdiction, unless otherwise agreed by the parties ; and in all cases of the affirmance of the judgment or de- cree of the inferior courts, costs shall be allowed to the defendant in error or appellee, as the case may be, unless otherwise ordered by the court. But in case of a reversal of any such judgment or decree, costs are allowed to the plaintiff in error or appellant, as the case may be, unless otherwise ordered by the court ; and the costs of the transcript of the record are a part of such costs. These provisions, however, do not apply to cases where the United States are a party. In such cases no costs will be allowed in this court for or against the United States.^ In case any suit is dismissed in this court, it is 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 of this court, so that such further pro- ceeding may be had therein as law and justice may require ; and it is his duty also to insert in such mandate or other proper pro- cess any costs that may be allowed in this court, and annex to it a bill of items of such costs taxed in detail.* ^ Ex parte Crenshaw, 15 Pet. 119. ^ Gen. Rule 24, paragraphs 1, 2, 3. 4. - 23 How. 326 (1859). * Gen. Rule 24, paragraphs 5, 6. ' SUPREME COURT — APPELLATE JURISDICTION. 289 § 3G6. Recording the opinions. — The opinion of the court, upon the delivery thereof, must be recorded by the clerk immediately : and it is his duty to furnish the reporter with a copy of the same as soon as it shall be recorded. This is required to be done dur- ing the term, in order to avoid delay in the publication of the reports. The original opinions must be filed with the clerk for preservation. The statute further expressly provides that " where, upon a writ of error, judgment is affirmed in the Supreme Court or a circuit court, the court shall adjudge to the respondent in error just dam- ages for his delay, and single or double costs at its discretion;"^ and that " there shall be no reversal in the Supreme Court or in a circuit court upon a writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact."- If the writ is sued out merely for delay, damages will be allowed at the rate of not exceeding ten per cent, from the date of the judg- ment in the circuit court ;^ but damages for more than that sum cannot be given.* If every question involved in the case has been settled by former adjudications, this is satisfactory evidence that the writ has been sued out for delay, and damages will be allowed therefor.^ But damages for a delay cannot be allowed on the affirm- ance of a decree in admiralty.^ § 367. Rehearing. — There is no statute or rule of court provid- ing for a rehearing of a cause in the Supreme Court, and it has been held that the court has no authority to reverse its own de- cisions 'f^ yet, as we have seen, it has frequently exercised a revisory power over them, where it had no jurisdiction in fact, but had been induced to assume jurisdiction by fraud or mistake.^ It has been further held that the practice in the English chancery 1 Rev. Stat. § 1010 ; Winchester v. Pickersgill, 6 Wall. 511 ; Hall v. Jor- .Jackson, 3 Cr. 514 ; Himely v. Rose, dan, 19 Id. 271 ; Hennessy v. Sheldon, 5 Id. 313 ; Mclver v. Wattles, 9 Wh. 12 Id. 440. 650 ; Kilburn v. State Savings Inst., * West Wisconsin R. Co. v. Foley, 22 How. 503 ; Hennessy v. Sheldon, 94 U. S. 100. 12 Wall. 440. 5 Penywit v. Eaton, 15 Wall. 380, ■' Rev. Stat. ^1011. See Stafford v. 382. Union Bank, 16 How. 135. « The Douro, 3 Wall. 564. ^ Gen. Rule 23, par. 2; Kilbourne ' Jackson v. Ashton, 10 Pet. 480. V. State Savings Inst., 22 How. 503 ; ' Ex parte Crenshaw, 15 Pet. 119 ; Sutton V. Bancroft, 23 Id. 320 ; .Jen- United States v. Gomez, 23 How. 326. kins V. Banning, Id. 455 ; Prentice v. 19 290 FEDERAL PLEADING, PRACTICE AND PROCEDURE. courts relating to a rehearing has no application to this court sit- ting as an appellate tribunal, as the nature and office of the two tribunals are different, and the same rules of practice for a re- hearing would not be applicable to both.^ The Supreme Court has, however, in several cases allowed a rehear- ing, and in 1852, in the case last cited, the court ruled : " That no reargument will be heard in any case after judgment is entered, unless some member of the court who concurred in the judgment afterwards doubts the correctness of his opinion and desires a further argument on the subject. And when that happens, the court will of its own accord apprise the counsel of its wishes and designate the points on which it desires to hear them."^ In 1869 this rule was extended so as to allow counsel to apply for a rehearing, in case the court does not order one. This rule, contained in an opinion of the court by Chief Justice Chase, is as follows : " Where the .court does not on its own motion order a rehearing, it will be proper for counsel to submit without argument, as has been done in the present instance, a brief written or printed petition or sug- igestion of the point or points thought important. If upon such pe- tition or suggestion any judge who concurred in the decision thinks proper to move for a rehearing, the motion will be considered. If not so moved, the rehearing will be denied as of course."^ § 368. Adjournments. — Rule 27 provides: "The court will at every session announce on what day it will adjourn at least ten days before the time which shall be fixed upon ; and the court will take up no case for argument, nor receive any case upon printed briefs, within three days next before the day fixed upon for adjourn- ment." § 369. Dismissal in vacation ; duties of clerk. — Parties to a Suit in this court may have it dismissed in vacation. The attorneys of the respective parties who are entered on the record for this pur- pose may sign an agreement in writing, directing the clerk to dismiss the case, and specifying the terms on which it may be dis- missed as to costs. After filing this with the clerk and the payment of the fees which maybe due him in the cause, it is his duty to enter the case dismissed, and to give either party requesting it a copy of 1 Brown v. Aspdon, 14 How. 25. ^ Public Schools v. Walker, 9 Wall. * Brown v. Aspden, supra : United 603. ■States V. Knight, 1 Black 489. SUPKEME COURT — APPELLATE JURISDICTION. 291 the agreement filed with him ; but no mandate or other process can issue thereon without an order of the court.^ § 370. The record on appeal from the Court of Claims. — On appeal from the Court of Claims, cases are heard upon the record, which must contain — " 1. A transcript of the pleadings in the case, of the final judg- ment or decree of the court, and of such interlocutory orders, rulings, judgments and decrees as may be necessary to a proper review of the case. " 2. A finding by the Court of Claims of the facts in the case es- tablished by the evidence in the nature of a special verdict, but not the evidence establishing them ; and a separate statement of the conclusions of law upon said facts on which the court founds its judgment or decree. The finding of facts and conclusions of law to be certified to this court as a part of the record."^ For forms, see post, No. 275. § 371. Rule in reference to the record to be strictly observed. — The transcript of the record must be prepared strictly in conformity ■with the rule prepared by the Supreme Court. Only such state- ment of facts found should be sent up as is necessary to enable the court to determine upon the correctness of the conclusions of law decided by the court below, based upon the facts found. ^ If the statement of facts found is not sufficient, the Supreme Court will not dismiss the case, but remand it to the Court of Claims for a proper finding.* §372. Petition for the allowance of an appeal. — The second rule in reference to the Court of Claims provided for appeals in cases of judgments or decrees rendered before the adoption of it, to wit : the December Term, 1865, in which cases it was necessary for a party desiring to appeal to make application by petition to the Court of Claims therefor. This rule is now probably obsolete, as there can be no cases to which it would be applicable.^ § 373. Order of allowance; time limited. — Appeals from the Court of Claims are not a matter of right, and can only be secured by application for an allowance of the same, to the Court of Claims or the Chief Justice thereof in vacation. This must be made 1 Gen. Rule 28. * United States v. Adams, 6 Wall. 2 Court of Claims Rule 1. 101. * De Groot v. United States, 5 Wall. ^ See Silverhill v. United States, 5 419. Ct. of CI. 610. 292 FEDERAL PLEADING, PRACTICE AND PROCEDURE. "W'itbin ninety days after the judgment is rendered;^ but the limita- tion ceases from the time the application is made.^ If, after an appeal has been allowed, a motion is made for a new trial, this is no ground for a dismissal of the appeal, unless the motion for a new trial prevails, in which case the appeal should be dismissed.^ And the court may for good cause shown revoke an order allowing an appeal. The allowance in such a case does not absolutely re- move the cause from the jurisdiction of the court so long as the record has not in fact been certified up to the appellate court.* The only mode for the review of judgments of the Court of Claims provided by the statutes is on appeal, and the Supreme Court, therefore, has no power to review them on a writ of error.® For forms in these cases, see j^ost, No. 266, et seq. § 374. In case of diminution of record. — If either party should desire the court below to supply supposed defects in its fact con- clusions deducible from the evidence, the proper practice would be to apply by motion for an order on the Court of Claims to make return as to the existence or non-existence of the particular facts set out in the motion ; but a writ of certiorari would ordinarily issue on a proper application, alleging a diminution of record or writings.^ It is made the duty of the Court of Claims, in all cases where either party is entitled to an appeal, to make and file their findings of fact and their conclusions of law therein in open court, before or at the time they enter their judgment in the case ; and in all such cases each party at such time, before the trial, as the court shall prescribe, must submit to the court a request to find all the facts which the party considers proven and deems material to the due presentation of the case in the findings of facts.^ 1 Kev. Stat, g 708. & Latham's Appeal, 9 Wall. 145 ; 2 Ct. of CI. Kule 3. See McNutt v. United States v. Young, 94 U. S. United States, 8 Ct. of CI. 185. 258. ■^ United States v. Aj^ers, 9 Wall. ® United States ii. Adams, 9 Wall. 608; United States v. Crussell, 12 661. Wall. 175; United States v. Young, '' Ct. of CI. Rules 4 and 5. A con- 94 U. S. 258. sideration of the jurisdiction, practice * Ex jmi'te Roberts, 15 Wall. 384. and procedure in the Court of Claims An appeal cannot be taken from a will be found in another place in this decision grantincj a new trial : Young volume. See post, ch. xviii. V. United States) 95 U. S. 641. CHAPTER XV. AVRITS OF PROHIBITION. § 375. Authority of the court to issue. — The power of the Su- preme Court to issue writs of prohibition and writs of mandamus is expressly conferred by a provision of the Revised Statutes, which is as follows: "The Supreme Court shall have powder to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction ; and writs of mandamus, in cases warranted by the principles and usages of the law, to any courts appointed under the authority of the United States, or to persons holding oflSce under the authority of the United States, where a state, or ambassador or other public minister, or consul or vice-consul, is a party." ^ The writ of prohibition is an ancient common law writ, and commands the person or tribunal to whom it is directed not to do some act which the court is advised, at the suggestion of the relator, is about to be done contrary to law.^ The English practice and precedents are generally followed in this country on applications for this writ. The ground therefor is that the district court, proceeding as a court of admiralty and maritime jurisdiction, has no cognizance of the cause, and that the proper jurisdiction thereof belongs to some other court. The general Eng- lish practice prescribed by statute provided for an application for the writ by motion supported by affidavits ; but if the question was complicated, doubtful and uncertain, the party applying therefor was required to make a declaration in prohibition, and to set forth a concise statement of the proceedings in respect to which he prayed for the writ to issue.^ The practice in this court is to file a motion supported by a petition duly verified, setting forth facts upon which the petitioner relies for the issuance of the writ.* The jurisdiction ^ Rev. Stat. | 688. land, see Cases in Prohibition, 14 ^ If the act is already done the writ Petei-sdorf Ab., word Prohibitioa ; cannot undo it. The only effect of Pleadings and Forms, 6 Wentworth's the writ is to suspend and prevent PL 242 ; Crouch v, Collins, 1 Saund. further action : United States v. Hoff- 136; 2 Chit. Gen. Pr. 355 ; 2 Sell's man, 4 Wall. 158. Pr. 425. 3 1 Wm. IV., ch. 21 ; 2 Bl. Com. * Ex parte Gordon, 1^ Black 503 5 113. For general practice in Eng- i7a; j?arie Euston, Uo U. S. 68. 294 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of this court in such cases is in effect appellate, as it is required to review the proposed action of the district court and determine whether such action is legal, and if not, to prohibit the same. The statute limits the issuance of the writ " to the district courts when proceeding as courts of admiralty and maritime jurisdiction." * Under this provision, application was made, in 1795, for a writ of prohibition to the "judge of the district court of the United States in and for the district of Pennsylvania, to be directed to prohibit him from holding " further jurisdiction of a case pending before him. The proceedings in the suit, sought to be prohibited, were by libel and process of arrest against the commander of an armed ves- sel 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, and carried into Port de Paix, within the French Republic, the commander of the armed vessel being then in the port of Philadelphia. The suggestion was filed by the com- mander, in the Supreme Court, in which it was claimed that by the laws of nations and by treaties subsisting between the United States and the French Republic, trials of captures on the high seas of ves- sels brought within the dominion and jurisdiction of the Republic, and all questions incidental thereto, belonged exclusively to the judiciary of the Republic, and to no other tribunals ; that by the law of nations and the aforesaid treaties, the vessels of war of the Republic and the officers commanding them cannot be sued or ar- rested in ports of the United States for captures on the high seas, and taken for legal adjudication into the ports of the Republic ; and that the district court of the United States ought not to maintain jurisdiction or hold pleas of such captures. The motion for the prohibition was opposed on the ground that the district court had jurisdiction ; that if this point were doubtful the prohibition ought not to issue until after sentence ; and that on a plea to jurisdiction the injured party had an adequate remedy by appeal. But the court sustained the motion.^ This case settled the construction of the statute as to the func- tions of the writ, and established substantially the common law practice as to its appropriate use in restraining the illegal cogni- 1 Sec. 13 of the Judiciary Act of 'United States v. Peters, 3 Dall. 1789; Rev. Stat. § 6S8. " 121. PROHIBITION. 295 zaiice of proceedings where there is a want of jurisdiction, even when there is another adequate remedy.^ § 376. The -vyrit •will issue only in the cases expressly provided for by statute. — Under the 14th section of the Judiciary Act (now section 716 of the Revised Statutes), it was provided that the Su- preme, circuit and district courts shall "have power to issue writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." In 1845 a motion was made to the Supreme Court for a writ of prohibition, to be issued to the district court of the United States for the district of Louisiana, sitting in bankruptcy. It was claimed in support of the motion that it was a proper case for the issuance of the writ; for although there was no special provision made by stat- ute therefor in cases at law or in equity, it was necessary for the appropriate exercise of the appellate powers of the Supreme Court under the provision last referred to. But Judge Story, in an elaborate opinion, disposed of the case by holding that the district court had jurisdiction, and thereby made it unnecessary to decide the question of the power of this court to issue the writ. On, this question he observed: "As the district court has not exceeded its jurisdiction, it is not absolutely necessary to be decided. But it may be proper to say, as the point has been fully argued, that we pos- sess no revising power over the decrees of the district court sitting in bankruptcy; . . . that we know of no case where this court is authorized to issue a writ of prohibition to the district court except in the cases expressly provided for, . . . that is to say, where the district courts are proceeding as courts of admiralty and maritime jurisdiction." ^ The same doctrine was recognized in a subsequent case where ^ In the case of The Exchange v. tection of the country whose ports McFadden, 7 Or. 116, it was held that they thus enter. And in the case of a public vessel of war belonging; to a The Alecta, 9 Cr. 264, it was laid foreign sovereign at peace with the down as a general rule as to prize United States, when visiting our ports jurisdiction, that the trial of captures in a friendly manner, is exempt from made on the high seas, ^wre belli, by the jurisdiction of our courts; that a duly commissioned vessel of war. unless there is some prohibition, the whether from an enemy or a neutral, ports of a friendly nation are consid- belongs exclusively to that nation tc* ered as open to the public ships of all which the captor belongs, nations with whom it is at peace ; ^ In re Christy, 3 How. 292. Snd that they are entitled to the pro- 296 FEDERAL PLEADING, PRACTICE AND PROCEDURB. application was made for a writ of prohibition to the judges of the circuit court of the United States for the southern district of New York, and its officers and the marshal, to restrain them from further proceeding in a case where the applicant had been found guilty of piracy and sentenced to death. But the court refused the motion for the writ, holding that it could not issue in cases where there is no appellate power or authority of law so to do ; and that it would not lie to a circuit court in a criminal case.^ In Ex parte Graham^ the application was for a writ to restrain a district judge from proceeding under the act entitled "An act to suppress insurrection and punish treason and rebellion ; to seize and confiscate the property of rebels," etc. The act provided that the proceedings should be in rem, " and conform as near as may be to the proceedings in admiralty or revenue cases." But the court held that, as it had power to issue the writ only in cases of admi- ralty and maritime jurisdiction, and the proceedings sought to be prohibited were not of these cases, it could not issue the writ.^ It was further suggested by the court that if there should be error in the proceedings of the district court, there would be a remedy for the petitioners by a writ of error from the circuit to the district court, and finally from that court to the Supreme Court. Power is vested in the Supreme Court to issue writs of prohibi- tion to the district courts only where said courts are assuming to take cognizance of cases of admiralty and maritime jurisdiction when they have no jurisdiction ;* and they can exercise this power in no other case. If the act is done the writ cannot undo it. The only effect of the writ is to suspend action.^ § 377. Where it will not issue. — The writ of prohibition will not issue to stop the action of the district court or revise its decrees in bankruptcy, nor in any case to that court except the one mentioned in section 688 of the Revised Statutes ; as the particular provision there made for its issuance to the district court in certain cases excludes all authority to issue it under the general provisions of section 716 of the Revised Statutes.^ And whether the district ^ Ex parte Gordon, 1 Black 5()3 * Ex parte Easton, 95 U. S. 68 ; (1861). See also Ex parteW axumnih^ United States v. Peters, 3 Dall. 121. 17 Wall. 64. 5 United States v. Hoffman, 4 Wall. 2 10 Wall. 541. 158 ; In re Christy, 3 How. 292. ^ The Union Insurance Co. y. United ^ Ex parte Gordon, 1 Black 503; States, 6 Wall. 759 ; United States t'. Li re Christy, 3 How. 292 ; Ex part^ Arinstronji's Foundry, Id. 7GG ; The Warmouth, 17 Wall. 64. Sarah, b Wlieaton 391, PROHIBITION. 297 court has transcended its jurisdiction depends upon the facts stated in the record upon which the district court is called upon to act, and upon which only it can act, and this court will not, upon an application for the writ, look into matters dehors the record.^ § 378. Application for the writ. — We have briefly considered the oflSce and functions of the writ of prohibition. The formal appli- cation for the writ is called a suggestion, and it should be entitled in the court from which it proceeds, but not in any case or matter, as there is no cause in court.^ The suggestion, as we have before observed, may be in the form of a petition or motion, supported by affidavits. For form in such cases, see post, No. 254. For form of writ, see post, No. 255. 1 Ex parte Easton, 95 U. S. 68. ^ Lj^y^j q^ p^oh. 56. CHAPTER XVI. WRITS OF MANDAMUS. § 879. A common law prerogative writ. — The writ of mandamus is an ancient common law prerogative writ, which issued from the Court of King's Bench and was directed to some person, corpora- tion or inferior court, commanding some particular act or acts to be done which it was their clear duty to do or which had been adjudged should be done or performed by them. It was instituted to prevent a failure of justice, as where the law enjoined a duty upon a judge or court or corporation which they refused to perform, and in the performance of which the party claiming the writ Avas interested, and by the non-performance of which he would be injured, and the law afforded no other specific or adequate remedy. These general doctrines and principles are applicable to the practice in the federal courts. If the act required is impossible of performance or the right to insist upon its performance is doubtful, or if there is a speedy, adequate and complete remedy by other proceedings at law, the writ will be refused.^ § 380. Provisions of the Revised Statutes relating to w^rits of mandamus. — The Revised Statutes provide that the Supreme Court shall have power to issue " writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a state, or an am- bassador or other public minister, or a consul or vice-consul, is a party." ^ This provision limits the authority of the Supreme Court to certain cases. But another section of the statutes provides as follows : " The Supreme Court, and the circuit and district courts, shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective juris- dictions and agreeable to the usages and principles of law."^ 1 Add. onTorts (Wood's ed.). 1 1505; ^ Rev. Stat. | 688. Reg. V. Chichester, etc., 29 L. .J., Q. B. ^ Rgy^ g^at. | 716. For form of writ 23 ; Ex parte Briggs, 28 Id. 272 ; Com- of injunction, see post, No. 258. monwealth v. Denison, 24 How. 'o'o. MANDAMUS. 299 The latter provision confers upon this court, and upon the circuit and district courts, authority to issue this writ, when it becomes necessary for the proper exercise of their jurisdiction. In the former case the writ will issue from the Supreme Court in cases warranted by the principles and usages of the common law, only against federal courts or officers, where a state, or ambassador or other public minister, or a consul or vice-consul, is a party. Under the general principles of the common law the writ will not issue where there is any other appropi'iate remedy.^ Thus, it will not be issued if the party aggrieved may have a remedy by writ of error or appeal,^ as to compel an inferior court to reverse its judg- ment,^ or to* re-examine a judgment or decree,* or to compel the issu- ance of a mandamus which has been refused,^ or to compel the reversal of any order, although it may seem to bear harshly and oppressively upon a party, ^ or to compel a court to quash a writ of execution,^ or to vacate any order,^ or to compel a judge to proceed according to the rules of chancery practice in a suit in equity even if he is proceeding in the case irregularly,^ or to compel the allowance of an amendment."^ Nor will the court, on general prin- ciples, issue a writ to control the inferior court or officer in the exercise of a discretion where the discretion is exercised, as in a case of a motion for a new trial," or in case of the rejection of a bond offered for approval.^^ § 381. Functions of the writ. — It is the function and office of the writ to compel the performance of duties that are unquestionably right and proper to be performed, and not to control the judgment of the inferior court or officer in a matter of discretion, or where judgment has been exercised in a matter within the jurisdiction of the court or the proper scope of the powers or functions of the officer.^^ 1 Crawford v. Addison, 22 How. ^ Ex parte Flippin, 94 U. S. 348. 174. 8 Ex parte Loring, 94 U. S. 418. - Ex parte Newman, 14 Wall. 152 ; ^ Ex2)arte Myra Clarke Whitney, 13 Ex parte Schwaub, 98 U. S. 240 ; Ex Pet. 404. parte Loring, 94 U. S. 418 ; Ex parte '° Ex parte Wm. Many, 14 How. 24. Flippin, 94 U. S. 348. ii Life and Fire Ins. Co. v. Wilson, S ^ Ex parte Taylor, 14 How. 3 ; Ex Pet. 291. parte William Many, 14 How. 24. ^'^ Ex parte Milwaukee R. Co., 5 * Ex parte Newman, 14 Wall. 152 ; Wall. 188. Ex parte Schwaub, 98 U. S. 240 ; ^^ Ex parte Cutting, 94 U. S. 14 Ex parte Railroad Co., 103 U. S. 794. Ex parte David Taylor, 14 How. 3 ' Ex parte DeGroot, 7 Wall. 497. Ex parte Wm. Many, 14 How. 24 ® i7x^:)a?-^e Myra Clarke Whitney, 13 Ex parte Joseph Bradley, 7 Wall Pet. 404. ' 364 ; Ex parte Butting, 94 U. S. 14 300 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 382. Where there is a discretion. — Where there is an official judgment or discretion to be exercised, a writ of mandamus may issue to compel action in these respects, but it will not be allowed either to commend a particular judgment or to interfere with the exercise of the discretion.^ The refusal to exercise a discretion may constitute a proper case for the issuance pf the writ ; but where the mode of action is also in the discretion of the party against whom it is sought, it will not issue so as to interfere with such discretion.^ § 383. Instances where it has been issued. — It has been held proper to issue the writ from a circuit court, on the ground of ne- cessity for the exercise of its jurisdiction, to compel a municipal corporation to levy a tax to pay a judgment rendered by such court against the corporation ; ^ to restore an officer to an office from which he has been unlawfully removed ; * to compel an incum- bent of an office to deliver up papers, property and the insignia of the office to his successor;^ to compel a city council to pay certain necessary expenses authorized by the legislature ; ^ to compel trus- tees to admit children to schools, where they are entitled to the right of attendance ; '' to compel a board of canvassers to make a Arlincrton v. Van Huton, 44 Ala. 284 ; 106 ; McMullin v. State, 26 Id. 613 ; Reading v. Cumminc^s, 11 Pa. St. 196 ; State v. Warmouth, 23 La. Ann. 76 ; People V. Thompson, 25 Barb. 75; East Boston Ferry Co. w. Boston, 101 Fitch V. McDiai'mid, 26 Ark. 482 ; Mass. 488 ; Commissioners v. Phila- Stub V. McCrillus, 4 Kans. 250 ; Ex delphia, 3 Brewst. (Pa.) 596; Ex parte parte Conway, 6 Tex. 457 ; People v. Smith, 44 Ala. 654; Appling v. Bailey, Board of Police, 26 N. Y. 316 ; 44 Id. 333 ; 2 Add. on Torts (Wood's School Ins. V. People, 20 111. 530. ed.), 719, et seq. ; Life and Fire Ins. ^ United States v. Lawrence, 3 Dill. Co. v. Adams, 9 Pet. 573 ; Ex parte 42 ; Railroad Co. v. Wiswall, 23 Wall. Poultnev, 1 2 Pet. 472 ; Ex parte Tay- 507 ; Ex parte Bradstreet, 4 Pet, 102 ; lor, 14 How. 3. s. c, 7 Id. 634 ; s. c, 8 Id. 588 ; Insur- ^ United States v. Keokuk, 6 Wall, ance Co. v. Comstock, 16 Wall. 270; 516; Riggs v. Johnston Co., 6 Wall. Livingstone v. Dorgenois, 7 Cr. 577 ; 166; Wakeley v. Muscatine, Id. 481. Ex parte Crane, 5 Pet. 190 ; Appling See also Lower v. U. S., 91 U. S. 536 ; V. Bailey, 44 Ala. 333 ; Matter of Na- United States v. New Orleans, 98 U. bor, 7 Ala. 459; Dixon v. Field, 10 S. 381. Ark. 243 ; Manor v. McCall, 5 Ga. * Drew v. Judges, 3 II. & M. (Va.) 522 ; Warden v. Town Council, 9 R. 1 ; People v. Board of Police, 35 Barb. 1.128; Mayor w. Rainwater, 47 Miss. 531; State v. Common Council, 9 547 ; People v. Judge, etc., 24 Mich. Wis. 254. 408 ; Ex parte ]\^ewman, 14 Wall. ^ Walter v. Belding, 24 Yt. 658 ; 152; United States v. Seaman, 17 Church v. Slack, 7 Cush. 226; Sud- How. 225 ; United States v. Commis- bury v. Stearns, 21 Pick. 148. sioners, 5 Wall. 553 ; Secretary v. ® Commissioners v. Philadelphia, 3 McGarrahan, 9 Wall. 298. Brewst. (Pa.) 596. ^ 2 Id. ; McDiarmid v. Fitch, 27 Ark. ^ State v. Duffy, 7 Nev. 342. MANDAMUS. 301 complete canvass of all the returns received by them ; ^ to compel a judge of an inferior court to sign a bill of exceptions in a case tried before him,^ or to make up a record and give judgment thereon, so that a writ of error maybe brought;^ to compel a judge to enter a judgment rendered by his predecessors ; * to com- pel a judge to enter a judgment on the report of a referee ; ^ to compel a clerk to issue an execution on a judgment ; ^ and gener- ally to compel the performance of all ministerial duties on the part of officers, corporations and inferior courts, where there is no other adequate legal remedy by which the specific duty can be en- forced, and the relator has a clear legal right to the performance of it, and the performance is refused.'' Under the power conferred by the statute, the Supreme Court may issue this writ to the Court of Claims to compel it to hear and determine a motion for a new trial ; ^ and to a district court commanding it to execute its de- crees, notwithstanding the legislature of the state has attempted to annul them on the ground that the court had no jurisdiction.^ § 384. When a mandamus is necessary for the exercise of juris- diction. — Under section 716 of the Revised Statutes, the writ can only issue from the Supreme Court and the circuit and district courts in cases where it " may be necessary for the exercise of their respective jurisdictions agreeable to the usages and principles of the law." Under this provision the circuit court cannot grant it unless it is necessary for the exercise of its jurisdiction, although the par- ties are citizens of different states. '"^ But the circuit court has a right, as we have noticed, to issue the writ against a municipal cor- poration to compel the levy of a tax to pay a judgment rendered against the corporation in said court," as this is necessary for the » Florida v. Gibbs, 13 Fla. 55. Mavor, 35 N. J. 396 ; People v. Eas- ^ Porter v. Harris, 4 Coll. (Va.) ton' 13 Abb. Pr. (N. S.) 159; People 485; State v. Hull, 3 Cold. (Tenn.) v. Supervisors, 12 Barb. 217; Rail- 255 ; People v. Pearsons, 3 111. 189 ; road Co. v. Clinton Co., 1 Ohio St. 77 ; Ux parte Crane, 5 Pet. 190. People v. Thompson, 64 N. Y. 600 ; ^ Ex parte Bradstreet, 7 Pet. 634. People v. Thompson, 25 Barb. 73 ; * Life Insurance Co. v. Wilson, 8 People w. Head, 25 111. 325; Peoples. Pet. 291. Hilliard, 29 Id. 418 ; High's Ex. Leg. 5 Russell V. Elliott, 2 Cal. 245. Hem. Tit. Mand. « People V. Loucks, 28 Cal. 68. » Ex parte United States, 16 Wall. ' Nelson v. Justices, 1 Cold, (Tenn.) 699 207 ; People v. Green, 64 N. Y. 499 People V. Supervisors, Id. 600 Strong, Petitioner, 20 Pick. 484 Traver v. Commissioners, 17 Ala. 527 9 United States v. Peters, 5 Cr, 115. 1" Wheeling V. Mayor, 1 Hughes 90; Bath Court v. Amy, 13 Wall. 244; Graham v. Norton, 1 Wall. 427. State Nicholson Pavement Co. v. '^ Riggsv. Johnston Co., 6 Wall. 166; 302 FEDERAL PLEADING, PRACTICE AND PROCEDURE. proper exercise of its jurisdiction. But a mandamus from the Su- preme Court to a district court is not necessary for the exercise of the appellate jurisdiction of the court, except in prize cases, as the proper appellate court would be the circuit court.^ § 385. Practice and proceedings. — The writ is either alternative or peremptory ; and the first writ issued is usually an alternative one, requiring the party against whom it is issued to do the act or show cause why he does not, at some specified time and place. If the defendant appears and shows sufficient excuse, then the writ is dismissed ; but if otherwise, or he makes default, then the peremp- tory writ issues commanding the act to be done. But this does not appear to be the uniform practice in the Su- preme or other federal courts. The relator sometimes proceeds by motion based upon an affidavit, for -an order to show cause why the writ should not issue. The hearing on the motion is sometimes, if not generally, ex parte, and without notice to the party against whom it is sought. The order, if allowed, is served on the de- fendant, and requires him to appear and show cause against the issuing of the writ at a certain time and place, when he can have an opportunity to be heard and to controvert the statements in the relator's affidavit by counter affidavits. Another mode of proceeding is by petition or complaint under oath, in which the relator sets forth the facts which entitle him to the writ, to which the attention of the court is called by motion, after due notice to the defendant of the time and place it will be heard, at which time he has an opportunity to defend, and may demur, move to quash, answer, or reply to the petition or complaint, as he may deem advisable. § 386. -When the writ will not issue. — The writ of mandamus is not a proper process for the correction of erroneous judgments or decrees of the inferior court ;- nor will it issue to compel such court to open up a judgment, after a refusal so to do in the exercise of a judicial discretion ;^ nor to restore a person to the office of attorney or counsellor of the court, after dismissal therefrom by a court United States v. Johnson, 7 Cent. L. ^ Ex parte Hoyt, 13 Pet. 279 ; Ex J. 130; United States ??. New Orleans, parte Whitney, 13 Pet. 404 ; Ex parte 98 U. S. 381; Supervisors v. United Flippin, 94 U. S, 348; Ex parte ho- States, 4 Wall. 435 ; Commissioners v. ring, Id. 418 ; Ex parte Raih'oad, 101 Aspinwall, 24 Howard 376 ; Weber v. U. S. 711 ; Railroad Co. v. Ailing, 99 Lee County, 6 Wall. 210. Id. 463 ; Ex parte French, 100 Id. 5. 1 Ex parte Jesse Hoyt, 13 Pet. 279. ^ Ex parte Many, 14 How. 24. MANDAMUS. 303 having jurisdiction of the matter;^ nor to compel a court to set aside an order, duly entered, for the vacation of a judgment;- nor to compel a circuit court to proceed to execute a judgment from which an appeal has been duly taken to the Supreme Court ;^ nor to command a governor of a state to deliver up a fugitive from justice, under a requisition from the governor of another state;* nor can it perform the office of an appeal or writ of error.^ § 387. The general principles and practice applicable to all courts. — The principles and practice generally applicable in case of man- damus are applicable to all courts, whether federal or state. The statute, as we have seen, gives the circuit and district courts power to issue the writ whenever necessary for the exercise of their re- spective jurisdictions, agreeable to the usages and principles of the common law. And whenever they have power for this purpose, the general principles and practice in such cases would be appli- cable ; and the authorities we have cited, whether of the federal or state courts, will be equally applicable to any federal court, so far as they relate to the general doctrines and practice. For form of writ, see post, No. 257. ^ Ex parte Secombe, 19 How. 9. ^ United States v. Addison, 22 How. But this is otherwise where the court 174. had no jurisdiction: Ex parte Brad- * Governor of Kentucky v. Gover- ley, 7 Wall. 364; £"0; ^m-^e Robinson, nor of Ohio, 24 How. 66. 19 Wall. 505 ; Ex parte Garland, 4 » Ex parte Schwaub, 98 U. S. 240 ; Wall. 378. Ex parte Railway Co., 103 U. S. 794. '^ Ex parte Ransom, 20 How. 581. CHAPTER XVII. WRITS OF HABEAS CORPUS. § 388. When federal courts may issue. — The Supreme Court and the circuit and district courts, and the several justices and judges thereof within their respective jurisdictions, have power to grant writs of habeas corpus for the purpose of inquiry into the cause of restraint of liberty ; ' but they will not issue for such a purpose where the party for whose benefit it is invoked is a prisoner in jail, unless "he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custodv for an act done or omitted under an alleged right, title, authority, privilege, protection or exemption claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations ; or unless it is necessary to bring the prisoner into court to testify."^ The application for the writ must be made by a complaint in writing, signed by the person for whose relief it is intended, and it must set forth the facts concerning the detention, in whose custody he is detained, and by virtue of what claim or authority he is de- tained, if known, and these facts must be verified by the oath of the person making the application.^ It will be noticed that the complaint must be signed by the party restrained of his liberty, who must verify it. This is imperative ; and an application for the writ made by his friends, without the authority of the party for whom it is made, will be denied. In 1844 Thomas W. Dorr was tried and convicted, in the su- preme court of Rhode Island, for treason against that state, and sentenced to the state's prison for life. On motion for a writ of 1 Rev. Stat. 11 751, 752. ' Rev. Stat. | 754. 2 Rev. Stat, g 753. HABEAS CORPUS. 805 habeas corpus, in the Supreme Court of the United States, aflS- davits were read to show that personal access to Dorr was refused, in consequence of which his authority could not be obtained for an application for the writ ; and it was urged that there was no other mode of ascertaining whether or not it was Dorr's wish that the case should be brought before this court. But the motion was denied, because no court of the United States or judge thereof can issue a habeas corpus to bring up a prisoner who is in custody under a sentence or execution of a state court, for any other pur- pose than to be used as a witness ; and because it did not appear that the application was made by authority of Dorr or at his re- quest.^ The authority of a commissioner to issue a writ o*f habeas corpus, to take from jail a person committed by authority of the United States, and to bring him before him for the purpose of giv- ing his deposition, to be used in a district court, has been denied;^ and even the power of a judge or a justice of a United States to issue the writ in vacation, for the purpose of bringing the wit- ness into court at an approaching term, has been questioned.^ For form of application, writ and return, see post, Nos. 262, 263, 264. § 389. Provisions of the statute ; habeas corpus and certiorari. — The provisions of the Revised Statutes above cited are a substan- tial re-enactment of the previous statutory provisions regulating the procedure in cases of habeas corpus, and they afford a plain guide in those cases to the proper practice where the original jurisdiction of the federal courts is invoked. The case of Ex parte Lange* will illustrate the practice in such cases, as well as the general prin- ciples of the law relating to this subject. The petitioner had been indicted, tried and convicted in the circuit court of the United States for the southern district of New York, for stealing, purloin- ing, embezzling and appropriating to his own use certain mail-bags belonging to the Post-Office Department. The value of the bags, as 1 Ex parte Dorr, 3 How. 103 (1845). re Hoyle, 9 A. L. Rec. 65. But see This decision was made previous to In re Ferrens, 3 Ben. 442, where it the act of February 5, 1867, which was held that the wife of the party in expressly provided that the applica- custody could make application for tion should be made in writing, and his discharge. the facts veritied by the oath of the ^ Ex parte Barnes, 1 Sprague 133. applicant. This act, in respect to the * Conkling PI. 247. application, is substantially re-enacted * 18 Wall. 103. bv I 754 of the Revised Statutes : Li 20 306 FEDERAL PLEADING, PRACTICE AND PROCEDURE. found by the jury, was less than twenty-five dollars, the punishment for which, as provided by statute, was imprisonment for not more than one year or a fine of not less than ten dollars nor more than two hundred dollars. The presiding judge sentenced the petitioner under said conviction to one year's imprisonment and to pay a fine of two hundred dollars, and he was committed to jail on said sen- tence, but on the day following his commitment his fine was paid to the clerk of the court, who subsequently paid the same into the treasury of the United States. The petitioner was the next day thereafter brought before the same judge on a writ of habeas cor- pus, when an order was entered vacating the former judgment, and he was again sentenced to one year's imprisonment from that date, and the return of the marshal showed that he held the prisoner under the latter sentence. All this was done during the term at which he was tried and convicted. The habeas corpus issued by the circuit judge was returned into the circuit court and two district judges sat with him on the hearing, and the writ was discharged and the petitioner remanded to the custody of the marshal. A petition was afterwards filed by the prisoner in the Supreme Court of the United States, praying for a writ of habeas corpus to said marshal, on the ground that he was unlawfully imprisoned under the order of said circuit court, on consideration of which that court was of opinion that the facts aforesaid, which he alleged therein, fairly raised the .question whether the circuit court had not in the last aforesaid sentence, under which the prisoner was held, exceeded its powers ; and it directed a writ to issue, and also a writ of certiorari to bring up the record in the circuit court under which the petitioner was restrained of his liberty. On a final hearing of the case the court decided that although it had no authority to review the judgments of inferior courts in criminal cases by the use of the writ of habeas corpus or otherwise,^ yet it had power to look into the record of a case to determine whether the court had any power to render the judgment complained of, and to ascertain whether or not the court had exceeded its authority.^ ^ United States v. Moore, 3 Cr. 170 ; In re Kaine, 14 How. 103 ; Ex parte Durousseau v. United States, 6 Cr. Gordon, 1 Black 505. 307 ; Ex parte Kearney, 7 Wh. 42 ; ^ United States v. Hamilton, 3 Dall. Ex parte Watkins, 3 Pet. 193 ; For- 17 ; Ex parte Burford, 3 Cr. 448 ; Ex syth V. United States, 9 How. 571; j7arteBollman,4 Cr.75 ; i^xjpar^eWat- HABEAS CORPUS. 307 On the question whether the court had authority to pass the sec- ond sentence under which the prisoner was held, the Supreme Court decided that the court below could not vacate the former judgment and impose another punishment on the prisoner ; that the prisoner having paid into court the fine imposed upon him, and the money having passed beyond the control of the court, and the prisoner having also served several days of his imprisonment, all under a valid judgment, the court could not impose another punishment on the prisoner, as that would be to punish him twice for the same oifence. The court said : " The law authorizes imprisonment not ex- ceeding one year or a fine not exceeding two hundred dollars. The court through inadvertence imposed both punishments when it could rightfully impose but one. After the fine was paid and passed into the treasury, and the petitioner had sufiered five days of his one year's imprisonment, the court changed its judgment by sentencing him to one year's imprisonment from that time. If this latter sentence is enforced it follows that the prisoner in the end pays his two hun- dred dollars fine and is imprisoned one year and five days, being all that the first judgment imposed on him and five days imprisonment in addition." The prisoner was therefore discharged. § 390. The •writ not of course ; jurisdiction must be shown. — We have noticed that the issuance of the writ is not a matter of course. The court, in the exercise of original jurisdiction, may in a proper case issue the writ, but it should first appear that the court has power in the case to act; and where the cause of the imprisonment is fully shown by the petition, the court may, without issuing the writ, consider and determine whether, upon the facts presented in the petition, the prisoner, if brought before the court, would be discharged.^ This would be equivalent to a decision on a demurrer to the petition. § 391. Allowance, direction and return of the w^rit. — It is the duty of the court or judge to whom the application is made to award the writ forthwith, unless it appears from the petition itself kins, 3 Pet. 193 ; Ex parte Watkins, McCardle, 7 Wall. 506 ; ExparteYer- 7 Pet. 568 ; Ex parte Metzger, 5 How. ger, 8 Wall. 85. 176 ; Ex parte Kaine, 14 How. 103 ; ^ Ex parte Milligan, 4 Wall. 2 ; Ex Ex parte Wells, 18 How. 307; Ex parte Milburn, 9 Pet. 704; Ex parte parte Milligan, 4 Wall. 2; Ex parte Watkins, 3 Pet. 192; Ex parte Km- McCardle, 6 Wall. 318 ; Ex parte ney, 3 Hughes 9. 308 FEDERAL PLEADING, PRACTICE AND PROCEDURE. that the applicant is not entitled to it ; and it should be directed to the person in whose custody the party is detained.^ The party to whom it is directed should make due return thereof within three days thereafter, unless he be detained beyond the distance of twenty miles from the place where the return is required. If beyond that distance, and not more than one hun- dred miles, he is allowed ten days to make return ; and if beyond the distance of one hundred miles, twenty days ; and in making it he must certify the true cause of the detention, and bring the body of the person detained before the judge who granted the writ.^ When the writ is returned it is the duty of the court or judge to set a time for a hearing of the cause not exceeding five days there- after, unless the party petitioning requests a longer time. The facts set forth in the return may be denied by the petitioner, or he may allege other facts that may be material to the case, but they must be under oath, and the return and all answers or denials may be amended by leave of the court or justice, or the judge, so as to present the material facts. The proceeding is in a summary way to determine the facts of the case ; and after hearing the testimony and the arguments, the court or judge will dispose of the petitioner as law and justice requires.^ If a party is held under a sentence of a court that had jurisdic- tion of the case; the petitioner cannot be released though there are errors in the proceedings.^ And if a party has been committed for an alleged contempt of a court of competent jurisdiction, or by a court-marshal that had jurisdiction in the case, and it was within the sphere of its authority, he cannot be released on habeas corpus ; nor can an inquiry be made into the sufficiency of the causes of the commitment.^ But if a party is imprisoned by the sentence of a court or a judge or a magistrate, and the sentence is void for want of authority to pronounce it, as where the law under which the prosecution was instituted was unconstitutional and void; or where there was no authority for the magistrate, commissioner or other person to cause 1 Rev. Stat. § 755 ; Ex parte Wat- * Johnson v. U. S., 3 McLean 89 ; kins, 3 Pet. 193 ; Ex parte Milligan, Ex parte Parks, 93 U. S. 18 ; Ex parte 4 Wall. 2. Siebold, 100 U. S. 371. * Rev. Stat. §? 756, 757, 758. ' Ex parte Kearney, 7 Wh. 38 ; Ex • » Rev. Stat. ^§ 760, 761. parte Reed, 100 U. S. 13. HABEAS CORPUS. 309 the arrest or imprisonment of the party, then there is ground for a discharge upon a hearing of the habeas corpus.^ § 392. Proceedings governed by the common law. — The proceed- ings upon the writ in the federal courts are governed by the common law of England, as it existed at the time of the adoption of the Constitution, except in respect to changes made by acts of Congress.^ According to the doctrines of the common law, the decision of one court or magistrate refusing to discharge a prisoner was no bar to the issuing of other writs by other courts or magistrates having authority in such cases. And in case of a second or third investi- gation or inquiry into the cause of the detention, the court or magistrate can discharge the prisoner in the exercise of independ- ent powers, notwithstanding his discharge may have been refused by other courts or magistrates on other writs.^ Thus, where a person was arrested under an extradition treaty between the United States and Great Britain, and committed by a commissioner duly authorized to hear and determine the sufficiency of the charge made, and then a habeas corpus was sued out by the prisoner before a circuit court of the United States, which after a hearing dismissed the writ and remanded the prisoner, it was held that this was no bar to an inquiry by a justice of the Supreme Court of the United States upon a writ of habeas corpus issued by him, to inquire into the legality of the detention of the prisoner under such commitment.* § 393. The court cannot inquire into the facts of the case. — Under the provisions of the Revised Statutes relating to the writ, it was urged in a recent case that, whatever may have been the law or the practice prior to its enactment, the courts now have power, on a return to the writ, to inquire into the merits of the case ; that, taking into consideration all these provisions, it was the duty of the court to ascertain the facts on which the party is held, and to decide as an original question whether the prisoner ought to be held in custody, without regard to the previous decision of the court or magistrate by whose order he was committed. But the court de- 1 Ex parte Lange, 18 Wall. 163 ; ^ Ex parte Kaine, 3 Blatch. (C. C.) Ex parte Siebold, 100 U. S. 371 ; Ex 1 ; Ex parte Partington, 13 Mee. & parte Randolph, 2 Brock. 447 ; Ex W. 679 ; Canadian Prisoners' Case, 5 parte Davis, 14 L. R. 301 ; In re Id. 32 ; The King v. Luddis, 1 East. Farez, 7 Blatch. 345. 30G -, Burdett v. Abbott, 14 Id. 91 ; 2 Ex parte Watkins, 3 Pet. 193 ; Ex Walson's Case, 9 A. & E. 731. parte Randolph, 2 Brock. (C. 0.) 447. * Exparte Kaine, 3 Blatch. (C. C.) 1. 310 FEDERAL PLEADING, PRACTICE AND PROCEDURE. cided that where a party was held on process issued on a final judg- ment of a court or on the order of an examining magistrate, it had no authority to inquire into the evidence which led to the conviction or detention of the party ; that in determining upon habeas corpus the "facts" of the case, the court could not inquire into the facts which constitute the crime for which the party is convicted or de- tained ; that it could not retry the case, but only consider whether the court or magistrate acquired jurisdiction of the matter, or whether they exceeded their jurisdiction, and whether they had any legal or competent evidence of facts before them on which to base a judgment as to the guilt of the accused.^ Questions of this character have most frequently been presented in the execution of judicial duties under extradition treaties, where the person is held in custody under a commitment by a commissioner. The decision in the case last cited followed the current of previous decisions on this subject. Thus in Ex parte Van Aernam^ it was held that the circuit court could not sit in review on the merits of the decision made by a commissioner in an extradition case, in respect to either the facts or the law.^ But the decisions on this question have not been entirely clear or harmonious.* In a case just cited,^ Judge Blatchford reviewed the decisions and furnished an able exposition of the law on this subject. He observes : " The court issuing the writ must inquire and adjudge whether the commissioner acquired jurisdiction of the matter by conforming to the require- ments of the treaty and the statute ; whether he exceeded his juris- diction, and whether he had any legal or competent evidence of facts before him on which to exercise a judgment as to the criminality of the accused. But such court is not to inquire whether the legal evidence of facts before the commissioner was sufficient or insuffi- cient to warrant his conclusions." Under this decision error in law in the admission or exclusion of evidence before the commissioner ^ In re Joseph Stupp, 12 Blatch. 414, where it was held that in such (C. C.) 501 (1875) ; In re Frazei*, 7 Id. cases the court could not only look 34; 7?j re Macdonnell, 11 Id. 170; In into and pass upon the competency re Stupp, Id. 124; Ex parte Geissler, of evidence, but also its weight. See 4 Fed. Rep. 188 ; In re Doig, Id. 193. also In re Kaine, 14 How. 142. 2 3 Blatch. (C. C.) 160. ^ In re Joseph Stupp, supra. While ^ See also In re Ventremaitre, 9 N. in custody under a writ of habeas Y. Leg. Obs. 137; In re Heilbron, 12 corpus he cannot be arrested on a Id. 65. second warrant : In re Francois Farez, * In re Heinrich, 5 Blatch. (C. C.) 7 Blatch. 345. HABEAS CORPUS. 311 would not be considered, provided there was any legal or competent evidence of facts on which to base the judgment. § 394. Appeals to the circuit court. — Section 763 of the Revised Statutes provides for appeals, in certain cases, to the circuit courts as follows : " From the final decisions of any court, justice or judge inferior to the circuit court for the district in which the cause is heard : " 1. In the case of any person alleged to be restrained of his liberty in violation of the Constitution or of any law or treaty of the United States. " 2. In the case of any prisoner who, being a subject or citizen of a foreign state and domiciled therein, is committed, or confined, or in custody by or under the authority or law of the United States, or of any state, or process foun'ded thereon, for or on account of any act done or omitted under an alleged right, title, authority, privilege, protection or exemption set up or claimed under the com- mission, order or sanction of any foreign state or sovereignty, the validity and eff'ect whereof depend upon the law of nations, or under color thereof." Except in the cases provided therein, no appeal lies to a circuit court from a decision of the district court on an application for a habeas corpus.^ § 395. Appeal to the Supreme Court. — It is further provided by section 764 of the Revised Statutes that an appeal may be taken from the final decision of a circuit court, in the cases mentioned in the last clause of the preceding section. Under the provisions of former acts of Congress, substantially embodied in the foregoing sections, it has been held that, notwith- standing the provision made for appeal to the Supreme Court from the final decision of the circuit court, on habeas corpus, brought to such court by appeal from the decision of a " court, justice or judge inferior to the circuit court," they did not exclude the appellate jurisdiction of the Supreme Court in cases where the circuit court exercised original jurisdiction on habeas corpus.^ Although the limitation made by section 764 of the Revised Statutes would cut oif any right of appeal of cases described in the first clause of the preceding section, it would not affect the right of appeal in those cases where the circuit court exercised original jurisdiction. 1 Seavy v. Sevmour, 3 Cliff. 439. (1867) ; Ex parte Yerger, S Wall. 85 2 Ex parte McCardle, 6 Wall. 318 (1868). 312 FEDERAL PLEADING, PRACTICE AND PROCEDURE, Thej would fall within the reason and the principle of the cases last cited, and the right to an appeal would he clear. In Ex 'parte McCardle, Chase, C. J., who gave the opinion of the court, observed: "From decisions of a judge or a district court appeals lie to the circuit court, and from the circuit court court to this court. But each circuit court, as well as each district court and each judge, may exercise the original jurisdiction ; and no satisfac- tory reason can be assigned for giving appeals to this court from the circuit court rendered on appeal, and not giving like appeals from judgments of circuit courts rendered in the exercise of original juris- diction. If any class of cases was to be excluded from the right of appeal, the exclusion would naturally apply to cases brought into the circuit court by appeal rather than to cases originating there. In the former description of cases 'the petitioner for the writ, with- out appeal to this court, would have the advantage of at least two hearings, while in the latter, upon the hypothesis of no appeal, the petitioner would have but one."^ This interpretation of the statutes was followed in Ex parte Yerger,^ where the broad proposition was maintained that the appellate jurisdiction of the Supreme Court in such cases was con- ferred by the Constitution, except such as come within some limita- tions of the jurisdiction by acts of Congress ; and there being no such limitation applicable to appeals from the original cognizance of the circuit court in habeas corpus cases, that court could enter- tain jurisdiction of such appeals. In this case the court further held that on appeals it had jurisdiction to inquire into the lawfulness of the detention and relieve from it if found unlawful, even where the detention complained of was not by virtue of civil authority nor under the order of an inferior court, but by military officers for a trial before a military tribunal, and after an examination into the cause of the detention by the inferior court, resulting in an order remanding the prisoner to custody. § 396. In cases involving the law of nations. — It is further pro- vided that " when a writ of habeas corpus is issued in the case of any prisoner who, being a subject or citizen of a foreign state and domiciled therein, is committed or confined or in custody by or ^ As to the power of the Supreme pus in the exercise of original juris- Court and of district and circuit diction, see Rev. Stat. || 751, 752: courts, and the justices and judges ante, § 389. thereof, to issue writs of habeas cor- ^ Supra. HABEAS CORPUS. 31 3 under the authority or law of any one of the United States, or process founded thereon, on account of any act done or omitted under any alleged right, title, authority, privilege, protection or exemption,- claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations, notice of the said proceed- ing, to be prescribed by the court or justice or judge at the time of granting said writ, shall be served on the attorney-general or other oflBcer prosecuting the pleas of said state, and due proof of such service shall be made to the court or judge before the hearing." ^ § 397. Appeals, how taken. — Appeals on habeas corpus can only be taken on " such terms and under such regulations and orders, as well for the custody and appearance of the person alleged to be in prison, or confined, or restrained from his liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of ha- beas corpus, return thereto, and other proceedings, as may be pre- scribed by the Supreme Court, or, in default thereof, by the court or judge hearing the cause." ^ And pending the proceedings or appeal, " and until final judgment therein, and after final judgment of discharge, any proceeding against the person so imprisoned or confined or restrained of his liberty, in any state court, or by or under the authority of any state court, or by or under the authority of any state, for any matter so heard and determined, or in pro- cess of being heard and determined, under such writ of habeas corpus, shall be deemed null and void." ^ 1 Rev. Stat. | 762. ^ j^^^ gt^t. g 766, 2 Rev. Stat, f 765. CHAPTER XVIII. COURT OF CLAIMS — JURISDICTION, PLEADING, PRACTICE AND PROCEDURE. § 398. A fundamental principle : governments or sovereignties cannot be sued. — It is a familiar doctrine of the common law that a state, nation or sovereignty cannot be sued in its own courts without its consent.^ It is manifest, however, that all civilized nations must, in the usual course of their affairs, enter into con- tracts, and, in the execution of their various functions and duties, become justly liable to private persons and corporations. Previous to the act of Congress of February 24, 1855, the only remedy for a party having a claim against our government was by petition to Congress for special legislative action in the particular case, and if granted, a particular appropriation was necessary to satisfy the same. The act providing for a Court of Claims was passed to remedy a great mischief, to avoid many grievous wrongs, and to promote justice, and it has been liberally construed to accomplish the object intended.^ It provided for the organization and sessions of a Court of Claims, and gave it jurisdiction to hear and determine all claims founded upon any law of Congress, or upon any regu- lation of an executive department, or upon any contract, express or implied, with the government of the United States, and all claims which might be referred to it by either house of Congress ; ^ and it made further provisions for practice and procedure in said court.* ' " Immunity from suit is an inci- court, and published in the Southern dent of sovereignty :" Mr. Justice Law Review. Daniels, in Bonner v. United States, He says : " Previous to the year 9 Wall. 156; United States w. McLe- eighteen hundred and fifty-four the more, 4 How. 286. accumulation of private claims against - Brown v. The United States, 6 the government of the United States Ct. C. C. 171. presented to Congress for examina- ' Act Feb. 24, 1855, c. 122, s. 1, tion and relief had, at various times, V. 10, p. 612. engaged the attention of senators and ^ A statement of the causes which representatives. It was seen and led to the establishment of the Court acknowledged by them all that it was of Claims, and an interesting and beyond the power of Congress or its succinct history of the same, has been committees to make a thorough in- prepared by the Hon. William A. vestigation of those claims, or to act Richardson, one of the judges of the intelligently upon the large and con- COURT OF CLAIMS. 315 Since the original act providing for this court was adopted, additional powers have at various times been conferred upon it, and additional stantly increasinji number of petitions introduced at each session in behalf of persons havinf^ claims of various kinds for which they sought relief. Claimants had gone to Congress, and ■would continue to go there, as a mat- ter of right secured to them by the first article of the amendments to the Constitution of the United States, guaranteeing to the people the privi- lege to petition the government for redress of grievances. "It was seriously felt both in and out of Congress that the constitu- tional guaranty was of little value, and was substantially violated if pri- vate claimants against the govern- ment were allowed merely the naked right to have their petitions presented, without any further investigation and consideration. " To neglect to hear petitioners, or not to act upon their complaints when heard, was practically the same to them as would be the effect of a law expressly abridging the right of peti- tion in direct and flagrant violation of the Constitution. "And yet such was the extent of these claims, and the difficulty of reaching the real facts in each case, that few of them were ever acted upon, and many honest creditors of the United States were turned away without a hearing, and others were deterred from presenting their peti- tions for redress by the difficulties in the way of ever reaching a final de- termination, while it was occasionally found that, upon hasty consideration or imperfect ex 'parte evidence, a claim was allowed and paid which was, to say the least, of doubtful validity. " Committees could not constitute themselves courts for the trial of facts. They had not the time to de- vote to that kind of investigation, to the interruption or exclusion of their duties to the country on the great national questions which were always pending in Congress. They could not efi"ectively examine the claimants' witnesses to any great extent before themselves, and they were not suf- ficiently familiar with the matters in controversy to be able to procure witnesses for the government. Claim- ants, in fact, presented only ex parte cases, supported by affidavits and the influence of such friends as they could induce to appear before the committees in open session, or to see the members in private. No counsel appeared to watch and defend the interest of the government. Com- mittees were, therefore, perplexed beyond measure with this class of business, and most frequently found it more convenient and more safe not to act at all upon those claims which called for much investigation, espe- cially when the amounts involved seemed large. Moreover, when bills for relief in meritorious cases were re- ported, few of them were acted upon tsy either house, or, if passed by one, were not brought to a vote in the other house, and so fell at the final adjournment, and if ever revived, had to be begun again before a new Congress and a new committee, and so on year after year and Congress after Congress. " Several plans for relief were from time to time proposed by bills, reso- lutions or motions, or were suggested by senators and representatives in the course of debate. But no measure was carefully and fully considered until the second session of the Thirty- third Congress, in the year eighteen hundred and fifty-four. " On the sixth of December of that year Senator Brodhead, of Pennsyl- vania, in pursuance of previous notice, asked and obtained leave to introduce a bill establishing a commission for the examination and adjustment of private claims, which was read a first and second time by its title and refer- red to the Committee on Claims. This was a carefully-drawn and well-pre- pared bill. It iiad evidently been con- sidered by members of the committee and had their concurrence before its introduction, for it was soon reported back without amendment. When the 316 FEDERAL PLEADING, PRACTICE AND PROCEDURE. regulations made as to practice and procedure therein amount of business is now annually transacted by it. and a large bill came up for discussion in the Sen- ate, it soon became apparent that the prevailing opinion of members was that somethincr more was needed than a mere commission, with its members appointed for a term of years, or re- movable at the pleasure of the Execu- tive. It was seen that there would be frequent changes of commissioners with the change of parties on the in- coming of new administrations, and that with the constant liability of re- moval the independence of the com- missioners would be greatly weakened and their usefulness much impaired. Besides, men of ability and learning in the law would not give up their position and practice to accept such semi-judicial offices, subject to removal at any time. The desire expressed was to have an independent and perma- nent tribunal, which should pass upon the claims made against the govern- ment with all the formalities, safe- guards and judicial learning which distinguish courts of justice estab- lished for the trial of causes between individuals. " Senator Hunter, of Virginia, sug- gested some amendments and pro- posed the appointment of judges with life tenure, instead of commissioners, as the best means of securing that complete independence which it was important to establish, and of obtain- ing the best men to fill the positions. He said : " ' When these safeguards are pro- vided, I think we should establish the most admirable tribunal for doing j us- tice to private claimants, and, at the same time, for throwing proper checks about the treasury of the United States, that could be established.' " After this discussion the bill was referred on the 18th of December, 1854, to a select committee composed of Senators Brodhead of Pennsyl- vania, Jones of Tennessee, Hunter of Virginia, Clayton of Delaware and Clay of Alabama. On the 20th of December this committee reported a substitute entitled 'An act to estab- lish a court for the investigation of claims against the United States.' This bill differed from the former one very little, except in the important feature of establishing a permanent and independent court instead of a commission. The bill thus drawn met the approval of the Senate, and on the 21st of December it passed that body without a vote recorded against it. " The bill reached the House of Representatives on the 24th of De- cember, and was referred first to the judiciary committee, but this refer- ence was changed, and it was sent to the committee on claims. It was soon reported back with some amend- ments which did not alter the main features of the bill, and was passed by the House on the 23d of February, 1855, by a vote of 150 to 46. Two days after, Februai-y 25, the bill was signed by the President and became a law. " The act required the appointment of three judges by the President, by and with the advice and consent of the Senate, to hold their offices dui-- ing good behavior. President Pierce appointed two of them on the 3d of March, and the other on the 8th of May, 1855. They organized on the 11th of May, 1855, making choice of Judge Gilchrist as presiding judge, and immediately entered upon the discharge of their duties. " The magnitude and difficulties of the business of the court, with its pe- culiar jurisdiction, are well presented in 3 report made to Congress by Judge Gilchrist, for himself and his associ- ates, bearing date June 23, 1856, from which the following extracts are taken : " ' As to the business of the court, we are convinced that no one who has not had personal experience on the subject can have any correct idea of its diversity, its intricacy, its perplex- ity, the exhausting labor necessa"ry for its investigation, or the large sum of money it involves. Until the institu- tion of this court, there had never been anything like a systematic inquiry COURT OF CLAIMS. 317 We will now proceed to consider the organization of said court and its sessions, after which we will treat of its present jurisdiction, and of pleading, practice and procedure therein. into the modes of action by the gov- ernment through the executive de- partments, or the relation in regard to contracts and the liabilities arising therefrom which the government bore to the citizens. It was inevitable, and it is astonishing that it should not have been sooner perceived, that among twenty-five millions of people, inhab- iting the almost boundless territory comprehended by the Union, innu- merable questions of the most diffi- cult and delicate nature must have arisen, delays in the decision of which were alike discreditable to the moral sense of the people, and the public ftiith of the government, of which the people were the foundation. It has i)een often asserted and proved by the experience of the British Parlia- ment that legislative bodies are un- fitted, by the pressure of great public interests, for careful judicial inves- tigation into private rights. The con- sequence has been in our country that claims accumulated until their mag- nitude repressed all willingness to in- vestigate them, and a state of things arose which made it hopeless almost to present a claim against the United States with any prospect of a decision. Such was the condition of aifairs when we entered upon the discharge of our duties. Our field of action was en- tirely new. We had no precedents to guide us. It was necessary at once to adopt some system of rules for the transaction of business. The ordi- nary rules of practice in courts of law were obviously inapplicable. We were forced to adopt rules in advance of any experience upon the subject, conscious that we should be forced often to modify and sometimes to abrogate them. We found numer- ous cases involving questions entirely out of the path of ordinary legal in- vestigation, requiring a degree of care and study rarely necessary in courts of justice. Cases of contracts, intricate in their details, imperfectly defined by the evidence, reducible with difficulty to any legal principles. and enormous in amount, met us at the threshold. Cases involving the proper construction of treaties, im- portant questions of public law, and that most difficult and delicate of all questions, the responsibility of the United States to their citizens, were laid before us. The construction of acts of Congress, the legitimate powers of the executive departments, the du- ties and liabilities of government offi- cers, the constitutional powers of the general government, the duties of neu- tral nations, and questions arising out of a state of war, were all, directly or incidentally, to be inquired into. It cannot be presumed that, with a due regard to our own reputation or to our official oaths, we were disposed to pass lightly upon questions of such momentous importance. Our object has been to give each case such a de- gree of care and patient attention as would enable us to use it as a prece- dent in subsequent cases of a like character. Our desire has been, not to get rid of the cases, but to decide them ; and in order to do that they must be carefully examined.' " The original act provided that at the commencement of each session of Congress, and at the commencement of each month during the session, the court should report the cases upon which they should have finally acted, stating in Ciich the material facts which they found established by the evi- dence, with their opinion in the case, and the reasons upon which such opinion was founded, and the opinion of any judge who should dissent from the majority. It also directed the court to prepare a bill or bills in those cases which received the favorable decision thereof in such form as, if enacted, would carry the same into efi'ect. These provisions might per- haps have accomplished the desired result, and have proved satisfactory, had they not been accompanied with others which delayed and embarrassed the proceedings thereon in Congress, and, to a large extent, actually pre- 318 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 399. Organization and sessions of the Court of Claims. — In re- gard to the organization and sessions of the Court of Claims, the Revised Statutes provide as follows : Judges. — Sec. 1049. The Court of Claims, established by the vented any final action whatever. It required the court to transmit, with the reports, the briefs of the solicitor for the government and of the claim- ant, and the testimony in each case. " The claims reported upon adverse- ly were, by the terms of the act, to be placed on the calendar ; and all reports and bills from the court were to be continued from session to ses- sion, and from Congress to Congress, until finally acted upon. But claims reported favorably upon, and the ac- companying bills, were not required to be placed upon the calendar. At the very outset, when the first report came in, the question arose as to what was to be done with the favorable re- ports and bills. It was decided to refer them to the committee on claims, and that course was ever after fol- lowed while the system of reporting to Congress continued. " The committee on claims finding a mass of evidence, with the briefs in each case, referred to them, very nat- urally felt that it was their duty to go carefully over the whole matter, to read all the evidence, and to examine the briefs of the claimant and of the solicitor for the government. Claim- ants were uneasy and pressing, and the troubles and perplexities of the members of the committee were nu- merous. To hear the cases anew, or to examine all the papers in each case and submit the questions which were raised on the facts and the law to the decision of the committee, would re- quire more time and labor of the members than it was possible to de- vote to such duty. If the work which the court had done was thus to be all gone over again in committee, little was gained by reference to the court at all. In fact it was a positive loss and injury to the claimants, because they were forced to try their cases twice, while neither Congress nor claimants obtained relief. Favorable reports were often not concurred in or not acted upon at all, and were finally lost altogether. " This was not what the friends of the act establishing the court intended, nor what they hoped and expected to accomplish. In discussing the orig- inal bill in the Senate in December, 1854, Senator Hunter, of Virginia, had said : ' I take it for granted that there would scarcely be a case in which Congress would not concur in the decision of a court thus estab- lished.' It was no doubt supposed, as was said at a later date by a mem- ber of the House from Pennsylvania, that the bills reported by the court would be read over by the committee simply to ' see whether there was anything contained in them which might be considered as trenching on the privileges or rights of the House, and if there were not, that they might be reported back for the House to act on them.' • " It was not foreseen that the com- mittee would feel reluctant to take the responsibility of reporting back the bills without examination of the evidence upon which they were founded, evidence which the law re- quired should be submitted to Con- gress, and which had been referred to them by vote of the House. Such was the inevitable consequence of laying the whole record in each case before Congress, and it defeated one great object of the act establishing the court, that of relieving Congress from the consideration of private claims upon the evidence. When this became apparent from actual experi- ence, Congress, ever ready as it has been to sustain and increase the use- fulness of the court, made important and radical changes and improve- ments in the organic act. " On the 3d of March, 1863, an amendatory act was passed, of which the most material alterations were these : "Two additional judges were added COURT OF CLAIMS. 319 act of February 24, 1855, shall be continued. It shall consist of a chief justice and four judges, who shall be appointed by the Presi- dent, by and with the advice and consent of the Senate, and hold their offices during good behavior. Each of them shall take an oath to support the Constitution of the United States and to dis- charge faithfully the duties of his office, and shall be entitled to receive an annual salary of four thousand five hundred dollars, payable quarterly from the treasury. Seal. — Sec. 1050. The Court of Claims shall have a seal, with such device as it may order. Court-rooms, etc., how provided.— /S'ec. 1051. It shall be the duty of the Speaker of the House of Representatives to appropriate such rooms in the Capitol at Washington, for the use of the Court of Claims, as may be necessary for their accommodation, unless it appears to him that such rooms cannot be so appropriated without interfering with the business of Congress, In that case the court shall procure, at the city of Washington, such rooms as may be necessary for the transaction of their business. to the court, making the number five. An appeal was allowed to the Su- preme Court by either party where the amount should exceed three thou- sand dollars, and by the defendants in other cases. Every judgment was to be paid ' out of any general appro- priation made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of the Court of Claims, and signed by the Chief Jus- tice, or in his absence by the pre- siding judge.' Interest was to be allowed upon judgments in certain cases in favor of claimants, when on appeal to the Supreme Court the same should be affirmed. The former re- quirement that the court should send to Congress the records, evidence, judgments and bills was done away with. " These provisions still stand as the existing law. " Some other amendments were made by the act relating to jurisdic- tion which we shall refer to hereafter, and others in relation to details of less consequence. " The last section of the act led to some difficulty. It provided that no money should be paid out of the treasury for any claim passed upon by the court till after an appropria- tion therefor should be estimated for by the Secretary of the Treasury. The Supreme Court held that this au- thority given to the head of an execu- tive department, by necessary impli- cation, to revise the decision of the Court of Claims requiring the pay- ment of money, denied to it the j udicial power from the exercise of which appeals could be taken to that court, and they refused to take jurisdiction of any appeals from the Court of Claims. When that decision was pro- mulgated, Congress, in March, 1866, repealed the section referred to, and the Supreme Court has ever since en- tertained jurisdiction of such appeals. " From that time the business of the court has gone on smoothly, with no other difficulties than those incident to the trial and investigation of cases of such magnitude, involving such in- tricate and peculiar questions as do those which come before this court."' 820 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Sessions. — See. 1052. The Court of Claims shall hold one annual session, at the city of Washington, beginning on the first Monday in December and continuing as long as may be necessary for the prompt disposition of the business of the court. Quorum. — And any two of the judges of said court shall con- stitute a quorum, and may hold a court for the transaction of business.^ Officers of the court. — Sec. 1053. The said court shall ap- point a chief clerk, an assistant clerk if deemed necessary, a bailiff and a messenger. The clerks shall take an oath for the faithful discharge of their duties, and shall be under the direction of the court in the performance thereof; and for misconduct or incapacity they may be removed by it from office ; but the court shall report such removals, with the cause thereof, to Congress, if in session, or, if not, at the next session. The bailiff shall hold his office for a term of four years, unless sooner removed by the court for cause. Salaries of clerks, bailiff and messenger. — Sec. 1054. The salary of the chief clerk shall be three thousand dollars a year, of the assistant clerk two thousand dollars a year, of the bailiff fifteen hundred dollars a year, and of the messenger eight hundred and forty dollars a year, payable quarterly from the treasury. Clerk's bond. — Sec. 1055. The chief clerk shall give bond to the United States in such amount, in such form and with such security as shall be approved by the Secretary of the Treasury. Contingent fund. — See. 1056. The said clerk shall have au- tliority, when he has given bond as provided in the preceding sec- tion, to disburse, under the direction of the court, the contingent fund which may from time to time be appropriated for its use ; and his accounts shall be settled by the proper accounting officers of the treasury in the same Avay as the accounts of other disbursing agents of the government are settled. Reports to Congress; copies for departments, etc. — Sec. 1057. On the first day of every December session of Congress, the clerk of the Court of Claims shall transmit to Congress a full and complete statement of all judgments rendered by the court during the previous year, stating the amounts thereof and the parties in whose favor they were rendered, together with a brief synopsis of ^ The act of 1874, ch. 468, requires three judges to make a quorum or enter any judgment. COURT OF CLAIMS. 3£I the nature of the claims upon which they were rendered. At the end of every term of the court he is required to transmit a copy of its decisions to the heads of departments ; to the Solicitor, the Comptrollers and the Auditors of the Treasury; to the Commis- sioners of the General Land-Office and of Indian Affairs ; and to the chiefs of bureaus, and to other officers charged with the adjust- ment of claims against the United States. Members of Congress not to practice in the court. — Sec. 1058. Members of either house of Congress shall not practice ia the Court of Claims. § 400. Jurisdiction, pleading, practice and procedure of the Court of Claims. — The Revised Statutes and the amendments thereof pro- vide as follows in reference to the jurisdiction, powers and pro- cedure of the Court of Claims : Jurisdiction of claims founded on statutes or contracts, OR REFERRED BY CoNGRESS. — Sec. 1059. The Court of Claims shall have jurisdiction to hear and determine the following matters: First. All claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract,, expressed or implied, with the government of the United States, and all claims which may be referred to it by either house of Con- gress. Jurisdiction of set-offs and counter-claims of United States. — Second. All set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever, on the part of the government of the United States against any person making claim against the government in said court. Jurisdiction of claims of disbursing officers for losses, etc. — Third. The claim of any paymaster, quartermaster, com- missary of subsistence or other disbursing officer of the United States, or of his administrators or executors, for relief from re- sponsibility on account of capture or otherwise, while in the line of his duty, of government funds, vouchers, records or papers in his charge, and for which such officer was and is held responsible. Jurisdiction of claims for captured and abandoned prop- erty. — Fourth. Of all claims for the proceeds of captured or abandoned property, as provided by the act of March 12, 1863, chapter 120, entitled "An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrec- 21 322 FEDERAL PLEADING, PRACTICE AND PROCEDURE. tionary districts within the United States," or hy the act of July 2, 1864, chapter 225, being an act in addition thereto; provided^ that the remedy given in cases of seizure under the said acts, by preferring claim in the Court of Claims, shall be exclusive, pre- cluding the owner of any property taken by agents of the Treasury Department as abandoned or captured property in virtue or under color of said acts from suits at common law, or any other mode of redress whatever, before any court other than the said Court of Claims; provided^ also, that the jurisdiction of the Court of Claims shall not extend to any claim against the United States growing out of the destruction or appropriation of or damage to property by the army or navy engaged in the suppression of the rebellion. Private claims in Congress, when transmitted to Court OF Claims. — Sec. 1060. All petitions and bills praying or provid- ing for the satisfaction of private claims against the government, founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, shall, unless otherwise ordered by resolution of the house in Avhich they are introduced, be transmitted by the Secretary of the Senate or the Clerk of the House of Representatives, with all the accompanying documents, to the Court of Claims. Judgments for set-off or counter-claim, how enforced. — See. 1061. Upon the trial of any cause in which any set-off, counter- claim, claim for damages or other demand is set up on the part of the government against any person making claim against the govern- ment in said court, the court shall hear and determine such claim or demand both for and against the government and claimant ; and if upon the whole case it finds that the claimant is indebted to the government, it shall render judgment to that eifect, and such judg- ment shall be final, with the right of appeal, as in other cases pro- vided for by law. Any transcript of such judgment, filed in the clerk's office of any district or circuit court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court, and be enforced as other judgments in such courts are enforced. Decree on accounts of paymasters, etc. — See. 1060. Whenever the Court of Claims ascertains the facts of any loss by any paymas- COURT OF CLAIMS. 323 ter, quartermaster, commissary of subsistence, or other disbursing offi- cer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree set- ting forth the amount thereof, and upon such decree the proper accounting officers of the treasury shall allow to such officer the amount so decreed, as a credit in the settlement of his accounts. Claims referred by departments. — Sec. 1068. Whenever any claim is made against any executive department, involving dis- puted facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision will affect a class of cases, or furnish a precedent for the future action of any executive department in the adjustment of a class of cases, without regard to the amount involved in the particular case, or where any authority, right, privilege or exemption is claimed or denied under the Constitution of the United States, the head of such department may cause such claim, with all the vouchers, papers, proofs and documents pertaining thereto, to be transmitted to the Court of Claims, and the same shall be there proceeded in as if originally commenced by the voluntary action of the claimant ; and the Secretary of the Treasury may, upon the certificate of any auditor or comptroller of the Treasury, direct any account, mat- ter or claim, of the character, amount or class described in this section, to be transmitted, with all the vouchers, papers, documents and proofs pertaining thereto, to the said court, for trial and adju- dication ; provided, that no case shall be referred by any head of a department unless it belongs to one of the several classes of cases which, by reason of the subject-matter and character, the said court might, under existing laws, take jurisdiction of on such voluntary action of the claimant. Procedure in cases transmitted by departments. — See. 1064. All cases transmitted by the head of any department, or upon the certificate of any auditor or comptroller, according to the provisions of the preceding section, shall be proceeded in as other cases pending in the Court of Claims, and shall in all respects be subject to the same rules and regulations. Judgments in cases transmitted by departments, how paid. — See. 1065. The amount of any final judgment or decree rendered in favor of the claimant, in any case transmitted to the Court of Claims under the two preceding sections, shall be paid out of any 324 FEDERAL PLEADING, PRACTICE AND PROCEDURE, specific appropriation applicable to the case, if any such there be ; and where no such appropriation exists, the judgment or decree shall be paid in the same manner as other judgments of the said court. Claims growing out of treaties not cognizable therein. — Sec. 1066. The jurisdiction of the said court shall not extend to any claim against the government not pending therein on December one, eighteen hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into with foreign nations or with the Indian tribes. Claims not to be prosecuted by parties having suits in other courts respecting same against persons acting for THE United States. — Sec. 1067. No person shall file or prosecute in the Court of Claims, or in the Supreme Court on appeal there- from, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or immediately, under the authority of the United States. Aliens. — Sec. 1068. Aliens, who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject-matter and character, might take jurisdiction. Limitation. — Sec. 1069. Every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives as provided by law, within six years after the claim first accrues ; provided, that the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased ; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. COURT OF CLAIMS. 325 Rules of practice ; contempts. — Sec. 1070. The said court shall have power to establish rules for its government and for the regulation of practice therein, and it may punish for contempt in the manner prescribed by the common law, may appoint commis- sioners, and may exercise such powers as are necessary to carry into effect the powers granted to it by law. Oaths and acknowledgments. — Sec. 1071. The judges and clerks of said court may administer oaths and aGfirmations, take acknowledgments of instruments in writing, and give certificates of the same. Petition, aviiat to set forth. — Sec. 1072. The claimant shall, in all cases, fully set forth in his petition the claim, the action thereon in Congress or by any of the departments, if such action has been had ; what persons are owners thereof or interested therein, when and upon what consideration such persons became so inter- ested ; that no assignment or transfer of said claim, or of any part thereof or interest therein, has been made, except as stated in the petition ; that said claimant is justly entitled to the amount therein claimed from the United States, after allowing all just credits and offsets ; that the claimant, and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne true allegiance to the government of the United States, and, whether a citizen or not, has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said gov- ernment, and that he believes the facts as stated in the said petition to be true. And the said petition shall be verified by the affidavit of the claimant, his agent or attorney. Petition to be dismissed if issue found against claimant AS TO ALLEGIANCE, ETC. — Sec. 1073. The said allegations as to true allegiance and voluntary aiding, abetting or giving encouragement to rebellion against the government may be traversed by the govern- ment, and if on the trial such issues shall be decided against the claimant, his petition shall be dismissed. Burden of proof and evidence as to loyalty. — Sec. 1074. Whenever it is material in any claim to ascertain whether any per- son did or did not give any aid or comfort to the late rebellion, the claimant asserting the loyalty of any such person to the United States during such rebellion shall be required to prove affirmatively that such person did, during said rebellion, consistently adhere to 326 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the United States, and did give no aid or comfort to persons en- gaged in said rebellion ; and the voluntary residence of any such person in any place where, at any time during such residence, the rebel force or organization held sway, shall he prima facie evidence that such person did give aid and comfort to said rebellion and to the persons engaged therein. Commissioners to take testimony. — Sec. 1075. The Court of Claims shall have power to appoint commissioners to take testimony to be used in the investigation of claims which come before it ; to prescribe the fees which they shall receive for their services, and to issue commissions for the taking of such testimony, whether taken at the instance of the claimant or of the United States. Power to call upon departments for information. — Sec. 1076. The said court shall have power to call upon any of the departments for any information or papers it may deem necessary, and shall have the use of all recorded and printed reports made by the committees of each house of Congress, when deemed necessary in the prosecution of its business. But the head of any depart- ment may refuse and omit to comply with any call for information or papers when, in his opinion, such compliance would be injurious to the public interest. When testimony not to be taken. — Sec. 1077. When it ap- pears to the court in any case that the facts set forth in the petition of the claimant do not furnish any ground for relief, it shall not be the duty of the court to authorize the taking of any testimony therein. Witnesses not excluded on account of color. — Sec. 1078. No witness shall be excluded in any suit in the Court of Claims on account of color. Parties and persons interested excluded as witnesses. — Sec. 1079. No claimant, nor any person from or through whom any such claimant derives his alleged title, claim or right against the United States, nor any person interested in any such title, claim or right, shall be a competent witness in the Court of Claims in sup- porting the same, and no testimony given by such claimant or person shall be used except as provided in the next section. Examination of claimant. — Sec. 1080. The court may, at the instance of the attorney or solicitor appearing in behalf of the United States, make an order in any case pending therein, direct- COURT OF CLAIMS. 327 ing any claimant in such case to appear, upon reasonable notice, before any commissioner of the court, and be examined on oath touching any or all matters pertaining to said claim. Such ex- amination shall be reduced to writing by the said commissioner, and be returned to and filed in the court, and may, at the discretion of the attorney or solicitor of the United States appearing in the case, be read and used as evidence on the trial thereof. And if any claim- ant, after such order is made, and due and reasonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all matters within his knowledge material to the issue, the court may, in its discretion, order that the said cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises. Testimony taken where deponent resides. — Sec. 1081. The testimony in cases pending before the Court of Claims shall be taken in the county where the witness resides, when the same can be conveniently done. Witnesses, HOW compelled to attend before commissioners. — Sec. 1082. The Court of Claims may issue subpoenas to require the attendance of witnesses in order to be examined before any person commissioned to take testimony therein, and such subpoenas shall have the same force as if issued from a district court, and compliance therewith shall be compelled under such rules and orders as the court shall establish. Cross-examination. — Sec 1083. In taking testimony to be used in support of any claim, opportunity shall be given to the United States to file interrogatories, or by attorney to examine wit- nesses, under such regulations as said court shall prescribe; and like opportunity shall be afforded the claimant, in cases where testimony is taken on behalf of the United States, under like regulations. Witnesses, how sworn. — Sec. 1084. The commissioner taking testimony to be used in the Court of Claims shall administer an oath or affirmation to the witnesses brought before him for exami- nation. Fees of commissioner, by whom paid. — Sec. 1085. When testi- mony is taken for the claimant, the fees of the commissioner before whom it is taken, and the cost of the commission and notice, shall be paid by such claimant ; and when it is taken at the instance of the government, such fees, together with all postage incurred by the 328 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Assistant Attorney-General, shall be paid out of the contingent fund provided for the Court of Claims, or other appropriation made by Congress for that purpose. Claims forfeited for fraud. — Sec. 1086. Any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment or allowance of any claim or any part of any claim against the United States, shall ipso facto forfeit the same to the government ; and it shall be the duty of the Court of Claims, in -such cases, to find specifically that such fraud was practiced or attempted to be practiced, and thereupon to give judgment that such claim is forfeited to the government, and that the claimant be forever barred from prose- cuting the same. New trial on motion of claimant. — Sec. 1087. When judg- ment is rendered against any claimant, the court may grant a new trial for any reason which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial. New trial on motion of United States. — Sec. 1088. The Court of Claims, at any time while any claim is pending before it or on appeal from it, or within two years next after the final dispo- sition. of such claim, may on motion on behalf of the United States grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong or injustice in the premises has been done to the United States ; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law. Payment of judgments. — Sec. 1089. In all cases of final judg- ments by the Court of Claims, or on appeal by the Supreme Court where the same are affirmed in favor of the claimant, the sum due thereby shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment, certi- fied by the clerk of the Court of Claims, and signed by the Chief Justice, or in his absence by the presiding judge of said court. Interest. — Sec. 1090. In cases where the judgment appealed from is in favor of the claimant, and the same is affirmed by the Supreme Court, interest thereon at the rate of five per centum COURT OF CLAIMS. 329 shall be allowed from the date of its presentation to the Secretary of the Treasury for payment as aforesaid ; but no interest shall be allowed subsequent to the affirmance, unless presented for payment to the Secretary of the Treasury as aforesaid. Interest on claims. — Sec. 1091. No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest. Payment of judgment a full discharge, etc. — Sec. 1092. The payment of the amount due by any judgment of the Court of Claims and of any interest thereon allowed by law, as hereinbefore pro- vided, shall be a full discharge to the United States of all claim and demand touching any of the matters involved in the controversy. Final judgments a bar. — Sec. 1093. Any final judgment against the claimant on any claim prosecuted as provided in this chapter shall forever bar any further claim or demand against the United States arising out of the matters involved in the controversy. Attorney-General to transmit petition in certain cases to departments, etc. — Sec. 188. In all suits brought against the United States in the Court of Claims founded upon any contract, agreement or transaction with any department, or any bureau, officer or agent of a department, or where the matter or thing on which the claim is based has been passed upon and decided by any department, bureau or officer authorized to adjust it, the Attorney- General shall transmit to such department, bureau or officer a printed copy of the petition filed by the claimant, with a request that the department, bureau or officer shall furnish to the Attorney- General all facts, circumstances and evidence touching the claim in the possession or knowledge of the department, bureau or officer. Such department, bureau or officer shall, without delay and within a reasonable time, furnish the Attorney-General with a full state- ment, in w-riting, of all such facts, information and proofs. The statement shall contain a reference to or description of all such official documents or papers, if any, as may furnish proof of facts referred to in it, or may be necessary and proper for the defence of the United States against the claim, mentioning the department, office or place where the same is kept or may be pro- cured. If the claim has been passed upon and decided by the 330 FEDtlRAL PLEADING, PRACTICE AND PUOCEDURE. •lepartment, bureau or officer, the statement shall succinctly state the reasons and principles upon which such decision was based. In all cases where such decision was founded upon any act of Congress, or upon any section or clause of such act, the same shall be cited specifically ; and if any previous interpretation or construction has been given to such act, section or clause by the department, bureau or officer, the same shall be set forth suc- cinctly in the statement, and a copy of the opinion filed, if any, shall be annexed to it. Where any decision in the case has been based upon any regulation of a department, or where such regulation has, in the opinion of the department, bureau or officer transmitting such statement, any bearing upon the claim in suit, the same shall be distinctly quoted at length in the statement. But where more than one case, or a class of cases, is pending, the defence to which rests upon the same facts, circumstances and proofs, the department, bureau or officer shall only be required to certify and transmit one statement of the same, and such statement shall be held to apply to all such cases as if made out, certified and transmitted in each case respectively. Appeals to SuprExMe Court. — Sec. 707. An appeal to the Su- preme Court shall be allowed, on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in con- troversy exceeds three thousand dollars, or where his claim is for- feited to the United States by the judgment of said court, as pro- vided in section 1086. Appeals; time and manner of taking. — Sec. 10^. All ap- peals from the Court of Claims shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regulations as the Supreme Court may direct. Assignment of claims against United States before issue OF "WARRANT VOID. — Sec. 3477. All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders or other authority for receiving payment of any such claim, or of any part or share thereof, shall be abso- lutely null and void unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance COURT OF CLAIMS. 331. of such a claim, the ascertainment of the amount due, and the issu- ing of a warrant for the payment thereof. Such transfers, assignments and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowl- edgments of deeds, and shall be certified by the officer ; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assign- ment or warrant of attorney to the person acknowledging the same. Contracts of Secretaries of War, Navy axd Interior to be IX writing, signed, etc. — Sec. 3744. It shall be the duty of the Secretary of War, of the Secretary of the Navy and of the Secre- tary of the Interior to cause and require every contract made by them severally on behalf of the government, or by their officers under them, appointed to make such contracts, to be reduced to writing and signed by the contracting parties with their names at the end thereof; a copy of which shall be filed by the officer mak- ing and signing the contract in the return office of the Department of the Interior, as soon after the contract is made as possible, and within thirty days, together with all bids, offers and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have published inviting bids, offers or proposals for the same. All the copies and papers in relation to each contract shall be attaclied together by a ribbon and seal, and marked by numbers in regular order, according to the number of papers composing the whole return. (See §§ 512-515.) Three judges to constitute a quorum, etc. — -That any three judges of the Court of Claims shall constitute a quorum ; provided, that the concurrence of three judges shall be necessary to the de- cision of any case.^ Costs of records in the Supreme Court and Court of Claims, how to be paid for. — There shall be taxed against the losing party in each and every cause pending in the Supreme Court of the United States, or in the Court of Claims of the United States, the cost of printing the record in such case, which shall be collected, except when the judgment is against the United States, by the clerks of said courts respectively, and paid into the treasury 1 Act of June 23, 1874, 18 Stat, at L., ch. 4G8, 252. 332 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of the United States ; but this shall only apply to records printed after the first of October next.^ Claims on Chinese indemnity fund for loss, etc., on bark Caldea referred to the Court of Claims. — Any person or persons, or body corporate, holding and making any claim upon the balance of the fund usually designated and known as "the Chinese indemnity fund," under the control of the Department of State of the United States and now unappropriated, for loss sus- tained by the plunder and destruction, in the year 1854, of the bark Caldera, and property on board of said vessel, may at any time within twelve months after the passage of this act commence proceedings in the United States Court of Claims against the United States, in the same manner as other suits are brought, pur- suant to and in virtue of the statutes of the United States and the rules of said court ; and the said Court of Claims shall have full jurisdiction to hear and determine such claim or demand, ac- cording to the principles of justice and international law. Documents which may be used, and proceedings in this CASE. — At the hearing or on the trial of any suit so commenced, either party, the plaintiff or defendant, shall have the right to use before the court any testimony or documents which may be relevant to and competent upon the issues joined between the par- ties; and the proceedings, trial, decision and judgment of the said court shall be had in the same manner as in all other cases before the said Court of Claims, and have the same effect; and either party, plaintiff or defendant, may appeal from the de- cision or judgment of the said Court of Claims to the Supreme Court of the United States in the same manner as now provided for in other cases; provided, Jioivever, that if any final judgment be found in favor of a claimant or plaintiff, the same can only be paid and satisfied out of the balance of said Chinese indemnity fund; and if said judgment shall be in favor of the defendant, then such claimants will be forever barred in law and equity from hereafter making any claim upon or against said fund.^ Claims of New Mexico mounted volunteers for loss of HORSES, etc., referred TO THE CoURT OP CLAIMS. The Court of Claims can take jurisdiction of and adjudge the claims of 1 Act of March 3, 1877, 18 Stat, at - Act of June 19, 1878, 20 Stat, at L., ch. 105, 344. L., fh. 319, 171. COURT OF CLAIMS. 333 officers and privates of the New Mexico Mounted Volunteers in the service of the United States during the war of the rebellion, on account of losses of horses and equipments, although the same shall not be presented within six years from the time they accrued ; pro- vided, that no such claim can be considered unless the petition set- ting forth the same be filed within one year from the passage of this act.^ The act of March 3, 1883, provides as follows : " Sec. 1. That whenever a claim or matter is pending before any committee of the Senate or House of Representatives, or before either house of Congress, which involves the investigation and de- termination of facts, the committee or house may cause the same, with the vouchers, papers, proofs and documents pertaining thereto, to be transmitted to the Court of Claims of the United States, and the same shall there be proceeded in under such rules as the court may adopt. When the facts shall have been found, the court shall not enter judgment thereon, but shall report the same to the com- mittee or to the house by which the case was transmitted for its consideration. " Sec. 2. That when a claim or matter is pending in any of the executive departments which may involve controverted questions of fact or law, the head of such department may transmit the same, with the vouchers, papers, proofs and documents pertaining thereto, to said court, and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of laAV shall have been found, the court shall not enter judgment thereon, but shall report its findings and opinions to the department by which it was transmitted, for its guidance and action. " Sec. 3. The jurisdiction of said court shall not extend to or include any claim against the United States growing out of the destruction or damage to property by the army or navy during the war for the suppression of the rebellion, or for the use and occupa- tion of real estate by any part of the military or naval forces of the United States in the operations of said forces during the said war at the seat of war ; nor shall the said court have jurisdiction of any claim against the United States which is now barred by virtue of the provisions of any law of the United States. " Sec. 4. In any case of a claim for supplies or stores taken by or ' Act of March 1, 1879, 20 Stat, at L., ch. 115, 324. 334 FEDERAL PLEADING, PRACTICE AND PROCEDURE. furnished to any part of the military or naval forces of the United States for their use during the late war for the suppression of the rebellion, the petition shall aver that the person who furnished such supplies or stores, or from whom such supplies or stores were taken, did not give any aid or comfort to said rebellion, but was through- out that war loyal to the government of the United States, and the fact of such loyalty shall be a jurisdictional fact; and unless the said court shall, on a preliminary inquiry, find that the person who furnished such supplies or stores, or from whom the same were taken as aforesaid, was loyal to the government of the United States throughout said war, the court shall not have jurisdiction of such cause, and the same shall, without further proceedings, be dismissed. ^^ Sec. 5. That the Attorney-General, or his assistants under his direction, shall appear for the defence and protection of the interests of the United States in all cases which may be transmitted to the Court of Claims under this act, with the same power to interpose counter-claims, offsets, defences for fraud practiced or attempted to be practiced by claimants, and other defences, in like manner as he is now required to defend the United States in said court. " Sec. 6. That in the trial of such cases no person shall be ex- cluded as a witness because he or she is a party to or interested in the same. " Sec. 7. That reports of the Court of Claims to Congress under this act, if not finally acted upon during the session at which they are reported, shall be continued from session to session and from Congress to Congress until the same shall be finally acted upon." It will be seen that departmental officers may, under this act, rid themselves of all controversies of laAv or fact in any matter which comes before them by having the secretary refer the same to the Court of Claims, where it will be judicially investigated and determined. After receiving a report from the court, the depart- ment will have no responsibility but to be guided by the decision thus obtained and to act thereon.^ ^ In the article referred to in a pre- partment, or upon any contract ex- vious note, Judge Richardson ob- press or implied with the govern- serves: "The organic act of 1855 ment of the United States, and all gave to the court jurisdiction to hear claims which may be referred to it and determine ' all claims founded by either house of Congress.' upon any law of Congress, or upon " That jurisdiction continues to the any regulation of an executive de- present time, except as it is affected COURT OF CLAIMS. 335 § 401. Jurisdiction limited ; no jurisdiction in case of torts. — It will be observed that the jurisdiction of the Court of Claims is by a statute of limitations inserted in the act of March 3, 1863, by which it was provided that ' every claim ajjainst the United States, cognizable by the Court of Claims, shall be forever barred unless the petition settinii forth a statement of the claim be filed in the court or transmitted to it under the provisions of this act within six years after the claim first accrues ;' saving the right upon claims then already accrued to tile the petition within three years after the passage of the act, and also the rights of certain per- sons under disability. " The consequence of this limita- tion is that claimants now go to Con- gress with their petitions for redress in matters of claims to which this ex- clusion from the Court of Claims ap- plies, and in some special cases Con- gress has waived the statute in their behalf. " The same act of 1863 gave to the court jurisdiction of 'all set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatever on the part of the government against any person making claims against the government in said court.' Under this provision the United States have obtained judgment against individ- uals in several cases, and in certain railroad cases they have recovered more than a million of dollars. " By the act of May 9, 1866, the jurisdiction was extended ' to hear and determine the claim of any pay- master, quartermaster, commissary of subsistence or other disbursing officer of the United States, or of his administrators or executors, for re- lief from responsibility on account of losses by capture or otherwise, while in the line of his duty, of government funds, vouchers, records and papers in his charge, and for which such ofii- cerwas and is held responsible;' with authority to enter a decree for his re- lief, to be certified to and allowed by the accounting officers of the treasury .as a credit whenever the court ' ascer- tained the facts of any such loss to have been without fault or neglect on the part of any such officer.' " The jurisdiction of the court was further extended by the act of June 25, 1868, so as to authorize the head of any executive department, or the Secretary of the Treasury, on the cer- tificate of any auditor or comptroller, to transmit to the court for hearing and adjudication any claim belonging to one of the classes of which the court might take jurisdiction, on the volun- tary action of the claimant, ' whenever the same involves disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision will affect a class of cases, or furnish a precedent for the future ac- tion of any executive department in the adjustment of a class of cases, without regard to the amount in con- troversy in the particular case ; or where any authority, right, privilege or exemption is claimed or denied under the Constitution of the United States.' It has been decided by the Supreme Court that the six years' limitation imposed by the statute in other cases does not apply in this court to cases thus referred, where the claimant had presented his claim to the department within six years after it had accrued. " Aliens who are citizens or sub- jects of any government which ac- cords to citizens of the United States the right to prosecute claims against such government in its courts have the privilege of prosecuting claims against the United States in the Court of Claims, whereof the court, by rea- son of their subject-matter and char- acter, might take jurisdiction. It has been judicially determined by decis- ions already made that under this provision the right to sue in this court is accorded to citizens of Prussia, Hanover, Bavaria, Switzerland, the Netherlands, the Hanseatic Provinces, the free city of Hamburg, Spain, Bel- gium, Italy and Great Britain, and it no doubt belongs to the citizens of other countries. 336 FEDERAL PLEADING, PRACTICE AND PROCEDURE. limited to certain matters. Beyond these it cannot take cognizance of cases. It has no jurisdiction of suits founded upon torts. Thus, "The jurisdiction of the court is restricted as to certain claims for or in respect to which the claimants have pending in other court:^ suits against persons who at the time the causes of action occurred were acting, or pro- fessing to act, under the authority of the United States, and certain claims growing out of treaties. " These provisions confer the gen- eral, continuing and permanent juris- diction of the court. They may be found, with their incidental regula- tions and details, in chapter 21 of the Kevised Statutes of the United States. But Congress has, from time to time, given to the court jurisdiction, for a limited period, in particular classes of cases, and has, by special acts, transmitted many single claims to the court for adjudication. " By the act of March 12, 1863, en- titled ' An act to provide for the col- lection of abandoned and captured property, and for the prevention of frauds in insurrectionary districts within the United States,' the Secre- tary of the Treasury was authorized to appoint agents to receive and col- lect all abandoned or captured prop- erty in any state or territory, or any portion of any state or territory, of the United States designated as in- surrectionary against the lawful gov- ernment of the United States by proc- lamation of the President of July 1, is62. The property collected was re- •"[uired to be appi'opriated to public use, or sold and the proceeds paid into the treasury of the United States. " The third section of the act pro- vided that ' any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and on proof to the satisfaction of said court of his ownership of said property, of his right to the proceeds thereof, and that he has never given aid or comfort to the present rebellion, to receive the residue of such proceeds, after the de- duction of any purchase-money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof.' " It was decided by the Supreme Court that, in accordance with the President's proclamation, the sup- pression of the rebellion must be rec- ognized as having taken effect on the 2d of April, 1866, in the states of Vir- ginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennes- see, Alabama, Louisiana and Arkan- sas, and on the 20th of August, 1866, ' throughout the whole of the United States.' The right to file petitions under this act therefore expired on the 20th of August, 1868. " The Supreme Court decided, in 1871, that the President's proclama- tion of December 25, 1868, granting ' unconditionally and without reserva- tion to all and every person who di- rectly or indirectly participated in the late insurrection or rebellion a full pardon and amnesty for the offence of treason against the Unitpd States, etc., with restoration of all rights, privileges and immunities under the Constitution and laws which have been made in pursuance thereof,' en- abled claimants under this act to re- cover in the Court of Claims without proof that they never gave aid or comfort to the rebellion. This de- cision having been made after the time for bringing actions allowed by the act, it came too late for those who had previously been deterred from presenting their petitions by reason of their participation in the rebellion. " Under this act the court has dis- posed of claims amounting to more than thirty million dollars, according to the petitions. But the judgments recovered have not probably exceeded a third part of the amount claimed ; and the fund arising from the cap- tured and abandoned property, which was covered into the treasury by special direction of Congress, is not exhausted and cannot be much affect- COURT OF CLAIMS. 337 it cannot take cognizance of a cause based upon the wrongful act of an officer of the United States, as for a claim arising from false I'd by the few cases which remain un- disposed of. "By the act of June 16, 1880, Con- gress gave to this court jurisdiction of certain claims against the District of Columbia, limiting parties to six months from the passage of the act in which to file their petitions. Under this authority 342 cases have been in- stituted, most of which the claimants have not yet brought to trial. "In 1873, by special act. Congress granted jurisdiction to the Court of Claims to hear and determine the case of the city of Carondelet, brought to recover against the United States the value of a tract of land of about ] 700 acres, formerly a military reserva- tion, and near which had grown up the settlement, village and city of Carondelet, subsequently merged into the city of Saint Louis. The court held that the title was in the United States, and its decision was affirmed by the Supreme Court on appeal. " Several cases have been referred to the court by Congress, in which the owners of vessels claimed damages on account of collisions with vessels of the navy of the United States, occur- ring, as alleged, by reason of the fault and negligence of the naval officers in command of the latter. "In 1873, and previously, there arose a controversy between the United States and the Pacific Railroad com- panies as to the right of the former to withhold payment for freight and transportation for the government until those companies had reimbursed the United States for interest paid on the bonds issued for the aid and bene- tit of the companies, which were made payable in thirty years ; the companies claiming that the interest paid by the United States was not to be reimbursed until the maturity of the bonds. There were some other ques- tions also involved. "A section in the appropriation act of March 3, 1873, provided that the Secretary of the Treasury should with- hold all payments to said companies, but giving the companies the right to 22 bring suit in theCourtof Claims there- for. Actions were brought and were prosecuted and defended with great abilitj'^ ; the Attorney-General him- self appearing forthe government, and Mr. Sidney Bartlett, of Boston, and Mr. E. W. Stoughton, of New York, for the claimants. In the first or leading case, judgment was rendered for the claimants, and on appeal to the Su- preme Court, the rulings of the Court of Claims were affirmed. In a subse- quent case some changes were made by the Supreme Court in the method of computing the amount allowed. Judgments were finally recovered in the different cases, amounting in the aggregate to nearly two million dol- lars. The amount, however, was not the most material part of the contro- versy, the real question being wheth- er or not the defendants had a right to retain the amount as a set-off to the interest paid. "So in 1874 and 1875 Congress pro- hibited the payment of any money from the public treasury for the trans- portation of any property or troops of the United States, or any officers of the army travelling under military or- ders, over any railroad which, in whole or in part, was constructed by the aid of a grant of public land on condition that such i-ailroad should be a public highway for the use of the governme'nt free of toll or other charge, or upon any other conditions for the use of such road for such transportation, re-, serving the right to the companies to bring suit in the Court of Claims, and recovering for the same if found enti- tled thereto by virtue of the laws in force prior to the passage of the act of prohibition, and waiving the Stat- ute of Limitation. In pursuance of this provision suits were brought, and the rights of the United States and of the railroad companies under the land- grant acts were adjudicated and set- tled, and Congress was relieved from further trouble in the matter. " For many years there was pending in Congress a claim of the trustees of Albert G. Sloo for carrying the 338 FEDERAL PLEADING, PRACTICE AND PROCEDURE. imprisonment by one of its officers, or for damages sustained by the mail between New York and Cliatrrea and New Orleans and Ohaj^res, in ad- dition to the regular service required under a contract made in 1S47. ' Ap- plication was persistently made,' say the Supreme Court, ' to Cono:ress for an equitable allowance, but for some reason or other the subject was always postponed or delayed, until finally, on the i4th of July, 1870, Congress pass- ed an act "referrino; the case to the Court of Claims.' The case involved the rights of the parties and the lia- bilities of the government, growing out of correspondence with the Post- master-General at the time the service was performed, and the amount in controversy was more than a million dollars. The case was tried before four judges of the Court of Claims, and they were equally divided upon the question of the liability of the United States. A pro forma judg- ment was entered for the defendants, and the case was taken to the Supreme Court on appeal. A majority of that court held the United States liable, and a mandate was issued accordingly and judgment entered thereon for the claimants, for $1,031,000, three judges of the Supreme Court dissenting. "By the act of June 19, 1878, Con- gress authorized any pei'sons or body corporate, holding or making any claim upon the balance of the fund usually designated and known as ' the Chinese indemnity fund,' under the control of the Department of State of the United States, for loss sustained by the plunder and destruction, in the year 1854, of the bark Caldera, and property on board of said vessel, at any time within twelve months after the passage of the act to commence proceedings in the Court of Claims, and conferred jurisdiction on the court to hear and determine such claims ' according to principles of jus- tice and international law.' Suits were brought and thoroughly and ex- haustively tried by able counsel. The Court of Claims gave judgment for the claimants, two of the five judges dis- senting. On appeal, the judges of the Supreme Court were equally divided in opinion, and the judgment was af- firmed for that reason. " In this connection it may be men- tioned that another case of an earlier date. La Peyre v. The United States, even more singularly divided the two courts. The question involved was the novel one, whether a proclama- tion of the executive takes efl'ect from the day of its date or from the time of its promulgation. In the Court of Claims the point was argued before four judges, a reargument was or- dered, and the court then stood equally divided, judgment pro forma being given against the claimant. In the Supreme Court the point was again argued, a reargument was likewise ordered, and the court then stood five for reversal and four for affirmance, with one of the majority merely con- curring in the judgment. "On the 3d of March, 1881, Con- gress passed an act which authorized the Court of Claims to take jurisdic- tion of and try all questions of diifer- ence arising out of treaty stipulations with the Choctaw Nation and to ren- der judgment thereon, with power to review the entire question of differ- ences de 710V0, without being estopped by any action had or award made by the Senate of the United States, in pursuance of the treaty of 1855. These ' questions of difference' grew out of treaties made in 1820, 1825, 1830, 1855 and 1856, They had been in controversy in Congress and the departments for many years, and in- volved a claim of more than fifteen millions of dollars. Suit has been in- stituted, and although the evidence is not yet all put in, the printed record of the case already covers more than thirteen hundred pages, and will prob- ably be extended to two thousand pages or more. " Numerous other important cases, specially referred to the court, might be cited, but a sufficient number have been mentioned to convey a correct idea of its jurisdiction, and to show the magnitude and intricacies of its business, as well as the relief which is afforded to Congress by removing COURT OF CLAIMS. 339 bombardment of a town ; ^ or for the wrongful and forcible posses- sion of land taken by the United States ;^ or for damages arising from a collision with a vessel of the United States.^ But under the peculiar circumstances of the case, where the government in an emergency took private property for public use, it was held, there was an implied promise to compensate the owner therefor, and that the Court of Claims had jurisdiction of a claim based thereon.* § 402. No jurisdiction in equity cases. — No provision is made by the section under consideration for the exercise of any equitable jurisdiction by the Court of Claims, and hence it cannot take cognizance of causes involving an investigation of equitable rights set up by claimants against the United States.^ In Bonner v. United States, cited in the last note, Mr. Justice Davis observes : " Congress did not think proper to part with the consideration of such questions, but wisely reserved to itself the power to dispose of them. Immunity from suit is an incident of sovereignty ; but the government of the United States in a spirit of great liberality w'aived that immunity in favor of those persons who had claims against it which were founded upon any law of Congress or regula- tion of an executive department, or upon any contract with it, ex- press or implied, and gave the Court of Claims the power to hear and determine claims of this nature." § 403. Its jurisdiction of claims arising under the revenue la^wrs. — No provision is made by the section of the statute conferring jurisdiction on the Court of Claims to take cognizance of claims arising under the revenue laws. If there is a claim growing out of the administration of these laws, the statute points out the remedy, which must be pursued by those aggrieved thereby. But the Court such controversies from the halls of also Titson v. United States, 10 U. S. legislation." 43: Harvey's Case, 13 Ct. CI. 322. ^ Gibbons v. United States, 8 Wall. Nor has tliis court jurisdiction of a 2G9 ; s. c, 2 Ct. CI. 421 ; Spicer v. case against the government to re- United States, 1 Ct. CI. 316; Perrin cover a military land warrant: United V. United States, 12 Wall. 315. States v. Alire. 6 Wall, 573. Nor of ^ Langford v. United States, 101 a case for merely nominal damages U. S. 341. arising for a breach of contract: ' Dennis v. United States, 2 Ct. CI, Grant v. United States, 7 Wall. 331. 210. See also United States u. Bost- The only judgment vrhich the Court wick, 94 U. S. 53 ; s, c, 12 Ct. CI. 67. of Claims can render is one for money * United States v. Russell, 13 Wall, found due to the petitioner from the 623. government: United States «;. Alire, » Bonner v. United States, 9 Wall. 6 Wall. 573 ; s. c, 1 Ct. CI. 233. 156 : s, c, 1 Ct. CI. 125. But see 340 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of Claims has no jurisdiction of such cases. ^ The government has entrusted the determination of such matters to certain specified oflficers, and a final hearing therein to other tribunals.^ Thus, where a manufacturer has paid the tax required by the internal revenue laws on the goods manufactured, which laws pro- vide for a drawback in case of the exportation of the goods, the manufacturer cannot prosecute an action therefor in the Court of Claims, as another remedy is provided by said laws.^ So an im- porter cannot maintain an action in said court to recover a duty upon imported goods, although the duty was illegal.* Nor can a distiller prosecute an action therein to recover a claim on account of leakage.® But this court may take cognizance of claims growing out of the administration of the internal revenue laws, where they are based upon a law of Congress, or upon any regulation of the executive department, or upon a contract, express or implied, with the gov- ernment of the United States, and especially where there is no re- dress elsewhere.'' Thus, the Court of Claims may entertain a petition by an assessor of internal revenue to recover money deposited with a collector to secure a compromise of a prosecution against the former, if the compromise fails and the money is covered into the treasury of the United States.'^ So it has jurisdiction of a claim of an informer to recover his share of a forfeiture under the revenue laws;^ and especially if the money arising from the forfeiture has been covered into the treasury of the United States.^ So a manufacturer of arti- cles required to be stamped under the revenue laws may recover in this court commission on stamps allowed by said laws."' And an importer may recover money deposited by him with a collector of 1 Nichols V. United States, 7 Wall. CI. 117; Doherty v. United States, 122. 6 Ct. CI. 90. '^ Broughton v. United States, 12 ^ Turner v. United States, 9 Ct. CI. Ct. CI. 3^0. If there is discretionary 307. power given to an officer to remit pen- ® Brown v. United States, 6 Ct. CI. alties under the revenue laws, the 171. Court of Claims can have no juris- ' Broughton d. United States, 12 Ct. diction of a claim against the govern- CI. 33(». ment based thereon : Dorsheimer v. * Shelton v. United States, 8 Ct. CI. United States, 7 Wall. 167. 487. •^ Portland Co. v. United States, 5 » Bradley v. United States, 12 Ct. Ct. CI. 441. CI. 57S. * Nichols «. United States, 7 Wall. i° Dailey v. United States, 7 Ct. CI. 122 : De Cells v. United States, 13 Ct. 383. COURT OF CLAIMS. 341 duties in excess of the duties on goods received by him.^ But if the amount of claim for a drawback is required by the revenue laws to be ascertained by a specified officer, and this has not been done, or if the claim is for a share of a forfeiture under said laws, and on a proper submission the Secretary of the Treasury has decided against it, the Court of Claims will not take cognizance of the same.^ § 404. Claims founded upon any law of Congress or any regulation of an executive department. — The Statute provides for the jurisdic- tion of the Court of Claims where the claim is founded upon any act of Congress. If such a claim should be rejected by an execu- tive department, it could still be prosecuted in this court.^ Thus, an officer of the government may prosecute a claim in this court for a salary allowed him by an act of Congress.^ So where, by a law of Congress, the United States had assumed the payment of certain bonds of the state of Texas, it was held that an action thereon could be maintained by the payee in this court, although they had been lost or stolen and without endorsement had been paid to the holder.^ A "regulation of an executive department" may, under the statute of the United States conferring that power, have the force and effect of law; and it is such a regulation that is meant by the language of the statute. It relates to regulations on which the department has a right to act, and made by such department.^ § 405. Jurisdiction in case of claim upon contract. — Ihe COUrt has jurisdiction of all claims founded upon express or implied con- tracts with the government. Few controversies have arisen under this ground of jurisdiction where the contract was express, but many cases have occurred in relation to implied contracts. In a case of a lease of property by the United States, where the lessor claimed dama. United States, 1 Ct. ^ Pennsylvania Co. v. United States, CI. 345. 7 Ct. CI. 4U1 ; Graham v. United States, * Jackson v. United States, 1 Ct. CI. 1 Id. 183 ; Pierce v. United States, Id. 260; Crowell v. .Jackson, 6 Id. 23; 195. Silverhill c. United States, 5 Id. ^ Id. 610. 362 FEDERAL PLEADING, PRACTICE AND PROCEDURE. that is not verified, they thereby waive a want of verification ;^ and if they do not traverse an allegation of loyalty, it will be presumed to be true.^ If a corporation is claimant, and it is averred in the petition that it was duly created a corporation, its incorporation need not be proved, unless this allegation is specially traversed ^ 1 Griffin v. United States, 13 Ct. CI. 257. - Hill V. United States, 8 Ct. CI. 470. ^ Hebrew Conjrre^ration v. United States, 6 Ct. CI. 241 ; United States v. Insurance Companies, 22 Wall. 99. The followinif observations are made in the monoj^raph of Jadi>;e Richard- son, before referred to, in relation to the practice in this court: " All cases are tried in the Court of Claims with the same formalities as are cases between individual litiu;ants in the courts of common law as to the admissibility of evidence, the exam- ination and cross-examination of wit- nesses, and the application of lethal principles, and the rijihts of claimants are guarded and protected by the es- tablished rules of law as administered in other courts. " The procedure and practice have been impi'oved and simplified by Con- gressional enactments and by the rules adopted by the court from time to time, as suggested in the course of its experience of more than twenty- six year's, until a system has grown up and become established of the ut- most convenience to parties and coun- sel, wherever they may reside. " Claimants must file their petitions properly setting out their cases, and must prove their claims by competent evidence. But as the court is held at Washington, and has jurisdiction of cases which arise in distant and dif- ferent parts of the country, Congress has provided that ' the testimony shall be taken in the county where the wit- ness resides, when the same can be conveniently done.' "When, therefore, "a claimant has filed his petition, which he may do by sending it to the clerk of the court by mail or otherwise, he may, at his leisure and convenience, go on taking the depositions of witnesses whenever and wherever he can find them, first giving notice to the Attorney-General, that he may be present himself, or by an assistant, to cross-examine them. " The court is authorized by law to call upon any of the departments for any information or papers it may deem necessary, and it always does so in proper cases on motion of claim- ants ; and thus they can readily ob- tain whatever information and evi- dence affecting the issues involved are contained in the archives of the government. " Parties filing petitions, pleadings and motions, except motions for calls on the departments, are required by the rules to leave with the clerk at the same time written notice thereof, addressed to the attorney of the ad- verse party, with postage prepaid, and the clerk is required to mail the same, and to note the fact on the general docket ;. and all notices may be served in the same manner. Printed blanks are furnished to parties for this purpose. Upon the receipt by the clerk of an answer to a call upon a department, he is required also to notify the claimant's counsel and At- torney-General of the fact by mail. ^ By these rules attorneys in any place, however distant from Washington, are informed at once, and therefore al- ways know of every paper filed in their cases without being obliged to watch the state of the clerk's docket. " When the claimant has closed his proof, he may give notice to the At- torney-General to that effect, by an entry in the notice book in the clerk's office. In two months thereafter, un- less the Attorney-General asks for further time, the claimant may have his case placed on the trial list. " Before a case is placed on the trial list, however, the claimant must file in the clerk's office twenty-five printed copies of his brief and his proposed findings of fact, and the Attorney- General has one month thereafter in COURT OF CLAIMS. 3t)3 For forms of pleadings in this court, see post, under head of "Forms for the Court of Claims." which to file a brief and request for findings of fact on his part. " If counsel live at a distance, the court will, on application, assii^n a day certain for the hearinc; of his case, so that he need not be detained, as he may be in other courts, awaiting his turn •, or he may file his request for findings of fact, briefs and argu- ment by forwarding them to the clerk b}"^ mail, and thus he may be relieved from going to Washington at all during the progress of the case, from begin- ning to end of the proceedings. " No fees or costs are taxed or al- lowed by the court, and if the claim- ant loses his case he is not subjected to a bill of cost. Of course, parties must pay for the taking of the depo- sitions which they themselves require in establishing their claims, but if de- feated they are not required to pay for the depositions of tlieir adversa- ries. " The evidence is printed at the government printing office, and that and all other documents in each case are made into records i'or the use of the court and the parties. " The court has no jury. All ques- tions of law and of fact are submitted to the five judges, and each judge reads over the whole record, so that there is not the same necessity for oral arguments as in the common law courts. " There is a provision still standing in the Revised Statutes, in terms ap- plying to all cases in the court, requir- ing claimants to set forth in their petitions, and to prove affirmatively, that they have at all times borne true faith and allegiance to the government and have not voluntarily aided, abet- ted or given encouragement to rebel- lion. But since the decision of the Supreme Court in relation to a similar clause in the captured and abandoned property act, which has been herein- before referred to, declaring the con- stitutional efl'ect of the proclamation of general pardon and amnesty issued by the President in December, 1868, to be the relief of all persons from such a restriction upon their rights, the practice has been not to require an allegation of lo^'alty in the peti- tion, or proof of it at the trial. " The defence of all claims is con- fided by law to the Attorney-General, who assigns one of the assistant attor- neys-general, with an adequate num- ber of assistants, to that special duty under his own supervision, and who occasionally makes the argument him- self in cases of unusual importance and magnitude. The rights and in- terests of the United States arc there- fore ably and amply protected. In- deed, in two particulars, the United States are greatly favoi-ed in their defences by provisions of law which do not apply in any other courts. No claimant, nor any person from or through whom any such claimant de- rives his alleged title, claim or right, nor any person interested in any such title, claim or right, is a competent witness in supporting the same, while ail such persons may be witnesses to defeat them. Cases against the Dis- trict of Columbia and some cases specially referred to the court are ex- pressly exempted by law from this provision. " At any time within two years next after the final disposition of any claim, on motion made in behalf of the United States, the court may grant a new trial and stay the payment of any judgment therein, upon such evi- dence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong or injustice in the premises has l)een done to the United States ; and this may be done while an appeal is pending in the Supreme Court, or after the judgment has been affirmed by that court, or even after it has been paid at the treasury. But new trials on motion of claimants can only be granted for the same reasons which, by the rules of common law or chan- cery, in suits between individuals, would furnish sufficient ground for new trials, and every such motion must be made at the term in which judgment is rendered, and before the 364 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 433. The petition may be amended. — Great liberality is ex- tended by this court in allowing amendments. If a petition is defective in its averments it may be amended ; but not without Supreme Court upon the following record, and none other: " ' 1. A transcript of the pleadings in the case, of the final judgment or decree of the court, and of such in- terlocutory orders, rulings, judgments and decrees as may be necessary to a proper review of the case: " ' 2. A finding by the Court of Claims of the facts in the case, estab- lished by the evidence, in the nature of a special verdict, but not the evi- dence establishing them ; and a sep- arate statement of the conclusions of law upon said facts on which the court founds its judgment or decree. The finding of facts and conclusions of law to be certified to this court as part of the record. • " ' 3. In all cases an order of allow- ance of appeal by the Court of Claims, or the chief justice thereof in vaca- tion, is essential, and the limitation of time for granting such appeal shall cease to run fi-om the time an appli- cation is made for the allowance of appeal. " ' 4. In all cases in which either party is entitled to appeal to the Su- preme Court, the Court of Claims shall make and file their findings of facts and their conclusions of law therein, in open court, before or at the time they enter judgment in the case. " ' 5. In every such case, each party, at such time before trial, and in such form as the court may prescribe, shall submit to it a request to find all the facts which the party considers proven and deems material to the due pres- entation of the case in the findings of fact.' " The practice now is for the Court of Claims, after hearing or reading, as the case may be, the arguments of counsel on both sides, and after each judge has thoroughly read over the whole record by himself, and consid- ered the requests of the opposite parties, to draw up findings of fact. It is easy to see that the duties of the judges in this respect, and in coming commencement of the summer vaca- tion. *' Moreover, it is expressly provided by statute that any person who cor- ruptly practices or attempts to prac- tice any fraud against the United States in the proof, statement, estab- lishment or allowance of any claim, or any part of any claim, shall, ipso J'acto, forfeit the same to the govern- ment; and it is made the duty of the court, in such cases, to find specifically that such fraud was practiced or at- tempted, and to give judgment that the claim is forfeited, and that the claimant be forever barred from pros- ecuting the same. " The first appeal case which went to the Supreme Court was sent up with a full copy of the whole record, evidence and all, just as all cases had been previously reported to Congress under the former law. But that case was dismissed for want of jurisdiction in that court to hear appeals from the Court of Claims, by reason of the sec- tion which gives a revisory power to the Secretary of the Treasury to review its judgments, as has been already stated. When that section was re- petaled, and the Supreme Court sus- tained the appellate jurisdiction con- fei-red by other provisions of the act, they foresaw that with the whole records sent up they would encounter the same difiiculty which Congress had experienced — the utter impossi- bility of devoting sufficient time to the consideration of such a mass of evidence, and of undertaking to re- view the findings of fact thereon. Therefore, in the year 1866, under the act of March 3, 1863, they wisely made rules requiring the Court of Claims to find the facts, and confining the hearing on appeal to the questions of law raised thei'eon. These rules, as subsequently modified, now stand as follows : '' ' In all cases hereafter decided in the Court of Claims in which, by the act of Congress, such appeals are al- lowable, they shall be heard in the COURT OF CLAIMS. 305 leave of the court. ^ Thus if a petition is not verified it may be amended in this respect.^ So a petition may be so amended as to show that another party has an interest in the claim, or where there are joint owners of property on which the claim is based an amendment of the petition will be allowed to enable the claimants to sever in the prayer for relief, and to ask for separate judgments.^ So an amendment will be allowed to sustain and protect the orig- inal cause of action, as by allowing an administrator to take the place of a guardian of the deceased, and the husband the place of the wife in certain cases.'* So if two joined in a petition for a claim and only one is entitled to recover, the petition may be amended by striking out the name of the disinterested party. ^ § 434. Consolidation and intervention. — If the assignees of vouchers issued under the same contract bring suits separately in the name of the assignor, the suits may be consolidated.'' So if to an agreement on each one of the facts which are considered material, often very numerous, as well as in re- ducing to concise written statements the facts agreed upon by them, are laborious, difficult and perplexing. But all that has to be done, and is done. Upon the findings of fact thus drawn up the court applies the law, delivers opinions, and enters judg- ments in accordance therewith. The concurrence of three judges is made necessary by statute to the rendition of any judgment. " If thejudgment is against a claim- ant in any case where the amount in controversy exceeds three thousand dollars, he may, within ninety days thereafter, appeal to the Supreme Court on the law. The United States may appeal in like manner from any judgment adverse to the government without reference to the amount in controversy. Before the passage of the Revised Statutes the United States could not appeal in cases involving less than three thousand dollars, unless the chief justice certified that thejudgment or decree would affect a class of cases, or furnish a precedent for future action of an executive de- partment of the government in the adjustment of such class of cases, or a constitutional question. But this restriction on the right of appeal by the defendants was omitted from the Revised Statutes, apparently by mis- take, and since then several appeals have been taken on the part of the United States in cases involving small amounts, without such certificate, al- though probably they did, in fact, belong to a class of cases pending in the departments. There are other provisions in the law and the rules of the court in relation to the details of practice which do not require partic- ular mention." ^ Jones V. United States, 1 Ct. CI. 383 ; Shaw v. United States, 9 Ct. CI. 301 ; Griffin v. United States, 13 Ct. CI. 257. ^ Id. ; Cross v. United States, 14 Wall. 479 ; s. c, 5 Ct. CI. 88. 3 Mott V. United States, 3 Ct. CI. 218. * Bellocque v. United States, 8 Ct. CI. 493. * Molina v. United States, 6 Ct. CI. 269. So, if husband and wife are joined as claimants, and he alone is entitled to the claim, her name may be stricken from the petition : Benton v. United States, 5 Ct. CI. 692. So also, where a feme covert and husband sue, and he dies, she may prosecute the suit alone, if the claim belongs to her : Rodden v. United States, 6 Ct. CI. 308. 8 Crowell V. United States, 6 Ct. CI. 23. 366 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the goods of several owners become commingled, the claims of the several claimants therefor may be consolidated, and they be per- mitted to litigate with each other.^ If one claims money in the court, which is also claimed by an- other, the former may file a petition of intervention in the case ;^ and if there are several claimants of the same fund in court, and they intervene or are united with the original claimant, the latter will be first required to make out a case only against the United States, after which the others will be permitted to establish their rio-hts as against the original claimant.^ § 435. When a cause -will be remanded for further proof. — li there is omission to furnish certain proof which can be readily supplied, the cause will be remanded for further proof, even after a hearing.* And where it appears on a hearing of a cause that there are documents which have been introduced as evidence in the case that are not competent evidence, it may be remanded to give the parties an opportunity to furnish competent evidence or make some stipulation concerning the matter.^ But a cause will not be remanded for further prx)of, so as to enable either party to furnish additional evidence to make his side of the case appear plainer, where there has been only a conflict of evidence.^ When a cause is re- manded for further proof either party may re-examine a witness whose testimony has already been taken, and either party may take further testimony ; as every issue is open to controversy on the second trial.'' § 436. Burden of proof of loyalty ; -when the petition -will be dis- missed. — The allegations of the petition, as to true allegiance and not voluntarily aiding and abetting or giving encouragement to the rebellion against the government, may be traversed by the govern- ment, and if on the trial such issues shall be decided against the claimant, his petition must be dismissed unless he is within the 1 United States v. Raymond, 92 U. CI. 23 ; Mahan v. United States, 6 Ct. S. 651 : WoodrufiF v. United States, 4 CI. 831 ; Fendall v. United States, 12 Ct. CI. 486. Ct. CI. 305. 2 Mezicx V. United States, 6 Ct. CI. ^ Lender v. United States, 5 Ct. CI. 232; Turner v. United States, 2 Ct. 544. CI. 390. * Crowell v. United States, 6 Ct. CI. ^ Woodruff v.- United States, 4 Ct. 23. See also Shrewsbury v. United CI. 486 ; Boyd v. United States, 9 Ct. States, 13 Ct. CI. 183. CI. 419. ' Culleton v. United States, 5 Ct. ^ Daniels v. United States, 5 Ct. CI. CI. 627 ; Gaither v. United States, 3 65 ; Crowell v. United States, 6 Ct. Ct. CI. 191. COURT OF CLAIMS. 367 provisions of the proclamation of general pardon.^ The claimant in all such cases, as we have stated, has until recently been required to prove aflfirraatively that the person or persons upon whose loyalty his claim depends did consistently adhere to the United States and give no aid or comfort to persons engaged in the rebellion ; and the voluntary residence of any such person in any place where the rebel force or organization held sway was by statute made prima facie evidence that such person did give aid and comfort to said rebellion and to the persons engaged therein.^ § 437. Aid and comfort to the rebellion must have been voluntarily given. — The Statute last cited did essentially change the proof required by previous ones.^ Any voluntary acts which tend to assist, countenance, abet or encourage the rebellion or persons engaged in the rebellion, done or committed by the claimant with the intention and for the purpose of aiding the rebellion or of promoting its power and success, would defeat his claim.* But it is not sufficient to show a purpose to give aid and comfort : the aid and comfort must have been actually given. ^ And acts of affec- tion or humanity rendered to persons engaged in the rebellion, or contributions and taxes paid where the rebel authority had sway, but extorted by a force and power that could compel submission, do not constitute aid and comfort to the enemy within the meaning of the statute. *" Where an administrator claimed property held by him as admin- istrator, and which was taken from him as captured or abandoned, it was held that a right to recover the proceeds of the same would depend upon his loyalty and not upon that of the decedent or of the distributees.'' If the claimant is a mere trustee, his right to recover for the benefit of the beneficiaries does not depend upon his loyalty, but that of the beneficiaries entitled to the claim.^ § 438. The effect of a pardon and amnesty ; burden of proof. — The proclamation of pardon and amnesty is a complete exemption 1 Rev. Stat. ? 1073. ^ Yi\\\ v. United States, 8 Ct. CI- 2 Rev. Stat. 1 1U74, 15 U. S. Stat. 75. 470. ' United States v. Padelfovd, 9 AVall. * Grossmeyer v. United States, 4 Ct. 531; Grossmeyer v. United States, 4 CI. 1. Ct. CI. 1. 7 Carroll v. United States, 13 Wall. * Bond V. United States, 2 Ct. CI. 351 ; s. c, 5 Ct. CI. 620 ; Carroll v. 528 ; Bates v. United States, 4 Ct. CI. United States, 7 Ct. CI. 589. 569 ; United States v. Padelford, 9 ^ Stoddart v. United States, 6 Ct. CI. Wall.' 531 ; Grossmeyer v. United 340. States, 4 Ct. CI. 1. 368 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of a claimant from disability growing out of giving "aid and com- fort to the rebellion," if he took the oath of amnesty required by the terms of the President's proclamation. The pardon and oath blots out the offence, and on proof of these no proof will be required that he was loyal during the rebellion.' If a claimant resided during the rebellion where th6 rebel force held sway, and has not obtained a pardon, the burden of proof is upon him to show his loyalty to the government during the rebellion.^ In case of an alien, it is not essential for him to show that he during the rebellion adhered to the United States, but it will be enough to show that he observed a strictly neutral course through the war, and gave no aid or comfort to the rebellion.^ Residence of an alien in a foreign country during the war of the rebellion raises a presumption of neutrality.^ So it has been held that there is a presumption of loyalty in favor of a person who was a citizen and resident of a loyal state during such war;* and that very slight evidence suffices to establish the loyalty of a colored person residing within a rebellious state during the war.^ § 439. Acts of aid and comfort to the rebellion. — Where a person was voluntarily connected with the violation of the blockade laws ; and where a person sold goods to an agent of the rebellious govern- ment who bought them to aid the rebellion ; and where a person became surety on the official bond of an officer in the military service of the rebels ; and where a person entered the military service of the re- bellious states, which he could have avoided ; these parties were respectively held to have given aid and comfort to the rebellion.'^ § 440. The court may appoint commissioners to take testimony. — There is conferred upon the Court of Claims power to appoint com- » Carlisle v. United States, 16 Wall. ^ Turner v. United States, 3 Ct. 147: Armstrong v. United States, 13 CI. 400. "Wall. 154: s. c, 5 Ct. CI. 623; United « Thomas v. United States, 3 Ct. States V. Padelford, 9 Wall. 53 ; s. c, 4 CI. 52 ; Dereef v. United States, 3 Ct. Ct. CI. 316 ; United States v. Klein, CI. 163. ]3 Wall. 128; s. c, 4 Ct. CI. 559; 'Bates v. United States, 4 Ct. CI. Hamilton v. United States, 7 Ct. CI. 569 ; Carlisle v. United States, 16 444; Backer r. United States, 7 Ct. CI. Wall. 147; United States v. Padel- 551. ford, 9 Wall. 531 ; Kuper v. United - United States v. Burns, 12 AVall. States, 3 Ct. CI. 74. But where a 246 : s. c, 4 Ct. CI. 113 ; Deerson v. party became interested in an adven- United States, 5 Ct. CI. 626 ; Deerson ture to run the blockade, it was held V. United States, 6 Ct. CI. 227. that this was not giving aid and com- ^ Rothschild v. United States, 6 Ct. fort to the rebellion, unless the adven- Cl. 204. ture was put afloat: Hill v. United * Hill V. United States, 8 Ct. CI. 470. States, 8 Ct. CI. 470. COURT OF CLAIMS. S69 missioners to take testimony to be used in the investigation of claims which come before it. The court also has the authority to prescribe the fees of such commissioners for the taking of testimony, and to issue commissions for the taking of testimony, whether at the instance of the claimant or of the United States.^ The testimony to be used in this court must be taken by depo- sition;^ and ex parte affidavits cannot be used as evidence, although they are transmitted to the court, with the petition, by Congress.^ § 441. Application for a commission, and practice thereon. — Ap- plication for the issue of a commission to take testimony in a case may, as a general rule, be made at any time before trial, and when made, an order will always be entered by the clerk therefor, as of course.* But if the issue of a commission and the taking of testi- mony, and a return of the same, will require a postponement of case, the court may determine whether it should issue and whether a tristl should be postponed under all the circumstances of the case.^ § 442. Mode of taking depositions. — The depositions of witnesses should be written out in the usual way, with questions and answers thereto immediately following, under oath. They should be read over to and signed by each witness deposing, and must state that the witness testified in the presence of all the parties. And if an addition is made after the attorney of one of the parties has left, it will on motion be stricken out.^ The commissioner should so con- nect the sheets together and seal them that they cannot be removed or tampered with, and both he and the witness should place their names on each sheet of paper.'' For forms, consult those furnished for circuit court commissioners. See j90s?;. § 443. When a witness may be re-examined. — Usually, when the right to examine a witness has been exercised it is exhausted, and no re-examination of the witness can be had unless by leave of the court, granted on a proper application made therefor. If a party neglects so to apply, and takes a second deposition of the same 1 Rev. Stat. | 1075. s Atocha v. United States, 6 Ct. CI. ^ Hughes V. United States, 4 Ct. CI. 95. 64. « Martin v. United States, 3 Ct. CI. •^ Clark V. United States, 1 Ct. CI. 384 ; Shrewsbury v. United States, 9 246 : McKee v. United States, Id. 336 ; Id. 333. Wilde V. United States, 7 Id. 415. ' Martin v. United States, 3 Ct. CI. * Mahan v. United States, 6 Ct. CI. 384. 331. 24 370 FEDERAL PLEADING, PRACTICE AND PROCEDURE. witness, the court will exercise its discretion as to admitting it in evidence on the trial, if it is objected to.' § 444. Objections, how and when taken. — Objections to parol evidence of the contents of a written instrument should be taken at the examination, for secondary evidence is admissible if no objection thereto is made; and so objection to the form of the question, as that it is leading, must be then made, as even leading questions may be allowed, and especially if no objection is made. But ob- jections which relate to the manner and form of taking or returning depositions may be taken at any time before a hearing of the case on its merits.^ § 445. The court may call upon any of the departments for infor- mation; evidence ; witnesses. — This court has authority to call upon any of the departments for any information or papers it may deem necessary, and is entitled to the use of all recorded and printed reports made by the committee of each house of Congress when deemed necessary in the prosecution of its business. But the head of a department of the government may refuse to comply with such request if in his opinion a compliance would be injurious to the public interest.^ And if it appears to the court that the facts set forth in a petition do not furnish ground for relief, the court should refuse to allow the taking of testimony.* No witness can be excluded in any suit in the Court of Claims on account of color.^ But no claimant nor any person from or through whom he derives title, claim or right against the United States, nor any person interested in such title, claim or right, is a competent wit- ness in this court to support the same, except at the instance of the attorney or solicitor appearing in behalf of the United States.® The statutory provision we have noticed excluding as witnesses those having an interest in the claim against the government is the old common law doctrine as it stood before the adoption of the act of Congress of July 16, 1862, now incorporated into section 858 of ^ Maban v. United States, 6 Ct. CI. to the contents of a written instru- 331 ; Sevier v. United States, 7 Id. ment, then objection may be taken 388, in which it was held, if leave was after the return of the deposition, as given to re-examine upon a particular that would be the first opportunity to point, the witness cannot be examined object: Id. on other matters. ^ Rev. Stat. | 1076. 2 Hughes f. United States, 4 Ct. CI. * Rev. Stat. ^ 1077. 64. If the deposition is taken upon ^ Rev. Stat. | 1078. written interrotcatories, and in answer * Rev. Stat. ^ 1079. to a qqcstion the witness deposes as COURT OF CLAIMS. 371 the Revised Statutes. The latter section provides that no witness shall be excluded in any civil action because he is a party or inter- ested in the issue to be tried, except in certain special cases.^ But if the claim is against the United States, neither the claimant can testify, nor the assignor of a claim transferred after it had accrued to him, nor any one who is interested in the event of the suit.^ But ex necessitate, on general principles of evidences in such cases, he is competent to prove the contents of a lost package, where his right, title and claim to recover, or for relief, has been clearly established by other competent evidence.^ If a corporation is a claimant, the trustees of the corporation are competent witnesses, as they are not supposed to be interested.* So where a party sold property to the claimant, and it was afterwards captured by the United States, the former was held to be a competent witness to sustain the claim therefor.* So if a witness has testified against a claim, his testimony will not be excluded, however mani- fest his interest may be in the claim. Those only are incompetent on account of interest who have an interest in sustaining the claim. ^ § 446. "When the claimant may be examined as a -witness. — At the instance of the attorney or solicitor appearing on behalf of the United States, the court may make an order in any case pending therein, directing the claimant to appear upon reasonable notice before any commissioner of the court and be examined touching any or all of the matters pertaining to the claim. Such examination is required to be reduced to writing by the commissioner and to be returned to and filed in the court, and it may, in the discretion of the attorney or solicitor of the United States appearing in the cause, be read and used in evidence on the trial of the cause. If the claimant fails to appear or refuses to testify or answer as to all mat- ' Rev. Stat. | 858 ; United States v. * Hebrew Consregation v. United Clark, 96 U. S. 37 ; s. c, 11 Ct. CI. States, 6 Ct. CI. 241." 698; Jones v. United States, 1 Ct. CI. ^ United States v. Anderson, 9 Wall. 383; McKeeu. United States, 1 Ct. CI. 56; Grossmeyer v. United States, 4 336 ; Brooke v. United States, 2 Ct. CI. Ct. CI. 1. 180; StoddartiJ. United States, 4 Ct. CI. ^ Wood v. United States, 10 Ct. CI. 511. 395. A surety on a bond, given by ^ United StJitesw. Anderson, 9 Wall, the claimant to the United States to 56. secure the fulfillment of a contract on ' United States v. Clark, 96 U. S. which the claim is based, is not com- 37; 8. c, 11 Ct. CI. 698. petent to testify in favor of the claim- ant : Id. ; Macauley's Case, Ct. CI. 575. 372 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ters within his knowledge material to the issue after reasonable notice thereof, the court may order that such cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises.^ Under the provisions of the section last cited, it has been held that no order can be made for the examination of the assignor of the claimant. The examination provided for by this section is lim- ited to the claimant himself, and cannot be extended to other per- sons. He alone by the provisions of the section can be held responsi- ble for his non-attendance as a witness, after reasonable notice; he alone can be aifected by his refusal to testify ; and it is only for his refusal that the court can delay the trial until he shall have fully complied with the order of the court in that behalf.^ For forms for the Court of Claims, see post. § 447. The testimony to be taken in the county where the witness resides ; how witnesses compelled to attend. — The statute particu- larly requires that the testimony in cases pending in this court shall be taken in the county where the witness resides, when it can be conveniently done ; and the court may issue subpoenas to re- quire the attendance of a witness before any person appointed com- missioner by the court for that purpose ; and the subpoenas have the same effect as if issued from any district court, and com- pliance therewith may be compelled under rules and orders of the court.^ § 448. Either party may cross-examine witnesses. — The statute provides that in taking testimony to be used in support of a claim, the United States shall have an opportunity to file interrogatories, or by attorney to examine witnesses under such regulations as the court may prescribe ; and that like opportunities shall be afforded to the claimant in cases where testimony is taken on behalf of the United States under like regulations.* And the commissioner tak- ing testimony to be used in this court is required to administer an oath or affirmation to the witnesses brought before him for exam- ination.* § 449. Fees of the commissioner and other expenses ; by whom paid. — The fees of the commissioner before whom a deposition is 1 Rev. Stat. § 1080. ^ Rev. Stat. U 1081, 1082. ■^ 3Iacauley v. United States, 11 Ct. * Rev. Stat. | 1083. 01. ;J5. 5 j^ev. Stat. I 1084. COURT OF CLAIMS. 373 taken, and the costs of the commission and notices, shall be paid by the claimant, Avhen the testimony is taken on his behalf; but when taken at the instance of the government such .fees, together with all postage incurred by the Assistant Attorney-General, shall be paid out of the contingent fund provided for the Court of Claims, or other appropriation made by Congress for that purpose.^ § 450. When claims will be forfeited for fraud. — "Any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement or establishment or allowance of any claim against the United States, shall ipso facto forfeit the same to the government ; and it shall be the duty of the Court of Claims in such cases to find specifically that such fraud was practiced or attempted to be practiced, and thereupon to give judgment that such claim is forfeited to the government, and that the claimant be forever barred from prosecuting the same."^ § 451. The judgment or decree. — The judgment or decree of the Court of Claims on a final hearing, if in favor of the claimant, must be for a certain specific sum.^ If the claim is made by an account- ing officer, for a loss of the money or other property of the United States without his fault, the court should decree in his favor the amount thereof.* A proceeding to recover the proceeds of captured or abandoned property is in the nature of a proceeding in rem, and is in effect an information against a fund in the possession of the United States, held for the parties interested in it. There can be no liability in such a case if there is no fund. If it has been consumed in expenses or other legitimate purposes, there is no ground for the claim. If only a part of the original fund remains, the balance having been paid out under a judgment, or been re- leased to other claimants having an interest in it, by the Secretary of the Treasury, the claimant can only obtain judgment for the balance.* For forms of judgment or decree of the Court of Claims, see post, Forms for the Court of Claims. § 452. When the court may grant a new trial. — " When the judg- ment is rendered against any claimant the court may grant a new 1 Rev. Stat. § 108.5. 273 ; Sharp v. United States, 12 Ct. 2 Rev. Stat. § 1U86. CI. 638 ; Seviere v. United States, 7 3 United States v. Anderson, 9 Wall. Ct. CI. 388 ; Winchester v. United 56; s. c, 4 Ct. CI. 467; Brown v. States, 14 Ct. CI. 13; s. c, 99 U. S. United States, 6 Ct. CI. 171. 1372 ; United States v. Villalona;a, 23 * Rev. Stat. I 1062. Wall. 35. 5 Thomas v. United States, 12 Ct. CI. 374 FEDERAL PLEADING, PRACTICE AND PROCEDURE. trial for any reason which, by the rules of common law or chancery in suits between individuals, would furnish sufficient ground for granting a new trial.',' ^ The general principles of the law will be observed in granting new trials by this court. Thus, a new trial will not be granted on the ground of newly-discovered evidence, if it could have been dis- covered with due diligence before the trial. And even where due diligence has been used for this purpose, a new trial will not be granted unless it is made to appear that a different conclusion would probably be reached if the new evidence was before the court. ^ Nor will a new trial be granted merely because the amount involved is too small to allow an appeal.^ But if the decision is founded upon a mistake of law, the claimant may have a review.* So if the judg- ment is entered upon matters not properly in evidence, it will be vacated and a new trial granted.' A new trial will not be granted on the ground that the Supreme Court has made some decisions since the judgment that might en- title the claimant to a judgment in his favor;® nor on the ground of a mistake in fact, unless one of the judges who joined in render- ing the judgment desires a reargument after examining the grounds of mistake upon which it is asked.'' The mode of seeking a new trial would be the usual one, by motion in writing, stating specific- ally the particular grounds upon which it is based, accompanied by the usual affidavits of facts outside the record where it rests upon such facts. § 453. When a new trial -will be granted on the motion of the United States. — At any time while a claim is pending before the Court of Claims, or on appeal from it, or within two years next after the final disposition of it, the court may, on motion on behalf of the United States, grant a new trial and stay the payment of any judgment therein upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong or injustice in the 1 Rev. Stat. ^ 1087. * Calhoun v. United States, 14 Ct. 2 Garrison v. United States, 2 Ct. CI. CI. 193. 382 ; Armstrong v. United States, 6 * Alvord v. United States, 9 Ct. CI. Ct. CI. 226; Deeson v. United States, 133. 6 Ct. CI. 227 ; Bramhall v. United « Bramhall v. United States, 6 Ct. States, 6 Ct. CI. 238 ; Child v. United CI. 238. States, 6 Ct. CI. 44 •, Silvej v. United ' Fendall v. United States, 12 Ct. CI. States, 7 Ct. CI. 3U5. 305. ^ Deeson v. United States, 6 Ct. CI. 227. COURT OF CLAIMS. 375 premises has been done the United States ; but until some order is made staying the payment of the judgment, the same is payable as provided by law in other cases. ^ The words " final disposition," used in the section last cited, have been construed to mean the final disposition on appeal, if an appeal is taken, and if none is taken, then the final decision of the Court of Claims ; and that court may grant a new trial, in the case pro- vided for, at any time within two years after a final disposition, even though it may have been affirmed on appeal in the Supreme Court.2 If after a " final disposition" of a claim a motion for a new trial is granted by the Court of Claims, after an appeal is taken and while it is pending, this vacates the former judgment, and the court resumes the control of the case and the parties, and the Supreme Court will not grant a certiorari to bring up the proceedings subse- quent to the appeal; but after a final judgment on the new trial the case may be taken to the Supreme Court for review.^ The proper course to take in such a case would be to move to dismiss the appeal in the Supreme Court on a proper showing of the facts, or to have the cause continued in the Supreme Court. But the mere filing of a motion for a new trial would be no ground for dis- missing the cause in that court,* although the cause may be con- tinued to await the decision on the motion for a new trial. One of the grounds for obtaining a new trial under the provisons of the section of the Revised Statute last referred to is that some "injustice has been done to the United States." The injustice contemplated by this provision is not that resulting merely from judicial errors committed on the trial, but such as are discovered after the rendition of the judgment.^ And a new trial will not be granted on the ground of newly-discovered evidence unless there was due diligence to discover it before the trial ; and the obligation to use due diligence in such cases falls upon the officers whom«the law requires to take official cognizance of the suit, or who are charged in law or in fact with its defence.^ Nor will it be granted 1 Rev. Stat. § 1088. * United States v. Crusell, 12 Wall. ■^ Ex parte Russell, 13 Wall. 664; 175. Ex parte United States, 16 Wall. 699. ^ Child v. United States, 6 Ct. CI. ' United States v. Young, 94 U. S. 44. 258 ; United States v. Ayers, 9 Wall. « Silvey v. United States, 6 Ct. CI. 60S. 305. 376 FEDERAL PLEADING, PRACTICE AND PROCEDURE. in any case on the ground of newlj-discovered evidence, if the new evidence would not change the result ; or for an error in law, where there is ample remedy by appeal.^ § 454. Final judgments of the Court of Claims ; how paid. — Sec- tion 1089 of the Revised Statutes provides for the payment of all judgments in this court, or on appeal in Ihe Supreme Court in favor of claimants, as folloAVs : *' In all cases of final judgments in the Court of Claims, or on appeal, by the Supreme Court, where the same are affirmed in favor of the claimants, the sum due thereby shall be paid out of any general appropriation made by law for the payment or satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment certified by the clerk of the Court of Claims and signed by the Chief Justice, or in his absence by the presiding judge of said court." The act of March 3, 1875,^ restricts the provisions of the fore- going section, and makes it the duty of the Secretary of the Treasury in such cases, if the plaintiff or claimant is indebted to the United States in any manner, to withhold payment of an amount of such judgment or claim equal to the debt due to the United States. If the claimant assents to this, then it is the duty of the Secretary to execute a discharge of the debt due from the plaintiff or claimant to the United States. But if he denies the indebtedness to the United States, or refuses to consent to the set-off, then the Secretary is required to withhold of such further amount of such judgment or claim as in his opinion will be sufficient to cover all legal charges and costs in prosecuting the debt of the United States to a final judgment. If such is not already in suit, it is made the duty of the Secretary to cause legal proceedings to be immediately com- menced to enforce the same, and to cause the same to be prose- cuted to final judgment with all reasonable dispatch. If in such action judgment shall be rendered against the United States, or the amount recovered for the debt and costs shall be less than the amount withheld, he is required to pay over the balance to the plaintiff, with six per cent, interest thereon for the time it has been so withheld from him. This provision requires the amount of any debt due from the ^ Ealer v. United States, 5 Ct. CI. preme Court by appeal : Young v. 708 ; Child V. United States, 7 Ct. CI. United States, 99 U. 8. 641, 305. A decision on a motion for a ^ Ch. 149, 18 Stat. 481. new trial cannot be taken to the Su- COURT OF CLAIMS. 6(1 claimant to the United States to be withheld by the Secretary of the Treasury, although this might have been set up as a defence to the claim. The statute conferring jurisdiction on the court gives it jurisdiction to hear and determine " all set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever, on the part of the government of the United States against any person making claim against the government in said court." As a general rule, in suits between private parties, such a defence should be made in the original suit ; but, as the allow- ance of such suits against the government is a mere matter of grace, it has a legal right to impose such conditions and restrictions in the premises as it thinks proper. Experience has probably shown that legal defences on the part of the government are frequently over- looked, or, through negligence of officers or otherwise, not made. The term general appropriation for private claims, used in the statute, has been held to mean appropriations made for the pay- ment of debts which were not paid out of the specific appropria- tions.^ If the claimant consents to take the balance due him after deducting the set-off claimed by the Secretary, and discharges the judgment, he thereby waives the right to have the validity of the debt tested by legal proceedings.^ § 455. Interest on judgments of the Court of Claims affirmed in the Supreme Court. — Where a judgment is affirmed in the Supreme Court, in favor of the claimant, on an appeal from the Court of Claims, interest thereon at the rate of five per centum must be allowed from the date of its presentation to the Secretary of the Treasury for payment, as aforesaid. But no interest can be allowed subsequent to the affirmance unless presented as aforesaid to the Secretary of the Treasury.^ No interest can be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating there- for.* But where a factor filed a claim against the proceeds of cap- tured property, which exceeded his claim, he was allowed interest from the time his claim accrued up to the time of the rendition of the judgment.^ And where a claim was referred to the Court of 1 Sweeny v. United States, 5 Ct. CI. * Rev. Stat. | 1091 ; Todd v. United 285. - States, Dev. (C. C.) 175; Tilson v. •^ Bonnafon v. United States, 14 Ct. United States, 100 U. S. 43. CI. 484. 5 Villalonga v. United States, 10 ^ Kev. Stat. I 1090. Ct. CI. 428 ; s. c, 23 Wall. 35. 378 FEDERAL PLEADING, PRACTICE AiS'D PROCEDURE. Claims under a special act of Congress, to be determined according to " rules and regulations heretofore adopted by the United States in the settlement of like cases," it was held that interest might be allowed on the claim before the rendition of the judgment, if interest had been allowed by Congress in the adjustment of similar cases.^ § 456. Payment of the judgment a full discharge. — The payment of the amount due upon any judgment of the Court of Claims and of any interest thereon allowed by law is a full discharge of the United States from all claim and demand touching any of the mat- tors involved in the controversy.^ To constitute a bar to a future action the judgment must be one rendered on the merits ; ^ and although the judgment may be erro- neous, it is a bar to a second suit for the same cause of action.* But a judgment in one suit will not bar an action in another if the causes of action are different.^ So an action for a breach of one covenant and a judgment therefor for -the claimant will not bar another action for the breach of another covenant, even when both covenants are contained in the same instrument and both were broken at the time of the institution of the first suit.® So a judgment for rent upon one petition will not bar another suit to recover rent that was not due at the time of commencing the first suit.^ § 457. Appeals from the Court of Claims to the Supreme Court. — Section 707 of the Revised Statutes provides for an appeal from the Court of Claims to the Supreme Court of the United States, as follows : " An appeal to the Supreme Court shall be allowed, on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thou- sand dollars, or where his claim is forfeited to the United States by the judgment of said court as provided in section 1089." There is an absolute right of appeal on behalf of the United States and also on behalf of the claimant where the amount in con- troversy exceeds the sum of three thousand dollars, or where his ^ United States v. McKee, 91 U. S. ^ Shrewsbury v. United States, 9 442; s. c, 10 Ct. CI. 231. Ct. CI. 263. - Rev. Stat. ? 1093. ' Shrewsbury v. United States, 9 Ct. •' Spicer v. United States, 5 Ct. CI. CI. 263. 34. ' Cross V. United States, 14 Wall. * Osborne v. United States, 9 Ct. CI. 479 ; s. c, 5 Ct. CI. 88. 153. COURT OF CLAIMS. 879 claim is forfeited to the United States by the judgment of the Court of Claims, as provided by the statute. The right to an appeal ex- ists in all cases except where it is withheld, and it is not withheld from the government in any case where there is a judgment against them, nor from the plaintiff in any case where the amount in con- troversy exceeds three thousand dollars, or where his claim has been forfeited.^ § 458. Right to appeal, not to writ of error. — The Statute gives the right to an appeal, but makes no provision for a writ of error, and hence the Supreme Court cannot proceed on a writ of error to review a decision of the Court of Claims.^ § 459. Time and manner of taking appeals. — Appeals from the Court of Claims must be taken within ninety days after the judg- ment or decree is rendered, and are allowed under such regulations as are or may be prescribed by the Supreme Court. ^ § 460. Regulations prescribed by the Supreme Court of the United States relating to appeals from the Court of Claims. — The Supreme Court of the United States has prescribed rules regulating appeals from the Court of Claims. One rule provides that where appeals are allowable they shall be heard in the Supreme Court upon the following record : " 1. A transcript of the pleadings in the case, of the final judg- ment or decree of the court, and of such interlocutory orders, rulings, judgments and decrees as may be necessary to a proper re- view of the case. " 2. A finding by the Court of Claims of the facts in the case established by the evidence in the nature of a special verdict, but not the evidence establishing them; and a separate statement of the conclusions of law upon said facts upon which the court founds its judgment or decree. The finding of facts and conclu- sions of law to be certified to this court as a part of the record." * If a statute confers on the Court of Claims jurisdiction over a new subject, an appeal lies from a decision relating thereto the same as in other cases.^ § 461. Application for allowance of appeals; w^ithin what time to be made. — Rule 3 provides that " in all cases an order for the 1 United States v. Adams, 6 Wall. * Rule 1 Ct. CI., prescribed by the 103; Klein's Cases, 7 Ct. CI. 240, Supreme Court. See post, Rules for ^ United States v. Young, 94 U. S. the Court of Claims. 258; Latham's Appeal, 9 Wall. 145. ^ Ex parte Zellner, 9 Wall. 244. =* Rev. Stat. I 708. 380 FEDERAL PLEADING, PRACTICE AND PROCEDURE. allowance of appeal by the Court of Claims, or the Chief Justice in vacation, is essential, and the limitation of the time of granting such appeal shall cease to run from the time an application is made for the allowance."^ An order for the allowance of an ap- peal does not absolutely and of itself remove the cause from the jurisdiction of the court; but an order revoking such an allowance may still be made.^ For appropriate forms on appeals, see post^ Forms for the Court of Claims. § 462. Findings of fact and conclusions of law filed in open court. — Where either party is entitled to appeal, the Court of Claims is required to make and file their finding of facts and conclusions of law therein in open court, before or at the time they enter the judg- ment in the case.^ If a proper finding of facts is not sent up with the record, the Supreme Court will, on a motion duly made therefor, make an order directed to the Court of Claims, requiring it to make a proper return as to the existence of such facts. But it cannot direct the Court of Claims as to what finding it shall make, or how it shall proceed to make its findings on the points required to be certified.* In the case provided for by the rule last cited each party, at such time before the trial and in such form as the court shall pre- scribe, shall submit to it a request to find all the facts which the party considers proven, and deems material to the due presentment of the case, in the finding of facts. ^ The fourth and fifth rules we have just cited were undoubtedly designed to enable a party to secure a finding of fact upon any point material to the decision of the court ; but the failure of the court to find the fact as a party alleges it to be will not justify the bringing of all the evidence on that subject before the Supreme Court. If the court refuses to make any finding on the point, the Supreme Court may order it to make a finding.^ If the Court of Claims refers a case pending therein to a special commissioner to state an account and find the facts, and his report has been heard upon exceptions filed thereto, and the court finds ^ Rule 3 Ct. CI., prescribed by the * United States v. Adams, 9 Wall. Supreme Court; United States v. 661. Adams, 6 Wall. 101. * Rule 5 Ct. CI., prescribed by the ^ Ex parte Roberts, 15 Wall. 384. Supreme Court. •^ Rule 4 Ct. CI., prescribed by the * Mahan v. United States, 14 Wall. Supreme Court. 1U9. COURT OF CLAIMS. 381 the facts found sustained by the evidence, they will be returned to the Supreme Court, in case of an appeal of the case, as the finding of the court. And as to facts requested to be found by either party, and not found by the court, they should be certified up to the Supreme Court, with the reasons for the refusal.^ The record on appeals should be prepared strictly in accordance with the rules prescribed by the Supreme Court in relation thereto. Only such statement of facts should be sent up to the Supreme Court as may be necessary to enable it to decide upon the correct- ness of the rulings in the court below on propositions of law. The facts found by the court must be in such form as to raise the ques- tion of law decided by the court, and no evidence should be in- cluded.^ Even a written agreement entered into by both parties that the evidence may be sent up to the Supreme Court with the required record of the case will not authorize the court to certify up such evidence.^ The finding of facts by the Court of Claims in the nature of a special verdict is conclusive in the Supreme Court on appeal, unless it is impeached for some error in law appearing in the record.* But where the Court of Claims certified up on appeal, as a part of its findings, all of the evidence on which a fact material to the judg- ment rendered was found, from which it appeared that there was no legal evidence to establish such fact, the Supreme Court reversed the judgment.^ § 463. Where a request is made to find facts. — If a party entitled to appeal requests the finding of a material fact, which is refused by the court, although there is sufficient evidence to sustain it, the party aggrieved thereby may except to the ruling and have the matter reviewed on appeal.^ The request for the finding of particular facts must be in writing and made at the trial, and embrace all the material facts in the case; and if it be for an additional finding of facts, it should set forth specifically, distinctly and concisely the facts as to which a ^ Lawrence v. United States, 8 Ct. * United States v. Smith, 94 U. S. CI. 252. 214 ; United States v. Pugh, 99 U. S. - De Groot v. United States, 5 Wall. 265. 419. 5 United States v. Clark, 96 U. S. •' Hubbel V. United States, 6 Ct. CI. 37. 53. It is only the ultimate facts or ^ United States v. Adams, 9 Wall, propositions which can be certified 661. up, and not the evidence of facts : Id. 382 FEDERAL PLEADING, PRACTICE AND PROCEDURE. finding is desired, and a reference should be made in the margin of the pages where the evidence to prove the facts may be found ; but it should not ask that the finding be an amendment or alteration of the finding already made.^ Decisions upon the admissibility of evidence, and orders made relating to the conducting of the trial, cannot be incorporated into the finding of the facts. ^ But if the Court of Claims admits questionable evidence, the sufiiciency of the evidence, as we have seen, to sustain the finding may be reviewed on a proper statement of the facts. ^ If the report of the commissioner appointed by the Court of Claims is adopted by the court, the finding of facts by him, to- gether with such additional findings as the court may make, should be transmitted to the Supreme Court as the findings of the Court of Claims.* If an ultimate fact can only be inferred from circumstantial facts, and there is any doubt as to the legal effect of these facts, the findings should set forth these circumstantial facts.^ But the find- ings need not state the items of the amount of damages.® If all the evidence on which a fact is found is certified up with the record as a part of the finding, the evidence and the finding may both be examined to determine whether the evidence is competent and whether it establishes the fact found.^ But if the court, upon request, states that a particular item of damages is included in its estimate of damages, the claimant may except to the finding on this point, and thus present, on appeal to the Supreme Court, the ques- tion whether the item is legally a matter for which damages can be recovered.^ And if the finding of facts does not set forth the amount the claimant is entitled to recover, the judgment will be reversed.^ We will conclude our treatment of this subject by quoting the eloquent remarks of an eminent American lawyer relating to the constitution and functions of this court. He says : 1 Raines v. United States, ] 1 Ct. CI. ^ United States v. Pu^h, 99 U, S. 648; Neal v. United States, 14 Id. 265; Calhoun v. United States, 14 Ct. 477 ; Bright v. United States, 12 Id. CI. 193. 646. *■ United States v. Smith, 94 U. S. 2 Blewett V. United States, 10 Ct. 214. CI. 235. ' United States v. Clark, 96 U. S. ' M'Keever v. United States, 14 Ct. 37. CI. 396. « United States v. Smith, 94 U. S. * Lawrence v. United States, 8 Ct. 214. CI. 252. 8 United States v. Clark, 96 U. S. 37. COURT OF CLAIMS. * 383 *' The court itself is the first-born of a new judicial era. As a judicial tribunal, it is not only new in the instance ; it is also ne^v in principle. So far as concerns the power of courts to afford redress, it has heretofore been fundamental that the sovereign can do no wrong. This court was erected as a practical negative upon that vicious maxim. Henceforth our government repudiates the arrogant assumption, and consents to meet at the bar of enlightened justice every rightful claimant, how lowly soever his condition may be. " Prior to the institution of this court, all rights as against the nation were imperfect in the legal sense of the term ; every duty of the nation was a duty of imperfect obligation. There was no judicial power capable of declaring either ; no private person pos- sessed the means of enforcing the one or coercing the other. But effectual progress has been made towards giving form and method to the administration of justice between the nation and the indi- vidual. This court enables the latter to obtain an authoritative recognition of his rights. No more is needed ; for in no case can a state, after such a recognition, withhold payment and yet retain its place in the great family of civilized nations. " The ordinary jurisdiction of the court bears a strong resem- blance to the narrow cognizance at common law; but its extra- ordinary jurisdiction over all claims which may be referred to it by either house of Congress extends its power to the utmost limits attainable by juridical science in its fullest development. In this aspect its dignity and importance as a governmental institution cannot be too highly appreciated. As a means by which rightful claims against the government may be readily established, and those not founded in justice promptly driven from the portals of Congress, it must exercise a most healthful influence. . " But we are authorized to look higher than the mere conveni- ence of suitors and the dispatch of public business. Enlightened patriotism will contemplate other and more important- consequences. Caprice can no longer control. Here equity, morality, honor and good conscience must be practically applied to the determination of claims, and the actual authority of these principles over govern- mental action ascertained, declared and illustrated in permanent and abiding forms. As step by step, in successive decisions, you shall have ascertained the duties of government toward the citizen, oS4: FEDERAL PLEADING, PRACTICE AND PROCEDURE. fixed their precise limits upon sound principles, and armed the claimant with means of securing their enforcement, a code will grow up giving effect to many rights not heretofore practically acknowledged. " In it will be found enshrined for the admiration of succeeding ages an honorable portraiture of our national morality, and a full vindication of the eulogium recently pronounced upon our people by the highest authority in the parent state. ' Jurisprudence,' says Lord Campbell, in the Queen v. Millis, ' is the department of human knowledge to which our brothers in the United States of America have chiefly devoted themselves, and in which they have chiefly excelled.' "^ ^ Charles O'Conor, in " Great Speeches by Great Lawyers," p. 191. CHAPTER XIX. COMMISSIONERS OF THE CIRCUIT COURTS. § 464. Circuit courts may appoint; povrers and duties. — The office of commissioner of the circuit court is quite an important one, as he has the authority in some cases to exercise functions which also belong to the highest judicial officers of the country. We have already noticed that any district judge may appoint commissioners, before whom appraisers of vessels or goods and merchandise seized for breaches of any law of the United States may be sworn. ^ This seems to be the limit of their authority. But each circuit court can appoint, in the different districts in which it is held, as many discreet persons as it may deem necessary, to be called "commissioners of the circuit courts," who may exercise such powers as are or may be expressly conferred upon them.^ But no marshal or deputy marshal of any of the courts of the United States is eligible to the office of commissioner of any of said courts.^ Under the provisions of the statutes the commissioners have various powers conferred upon them. They have equal authority with the judges of the Supreme Court and of the circuit and district courts to hold to security of the peace and for good behavior, in cases arising under the Constitution and laws of the United States ;* and they have power to enforce the awards or decrees of foreign consuls, vice-consuls or commercial agents, in cases where the latter lawfully sit as arbitrators of differences that arise between the cap- tains and the crews of vessels belonging to the nation whose in- terests are committed to their charge.^ They may also hear the applications of poor convicts, to be relieved from imprisonment in certain cases, and determine the same;^ and arrest foreign seamen upon the application of consular offi^cers in certain cases. '^ They may also summon the master of a vessel to show cause why process should not issue against her to answer ^ Rev. Stat. U 57U, 938. » ^^y gtat. | 728. - Re7. Stat. ^ 627. « Rev. Stat. ^| 1042, 5296. •^ Rev. Stat, g 628. ' Rev. Stat. U 4080, 4081, 5280. * Rev. Stat, g 727. 25 386 FEDERAL PLEADING, PRACTICE AND PROCEDURE. for the wages of seamen, upon a proper application therefor;^ take depositions de bene esse in any civil cause depending in the circuit or district courts;^ take bail affidavits when required in civil cases in said courts, and acknowledgments of the same ;^ administer oaths and take acknowledgments in certain cases, and certify the same;* and issue search warrants to search premises, where there is the proper evidence that a fraud is being perpetrated against the reve- nue.^ They have also further powers, which we will hereafter more par- ticularly notice, such as to hear and determine the claim made for a fugitive from justice under an extradition treaty, but not until they are authorized so to do by some court of the United States. So the circuit court of each judicial circuit is required to appoint from the commissioners of each judicial district in each judicial circuit one to act as supervisor of elections for the district of which he is a commissioner, of whose duties as such supervisor we shall here- after treat. Besides this, bonds and stipulations may be taken in admiralty before any commissioner in certain cases provided for by Rule 5 in admiralty. The statute conferring the power of appointing commissioners makes no provision for their removal ; but the practice is for the courts to remove as well as appoint. It has, however, been held that a commissioner is not an officer of the court, and that the court in making the appointment only exercises an agency imposed on it, and does not acquire thereby a right to supervise his proceed- ings as an officer.^ § 465. Po-wrer of commissioners to require security to keep the peace and for good behavior. — Having referred in a general way to the powers of the commissioners of the circuit courts, it will be ap- propriate to consider these powers more particularly, and furnish forms for their convenience. In reference to the power of commis- sioners to hold to security to keep the peace and for good behavior the statute provides: "The judges of the Supreme Court and of the circuit and district courts, the commissioners of the circuit courts and the judges and other magistrates of the several states, who are or may be authorized by law to make arrests for offences against the 1 Rev. Stat. || 4546, 4547. ' Rev. Stat. § 3462. * Rev. Stat. | 863. ^ J^x parte John Van Orden, 3 2 Rev. Stat. I 945. Blateh. 166. * Rev. Stat. § 1778. COMMISSIONERS. 387 United States, shall have the like authority to hold to security of the peace and for good behavior, in cases arising under the Constitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective states, in cases cognizable before them."^ Similar provisions are to be found in statutes of most if not all of the states, which is perhaps sufficient evidence of their importance and wisdom. They are particularly efficacious in restraining treasonable attempts against the government.^ The commissioner has under these provisions the same power in respect to the taking of bail or security that a state magistrate would have in similar cases, and no more. Thus, where a commissioner, at the request of a prisoner, adjourned his examination for nineteen days, in a case where the latter was charged with a violation of the revenue laws, and took bail for his appearance at the end of that time, when the magistrate of the state could under such circumstances adjourn the case only ten days, in a suit against his sureties on the bond for a breach of it, it was held that the prisoner could not by con- sent confer the right to adjourn for that time, nor estop the sureties from setting up the invalidity of it.^ § 466. There must be an information or complaint. — The general practice in the several states where cognizance is given the state courts or officers in such cases is followed in cases presented to commissioners and the federal judges. This must necessarily be by information or complaint under oath, or by a personal examina- tion of the complaining party, and such others as may be produced, showins: that some one threatens to commit or is about to commit some offence arising under the Constitution or laws of the United States. In such cases it must appear that there is at least prob- able cause to believe that the offence will be committed unless the party charged is restrained by the action of the magistrate; and it would not be proper for him to issue a warrant for the arrest on the mere motion of the commissioner or other officer.* For forms, see post, "Forms in proceedings before commissioners." 1 Rev. Stat. § 727. ties, 2 Dill. 94 ; United States v. Gold- 2 United States v. Greiner, 4 Phila. stein, 1 Dill. 413. 396. * Johnson v. Tompkins, Bald. 571 ; * United States v. Case, 8 Blatch. United States v. Shepherd, 1 Abb. 250 ; United States v. Rundlet, 2 Curt. 431. 44 : United States v. Morton's Securi- 388 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 467. Proceedings on examination. — The usual proceeding on examination of similar cases before state magistrates is followed when they are before federal magistrates. When the party charged is brought before him, the witnesses may be examined both on the part of the government and of the party accused. If from the evi- dence the magistrate believes that there is good reason to fear the commission of the offence by the accused, and that it arises under the Constitution and laws of the United States, he should be held to answer before the proper tribunal, and give a proper recognizance therefor, with sureties to be approved by the commissioner, and further that he will in the meantime keep the peace and be of good behavior toward all citizens of the United States, and particularly towards the one complaining in that behalf. For form for a recog- nizance, see post, No. 203. § 468. Recognizance of witnesses. — " Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offence against the United States may, at the hearing of any such charge, require of any witness produced against the prisoner, on pain of imprisonment, a recognizance with or without sureties, in his discretion, for his appearance to testify in the case. And where the crime or offence is charged to have been committed upon the high seas or elsewhere within the admi- ralty and maritime jurisdiction of the United States, he may, in his discretion, require a like recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused whose testimony in his opinion is important, and is in danger of being otherwise lost." ^ A form for a recognizance may be found j^ost, No. 205. § 469. When the prisoner must be committed ; duty of the com- missioner to make a return. — If a recognizance is required and given by the prisoner he should be discharged, but if not he should be committed to prison until he furnishes the same, and the mittimus or warrant of commitment should, as is usually required in such cases in proceedings before state officers, show the cause of the com- mitment and the amount of the security necessary for his discharge. The proper form of the mittimus will be found post, No. 207. ^ Rev. Stat. §§ 848, 879, 1014. In must be to the next term of the cir- V'ermont all reco^nizunces for the ap- cuit court to be held in the ditstrict: pearance of witnesses in such cases Kev. Stat. § SSO. COMMISSIONERS. 389 It would be the duty of the commissioner to make a return of the recognizance if one is given, and of all the papers and process, to the proper court, where the prisoner is required to appear on or before the first day of the next term of the same. § 470. Commissioners may enforce awards of consuls, etc., in certain cases. — The Statute provides for the enforcement of the awards or decrees of consuls and other agents of foreign countries. It is as follows : " The district and circuit courts and the commis- sioners of circuit courts shall have power to carry into effect, according to the true intent and meaning thereof, the award or arbitration or decree of any consul, vice-consul or commercial agent of any foreign nation, made or rendered by virtue of any authority conferred upon him as such consul, vice-consul or com- mercial agent, to sit as judge or arbitrator in such differences as may arise between the captains and crews of vessels belonging to the nation whose interests are committed to his charge ; application for the exercise of such power being first made to such court or commissioner by petition of such consul, vice-consul or commercial agent. And said courts and commissioners may issue all proper remedial process, mesne and final, to carry into full effect such award, arbitration or decree, and to enforce obedience thereto by imprisonment in the jail or other place of confinement in the district in which the United States may lawfully imprison any person ar- rested under the authority of the United States until such award, arbitration or decree is complied with, or the parties are otherwise discharged therefrom, by the consent in writing of such consul, vice-consul or commercial agent, or his successor in office, or by the authority of the foreign government appointing such consul, vice- consul or commercial agent ; provided, however, that the expenses of the said imprisonment and maintenance of the prisoners and the cost of the proceedings shall be borne by such foreign government or by its consul, vice-consul or commercial agent requiring such imprisonment. The marshals of the United States shall serve all such process and do all other acts necessary and proper to carry into effect the premises under the authority of said courts and com- missioners."^ The required forms for proceeding under this section may be found post, under the head of " Forms in proceedings before commis- sioners." ^ Rev. Stat, g 728. 390 FEDERAL PLEADING, PRACTICE AND PROCEDURE. § 471. Offenders against the United States ; when arrested by commissioners. — Section 1014 provides : " For any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any cliancellor, judge of a supreme or superior court, the chief ov first judge of common pleas, mayor of a city, justice of the peace, or other magistrate of any state where he may be found, and agreeably to the usual mode of process against such offenders in such state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the re- cognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any dis- trict other than tiiat where the offence is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had." ' § 472. Usual mode of procedure against offenders in the state courts pursued. — The words "usual mode of process against offenders," used in the statutes, are synonymous with usual mode of proceedings ; and the mode of proceedings should in all cases conform to the usual practice and procedure in like cases in the courts of the state where the proceedings shall take place.^ The authority granted to the judicial officer in these cases is not one which can be exercised in any arbitrary manner which he may see fit to prescribe or adopt, but it must be exercised in the same man- ner as that pursued against offenders in similar cases under the laws of the state where the prosecution is instituted.^ § 473. Information or complaint under oath. — The mode of pro- cedure in the state courts on preliminary examinations is gener- ally, if not universally, prescribed by the statutes of the various states. There must be at least a probable cause to believe that an 1 See also Rev. Stat. || 848, 879. ^ Bajrnall v. Ableman, 4 Wis. 163 ; '^ United States v. Rundlett, 2 Curt. United States v. Clark, 1 Gallis. 497 ; 41 ; United States v. Horton's Securi- In re Robert M. Martin, 5 Blatch. ties, 2 Dill. 94. 303. COMMISSIONERS. 391 offence has been committed against the United States, before the magistrate can properly issue a warrant for the arrest of an offender, and the requisite proof on which to base his conclusion must be an information or complaint, setting forth the necessary facts to constitute the offence charged, supported by oath.^ But it is not necessary that the application for the warrant should be made by the district attorney. Any person may make the com- plaint under oath.^ A warrant for the arrest should not, how- ever, be issued upon the affidavit of a person who has no personal knowledge of the commission of the offence, and who only states that he has been informed of it, and believes the information to be true.^ It is not essential that the complaint be signed and verified be- fore the commissioner, but it should be verified before some one authorized to administer oaths.* Nor need it follow the exact language of the statute in charging the offence.^ This is in con- formity with the current of decisions of the state courts upon the same point. The form of the complaint should be that required by the stat- utes of the state for similar cases under state laws, if any, or, in the absence of this, such as may have been approved by the general practice in the state.® For form, see post, No. 197. The warrant of arrest, if issued, should, with the necessary sub- poenas on behalf of the United States, be placed in the hands of the United States marshal of the proper district or his deputy, who should serve and return them in the usual manner provided by the state law.'^ § 474. Notice to the district attorney. — It is not imperatively required to give notice of such proceedings to the district attorney, but it is very proper to do so after the filing of the complaint, where it is convenient or practicable, as the government is the party in- ^ United States ». Bollman, 1 Cr. ^ United States v. Hand, 6 McLean (C. C.) .373. 274. ■^ United States v. Skinner, 2 "Wheel. « United States v. Rundlett, 2 Curt. Or. Gas. 232. 41 ; United States v. Morton's Securi- ' In re Commissioners, 3 Woods ties, 2 Dill. 94. .^02; United States v. Burr, 2 Wheel. ' Rev. Stat. §§ 787, 788. It is a Cr. Cas. 573. common practice to insert the names ^ Ex parte Bollman, 4 Cr. 75 ; of all the witnesses in one subpoena, Hurr's Trial 14. and this is the most convenient way. 392 FEDERAL PLEADING, PRACTICE AND PROCEDURE. terested in the prosecution. If he appears it can be only as coun- sel for the government ; and he cannot direct the commissioner what course he shall pursue or what finding he shall make, nor can he dismiss the proceedings.^ § 475. Preliminary hearing ; witnesses. — At the hearing of the cause the course of procedure would be the same as in a like case under the practice of the state, and similar to that suggested in case of a prosecution to require security to keep the peace and for good behavior.^ The accused may be re-presented by counsel and examine witnesses in his own behalf;^ but the magistrate cannot issue pro- cess to summon witnesses for him in another state.* The statute provides that in no case shall the fees of more than four witnesses be taxed against the United States in the examina- tion of a criminal case before a commissioner of a circuit court, unless their materiality and importance are first approved and certi- fied to by the district attorney for the district in which the examina- tion is had, and such taxation is subject to revision as in other cases. ^ If the magistrate adjourns a cause to a future time it must be in accordance with the state law and practice on that subject, and it cannot be for an indefinite time.^ If the statutes of the state pro- vide for giving bail in such cases, bail may be taken for the appear- ance of the accused at the time fixed ; ^ but if no bail is given he should be committed. For form of recognizance in such cases, see j^ost, No. 206. The accused may be committed by the commissioner although the errand jury of the trial court in such cases is in session, and even although an indictment found against the accused for the oifence charged has been quashed.^ It may further be observed that whether the commissioner commits or discharges the accused it is not a final bar to further proceedings. If he is discharged he may be again ^ United States r. Schumann, 2 Abb. place: United States v. Rundlett, 2 {0. C.) 523. In some of the circuits Curt. 41. there is a rule requiring notice to be ^ Rev. Stat. ? 981. given the district attorney in revenue * United States v. Worms, 4 Blatch. cases: Rules 13 and 61, 8th circuit. 332. 2 See ante, I 468. ' United States v. Horton's Securi- ^ United States v. BoUman, 1 Cr. ties, 2 Dill. 94 ; United States o. (C. C.) 373. Rundlett, 2 Curt. 41. * United States v. White, 2 Wash. « United States v. Burr, 1 Burrs 29. The power to hear implies the Trial 79; United States v. Town- power to adjourn, both as to time and maker. Hemp. 299; United States v. Smith, 2Cr. (C. C.) HI. COMMISSIONERS. 3i<8 arrested for the same offence, and may be held to bail or committed on sufficient evidence. If committed, as we shall hereafter more fully notice, he may apply to the proper court for a reduction of the bail fixed by the commissioner, or the prosecuting officer may apply to the court to have it increased, or even to discharge the prisoner altogether. The prisoner may also procure a discharge in a proper case on habeas corpus. The commissioner's order in such a case is not in the nature of a final judgment.^ § 476. Witness fees; how paid. — Witnesses are allowed for each day's attendance in court or before any officer pursuant to law one dollar and fifty cents, and five cents a mile each way in going from his place of residence to the place of trial or examination and in returning to his place of residence. An affidavit of his attendance and a statement of his claim therefor should be made out and sworn to before the commissioner, who should certify to the attendance, and order the proper marshal of the district to pay the claim. ^ For form of affidavit, certificate and order, seejjost, Nos. 208, 209. § 477. Decision of the magistrate; commitment. — If after hear- ing the evidence the commissioner believes that an offence against the United States has been committed, and that the accused is guilty thereof, he should so find, and by an order commit him to prison to await any indictment which may be found in the proper court against him, unless the offence is bailable and he furnish good and sufficient bail for his appearance at said court ; and if he fails at the time of the decision to furnish a proper recognizance in such cases, in a sum to be fixed by the commissioner, the commissioner should issue a warrant of commitment.^ We shall hereafter notice ■what causes are and what are not bailable before a commissioner. For form of warrant for commitment, see post, No. 204. § 478. "Waiver of examination. — The accused can of course ap- pear before the commissioner at any time after complaint is filed and waive an examination, and give a recognizance the same as if 1 United States v. Burr. 1 Burr's ness, on behalf of the United States, Trial 11, 79; In re Robert M. Martin, on the order of the court: Rev. Stat. 5 Blatch. 303. g 855. - Rev. Stat. | 848. 3 Anon., 1 Wool. 422 ; United States If a witness is detained in prison v. Blooni^rart, 2 Ben. 356 ; In re Samuel for want of security for his appear- R. Van Canipen, 2 Ben. 419; In re ance, he is entitled to a compensation Robert M. Martin, 5 Blatch. 303 ; of one dollar a day: Rev. Stat. | 848. United States v. Burr, 1 Burrs Trial The marshal is required to pay wit- 11. o94 FEDERAL PLEADING, PRACTICE AND PROCEDURE. he bad been held to bail for his appearance after an examination. This is the practice in the state courts ; and of course it could not be construed into any confession of guilt of the accused. The warrant of commitment should in all cases show on its face a sufficient cause of commitment.^ If it does not set forth an act that is made an offence against the United States it would be void,^ and the prisoner discharged on habeas corpus. § 479. Removal of prisoner to another district. — The section under consideration provides that, where any offender is committed in any district other than that where the offence is to be tried, it is the duty of the judge of the district Avhere such offender is im- prisoned seasonably to issue, and of the marshal to execute, a war- rant for his removal to the district where the trial is to be had.^ Under this provision a party who has committed an offence against the United States in the District of Columbia may be arrested and examined elsewhere, and, if held for trial, may be removed to said district for trial.* But it does not apply to an arrest made for the purpose of extradition to a foreign country." §480. Significance of the word "seasonably." — The accused is entitled to a reasonable opportunity to procure bail, and the statute does not authorize his removal under the last clause of the section until he has been imprisoned for the want of bail ; that is, for his failure to enter into a recognizance for his appearance at the proper court. After this it is the duty of the judge of the district where the offender is imprisoned, and where he must be tried in another district, to seasonably issue his warrant for his removal to the dis- trict where the trial is to be had. "Nothing is to be done rashly or in haste or malice. A man is not to be snatched from his home on the instant, and carried into a distant state. But a season is to be allowed at least to procure bail if not to arrange for his departure, and this season is to be allowed after his arrest, examination, the fixing of the amount of bail, and imprisonment for delinquency in not giving it."*' ^ Ex parte Thomas Williams, 4 Cr. ance which may be required of wit- (C. C.) 343; Ex parte N. V. H. Ben- nesses : United States v. Haskins, 3 nett, 2 Id. 612; Ex parte Burford, 3 Saw. 262. Or. 448 ; Ex parte Robert Sprout, I * In re Augustus C. Buel, 3 Dill. Cr. (C. C.) 424; United States v. 116. Brown, 4 Id. 333. * In re Philip Henrich, 5 Blatch. 2 Bagnall v. Ableman, 4 Wis. 163. 414. ' See also § 879, as to the recogniz- * Bagnall v. Ableman, 4 Wis. 163. COMMISSIONERS. 395 The commissioner has the same power to take bail as a state magistrate in a similar case ; and although the prisoner is in the hands of a marshal awaiting a warrant for his removal to another district from the district judge, it appears that the commissioner may still release him at any time before the issuing of the warrant, on his entering into a proper recognizance for his appearance as required by the order of the commissioner.^ § 481. Amount of bail; -what the recognizance should contain. — The word bail, in the statutes, means the taking of security for the appearance of the accused party at the proper court and at the proper time; and this must not be excessive. What would be large bail in one case would perhaps not be large in another. The judg- ment of the court or magistrate in fixing the amount of bail should be guided by a reasonable consideration of the ability of the pris- oner to give bail and the atrocity of the offence ; always bearing in mind that the object in requiring bail is to secure the personal attend- ance of the accused at the proper court, to answer to any indict- ment which may be found against him for the offence charged.^ The bail to be given is a recognizance or bond with sureties. This should recite the act or offence with which the principal is charged ; and if from the recital of the act or offence charged it appears that it does not in fact show any offence against the United States, or any violation of an act of Congress, it is void and the sureties are not bound thereby. But it is sufiicient if it sets forth an act punishable by a statute of the United States, although with- out any particulars.^ § 482. Extent of liability of sureties. — A recognizance which requires the accused to appear in the proper court and attend from day to day to answer the charge made against him is not discharged by the quashing of an indictment which may be found against him ; for another indictment may still be found during the term, for the same offence, and free from the objections to the former one; but if the court finally adjourns without taking any action against him on the charge, he and his sureties are discharged.* ^United States r. Horton, 2 Dill. 'United States tJ. Hand, 6 McLean 94 ; United States v. Voitz, 14 Blatch. 274; United States v. Dennis, 1 Bond 15. 103. ^ United States v. Lawrence, 4 Cr. * United States v. White, 5 Cr. (C. (C. C.)518: United States u. Case, 8 C.) 368; United States v. Burr, 1 Blatch. 250 ; Ex parte George Mil- Burr's Trial 79. burn, 9 Pet. 704. 396 FEDERAL PLEADING, PRACTICE AND PROCEDURE. If the recognizance stipulates for the appearance of the accused at the next term of the proper trial court and at any subsequent term of said court to be thereafter held, this means only such sub- sequent term as may follow in regular succession in the course of business of the court, and an agreement at any term to continue the case for an indefinite period would discharge the sureties.' But if the accused, after giving the recognizance, should be arrested, convicted and imprisoned under the state laws, such proceeding and imprisonment would be no excuse for his non-appearance, nor exon- erate the bail from their obligation to produce him ; nor would the death of the accused after default and forfeiture of the recognizance relieve them from their liability.^ § 483. Copies of process to be returned to the proper court. — Whenever a court of the United . States in the district where the examination takes place, or in some other district, within or without the state, has by law cognizance of the oifence charged, and for which the accused is held to bail or committed, it becomes the duty of the commissioner to return, as speedily as may be, copies of the process, together with the recognizances taken, to the clerk of the proper court. The word process, as here used, undoubtedly means proceedings in the case until the determination of it by the order or judgment of the magistrate. This, then, would embrace the information or complaint, with its verification, and a* statement of the proceedings before the commissioner and his action thereon, and the recogni- zance of the accused or the warrant of commitment, as the case may be, and the original recognizances of the witnesses for their appearance to testify in the case. These should be duly certified by the commissioner The mode and scope of the return in such cases has been the subject of regulation by rule of some of the circuit courts, per- haps most of them. § 484. Provisions for the discharge of poor convicts. — Provision is made by the Revised Statutes for the discharge from prison of ^ Reese r. United States, 9 Wall. 13. ted to bail may be arrested by his ^ United States v. Van Fossen, 1 bail at any time and delivered to the Dill. 406. Bail, in cases where the marshal or his deputy, before the punishment may be death, cannot be commissioner, and be exonerated: taken by a commissioner: Rev. Stat. Rev. Stat. | 1018. So better security I 1016. A party accused and admit- may be required : Id. ^ 1019. COMMISSIONERS. 397 }30or convicts who have been sentenced to pay a fine, or fine and costs. Section 1042 provides as follows : " When a poor convict, sentenced by any court of the United States to pay a fine, or fine and costs, whether with or without imprisonment, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and costs, he may make application in writing to any com- missioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and costs, and after notice to the district attorney of the United States, who may appear, offer evidence and be heard, the commissioner shall proceed to hear and determine the matter, and if on examina- tion it shall appear to him that such convict is unable to pay such fine, or fine and costs, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath : ' I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of (state where the oath is administered) ; and that I have no property in any way covered or concealed, or in any way disposed of, for future use and benefit. So help me God.' And thereupon such convict shall be discharged, the commissioner giving to the jailer or keeper of the jail a certificate setting forth the facts." 1 In construing this section it has been held that a poor convict is entitled to be released under its provisions, although he has been given a pardon on condition that he pay a fine and costs. ^ § 485. Commissioner's pow^er to arrest foreign seamen, in case of controversies, etc., at sea. — Section 4079 of the Revised Statutes provides that " whenever it is stipulated by treaty or convention between the United States and any foreign nation that the consul- general, consuls, vice-consuls or consular or commercial agents of each nation shall have exclusive jurisdiction of controversies, diflS- culties or disorders arising at sea or in the waters or ports of other nations, between the master or officers and any of the crew, or between any of the crew themselves, of any vessel belonging to the 1 See also §^ 847, 5296. ^ In re Manual Ruhl, 5 Saw. 186. 398 FEDERAL PLEADING, PRACTICE AND PROCEDURE. nation represented by such consular officer, such stipulatiohs shall be executed and enforced within the jurisdiction of the United States as hereinafter declared. But before this section shall take effect as to the vessels of any particular nation having such treaty with the United States, the President shall be satisfied that similar provisions have been made for the execution of such treaty by the other contracting party, and shall issue his proclamation to that effect, declaring this section to be in force as to such nation." Section 4080 provides : " In all cases within the purview of the preceding section, the consul-general, consul or other consular or commercial authority of such foreign nation, charged with the appropriate duty in the particular case, may make application to any court of record of the United States, or to any judge thereof, or to any commissioner of a circuit court, setting forth that such contro- versy, difficulty or disorder has arisen, briefly stating the nature thereof and when and where the same occurred, and exhibiting a certified copy, extract of the shipping articles, roll or other proper paper of the vessel, to the effect that the person in question is of the crew or ship's company of said vessel ; and further stating and certifying that such person has withdrawn himself, or is believed to be about to withdraw himself, from the control and discipline of the master and officers of the vessel, or that he has refused, or is about to refuse, to submit to and obey the lawful jurisdiction of consular or commercial authority in the premises ; and further stating and certifying that, to the best of the knowledge and belief of the officer certifying, such person is not a citizen of the United States. Thereupon such court, judge or commissioner shall issue his warrant for the arrest of the person so complained of, directed to the marshal of the United States for the appropriate district, or in his discretion to any person, being a citizen of the United States, whom he may specially depute for the purpose, requiring the person to be brought before him for examination at a certain time and place." Section 4081 provides : " If on such examination it is made to appear that the person so arrested is a citizen of the United States, he shall be forthwith discharged from arrest and shall be left to the ordinary course of law. But if this is not made to appear, and such court, judge or commissioner finds, upon the papers heretofore referred to, a sufficient primd facie case that the matter concerns COMMISSIONERS. 399 only the internal order and discipline of such foreign vessel, or, whether in its nature civil or criminal, docs not affect directly the execution of the laws of the United States, or the rights and duties of any citizen of the United States, he shall forthwith, by his^var- rant, commit such person to prison, where prisoners under sentence of a court of the United States may be lawfully committed, or, in his discretion, to the master or chief officer of such foreign vessel, to be subject to the lawful orders, control and discipline of such master or chief officer, and to the jurisdiction of the consular or commercial authority of the nation to which such vessel belongs, to the exclusion of any authority or jurisdiction in the premises of the United States or of any state thereof. No person shall be detained more than two months after his arrest, but at the end of that time shall be set at liberty, and shall not again be arrested for the same cause. The expenses of the arrest and detention of the person so arrested shall be paid by the consular officers making the appli- cation." For forms required under the provisions of the foregoing section, the forms furnished in connection with the treatment of other powers and duties of commissioners may be consulted. The application, warrant of arrest and warrant of commitment are all similar in their formal parts. § 486. Commissioners' authority in certain cases to arrest de- serting foreign seamen. — Authority is conferred upon commis- sioners of the circuit courts, as well as other officers, in certain cases to arrest seamen deserting from foreign vessels. Section 5280 of the Revised Statutes provides as follows : " On application of a consul or vice-consul of any foreign government having a treaty with the United States, stipulating for the restora- tion of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such government while in any port of the United States, and on proof by the exhibi- tion of the register of the vessel, ship's roll or other official docu- ment, that the person named belonged, at the time of desertion, to the crew of such vessel, it shall be the duty of any court, judge, commissioner of any circuit, justice or other magistrate having competent power to issue warrants to cause such person to be ar- rested for examination. If on examination the facts stated are found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the consul or vice-consul, 400 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to be sent back to tbe dominions of any such government. No person so arrested shall be detained more than two months after his arrest ; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such de- serter shall be found to have committed any crime or ofiFence, his surrender may be delayed until the tribunal before which the case shall be depending or may be cognizable shall have pronounced its sentence, and such sentence shall have been carried into effect." ^ For appropriate forms required under this section, consult similar forms given for use in other cases. § 487. Commissioners may summon masters of vessels in certain cases, for non-payment of wages. — The Statutes provide that when- ever the wages of any merchant seaman are not paid within ten days after the time when the same ought to be paid, or any dis- pute arises between the master of a vessel and the seamen of the same touching wages, the district judge of the judicial district where the vessel is, or in case his residence be more than three miles from the place, or he be absent from the place of his residence, then any judge or justice of the peace, or any commissioner of a circuit court, may summon the master of such vessel to appear before him, to show cause why process should not be issued against such vessel, her tackle, apparel and furniture, according to the course of admi- ralty courts, to answer for the wages. ^ It follows from the foregoing that some written application should be made by the party or parties seeking the recovery of wages, who should set forth therein the facts and circumstances which would give the commissioner jurisdiction of the case, includ- ing either the absence of the district judge from the place of his residence, if he resides where the vessel is, or if he resides more than three miles from that place, that fact should appear to give the commissioner jurisdiction. The application should be signed by the applicant and sworn to before the commissioner or other person authorized to administer oaths.^ 1 See also Rev. Stat. U 4079, 4081. Schooner David Faust, 1 Ben. 183; ^ Rev. Stat. | 4546. Whitman v. The Ship Neptune, 1 ^ For construction of this provision Pet. Ad. 183 ; Collins v. Nickerson, and the following section, see Steam- Sprague 126 ; Kief & Lang v. The boat Thomas Jefferson, 10 Wh. 428 ; Steamboat London, Newb. 6 ; The The Cypress, Blatch. & H. 83 -, Free- Schooner Eagle, 01c. 232. man v. Baker, Blatch. & H. 372 ; The COMMISSIONERS. 401 The summons may be in the usual form. If the master against whom the summons is issued neglects to appear, or if appearing he does not show that the wages are paid, or otherwise satisfied or forfeited, and if the matter in dispute is not forthwith settled, it is the duty of the commissioner to forthwith certify to the clerk of the district court that there is sufficient cause of complaint whereon to found admiralty process ; and thereupon it becomes the duty of the clerk of such court to issue process against the vessel, and the suit will proceed in the court and a final judgment be given according to the usual course of admiralty practice in such cases. ^ If the master makes a defence to the application the magistrate is required to hear it. He m.ay make and verify, under oath, statements in opposition to the claims and demands of the seamen ; and the commissioner may, for good cause shown, adjourn the cause for a reasonable time. But it is not expected that a commissioner will enter into any very critical or protracted examination of such cases, nor is he required to decide difficult questions.^ It seems that his certificate should show that either the district judge was absent or resided more than three miles from the vessel.^ For form, see post, "Forms in proceedings before commissioners." § 488. Commissioners ; appointment and povrers under statutes relating to equal civil rights. — Chapter 7 of Title 70 of the Revised Statutes makes provision for securing the elective franchise and civil rights to citizens. The more effectually to secure these rights and to punish offenders, and those guilty of violating the rights of per- sons secured by these provisions, section 1982 of the Revised Stat- utes provides that the district attorneys, marshals and deputj marshals, the commissioners appointed by the circuit and territorial courts, are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of said chapter, and to cause such persons to be prosecuted.^ Anothor section further provides that the circuit courts of the United States and the district courts of the territories, from time to time, shall increase the number of commissioners so as to afford a speedy and convenient means for the arrest and examination of per- ^ Rev. Stat. ? 4547. ^ The Steamboat London, Newb. 6. 2 5 Conk. Ad., Pr. 56. See also * Rev. Stat. Tit. 24, p. 347, ^g 1977 Oliver v. Alexander, 6 Pet. 143; The to 1991, inclusive. Trial, Blatch. & H. 94. 26 402 FEDERAL PLEADING, PRACTICE AND PROCEDURE. sons charged with the crimes above referred to ; and they are authorized and required to exercise all the powers conferred in reference thereto in the same manner as they are authorized to ex- ercise them in reference to other offences against the laws of the United States.^ They are further authorized to appoint in writing one or more suitable persons, from time to time, to execute all such warrants or other process as the commissioners may issue in the lawful perform- ance of their duties, and have power to call to their aid the by- standers or 'posse comitatus of the proper county, or so much of the land or naval force of the United States or of the militia as may be necessary to the performance of the duty with which they are charged.^ § 489. Bail and affidavits in civil causes may be taken by commis- sioners, and stipulations in admiralty. — Section 945 provides that bail and affidavits, when required in any civil cause in any circuit or district court, may be taken by a commissioner of the circuit court for the district ; and such acknowledgments of bail and affi- davits have the same effect as if taken before any judge of such courts.^ Rule 5 in admiralty also provides that bonds or stipula- tions in admiralty suits may be given and taken before any commis- sioner of the court who is authorized by the court to take affidavits of bail and depositions in cases pending before the court, or any commissioner of the United States authorized by law to take bail and affidavits in civil cases.* § 490. Commissioners may take depositions de bene esse. — The testimony of any witness may be taken in any civil cause depending in any district or circuit court by deposition de bene esse before any commissioner of a circuit court when the witness lives at a greater dis- tance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than ^ Rev. Stat. | 1983. arrest of a debtor in conformity with ^ Rev. Stat. § 1984. See also Rev. state laws: Fulton v. Gilmore, 10 C. Stat. § 5516. Section 1987 provides L. N. 108. lor an allowance of fees by the com- * But he cannot authenticate a bond missioners to persons executing pro- or stipulation in admiralty by reciting cess. that the sureties appeared before him ^ A commission has authority under and bound themselves, etc., when in this provision to take affidavits to fact they never signed the obligation : papers in civil proceedings for the Sawyer v. Oakman, 11 Blatch. 65. COMMISSIONERS. 408 one hundred miles from the place of trial before the time of trial, or •when he is ancient and infirm.^ The conditions which must exist in order to authorize the taking of the deposition de bene esse are: 1st, that the witness lives at a greater distance from the place of trial than one hundred miles ; 2d, or that he is bound on a voyage to sea ; 3d, or about to go out of the United States ; 4th, or about to go out of such district to a greater distance from the place of trial than one hundred miles before the time of trial ; 5th, or is ancient and infirm.^ The taking of depositions de bene esse is in derogation of the rules of common law, and therefore the statutory provisions author- izing it are strictly construed. Hence, before such depositions can be used it is necessary to show that the statutory provisions have been strictly complied with.^ If one deposition has been taken, yet another may be taken of the same witness ; * and they may be taken outside the limits of the district as well as within the district where the trial is had.^ But the mere fact that a witness is about to depart from the state, or liable to be ordered out of the reach of a subpoena, is no reason for taking his deposition de bene esse.^ § 491. Reasonable notice must be given. — The statute further provides that reasonable notice must be given in writing by the party or his attorney proposing to take such deposition, to the op- posite party or his attorney of record, which notice must state the name of the witness and the time and place of the taking of his deposition. In cases m rem the person having the agency or pos- session of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in ; and whenever, by reason of the absence of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and shall direct.^ 1 Rev. Stat. § 863. rls v. Wall, 7 How. 693 ; Evans v. 2 Harris v. Wall, 7 How. 693 ; Eaton, 7 Wh. 356. Whitney v. Hunt, 5 Cr. (C. C.) 120. " Cornell w. Williams, 20 Wall. 226. The statute does not apply to cases ^ Patapsco Ins. Co. v. Southgate, 5 pending in the Supreme Court : The Pet. 604. .^go, 2 Wh. 287 ; The London Packet, « The Samuel, 1 Wh. 9 : Harris v. 2 Wh. 371. Wall, 7 How. 693. ' Bell V. Morrison, 1 Pet. 351 ; Har- '' Rev. Stat. | 863. 404 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The service of the notice, whether on the party or his attorney should be personal, and a service by leaving a copy at his dwelling- house or usual place of business is not authorized.^ § 492. A party may waive his rights. — Although as a general rule the statute providing for the taking of depositions must be strictly pursued, yet if there should be a failure so to do, a party for whose benefit the provisions were intended may waive his right to the same. Thus, if he should appear and cross-examine witnesses at the taking of depositions, or should consent that depositions might be taken at a certain time and place, this would be a waiver of the notice required by the provisions of the statute, and he could not object to the depositions thus taken without a formal notice.^ The notice should contain the title of the cause and the name or names of the witnesses proposed to be examined;^ and if a depo- sition should be taken without the required notice, it may be taken again on the required notice.* § 493. Mode of taking depositions de bene esse. — The Statute further provides as to the mode of taking depositions de bene esse, that the person deposing shall be cautioned and sworn to testify the whole truth, and be carefully examined ; that his testimony shall be reduced to writing by the magistrate taking the deposition, or by himself in the magistrate's presence, and by no other person ; and that it shall after it has been reduced to writing be subscribed by the deponent.^ The witness should be sworn to tell the whole truth as far as he knows it respecting the matter in controversy;^ and if he is prop- erly sworn it is not necessary that he should be otherwise cautioned.'^ If there is a statutory form of oath at the place where the deposi- tion is taken, tliat may be followed ; but if the witness has scrUples against the usual form of oath, he may take that form which he re- * Carrington v. Stimpson, ] Curt. 496 ; Carrington v. Stimpson, 1 Curt. 437. If the notice is not reasonable 437. the deposition cannot be read; but * Goodhue v. Bartlett, 5 McLean an hour's notice may be sufficient : 186. ■ Jameson v. Willis, 1 Cr. (C. C.) 566 ; ^ r^v. Stat. ? 864. Leiper «;. Bickley, Id. 29; Bowie v. ® Wilson Sew. Mach. Co. v. Jackson, Talbot, Id. 247. " 1 Hugh. 295 ; Shutte v. Thompson, 15 '^ Shutte V. Thompson, 15 Wall. 151 ; W'all. 151 ; United States v. Smith, 4 York Company i'. Central Kailroad Day 121 ; Garrett v. Woodward, 2 Cr. Co., 3 Wall. il3; United States v. (C.C.) 190. One Case of Hair Pins, 1 Paine 40U; ' Moore v. Nelson, 3 McLean 383 ; Sage V. Taa>zky, 6 Cent. L. J. 7. Brown v. Piatt, 2 Cr. (C. C.) 253. ^ Claxton V. Adams, 1 McArthur COMMISSIONERS. 405 gards as binding on his conscience, which the commissioner can duly certify.^ § 494. Transmission of depositions to the court. — The Statute further provides for the tninsmission of the deposition to the proper coui't. The magistrate taking it is required to retain it until he shall deliver it with his own hand into the court for which it is taken, or until it shall be sealed up by him and directed to such court; and it must remain under his seal until opened in court.^ § 495. What must appear before the deposition can be used. — Un- less it appears to the satisfaction of the court at the time it is proposed to use the deposition that the witness is dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment he is unable to travel and appear at court, such deposition cannot be used in the cause.^ § 496. The deposition must be reduced to writing by the commis- sioner or the witness. — A deposition cannot be read in evidence unless it be shown that it was reduced to writing by the commis-" sioner himself, or by the witness in his presence.* Ic would be good, however, if the commissioner should certify that it was reduced to writing by himself and the witness in his presence.^ But the mag- istrate cannot authorize any one but the witness to reduce the tes- timony to writing ;^ it must be signed by the witness, or it cannot be read in evidence.^ Each interrogatory should be at least sub- stantially answered, otherwise it may be fatal to the deposition;*^ and the same rule prevails which governs on the oral examination of a witness on a trial, in reference to compelling the answer of witnesses.^ § 497. Certificate of the commissioner to deposition. — The com- missioner or other magistrate should attach to the deposition his certificate of the reasons for taking it, and the notice, if any, given to the adverse party. 1 Wilson Sewing Machine Co. v. ^ Marston v. McRea, Hemp. 689. Jackson, 1 Hugh. 295. ' Thorpe v. Simmons, 2 Cr. (C. C.) ^ Rev. Stat. P65. 195. ^ Id. 8 Hurst V. McNeil, 1 Wash. (C. C.) * Cook V. Burnley, 11 Wall. 659; 70; Winthrop v. Ins. Co., 2 Id. 7; Bell V. Morrison, 1 Pet. 351. Dodge v. Israel, 4 Id. 323. ^ Bussard v. Catalino, 2 Cr. (C. C.) » In re Judson, 3 Blatch. 148. 421. 406 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The certificate will be prima facie evidence of the oflScial char- acter of the magistrate, if accompanied by the usual authentica- tion of such papers before him. The facts calling for the exercise of the authority should appear upon the face of the instrument, and not be left to parol proof. The return should show that he administered the oath to the Avitness, and where the deposition was taken, so that it may appear that the direction of the commissioner was complied with, and that it was taken in conformity with the notice given, if any ; and that the Avitness lived more than one hundred miles from the place of trial, or some other ground for taking the deposition ; and that he or the witness reduced the testimony to writing, and if the lat- ter, that it was done in his presence ; and any paper or document given in evidence or annexed to the deposit^ion as a part of the tes- timony should be duly authenticated.^ The certificate of the officer who took the deposition that the witness lived more than one hundred miles from the place of trial is j^riwa facie evidence of that fact.^ But the reasons for the taking of the deposition may be contained in the testimony of the Avitness, as all the grounds for taking the same might well be pre- sumed to be known to him. He would be likely to know if he liA'ed over one hundred miles from the place of trial, or if not, his residence being fixed the court might take judicial notice of the fact. So he would know whether or not he Avas bound on a voyage at sea, or about to go out of the United States, or out of the district to a greater distance than one hundred miles from the place of trial, and of his age and the extent of his infirmity. His evidence in relation to these matters ought to be considered of a higher character than the mere certificate of the magistrate, and more than prima facie evidence. Such testimony being returned as a part of the deposition, with the proper certificate of the magistrate as to other matters, ought to be satisfactory of the right of the party seeking the deposition to have the same taken, and of the right to have the same read in eA'idence, provided at the time of trial the witness is dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the 1 Harris v. Wall, 5 How. 693 ; ^ Patapsco Ins. Co. v. Southgate, 5 Rhoads v. Selin, 4 Wash. (0. C.) 715 ; Pet. 604 ; Merrill v. Dawson, 1 1 How. Patapsco Ins. Co. v. Southgate, 5 Pet. 375 ; Tooker v. Thompson, 3 McLean 604 ; Bell V. Morrison, 1 Pet. 356. 92. COMMISSIONERS. 407 court is sitting, or that by reason of age, sickness, bodily infiraiity or imprisonment, he is unable to travel or appear at court. But it has been held that if the officer who takes the deposition does not in his certificate assign any reason for taking it, the deposition will be suppressed.^ § 498. What must be shown on the trial to ■warrant the reading of a deposition. — The Statute expressly provides that no deposition de bene esse shall be read in evidence on the trial of a cause unless it is shown — 1. That the witness is dead; 2. Or gone out of the United States ; 3. Or to a greater distance than one hundred miles from the place where the court is sitting ; 4. Or that, by reason of age, sickness, bodily infirmity or imprisonment, he is unable to travel and appear at court. ^ If at the time the deposition is taken he lives more than one hundred miles from the place of trial, but before the trial occurs he moves to a place less than that distance from the place of trial, his personal attendance would be required, unless other ground exists for reading the deposition, such as residence without the United States, or age, sickness or bodily infirmity unfitting him for travel or attendance upon the court. ^ For forms required in taking depositions de bene esse, see post, "Forms in proceedings before commissioners." § 499. Compelling witnesses to appear and testify. — The Statute provides that witnesses duly summoned to appear before the magis- trate may be compelled to appear and testify. This compulsory power exists in the court of the district in which the examination is taken. The power to compel is by the means and instrumentalities in force in the courts of the state for compel- ling the attendance and the testimony of witnesses. These include the process of subpoena duces tecum, the subpoena ad testificandum, the writ of habeas corpus testificandum, and the writ of attachment. 1 Shutte V. Thompson, 15 Wall. 151 ; G04 ; The Samuel, 1 Wh. 9 ; Weed v. Woodward v. Hull, 2 Cr. (C. C.) 235 ; Kellogs, 6 McLean 44 ; Bowie v. Tal- Sa2;ev. Tauszky, 6 Cent. L. J. 7 ; Jones bot, 1 Cr. (C. C.) 247. V. Knowles, 1 Cr. (C. C.) 523 ; Dun- » Stein v. Bowman, 13 Pet. 209 ; kle V. Worcester, 5 Biss. 102. Bamet v. Day, 3 Wash. (C. C.) 243 ; •' Harris v. AVall, 7 How. 693 ; The Pettibone v. Derringer, 4 Wash. (C. C.) Patapsco Ins. Co. v. Southgate, 5 Pet. 243. 408 FEDERAL PLEADING, PRACTICE AND PROCEDURE. These writs must issue from a court of the district, on a proper application therefor.' The application for compulsory process should show that the case is one in which a de bene esse examination is proper ; that the commissioner has jurisdiction of the matter; and other facts author- izing the issuing of process against the witness,^ and especially, if an attachment is asked, the party asking for it should file affidavits showing that the witness has been guilty of a contempt.^ § 500. Commissioners may take oaths and acknowledgments in certain cases ; also depositions in admiralty under Rule 49. — oection 1878 of the Revised Statutes provides: "In all cases in which, under the laws of the United States, oaths or acknowledgments may now be taken or made before any justice of the peace of any state or territory or in the District of Columbia, they may hereafter be also taken or made by or before any notary public duly appointed in any state, district or territory, or any of the commissioners of the circuit court, and when certified under the hand and official seal of such notary or commissioner, shall have the same force and effect as if taken or made by or before such justice of the peace." They may also take further proof on appeal of admiralty cases in the circuit court, by deposition, upon oral examination and cross- examination, or, when ordered by the court and a commission issues, upon written interrogatories and cross-interrogatories. In the for- mer case notice must be given as provided by the general rule, the time of which may be extended or diminished by the court.* § 501. Commissioners may issue search warrants in certain cases. — The several judges of the circuit and district courts, and com- missioners of the circuit courts, may within their respective juris- dictions issue a search warrant authorizing any internal revenue officer to search any premises within the same, if such officer makes oath in writing that he has reason to believe, and does believe, that fraud upon the revenue has been or is being committed upon or by the use of said premises.^ For form of affidavit and search warrant in such cases, see post^ " Forms in proceedings before commissioners." ^ Ex parte Wm. S. Humphreys, 2 ^ Ex parte Win. Judson, 3 Blatch. Blatch. 228 ; United States v. Tiiden, 148. 25 I. R. R. 352. * Admiralty Rule 49. 2 Ex parte Elisha Peck, 3 Blatch. ^ Rev. Stat. § 3462. 113. COMMISSIONERS. 409 § 502. Commissioners may issue warrants for the arrest of fugitives for extradition. — In reference to the arrest and extradition of fugi- tives from justice the statute provides : " Whenever there is a treaty or convention for extradition between the government of the United States and any foreign government, any justice of the Supreme Court, cirtjuit judge, district judge, commissioner authorized so to do by any of the courts of the United States or judge of a court of record of general jurisdiction of any state, may, upon complaint made under oath charging any person found within the limits of any state, district or territory with having committed within the jurisdiction of any such foreign government any of the crimes pro- vided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought be- fore such justice, judge or commissioner, to the end that the evidence of criminality may be heard and considered. If on such hearing he deems the evidence sufficient to sustain the charge, under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requi- sition of the proper authorities of such foreign government for the surrender of such person, according to the stipulations of the treaty or convention ; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made." ^ The statute further provides: " In every case of complaint and of a hearing upon the return of the warrant of arrest, any depositions, warrants or other papers offered in evidence shall be received for the purpose of such hear- ing if they shall be properly and legally authenticated, so as to entitle them to be received as evidence of the criminality of the person so apprehended by the tribunals of the foreign country from which the accused party shall have escaped, and copies of any such depositions, warrants or other papers shall, if authenticated accord- ing to the law of such foreign country, be in like manner received as evidence ; and the certificate of the principal diplomatic or con- sular officer of the United States resident in such foreign country shall be proof that any such deposition, warrant or other paper, or copy thereof, is authenticated in the manner required by this sec- tio!i."2 1 Rev. Stat, g 5270. ' Rev. Stat. | 5271. 410 FEDERAL PLEADING, PRACTICE AND PROCEDURE. So far as the duty of a commissioner, in connection with the ex- tradition of foreign criminals, is concerned, it is indicated by the two forenroing sections of the Revised Statutes. It has been su; from justice" conduce to the fiscal wealth of the means to leave one's home or resi- country : United States v. Mayo, 1 Gal- dence or known place of abode with lis 377 ; United States v. Norton, 91 intent to avoid detection and punish- U. S. 566 ; United States v. Hirsch, ment for some offence against the 100 U. S. 33. United States, and not merely to avoid This section embraces a crime cre- process, or avoid the criminal justice ated by a statute relating to internal of the state: United States t). 0' Brian, revenue: United States v. Dustin, 15 3 Dill. 381 ; United States v. White, 5 I. R. R. 30 ; United States v. Wright, Cr. C. C. 116. A person may come 11 I, R. R. 35; In re Adolph Lands- within this provision who does not berg, 11 I. R. R. 150; McGlinchy v. leave the state or district, as by secret- United States, 4 Cliff. 312 ; Perkins v. ing himself within it: Id. United States, 4 Cliff. 321. But it does ^ The term "revenue laws" embra- not embrace crimes under the act to es- ces only such statutes as have for their tablish the postal money-order system : direct and avowed purpose the creat- United Stalest). Norton, 91 U. S. 566. ing and securing of revenue, and not ^ The word "penalty" in this sec- laws whose indirect operation may tion has been held to mean the same 628 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Parties beyond the reach of process during rebellion. — Sec. 1048. In all cases where, during the late rebellion, any per- son could not, by reason of resistance to the execution of the laws of the United States, or of the interruption of the ordinary course of judical proceedings, be served with process for the commence- ment of any action, civil or criminal, which had accrued against him, the time during which such person was beyond the reach of legal process shall not be taken as any part of the time limited by law for the commencement of such action.^ as fine, that is, a fixed pecuniary mulct incurred by a violation of some law : In 7-e Landsberg, 11 I. R. R. 150 ; and it applies to an action of debt to recover a penalty as well as to an in- formation or indictment: Adams v. Woods, 2 Cr. 336 ; and to suits in personam and in rem : Hatch v. The Boston, 3 Fed. Rep. 807. See also Stimpson v. Pond, 2 Curt. 502 •, United States v. Brown, 2 Low. 267. But it does not apply to an ac- tion for the penalty of a bond : Ray- mond V. United States, 14 Blatch. 51. The action of a master of a vessel to recover a penalty for refusal or neglect to deposit his papers with the consul is within the provisions of this section : Parsons v. Hunter, 2 Sum. 419 ; and for penalties and forfeitures arising under customs laws : In re Landsberg, 11 1. R. R. 150; but the statute will not bar a right of action secured to the United States by an act of Congress : Perkins v. United States, 4 Clifi". 312; McGlinchy v. United States, 4 Cliff. 321. ^ This section is not a statute of lim- itation, for it does not specify any time within which the action must be com- menced, nor does it apply to actions be- tween persons who resided in the Con- federate States : Graydon v. Sweet, 1 Woods 418 ; Lockhart v. Horn, 1 Woods 569. It requires all the time to be deducted from the ordinary lim- itation during which the suit could not be prosecuted by reason of resist- ance to the laws or interruption of judicial proceedings, whether before or after the passage of the act ; and if the defendant was in some place within the Confederate States where the judicial tribunals were not inter- rupted, but were open for the prose- cution of suits, and process could have been served upon the defendant, the general rule of limitation would ap- ply: United States i\ AViley, 11 Wall. 508 ; Britton v. Butler, 11 Blatch. 350. RULES OF THE SUPREME COURT OF THE UNITED STATES. Rule 1. — Clerk. 1. Office. — The clerk of this court shall reside and keep the office at the seat of the national government, and he shall not prac- tice either as an attorney or counsellor in this court or any other court while he shall continue to be clerk of this court. 2. Duties. — The clerk shall not permit any original record or paper to be taken from the court-room, or from the office, without an order from the court. Rule 2. — Attorneys. 1. Admission of. — It shall be requisite to the admission of at- torneys or counsellors to practice in this court, that they shall have been such for three years past in the supreme courts of the states to which they respectively belong, and that their private and pro- fessional character shall appear to be fair. 2. Oath. — They shall respectively take and subscribe the follow- ing oath or affirmation, viz. : I, , do solemnly swear (or affirm, as the case may be) that I will demean myself, as an attorney and counsellor of this court, uprightly and according to law ; and that I will support the Constitution of the United States. Women may be admitted to practice. — The act of February 15, 1879, provides : That any woman who shall have been a member of the bar of the highest court of any state or territory, or of the supreme court of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on mo- tion, and the production of such record, be admitted to practice before the Supreme Court of the United States. 34 530 federal pleading, practice and procedure. Rule 3. — Practice. How REGULATED. — Tliis court consider the practice of the courts of King's Bench and of Chancery, in England, as affording out- lines for the practice of this court; and they will from time to time make such alterations therein as circumstances may render necessary. Rule 4. — Bill of Exceptions. What required of. — Hereafter the judges of the circuit and district courts shall not allow any bill of exceptions, which shall contain the charge of the court at large to the jury in trials at com- mon law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts ; and such matters of law, and those only, shall be inserted in the bill of exceptions, and allowed by the court. Rule 5. — Process. 1. In name of the President. — All process of this court shall be in the name of the President of the United States. 2. Service on state. — Wben process at common law, or in equity, shall issue against a state, the same shall be served on the governor, or chief executive magistrate, and attorney-general of such state. 3. Subpcena, service of, — Process of subpoena issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process ; and if the defendant, on such service of the subpoena, shall not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte. Rule 6. — Motions. 1, To BE IN writing. — All motions hereafter made to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. One hour on each side shall be allowed to the argument of a mo- tion, and no more, without special leave of the court granted before the argument begins. [Amended November 27, 1876.] 2. Notice of. — No motion to dismiss, except on special assign- ment by the court, shall be heard unless previous notice has been GENERAL RULES. 531 given to the adverse party or the counsel or attorney of such party. 3. How TO BE SUBMITTED. — All motions to dismiss appeals and •writs of error, except motions to docket and dismiss under the 9th rule, must be submitted in the first instance on printed briefs or arguments. If the court desires further argument on that subject, it will be ordered in connection with the hearing on the merits. The party moving to dismiss shall serve notice of the motion, with a copy of his brief or argument, on the counsel for plaintiff in error or appellant of record in this court at least three weeks before the time fixed for submitting the motion, in all cases, except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice shall be at least thirty days. There may be united with a motion to dismiss a writ of error or appeal a motion to afiirm, on the ground that, although the record may show that this court has jurisdiction, it is manifest the appeal or writ was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. 4. Service by mail, proof of. — Afiidavit of the deposit in the mail of the notice and brief to the proper address of the counsel to be served, duly post-paid, at such time as to reach him by due course of mail the three weeks or thirty days before the time fixed by the notice, will be regarded as prima facie evidence of service on coun- sel who reside without the District of Columbia. On proof of such service the motion will be considered, unless for satisfactory reasons further time be given by the court to either party. 5. Motion day. — The court will not hear arguments on Satur- day (unless for special cause it shall order to the contrary), but will devote that day to the other business of the court. The motion day shall be Monday of each week, in lieu of Friday, and motions not required by the rules of the court to be put on the docket shall be entitled to preference immediately after the reading of opinions, if such motions shall be made before the court shall have entered upon the hearing of a cause upon the docket. Rule 7. — Law Library. 1. Use of books. — During the session of the court any gentle- man of the bar having a cause on the docket, and wishing to use any book or books in the law library, shall be at liberty, upon ap- 532 FEDERAL PLEADING, PRACTICE AND PROCEDURE. plication to the clerk of the court, to receive an order to take the same (not exceeding at any one time three) from the library, he being thereby responsible for the due return of the same within a reasonable time, or when required by the clerk. And it shall be ■ the duty of the clerk to keep, in a book for that purpose, a record of all books so delivered, which are to be charged against the party receiving the same. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof; as also one dollar per day for each day's detention beyond the limited time. 2. CoNFERENCE-ROOM. — The clerk shall take charge of the books of the court, together with such of the duplicate law books as Con- gress may direct to be transferred to the court, and arrange them in the conference-room, which he shall have fitted up in a proper manner ; and he shall not permit such books to be taken therefrom by any one except the judges of the court. 3. Kecord DEPOSITED. — The clerk shall deposit in the law li- brary, to .be there carefully preserved, one copy of the printed record in every case submitted to the court for its consideration, and of all printed motions, briefs or arguments filed therein. Rule 8. — Writ of Error and Return Day. 1. Return, how made. — The clerk of the court to which any writ of error shall be directed may make return of the same by transmitting a true copy of the record, and of all proceedings in the cause, under his hand and the seal of the court. 2. Opinions annexed to record. — In all cases brought to this court by writ of error or appeal, to review any judgment or decree, the clerk of the court by which such judgment or decree was ren- dered shall annex to and transmit with the record a copy of the opinion or opinions filed in the case. 3. What to be filed. — No cause will hereafter 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. 4. Original papers. — Whenever it shall be necessary or proper, in the opinion of the presiding judge in any circuit court, or dis- trict court exercising circuit court jurisdiction, that original papers of any kind should be inspected in this court, upon appeal or writ GENERAL RULES. "533 of error, such presiding judge may make such rule or order for the safe keeping, transporting and return of such original papers as to him may seem proper ; and this court will receive and consider such original papers in connection with the transcript of the pro- ceedings. 5. Return day of writ. — In cases where final judgment is ren- dered more than thirty days before the first day of the next term of this court, the writ of error and citation, if taken before, must be returnable on the first day of said term and be served before that day ; but in cases where the judgment is rendered less than thirty days before the first day, the writ of error and citation may be made returnable on the third Monday of the said term and be served before that day. Rule 9. — Docketing Cases. 1. Duties of appellant. — In all cases where a writ of error or an appeal shall be brought to this court from any judgment or de- cree rendered thirty days before the commencement of the term, it shall be the duty of the plaintifi" in error or appellant, as the case may be, to docket the cause and file the record thereof with the clerk of this court within the first six days of the term ; and if the writ of error or appeal shall be brought from a judgment or decree rendered- less than thirty days before the commencement of the term, it shall be the duty of the plaintiif in error or appellant to docket the cause and file the record thereof with the clerk of this court within the first thirty days of the term ; and if the plaintiif in error or appellant shall fail to comply with this rule, the defend- ant in error or appellee may have the case docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause, and certifying that such writ of error or appeal has been duly sued out and al- lowed. And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court. 2. Right of appellee. — But the defendant in error or appellee may, at his option, docket the cause and file a copy of the record with the clerk of the court ; and if the case is docketed, and a copy of the record filed with the clerk of this court by the plaintiff in 534 FEDERAL PLEADING, PRACTICE AND PROCEDURE. error or appellant, within the periods of time above limited and prescribed by this rule, or by the defendant in error or appellee at any time thereafter during the term, the case shall stand for argu- ment at the term. 3. Appearance of counsel. — Upon the filing of the transcript of a record brought up by writ of error or appeal, the appearance of the counsel for the plaintiff in error or appellant shall be entered. 4. Time extended. — In all cases where the period of thirty days is mentioned in this rule it shall be extended to sixty days in writs of error and appeals from California, Oregon, Washington, New Mexico, Utah, Nevada, Arizona, Montana and Idaho. Rule 10. — Security for Costs. 1. Bond for costs. — In all cases the plaintiff in error or appel- lant, on docketing a cause and filing the record, shall enter into an undertaking to the clerk, with surety to his satisfaction for the pay- ment of his fee's, or otherwise satisfy him in that behalf. Printing Records. 2. Costs of printing. — In all cases the clerk shall have twenty copies of the record printed for the court, and the cost of printing shall be charged to the government in the expenses of the court. (Amended Nov. 1, 1875.) 3. Duty of clerk. — The clerk shall furnish copies for the printer, shall supervise the printing and shall take care of and dis- tribute the printed copies to the judges, the reporter and the par- ties, from time to time, as required. 4. Costs for manuscript. — In each case fees shall be charged in the taxable costs for but one manuscript copy of the record, and that shall be to the party bringing the cause into court, unless the court shall otherwise direct. (Amended Nov. 27, 1876.) 5. Who entitled to copy. — In all cases the clerk shall deliver a copy of the printed record to each party ; and in cases of dis- missal, reversal or aflSrmance with costs the fees for the said manu- script copy of the record shall be taxed against the party against whom costs are given, and which charge includes the charge for the copy furnished him. 6. Fee in case of dismissal. — In all cases of dismissal for want of jurisdiction the fees for the copy shall be taxed against the GENERAL RULES. 535 party bringing the cause into court, unless the court shall other- wise direct. (Amended May 8, 1876.) Attachment for Costs. 7. When to issue. — Upon the clerk of this court producing sat- isfactory evidence, by affidavit or the acknowledgment of the par- ties or their sureties, of having served a copy of the bill of fees due by them, respectively, in this court, on such parties or their sure- ties, an attachment shall issue against such parties or sureties, re- spectively, to compel payment of the said fees. Rule 11. — Translations. How supplied. — Whenever any record, transmitted to this court upon a writ of error or appeal, shall contain any document, paper, testimony or other proceeding in a foreign language, and the record does not also contain a translation of such document, paper, testi- mony or other proceeding, made under the authority of the inferior court, or admitted to be correct, the record shall not be printed, but the case shall be reported to this court by the clerk, and the court will thereupon remand it to the inferior court in order that a translation may be there supplied and inserted in the record. Rule 12. — Evidence. 1. Further proof. — In all cases where further proof is ordered by the court, the depositions which shall be taken shall be by a commission to be issued from this court or from any circuit court of the United States. 2. In admiralty cases. — In all cases of admiralty and mari- time jurisdiction, where new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken under a commission to be issued from this court, or from any circuit court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories to be filed by the party applying for the commission, and notice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross-interrogatories within twenty days from the service of such notice ; provided, hoivever, that nothing in this rule shall prevent any party from giving oral testimony in open court in cases where, by law, it is admissible. 536 federal pleading, practice and procedure. Rule 13. — Deeds, etc.. Objections to, Admissions. Objections in equity and admiralty. — In all cases of equity and admiralty jurisdiction heard in this court, no objection shall hereafter be allowed to be taken to the admissibility of any deposi- tion, deed, grant or other exhibit found in the record as evidence, unless objection was taken thereto in the court below and entered of record ; but the same shall otherwise be deemed to have been admitted by consent. Rule 14. — Certiorari. Record, how obtained. — No certiorari for diminution of the record shall be hereafter awarded in any cause, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari shall be made at the first term of the entry of the cause; otherwise the same shall not be granted, unless upon special cause shown to the court account- ing satisfactorily for the delay. Rule 15. — Death of a Party. 1. Abatement and revivor. — Whenever, pending a writ of error or appeal in this court, either party shall die, the proper rep- resentatives in the personalty or realty of the deceased party, ac- cording to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined as in other cases ; and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed ; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and on hearing have the same reversed if it be erroneous ; provided, Jiowever, that a copy of every such order shall be printed in some newspaper at the seat of government in which the laws of the United States shall be printed by authority, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuincp. GENERAL RULES. 537 2. When action abates. — When the death of a party is sug- gested, and the representatives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate. 3. When appellee is dead. — When either party to a suit in the circuit courts of the United States shall desire to prosecute a writ of error or appeal to the Supreme Court of the United States from any final judgment or decree rendered in said circuit courts, and at the time of suing out such writ of error or appeal the other party to the suit shall be dead, and have no proper representative within the jurisdiction of the court which rendered such final judg- ment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some state or territory of the United States, the party desiring such writ of error or appeal may procure the same and may supersede or stay proceedings on such judgment or decree in the same manner as is now allowed by law in other cases, and shall thereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the com- mencement of the court to which such writ of error or appeal is returnable, the plaintiff in error, or appellant, shall make a sug- gestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper repre- sentative in some state or territory of the United States, and stat- ing therein the name and character of such representative, and the state or territory in which such representative resides ; and upon such suggestion he. may, on motion, obtain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error or ap- pellant shall be entitled to open the record, and on hearing have the judgment or decree reversed, if the same be erroneous; jpro- vided, however, that a proper citation reciting the substance of such order shall be served upon such representative, either person- ally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing ; and provided also, that in every such case, if the representative of 538 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the deceased party does not appear by the tenth day of the term next succeeding said suggestion, and the measures above provided to compel the appearance of such representative have not been taken within the time as above required, by the opposite party, the case shall abate ; and provided also, that the said representative may, at any time before or after said suggestion, come in and be made a party to the suit, and thereupon the cause shall proceed, and be heard and determined as in other cases. Rule 16. — No Appearance for Plaintiff. At TRIAL. — Where there is no appearance for the plaintiff when the case is called for trial, the defendant may have the plaintiff called and dismiss the writ of error, or may open the record and pray for an affirmance. Rule 17. — No Appearance for Defendant. At trial. — Where the defendant fails to appear when the cause shall be called for trial, the court may proceed to hear an argument on the part of the plaintiff, and to give judgment according to the right of the cause. Rule 18. — Non-appearance of either Party. At call of docket. — When a case is reached in the regular call of the docket, and no appearance is entered for either party, the case shall be dismissed at the costs of the plaintiff. Rule 19. — Neither Party Ready. At second term, dismissal. — When a case is called for argu- ment at two successive terms, and upon the call at the second term neither party is prepared to argue it, it shall be dismissed at the costs of the plaintiff, unless sufficient cause is shown for further postponement. Rule 20. — Printed Arguments and Briefs. 1. Distribution of copies. — In all cases brought here on ap- peal, writ of error or otherwise, the court will receive printed arguments without regard to the number of the case on the docket, if the counsel on both sides shall choose so to submit the same within the first ninety days of the term ; but twenty copies of the argu- GENERAL RULES. 539 ments, signed by attorneys or counsellors of this court, must be first filed: ten of these copies for the court, two for the reporter, three to be retained by the clerk, and the residue for counsel. 2. Effect of filing argument. — When a case is reached in the regular call of the docket, and a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel. 3. When oral argument. — When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument will be received unless it is filed before the oral argument begins, and the court will pro- ceed to consider and decide the case upon the ex parte argument. 4. No brief received after argument. — No brief or argu- ment will be received, either through the clerk or otherwise, after a case has been argued or submitted, except upon leave granted in open court after notice to opposing counsel. Rule 21. — Counsel Limited. 1. Two counsel. — Only two counsel shall be heard for each party on the argument of a cause. 2. Two hours. — Two hours on each side shall be allowed to the argument, and no more, without special leave of the court, granted before the argument begins. The time thus allowed may be appor- tioned between the counsel on the same side at their discretion ; provided akvays, that a fair opening of the case shall be made by the party having the opening and closing arguments. 3. Counsel for plaintiff. — The counsel for the .plaintiff in error, or appellant, shall file with the clerk of the court, at least six days before the case is called for argument, twenty copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side. 4. Contents of brief. — This brief shall contain, in the order here stated — (1) A concise abstract or statement of the case, presenting suc- cinctly the questions involved and the manner in which they are raised. (2) An assignment of the errors relied upon, which in cases brought up by writ of error shall set out separately and specifically each error asserted and intended to be urged, and in cases brought 540 FEDERAL PLEADING, PRACTICE AND PROCEDURE. up by appeal, the assignment shall state, as specifically as may be, in what the decree is alleored to be erroneous. If error is assigned to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it. (3) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a statute of a state is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 5. When the error alleged is to the charge of the court, the speci- fication shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused. 6. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. 7. Counsel for a defendant in error or an appellee shall file with the clerk twenty printed copies of his argument, at least three days before the case is called for hearing. His brief shall be of a like character with that required of the plaintiff" or appellant, except that no assign- ment of errors is required, and no statement of the case, unless that presented by the plaintiff" or appellant is controverted. 8. Without such an assignment of errors, counsel will not be heard except at the request of the court, and errors not assigned according to this rule will be disregarded, though the court, at its option, may notice a plain error not assigned. 9. When, according to this rule, a plaintiff" in error, or an appel- lant, is in default, the case may be dismissed on motion, and when a defendant in error, or an appellee, is in default, he will not be heard except on consent of his adversary, and with request of the court. 10. When no counsel appears for one of the parties, and no printed briefer argument is filed, only one counsel will be heard for the adverse party; but if a printed brief or argument is filed, the adverse party will be entitled to be heard by two counsel. Rule 22. — Order of Argument. Opening and close. — The plaintiff" or appellant in this court shall be entitled to open and conclude the case. But when there GENERAL RULES. 541 are cross-appeals, they shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the argument. Rule 23. — Interest. 1. On affirmance. — In cases where a writ of error is prose, cuted to this court, and the judgment of the inferior court is affirmed; the interest shall be calculated and levied from the date of the judgment below, until the same is paid, at the same rate that similar judgments bear interest in the courts of the state where such judgment is rendered. 2. Damage on frivolous appeal. — In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at the rate of ten per cent., in addition to interest, shall be awarded upon the amount of the judgment. 3. On appeal from decree. — The same rule shall be applied to decrees for the payment of money in cases of chancery, unless otherwise ordered by this court. Rule 24. — Costs. 1. On dismissal. — In all cases where any suit shall be dis- missed in this court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed to the defendant in error or ap- pellee, as the case may be, unless otherwise agreed by the parties. 2. On affirmance. — In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee, as the case may be, unless otherwise Ordered by the court. 3. On reversal. — In cases of reversal of any judgment or de- cree in this court, costs shall be allowed to the plaintiff in error or appellant, as the case may be, unless otherwise ordered by the court. The costs of the transcript of the record from the court below shall be a part of such costs; and be taxable in that court as costs in the case. 4. Not applicable to United States. — Neither of the fore- going 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. 542 FEDERAL PLEADING, PRACTICE AND PROCEDURE. 5. Mandate. — 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 court, so that further proceedings may be had in such court as to law and justice may appertain. 6. Costs to be inserted. — When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court be- low, and annex to the same the bill of items taxed in detail. Rule 25. — Opinions of the Court. 1. Recorded. — All opinions delivered by the court shall imme- diately, upon the delivery thereof, be delivered over to the clerk to be recorded. And it shall be the duty of the clerk to cause the same to be forthwith recorded and to deliver a copy to the reporter as soon as the same shall be recorded. 2. When recorded. — The opinions of the court, as far as prac- ticable, shall be recorded during the term, so that the publication of the reports may not be delayed thereby. 3. Preservation of. — The original opinions of the court shall be filed with the clerk of this court for preservation. Rule 26. — Call of the Docket. 1. On second day of term. — The court on the second day in each term will commence calling the cases for argument in the order in which they stand on the docket, and proceed from day to day, during the term, in the same order, except as hereinafter provided ; and if the parties, or either of them, shall be ready when the case is called, the same will be heard ; and if neither party shall be ready to proceed in the argument, the cause shall go down to the foot of the docket, unless some good and satisfactory reason to the contrary shall be shown to the court. 2. Ten causes only each day. — Ten causes only shall be con- sidered as liable to be called on each day during the term, including the one under argument. 3. Criminal cases advanced. — Criminal cases may be ad- vanced, by leave of the conrt, on motion of either party. 4. Cases of general public interest. — Revenue cases and GENERAL RULES. 543 cases in whicli the United States are concerned, ■which also involve or affect some matter of general public interest, may also, by leave of the court, be advanced on motion of the Attorney-General. All motions to advance cases must be printed, and must contain a brief statement of the matter involved, with the reasons for the application. 5. Order to be preserved. — No other cause shall be taken up out of the order on the docket, or be set down for any particular day, except under special and peculiar circumstances, to be shown to the court. Every cause which shall have been called in its order and passed, and put at the foot of the docket, shall, if not again reached during the term it was called, be continued to the next term of the court. 6. What causes heard together. — Two or more cases also in- volving the same question may, by leave of the court, be heard to- gether, but they must be argued as one case. 7. Reinstatement of cause. — If, after a cause has been passed, under circumstances which do not place it at the foot of the docket, the parties shall desire to have it heard, they may file with the clerk their joint request to that effect, and the cause shall then be by him reinstated for call, ten cases after that under argument or next to be called at the end of the day the request is filed. If the parties will not unite in such a request, either may move to take up the cause, and it shall then be assigned to such place upon the docket as the court may direct. No stipulation to pass a cause without placing it at the foot of the docket will be recognized as binding upon the court. A cause can only be so passed upon application made and leave granted in open court. Rule 27. — Adjournment. Announcement of. — The court will, at every session, announce on what day it will adjourn, at least ten days before the time which shall be fixed upon ; and the court will take up no case for argu- ment, nor receive any case upon printed briefs, within three days next before the day fixed upon for adjournment. Rule 28. — Dismissal, in Vacation. On agreement. — "Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in any 644 FEDERAL PLEADING, PRACTICE AND PROCEDURE. appeal, shall at any time hereafter, in vacation and out of term time, by their respective attorneys, who are entered as such on the record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed as to costs, and also paying to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the case dis- missed, and to give to either party which may request it a copy of the agreement filed ; but no mandate or other process is to issue without an order by the court. Rule 29. — Supersedeas. Bond of indExMNITY. — Supersedeas bonds in the circuit courts must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to eflfect, and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including "just damages for delay" and costs and interest on the appeal ; but in all suits where the property in controversy necessarily follows the event of the suit, as in real ac- tions, replevin and in suits on mortgages ; or where the property is in the custody of the marshal, under admiralty process, as in case of capture or seizure; or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indem- nity in all such cases is only required in an amount sufficient to se- cure the sum recovered for the use and detention of the property and the costs of the suit and "just damages for delay," and costs and interest on the appeal. Rule 30. — Suspension or Modification of Injunction. Application for. — In cases where appeals of the character men- tioned in Rule 93, regulating equity practice, have already been taken, this court will, after the cause has been docketed, entertain an application for a suspension or modification of the injunction based upon a statement of the facts affecting the application by a justice or judge who took part in the decision. All such applica- tions must be printed and submitted on briefs. No oral arguments will be heard unless specially ordered. general rules. 545 Rule 31. — Form of Printed Records and Briefs. All records and arguments printed for the use of the court must be in such form and size that thej can be conveniently cut and bound so as to make an ordinary octavo volume. The clerk will not receive or file records or arguments intended for distribution to the judges that do not conform to the requirements of this rule. 35 RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE UNITED STATES. Rule 1. Court always open. — The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers and other pleadings, for issuing and returning mesne and final pro- cess and commissions, and for making and directing all interlocu- tory motions, orders, rules and other proceedings, preparatory to the hearing of all causes upon their merits. Rule 2. Clerk's office ; when open. — The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining and disposing of all motions, rules, orders and other proceedings, which are grantable of course, and applied for or had by the par- ties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. Rule 3. Orders, rules, etc. — Any judge of the circuit court, as well in vacation as in term, may, at chambers, or on the rule-days at the clerk's office, make and direct all such interlocutory orders, rules and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the circuit court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary at the next rule-day thereafter, unless some other time is assigned by the judge for the hearing. equity rules. 54t Rule 4. Motions, rules and orders. — All motions, rules, orders and other proceedings made and directed at chambers, or on rule-days at the clerk's office, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the day when they are made and directed; which book shall be open at all office hours to the free inspection of the parties in any suit in equity and their solicitors. And except in cases where personal or other notice is specially required or directed, such entry in the order- book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices and other proceedings entered in such order-book, touching any and all the matters in the suits to and in which they are parties and solicitors. And 'notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court ma^, by rule, abridge the time for notice of rules, orders or other proceedings not requiring personal service on the parties, in their discretion. Rule 5. Motions for process, etc., as of course. — All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees; for filing bills, answers, pleas, demurrers and other pleadings ; for making amend- ments to bills and answers ; for taking bills pro confesso ; for filing exceptions, and for other proceedings in the clerk's office which do not, by the rules hereinafter prescribed, require any allowance or order of the court, or of any judge thereof, shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended or altered or rescinded by any judge of the court, upon special cause shown. Rule 6. Motions and orders not grantable of course. — All motions for rules or orders and other proceedings, which are not grantable of course, or without notice, shall, unless a different time be assigned 548 FEDERAL PLEADING, PRACTICE AND PROCEDURE. bj a judge of the court, be made on a rule-day, and entered in the order-book, and shall be heard at the rule-day next after that on which the motion is made. And if the adverse party, or his solic- itor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion. Rule 7. Compulsory process. — The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance to require the defendant to appear and answer the exigency of the bill ; and, unless otherwise provided in these rules, or specially ordered by the circuit court, a writ of attachment, and, if the defendant cannot be found, a writ of sequestration or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of com- pelling obedience to any interlocutory or final order or decree of the court. Rule 8. Final process. — Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execu- tion, in the form used in the circuit court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land, or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound without further service to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delin- quent- party, from which, if attached thereon, he shall not be dis- charged unless upon a full compliance with the decree and the pay- ment of all costs, or upon a special order of the court or of a judge thereof, upon motion and affidavit, enlarging the time for the per- formance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. (See Rule 92.) equity rules. 549 Rule 9. Writ of assistance. — When any decree or order is for the delivery of possession upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. Rule 10. Parties, how affected. — Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person, not being a party in any cause, against whom obe- dience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party in the cause. Rule 11. SuBPCENA. — No process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. Rule 12. SuBPCENA, WHEN RETURNABLE. — Whenever a bill is filed, the clerk shall issue the process of subpoena thereon as of course, upon the application of the plaintiff, which shall be returnable into the clerk's office the next rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpoena shall be placed a memorandum, that the defendant is to enter his appear- ance in the suit in the clerk's office on or before the day at which the writ is returnable ; otherwise, the bill may be taken pro con- fesso. Where there are more than one defendant, a writ of sub- poena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife de- fendants, or a joint subpoena against all the defendants. Rule 13. Service. — The service of all subpoenas shall be by a delivery of a copy thereof, by the officer serving the same, to the defendant personally, or by leaving a copy thereof at the dwelling-house or 550 FEDERAL PLEADING, PRACTICE AND PROCEDURE. usual place of abode of each defendant, with some adult person who is a member or resident in the family. Rule 14. • Alias subpcena. — Whenever any subpcena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another subptena, toties quoties, against such defendant, if he shall require it, until due service is made. Rule 15. Who to make service. — The service of all process, mesne and final, shall be by the marshal of the district or his deputy, or by some other person specially appointed by the court for that pur- pose, and not otherwise. In the latter case the person serving the process shall make affidavit thereof. Rule 16. Entry on docket on- return. — Upon the return of the sub- poena as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. Rule 17. Day of appearance. — The appearance day of the defendant shall be the rule-day to which the subpoena is made returnable, provided he has been served with the process twenty days before that day ; otherwise, his appearance day shall be the next rule-day succeeding the rule-day when the process is returnable. Entry of. — The appearance of the defendant, either personally or by his solicitor, shall be entered in the order-book on the day thereof by the clerk. Rule 18. Default for failure to plead. — It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer or answer to the bill, in the clerk's office, on the rule-day next succeeding that of entering his appearance. In default thereof, the plaintiff may, at his election, enter an order (as of course) in the order-book, that the bill be taken pro con- EQUITY RULES. 551 fesso ; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be de- creed ; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be dis- charged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct, as to pleading to or fully answering the bill within a period to be fixed by the court or judge, and undertaking to speed the cause. Rule 19. Decree on default. — When the bill is taken pro confesso, the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso, and such decree rendered shall be deemed absolute, unless the court shall at the same term set aside the same, or en- large the time for filing the answer, upon cause shown upon motion and afiidavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct for the purpose of speeding the cause. Rule 20. Introductory part. — Every bill, in the introductory part thereof, shall contain the names, places of abode, and citizenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows : "To the judges of the circuit court of the United States for the district of : A. B., of , and a citizen of the state of , brings this his bill against C. D., of , and a citizen of the state of , and E. F., of , and a citizen of the state of . And thereupon your orator complains and says, that," etc. 552 federal pleading, practice and procedure. Rule 21. What to omit and what to state. — The plaintiff, in bis bill, shall be at liberty to omit, at his option, the part which is usually called the common confederacy clause of the bill, averring a con- federacy between the defendants to injure or defraud the plaintiff; also what is commonly called the charging part of the bill, setting forth the matters or excuses which the defendant is supposed to intend to set up by way of defence to the bill ; also what is com- monly called the jurisdiction clause of the bill, that the acts com- plained of are contrary to equity, and that the defendant is without any remedy at law ; and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant, by way of defence or excuse, to the case made by the plaintiff for re- lief. The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunction, or a writ of ne exeat regno, or any other special order pending the suit, is re- quired, it shall also be specially asked for. Rule 22. Parties out of jurisdiction of the court. — If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction. Rule 23. Prayer for process, what it must contain. — The prayer for process of subpoena in the bill shall contain the names of all the de- fendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardian- ship, shall state the fact, so that the court may take order thereon as justice may require, upon the return of the process. If an in- EQUITY RULES. 553 junction, or a writ of ne exeat regno, or any other special order pending the suit, is asked for in the prayer for relief, that shall be sufficient without repeating the same in the prayer for process. Rule 24. Signature of counsel. — Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirma- tion on his part that upon the instructions given to him and the case laid before him, there is good ground for the suit, in the man- ner in which it is framed. ft Rule 25. Taxable costs limited. — In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness and directness in the allegations of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the sum which is allowed in the state court of chancery in the 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. Rule 26. Surplusage. — Every bill shall be expressed in as brief and suc- cinct terms as it reasonably can be, and shall contain no unneces- sary recital of deeds, documents, contracts or other instruments, in hsec 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 master by any judge of the court for impertinence or scandal ; and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occasioned by the reference. Rule 27. Exceptions. — No order shall be made by any judge for referring any bill, answer or pleading, or other matter or proceeding de- pending before the court, for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing 554 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the particular passages which are considered to be scandalous or impertinent ; nor unless the exceptions shall be filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned unless the party ob- taining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule-day, or the master shall certify that further time is necessary for him to complete the examination. Rule 28. When amendments are as of course. — The plaintifi" shall be at liberty, as a matter of course and without payment of costs, to amend his bill in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as filling blanks, correcting errors of dates, misnomer of par- ties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as he may do of course) after a copy has been so taken, before any answer or plea or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof free of expense, with suitable references to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish in like manner, to the defendant, a copy of the whole bill as amended ; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. Rule 29. Amendments by order of court. — After an answer or plea or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill on or before the next succeeding rule- day, upon payment of costs or without payment of costs, as the court or a judge thereof may in his discretion direct. But after replication filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the pro- EQUITY KULES. 555 posed amendment is material, and could not with reasonable dili- gence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. Rule 30. When order may be abandoned. — If the plaintiff so obtain- ing any order to amend his bill after answer or plea or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office, on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. Rule 31. Certificate required. — No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel that in his opinion it is well founded in point of law, and -supported by the affidavit of the defendant that it is not interposed for delay ; and if a plea, that it is true in point of fact. Rule 32. May demur or plead with leave of court. — The defendant may, at any time before the bill is taken for confessed, or after- ward with the leave of the court, demur or plead to the whole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue ; but in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea, and explicitly de- nying the fraud and combination, and the facts on which the charge is founded. Rule 33. Argument on plea. — The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defend- ant, they shall avail him as far as in law and equity they ought to avail him. 556 federal pleading, practice and procedure. Rule 34. When costs on demurrer overruled. — If, upon the hearing, anj demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant had good ground in point of law or fact to interpose the same, and it was not interposed vexatiously or for delay. And upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeeding rule- day, or at such other period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done ; in default whereof, the bill shall be taken against him, pro confesso, and the matter thereof proceeded in and decreed accordingly. Rule 35. When costs on demurrer allowed. — If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be en- titled to his costs. But the court may in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. Rule 36. Demurrer, sufficiency of. — No demurrer or plea shall be held bad and overruled upon argument only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to. Rule 37. Demurrer and answer to same matter. — No demurrer or plea shall be held bad and overruled 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. Rule 38. Failure to reply or set down plea or demurrer for ar- gument. — If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument, on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sufiiciency thereof, and his bill shall be dis- EQUITY RULES. 557 missed as of course, unless a judge of the court shall allow him further time for the purpose. Rule 39. Sufficiency of. — The rule that if a defendant suhmits to an- swer he shall answer fully to all the matters of the bill shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases by answer to insist upon all matters of defence (not being matters of abatement, or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar ; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or defence. Thus, for example, a bona fide purchaser for a valuable considera- tion, 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 title than he would be in any answer in support of such plea. Rule 40. What defendant is not bound to answer. — A defendant shall not be bound to answer any statement or charge in the bill unless specially and particularly interrogated thereto ; and a de- fendant 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. Ordered (December Term, 1850), that the fortieth rule, hereto- fore adopted and promulgated by this court as one of the rules of practice in suits in equity in the circuit courts, be and the same is hereby repealed and annulled. And it shall not hereafter be neces- sary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complainant desires to do so to obtain a discovery. 558 federal pleading, practice and procedure. Rule 41. Interrogatories to be numbered. — The interrogatories con- tained in the interrogating part of the bill shall be divided as con- veniently as may be from each other, and numbered consecutively 1, 2, 3, etc. ; and the interrogatories which each defendant is re- quired to answer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say : " The defend- ant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3, etc. ; and the office copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such defend- ant shall require to be furnished with a copy of the whole bill. Amendment to Equity Rule 41. When answer not evidence. — If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hear- ing on bill and answer only ; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause; but this shall not prevent a defendant from becoming a wit- ness in his own behalf under section 3 of the act of Congress of July 2, 1864. (See Revised Statutes, § 858.) Rule 42. What interrogatories part of bill. — The note at the foot of the bill, specifying the interrogatories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill. Rule 43. Form preceding interrogating part. — Instead of the words of the bill now in use, preceding the interrogating part thereof, and beginning with the words "To the end, therefore," there shall EQUITY RULES. 559 hereafter be used words in the form or to the effect following : " To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, re- membrance, information and belief, full, true, direct and perfect answer make to such of the several interrogatories hereinafter num- bered and set forth as by the note hereunder written they are re- spectively required to answer ; that is to say — " 1. Whether, etc. "2. Whether, etc." Rule 44. What iNTERRoaATORiES NEED NOT BE ANSWERED. — A defendant shall be at liberty, by answer, to decline answering any interroga- tory, or part of an interrogatory, from answering which he might have protected himself by demurrer ; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill, from which he might have protected himself by demurrer. Rule 45. No SPECIAL REPLICATION. — No Special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same, with or without the payment of costs, as the court, or a judge thereof, may in his discretion direct. Rule 46. New or supplemental answer. — 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 suc- ceeding rule-day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court ; and upon his default the like proceedings may be had as in cases of an omission to put in an answer. Rule 47. Proper parties, when not necessary. — In all cases where it shall appear to the court that persons, who might otherwise be 560 FEDERAL PLEADING, PRACTICE AND PROCEDURE. 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 join- der would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion proceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties. Rule 48. When parties numerous. — Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them par- ties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the de- fendants in the suit properly before it. But. in such cases the decree shall be without prejudice to the rights and claims of all the absent parties. Rule 49. Trustees, etc, as parties. — In all suits concerning real estate which is vested in trustees by devise, and such trustees are compe- tent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, par- ties to the suit ; but the court may, upon consideration of the mat- ter on the hearing, if it shall so think fit, order such persons to be made parties. Rule 50. When heir-at-law a necessary party. — In suits to execute the trusts of a will, it shall not be necessary to make the heir-at- law a party ; but the plaintiff shall be at liberty to make the heir- at-law a party where he desires to have the will established against him. equity rules. 561 Rule 51. Joint and several debtors. — In all cases in which the plain- tiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court, as parties to a suit concerning such demand, all the per- sons liable thereto ; but the plaintiff may proceed against one or more of the persons severally liable. Rule 52. Defect of parties in bill. — Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order-book, in the form or to the effect following, that is to say : " Set down upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, not- withstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objec- tion shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. Rule 53. Defect of parties suggested at hearing. — If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the court, if it shall think fit, shall be at liberty to make a decree saving the rights of the absent parties. Rule 54. When party is nominal. — Where no account, payment, convey- ance or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill unless the plaintiff specially re- quires him so to do by the prayer of his bill ; but he may appear and answer at his option, and if he does not appear and answer he 36 562 FEDERAL PLEADING, PRACTICE AND PROCEDURE. shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against him, unless the court shall other- wise direct. Rule 55. Injunction, when granted as of course. — Whenever an in- junction is asked for by the bill to stay proceedings at law, if the defendant do not enter his appearance and plead, demur or answer to the same within the time prescribed therefor by these rules, the plain tiif shall be entitled as of course, upon motion without notice, to such injunction. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte if the adverse party does not appear at the time and place ordered. In every case where an injunction, either the common injunction or a special injunction, is awarded in vacation, it shall, unless previ- ously dissolved by the judge granting the same, continue until the next term of the court, or until it is dissolved by some other order of the court. Rule 56. Bill of revivor in case of abatement. — Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time ; and upon suggestion of the facts the proper process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule-day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived as of course. Rule 57. Supplemental bill, when proper. — Whenever any suit in equity shall become defective, from any event happening after the filing of the bill (as, for example, by change of interest in the par- EQUITY RULES. 663 ties), or for any other reason a supplemental bill, or a bill in the nature of a supplemental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule-day, upon proper cause shown and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead or answer thereto on the next succeeding rule-day after the supplemental bill is filed in the clerk's oflBce, unless some other time shall be assigned by a judge of the court. KuLE 58. What need not be set forth. — It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the state- ments in the original suit unless the special circumstances of the case may require it. Rule 59. Answer ; before whom verified. — Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or territory. Rule 60. When amendable. — After an answer is put in it may be amended as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document or other small matter, and be re- sworn at any time before a replication is put in or the cause is set down for a hearing upon bill and answer. But after replication, or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or de- fences or qualifying or altering the original statements, except by special leave of the court or of a judge thereof, upon motion and cause shown after due notice to the adverse party, supported, if re- quired, by affidavit. And in every case where leave is so granted, the court, or the judge granting the same, may, in his discretion, require that the same be separately engrossed and added as a dis- tinct amendment to the original answer, so as to be distinguishable therefrom. 56i federal pleading, practice and procedure. Rule 61. When exceptions to be taken. — After an answer is filed on any rule-day the plaintiff shall be allowed until the next succeeding rule-day to file in the clerk's office exceptions thereto for insuffi- ciency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court or a judge thereof; and if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. Rule 62. Separate answers; costs on. — When the same solicitor is em- ployed for two or more defendants, and separate answers shall be filed, or other proceedings had by two or more of the defendants separately, costs shall not be allowed for such separate answers or other pro- ceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. Rule 63. When exceptions set down for hearing. — When exceptions shall be filed to the answer for insufficiency within the period pre- scribed by these rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule-day, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule-day thereafter before a judge of the court, and shall enter as of course, in the order-book, an order for that purpose. And if he shall not so set down the same for a hearing, the excep- tions shall be deemed abandoned, and the answer shall be deemed sufficient ; provided, however, that the court or any judge thereof may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. Rule 64. Answer on allowance of exceptions. — If at the hearing the exceptions shall be allowed, the defendant shall be bound to put in a full and complete answer thereto on the next succeeding rule- day ; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as a matter of such exceptions is concerned, as con- fessed, or, at his election, he may have a writ of attachment to com- EQUITY RULES. 565 pel the defendant to make a better answer to the matter of the exceptions ; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer and comply- ing with such other terms as the court or judge may direct. Rule 65. When exceptions overruled. — If, upon argument, the plain- tiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insuflficient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions. Rule 66. Replication; when to be filed. — Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule-day thereafter ; and in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit ; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause and to such other terms as may be directed. Rule 67. Commissions; when taken out. — After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories before the issuing of the commis- sion ; and if no cross-interrogatories are filed at the expiration of the time, the commission may issue ex parte. Who to name commissioners. — In all cases the commissioner or commissioners shall be named by the court, or by a judge thereof. 566 FEDERAL PLEADING, PRACTICE AND PROCEDURE. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties or their agents, without filing any written interrogatories. Ordered (December term, 1854) that the 67th rule be so amended as to allow the presiding judge of any court exercising jurisdiction, either in term time or in vacation, to vest in the clerk of said court general power to name commissioners to take testimony in like manner that the court or judge thereof can now do by the said 67th rule. Notice required. — (Ordered December term, 1861.) Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the exam- iners of the court, or before an examiner to be specially appointed by the court, the examiner to be furnished with a copy of the bill and answer, if any ; and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re-exam- ination, and which shall be conducted, as near as may be, in the mode now used in common-law courts. The depositions taken upon such oral examination shall be taken down in writing by the exam- iner in the form of narrative, unless he determines the examination shall be by question and answer in special instances ; and when com- pleted, shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend ; provided^ if the witness shall refuse to sign the said deposition, then the examiner shall sign the same ; and the examiner may upon all examinations state any special matters to the court as he shall think fit ; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality or rele- vancy of the questions ; and the court shall have power to deal with the costs of incompetent, immaterial or irrelevant depositions, or parts of them, as may be just. Attendance of witnesses. — In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written inter- rogatories. EQUITY RULES. 5t)7 Notice of taking. — Notice shall be given by the respective counsel or solicitors, to the opposite counsel or solicitors or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. Transmission of deposition. — When the examination of wit- nesses before the examiner is concluded, the original deposition, authenticated by the signature of the examiner, shall be transmit- ted by him to the clerk of the court, to be there filed of record in the same mode as prescribed in the thirtieth section of act of Con- gress, September 24, 1789. (See Revised Statutes, § 865.) Testimony; how taken. — Testimony may be taken on commis- sion in the usual way by written interrogatories and cross-interrog- atories, on motion to the court in term time, or to a judge in vaca- tion, for special reasons satisfactory to the court or judge. Court may assign the time of taking. — Where the evidence to be adduced in a cause is to be taken orally, as provided in the order passed at the December term, 1861, amending the 67th General Rule, the court may, on motion of either party, assign a time within which the claimant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defence, and a time thereafter within which the com- plainant shall take his evidence in reply ; and no further evidence shall be taken in the cause unless by agreement of the parties, or by leave of court first obtained on motion for cause shown. Rule 68. Testimony by deposition after issue. — Testimony may also be taken in the cause, after it is at issue, by deposition, according to the acts of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and aflBdavit of the fact, be entitled to a cross-examination of the witness, either under a commission or by a new deposition taken under the acts of Congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable. Rule 69. Time allowed. — Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either 568 FEDERAL PLEADING, PRACTICE AND PROCEDURE. party, enlarge the time ; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and depositions, containing the testimony, into the clerk's oflSce, publication thereof may be ordered in the clerk's office, by any judge of the court, upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the circumstances. But, by consent of the parties, publication of the testimony mjiy at any time pass in the clerk's office, such consent being in writing, and a copy thereof entered in the order- books, or indorsed upon the deposition or testimony. Rule 70. When taken; notice. — After any bill filed, and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any of 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 commis- sioners 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. Rule 71. The last interrogatory. — The last interrogatory in the written interrogatories to take testimony now commonly in use shall in the future be altered, and stated in substance thus : " Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause?' If yea, set forth the same fully and at large in your answer." Rule 72. Defendant to answer original bill. — Where a defendant in equity files a cross-bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto, before the original plaintiff shall be compellable to answer the cross-bill. The answer of the original plaintiff to such cross- bill may be read and used by the party filing the cross-bill at the EQUITY RULES. 569 hearing, in the same manner and under the same restrictions as the answer praying relief may now be read and used. Rule 73. Account of personal estate of deceased. — Every decree for an account of the personal estate of a testator or intestate shall contain a direction to the master to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, unless the court shall otherwise direct. Rule 74. Reference; duty of the master. — Whenever any reference of any matter is made to a master to examine and report thereon, the party at whose instance or for whose benefit the reference is made shall cause the same to be presented to the master for a hearing on or before the next rule-day succeeding the time when the reference was made ; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. Rule 75. Master to assign time and place. — Upon every such refer- ence it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment ; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay; and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings, and to make his report, and to certify to the court or judge the reasons for any delay. Rule 76. Report; what shall not be stated. — In the reports made by the master to the court no part of any state of facts, charge, affi- 570 FEDERAL PLEADING, PRACTICE AND PROCEDURE. davit, deposition, examination or answer brought in or used before them shall be stated or recited. But such state of facts, charge, aflfidavit, deposition, examination or answer shall be identified, speci- fied and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, examination or answer were so brought in or used. Rule 77. Proceedings before master. — The master shall regulate all the proceedings in every hearing before him, upon every such refer- ence ; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers and other documents applicable thereto ; and also to ex- amine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office, or by deposition, according to the acts of Congress, or otherwise, as hereinafter provided ; and also to direct the mode in which the matters requiring evidence shall be proved before him ; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him, which he may deem neces- sary and proper to the justice and merits thereof and the rights of the parties. Rule 78. AViTNESSES, HOW SUMMONED. — Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear, before the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court ; and if any wit- ness shall refuse to appear or to give evidence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the 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 attending or for re- EQUITY RULES. 571 fusing to give testimony in the court. But nothing herein con- tained shall prevent the examination of witnesses viva voce when produced in open court, if the court shall, in its discretion, deem it advisable. Rule 79. Accounts, production, examination of party. — All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party viva voce, or upon inter- rogatories in the master's office, or by deposition, as the master shall direct. Rule 80. Affidavits, may be used. — All affidavits, depositions and doc- uments 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 81. Examination of creditor or claimant. — The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories or viva voce, or in both modes as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary. Rule 82. Appointment of masters and compensation. — The circuit courts appoint standing masters in chancery in their respective districts, both the judges concurring in the appointment ; and they may also appoint a master pro hac vice in any particular case. The compensation to be allowed to every master in chancery for his services in any particular case shall be fixed by the circuit court in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation ; but when the 572 FEDERAL PLEADING, PRACTICE AND PROCEDURE. compensation is allowed by the court, he shall be entitled to an at- tachment for the amount against the party who is ordered to pay the same if, upon notice thereof, he does not pay it within the time prescribed by the court. Rule 83. When may be filed. — 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 report shall stand confirmed on the next rule-day after the month is expired. If the 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. Rule 84. Costs on exceptions. — And in order to prevent exceptions to reports frorn being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs — the costs to be fixed in each case by the court, by a standing rule of the circuit court. Rule 85. Correction of mistakes. — Clerical mistakes in decrees or de- cretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. Rule 86. What decrees need not contain pleadings. — In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order shall begin, in substance, as follows: " This cause came on to be heard (or to be further heard, as the EQUITY RULES. 573 case may be) at this time, and was argued by counsel ; and there- upon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz.:" [Here insert the decree or order.] Rule 87. Guardians, how appointed. — Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami ; subject, however, to such orders as the court may direct for the protection of infants and other persons. Rule 88. Petition, what to contain. — Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded if an appeal lies to the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. Rule 89. Rules may be made by circuit courts. — The circuit courts (both judges concurring therein) may make any other and further rules and regulations for the practice, proceedings and process, mesne and final, in their respective districts not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. Rule 90. Practice. — In all cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be ap- plied consistently with the local circumstances and local conveni- 574 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice. Rule 91. Affirmation in lieu of oath. — Whenever, under these rules, an oath is or may be required to be taken, the party may, if con- scientiously scrupulous of taking an oath, in lieu thereof make solemn afSrmation to the truth of the facts stated by him. Rule 92. Decree in foreclosure suits. — In suits in equity for the fore- closure of mortgages in the circuit courts of the United States, or in any court of the territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is pro- vided in the 8th rule of this court regulating the equity practice, where the decree is solely for the payment of money. Rule 93. Appeal in injunction cases ; discretion. — When an appeal from a final decree in an equity suit, granting or dissolving an injunction, is allowed by a justice or judge who took part in the decision of the cause, he may in his discretion, at the time of such allowance, make an order suspending or modifying the injunction during the pendency of the appeal, upon such terms as to bond or otherwise as he m.ay consider proper for the security of the rights of the opposite party. RULES OF PRACTICE FOR THE COURTS OF THE UNITED STATES ADMIRALTY AND MARITLME JURISDICTION, ON THE INSTANCE SIDE OF THE COURT, IN PURSUANCE OF THE ACT OF THE 23d OF AUGUST, 1842, CHAPTER 188. Rule 1. Process, issue and service of. — No mesne process shall issue from the district courts in any civil cause of admiralty and maritime jurisdiction until the libel, or libel of information, shall be filed in the clerk's office from which such process is to issue. All process shall be served by the marshal, or by his deputy, or where he or they are interested, by some discreet and disinterested person ap- pointed by the court. Rule 2. In suits in personam. — 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 cannot be found, to attach his goods and chattels to the amount sued for ; or if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein ; or by a simple monition, in the nature of a summons to appear and answer to the suit, as the libellant shall, in his libel or information, pray for or elect. Rule 3. Bail, summary process. — In all suits in personam where a simple warrant of arrest issues and is executed, the marshal may 676 FEDERAL PLEADING, PRACTICE AND PROCEDURE. take bail, with sufficient sureties, from the party arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final decree rendered therein in the court to which the process is returnable, or in any appellate court. And upon such bond or stipulation summary process of execution may and shall be issued against the principal and sureties by the court to which such process is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. Rule 4. Attachment, when dissolved. — In all suits in personam where goods and chattels, or credits and efi'ects, are attached under such warrant authorizing the same, the attachment may be dissolved by order of the court to which the same -warrant is returnable, upon the defendant, whose property is so attached, giving a bond or stipulation, with sufficient sureties, to abide by all orders, inter- locutory 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 court; and upon such bond or stipulation summary process of execution shall and may be issued against the principal and sureties by the court to which such warrant is return- able, to enforce the final decree so rendered, or upon appeal by the appellate court. Rule 5. Bonds or stipulations. — Bonds or stipulations in admiralty suits may be given and taken in open court, or at chambers, or before any commissioner of the court who is authorized by the court to take affidavits of bail and depositions in cases pending before the court, or any commissioner of the United States authorized by law to take bail and affidavits in civil cases. Rule 6. Reduction of bail ; new sureties. — In all suits in personam where bail is taken the court may upon motion, for due cause shown, reduce the amount of the sum contained in the bond or stipulation therefor ; and in all cases where a bond or stipulation is taken as bail, or upon dissolving an attachment of property as aforesaid, if ADMIRALTY RULES. 577 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. Rule 7. Warrant of arrest may issue. — In suits in personam no warrant of arrest, either of the person or property of the defendant, shall issue for a sum exceeding five hundred dollars, unless by the special order of the court, upon afiidavit or other proper proof showing the propriety thereof. Rule 8. Ship's tackle, etc , how obtained. — In all suits in rem against a ship, her tackle, sails, apparel, furniture, boats or other appur- tenances, if such tackle, sails, apparel, furniture, boats or other appurtenances are in the possession or custody of any third person, the court may, after a due monition to such third person and a hearing of the cause, if any, why the same should not be delivered over, award and decree that the same be delivered into the custody of the marshal or other proper officer, if, upon the hearing, the same is required by law and justice. Rule 9. Cases of seizure, process in. — In all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by a warrant of arrest of the ship, goods or other thing to be arrested ; and the marshal shall there- upon arrest and take the ship, goods or other thing into his pos- session for safe custody, and shall cause public notice thereof, and of the time assigned for the 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 there is no newspaper pub- lished therein, then in such other public places in the district as the court shall direct. Rule 10. Perishable goods may be sold. — In all cases where any goods or other things are arrested, if the same are perishable or are liable 37 578 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to deterioration, decay or injury by being detained in custody pending tbe 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 depreciation, 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 event of the suit; or the court may, upon the application of the claimant, order a delivery thereof to him, upon a due appraisement to be had under its direction, either upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sureties in such sum as the court shall direct, to abide by and pay the money awarded by the final decree rendered by the court or the appellate court, if any appeal intervenes, as the one or the other course shall be ordered by the court. Rule 11. Ship ; delivery to claimant. — In like manner, where any ship shall be arrested, the same may, upon the application of the claim- ant, be delivered to him, upon a due appraisement to be had under the direction of the court, upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipu- lation, with sureties as aforesaid ; and if the claimant shall decline any such application, then the court may, in its discretion, upon the application of either party, upon due cause shown, order a sale of such ship, and the proceeds thereof to be brought into court, or otherwise disposed of as it may deem most for the benefit of all concerned. Rule 12. Suits by material-men. — In all suits by material-men for sup- plies or repairs, or other necessaries, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam. Rule 13. Suits for mariners' wages. — In all suits for mariners' wages the libellant may proceed against the ship, freight and master, or against the ship and freight, or against the owner or the master alone in personam. admiralty rules. 579 Rule 14. Suits for pilotage. — In all suits for pilotage the libellant may proceed against the ship and master, or against the ship, or against the owner alone, or the master alone, in personam. Rule 15. Suits for damage by collision. — In all suits for damage bj collision the libellant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone, in personam. Rule 16. Suits for assault and battery. — 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 personam only. Rule 17. Suits for hypothecation. — In all suits against the ship or freight founded upon a mere maritime hypothecation, either express or implied, of the master for moneys taken up in a foreign port for supplies or repairs, or other necessaries for the voyage, without any claim of marine interest, the libellant may proceed either in rem or against the master or the owner alone in personam. Rule 18. Suits on bottomry bonds in rem and in personam. — In all suits on bottomry bonds, properly so called, the suit shall be in rem only against the property hypothecated, or the proceeds of the property, in whosesoever hands the same may be found, unless the master has, without authority, given the bottomry bond, or by his fraud or misconduct has avoided the same, or has subtracted the property, or unless the owner has, by his own misconduct or wrong, lost or subtracted the property, in which latter cases the suit may be in personam against the wrongdoer. Rule 19. Suits for salvage. — In all suits for salvage the suit may be in rem against the property saved, or the proceeds thereof, or in per- 580 FEDERAL PLEADING, PRACTICE AND PROCEDURE. sonam against the party at whose request and for whose benefit the salvage service has been performed. Rule 20. In petitory and possessory suits. — In all petitory and pos- sessory suits between part owners or adverse proprietors, or by the owners of a ship, or the majority thereof, against the master of a ship for the ascertainment of the title and delivery of the possession, or for the possession only, or by one or more part owners against the others to obtain security for the return of the ship from any voyage undertaken without their consent, or by one or more 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. Rule 21. Decrees, remedy on.^ — In all cases of a final decree for the payment of money the libellant shall have a writ of execution, in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate of the defendant or stipu- lators. Rule 22. Informations and libels on seizures. — All informations and libels of information upon seizures for any breach of the revenue or navigation or other laws of the United States shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and the district within which the property is brought and where it then is. The information or libel of information shall also propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture, and to give notice to all persons concerned in interest to appear and show cause at the return day of the process why the forfeiture should not be decreed. admiralty rules. 581 Rule 23. Libels, civil and maritime, in instance causes. — All libels in instance causes, civil or maritime, shall state the nature of the cause ; as, for example, that it is a cause, civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be ; and if the 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 distinct articles the various allega- tions of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and sep- arately the several matters contained in each article ; and it shall conclude with a prayer of due process to enforce his rights in rem or in personam (as the case may require), and for such relief and redress as the court is competent to give in the premises. And the libellant may further require the defendant to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof. Rule 24. Amendments to libels, when of course. — In all informations and libels in causes of admiralty and maritime jurisdiction, amend- ments, in matters of form, may be made at any time on motion to the court as of course. And new counts may be filed, and amend- ments, in matters of substance, may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose. And where any defect of form is set down by the de- fendant upon special exceptions and is allowed, the court may, in granting leave to amend, impose terms upon the libellant. Rule 25. Security for costs, when required. — In all cases of libels in personam the court may, in its discretion, upon the appearance of the defendant, where no bail has been taken and no attachment of property has been made to answer the exigency of the suit, require the defendant to give a stipulation, with sureties in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudication thereof or by any interlocutory order in the progress of the suit. 582 federal pleading, practice and procedure. Rule 26. When the claim must be verified. — In suits in rem the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on whose behalf the claim is made is the true and bona fide owner, and that no other person is the owner thereof. And where the claim is put in by an agent or consignee, he shall also make oath that he is duly author- ized thereto by the owner ; or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawful bailee thereof for the owner. And upon 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 expenses which shall be awarded against him by the final decree of the court, or, upon an appeal, by the appellate court. Rule 27. Answer must be verified, — In all libels in causes of civil and maritime jurisdiction, whether in rem or in personam, the answer of the defendant to the allegations in the libel shall be on oath or solemn affirmation ; and the answer shall be full and explicit and distinct to each separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like manner each interrogatory propounded at the close of the libel. (See Rule 48.) Rule 28. Exception to answer. — The libellant may except to the suffi- ciency, or fullness, or distinctness, or relevancy of the answer to the articles and interrogatories in the libel ; and if the court shall adjudge the same exceptions, or any of them, to be good and valid, the court shall order the defendant forthwith, within such time as the court shall direct, to answer the same, and may further order the defendant to pay such costs as the court shall adjudge reasonable. Rule 29. Default for want of answer, effect of. — If the defendant shall omit or refuse to make due answer to the libel upon the return day of the process, or other day assigned by the court, the court shall pronounce him to be in contumacy and default ; and there- ADMIRALTY RULES. 583 upon the libel shall be adjudged to be taken pro confesso against him, and the court shall proceed to hear the cause ex parte and adjudge therein as to law and justice shall appertain. But the court may, in its discretion, set aside the default, and, upon the application of the defendant, admit him to make answer to the libel at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave therefor. Rule 30. When further answer required, — In all cases where the de- fendant answers, but does not answer fully and explicitly and dis- tinctly to all the matters in any article of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court may, by attachment, compel the 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 article to which it purports to answer, and as if no answer had been put in thereto. Rule 31. What allegation need not be answered. — The defendant may object, by his answer, to answer any allegation or interrogatory contained in the libel which will expose him to any prosecution or punishment for a crime, or for any penalty or any forfeiture of his property for any penal offence. Rule 32. Personal answers to interrogatories propounded in an- swer. — 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 touch- ing any matter of defence set up in the answer, subject to the like exception as to matters which shall expose the libellant to any prosecution or punishment or forfeiture, as is provided in the 31st rule. In default of due answer by the libellant to such interrog- atories, 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 584 FEDERAL PLEADING, PRACTICE AND PROCEDURE. confesso in favor of the defendant, as the court, in its discretion, shall deem most fit to promote public justice. Rule 33. Verification of answer to interrogatory, when dispensed WITH. — Where either the libellant or the defendant is out of the country, or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or solemn afiSrmation at the proper time, the court may, in its discretion, in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defendant when and as soon as it may be practicable. Rule 34. Intervention in rem ; how to proceed. — If any third person shall intervene in any cause of admiralty and maritime jurisdiction in rem for his own interest, and he is entitled, according to the course of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable allegations, to which, if admitted by the court, the other party or parties in the suit may be required, by order of the court, to make due answer ; and such further proceedings shall be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervener shall be required, upon filing his allegations, to give a stipulation, with sureties, to abide by the final decree ren- dered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court. Rule 35. Stipulations, how given. — The stipulations required by the last preceding rule, or on appeal, or in any other admiralty or maritime proceeding, shall be given and taken in the manner pre- scribed by Rule 5 as amended. Rule 36. Effect of allowance of exceptions. — Exceptions may be taken to any libel, allegation or answer, for surplusage, irrelevancy, impertinence or scandal ; and if, upon reference to a master, the ADMIRALTY RULES. 585 exception shall be ;-eported to be so objectionable, and allowed by the court, the matter shall be expunged at the cost and expense of the party in whose libel or answer the same is found. Rule 37. Attachment against garnishee. — In cases of foreign attach- ment the garnishee shall be required to answer on oath or solemn affirmation as to the debts, credits or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded by the libellant ; and if he shall refuse or neglect so to do, the court may award compulsory process in personam against him. If he admits any debts, credits or effects, the same shall be held in his hands, liable to answer the exigency of the suit. Rule 38. Property brought into court. — In cases of mariners' wages, or bottomry, or salvage, or other proceedings in rem, where freight or other proceeds of property are attached to or are bound by the suit, which are in the hands or possession of any person, the court may, upon due application by petition of the party interested, re- quire the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit ; and if no sufficient cause be shown, 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. Rule 39. Non-appearance of libellant. — If, in any admiralty suit, the libellant shall not appear and prosecute his suit, according to the course and orders of the court, he shall be deemed in default and contumacy, and the court may, upon the application of the defend- ant, pronounce the suit to be deserted, and the same may be dis- missed with costs. Rule 40. Decree may be rescinded. — The court may, in its discretion, upon the motion of the defendant and the payment of costs, rescind 586 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premises as the court may direct. Rule 41. Sales of property. — All sales of property under any decree of admiralty shall be made by the marshal or his deputy, or other proper officer assigned by the court where the marshal is a party in interest, in pursuance of the orders of the court ; and the proceeds thereof, when sold, shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law. Rule 42. Moneys deposited. — All moneys paid into the registry of the court shall be deposited in some bank designated by the court, and shall be so deposited in the name of the court, and shall not be drawn out except by check or checks, signed by a judge of the court and countersigned by the clerk, stating on whose account and for whose use it is drawn, and in what suit and out of what fund in particular it is paid. The clerk shall keep a regular book, containing a memorandum and copy of all the checks so drawn and the date thereof. Rule 43. Intervenor for proceeds. — Any person having an interest in any proceeds in the registry of the court shall have a right, by petition and summary proceeding, to intervene pro interesse suo for a delivery thereof to him ; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to decree therein according to law and justice. And if such petition or claim shall be deserted, or, upon a hearing, be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party. Rule 44. Reference to commissioners. — In cases where the court shall deem it expedient or necessary for the purposes of justice, the court ADMIRALTY RULES. 587 may refer any matters arising in the progress o the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report therein. And such commissioner or com- missioners 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 administer oaths to and to examine the parties and witnesses touching the premises. Rule 45. Appeals, when made. — All appeals from the district to the circuit court must be made while the court is sitting, or within such other period as shall be designated by the district court by its gen- eral rules or by an order specially made in the particular suit, or in case no such rule or order be made, then within thirty days from the rendering of the decree. Rule 46. Courts to regulate practice. — In all cases not provided for by the foregoing rules the district and circuit courts are to regulate the practice of the said courts respectively, in such manner as they shall deem most expedient for the due administration of justice in suits in admiralty. Rule 47. Bail, when taken. — In all suits in personam where a simple warrant of arrest issues and is executed, bail shall be taken by the marshal and the court in those cases only in which it is required by the laws of the state where an arrest is made upon similar or anal- ogous process issuing from the state courts. Imprisonment for debt. — And imprisonment for debt, on pro- cess issuing out of the admiralty court, is abolished in all cases, where, by the laws of the state in which the court is held, imprison- ment for debt has been or shall be hereafter abolished, upon similar or analogous process issuing from a state court. Rule 48. Answer, sufficiency of. — The 27th rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars, exclusive of costs, unless the district court hall be of opinion that 588 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the proceedings prescribed by that rule are necessary for the pur- poses of justice in the case before the court. All rules and parts of rules heretofore adopted inconsistent with this order are hereby repealed and annulled. Rule 49. Further proof, how taken on appeal. — Further proof taken in a circuit court upon an admiralty appeal shall be by deposition taken before some commissioner appointed by a circuit court pur- suant to the acts of Congress in that behalf, or before some officer authorized to take depositions by the 30th section of the act of Congress of the 24th of September, 1789 (see Revised Statutes, § 865), upon an oral examination and cross-examination, unless the court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a commission to issue to take such depositions upon written interrogatories and cross-interrogatories. When such deposition shall be taken by oral examination, a notifi- cation from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall be pending, to the adverse party to be present at the taking of the same, and to put interrogatories, if he think fit, shall be served on the adverse party or his attorney, allowing time for their attendance after being noti- fied not less than twenty-four hours, and in addition thereto one day, Sundays exclusive, for every twenty miles' travel ; provided, that the court in which such appeal may be pending, or either of the judges thereof, may, upon motion, increase or diminish the length of notice above required. Rule 50. Oral evidence, when admissible on appeal. — When oral evi- dence shall be taken down by the clerk of the district court pur- suant to the above-mentioned section of the act of Congress, and shall be transmitted to the circuit court, the same may be used in evidence on the appeal, saving to each party the right to take the depositions of the same witnesses, or either of them, if he should so elect. Rule 51. New facts in answer. — When the defendant, in his answer, al- leges new facts, these shall be considered as denied by the libellant, ADMIRALTY RULES. 589 and no replication, general or special, shall be allowed. But within such time after the answer is filed as shall be fixed by the district court, either by general rule or by special order, the libellant may a"mend his libel so as to confess and avoid, or explain, or add to the new matters set forth in the answer ; and within such time as may be fixed in like manner, the defendant shall answer such amend- ments. Rule 52. 1. Records on appeal. — The clerks of the district courts shall make up the records to be transmitted to the circuit courts on ap- peals, so that the same shall contain the following : 1. The style of the court. 2. The names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has taken place. 3. If bail was taken, or property was attached or arrested, the process of the arrest or attachment and the service thereof, all bail and stipulations, and, if any sale has been made, the orders, war- rants and reports relating thereto. 4. The libel, with the exhibits annexed thereto. 5. The pleadings of the defendant, with the exhibits annexed thereto. 6. The testimony on the part of the libellant, and any exhibits not annexed to the libel. 7. The testimony on the part of the defendant, and any exhibits not annexed to his pleadings. 8. Any order of the court to which exception was made. 9. Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report was not excepted to, only the fact that a reference was made, and so much of the report as shows what re- sults were arrived at by the assessor, are to be stated. 10. The final decree. ' 11. The prayer for an appeal and the action of the district court thereon ; and no reasons of appeal shall be filed or inserted in the transcript. The following shall be omitted : 1. The continuances. 590 FEDERAL PLEADING, PRACTICE AND PKOCEDURE. 2. All motions, rules and orders not excepted to which are merely preparatory for trial. 3. The commissions to take depositions, notices therefor, their captions and certificates of their being sworn to, unless some excep- tion to a deposition in the district court was founded on some one or more of these ; in which case so much of either of them as may be involved in the exception shall be set out. In all other cases it shall be sufficient to give the name of the witness, and to copy the interrogatories and answers, and to state the name of the commis- sioner and the place where and the date when the deposition was sworn to; and in copying all depositions taken on interrogatories the answer shall be inserted immediately following the question. 2. Certificate of clerk. — The clerk of the district court shall page the copy of the record thus made up, and shall make an index thereto, and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transcript of the record of the district court in the cause named at the beginning of the copy made up pursuant to this rule; and no other certificate of the record shall be needful or inserted. Rule 53. Cross-libel, security for costs by respondent. — Whenever a cross-libel is filed upon any counter-claim arising out of the same cause of action for which the original libel was filed, the respond- ents in the cross-libel shall give security, in the usual amount and form, to respond in damages as claimed in said cross-libel, unless the court, on cause shown, shall otherwise direct ; and all proceed- ings upon the original libel shall be stayed until such security shall be given. Rule 54. Libel or suit for embezzlement of master. — When any ship or vessel shall be libelled, or the owner or owners thereof shall be sued for any embezzlement, loss or destruction by the master, offi- cers, mariners, passengers or any other person or persons, of any property, goods or merchandise shipped or put on board of such ship or vessel, or for any loss, damage or injury by collision, or for any act, matter or thing, loss, damage or forfeiture done, occasioned or incurred without the privity or knowledge of such owner or owners, ADMIRALTY RULES. 591 and be or they shall desire to claim the benefit of limitation of lia- bility provided for in the 3d and 4th sections of the said act above recited, the said owner or owners shall and may file a libel or peti- tion in the proper district court of the United States, as hereinafter specified, setting forth the facts and circumstances on which such limitation of liability is claimed, and praying proper relief in that behalf; and thereupon said court, having caused due appraisement to be had of the amount or value of the interest of said owner or owners, respectively, in such ship or vessel, and her freight for the voyage, shall make an order for the payment of the same into court, or for the giving of a stipulation with sureties for payment thereof into court, whenever the same shall be ordered ; or, if the said owner or owners shall so elect, the said court shall, without such appraise- ment, make an order for the transfer by him or them of his or their interest in such vessel and freight, to a trustee to be appointed by the court under the 4th section of said act ; and upon compliance with such order, the said court shall issue a monition against all per- sons claiming damages for any such embezzlement, loss, destruction, damage or injury, citing them to appear before the said court and make due proof of their respective claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same ; and public notice of such monition shall be given as in other cases, and such further notice served through the post-office, or otherwise, as the court, in its discretion, may direct; and the said court shall also, on the application of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims. Rule 55. Proof of claims before commissioner. — Proof of all claims which shall be presented in pursuance of said monition shall be made before a commissioner to be designated by the court, subject to the right of any person interested to question or controvert the same ; and upon the completion of said proofs, the commissioner shall make report of the claims so proven, and upon confirmation of said report, after hearing any exceptions thereto, the moneys paid or secured to be paid into court as aforesaid, or the proceeds of said ship or ves- sel and freight (after payment of costs and expenses), shall be 592 FEDERAL PLEADING, PRACTICE AND PROCEDURE. divided pro rata amongst the several claimants in proportion to the amount of their respective claims, duly proved and confirmed as aforesaid, saving, however, to all parties any priority to which they may be legally entitled. Rule 56. Who may defend. — In the proceedings aforesaid the said owner or owners shall be at liberty to contest his or their liability, or the liability of said ship or vessel, for said embezzlement, loss, destruc- tion, damage or injury (independently of the limitation of liability claimed under said act) ; provided, that in his or their libel or peti- tion he or they shall state the facts and circumstances by reason of which exemption from liability is claimed ; and any person or per- sons claiming damages as aforesaid, and who shall have presented his' or their claim to the commissioner under oath, shall and may answer such libel or petition and contest the right of the owner or owners of said ship or vessel, either to an exemption from liability or to a limitation of liability under the said act of Congress, or both. Rule 57. Where libel or petition must be filed ; jurisdiction, where IT ATTACHES. — The Said libel or petition shall be filed and the said proceedings had in any district court of the United States in which said ship or vessel may be libelled to answer for any such embezzle- ment, loss, destruction, damage or injury ; or if the said ship or vessel be not libelled, then in the district court for any district in which the said owner or owners may be sued in that behalf. If the ship have already been libelled and sold, the proceeds shall represent the same for the purposes of these rules. RULES OF THE COURT OF CLAIMS. TOOK EFFECT JULY 1, 1879. Article I. — Attorneys and Counsel. Suits, by whom commenced ; when power of attorney to be FILED. — Sec. 1. Suits may be commenced by the claimant in per- son, or through his attorney in fact, or an attorney of this court. If the claimant is represented by an attorney in fact, the power must be filed with the clerk, and its execution must be proved or acknowl- edged before an officer authorized to take acknowledgments of deeds. Qualifications for admission as attorneys. — Sec. 2. Any person of good moral character, who has been admitted to practice in the Supreme Court of the United States, or in the highest court of the District of Columbia, or in the highest court of any state or territory, may be admitted, on motion in open court, to practice as an attorney and counsellor of this court. Admission of person as attorney in vacation. — Sec. 3. An attorney-at-law licensed to practice in the courts of record of any state or territory may file an affidavit made before a person author- ized to administer oaths under the laws of the United States, show- ing when, where and in what courts he has been admitted, and that he is still entitled to practice therein. Upon such an affidavit the court, or the Chief Justice or one of the judges in vacation, will di- rect an order admitting such attorney to practice as an attorney in this court. But this will not authorize the party to appear in open court till there admitted as before provided. Only one attorney of record allowed ; changes permitted. — Sec. 4. There shall be but one attorney of record for the claimant in any case at any one time ; but a claimant may be permitted to change his attorney, on such conditions as the court may prescribe. A firm of attorneys will be regarded as the attorney of record. Attorney of record to sign pleadings, etc. — Sec. 5. Peti- tions, pleadings and motions on the part of the claimant will be 38 594 FEDERAL PLEADING, PRACTICE AND PROCEDURE. signed bj the attorney of record ; pleadings and motions on the part of the United States by the Assistant Attorney-General. Post-office address of claimant or attorney to be regis- tered. — Sec. 6. Attorneys of record, or the claimant if he appear in person, will, on commencing or appearing in a suit, register with the clerk of the court a post-office address, to which all notices re- quired by these rules or ordered by the court may be addressed. Counsel. — Sec. 7. Counsel, other than the attorney of record, may be heard on either side at the trial or in any stage of the pro- ceedings, but shall not be entitled to file pleadings, give notices or make motions. Article II. — The Petition. Filing of petition and of twenty-five printed copies. — Sec. 1. Suits will be commenced by petition, verified in the manner pro- vided by law, and filed in the office of the clerk. The clerk will note the day of the filing of the petition thereon. Within twenty days thereafter the clairnant will file in the clerk's office twenty-five printed copies of such petition and note of filing. Contents of petition. — Sec. 2. The petition must set forth — 1. The title of the action, with the full Christian and surnames of all the claimants. 2. A plain, concise statement of the facts and circumstances, giving place and date, free from argumentative and impertinent matter. 3. The prayer, in which the claimant must state distinctly the amount for which he demands judgment, or the relief for which he prays. Imperfect petition, when may be filed. — Sec. 3. When the claimant cannot state his case with the requisite particularity with- out an examination of papers in one of the executive departments, and has been unable to obtain a sufficient examination of such papers on application, he may file a petition stating his claim as far as is in his power, and specifying as definitely as he can the papers he requires in order to enable him to state his claim. The court will thereupon call upon the proper department for such information or ■ papers as it may deem necessary ; and when the same are furnished, the petition may be amended, and the amended petition shall be printed and filed, and may take the place of the original petition. RULES OF COURT OF CLAIMS. 595 Appointment of executor, etc., how proved. — Sec. 4. If the claimant be an executor, administrator, guardian or other represent- ative appointed by a judicial tribunal, a duly-authenticated copy of the record of the appointment must be filed with the petition at the commencement of the action. Acts and regulations to be specified. — See. 5. If the claim be founded upon an act of Congress or upon a regulation of an executive department, the act and the section thereof upon which the claimant relies must be specified, and the particular regulation of the department must be stated in terms. Contracts, how stated. — Sec. 6. If the claim be founded upon an express contract with the United States, such contract must be set forth in the petition, and, if it be in writing, must be annexed thereto. If it be founded upon an implied contract, the circum- stances upon which the claimant relies to prove a contract must be specified. If it consist of several matters or items, each must be separately stated. Agent verifying petition must have power op attorney. — Sec. 7. If the petition be verified by the attorney at law or other agent of the claimant, a power of attorney authorizing him to make the verification must be filed with it. Amendment of petition. — See. 8. If a claimant desire to amend his petition at any time, he must set forth in his motion the specific amendments desired. If the motion be allowed, he must within twenty days thereafter file a copy of the petition, with the amend- ments properly incorporated therein, unless the court order other- wise. Death of claimant. — See. 9. If the claimant die pending the suit, his death may be suggested on the record, and his proper rep- resentative may, on motion, and on filing a duly-authenticated copy of the record of his appointment as executor or administrator, be admitted to prosecute the suit. Article III. — Pleas. When pleas must be filed. — Sec. 1. Demurrers to petitions and general traverses thereof must be filed within two months after the filing of the petition ; and pleas averring special defence, set-off or counter-claim, within one month after the claimant places his case on the notice-book. 596 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Grounds of demurrer. — See. 2. When the Attorney-General demurs to the petition, he must set forth the grounds of the de- murrer specially ; but if the ground be that the petition does not allege facts sufficient to constitute a cause of action, that objection may be stated generally. Replication to set-off, etc. — See. 3. Within one month after the filing of a set-off or counter-claim by the defendants, the claim- ant must answer the same by replication under oath ; in default whereof the court may, after ten days' notice by the defendants to the claimant, order that the set-off or counter-claim be considered as admitted. Plea of fraud. — Sec. 4. When the Attorney-General pleads, under section 1086 of the Revised Statutes, that the claimant has practiced or attempted to practice fraud, he shall set forth the facts with sufficient particularity to enable the claimant to answer the same in detail ; and the claimant shall, within two months after the filing of said plea, reply to the same with like particularity, under oath. Article IV. — Motions. Motions to be first heard at chambers. — See. 1. Motions will be heard in the first instance before a judge at chambers ; but he may direct the same to be heard in open court. They must come to him through the clerk's office, and, when acted upon, will be re- turned there by him. Form of motions. — See. 2. Motions must be in writing, signed by the attorney of record, and must give the title and number of the case and the term at which they are made ; and in no case shall the clerk enter the motion unless this rule be complied with. When orders to be entered of record. — Sec. 3. No order will be entered by the clerk unless it be directed from the bench, or be reduced to writing and marked "allowed" by the Chief Justice or one of the judges. Papers to be indorsed before filing. — Sec. 4. The clerk will not file any paper unless it be properly indorsed with the title and number of the suit and the name of the attorney filing it. Article V. — Service of Notices. Service made through clerk's office ; computation of time. — Sec. 1. Parties filing petitions, pleadings and motions, ex- RULES OF COURT OF CLAIMS. 597 cept motions for calls on departments, must at the same time leave with the clerk written notice thereof, addressed to the attorney of the adverse party, with postage prepaid, and the clerk will mail the same and note the fact on the general docket. All other notices to adverse parties may be served in like manner. The clerk's entry on his docket will be prima facie evidence of the service. In the computation of time the day of the service will be excluded, and the day on which a party is required to appear, or on which an act is required to be done, will be included. Article VI. — Witnesses. Evidence may be taken before issue joined. — Sec. 1. When a petition is filed, either party may proceed to take testimony, not- withstanding that issue of fact has not been joined or that issue on demurrer may be pending. Testimony to be in depositions ; officers who may take DEPOSITIONS. — Sec. 2. Unless the court order a witness to testify orally on the trial, the evidence of witnesses must be by deposition, taken either before a commissioner of the court, or a judge of a court of the United States, or a judge of a court of record in a state or territory of the United States, or a commissioner appointed by a circuit court of the United States, or a notary public. When depositions may be taken before a judge of this COURT. — Sec. 3. When a witness can be conveniently examined be- fore a judge of this court, either party, at any time prior to the ex- amination, may move for an order directing that his deposition be so taken. Proceedings against witness in contempt. — Sec. 4. If a wit- ness, having been duly summoned and his fees tendered him, shall fail or refuse to appear and testify before any officer authorized to take his testimony, a rule upon him will be issued by the court, on motion, to show cause why a fine should not be imposed upon him ; and if he fail to show sufficient cause, he shall be fined not exceed- ing one hundred dollars. Fees of witnesses. — Sec. 5. The fees of witnesses shall be such as are now or may hereafter be prescribed by Congress, and shall be paid by the party at whose instance the witnesses appear. Witness may be examined in court. — Sec. 6. The court may remand any case to the docket and order a witness or a claimant to 598 FEDERAL PLEADING, PRACTICE AND PROCEDURE. be produced before the court or one of the judges thereof for ex- amination. Article VII. — Depositions on Written Interrogatories. Depositions in foreign countries. — Sec. 1. Depositions ob- tained in foreign countries must be taken on written interrogatories, sent out under a special commission issued by the clerk. Deposi- tions may be taken in like manner within the United States, by con- sent of parties, or when authorized by the court or by a judge in vacation. The written interrogatories must be filed in the clerk's office and notice thereof given to the adverse party. Within fifteen days after such notice, the adverse party may file objections to any of the interrogatories, specifically stating the grounds of objection ; and may either file cross-interrogatories, or a notice that he will cross-examine the witnesses orally ; which notice shall be attached to and sent out with the special commission. If he file cross-inter- rogatories, the other party may, within fifteen days thereafter, file objections thereto, specifically stating the grounds of objection. No objections to an interrogatory or a cross-interrogatory will be considered at the trial unless taken before the commission issues. Parties not to be present at taking. — Sec. 2. When a dis- position is taken upon written interrogatories and written cross- interrogatories, neither the Attorney-General, nor the claimant, his agent or attorney, nor any other person, shall be present at the examination of the witness ; which fact shall be certified by the officer taking the deposition ; who shall, in such cases, propound the interrogatories and cross-interrooratories to the witness in their order, and reduce his answers to writing as nearly as practicable in his precise words. Article VIII. — Depositions on Oral Examination. • Notice for taking depositions on oral examination. — Sec. 1. The party proposing to take depositions on oral examination shall cause fifteen days' notice to be given thereof to the other party. The notice must be in writing, and state the names of the witnesses to be examined, the day of the month, the hour, and the place of taking the deposition. When the claimant proposes to take a deposition, and the witness resides more than five hundred miles from Washington, or when the defendants propose to take the RULES OF COURT OF CLAIMS. 599 deposition, and the witness resides more than five hundred miles from the claimant or his attorney, one day's further notice shall be given for every additional hundred miles. Notice when deposition is to be taken in Washington. — Sec. 2. If the claimant proposes to take a deposition in the city of Washington, three days' notice shall be sufficient ; and a like notice by the defendants shall be sufficient when the claimants' attorney resides in the city of Washington. Questions and answers to be recorded. — See. 8. When a deposition is taken by oral examination, each question propounded to the witness must be recorded, and his answers must be taken down, as nearly as may be, in his own words. Objections to questions. — Sec. 4. No general objection to any question shall be noticed by the officer; but where an objection is made on sp'ecifically stated grounds, the officer shall record the same in direct connection with the question objected to. When witnesses not named in the notice may be examined. — Sec. 5. When depositions are taken on notice, as provided in section 1 of this article, if both parties are present or represented at the time and place specified in the notice, either party may, after the examination of the witnesses produced under the notice, be entitled to produce and examine other witnesses; but in order thereto one day's notice must be given to the adverse party, or his attorney, there present. Article IX. — General Provisions as to Depositions. Of the oath; general interrogatories. — Sec. 1. Witnesses must be sworn or affirmed, before any questions are put to them, to tell the truth, the whole truth, and nothing but the truth, relative to the cause in which they are to testify ; and each witness shall then state his name, his occupation, his age if under twenty-one years, his place of residence ; whether he has any, and if any, what, interest, direct or indirect, in the claim which is the subject of in- quiry ; and whether, and in what degree, he is related to the claim- ant. At the conclusion of the deposition, the witness shall state whether he knows of any other matter relative to the claim in ques- tion ; and if he do, he shall state it. The testimony of the witness when completed shall be read over to him, and be signed by him in the presence of the officer. 600 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Sheets of depositions, how put together. — Sec. 2. The oflBcer should so connect the sheets of the deposition that they can- not be tampered with, and should return them sealed together. He should sign, and make the witness sign, each sheet; and generally he should spare so pains to return to the court the exact evidence he has taken. All exhibits should be carefully marked so as to be capable of immediate identification, and, when practicable, should be attached to the deposition under seal. Caption of deposition. — Sec. 8. The officer must state, in the caption of the deposition, the cause in which it was taken, the place and date of taking, the name of the witness, the party by whom called, and the names of the parties and counsel present. And in the body of the deposition must also be shown by whom the witness was examined and cross-examined. What the officer's return must show. — Sec. 4. In his return the officer must show that the witness was properly sworn or affirmed, and that the answers were taken down in his presence, and read over to and signed by the witness. Return of deposition. — Sec. 5. The officer must inclose the commission, depositions and exhibits in a packet, under his seal, and direct the same to the clerk of the court at Washington, and deposit the packet in the post-office, or in an express-office, or he may transmit the same by a messenger, whose name shall be by him indorsed on the packet. Officer's fees to be paid before opening the deposition. — Sec. 6. If the officer's fees be not paid at the time of taking the deposition, he should indorse on the outside of the packet the gross amount of his fees and disbursements, and inclose inside a detailed statement thereof. The packet must not be opened until the party for whom the depositions were taken deposits with the clerk the amount indorsed thereon. The clerk will then open the packet, and tax the officer's charges at the rates hereinafter provided, and will immediately transmit to him the amount taxed, returning the overplus, if any, to the party. The money will be transmitted by draft or registered letter, and the clerk will retain his vouchers therefor. Fee list. — Sec. 7. The fees shall be three dollars a day for at- tending to take the depositions, and twenty cents a folio of one hundred words for taking and returning it ; but this per diem al- RULES OF COURT OF CLAIMS. 601 lowance is limited to one day for a deposition or series of deposi- tions taken in the same case. Short-hand reporters, acting as special commissioners, will receive, in addition to these fees, ten cents a folio for writing out the deposition from their notes. Excessive charges. — Sec. 8. Any permanent commissioner charging in excess of the prescribed fees, except under a previous written agreement with the parties, will be deemed guilty of im- proper and illegal conduct, and his commission will be revoked. Objections to notice, forms, etc.; when to be made. — Sec. 9. Objections to the notice, or the form and manner of taking or returning the testimony, must be made in writing, and filed within one month after notice of the filing of the deposition, or they will be considered as waived. Article X. — Evidence Certified from the Departments. Attorney-General may give in evidence certified papers. — Sec. 1. The Attorney-General may offer in evidence properly-cer- tified information and papers from any executive department, with- out calling for the same under the provisions of section 1076 of the Revised Statutes. A call for such information and papers will be made at a claimant's request, on the approval of a judge in chambers. On the receipt of an answer to the call, the clerk will notify the claimant's counsel and the Attorney-General by post. Objections to papers, etc., avhen to be made. — Sec. 2. All information or papers furnished by an executive department in re- sponse to a call, or through the Attorney-General, is subject to objection by either party according to the rules of evidence at the common law ; but neither party will be required to produce the originals of such papers, or to prove their execution, unless within one month after the return is filed the party objecting to such papers enter of record in the clerk's office a written denial of their genuineness. Official character of officer, when to be proved. — Sec. 3. Whenever it is charged in a petition that a contract has been made or other liability incurred through an oflScer or agent of the United States, other than the head of an executive department or the chief of a bureau, the claimant will be required to prove that such person was an officer or an agent of the United States, by the cer- 602 FEDERAL PLEADING, PRACTICE AND PROCEDURE. tificate of the proper executive department, or by other legal and sufficient evidence. Official papers filed in one cause may be used in an- other. — Sec. 4. Any information or papers certified from any executive department, and filed in any cause, may be used and applied in any other pending cause to which the same may be ap- plicable or pertinent. To entitle such information or papers to be so used, copies thereof must be filed in such other cause before the same shall have been placed on the trial docket. Article XL — Production of Original Papers by the Claimant. Order for production of papers by claimants. — Sec. 1. The court may, at the instance of the Attorney-General, order any claimant, his agent or attorney, to produce in court, or before any officer authorized to take depositions, any letters, papers, deeds, documents or other writings in his possession or subject to his control, in any way relating to the claim sued upon ; and any claimant, his agent or attorney, who, after due notice, refuses to produce such letters, papers, deeds, documents or other writings, when in his power to do so, shall be subject to attachment for contempt; and if he persist in such refusal, the court will direct the petition to be dismissed. Article XII. — Briefs and Requests for Findings of Fact. Close of claimant's proof. — Sec. 1. The claimant may at any time give notice to the Attorn ey-Greneral that his proof is closed, by an entry to that effect in the notice-book in the clerk's office. If the Attorney-General shall not within two months thereafter file a request for further time to take proof, the claimant may, at any time after the expiration of that period, have the case placed on the trial list. Printed copies of claimant's brief and requests for find- ings to be filed. — Sec. 2. 'The clerk shall not place a case on the trial list until the claimant files in the clerk's office twenty-five printed copies of a brief stating the points of law on which he relies, with references to authorities, and twenty -five printed copies of the request for facts required by Rule 5 of the " Regulations RULES OF COURT OF CLAIMS. 603 prescribed by the Supreme Court of the United States under which appeals may be taken from the Court of Claims." Forms of requests for findings. — Sec. 3. Such request must be in the following terms : " The claimant, considering the facts hereinafter set forth to he proven, and deeming them material to the due presentation of this case in the findings of fact, requests the court to find the same, as follows.'^ Following this request must be a statement, in the form of dis- tinct numbered propositions, of the facts which the party desires to have found ; and each proposition must be so prepared, with respect to its length, subject and phraseology, that the court may conveniently pass upon it ; and they must be so arranged as to present a concise statement, in orderly and logical sequence, of the Avhole case, as the party desires it to appear in the findings of fact. Subjoined to each proposition must be references to the pages of the record containing the evidence relied on in its support; but no evidence must be set out. Documents which may enter into the findings of fact need not be presented in the statement, but may be referred to therein by the pages of the record. Defendant's brief and request. — Sec. 4. The Attorney- General, within one month after the filing of the claimant's brief and request, must file his brief and request for findings of fact, and should indicate the requests on the claimant's part to which no objection is made. Such request must be in form and substance like that required of the claimant by the next preceding section. When Attorney-General may put case on the trial list. — Sec. 5. If the claimant neglect, for two years after filing his peti- tion, to close his proof and give notice to the Attorney-General, as required by section 1 of this article, the defendants may place the case on the trial list. Article XII. — Trials and other Proceedings in Court. When case to be held ready for trial. — Sec. 1. When the defendant's brief and request are filed the case will be considered as ready for trial, and, when reached, "a continuance will not be ordered, except by consent of parties, or for good cause shown. Trial docket. — Sec. 2. The trial docket will be made up monthly. Cases will go upon it in the order in which notices of trial have been filed. 604 FEDERAL PLEADING, PRACTICE AND PROCEDURE. When trial docket to be called. — Sec. 3. The peremptory call of the trial docket will begin on the Tuesday after the first Monday of each month during the term. Case may be set down for non-resident counsel. — Sec. 4. Cases in which counsel reside at a distance may be set down once during a term for a day certain, with the consent of the Attorney- General, without regard to their position upon the trial docket. Record to be made up in book form. — Sec. 5. No case will be heard for trial unless the printed pleadings, evidence and briefs be made up in book form together and paged consecutively, and a copy thereof furnished to each member of the court at the hearing ; and all citations from or references to such pleadings, evidence and briefs must be by the consecutive p;iging of such book. Table of contents. — Sec. 6. When, in any case, the record shall be made up in book form, as required in the next preceding section, the chief clerk shall make, cause to be printed, and prefix to each copy of the record so made up, a table of the contents thereof, with references to the page where each document and each piece of evidence may be found. Law docket. — Sec. 7. The law docket will be taken up on Mon- day of each week during the term. Article XIV. — Printing. Depositions, how to be printed. — Sec. 1. The testimony and briefs will be printed. In printing the testimony, the notices and the officers' captions and certificates will be omitted ; but to each deposition there must be prefixed a title in the following form : Depositio7i of for claimant, [or defendant, as the case may be] taken at , on the dai/ of , 18 ; claimant's counsel^ ; defendants' counsel, . Calls on departments to be printed. — Sec. 2. Where an answer of a department is printed as evidence, the call for the same must be printed therewith. Matter not to be printed. — Sec. 3. Before printing a return made to a call on a department, the chief clerk will withhold from the copy for the printer, 1st, all papers of which copies have been previously printed in the record of the case ; and for this purpose he will compare the two copies, and if variations are found he will take the directions of a judge in chambers before sending the re- RULES OF COURT OF CLAIMS. 605 turn to the printer ; 2d, all certificates of authenticity and certifi- cates of acknowledgment ; 3d, all papers which both parties agree to omit ; 4th, all papers which a judge in chambers orders to be omitted. In each case the chief clerk will make a memorandum of the omission in the copy for the printer, verified by his initials. Objections to printing. — Sec. 4. If the claimant objects to printing information or papers so returned, and the Attorney-Gen- eral requests to have the same printed, the clerk will note a mem- orandum of such request in the copy for the printer, with his initials attached ; and when such information or papers are printed, the same will be regarded as evidence oifered on the part of the defence. All information and papers transmitted from a depart- ment in reply to a claimant's call, and not thus objected to by him within ten days after return of the call, will be regarded as evidence offered by the claimant. Type and size of page. — Sec. 5. The printed papers required by these rules must be in long primer type and in royal octavo pages, and the style and number of the case must be prefixed to all piinted papers and to records of evidence. A table of contents, with page references, must also be prefixed. Depositions, etc., not to be taken from clerk's office. — Sec. 6. No deposition, return or record on file shall be taken from the custody of the clerk by a claimant or his attorney, but either may attend at the clerk's olfice, and prepare his evidence for the press in the form and manner before prescribed. When the evi- dence is complete and ready for the printer, the chief clerk will have it printed at the Public Printing Office. Article XV. — Limitation. When petition may be dismissed on bar of six years. — Sec. 1. If it appear on the face of the petition that the claim first accrued more than six years before the petition was filed, the claim- ant must aver therein the existence and period of duration of some disability, recognized by law, which prevented his filing his petition within that time ; in default whereof, it will be considered that no such disability existed, and the petition may be dismissed on motion. When petition may be dismissed on bar of three years. — Sec. 2. If the claimant, in avoidance of the bar of limitation, aver in his petition the existence and duration of any such disability. 606 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and it thereby appears that, after the disability ended, more than three years had elapsed before the petition was filed, the petition may be dismissed on motion. If petition does not show when claim accrued, it must be MADE CERTAIN. — See. 3. If upon the face of the petition it does not appear when the claim first accrued, the court may require the claimant to make the petition definite and certain in that regard, and in default thereof may dismiss the suit. Averments as to time claim accrued put in issue by gen- eral TRAVERSE. — Sec. 4. Averments in regard to the time when a claim first accrued, or in regard to an alleged disability of the claim- ant, will be held to be put in issue by the defendants' general traverse. Article XVI. — Discontinuance. No discontinuance when fraud or set-off is pleaded. — See. 1. Where fraud or set-oiF is pleaded, the claimant shall not, without leave of the court, discontinue his suit. In other cases he may do so, either in open court, or, with the approval of a judge, in vacation. Article XVII. — New Trial. New trial ; when not to be granted. — Sec. 1. A new trial will not be granted where, upon the whole case, justice has been done between the parties and the judgment is substantially right, although there may have been some mistakes committed at the trial. Grounds of motion by claimant for new trial. — Sec. 2. A motion by a claimant for a new trial may be founded upon one or more of the following grounds : 1st. Error of fact ; 2d. Error of law ; and 3d. Newly-discovered evidence. It must be made at the term in which the judgment is rendered, and before the commence- ment of the long vacation. Motion founded on error of fact ; what to specify. — Sec. 3. A motion founded upon an error of fact must specify with minuteness the fact or facts which are regarded as erroneously found or erroneously omitted to be found by the court, with full reference to the evidence which is relied on to support the motion. Motion founded on error of law ; what to specify. — Sec. 4. A motion founded upon error of law must specify with like RULES OF COURT OF CLAIMS. 607 minuteness the points upon ■which the court is supposed to have erred, with references to the authorities relied upon to support the motion. Motion founded on newly-discovered evidence. — Sec. 5. A motion upon the ground of newly-discovered evidence will not be entertained unless it appear that the newly-discovered evidence came to the knowledge of the claimant or his attorney after the trial and before the motion was made ; that it was not for want of due diligence that it did not sooner come to his knowledge; that it is so material that it would probably produce a different judgment if the new trial were granted; and that it is not cumulative. Such motion must be accompanied by the affidavit of the claimant or his attorney of record, setting forth — 1st. The facts in detail which the claimant expects to be able to prove, and whether the same are to be proved by witnesses or by documentary evidence. 2d. The name, occupation and residence of each and every wit- ness whom it is proposed to call to prove said facts. 3d. That the said facts were unknown to either the claimant or his attorney of record, and, if other counsel was employed at the trial, were unknown to such counsel until after the close of the trial. 4th. The reasons why the claimant and his attorney of record and his said counsel could not have discovered said evidence before the trial, if due diligence had been used. When argument to be ordered. — Sec. 6. If the court desires to hear argument upon a motion by a claimant for a new trial, the motion will be ordered to the law docket ; otherwise decision will be announced from the bench without hearing. Article XVIIL — Appeals. Application for appeal; how made. — Sec. 1. Application for appeal to the Supreme Court of the United States from any judg- ment or decree of this court must be in writing, and signed by the claimant or his attorney of record, if the appeal be on his behalf; or, if taken by the United States, it must be signed by the Attor- ney-General or his assistant. To BE filed in clerk's office, when. — Sec. 2. Such applica- tion, if made when the court is not in session, must be filed with 608 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the clerk, and the date of filing the same must be indorsed upon it g,nd noted upon the general docket. Article XIX. — Clerk's Office. Hours of clerk's office. — See. 1. During term time the clerk's ofiice must be kept open every day, except Sundays and holidays, from 9| A. M. to 4 P. M., or to such later hour as the court may be in session or in conference. During the Christmas holidays, the office may be closed at 1 p. m., and in vacation at 3 P. M. Attendance of clerks. — See. 2. When the court is in session, both the chief clerk and the assistant clerk will be at the office during office hours. In vacation they may arrange their hours to suit each other and the public business. Duties of chief clerk. — See. 3. The chief clerk will have charge of the journal of the court, of the law and trial dockets, of the printing, and of the preparation of the tables of contents of the records of each case ; and he will also prepare the annual return to Congress. Duties of assistant clerk. — Sec. 4. The assistant clerk will attend to office business, and will have charge of the general docket, the notice book, and the giving of notices under these rules. Provision for absence, — See. 5, In the absence of the chief or the assistant clerk, his duties will be temporarily performed by the other. Article XX. — Withdrawal of Papers. Withdrawal of papers. — See. 1. Papers shall not be with- drawn from the files except on motion for good cause shown, and upon such terms as the court or a judge may order. Article XXI. — Extension of Time. Extension of time. — See. 1. The time named in these rules for the doing of any act may be extended on motion for good cause shown. EULES OF COURT OF CLAIMS. ' 609 Regulations prescribed by the Supreme Court of the United States under which appeals may be taken from the Court of Claims. Rule 1. Record on which appeals are heard in Supreme Court. — In all cases hereafter decided in the Court of Claims, in which, by the act of Congress, such appeals are allowable, they shall be heard in the Supreme Court upon the following record, and none other : Transcript of pleadings, etc. — 1. A transcript of the plead- ings in the case, of the final judgment or decree of the court, and of such interlocutory orders, rulings, judgments and decrees as may be necessary to a proper review of the case. Finding of fact and conclusions of law. — 2. A finding by the Court of Claims of the facts in the case, established by the evidence, in the nature of a special verdict, but not the evidence establishing them ; and a separate statement of the conclusions * of law upon said facts on which the court founds its judgment or decree. The finding of facts and conclusions of law to be certified to this court as part of the record. Rule 2. [Now obsolete.] Rule 3. Application for appeals stops limitation from running; TO BE ALLOWED BY THE COURT OR Chief Justice. — In all cases an order of allowance of appeal by the Court of Claims, or the Chief Justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal. Rule 4. Findings of fact and conclusions of law to be filed by court. — In all cases in which either party is entitled to ap- peal to the Supreme Court, the Court of Claims shall make and file th'eir findings of facts and their conclusions of law therein 39 610 FEDERAL PLEADING, PRACTICE AND PROCEDURE. in open court, before or at the time they enter judgment in the case. Rule 5. Parties before trial to submit request to find facts. — In every such case, each party, at such time before trial, and in such form, as the court may prescribe, shall submit to it a request to find all the facts which the party considers proven and deems ma- terial to the due presentation of the case in the finding of facts. FORMS. CAPTION AND TITLE OF SUIT AND JURISDICTIONAL CLAUSE IN SUITS AT LAW OR IN EQUITY. Form No. 1. Caption and title of cause. Circuit [or district] court of the United States, for the district of . Of term in the year A. B. ^ V. V At law. C. D. j [Or in equity, or in admiralty.] Form No. 2. Jurisdictional clause in a suit by a citizen of the United States against an alien. A. B., who is a citizen of the state of , sues [or com- plains of] C. D., who is a subject [or citizen] of , and an alien, for that, etc. Form No. 3. Jurisdictional clause in a suit by an alien against a citizen of the United States. A. B., who is a subject of the king [or emperor] of , and an alien, sues [or complains of] C. D., who is a citizen of the state of , for that, etc. 612 federal pleading, practice and procedure. Form No. 4. Jurisdictional clause in a suit by a citizen of one state against a citizen of another. A. B., who is a citizen of the state of , sues [or com- plains of] C. D., who is a citizen of the state of , for that, etc. Form No. 5. Jurisdictional clause in suits by a corporation. The [giving the name of the corporation] citizen of the state of , and incorporated by the laws of said state, and having its principal place of business therein, sues [or complains of] C. D., a citizen of the state of , etc. Form No. 6. Jurisdictional clause in suits against a corporation. A. B., a citizen of the state of , sues [or complains of] , a corporation, organized and constituted by that name, by the laws of the state of , and- having their principal place of business in said state, defendant, for that, etc. Form No. 7. Commencement of declaration by the United States. [Caption and title of cause as in Form Xo. 1.] The United States by , their attorney for the district of , sue, etc. Form No. 8. Caption and title of a cause in the Supreme Court. In the Supreme Court of the United States. A. B., complainant, ^ V. y In equity. C. D., defendant, J [Or at law.] forms of declarations. 613 Form No. 9. Jurisdictional clause in the Supreme Court in case of a controversy bet-w^een states in reference to boundary. [Caption and title of cause as in Form No. 8.] The state of , by A. B., her agent and attorney, duly appointed and commissioned in pursuance of law, complains and states that a controversy has arisen between said state and the state of respecting the boundary between said states ; and the said state of complains, etc. FORMS OF DECLARATIONS. Form No. 10. Declaration on common counts in assumpsit. [Title of cause and jurisdictional clause as in No. 1 and No. 2, 3 or 4.] For that the defendant is indebted to the plaintiff for goods sold and delivered by the plaintiff to the defendant, on the of ,18 . [Or for work and labor done and materials pro- vided by the plaintiff for the defendant at his request; or for money lent by the plaintiff to the defendant ; or for money paid by the plaintiff to the defendant at his request ; or for money received by the defendant for the use of the plaintiff; or for money found due from the defendant to the plaintiff on accounts stated be- tween them] and for which the defendant promised to pay the plaintiff the sum of $ , but which he has wholly failed and neglected to do. "Wherefore the plaintiff claims judgment against the defendant for the sum of $ , besides costs. Form No. 11. Declaration by the payee against the maker of a promissory note. [Caption and title of cause as in No. 1, and jurisdictional clause as in No. 2, 3 or 4.] For that whereas the said C. D., defendant, on the day of , 18 , made his certain note in Avriting, commonly called a promissory note, his own proper hand being thereto sub- 614 FEDERAL PLEADING, PRACTICE AND PROCEDURE. scribed, bearing date the day and year last aforesaid, and then and there delivered the said note to A. B., the plaintiff, by which said note the defendant then and there promised to pay to the plaintiff, or his order, 6 months after the date thereof, the sum of $ , for value received.^ Nevertheless the said defendant, not regarding his said promise and undertaking, hath not paid the said sum of money, or any part thereof, to the said plaintiff, although often re- quested so to do ; but the said defendant to pay him the same hath hitherto wholly neglected and refused and still doth neglect and refuse to the plaintiff of , and therefore he brings suit, etc. G. F., Attorney for plaintiff. Form No. 12. Declaration by an endorsee of a promissory note, against the maker. [Caption, title and jurisdictional clause same as in last number.] For that whereas the said C. D. on the day of , 18 , at , made his certain note in writing, commonly called a promissory note, his own proper hand being thereto sub- scribed, bearing date the day and year last aforesaid, and then and there delivered the said note to one E. F., and by which said note he, the said C. D., then and there promised to pay, one year after the date thereof, to the said E. F. or order, the sum of $ for value received; and the said E. F., to whom or whose order the payment of the said money, in the said note specified, was by the said note to be made, after the making of said note and before the payment of the said money in said note specified, to wit, on the day of , 18 , at , indorsed the said note, his own proper hand being to such indorsement subscribed, by which said indorsement he, the said E. F., then and there or- dered and appointed the said sum of money in the said note speci- fied to be paid to the said A. B., plaintiff, and then and there delivered the said note, so endorsed as aforesaid, to the said A. B. ; by means whereof the said defendant then and there became liable to pay to the said plaintiff the said sum of money in the said note specified, according to the tenor and effect thereof. Nevertheless, the said defendant, not regarding his said promise and undertaking, ^ See next form. FORMS OF DECLARATIONS. 615 hath not paid the said sum of money, or any part thereof, to the said plaintiff, although often requested so to do, but the said defend- ant to pay him the same hath hitherto wholly neglected and refused and still doth neglect and refuse, to the damage of the said plaintiff of $ , and therefore he brings suit. G. H., Attorney for plaintiff. Form No. 13. Declaration in debt for a penalty. [Caption, title and jurisdictional clause as in last form.] For that whereas, to wit, on the day of , 18 , and since the enactment and approval of an act of the Congress of the United States, entitled [give the title], the said defendant [here state the facts constituting the offence], contrary to the form of the statute of the United States aforesaid, whereby the said defendant forfeited and became liable to pay for the said offence, to the plain- tiff, being the party aggrieved thereby, the sum of dollars penalty as aforesaid, and thereby, and by force of the statute afore- said, a right of action hath accrued to the plaintiff to recover of and from the defendant the said sum of dollars so forfeited as aforesaid. Form No. 14. Declaration in debt by the United States for a penalty. [Caption and title as in Forms No. 1 and No. 7.] The United States of America, plaintiff, by G. F., their district attorney, complain of C. D., the defendant — For that heretofore, to wit, on the day of , A. D. 18 , at , in the county of , in the district of , and within the jurisdiction of this court, the defendant made, executed and delivered to one his draft on the First National Bank of , a bank constituted under the laws of the United States, for the sum of five hundred dollars, payable on demand to the said or order, without having the same duly stamped, or having thereon an adhesive stamp for denoting the duty chargeable thereon by law, to wit, a stamp of two cents, or any stamp, contrary to and with intent to evade the provisions of the 1 616 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Statutes of the United States in such case made and provided. Whereby, and by virtue of section 3422 of the Revised Statutes of the United States, an action hath accrued to the United States, and the said defendant has forfeited and become liable to pay the sum of fifty dollars. Wherefore the plaintiff demands judgment herein against the said for the sum of fifty dollars besides costs. G. F., District Attorney for the district. Form No. 15. Declaration in debt, on a bond. [Title as in Form No. 1, with jurisdictional clause.] For that whereas the said defendants heretofore, to wit, on the day of , 18 , at the of , in the district aforesaid, by their certain bond and writing obligatory, bearing date the day and year last aforesaid, sealed with the seals of the said defendants, which said bond and writing obligatory the said plaintiff now brings here into court and shows to the said court, acknowledged themselves to be firmly bound unto the said plaintiff in the full and just sum of dollars, for the payment of which the said defendants bound themselves, their heirs, executors and administrators, jointly and severally, firmly by these presents. The plaintiff further says that the said bond and writing oblig- atory was and is subject to a certain condition thereunder written, whereby, after reciting to the effect following, to wit, that [here set out the recitals of the bond] it is provided that [here set out the condition of the bond] then the said obligation to be void, other- wise to remain in full force and virtue, as by the said bond and writing obligatory will more fully appear. And the said plaintiff, for assigning a breach of the condition of said bond and writing obligatory, in fact says that after the making of said bond and writing obligatory, to wit, on the day of ,18 , at aforesaid, the said defendants [here state the breach]. By means of which, said several premises the said writing oblig- atory became forfeited, and the said plaintiff has sustained damages to a large amount, to wit, to the amount of dollars, and FORMS OF DECLARATIONS. 617 thereby an action hath accrued to the said plaintiff to demand and have of and from said defendants the sum of dollars, where- fore he brinors this suit, etc. Form No. 16. Declaration for damages for violating a patent right. [Caption and title as in Form No. 1.] For that whereas the said plaintiff was the original inventor of a certain new and useful improvement, in the letters patent herein- after mentioned and fully described, the same being a certain im- provement in a steam engine, and in the mode of propelling there- with either vessels on the water or carriages on the land, which was not known or used before his said invention, and which was not, at the time of his application for a patent, as hereinafter mentioned, in public use with his consent or allowance. And the said plaintiff being so as aforesaid the inventor thereof, and being also a citizen of the United States, on the eighth day of March, one thousand eight hundred and thirty-four, upon due application therefor, did obtain certain letters patent therefor, in due form of law, under the seal of the United States, signed by Andrew Jackson, then Presi- dent, and countersigned by Louis McLane, then Secretary of State, bearing date the day and year aforesaid, whereby then was secured to him, the said plaintiff, his heirs, executors, administrators or assigns, for the term of fourteen years from and after the* date of the said patent, the exclusive right and liberty of making, using and vending to others to be used the said improvement, as by the said letters patent in court to be produced will fully appear. And the said plaintiff further says that the said defendant, well knowing the said several premises, but contriving and wrongfully and injuriously intending to injure the plaintiff, and deprive him of the profits, benefits and advantages which he might and otherwise would have derived and acquired from the making, using and vend- ing of the said invention or improvement, after the making and issuing of the said letters patent, and within the term of fourteen years in said letters patent mentioned, to wit, on the first day of January, eighteen hundred and forty, and on divers other days and times between that time and the commencment of this suit, at the city of New York, and within the southern district of New York, C18 FEDERAL PLEADING, PRACTICE AND PROCEDURE. wrongfully and unjustly, without the leave or license and against the will of the plaintiff, made and sold divers, to wit, ten machines for propelling boats, in imitation of the said invention and improve- ment, or a part of the said invention or improvement, to the benefit, use and enjoyment whereof the said plaintiff was and is entitled as aforesaid, in violation and infringement of the said letters patent, and of the exclusive right and privilege to which the plaintiff was and is entitled as aforesaid, and contrary to the form of the statutes of the United States in such case made and provided. And the said plaintiff further says that the said defendant, well knowing the said several premises, but further contriving and in- tending as aforesaid, after the obtaining of the said letters patent by the said plaintiff as aforesaid, and within the said term of fourteen years, to wit, on the said first day of January, eighteen hundred and forty, and at divers other times between that day and the commence- ment of this suit, within the southern district of New York afore- said, wrongfully and unjustly, without the leave or license and against the will of the plaintiff, did make and sell divers, to wit, ten improved machines for propelling boats or vessels upon the water, constructed in a similar form and acting upon the same prin- ciple as the said machine or improvement, to the benefit, use and enjoyment whereof the said plaintiff was and is entitled by his said letters patent, as aforesaid, in violation and infringement of the exclusive right so secured to the said plaintiff by the said letters patent as aforesaid, and contrary to the form of the statute in such case made and provided. And the said plaintiff further says that the said defendant, well knowing the said several premises, but contriving and intending as aforesaid, after the obtaining of the said letters patent by the said plaintiff as aforesaid, and within the said term of fourteen years, to wit, on the said first day of January, eighteen hundred and forty, and at divers other times between that day and the commencement of this suit, in the southern district of New York aforesaid, wrongfully and unjustly, and without the consent or allowance and against the will of the plaintiff, did imitate in part and make a certain addi- tion to the invention or improvement, to the benefit, use and enjoyment whereof the plaintiff was and is entitled as aforesaid, in breach of the said letters patent, and in violation and infringe- ment of the exclusive right and privilege so secured to the said FORMS OF DECLARATIONS. 619 plaintiff as aforesaid, and contrary to the form of the statute in such case made and provided. Bj means of the committing of which said several grievances hy the said defendant as aforesaid, the said plaintiff is greatly injured, and has lost and been deprived of divers great gains and profits which he might and otherwise would have derived from the said in- vention and improvement in the said letters patent described and set forth, and in respect whereof he was and is entitled to such privi- lege as aforesaid, and was and is otherwise damnified to the damage of the said plaintiff" of ten thousand dollars, and therefore, etc. Form No. 17. Declaration on the case. [Caption and title as in Form No. 1, with proper jurisdictional clause.] A. B., being a citizen of the United States of America, and a resident of , plaintiff in this suit, by G. F., his attorney, complains of C. D., defendant , of the said district, of a plea of trespass on the case. The plaintiff states that J. L. and L. H., of the town of , in the county of and state of , and in said district, before and at the time of the making of the letters patent, and of the committing of the grievances by the said C. D. as hereinafter mentioned , were the true, original and first inventors of a certain new and useful improvement in , which was not known nor used before such invention or discovery as aforesaid, and was not at the time of the plaintiff's application for letters patent therefor, as hereinafter mentioned, in public use or on sale, with the consent or allowance of said J. L. and L. H., or either of them; and that the said J. L. and L. H. being such original and first inventors, and being citizens of the United States, obtained for said invention letters patent of the United States in due form of law, under the seal of the Patent- OflSce, bearing date the . The plaintiff further states that the said letters patent, having been wholly assigned by the said J. L. and L. H. to him, and having been surrendered by him for being partially invalid on account of a defective specification, were cancelled and new letters ordered to issue to him on the amended specification. And the plaintiff did accordingly obtain new . letters patent for such invention in due form of law, 620 FEDERAL PLEADING, PRACTICE AND PROCEDURE. upon such amended specification, under the seal of the Patent- Office, and signed by the Secretary of the Interior, and counter- signed by the Commissioner of Patents, and bearing date the , eighteen hundred and , which said reissued letters patent did grant according to law, to the said A. B., his heirs, adminis- trators and assigns, for the term of years from the said day of , eighteen hundred and , the full and ex- clusive right and liberty of making, constructing, using and vend- ing to others to be used the said improvement, a description whereof was given in the said specification and in a certain schedule to said letters annexed and made part thereof, as by reference to said let- ters patent and the said specification thereto annexed, which the plaintifi" now brings here into court, will fully appear. And the plaintiff further says that from the time of the granting to him of the said letters patent hitherto, he has made, used and vended to others to be used the said improvement, to his great advantage and profit. Yet the said defendant, well knowing the premises, but contriving to injure the plaintiff, on the day of , eighteen "hundred and , and at divers other times before and afterwards, during the said term of years mentioned in said letters patent, and before the commencement of this suit, at , in the county of and state of , unlawfully and wrongfully, and without the consent or allowance and against the will of the plaintiff, did use, and cause to be used, the said improvement, in violation and infringement of the ex- clusive right so secured to plaintiff by said letters patent as afore- said, and contrary to the form of the statute of the United States in such case made and provided, whereby the plaintiff has been greatly injured and deprived of great profit and advantage, which he otherwise would have derived from said improvement, and has sustained actual damage to the amount of dollars ; and by force of the statute aforesaid, an action hath accrued to him to re- cover the said actual damages, and such additional amount, not exceeding in the whole three times the amount of such actual dam- age, as the court may see fit to order and adjudge, besides costs. Yet the said defendant , though requested, hath never paid the same, or any part thereof, to the plaintiff, but has refused, and yet refuses so to do, and, therefore, the plaintiff brings this suit. G. F., Attorney and of counsel for plaintiff. FORMS OF PLEAS. 621 FORMS OF PLEAS. Form No. 18. Plea and Special Notices. [Title as in Form No. 1.] And the said defendant C. D., by G. F. his attorney, comes and defends the wrong and injury, when, etc., and says that he is not guilty of the supposed grievances above laid to his charge, or any or either or any part thereof, in manner and form as the said plain- tiif hath above thereof complained against him, and of this the said defendant puts himself upon the country, and the said plaintiff" doth the like, etc. And it is suggested to the court, now here, that the defendant gives the following notices in writing of special matter to the plain- tiff, thirty days before trial, under section 15 of the act of Congress passed July 4, 1836, entitled "An act to promote the progress of the useful arts, and to repeal all acts and parts of acts heretofore made for that purpose :" Firsts Notice of Special Matter. — Take notice that the above named defendant will prove upon the trial of this cause, in bar of the said plaintiff's action, that the said J. L. and L. H., the as- signors of the said plaintiff, were not the original or first inventors' of [here describe the patent]. And the said defendant will further prove, upon such trial as aforesaid, that the same principle was known to and had been pre- viously combined by and invented by 0. P., who resides (or resided) at , in the state of , and that the same was known to and combined by said 0. P. as early as , 1849. And the said defendant will further prove, upon said trial as aforesaid, that what is claimed in said declaration and in said let- ters patent therein mentioned, and the specifications and drawings thereto attached, as the invention of said assignors of said plaintiff named in said declaration, was substantially and in principle known to R. S., of , in the state of And the said defendant will further prove, upon said trial as aforesaid, that the thing patented in and by the letters patent was not first invented by or known to said J. L. and L. H., but the same was publicly known and used prior to the time when it is alleged in this action the same was invented by them. 622 FEDERAL PLEADING, PRACTICE AND PROCEDURE. And the defendant will prove that Q. R., who resides at , possessed such prior knowledge of the said thing mentioned as afore- said in said declaration. And that the said thing was in public use and on sale anterior to the said supposed discovery or invention thereof by said J. L. and L. H. 2d. Please take notice that, on said trial of this cause, in addi- tion to the notices already served upon you, the defendant will prove by J. S., of , and others, that they knew of the use of said thing, or substantially the same, as the alleged invention of said J. L. and L. H., and the same, or substantially the same, was used by F. L., prior to the alleged invention thereof. That the same, or substantially the same, was previously in- vented and patented November 10, 18 , by G. M. And the same was, previously to the time when it is claimed they invented or discovered the same, in public use with his consent and allowance, and upon sale with his consent and allowance, and sub- sequent to the time when it is claimed he invented or discovered the same. H. J., Attorney for defendant. Form No. 19. Plea ; general issue in assumpsit. [Title of cause as in Form No. 1.] The said C. D., by Gr. F. his attorney, comes and defends the wrong and injury when, etc. ; and says that he did not undertake and promise in the manner and form as the said A. B. hath above thereof complained against him ; and of this he puts himself upon the country, etc. G. F., Attorney for defendant. Form No. 20. Plea; general issue nil debit. • [Title as in Form No. 1.] And the said C. D., by G. F. his attorney, comes and defends the wrong and injury, when, etc., and says that he does not owe FORiMS OF PLEAS. 623 the said sum of dollars or any part thereof, in the manner and form as the said A. B. hath above thereof complained against him, and of this he puts himself upon the country, etc. G. F., Attorney for defendant. Form No. 21. In debt ; non est factum. [Title as in Form No. 1.] And the said C. D., by G. F. his attorney, comes and defends the wrongs and injuries, when, etc., and says that the supposed writing obligatory [or indenture, or articles of agreement, as the case may be] is not his deed, etc., and of this he puts himself upon the country, etc. G. F., Attorney for defendant. Form No. 21a. In debt; nil tiel record. [Title as in Form No. 1.] And the said C. D., by G. F. his attorney, comes and defends the wrong and injury, when, etc., and says, there is not any record of the said supposed recognizance [or, if the action be on a judgment, of the said supposed recovery] in the said declaration mentioned re- maining in the court aforesaid,before the said justices [or judge] thereof, in the manner and form as the said A. B. hath above, in his said declaration, alleged, and this he, the said C. D., is ready to verify, wherefore he prays judgment, if the said A. B. ought to have or maintain his aforesaid action thereof against him the said C. D., etc. G. F., Attorney for defendant. Form No. 22. In covenant. [Title as in Form No. 1.] And the said ^. D., by G. F. his attorney, comes and defends the wrong and injury, when, etc., and says that the said indenture 624 FEDERAL PLEADING, PRACTICE AND PROCEDURE. [or "articles of agreement," or "deed-poll"] is not his deed; and of this he, the said C. D., puts himself upon the country, etc. G. F., Attorney for defendant. Form No. 23. General issue in case of trover, or for the infringement or a patent- right or copyright. [Title as in Form No. 1.] And the said C. D., by G. F. his attorney, comes and defends the wrong and injury, when, etc., and says he is not guilty of the said supposed grievances above laid to his charge, in manner and form as the said A. B. hath above thereof complained against him ; and of this the said C. D. puts himself upon the country, etc. G. F., Attorney for defendant. - Form No. 24. In trespass. [Caption and title as in Form No. 1.] And that the said C. D., by G. F. his attorney, comes and de- fends the force and injury, when, etc., and says that he is not guilty of the said supposed trespass above laid to his charge, or any part thereof, in manner and form as the said A. B. hath above thereof complained against him ; and of this he puts himself upon the country. G. F., Attorney for defendant. FORMS IN EQUITY. Form No. 25. A bill to recover a legacy. [Title of suit as in Form No. 1.] In Equity. To the judges of the circuit court of the United States for the district of Massachusetts. I. W., a resident of the city of New York, and a citizen of the state of New York, an infant under the age of twenty years, by his father and next friend, T. W., a resident of the same city and a citizen of the same state, brings this his bill against E. W. and R. W., who are both residents of the city of Boston, and citizens of the state of Massachusetts. And your orator says that one T. A., of the city of Boston, being seized and possessed of a considerable real and personal estate, did, on or about the fourth of March, 1820, duly make and publish his last will and testament in writing ; and thereby, among other things, bequeathed and devised to your orator, I. W., the sum of eight hundred dollars, and appointed the above named E. W. and R. W. executors of his last will and testament ; that the said testator departed this life on or about the twentieth of Decem- ber, 1822 ; and soon after the death of the said testator, to wit, on the eighth day of January, 1823, the defendants E. W. and R. W. duly proved the said will in the probate court of the city of Boston, and took upon themselves the burden and execution thereof; and did, accordingly, possess themselves of the testator's real and personal estate, amounting to the sum of five thousand dollars and upwards. And your orator further says that he has, by his father and next friend, T. W., applied to the defendants, at various times and since his said legacy became due and payable, to pay the same for your orator's benefit ; but they have positively refused to pay or secure for your orator's benefit the aforesaid legacy or any part thereof, pretending and alleging that the estate of the said testator, 40 626 FEDERAL PLEADING, PRACTICE AND PROCEDURE. both real and personal, was iiisuflScient to discharge his just debts, and that they have exhausted the whole of the estate which has come into their hands in paying such debts ; whereas your orator charges that the estate of the testator was of the value of five thousand dollars, as hereinbefore stated, and that his debts were small and of even trifling value when estimated by that amount. And your orator charges that the said defendants converted the property of their testator to their own use, without making any satisfaction to your orator for his legacy hereinbefore mentioned. To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and ac- cording 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 writ- ten they are respectively required to answer ; that is to say — 1. Whether it is not a fact that the said T. A. did duly make and publish his last will and testament, and therein bequeath to your orator a legacy of eight hundred dollars ? 2. Whether it is not a fact that the said T. A., in his last will and testament, appointed them, the said E. W. and R. W., to be executors of the same? 3. Whether it is not a fact that the said testator died without revoking said last will and testament, but in fact leaving the same in full force ? 4. Whether it is not a fact that the said defendants, or one of them, proved the said will in the probate court of the city of Boston, in due form of law, and took upon themselves the execution thereof? 5. Whether it is not a fact that they have possessed themselves of the real and personal estate, goods, chattels and effects of the said T. A., deceased ? 6. Whether it is not a fact that assets of said testator have come into their hands more than sufficient to discharge his just debts? 7. Whether it is not a fact that they, and each of them, have refused to pay the legacy bequeathed to your orator, and that it remains wholly unpaid ? Your orator prays that the said defendants may be compelled to render a full and perfect account of the estate, goods, chattels and FORMS IN EQUITY. 627 effects of the said T. A., deceased, the value thereof, the debts due by said deceased, and to "whom they have been paid and are pay- able, the debts due to said testator, and which of them have been paid to the said executors, and all other matters and things concern- ing the condition of said real estate. And that this they may do upon their corporal oaths, to the best of their respective knowledge, information and belief. Your orator further prays that the said defendants may be com- pelled to pay the legacy of eight hundred dollars bequeathed to your orator by the testator, and that the same may be placed at interest for the benefit of your orator until he attains the age of twenty-one years, and then paid over to him. And that in the mean- time the interest thereof be paid to your orator's father, to be ap- plied by him to the support and maintenance of your orator. And that your orator may have such further or other relief as the nature of this case may require. And your orator further prays that your honors will grant unto your orator the writ of subpoena, issuing out of and under the seal of this court, to be directed to the said defendants, E. W. and R. W., commanding them and each of them by a certain day, and under a certain penalty therein named, to appear before your honors in the circuit court of , and then and there answer the premises, and abide the order and decree of the court. G. F., Solicitor for complainant. Form No. 26.' Bill to restrain the infringement of copyrights. In Equity. To the judges of the circuit court of the United States for the district of Massachusetts. The bill of complaint of C. F., F. G. W., L. T. and J. S., all of C., in the county of M., in said district, against B. M., N. C, G. P. L., and T. H. W. and C. W. U., Respectfully show : your orators C. F., F. G. W. and L. T., printers and publishers and co-partners, doing business under the name and style of F., W. & T., and J. S., gentlemen, all of C, in 1 See Fulsom v. Marsh, 2 Story 100. 628 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the county of M., in said district of Massachusetts, and all being citizens of the United States, of that the said J. S. is, and hereto- fore at the time of the infringement hereinafterwards mentioned was, proprietor of the copyright of a work of which the said J. S. is the author and compiler, entitled " The Writings of George Washington, being his Correspondence, Addresses, Messages and other papers, official and private, selected and published from the original manu- scripts, with a Life of the Author, Notes and Illustrations, by J. S.," consisting of twelve volumes, of all which volumes respectively thecopyright wastakenoutby J. S., previous to the publication thereof respectively, and secured according to law ; the said J. S., at the time of taking out and securing said copyrights respectively, and still being a citizen of the United States, and the term of each and all of which has still more than eight years to run; and that said F., W. & T., before the infringement hereinafterwards complained of, had, by an agreement with said J. S., undertaken and become interested in and assumed a part of the risk and responsibility of the publication of said work, and have ever since continued, and still continue, to be thus inter- ested ; and that ever since the first publication of the several volumes of said work, the public have been supplied with copies of the same by said J. S. and the publishers of the same at reasonable prices ; and that said J. S. and said F., W. & T. have incurred very large expenses upon said publication, and have been and are in receipt of large amounts, the proceeds of the sale of said work, to reimburse their expenses and remunerate their care and labor bestowed on the same. And your orators further show that they, your orators, being in the receipt of large sums, the proceeds of the sale of said work as aforesaid, under said copyrights, B. M., N. C. and T. H. W., all in B., in the county of S., in said district of Massachusetts, and G. P. L., of C, in the county of M., in the district of N. H., book-sellers, being co-partners under the name, style and firm of M., C, L. & W., and also C. W. U., of S., in the county of E., in said district of Massachusetts, clerk, all of them well knowing that said J. S. held such copyrights, and said F., W. & T. were interested in the said publication, and deliber- ately, after due notice, intending to infringe said copyrights at said B., on the fifth day of August, in the year of our Lord eighteen hundred and forty, and at divers times before and since the said fifth day of August, without the allowance and consent of your FORMS IN EQUITY. 629 orators, or either of them, published and exposed to sale and sold a work in two volumes, entitled " The Life of Washington," in the form of an autobiography, the narrative being, to a great extent, conducted by himself in extracts and selections, his own writings, with portraits and other engravings, consisting of pages in the whole, which they still continue to expose to sale, having had due notice, and well knowing that the same is a copy from, and an infringement and piracy of, said " Writings of George Washington, etc., with a Life of the Author," so published by your orators as aforesaid. And your orators aver that three hundred and eighty-eight pages of said piratical work are copied verbatim et literatim from the said work so edited and compiled by said J. S. as aforesaid, and so published by your orators as aforesaid, consisting of matter which was published originally by said J. S., under his said copyright, and which had never before been published or printed, and which he, the said J. S., and his assigns had the exclusive right and privilege to print, publish, sell and expose to sale ; and that many other parts of said piratical work published by said parties complained of, besides said three hundred and eighty-eight pages, are infringements upon said J. S.'s said copyrights, whereby your orators have sustained great damage, detriment and injury. And your orators further show that said M., C, L. & W. and U. still continue and threaten hereafter to continue to print, publish and expose to sale and sell copies of the said piratical work, the pro- tests, expostulations and warnings of your orators to them to the contrary notwithstanding. All such actions, doings and pretences are contrary to equity and good conscience, and tend to the injury of your orators in the premises. In consideration whereof, and forasmuch as your orators are remediless in the premises at law, and can have no adequate relief save in a court of equity, where matters of this and the like nature are properly cognizable and relievable ; and to the end that said M., C, L. & W. and U. may appear and answer all and singular the matters and things hereinbefore set forth and complained of, particularly how many copies of said piratical work they have sold, what number they have on hand, and that they be restrained by injunction issuing from this court from selling or exposing to sale, or otherwise disposing of, any copies of said piratical work ; and that they be ordered and decreed to render an account of the copies of the same 630 FEDERAL PLEADING, PRACTICE AND PROCEDURE. that they have sold, and to pay over the profits of such sales to the plaintiffs, and that they be ordered to surrender and deliver up the copies on hand and the stereotype plates of said piratical work to an oflScer of this court to be cancelled and destroyed, and be ordered to pay the plaintiffs their costs ; and that your orators may obtain such other and further relief as to this honorable court may seem meet, or as equity may require, — may it please this honorable court to grant to your orators a writ of subpoena directed to the said M., C, L. & W. and U., commanding them at a day certain, and under a certain penalty to be therein inserted, personally to be and appear before this honorable court, then and there to answer the premises, and to stand and abide such order and decree therein as to this honorable court shall seem agreeable to equity and good conscience. S. R., Solicitor for complainants. ToRM No. 27. Bill to restrain the infringement of a patent-right. [Title as in Form No. 1 ; no jurisdiction clause required.] In Equity. To the judges of the circuit court of the United States for the district of Massachusetts. E. H., Jr., of B., in the state of New York, and a citizen of the state of New York, brings this his bill against C. W., of B., in the state of Massachusetts, and a citizen of the state of Massachusetts. And thereupon your orator complains and says that he, being the original and first inventor of a new and useful improvement in sewing-machines, fully described in the letters patent issued to him therefor as hereinafter stated, and not known or used by others before his invention thereof, and not at the time of his application for letters patent therefor in public use or on sale with his con- sent or allowance as the inventor ; and being a citizen of the United States, and having made due application, and having fully and in all respects complied with all the requisitions of the law in that behalf, did obtain letters patent therefor, issued in due form of law to him in the name of the United States, and under the seal of the FORMS IN EQUITY. 631 Patent-OfBce of the United States, and signed by N. P. T., Acting Secretary of State, and countersigned by H. H. S., Acting Com- missioner of Patents, bearing date the tenth day of September, in the year of our Lord eighteen hundred and forty-six, whereby was granted and secured according to law to your orator, his heirs, ad- ministrators or assigns, for the term of fourteen years from said date, the full and exclusive right and liberty of making, construct- ing, issuing and vending to others to be used the said improvement in sewing-machines therein specified and claimed, as in and by said letters patent, or a certified copy thereof, here in court to be pro- duced, will more fully appear. And your orator further shows unto your honors that certain assignments of certain rights in said patent have been made and duly recorded in the Patent-Office of the United States, whereby your orator, prior to the infringements herein complained of, became and now is the sole owner of said patent, as in and by said assignments, or certified copies thereof, here in court to be produced, will more fully appear. And your orator further shows unto your honors that the said improvement in sewing-machines, granted to him as aforesaid, has hitherto been in the exclusive possession of your orator and of his grantees, and has hitherto been and still is of great value and profit to your orator ; and that a license fee or patent rent, under his said patent, has hitherto been and still is paid to your orator for the largest portion of all the sewing-machines manufactured and sold in the United States ; yet the said defendant, well knowing the premises, but contriving how to injure your orator, and without his consent and allowance, and without right, and in violation of said letters patent and your orator's exclusive rights secured to him aforesaid, has made, used or vended, and still does make, use or vend to others to be used in said district and in other parts of the United States, a large number of sewing-machines, but how many your orator cannot state, but prays that the defendant may discover and set forth each, embracing substantially the improvement in sew- ing-machines, or a material part thereof, patented to your orator as aforesaid, and thereby the said defendant has infringed, and still does infringe, and cause your orator to fear that in future he will infringe, upon the exclusive rights and privileges intended to be secured to your orator in and by his said letters patent. 632 FEDERAL PLEADING, PRACTICE AND PROCEDURE. And your orator further shows unto your honors that heretofore the validity of his said patent has been uniformly affirmed after severe and repeated contestation ; namely, by a verdict and judg- ment thereon at law in 1852, and by six final decrees in equity in the circuit court of the United States for the district of-Massachu- setts, and by one final decree in equity in the circuit court of the United States for the southern district of New York, all obtained in favor of said patent prior to August, 1854. And your orator further shows unto your honors that the sew- ing-machines made and sold by the defendant, as herein complained of, are in their essential parts and character substantially like the sewing-machines against which injunctions were obtained in the suits aforesaid, by your orator, or by your orator and his then co- owner of said patent. And your orator has requested the said defendant to desist from making, using or vending to others to be used the said sewing-ma- chines embracing the said improvements patented to your orator, and to account with and pay over to your orator the profits made by said defendant by reason of the unlawful making, using or vend- ing of said sewing-machines embracing said patent improvement of your orator. But now, so it is, may it please your honors, that said defendant has combined and confederated with other persons, to your orator unknown, but whom, when discovered, your orator prays leave to make defendants hereto, to resist and destroy the exclusive rights and privileges secured to your orator as aforesaid, and to make, use and vend said improvement in sewing-machines, patented to your orator as aforesaid, without the license of your orator, and in violation of his just rights in the premises, all of which is contrary to equity and good conscience. To the end, therefore, that the said defendant may, if he can, show why your orator should not have the relief herein prayed, and may under oath, and according to his best and utmost knowledge, remembrance, information or belief, full, true, direct and perfect answer make to all and singular the premises, and more especially may answer, discover and set forth whether during any and what period of time, and when, he has made, used and vended to others to be used, for any and what consideration, any and how many sewing-machines, and whether or not the same embraced the im- provement in sewing-machines, or any substantial part thereof FORMS IN EQUITY. 633 patented to jour orator as aforesaid, or how the same differed from your orator's said patent, if at all. And that the said defendant may answer the premises, and may be decreed to account for and pay over to your orator all gains and profits realized from his unlawful making, using or vending of sew- ing-machines, embracing said improvement patented to and vested in your orator as aforesaid, and may be restrained by an injunction to be issued out of this honorable court, or by one of your honors, according to law in such case provided, from making, using or vending any sewing-machines embracing said improvement, or any substantial part thereof, patented to your orator as aforesaid, and that the infringing machines, now in the possession -or under the control of the defendant, may be delivered up to your orator or be destroyed ; and for such further and other relief in the premises as the nature of the case may require, and to your honors may seem meet. May it please your honors to grant unto your orator, not only a writ or writs of injunction, conformable to the prayer of this bill, but also a writ or writs of subpoena to be directed to the said C. W. and confederates, when discovered, commanding him and them at a certain time, and under a certain penalty, therein to be limited, personally to be and appear before your honors to the honorable court, then and there to answer unto this bill of complaint, and to do and receive what to your honors may seem meet in the prem- ises. E. H., Jr., By G. F., his solicitor. Form No. 28. Another form of bill to restrain an infringement of patent right, title having been established in previous suit, and for accounts, etc. [Title of cause as in Form No. L] In Equity. To the judges of the circuit court of the United States for the district of Massachusetts. C. G., of New Haven, in the state of Connecticut, and The Union India Rubber Company, a corporation duly established by the laws of the state of New York, and having their principal office and place of business in that state, bring this their bill of com- 634 FEDERAL PLEADING, PRACTICE AND PROCEDURE. plaint against The Beaverly Rubber Company, a corporation duly established by the laws of Massachusetts, and having their princi- pal office and place of business in said state. And thereupon your orators complain and say that before the fifteenth day of June, eighteen hundred and forty-four, the said C. G. became and was the first and original inventor of a certain "new and useful* improvement in India-rubber fabrics," which your orators verily believe had not been known or used before his inven- tion thereof, and which was not, at the time of his application for a patent therefor, in public use or on sale with his consent or allow- ance ; and being such first and original inventor, and being desirous of obtaining an exclusive property in the invention by him made, the said C. G. made application in writing to the Commissioner of Pat- ents, expressing such desire, and delivering a written description of his invention or discovery and a specification of improvement by him claimed ; whereupon such proceedings were had that on the fifteenth day of June, eighteen hundred and forty-four, letters pat- ent of the United States, entitled for "a new and useful improve- ment in India-rubber fabrics," signed by J. C. C, Secretary of State, and countersigned and sealed with the seal of the Patent- Office by H. L. E., Commissioner of Patents, were issued to your orator in due form of law, granting to your orator, C. G., his heirs, administrators or assigns, for the term of fourteen years from the day of the date thereof, the full and exclusive right and liberty of making, constructing, using and vending to others to be used the said improvement, a description whereof was annexed to to the said letters patent. And your orators further show that afterwards the said C. G. sur- rendered the said last-mentioned letters patent to the Commissioner of Patents, in due form of law, and such proceedings were had that said Commissioner did, on the twenty-fifth day of December, eight- een hundred and forty-nine, reissue to said C. G. letters patent of the United States, entitled for a new and useful "improvement in processes for the manufacture of India rubber," signed by T. E., Sec- retary of State, and countersigned and sealed with the seal of the Patent-Office by T. E., Commissioner of Patents, whereupon there was granted to your orator, said C. G., his heirs, administrators and assigns, for the term of fourteen years from the fifteenth day of June, eighteen hundred and forty-four [being the date of the said I FORMS IN EQUITY. 635 surrendered letters patent], the full and exclusive right and liberty of making, constructing and using, or vending to others to be used, the said improvement, a description whereof was annexed to said reissued letters patent, as by reference to the same, or to a true copy thereof hereunto annexed, and making a part of this your orator's bill of complaint, will more fully and at large appear. And your orators further show that soon after the granting of the said letters patent, one H. H. D. commenced infringing the same, and that various suits were brought against him by your orator, C. G., at law and in equity. A suit was also commenced by your orator, C. G., against E. S. and J. B. K., the agents of said H. H. D., for infringing said patent, in the circuit court of the United States for the district of Massachusetts, in the year 1845, and said H. H. D. and his said agents, E. S. and J. B. K., by their pleas, answers and notices, denied that your orator, C. G., was the first and original inventor of the improvement described and claimed in said patent of June 15, 1844, and also denied that the said patent was of any validity, for the reasons in said pleas, notices and answers set forth, upon which allegations the parties were at issue ; that said suits were pending in said court till the fall of 1846, and for the trial of which preparations had been made on both sides. And your orators further show that said suits were settled upon the application of said H. H. D., and a written agreement was ex- ecuted between said H. H. D. and your orator C. G., whereby said H. H. D. agreed, among other things, to pay five thousand dollars for said settlement, and for a license to manufacture certain articles under said patent and other patents of your said orator, C. G., and to pay a tarifi" therefor, and covenanted not to infringe said patent, and said H. H. D. then and thereby acquiesced in your orator's (said C. G.'s) rights, and acknowledged the validity of said patents, and said sum of five thousand dollars was paid by said H. H. D. and said suits were discontinued, except the said suit against E. S. and J. B. K., agents of said H. H. D., in which a verdict was taken and a judgment entered up against them in favor of your orator, C. G., and satisfied as agreed between your orator (said C. G.) and said H. H. D., as by the record thereof now pro- duced here in court will fully appear. And your orators further show that soon after said settlement and the discontinuance of said 636 FEDERAL PLEADING, PRACTICE AND PROCEDURE. suit, said H. H. D. recommenced his infringement of said patent; whereupon your orator, C. G., about the first day of November, eighteen hundred and fifty, filed his bill against the said H. H. D. in the circuit court of the United States for the district of New- Jersey, setting out the said letters patent and the infringement thereof, praying an injunction and account against the said H. II. D. ; to which bill of complaint the said H. H. D. filed his answer, denying the validity of the said letters patent, and setting up that some other persons than your orator, C. G., were the inventors of the things patented by him, and that the said reissue to your orator, C. G., had no title by reason thereof in his said invention ; and issue being joined thereon, the parties proceeded to proofs, which were taken at great length and for a long time. And your orators further show that, the proofs in said cause being taken, the cause was brought to final hearing on its merits at the March term of the circuit court of the United States for the district of New Jersey, in the year eighteen hundred and fifty- two, before justices G. and D., and by them held under advisement until the September term then next following, when the judgment of the court was pronounced, and opinions delivered, copies whereof are hereunto annexed. And the said court then decided that both the said letters patent were valid in law, and that your orator C. G. was the inventor of the improvement patented, as aforesaid, by your orator C. G., and referred to in said bill of complaint ; that the said reissued letters patent were lawfully reissued, and by a decree pronounced in said cause, perpetually enjoined the said H. H. D. from making, con- structing, using, or vending to others to be used, the said improve- ments, and ordered an account to be taken of the damages due your orator C. G. by reason of the infringements of said H. H. D. already committed ; as by reference to a true copy of the judgment of the court, or to the record of proceedings therein, ready to be produced, will more fully and at large appear. And your orators further show that, from the granting of said letters patent until the hearing of the said cause against said H. H. D., said C. G. had and enjoyed an exclusive possession and use of the said improvements, by himself and his licensees, except so far as the same were disturbed by said H. H. D. and those combined and confederated with him, and by a few other persons who from FORMS IN EQUITY. 637 time to time began to violate his rights, but who uniformly acqui- esced in them and submitted to pay tariffs for their future enjoy- ment when they became acquainted with your orator's (said C. G.'s) rights secured by his patent, so far as your orators have been in- formed and believe. And your orators further show that the annexed schedule, marked A, is a correct copy of the original letters patent aforesaid; the an- nexed schedule, marked B, is a correct copy of the letters of reissue aforesaid; and the annexed schedule, marked C, contains true copies of the opinion delivered as aforesaid by the judges of the circuit court of the United States for the district of New Jersey. And your orators further show that, on the fifteenth day of June, A. D. 1858, the Honorable J. H., Commissioner of Patents of the United States, did, as such commissioner, duly grant to said C. G. an extension of said letters patent of June 15, 1844, as re- issued December 25, 1849, for the further term of seven years from the said fifteenth day of June, A. D. 1858, and that the cer- tificate and award of such extension were, by the said commis- sioner, duly endorsed on the letters patent of which extension was so granted. And your orators further show that, before the said extension, the said Union India Rubber Company held, under certain agree- ments, rights from said C. G., authorizing them to make va^rious articles of India rubber according to his process, so as aforesaid patented, and giving them the exclusive right to make clothing according to that process. That on the twenty-third day of April, A. D. 1858, and afterwards, on the third day of July, A. D. 1858, said C. G., for a valuable consideration, executed and delivered to the said Union India Rubber Company certain agreements contin- uing such rights. That all the agreements aforesaid are in full force, and true copies of them are hereto annexed, those first men- tioned being marked as Exhibit D, and the two last mentioned agreements being marked as Exhibit E. And your orators further show that the said Union Rubber Company, before extension, were, and ever since have been, and now are, engaged under said agreement in the business of making and selling India-rubber goods of various kinds, including clothing, which are made under the aforesaid several agreements, according to said process of C. G., patented as aforesaid. 638 FEDERAL PLEADING, PRACTICE AND PROCEDURE. And your orators further show that, amongst all persons engaged in the manufacture of India rubber within the United States, the term or phrase "Vulcanized Rubber Goods" is used and is under- stood by the defendants and other persons in said business to mean the fabric or product made according to said C. G.'s process, patented as aforesaid, and is so used and understood as the designation of all goods made of a compound of India rubber in the original compo- sition, whereof sulphur was present in any form or degree ; such compound being in that state subjected to the action of artificial heat, so as to produce the chemical or other changes or effects de- scribed in said C. G.'s original and reissued letters patent, and the specifications thereto annexed. And your orators employ such phrase in this bill of complaint in the sense so explained. And your orators further show that, as they have been informed and believe, the said defendants, not only before the extension of C. G.'s aforesaid patent, but also since that time, have been, and they now are, engaged, without the license or consent of said C. G. or your orators, in making and selling, or causing or procuring to be made and sold, various kinds of goods of vulcanized rubber, which goods are included in the aforesaid rights of your orators. That the said defendants, in the making of such goods, have, as your orators are informed and believe, used a compound of India rubber in which sulphur was present when the compound was sub- jected to the action of artificial heat, so as to produce the aforesaid changes and effects. But your orators are informed and believe that said defendants claim or pretend, as to the whole or some of such goods, that they do not subject the same to the particular degree of heat mentioned by C. G. in his aforesaid specifications, or that in some manner they avoid following exactly the process of man- ufacture so described by him. But your orators aver and charge that the said pretence is unfounded, and that the goods so made by said defendants, or the compounds of which they are made, have before the completion of the manufacture, at some time, been sub- jected to the treatment or process described by C. G. as aforesaid, or some treatment or process substantially or practically similar in its nature and the same in its effects. And your orators further show that, as they are informed and believe, the said defendants threaten to continue making and selling or making or selling, or causing and procuring to be made and sold FORMS IN EQUITY. 639 or made or sold, such goods as are above described in this bill of complaint. And your orators say that they have been damaged and injured by such acts of the defendants, and apprehend being further injured in future by the repetition or continuance of such acts. And your orators pray that said several papers heretofore referred to in this bill of complaint, and of which copies are annexed as aforesaid, may be taken- as a part of such bill, your orators being prepared to prove the execution of the several agreements aforesaid and the issuing of said letters patent, and the giving of the opinion aforesaid in N. J., and being ready to produce all such documents and papers. All which actions, doings and pretences are contrary to equity and good conscience, and tend to the manifest injury of your orators in the premises. In consideration whereof, and forasmuch as your orators can only have adequate relief in this court, where matters of this kind are properly cognizable and relievable : To the end, therefore, that the said The Beaverly Rubber. Company and their confederates, when discovered, may upon their respective and corporal oaths, and to the best and utmost of their respective knowledge, information and belief, full, true and perfect answer make to all and singular the matters aforesaid, and that as fully and particularly as if the same were now repeated and they severally interrogated thereto, and more especially that they may set forth particularly — First. Whether the said suit was not brought against the said H. H. D. at the time and manner specified therein ; and whether it did not result as herein described. Second. Whether said Beaverly Rubber Company has not made and sold, or caused and procured to be made and sold, clothing or other goods ; and if so, what kind and amount of articles in the manufacture of which, at any time during the process of manufac- ture, or in the completion thereof, there was used or employed a compound of India rubber in which sulphur was present, to which compound, or the goods when made thereof, artificial heat was or had been applied, so as to produce in such compound or goods the effect of vulcanization. TJiird. Whether the said defendants have made and sold, or caused or procured to be made and sold, any, and if so, what description or quantity of, goods of vulcanized rubber, or rubber compounded with 640 FEDERAL PLEADING, PRACTICE AND PROCEDURE. sulphur, and subjected to the action of artificial heat, according to the process described in the aforesaid letters patent of C. G., or the specifications attached thereto. Fourth. Whether the said defendants have, since the said fifteenth day of June, A. D. 1858, made or sold, or caused or procured to be made or sold, any, and if so, what description and quantity of, goods made of and from a compound of India rubber, in which sulphur was present, which compound had at any time, or in any form, been subjected to artificial heat, so as to have become vulcanized within the meaning of that term as hereinbefore defined and used, or so as to become insensible to the action of heat or cold, or prevented from liability to decompose from the action of essential oils or animal perspiration. And that the defendants may answer the premises, and that they may be decreed to account with your orators for the quantity of articles which they have made in violation of the said letters patent or any of the rights of your orators, and to pay over to your orators such sum as may be proper as damages for such infringements ; and that the defendants may be perpetually enjoined from any further violation of the rights of your orators, or of either of them ; or that your orators may have such further and other relief in the premises as may be consistent with equity and good conscience. May it please your honors, the premises considered, to grant unto your orators the writ of injunction issuing out of and under the seal of this honorable court, directed to the said Beaverly Rubber Com- pany, commanding and strictly enjoining them, and each of them, not to manufacture, use or sell, or cause or procure to be manufac- tured, used or sold, any articles of vulcanized rubber, or any articles made of a compound of India rubber in which sulphur is present in any form or degree, such compound, or the fabric made there- from, having been at any time subjected to the action of artificial heat so as to be changed or affected in the manner described in the aforesaid letters patent or specifications, or so as to have become insensible to heat or cold, or not liable to decompose from the action of essential oils or animal perspiration, and from taking or selling any article made from a compound which has been at any time so vulcanized, or affected or changed. And also the writ of subpoena issuing out of and under the seal of this honorable court, directed to the said defendants, command- ing them to be and appear at a certain day, and under a certain FORMS IN EQUITY. 641 penalty therein to be expressed before this honorable court, to answer the premises, and to stand to, perform and abide by such order, direction and decree, as to your honors shall seem meet. And your orators, etc. E. M., by G. F., Solicitor for complainants. Form No. 29. Bill for an account and an injunction against the illegal use of a trade-mark. [Caption and title as in Form No. 1.] In Equity. To the judges of the circuit court of the United States for the district of , in the circuit, sitting as a court of equity. A. B. and C. D., of , and citizens of the state of , bring this their bill against E. F., of , and a citizen of the state of . And thereupon your orators, humbly complaining, show unto your honors that they are the assignees and successors in the business of L. & Co., a firm which was com- posed of and your orators, and which firm was formerly en- gaged in the manufacture and sale of sewing-machines in ; and for the period of more than five years, your orators and their predecessors had been engaged in the manufacture and sale of sewing-machines at the same place ; and that during the whole period of time of such manufacture and sale by them, they had ex- clusively used, and your orators are now so using, and had and still have the right to so use, a certain trade-mark for said sewing- machines, which trade-mark was printed on paper of an ultra- marine ground, in which is represented a view of the princess Pe- nelope weaving, and the name "Penelope," which is the essential part of said mark, printed thereon ; and that no person, firm or cor- poration, except the said ' and your orators, have had at any time heretofore, and none except your orators now have, any right to use the said trade-mark or any trade-mark essentially the same. They further show to your honors that on the said day of , in the year , being entitled as aforesaid to the exclusive use of said trade-mark, and desiring to secure to themselves full and lawful protection for the same by due registra- tion thereof in the United States Patent-OflSce, according to law, 41 642 FEDERAL PLEADING, PRACTICE AND PROCEDURE. your orators did deposit in the said Patent-Office of the United States for registration their trade-mark as aforesaid for sewing- machines ; and having fully complied with all the requirements of the act of Congress in such cases made and provided, the trade- mark aforesaid was on the day of , in the year , duly and lawfully registered and recorded in the said United States Patent-Office, with protection to remain in force for thirty years from said date, all of which, with an accurate copy and description of said trade-mark and a declaration of a member of the firm by which it was registered, will more fully and at large appear from copies from the Patent- Office, duly certified by , Commissioner of Patents, under his seal of office, and herewith filed as a part of this bill, marked ; and thereupon protection in the exclusive use of the trade-mark aforesaid previously held and enjoyed by your orators was secured to them for the period of thirty years from said day of , in the year Your orators further respectfully show unto your honors that since your orators have had the exclusive right to u^e the said trade-mark, to wit, from the day of , in the year , to the present time, the said E. F., of , in the state of , has been manufacturing sewing-machines in the said city of , and has been unlawfully and without your orators' consent using, in the sale thereof, a trade-mark sub- stantially like, and indeed almost identical with, that of your orators. And your orators do further show that they hold and estimate their said trade-mark at the price and value of thousand dollars; but cannot with certainty state the exact amount of their loss and injury, suff'ered by reason of said wrongful acts of the defendant, but believe the same to be the full sum of thousand dollars, and do so charge the fact. To the end, therefore, that your orators may obtain relief in the premises in this honorable court, where alone adequate relief can be afforded, they pray : 1st. That the said E. F. may be made a defendant to this bill, and compelled to answer each and every allegation thereof, on oath, as fully and to the same extent as if he were directly and par- ticularly interrogated as to each allegation. 2d. That he may be compelled to render, before a commissioner of this court, a full, true and perfect account of all profits of every FORMS IN EQUITY. 643 description which he has made or might have made, by the use of the simulated trade-mark aforesaid, or by the use of any other trade-mark for sewing-machines having thereon as a constituent part thereof the word "Penelope," or a representation of the prin- cess Penelope weaving, or any trade-mark having such near re- semblance to that of your orators as aforesaid, as might be calcu- lated to deceive; and that he, the said E. F., be also decreed to pay over to them all such profits. 3d. That the said commissioner be required to ascertain and re- port to this court, also, what loss and damage has been inflicted upon your orators by reason of the infringement of your orators' right, and the interference aforesaid with the right of the exclusive use of the trade-mark first above mentioned ; and that the said E. F. be also decreed to pay them such damages. 4th. And may it please your honors to grant unto your orators a restraining order against the defendant, enjoining and restrain- ing him, his clerks, attorneys, agents and servants, from using the simulated-trade-mark aforesaid, or any other trade-mark containing the word "Penelope," or being substantially the same with that of your orators. 5th. And that your orators may obtain the relief prayed for, and all such further or other relief as the nature of their case may re- quire, may it please your honors to grant to your orators the writ of subpoena against the said E. F., etc. G. and F., Solicitors for complainants. United States of America, C. D. ss , district of At the city of , in the county of , and district aforesaid, this day of , in the year , per- sonally appeared before me, , U. S. commissioner for said district, the above named C. D,, and made oath that, the facts set forth in the foregoing bill, so far as they purport to be stated as of his own knowledge, are true; and so far as they purport to be stated on information and belief, he believes them to be true. Given under my hand this day of , in the year T. J., U. S. Commissioner for district of 644 federal pleading, practice and procedure. Form No. 30. Bill for a discovery and to enjoin. [Title as in Form No. 1.] In Equity. To the honorable the judges of the circuit court of the United States for the circuit, within and for the district of A. B., a citizen of the state of [or a corporation duly established under the laws of the state of ], brings this his bill of complaint against C. D., a citizen of , in said district. And thereupon your orator complains and says : That he is a citizen of the United States, was the true and original inventor of a new and useful improvement in , which said improve- ment was not known or used by others before the invention and discovery thereof by him, who thereupon did apply to the Commis- sioner of Patents of the United States for letters patent for said improvement, and fully and in all respects complied with all the requirements of the law in that behalf, and especially made oath that he verily believed himself to be the true inventor or discoverer of the said improvement, and also paid into the treasury of the United States the sum of thirty dollars, and presented to the Com- missioner of Patents of the United States a petition setting forth his desire to obtain an exclusive property in said improvement, and praying that letters patent might for that purpose be granted unto him ; and also delivered and filed in said oflBce of the Commissioner of Patents a written description of his said improvement, in such full, clear and exact terms as to enable any person skilled in the art with which the said improvement is most nearly connected, to make and use the same ; which said description was duly signed by him, the said A. B., and attested by two witnesses ; and thereupon the said Commissioner of Patents caused letters patent to be made out and issued in the name of the United States of America, in due form of law in all respects, bearing date the day of , in the year one thousand eight hundred and , whereby was granted unto the said A. B., his heirs, administrators or assigns, for the term of years from the date thereof, FORMS IN EQUITY. 645 the full and exclusive right and liberty of making, constructing, using and vending to others to be used the said improvement, which is entitled in said letters patent, "A new and useful improve- ment in ;" and the said letters patent having been signed by , Secretary of the Interior of the United States, and countersigned and sealed with the seal of the Patent-Office bv , Commissioner of Patents of the United States, and the same having been duly recorded, were issued and delivered unto the said A. B. And your orator further shows unto your honors that the defend- ant, C. D., since the day of , has been engaged in making, using and selling a large amount of , such as is described in said patents, and that the defendant refused to pay to your orator any of the profits which he made by such unlawful manufacture, use and sales, or to desist from making, using and selling the same in violation and infringement of your orator's rights, secured to them as aforesaid, and without their consent or allowance. All of which actings and doings are contrary to equity and good conscience, and tend to the manifest injury of your orator in the premises. In consideration whereof, and forasmuch as your orator can only have adequate relief in this honorable court, where matters and things of this kind are made cognizable by statute: To the end, therefore, that the said defendant may, if he can, show why your orator should not have the relief hereby prayed, and may, upon his corporal oath and according to his best and utmost knowledge, re- membrance, information and belief, full, true, direct and perfect answer make to the matters and things hereinbefore stated and charged, and to the several interrogatories hereinafter numbered as set forth by the note hereunder written, he is required to answer ; that is to say : 1. Whether he has not been engaged in selling the de- scribed in said patent. 2. Whether he has not derived a large profit thereon, and if so, how much. And that the said defendant may answer the premises, and that he may be decreed to account with and pay over to your orator, tte profits which he has or might ha>ve made by said infringement 646 FEDERAL PLEADING, PRACTICE AND PROCEDURE. of said letters patent in such unlawful manufacture, use and sale of : May it please your honors, the premises considered, to grant unto your orator a writ of injunction, issuing out of and under the seal of this honorable court (or issued by one of your honors according to the form of the statute in such case made and provided), enjoining and restraining the said C. D., his clerks, attorneys, agents, servants and workmen, from making any as is described in such his letters patent. And that your orators may have such further and other relief as the nature of the case may require, and to your honors seem meet. May it please your honors to grant unto your orator, not only the writ of injunction conformable to the prayer of this bill, but also a writ of subpoena directed to the said C. D., commanding him on a day certain, therein to be named, to be and appear in this honor- able court ; then and there to answer the premises, and to stand to, perform and abide such further order, direction and decree as may be made against And your orator, as in duty bound, will ever pray, etc. A. B., Complainant. G. F., Solicitor and counsel for complainant. United States of America, 1 > ss: district of . j At , in the county of , and district aforesaid, on this day of , A. d. 18 , personally appeared the above named A. B., who being duly sworn according to law, deposeth and saith that he is the complainant in the foregoing bill, and has read the same, and knows the contents thereof; that the said bill is true of his own knowledge, except as to those matters which are therein stated to be on information and belief of the complainant, and as to those matters he believes it to be true ; and that this deponent verily believes he was the first and original in- ventor of the improvements claimed in said letters patent. A. B. T. J., U. S. Commissioner for the district of I CIRCUIT COURT FORMS IN EQUITY. Form No. 31. Order for subpoena. At a term of the circuit court of the United States of America for the district of , in the second circuit, held at the on the day of in the year of our Lord one thousand eight hundred and Present: — The honorable (justice or judge). A. B. 1 V. \ In equity. C. D. J On filing bill of complaint in this cause, and on motion of , complainant's solicitor : Ordered, that a writ of sub- poena do issue out of and under the seal of this court, pursuant to the prayer of said bill, and that this cause be docketed for com- plainant. Form No. 32. Subpoena to appear and answer and return. [Title of cause.] The President of the United States of America, to C. D., G-reeting : You are hereby commanded that you personally appear before the judges of the circuit court of the United States for the district of , in the second cir- cuit, on the , to answer a bill of complaint [l. s.] exhibited against you in the said court by A. B., and to do further and receive whatever said court shall have con- sidered in that behalf; and this you are not to omit under the penalty of two hundred and fifty dollars. 648 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Witness the honorable Chief Justice of the Supreme Court of the United States, at the city of in said district, the day of eighteen hundred and Clerk. G. F., Solicitor for plaintiff. Memorandum. — The defendant is to enter his appearance in the suit above mentioned, in the clerk's office at , on or before the day at which the above subpoena is returnable, otherwise the bill may be taken pro confesso. G. F., Solicitor for plaintiff. Marshal's Return. — I hereby certify that I served the within subpoena on at on the day of , A. D. 18 , and on at on the day of , A. D. 18 , by delivering to and leaving with them, and each of them, a copy of this subpoena, and at the same time showing them, and each of them, this original, with the seal of the court attached. , Deputy. form of appointment to serve subp(ena. District of New York: I hereby authorize and depute G. H. to execute the annexed process, and make due return according to law. E. F., United States marshal, district of ■ Form No. 33. Precipe for appearance. United States circuit court, district of A. B. ^ V. V In equity. C. D. J The clerk of this court will please enter my appearance as solicit- or for the defendant in the above entitled case. Yours, etc., , Solicitor for defendant. Dated, , 18 . circuit court forms in equity. 649 Form No. 34. Order for appearance. United States circuit court, district of A. B. j V. V In equity. C. D. J On filing precipe in this cause and on motion of , ordered that his appearance as solicitor for the defendant herein be and the same hereby is entered, and that this cause be now docketed for said defendant. Form No. 35. Motion for leave to file supplemental bill. United States circuit court, district of A. B. -j V. V In equity. 0. D. J The complainants in the above entitled cause move the court, upon the proposed supplemental bill of complaint herewith filed, for leave to file the same as a supplemental bill of complaint in said cause, and that the same stand filed therein as of the rule-day for the first Monday of , A. D. 18 (motion to be heard on said rule-day before his honor , at o'clock). G. F., Solicitor for complainant. Dated, Form No. 36. Answer; common form. United States circuit court, district of A. B. V. > In equity. . D. 1 C. The answer of to the bill of complaint of complainant. 650 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The defendant, now and at all times hereafter saving and re- serving to himself all and all manner of benefit and advantage of exception to the many errors and insufficiencies in the complain- ant's said bill of complaint contained, for answer thereunto, or unto so much or such parts thereof as this defendant is advised is ma- terial for him to make answer unto, answers and says : [here state the matters of defence.] All of which matters and things the said defendant is ready to aver, maintain and prove, as this honorable court shall direct, and hereby prays to be hence dismissed with his reasonable costs and charges in that behalf sustained. , Solicitor and of counsel. District of COUNTY OF C. D., being duly sworn, says that he is the defendant in the above-entitled cause, that he has read the foregoing answer and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes it to be true. Sworn to before me this day of , A. D. 18 Form No. 37. Order on exceptions. United States circuit court, district of A. B. \ V. y In equity. C. D. j Exceptions for insufficiency having been filed to the answer of the said on the day of , 18 , and the said not having submitted to answer said exceptions, on motion of , solicitor for complainant, it is ordered that said exceptions be set down for a hearing on the next rule-day, viz., the first Monday of , a. d. 18 , before , judge, at the , in the city of , at o'clock. CIRCUIT COURT FORMS IN EQUITY. 651 Form No, 38. Supplemental bill in a patent cause, stating the fact of an extension since the filing of the original bill. [Title as in Form No. 1.] In Equity. To the judges of the circuit court of the United States for the district of Massachusetts. E. H., Jr., of B., in the state of N. Y., and a citizen of the state of N. Y., brings his supplemental bill against C. W. W., a citizen of the state of Massachusetts. And thereupon your orator complains and says that he filed his original bill against the defendant in this court, August 9, 1859, wherein he prayed for a discovery, account, payment of profits and an injunction to restrain the said defendants from infringing on your orator's patent, granted to him by the United States of America, for improvement in sewing-machines, dated September 10, 1846 ; and for other relief, as stated in his said original bill. And your orator further shows that since the filing of his said original bill, namely, on the eighth day of September, in the year eighteen hundred and sixty, upon the application of your orator, and after due proceedings had in all respects as required by law, the Commissioner of Patents granted the extension of said patent for the term of seven years from and after the expiration of the first term thereof, viz., the tenth day of September, 1860, and made a certificate of such extension thereon, and entered the same on record in the Patent-Ofiice in due form of law ; and thereupon the said patent was renewed and extended, and now has the same effect in law as though it had been originally granted for the term of twenty-one years, as in and by said certificate, or a certified copy thereof here in court to be produced, will more fully appear. Yet the said defendant, well knowing the premises, but conti'iving how to injure your orator, and without his consent or allowance, and without right and in violation of said letters patent and your ora- tor's exclusive rights, secured to him as aforesaid from September 1, 1857, has made, used or vended, and still does make, use or vend 652 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to others to be used in said district and in other parts of the United States, a large number of sewing-machines (but how many your orator cannot state, but prays that the defendant may discover and set forth), each embracing substantially the improvement in-sewing- machines, or a material part thereof, patented by your orator as aforesaid ; and thereby the said defendant has infringed, and still does infringe and cause your orator to fear that in future he will infringe, upon the exclusive rights and privileges intended to be secured to your orator in and by said letters patent. To the end, therefore, that the said defendant may, if he can, show why your orator should not have the relief herein and in his said original bill prayed ; and may, under oath and according to his best and utmost knowledge, remembrance, information or be- lief, full, true, direct and perfect answers make to all and singular the premises, and more fully may answer, discover and set forth whether, during any and what period of time since September 1, 1857, and where, he has made, used or vended to others to be used, for any and what consideration, any and how many sewing-ma- chines ; and whether or not the same embraced the said improve- ment in sewing-machines, or any substantial part thereof, patented to your orator as aforesaid, or how the same differed from your orator's said patent, if at all. And that the said defendant may answer the premises, and may be decreed to account for and pay over to your orator all gains and profits realized from his unlawful making, using or vending of sew- ing-machines embracing said improvement patented to and vested in your orator as aforesaid ; and may be restrained, by an injunc- tion to be issued out of this honorable court, or by one of your honors, according to law in such case provided, from making, using or vending any sewing-machines embracing said improvement, or any substantial part thereof, patented to your orator as aforesaid, and that the infringing machines now in possession or under the control of the defendant may be delivered up to your orator or be destroyed ; and for such further and other relief in the premises as the nature of the case may require, and to your honors may seem meet. May it please your honors, etc. E. H., Jr. G. F., Solicitor for plaintiff. circuit court forms in equity. 653 Form No. 39. Bill for a specific performance — short form. [Caption and title as in No. 1, jurisdictional clause as in No. 7.] Your orator, A. B., humbly complaining, alleges and shows : 1. That on the day of , 18 , the defendant, C. D., was seized in fee simple of real property described as follows [here describe the property]. 2. That on the same day your orator and the said defendant en- tered into an agreement in writing under their hands and seals, whereby your orator agreed to purchase and the defendant to sell and convey the real estate and property aforesaid, which agreement is hereto annexed and made part of this bill, and marked " Exhibit A." ■ 3. That on the day of , 18 , your orator ten- dered to the defendant the amount of the purchase money, as pro- vided by the terms of said agreement, to wit $ , and demanded a deed of conveyance of said property as provided by the said agreement ; but the said defendant refused to convey the same to your orator, and still neglects and refuses to convey the same, as required by the provisions of said agreement, although your orator is still ready and willing to pay the said purchase money, and at all times has been since the tender aforesaid. In consideration whereof, and inasmuch as your orator can have adequate relief only in this court, and to the end that the said de- fendant may, if he can, show why your orator should not have the relief herein prayed, and may upon his corporal oath, and according to the best and utmost of his ability, remembrance, information and belief, full, true, direct and perfect answer make to the matters and things hereinbefore stated, and more especially answer the several interrogatories hereinafter numbered ; that is to say : 1. Whether he was not seized in fee simple of the real property described in paragraph one of this bill, at the time mentioned therein. 2. Whether he did not execute the agreement referred to in the second paragraph of this bill. 3. Whether your orator did not tender to him $ , at the time mentioned in the third paragraph of this bill, and at the same 654 FEDERAL PLEADING, PRACTICE AND PROCEDURE. time demand a deed of conveyance of the land described in this bill. 4. Whether he did not, at time of said tender as aforesaid, refuse to convey the aforesaid real property to your orator. 5. Whether he has ever conveyed said real property to your orator. 6. Whether he still hold the title in fee simple to said real prop- erty. Your orator prays that the defendant may be compelled to an- swer each and every allegation in this bill, and the interrogatories annexed thereto ; that this honorable court may grant unto your orator a restraining order or injunction against the defendant, re- straining him from conveying or incumbering said real property or any part thereof until the further order of the court ; that your orator may have the writ of subpoena against the said defendant, and a decree against him that he execute a good and suflBcient con- veyance of said real estate to your orator. A. B., by F. G. his solicitor. [Sworn to in the usual manner.] Form No. 40. Second supplemental bill in a patent cause, stating that since the filing the first supplemental bill the patent had been surrendered, etc., and a ne^v patent issued. [Title of cause as in Form No. 1.] In Equity. To the judges of the circuit court of the United States for the district of Massachusetts. E. H., Jr., of B.j in the state of N. Y,, and a citizen of the state of N. Y., brings this his second supplemental bill against C. W. W., of B., in the district of Massachusetts, sewing-machine maker, and a citizen of the state of Massachusetts. And thereupon your orator complains and says that he filed his original bill against the said defendant in this court, August 9, CIRCUIT COURT FORMS IN EQUITY. 655 1859, and his first supplemental bill November 5, 1860 ; wherein he prayed for a discovery, account, payment of profits, and an in- junction to restrain the said defendant from infringing your orator's patent, granted to him by the United States of America, for im- provement in sewing-machines, dated September 10, 1846 ; and for other relief as stated in his original and supplemental bill. And your orator further shows that since the filing of his said original bill, namely on the eighth day of September, in the year eighteen hundred and sixty, upon the application of your orator, and after due proceedings had in all respects as required by law, the Commissioner of Patents granted the extension of said patent for the term of seven years from and after the expiration of the first term, viz., the tenth day of September, 1860, and made a certificate of such extension thereon, and entered the same on the record in the Patent-Ofiice in due form of law, and thereupon the said patent was renewed and extended, and now has the same eff'ect in law as though it had been originally granted for the term of twenty-one years, as in and by said certificate or certified copy thereof, here in court to be produced, will more fully appear, and thereupon his first supplemental bill is filed as aforesaid. And your orator further shows that since the filing of his first supplemental bill, namely, on the nineteenth day of March, in the year eighteen hundred and sixty-one, his aforesaid patent having been amended and cancelled on account of a defective specification, a new patent was duly issued to him for the same invention, in ac- cordance with his corrected description and specification, whereby was granted and secured to your orator, his heirs, administrators or assigns, for said term of twenty-one years from September 10, 1846, the full and exclusive right and liberty of making, construct- ing, using or vending to others to be used the said improvement in sewing-machines therein specified and claimed, as in and by said reissued letters patent, or a certified copy thereof, here in court to be produced, will more fully appear. And your orator further shows that since the extension of the said patent, he has himself become a manufacturer of sewing-ma- chines, and has licensed many other parties to manufacture and sell sewing-machines, embracing his said patented invention ; and that your orator and his licensees have made very large investments for the purpose of fully supplying the market with the best sewing-ma- 656 FEDERAL PLEADING, PRACTICE AND PROCEDURE. chines, and that the continued infringement of your orator's said patent, committed by the defendant, has caused and is still causing irreparable injury to your orator's said rights and business, and to the investments and business of your orator's licensees under his said patent ; yet the said defendant, well knowing the premises, but contriving how to injure your orator, and without his consent or allowance, and without right, and in violation of said letters patent, and your orator's exclusive rights secured to him as aforesaid, has continued since the reissue aforesaid, as well as up to that time, to make and vend, and still does make and vend to others to be used in said district, and in other parts of the United States, a large number of sewing-machines, but how many your orator cannot state, but prays that the defendant may discover and set forth each, embracing substantially the improvement in sewing-machines, or a material part thereof, patented to your orator as aforesaid, and thereby the said defendant has infringed, and still does infringe, and cause your orator to fear that in future he will infringe, upon the exclusive rights and privileges intended to be secured to your orator by his said letters patent. To the end, therefore, that the said defendant may, if he can, show why your orator should not have the relief herein and in his said original bill prayed, and may, under oath, and according to his best and utmost knowledge, remembrance, information or belief, full, true, direct and perfect answer make to all and singular the premises, and more especially may answer, discover and set forth whether during any and what period of time, since September 1, 1857, and where, he has made any and how many sewing-machines, and whether or not the same embraced the said improvement in sewing-machines, or any substantial part thereof, patented to your orator aforesaid, or how the same differed from your orator's said patent, if at all. And that the said defendant may answer the premises, and may be decreed to account for and pay over to your orator all gains and profits realized from his unlawful making, using or vending of sewing-machines embracing said improvement patented to and vested in your orator as aforesaid ; and may be restrained by an injunction to be issued out of this honorable court, or by one of your honors, according to law in such case provided, from making, using or vending any sewing-machines embracing said improve- CIRCUIT COURT FORMS IN EQUITY. 657 ment, or any substantial part thereof, patented to your orator as aforesaid, and that the infringing machines now in the possession or under control of the defendant may be delivered up to your orator or destroyed ; and for such further and other relief in the premises as the nature of the case may require, and to your honors may seem meet. May it please your honors, etc. E. H., Jr. B. R. C, of counsel for plaintiff. Form No. 41. Amendment to a bill. [Title of cause as in Form No. 1.] In Equity. Amendment to a bill of complaint in this cause, made pursuant to an order of the court, entered on the day of , A. D. 18 . First. In the third line of the second folio of the bill, after the word "and," interline, "to wit, on or about the first day of Jan- uary, A. D. 1870." Second. After the word "time," in the tenth line of the sixth folio, insert the words following : [Here insert the additional matter proposed.] Third. Strike out the words "did convey," in the fourth line of the eleventh folio, and insert in lieu thereof the following: "was about to convey." Fourth. Add the name of " E. F., of, etc." as a defendant in the second line of the fourteenth folio, after the word "and."^ G. F., Solicitor for complainant. ^ An amended bill should state no by interlineations and erasures in the more of the original bill than is neces- original bill, but by filing the same sary to introduce and make intelli- on a separate paper. The practice of gible the new matter ; nor should amending pleadings by erasures and such amendment be incorporated in interlineations ought not to be toler- the old bill, but be by separate bill, ated by the courts. A paper thus dis- And amendments should not be made figured will be stricken from the tiles. 42 658 federal pleading, practice and procedure. Form No. 42. General demurrer to bilL [Title as in Form No. 1.] In Equity. The demurrer of C. D., defendant, to the bill of complaint of A. B., the above-named defendant [or, the joint and several de- murrer of A. B. and C. D., the above-named defendants, to the, etc.] This defendant, by protestation, not confessing any or all of the matters and things in the plaintiff's bill of complaint contained to be true, in such manner and form as the same is therein set forth and alleged, doth demur to said bill, and for cause of demurrer showeth that, etc. [Here set forth the cause of the demurrer.] Wherefore, and for divers other good causes of demurrer appear- ing in the said bill, the defendant doth demur thereto, and humbly demands the judgment of this court whether he shall be compelled to make any further or other answer to the said bill ; and prays to be hence dismissed with his costs and charges in this behalf most wrongfully sustained. G. F., Counsel for defendant. Form No. 43. Demurrer for vrant of equity. [Title and caption as in Form No. 1, and commencement as in the last form.] That the plaintiff hath not in and for his said bill made or stated such a case as entitles him in a court of equity to any discovery from this defendant [or, these defendants, or either of them], or to any relief against him [or, them or either of them] as to the matters contained in the said bill or any of such matters. Wherefore, etc. [Or thus.'] That the said bill doth not contain any matter of equity whereon this court can ground any decree, or give to the plaintiff any relief against this defendant [or, these defendants, or either of them]. circuit court forms in equity. 659 Form No. 44. Another form of demurrer. [Title and commencement as in Form No. 42.] The said C. D. says that the plaintiff is not entitled upon said bill to the relief he prays for, because he had a plain and adequate remedy at law, and because, etc. C. D., by F. R., his solicitor. Form No. 45. Demurrer for Multifariousness. [Title as in Form No. 1.] In Equity. The demurrer of, etc. This defendant by protestation, etc., doth demur, and for cause of demurrer showeth that it appears by the said bill that the same is exhibited against this defendant and the several other persons therein named as defendants thereto, for distinct matters and causes, in several whereof, as appears by the said bill, this defendant is not in any manner interested or concerned, and that the said bill is altogether multifarious. Wherefore, etc. Form No. 46. Demurrer on the ground of the Statute of Frauds. [Title and commencement as in Form No. 42.] That it appears by the said bill that neither the promise or the contract which is alleged by the said bill, and of which the plaintiff by the said bill seeks to have the benefit, nor any memorandum or note thereof, was ever reduced into writing or signed by this de- fendant [or, these defendants or either of them], or any person authorized thereunto, within the meaning of the statute [here desig- nate the statute] for the prevention of frauds and perjuries. Where- fore, etc. 660 PEDERAL PLEADING, PRACTICE AND PROCEDURE. CERTIFICATE OF COUNSEL. I hereby certify that I am solicitor and of counsel for the de- fendant in the above-entitled cause, and that in my opinion the foregoing demurrer of C. D., defendant to the bill of complaint of A. B., complainant, is well founded in point of law and proper to be filed in the above cause. G. F., Solicitor and of counsel for defendant. verification by defendant. United States of America, ss * district of C. D., being duly sworn, deposes and says that the foregoing demurrer is not interposed to delay the cause or any proceedings therein. CD. Subscribed and sworn to, etc. J. K., Commissioner. Form No. 47. Plea; Certificate; Verification. [Caption and title as in No. 1.] The plea of C. D., defendant to the bill of complaint. A. B., complainant. This defendant by protestation, not confessing or acknowledging all or any of the matters and things in the complainant's bill men- tioned to be true in such manner and form as the same are therein and thereby set forth and alleged, doth plead thereto, and for plea says that the court ought not to take cognizance of or sustain the aforesaid action, because the plaintiff was at the time of the com- mencement of said suit a citizen of the state of [naming the state], and the defendant at the time of the commencement of said suit was a citizen of the same state of [here name the state], and he pleads these facts to the whole of said bill, and demands judgment of this honorable court whether he ought to be compelled to make any answer to the said bill of complaint ; and prays that he be CIRCUIT COURT FORMS IN EQUITY. 661 hence dismissed with his reasonable costs in this behalf most wrong- fully sustained. G. F., Solicitor and of counsel for defendant. CERTIFICATE OF COUNSEL. I hereby certify that I am solicitor and of counsel for the defend- ant in the foregoing cause, and that in my opinion the foregoing plea is well founded in point of law. G. F., Solicitor and of counsel for defendant. verification by the defendant. United States of America, ss * district of ■ ' C. D., being duly sworn, deposes and says that he is the defend- ant named in the foregoing plea ; that he has read the same [or heard the same read], and knows the contents thereof, and that the same is true of his own knowledge. C. D. Subscribed and sworn to before me this day of , 18 . J. K., Commissioner. verification by defendant corporation. United States of America, district of JCA, "I I, E. F., being duly sworn, depose and say that I am the president [or other officer, naming the same] of the [naming the corporation], defendant in the above cause ; that I have read the foregoing plea, and know the contents thereof, and the same is true, as I verily believe. E. F. [Subscribed and sworn to as above.] The certificate of counsel in such a case would be the same as in other cases. See above. federal pleading, practice and procedure. Form No. 48. General frame of an answer to a bill. [Title as in Form No. 1.] In Equity. The answer of C. D., defendant to the bill of complaint of A. B., complainant. This defendant, now and all times hereafter saving and reserving unto himself all benefit and advantage of exception which can or may be had or taken to the many errors, uncertainties and other imperfections in the said bill contained, for answer thereunto, or to so much and such parts thereof as this defendant is advised it is material or necessary for him to make answer unto, answering, says, etc. This defendant admits, etc. This defendant, further answering, denies, etc. [and so on through the whole bill, admit or deny every material allegation, and set up any matter in defence or avoidance, as the nature of the case may require, and conclude as follows :] And the defendant denies all and all manner of unlawful combi- nation and confederacy, wherewith he is by the said bill charged, without this, that any other matter, cause or thing in the com- plainant's said bill of complaint contained, material or necessary for this defendant to make answer unto, and not herein and here- by well and suflSciently answered, confessed, traversed and avoided or denied, is true, to the knowledge or belief of this defendant; all which matters and things this defendant is ready and willing to aver, maintain and prove, as this honorable court shall direct; and prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. G. F., Solicitor for defendant. circuit court forms in eqtjity. 663 Form No. 49. Exceptions to answer for insufficiency. In the court of the United States for the district of , term, 18 A. B. "j V. V In chancery. C. D. J Exceptions taken by the complainant to the insuflScfent answer of the defendant, C. D., to the complainant's bill of complaint. First. For that the defendant, C. D., has not, to the best and utmost of his knowledge, remembrance, information and belief, answered and set forth whether, etc. [Here set out the ground of exception.] Second. For that the defendant has not, in manner aforesaid, an- swered and set forth whether, etc. [and so on, set out the grounds of each exception as the case may require, using the words of the interrogatory or matter not answered.] In all which particulars the complainant excepts to the answer of t'ae defendant C. D., as evasive, imperfect and insufficient, and pray? that the defendant C. D. may be compelled to put in a full and sufficient answer thereto. G. F., Solicitor for complainant. Form No. 50. Plea to part and ans-wer to the residue of bill. [Title as in Form No. 1.] In Equity. The plefof , defendant, to part, and his answer to the resi- dueof the bill of complaint of , complainant. This defendant, to all the relief sought by the said bill, and also to all thediscovery thereby sought, except the discovery sought by or in respct of so much of the said bill as prays that this defend- ant may mswer and set forth whether, etc. [here the language of the interrcgatories which it is necessary to answer must be intro- duced], ths defendant does plead in bar, and for plea says, etc. [Here set cut the plea.] 661 FEDERAL PLEADING, PRACTICE AND PROCEDURE. All of which matters and things this defendant does aver to be true, and does plead the same in bar to the whole of the said bill, except such part of the discovery thereby sought as aforesaid ; and this defendant prays the judgment of this honorable court, whether he ought to be compelled to make any further or other answer to so much of the said bill as is hereby pleaded to, and he prays to be hence dismissed with his costs. And for answer to such parts of the said bill as are not pleaded to, this defendant says that, etc. [Here insert answer as in pre- cedents, under the head of answers.] , Solicitor for defendant. (For form of certificate of counsel and verification, see No. 47.) Form No. 51. Plea of former suit pending. [Title as in Form No. 1.] Tn Equity. For plea, the defendant says that heretofore, to wit, or the day of , the said present complainant exhibited his bill of complaint in this honorable court against this defend- ant and one E. F., for an account of the moneys raised by the sale of the goods and property in the complainant's present bill mentioned, and claiming such shares and proportions tiereof, and such rights and interests therein, as he now claims by his present bill ; and praying relief against this defendant in the same manner and for the same matters, and to the same effect as the complainant now prays by his said present bill ; and this dfendant and said E. F. appeared and put in their answer to the sail former bill, and the complainant replied thereto ; and the said foimer bill, and the several proceedings in the said former cause, noiv remain depending and as of record in this honorable court, the slid cause being yet undetermined and undismissed. Wherefore, etc. By , Solicitor for de'endant. (For form of certificate of counsel and verification, se No. 47.) circuit court forms in equity. 665 Form No. 52. Common form of replication. [Title as in Form No. 1.] In Equity. The replication of A. B., the above-named complainant, to the answer of C. D., defendant. This repliant, saving and reserving to himself now and at all times hereafter all and all manner of benefits and advantage of excep- tion which may be had and taken to the manifold insufficiencies of the said answer, for replication thereto says that he will aver, main- tain and prove his bill of complaint to be true, certain and sufficient in the law to be answered unto ; and that said answer of the said defendant is uncertain, untrue and insufficient to be replied unto by repliant without this ; that any other matter or thing whatsoever, in the said answer contained, material or effectual in the law to be replied unto, and not herein and hereby well and sufficiently replied unto, confessed and avoided, traversed or denied, is true ; all which matters and things the repliant is and will be ready to aver, main- tain and prove, as this honorable court shall direct, and humbly prays as in and by his said bill he hath already prayed. G. F., Solicitor for complainant. Form No. 53. Order of reference to the master. [Title as in Form No. 1.] In Equity. This cause having come on to be heard upon the motion of the complainant [or defendant] for, etc. [here insert the nature of the motion, and let the recital agree with the facts], the bill of com- plaint herein, the answer of the defendant thereto, the replication of the complainant to such answer, and the proofs taken in the cause, and having been argued by counsel for the respective parties ; Now, therefore, on consideration thereof, it is ordered, adjudged and decreed, and the court doth hereby order, adjudge and decree as follows, viz. : That this cause be and the same is hereby referred to the master in chancery of this court, to inquire and state to the 666 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court, etc. [here insert the subject-matter of reference] ; and for the better discovery of matter aforesaid the parties respectively are to produce before the said master all deeds, books, papers and writings in their possession, custody or power relating thereto, and are to be examined upon oath and interrogatories as the said masters shall direct ; and the said master will cause to come before him all such witnesses whose testimony he may deem necessary, and ex- amine them upon oath and interrogatories touching the matters aforesaid ; and the said master will make his report thereon with all convenient speed ; and if any special questions shall arise, the said master is at liberty to state the same to the court. Form No. 54. Order of reference to master to report, etc. D. L., plaintiff, '\ V. - V In equity. The Columbia Ins. Co., et al., defendants. J Whereas it has been made to appear to this court, by the answer of the said defendants or otherwise, that at the time of the service of the subpoena and injunction of the said H. E. in this case, he held in his hands certain funds and promissory notes of the said Columbia Insurance Company as their agent ; and that the said H. E. claims to have a lien thereon for a balance of account claimed by him to be due him by said company, and also for the reasonable expenses and counsel fees to which he has been subjected in answer to this and other suits against the said company, and other liens : This court doth order that this cause be referred to G. S. H., Esq., as a master in chancery, who, after due notice and hearing of the parties, shall report to this court what amount of funds and promis- sory notes or other choses in action belonging to said company were- at the time of said subpoena and injunction, and what now are, in the hands or possession of said H. E. ; also what balance of account, if any, was due said H. E. from said company at the date of said service ; what reasonable sum for counsel fees or other ex- penses the said H. E. has paid, or is liable to pay or be at, in an- swering this and other suits now pending against the said company; CIRCUIT COURT FORMS IN EQUITY. 667 and also any other claims or demands which the said H. E. may have or claim to hold as a lien upon said funds or property of the Columbia Insurance Company aforesaid. By the court. G. C. W., Clerk. Form No. 55. Order of reference to master ; account ; rests ; state special circum- stances, etc. [Title of cause as in Form No. 1.] In Equity. On reading the pleadings in the above cause, and hearing the counsel of the respective parties, and on consideration thereof, it is ordered that it be referred to E. W., Esq., as a master of this court, to take an account of the dealings and transactions of and between the said parties under the several agreements set forth in the plain- tiff's bill, and to state what, upon the balance of said account, shall appear to be due from either party to the other. And the said master is required to make rests in said accounts, and state whether any and what balances were due from either and which of said parties to the other on the first day of April, A. d. 1850, as well as at the period at which the plaintiff in his said bill alleges said mutual accounts to have terminated. And said master is authorized to state and report to the court any special circumstances needful for explaining said account in his report thereof, and the evidence as to the time when said mutual account did terminate. And for the better taking of said accounts, etc., the parties are required to produce, etc., and to be examined before said master upon oath, either upon interrogatories or viva voce, or by each of said modes, as the said master may direct. And all equities and further directions are reserved until the coming in of said report. And the parties are at liberty to apply to the court as occasion may require.^ By the court. H. W. F., Clerk. 1 Foster w. Goddard, 1 Clifi". 158 (1858). 668 federal pleading, practice and procedure. Form No. 56. Master's report. [Caption and title of cause as in Form No. 1.] term, 18 . In Equity. To the honorable , judge of the In pursuance of an order of this court, made in the above-en- titled cause on the day of , 18 , whereby it was referred to the master in chancery [or a special master in chancery] of this court, to take the proofs of the respective parties, and re- port the same [with his conclusions of law thereon] to the court ; I, the said master in chancery [or the special master appointed therefor by the court], do hereby report that, having first given a written notice to said parties respectively of the time and place when and where the said testimony would be taken, and caused to come before me all such witnesses as the respective parties desired or made known to me, and having been attended by the solicitor of the respective parties, I did, on the day of , 18 , at , in , proceed to take the proof of the respective parties ; and the several witnesses attending having been severally sworn and examined by me, I reduced their testimony to writing, and have attached the same hereto, and made the same a part of this report. I further report that [here insert the conclusion of facts]. I would further report that [here insert the conclusions of law, where that is required by the order of the court]. All of which is respectfully submitted. G. H., Master in chancery. Dated this day of , 18 . Form No. 57. Exception to the master's report. [Caption and title as in No. 1.] In Chancery. Now comes the defendant in the above-entitled cause and makes exceptions to the report of the master in chancery of this court [or CmCUIT COURT FORMS IN EQUITY. 669 of the special master appointed by this court], to whom this cause was referred to take the proofs of the respective parties [or, to take the proofs of the respective parties and to state an account between them] and report the same [or, to take the proofs of the respective parties and report his conclusions of fact and of the law thereon] bj an order of this court made on the day of , 18 ; and which report, executed in compliance with said order, bears date on the day of , 18 . 1. For that the said master has, etc. 2. For that the said master has, etc. Whereas the said master should have, etc. [here state what he should have decided and reported]. Wherefore the defendant excepts to the said report and asks the judgment of the court thereon. J. K., Solicitor for the Form No. 58. Order where defendant appears, or is brought into court by attach- ment and admits his contempt, that he put in his answer within a specified time. [Title as in Form No. 1.] In Equity. It appearing to the court that the defendant, C. D., being in contempt for not appearing or answering to the bill of complain- ant in this cause, a writ of attachment had issued against him, directed to the marshal of , returnable forthwith ; whereupon the marshal has returned that he had attached the de- fendant, C. D,, and had him in custody before the court; and the said C. D. now being before the court, and consenting to put in his answer in this suit, and to pay the costs of his contempt, when duly taxed; on motion of Mr. G. F., solicitor for the complainant, it is ordered that the said C. D. put in his answer to the bill of com- plaint within days from the date of this order, or that the complainant may apply to this court for such further order as may be just. 6t0 federal pleading, practice and procedure. Form No. 59. Order in case of contempt for not ansTvering C. D., defendant denies his contempt; directing the filing of interrogatories, etc. [Title of cause as in Form No. 1.] In Equity. It appearing to the court that the defendant, C. D., being in contempt for not appearing or answering to the bill of complaint in this cause, a writ of attachment had issued against him, directed to the marshal of , returnable forthwith ; Avhereupon the marshal has returned that he had attached the defendant C. D., and had him in custody before the court ; and the said C. D. being now before the court, and denying that he is guilty of the miscon- duct alleged against him, it is ordered that the complainant do ^Yithin days file with the clerk of this court interrogatories specifying the facts and circumstances alleged against the said C. D., defendant, and that he serve a copy thereof on the said C. D. ; and that the said C. D. put in written answers to such interrogator- ies, upon oath, and file the same within days after the time when such interrogatories are served on him, in the office of the clerk of this court. And it is further ordered that it be referred to the master in chancery of this court, to examine the said C. D., on oath, upon the said interrogatories ; and to take such further proofs as either party may produce before him in relation to the alleged contempt; and that he report such answer and proofs to this court. And it is further ordered that the said marshal detain the defend- ant in his custody, and that the said C. D, attend, from day to day, before this court, until the further order of the court. Form No. 60. Order convicting defendant of a contempt after his examination upon interrogatories. [Title of cause as in Form No. 1.] In Equity. A writ of attachment having been heretofore issued out of and under the seal of this court, against the defendant , for CIRCUIT COURT FORMS IN EQUITY. 671 his contempt in not answering the complainant's bill, directed to the marshal of the county of , and returnable forthwith ; and the said marshal having returned that he had attached the said , and taken his body and had him in custody before the court ; and the said having been, by virtue of such attach- ment, personally before the court on the said day of , instant, and denying the alleged contempt, it was thereupon or- dered that the complainant in this cause should, within ' days, file in the office of the clerk of this court interrogatories speci- fying the facts and circumstances alleged against the said ; and that he serve a copy thereof on the said ; and that the said should put in written answers to such interroga- tories, upon oath, and file the same within days after the service of such interrogatories ; and that it should be referred to the master in chancery of this court to examine the said , on oath, upon such interrogatories, and to take such further proofs as either party might produce before him in relation to the alleged contempt ; and it now appearing to the court, from the report of the said master and the answers and proofs thereto annexed, that the said has committed the contempt with which he is charged, and this court now adjudging him to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or did actually, defeat, impair, impede or prejudice the rights of the complainant in this cause ; it is therefore ordered that a fine of dollars be and the same is hereby imposed upon the said for his misconduct. And it is further ordered that the said do pay to the said complainant the costs and ex- penses of the proceedings for such misconduct, and now taxed at the sum of dollars. And it is further ordered that the said be and he is hereby directed to stand committed to the county jail in the county of , there to remain charged with this contempt until he shall have fully answered the said bill of complaint, and paid such fine and costs, unless the court shall see fit sooner to discharge him, and that a warrant issue for that purpose. Upon this order a mittimus, or warrant of commitment for con- tempt in not .appearing, will issue. 672 federal pleading, practice and procedure. Form No. 61. Order to refer second and third ansTvers on the old exceptions. [Title of cause as in Form No. 1.] In Equity. Exceptions having been heretofore taken to the answer of the defendant, C. D., and such answer having been reported insufficient in the matters of the first and fourth exceptions, the defendant has put in a second [or third] answer to the bill in this cause ; which answer the complainant alleges to be insufficient in the matters of the first and fourth exceptions. It is therefore ordered that it be referred to the master in chancery of this court, to whom such ex- ceptions were originally referred, to look into the bill of complaint, the answer of the defendant, and the said first and fourth excep- tions, and to report whether such second [or third] answer is suffi- cient in the matters of the exceptions or not. - Form No. 62. Order of reference when defendant does not submit to answer ex- ceptions. [Title of cause as in Form No. 1.] In Equity. Exceptions for insufficiency having been filed to the answer of the defendant, C. D., on the day of last, and the said C. D. not having submitted to answer said exceptions, it is ordered that it be referred to the master in chancery of this court, to look into said bill and answer of the defendant, C. D., and such exceptions, and report whether said exceptions are well taken or not. Form No. 63. Order for further answ^er after report of master. [Title as in Form No. 1.] In Equity. The answer of the defendant, C. D., having been reported in- sufficient in the matters of the first and fourth exceptions thereto, by the master in chancery, to whom the exceptions of the com- CIRCUIT COURT FORMS IN EQUITY. 673 plainant to such answer were referred, and the report of the said master being approved by the said court, against the defendant, C. D., it is therefore ordered that the said C. D. put in a further answer to the matters of the first and fourth exceptions within days from this date, and pay the costs of such ex- ceptions. Form No. 64. Interrogatories for the examination of a party in contempt for not answering. [Title of cause as in Form No. 1.] In Equity. Interrogatories to be exhibited on the part of complainant, for the examination of , the defendant in this cause, pursuant to an order made in said cause on the day of , 18 . First. Were you not, on or about the day of last, or at any other and what time, duly served with a summons in the above-entitled cause ? When and by whom and how was such service made ? Answer this interrogatory fully and particularly. Second. Is not the writ of summons now shown to you the one served, and a copy of the same left with you ? Answer fully. Third. Were, etc. [Here insert such additional interrogatories as may be deemed necessary.] , Solicitor for complainant. Form No. 65. Order for commitment of defendant for disobeying order to put in his answ^er. [Title of cause as in Form No. 1.] In Equity. An order having been entered in this cause on the day of , 18 , requiring the defendant, , to put in his answer to the bill of complaint within days from the date of said order, or that in default thereof the complainant might be at liberty to apply to this court for such further order as might be just; and it appearing to the court that the defendant, , 43 674 FEDERAL PLEADING, PRACTICE AND PROCEDURE. has failed to put in his answer as required by said order; and this court now adjudging the said to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or did actually, defeat, impair, impede or prejudice the rights or rem- edies of the complainant in this cause, it is thereupon, on motion of Mr. , solicitor for the complainant, ordered that the said be and he is hereby ordered to stand committed to the common jail of the county of , there to remain charged upon this contempt until he shall have put in his answer as afore- said ; unless the court shall see fit sooner to discharge him. And it is further ordered that a warrant issue for that purpose. Form No. 66. Order for marshal to arrest for contempt. [Title of cause as in Form No. 1.] In Equity. The defendant, C. D., being in contempt for not appearing and answering to the bill of complaint in this cause, and a commission of rebellion having been heretofore issued out of and under the seal of this court, directed to certain commissioners therein named, com- manding them to attach the said C. D., as a rebel and contemner of the law, and to have him before this court on the day of instant; and the said commissioners having returned that they had made diligent search and inquiry after the said C. D., so as to attach his body by virtue of the said commission, but notwith- standing all their endeavors they could not meet with him for that purpose, as by such commission and the return thereto appears : it is thereupon ordered that the marshal, now attending this court at its present term, and executing all the powers and duties of a sergeant-at-arms, do forthwith go and take the said C. D. into his custody, and him safely keep and bring him immediately into this court, before the court to answer for his contempt, and to do and receive what this court shall thereupon further order in the premises. And it is further ordered that the said marshal do with all con- venient speed certify to this court, under his hand, his doings in the premises. Upon this order a warrant to the marshal will issue. circuit court forms in equity. 675 Form No. 67. Order for a sequestration. [Title of cause as in Form No. 1.] In Equity. The defendant being in contempt for not appearing and answer- ing the bill of complaint in this cause, and a warrant having been issued to the marshal of the county of , attending the court at its present term, and as such executing all the duties of a ser- geant-at-arms, requiring him forthwith to go and take the said into his custody and bring him into this court to answer for his contempt, in pursuance of an order of this court made on the day of ; and the said marshal, acting as sergeant- at-arms, having returned that he had made diligent search and inquiry after the said , but that he did so abscond and secrete himself that he could not be found to be apprehended, as by the said warrant and the return thereof appears : it is therefore ordered that a commission of sequestration do issue against the said , directed to E. F., G. H. and J. K., commissioners, directing them to sequester the defendant, , personal estate, and the rents, issue and profits of his real estate, until the defendant, , shall appear to the bill of complaint in this cause, clear his contempt, and this court shall make an order to the contrary. Upon this order being made, a writ of sequestration will issue. Form No. 68. Order for examination of defendant on interrogatories, etc., on third answ^er being held insufficient. [Title as in Form No. 1.] In Equity. The third answer of the defendant, , having been reported insufficient, on a reference to the master upon the original exceptions, in the matters of the first and fourth exceptions, and the report of the said master having been filed, and having become absolute, an attachment was thereupon issued against the said , in pursuance of an order of this court rendered on the day of last. And the said , now 676 FEDERAL PLEADING, PRACTICE AND PROCEDURE. being personally before the court by virtue of the said attachment, and this court now adjudging the defendant to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or actually did, defeat, impair, impede or prejudice the rights or reme- dies of the complainant in this cause ; it is therefore ordered that the said be examined upon interrogatories before the master in chancery of this court, to the points wherein his said third answer is reported insufficient ; and that he stand committed to the common jail of the county of , until he shall have answered such interrogatories to the satisfaction of the said master, and paid the costs incurred by reason of his default, now taxed at dollars ; and that a warrant issue for that purpose. And it is further ordered that the marshal of said county do keep the defendant in his actual custody until the court shall have made some order in the premises, and that he take the said before the said master to be examined, at such times as such master shall appoint. Form No. 69. Order for an attachment on third answer being held insufficient. [Title as in Form No. L] In Equity. The third answer filed by the defendant, , having been reported insufficient, on a reference to the master in chancery upon the original exceptions, in the matters of the first and fourth ex- ceptions, and the report of said master having been filed and hav- ing become absolute, it is ordered that an attachment issue against the defendant, Form No. 70. Order for temporary injunction. [Caption and title of cause as in Form No. 1.] In Equity. On reading and filing the bill of complaint in this cause, affida- vits, etc., and on motion of J. E., solicitor for complainant, ordered CIRCUIT COURT FORMS IN EQUITY. 677 that the defendant show cause at the next special term of this court to be held at , on the day of next, why a general injunction should not issue against him as prayed for by the said bill of complaint, and that in the meantime a temporary injunction be issued in this cause, according to the prayer of the said bill. Form No. 71. Order allowing the complainant to dismiss his bill. [Title of cause as in Form No. 1.] In Equity. The complainant applying to dismiss his bill in this cause, on mo- tion of Mr. , solicitor for complainant, it is ordered that leave to dismiss the same be granted accordingly, on the complain- ant paying to the defendant his costs in this suit, to be taxed. Form No. 72. Order to pay money into court. [Title of cause as in Form No. 1.] In Equity. On reading and filing the bill and answer in this cause, and on motion of Mr. , solicitor for the defendant, in opposition to said motion, it is ordered that the defendant, , do, within days from the date of this order, pay into the hands of the clerk of this court, in trust in this cause, the sum of dollars, admitted by the answer of the defendant to be due from him ; and that when such money is paid in it be deposited by said clerk, in trust, in the bank of , to the credit of this cause, there to remain until the further order of this court. Form No. 73. Order directing plea to stand for an ansv^er. [Title of cause as in Form No. 1.] In Equity. The plea of the defendant, C. D., to the bill of complaint in this cause having heretofore come on to be argued, and counsel for the I 678 FEDERAL PLEADING, PRACTICE AND PROCEDURE. respective parties having been heard thereupon, it is ordered that the said plea do stand for an answer, with liberty to the complain- ant to except thereto. Form No. 74. Order of reference of a plea of former suit pending. [Title of cause as in Form No. 1.] In Equity. On filing a plea in this cause averring that there is a former suit depending in this court for the same matters as are involved in the present suit, it is therefore ordered that it be referred to the master in chancery of this court, to look into the bill and the plea in this cause, and the bill in the said plea alleged to have been exhibited by the complainant against the defendant previous to the commence- ment of this suit, and into the other pleadings and proceedings therein, and to report whether the said plea is true. Form No. 75. Order for cause to stand over to add ne'W parties. [Caption and title of cause as in Form No. 1.] In Equity. This cause coming on to be heard this day, and counsel for both parties having been in part heard, and it appearing to the court that E. F. and G. H. are necessary parties to this cause, it is or- dered that this cause do stand over, to the end that the complainant may make the said E. F. and G. H. parties thereto, either by amendment or supplemental bill, as he may be advised. Form No. 76. Order for cause to stand over to supply proofs. [Title of cause as in Form No. 1.] In Equity. This cause coming on to be heard this day, and counsel for both parties having been in part heard ; and it appearing to the court that the complainant has omitted to introduce proof of the death of E. F., his intestate, it is ordered that this cause do stand over. CIRCUIT COURT FORMS IN EQUITY. 679 to the end that the complainant may examine witnesses to prove the death of such intestate. Form No. 77. Master's report upon exceptions to answer for insufficiency. In the court, etc., term, 18 A. B. ^ V. /-In chancery. C. D. j To the honorable , judge of the court of the county of , in the state of . In chancery sitting : In pursuance of an order of this court made in the above-en- titled cause, on the day of , 18 , whereby it was referred to me, as master in chancery of this court, to look into the complainant's bill of complaint, the answer of the defend- ant, , and the exceptions taken to said answer by the complainant, and report whether said exceptions are well taken or not : I, the master in chancery, do hereby respectfully certify and report that, having been attended by the counsel of the respective parties, and having looked into said bill and answer and the ex- ceptions taken thereto, and having fully considered the same, I find that the first and fourth exceptions to said answer are well taken, and that the second, third and fifth exceptions are not well taken. All of which is respectfully submitted. , Master in chancery, county. Form No. 78. Exceptions to master's report on exceptions to ansv/er. [Caption and title of cause as in Form No. 1.] In Equity. Exceptions taken by the complainant to the report of the master in chancery of this court, to whom it was referred to report as to the exceptions filed to the answer of the defendant. First. For that the said master has, in and by his said report, certified that, etc. [Here set out the words of the report.] Whereas 680 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the said master ought to have certified that the exceptions to the answer of the defendant, , were well taken, and that the said answer of the defendant, , was imperfect, insufficient and evasive in the particulars excepted to. Second. For that the said master has certified, etc. (and so on). In all of which particulars the report of the said master is erro- neous, and the complainant appeals therefrom to the judgment of this honorable court. , Solicitor for complainant. Form No. 79. Masters report as to sufiBciency of defendant's examination. [Title of cause as in Form No. 1.] To the honorable , judge of the court of the county of , in the state of . In chancery sitting : In pursuance of an order of this court made in the above-enti- tled cause, on the day of , 18 , whereby it was referred to me, as master in chancery of this court, to examine the defendant, , on interrogatories to the points wherein his third answer to the bill in this cause was reported insufficient ; -I, the said master, do hereby respectfully certify and report that, having been attended by the counsel for the respective parties, and having caused the said to be brouo-ht before me, I examined him upon oath upon the written interrogatories filed for that purpose, and also viva voce, and that his examination thereto is contained in a schedule hereto annexed, marked A. And I do further certify and report that, in my opinion, the said examination is sufficient. All of which is respectfully submitted. Dated at, etc. , Master in chancery. Form No. 80. Commissioi) to take testimony. [Caption and title of cause as in Form No. 1.] The President of the United States of America to A. B., Greeting : Know ye, that we, in confidence of your prudence and fidelity, have appointed you, A. B., commissioner, and by these presents do CIRCUIT COURT FORMS IN EQUITY. 681 give you, A. B., full power and authority diligently to examine upon corporal oath or affirmation, before you to be taken and upon the interrogatories hereunto annexed, C. D. and E. F. as witnesses on the part of the [plaintiff or defendant] in a certain cause now pending and undetermined in the circuit court of the United States of America for the district of New York, second circuit, wherein is plaintiff and is defendant. And we do further empower you, A. B., to examine on the same behalf, and in like manner, any other person or persons who may be produced as a witness before you ; and we do hereby require you, A. B., before whom such testimony may be taken, to reduce the same to writing and to close it up under your hand and seal, directed to , clerk of said court, as soon as may be con- venient after the execution of this commission ; and that you return the same, when executed as above directed, with the title of the cause endorsed on the envelope of the commission. Witness the honorable Morrison R. Waite, Chief Justice of the Supreme Court of the United States, at the city of Washington, this day of , in the year of our Lord one thousand eight hundred and , and of our independence the Joseph M. Duvel, Clerk. G. H., Attorney. Form No. 81. Commission of dedimus protestatum. [Caption and title of cause as in Form No. 1.] The President of the United States of America, to A. B., C. D. and E. F., Greeting: Know ye, that in confidence of your prudence and fidelity, you have been appointed, and by these presents you, or any two or more of you, are invested with full power and authority to exam- ine on his corporal oath, as a witness in a case de- pending in the circuit court of the United States for the circuit and district of (or, in the district court of the United States in and for the district of ), wherein is plaintiff and defendant, on the part of the upon the interrogatories annexed to this commission ; and therefore 683 FEDERAL PLEADING, PRACTICE AND PROCEDURE. you are hereby commanded that you, or any two or more of you, at certain days and places to be appointed by you for that purpose, do cause the said to come before you, and then and there examine him on oath upon the said interrogatories, and that you take such examination and reduce the same into writing, and return the same annexed to this writ, closed up under your seals, or the seals of any two or more of you, into the said circuit (or dis- trict) court, before the judges (or judge) thereof, with all conven- ient speed. Witness, etc. [The interrogatories and cross-interrogatories (if any) to be an- nexed to the commission, and the depositions, are to be drawn up in the usual form.] Form No. 82. Affidavit for habeas corpus ad testificandum. United States circuit court, district of A. B. 1 V. V ss : C. D. J , of , the above-named plaintiff, maketh oath and saith that , now a prisoner for debt (as the case may be) in the custody of the sheriff of (or as the case may be), is a material witness for this deponent at the trial of this cause, without whose testimony, as he is advised by his counsel and verily believes, this deponent cannot safely proceed to the trial thereof. Sworn, etc. Form No. 83. Abstracts of pleadings, etc. In the court, etc., term, 18 . A. B. V In chancery. V. C. D. The bill in this cause was filed on the day of , and the replication on the day of 18 , and the replication on the day of , 18 CIRCUIT COURT FORMS IN EQUITY. 683 The following witnesses were examined on the day of , 18 , before the master in chancery, in pursuance of an order of referee, made on the day of , 18 , to wit, E. F. and G. H. on the part of the complainant, and J. K. and L. M. on the part of the defendant. The following documents were also produced, to wit, etc. The object of the bill is to procure a conveyance from the defendant of the real estate described in the bill, and being the, etc. [Here insert the description.] Form No. 84. Agreement to submit the cause on printed arguments. In the court, term, 18 A. B. ^ V. V In chancery. C. D. J It is stipulated and agreed that this cause be submitted to the court on printed arguments ; the complainant's counsel to serve his argument within days, and the defendant's counsel to answer the same within days thereafter, and the com- plainant's counsel to reply within days after the de- fendant's argument shall have been served. Dated, etc. , Solicitor for complainant. , Solicitor for defendant. Form No. 85. Abstract of pleadings and points in issue. [Title of cause as in Form No. 1.] In Equity. Bill. Answer. States that before complain- Admitted. But the defend- ant purchased lot 7, etc., L. M. ant on, etc., purchased of L. M. owned the improvements, etc. all the improvements. 684 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Lot 9 was leased to L. M. on, Denies, etc. etc., but by an agreement, etc. On the day of , Substantially admitted. etc., both parties, etc. Complainant paid, etc. Denied. Usual charge of confederacy, etc. Answer on oath prayed for. Prayer for injunction, that General traverse, and usual defendant may be decreed to conclusion. execute conveyance, and for general relief. Replication. Evidence. For complainant, E. F. tes- For defendant, J. R. testifies tifies that, etc. that, etc. G. H. testifies that, etc. L. M. testifies that, etc. FoRxM No. 86. Briefs and points on hearing. In the court, etc., term, 18 . A. B. ■) V. V In chancery. C. D. J I. The complainant has a perfect remedy at law whereby he may avail himself of every ground of complaint set forth in the bill. Authorities cited. XL The court of chancery will not assume jurisdiction in this case upon the ground of its being a bill of peace. Because, First. The bill is filed only against a single party, which party has neither commenced nor threatened to commence a multiplicity of suits, etc. Second. The apprehensions of the complainant that, etc. Third. That, etc. Authorities cited. CIRCUIT COURT FORMS IN EQUITY. 685 III. The defendants are authorized by the act of, etc., to pass the ordinance in question. Authorities cited. lY. The ordinance is a reasonable regulation of trade, etc. Authorities cited. Form No. 87. Decree on staying infringement after verdict establishing patent ; temporary injunction. [Title of cause as in Form No. 1.1 In Equity. The court doth order that an injunction be awarded to restrain the defendants, C. and D., etc., their agents, servants and workmen, during the continuance of the letters patent in the plaintiffs' bill mentioned, and whilst the same may be in force, from using or em- ploying without the leave or license of the plaintiffs, in or for the purpose of the folding of the flaps of envelopes in succession one after the other, or for the gumming or cementing together the edges of such flaps and causing such edges to adhere together whilst in course of being folded, any machines similar to the machine which was produced for inspection at their factory on the day of , as in the plaintiffs' bill stated, or any machinery, mech- anism or mechanical contrivance made or arranged according to the plaintiffs' said patent inventions, or differing therefrom only colorably or by the substitution of mere mechanical equivalents for the same, and from folding the flaps of envelopes in succession one after the other, and gumming or cementing the edges of such flaps and causing the same to adhere together whilst such flaps are in course of folding by means of any such machine, machinery, mechanism or mechanical contrivances, and from selling or offering for sale any envelopes which have been heretofore manufactured by the said defendants, their agents, servants or workmen, and in the manu- facture whereof any such machine, machinery or mechanical con- trivance hath or have been used or employed for the purpose of folding the flaps of such envelopes in succession, or for gumming or 686 FEDERAL PLEADING, PRACTICE AND PROCEDURE. cementing, or causing the same to adhere together whilst such flaps have been in the course of being folded, and generally from making, using, exercising, putting in practice or vending plaintiffs' patent inventions, or any or either of them, without their license or au- thority, and from or in anywise conterfeiting, imitating or resem- bling the same, until, etc.^ Form No. 88. Decree of validity of patent in reference to an infringement ; account and perpetual injunction. [Title of cause as in Form No. 1.] In Equity. R. W., H. S. and D. B. W. v. H. B., Jr., and H. F. This cause having been brought to a final hearing upon the plead- ing and proofs, and counsel for the respective parties having been heard and the same having been duly considered by the court : It is found and hereby ordered, adjudged and decreed that the letters patent No. 12,649, granted unto the said R. "W., April 3, 1855, is a good and valid patent, being the patent referred to in the plain- tiffs' bill, and that the said R. W. was the original and first inventor of the improvement described and claimed in the said patent ; and also that the said defendants have infringed upon the said patent, and upon the exclusive rights of the plaintiffs under the same. And it is further ordered, adjudged and decreed that the plain- tiffs do recover of the defendants the profits, gains and advantages which the said defendants or any or either of them have received or made, or which have arisen or accrued to them or either of them from said infringement of said patents, by the manufacture, use or sale of the improvements described and secured by the said letters patent at any and all times since the seventeenth day of November, 1856. And it is further ordered, adjudged and decreed that the said plaintiffs do recover of the defendants their costs and charges and disbursement in this suit, to be taxed. And it is further ordered, adjudged and decreed that it be re- 1 De la Rue v. Dickinson, 2 Seton Dec. (Eng. ed., 1862) 911. CIRCUIT COURT FORMS IN EQUITY. 687 ferred to K. G. W., one of the masters of this court, residing in the city of New York, to ascertain, take and state and report to the court an account of the gains, profits and advantages which the said defendants or either of them have received, or which have arisen or accrued to them or either of them from infringing the said exclusive rights of the said plaintiffs by the manufacture, use and sale of the said improvements patented in said letters patent, since the said seventeenth day of November, 1856. And it is further ordered, adjudged and decreed that the plain- tiffs, on such accounting, have the right to cause the examination of said defendants, and each of them, ore tenus or otherwise, and also to the production of the books, vouchers and documents of each of them, and that the said defendants attend for such purpose before said master from time to time as said master shall direct. And it is also further ordered, adjudged and decreed that a per- petual injunction be issued in this suit against the said defendants, according to the prayer of this bill. Form No. 89. Decree of Supreme Court where the court has no jurisdiction. [Title of cause as in Form No. 1.] In Equity. This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Mas- sachusetts, and was argued by counsel. On consideration whereof it is the opinion of this court that neither the said circuit court nor the district court from which this case was removed to the said circuit court had jurisdiction of this cause, and that consequently this court has not jurisdiction but for the purpose of reversing the decree of the said circuit court. Whereupon it is now here ordered and decreed by this court that the decree of the said circuit court entertaining jurisdic- tion in this cause be and the same is hereby reversed for the want of jurisdiction in that court, and that this appeal be and the same is hereby dissmissed for the want of jurisdiction ; and that this cause be and the same is hereby remanded to the said circuit court, with di- rections to proceed therein in conformity to the opinion of this court. 688 • federal pleading, practice and procedure. Form No. 90. Decree of perpetual injunction upon printing, publishing, etc. [Title of cause as in Form No. 1.] In Equity. This cause came on to be heard, at this term, upon the bill and answer and the master's report, and was argued by counsel ; on consideration whereof, it is ordered, adjudged and decreed by the court that the master's report be and the same hereby is approved and confirmed; and thereupon it is further ordered, adjudged and decreed by the court that said defendants be and they hereby are severally and perpetually restrained and enjoined from printing, publishing, selling or exposing to sale, or causing or being in any way concerned in the printing, publishing, selling or exposing to sale of, any copy or copies of the whole or any part of the three hundred and fifty-three pages copied, as reported by the master, in said Life of Washington, mentioned in the bill and answer, pub- lished by the defendants, from the Life and Writings of Washing- ton, mentioned in the bill and answer, published by the plaintiffs, the plaintiffs waiving the account prayed for in the bill, the court does not order such account.^ Form No. 91. Decree for perpetual injunction, restraining the constructing, using or selling of a planing-machine. [Title of cause as in Form No. 1.] In Equity. This cause having been brought on to be heard upon pleadings and proofs, and Mr. Wm. H. Seward having been heard on the part of the plaintiff, and Mr. Marcus T. Reynolds on the part of the defendants, and due deliberation having been had, it is ordered, adjudged and decreed* that the defendants in this cause be and they 1 Folsom V. Marsh, 2 Story C. C. 100. CIRCUIT COURT FORMS IN EQUITY. 689 are hereby perpetually enjoined from any further constructing or using in any manner, and from selling and disposing in any man- ner of, the two planing-machines mentioned in said bill as erected by them in the town of Watervliet, in the county of Albany, or either of said machines, which machines are machines for dressinoj boards and planks by planing, tonguing or grooving, or either, to- gether or in some separate combination constructed upon the prin- ciple and plan specified and described in the schedule annexed to letters patent issued to Wm. W. Woodworth, administrator of Wm. Woodworth, on the 8th day of July, 1845 ; which letters were a renewal upon a formal surrender for an imperfect specification of letters patent issued to Wm. Woodworth on the 27th day of De- cember, 1820, and extended on the 16th day of November, 1842, to take eifect on the 27th day of December, 1842, and again ex- tended by act of Congress on the 26^th day of February, 1845, and from infringing upon and violating the said patent in any way whatsoever. And it is further ordered, adjudged and decreed that it be re- ferred to Julius Rhodes, Esq., of Albany, counsellor-at-law, as a master pro hac vice in this cause, with the usual powers of a master of this court, to ascertain and report the damages which the plain- tiflf has sustained, arising from the infringement of his rights by the defendants, by the use of the said two machines by them. And it is further ordered that the report of the said master herein may be made either to this court in term time or to one of the judges thereof at chambers in vacation ; and that either party may, on ten days' notice to the other of time and place, apply either to this court in term time or to one of the judges thereof at chambers in vacation for confirmation of such report. And it is further ordered that either party may at any time, on ten days' notice of time and place to the other, apply to this court in term time, or to one of the judges thereof in vacation, for further directions in the premises. And the question of costs, and all other questions in this cause, are hereby reserved until the coming in of the said report. And the complainant shall either pay to the defendants, or set off against the damages to be awarded, the sum of two thousand dollars, which he offered in his bill to pay them, with interest from the 5th of December, 1845. 44 690 federal pleading, practice and procedure. Form No. 92. Decree of perpetual injunction on the use of another's trade-marks. [Title of cause as in Form No. 1.] In Equity. This cause came on to be heard at this term upon the bill, answer and proofs in the cause, and was argued by counsel on behalf of the plaintiffs, no counsel appearing for the defendant [the counsel who had previously appeared for him having voluntarily withdrawn from the cause]. On consideration whereof, it is ordered, adjudged and decreed by the court that a perpetual injunction be granted in the premises according to the prayer of the bill, and that the plaintiffs do recover costs against the defendant, to be taxed by the clerk under the direction of the court.^ Form No. 93. Order staying the use of a trade-mark as to cutlery. [Title as in Form No. 1.] In Equity. This court doth order that an injunction be awarded to restrain the defendants, W. etc., respectively (and every and each of them), and the respective servants, agents and workmen of the said de- fendants (and of every and each of them), from stamping, cutting or engraving, or causing or permitting to be stamped, cut or engraved upon any tools or other articles manufactured for or bought or sold by them, the words " Collins & Co., Hartford, Cast Steel, War- ranted," or any other words similar to or only colorably differing from such words, or any words or marks so contrived as to repre- sent or lead to the belief that the said tools or other articles were the manufacture of the said Collins & Co. ; and from affixing or causing to be affixed to any tools or other articles manufactured for or bought, procured or sold by them, or otherwise using or employ- 1 Taylor v. Carpenter, 3 Story C. C. 458. CIRCUIT COURT FORMS IN EQUITY. 691 ing, or causing or permitting to be used or employed, any labels containing the words (etc., as above), or any label or labels similar to or only colorably differing from the labels made or used by the said company as in the plaintiff's bill mentioned, or so contrived and prepared as to represent or lead to the belief that the tools or other articles manufactured or sold by the defendants were the manufacture of the said company ; and also from selling, exporting, consigning or otherwise disposing of any tools or other articles having or bearing thereon any such words, marks or labels as in the said bill mentioned, or any other words, marks or labels only color- ably differing from the said marks and labels of the said company, until, etc. Form No. 94. Order for temporary injunction to restrain defendant until ansM7er is put in. * [Title of cause as in Form No. 1.] In Equity. The President of the United States of America to C. D., and to his counsellors, attorneys, solicitors and agents, and each and every of them, Crreeting : Whereas it has been represented to us in our court of chancery, on the part of A. B., complainant, that he has lately exhibited his bill of complaint in the circuit court of the United States for the circuity against you, the said C. D., to be relieved touch- ing the matters therein complained of; in which bill it is stated, among other things, that you are combining and confederating with others to injure the said complainant touching the matters set forth in the said bill, and that your actings and doings in the premises are contrary to equity and good conscience. We, therefore, in con- sideration thereof, and of the particular matters in the said bill set forth, do strictly command you, the said C. D., and the persons before mentioned, and each and every of you, under the penalty of ten thousand dollars, to be levied upon your bonds, goods and chattels to our use, that you do absolutely desist and refrain from until you, the said C. D., shall have put in your answer 692 FEDERAL PLEADING, PRACTICE AND PROCEDURE. in this cause, and our said court shall have made further order thereupon. AVitness, , Chief Justice of the United States, at , the daj of , one thousand eight hundred and forty- three. , Register [or clerk]. , Solicitor. Endorsed "By the court." , Register. Form No. 95. Final decree, dismissing bill at the hearing. [Title of cause as in Form No. 1.] In Equity. [Proceed as in Form No. 91, ante., p. 688, to the *, and continue:) That the complainant's said bill of complaint be and the same is hereby dismissed, with costs to the defendant to be taxed. . Form No. 96. Decretal order. Another form. [Title same as in Form No. 1.] In Equity. This cause having been heretofore heard on argument by counsel for the respective parties, on the pleadings and proofs, and the court having considered the same, and being of the opinion that the complainant was the first and original inventor of the as described and claimed in his patent, adjudges and decrees that the defendant has infringed the said patent in making and vending the [patented article, whatsoever it may be], as charged in the said bill of complaint, and that the said complainant is entitled to have a perpetual injunction to restrain said defendant, his agents, servants, and all claiming or holding under or through him, from making, vending or using, or in any manner disposing of [the patented arti- CIRCUIT COURT FORMS IN EQUITY. 693 cle] embracing the invention or improvements described in said letters patent, namely [describe the patented article]. And it is further adjudged and decreed that the cause be referred to , esquire, the clerk of this court [or , esquire, a master pro hac vice], to ascertain and report the number of [describe patented article] made and also the number sold by the said defendant since the day of , A. D. 18 , and the damages complainant has sustained, or use and profits the defendant has derived by reason of such infringement since the time last aforesaid. And upon the coming in and confirmation of the said report that said complainant have a decree and execution for the amount found due to him, and also for the costs in this suit to be taxed. Form No. 97. IV^aster's summons. [Title of cause same as in Form No. 1.] In Equity. In pursuance of the authority contained in a decretal order, made in the above-entitled cause by the Hon. , one of the judges of this court, at a term, held at , in said district, on the day of , 18 , I, the sub- scriber, one of the masters of the said court, do hereby summon you, , as defendant [or to appear for a personal examina- tion and to produce all books, vouchers and documents concerning accounts in this suit, or A. B. and C. D. as witnesses], to appear before me, , in said district, on the day of , 18 , at o'clock in the noon, to attend a hearing before me, the said master, of the matters in reference in the said cause, to be had by virtue of the order of the said court above re- ferred to. And hereof you are not to fail at your peril. C H., Master in equity. Dated the day of , 18 . I direct the above summons to be served previous to the return thereof, days. C. H., Master in equity. 694 federal pleading, practice and procedure. Form No. 98. Master's report. [Title as in Form No. 1.] In Equity. To the Hon. , judges in said court: In pursuance of a decretal order made and entered in this cause, and bearing date on the day of , A. D. 18 , at a stated term of this court held at the , in the city of , by which it was referred to C. H., Esq., of , one of the masters of this court, to take and state an account of the use, gains and profits by defendants in the manufacture and sale of [machine or other article] described in the plaintiff's bill of complaint, and which the complainant would have received but for the infringements and unlawful acts and doings of the said defendants as specified therein, I, the subscriber, a master in said court, do respectfully report that I have proceeded to in- vestigate the matters so referred to me, and that, pursuant to a summons duly issued, I have been attended by the plaintiff's solic- itor, G. F., Esq., and also by C. D. and E. F., defendants, in the city of , aforesaid, where, after taking due proofs, I find and report that the amount thereof is the sum of dollars. I do, therefore, respectfully report that the said defendants should be decreed to pay the said plaintiff the sum of dollars, besides costs to be taxed. I respectfully refer to schedules A, B, C, hereto annexed, as making a part of this my report. All which is respectfully submitted. C. H., United States master. Dated, Form No. 99. Exceptions to report. [Title as in Form No. 1.] In Equity. Exceptions taken by the to the report made herein by C. H., the master pro hac vice, to whom this cause was re- CIRCUIT COURT FORMS IN EQUITY. 695 ferred by an order of this court on the day of , A. D. 18 , and bj the decree made herein on the day of , A. D. 18 , which report bears date the day of , A. D. 18 First exception. For that the master in his report, etc. [here state exception]. Second exception. For that, etc. Form No. 100. Order for a feigned issue, etc. [Title as in Form No. 1,] In Equity. A motion having been made in this cause on the part of the defendants for a feigned issue to try the validity of complainant's patent for an improvement in , and also for leave to amend the answer on file, or to file a supplemental answer, on hearing Mr. , on the part of the defendants, and Mr. , on the part of the complainant, ordered : that a feigned issue be granted, and that the following questions be tried at law at the next circuit court of the United States, to be held at , viz. : 1st. Whether or not the complainant is the first and original inventor of the improvement in , for which the above patent has been granted ? 2d. Whether or not the manufactured by the defendants are substantially identical with those of the complainant in their construction and mode of operation ? 3d. If an infringement is made out by the complainant, what amount of damages has been sustained by him ? And it is further ordered that the defendants have leave to file an amended answer or a supplemental answer to the bill filed within thirty days from the service of a copy of this order. And it is further ordered that the defendants give the same notice of the defence on the trial of the above issue at law, and within the same time that would be required if the trial was in a suit at law. 696 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Form No. 101. Final decree. [Title as in form No. 1.] In Equity. This cause having been heretofore brought to a hearing upon the report of , Esq., of the court, to whom it was referred, to ascertain and report the number of embracing the principle of the complainant's invention, as described and claimed in his patent, as mentioned and set forth in the bill of com- plaint in this cause that had been made, and also the number sold by the said defendants, or either of them, since the day of , 18 , and the damages the complainant had sustained, or use and profits the defendant, , had derived by reason of the infringement of such patent since the time last aforesaid, which report bears date ; and also upon exceptions taken to the said report on the part of said complainant; and also on the part of the said defendants, and upon the equity reserved, and the said cause having been argued by , counsel for the said complainant, and by , counsel for the defendants, and due deliberation had thereon : It is ordered, adjudged and decreed, and this court doth hereby order, adjudge and decree, that [here state the decree]. It is further ordered, adjudged and decreed, and this court doth further order, adjudge, determine and decree, that the said de- fendants are respectively liable to the said complainant. And it is further ordered, adjudged and decreed, and this court doth order, adjudge and decree, that each of the said defendants pay to the said complainant [here state the amount adjudged]. And it is further ordered, adjudged and decreed that the said defendants pay to the said complainant his costs in this suit, to be taxed, and that have execution for such costs, and for the sums above decreed, to be paid as aforesaid. circuit court forms in equity. 697 Form No. 102. Taxed costs. [Title as in Form No. 1.] In Equity. Solicitor's fee, . . $20 00 Disbursements : Paid postages and express charges, .... Paid for certified papers, ...... Depositions at $2 50, taken and used, . . . . ' Marshal's fees : Serving subpoenas at $2 each, ..... Travel at 6 cts., going from place of service to place of return, miles, . . . . . . • . Clerk's fees : Filing bill of complaint, 10 cts. ; entering order, 15 cts., 25 Copying order, 10 cts. ; certificate and seal, 35 cts., . 45 Issuing subpoena, ....... 1 00 Copies subpoenas, 2 folios, 20 cts. ; certificate 35 cts., being at 55 cts. per copy, ...... Filing subpoena and entering return of service, . . 25 Copying order on defendant's appearance, 1 folio certified, 45 Copying defendant's answer; folio at 10 cts. and certifi- cate 35 cts., ....... Filing replication, ....... 10 Filing depositions and papers at 10 cts. each, Issuing injunction, %1 ; copies, 4 folios certified at 75 cts Copying depositions, folios at 10 cts., $ ; certificate 35 cts., ....... Making and enrolling decree, folios at 15 cts., Copying enrolled decree, folios at 10 cts., % , and cer tificate 35 cts. (if required), .... Final fee on issue, docketing, indexing, etc., . . . 3 00 Issuing execution, $1 ; filing execution and entering re- turn, 25 cts., . . . . . . . 1 25 Taxed at $ this day of A. D. 18 . Clerk. 698 federal pleading, practice and procedure. Form No. 103. Perpetual injunction. In JEquity. The President of the United States of America to , and to counsellors, attorneys, solicitors and agents, and each and every of them, Greeting : Whereas it has been represented to us in our circuit court in equity for the district of New York, on the part of , plaintiff, that have lately exhibited bill of complaint in our said circuit court for the district of New York, against you, the said , to be relieved touching the matters therein complained of; in which bill it is stated, amongst other things, that you are combining and confederating with others to injure the said plaintiff touching the matters set forth in the said bill, and that your actings and doings in the premises are contrary to equity and good conscience : We, therefore, in consideration thereof, and of the particular matters in the said bill set forth, do strictly command you, the said , and the persons before mentioned, and each and every of you, under the penalty of ten thousand dollars, to be levied on your lands, goods and chattels, to our use, that you do absolutely desist and refrain from until the further order of our said circuit court. Witness , Chief Justice of the Supreme Court of the United States, at the city of , the day of , one thousand eight hundred and ' . , Clerk. G. F., Solicitor. Form No. 104. Revised decree ; form of entry. [Title of cause as in Form No. 1.] In Equity. The above-named defendants, , heretofore duly appealed to the Supreme Court of the United States, from certain parts of the final decree made by this court in this cause, and bearing date the ; and the said Supreme Court of the United States, CIRCUIT COURT FORMS IN EQUITY. 699 having at the term, 18 , duly heard the said appeal upon the transcript of the record, and having thereupon ordered, adjudged and decreed that so much of the said decree of this court as allows the said complainant costs, and the sum of for interest on the profits found for him, was erroneous, and should be reversed and annulled, and that the residue of the said decree of this court should be affirmed ; and the said Supreme Court having remanded the said cause to this court, with instructions that such proceedings be had in said cause as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding, which said decree, order and instructions appear to this court by the mandate of the said Supreme Court : Now, therefore, on filing the said mandate, ordered [here enter as required by the mandate]. Form No. 105. Enrollment of decree. At a term of the circuit court of the United States for the district of , held at the city of , in the said district, on the day of , A. D. 18 Present: — The honorable , one of the judges of said court. A. B. ") V. V In equity. C. D. J The plaintiff, , filed his bill of complaint, which is hereto annexed, on the day of , 18 , against the de- fendant, ; a subpoena to appear and answer in said cause was thereupon issued, returnable on the day of , 18 , and was served personally previous to the return day thereof on the defendant. The defendant appeared in said cause by as his solicitor. On the day of , 18 , the defendant filed his answer to said bill, which answer is hereto annexed. A replication to said answer was filed on the day of , 18 , which replication is hereto annexed. That on the day of , 18 , a report, and the '00 FEDERAL PLEADING, PRACTICE AND PROCEDURE. oral and written evidence, proofs and exhibits referred to therein, as hereto annexed, were all duly filed. On the day of , 18 , the defendant filed his exceptions to said report, which exceptions are hereunto annexed. On the day of , 18 , the plaintiff" filed his exceptions to said report, which exceptions are hereunto annexed. On the day of , 18 , the said cause having been previously brought to a hearing, a final decree was made and entered therein in the words and figures following, to wit : [Here insert the decree.] Whereupon the said pleadings, proofs, orders and final decree and tax costs, together with other papers in said cause, are duly annexed hereto, and this decree is duly signed, filed and enrolled, pursuant to the rules and practice of the court. E. K., Judge [or clerk]. Form No. 106. Taxed costs to plaintiff ; lavr. United States circuit court, district of New York. A. B. ^ V. V Plaintiff's costs on trial, after verdict. C. D. J Attorney's fee by statute, ...... Disbursements : Taking 4 depositions at $2 50 each, .... Witnesses' fees paid, viz.. A, B, C, one day's attendance, $1 50 each, is .... Miles travel, at 10 cts. one way. Certified copy papers obtained and used, . Postage and express charges paid out. Models paid for and used in court, if any, 3IarshaV s fees : Serving subpoenas at 50 cts. each witness. Travel for service at 6 cts. one way, each subpoena, . ClerFs fees : Filing narr, 10 cts. ; entering rule to plead, 15 cts., Copying rule to plead, 10 cts. ; certificate and seal, 35 cts $20 00 10 00 50 40 00 24 00 50 80 25 45 CIRCUIT COURT FORMS IN EQUITY. 701 Copying rule on appearance of defendant, 10 cts. ; certifi cate and seal, 35 cts., ..... Copying pleas or papers if ordered, at 10 cts. per folio and certified, . . Oaths to witnesses on trial, at 10 cts. each, Filing papers at 10 cts. ; each order at 15 cts.. Making dockets and indexes, and taxing costs, Issuing execution, ...... 45 3 10 60 2 10 3 00 1 00 Aggregate, Taxed at $ this day of ,18 Clerk. Form No. 107. Execution. The President of the United States of America to the marshal of the . district of New York, Greeting: We command you that of the goods and chattels of , in your district, you cause to be made % , the amount of a certain judgment which , plaintiff lately in the circuit court of the United States of America, in the second circuit for the district of New York, recovered against , [l. s.] and which in the said court were adjudged to the said plaintiff for [damages or debt] which he had sustained, as well as for % , costs and charges by him about said suit in that behalf expended; whereof the said de- fendant is convicted, as appears to us of record. And if sufficient goods and chattels of the said defendant, , cannot be found in your district, then we command you that you cause the [damages or debt] aforesaid to be made of the lands and tenements and real estate whereof the said , defendant, was seized, on the day of , in the year of our Lord one thousand eight hundred and , or at any time after- wards, in whose hands soever the same may be ; and have you that money before the judges of the said court, at the , on the day of , 18 , to render to the said plaintiff for 702 FEDERAL PLEADING, PRACTICE AND PROCEDURE. [damages or debt] aforesaid. And have you then and there this writ. Witness the honorable , Chief Justice of the Supreme Court of the United States, at the , in the said district, the day of , in the year of our Lord one thousand eight hundred and , in the year of the independ- ence of the United States of America. , Clerk. , Attorney. Form No. 108. ' Taxed costs, non pros. United States circuit court, district of A. B. ^ C. D. J Bill of costs on judgment of non pros (in case removed or other- wise). Attorney's fees. Before issue, ........ $10 00 Disbursements, ....... 3IarsliaVsfees. Serving certiorari at $2 per defendant, . Travel to place of return at 6 cts., ... Clerk's fees. Filing petition, 10 cts., and entering rule for certiorari 15 cts., ........ Copy rule, 10 cts.; certificate and seal, 35 cts., Issuing certiorari in duplicate on removal from state court at $1 each, ....... Filing certiorari and entering return ; and filing precept and entering rule on appearance, Certified copy, 45 cts. ; entering rule for pleading de novo 15 cts., ........ Copy certified, 45 cts. ; filing papers at 10 cts., $ ; rule for judgment, 15 cts., ..... Copy rule certified, 45 cts. ; final fee for making dockets indexes, etc., $1, ...... 25 45 2 00 50 60 1 45 CIRCUIT COURT FORMS IN EQUITY. 703 Making judgment record, folios at 15 cts., Issuing execution, $1 ; filing execution and entering re- turn, 25 cts., 1 25 Form No. 109. Taxed costs, default, etc. United States circuit court, district of A. B. 1 r C. D. J Plaintiff's costs on default, writ of inquiry and judgment. Attorney's fees. Before issue, $10 00 Disbursements, ........ Marshal's fees. Executing writ of inquiry, . . . . . . 5 00 Serving writ (or capias if any), . . . . . 2 00 Travel at 6 cts. per mile, miles, . . Clerk's fees. Filing declaration, 10 cts. ; entering rule to plead, 15 cts. ; copy rule, 10 cts.; certificate and seal, 35 cts., 70 Entering default, 15 cts. ; copy rule on default, 10 cts. ; certificate and seal, 35 cts., Clerk attending on inquiry one day, Issuing writ of inquiry, $1, .... Making dockets, indexes, etc., Making judgment record, folios at 15 cts.. Issuing execution, ...... Issuing writ of possession (if done), Filing and entering return of execution, (Filing and entering return of writ of possession) 60 . 5 00 . 1 00 . 1 00 . 1 00 . 1 00 25 25 $ FORMS m ADMIRALTY. Form No. 110. Libel for salvage. District Court of the United States for the Southern District of New York. Peter Hart et al., libellants, "^ V. y In admiralty. The Ship Waverly. j To the honorable Samuel B. Stevens, judge of the district court of the United States in and for the southern district of New York. The libel of Peter Hart, owner of the American brig the Alaska, of New York, and of R. W. Fielding, master of the said brig, for themselves and all others entitled, against the ship Waverly, her tackle, apparel, furniture and cargo, and against all persons inter- vening for their interests therein in a cause of salvage, civil and maritime, alleges as follows : First. That on the twenty-seventh day of August last past, the said R. W. Fielding being on a voyage in the said brig the Alaska, from Havana, in the island of Cuba, to Cadiz, in Spain, discovered a ship dismasted and apparently deserted, whereupon he hauled up for and boarded her ; that he found the said ship, which proved to be the British ship Waverly, of London, with twelve feet of water in her hold, totally dismasted and entirely abandoned by her captain and crew ; that he found no papers on board the said ship, but she had a full cargo of rum, sugar and other West India produce on board. Second. That the said R. W. Fielding thereupon took the said ship Waverly in tow and made for the port of New York, where he arrived with the said ship on the twelfth day of September, in- stant, the crew of the brig being almost worn out with fatigue in pumping out the said ship and other work done on board of her, and they are entitled to a reasonable share of said, ship and cargo for the salvage thereof. FORMS IN ADMIRALTY. 705 Third. That all and singular the pi'emises are true, and within the admiralty and maritime jurisdiction of the United States and of this honorable court. Wherefore the libellants pray that process in due form of law, according to the course of this honorable court in cases of admiralty and maritime jurisdiction, may issue against the said ship Waverly, her tackle, apparel, furniture and cargo, and that all persons claiming any interest therein may be cited to appear and answer upon oath all and singular the matters aforesaid, and that this hon- orable court will be pleased to decree to the libellants a reasonable and proper salvage, in proportion to the value of said vessel and cargo, and that the said ship, her tackle, apparel, furniture and cargo, may be condemned and sold to pay said salvage, with costs, charges and expenses, and that the libellants may have such other and further relief in the premises as in law and justice they may be entitled to receive. Peter Hart. R. W. Fielding. Sworn to September 16, 1829, before me. Fred. F. Rich, Clerk of district court. Edward E. DeForest, Proctor. A. E. McGorrish, Advocate. Form No. 111. Stipulation for costs to be given by the libellants on filing the foregoing libel. District Court of the United States for the Southern District of New York. Peter Hart et al., libellants, "| V. > In admiralty. The Ship Waverly. J Whereas a libel was filed in this court on the 16th day of Sep- tember, 1829, by Peter Hart and R. W. Fielding, against the ship Waverly, her tackle, apparel, furniture and cargo, for the reasons and causes in the said libel mentioned, and praying that the same . may be condemned and sold to answer the prayer of the libellants; and the said libellants and William Thompson, surety and parties 45 706 FEDERAL PLEADING, PRACTICE AND PROCEDURE. hereto, hereby consenting and agreeing that in case of default or contumacy on the part of the libellants or their surety, execution may issue against their goods, chattels and lands for the sum of two hundred and fifty dollars. Now, therefore, it is hereby stipulated and agreed, for the benefit of whom it may concern, that the stipulators undersigned shall be and are bound in the sum of two hundred and fifty dollars, con- ditioned that the libellants above named shall pay all such costs as shall be awarded against them by this court. Peter Hart. R. W. Fi'elding. William Thompson. Taken and acknowledged this 16th day of September, 1829, before me. Fred. F. Rich, Clerk. . Form No. 112. J^ttachment and monition against a ship and cargo in rem, on the foregoing libel. Peter Hart et al., libellants, "| V. V In admiralty. The Ship Waverly. J The President of the United States of America to the marshal of the southern district of New York, Greeting: Whereas a libel hath been filed in the district court of the United States for the southern district of New York, on the 16th day of September, in the year of our Lord eighteen hundred and twenty- nine, by Peter Hart and others, against the ship Waverly, her tackle, apparel and furniture, and cargo, in a cause of salvage, civil and maritime, for the reasons and causes in the said libel mentioned, and praying the usual process and monition of the said court in that behalf to be made, and that all persons interested in the said ship or vessel, her tackle, etc., and cargo, may show cause why the same should not, for the causes in the said libel mentioned, be condemned and sold to pay the demands of the libellant : You are, therefore, hereby commanded to attach the said vessel or ship, her tackle, etc., and cargo, and to detain the same in your FORMS IN ADMIRALTY. 707 custody until the further order of the court respecting the same, and to give due notice to all persons claiming the same, or knowing or having anything to say why the same should not be condemned and sold pursuant to the prayer of the said libel, that they be and appear before the said court, to be held in and for the southern district of New York, on the first Tuesday of October next, at eleven o'clock in the forenoon of the same day, if the same shall be a day of jurisdiction, otherwise on the next day of jurisdiction thereafter, then and there to interpose a claim for the same, and to make their allegations in that behalf. And what you shall have done in the premises do you then and there make return thereof, together with this writ. Witness the honorable Samuel B. Stevens, judge of the said court, at the city of New York, in the southern district of New Y'ork, this 16th day of September, in the year of our Lord eighteen hundred and twenty-nine, and of our independence the fifty-sixth. Fred. F. Rich, Clerk. Edward E. De Forest, Proctor for libellants. Form No. 113. Claim by the agents of foreign underwriters to vessel and cargo in case of salvage of a foreign ship. United States District Court for the Southern District of New York. Peter Hart et al. ^ V. V In admiralty. The Ship Waverly. J To the honorable , judge of the district court of the United States for the southern district of New York. The answer and claim of H. R. Clay and G. W. Clay, of the city of New York, merchants, intervening for the interests of their principals, to the libel of Peter Hart and R. W. Fielding, alleges as follows : First. That these defendants admit that on the twenty-seventh day of August last past, the said R. W. Fielding was the master of the brig Alaska, of New York, and that he was then in the said ship 708 FEDERAL PLEADING, PKACTICE AND PROCEDURE. on a voyage from Havana, in Cuba, to Cadiz, in Spain ; but whether he then discovered a ship dismantled and apparently deserted, and whether he then hauled up for her and boarded her, and whether he found the said ship with twelve feet of water in her hold, and totally dismantled and entirely abandoned by her captain and crew, and whether the said ship proved to be the British ship Waverly, of London, and whether the said R. W. Fielding found any papers in the said ship or not, these respondents know not, and therefore can neither admit nor deny, but leave the same to be proved by the said libellant. Second. That they admit it to be true that the said R. W. Fielding arrived at the port of New York on the twelfth day of September, in the year of our Lord eighteen hundred and twenty- nine, and that he had the ship Waverly, of London, in tow, and that the said ship had a full cargo of rum, sugar and other West India produce on board, and that said ship, when so brought in, was dismantled and disabled ; but whether the crew of the said brig Alaska were or were not almost worn out with fatigue in pumping out the said ship, and with other work done on board of her, these respondents know not, and, therefore, leave the same to be proved by the said libellants. Tliird. That by a commission dated the second day of July, in the year of our Lord eighteen hundred and seventeen, signed by James Fordy, chairman, and William Bedford, junior, secretary of the committee for managing the offices of the underwriters, at Wright's, in London, in that part of the United Kingdom of Great Britain and Ireland called England, these respondents were ap- pointed to act as agents for the subscribers at Wright's, at the port, of New York, and custom-house district, subject to the instructions in the said commission mentioned; and that by the said instruc- tions they are, amongst other things, directed, " when salvage or remuneration is claimed for assistance rendered to vessels, to attend the meeting of the commissioners, magistrates or other persons legally authorized to determine the amount, in order to rebut any exaggerated statements on the part of the salvors, by the evidence of the master and crew;" and they are likewise authorized and empowered by the said commission to attend to the interests of the subscribers at Wright's in general ; as by the said commission now in the possession of these respondents will more fully and at large FORMS IN ADMIRALTY. 709 appear, and to which, for greater certainty, these respondents pray leave to refer. Fourth. That they are likewise the agents for the underwriters at Liverpool, in that part of the United Kingdom of Great Britain and Ireland called England, and for the underwriters in Glasgow, in that part of the United Kingdom of Great Britain and Ireland called Scotland, under two several commissions of the same date and with the like authority and instructions as mentioned in the said commission from the underwriters at Wright's, in London, now in the possession of these respondents, as by reference thereto had will more fully and at large appear, and to which. Tor greater cer- tainty, these respondents pray leave to refer. Fifth. That they have no doubt that the ship Waverly or her cargo, or both, or some part thereof, were or was insured at some or one of the said places, by some or all of the underwriters there- in, and they have no doubt but that the said vessel or her cargo, or both, or some part thereof, have or hath been abandoned by the persons interested therein, to the said underwriters, or some or one of them ; but these respondents cannot speak on this point with absolute certainty, but only to the best of their belief, inasmuch as a sufficient time has not elapsed since the twelfth day of Septem- ber, eighteen hundred and tw^enty-nine, when the said ship was as aforesaid brought into the said port of New York, to communicate the said circumstances to the said several insurers or any of them, and to hear from the said several underwriters, or any of them, on the same subject. Sixth. That immediately after the said vessel and her cargo were brought into the said port of New York as aforesaid, they wrote to the said underwriters in London, informing them of the circum- stances of the case, as far as was known to these respondents, and requesting information from the said underwriters, of their rights and interest in and to the said vessel and her cargo, or any part thereof. That on the sixteenth day of September, in the year of our Lord 1829, these respondents received from , esquire, marshal of the United States for this district, a request that these respondents would enter the cargo of the said ship at the custom- house at New York, and would become responsible for the payment of the duties that might be payable to the United States on the cargo of the said ship. That, in pursuance thereof, these respond- 710 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ents entered the said cargo, and secured the duties upon the same by bond, conditioned for the payment of the duties to be ascer- tained on the said cargo. That said duties have been since ascer- tained, and amount to twenty-one thousand six hundred and ninety- eight dollars and ninety- one cents, which these respondents have hereby become liable to pay; also, certain foreign duties chargeable on said ship and cargo, besides oustom-house fees and expenses paid by these respondents ; and that this honorable court, after hearing proof and decreeing a reasonable salvage, should it seem proper so to do, may further decree that the rest, residue and remainder of the said ship and her cargo, or of the proceeds thereof should the same be decreed to be sold, after payment of said amount of dues and fees, and of the salvage, may be retained in the custody of this honorable court, for such reasonable time as may seem proper ; wherein the rights and interests of the above- mentioned underwriters may be ascertained ; and that this honor- able court may further decree that the said ship and cargo, or the proceeds thereof, or a part thereof, as proof may be made of interest, may be delivered up to these respondents, upon due proof being made in manner and form as this honorable court may direct, that the said underwriters or any of them have an interest in and a right to receive the same or any part thereof. G. W. Clay. Sworn to this fifth day of October, 1829, before me. J. P. Rich, Clerk. Ayers & Sewell, Proctors. Adam Swinton, Advocate. Form No. 114. Stipulation for costs to be given by the claimant on putting in a claim. District Court of the United States for the Southern District of New York. Peter Hart et al. ^ V. > In admiralty. The Ship Waverly. J Whereas a libel was filed in this court on the sixteenth day of September, in the year of our Lord one thousand eight hundred FORMS IN ADMIRALTY. 711 and twenty-nine, by Peter Hart and R. W. Fielding, against the ship Waverly, her tackle, apparel and furniture, and cargo, for the reasons and causes in the said libel mentioned, and praying that the same may be condemned and sold to answer the prayer of the said libellants. And Avhereas, also, a claim has been filed in said cause by H. R. Clay and G. W. Clay, and the said claimants and George Calvin, surety, the parties thereto, hereby consenting that in case of default or contumacy on the part of the claimants or their surety, execu- tion for the sum of two hundred and fifty dollars may issue against their goods, chattels and lands : Now, therefore, it is hereby stipulated and agreed, for the benefit of whom it may concern, that the stipulators undersigned shall be and are hereby bound in the sum of two hundred and fifty dollars, conditioned that the claimants above named shall pay all costs and expenses which shall be awarded against them by the final decree of this court, or upon an appeal by the appellate court. H. R. Clay. G. W. Clay. George Calvin. Taken and acknowledged this 5th day of October, 1829, before me. ' J. P. Rich, Clerk. Form No. 115. Order of the court on the return of mesne process in rem. [Title of cause as ih Form No. 114.] The marshal having returned upon the monition in this cause that he had attached the said ship, her tackle, etc., and cargo, and had given due notice to all persons claiming the same that this court would on this day proceed to the trial and condemnation thereof, should no claim be interposed for the same : On motion of Mr. Thompson, proctor for the libellants, procla- mation was made for all persons having anything to say why the said vessel and her cargo should not be condemned and sold to an- swer the prayer of the libellants to appear ; and on like motion, ordered that the defaults of all persons who have not already filed their claims be entered. 712 federal pleading, practice and procedure. Form No. 116. Proclamation on the return of process in rem. [Title of cause as in Form No. 114.] Hear ye ! Hear ye ! Peter Hart and R. W. Fielding, against the ship Waverly, her tackle, apparel and furniture, and cargo. All persons who have anything to say why the ship Waverly, her tackle, apparel and furniture, and cargo, should not be condemned and sold to answer the prayer of the libellants in this cause, come forward and make your allegations in that behalf. Form No. 117. Replication to claim and answer. [Title as in Form No. 114.] In Admiralty. To the honorable , judges, etc. The replication of Peter Hart and R. W. Fielding, libellants, to the claim and answer of James Williamson, claimant and respond- ent, alleges that they will aver, maintain and prove their libel to be true, certain and sufficient, and that the said claim and answer of the said claimant and respondent is uncertain, untrue and insuf- ficient ; and they humbly pray as in and by their libel they have already prayed. G. F., Proctor for libellants. Form No. 118. Claim by the United States Attorney on behalf of the United States for forfeiture and for duties in a case of salvage of a foreign ship and cargo. [Title as in Form No. 114.] In Admiralty. To the honorable A. B., judge of the district court of the United States for the southern district of New York. The claim of Richard F. Stowe, district attorney of the United States of America for the southern district of New York, inter- FORMS IN ADMIRALTY. 713 vening for the interest of the said United States in the said ship called the Waverlj, and her cargo, and the answer of the said attor- ney, on behalf of the said United States, to the libel of the said Peter Hart and R. W. Fielding, alleges as follows : First. That the said Richard F. Stowe, district attorney of the United States of America for the southern district of New York, claims the said ship Waverly, together with the cargo of the said ship laden on board of her, as stated and set forth in the said libel, as forfeited to the use of the United States, for the cause following, to wit : that the said ship Waverly is a ship or vessel owned wholly or in part by a subject or subjects of his Britannic Majesty, and said ship or vessel, after the thirtieth day of September, one thou- sand eight hundred and eighteen, did come and arrive from a port or place in a colony or territory of his Britannic Majesty, to wit, from the port of Armotto Bay, in the island of Jamaica, in the West Indies, which said port is and was, at the time the said ship sailed from thence, by the ordinary laws of navigation and trade closed against vessels owned by citizens of the United States, and that the ports of the United States were and are closed against the said ship or vessel called the Waverly, which said ship or vessel being so ex- cluded from the ports of the United States, did enter the same, to wit, the port of New York, in the southern district of New York aforesaid, in violation of the acts of Congress of the United States in such case made and provided. By force and virtue of the acts in such case made and provided, the said ship or vessel, her tackle, apparel and furniture, together with the cargo on board of the said ship or vessel, became and are forfeited to the use of the said United States. Second. That if this honorable court shall adjudge and decree that the said ship or vessel with her cargo, or either, is not forfeited to the use of the United States, for the cause aforesaid, the said ship or vessel, together with the cargo on board of her, is liable to the payment of the duties imposed by the laws of the United States on the arrival of the said ship or vessel within the United States, and on the importation of the cargo of merchandise on board of her, to wit, rum and sugar of the growth, produce and manufacture of some foreign country, and which are subject to the payment of duties to the United States, on being brought or imported into the United States ; wherefore the said attorney, on behalf of the said 714 FEDERAL PLEADING, PRACTICE AND PROCEDURE. United States, prays this honorable court to decree the payment of the said duties to the United States according to law, if the said ship and the cargo on board of her as aforesaid shall be adjudged not to be forfeited to the use of the said United States, for the cause aforesaid, and that he may have his costs, etc. And the said attorney further insists upon and submits to this honorable court the rights and interest of the said United States of America in the premises, whatever they may be, to be decreed to them. Richard F. Stowe, Attorney United States, etc.^ Form No. 119. Libel for mariners' -wages. To the honorable James Madison, judge of the district court of the United States within and for the district of Massachusetts. The libel and complaint of A. B., of , late mariner of the ship , whereof C. D. now is or late was master, against the said ship, her tackle, apparel and furniture, and against all persons lawfully intervening for their interest therein in a cause of subtraction of wages, civil and maritime. And thereupon the said A. B. alleges and articulately propounds as follows : First. That in the month of , in the year of our Lord eighteen hundred and , the said ship , whereof the said C. D. was master, being at the port of , and destined on a voyage from thence to , he, the said C. D., by himself or his agent, on the high seas and within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of the United States and of this honorable court, did ship and hire the libel- lant to serve as a mariner on board the said ship for and during said voyage at the rate of wages of per month, as schedule rate ; and that for the due performance of the said voyage the libellant signed and duly executed certain articles of agreement, commonly called the shipping or mariner's articles, which now are in the possession of the said C. D., master [or owner] of the said ship, and which he prays may be produced for further certainty in the premises and for the benefit of the libellant. That in pursu- ance thereof, on or about the day of , he, the ^ The United States do not give a stipulation for costs. FORMS IN ADMIRALTY. 715 libellant, went on board and entered into the service of the said ship as such mariner, as aforesaid. Second. That the said ship, having taken on board a cargo of divers goods and merchandise for the voyage, proceeded therewith and with the libellant on board for the port of , and there safely arrived on or about , and delivered her cargo and made freight, and that the libellant continued on board and in the service of the said ship until the day of , when the said voyage for which he had so engaged was duly ended, and he was discharged from such service by the said C. D., the master. Third. That during the whole time he was in the service of the said ship, to wit, from the time when he went on board thereof to the time of his discharge therefrom, as aforesaid, he well and truly per- formed his duty as a mariner on board the said ship to the best of his ability, and was obedient to all the 'lawful commands of the said master and the other officers of the said ship, and well and truly deserves and is entitled to the wages in the schedule hereunto an- nexed, amounting to the sum of Fourth. That all and singular the premises are true and within the admiralty and maritime jurisdiction of this honorable court, in verification whereof, if denied, the libellant craves leave to refer to the depositions and other proofs to be by him exhibited in this cause. Wherefore the libellant prays that process in due form of law, according to the course of courts of admiralty and of this honorable court in causes of admiralty and maritime jurisdiction, may issue against the said ship, her tackle, apparel and furniture, wheresoever the same shall be found, and that all persons having or pretending to have any tight, title or interest therein may be cited to appear and to answer upon oath all and singular the matters so articulately propounded ; and that this honorable court would be pleased to pro- nounce for the wages aforesaid, and such other relief to the libel- lant as shall to law and justice appertain, and also to condemn the said ship, her tackle, apparel and furniture, and the party inter- vening therefor in costs. [Signed] A. B., Libellant. E. F., Proctor. Massachusetts District, ss : , 18 . Sworn to by the libellant before me. G. H., Clerk. 716 FEDERAL PLEADING, PRACTICE AND PROCEDURE. SCHEDULE ANNEXED. Wages due A. B. from , to , being months days, at the rate of per month, ........ Out of which he has received, including hospital dues, Sum due, ......... Form No. 120. Libel in a cause of personal damage. Timothy Billings "| The Ship Oneida. J To the honorable James Madison, judge of the district court of the United States within and for the district of Massa- chusetts. The libel and complaint of Timothy Billings, of Boston, in the district aforesaid, late a mariner on board the ship Oneida, whereof Thomas Moore, of the said Boston, now is or late was master, against the said Thomas Moore, in a cause of damage, civil and maritime. And thereupon the said Timothy Billings alleges and articulately propounds as follows : First. That in April, 1823, the ship Oneida, whereof the said Thomas Moore was then master, being in the port of Boston and bound on a voyage to China, the said Thomas Moore did, on the high seas, and within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of this honorable court, by him- self or his agent, ship and hire the libellant to serve as a seaman on board of the said ship for and during the said voyage ; and the said ship, having taken on board her complement of officers and crew, did, on or about the day of the said month of April, proceed thereon, with the libellant on board, and, having been to China, re- turned to the port of Boston aforesaid, with a full ship, in the month of June last. Second. That during the whole time the libellant continued on board the said ship, he did well and truly perform his duty on board her, and was obedient to all the lawful commands of the said I FORMS IN ADMIRALTY. 717 Thomas Moore, the master, and others his superior officers on board the said ship. Third. That during the time of the said voyage, and while the ship was lying off Wampoa, in China, to wit, on the high seas, and within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of this honorable court, on the 15th day of October, 1823, whilst the libellant was in the fore-hold handing up billet wood, Charles Hawkins, the third officer on board the said ship or vessel, charged him with not working so hard as he could, nor so fast as another seaman of the name of William Calvert ; that the libellant replied "that William Calvert worked too fast to last long," or he made use of words to that or the like effect; when the said Charles Hawkins immediately made complaint to Mr. Jamison, the chief officer, that the libellant had been very impertinent to him ; whereupon, and for no other cause whatever, Mr. Jamison then ordered him to be taken from his duty and placed below in irons, w^here he continued until the 21st of October. That, upon the said Thomas Moore coming on board the ship (from which he had been absent the whole of the above-mentioned period), he immediately, upon complaint being made to him by the said Jamison, and without hearing the libellant in his defence, ordered him to the gangway and caused him to be flogged with three dozen lashes ; and although the libellant most humbly and repeatedly urged the said Thomas Moore for some water to allay his thirst and fever that he then suffered from the punishment and previous imprison- ment, he, the said Thomas Moore, absolutely refused to let the steward give him any, nor would he permit the mate to give the libellant an ointment or lotion to apply to his back, but ordered him in his fainting and exhausted state to return to his duty ; that the libellant, in consequence of the flogging aforesaid, suffered ex- treme pain and was greatly injured thereby. Fourth. That the libellant, by reason of the said cruel and vio- lent assault which he suffered by the act of the said Thomas Moore as aforesaid, has sustained damage to the amount of one thousand dollars. Fifth. That all and singular the premises are true, and within the admiralty jurisdiction of this honorable court; in verification whereof, if denied, the libellant craves leave to refer to depositions and other proofs to be by him exhibited in this cause. 718 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Wherefore he prays that process in due form of law, according to the course of admiralty and maritime jurisdiction, may issue against the said Thomas Moore, and that he may be required to answer upon oath all and singular the matters so articulately propounded, and that this honorable court would be pleased to pronounce for the damages aforesaid, and such other relief to the libellant as shall to law and justice appertain, and also to condemn the said Thomas Moore iri costs. Timothy Billings, Libellant. G. F., Proctor. Form No. 121. Libel in personam on contract. To the honorable A. B., judge of the district court of the United States in and for the district of The libel of C. D., of , merchant, against E. F,, of the city of , merchant, owner of the ship Waverly, in a con- tract [or of tort, as the case may be], civil and maritime, alleges as follows [here set forth the grounds or causes of the action, as in the foregoing forms of libel in rem, including an averment of the jurisdiction of the court, and conclude as follows] : Wherefore the libellant prays that process in due form of law, according to the practice of this honorable court in cases of admir- alty and maritime jurisdiction, may issue against the said E. F., and that he may be cited to appear and answer upon oath all and singular the matters aforesaid, and that this honorable court would be pleased to decree the payment of the damages aforesaid [or as the case may require, such as the amount which shall be due for building the vessel], with interest and costs, and to give him such other and further relief as in law and justice he may be entitled to receive. C. D. G. F., Proctor for libellant.^ [Sworn to as in the foregoing forms.] 1 If the proceedings are both in rem be used, with the changes which will and in personam, the above forms can be suggested by the proceeding. forms in admiralty. 719 Form No. 122. Claim and Ansv^er. United States of America, Massachusetts District, ss : T. B., libellant, ^ V. V term, 18 . The Ship Oneida. J To the honorable James Madison, judge of the district court of the United States within and for the district of Massachusetts. And now T. M., of , intervening for his interest in the ship Oneida, appears before this honorable court, and for answer to the libel and complaint of T. B., of , against the said ship, and against all persons lawfully intervening for their interest therein, alleges and articulately propounds as follows : First. That the respondent now is the owner of the said ship Oneida, and also was the owner of the same during the time the said T. B. belonged thereto, and that the said T. B. was duly hired to serve on board the said ship for the voyage, as in the first arti- cle in said libel is propounded ; the articles of agreement for which voyage, signed by the said T. B., the respondent doth herewith produce in court, according to the prayer in the said first article. Second. That the said ship Oneida, having taken on board a cargo of divers goods and merchandise for the voyage, proceeded therewith for the port of Wampoa, in China, and there safely ar- rived and delivered her cargo and made freight, as in the third article in the said libel is propounded. Third. That whilst the said ship Oneida was at the port of Wam- poa, the said T. B., etc. [here state the bad conduct of the libellant, amounting to mutiny or desertion, or other ground of forfeiture of wages, and such other matters showing that the shipping articles were substantially broken, and also any other matters calculated to support and establish the defence]. Fourth. That all and singular the premises are true, and within the admiralty and maritime jurisdiction of this honorable court; in verification whereof, if denied, the respondent prays leave to refer to the depositions and other proofs to be by him exhibited in this cause. Wherefore the respondent prays that this honorable court would 720 FEDERAL PLEADING, PRACTICE AND PROCEDURE. be pleased to pronounce against the libel aforesaid, and to condemn the libellant in costs, and otherwise right and justice to administer in the premises. [Signed] T. M. I. J., Proctor. District of Massachusetts, ss: ' ' Sworn to by the respondent before me, , 18 . G. H., Clerk. Form No. 128. Citation, -with attachment of goods, etc. United States, set district of The President of the United States of America to the marshal of the district of , G-reeting : Whereas a libel has been filed in the district court of the United States for the district of , on the day of , A. D. 18 , by , against , in a certain action, civil and maritime, for therein alleged to be due the said libellant, amounting to , and praying that a cita- tion may issue against the said defendant, pursuant to the rules and practice of this court : Now therefore, we hereby command you that you cite and ad- monish the said defendant, if he shall be found in your district, that he be and appear before the said district court on Friday, the day of , at ten o'clock in the forenoon of said day, then and there to answer the said libel, and to make allegations in that behalf; and if the said defendant can- not be found in your district, that you attach his goods and chat- tels in your district to the amount sued for ; and if sufficient goods and chattels cannot be found, that you attach his credits and effects to the amount sued for in the hands of the garnishee, , and that you summon the said garnishee to appear before the said district court, on the said day of , at ten o'clock in the forenoon of the said day, to do and abide what may be re- quired of in this behalf. And have you then there this writ. "Witness the honorable , judge of said court at , this day of , A. D. 18 , and in the one hundred and year of the independence of the said United States. , Clerk district court. set. forms in admiralty. 721 Form No. 124. Citation. United States, district of The President of the United States of America to the marshal of the district of , Greeting : Whereas a libel has been filed in the district court of the United States in and for the district of , on the day of , A. D. 18 , by , in a certain action, civil and maritime, for , therein alleged to be due the said libellant, amounting to , and praying that a cita- tion may issue against the said defendant, pursuant to the rules and practice of this court. Now therefore, you are hereby commanded to cite and admonish the said defendant, if he shall be found in your district, that he be and appear before the said district court, on Friday, the day of , at ten o'clock in the forenoon of said day, then and there to answer the said libel and to make allegations in that behalf. And have you then there this writ. Witness the honorable , judge of said court at , this day of , A. D. 18 , and in the one hundred and year of the independence of the said United States. , Clerk district court. Form No. 125. Claim. In the district court of the United States in and for the district of A. B. 1 Plea civil and maritime for V. The Ship Lena, her tackle, ap- parel and furniture. And now, E. F., intervening for the interest of C. D., appears before the honorable court and makes claim to the said the ship Lena, her tackle, apparel and furniture, as the same are attached by the marshal, under process of this court, at the instance of A. 46 ^ In admiralty. 722 FEDERAL PLEADING, PRACTICE AND PROCEDURE. B., and the said E. F. avers tliat he was in possession of the said the ship Lena at the time of the attachment thereof, and that the person above named was the true and bona fide owner of the said ship Lena, and that no other person is the owner thereof; and that the said E. F. is master of the said ship Lena and the true and lawful bailee thereof for the said owner ; wherefore, he prays to be admitted to defend accordingly. E. F. and subscribed in open court, this day of , A. D. 18 . , Clerk district court United States. Sur information for forfeiture. )■ In admiralty. Form No. 126. Claim. In the district court of the United States for the district of The United States V. The Ship Lena and her tackle, furniture and apparel, lately in possession of A. B. And now, this day of , A. d. 18 , A. B. appears in open court and makes claim to the ship Lena and her tackle, furniture and apparel, as the same are attached by the marshal, under the process of this court, at the instance of the United States, libellants for forfeiture ; and the said A. B. avers that he was in possession of the above-mentioned property at the time of the attach- ment thereof, that he is the true and bona fide owner of the same, and that no other person is the owner thereof, and that all and singular the averments of cause of forfeiture alleged in the infor- mation filed in the above case are untrue ; wherefore he prays to be admitted to defend accordingly. and subscribed in open court, this day of , A. D. 18 . , Clerk district court United States. ss : In admiralty. forms in admiralty. 723 Form No. 127. Stipulation. United States, district of On this day of a. d. 18 , and in the year of the independence of the said United States, in open district court of the United States, personally appeared , and by stipulation in due course of law acknowledged to be indebted to the United States of America, for the use of all persons who may be interested in the premises, in the sum of dollars, to be levied of goods and chattels, lands and tenements, On condition that if the libellant in the above action shall pay all costs which by the decree, mandate or practice of the court may become liable to pay, then this stipulation to be void and of no effect ; otherwise to be and remain in full force and virtue, and execution to issue thereon forthwith for the amount of such costs, at the instance of any person interested as aforesaid. Taken, acknowledged and subscribed this p -i . day of , A. D. 18 , in open court. , Clerk D. C. Form No. 128. Stipulation by claimant in proceedings for forfeiture. In the district court of the United States for the district of The United States "1 Information for forfeiture. I ; 1- late in possession No. day of , 18 . of , J Be it remembered that on this day of , Anno Domini 18 , we, , acknowledge ourselves to be jointly and severally indebted to the United States of America in the sum of lawful money of the United States, to be levied of the goods and chattels, lands and tenements of us, and each of us, to the use of the U nited States. 72 i FEDERAL PLEADING, PRACTICE AND PROCEDURE. Upon this condition, that whereas, under proceedings upon a libel of information in the district court of the United States for the eastern district of for alleged forfeiture, the marshal of the said district has in custody certain goods, chattels and effects ■which, as the same are specified in a certain claim thereof by the said in the said court, have been duly appraised at the value of the sum aforesaid ; and the said claimant having prayed and been allowed restoration of the said subjects of the said claim upon our entering into this recognizance. Now, if the said claimant shall abide the final order, decree and judgment of the said court, and upon condemnation of the subjects of the said claim, or any of them, as forfeited, shall forthwith pay into the said court, or as the said court may direct, the sum afore- said, or the full appraised value aforesaid of all and whatsoever shall have been so condemned, then this recognizance to be void ; otherwise it shall remain in full force. And whenever the said sum, or any part thereof, shall be due and unpaid, judgment or judg- ments against us, or any of us, may, on motion or otherwise, be entered on this recognizance at the suit of the United States (with or without any such previous writ or writs of scire facias as herein- after mentioned); and execution or executions may forthwith, or at any time or times, issue thereon. And it shall and may be lawful for the United States, by their attorney or proper law officer, when- ever the said sum or any part thereof shall be due, and either before or after the entering of any such judgment or judgments as afore- said, to obtain from this court a writ or writs of scire facias upon this recognizance against us, or any of us, tested as of any day or term present or past, and returnable forthwith, to which writ or writs respectively the judgment or judgments, if already entered, shall relate. And any attorney or attorneys of this court may for us, or any of us, appear to any such writ or writs, and may confess judgment that the plaintiffs have execution as herein demanded, or may, in the names or name of us, or any of us, approve, ratify and confirm any such judgment or judgments, execution or executions, as may previously have been entered or issued. For all which this will be sufficient warrant of us, or any and each of us, with release of all errors, etc. Taken, acknowledged, sealed and subscribed in [l. s.] open court. forms in admiralty. 725 Form No. 129! Stipulation by claimant in case of libel by the United States. Know all men by these presents, that we, , are jointly and severally held and firmly bound to the United States, in the sum of lawful money of the United States, to be paid to the said United States : for payment whereof, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated at , this day of , one thousand eight hundred and eighty The condition of this obligation is such that whereas a libel is now pending in the district court of the United States in and for the district of Pennsylvania, at the suit of the United States against , and other property therein mentioned and de- scribed , whereof the said , the claimant Now if the said , the claimant as aforesaid, shall defend the prosecution of said claim, and respond the costs in case shall not support the same, then this obligation shall be void ; otherwise it shall be and remain in full force. Sealed and delivered in open court, in the presence of [L. S.j Form No. 130. Stipulation for restitution of property attached. United States, ] x -i , > ss : in admiralty. DISTRICT OP . j "^ Be it remembered, that at a special district court of the United States, holden at , in and for the district of , on the day of , a. d. 18 , and in the year of the independence of the said United States, before the honorable , judge of said court, come , who, freely and voluntarily submitting to the jurisdiction of the said court, acknowledge to be indebted unto in the sum of dollars, lawful money of the United States, to be levied of the goods and chattels, land and tenements to the use of the said 726 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Upon condition that •whereas a suit is now pending in the said court, for , wherein the said , the libellant against the , and the said , claimant. Now if the shall well and truly abide by all orders, interlocutory or final, of the said court, and of any appellate court in which the said suit may hereafter be depending, and shall fulfill and perform the judgment and decree which may be rendered in the premises, and also pay all such costs and charges as shall be ordered and adjudged to be paid on part, then this stipulation shall be void : otherwise in force, and execution may issue by virtue thereof at one and the same time against any or all the parties to this stipulation. Taken, acknowledged and subscribed in open court on the day and year above written. [L. S.] The above named , being duly , deposes and says that he is permanently a householder within this district, and that he is worth the sum of dollars, after payment of his just debts and liabilities. And thereupon it is ordered that a writ of restitution issue to the marshal, directing him to restore the said to the said claimant, upon payment to him of his costs and the necessary ex- penses by him incurred. Form No. 131. Attachment in personam. United States, ) district of . [ The President of the United States of America to the marshal of the district of , Greeting: Whereas a libel has been filed in the district court of the United States for the district of , on the day of , by against , in a certain action civil and maritime, for therein alleged to have been committed the said libellant . And whereas, by the mandate of the honorable , judge of the said court, process of at- tachment has been awarded against the said : Now, therefore, we do hereby command you that you attach the FORMS IN ADMIRALTY. 727 said , if shall be found in your district, and safely keep, so that you may have before the judge of the said court, at a session of the same court to be hoklen at , on the day of , to answer the said libel, and to make allegations in that behalf. And have you then there this writ. Witness the honorable , judge of the said court at Phila- delphia, this day of A. d. 18 , and in the year of the independence of the said United States. , Clerk district court U. S. Form No. 132. Writ of appraisement. United States, ss: In admiralty. DISTRICT OF , judge of the district court of the United States for the district of To . You are hereby commanded, in the name and by the authority of the United States, that , now in the custody of the marshal and libelled for forfeiture at the suit of the United States of America, you well and faithfully value and appraise ; an indenture containing the true value thereof, under your hands, and upon your respective oaths or affirmations, you make and return to me forthwith, at a session of this court now holding at the district court room in the city of , together with this writ. Given under my hand and the seal of the said court at , this day of , A. D. 18 , and in the one hundred and year of the independence of the said United States. , Clerk district court U. S. , the subscriber , having been appointed appraiser to appraise the property named in this writ, do that will faithfully and fairly appraise the same, and make a true report of the value thereof, according to the best of understanding, without unnecessary delay. and subscribed this day of , A. D. 18 728 federal pleading, practice and procedure. Form No. 133. Writ to restore. United States, ] t ^ • , > S8 : In admiralty. DISTRICT OP . j "^ , judge of the district court of the United States in and for the district of , to the marshal of the same dis- trict, Greeting: You are hereby commanded to deliver and restore unto the or vessel called the , with her tackle, apparel and furniture, or so much thereof as was lately and is now in your custody and possession, by virtue of a writ of attachment lately issued out of said court, at the suit of , libellant for ; and how you shall have executed this writ, make return to me at a special session of said court to be holden at the city of on the day of , A. D. 18 , and have you then there this writ. Given under the seal of said court at , this day [l. s.] of , A, D. , and in the one hundred and year of the independence of the said United States. , Clerk district court U. S. Form No. 134. Return to -writ to restore by the marshal. I have restored to , as by the within writ I was commanded. So answers E. F., U. S. marshal, district of Form No. 135. United States, district of The President of the United States to the marshal of the district of , Greeting : We command you, that of the goods and chattels, lands and tenements in your district of , late of your district, you cause to be made and levied as well a certain debt of which in the district court of the United States in and for the eastern district of , before the judge of the said FORMS IN ADMIRALTY. 729 court by tlie consideration of the same judge lately recovered against the said as the sum of , which to the said , in the said court, was in like manner adjudged for costs and charges which had sustained in a certain plea, civil and maritime. And have you those moneys before the said judge at a session of the same court, to be holden at , on the day of , to render to the said debt and costs and charges aforesaid. And hereof fail not, and bring with you this writ. Witness the honorable , judge of said court at , this day of A. D. 18 , and in the year of the independence of the United States. [L. S.] , Clerk district court United States. Form No. 136. Order for process on libel. United States district court, district of A. B. ") V. Vin admiralty. The Ship Lena. J On filing a libel in this cause, and on motion of Mr. J. F., proc- tor for the libellant, it is ordered that a warrant of arrest and moni- tion be issued herein, returnable the day of , 18 . ___^_ Form No. 137. "Warrant of arrest and monition. [Title as in Form No. 1.] In Admiralty. United States of America, S8 DISTRICT OF The President of the United States of America to the marshal of the district of , and to his deputy, whomso- ever, Greeting: You are hereby jointly and severally empowered and strictly enjoined and commanded that you arrest the vessel called the ship Lena, whereof J. H. now is or late was master, her boats, tackle, 730 FEDERAL PLEADING, PRACTICE AND PROCEDURE. apparel and furniture, if she shall be found within your district; and the same so arrested you keep under safe and secure arrest until you shall receive further orders from the said court, or the same shall be discharged in due course of law ; and that you cite at the premises all persons in general who have, or pretend to have, any right, title or interest therein, to appear before the judge of the district court of the United States of America for the district of , at the city of , on the day of , if it be a court day, or else on the court day next fol- lowing, at o'clock in the noon, there to answer unto in a cause of A. B. civil and maritime, and further to do and receive in this behalf as to justice shall appertain ; and that you duly cer- tify the judge of the aforesaid court what you shall do in the prem- ises, together with these presents. Witness the honorable , judge of the aforesaid court, at the city of , this day of , in the year of our Lord one thousand eight hundred and Action for |500. G. F., Clerk. L. M., Proctor. Marshal's return to the foregoing writ. — In obedience to the within writ, I did on the day of , 18 , arrest the within mentioned the ship Lena, her tackle, etc., and I duly cited all persons to appear as within commanded. Subsequently having received a bond duly executed and approved, conditioned to abide the decree of the court in this cause, I did release the said vessel, and return the said bond herewith. Dated the day of , 18 . 0. P., U. S. marshal. By R. S., Deputy. Form No. 138. Bond by a claimant. [Title as in Form No. 1.] In Admiralty. Know all men by these presents, that N. M. and C. L. are held and firmly bound unto A. B. in the sum of dollars, law- forjms in admiralty. 731 ful money of the United States of America, to be paid to the said A. B., executors, administrators or assigns ; for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, , firmly by these presents. Sealed with our seals. Dated the day of , one thousand eight hundred and Whereas, in a certain cause of civil and maritime, moved and prosecuted in the district court of the United States of America for the district of New York, on behalf of the above-named obligees against the ship or vessel called the ship Lena, her boats, tackle, apparel and furniture, a warrant of arrest has been issued out of the said coiirt against the said ship or vessel, her boats, tackle, apparel and furniture, in virtue of which said warrant the said ship or vessel, her tackle, apparel and furniture have been arrested by , one of the deputies of the marshal of the said district, and are now in his custody : Now, therefore, the condition of the above obligation is such that if N. M., the claimant of the said ship or vessel, her boats, tackle, apparel and furniture, shall well and truly abide and an- swer the decree of the said court in the aforesaid cause, without fraud or other delay, then the above obligation to be void ; other- wise it shall remain in full force and virtue. Sealed and delivered in presence of N. M. [l. s.] C. L. [l. s.] State of , ^ district of ,>««•• County. J I hereby certify, that on this day of , 18 , before me came the above-named N. M. and C. L., to me known to be the same persons described in and who executed the above bond, and acknowledged that had executed the same. L. M., Clerk. State of , ^ district of , v ss : County. J C. L., of the of , in the said district, being duly sworn, doth depose and say, and each for himself says, 732 FEDERAL PLEADING, PRACTICE AND PROCEDURE. that he is a householder and resident of the said district, and that he is worth dollars, after all his debts and liabilities are paid and satisfied. Sworn before me, this day of , 18 . L. M., Clerk. Form No. 139. Default and order of reference. United States district court, district of A. B. ^ V. V In admiralty. The Ship Lena. J The mesne process returnable this day in this cause having been returned duly executed, and upon proclamation duly made for all persons having or pretending to have any right, title or interest in the said the ship Lena, her tackle, apparel and furniture, to appear and make due answer to the libel filed in this cause, no person having appeared to answer the same, the court, on motion of Mr. , advocate for the libellant, doth pronounce all persons whatsoever to be in contumacy and default, and doth order and adjudge that the libel filed in this cause be, and the same hereby is, taken pro confesso against all persons whatsoever ; and it is fur- ther ordered that it be referred to , esquire, who is hereby appointed a commissioner for the purpose, to take and hear such testimony as the nature of the case may require, and report the same to the court ; and also to ascertain and compute the amount due the libellant for principal and interest on account of the mentioned in the said libel, and report thereon with all convenient speed. Form No. 140. Report on reference. United States district court, district of . ■ A. B. ^ V. > In admiralty. The Ship Lena, j To the judge of the said court: In pursuance of an order of this court, made in the above cause, on the day of , by which it was referred to me to FORMS IN ADMIRALTY. 733 compute and ascertain the amount due the , for principal and interest on account of , mentioned and set forth in the libel in this cause, I, , the commissioner and referee in the said order named, do respectfully certify and report that cer- tain testimony has been taken on the reference herein, which is herewith transmitted to the court. And I do further reepect- fully report that I have considered the said testimony and have made the necessary computations, and that I have accordingly ascertained the amount due the libellant in this cause as aforesaid ; and that the amount due to the libellant as aforesaid, for principal and interest, up to and including the date of this report, is And I do further certify and report that the schedule hereunto annexed, marked A, and making a part of this my report, contains a statement and account of the principal and interest moneys due to the libellant as aforesaid, the period of computation of interest and its rate, and to which, for greater certainty, I refer. All of which is respectfully submitted. Dated , Commissioner and referee. [Here insert schedule A, referred to in the foregoing report.] Form No. 141. Final decree. United States district court, district of A. B. ^ V. > In admiralty. The Ship Lena. J This cause coming on to be heard upon the report of , esquire, appointed a commissioner to make report therein, bearing date the day of , certifying that there due to the at the date of said report, for on motion of Mr. , advocate for the libellant, the court doth order, adjudge and decree that the said report and all things therein contained do stand ratified and confirmed; and it is further or- dered, adjudged and decreed that the said the ship Lena, her tackle, apparel, boats'and furniture, be sold at pubhc auction, according to 734 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the course and practice of the court, and that the proceeds of such sale be brought without delay into the registry of the court ; and that the clerk pay to , proctor, out of the said pro- ceeds, the sum hereinbefore mentioned as reported to be due him, with the legal interest thereon from the date of the said report, together with costs and charges in this suit to be taxed, or so much thereof as the said proceeds will pay of the same, after deducting all prior claims and charges thereon. Form No. 142. Proctor's costs. United States district court, district of A. B. ^ V. S~ In admiralty. The Ship Lena. J Docket fee decree for $50 (or over), Verification of libel hereof 25 cts., . Deposition taken and admitted as evidence. Witnesses attending 4 days, . Witnesses' travel at 5 cts. per mile each, . United States op America, 1 > ss .* DISTRICT OF . j , of the city of , being duly sworn, deposes and says: that the services charged for in the foregoing bill have been actually and necessarily rendered, as therein stated ; and that the expenses therein mentioned have been actually and neces- sarily incurred, as therein set forth. Subscribed and sworn before me this day of ^ 18 . Q. R., Commissioner of the United States. forms in admiralty. 735 Form No. 143. Clerk's costs ; on default and reference. United States district court, district of A. B. ^ V. V In admiralty. The Ship Lena. j Filing libel, 10 cts. ; entering order for process in minutes, 15 cts. ; engrossing, 10 cts. ; copy for enrollment, 10 cts., $0 45 Issuing process, $1 ; seal, 20 cts., . . . . . 1 20 Certifying to marshal's contents of libel, 8 fol., at 15 cts. ; engrossing, 10 cts. ; copy, 10 cts., .... Filing process, 10 cts. ; return, 10 cts. ; entering return, 15 cts. ; order for proclamation, 15 cts. ; engrossing, 10 cts., 60 Entering decree of default, 6 fol., at 15 cts. ; engrossing, 20 cts. ; copy for enrollment, 10 cts.. Making report and schedule, 6 fol., at 15 cts. ; engrossing, 20 cts., 1 10 Copy same for proctor, 30 cts.; certifying, 15 cts. ; enter- ing in register, 15 cts., ...... 60 Entering final decree, 3 fol., at 15 cts. ; engrossing, 10 cts.; copy, 10 cts., . . Docket fee, $1 ; making enrollment, 8 fol., at 15 cts. ; engrossing, 10 cts., ...... Drawing four orders for payment of money, each 30 cts. ; engrossing, 20 cts.; copy, 20 cts., .... Filing other papers in cause, 10 cts.. Making this return, 3 fol., at 15 cts.; copy, 10 cts., . Attendance on reference, at $3 per day, 2 days, . . 6 00 Testimony, 40 fol., at 20 cts. ; 4 oaths, 10 cts. each, . . 8 40 Taxed at $ , ,18 United States of America, district of , clerk, being duly sworn, deposes and says that the services charged in the foregoing bill have been actually and 736 FEDERAL PLEADING, PRACTICE AND PROCEDURE. necessarily performed as therein stated, except such as are prospect- ive, and those must necessarily be performed in the cause. Subscribed and sworn before me this day of , 18 . , Commissioner of United States. Form No. 144. Enrollment of decree. United States district court, district of A. B. ^ V. > In admiralty. The Ship Lena. J In the said court, before the aforesaid judge, on the day of , in the year of our Lord one thousand eight hun- dred and , the in this cause, filed by A. B. against the said the ship Lena, her tackle, apparel and furniture, and the same is hereunto annexed, and thereupon an order was entered, directing the issuing of process against the said the ship Lena, her tackle, apparel and furniture, which order is in the fol- lowing words : [Here set forth the order.] A process of arrest and monition was thereupon issued, returnable on the said day of , A. D. 188 . On the day of , A. D. 188 , the said process, with the marshal's return thereon endorsed, was duly filed, and the same is hereunto annexed. On the day of , 188 , a decree was entered herein in the words and figures following: [Here insert the decree.] Thereupon the costs of this , including charges and expenses, were taxed at Whereupon the said pleadings, process, bills of cost and expenses, and such other papers as are required by the rules and practice of the court, are now attached together and hereto annexed, and the said final decree is signed and enrolled the day and year in the cap- tion of this enrollment mentioned. J. B., District judge. forms in admiralty. 737 Form No. 145. Decree of condemnation — another form. In the District Court of the United States in and for the district of Sur information filed. ^ In admiralty. The United States of America V, The Ship Lena and her tackle, furniture, etc., late in posses- sion of And now this day of , a. d. one thousand eight hundred and , it is adjudged, ordered and decreed that the ship Lena, and her tackle, furniture and apparel in the infor- mation and claim mentioned, be and the same are condemned as forfeited for the causes in the said information set forth. Form No. 146 Execution. United States of America, , ss : In admiralty. DISTRICT OF ' "^ The President of the United States of America to the marshal of the United States for the district of , and to his deputy, whomsoever. Greeting : Whereas in a certain cause of civil and maritime, moved and prosecuted before the district court of the United States of America for the district of , on behalf of A. B. against the ship Lena, her tackle, apparel and furniture, it was, on the day of , A. D. 18 , by a decree of the aforesaid court, pronounced, decreed and declared that the said A. B. was entitled to recover in the said cause the sum of dollars and cents, together with costs and expenses in the said suit ; and whereas the said ship Lena, her tackle, apparel and fur- niture were delivered out of the custody of the court, in virtue of 47 738 FEDERAL PLEADING, PRACTICE AND PROCEDURE. a bond executed by N. M. as principal and C. L. as surety, by which bond the said principal and sureties stipulated to abide the decree of the court in this cause ; and whereas the said costs and expenses have been taxed at dollars and cents : Now there- fore, in order that full and speedy justice may be done in the prem- ises, you are hereby strictly charged and commanded jointly and severally that of the goods and chattels of the said N. M. and C. L., or of either of them, in your district, you cause to be made the said sum so decreed, and also the said costs and expenses, amount- ing, in the whole, to the sum of dollars and cents ; and you are hereby further strictly charged and commanded, if suflBcient goods and chattels of the said N. M. and C. L., or of some one of them, cannot be found in your district, that you cause the said sum to be made out of any real property, lands or tenements of which they are or either of them was possessed in your district, on the day of , 18 . And do you further have the said moneys, and pay the same into the registry of the said court, at the city of , on the Tuesday of next, and do you then and there certify to the aforesaid court what you shall have done in the premises, together with these presents. Witness the honorable , judge of the said court, at the city of , this day of , 18 . [l. s.] G. F., Proctor. L. M., Clerk. Form No. 147. Direction by the clerk endorsed on execution. United States district court, district of A. B. ^ V. > In admiralty. The Ship Lena. J The marshal will levy $ with interest from the day of , 18 , besides his fees, poundage and expenses hereon. L. M., Clerk. forms in admiralty. 739 Form No. 148. Marshal's return. In obedience to the within writ I have collected the sum of $ in full of the requirements of the within execution, and have paid the same into the registry of the court, as I am required. Dated the day of , 18 . , "U. S. marshal. By , Deputy. > ss : In admiralty. Form No. 149. Warrant of arrest in personam. United States of America, district of The President of the United States of America to the marshal of the district of , and to his deputy, whomso- ever, Greeting : You are hereby jointly and severally empowered and strictly en- joined and commanded that you arrest if he shall be found within your district ; and him so arrested you keep under safe and secure arrest, so that his body may be had and forthcoming before the judge of the district court of the United States of America for the district of , at the city of , on the day of , if it be a court day, else on the court day next following, at o'clock in the noon, there to an- swer unto in a cause of civil and maritime, and further to do and receive in this behalf as to justice shall appertain ; and that you duly certify the aforesaid judge what you shall do in the premises, together with these presents. Witness the honorable , judge of the aforesaid court, at the city of , this day of , in the year of our Lord one thousand eight hundred and • Action for $ [l. s.] G. F., Proctor. L. M., Clerk. 740 federal pleading, practice and procedure. Form No. 150. Marshal's citation. In Admiralty. United States of America, district of Whereas a libel bath been filed in the district court of the United States of America for the district of , on the day of , in the year of our Lord one thousand eight hundred and , by , Esq ., proctor , in behalf of A. B. against the ship Lena, and praying the usual process and monition of the court, that all persons interested in the said the ship Lena, her tackle, apparel and furniture, may be cited to an- swer the premises, and all due proceedings being had, that the same may be decreed to be sold, and the proceeds thereof to be distrib- uted according to law : Therefore, in pursuance of the said monition under the seal of the said court, to me directed and delivered, I do hereby give notice generally, unto all persons having or pretending to have any right, title or interest therein, and to , master of the said the ship Lena, in special, to appear before the aforesaid court, at the city of , on the day of , if it be a court day, or else on the next court day thereafter, at o'clock in the noon, then and there to answer the said libel and to make their allegations in that behalf. Dated at , the day of , in the year of our Lord one thousand eight hundred and G. F., Proctor. , U. S. marshal. By , Deputy. Form No. 151. Venditioni exponas. In Admiralty. United States of America, 1 \ ss: district or . j The President of the United States of America to the marshal of the district of , and to his deputy, whomso- ever, Greeting: FORMS IN ADMIRALTY. 741 Whereas in a certain cause of , civil and maritime, moved and prosecuted before the district court of the United States of America for the district of , on behalf of , against the vessel called the , her boats, tackle, apparel and furniture, and against all persons in general having, or pretending to have, any right, title or interest therein, it was, on the day of > by a decree of the afore- said court, pronounced, decreed and declared that the demand of the said , in the in this cause set forth, was valid and effectual against the said to the amount of dollars and cents ; and that the same ought to be paid to the said , together with the costs and charges by incurred in the prosecution of said suit, as by the said decree remaining as of record in the said court doth more fully appear ; and whereas the costs and expenses so decreed to be paid to the said amount to the sum of dollars and cents, as taxed in the aforesaid court ; and whereas it was by the aforesaid court accordingly further ordered that the said , her boats, tackle, apparel and furniture should be sold to pay the said above-mentioned sums of money, amounting, in the whole, to dollars and cents : Now therefore, in order that speedy justice may be done in the premises, you are hereby strictly charged and commanded, jointly and severally, that you expose to public sale the aforesaid , her boats, tackle, apparel and furniture, and that you sell the same to the best bidder ; and that you bring the proceeds arising from such sale into the registry of the aforesaid court, on or before the day of , and that you duly certify the judge of the aforesaid court what you shall do in the premises. Witness the honorable , judge of the aforesaid court, at the city of , this day of , in the year of our Lord one thousand eight hundred and [l. s.] G. F., Proctor. L. M., Clerk. 742 federal pleading, practice and procedure. Form No. 152. Monition. United States of America, ] t ;i • u ' vss: In admiralty. district of . j The President of the United States of America to the marshal of the United States for the district of , and to his deputy, whomsoever. Greeting: You are hereby jointly and severally strictly charged and com- manded that you monish and cite all persons in general having, or pretending to have, any right, title or interest in the proceeds of the sale of , now in the registry of the district court of the United States of America for the district of , to appear before the said court, at the city of , in the said district, on the day of , to answer the petition of in a cause ; and further to do and receive in this behalf as to justice shall appertain. Witness the honorable , judge of the aforesaid court, at the city of , this day of , in the year of our Lord one thousand eight hundred and [l. s.] G. F., Proctor. G. H., Clerk. Form No. 153. Marshal's notice. United States of America, ] t ;i • u ' V ss : In admiralty. district of . J . Whereas a petition hath been filed in the district court of the United States of America for the district of , on the day of , in the year of our Lord one thousand eight hundred and , by , esquire, proctor, in be- half of , of , in the state of , against the proceeds of the sale of the , now* in the registry of the said court, stating and alleging that , and praying the usual process and monition of the said court, that all persons having or pretending to have any right, title or interest therein may FORMS IN ADMIRALTY. V43 be cited to answer the premises, and all due proceedings being had, that the demand of the petitioner may be decreed to be paid out of the said proceeds. Therefore, in pursuance of the said monition, under the seal of the said court, to me directed and delivered, I do hereby give notice generally unto all persons having or pretending to have any right, title or interest in the said proceeds, to appear before the said court at the city of , on the day of , if it shall be a court day, otherwise on the next court day thereafter, at o'clock in the noon, to answer the petition of the said , and further to do and receive in this behalf as to justice shall apper- tain. Dated at , the day of , in the year of our Lord one thousand eight hundred and G. F., Proctor. , U. S. marshal. By , Deputy. Form No. 154. Final decree pro confesso. [Title as in Form No. 110.] In Admiralty. At a special session of the district court of the United States of America for the district of , held at the city of , in the said district, on the day of , in the year of our Lord one thousand eight hundred and Present — the honorable , district judge. The mesne process returnable this day in this cause having been returned duly executed, and upon proclamation duly made for all persons having, or pretending to have, any right, title or interest in the said , her tackle, apparel and furniture, to appear and make due answer to the , filed in this cause no person having appeared to answer the same, the court, on motion of , advocate for the , doth pronounce all persons whatsoever to be in contumacy and default, and doth order and adjudge that the filed in this cause be and the same hereby is taken pro confesso against all persons whatsoever; and it is further ordered that the libellant ought to have and receive the sum of 744 FEDERAL PLEADING, PRACTICE AND PROCEDURE. dollars and cents by demanded in the libel in this cause on account of the Form No. 155. Clerk's bill of fees. United States circuit court, district of V. > In admiralty. Filing libel, 10 cts. ; entering order for process in minutes, 15 cts. ; engrossing, 10 cts. ; copy for enrollment, 10 cts., $0 45 Issuing process, $1; seal, 20 cts., . . . . . 1 20 Certifying to marshal's contents of libel, fol. 4, 15 cts.; engrossing, 10 ct'. ; copy, 10 cts., . . . . 1 40 Filing process, 10 cts. ; return, 10 cts. ; entering return, 15 cts.; order for proclamation, 15 cts.; engrossing, 10 cts., 60 Entering final decree, fol. 4, 15 cts. ; engrossing, 10 cts. ; copy, 10 cts.; copy for proctor, 10 cts., . . . 1 80 Docket fee, $1 ; making enrollment, fol. 8, 15 cts. ; en- grossing, 10 cts., . . . . . . . 3 00 Drawing four orders for payment of money, each 30 cts.; engrossing, 20 cts. ; copy, 20 cts., . . . . 2 80 Filing other papers in cause, 10 cts., .... Making this return, folio 3, 15 cts. ; copy, 10 cts. ; . . 75 $12 00 Taxed at $ . L. M., Clerk. United States of America, district of , clerk, being duly SAvorn, deposes and says that the services charged in the foregoing bill have been actually and necessarily performed as therein stated, except such as are prospect- ive, and those must necessarily be performed in the cause. Subscribed and sworn before me, this day of , 18 . , Commissioner of United States. forms in admiralty. 745 Form No. 156. Information ; seizure. United States district court, district of At a session of the district court of the United States of America held in and for the district of , at the city of , on the day of , in the year of our Lord one thousand eight hundred and , before the hon- orable , judge of the said court, comes E, F., attorney of the said United States of America in and for the said district, who prosecutes for the United States of America in this behalf, and be- ing present here, in this honorable court, in his own proper person, in the name and on the behalf of the said United States of Amer- ica, gives the said court now here to understand and be informed as follows, that is to say. That G. H., collector of for the district of , in the said district of , and within the jurisdiction of this court, heretofore, that is to say, on the day of , in the year one thousand eight hundred and , to wit, at , in the said district of , and within the jurisdiction of this court, seized as forfeited to the use of the United States of America [here de- scribe the goods], being the goods, chattels and property of some person or persons to the said United States of America, and to their said attorney, unknown, and being subject to duty to the said United States of America, on being imported into the said United States of America. For that heretofore, that is to say, on the day and year last afore- said, the goods, chattels and property aforesaid being subject to duty as aforesaid on being imported into the said United States of America, were imported and brought into the said United States of America, that is to say, into the said district of , in the said district of , and within the jurisdiction of this court, from some foreign territory adjacent to the said United States of America, to the said United States of America and their said attorney unknown, in and on board of some unregistered ves- sel, boat, raft, canoe, carriage or sleigh, or by some person or per- 746 FEDERAL PLEADING, PRACTICE AND PROCEDURE. sons coming from the said adjacent foreign tewitory to the said United States of America, and to their said attorney unknown. Yet the master of the said unregistered vessel, or the person having charge of the said boat or raft, or the conductor or driver of the said carriage or sleigh, in which the said goods and chattels were imported and brought as aforesaid from the said adjacent foreign territory, or the person or persons coming from the said ad- jacent foreign territory with the said goods, chattels and property, did not immediately on his arrival within the said United States of America deliver a manifest of the cargo or loading of the said un- registered vessel, boat, canoe, raft, carriage or sleigh, in which the said goods, chattels and property were imported and brought as aforesaid into the said United States of America, or of the said goods, chattels and property, or of any part thereof, at the office of the collector or deputy collector nearest to the boundary line be- tween the said United States of America and the adjacent foreign territory, or nearest to the road or waters by which the said goods, chattels and property were imported and brought into the said United States as aforesaid, but the master of the said unregistered vessel, and the person having charge of said boat, canoe or raft, and the conductor or driver of said carriage or sleigh, with the said goods, chattels and property, or the person or persons coming from the said adjacent foreign territory into the said United States of America, with the said goods, chattels and property, did neglect and refuse to deliver such manifest, and did also pass by and avoid the said office, contrary to the form of the statute in such case made and provided, whereby, and by force of the statute in such case made and provided, the said goods, chattels and property became and were forfeited to the use of the said United States of America. And the said attorney of the United States, on behalf of the said United States, saith that by reason of all and singular the premises aforesaid, and by force of the statute in such case made and pro- vided, the aforementioned and described goods, wares and merchan- dise became and are forfeited to the use of the said United States : And that all and singular the premises aforesaid are and were true, public and notorious, of which due proof being made, the said attor- ney prays the usual process and monition of this honorable court in this behalf to be made; and that all person or persons interested iu'the before-mentioned and described goods, wares and merchan- FORMS IN ADMIRALTY. 747 dise may be cited in general and special -to answer the premises, and all due proceedings being had thereon, that the said goods, "wares and merchandise may, for the causes aforesaid and others ap- pearing, be condemned by the definite sentence and decree of this honorable court, as forfeited to the use of the said United States? according to the form of the statutes of the United States in such cases made and provided. G. F., United States attorney for the district of • Form No. 157. Another form of information ; seizure. United States District Court, DISTRICT of That G. H., collector of the customs for the district of , having full power and authority to enter any store, warehouse or other building upon or near the boundary line between the United States and any foreign country in which he should have reason to believe any goods, wares or merchandise, subject to duty, were concealed, and therein to search for, seize and secure such goods, wares and merchandise, heretofore, to wit, on the day of , in the year one thousand eight hundred and , having reason to believe and suspect that such goods, wares and merchandise which were subject to duty were concealed in a certain store on or near the boundary line between the United States and the province of Canada, the said collector thereupon did enter the said store, and did seize goods, wares and merchandise subject to duty, to wit [here describe the property], upon which no duties had been paid and no duties had been secured to be paid on the same. And also for that the aforesaid goods, wares and merchandise, subject to duty on being imported into the United States, were heretofore, to wit, on the day of , in the year one thousand eight hundred and , found by , collector of customs of the district of , in the possession of some person or persons to the said attorney unknown, at , in the said district ; and the said [here describe the goods] had not impressed thereon the inspection marks as required by the provisions of the statute in such case made and provided. Your informant therefore prays 748 FEDERAL PLEADING, PRACTICE AND PROCEDURE. that said property may be attached and condemned as forfeited to the United States. G. F., United States attorney for the district of Form No. 158. Attachment, on the foregoing information. United States of America, go • DISTRICT OF The President of the United States of America to the marshal of the district of , Crreeting : Whereas an information has been filed in the district court of the United States for the district of , on the day of , 18 , on behalf of the said United States, by G. F., Esq., attorney of the said United States for the district afore- said, against , which by , collector of for the district of , on the day of , 18 , at the said district of ? iii the district of , were seized as forfeited to the use of the said United States, for the reasons and causes in the said information men- tioned, and praying the usual process and monition of the said court in that behalf to be made, and that all persons interested in the said may be cited in general and special to answer the premises, and all due proceedings being had, that the said property above mentioned may, for the causes in the said mentioned, be condemned as forfeited* to the use of the said United States, ac- cording to the form of the statute in such case made and provided: You are therefore hereby commanded to attach the said , and to detain the same in your custody until the further order of the court respecting the same, and to give due notice unto all per- sons claiming the said property, or knowing or having anything to say why the same shall not be condemned as forfeited, pursuant to the prayer of the said , that they be and appear before the said district court, to be held in and for the district of , at the city of , in the county of , in the said district of , on the day of next, at o'clock in the noon of the same day, if the same FORMS IN ADMIRALTY. 749 shall be a day of jurisdiction, otherwise on the next day of juris- diction thereafter, then and there to interpose a claim for the same and to make their allegations on that behalf. And what you shall have done in the premises, do you then and there make return thereof with this writ. Witness the honorable , district judge of the United States for the district of , at the city of , the day of , 18 . [l. s.] E. F., U. S. attorney. G. H., Clerk. Form No. 159. Marshal's return to within [or foregoing] w^rit. In obedience to the within writ, I did, on the day of , 18 , at , seize and attach the within-mentioned property, and I have duly cited all persons to appear and assert their claims, as I am within commanded. Dated Q. J., Marshal. Service, $ . By L. M., his deputy. Travel, miles, at six cents per mile, $ Total amount, | Form No. 160. Marshal's notice. United States of America, . ss district of Whereas a hath been filed in the district court of the United States of America for the district of , on the day of , in the year of our Lord one thousand eight hundred and , by , esquire. United States attorney, in behalf of the United States of America, against , stating 'that the same were, on the day of , by , esquire, collector of for the district of , seized as forfeited to the use of the said United States ; and further stating and alleging that the said forfeiture was incurred by reason and for other reasons. 750 FEDERAL PLEADING, PRACTICE AND PROCEDURE. as will more fully appear by reference to the said on file "with the clerk of said court at , and praying the usual process and monition of the said court, that all persons interested in the said , etc., etc., may be cited to answer the premises, and all due proceedings being had, that the same may be condemned and sold, and the proceeds thereof be distributed according to law; therefore, in pursuance of the said monition, under the seal of the said court to me directed and delivered, I do hereby give notice unto all persons generally having, or pretending to have, any right, title or interest therein, to appear before the aforesaid court in the city of , on the day of next, if it be a court day, or else on the next court day thereafter, at o'clock in the noon, then and there to answer the said and to make their allegations in that behalf. Dated at , the day of , in the year of our Lord one thousand eight hundred and I. J., United States marshal. L. M., Deputy. Form No. 161. Final decree, pro confesso. At a stated session of the district court of the United States for the district of New York, held at the city of on the day of , 18 . Present — the honorable , district judge. The United States "| J . . . The mesne process heretofore issued in this cause and returnable at this term of the court having been duly returned, and procla- mation having been made for all persons having or claiming any right, title or interest in the property mentioned and described in the information herein to come forward and assert their claims on the pain of being pronounced in contumacy and default, and a de- cree pro confesso being taken against them, and no person having appeared or asserted any claim thereto, the court now here doth pronounce all persons having or claiming any right, title or inter- est in the said property to be in contumacy and default, and that FORMS IN ADMIRALTY. 751 the information in this cause be taken as confessed. And this court having proceeded to hear this cause ex parte, and having con- sidered the same, it is hereby ordered and adjudged that the prop- erty mentioned and described in this suit be and is hereby con- demned as forfeited to the use of the United States. And it is further ordered that the said property, in said information de- scribed, be sold by the marshal at public sale, according to the statute, and the rules and practices of the court, at , in the said district of , and that the marshal pay the proceeds of said sale into the registry of the court with all proper speed. Form No. 162. Clerk's costs. United States district court, district of • V. Filing , 10 cts. ; entering order process, 15 cts. ; copy 10 cts. ; engrossing, 10 cts. ; filing, 10 cts.. Issuing process and seal, ^1 20 ; notices for marshal, $1 20 Entering decree of default, etc., 3 folios, 15 cts. ; copy 30 cts.; engrossing, 30 cts.; filing, 10 cts.. Copy for dist. att'y, fol. , 10 cts. ; cert., 15 cts. Docket fee, $1 ; judgment record, fol. , 15 cts., Issuing venditioni exponas and seal, Percentage on sale paid in, $ , . Entering order distribution, 2 fol., 15 cts. ; copy, 20 cts. engrossing, 20 cts. ; filing, 10 cts., . Abstract proceedings, 3 fol., 15 cts.; copy for solr. try. 30 cts,; do. for coir., 30 cts., . Drawing 4 order checks, 2 fol. each, at 15 cts., Copy each, 80 cts.; entering each in ledger, 60 cts., . Filing other papers, 10 cts. ; taking affidavits, 25 cts. ^0 55 2 40 1 15 1 20 80 1 05 1 20 1 40 Taxed and allowed at $ this day of , 18 . H. L., District judge. 752 federal pleading, practice and procedure. United States of America, ss district of G. H., clerk of said court, being duly sworn, says that the services charged in the foregoing bill have been or will be actually and necessarily rendered in the progress of this cause, as therein stated. Sworn and subscribed before me, this day of , 18 . Q. R., Commissioner United States circuit court. Form No. 163. Warrant to sell in such a case. United States of America, ss : district of The President of the United States of America to the marshal of the United States for the district of , Greeting : Whereas a hath been filed in the district court of the United States for the district of , on the day of ) 18 , on behalf of the United States, by , Esq., attorney of the said United States for the district aforesaid, against , stating and alleging that for the reasons and causes specified in the said , the said property above de- scribed had been seized and become forfeited to the use of the said United States, and praying that the same may be condemned as forfeited to the use of the said United States ; and whereas the said property above described has been attached by the process issued out of the said district court, in pursuance of said , and is now" in custody by virtue thereof, and such proceedings have been thereupon had that by the definite sentence and decree of the said district court, in this cause made and pronounced on the day of , 18 , the said property above described was con- demned as forfeited to the use of the said United States, and was ordered to be sold by you, the said marshal, at , after giving days notice of such sale according to law ; and that you have the FORMS IN ADMIRALTY. 753 moneys arising from such sale, together with this writ, at the next stated session of the said district court of the United States, to be held for the district of , at the city of , on the day of next ; therefore, you, the said marshal, are hereby commanded to cause the said above-described property, so condemned and ordered to be sold, to be sold in manner and form upon the notice and at the time and place aforesaid, and that you have and pay the money arising from such sale, as in said decree directed, and have you also then and there this writ. Witness the honorable , district judge of the district of , at the city of , the day of , 18 . G. H., Clerk. Form No. 164. Information — another form ; seizure. U. S. District Court, ss DISTRICT OF At a session of the district court of the United States of America for the district of , begun and field at the United States buildings in the city of , in the state of , in the said district, before the judge of the same court, on the day of , in the year one thousand eight hundred and , comes , attorney of the United States for the said district of , who prosecutes for the said United States in this behalf, and being present here in court, in his own proper person, in the name and on behalf of the said United States, alleges, informs and declares as follows, to wit: Fi7'st. That , collector of internal revenue for the district of the state of , heretofore, to wit, on the day of , in the year one thousand eight hun- dred and , on land at the , within the district of , and within the jurisdiction of this court, seized, as forfeited to the use of the United States, the following described goods, wares and merchandise, articles and objects, that is to say : 48 75-4 FEDERAL PLEADING, PRACTICE AND PROCEDURE. That the said goods, wares and merchandise, articles and objects, then and there being so subject to the payment of duties and taxes as aforesaid, -were found by the said , such collector as aforesaid, in the possession and custody and within the control of , for the purpose of being removed by , in fraud of the internal revenue laws of the United States, and with the design to avoid the payment of such duties and taxes as pro- vided by § 3257 and § 3261 of the Revised Statutes. That the said goods, Avares and merchandise, articles and objects, except the said , were raw materials, tools, implements, instruments and personal property in the place and building and within the yard and enclosure where said articles upon which duties are and were imposed as aforesaid were found and seized by the said , as such collector as aforesaid, at the time and place aforesaid, and were intended to be used by in the fraudu- lent manufacture by the said of such raw materials as afore- said into highwines, whisky, distilled spirits and spirituous liquors, and in fraud of the internal revenue laws of the United States, and Avith the design to avoid the payment of the duties imposed by the before-mentioned statutes, and against the section thereof. That the said goods, wares and merchandise, articles and objects, then and there being so subject to the payment of duties and taxes as aforesaid, were found by the said , such collector as aforesaid, in the possession and custody and within the control of , for the purpose of being sold by , in fraud of the internal revenue laws of the United States, and with design to avoid the payment of such duties and taxes, against the provis- ions of the section aforesaid. That the said goods, wares and merchandise, articles, and objects, except the said , were raw materials, tools, implements, instruments and personal property in the place and building and within the yard and enclosure where said articles upon which duties are and were imposed as aforesaid were found and seized by the said , as such collector as aforesaid, at the time and place afore- said, and were intended to be used by in the fraudulent manufacture by the said of such raw materials as afore- said into highwines, whisky, distilled spirits and spirituous liquors, and in fraud of the internal revenue laws of the United States, FORMS IN ADMIRALTY. 755 and with the design to avoid the payment of the duties imposed by the before-mentioned statutes, and against the section thereof. That upon said goods, wares, merchandise, articles and objects, duties and taxes are imposed by the provisions of the sec- tion of the statute aforesaid. That the said goods, wares and merchandise, articles and objects, then and there being so subject to the payment of duties and taxes as aforesaid, were found by the said , collector, in the possession and custody and within the control of , at , within the said collection district, in the district of , for the purpose of being sold by said , in fraud of the said internal revenue law, and with design to avoid the payment of such duties and taxes, against the provisions of section of the statutes aforesaid. That the said goods, wares and merchandise, articles and objects, then and there being so subject to the payment of duties and taxes as aforesaid, were found by the said , collector, in the possession and custody and within the control of the said , at , aforesaid, for the purpose of being removed by him in fraud of the internal revenue laws, and with the design to avoid the payment of such duties and taxes, against the provisions of sec- tion of the statutes aforesaid. Second. For that the aforesaid goods, wares and merchandise, articles and objects, , and distilled spirits, were liable to taxation under and pursuant to the statutes in such case made and provided, and the said and distilled spirits were so as aforesaid found and seized at , in the collection district of the state of , in the district of , and within the jurisdiction of this court, by the said , as such collector, on the said day of , A. D. 18 , the said distilled spirits having been made, manufac- tured and distilled at some place, at some time, and by some person or persons to the said United States and their said attorney un- known, and the same were thereafter, and before the time of the finding and seizure thereof, as aforesaid, by some person or persons to the said United States and their said attorney unknown, re- moved from the place where the same were distilled, otherwise than into a bonded warehouse, as provided by law ; and the said 75G FEDERAL PLEADING, PRACTICE AND PROCEDURE. and distilled spirits were, by the said , as such collector, as aforesaid, found and seized at the time and place aforesaid, the said and distilled spirits being so found elsewhere than in a bonded warehouse, not having been removed from such ware- house, according to law, and the tax imposed by law upon the same not having been paid, in fraud of the internal revenue laws, and against the provisions of the statutes aforesaid. Form No. 165. Attachment in rem in proceedings for forfeiture. United States, 1 district of . j The President of the United States to the marshal of the district of You are hereby commanded forthwith to seize and attach , lately in the possession of , as the same now are, and the same safely keep, to abide the final order and decree of the dis- trict court of the United States for the district of , in a certain plea or information herein prosecuted against the said property, etc., by the United States of America, libellants, for for- feiture, etc. And you are further commanded, in the name and by the authority aforesaid, to cite and admonish the said and generally all others herein concerned, so that they be and ap- pear at a special session of said court, to be holden at , on the day of , at ten o'clock in the forenoon of the same day, then and there to show cause, if any they have, why the said property, etc., should not be condemned as forfeited for the causes in said libel or information set forth. And have you then there this writ. Witness the honorable , judge of the said court, at , this day of , A. D. 18 , and in the year of the independence of the United States. , Clerk district coi^rt of the United States. forms in admiralty. Form No. 166. Taxed bill costs. United States circuit court, district of The United States ^ V. Ibl Clerk's costs on seizure in revenue case. Filing , 10 cts. ; entering order for process and copy, 25 cts., Issuing process, $1, seal, 20 cts., . . . . . Draft report to the Solicitor of the Treasury, fol. 1 ^and copy, and entering, 40 cts. ; filing, 10 cts., Draft and two copies certificate of substance of information from files for publication by the U. S. marshal, fol. at 35 cts., ........ Order to return monition and copy, 25 cts. ; filing monition and return, 20 cts. ; entering return, 15 cts., . Order for proclamations and copy, 25 cts. ; order for de- faults and copy, 25 cts., ...... Order for condemnation, 15 cts., sale, 15 cts., copies at 10 cts. each, ........ Drawing decree and entering, fol. at 15 cts. ; copy at 10 cts.; filing, 10 cts., ..... Order for venditioni exponas, 15 cts. ; copy, 10 cts.. Issuing venditioni exponas, $1 ; seal, 20 cts., . Drawing final records with pleadings, etc., fol. at 15 cts Drawing copy records with pleadings, etc., fol. at 10 cts. filing, 10 cts., ...... Order to return venditioni exponas, 15 cts. ; copy, 10 cts Filing venditioni exponas, 10 cts. ; filing return, 10 cts. entering return, 15 cts., ..... Drawing and copy report to solicitor, fol. at 25 cts. filing, 10 cts., ...... Clerk's fee for receiving, keeping and paying out % , at 1 per cent., ....... Drawing abstract, 15 cts. per fol. ; copy, 10 cts. ; filing 10 cts., . . . • Order for distribution and copy, 25 cts., . Taxing district attorney's cost, $1; filing, 10 cts., . ^0 35 1 20 50 60 50 50 25 1 20 25 35 25 1 10 758 FEDERAL PLEADING, PRACTICE AND PROCEDURE. filing, 10 cts. ; filing vouchers recording, etc., to pay recording, etc., to pay recording, etc., to pay recording, etc., to pay at Taxing marshal's cost, at 10 cts.. Clerk's fee on entering order-check, marshal's costs. Clerk's fee on entering order-check, district attorney and clerk. Clerk's fee on entering order-check, informer's moiety, . Clerk's fee on entering order-check, collector's net proceeds, . Drawing and copy receipts for amounts paid, fol 25 cts.; filing same at 10 cts. each, . . . . Copy of abstracts and receipts from files for solicitor and collector, fol. at 10 cts., Drawing certificates, 15 cts.; copies at 10 cts., Entries in ledger, 15 cts. ; copy costs from files, fol. at 10 cts., Filing clerk's cost, 10 cts. ; making dockets and indexes, $1 Drawing and copy report to solicitor of suit decided, fol. 1 25 cts.; entering, 15 cts.; filing, 10 cts.. Duplicate copies from the files of monition, decree, vendi tioni exponas, abstracts, account sales, district attorney marshal and clerk's costs for collector, fol. at 10 cts Certifying each at 25 cts. ; seals at 20 cts.. Draft and two copies of affidavit of services of clerk, etc fol. 1 and entry, ...... Oath to same and certificate, 25 cts.; oath to marshal's costs and certificate, 25 cts., . . . . . 1 60 1 CO 1 GO 1 60 1 10 50 90 50 Taxed and adjusted at E. F. dollars. Clerk of the U. S. circuit court. U. S. Circuit Court, |^ DISTRICT OF . j S8 , clerk, being duly sworn, deposes and says that the services charged herein have been or will be actually and necessarily performed as herein stated, to the knowledge of this deponent, and FORMS IN ADMIRALTY. 759 are, as this deponent believes, in accordance with the fee bill of 1853. Sworn to before me this day of , 18 . G. H., U. S. commissioner. Form No. 167. Bills of taxed costs. United States district court, district of 1 V. V Proctor's bill. Docket fee (decree over fifty dollars), .... Verification of libel, 25 cts. ; verification of costs, 25 cts., Four depositions taken and admitted as evidence. Paid one witness attending three days, . . . . Paid 120 miles travel, 5 cts. per mile, .... Paid two witnesses attending one day each, Paid travel of two witnesses 150 miles each, 5 cts. per mile, ......... Paid one witness one day, ...... Paid travelling fee for same 60 miles, 5 cts. per mile. Paid notary public, taking depositions, . . . . $20 00 50 10 00 4 50 6 00 3 00 15 00 1 50 8 00 , 15 00 $78 50 Taxed at $78 50. United States of America, district of , Clerk. G. F., of the city of , being duly sworn, deposes and says that the services charged for in the foregoing bill have been actually and necessarily rendered as therein stated ; that the ex- penses therein mentioned have been actually and necessarily in- curred as therein set forth. Subscribed and sworn before me this day of , 18 . G. F., U. S. commissioner. 7g0 federal pleading, practice and procedure. Form No. 168. Marshal's bill. United States district court, district of V. Serving mesne process at , . . . Travel to serve the same, 10 miles, 6 cts. per mile, . Proclamation, ....... Expenses of custody actually paid, 124 days at 50 cts., Oath and certificate disbursements, . ... Paid printer for publishing notice of arrest, Serving warrant to sell, ...... Travel to return the same, 10 miles, 6 cts. per mile, Paid printer for publishing notice of sale. Poundage on $4100, amount of sale. Paid for storing sales, ...... Drawing and executing deed, ..... Paid for copy of enrollment, ..... Percentage on disbursements, .... Taxed at $154 20 this day of ,18 $2 00 60. 30 62 00 50 6 00 2 00 60 3 40 65 00 5 00 5 00 50 1 30 $154 20 , Clerk. United States of America, DISTRICT OF ss . G. H., deputy marshal of the said district, being duly sworn, deposes and says that the services charged in the foregoing bill have been actually and necessarily performed as therein stated, and that the expenses mentioned in said bill have been actually and necessarily incurred as therein set forth. Subscribed and sworn before me this day of , 18 . G. H., U. S. commissioner. FORMS IN ADMIRALTY. 761 Form No. 169. Clerk's bill. Unifed States district court, district of Filing libel, 10 cts. ; entering order of process, $1, . Issuing process and seal, $1 20 ; marshal's notices, $1 20 Filing process, 10 cts. ; entering return, 15 cts. ; filing stip. 10 cts., ....... Entering four orders continuance, one folio each at 15 cts. engrossing each, 10 cts.; filing each, 10 cts.. Filing stip., 10 cts. ; entering order substitution, 15 cts. engrossing, 10 cts.; filing, 10 cts., . Filing petition, 10 cts. ; entering order sale, two folios 30 cts.; engrossing, 20 cts.; filing, 10 cts., Issuing warrant, $1 20; filing, 10 cts.. Filing answer, ....... Entering order for payment of marshal's bill, 15 cts. ; eng. 10 cts.; filing, 10 cts., ..... Entering order for trial, 15 cts. ; swearing two witnesses 20 cts., Docket fee, $3 ; entering final decree, four folios, 15 cts each; engrossing, 40 cts.; filing, 10 cts., . Making enrollment, eight folios, 15 cts. each, . Drawing four order checks, 30 cts. ; copying each, 20 cts. entering each in ledger, 15 cts.. Filing three bills of costs, 30 cts.; filing five other papers 50 cts., ........ Percentage on $3500, . . . . Taking testimony on trial, thirty folios, . Taxed and allowed at $58 20. 1 10 2 40 35 1 40 45 70 1 30 10 35 35 4 10 1 20 2 60 80 35 00 6 00 $68 20 , Judge. 762 federal pleading, practice and procedure. Form No. 170. United States district attorney's costs. United States district court, district of V. Two per cent, on $303 48, proceeds of sale, . . . $6 07 Taxed at $6 07 this day of , 18 . , Clerk. United States of America, y ss district of G. F., of the said district, being duly sworn, says that he is the U. S. district attorney for said district ; that the services charged in the foregoing bill have been actually and necessarily performed as therein stated ; and that the same or any part thereof have not been paid, G. F. Subscribed and sworn before me, this day of , 18 . , U. S. commissioner for the district of Form No. 171. Certificate of license as counsellor. United States of America, ss district of I, , clerk of the circuit court of the United States for the district of , in the circuit, do hereby certify that for attorney] has been duly admitted and sworn as a counsellor of the said court, and has signed the proper roll in this office. In witness whereof, I have hereunto set my hand and the seal of the said court, this day of , in the year of our Lord one thousand eight hundred and , and of the inde- pendence of the United States of America the , Clerk. i forms in admiralty. 763 Form No. 172. Certificate to a transcript of record. United States of America, dlstrict of I, , clerk of the circuit court of the United States of America for the district of , in the circuit, do hereby certify that the foregoing pages, numbered from to inclusive, contain a true and complete tran- script of the record and proceedings had in said court, in the case of against , as the same remain of record and on file in said office. In testimony whereof, I have caused the seal of the said court to be hereunto affixed, at the city of , in the district of , in the circuit, this day of , in the year of our Lord one thousand eight hundred and , and of the independence of the said United States the , Clerk. FORMS FOR REMOVAL OF CAUSES. Form No. 175. Petition for removal in criminal cases, under section 643 of Revised Statutes. [Title of cause.] To the circuit court of the United States in the district of Your petitioner, , defendant in the above-entitled cause, respectfully represents : That on the day of , 18 , at the term of said court, at the instance of , as prosecutor, your petitioner was indicted for -willfully, premeditatedly and of malice aforethought killing one , which indictment and crimi- nal prosecution so instituted is still pending in said court against your petitioner. Your petitioner further represents that no murder was committed by the killing aforesaid, but in fact the killing was committed in the necessary self-defence of the defendant, your petitioner, and to save his own life ; that at the time the alleged oiFence was com- mitted he was an officer of the United States, to wit, a deputy col- lector of internal revenue, and the act for which he was indicted was done in his own necessary self-defence, while engaged in the discharge of the duties of his office as said deputy collector of in- ternal revenue ; that he was at the time acting by and under the authority of the internal revenue laws of the United States, and under and by right of his office as deputy collector of internal revenue of the United States ; that it became, and was, his duty, under said revenue laws, to seize illicit distilleries and the apparatus that was used for the illicit and unlawful distillation of spirits, and while so attempting to enforce said revenue laws as deputy collector aforesaid, he was assaulted and resisted, and fired upon by a num- ber of armed men, and in defence of his life returned fire, which is the act for which he was indicted. Your petitioner therefore prays that said cause may be removed from the court of county, in the state of , FOEMS FOR REMOVAL OF CAUSES. 765 to the circuit court of the United States for the district of , and that a certiorari may issue therefor. G. F., Attorney for the petitioner. AFFIDAVIT TO PETITION. State of COUNTY of . } I, , being duly sworn, depose and say that I am the petitioner named in the foregoing petition, that I have read the same, and that the matters and things therein contained are true of my own knowledge. , Petitioner. Subscribed and sworn to before me this day of , 18 . G. H., Commissioner of U. S. circuit court. CERTIFICATE OF COUNSEL. I, G. F,, being an attorney at law of the supreme court [or other court] of the state, the same being a court of record, do hereby certify that as counsel for the petitioner in the foregoing petition named, I have examined the proceedings against him mentioned therein, and carefully inquired into the matters therein set forth, and that I believe them to be true. G. F., Attorney for the petitioner. Form No. 176. Certiorari, for removal case from state court. The President of the United States of America to the court of the state of , in the judicial district, G-reeting : Being informed that there is now pending before you a suit in which is plaintiff and defendant, which suit was commenced in said court against the said for and on account of acts done by him under the revenue laws of the United States ; that said suit was commenced by summons and complaint, and that said suit has not been tried, and we being will- ing for certain reasons that the said cause and the records and pro- 766 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ceeclings therein should be certified by the said court, and removed into our circuit court of the United States in and for the district of ; do hereby command you that you send ■without delay to the said circuit court, as aforesaid, the record and proceed- ings in said cause, so that the said circuit court may act thereon as of right and according to law ought to be done. Witness the honorable Salmon P. Chase, Chief Justice of the Supreme Court of the United States, at , the day of , A. D. 18 . , Clerk. , Attorney for plaintiff in error. Service of the within is hereby admitted this day of A. D. 18 . Form No. 177. Petition for removal case, under section 2 of act of March 3, 1875. court, state of , county of A. B. V. CD. The petition of , the above-named defendant [or plain- tiff], shows to the court that the above suit was begun against him in the court of the state of , on or about the . day of , 18 . That at the time said suit was begun, and at the present time, the plaintiff [or defendant] was and is a citizen and resident of the state of , and the defendant [or plaintiff] Avas and is a cit- izen and resident of the state of That the matter in dispute in said suit, and for which said suit is brought, exceeds the sifm of dollars exclusive of costs, and the defendant herewith files a bond with good and sufiicient sure- ties for his entering in the circuit court of the United States for the district of , wherein said suit is pending, on the first day of the next session of said court, a copy of the record in said suit [and also for his appearing in said circuit court, and en- tering special bail if required], and for paying all costs that ma}^ FORMS FOR REMOVAL OF CAUSES. 767 be awarded by said circuit court if said court shall hold that such suit was wrongfully or improperly removed thereto, as provided by the statute of the United States. Wherefore the defendant [or plaintiff] prays this honorable court that said bond may be approved and said suit be removed into the circuit court of the United States for the district of , and that this court proceed no further in the premises. A. B. [or C. D.], Petitioner. State of county or A. B., being duly sworn, says that he is the defendant in the above-entitled action, and has read the foregoing petition subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge. Sworn to before me this day of , a. d. 18 . , Clerk. Form No. 178. Bond on a removal w^ith afiidavit, etc. Know all men by these presents, that we, , of the city of , and , of the city of , and , of the city of , are jointly and severally held and firmly bound unto in the penal sum of dollars, for which well and truly to be paid unto said , his heirs, executors, admin- istrators and assigns, we bind ourselves, our heirs, executors and assigns and administrators firmly by these presents. Sealed with our seal, this day of , a. D. 18 . The condition of this obligation is such that if the said , defendant [or plaintiff] in a suit now pending in the supreme court ^f the state of , for the county of , shall on the first day of the next session or term of the circuit court of the United States for the district of , enter a copy of the record in said suit, and shall enter the appearance of said in said circuit court of the United States, and shall enter special bail in the cause, if special bail were originally required, and pay all costs that may be awarded against him by said circuit 768 FEDERAL PLEADING, PRACTICE AND PROCEDURE. court if such court shall hold that said suit was ^Yrongfully or im- properly removed from said state court, then this obligation to be void, and otherwise to remain in full force and effect. In witness whereof, the said obligors have hereunto set their hands and seals this day of , a. d. 18 . State of county of On this day of , A. D. 18 , before me person- ally came and , to me personally known and known to me to be the persons who executed the foregoing bond, and ac- knowledged that they executed the same for the uses and purposes therein mentioned. G. 11., Circuit court commissioner. Form No. 179. Petition for the transfer of a cause from a state to a circuit court, under the Revised Statutes of the United States, section 639, subdivision 3. In the court of county, state of A. B. "i I Petition for the transfer of this cause to the circuit C. D. j ''"'''• To the honorable the court of county, state of Your petitioner, , respectfully shows that he is plaintiff [or defendant] in the above-entitled suit, and that the same was commenced on or about the day of , 18 , in said court ; that your petitioner was at the time of the iH'inging said suit, and still is, a citizen of the state of , and a resident thereof; that said action was brought for the pur- pose of [here state the nature of the suit and the relief asked], and that the matter in dispute in said suit exceeds the sum of five hun- dred dollars, exclusive of costs. Your petitioner further states that the suit has not been tried, but is now pending for trial in the court of the state of for said county of , and that he desires to re- move the same into the circuit court of the United States for the district of , in pursuance of the statute in that behalf pro- vided ; to wit, subdivision 3 of section 639 of the Revised Statutes of the United States. FORMS FOR REMOVAL OF CAUSES. 769 Your petitioner further says that he has filed herewith the affi- davit required by the statute in such cases, and offers here his bond, executed by , with good and sufficient surety, in the penal sum of , as required by said statutes on the removal of a cause. Your petitioner therefore prays that the said bond may be ac- cepted as good and sufficient, and that the said suit may be removed into the next circuit court of the United States in and for said dis- trict of , pursuant to the statute aforesaid, and that no further proceedings may be had therein in this court. G. F., Attorney for plaintiff [or attorney for defendant]. Form No. 180. Form of affidavit of prejudice or local influence to accompany the petition under the provisions of paragraph 3, section 639 of the Revised Statutes. In the court, county, state of A. B., plaintiffs, ^ V. V Affidavits of prejudice. C. D,, defendants. J State of , county of , ss: I, , being duly sworn, do say that I am in the above-entitled cause ; that I have reason to believe, and do be- lieve, that from prejudice and local influence I will not be able to obtain justice in said state court. Subscribed by the said , in my presence, and by him sworn to before me, at , this day of , A. D. 18 . A. B. [l. s. ] E. F., Notary public in and for county. Form No. 181. Form of bond to accompany the petition for removal. [Title of cause.] Know all men by these presents. That , as principal, and , of , as surety, are held and firmly bound unto , in the penal sum of 49 770 FEDERAL PLEADING, PRACTICE AND PROCEDURE. dollars, for the payment of which, -well and truly to be made, we bind ourselves jointly and severally firmly by these presents. The condition of this obligation is such that if shall enter and file, in the next session of the circuit court of the United States in and for the district of , on the first day of its session, coj'ies of all process, pleadings, depositions, testimony and other proceedings in a certain suit or action now pending in the court of the county of and state of , in which is plaintiff and defendant, and shall do such other appropriate acts as, by the statutes of the United States, are required in that behalf, upon the removal of a suit from a state court into the said United States court, then this obligation to be void, otherwise of force. Dated , a. d. 18 . A. B. C. D. State of ss county. I, , of said county, the surety named in the foregoing bond, being duly sworn, do depose and say that I am a resident of the state of , and a property holder therein ; that I am worth the sum of dollars, over and above all my debts and liabilities, and exclusive of property by law exempt from execution ; that I have property in the state of , liable to execution, of the value of more than hundred dollars. C. D. Subscribed in my presence by , and by him sworn to before me this day of , 18 . , Clerk. - Form No. 182. Form of petition for removal where the adverse parties are all citi- zens of different states. In the court of county, state of A. B. and C. D., plaintiffs, ^ V. y Petition for removal. E. F. and G. H., defendants. J To said court : Your petitioner, E. F., respectfully shows to this honorable court FORMS FOR REMOVAL OF CAUSES. 771 that the amount in dispute in the above-entitled suit exceeds, ex- clusive of costs, the sum or value of five hundred dollars ; that the controversy in said suit is betweeti citizens of different states ; that each adverse party is a citizen of different states ; that your peti- tioner was, at the time of the commencement of this suit, and still is, a citizen of the state of , and that then was, and still is, a citizen of the state of , and that then was, and still is, a citizen of the state of [and so state the citizenship of other parties]. Your petitioner offers herewith a bond with good and sufficient surety for his entering in said circuit court of the United States, on the first day of its next session, a copy of the record in this suit, and for paying all costs that may be awarded by said circuit court, if said court shall hold that this suit was wrongfully or improperly removed thereto. And he prays this court to proceed no further herein, except to make the order of removal required by law, and to accept the said surety and bond, and to cause the record herein to be removed into said circuit court of the United States in and for the district of E. F., by G. H., his attorney. [If verified, which is not required by the statute, it may be in the following form :] State of , ] y ss: county, j I, E. F., being duly sworn, do say that I am one of the defendants in the above-entitled cause ; that I have read the foregoing petition and know the contents thereof; and that the statements and alle- gations therein contained are true, as I verily believe. Subscribed by the said in my presence, and by him sworn to before me, this the day of , a. d, 18 . I. J. Form No. 183. Bond for the removal of a cause under the act of March 3, 1875. [Title of cause.] Know all men by these presents, that I, , as principal, and , as surety, are held and firmly bound 772 FEDERAL PLEADING, PRACTICE AND PROCEDURE. unto in the penal sum of dollars, the pay- ment whereof well and truly to be made unto the said , heirs and assigns, we bind ourselves, our heirs, representatives and assigns, jointly and severally, firmly by these presents. Yet upon these conditions : The said having petitioned the court of county, state of , for the removal of a certain cause therein pending, wherein is plaintiff and defendant , to the circuit court of the United States in and for the district of Now, if the said , your petitioner, shall enter in the said circuit court of the United States, on the first day of its next session, a copy of the record in said suit, and shall well and truly pay all costs that may be awarded by the said circuit court of the United States, if said court shall hold that said suit was wrongfully or improperly removed thereto [if special bail was originally req- uisite in said cause, then add, "and shall then and there appear and enter special bail in said suit"], then this obligation to be void ; otherwise in full force, and virtue. Witness our hands and seals, this day of , A. D. 18 . [L. s.] [It is perhaps advisable that the sureties justify, but it does not appear to be absolutely necessary.] Form No. 184. Order of state court for removal of cause. At a term of the court, held at the in the city of , on the day of , A. D. 18 Present : — Honorable , justice. court, county of A. B. ^ C. D. J On the pleadings and proceedings herein, and on the petition and bond filed herein by the defendant under the statutes of the United States, and on motion of , defendant's attorney, it is or- FORMS FOR REMOVAL OF CAUSES. 773 dered that tbe security offered bj the defendant be accepted and said bond approved, and that the state court proceed no further in this cause, and that this cause be removed into the United States circuit court in and for the district of , Clerk. Form No. 184a. Notice of the removal of a cause. Circuit court of for the circuit of A. B. V. C. D. To , attorney for the plaintiif. You will please take notice that on the day of , 18 , by an order of the court of the state of , the above-entitled cause was transferred to the circuit court of the United States for the circuit, district of H. J., Defendant's attorney. April , 18 . Form No. 1845. Form of writ of certiorari under section 7 of the act of March 3, 1875. The President of the United States of America to the judge of the court of [here describe the state court by name]. Whereas it has been represented to the circuit court of the United States for the district of that a certain suit was com- menced in the court of [here name the state court], where- in , a citizen of the state of , was plaintiff and , a citizen of the state of , was defendant, and that the said duly filed in the said state court his petition for the removal of said cause into the said circuit court of the United States, and filed with said petition the bond with surety re- quired by the act of Congress of March 3, 1875, entitled " An act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from state courts, and for 774 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Other purposes," and that the clerk of the said state court above named has refused to the said petitioner for the removal of said cause a copy of the record therein, though his legal fees therefor were tendered by the said petitioner : You, therefore, are hereby commanded that you forthwith certify, or cause to be certified, to the said circuit court of the United States for the district of , a full, true and complete copy of the record and proceedings in the said cause, in which the said petition for removal was filed as aforesaid, plainly and distinctly, and in as full and ample a manner as the same now remain before you, together with this writ ; so that the said circuit court may be able to proceed thereon and do what to them shall appear to them of right ought to be done. Herein fail not. Witness the honorable Morrison R. Waite, Chief Justice of the Supreme Court, and the seal of the said circuit court hereto affixed, this the day of , A. D. 18 . , Clerk of said circuit court. FORMS m CRIMINAL CASES. Form No. 185. Order for grand jury. United States of America, 8S ' DISTRICT OF In pursuance of the authority in me vested, I do hereby order and appoint that a grand jury be drawn and summoned to serve in the circuit court of the United States of America in and for the district of , at a session of said court, to be held at the court-house in , on the day of , 18 , and that a venire issue to marshal therefor. , Judge [or justice]. Form No. 186. Precept to marshal for grand and petit jurors. The President of the United States of America to the marshal of the United States for the district of , Greeting : We command you that you cause to come before a circuit court of the United States for the district of , to be held at , in the city of , in the said district of , on the day of , at o'clock in the forenoon, twenty-four good and lawful men of your district, to in- quire for the United States, and the body of the said district, and to do and receive all those things which, in behalf of the United States, shall then and there be enjoined them ; and also all the prisoners then and there being in any or either of the jails of said district, with their attachment and all other muniments in anywise concerning those prisoners; and likewise thirty-six free and lawful men resident within the district of , of the age of twenty-one years and upwards and under sixty years old (who are 776 FEDERAL PLEADING, PRACTICE AND PROCEDURE. at the time assessed for personal property belonging to them in their own right to the amount of two hundred and fifty dollars, or who shall have a freehold estate in real property in the said district belonging to them in their own right or in the right of their wives, to the value of one hundred and fifty dollars), by whom the truth of the matter shall be better known and inquired into, and who are in no wise of kin to the plaintiffs or defendants between whom the several issues joined are to be tried, nor to those prisoners. And you the said marshal and your deputies, in your and their proper persons, shall then and there attend to do all those things which to your and their offices appertain to be done in that behalf, and have you then there the names of those jurors and those prison- ers, and this writ. Witness the honorable , Chief Justice of the Supreme Court of the United States, at the city of , in the said district of , this day of , in the year of our Lord one thousand eight hundred and , and of the independence of the United States the G. F., U. S. district attorney. H. J., Clerk. Form No. 187. Capias or bench -warrant. The President of the United States of America to the marshal of the district of , Gfreeting : We command you that you arrest , if shall be found in your district, and that you safely keep so that you may have body before the circuit court of the United States of America for the . district of , to be held at , in the second circuit, in and for the said district of , before the judges of the same court, on the day of next, to answer unto the United States on an indictment pending and on file against him for , as will more fully appear by reference to the said indictment, and that you also have then and there this writ. [l, s.] Witness, etc. , Clerk. forms in criminal cases. 777 Form No. 188. Common frame of indictment. Circuit [or district] court of the United States of America for the district in the circuit, begun and held at the city of , within and for the district and circuit aforesaid, on the [state the day and date of the beginning of the term], in the year one thousand eight hundred and eighty- , and continued by adjournment from said day to and including the day of [the day of the finding and presentment of the indictment], in the year one thousand eight hundred and eighty- District of , ss : The jurors of the United States of America within and for the district and circuit aforesaid, on their oath do present that A. B., late of , in the county of , in the district and circuit aforesaid, merchant [or yeoman, or mariner, or as the case may be], heretofore, to wit, on the day of , in the year one thousand eight hundred and eighty- (1), at the dis- trict of and within the jurisdiction of this court, did [here insert words charging the offence according to the facts of the case, and conclude as follows] (2) against the peace of the said United States and their dignity, and against the form of the statute of the United States in such case made and provided. G. F., United States district attorney. ENDORSEMENT. A true bill. K. L., Foreman of the grand jury. Form No. 189. Indictment for offence on the high seas. [The form of the commencement of the indictment may be as in Form No. 188 to (1), and then proceed as follows] : on the high seas, within the admiralty and maritime jurisdiction of the said United States, and out of the jurisdiction of any particular state and within the jurisdiction of this court, in and on board a certain vessel, to wit, the ship called the Lena [or a vessel the name whereof is to the jurors aforesaid unknown], the same being then and there owned by and belonging in whole or in part 778 FEDERAL PLEADING, PRACTICE AND PROCEDURE. to a citizen or citizens of the United States, to wit, E. F. [and G. H.], late of the district aforesaid [or to the jurors aforesaid un- known], did [here insert proper charge of the offence as required by the circumstances of the case, and conclude as in Form No. 188 from (2)]. Form No. 190. Indictment for offence committed at a place ceded to the United States. [Commence same as in Form No. 188 to figure (1), then proceed] to wit, within the navy yard in the city of Philadelphia, in the district aforesaid, the site of which said navy yard had been before the said day of ,. in the year last aforesaid, ceded to the United States, and which said navy yard was on the last-mentioned day a place under the sole and exclusive jurisdiction of the said United States, and out of the jurisdiction of any particular state and within the jurisdiction of this court. [Here insert words charging the offence according to the facts and circumstances of the case, and conclude as in Form No. 188. If other counts are necessary or desirable, add as follows :] Second count. And the jurors aforesaid, on their oath aforesaid, do further present, that, etc. Third count. And the jurors aforesaid, on their oath aforesaid, do further present, that, etc. [Averments charging the offence, and conclude as in Form No. 188.] Form No. 191. Subpoena to testify. The President of the United States of America to , Greeting : We command you that all and singular business and excuses being laid aside, you and each of you be and appear in your proper persons, before the circuit court of the United States of America for the district of , in the second circuit, at , in the city of , in the said district of , on the day of , one thousand eight hundred and , FORMS IN CRIMINAL CASES. 779 at o'clock in the noon of the same day, to testify all and singular what you and each of you may know in a certain criminal case now depending undetermined in the circuit court of the United States for the district of , between the United States of America v. , defendant, on the part of the And this you or either of you are not to omit, under the penalty upon each and every of you of two hundred and fifty dollars. Witness, honorable , Chief Justice of the Supreme Court of the United States, at the city of , the day of , in the year of our Lord one thousand eight hundred and H. J., Clerk. Form No. 192. Ca. sa. on a fine imposed. The President of the United States of America to the marshal of the district of , Greeting : We command you that in default of the payment of fine imposed on , convicted at term for the offence of , you do make the same, out of the goods and chattels, lands or tenements of said or any part thereof; and if no goods or chattels, lands or tenements of the said can be found, or not sufiicient to satisfy said judgment, then that you do take said , if shall be found in your district, and that you safely keep so that you may have body before the circuit court of the United States of America for the district of , to be held at , in the second circuit, in and for the said district of , before the judges of the same court, on the next, to answer unto the United States of America, and that you also have then and there this writ. Witness the honorable , Chief Justice of the Supreme Court of the United States of America, at , in the said district of , the day of , in the year of our Lord one thousand eight hundred and sixty- , and of the independence of the said United States the H. J., Clerk. G. F., Attorney. 780 federal pleading, practice and procedure. Form No. 193. Record of capias ad satisfaciendam. United States circuit court, district of • V. V Capias, etc. Issued on order of United States attorney to imprison, etc., de- fendant in default of payment of fine $ , imposed by order of court at term, a. d. 18 . , Clerk. I Form No. 194. Commitment to penitentiary. At a session of the circuit court of the United States of America for the district of , held at the in the said district, on the ' day of , in the year of our Lord one thousand eight hundred and Present: — The honorable , judge. United States circuit court, district of The United States of America The prisoner, , having been indicted and arraigned, and having been tried and convicted of the offence of , the court now here, on motion of Mr. , United States attorney, does adjudge and sentence the said to be imprisoned in the at , and confined at hard labor for the term of And it is further ordered and adjudged that the marshal trans- port the said to the said , and deliver him the said to the keeper of the said , and that the said keeper detain the said prisoner according to this sentence ; and that the clerk of this court immediately certify under the seal of the court, and deliver to the marshal of the district, a copy of this judgment, sentence and order, to accompany the body of the FORMS IN CRIMINAL CASES. 781 said , and to be left therewith at the said , the said copy to be warrant and authority for the transportation and imprisonment of the said , as hereinbefore provided. I certify the foregoing to be a true copy of an original judgment, sentence and order of the said court, as filed in my office. Witness my hand and the seal of the said court, this day of , A. D. 18 [l. s.] , Clerk. Form No. 195. Certificates, etc., on division of opinion in a criminal cause. At a circuit court of the United States, begun and held at the city of , for the district of , on the day of , A. D. 18 . Present : — Hon. , judge. Present: — Hon. , judge. United States circuit court, district of This is an indictment against the defendant, charging him with having at the city of , in the state of , on the day of , A. D. 18 , knowingly exercised and carried on the trade or business of a lottery ticket dealer, and with having sold and offered to sell lottery tickets without having taken out and without having a license therefor, according to the provis- ions of the act of Congress entitled "An act to provide internal revenue, and to pay interest on the public debt," and the amend- ments thereof. The defendant demurs to said indictment and the matters therein contained, as not sufficient in law to compel him to answer the same. The government joins in said demurrer, and it is stipulated by and between the respective parties, in writing, that the defendant may have the same benefit as if he had pleaded specially the con- stitution and several laws of the state of on the subject of raffling and lotteries; and had also pleaded specially that at 782 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the several times mentioned in the indictment, he Avas a citizen of the said state, and exercised and carried on his business therein. The case coming on to be argued at this term, it occurred as a question, whether the defendant could be legally convicted and punished under the said indictment, and the acts of Congress therein referred to, for the offence of carrying on, without license under the said acts of Congress, the business mentioned and described in such indictment, while the said business was unlawful and wholly pro- hibited by the laws of the state of , and said defendant was a citizen of and resident therein, and while said business could not be carried on by the said defendant as alleged in said indict- ment, without his being liable to indictment, conviction and punish- ment under the laws and statutes of said state, for the criminal offence of selling lottery tickets and carrying on said business in violation of said statutes of said state. On which question the opinions of the judges were opposed. Whereupon, on motion of the United States, by their district attorney and counsel, that the point on which the disagreement has happened may, during the term, be stated under the direction of the judges, and certified under the seal of the court to the Supreme Court, to be finally decided, it is ordered that the foregoing statement of the pleading, etc., and the following statement, made under the direction of the judges, be certified, according to the request of the United States, by their attorney and counsel, and the law in that case made and provided, to wit : That the sale of lottery tickets and the carrying on of the business mentioned in the indictment as therein stated was then and there, under the constitution and laws of the state of , a criminal offence ; and now and for the last ten years has been a crime punishable by indictment, fine and imprisonment under the statutes of said state. United States circuit court, district of At a stated session of the circuit court of the United States of America, held in and for the district of on the day of , A. D. 18 , before the honorable , judge of the said court, assigned to keep the peace of the said United States of America in and for the said district, and also to hear and determine divers felonies, misdemeanors and other offences against the said United Stales of America, in the said district com- FORMS IN CRIMINAL CASES. 783 mitted, good and lawful men of the said district, then and there sworn and charged to inquire for the said United States of America, and for the body of said district, do upon their oaths present that , now or late of , in the county of , with force and arms, etc., to wit, at , in the county of , in the said district of , and within the j.urisdiction of this court, heretofore, to wit, on the day of , in the year of our Lord one thousand eight hundred and sixty , and on divers days and times between that day and the finding of this indictment, did knowingly, feloniously and unlawfully exercise and carry on the trade or business of , for the exercising and carrying on of which trade or business a license then was and is required, and without having taken out, and without having a license therefor, according to the provisions of the act of the Congress of the United States, entitled " An act to provide internal revenue, and to pay interest on the public debt," and the amendments thereof, against the statute of the United States of America in such case made and provided, and against the peace of the said United States of America, and their dignity. , U. S. attorney, district of United States circuit court, district of And now comes the above-named defendant in open court, and having heard the said indictment read, saith that the said The United States of America ought not further to impeach or prosecute him, the said defendant, touching the premises whereof he is by the said indictment accused, because he says that the said indictment, and the matters therein contained, are not sufiicient in law to compel him, the said defendant, to answer the same ; and that no process upon the said indictment ought, by the law of the land, to be issued against him, the said defendant ; and this he is ready to verify. Wherefore he prays judgment of the court here, and that he may be dismissed and discharged of the said indictment. , Attorney for defendant. 784 FEDERAL PLEADING, PRACTICE AND PROCEDURE. United States circuit court, district of And , district attorney of the United States for the district of , who prosecutes for the said The United States of America in this behalf, saith that the said indict- ment, and the matters therein contained, in manner and form, as the same are above stated and set forth, are sufficient in law to compel the said to answer the same. And the said The United States of America is ready to verify, as the court here shall direct and award. Wherefore, inasmuch as the said hath not answered to the said indictment, nor hitherto in any manner denied the same, the said The United States of America pray judgment, and that the said may be convicted of the premises in the said indictment specified. G. F., U. S. attorney, district of United States circuit court, district of It is hereby stipulated that upon and under the demurrer of the defendant interposed to the indictment in this case, the defendant may have the same benefit as if he had pleaded specially the con- stitution and several laws of the state of on the subject of , and had also pleaded specially that at the several times mentioned in the indictment he was a citizen of the said state, and exercising and carrying on his business therein. G. F., U. S. attorney. H. J., Defendant's attorney. United States circuit court, district of Certified to the Supreme Court of the United States, pursuant to the statute. Witness my hand and official seal at , this day of 18 [l. s.] , Clerk. COMMISSIONERS' FORMS. Form No. 196. Order for the appointment of a commissioner. Circuit court, district of Present : — The honorable , judges. In the matter of the appointment of A. B. as United States commissioner. It is hereby ordered that A. B., of , in said district, be and he hereby is appointed a commissioner of this court, to take aflBdavits and acknowledgments of bail in civil causes depending in the courts of the United States, and to execute and perform all the duties and exercise all the powers conferred upon commissioners appointed by this court, by the various provisions of the statutes of the United States now or hereafter in force relating to the same.^ Form No. 197. Complaint — common form. United States of America, Set DISTRICT OF } Before me, Adam Burrows, a commissioner of the United States in and for said district, personally comes Edgar A. Thomson, who, being sworn, on his oath says that he has good cause to believe that E. Ford, late of said district, on the day of , A. d. 18 [here insert the place where the crime or offence was committed and a description of the accusation], contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States. Edgar A. Thomson. Subscribed and sworn to before me this day of Adam Burrows, Commissioner U. S. circuit court in and for said district. 1 An official oath should be taken commissioner, and filed with the clerk and made in the usual form by the of the court. 50 786 federal pleading, practice and procedure. Form No. 198. Complaint for breaches of the peace. United States of America, ) V set. district of . J Before me, , a commissioner of the circuit court in and for said district, personally comes George Payne, who, being duly sworn, upon his oath says that he has just cause to fear and does fear that E. Frainey, of said district, will [here state the facts and violence threatened] contrary to the constitution and laws of the United States, and against the peace and dignity thereof. George Payne. Sworn to and subscribed before me this day of , A. D. 18 . ■ James R. Lane, Commissioner U. S. circuit court in and for said district. Form No. 199. Warrant to apprehend. The President of the United States of America to the marshal of the United States for the district of , and to his deputies, or any or either of them : Whereas complaint on oath hath been made to me charging that did on or about the day of , in the year one thousand eight hundred and eighty- , at , in said district [here state the offence complained of] : Now, therefore, you are hereby commanded, in the name of the President of the United States of America, to apprehend the said , and bring bod forthwith before me to answer the said complaint, and be dealt with according to law for the said offence. Given under my hand and seal this day of , in the year of our Lord one thousand eight hundred and eighty- [i-s.] , Commissioner of the circuit court of the district of Approved, , United States attorney. coxmmissioners' forms. 787 Form No. 200. Return of marshal endorsed on back of warrant. Received this warrant on the day of , 18 , at , and executed the same by arresting the within-named at on the day of , 18 , and have h bod now in court, as within I am commanded. , U. S. marshal. Per , Deputy. day of , 188 . Form No. 201. Subpoena. United States of America, district of The President of the United States to the U. S. marshal for the district of , Cfreeting: You are hereby commanded to summon , if they be found in your district, to be and appear before me, , a commissioner of the United States for the district of , at my office in , state of , on the day of , A. D. 18 , at o'clock M., to testify in a cause before the said commissioner pending, wherein the United States of America is plaintiff, and defendant , on the part of the . Hereof fail not at your peril. Witness my official signature, at •, this day of ,18 . , United States commissioner for district of Form No. 202. Return by marshal. This subpoena came into my hands for service on the day of , A. D. 18 , and served the same on each of the within-named witnesses, as follows : 788 FEDERAL PLEADING, PRACTICE AND PROCEDURE. On ,18 , at On ,18 , at On , 18 , at On , 18 , at On , 18 , at bj reading the same to , and by delivering a true copy to , at the times and places above named. , U. S. marshal. By , Deputy. MARSHAL S FEES. Mileage, miles, . Service on copy, . Form No. 203. Recognizance of prisoner pending examination. United States of America, ss ' DISTRICT OF Be it remembered that on this day of , A. d. 18 , before me, George Weaver, a commissioner of the circuit court of the United States in and for said district, personally comes Edgar Finley, as principal, and George Manahan and Joseph Woods, as sureties, and acknowledged themselves to owe and be indebted to thfe United States of America as follows, that is to say, the said Edgar Finley, in the sum of dollars, and the said George Manahan and Joseph Woods, in the sum of dollars each, to be levied of their goods and chattels, lands and tene- ments, and to the United States rendered, if default be made in the conditions following : The conditions of this recognizance are such that if the above- bounden Edgar Finley shall personally appear before the said George Weaver, commissioner as aforesaid, on the day of , A. D. 18 , to answer the complaint against him by one James Stivers, to wit [here insert accusation], and to submit to and commissioners' forms. ^ 789 obey all orders of said commissioners, then this recognizance to be void ; otherwise to remain in full force and virtue. Edgar Finley. [l. s.] George Manahan. [l. s.] Joseph Woods. [l. s.] Signed, sealed and acknowledged before me, this day of , A. D. 18 . George Weaver, Commissioner U. S. circuit court in and for said district. Form No. 204. Commitment pending examination. > ss: United States of America, district op The President of the United States of America to the jailer of the county of , Grreeting : Whereas complaint has been made before R. A. Dean, a com- missioner of the circuit court of the United States in and for said district, upon the oath of Jacob Butterby, that Charles Allen, late of said district, did, on the day of , A. D. 18 , at [here insert the place where the crime or offence was committed, and a description of the accusation], contrary to the statute in such case made and provided, and against the peace and dignity of the United States ; and the said Charles Allen having been brought be- fore the said commissioner, in pursuance of a warrant of arrest issued upon said complaint, for examination, and said examination having been postponed for the reason that [here insert the cause of the delay]. These are therefore to command you to receive the said Charles Allen into your custody, there to remain until dis- charged by the due course of law. In witness whereof, I have hereunto set my hand at my oflSce in said district, this day of , A. D. 18 . R. H. Dean, Commissioner of U. S. circuit court in and for said district. 790 federal pleading, practice and procedure. Form No. 205. Recognizance of ■witnesses. United States of America, district of Be it remembered that on this day of , A. D. 18 , before me, R. S. Stein, a commissioner of the circuit court of the United States in and for said district, personally come George McLean, James McLean, Henry Grey and William Mar- shall, and acknowledge themselves to owe and be indebted to the United States of America in the full and just sum of dol- lars, to be levied of their goods and chattels, lands and tenements, and to the said United States rendered, if default be made in the conditions following : The conditions of this recognizance are such that if the above- bounden George McLean, James McLean, Henry Grey and Wil- liam Marshall shall personally appear before the [here insert court, as "district" or "circuit"] court of the United States for the district of , on the first day of the next term thereof, to be begun and held at the city of [here insert place of holding court], in said district, then and there to testify on behalf of the United States, in cause wherein the said United States is plaintiff and Peter Metcalf is defendant, and shall not at any time be absent or depart from said court without leave, then this recog- nizance to be void ; otherwise to remain in full force and virtue. George McLean. [l. s.] James McLean. [l. s.] Henry Grey. [l. s.] William Marshall, [l. s.] In testimony whereof, the said obligors have hereunto set their hands and seals the day and year above written. Signed, sealed and acknowledged before me, this day of , a. d. 18 . R. S. Steen, Commissioner of U. S. circuit court in and for said district. commissioners' forms. 791 Form No. 206. Recognizance for appearance. United States of America, ^ DISTRICT OF 5 V «s • CITY OF . j Be it remembered that on this day of , A. D. 18 , before me, a commissioner duly appointed by the circuit court of the United States for the said district of , per- sonally came , and jointly and severally acknowledged themselves to owe the United States of America the sum of dollars, to be levied on their goods and chattels, lands and tenements, if default be made in the condition following, to wit : The condition of this recognizance is such that if the said shall personally appear before the court of the United States in and for the district aforesaid, at , on the first day of the next regular term thereof, and then and there to answer the charge of , and then and there abide the judgment of the said court, and not depart without leave thereof, then this recognizance to be void, otherwise to remain in full force and virtue. . [L. S.] . [L. S.] Taken and acknowledged before me on the day and year first above written. , [L. s.] Commissioner of the circuit court of the United States for the district of United States of America, district of , CITY OF , of No. street, and , of No. street, in the city of , in said district, surety on the fore- going recognizance, being duly sworn, deposes and says that he is a freeholder in the city of , that he is worth the sum of dollars over and above all his just debts and liabilities in property subject to execution and sale, and that his property consists of Sworn to this day of , A. D. 18 , before me. , [L. s.] Commissioner of the circuit court of the United States for the district of 792 federal pleading, practice and procedure. Form No. 207. Mittimus — common form. The President of the United States to the marshal for district of , Greeting : An order having been this day made by me that be held to bail in the sum of $ to appear at the first day of the term, A. D. 18 , of the district court of the United States for the district of , upon a charge of . He failing to give the required bail you are hereby commanded to receive and keep in your custody the said and detain until re- leased by due course of law. Witness my oflficial signature at city of , this day of , 18 . , U. S. commissioner for district of Form No. 208. Affidavit of attendance. United States of America, district of Before me, R. W. Rhu, a commissioner of the circuit court of the United States in and for said district, personally comes George Hull, who, being duly sworn upon oath, says that he has attended the examination in the case of the United States against E. F. Franklin, charged with [here insert the charge] as a witness for the United States, and that he is entitled to fees for attendance and mileage [the distance charged for being by the usual route travelled], as follows : days at $1 50 per day, $ ; miles travelled at five cents per mile, $ R. W. Rhu, Commissioner U. S. circuit court in and for said district. COMMISSIONERS FORMS. 793 Form No. 209. Order to pay witness fees. United States of America, district of y S8 : United States "j V. V Charged with E. R. Frainey. J The several persons hereinafter named having attended the ex- amination in the above cause as witnesses on the part of the United States, it is hereby ordered that the marshal pay to them the sums set opposite to their respective names, for attendance the number of days and travel the number of miles stated, to wit : Date. Names. Days attendance. Miles travelled, Amount due. Adam Bonbright, Commissioner U. S. circuit court in and for said district. Form No. 210. Transcript of docket. Before , commissioner of the circuit court of the United States for the district of United States of America V. Affidavit and complaint of charging that on or about the at , in the fendant herein, did ,. , Att'y for U. S. , Att'y for deft. dist ,of day rict of of , taken and filed, , A. D. 18 , , said , de- 794 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Issued warrant for arrest of defendant to United States marshal. Issued subpoena for witnesses to United States marshal. Warrant returned served by arrest of said defendant at , in said district, on the day of , 18 . Subpoena returned served on at , in said district. Defendant present [here state what further proceedings were had in the case, and set out the evidence taken]. United States of America, ) DISTRICT OF . • j I, , a commissioner of the circuit court of the United States in and for said district, do hereby certify that the foregoing writing is a true transcript of the entries on my docket in the cause therein named, and that copies of the process, examination and papers in said cause are herewith returned into the court of the United States for the district of , in pursu- ance of law. In witness whereof I hereunto set my hand, at my oflfice in in said district, this day of , 18 . , Commissioner of the circuit court of the United States for the district of Form No. 211. Affidavit and order for examination (de bene esse) for the plaintiff. Circuit court of the United States for the circuit and district of , or district court of the United States in and for the district of United States circuit court, district of . . A. B. ^ C. D. J , being sworn, says that he is the plaintiff in the above- entitled cause ; that he is advised by his counsel and verily believes that the testimony of , at present of , mariner [or as the fact may be], is material and necessary for this deponent in commissioners' forms. 795 the prosecution of such cause ; that the said lives at , more than one hundred miles from , where the court, at which this deponent expects the said cause will be tried, is to be held [or, is bound on a voyage to sea ; or, is about to go out of the district in which the said cause is pending, and to a greater distance than one hundred miles, as the deponent is informed and verily believes ; or, is so aged or so infirm as to render it probable that he will not be able to attend as a witness at the trial of such cause]. And this deponent further says that, as he is informed and believes, , the above-named defendant, resides at , about miles distant from the place where the examination of the said witness is expected to be taken ; and that, as he is also informed and believes, , the attorney of the said , resides at , about miles from as aforesaid.^ Form No. 212. Notice of examination (de bene esse). Circuit (or district) court, etc. United States circuit court, district of A. B. V. CD. Sir, you are hereby notified that will be examined (de bene esse) before me, at , on the day of , at o'clock in the noon, as a witness for the above plaintiff, according to the statutes in such case made and provided, at which time and place you are entitled by law to be present, and to put interrogatories to the said witness. Dated, etc. , U. S. commissioner. To C. D., the above-named defendant [or E. F., attorney for the above-named defendant]. ' Upon such application the court will make an order for the examina- tion as requested. 796 federal pleading, practice and procedure. Form No. 213. Subpoena. United States circuit court, district of A. B. ^ V. \ To C. D. I Take notice, that you are required to be examined de bene esse on the part of the , in the above-entitled cause, before me , a commissioner duly appointed by the circuit court of the United States for the district of , under and by virtue of the statutes of the United States in such case made and provided, at my office, , in the city of , on the day of , at o'clock in the noon of that day, at which time and place you are hereby required to be present and tertify. Witness my hand and official seal, at , this day of , 18 . , United States commissioner. Form No. 214. Caption for depositions to be taken de bene esse. United States of America, district of , State of , county of Be it remembered, that on this day of , in the year of our Lord one thousand eight hundred and , I, , a commissioner duly appointed by the circuit court of the United States for the district of , in the circuit, under and by virtue of the statutes of the United States in such case made and provided, did call and cause to be and per- sonally appear before me at my office, in the district of , in the state aforesaid, to testify, and the truth to say, on the part and behalf of the in a certain suit or matter of controversy, now depending and undetermined in the court of the United States for the district of , wherein commissioners' forms. 797 And the said , being about the age of years, and having been by me first cautioned and sworn to testify the truth, the whole truth, and nothing but the truth, in the matter of con- troversy aforesaid, I did carefully examine the said , and he did thereupon depose, testify and say as follows, viz. : Form No. 215. Certificate for depositions de bene esse. United States of America, district op , State of , county of I, , a commissioner duly appointed by the circuit court of the United States for the district of , in the second circuit, under and by virtue of the statutes of the United States in such case made and provided, do hereby certify that the reason for taking the foregoing deposition is, and the fact is, that the witness [here state the case for taking under the statute]. I further certify, that a notification of the time and place of taking the said deposition signed by me was made out and served on the 5 to be present at the taking of the deposition, and to put interrogatories, if he or they might think fit so to do. I further certify, that on the day of , A. d. 18 , I was attended by , and by the witness, who of sound mind and lawful age, and the witness , by me first carefully examined and cautioned, and sworn to testify the " whole truth, and the deposition by me reduced to writing in the presence of the witness and from statement, and after carefully reading the same to the witness , subscribed the same in my presence. I have retained the said deposition in my possession for the purpose of , the same with my own hand to the court for which the same taken. And I do further certify, that I am not of counsel nor attorney for either of the parties in the said deposition and caption named, nor in any way interested in the event of the cause named in the said caption. 798 FEDERAL PLEADING, PRACTICE AND PROCEDURE, In testimony whereof, I have hereunto set my hand and seal, this day of , in the year of our Lord one thousand eight hundred and , and of the independence of the United States the , U. S. commissioner, circuit court of the United States for the district of , in the circuit. Form No. 216. Commission to take depositions in other cases. The President of the United States of America to , Greeting : Know ye, that we, in confidence of your prudence and fidelity, have appointed you commissioner , and by these presents do give you full power and authority diligently to ex- amine upon corporal oath or affirmation , before you to be taken, and upon the interrogatories hereunto an- nexed, as witness on the part of the in a certain cause now pending undetermined in the circuit court of the United States of America for the district of , second circuit, wherein And we do further empower you, to examine on the same behalf, and in like manner, any other person or persons who may be produced as witness before you ; and we do hereby require you, before whom such testimony may be taken, to reduce the same to writing, and to close it up under your hand and seal directed to , as soon as may be convenient after the execution of this commission ; and that you return the same, when executed as above directed, with the title of the cause endorsed on the envelope of the commission. Witness the honorable , Chief Justice of the Supreme Court of the United States, at the city of , this day of , in the year of our Lord one thousand eight hun- dred and , and of our independence the , Clerk. , Attorney. commissioners' forms. 799 Form No. 217. Writ of habeas corpus ad testificandum. The President of the United States of America to the marshal of [or as the case may be], Q-reeting : You are hereby commanded that you have the body of , now in prison [or as the case may be], under your custody, as it is said, under safe and secure conduct, before, etc. [as in the subpoena], to testify the truth, according to his knowledge, in a certain case now depending, etc. [as in the subpoena], and immediately after the said shall then and there have given his testimony, that you return him to the said prison [or as the case may be], under safe and secure conduct, and have there then this writ. Witness, etc. [as in the capias]. Form No. 218. Commission of dedimus potestatem. The President of the United States of America to , Greeting : Know ye, that in confidence of your prudence and fidelity, you have been appointed, and by these presents you, or any two or more of you, are invested with full power and authority to examine on his corporal oath, as a witness in a case depending in the circuit court of the United States for the circuit and district of (or, in the district court of the United States in and for the district of ), wherein is plaintifi" and defendant, on the part of the , upon the inter- rogatories annexed to this commission ; and, therefore, you are hereby commanded, that you, or any two or more of you, at cer- tain days and places to be appointed by you for that purpose, do cause the said to come before you, and then and there examine him on oath upon the said interrogatories, and that you take such examination and reduce the same into writing, and return the same annexed to this writ, closed up under your seals, or the seals of any two or more of you, into the said circuit (or 800 FEDERAL PLEADING, PRACTICE AND PROCEDURE. district) court, before the judges (or judge) thereof, with all con- venient speed. Witness, etc. (as above). [The interrogatories and cross-interrogatories (if any) to be an- nexed to the commission, and the depositions, are to be drawn up in the usual form.] SUPREME COURT FORMS. Form No. 220. Motion for leave to file a bill in the Supreme Court. In the Supreme Court of the United States. .J. T., complainant, ^ ( D. C, defendant. J Now comes the complainant in the above-entitled cause by A. B,, his solicitor, and moves the court for leave to file a bill of com- plaint and discovery therein, against the said defendant. A. B., Solicitor for the complainant. Form No. 221. Bill for the settlement of a boundary between states. [Title of cause as in Form No. 1.] To the judges of the Supreme Court of the United States. The state of Rhode Island, one of the United States of America,, brings this bill against the state of Massachusetts, also one of the United States of America. And thereupon your orator complains and says that on the 3d d;iy of November, 1621, King James the First granted a charter to the council of Plymouth, for planting, ruling, ordering and govern- ing New England, in America, in which were described the bounda- ries of the territory so granted, as follows: [Here describe the boundaries.] That afterwards, to wit, on the 4th of March, 1629, King Charles the First incorporated by letters patent "The Governor and Company of Massachusetts Bay, in New England," and the council at Plymouth conveyed to them by deed the lands above described. Copies of said charters and deed are hereto annexed, marked 51 802 FEDERAL PLEADING, PRACTICE AND PROCEDURE. A, B, C, respectively, and your orator prays that they may be made a part hereof, as your orator will be prepared and prove the same. Your orator further states that afterwards, on the 8th day of July, 1763, King Charles the Second, by letters patent, granted a charter of incorporation to William Brenton, John Coddington and others, by the name of "The Governor and Company of the English Colony of Rhode Island and Providence Plantations, in New England, in America;" and granted and conferred to the corporation, by letters patent, all that part of New England, in America, containing, etc., bounded on the north or northerly by the aforesaid south or southerly line of Massachusetts colony or plantation, etc. Your orator further states that the province and colony of Massachusetts Bay, and of Rhode Island and Providence Plan- tations, thus established, continued under the charters and letters patent aforesaid, with the boundary line between them as aforesaid, unchanged until the 4th day of July, 1776, when with their sister colonies they became independent states of the Union. Your orator further states that the true boundary line between the state of Rhode Island and Providence Plantations, and the commonwealth of Massachusetts, by virtue of the charters afore- said from the English Crown, is a line run east and west three miles south of Charles river, or any or every part thereof. Your orator further states that the commonwealth of Massachu- setts holds possession to a line eight miles south of the Charles river, or any part thereof, and one that does not run east and west, but south of a west and north of a northeast course ; that the territory between this line and the one above described belongs to the state of Rhode Island ; and that the defendant unjustly with- holds the possession thereof from her and exercises acts of sover- eignty over it. Your orator further states that in consequence of various dis- putes and controversies about the boundary between the two colo- nies, and subsequently between said states, numerous efforts were made to adjust the same; that about the year commissioners were appointed by the legislatures of said colonies respectively for the purpose of ascertaining and settling said boundary, but they were never able to agree upon or settle the same. SUPREME COURT FORMS. 803 Your orator further states that the defendant herein claims that the boundary line was settled and adjusted by said commissioners acting for the two colonies and under the authority of the colonies respectively, and that this settlement has been acquiesced in by the plaintiff. But your orator states that there were errors in the pro- ceedings of said commissioners ; that they were misinformed and mistaken as to a monument alleged to have been set up, long an- terior to the appointment of said commissioners, by Nathaniel Woodward and Solomon Caffrey, and which they fixed upon and assumed to be on the boundary line three miles south of any part of Charles river, without any actual survey or measurements, etc. ; that the line thus fixed upon was in fact eight miles south of any part of Charles river, and has always been objected to and resisted by the complainant, and never acquiesced in as the true boundary line between said states ; that the agreement of the commissioners was not accepted or ratified by the complainant ; that no stake or monument existed on said line as assumed by said commissioners ; and that she never admitted any line as the true boundary, except the one called for by the charters aforesaid. Wherefore the complainant prays that the said defendant may be required to answer the matters set forth in this her bill ; that the northern boundary line between the complainant and the state of Massachusetts may, by the order and decree of this honorable court, be ascertained and established ; that possession and rights of jurisdiction and sovereignty to the whole tract of land, with the ap- purtenances mentioned, descyfibed and granted in and by the said charter or letters patent to the said colony of Rhode Island and Providence Plantations, hereinbefore set forth, and running on the north, by an east and west line drawn three miles south of the waters of said Charles river or of any and every part thereof, may be restored and confirmed to the complainants ; that the complain- ants may be quieted in the full and free enjoyment of her posses- sion, jurisdiction and sovereignty over the same, and the title, pos- session, jurisdiction and sovereignty of Rhode Island and Providence Plantations, over the same, be confirmed and established by the decree of this court; and that the complainants may have such other and further relief in the premises as to the court shall seem meet and consistent with equity and good conscience. May it please your honors to grant unto your orator a writ of 804 FEDERAL PLEADING, PRACTICE AND PROCEDURE. subpoena under tbe seal of. this honorable court, directed to the governor and attorney-general of the state of Massachusetts, com- manding them, on a day certain to be named and under a certain penalty, to be and appear in this honorable court, then and there to answer, on behalf of said state, all and singular the premises, and on behalf of said state stand to perform and abide such further order, direction and decree as may be made against said state. And your orator will ever pray, etc. A. B., Solicitor for complainant. C. D., Of counsel. Form No. 222. Subpcena in a suit by one state against another. The President of the United States to the governor and attorney- general of the state of , G-reeting : For certain causes offered before the Supreme Court of the United States holding jurisdiction in equity, you are hereby commanded and strictly enjoined that, laying all matters aside and notwith- standing any excuse, you personally be and appear on behalf of the people of said state of , before the said Supreme Court holding jurisdiction in equity, on the first Monday in next, at the city of Washington in the District of Columbia, being the present seat of the national government of the United States, to answer concerning things which shall there and then be objected to said state, and to do further, and receive on behalf of said state, what the said Supreme Court holding jurisdiction in equity shall have considered in this behalf; and this you may in no wise omit, under the penalty of five hundred dollars. Witness the honorable , Chief Justice of the said Supreme Court, at Washington city, this day of , 18 . Signed by the clerk of the Supreme Court.^ ^ This form was prepared by the court in the case of New Jersey v. New York, 4 Pet. 467. supreme court forms. 805 Form No. 223. Return of service of subpoena on a state. The within subpoena was served on J. K., governor of the state of Massachusetts, at on the day of , 18 ,^ by delivering to and leaving with him a copy thereof, and at the same time showing him the original with the seal of the court attached ; also on L. M., attorney-general of said state, at on the day of , 18 , by delivering to him a copy thereof, and at the same time showing him this original with the seal of the court attached. Dated , 188 . N. 0., U. S. marshal. Form No. 224. Precipe for appearance by a solicitor. In the Supreme Court of the United States. The State of Rhode Island, complainant, V. The State of Massachusetts, defendant. The clerk of this court will please enter my appearance as solicitor for the defendant in the above-entitled cause. Dated , 18 . Yours, etc., S. T., Solicitor for the defendant.^ Form No. 225. Demurrer for >vant of jurisdiction. In the Supreme Court of the United States. The State of Rhode Island, complainant, V. The State of Massachusetts, defendant. Now comes the defendant in this cause and demurs to the bill filed herein, and asks that the same be dismissed, for the following reasons : ^ la case of service by copy here one; as to object to the jurisdiction insert : " by leaving a copy thereof at of the court : Rubber Co. v. Goodyear, the dwelling house [or usual place of 9 Wall, 807. And it has been held abode] of the said , with , that the filing of a demurrer to a bill an adult person, who is a member of was sufficient appearance, without a [or resident in] his family." See formal entry of it : New Jersey v. Equity Rule 13. New York, 6 Pet. 323. ^ The appearance may be a special 806 FEDERAL PLEADING, PRACTICE AND PROCEDURE. 1. It does not appear from the bill that the parties before the court are such as to give the court jurisdiction of the same. 2. It does not appear from the bill that the matter in question or controversy is of such a judicial nature as to authorize the court to take cognizance of it. 3. It appears from the bill that the controversy relates solely to the jurisdiction and sovereignty of the state in its political capacity, and presents no question of private rights of persons or property for judicial determination. A. B., Solicitor for defendant. Form No. 226. Certificate to a demurrer. I hereby certify that in my opinion the foregoing [or within or above] demurrer is well founded in point of law. A. B., Solicitor and of counsel for defendant. - Form No. 227. Affidavit to demurrer in Supreme Court. United States of America, Supreme Court. I, C. D., being duly sworn, depose and say that I have read the foregoing demurrer to the bill of complaint in said suit in which I am defendant [or one of the defendants], and that said demurrer is not interposed for the purpose of delaying said suit. CD. Subscribed and sworn to before me this day of , 18 . E. F., Clerk of said court. Form No. 228. Motion to dismiss for want of jurisdiction. In the Supreme Court of the United States. The State of Rhode Island, complainant, "| ( The State of Massachusetts, defendant. J Now comes the defendant and moves the court to dismiss the bill herein for want of jurisdiction, as apparent from the bill: SUPREME COURT FORMS. 807 1st. Because it therein appears that the claim relates to an anti- quated controversy between colonies, previous to the formation of the government. 2d. Because there is no legislative provision or law in force to direct or regulate the process, forms of proceeding, judgment or execution, or to authorize any action by the court in the premises. 3d. Because the nature of the suit is political in its character, brought by a sovereign for the restitution of sovereignty of disputed territory. A. B., Solicitor for defendant. Form No. 229. Bill by one state against another to settle the boundary ; another form. To the Supreme Court of the United States : The state of Missouri, by Robert A. Hatcher, her agent and attorney, duly appointed and commissioned in pursuance of law, states that a controversy has arisen between said state and the state of Kentucky respecting the boundaries of said states, and the said state of Missouri complains that said state of Kentucky, since the first of January, a. d. one thousand eight hundred and fifty- seven, has unlawfully claimed and exercised jurisdiction over Wolf island, an island in the Mississippi river, forming part of the ter- ritory of said state of ^lissouri ; that said states are severally bounded at the point in question by the main channel of said river, and the said island was at the time said boundaries were fixed, and still is, on the western or Missouri side of said channel. Wherefore complainant prays that said state of Kentucky may be made a defendant to this bill, and permitted to answer the same ; that upon a final hearing of the cause, the boundary herein claimed may be ascertained and established by the decree of this court, and that the rights of possession, jurisdiction and sovereignty of said state of Missouri thereto be quieted, and the defendant for- ever enjoined and restrained from disturbing said complainant, her officers or people in the full possession and enjoyment of the same; and the complainant prays such other and further relief as the nature of the case requires and to equity belongs ; and com- plainant will ever pray, etc. R. A. Hatcher, Agent and solicitor for complainant. 808 federal pleading, pkactice and procedure. Form No. 230. Bill to restrain the use of a trade mark. [Caption and title of canse as in Form No. 1.] To the judges of the Supreme Court of the United States: P. F., resident of the city of New York, but an alien and a consul of her Britannic Majesty for the city of New York, duly appointed and accredited by the government of Great Britain, and duly recognized as such by the government of the United States of America, brings this bill against D. C, of F., in the state of Massa- chusetts, and a citizen of that state. And thereupon your orator complains and says that for many years past in manufacturing cotton thread at Leicester, in that part of the United Kingdom of Great Britain and Ireland called En^- land, and vending the same in large quantities not only in England but throughout the United States, and particularly in the city of B., in said state. That their said thread is, and for many years has been, put up for sale on spools, and labelled on the top of the spools "Taylor's Persian Thread," in a circle, in the centre of which is the number of the thread, and on the bottom of some of the spools, "J. Taylor, Leicester," and on the bottom of others, "J. Taylor," with the number of yards of thread on each spool; each spool usually containing two hundred yards or three hundred yards of thread, and the spools containing two hundred yards being black, and labelled " 200 yards," on the bottom of the spools, and those containing three hundred yards being red, and labelled " 300 yards," on the bottom of the spools. And on the centre of some of the same labels on the bottom of each spool is stamped the symbol or print of the head and forepart of a lion rampant ; and on the centre of other of said labels is stamped a coat-of-arms, the shield whereon contains a lion rampant, and over the same three balls, with the motto, "Jw Deo confido.'' And your orators further say that their spools so marked, stamped, colored or labelled as aforesaid are put up for sale in paper envelopes, each containing one dozen spools ; which envelopes are prepared and stamped by your orator for said purpose, and some of said envelopes bear in raised letters stamped on them the inscription, " The Persian Thread made by J. Taylor is labelled on the top of each spool Taylor's SUPREME COURT FORMS. 809 Persian Thread, and on the bottom, J. Taylor, Leicester. The above is for the protection of buyers against certain piratical arti- cles of inferior quality, fraudulently labelled with the name of Taylor." And on other of said envelopes is stamped a coat-of- arms representing a shield, the upper division of which is gilt, and contains three balls, and the lower division thereof is red, and contains the effigy of a lion rampant, with the motto under the same, "ir?. Deo eonfido.'^ Your orators further show unto your honors that their said thread has been and is manufac- tured of various sizes and numbers, to meet the wants of the trade ; and by means of the care, skill and fidelity with which your orators have conducted the manufacture thereof for a series of. years, their said thread has acquired a great reputation in the trade throughout the United States, and large quantities of the same are constantly required from your orators to supply the regular demand for the consumption of the country. And your orators have established agencies for the sale thereof to the whole- sale dealers and jobbers in the cities of B., N. Y., P. and N. 0., and in addition thereto your orators employ B. W., now residing in said city of N. Y., as their general agent for the United States, in relation to the sale of the said spool sewing cotton thread ; and a mercantile firm of H. & C. are the agents of your orators for the sale of the same in the city of B. And your orators further show unto your honors that their said thread is known and distinguished by the trade and the public as "Taylor's Persian Thread," and that your orators were the original manufacturers thereof, and the first who introduced the same to the public. That your orators' said general agent, on or about the first day of March last past, hearing that complaints were made of the quality of " Taylor's Persian Thread," proceeded to investigate the cause of said com- plaint, and thereupon ascertained that a spurious article of spool sewing cotton thread was offered for sale by sundry jobbers in the said city of B., as and for your orators' "Persian Thread," and that such complaints had arisen from the fraudulent imposition of such spurious article upon the public. Your orators further show unto your honors that their said agent further ascertained, upon inquiry, and your brators charge the facts to be, that the said spurious thread so sold and offered for sale in the said city of B., or some of it, was furnished to said jobbers by said D. C, either by 810 FEDERAL PLEADING, PRACTICE AND PROCEDURE. him personally or bj one F. D. E., of B., his agent in that behalf, and your orators are informed and believe that the said D. C. has sold the said thread, put up, marked and designated as aforesaid, in the said city of B. ; that the said D. C, disregarding the rights of your orators, and fraudulently designing to procure the custom and trade of persons who are in the habit of vending or using your orators' said " Persian Thread," and to induce them and the public to believe that his said thread was in fact manufactured by your orators, has engaged extensively in the manufacture of sewing cotton thread, and caused the same to be put up for sale in enve- lopes and on spools similar to those used by your orators, and so colored and stamped and labelled as to resemble exactly the said spools and envelopes used by your orators. And the said spool sewing cotton thread prepared by the said D. C. and sold by him, and which he is engaged in selling as aforesaid, is an exact imita- tion of the same article which your orators had been manufacturing as aforesaid, and selling in the United States for many years before the said D. C. commenced his said fraudulent imitation thereof. And the said spurious article, although inferior in quality to the genuine Persian Thread manufactured by your orators, can only be distinguished therefrom, so exact is the said D. C.'s imitation as aforesaid, by a careful examination of its quality and by a falling short in the number of yards contained on each spool from the number marked thereon as the contents thereof. And that the general appearance of the spurious article is the same as that of your orators' genuine thread, and well calculated to deceive those dealing in the purchase and sale thereof. Your orators further show unto your honors that their said general agent has obtained specimens of the said spurious Persian Thread, so sold by the said D. C. That in some of the specimens thus obtained the thread is put upon black spools, and in other of said specimens the thread is put upon red spools ; the said red and black spools are of the same size and appearance with those used by your orators ; on the top of which spurious spools, that is pasted round a paper label, partly gilt, are printed in the circle the words "Taylor's Persian Thread," and in the centre of the circle the number of the thread ; and on the other end on the bottom of such spurious spools there is pasted a round paper label, on some of which are printed in a circle the words "J. Taylor, Leicester," and on others, "J. Taylor," with the num- SUPREME COURT FORMS. 811 ber of yards of thread on the spools, and across others of the labels on said black spools the letters and figures " 200 yds.," and on said red spools the letters and figures " 300 yards" are printed, and in the centre of the said labels there is impressed the figure or symbol of the head or forepart of a lion rampant. And in other of said specimens the thread is put on spools corresponding in all particu- lars to those herein just before described, except that the labels on the bottom thereof bear a coat-of-arms, the centre of the shield whereof contains a lion rampant, with three balls over the same, and with the motto under, " In Deo conjido." Your orators have also obtained specimens of the envelopes in which said D. C.'s spurious thread is put up and sold by him or his agents, which bear the same inscriptions, letters and stamps that those used and employed by your orators bear. And in all these particulars of the labels on each end of the said spurious spools of thread and the envelopes in which they are put up, they are exactly like the envelopes and the labels on the respective ends of the spools of your orators' genuine Persian Thread, as hereinbefore stated. Your orators further show unto your honors that they have not yet ascer- tained the extent to which the said D. C. has carried his fraudulent imitation and sale of your orators' said thread. But your orators' said general agent has found the same ofiered for sale to the trade in at least six wholesale or jobbing houses in the city of B. as Tay- lor's Persian Thread, from which your orators believe, and they therefore charge, on their belief, that the said D. C. has been and is engaged in selling his said fraudulent and spurious imitation of your orator's Persian Thread to a large extent in various places in the United States, with intent that the same should circulate and be received and used by the public as Taylor's genuine Persian Thread. And your orators further show unto your honors that the fraudulent and inequitable conduct of the said D. C. is not only injuring them in the sales of their said genuine Persian Thread and the profits they would otherwise reasonably make thereon, but, by the inferior quality and false measure of the said spurious Per- sian Thread, is greatly prejudicing the reputation of your orators' Persian Thread in the market, and unless the said imitation is dis- continued or prevented, will ultimately destroy the character and standing of the genuine article. And your orators also charge that the said spurious thread is a fraud and deception upon the citizens of 812 FEDERAL PLEADING, PRACTICE AND PROCEDURE. the state of Massachusetts and of the United States, who purchase the same believing it to be the genuine article manufactured by your orators. In consideration whereof, and forasmuch as your orators are remediless in the premises at common law, and cannot have ade- quate relief save by the aid and interposition of this court ; to the end, therefore, that the said D. C, if he can show why your ora- tors should not have the relief hereby prayed, and upon his cor- poral oath, and according to the best and utmost of his knowledge, remembrance, information and belief, full, true, direct and perfect answers make to the interrogatories hereinafter numbered and set forth ; and the said D. C. and his attorneys, solicitors, counsellors, agents and servants may be enjoined and restrained from manu- facturing, selling or offering for sale directly or indirectly, any spool cotton sewing thread manufactured by him, or any person other than your orators, under the denomination of " Taylor's Per- sian Thread," or on spools with the words "Taylor's Persian Thread," or "J. Taylor, Leicester," or "J. Taylor," printed, painted, written or stamped, or attached or posted thereon, or with your orators' said device of a lion rampant, or with their said coat- of-arms thereon ; or on spools so made or having any label, print- ing or device thereon, in such manner as to be colorable imitations of your orators' said spool thread, usually known as " Taylor's Per- sian Thread," and that the said D. C. may be decreed to account to your orators for all the profits which he has made by the sale of his said fraudulent imitation of your orators' thread, and all the profits which your orators would have made on the sale of their genuine thread but for the said D. C.'s inequitable and wanton piracy of this their said name, spools and labels ; and that your orators may have their costs and charges in this behalf paid by the said D. C. ; and that your orators may have such further and other relief in the premises as to your honors shall seem meet, and shall be agreeable to equity and good conscience, may it please your honors to grant unto your orators a writ of injunction issuing out of and under the seal of this court, to be directed to the said D. C., his attorneys, solicitors, counsellors, agents and servants, therein and thereby commanding and enjoining him, under a certain pen- alty in the said writ to be expressed, according to the foregoing prayer of your orators. May it also please your honors to grant unto your orators a writ of subpoena issuing out of and under the SUPREME COURT FORMS. 813 seal of this court, to be directed to the said D. C, commanding him on a certain day, and under a certain penalty in the said writ to be inserted, personally to be and appear before your honors in this honorable court, then and there to answer the premises, and to stand to, abide by and perform such order and decree therein as to your honors shall seem meet, and shall be agreeable to equity and good conscience. INTERROGATORIES TO BE ANSWERED BY D. C. 1. Whether or not have you sold or manufactured in Massachu- setts or elsewhere thread put upon black spools, on one end of which goods is pasted, or otherwise fastened, a circular paper label partly gilt, on which is printed in a circle the words " Taylor's Persian Thread," and in the centre thereof the number of the thread, and on the other end of which is pasted, or otherwise fastened, a circular white paper label, on which is printed the words " J. Taylor, Lei- cester," and across the same label " 200 yds.," and in the centre of the same label there is impressed the figure or symbol of a lion rampant ? 2. Whether or not have you manufactured and sold, either in Massachusetts or elsewhere, thread put upon red spools, correspond- ing in all respects to the black spools described in the preceding interrogatory, except in the color of the spool and in the quantity of thread thereon, and in the letters and figures " 300 yds." printed across the said white paper label ? 3. What number of each kind of the said spools of thread have you manufactured and sold ? State the same accurately, and dis- tinguish the kind and number of the thread, and the number of black spools and the number of red spools so sold by you since you commenced selling the same, and the times when and the places where the same have been sold. 4. What have been the profits made or realized by you on the manufacture and the sale of thread put upon spools colored, deco- rated and fitted up in the manner described in the first and second interrogatories ? 5. To whom and what persons in particular you have sold said thread put up in the manner described in the first and second iii- terrosratories ? 814 FEDERAL PLEADING, PRACTICE AND PROCEDURE. 6. Who is and -who has been your agent in Boston for the sale of your thread put upon spools, fitted up in the manner described in the first and second interrogatories ? 7. Whether or not did you admit, in an answer sworn to and filed by you in the court of chancery in and for the state of New York, to a bill of complaint therein pending, wherein the said J. T. and W. F. were complainants and yourself was defendant, that you en- gaged in the manufacture of sewing cotton thread, which you caused to be put up for sale on spools similar to those used by the com- plainants, and so colored, stamped and labelled as to resemble exactly, or as near as the same could be done, the said spools used by the complainants, and the said spool sewing cotton prepared and sold by you was an exact imitation of the same article which the complainants had been selling in the United States many years be- fore you commenced manufacturing your thread ? 8. Whether or not have you manufactured and sold in Massa- chusetts sewing cotton thread upon black spools and upon red spools, on one end of which is fastened a circular paper label on which is stamped a coat-of-arms, the shield whereof contains a lion rampant, and over the same three balls, with the motto under the shield, "-Zw Deo confido" and around said shield is printed in some of said labels "J. & W. Taylor, Leicester," and in others, "J. k W. Taylor," with the number of yards on said spools? 9. Whether or not have you put up and sold your sewing cotton thread, colored, stamped and labelled in all or some of the modes described in this bill, in envelopes or wrappers, some bearing in raised letters the inscription, " The Persian Thread made by J. & W. Taylor is labelled on the top of each spool Taylor's Persian Thread, and on the bottom J. W. Taylor, Leicester. The above is for the protection of buyers against certain piratical articles of in- ferior quality, fraudulently labelled with the name of Taylor," and others bearing a coat-of-arms, the upper division of which is gilt and has three red balls thereon, and the lower division is red and has a lion rampant thereon. C. P. & B. R. C, Solicitors.^ ^ This form is adapted from the form [Massachusetts], determined in 1844 ; of the bill in the case of Taylor et al. in which case a perpetual injunction V. Carpenter, in the circuit court of was granted : 3 Story 458. the United States for the first circuit supreme court forms. 815 Form No. 231. Plea and certificate. In the Supreme Court of the United States. J. T., complainant, | ( D. C, defendant. J The said , defendant, by E. F., his solicitor, comes and says that this court ought not to take further cognizance of this suit, because the complainant herein is not a consul of at the city of . as stated in his bill of complaint herein, nor was he at the time of the filing of his said bill, and this he is ready to verify. [If the plea is of another bill pending, say : " That heretofore, and before the said complainant exhibited his bill in this honorable court, to wit, on the day of , 18 , the said com- plainant in the circuit court of the United States at , in the circuit, for the same matters and to the same effect, and for like cause of complaint and relief as in this his bill herein, and to which bill this defendant did then and there put in an answer, and said bill is still pending in said court and undetermined."] Wherefore he prays judgment if the court here will take cogni- zance of or entertain this action. G. F., Solicitor for defendant. I, E. F., solicitor for the defendant in this suit, hereby certify that in my opinion the foregoing plea to the bill of complaint filed herein is well founded in point of law. G. F., Solicitor for defendant. Form No. 232. Ansv7er in the Supreme Court. In the Supreme Court of the United States. J. T., complainant, "j V. y Answer. D. C, defendant. J The answer of D. C, defendant, to the bill of complaint of J. T., complainant. 816 FEDERAL PLEADING, PRACTICE AND PROCEDURE. The said defendant admits that the complainant is an alien and a consul of her majesty Queen Victoria, for the city of New York, duly appointed and accredited by the government of Great Britain, and duly recognized as such by the government of the United States of America ; and that he or others using his name have been engaged in vending sewing cotton threads in New York and Bos- ton ; but he does not admit that is the manufacturer thereof, and he alleges that he purchases the thread and winds it on spools labelled and marked as in the bill set forth, and encloses it in envelopes as described in the bill. The defendant further admits that the threads vended by the complainant have acquired a good reputation in the United States, but he avers that the same had fallen off before the complainant began to deal in and put up said threads, and the defendant has been informed and believes that during the last three or four years large quantities of thread have been spooled and labeUed as " Taylor's Thread " or "Persian Thread " in England by persons other than complainant, and exported to the United States as the thread of complainant so publicly that the complainant knew the same, or was legally affected with notice thereof. Defendant further avers that his thread is as good as that of the complainant. He admits that he has put up the thread on black spools labelled as described in the bill of complainant, and in en- velopes similar to those described therein and with raised letters thereon ; but he avers that he never put up thread in envelopes bearing a coat- of arms, or on red spools bearing a coat-of-arms, or on spools labelled 300 yards, or on any spools bearing such a mark, or the figure of the head and forepart of a lion rampant. He further avers that he consigned all his threads to E. for sale as his agent, and always instructed him to inform purchasers that they were of domestic manufacture ; that he is informed by the said E., and believes, that he never pretended that the said threads were those vended by complainant ; that he, the said defendant, never sold any threads under such pretence, but on the contrary he and his said agent always informed purchasers that the threads were of domestic manufacture, and not made or put up by the complainant. The defendant further avers that the complainant is an alien, and has no exclusive right of vending spool cotton thread put up, labelled and marked in the manner set forth in the bill ; that the SUPREME COURT FORMS. 817 defendant had full right and authority to manufacture threads and put it up on spools, and with labels in all respects similar to those of the complainant, and to sell the same in the United States with- out becoming liable to the plaintiff for so doing. And this defend- ant further answering denies that any citizens of the United States have been injured by his sale of said threads as aforesaid. And the defendant further answering; states that for six or seven years before and ever since he commenced putting up threads as aforesaid, divers persons other than the complainants or defendants have manufactured and put up thread on spools, colored, labelled, stamped and enclosed in the same manner as alleged by the com- plainant for sale in the United States, so publicly that the com- plainant or his agents either knew the same or were affected with notice thereof; that according to the custom of trade the defendant IS not liable or accountable to the complainant, or to any foreign manufacturer or vender, for using in the United States their trade marks, numbers, labels, names, stamps, figures, designs or emblems. The defendant in answer to the first interrogatory of said bill says that he has manufactured and sold in Massachusetts thread upon black spools of the description contained in said interrogatory, except, etc. In answer to the second interrogatory he says that he has not manufactured or sold thread upon red spools marked as described in said interrogatory, etc. In answer to the third interrogatory he says that he has manu- factured and sold black spools marked, numbered and labelled as aforesaid, etc. In answer to the fourth interrogatory he says that his profit upon the spool thread manufactured and sold, colored and marked as aforesaid, has been, etc. In answer to the fifth interrogatory he says that he has sold said thread to, etc. In answer to the sixth interrogatory he says that his sole agent in Boston for the sale of thread as aforesaid was E., etc. In answer to the seventh interrogatory he says that he has not, etc. In answer to the eighth interrogatory he says- that he has not, etc. And the defendant further answering denies that the said com- 52 818 FEDERAL PLEADING, PRACTICE AND PROCEDURE. plainant is entitled to the relief or any part thereof in the said complaint demanded. And the defendant prays the same advantage of his aforesaid answer as if he had pleaded or demurred to the said bill of complaint. And the defendant prays leave to be dis- missed with his reasonable costs and charges in this behalf most wrongfully sustained. E. F., Defendant. 0. P., Solicitor for defendant. Form No. 233. Form of verification of answer in the Supreme Court. United States of America, Supreme Court. C. D., being duly sworn, deposes and says that he is the de- fendant named in the foregoing answer; that he has read the same and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he verily believes it to be true. C. D. Subscribed and sworn to this day of , 18 , before me. E. F., United States commissioner. Form No. 234. Assignment of errors in the Supreme Court of the United States. V. V In error. Of December term, in the year of our Lord one thousand eight hundred and Afterwards, to wit, on the first Monday of December, in this same term, before the justices of the Supreme Court of the United States, at the Capitol, in the city of Washington, comes the said , by his attorney, and says that in the record and • proceedings aforesaid there is manifest error, in this, to wit, that the declaration aforesaid, and the matters therein contained, are not guflScient in law for the said SUPREME COURT FORMS. 819 to have or maintain his aforesaid action thereof against the said ; there is also error in this, to wit, that by the record aforesaid it appears that the judgment aforesaid given was given for the said against the said , whereas by the law of the land the said judgment ought to have been given for the said against the said , and the said prays the judgment aforesaid may be reversed, annulled and altogether held for nothing, and that he may be restored to all things which he hath lost by occasion of the said judgment, etc. , Attorney for plaintiflf in error. • Form No. 235. Joinder in error. Supreme Court of the United States. V. y In error. And afterwards, to wit, on the first Monday of December, in De- cember term, in the year of our Lord one thousand eight hundred and , the said , by his attorney, freely comes here into court, and says that there is no error, either in the record and proceedings aforesaid or in the giving of the judgment aforesaid ; and he prays that the said Supreme Court of judicature, before the justices thereof now here, may proceed to examine as well the record and proceedings aforesaid as the matters aforesaid above assigned for error; and that the judgment aforesaid, in form as aforesaid given, may be in all things aflfirmed, etc. , Attorney for defendant in error. Form No. 236. Precipe for appearance. Supreme Court of the United States, term, 18 , No. T. T., complainant, ^ ( D. C, defendant. J The clerk will enter my appearance as counsel for defendant. G. F. 820 federal pleading, practice and procedure. Form No. 237. Receipt for record. Supreme Court of the United States, term, 18 , No. . T. T., complainant, V. D. C, defendant. Received from the clerk a copy of the record, as counsel for defendant. G. F. Form No. 238. Bond for clerk's fees. [Title of cause.] Know all men by these presents that we, , of , in the county of and state of , and , of , in the county of and state of , are held and firmly bound unto William T. Otto, clerk of the Supreme Court of the United States, in the full and just sum of two hundred dollars, current money of the United States, to be paid to the said William T. Otto, his heirs, executors, administrators or assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, by these presents. Sealed with our seals, and dated this day of , in the year of our Lord one thousand eight hundred and Whereas, lately, at , in a suit depending in said court, between , a judgment was rendered against the said , and the said having obtained to remove the said cause to the Supreme Court of the United States, and filed a transcript of the record of said court in said cause in the oflSce of the clerk of the Supreme Court of the United States, to reverse the in the aforesaid suit. Now, the condition of the above obligation is such that if the said obligors shall well and truly pay, or cause to be paid, to the said William T. Otto, his heirs, executors, administrators or assigns, all such fees as shall accrue to him, the said William T. Otto, clerk as aforesaid, and charged to the said in the prosecution SUPREME COURT FORMS. 821 of the said , then the above obligation to be void ; other- wise to remain in full force and virtue.- [L. S.] Sealed and delivered in the presence of [l. s.] [The party (plaintiff in error or appellant) should not join in the bond, as he is bound without it.] I, , of the court of the United States for the district of , do hereby certify that the within- named obligors are known to me to be perfectly good and respon- sible for the within-named amount. , Judge. Form No. 239. "Writ of error to a state court. United States of America, ss : The President of the United States to the honorable the , Greeting : Because, in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said before you, or some of you, being the highest court of law or equity of the said state in which a decision could be had in the said suit between 5 wherein was drawn in question the validity of a treaty of [or statute of, or an authority exercised under] the United States, and the decision was against its validity [or wherein was drawn in question the validity of a statute of, or an authority exercised under, said state, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision was in favor of such their validity ; or wherein was drawn in ques- tion the construction of a clause of the Constitution, or of a treaty or statute of, or commission held under, the United States, and the decision was against the title, right, privilege or exemption specially set up or claimed under such clause of the said Constitution, treaty, statute or commission], a manifest error hath happened, to the great damage of the said , as by complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this 822 FEDERAL PLEADING, PRACTICE AND PROCEDURE. behalf, do command you, if judgment therein be given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington, on the Monday of next, in the said Supreme Court to be then and there held, that, the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error what of right, and according to the laws and custom of the United States, should be done. Witness the honorable , Chief Justice of the said Supreme Court, the Monday of , in the year of our Lord one thousand eight hundred and [l. s.] W. T. 0., Clerk of the Supreme Court of the United States. Allowed by - Form No. 240. Writ of error to a federal court. United States of America, ss : The President of the United States to the honorable the judge of the court of the United States for the district of , Greeting : Because in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said court before you, , between , a manifest error hath happened, to the great damage of the said , as by complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington on the Monday of next, in the said Supreme Court to be then and there held, that, the record and proceedings aforesaid being in- spected, the said Supreme Court may cause further to be done SUPREME COURT FORMS. 823 therein to correct that error what of right, and according to the laws and custom of the United States, should be done. Witness the honorable , Chief Justice of the said Supreme Court, this day of , in the year of our Lord one thousand eight hundred and [l. s.] W. T. Otto, Clerk of the Supreme Court of the United States. Allowed by Form No. 241. Citation. [Title of cause.] The United States of America to , Greeting : You are hereby cited and admonished to be and appear at a Supreme Court of the United States, to be holden at Washington on the Monday of next, pursuant to a writ of error filed in the clerk's oflfice of the , wherein plaintiff in error and you are defendant in error, to show cause, if any there be, why the judgment rendered against the said plaintiff in error, as in the said writ of error mentioned, should not be corrected, and why speedy justice should not be done to the parties in that behalf. Witness the honorable , of the , this day of , in the year of our Lord one thousand eight hun- dred and Form No. 242. Bond on appeal. [Title of cause.] Know all men by these presents that we , are held and firmly bound unto in the full and just sum of to be paid to the said certain attorney, administrators or as- signs ; to which payment, well and truly to be made, we bind our- selves, our heirs, executors and administrators, jointly and severally, by these presents. Sealed with our seals, and dated this day of , in the year of our Lord one thousand eight hun- dred and 82 i FEDERAL PLEADING, PRACTICE AND PROCEDURE. Whereas lately at a , in a suit depending in the circuit court of , between and was rendered against the said , and the said having obtained and filed a copy thereof in the clerk's oflSce of the said court to reverse the in the aforesaid suit [or having prosecuted a writ of error in the Supreme Court of the United States to reverse the judgment aforesaid], and a citation having issued directed to the said , citing and admonishing him to be and appear at a^ Supreme Court of the United States, to be holden at Washington the first Monday of December next. Now the condition of the above obligation is such that if the said shall prosecute his appeal [or writ of error] to effect, and answer all damages and costs if fail to make his plea good, then the above obligation to be void ; else to remain in full force and virtue. Sealed and delivered in the presence of [L. S.] - justification. United States of America, ) > ss ' DISTRICT OP . J ' , being duly sworn, depose and say and each for him- self saith that he is worth $ over and above all just debts and liabilities and exemptions. [Signed by sureties.] Sworn to this day of , 18 , before me. , Commissioner. Approve the within bond and the sureties thereto. , Clerk. Form No. 243. Bond on certificate of division of opinion. Know all men by these presents that are held and firmly bound unto W. T. 0., clerk of the Supreme Court of the United SUPREME COURT FORMS. 825 States, in the full and just sum of two hundred dollars, current money of the United States, to be paid to the said , his heirs, executors, administrators or assigns ; to which payment, well and truly to be made, bind heirs, executors and administrators, jointly and severally, by these presents. Sealed with seal , and dated this day of , in the year of our Lord one thousand eight hundred and Whereas having filed in the Supreme Court of the United States a certificate of a division in opinion of the judges of the circuit court of the United States for the district of , in a suit depending in said court, wherein the said and for the decision of said Supreme Court in said case, agreeably to the act of Congress in such case made and provided : Now the condition of the above obligation is such, that if the said shall well and truly pay, or cause to be paid, to the said , his heirs, executors, administrators or assigns, all such fees as shall accrue to him, the said W. T. 0., clerk, as aforesaid, and chargeable to the said , in the prosecution of said suit, then the above obligation to be void ; otherwise to remain in full force and virtue. Sealed and delivered in presence of [l. s.] [Justification as in last form.] Form No. 244. Judgment on -writ of error to state court. [Title of cause.] Supreme Court of the United States, term, 18 In error to the court of the state of This cause came on to be heard on the transcript of the record from the court of the state of , and was argued by counsel. On consideration whereof, it is now here ordered by this court that the of the said court, in this cause, be and the same is hereby [state the judgment]. 826 federal pleading, practice and procedure. Form No. 245. Judgment on v/rit to federal court. [Title of cause.] Supreme Court of the United States, term, 18 . In error to the court of the United States for the district of This cause came on to be heard on the transcript of the record from the court of the United States for the dis- trict of , and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said court, in this cause, be and the same is hereby [state the judgment]. Form No. 246. Decree on appeaL [Title of cause.] Supreme Court of the United States, term, 18 . Appeal from the court of the United States for the district court of This cause came on to be heard on the transcript of the record from the court of the United States for the dis- trict of , and was argued by counsel. On consideration whereof, it is now here ordered, adjudged and decreed by this court that the decree of the said court, in this cause, be and the same is hereby [state the judgment]. Form No. 247. Mandate to state court. United States of America, ss: The President of the United States of America to the honorable the judges of the , Crreetmg : Whereas lately, in the , before you or some of you, in a cause between and , as by the inspection of the transcript of the record of the said cause, which was brought into the Supreme Court of the United States, by virtue of a writ of SUPREME COURT FORMS. 827 error, agreeably to the statute in such case made and provided fully and at large appears. And whereas in the present term of , in the year of our Lord one thousand eight hundred and , the said cause came on to be heard before the Supreme Court of the United States on the said transcript of the record, and was argued by coun- sel. On consideration whereof [here state the decree], and the same is hereby remanded to you, the said judges of the said , in order that such proceedings may be had in the said cause, in conformity to the judgment and decree of this court above stated, as, according to right and justice, and the Constitution and laws of the United States, ought to be had therein, the said writ of error notwithstanding. Witness the honorable , Chief Justice of the said Supreme Court, the Monday of , in the year of our Lord one thousand eight hundred and W. T. 0., Clerk of the Supreme Court. COSTS. Clerk, $ Attorney, ......... Taxed by W. T. 0., Clerk of the Supreme Court of the United States. Form No. 248. Decree of Supreme Court vrhere no point has been duly certified on a division of opinion. [Title of cause.] This cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of Mississippi, and on the point and question on which the judges of the said circuit court were opposed in opinion and which was certified to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel. And it appearing to this court, upon an inspection of the said transcript, that no point in the case within the meaning of the act of Congress has been certified to this court, it is thereupon now here ordered and decreed by this court that this cause be and is hereby dis- 828 FEDERAL PLEADING, PKACTICE AND PROCEDURE. missed, and that this cause be and is hereby remanded to the said circuit court to be proceeded with in accordance with law. Form No. 249. Judgment of Supreme Court on a certificate of division of opinion. [Title of cause.] This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Rhode Island, and on the points and questions on which the judges of the said circuit court were opposed in opinions, and which were certi- fied to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel ; on con- sideration whereof, it is the opinion of this court that the grantees in the deed confirmed by the legislature of Rhode Island took an absolute title to the premises in dispute in this cause; which opinion answers the first, second, third, fourth and sixth questions so cer- tified ; and also the fifth question, except that part of said fifth question which refers to a description of the premises, and which is not so stated as to enable this court to express an opinion ; all of which is hereby ordered and adjudged by this court to be certified in the said circuit court. Form No. 250. Decree and order on default. [Title of cause as in No. 220.] The subpoena in this cause having been returned executed sixty days before the return day thereof, and the defendant having failed to appear, it is, on motion of the complainant, decreed and ordered that the complainant be at liberty to proceed ex parte ; and it is further decreed and ordered that unless the defendant, being served with a copy of this decree sixty days before the ensuing October term of this court, shall appear on the day of said term and answer the said bill of the complainant, this court will proceed to hear the cause on the part of the complainant and to decree on the matter of said bill. supreme court forms. 829 Form No. 251. Mandate. United States of America, ss : The President of the United States to the honorable the judges of the circuit court of the United States for the district of [or in case the mandate issues to a state court say to the honorable the judges of the supreme court or court of appeals of the state of ], G-reeting : Whereas lately, in the circuit court of the United States for the district of , before you or some of you, in a cause between A. B., plaintiff, and C. D., defendant [or, if the cause came before the Supreme Court on a writ of error to the highest court in the state, say, whereas lately in the supreme court or court of ap- peals of the state of , before you, etc.], judgment was rendered by the said circuit court [or, if by a state court, say judg- ment was rendered by said supreme court or court of appeals of the state of ], in the following words and figures, to wit : [here insert the judgment] as by the inspection of the transcript of the record of the said circuit court [or of said supreme court or court of appeals], which was brought into the Supreme Court of the United States by virtue of a writ of error [or an appeal taken], agreeably to the act of Congress in such case made and provided, fully and at large appears ; and whereas in the present October term, in the year of our Lord one thousand eight hundred and eighty- , the said cause came on to be heard before the said Supreme Court on the said transcript of the record, and was ar- gued by counsel : on consideration whereof, it is now here ordered, adjudged and decreed by this court that the judgment of said circuit court [or supreme court or court of appeals] in this cause be and the same is hereby reversed [or affirmed], with costs. [Here add any order or direction given to the court below ; such as a direction to set aside a verdict, to grant a new trial, or awarding costs.] You are, therefore, commanded that such execution and proceed- ings be had in said cause as according to right and justice and the laws of the United States ought to be had, the said appeal not- withstanding. Witness the honorable , Chief Justice of the said Supreme 830 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Court, the first Monday in October, in the year of our Lord one thousand eight hundred and eighty- E. F., Clerk of the Supreme Court of the United States. Form No. 252. Decree annulling former decree and revoking a mandate.^ [Title of cause.] On consideration of the motion made by Mr. Sargeant, on a prior day of the present term of this court, to wit, on Monday, the 11th ultimo, and of the arguments of counsel thereupon had, as well against as in support of said motion, it is now here ordered, ad- judged and decreed that the judgment and decree of this court, rendered in the above-entitled cause on Wednesday, the 26th day of February, A. D. 1840, be and the same is hereby declared ut- terly null and void ; and that the mandate of this court directed to the judges of said circuit court in this cause be and the same is hereby revoked. And it is also now here further ordered that the clerk of this court do forthwith send to the judges of the circuit court of the United States for the southern district of Alabama a copy of this order of the court, under the seal of this court, to- gether with a copy of the opinion of this court pronounced this day. Form No. 253. Form of order and decree where the court has no jurisdiction. ^ [Title of cause.] This cause- came on to be heard on the transcript of the record from the circuit court of the United States for the district of Massa- chusetts, and was argued by counsel. On consideration whereof, it is the opinion of this court that neither said circuit court, nor said district court from which this case was removed to the said circuit court, had jurisdiction of this cause, and that consequently* this court has not jurisdiction, but for the purpose of reversing the decree of said circuit court. Whereupon it is now here ordered and decreed by this court that the decree of the said circuit court, entertaining jurisdiction of the cause, be and the same is hereby 1 Ex parte Crenshaw, 15 Pet. 124. ^ Cutter v. Rae, 7 How. 737 (1849). SUPREME COURT FORMS. 831 reversed for the want of jurisdiction in that court ; and that this appeal be and the same is hereby dismissed for the want of juris- diction ; and that this cause be and the same is hereby remanded to the said circuit court, with directions to proceed therein in con- formity to the opinion of this court. Form No. 254. Form of suggestion for prohibition. In the Supreme Court of the United States of America. S. B. D., of the city of Philadelphia, in the state of Pennsyl- vania, being duly sworn deposes and says : 1st. That he is a lieutenant in the navy of the French republic and commander of the Cassius, a vessel of war of the republic, in her service and duly commissioned to cruise against her enemies, and make prizes of their ships and goods, as provided by his com- mission. 2d. That on the day of , 1795, one James Yard, a citizen of Pennsylvania, filed a libel in the district court of the United States within and for the district of Pennsyl- vania, before the honorable Richard Peters, judge of said court, as the owner of the schooner William Lindsay and her cargo, stating that while the schooner was on a voyage from the island of St. Thomas to St. Domingo, with all the regular documents of property and national character, she was violently and tortiously, and con- trary to the law of nations, attacked and taken by a certain armed vessel called the Cassius, commanded by the deponent, pretending an authority from the French republic, but then and now a citizen of the United States of America, and carried into the JPort de Paix, where the vessel was detained ; that the vessel was originally fitted out and equipped for war in the state of Pennsylvania, contrary to the laws of the United States and the laws and usages of nations ; that no compensation had been received by the libellant for the injuries sustained by him, and that the Cassius and the deponent were then in the port of Philadelphia, and asking that he might be compensated for the illegal taking and detention of the said schooner Lindsay and her cargo, and asking for process to be issued for seiz- 832 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ing said vessel Cassius, and her tackle, apparel and furniture, and for arresting the body of your deponent, etc. 3d. That thereupon process was issued by order of said court, and your orator was arrested, and the said Cassius, etc., attached. 4th. This deponent further suggests that by the laws of nations and by treaties subsisting between the United States and the French republic, trials and captures on the high seas of vessels brought within the dominion and jurisdiction of the republic, and all ques- tions incidental thereto, belong exclusively to the judiciary of the republic and to no other tribunals. That by the laws of nations and the treaties between the United States and the French republic, the vessels of war of the republic and the oflficers commanding them cannot be sued or arrested in the ports of the United States, for captures made on the high seas, and brought for legal adjudication into the ports of the republic ; and the district court of the United States ought not to maintain juris- diction or hold pleas of such captures. That by the laws of nations the vessels of war of belligerent powers, duly authorized, may take as prizes of war the ships and goods of their enemies ; and may, in time of war, arrest and seize the vessels belonging to the subjects and citizens of neutral nations, and bring them into the ports of the sovereign under whom they act, there to answer for any breaches of the laws of nations con- cerning the navigation of neutrals in time of war ; and the com- manders of such vessels are not amenable before the tribunals of neutral powers for their conduct therein, but only to their own sovereign under whom they act. Wherefore the said S. B. D., the aid of this honorable court most respectfully requesting, prays remedy, by a writ of prohi- bition to be issued out of this honorable court to the said judge of the district court of the United States in and for the district of Pennsylvania, to be directed to prohibit him from holding the plea aforesaid, the premises aforesaid anywise concerning, further before him. [Jurat.] S. B. D.^ 1 It may be proper here to observe and take affidavits for the courts of that the clerks of the various United the United States. See act approved States courts, commissioners and no- August 15, 1876, 19 U. S. Stat. 206. taries public, may administer oaths supkeme court forms. 833 Form No. 255. Form of writ of prohibition. United States of America: The President of the United States to the honorable Richard Peters, esquire, judge of the district court of the United States in and for the Pennsylvania district : It is shown to the judges of the Supreme Court of the United States, bj Samuel B. Davis, that whereas, by the laws of nations and the treaties subsisting between the United States and the re- public of France, the trial of prizes taken on the high seas, without the territorial limits and jurisdiction of the United States, and brought within the dominion and jurisdiction of the said re- public for legal adjudication, by vessels of war belonging to the sovereignty of the said republic, acting under the same, and of all questions incidental thereto, does of right and exclusively belong to the tribunals and judiciary establishments of said republic, and to no other tribunal or tribunals, court or courts, whatsoever: Wherefore the said Samuel B. Davis, the aid of the said Supreme Court most respectfully requesting, hath prayed remedy by a writ of prohibition, to be issued out of the said Supreme Court, to you to be directed, to prohibit you from holding the plea aforesaid, the premises aforesaid anywise concerning, further before you : You therefore are hereby prohibited, that you no further hold the plea aforesaid, the premises aforesaid anywise touching, before you, nor anything in the said district court attempt, nor procure to be done, which may be in anywise to the prejudice of the said Samuel B. Davis, or to the said corvette or vessel of war called the Cassius, or in contempt of the laws of the United States ; and also, that from all proceedings therein you do, without delay, release the said Samuel B. Davis, and the vessel of war called the Cassius, at your peril. "Witness the honorable , Chief Justice of said Supreme Court, with the seal of the said court attached, at the city of Washington, this day of , 18 . [seal] , Clerk of the Supreme Court of the United States. 53 834 federal pleading, practice and procedure. Form No. 256. Supersedeas from the Supreme Court. United States of America, set : The President of the United States of America to the honorable , one of the judges of the circuit court of the United States for the southern district of Mississippi, and to the marshal of the United States for the said district, Greeting : Whereas lately, in the said circuit court, before you, the said judges, or some of you, in a cause lately pending in said court, between Edward Anderson, plaintiff, and William Hardeman and D. Hardeman, defendants, a judgment was rendered by the said circuit court, at the May term, 1839, of said court, in favor of the said plaintiff, and against the said defendants, for the sum of $8293 45, with interest thereon at the rate of eight per centum per annum, together with costs and charges of suit, on which judg- ment an execution of fieri facias issued, and was levied by the marshal of said district on certain property of said defendants, which property was left in the hands of the defendants upon their executing a forthcoming bond, with one W. P. Perkins as security, and which forthcoming bond was returned by the said marshal to the said circuit court at the next November term thereof, A. d. 1839, "forfeited," having thereby, according to the laws of Mississippi, the force and effect of a judgment against the said defendants and the said security for the aforesaid debt, interest and costs, and upon which last-mentioned judgment an execution of fieri facias was issued against the goods and chattels, lands and tenements of the said William Hardeman, D. Hardeman and W. P. Perkins for the amount of the said judgment, interest and costs as aforesaid, as also for the sum of $133 81 additional costs subsequently accru- ing ; upon which execution the aforesaid marshal returned that he had received thereon " $9125 in Union money, or post-notes of the Union Bank," which said return of the marshal last aforesaid the said circuit court at a subsequent term, to wit, on the 20th of May, A. D. 1840, set aside and awarded an alias fieri facias on the judg- ment last aforesaid. Whereupon the said William Hardeman, D. Hardeman and W. P. Perkins sued out a writ of error in due form of law and in proper time, and filed their bond in error, with Suffi- cient security approved by one of the judges of the said circuit SUPREME COURT FORMS. 835 court, so as to operate per se as a supersedeas, and which said writ of error was abated and quashed by the order of this court on the 28th day of February, A. d. 1845, by virtue of the forty-third rule of court, in consequence of the failure of the aforesaid plaintiffs in error to file a transcript of the record of the case with the clerk of this court and to have their case docketed, in compliance with the rules of court. Whereupon the aforesaid plaintiffs in error sued out another writ of error in due form of law, filed their bond in error in a sum double the amount of the aforesaid judgment, with sufficient security approved by one of the judges of the aforesaid circuit court, and a citation having been regularly taken out, served upon the defendant in error and duly returned, as by the inspection of the transcript of the record of the said circuit court, which was brought into the Supreme Court of the United States by virtue of said writ of error, agreeably to the statutes of the United States in such case made and provided, fully and at large appears. And whereas in the present term of December, in the year of our Lord eighteen hundred and forty-five, it is made to appear on affidavit, to the said Supreme Court of the United States, that the failure of the aforesaid plaintiffs in error to file the transcript of the record and docket the writ of error first aforesaid mentioned, and which operated per se as a supersedeas, was not owing to any neglect or fault on their part, but wholly attributable to the neglect of the clerk of the said circuit court to make out in due time, and as re- quested by the said plaintiffs in error, a transcript of the record as alleged in said affidavit, and that in consequence thereof they are exposed to an execution of the aforesaid judgment. It is thereupon now here ordered by this court that a writ of supersedeas be and the same is hereby awarded, to be directed to the aforesaid marshal, commanding and enjoining him and his deputies to stay all and any proceedings upon any execution which may have been issued on the aforesaid judgment of the said circuit court in said case, and which has or may come to his hands, and that he return any such execu- tion with the writ of supersedeas to the said circuit court, and that the judges of the said circuit court cause any such writ of execution to be stayed, and to stay any execution or further proceedings of every kind and character on the judgment of the said circuit court in this case, pending the aforesaid writ of error in this court. You, therefore, the marshal of the United States for the southern 836 FEDERAL PLEADING, PRACTICE AND PROCEDURE. district of Mississippi, are hereby commanded that from every and all proceedings on any execution on the aforesaid judgment, or in anywise molesting the said defendants on the account aforesaid, you entirely surcease, as being superseded, and that you do forthwith return any such execution in your hands, together with this super- sedeas, to the said circuit court, as you will answer the contrary at your peril. And you, the judges of the said circuit court, are hereby commanded to stay any execution which may have issued as aforesaid, and to stay any execution or further proceedings on the aforesaid judgment of the said circuit court in this case, pending the writ of error last aforesaid in this court. Witness the honorable Roger B. Taney, Chief Justice of said Supreme Court, this 27th day of January, in the year of our Lord one thousand eight hundred and forty-six. Wm. Thos. Carroll, Clerk of the Supreme Court of the United States. Form No. 257. Writ of mandamus. United States of America : To the honorable , judge of the district court of the United States for the northern district of New York, Greeting : Whereas one Martha Bradstreet hath heretofore commenced and prosecuted in your court several certain real actions or writs of right in your court lately pending between said Martha Bradstreet, demandant, and the following-named tenants, severally and respec- tively, to wit, ApoUos Cooper and others (naming them). And whereas heretofore, to wit, at a session of the Supreme Court of the United States, held at Washington, on the day of , it appeared, upon the complaint of said Martha Brad- street, among other things, that at a session of your said court, lately before holden by you according to law, all and singular the said writs of right then pending before your said court, upon the motion of the tenants aforesaid were dismissed, for the reason that there was no averment of the pecuniary value of the lands de- manded by the said demandant, in the several counts filed and ex- hibited by the said demandant against the several tenants as afore- SUPREME COURT FORMS. 837 said, ■whicb orders of your said court so dismissing the said actions were against the will and consent of said demandant; whereupon the said Supreme Court, at the instance of said demandant, granted a rule requiring you to show cause, if any you had, among other things why a writ of mandamus from the said Supreme Court should not be awarded and issued to you, commanding you to reinstate, and proceed to try and adjudge according to the law and the right of the case, the several writs of right aforesaid, and the issues there- in joined. And whereas at the late session of the Supreme Court, held at Washington on the second Monday of January, in the year 1833, you certified and returned to the said Supreme Court, together with said rule, that, after the issues had been joined in the several causes mentioned in said rule, motions were made therein, on the part of the tenants, that the same should be dismissed, upon the ground that the counts respectively contained no allegation of the value of the matter in dispute, and that it did not therefore appear by the pleadings that the causes were within your jurisdiction ; that in conformity with what appeared to have been the uniform language of the national courts upon the question, and your own views of the law, and in accordance especially with several decisions in the circuit court for the third circuit (4 Wash. C. C. Rep. 482, 624), you granted their motion ; and assuming that the causes were right- fully dismissed, it follows of course that you ought not to be required to reinstate them, unless right also be granted to the demandant to amend her counts ; and whereas afterwards, to wit, at the same session of the Supreme Court last aforesaid, upon con- sideration of your said return, and of the cause shown by you therein against the said rule being made absolute, and against the awarding and issuing of the said writ of mandamus, and upon con- sideration of the argument of said counsel, as well on your behalf, showing cause as aforesaid, as on behalf of said demandant in support of said rule, it was considered by the said Supreme Court that you had certified and returned to the said Supreme Court an insufficient cause for having dismissed the said actions, and against the awarding and issuing of the said writ of mandamus, pursuant to the rule aforesaid ; the said Supreme Court being of opinion, and having determined on the matter aforesaid, that in cases where the demand is not made for money, and the nature of the action does not require the value of the things demanded to be stated in the 838 FEDERAL PLEADING, PRACTICE AND PROCEDURE. declaration, the practice of the said Supreme Court, and of the courts of the United States^ is to allow the value to be given in evidence in the said Supreme Court, consequently she cannot be legally pre- vented from bringing her case before the said Supreme Court ; and it was also then and there considered by the said Supreme Court that the peremptory writ of mandamus issue requiring you, the said judge of the said district court, to reinstate and proceed to try and adjudge according to the law and right of the case the several writs of right and the issues therein joined, lately pending in your said court between the said Martha Bradstreet, demandant, and Apollos Cooper and others, the tenants aforesaid ; therefore, you are hereby commanded and enjoined that immediately after the receipt of this writ, and without delay, you reinstate and proceed to try and adjudge according to the law and right of the case the several writs of right and the issues joined therein, lately pending in your said court between the said Martha Bradstreet, demandant, and the said Apollos Cooper and others, the tenants herein above named, so that complaint be not again made to the said Supreme Court ; and that you certify perfect obedience and due execution of this writ to the said Supreme Court, to be held on the first Monday in August next. Hereof fail not at your peril, and have then and there this writ. Witness the honorable John Marshall, Chief Justice of the said Supreme Court, the second Monday of January, in the year of our Lord one thousand eight hundred and thirty-three. W. T. Carroll, Clerk Supreme Court of the United States.^ Form No. 258. Injunction from the Supreme Court. The United States of America ) in the Supreme Court. j The President of the United States of America to Erastus Corning, John F. Winslow and James Hoi*ner. Whereas in a certain suit in the Supreme Court of the United States, removed there by the' appeal of the complainant from the ^ The above writ was prepared un- ported in Ex parte Bradstreet, 7 Pet. der the order of the court, and -is re- 634. SUPREME COURT FORMS. 839 circuit court of the United States for the northern district of New York, in which latter court the Troy Iron and Nail Factory was complainant and you were defendants in chancery, the said Supreme Court by a decree made upon a hearing of the said cause this eighteenth day of January, in the year of our Lord eighteen hun- dred and fifty-three, ordered, adjudged and decreed among other things that an injunction should issue under the seal of the said court to restrain you, the said Erastus Corning, John F. Winslow and James Horner, and each of you, perpetually from using the im- proved machinery with the bending lever for making hook or brad- headed spikes, patented to Henry Burdue on the second day of September, a. d. 1840, and assigned to the complainant. It is therefore, in execution of said decree, hereby firmly enjoined and commanded you and every of you, that from and immediately after being served with this writ or notice thereof you and every of you do not use the aforesaid machinery ; but that you and every of you do from henceforth entirely cease and desist from using the afore- said machinery with the bending lever for making hook and brad- headed spikes, patented to Henry Burdue the second day of September, a. d. 1840, and assigned to the complainant ; and this you shall in no wise omit at your'peril. Witness the honorable Roger B. Taney, Chief Justice of the said Supreme Court, this eighteenth day of January, in the year of our Lord one thousand eight hundred and fifty-three. , Clerk of the Supreme Court of the United States. Form No. 259. Certificate of division. United States of America, "I North Carolina district. J At a circuit court of the United States, begun and held at Raleigh, for the district of North Carolina, on Wednesday the twenty-ninth December, in the year of our Lord one thousand eight hundred and ten, and in the twenty-seventh year of American inde- pendence. Present : — The honorable John Marshall and Henry Potter, esquires. 840 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Robert Ogden, administrator de bonus non, with the will annexed, of Samuel Cornell, )■ V. Richard Salter, deceased. This is an action of debt upon a bond given by the defendant's testator to the testator of the plaintiff on the second of March, 1775. The defendant among other pleas pleads in bar an act of the general assembly of the state of North Carolina, passed in the year 1715, entitled "An act," etc., the ninth section of which is in the following words : " That the creditors of any person deceased shall make their claims within seven years after the death of said debtor, otherwise such creditors shall be forever barred." To which plea the plaintiff replies in substance that the plaintiff's testator was, at his death, a British subject, and the debt within the term, intent and meaning of the treaty of peace concluded between the king of Great Britain and the United States. To this replication the defendaht demurs, and the plaintiff joins in the demurrer. The case came on to be argued at this term ; it occurred, as a question, whether the act of assembly recited in the plea of the de- fendant was, under all the circumstances stated, and the various acts passed by the legislature of North Carolina, a bar to this action. On which question the opinions of the judges were opposed. Whereupon, on motion of the plaintiff by his counsel that the point on which the disagreement hath happened may, during the term, be stated under the direction of the judges and certified under the seal of the court to the Supreme Court, to be finally decided: It is ordered that the foregoing state of the pleadings and the fol- lowing statement of facts, which is made under the direction of the judges, be certified according to the request of the plaintiff by his counsel, and the law in that case made and provided, to wit : First. That Samuel Cornell, the plaintiff's testator, was, and un- til his death continued to be, a subject of the king of Great Britain ; and the defendant's testator was, and continued to be until his death, a citizen of North Carolina. SUPREME COURT FORMS. 841 Second. That the defendant's testator died in the year 1780, and the defendant in the same year was qualified as executor. Third. That the plaintiff sued out his writ in this suit on the fifth day of October, 1798. United States of America, \ r SS * North Carolina district. J I, William H. Haywood, clerk of the circuit court for the district of North Carolina, do hereby certify the foregoing to be a copy from the minutes. . Given under my hand and seal of office at Raleigh, on the fifth day of January, in the year of our Lord one thousand eight hun- dred and two.^ W. H. Haywood, Clerk. Form No. 260. Certiorari. The United States of America. The President of the United States of America to the judge of , Greeting: Whereas in a certain suit in court, in which is plaintiff and is defendant, which suit was removed by writ of error to the Supreme Court of the United States, agreeably to the act of Congress in such case made and provided, certain inac- curacies, defects and omissions in the record of the proceedings have been suggested, to wit : You therefore are commanded that, searching the record and pro- ceedings in said cause, you certify forthwith to the said Supreme Court, under your seal, a full, true and complete transcript of said record and proceedings, plainly and distinctly, and in as full and ample a manner as the same now remains before you, together with this writ ; so that the said Supreme Court of the United States may be able thereon to proceed and do what shall appear to them of right ought to be done. Herein fail not. Witness the honorable , Chief Justice of the said Su- preme Court, this day of , Clerk of Supreme Court. ^ The above form was inserted by Mr. Cranch as a precedent, in Ogden V. Blackledge, 2 Cr. 272. 842 federal pleading, practice and procedure. Form No. 262. Petition for a habeas corpus. To the Supreme [or district or circuit court of the United States, describing it] Court of the United States. The petitioner, L. P. M., of , complaining, shows that he is unjustly and unlawfully detained and imprisoned by A. B. [marshal or sheriff or other person] in the jail [or prison or other place] at Indianapolis, in the state of Indiana, by virtue of a war- rant [or order or other process] of commitment issued under the following circumstances : Your petitioner is a citizen of the United States, and has been a citizen of the state of Indiana for over twenty years, and at the time of the grievances herein complained of had never been in the military or naval service of the United States ; that on the fifth day. of October, 1864, while at home in said state, he was arrested by order of General Alvin P. Hovey, then commanding the mili- tary district of Indiana, and has ever since been kept in close con- finement ; that on the "twenty-first day of October, 1864, he was brought before a military commission convened at Indianapolis, by order of said General Hovey, upon the following charges : 1. Conspiracy against the government of the United States. 2. Affording aid and comfort to rebels against the authority of the United States. 3. Inciting insurrection. 4. Disloyal practices ; and 5. Violation of the laws of war. Your petitioner objected to the authority of the commission to try him on said charges, but his objections were overruled and said commission proceeded to try him, and found him guilty of all the charges, and sentenced him to suffer death by hanging, and he was ordered to be hung on Friday, the nineteenth day of May, 1865, which sentence was approved by the President of the United States. Your petitioner further shows that while he was being detained and imprisoned as aforesaid, and more than twenty days after his said arrest, the circuit court of the United States for the district of Indiana was convened at Indianapolis, where he was and is kept in confinement, and a grand jury was then and there convened and in attendance on said court, and duly empannelled, charged and sworn SUPREME COURT FORMS. 843 and held its sittings, and finally adjourned without having found any bill of indictment against him, etc., and your petitioner is held, detained and imprisoned by virtue of said proceedings, and on an order of said commission, to await the execution of said sentence. And your petitioner claims that said military commission had no jurisdiction or authority, legally, to try and sentence him in the manner and form above stated. Wherefore, to be relieved of said unlawful detention and impris- onment, your petitioner prays that a writ of habeas corpus, to be directed to the said A. B., may issue in this behalf, so that your petitioner may be forthwith brought before this court to do, submit to and receive what the law may require. L. P. M. United States of America, ss. DISTRICT OF L. P. M., being duly sworn, deposes and says that he is the pe- titioner named in the foregoing petition subscribed by him ; that he has read the same and knows the contents thereof, and that the statements therein made are true as he verily believes. L. P. M. Subscribed and sworn to this day of , 18 . C. D., United States commissioner. Form No. 263. Writ of habeas corpus. The President of the United States of America to A. B., marshal of, etc. [or sheriff or other person, as the case may be]. We command you that the body of L. P. M., by you detained and imprisoned, as is charged, you have forthwith before our circuit [or district or supreme] court of, etc. [or before the honorable E. F., judge of the court, etc.], at , together with the cause of the detention of the said L. P. M., to undergo and receive what our said court [or judge, etc.] shall consider concerning him in this behalf: and have you then and there this writ. Witness the honorable , Chief Justice of the Supreme Court of the United States, this day of , 18 . E. M., Clerk of the Supreme [l. s.] [or circuit] Court of the United States. 844 federal pleading, practice and procedure. Form No. 264. Form of return to a writ of habeas corpus. To the Supreme [or circuit or district court, or judge or justice, as the case may be] Court of the United States [or to the honor- able G. H., circuit [or district] judge of the circuit [or of the district of ]. A. B., to whom the within [or annexed] writ is directed, has now here before the court [or your honor] the body of L. P. M. therein named, as thereby commanded. And I certify that the cause of the detention of the said L. P. M. is a warrant of commit- ment [or order or other process] directed to me, , a copy of which is hereto annexed marked "Exhibit A," and made a part hereof, issued in the manner and under the circumstances and for the purpose set forth in the petition of the said L. P. M., herein. A. B. Dated this day of , 18 . ■ Form No. 265. Writ of habeas corpus ad testificandum. The President of the United States of America to the marshal of [or as the case may be], Greeting : You are hereby commanded that you have the body of , now in prison [or as the case may be] under your custody, as it is said, under safe and secure conduct, before,, etc. [as in the sub- poena], to testify the truth, according to his knowledge, in a certain case now depending, etc. [as in the subpoena], and immediately after the said shall then and there have given his testimony, that you return him to the said prison [or as the case may be] under safe and secure conduct, and have there then this writ. Witness, etc. [as in the capias]. FORMS FOR COURT OF CLAIMS. Form No. 266. Petition ; general frame. In the Court of Claims, October , 18 . A. B. ^ V. vNo. The United States. J To the honorable justices of said court: Your petitioner, A. B., respectfully shows that he is a citizen of the United States [or an alien and citizen of some foreign country (naming it) which accords to citizens of the United States the right to prosecute in its courts claims against such governments]. That [here set forth the cause of action according to the usual practice in other courts ; and conclude as follows] : Your petitioner therefore demands judgment against the United States for the sum of $ A. B., by G. F., his attorney. District of [or state of , County of ], ss : Personally appeared before me, A. B., the claimant named in the foregoing petition, and made oath that the matters and things set forth and stated in his said petition are true of his own knowl- edge [or to the best of his knowledge and belief; or, that the mat- ters and things stated in his said petition are true so far as they are stated on his own knowledge, and so far as they are stated on the information of others, he believes them to be true]. A. B., Complainant. Subscribed and sworn to this day of , 18 . [l. s.] E. J., Commissioner. [Or, K. L., clerk of the court of said county ; or M. N., notary public] 846 federal pleading, practice and procedure. Form No. 267. Petition in a case transmitted by the head of any department under section 1064. A. B. ^ The United States. J Your petitioner, A. B., respectfully shows [here set forth the claim in the usual manner, the presentation of the claim to the department, the action had by the department, etc., and the trans- mission therefrom, as provided by sections 1063 and 1064 of the Revised Statutes, and conclude as follows] : Wherefore he claims judgment against the United States for the sum of $ A. B., by G. F., claimant's attorney. [Add usual verification.] Form No. 268. Another and fuller form of a petition. In the Court of Claims, 18 . A. B. ^ The United States. } To the honorable the Court of Claims : The claimant, , respectfully shows to this honorable court that heretofore, to wit, on the day of , in the year 18 , he entered into a certain express contract in writing with the United States for the transportation of the mail between and , both in the state of , from the day of , 18 , to the day of , 18 , at and for a compensation of a year ; a certified copy of which contract is annexed to this petition and made a part of the evidence in this case ; that the claimant carried the mail under his said con- tract and in accordance therewith, from the said day of July, 18 , down to and including the day of , 18, when the contract was annulled and taken away from him by the United States ; that he has received no payment for the last of the period aforesaid, to wit, from the day of , 18 , to and including the day of , 18 , and compensa- tion is due him at the rate aforesaid for the said , amount- FORMS FOR COURT OF CLAIMS. 847 ing to the sum of ; that Congress, on the 3d day of March, 1877, by an act entitled " An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1878, and for other purposes," made an appropriation of three hundred and seventy-five thousand dollars, which was by the said act directed to be applied to the payment of this and other like claims ; that by said act a claim accrued to the claimant to be paid the amount of ; that the Secretary of the Treasury and the Sixth Auditor thereof refused and neglected to distribute any portion of the said appropriation, but covered the whole of the same into the treasury of the United States ; that this claim has not been paid in whole or in part by the Confederate States govern- ment, or by any government or pretended government of any state, or by the defendants, or by any government, corporation or person whatsoever ; that no action has been had on this claim in Congress or by any of the departments ; that the claimant is the sole owner of this claim and the only person interested therein ; that no assign- ment or transfer of this claim, or of any part thereof or interest therein, has been made; that the claimant is justly entitled to the amount herein claimed from the United States, after allowing all just credits and ofi'-sets ; that the claimant is a citizen of the United States [and has at all times borne true allegiance to the government thereof, and has not in any way voluntarily aided, abetted or given encouragement to rebellion against the said gov- ernment] ; ^ and that the claimant believes the facts as stated in this petition to be true. And the claimant demands judgment for , Attorneys for claimant. State of , ] County. J , being duly sworn, deposes and says, I am the claim- ant in this case. I have heard the above petition read, and the facts therein stated are true to the best of my knowledge and belief, so help me God. A. B. Subscribed and sworn to before me this day of , 18 . [seal.] J. W. West, Clerk of court. ^ The clause in brackets does not tured and Abandoned Property Act. appear to be essential, by the decision !See mUe, § 429. ot' the Supreme Court under the Cap- 848 FEDERAL PLEADING, PRACTICE AND PROCEDURE. EXHIBIT TO claimant's PETITION. United States of America. Post-Office Department, Washington, D. C, , 18 . I, Richard A. Elmer, acting Postmaster General of the United States of America, certify that the annexed is a true copy of the original contract now on the files of this department. In testimony whereof I have hereto set my hand and caused the seal of the Post-OfEce Department to be affixed, at the city of Washington, the day and year above written, [l. s.] . Richard A. Elmer, Acting Postmaster General. No. . $ per annum. This article of contract, made the day of * , in the year one thousand eight hundred and , between the United States (acting in this behalf by their Postmaster General) and , Witnesseth that whereas has been accepted according to law as contractor for transporting the mail on route No. from , at dollars per year for and during the term commencing the day of , in the year one thousand eight hundred and , and ending with the thirtieth of June, in the year one thousand eight hundred and sixty- . Now, therefore, the said , contractor, and , his sureties, do jointly and severally undertake, covenant and agree with the United States, and do bind themselves : 1st. To carry said mail within the times fixed in the annexed schedule of departures and arrivals, except that when more than seven minutes are taken for opening and closing the mails at any office, the surplus time so taken is to be allowed in addition to what is given in the schedule ; and so carry until said schedule is altered by the authority of the Postmaster General of the United States, as hereinafter provided, and then to carry according to said altered schedule. 2d. To carry said mail in a safe and secure manner, free from wet or other injury, under a sufficient oilcloth or bear skin. 3d. To take the mail and every part of it from, and deliver it and every part of it at, each post-office on the route, or that may hereafter be established on the route, and into the post-office at each FORMS FOR COURT OF CLAIMS. 849 end of the route, and into the post-office at the place at -which the carrier stops at night, if one is there kept ; and if no office is there kept, to lock it up in some secure place at the risk of the con- tractor. They also undertake, covenant and agree with the United States, and do bind themselves jointly and severally as aforesaid, to be answerable for the person to whom the said contractor shall commit the care and transportation of the mail, and accountable to the United States for any damages which may be sustained by the United States through his unfaithfulness or want of care ; and that the said contractor will discharge any carrier of said mail whenever required to do so by the Postmaster General ; also, that he will not transmit by himself or his agent, or be concerned in transmitting, commercial intelligence more rapidly than by mail ; and that he will not carry out of the mail letters or newspapers which should go by post. They further undertake, covenant and agree with the United States that the said contractor will collect quarterly, if required by the Postmaster General, of postmasters on said route, the balances due from them to the General Post-Office, and faithfully render an account thereof to the Postmaster General in the settlement of quarterly accounts, and will pay over to the General Post-Office all balances remaining in his hands. For which services, when performed, the said , con- tractor, is to be paid by the United States the sum of dollars a year, to wit : quarterly in the months of May, August, November and February, through the postmasters on the route, or otherwise, at the option of the Postmaster General of the United States; said pay to be subject, however, to be reduced or discon- tinued by the Postmaster General, as hereinafter stipulated, or to be suspended in case of delinquency. It is hereby stipulated and agreed, by the said contractor and his sureties, that the Postmaster General may alter the contract, and alter the schedule, he allowing a pro rata increase of compensation within the restrictions imposed by law for the additional service re- quired, or for the increased speed, if the employment of additional stock or carriers is rendered necessary ; but the contractor may, in case of increased expedition, relinquish the contract on timely notice if he prefer it to the change ; also, that the Postmaster Gen- 54 850 FEDERAL PLEADING, PRACTICE AND PROCEDURE. eral may discontinue or curtail the service in whole or in part, in order to place on the route a greater degree of service, or -when- ever the public interests require such discontinuance or curtailment for any other cause, he allowing one month's extra pay on the amount of service dispensed with. It is hereby also stipulated and agreed, by the said contractor and his sureties, that in all cases there is to be a forfeiture of the pay of a trip when the trip is not run ; and of not more than three times the pay of tha trip when the trip is not run and no suflScient excuse for the failure is furnished ; a forfeiture of at least one- fourth part of it when the running is so far behind time as to lose connection with a depending mail ; and that these forfeitures may be increased into penalties of higher amount according to the na- ture or frequency of the failure and the importance of the mail; also that fines may be imposed upon the contractor unless the de- linquency be satisfactorily explained to the Postmaster General in due time, for failing to take from or deliver at a post-office the mail or any part of it ; for suflfering it to be wet, injured, lost or de- stroyed ; for carrying -it in a place or manner that exposes it to depredation, loss or injury, by being wet or otherwise ; for entrust- ing the mail to a carrier under sixteen years of age ; or for not arriving at the time set in the schedule. And for setting up or running an express to transmit letters or commercial intelligence in advance of the mail, a penalty may be exacted of the contractor equal to a quarter's pay; but in all other cases no fine shall exceed three times the price of the trip. And it is hereby further stipulated and agreed, by the said con- tractor and his sureties, that the Postmaster General may annul the contract for repeated failures ; for violating the post-office laws ; for disobeying the instructions of the department ; for refusing to dis- charge a carrier when required by the department; for assigning the contract without the consent of the Postmaster General ; for setting up or running an express as aforesaid ; or whenever the contractor shall become a postmaster, assistant postmaster or mem- ber of Congress ; and this contract shall, in all its parts, be subject to the terms and requisitions of an act of Congress passed on the twenty-first day of April, in the year of our Lord one thousand eight hundred and eight, entitled " An act concerning public con- tracts." FORMS FOR COURT OF CLAIMS. 851 In witness whereof the said Postmaster General has caused the seal of the Post- Office Department to be hereto affixed, and has at- tested the same by his signature, and the said contractor and his sureties have hereunto set their hands and seals the day and year set opposite to their names, respectively. Horatio King, Acting Postmaster General. Signed, sealed and delivered by the Postmaster General in the presence of R. T. Spotswood. And by the other parties hereto in the presence of I hereby certify that I am well acquainted with and and the condition of their property, and that after full investigation and inquiry I am well satisfied that they are good and sufficient sureties for the amount in the foregoing contract. , Postmaster at THE SCHEDULE OF DEPARTURES AND ARRIVALS. Leave Arrive at Leave Arrive at Form No. 269. Notice by the clerk. A. B. -J V. V No. The District of Columbia. J Clerk's Office, Washington, D. C, , 18 To , attorney for claimant. Sir : — Take notice that in the above cause there has been filed this day on behalf of the defendant, , in this office, a plea of the Statute of Limitation to the petition of the claimant. Respectfully, , Clerk Court of Claims. 852 federal pleading, practice and procedure. Form No. 270. * Notice by the clerk of papers filed. A. B. ^ V. V No. The United States. J Clerk's Office, Washington, D. C, , 18 To , Attorney General of U. S. Sir : — Take notice that in the above cause there has been filed this day on behalf of the claimant, , in this office, a peti- tion claiming of the United States $ , on a contract. Respectfully, , Clerk Court of Claims. Form No. 271. Plea of limitation. A. B. ^ V. VNo. The United States. J Now come the defendants, by their Attorney General, and say that the claimant herein should not further have or maintain suit against the defendants, for the reason that the peti- tion of the claimant was not filed in this court nor transmitted to it within six years after the claim therein set forth first accrued. Wherefore the defendants ask judgment, etc. , Assistant Attorney General. Form No. 272. Traverse. A. B. 1 V. V No. The United States. J And now comes the Attorney General on behalf of the United States, and makes answer to the petition of the claimant herein ; and not confessing the same or any part thereof, denies each and every the allegations therein contained, and calls for strict proof of the same. FORMS FOR COURT OF CLAIMS. 853 And as to so mucli of the said petition as sets forth and avers that the United States are indebted to the said claimant in the sum of $ , says that they are not indebted to the said claimant in the said sum of money, nor any part thereof. And as to so much of the said petition as avers that the said claimant at all times borne true faith and allegiance to the government of the United States, and never voluntarily aided, abetted or given encouragement to rebellion against the said gov- ernment, denies the said allegation. , Assistant Attorney General. Form No. 273. Subpoena for witnesses. To You are hereby commanded to appear before , commissioner, appointed by this court to take deposi- tions, on the day of , A. D. 18 , at o'clock in the noon, at his office in the of , in the county of and state of , then and there to testify in the case of against the United States, now pending in this court. Fail not of appearance at your peril. By order of the Court of Claims. In testimony whereof I have hereunto set my hand and affixed the seal of said court at Washington, this day of , A. D. 18 . , Clerk of the Court of Claims. Form No. 274. Instructions for taking depositions to be used in the Court of Claims. Let the officer begin with the following caption : Depositions of a witness [or witnesses] produced, sworn and ex- amined at the hour of o'clock M., on the day of , 18 , at , before me, the undersigned, a , in a certain cause now pending in the Court of Claims, wherein claimant and the United States are defendants ; when were present , counsel on behalf of the claimant, and , counsel on behalf of the defendants. 854 FEDERAL PLEADING, PRACTICE AND PROCEDURE. , having been produced as a witness on behalf of the , was by me sworn [or aflBrmed], before any question was put to him, to tell the truth, the whole truth and nothing but the truth relative to the said cause ; and thereupon deposed and said that his name is ; that his occupation is that of ; that he is years of age ; that his place of residence is ; that he has no interest, direct or indirect, in the claim which is the subject of inquiry in said cause (or if interested, let him state the nature and extent of his interest) ; and that he is not related to the claimant (or, if he be related to the claimant, let him state his relationship). And thereupon the said was examined by the counsel for the , and in answer to interrogatories testified as follows : 1. Question. (Record the question.) Answer. (Record the answer as nearly as may be in the witness' own words.) (Let each succeeding question of the direct examination be num- bered; and at the close of that examination proceed as follows:) The said witness was then cross-examined by the counsel for the , and in answer to interrogatories testified as follows : 1. Cross-interrogatory. (Record it.) Answer. (Record it.) (Let each succeeding question of the cross-examination be num- bered.) (On re-direct or re-cross examination record the questions and answers in like manner.) If more than one witness is examined, let the following caption of each deposition be made : At the same place, on the same day (or if an adjournment has taken place, write on the day of ,18 ), in the presence of the same counsel of both parties, , a witness on behalf of the , was produced, and having been by me in like manner sworn (or affirmed), deposed and said that his name is, etc. (as prescribed in the case of the first witness). And thereupon the said was examined by the counsel for the , and in answer to interrogatories testified as follows : (See directions above.) In case of adjournment before closing a deposition, record the proceeding as follows : FORMS FOR COURT OF CLAIMS. 855 At this point the taking of this deposition was, by consent of the parties (or as the case may be), adjourned to at o'clock M., at the same place. On resumption of the deposition, record the proceeding as follows: Deposition of resumed according to adjournment at the time and place fixed, the same parties present as aforesaid [or as the case may be]. In case of adjournment at the close of a deposition before closing all the testimony, record the proceeding as follows : Thereupon the proceeding herein was, by consent of the parties [or as the case may be], adjourned to at ^ o'clock M., at the same place. On resumption of the proceeding, record the same as follows : The proceeding herein resumed according to adjournment at the time and place fixed, the same parties present as aforesaid [or as the case may be]. At the close of the examination by the respective counsel, record the final statement of the witness as follows : The examination by counsel being concluded, the witness, in com- pliande with the rule of the court requiring him to state whether he knows of any other matter relative to the claim in question, and if he do state it, says : (Signature of witness.) FINAL CERTIFICATE WHEN ONLY ONE WITNESS IS EXAMINED. At the close of the deposition, let the officer certify as follows : I, , a commissioner of the Court of Claims, in and for the state [or territory or district] of [or whatever else may be his office], certify that at the time [or times where there have been adjournments] and place aforesaid, , a witness on be- half of the in the above-entitled cause, was by me sworn [or affirmed] before any question was put to , to tell the truth, the whole truth and nothing but the truth relative to the said cause; and that answers were taken down in my presence, and deposition as above set forth was read over to and signed by before me at the time and place aforesaid. In witness whereof I have hereunto set my hand and official seal (if he have one) this day of , 18 . 856 FEDERAL PLEADING, PRACTICE AND PROCEDURE. FINAL CERTIFICATE WHERE TWO OR MORE WITNESSES ARE EX- AMINED. I, , a commissioner of the Court of Claims, in and for the state [or territory or district] of [or whatever else his office may be], certify that at the time [or times where there have been adjournments] and place aforesaid, , witnesses on be- half of the in the ^bove-entitled cause, were each by me sworn [or affirmed] before any question was put to , to tell the truth, the whole truth and nothing but the truth relative to the said cause ; and that the answers of each of said witnesses were taken down in my presence, and the deposition of each of them, as above set forth, was read over to and signed by before me at the time [or times] and place as aforesaid. In witness whereof I have hereunto set my hand and official seal (if he have one) this day of , 18 . EXTRACT FROM RULES OF THE COURT. Article VI. — Sec. 2. Unless the court order a witness to testify orally on the trial, the evidence of witnesses must be by deposition, taken either before a commissioner of the court or a judge of a court of the United States, or a judge of a court of record in a state or territory of the United States, or a commissioner appointed by a circuit court of the United States, or a notary public. Article VIII. — Sec. 3. Where a deposition is taken by oral examination, each question propounded to the witness must be re- corded, and his answers must be taken down, as nearly as may be, in his own words. Sec. 4. No general objection to any question shall be noticed by the officer ; but where an objection is made on specifically stated grounds, the officer shall record the same in direct connection with the question objected to. Sec. 5. When depositions are taken on notice, as provided in section 1 of this article, if both parties are present or represented at the time and place specified in the notice, either party may, after the examination of the witnesses produced under the notice, be entitled to produce and examine other witnesses ; but in order thereto one day's notice must be given to the adverse party, or his attorney, there present. FORMS FOR COURT OF CLAIMS. 857 Article IX. — Sec. 1. Witnesses must be sworn or affirmed, before any questions are put to them, to tell the truth, the whole truth and nothing but the truth, relative to the cause in which they are to testify; and each witness shall then state his name, his oc- cupation, his age if under twenty-one years, his place of residence; whether he has any, and if any what, interest, direct or indirect, in the claim which is the subject of inquiry ; and whether, and in what degree, he is related to the claimant. At the conclusion of the deposition the witness shall state whether he knows of any other matter relative to the claim in question ; and if he do, he shall state it. The testimony of the witness when completed shall be read over to him, and be signed by him in the presence of the officer. Sec. 2. The officer should so connect the sheets of the deposition that they cannot be tampered with, and should return them sealed together. He should sign, and make the witness sign, each sheet ; and generally he should spare no pains to return to the court the exact evidence he has taken. All exhibits should be carefully marked so as to be capable of immediate identification, and, when practicable, should be attached to the deposition under seal. Sec. 3. The officer must state, in the caption of the deposition, the cause in which it was taken, the place and date of taking, the name of the witness, the party by whom called, and the names of the parties and counsel present. And in the body of the deposi- tion must also be shown by whouj the witness was examined and cross-examined. Sec. 4. In his return the officer must show that the witness was properly sworn or affirmed, and that the answers were taken down in his presence, and read over to and signed by the witness. Sec. 5. The officer must inclose the commission, depositions and exhibits in a packet, under his seal, and direct the same to the clerk of the court at Washington, and deposit the packet in the post- office, or in an express office, or he may transmit the same by a messenger, whose name shall be by him indorsed on the packet. Sec. 6. If the officer's fees be not paid at the time of taking the deposition, he should indorse on the outside of the packet the gross amount of his fees and disbursements, and inclose inside a detailed statement thereof. The packet must not be opened until the party for whom the depositions were taken deposits with the clerk the amount indorsed thereon. The clerk will then open the packet, 858 FEDERAL PLEADING, PRACTICE AND PROCEDURE. and tax the officer's charges at the rates hereinafter provided, and will immediately transmit to him the amount taxed, returning the overplus, if any, to the party. The money will be transmitted by draft or registered letter, and the clerk will retain his vouchers therefor. See. 7. The fees shall be three dollars a day for attending to take the depositions, and twenty cents a folio of one hundred words for taking and returning it ; but this per diem allowance is limited to one day for a deposition or series of depositions taken in the same case. Short-hand reporters, acting as special commissioners, will receive, in addition to these fees, ten cents a folio for writing out the deposition from their notes. Sec. 8. Any permanent commissioner charging in excess of the prescribed fees, except under a previous written agreement with the parties, will be deemed guilty of improper and illegal conduct, and his commission will be revoked. Form No. 275. Findings of fact, conclusion of law, opinion and judgment thereon. Swift & Courtney & Beecher Company V. The United States.^ FINDING OF FACT. This case having been heard before the Court of Claims, the court, upon the evidence, finds the facts to be as follows : I. The claimant is a corporation organized under the laws of the state of Connecticut April 20, 1870, and from May 6, 1870, to December 20, 1878, and subsequently, was a manufacturer of fric- tion matches, furnishing, without expense to the United States, in suitable form, approved by the Commissioner of Internal Revenue, its own dies and designs for stamps to be used thereon. II. On the 17th of May, 1870, said company furnished to the Commissioner, as security for the payment for stamps to be deliv- ^ For the purpose of illustrating before the court, after its submissioa the practice, we copy this actual case upon the merits. FORMS FOR COURT OF CLAIMS. 859 ered by him to said company on credit, its own bond, with sureties, in the penal sum of $30,000, payable to the United States upon the following conditions therein contained : The condition of the foregoing obligation is such that whereas the said Swift & Courtney & Beecher Company is a manufacturer of friction matches, cigar-lights or wax tapers; and whereas, under the provisions of the 161st section of an act entitled " An act to provide internal revenue to the govern- ment to pay interest on the public debt, and for other purposes," approved June 30, 1864, the Commissioner of Internal Revenue is authorized from time to time to furnish, supply and deliver to any manufacturer of friction or other matches, cigar-lights or wax tapers a suitable quantity of adhesive or other stamps such as may be prescribed for use in such cases without prepayment therefor, on a credit not exceeding sixty days, requiring in advance such security as he may judge necessary to secure payment therefor to the treas- ury of the United States within the time prescribed for such payment ; and whereas adhesive stamps have been delivered or hereafter may be delivered to said Swift & Courtney & Beecher Company by virtue of said authority : Now, therefore, if the said Swift & Coui-tney & Beecher Company shall, on or before the tenth day of each and every month, make a statement of their account upon Form 55^ of the Internal Revenue Bureau, and upon such other form or forms as may hereafter be added thereto or substituted therefor, showing the balance due at the commencement of the month, the amount of stamps received, and the amount of money remitted by them during the month, and the balance due from the Swift & Courtney & Beecher Company at the close of the month next preceding . . . and shall do and perform all other acts of them required to be done in the premises, according to law and regulations ; shall well and truly pay or cause to be paid to the Treasurer of the United States, for the use of the United States, all and every such sum or sums of money as the said Swift & Courtney & Beecher Company may owe to the United States for adhesive stamps which have been or shall be delivered to them, or which have been or shall be forwarded to them according to their request or order, within the time prescribed for payment for the same accord- ing to law, and shall and will pay or cause to be paid to the said Treasurer, for the use aforesaid, each and every such sum of money as shall become due or payable to the United States, at the time and on the days each sum shall respectively become due and payable, then the above obligation to be void and of no effect. Similar bonds were furnished May 24, 1870, for $30,000 ; Feb- ruary 29, 1872, for $30,000 ; and December 14, 1872, for $150,000. III. The uniform course of business between the parties, in rela- tion to ordering, forwarding, making returns, accounting and paying for stamps, was as hereinafter set forth : 1. Whenever stamps were desired, the claimant sent an order in the following form : 860 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Office of the Swift & Courtney & Beecher Co., Match Manufacturers, [Date.] Com. of Inter. Rev., Washington : Dear Sir : Please forward us by express $3000 worth [or whatever quantity was required] of match stamps S. & C. Ic, and oblige, Yours truly. The Swift & Courtney & Beecher Co. L. S. Benton, Att'y. 2. The Commissioner in reply forwarded stamps of the face value of the amount of, and ten per cent, commission on, the money speci- fied in the order, accompanied by a letter in the following form, except the words inclosed in brackets, which are inserted here as explanatory of the method of computing commissions ; taking an order of $3000 as a specimen : (Office Form 113 — Stamp Division.) Invoice of documentary and proprietary stamps. Treasury Department, Office of Internal Revenue, Washington, [date.] Swift & Courtney & Beecher Co. : Gentlemen : I have this day forwarded to you by express United States internal-revenue private-die stamps of the face value of thirty-three hundred dollars [or a sum equal to the amount of, and ten per cent, commission on, the amount of money specified in the order], in satisfaction of Order No. When the stamps come to hand they should be carefully counted in the presence of a disinterested witness, and if the invoice is found correct you will date, sign and transmit to this office by first mail the inclosed receipt. If the stamps fail to come to hand within a reasonable time, please notify this ofiice. Very respectfully, , Commissioner. , Chief of Stamp Division. 3. The receipt referred to in such letter was prepared by the Commissioner, forwarded to the claimant corporation, and by it signed and returned to the office of the Internal Revenue Bureau, and was in the following form : (Office Form No. 44 — Stamp Division.) Receipt for documentary and proprietary stamps. [Date.] Sir : Your letter of the has been received. I am also in receipt of the United States internal-revenue stamps therein referred to, amounting to thirty-three hundred dollars [or a sum equal to the amount of, and ten per FORMS FOR COURT OF CLAIMS. 861 cent, commission on, the amount of money specified in the order] in satisfac- tion of my order under date of I am, very respectfully, The Swift & Courtney & Beecher Co. L. S. Benton, Att'y. To Commissioner of Internal Revenue, Washington, D. C. : No. . 3000. Note. — This receipt should be signed and forwarded to Washington by first mail. The signature should be legally and technically correct, so as to bind the person, firm or corporation ordering and receiving the stamps. 4. The claimant throughout availed itself of the credit provided for by statute. No order for stamps was ever for a less quantity than $500 of face value. Remittances of money in payment were made in various sums from time to time within the sixty days credit. Each remittance was for a sum not less than $500, did not specify and correspond to any one particular and specified order for stamps, but did apply to orders the times for payment of which were near maturity. The remittances were so made that all stamps received were thus paid for at or before the expiration of term of credit allowed. The claimant was always indebted to the defendants for stamps received within the past sixty days, the time for payment for which had not matured, but was never indebted for any stamps received more than sixty days previously. 5. Remittances of money and acknowledgments of receipt thereof were made in the following forms : The Swift & Courtney & Beecher Co., [Date.] lion. Green B. Raum, Com. Inter. Revenue, Washington, D. C, : Dear Sir : Enclosed please find Assist. Treas. C. D. [certificate of deposit] No. 39 for two thousand five hundred ($2500) dollars [or other sum] , which pass to our credit. The Swift & Courtney & Beecher Co. , Manager. (Office Form 80.) Authority to take credit on Form 55|. Treasury Department, Office of Internal Revenue, [Date.] Swift & Courtney & Beecher Co., Philadelphia, Pa.: Sir : The following credit has this day been given you on the books of this office on account of internal-revenue adhesive stamps, viz. ; 862 FEDERAL PLEADING, PRACTICE AND PROCEDURE. By duplicate certificate of deposit No. dated , for Commission, @ 10 per cent., of the Asst. Treas. $2500 250 Total, $2750 You are hereby authorized to take credit for the above amount on Form 55^ for the current month. Very respectfully, , Commissioner. 6. In compliance with directions thus given by the Commissioner and with Form 55^, the complainant made its first return July 8, 1870, and regularly thereafter each month during the whole period. These returns, with like statements in gross made by the Commis- sioner, were forwarded by the latter to the Auditor of the Treasury, and accounts thereon were from time to time stated by him, and transmitted to the First Comptroller, by whom the balances found due were certified in the manner that accounts are adjusted, and settled in the Treasury Department. 7. From the commencement the Commissioner of Internal Rev- enue held that the amount allowed by statute was to be computed as commissions upon the amount of money paid ; and all business between the parties was transacted, and all accounts were stated and adjusted, by the accounting officers on that .basis. 8. The blank forms of 55 J were furnished by the Commissioner to the claimants, who filled them up and returned them in accordance with the Commissioner's directions and decision. 9. The first return thereon in which commissions were stated was as follows : (55^.) The United States in account current with the Swift & Courtney & Beecher Co., of Wilmington, Del., for the month ending July 31, 1870, under ofiScial bond dated , for $60,000. To cash deposited as per certificate No. 1421 $10,000 Commission, per certificate on same 1,000 Balance due United States 10,950 $21,950 By balance from last month $16,475 By stamps rec'd on order dated July 30.... 5,475 $21,950 The above account is complete and true. Dated August 9, 1870. The Swift, Courtney & Beecher Co., By Wm. H. Swift, Treasurer Match Manufacturers. 10. The last return made before the commencement of this action was as follows : FORMS FOR COURT OF CLAIMS. 863 (55J.) The United States in account current with Swift & Courtney & Beecher Co., of New Haven, Conn., for the month ending December 31, 1878, under bond dated December 14, 1872, for $150,000. Dr. Cr. Dec'r To cash deposited, as per certifi- cate : No. 5827 Wilmington 5821 Philadelphia New Haven 5834 Wilmington 810 New Haven 96 Chicago 31 Philadelphia 5840 Wilmington 815 New Haven To commission on amount depos- ited : 821 New Haven 103 Chicago 39 Philadelphia 5851 Wilmington 109 Chicago 51 Philadelphia 834 New Haven To commission @ 10 per cent Balance due United States $5,000 2,500 2,000 5,000 2,000 3,000 2,500 5,000 2,000 2,000 3,000 2,500 5,000 5,000 2,500 2,000 5,100 96,250 $152,350 By balance By stamps No. 6676 ai 6692 6700 6704 6711 6721 6746 6745 6750 6762 5768 6789 6794 6800 from last month., received on order : 5 New Haven Chicago WilQiington Philadelphia New Haven Wilmington New Haven Chicago Philadelphia Wilmington New Haven Chicago New Haven Philadelphia $106,700 2,200 3,300 5,500 2,750 2,200 5.500 2,200 3,300 2,750 5,500 2,200 3,300 2,200 2,750 8152,350 The above account is correct, complete and true. Swift & Courtney & Beecher Co., Match Manufacturer. Wm. H. Swift, Treasurer. Dated January 8, 1879. Note. — The face value of stamps must always be inserted in the credit side of this account. The monthly intervening returns were in like form as the above. 11. Such returns, with the Commissioner's statement coinciding therewith, having been transmitted to the accounting officers, were settled and adjusted from time to time, as was the following account, which is inserted here as a specimen of all : Treasury Department, Fifth Auditor's Office, July 6, 1872. I hereby certify that I have examined and adjusted an account between the United States and The Swift & Courtney & Beecher Co., match manu- facturers, internal-revenue stamp agents at Wilmington, Del,, for the quarter commencing Oct. 1, 1871, and ending Dec. 31, 1871, and find them chargeable therein, as follows : ),000, dated May 17, 1870. 30,000 " " 24, 1870. To balance due from them per report No. 2939 (register's certificate), 39,050 To stamps, as per receipt dated in Oct., 1871, . . . 24,200 " " Nov., 1871, . . 26,950 " " Dec, 1871, . . . 24,200 " " Jan. 2, 1872, . . 1,650 116,050 Bond C$c 864 FEDERAL PLEADING, PRACTICE AND PROCEDURE. Amount brought forward, $116,050 I also find them entitled to credit as follows : No. 2536, covering warrant No. 242, 4 quarter, 1871, . 1,500 00 No. 1935, " " " " " " " 1, . 5,000 00 No. 2553, " " " " " " " 1, . 1,500 00 No. 1947, " " " " " " "1, . 5,000 00 No. 1957, " " " " " " " 1, . 5,000 00 " 2570, 496, " " 1, . 1,500 00 " 1973, " " " 1, . 5,000 00 " 2583, " •' " 1, . 1,500 00 " 1982, " " " 1, . 6,000 00 " 2594, " " " 1, . 1,500 00 " 1995, " " " 1, . 5,000 00 " 2608, " " " . 1,500 00 " 1997, 754, " " 1, . 5,000 00 " 2616, " " " . 1,500 00 " 2013, " " " 1, . 5,000 00 " 2629, a a u 1, . 1,500 00 " 2014, " " . 1,000 00 " 2640, " " " 1, . 1,500 00 " 2025, " " . 5,000 00 '' 2650, . " " " 1, . 1,500 00 By ten per cent, commission on amount deposited, . . 6,200 00 68,200 Leaving balance due the United States with which they are to be charged, 47,850 As appears from the account and vouchers herewith transmitted for the decision of the Comptroller of the Treasury thereon. J. H. Ela, Auditor. To the First Comptroller of the Treasury. Treasury Department, Comptroller's Office, July 16, 1872. I admit and certify a balance of forty-seven thousand eight hundred and fifty dollars as due the United States, as stated in the foregoing report. Wm. Hemphill Jones, Acting Comptroller. To the Register of the Treasury. Notices of such settlements were forwarded to the claimants by mail. IV. Prior to June 30, 1866, the leading manufacturers of matches, among whom was William H. Swift, who, upon the organization of the claimant corporation in 1870, became one of its large stock- holders and treasurer, made repeated protests to the officers of the Internal Revenue Bureau against the method of computing com- FORMS FOR COURT OF CLAIMS. 865 missions for proprietary stamps sold to those who furnish their own dies and designs. But it does not appear that any one in behalf of the claimant corporation ever, after its organization, made any protest or objec- tion against the method adopted by the Treasury Department for the computation of such commissions, or made claim to any allow- ance on account thereof beyond what had been accorded to them, until January 8, 1878, when the following correspondence took place : Washington, D. C, Jan. 8, 1879. Hon. Green B. Raum, Com'r of Int. Rev. : Sir : I have the honor to state that The Swift & Courtney & Beecher Co. manufacture matches arid use their own proprietary stamps. They claim that there is due to them from your office the sum of $35,822 50 as commis- sions upon stamps purchased as provided in section 3425 of the Revised Stat- utes. I have the honor to ask on behalf of said company, and as their at- torney, for the payment of said sum due as aforesaid. Very respectfully, George H. Williams. Treasury Department, Office of Internal Revenue, Washington, January 16, 1879. Sir : Your letter of the 8th inst., stating that The Swift & Courtney & Beecher Co., manufacturers of matches, claim that there is due them the sum of $35,822 50 as commissions upon stamps purchased as provided in section 3423 of the Revised Statutes, and asking on behalf of said corporation that payment of said sum be made, has been received. In reply I have to say that The Swift & Courtney & Beecher Co. has re- ceived all commissions upon stamps to which they are entitled, provided the method of computing commissions which was inaugurated with the first issue of private-die proprietary stamps, and has been continued by each of my predecessors, is correct. I have heretofore decided to adhere to the long-established practice of the office in this regard until there shall be some legislation or a judicial decision to change it. In the absence of such legislation or judicial decision the claim made by you in behalf of The Swift & Courtney & Beecher Co. is hereby rejected. Respectfully, Green B. Raum, Commissioner. George H. Williams, Attorney, Washington, D. C. 55 866 FEDERAL PLEADING, PRACTICE AND PROCEDURE. V. From May 6, 1870, to December 24, 1878, the claimant cor- poration received from the Commissioner of Internal Revenue proprietary stamps printed from its own private dies of the face value of three million eight hundred ninety-seven thousand two hundred four dollars ($3,897,204). These were received in fulfill- ment of more than sixteen hundred orders for different amounts, varying from $500 to $10,000, in form as set forth in paragraph 1 of Finding III. Each remittance of said stamps exactly covered in face value the amount of, with ten per cent, commission added to, the money spec- ified in an order, and the claimant w^as notified thereof by letter in the form set out in paragraph 2 of Finding III. Each receipt of said stamps in reply to said orders was acknowl- edged by the claimant by a letter, printed' blank for which was furnished by the Commissioner, and was in form as set out in para- graph 3 of Finding III. All these stamps so received by the claimant were paid for at or before the expiration of sixty days after their receipt, in manner set forth in paragraphs 5, 6 and 7 of Finding III. VI. 1. Stating accounts between the parties, for the purposes of this case, at such periods of time as either party considered at the trial to be material, the following facts appear : Whole face value of stamps delivered from May 6, 1870, to No- vember 21, 1878 (sixty days before action brought), . . §3,836,544 Paid for within sixty days after purchase: By cash, $3,487,767 By commissions on money paid, .... .348,777 3,836,544 Difference between amount of discount at ten per cent, on the face value and the amount actually allowed as commissions on the money paid, . . . 34,878 2. Whole face value of stamps delivered from Nov. 21, 1872, for six years, up to Nov. 21, 187S, , . . 3,147,944 Paid for within sixty days after purchase : By cash, 2,861,767 By commissions on money paid, .... 286,177 3,147,944 Difference between amount of discount of ten per cent. on face value and the amount actually allowed as commissions on the money paid, .... 28,816 FORMS FOR COURT OF CLAIMS. 867 CONCLUSION OF LAW. Upon the foregoing findings, the court decides as a conclusion of law that the claimant corporation is not entitled to judgment in its favor and that its petition must be dismissed. Richardson, J., delivered the opinion of the court : When this case was first submitted at a former term of the court it was upon demurrer to the claimants' petition, and the single question then considered was whether or not the method of com- puting commissions on stamps sold to proprietors of matches and other proprietary articles who furnished their dies, adopted and long followed by the Internal Revenue Bureau and the Treasury Department, should be sustained. Without at that time expressing an opinion as to the correctness of the rule, in passing judgment upon the demurrer, and without then much considering it, but regarding it, if not clearly correct, at least not free from ambiguity and doubt, we felt, on the authority of Mr. Alexander's case (12 Wall 177) and Pugh's case (99 U. S. 265), that we were not authorized to overthrow a construction of the statute so long acquiesced in by all parties concerned, in transactions of such great magnitude, and involving such large pe- cuniary interests, and we therefore sustained the demurrer. Upon appeal, the Supreme Court, from the course of the argu- ment at the hearing there, and certainly not from any concession ever made by the oflBcers of the Internal Revenue Bureau, or by any other officers of the Treasury Department, regarding it as "vir- tually admitted that the contention on the part of the appellant [the claimant] upon the provisions of the statutes is correct," held, as has often been held by that court and by this, that " the rule which gives determining weight to contemporaneous construction put upon a statute by those charged with its execution applies only in cases of ambiguity and doubt." Applying the rule to the case as virtually admitted in the Supreme Court, the judgment of this court on demurrer was reversed (105 U. S. R. 691). It could not have been otherwise under those circumstances, when the contention of the officers of the Treasury Department was thus abandoned. In point of fact the officers of the Internal Revenue Bureau and of the Treasury Department charged with the execution of the law have always strenuously maintained that the rule adopted by them 868 FEDERAL PLEADING, PRACTICE AND PROCEDURE. ■was in accordance with the will of Congress as shown by the course of legislation. The first internal-revenue act, passed July 1, 1862, authorized the Commissioner to sell adhesive stamps therein provided for, and to make an allowance to purchasers of not exceeding 5 per cent. " as commission," with a proviso that proprietors of the proprietary articles named, who should furnish their own dies or designs, should be allowed a "discount" of 5 or 10 per cent., according to the amounts purchased. (Ch. 119, § 102, 12 Stats. L. 477.) The two words, commission and discount, are not synonymous. They are similar, but not identical. " Commission," in its tech- nical as well as in its ordinary sense, generally signifies a percentage upon the amount of money involved in tlie transaction, as distin- guished from " discount," which is a percentage taken from the face value of the security or property negotiated. (Bouvier's Law Dic- tionary, under " Commissions," Ficklin's National Arithmetic, 2d Book Advanced, paragraph 356, and other standard mathematical works.) The Commissioner of Internal Revenue understood that Con- gress intended to use the two words in their distinct significations, as expressing two distinct methods of allowance. Accordingly, when he issued his first circular, after the bureau was fairly organ- ized, on the 12th of January, 1863, he gave notice that a com- mission would be allowed on adhesive stamps of 2 per cent, on purchases of $50, 3 per cent, on $100, 4 per cent, on $500, and $5 per cent, on $1000, payable in stamps. (Boutwell's Direct and Excise Tax System, p. 391.) This language did not artistically express the idea of " commission," but such was its practical efiect. A percentage on the face value of stamps, payable in stamps, ex- actly equals a percentage on the money involved in the transaction, and so is strictly and technically a " commission." No reference was made in this circular to the sale of proprietary stamps, and it seems to have been understood that Congress intended to apply to them a different rule of allowance. But in less than two months, on the 3d of March, 1863, Congress, by express enactment, changed the word " discount " in the act of 1862 to " commission " by striking out the one and inserting the other, at the same time providing for a uniform commission of 10 per cent, on the whole amount, instead of 5 per cent, on small and 10 per cent, on large purchases. (Ch. 74, 12 Stats. L. 718.) FORMS FOR COURT OF CLAIMS. 869 This change of percentage in the allowance for the purchase of proprietary stamps from "discount" to "commission" certainly appears to have been made for the sole purpose of altering the law and sanctioning the construction given by the Commissioner, other- wise it was of no practical eifect. If the percentage was to be com- puted upon the face value of the stamps after the word "commis- sion " took the place of "discount," then it was discount still, and the express alteration of the statute made no change in the law, and was as idle and useless in practical effect as it was inappropriate and inaccurate in language. Whether or not the whole phraseology of the section of the stat- ute was aptly chosen in every particular to express the correct idea of commission, it can hardly be conceived that Congress intended to allow discount after having stricken out that word and put in its place one susceptible of a diflferent signification. The Internal Revenue Bureau and the officers of the Treasury Department very naturally regarded the change in language as effecting a change in the law, and they have ever since allowed purchasers of proprietary stamps, who furnish their own dies, not a "discount" from the face value of the stamps purchased, but a " commission " computed on the amount of money involved in the transaction, and all the dealings of the parties have been in that more accurate form of account instead of by the formula of " pay- able in stamps," as the findings show. This construction was acquiesced in by purchasers of proprietary stamps without objection after the year 1866 to near the time of bringinor this action. The decision of this case as it is now before us does not neces- sarily turn upon the correctness of the practice of the Treasury Department in the method of computing commissionsi, and we have thus reviewed the subject in order to show that the officers charged with the duty of administering the law from its first enactment to the present time have acted not without reason and due considera- tion, nor without the apparent sanction of Congress. Upon the right to recover at the trial on the demurrer, the Su- preme Court had before it only the petition of the claimant, admit- ted by the demurrer to be true for the purposes of that hearing. Of this they say, "the case made by the petition is not that of successive and independent purchases of stamps, settled for at the 870 FEDERAL PLEADING, PRACTICE AND PROCEDURE. time when the commissions given by the law were paid by the Com- missioner, the purchaser voluntarily accepting payment, not in money, but in other stamps ; and new dealings of the same char- acter, but separate as to each instance, had, afterwards, upon the same footing and by mutual understanding. On the contrary, the business was conducted upon the footing of a running account." The court further say that the dealing as presented by the peti- tion " does not prove that he [the proprietor] was willing to waive his right to a commission upon the stamps so purchased. And it would be incumbent on the government, in order to deprive him of his statutory right, not only to show facts, from which an agree- ment to do so might be inferred, but an actual settlement based upon such an understanding." Since the final decision upon the demurrer, the defendants have had leave to answer over and have filed a plea of general issue, and the real facts have been proved by the parties and found by the court, and we are now called upon to apply to these facts the rules of law laid down by the Supreme Court. It now appears from these findings that the dealings of the par- ties disclose a case not only entirely different from, but exactly the opposite to, that implied from the allegations in the petition alone upon which the Supreme Court was then called upon to pass judg- ment. It is shown that those dealings were successive and inde- pendent purchases, upon written orders fulfilled by the delivery of stamps of the face value of 10 per cent, more than the money order ; that in each case those stamps were received and receipted for by the claimant, in satisfaction of the order ; that within sixty days each order was paid for on that basis ; that there was no running account beyond sixty days' credit, or beyond the monthly settle- ments which .were made on the basis of the orders and corre- spondence and upon the returns signed by the claimant and for- warded to the Commissioner, and that the accounting officers made frequent statements of balances on the same basis. The Supreme Court say, " it would be incumbent on the govern- ment not only to show facts, from which an agreement might be inferred, but an actual settlement based upon such an under- standing." In our opinion the government has now done both. The written contract set forth in the bond (Finding II.) was that the claimant FORMS FOR COURT OF CLAIMS. 871 corporation should on or before the tenth day of each ajid every month make a statement of their account upon Form 55|, showing the balance due at the commencement of the month, the amount of stamps received, and the amount of money remitted by it during the month, and the balance due from it at the close of the month next preceding; and also that the company should pay all and every sum or sums of money it might owe the United States for stamps delivered or forwai'ded to it " according to their request or order, within the time prescribed for payment for the same according to law ;" that is, each purchase was to be paid for within sixty days of delivery of the stamps. The statute fixed a limit to the term of credit for each purchase, and this agreement fixed in addition thereto the terms of settlement, not payment merely, but an accounting between the parties, an ac- cord and satisfaction. So the parties always did their business from the commencement without objection on the part of the claimant for nearly nine years and until this action was about to be instituted. We will review the course of business. Each purchase of stamps was upon a written order, separate and distinct from all other purchases. The claimant ordered, say, "three thousand dollars' worth of match stamps," as shown in paragraph 1 of Finding III. The Commissioner thereupon for- warded stamps of the face value of $3300, with a letter stating that they were in satisfaction of the order referred to (paragraph 2 of Finding III.), and the claimant, in writing signed by its proper officer, returned an acknowledgment of the receipt of stamps of the face value of $3300, in satisfaction of the order for three thousand dollars' worth of stamps. (Paragraph 3 of Finding III.) These are facts from which an agreement may not only be in- ferred, but which must be held to constitute an explicit contract, a sale and purchase at a price fixed and agreed upon by the parties. The course of business subsequent to the delivery of stamps and to the acknowledgment by the claimant, reaffirms the contract as thus understood by the parties. The claimant was to pay for each delivery within sixty days, and so it always did. At the end of each sixty days after the fulfillment of an order that order was invariably paid. In one sense there was a running account for sixty days ; that is, as to terms of payment. After the first order was given, and 872 FEDERAL PLEADING, PRACTICE AND PROCEDURE. before the sixty days for payment had expired, there were many intervening orders of like kind. It was not convenient to send a separate remittance of money in payment for each separate de- livery of stamps, when, as the findings show, more than sixteen hundred such deliveries were made, and the claimant accordingly made remittance in sums to suit its own convenience, taking care always that full payment should be effected before the term of credit on any one order had expired. If at any time a remittance covered more than was payable at its date, it was practically a payment of what had matured, and the balance went towards payment of the next maturing order. In so large a business the parties did not stop to adjust each transaction separately. But they did settle each month, as we have shown ; and such settlements were recog- nized by the correspondence had upon each remittance of money, as well as agreed upon in the bond, and were regularly made every month throughout the whole period of nine years. In acknowl- edging each remittance the Commissioner gave the claimant credit for the money remitted, with 10 per cent, added thereto as com- missions, and authorized it " to take credit for the above amount on Form 55| for the current month," as shown by paragraph 5 in Finding III. As to periods of settlement, accord and satisfaction, we may therefore consider that there was a running account for each period of one month, as appears from the specimen monthly account-cur- rent set forth in paragraph 10 of Finding III. These accounts- current were regularly sent forward to the accounting officers, and by them adjusted and balances stated from time to time in accord- ance with the practice of the Treasury Department, of which the claimant had due notice. There was not such a general running account between these parties for the period of nine years from the commencement of their dealings as entitles the claimant to a statement of its whole account for that time, opening its own monthly settlements and the settlements of the accounting oflScers, setting aside its own sixteen hundred contracts, and making to it a greater allowance than was from time to time agreed upon, even if it would have been entitled to such greater allowance had it not otherwise contracted. In our opinion, under the rules laid down by the Supreme Court in this very case, as well as in the case of Francis E. Pray, decided FORMS FOR COURT OF CLAIMS. 873 by that court at the present term, the claimant corporation is con- cluded by its own agreements and settlements ; that it has no cause of action, and that its petition must be dismissed. In this result the claimant suffers no injustice. It is to be pre- sumed, from its long acquiescence in paying for stamps in the man- ner and to the extent shown by the findings, that it added the whole amount thus paid in taxes to the value of its articles manufactured, and charged the same to the purchasers. If so, the consumers finally paid the taxes, while the money recovered back, if any, would go not to the consumers, but to the claimant as extra and unexpected profits. Judgment will be entered dismissing the petition. Form No. 276. Judgment for claimant. David Graham V. The United States. The court, on due consideration of the premises, do find for the claimant, and do adjudge and decree that the said David Graham do have and recover of and from the United States the sum of Form No. 277. Judgment for defendants. James Swift ^ ( The United States, j The court, on due consideration of the premises, find for the de- fendant, and do order, adjudge and decree that the claimant's petition be dismissed. 874 federal pleading, practice and procedure. Form No. 278. Order on motion for intervention. William Fielding ^ r The United States. J Upon the motion of John Donally and James Boston for leave to intervene herein, it is ordered that tlie motion be overruled. Form No. 279. Ruling upon a motion for a nevy trial. Albert Kellogg ^ The United States. J The motion of the plaintiff herein for a new trial in this case is overruled. Form No. 280. Judgment confirming report of referee and decree thereon. John Campbell "| ( The District of Columbia. J Upon motion of Mr. Dyer for the claimant, for a confirmation of the report of C. D., referee, herein filed, and for judgment thereon, said report is confirmed. And the court, on due consideration of the premises, find for the claimant, and order, adjudge and decree that the said John Campbell do have and recover to the use of Samuel Campbell in the manner provided by the act of June 16, 1880, chapter two hundred and forty-three, the sum of , upon debts of the District of Columbia, due and payable December 20, 1875, within the meaning of the sixth section of the said act. forms for court of claims. 875 Form No. 281. Certified transcript of pleadings, findings, etc. A. B. ] The United States. J I, , clerk of the Court of Claims, do hereby certify that the foregoing are true transcripts of the pleadings in the above- entitled cause, of the findings of fact by the court, and the conclu- sion of law thereon. In testimony whereof I have hereunto set my hand and afiixed the seal of said court at Washington, this day of , 18 . , Clerk Court of Claims. Form No. 282. Attested judgment. A. B. The District of Columbia. J At a Court of Claims held in the city of Washington, of , A. D. 18 , judgment was ordered to be entered up as follows : The court, upon due consideration of the premises, find in favor of the claimant , and do order, adjudge and decree that the said have and recover in the manner provided by the act of June 16, 1880, chapter 243, upon debts of the District of Columbia due and payable within the meaning of the sixth section of said act. A true copy of record. In testimony whereof I have hereunto set my hand and affixed the seal of said court at Washington, this day of , A. D. 18 . , Clerk Court of Claims. Attest : , Chief Justice. 876 federal pleading, practice and procedure. Form No. 283. Certified judgment. A. B. ^ The United States. J At a Court of Claims held in the city of Washington, of , A. D. 18 , judgment was ordered to be entered up as follows : The court, upon due consideration of the premises, find in favor of the claimant , and do order, adjudge and decree that the said have and recover of and from the United States the sum of A true copy of record. In testimony whereof I have hereunto set my hand and affixed the seal of said court at Washington, this day of , A. D. 18 . , Clerk Court of Claims. Attest : , Chief Justice. FoRJi No. 284. Application for appeal and order allowing same. A. B. "I ( The District of Columbia. J From the judgment rendered in the above-entitled cause on in favor of claimant, the defendants, by their Attorney General, on the day of , 18 , make application for, and give notice of, an appeal to the Supreme Court of the United States. , Attorney General. A. B. 1 . ( The District of Columbia. J Filed Ordered by the court that an appeal be allowed in the above-en- titled cause to the Supreme Court of the United States. [If allowed FORMS FOR COURT OF CLAIMS. 877 by the Chief Justice in vacation, say : An appeal to the Supreme Court in this cause is allowed this day of , 18 .1 , Chief Justice. Form No. 285. Application for appeal and order allowing same. A. B. V. The United States. From the judgment rendered in the above-entitled cause on in favor of claimant, the defendants, by their Attorney General, on the day of ? 18 , make application for, and give notice of, an appeal to the Supreme Court of the United States. , Attorney General. Filed [Order of allowance as in No. 284.] INDEX. The references are to pages. ACTIONS AT LAW. ^qq Procedure ; Evidence. when production of books and papers by parties may be compelled, 433. practice ; notice and motion to produce, note, 433. ADMIRALTY. See Pleading ; Practice and Procedure ; Appeals. general principles, 70. the libel, what it should contain, 70. must be filed before process can issue, 70. the mesne process, 71. where there are several claims, 71. suits against a ship, her tackle, etc., 72. order for process to issue, 72. stipulation for costs, 72. when bail may be reduced, 73. when new sureties may be required, 73. process of arrest and attachment, 73. garnishment, 73. how attachments may be dissolved, 73. bond in case of, 73. when the marshal may take bail, 74. stipulation for costs, 74. decree against stipulators, 74. when execution may issue, 74. when warrants of arrest cannot issue, 74. the claim, pleading of intervenor, 75. how claimant may obtain the property, 75. where the property is owned severally or jointly, 75. claimant should file his claim on the return day of the process, 76. claim and answer, 76. the claim must be verified, 76. stipulation for costs to be filed by claimant, 76. when the arrested ship will be delivered to claimant, 76. appraisement of the vessel, when conclusive, 77. perishable goods may be sold, 77. right of claimant to property not absolute, 77. in case of appeal the thing does not follow the appeal, 77. where a state court has property in custody, federal courts will not interfere by a proceeding in rem, 78. information or libel on seizures, 78. what it must contain, 78. what it must aver, 78. amendments of, 78. a master may put in a claim as bailee for the owner, 79. claim and verification not conclusive, 79. how decrees in admiralty may be enforced, 79. in prize causes district and circuit courts have cognizance of, 79. the court may decree restitution of whole or part of captured property, 80. may decree damages for detention, 80. where seizure must be made, 80. process in case of seizure, 80. condemnation of property employed in aid of insurrection, 81. 880 INDEX. ADMIRALTY— con^/wMi»^. statutory provisions for condemnation of property, both real and personal, 81. authority of court over funds derived from confiscated property, 81. distinction between instance and prize causes, 81. seizures cognizable in the district court of the district into which the prop- erty may be first taken, 82. trial by jury, except in cases in equity and of admiralty and maritime juris- diction, 82. right of trial by jury may be waived, 82. libels in instance causes, 83. libels should show facts conferring jurisdiction, 83. should state grounds of forfeiture, 83. amendments ol pleadings, 83. the court may require defendant to give security for costs in certain cases, 84. answers and verification, 84. exceptions to libel and answer, 85. default on failure to answer, 85. « ■when further answer will be required, 86. what defendant may object to answer, 86. defendant may require libellant to answer interrogatories, 86. when verification of an answer may be dispensed with by the court, 87. new facts in the answer treated as denied by the libellant, 87. practice in case of, 87. when cross-bill may be filed, 87. respondents to cross-bill must give security, unless the court shall other- wise direct, 87. when the libellant is entitled to process of foreign attachment, 88. when attached property will be ordered to be brought into court, 88. when the cause dismissed if the libellant fails to appear, 89. ■when a decree of default may be rescinded, 89. the proceeds of property to be paid into the registry of the court, 89. money to be deposited in the name of the court, subject to the order of the judge, 90. party interested may intervene for proceeds, 90. matters may be referred to commissioners, 91. bail on arrest, 91. imprisonment for debt, 91. extension of admiralty jurisdiction, 91. rule in England not applicable in this country, 93. embezzlement by master of vessel, 93. liability of owner limited by statute, 93. proof made before commissioner in case of, 94. owners may contest their liability for, 95. further proof may be taken on appeal to the circuit court, 95. ■when district courts may regulate practice, 96. appeals in to Supreme Court, 246. where matter in dispute exceeds $5000, 246. from final decrees, 246. •what decrees are not final, 247. within what time taken, 251. when want of jurisdiction is apparent of record, 251. appellant has a right to dismiss, 252. when dismissed of course, 252. AMENDMENTS. See Practice and Procedure in Suits of Law ; Practice and Pro- cedure in Equity, of bills when of course, 196. after answer or plea, 197. when filed after order of allowance, 198. of bills after demurrer, 200. process when allowed, 514. process, returns and pleadings, etc., 515. INDEX. 881 ANSWER. See Practice and Procedure in Suits at Law; Practice and Procedure in Equit}/. amendments made after, 197. plea and answer to bill, 199. as evidence, 201. matters of bill not denied by, taken as true in certain cases, 201. answers must be made to interrogating part of bill if required, 202. M'hen the answer under oath is waived it is not evidence for defendant, except in certain cases, 202. interrogatories defendant may decline to answer, 203. replication to, 203. amendment to bills after, on leave of court, 204. when it must be filed, 210. when amended of course, 210. when amended only on leave of court, 211. exceptions thereto, 211. ■when set down for hearing, 211. answer after allowance of, 212. defendant must answer original bill before plaintiff is required to answer cross-bill, 215. APPEAL. See Writs of Error and Appeal, from district to circuit courts, 98. time allowed for taking, 98. what must be certified on, 99. to the Supreme Court, 100. by both parties, 100. directing mandate to issue to inferior federal court, 287. may affirm, modify or reverse decision of a state court and issue execution thereon, 287. mandate conclusive, 287. may be revoked, 287. costs on affirmance, 288. reversal, 288. dismissal, 288. opinions, recording of by clerk, 289. rehearing, when allowed, 289. dismissal of suit in vacation, 290. clerk's duty on, 290. from the Court of Claims heard upon record, 291. what the record must contain, 291. rule in relation to strictly construed, 291. petition for allowance of to the Court of Claims, 291. order for allowance, 291. time of, limited, 291. proceeding in case of diminution of record, 292. writ of certiorari may issue to compel return of the record, 292. presumption on that judgment of inferior court is in force, note, 497. ATTACHMENT. Sbq Admiralty Pleading ; Practice and Procedure ; Process, of property in admiralty, 73. by garnishment, 73. may be dissolved, 73. when perishable goods may be sold, 77. process of foreign, 88. when property will be ordered into court, 88. when proceeds to be paid into the registry, 89. in common law cases to conform to state practice, 505. in postal suits, 507. applications for against postmasters, 507. owner may claim, 508. 56 882 INDEX. ATTACHMENT— cow/mwec?. property proceeds may be invested, 508. publication of notice in case of, 509. discharge of, bond required, 509. dissolved in conformity with state law, 509. property under revenue laws irrepleviable, 509. by garnishment in favor of United States, 510. proceedings under, 510. garnishee failing to appear, 510. in admiralty against garnishees, 585. of proceeds of property, 585. ATTORNEYS. See District Attorneys. fees of, 456, 458. negligence or fraud of no cause for setting aside judgment, 497. liability of for costs in certain cases, 521. BAIL. See Procedure ; Admiralty; Criminal Cases. by defendant, special provisions relating to, 513. calling of in Kentucky, 513. de bene esse, when taken by clerks, 514. BILLS IN EQUITY. See Practice and Procedure in Equity ; Supreme Court. clerk's office always open for filing, 187. subpoena, proper mesne process to require defendant to appear and answer. 189. taken joro confesso, when default may be entered, 192. frame of bills, introductory part, 193. what may be omitted from, 193. the prayer for relief, what it should contain, 194. when proper parties to, beyond the jurisdiction of the court, may be omitted, 194. what the prayer for process must contain, 195. signature of counsel to, 195. scandal and impertinence in, 195. when referred to master for scandal or impertinence, 196. amendment of, when of course, 19G. after answer, 197. when amendment must be filed after order of allowance, 198. demurrers and pleas to, allowance of, 198. demurrer, plea and answer to argument on, 199. amendment of, on allowance of demurrer, costs, 200. effect of failure to replj^ to plea, 200. effect of answer as evidence, 201. when answer not evidence, 202. note at foot of bill treated as part of it, 202. interrogatories in the note, 203. defendant may decline to answer, 203. parties to, absent parties, 204. non joinder of merely formal parties, 205. when parties are numerous, 206. when trustees and executors and administrators may represent parties ben- eficially interested, 206. when an heir-at-law is not a necessary party, 207. when defect of parties may be suggested by answer, 207. nominal parties to, need not appear, 208. bills of revivor and supplemental bills, 209. when supplemental bills are proper, 210. BILL OF EXCEPTIONS. See Practice; Procedure. how authenticated, 515. INDEX. 883 CAPITAL CASES. See Criminal Cases. treason, copy of indictment in, to be delivered defendant, 417. witness for defendant, 418. remitted, when, 418, 419. CERTIFICATE OF DIVISION OF OPINION. See Division of Opinion. reviewed by the Supreme Court, 252. may affirm, reverse or modify, 252. in criminal cases, 253. the specific point must be stated, 253. only the points stated are properly before the court, 254. the question must be one of law and not of discretion, 254. in criminal cases, certificate, 254. when the Supreme Court is divided on, 255. CERTIORARI. See Courts; Jurisdiction. writs of, note, 428. CHALLENGES. See Criminal Cases. in excess of number allowed, 417. CIRCUIT COURTS. See Circuits [Judicial); Jurisdiction of Circmt Courts; Practice and Procedure in Suits at Law ; Practice and Procedure in Equity. where established, 102. by whom held, 103. justices of supreme to attend, 103. judges of, may set apart and try cases, 103. maj'^ be held at the same time in different districts, 103. criminal terms in southern district of New York, 103. when judges may sit to review their own opinions, 104. when suits may be transferred to another circuit court, 104. when a suit transferred may be certified back, 104. when justices of may hold courts of other circuits, 104. when no justice is allotted to, 105. clerks appointed by the court, 105. in Alabama, 105. in Iowa, 105. in Kentucky, 106. in North Carolina, 106. in Virginia, 106. in Wisconsin, 106. deputy clerks, 106. in Indiana, 106. compensation of, 107. may appoint commissioners, 107. no marshal or deputy marshal may act as commissioner, 107. original and appellate jurisdiction of, 108-174. practice and procedure in suits at law, 175-183. in equity, 184-221. CIRCUITS (JUDICIAL). See Circuit Courts. First. — Rhode Island, Massachusetts, New Hampshire and Maine, 101. Second. — Vermont, Connecticut, New York, 101. Third. — Pennsylvania, New Jersey, Delaware, 101. Fourth. — Maryland, West Virginia, North Carolina, South Carolina, 101. Fifth. — Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, 101. . Sixth. — Ohio, Michigan, Kentucky, Tennessee, 101. Seventh. — Indiana, Illinois, Wisconsin, 101. Eighth. — Colorado, Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, 101. Ninth. — California, Oregon, Nevada, 101. CIVIL RIGHTS, proceedings in vindication of, 432. 884 INDEX. CLAIMS. See Court of Claims. CLERKS, appointment of, 22, 25. residence of, 22, 25. duties and powers of, 22-26. appointment of deputies, 23, 27. in Texas, 22. in Kentucky, 22. in Iowa, 23. in Michigan, 24. in Missouri, 24. in Tennessee, 24. compensation of, 26. commissions, 27. deputies, appointment of, 27. official bond, 27. responsibility of clerk for, 27. compensation, how allowed and paid, 25. duties of in special cases, 49, of the circuit courts, how appointed, 105. in Alabama, 105. in Iowa, 105. in Kentucky, 106. in North Carolina, 106. in West Virginia, 106. in Wisconsin, 106. deputy clerks, compensation of, 107. semi-annual returns of fees, etc., required, 465. fees and emoluments retained for personal services not to exceed $3500 a year, 467. fees of, in California, Oregon and Nevada, 467. additional compensation in prize causes, 468. accounting to the Department of Justice, 468. accounts of to be certified by district judge, 468. must be rendered with vouchers and items, 469. penalty for willfully refusing or neglecting to perform certain duties, 470. expenses of, when absent from place of business as a witness for the gov- ernment, 472. fees, how paid and recovered, 474. cannot act as solicitor, proctor, attorney or counsel in any United States court, 447. penalty for so doing, 447. COMMISSIONERS OF THE CIRCUIT COURTS. See Circuit Courts. each circuit court may appoint, 107. no marshal or deputy marshal can act as commissioner, 107. circuit courts may appoint, 385. power of, to require security to keep the peace, etc., 386. practice before, information must be filed, 387. proceedings on examination, 388. recognizance of witnesses, 388. when the prisoner must be committed, 388. duty of commissioner to make return, 388. jnay enforce award of consuls, etc., 389. may cause the arrest of offenders against the United States, 390. procedure against offenders, 390. information under oath, 390. notice to district attorney, 391. same as state practice, 392. INDEX. • COMMISSIONERS OF THE CIRCUIT COURTS— conimued. procedure, witnesses and fees, 392, 393. decision of the commissioner, 393. commitment by, 393. waiver of examination, 393. removal of prisoner to another district, 394. meaning of the word "seasonably," 394. bail, amount of, 395. recognizance, what it should contain, 395. extent of liability of sureties, 395. cop3^ of process to be returned, 396. may discharge poor convicts in certain cases, 396. may arrest foreign seamen in certain cases, 397. proceedings in case of, 397, 399. powers of, under statutes relating to equal rights, 401. bail and aflSdavits may be taken before, 402. may take depositions de bene esse, 402. reasonable notice of depositions, 403. party may waive rights, 404. mode of taking depositions before, 404. transmission of depositions to court, 405. depositions must be reduced to writing by commissioner or witness, 405. certificate to deposition, 405. what must be shown on trial before deposition can be used, 407. compelling witnesses to appear before, 407. make oaths and acknowledgments, 408. may issue search warrants in certain cases, 408. may issue warrants for arrest of fugitives, 409. complaint on oath before, 410. what warrant of arrest should contain, 410. what commissioner must certify, 410. fees; accounts; vouchers, 411. fees as supervisor of election, 412. how to obtain allowance and payment, 413. fees of, 470. CONSTITUTION, provisions of, relating to judicial power, 1, 4. interpretation of, 2. provided for federal courts, 3. amendments construing judicial power, 4. Mr. Jay's summary of reasons for, 5. giving jurisdiction to the Supreme Court, 7. original jurisdiction not exclusive, 7. of federal courts, duty of Congress to provide for, 10. COURTS OF UNITED STATES, jurisdiction exclusive, 425, 435. may issue writs, 427. of certiorari, note, 428. of supersedeas, note, 428. other writs, note, 489. may administer oaths and punish for contempts, 435. contempt of, what is, note, 435. by witnesses, note, 435. by officers, note, 435. when new trial may be granted, 436. may issue writs of injunction, 429. temporary restraining orders, 429. cannot restrain state courts except, etc., 430. when laws of state are regarded as rules of decision for, 430. 886 • INDEX. COSTS. See Fees; Rules. when not recoverable if judgment is less than $500, 518. in internal revenue cases, 519. when claimant of propertj^ in seizure cases not entitled to, 519. double, when allowed, 519. in copj-right suits, 519. in patent right suits, 519. when paid by defendant in prosecutions, 520. when recoverabli! by defendant, 520. when limited, 520. of district attorneys, 521. before commissioner, 521. when attorney, etc., liable for, 521. how taxed, bill of, 521. sworn to, 521. in admiralty, security for, required, 581. on cross-bill, 590. by intervenor, 584. COURT OF CLAIMS, appeal from, to Supreme Court, heard upon the record, 291. what the record must contain, 291. must be prepared strictly in conformity to rule, 291. appeal can only be secured on application, and an order therefor, 291. appeals from, must be taken within ninety days, 292. where there is a diminution of record, 293. writ of certiorari may issue to compel a return of record, 293. findings of fact and conclusions of law by the Court of Claims, 293. sovereignties cannot be sued, a fundamental principle, 314. history of, note 4, 314. organization and sessions of, 318. seal of, 319. court room, etc., how provided, 319. sessions, when held, 320. quorum of, 320. officers of, 320. • salaries of clerks, bailiffs, etc., 320. clerk's bond, 320. clerk to disburse the contingent fund, 320. clerk to report to Congress, 320. pleading, practice and procedure in, 321. jurisdiction of claims founded on acts of Congress, 321. regulation of an executive department, 321. upon contract, 321. set-offs, counter-claims, etc., 321. claims of disbursing officers, 321. claims for captured property, 321. claims in Congress transmitted, 322. set-offs and counter-claims, how enforced, 322. decree for accounting officers, 322. procedure in cases transmitted from any head of a department, 322. judgments in such cases, how paid, 322. claims growing out of treaties, 324. not to be prosecuted by parties having suit in another court for the same, 324. in case of aliens, 324. limitation of suits on, 324. practice, rules of, 325. oaths and acknowledgments, 325. petition, what to set forth, 325, 359. ■when to be dismissed, 325. INDEX. 887 COURT OF CLAmS— continued. claims, burden of proof as to loyalty, 325, 366. commission to take testimony, 326, 368. power to call upon department for information, 326. when testimony not to be taken, 326. witnesses not to be excliided on account of color, 326, interested, excluded, 326. examination of claimant, 326, 371. testimony taken where deponent resides, 327, 372. witnesses, how compelled to attend, 327. cross-examination of, 327, 372. payment of judgments, 328, 376. interest on, 328, 377. interest on claims, 329. payment of judgment full discharge, 329, 378. final judgment a bar, 329, 378. Attorney-General to transmit petition in certain cases to departments, 329. practice ; appeals to Supreme Court, 330. time and manner of taking, 330, 379. assignment of, 330. on contracts of Secretaries of War, etc., 331. three judges to constitute a quorum, 331. costs of records, how paid, 331. claims on Chinese indemnity fund, 332. documents may be used, 332. of New Mexico mounted volunteers, 332. jurisdiction limited, 336. United States not liable for damages sustained by the bombardment of a town, 338. for damages for forcible possession of land, 339. arising from a collision, 339. no jurisdiction in equity, 339. immunity from suit an incident of sovereignty, 339. jurisdiction under revenue laws, 339. where suit is on contract, 340. or by au informer, 340. or by a manufacturer to recover commission on stamps, 340. jurisdiction of claims founded upon acts of Congress, 341. arising under a regulation of an executive department, 341. in case of a claim upon express contract, 341. in case of a claim upon implied contract, 341. instances of implied contracts, 341. where the court refused to entertain jurisdiction, 341. jurisdiction does not extend to suits against the United States for infringe- ments of patents, 344. in case of claims referred to it by Congress, 344. in case of set-offs and counter-claims, 344. must be pleaded, 345. of claims of disbursing officer, 346. of claims for proceeds of captured and abandoned property, 346. presumptions in such cases, 347. the claimant must always have been a loyal citizen, 348. of claim for property destroyed, etc., by the army or navy, 343. all private claims in Congress to be transmitted to, 350. judgments for set-offs and counter-claims, how enforced, 350. trial without jury, 351. decrees in favor of paymasters, etc., how enforced, 351. when head of department may cause claims to be transmitted to, 353. procedure in cases thus transmitted, 354. claims pending in other courts, 355. 888 INDEX. COURT OF CLAUIS— continued. aliens may prosecute in certain cases, 355. limitation of actions in, 356. when the time commences to run, 357. practice, may establish rules of, 358. parties to suit in, 360. suit based upon assigned chose in action, 361, pleading, practice and procedure in, 361. petition may be amended, 364. consolidation and intervention, practice, 365. when cause will be remanded for further proof, 366. burden of proof of loyalty, 366. when the petition will be dismissed, 366. aid and comfort to the rebellion, 367. effect of pardon and amnesty, 367. burden of proof, 368. acts of aid and comfort, 368. application for a commission, 369. mode of taking depositions, 369. witnesses may be re-examined, 369. objections to, when taken, 370. may call upon departments for information, 370. fees of commissioner and other expenses, 371. by whom paid, 327, 372. claims, when forfeited for fraud, 328, 373. decree in favor of claimant, 373. regulations prescribed by the Supreme Court relating to appeals from the Court of Claims, 379. application for allowance of, 379. within what time to be made, 379. findings of fact and conclusions of law filed, etc., 380. when a request is made to find facts, 381. report of commissioner of facts found, 382. remarks of an eminent American lawyer relating to the Court of Claims, 383. COUNSEL, to be assigned defendant indicted for treason or other capital crime, 417. CRIMES. See Criminal Cases. punishable with death, where tried, 437. begun in one district and completed in another, where triable, 439. committed on the high seas, where triable, 439. CRIMINAL CASES, practice in, 415. statutes relating to, 415. indictments, 415. offences against the elective franchise, 415. perjury before a court-martial, 415. charges joined in one indictment, 416. indictments, defects of form of, 416. several indictments against the same person, 416. copy of mittimus to be delivered to jailer, 416. writ for removal of prisoner from one district to another, 416. no writ necessary to bring into court a person in custody, 417. peremptory challenges, excess of, 417. where a prisoner stands mute, 417. copy of indictment, etc., to be delivered to the prisoner, 417. counsel to be assigned to defendant, 417. verdict for less offence than charged, 418. verdict against part of several defendants, 418. indictments remitted to and from circuit and district courts, 418. INDEX. 889 CRIMINAL CASES— continued. remission of cause from district to circuit court, 418. all capital cases to be remitted from the district to the circuit court, 419. capital case carried to the Supreme Court, 419. judgments for fines, how collected, 419. •what crimes are infamous, 419. not infamous, 420. consolidation of various offences, 420. defects of form in indictments, 421. when copy of indictment must be delivered to the defendant, 421. indictment for offences not capital, 422. when defendant may be found guilty of less offence than charged, 422. indictments remitted from circuit to district court, and vice versa, 422. remission from the district court in diflScult cases, 423. fine or penalty, how collected, 424. DEATH. See Practice. of parties, practice in case of, 515, 516. DEMURRER. See Practice and Procedure in Suits at Law ; Practice and Proced- ure in Equity ; Supreme Court. to bills, amendment after allowance, 197, 200. to plea, must have certificate of counsel, 198. argument on, 199. costs, when overruled, 200. setting down for argument, 200. DEPOSITIONS. See Commissioners. de bene esse, 402. notice of, 403. waiver of matters, 404. mode of taking, 404. transmission of, 405. reduced to writing, 405. certificate to, 405. conditions for the use of, 407. compelling witness to attend for, 407. oaths, etc., 408. DISTRICT COURTS. See Jurisdiction. constitution and organization of, 10, 19. judicial districts, 10, 19. records, where kept, 25. clerks of, 22-25. terms and sessions of, 37-53. regular sessions of, Alabama, 37. Arkansas, 37. California, 37. Connecticut, 37 Colorado, 37. Delaware, 38. Florida, 38. Georgia, 38. Illinois, 38. Indiana, 38. Iowa, 39. Kansas, 39. Kentucky, 39. Louisiana, 40. Maine, 40. Maryland, 40. 890 INDEX. DISTRICT COURTS— contimted. regular sessions of, Massachusetts, 40. Michigan, 40. Minnesota, 40. Jlississippi, 40. Missouri, 41. Nebraska, 41. Nevada, 41. New Hampshire, 41. • New Jersey, 41. New York, 41. North Carolina, 42. Ohio, 42. Oregon, 43. Pennsylvania, 43. Rhode Island, 43. South Carolina, 43. Tennessee, 43. Texas, 44. Vermont, 44. Virginia, 44. West Virginia, 45. Wisconsin, 45. changing time for holding, suits not affected by, 45. always open for certain purposes in Wisconsin, 45, 46. Florida, 46. Indiana, 46. adjournments for the trial of criminal cases, 46. in other cases in Kentucky, 46, 47. Indiana, 46, 47. special terms, 46. when circuit judges may act as district judges of, in Tennessee, 46. adjournment of, in case of non-attendance of a judge, 47. intermediate terms in California, Iowa and Tennessee, 47. business of, certified to circuit court in case of disability of judge, 47. duty of clerk in relation to suits brought after certificate of disability, power of judge of, rests in circuit judge in case of disability, 49. when a circuit judge or circuit justice may act in certain cases, 50, 51. jurisdiction of, 54-69. special and limited, 54. crimes and offences, 54. in case of piracy and of suits for penalties and forfeitures, 55. suits by the United States, 55. suits in equity to enforce internal revenue taxes, 56. admiralty and prize causes, 56. suits on debentures, 96. suits for damages against conspirators, 96. suits to recover offices, 97. suits to remove officers, 97. suits against national banks, 97. suits against consuls and vice-consuls, 97. general principles relating to admiralty, 57. jurisdiction of maritime liens, 58. liens created by contract, 59. suits by material men, 59. suits on bottomry bonds, 61, 62. suits for salvage, 62. petitory suits, 63. suits for mariners' wages, 64. suits for pilots' wages, 65. suits for torts, 66. INDEX. 891 DISTRICT COVUTS—eontimied. jurisdiction, suits for collisions, 67. suits by libel, 68. suits for assault and battery, 68. suits for injury to passengers, 69. jurisdiction in bankruptcy, 98. appeals from to circuit courts, 98. time of taking appeals to circuit court, 98. what must be certified by clerk on appeals, 99. what may be omitted, 99. appeals to Supreme Court, 100. in prize cases, 100. when taken, 100. when taken by both parties, 100. DISTRICT ATTORNEYS. See Fees. appointment of, 31. duty of, 31. to prosecute for crimes, 33. the recognized officer of the government, 33. fees and compensation of, in New York, 34, 35. in California, 35. term and oath of office, 36. to make semi-annual return of fees, etc., 465. not to retain to exceed $6000 a year, 465. compensation of, in southern district of New York, 466. in Oregon and Nevada, 466. in prosecutions under revenue laws, 466. allowance made for personal expenses, 468. must pay surplus of fees and emoluments at the time of semi-annual report, 468. Attorney-General must cause the returns to be carefully examined, 468. accounts of, must be certified by the district judge, 468. must render accounts with vouchers and the items thereof, 469. how paid, etc., 474. DIVISION OF OPINION. See Certificate of Division. review by the Supreme Court on certificate of, 252. court may affirm, reverse or modify, 252. in criminal cases, 253. the specific point must be stated, 253. only the points stated are properly before the court, 254, the question must be one of law, 254. certificate in criminal cases, 254. when the Supreme Court is divided on, 255. EQUITY. See Writs of Error and Appeal. appeals in, when allowed, 246. matter in dispute must exceed $5000, 246. from final decrees, 246. what decrees are not final, 247-249. time for appeal limited, 251. where want of jurisdiction is apparent, 251. right of appellant to dismiss, 252. when dismissed of course, 252. Court of Claims no jurisdiction in, 339. jurisdiction of United States courts cannot be sustained where there is an adequate remedy at law, 433. practice in, note, 433. suits in, when maintained, 433. what should be entered upon the final record in, 447. 892 INDEX. EVIDENCE. See Witnesses; Depositions. witnesses cannot be excluded on account of color, 475. laws of state generally rules of decision as to the competency of witnesses, 475. of witnesses before either house of Congress or any committee of either house, when not to be used against him in a criminal proceeding, 476. when the pleading of a party or a discovery obtained in a judicial procedure cannot be used against him, 47G. mode of proof in common law actions, 476. equity and admiralty, 47G. depositions de bene esse, 477. how taken, 478. transmission to court, 478. under dedimus potestatum, 478. in perpetuam rei memoriam, 479. subpcEnas for taking, 479. subpoenas duces tecum, 479. when witnesses required to attend, 480. depositions in District of Columbia to be used elsewhere, 481. notice in case or oral examination, note, 481. execution of commission, under Equity Rule 67, note, 481. commission, written interrogatories filed, 481. what the return should show, 481. depositions in District of Columbia taken without consent, 482. manner of taking, etc., 482. fees of witnesses, 482. letters rogatory from United States courts, 483. subpcenas to run into other districts, 483. witnesses on behalf of United States, 483. mode of determining distance of travel, note, 483. for indigent defendants in criminal cases, 484. recognizance of, in criminal cases, 484. may be required by district attorney, 484. copies of books and papers in any executive department, when evidence, 485. of documents, etc., in ofifice of Solicitor of the Treasury, 486. of papers, etc , executed by the Comptroller of the Currency, 486. certificate of the Comptroller of the Currency of organization of national bank, 486. transcript of books of the Treasury Department, 486. in case of embezzlement, 487. copies in return office of Department of Interior, 488. of Post Office records and Auditor's statements, 488. of records in General Land OflSce, 489. Patent Office, 489. of foreign letters patent, 489. of specifications and drawings by Commissioner of Patents, 489. of journals of Senate or House of Representatives, 490. of records in office of United States consuls, 490. of records transcribed into new books by clerks, in certain cases, 490, 491. in case of loss of original record, 491, 492. authentication of legislative and judicial proceedings, 493. states may prescribe, note, 494. seal required, note, 494. construction of the statute, note, 494. records, what may be, 495. clerk's certificate, note, 495. judge's certificate, note, 495. effect of, note, 496. in another state, note, 496. • INDEX. 893 EVIDENCE— con&Aavaan-ir^ < % &Aavaan#' ^^^ait v^lOSANCElfJVj. 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