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 SCHOOL OF LAW 
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 EQUITY PKACTICE 
 
 IN THE 
 
 miTED STiTES CIEUI! COURTS. 
 
 A COMPILATION" 
 
 OP THE 
 
 PROVISIONS GOVERNING THE SAME AS FOUND IN 
 
 THE STATUTES OF THE UNITED STATES, 
 
 RULES IN EQUITY AND DECISIONS 
 
 OF THE SUPREME COURT. 
 
 OLIVER P. SHIRAS, 
 
 District Judge for the Northerh 
 District of Iowa. 
 
 SECOND EDITION. 
 
 EEVISED AND ENLAEGED. 
 
 CHICAGO: 
 
 CALLAGE AN AND COMPANY. 
 
 1898.
 
 ^i 
 
 ^M, 0-'-^--rCtP!f- '?>'- 
 
 Entered aocording to Act of Congress, in the year 1889, by 
 
 CALLAGHAX AXD COMPANY, 
 In the oCaoe of the Librarian of Congress, at Washington. 
 
 Entered according to Act of Congress, in the year 1898, by 
 
 CAULAGHAN AND COMPANY, 
 In the offloe of the Librarian of Congress, at Washington. 
 
 r 
 
 STATE JOURNAL PRINTINO COMPANY, 
 
 Pkintkui and Htkrkottpers, 
 
 ■ADiaox, wu.
 
 The creation of the Circuit Courts of Appeal and 
 the radical change caused thereby in the matter of 
 appeals is the justification for the issuance of a sec- 
 ond edition of the following manual. 
 
 Though revised and somewhat enlarged, the pur- 
 pose of this, as of the first edition, is not to present a 
 treatise on equity jurisdiction and practice at large, 
 but only to bring together in compact form the pro- 
 visions found in the Eules in Equity, in the Statutes 
 of the United States and in the decisions of the Su- 
 preme Court, which define and limit Federal juris- 
 diction in equity and which prescribe and explain 
 the steps required to be taken in bringing, preparing 
 for hearing and submitting suits in equity, in taking 
 appeals therein, and in enforcing decrees by direct or 
 auxiliary process and proceedings. 
 
 Dubuque, Iowa, 1897. 
 
 QAQdi ^
 
 METHOD OF PROCEDURE 
 
 IN 
 
 EQUITY CAUSES 
 
 IN 
 
 THE UNITED STATES CIRCUir COURTS. 
 
 CHAPTEE I. 
 
 THE CIRCUIT COURT AS A COURT OF EQUITY — JU- 
 RISDICTION— RULE DAYS — MOTIONS AND ORDERS 
 GRANTABLE BY CLERK OR JUDGE. 
 
 I. With the exception of cases to which a state is 
 a part}'^, or which affect ambassadors, foreign min- 
 isters, their domestic servants, consuls or vice-consuls, 
 of which, by section 2, article 3, of the constitution 
 and section 687 of the Revised Statutes, original 
 jurisdiction is conferred upon the supreme court, 
 and of cases arising under the revenue, national 
 banking and bankrupt laws, and the few other 
 special matters enumerated in section 5G3 of the 
 Revised Statutes, in which jurisdiction, exclusive or 
 concurrent, is conferred upon the district courts, 
 the original jurisdiction of causes in equity, cogni- 
 zable in the courts of the United States, is vested in 
 the circuit courts. 
 
 Revised Statutes, section 629; 18 Statutes at Large, 470; 25 
 Statutes at Large, 433.
 
 ^ EQUITY PKACTICE. 
 
 II. The forms of process used and the modes of 
 procedure had in suits in equity in the courts of the 
 United States are according to the principles, rules 
 and usages obtaining in courts of equitable jurisdic- 
 tion, and especially in the high court of chancery in 
 England, subject to alteration or addition by stat- 
 ute or b}'' rules of courts duly adopted; power being 
 given to the supreme court to adopt from time to 
 time general rules for the regulation of the equity 
 practice in all the courts of the United States, under 
 which authority a series of rules have been promul- 
 gated, known as The Rules of Practice for the Courts 
 <f Jiquity of the United States. 
 
 Itc'vised Statutes, sections 913, 917. Rule 90. 
 ill. The circuit courts, as courts of equity, are 
 jihvuys open for the ])urpose of filing bills, answers 
 and oilier j)leadings, for the issuance of process and 
 for the niuUing all interlocutory motions, orders and 
 rules, and the directing such other proceedings as 
 may bo necessary to ])rciKiro causes for hearing 
 upon tiieir merits. 
 
 Kulf 1. 
 
 IV". Tiio first Monday of each month is a rule 
 <hiy, on which days the clerk is rc(]uired to be in 
 ulUMidance at his ollice for the purpose of receiving, 
 entering and dis|)osing of ail motions, rules, orders 
 and oilier proceedings graulable as a matter of 
 course. 
 
 Kulu 2. 
 
 V^ All iiiolions and a|)i)lications filed in the 
 clerk's ollice, for tlio issuing of siil»p(cnas for de-
 
 UNITED STATES CIRCUIT COURTS. 7 
 
 fendants, subpoenas for witnesses, for filing bills, 
 answers, exceptions, pleas, demurrers and other 
 pleadings; for making amendments to bills before 
 answer, plea or demurrer thereto; for making 
 amendments to answers before replication thereto; 
 for taking bills jpro confesso for want of entr}' of 
 appearance, or for want of a pleading; for filing 
 exceptions and all other proceedings which do not 
 require action by the court or judge thereon, are 
 deemed matters grantable of course. 
 
 Upon cause sliown, proceedings had as matter of 
 course may be altered, suspended or rescinded by a 
 judge of the court. 
 Rule 5. 
 
 YI. Either of the judges of the court may at any 
 time at chambers, or on the rule days at the clerk's 
 office, make and direct all such interlocutory orders, 
 rules and other proceedings as may be needed to 
 prepare causes for hearing upon their merits. 
 
 This rule is intended to apply to such proceedings 
 as are not grantable as a matter of course by the 
 clerk, but which require the action of the court or a 
 judge thereon. 
 
 In some instances the order, leave or rule may be 
 granted by the court or judge without notice to 
 the adversary party of such application. 
 
 In others, notice must be given. 
 
 Where the rules provide that notice shall be given 
 of an application for a certain order or other pro- 
 ceeding, such notice is essential, — and unless a differ- 
 ent time is assigned by a judge, the same will be for
 
 8 EQUITY PRACTICE. 
 
 hearing on the rule day next after that on which the 
 motion is made. 
 
 AVbere the rules provide that a court or judge 
 may grant a named order or leave, but is silent in 
 regard to notice, then the same may be granted 
 ■without notice other than the entry upon the order 
 book b}'^ the clerk, although the court or judge may, 
 at discretion, require notice to be given. 
 
 Application for orders, rules and other proceed- 
 ings may be made orally or in writing. 
 
 Generally, the better practice is to prepare the 
 application in writing and submit or send it to the 
 judge, asking him to indorse the required order or 
 leave thereon, or, if notice is required of the appli- 
 cation, to indorse thereon the time and place of hear- 
 ing the same, of which notice must be given to the 
 adversary jiarty or his solicitor. 
 
 Rule G. 
 
 Vir. It is the duty of the clerk to keep an order 
 book, in which is entereil, on the day they are made, 
 all motions, rules, orders and other proceedings made 
 and directed at chambers or on the rule days, and, 
 «xcept in cases where personal or other notice is 
 specially required or directed, the entry in suchorder 
 book is notice to the parties and their solicitors of 
 Kucli motion, order, rule or other proceeding. 
 
 Uulu 4.
 
 UNITED STATES CIRCCIT COURTS. »■ 
 
 CHAPTER II. 
 
 FEDERAL JURISDICTION IN EQUITY. 
 
 YIII. The jurisdiction of the circuit courts of the 
 United States, as courts of equity, is subject to two 
 general limitations, and before bringing suit therein 
 careful consideration should be given to the two 
 questions: is the case such, with respect to the rights 
 sought to be enforced or protected or with respect 
 to the remedy desired, that it comes within the rec- 
 ognized boundaries of jurisdiction in equity, as dis- 
 tinguished from jurisdiction at law, and if so, is the 
 case one which, by reason of the subject-matter or 
 by reason of the diverse citizenship or citizenship 
 and alienage of the adversary parties, comes within 
 federal cognizance as the same is created and defined 
 in the statutes of the United States. 
 
 A discussion or statement in detail of the grounds, 
 extent and limitations of jurisdiction in equity is not 
 within the scope of this manual, and therefore all 
 that will be said with respect thereto is that the 
 sources of federal equitable jurisdiction will be found 
 in the principles established by the high court of 
 chancery in England and recognized by the courts 
 of the United States as applicable to the existing 
 conditions in the United States,^ in the acts of con- 
 gress conferring jurisdiction in equity in special mat- 
 ters, and in the acts of state legislatures creating 
 new rights properly enforceable in equity, according
 
 10 EQUITY PKAOTICE. 
 
 to the rules goveruiug that practice in the federal 
 courts.^ 
 
 1 Robinson v. Campbell, 3 Wheat, 222; State of Pennsylvania 
 V. BriJge Co., 13 How., 518; Kirby v. Lake Shore, etc., R. R. Co., 
 120 U. S., 130; Mississippi Mills v. Cohn, 150 U. S., 202; Bardon 
 V. Land, etc., Co., 157 U. S., 327. 
 
 2 Clark V. Smith, 13 Peters, 195; Broderick's Will Case, 21 
 Wall., 503: Holland v. Challen, 110 U. S., 15; Reynolds v. Bank, 
 112 U. S., 405; Frost v. Spitley, 121 U. S., 552: Ridings v. John- 
 son, 128 U. S., 212; Cowley v. Northern Pacific R. R. Co., 159 
 U. S., 5G9. 
 
 IX. Ill section 723 of the Revised Statutes, re- 
 enacting section IG of the judiciary act of 1789, it is 
 provided that "suits in equity shall not be sustained 
 in either of the courts of the United States in any 
 case where a ])lain, adequate and complete remedy 
 may he had at hiw." Under the provisions of this 
 section and those of the seventh amendment to the 
 constitution dechiring that in suits at common law, 
 when tiio vahie in controversy exceeds $20, tlie right 
 of trial l)y jury .shall be preserved, it is held that to 
 .sustain the right to proceed in the circuit court as a 
 court of cfjuity, it must aj^pear in the given cause 
 that from tiio nature of the controversy, or of the 
 relief sought, a jilain, adequate and complete remedy 
 at law d(»('s not exist, accoi'ding to the remedies at 
 law in existence wh(>n the act of 1781) was adopted 
 or such ;is may have been since provided by act of 
 congrcs.s. 
 
 I)jiil<« V. Irwiii, '.' llosv., :{s;{; Parker v. Winnipisiogee Co., 2 
 nia<k. 515; Walson v. MiiUwrland. 5 Wall., 71; Barber v. Bar- 
 b«!r, 21 ]h)W.,W2; Thompson v. Iv'.iiln.ad Co., (5 Wall., 134; Hay-
 
 "UNITED STATES CIRCUIT COURTS. 11 
 
 ward V. Andrews, 106 U. S., 672; N. Y. Co. v, Memphis Water 
 Co., 107 U. S., 485; Litchfield v. Ballou, 114 U. S.. 190; Thomp- 
 son V. Allen Co., 115 U. S., 550; Buzard v, Houston, 119 U. S., 
 347; McConihay v. Wright, 121 U. S., 201; Whitehead v. Shat- 
 tuck, 1.38 U. S., 146; Waterman v. McKenzie, V^S U. S., 252; 
 Scott V. Neely, 140 U. S., 105; Lacassagne v. Chapuis, 144 U, S., 
 119. 
 
 X. If the case contains some one or more of the 
 recognized grounds of jurisdiction in equity, the 
 remedy at law, if one exists, to exclude jurisdiction 
 in equity must be as practical, as complete, as prompt 
 and as efficient, not only with respect to the imme- 
 diate action, but in obviating the need for further 
 litigation concerning the subject-matter of the con- 
 trovers}?", and in preventing irreparable or continu- 
 ing injury and damage. 
 
 Boyce's Executors v, Grundy, 3 Peters, 210; Parker v. Com- 
 pany, 2 Black, 545; Insurance Co. v. Bailey, 3 Peters, 210; Kil- 
 bourn v. Sunderland, 130 U. S., 505; Joy v. St. Louis, 138 U. S., 1; 
 Tyler v. Savage, 143 U. S., 79; D. M. Osborne & Co. v. Mo. Pa- 
 cific Ry. Co., 147 U. S., 248. 
 
 XL If the case is one within jurisdiction in equity, 
 then consideration must be given to the question 
 whether the controversy is such that a circuit court 
 of the United States can take jurisdiction over the 
 same, or, in other words, is the case one of federal 
 cognizance. 
 
 The jurisdiction of the courts of the United States 
 cannot be extended, by congressional action, beyond 
 the limitations fixed by the provisions of the consti- 
 tution, as contained in articles III and XI thereof, 
 and the jurisdiction of the circuit courts, being courts
 
 12 EQUITY PKACTICE. 
 
 not named ia the constitution, but created by act of 
 congress, is such and such only as is expressly con- 
 ferred thereb}^ 
 
 Under the provisions of the constitution, congress 
 can confer upon the circuit courts jurisdiction over 
 all cases arising under the constitution, kiws or 
 treaties of the United States, over controversies to 
 which the United States is a party, or which are be- 
 tween citizens of different states, or between citizens 
 of the same state claimino; lands under grants from 
 different states, or between a citizen of a state of the 
 Union and foreign states, citizens or subjects. 
 
 The circuit courts were created b}'" the original 
 jiuliciary act of 17S0 and its provisions, with the 
 amendments thereto, re-enacted in 1873, as title XIII 
 of the llevised Statutes, and the amendatory acts of 
 1875 and 188S contain the provisions now in force, 
 creating and delining the general jurisdiction of the 
 circuit courts. 
 
 XII, As the terms of the act of 1888, as well as 
 those in the preccdnig acts of which it is amend- 
 atory, with I'espect to the jurisdiction of the circuit 
 courts, are limited to those cases Avherein jurisdic- 
 tion exists concurrently in the federal and state 
 i'ourts, its provisions in this respect are not applica- 
 ble to cases over which (ho federal jurisdiction is ex- 
 <'lusiv(\ and touching which there are special grants 
 of jurisdiction to be found in the statutes of the 
 (hiit/cd States, such as cases arising under any act 
 for providing for revenue from inipoits' (;r tonnage^
 
 UNITED STATES CIECUIT CODKTS. 13 
 
 or from internal taxes,' or arising under the acts au- 
 thorizing the issuance of patents and forbidding the 
 infringement thereof,^ or under the acts reguhiting 
 copyrights,^ or under the provisions of the national 
 bank act for the purpose of winding up the affairs 
 of a national bank,* or under the interstate com- 
 merce acts,^ or under the acts prohibiting trusts in 
 matters connected with interstate and foreign com- 
 merce,** or under the act providing for a review of 
 the decisions of the board of general appraisers upon 
 the rate and amount of duties upon imported mer- 
 chandise,'^ or under the act providing for the con- 
 demnation of land for national use,^ or under the act 
 to prevent unlawful occupancy of public lands," or 
 under the act regulating immigration and alien con- 
 tract labor,'** or under the act providing for suits in 
 certain cases against the United States.'' 
 
 1 Revised Statutes, section 629. 
 
 ^ Revised Statutes, 945, section 692; 29 Statutes at Large, 
 692, 695. 
 
 3 Revised Statutes, 957; 28 Statutes at Large, 965; 29 Stat- 
 utes at Large, 694. 
 
 * Revised Statutes, 1012. 
 
 5 24 Statutes at Large, 380; 25 Statutes at Large, 855. 
 
 e 26 Statutes at Large, 209. 
 
 7 26 Statutes at Large, 131. 
 
 8 25 Statutes at Large, 357. 
 
 9 23 Statutes at Large, 321. 
 W26 Statutes at Large, 1084. 
 11 24 Statutes at Large, 505. 
 
 XIII. It thus appears that jurisdiction is con- 
 ferred on the circuit courts by two classes of stat- 
 utes: the one including the^various acts of congress
 
 14: EQUITY rRACTICE. 
 
 which deal with special subjects and confer jurisdic- 
 tion in connection therewith, either exclusive or con- 
 current with the state courts, and the other includ- 
 ing the general statutes which, after creating the 
 circuit courts, define, extend or limit the jurisdiction 
 thereof, and which provide the methods for invoking 
 the federal jurisdiction, either by original proceed- 
 ings or by removal from the state courts, and are 
 known as the judiciary acts; such as the acts of 
 September 24, 1789,i of July 27, 1866,^ of March 2, 
 1867,3 of March 3, 1875,* of March 3, 1887/ and of 
 August 13, 1888.6 
 
 1 1 Statutes at Large, 73. 
 2 14 Statutes at Large, 306. 
 3 14 Statutes at Large, 558. 
 * 18 Statutes at Large, 470. 
 5 24 Statutes at Large, 553. 
 fi 25 Statutes at Large, 443. 
 
 XIV. The acts of 1866 and 1867, which dealt only 
 with the subject of the removal of cases brought in 
 state courts, have been superseded or repealed by 
 the later acts, and the act of 1887 is merged in the 
 amendatory act of 1888, so that the act of 1789, with 
 the amendments thereto, re-enacted as title XIII of 
 the lievised Statutes, and the acts of 1875 and 1888, 
 arc tiio ones now in force, in whole or in part, and to 
 which rererenco is to be made in determining the 
 extent of foiloral jurisdiction, in addition to that 
 created by acts of congress dealing with special sub- 
 jects. 
 
 Un(h;r tlio provisions of the judiciary acts now
 
 UNITED STATES CIKCUIT COURTS. 15 
 
 ill force, jurisdiction is conferred in two general 
 classes of cases, in one of which jurisdiction de- 
 j3cnds upon the citizenship or alienage of the parties, 
 and which includes controversies of a civil nature 
 wherein the matter in dispute exceeds the sum or 
 value of $2,000, exclusive of interest and costs, and 
 which are between citizens of different states or be- 
 tween a citizen of a state of the Union and foreign 
 states, citizens or subjects, to which class may bo 
 added suits wherein the United States is plaintiff, 
 of which jurisdiction exists without reference to 
 the amount involved in the controversy.* In the 
 second class are included all suits of a civil nature 
 wherein the amount in controversy exceeds in sum 
 or value the sum of $2,000, exclusive of interest and 
 costs, and arising under the constitution, laws or 
 treaties of the United States, and cases, without ref- 
 erence to the amount or value Involved, wherein 
 citizens of the same state claims lands under grants 
 from different states. 
 
 United States v. Say ward, 160 U. S., 493. 
 
 XY. Under the first of these classes, jurisdiction 
 does not exist when the adversary parties are both 
 aliens,* or where the party plaintiff or defendant is 
 not a citizen of a state, but is a citizen of a territory 
 or of the District of Columbia,^ or in cases wherein 
 the plaintiff is a state.^ 
 
 iMossraan v. Higginson, 4 Dall., 12; Jackson v. Twenty- 
 man, 2 Peters, 136; Breedlove v. Nicolet, 7 Ptters, 413. 
 
 2 Hepburn v. EUery, 2 Cranch, 445; New Orleans v. Winter,
 
 16 EQUITY PRACTICE. 
 
 I Wheat., 91; Barney v. Baltimore, 6 Wall., 280; Cameron v. 
 Hodges, 127 U. S.. 322. 
 
 3 Stone V. South Carolina, 117 U. S., 430; Upshur Co. v. 
 Rich, 135 U. S., 467. 
 
 XVI. In cases Avherein the suit is properly brought 
 in the name of one who acts in a representative ca- 
 pacity, such as an executor, administrator, trustee 
 or the like, it is the citizenship of the representative 
 party that decides the question of jurisdiction and 
 not that of the beneficiaries; and if the jurisdiction 
 in a given case properly attaches when the suit is 
 brought, subsequent changes in the parties thereto, 
 as by substituting an executor or administrator for 
 a deceased party or a trustee, receiver, assignee or 
 other successor or representative for an original 
 party in interest, will not affect or defeat the juris- 
 diction already acquired. 
 
 Childress v. Emory, 8 Wheat, 642; Coal Co. v. Blatchford, 
 
 II Wall., 172; Rice v. Houston, 13 Wall, 66. 
 
 XVII. In determining whether a case is within 
 federal jurisdiction by reason of the diverse citizen- 
 ship of the adversary parties, the court may disre- 
 gard merely formal parties; that is, parties having 
 no interest in the controversy and against whom no 
 relief is sought or is grantable under the pleadings. 
 
 Wood V. Davis, 18 How., 467; Walden v. Skinner, 101 U. S., 
 G77: J {aeon v. Rives, 106 U. S., UO. 
 
 XVJII. Jn tlie second class of cases, in which ju- 
 ri.sdiction is confen-cd upon tlu^ circuit courts by the 
 general provisions ol' tiic judiciary acts, are included
 
 UNITED STATES CIRCUIT COURTS. 17 
 
 cases wherein citizens of the same state claim lands 
 under grants from different states, and in which ju- 
 risdiction exists without reference to the amount or 
 value involved therein, and cases arising under the 
 constitution, laws and treaties of the United States, 
 w^herein the matter in dispute exceeds in value the 
 sum of $2,000, exclusive of interest and costs. 
 
 United States v. Say ward, IGO U. S., 493. 
 
 XIX. The jurisdiction included within the phrase — 
 cases arising under the constitution, laws and treaties 
 of the United States — is also divisible into two gen- 
 eral classes; the one, which may be designated as 
 jurisdiction direct or primar}^, includes cases wherein 
 the cause of action springs directly from, or is based 
 immediately upon, some provision of the federal 
 constitution, laws or treaties, and the other, which 
 may be designated as jurisdiction derivative or sec- 
 ondaiy, includes cases wherein the cause of action 
 is not directly based upon any provision of the con- 
 stitution, laws or treaties of the United States, but 
 may be based upon a statute of a state or arise out 
 of the principles of the common law or of equity, 
 but wherein the right to maintain suit in a federal 
 court is derived from the fact that the participants 
 in the transaction giving rise to the cause of action, 
 whether persons or corporations, acted under some 
 right, power, duty or franchise created or conferred 
 by the federal constitution, laws or treaties. 
 
 Thus it is held that causes of action arising out
 
 18 EQUITY PKACTICE. 
 
 of the acts of officers or agents of the United States 
 in connection with the performance of their duties 
 are based upon the laws of the United States, be- 
 cause those laws are the sources of their authority.' 
 So, also, it is held that causes of action based upon 
 acts of corporations created under the laws of the 
 United States arise under those laws, because to 
 them the corporations owe their existence and their 
 right and ability to act.^ 
 
 1 Mayer v. Cooper, 6 Wall,, 247; Feibelman v, Packard, 109 
 U. S., 421; Baehrack v. Norton, 132 U. S., 337; Bock v. Perkins. 
 139 U. S., 628. 
 
 2 0sbornv. United States Bank, 9 Wheat., 738; Pacific Rail- 
 road Removal Cases, 115 U. S., 1; Ryder v. Holt, 128 U. S., 525; 
 Southern Kansas Ry. Co. v. Briscoe, 144 U. S., 133. 
 
 XX. In cases wherein federal jurisdiction is based 
 upon the fact that the controversy arises under the 
 constitution, laws or treaties of the United Statei, 
 it is not necessary that diverse citizenship should 
 exist between the adversary parties, but the circuit 
 court may entertain jurisdiction in such suits be- 
 tween citizens of the same state, or between aliens 
 or between a state and aliens, or citizens of the same 
 or other states, provided the controversy involves 
 the requisite amount. 
 
 Cohen v. Virginia, 6 Wlieat.,264; Ames v. Kansas, 111 U. S., 
 449. 
 
 XXI. Jurisdiction over suits in equity may be 
 conferred upon tlie circuit courts by the removal 
 thereof from the couits of the several states. The 
 j)rovlsions of the statute authorizing removals are
 
 UNITED STATP]S CIRCUIT COURTS. 19 
 
 to be found in the second and third sections of the. 
 act of 1888. "When a case is removed into a federul 
 court, under the provisions of the act, if it be one 
 which properly belongs in equity, the court witl 
 order it to be entered on the equity docket, and will 
 cause the pleadings to be reformed if necessary, in 
 order to conform the same to the requirements of 
 the equity practice, and the case will thenceforth be 
 governed by the rules that would be applicable in 
 case the suit had been commenced in the federal 
 court by original process.
 
 20 EQUITY PEACTICE. 
 
 CHAPTER III. 
 
 PLACE OF BRINGING SUIT — DISTRICT — DIVISION. 
 
 XXII. If upon due consideration it appears that 
 the case is one wherein the jurisdiction of a circuit 
 court of the United States, sitting as a court in 
 equity, can be rightfully invoked, then consideration 
 must be given to the question of the federal judicial 
 district within which the suit can be properly insti- 
 tuted and maintained. 
 
 The original judiciary act of 1789 provided that 
 no civil suit shall be brought against an inhabitant 
 of the United States, by any original process, in any 
 other district than that whereof he is an inhabitant, 
 or in which he shall be found at the time of serving 
 the writ. 
 
 The judiciary act of 1875 enacted that no civil 
 suit shall be brought 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 commencing such proceeding, except in cases 
 enumerated in the eighth section of the act, being 
 those brought to enforce a legal or equitable lien 
 ii|>()n, or claim to, or to I'cmove any incumbrance 
 or lien or cloud upon the title to real or personal 
 ]»roporty, whei'cin the suit may be brought in the 
 district wherein the property is situated. 
 
 Tlie judiciary act of ISSS amends the first section
 
 UNITED STATES CIRCUIT COURTS. 21 
 
 of the act of 1875 by enacting that, in cases wherein 
 the federal and state courts have concurrent juris- 
 diction, no civil action shall be brought in a circuit 
 court of the United States against any person by 
 any original process or proceeding in any other dis- 
 trict than that whereof he is an inhabitant, except 
 where the jurisdiction is founded only on the fact 
 that the action is between citizens of difi'erent states, 
 in which cases the suit may be brought in the district 
 of the residence of either plaintiff or defendant. 
 
 The act of 1888 expressly declares that its provis- 
 ions are not applicable to section 8 of the act of 
 1875, and the jurisdiction therein created remains 
 unaffected. 
 
 In United States v. Mooney, 116 U. S., 104, it was 
 held by the supreme court that the act of 1875 was 
 not intended to interfere with prior statutes confer- 
 ring jurisdiction upon the circuit and district courts 
 in special cases and over particular subjects, and 
 the same construction was placed on the act of 1888 
 in the case of In re Louisville Underwriters, 134 
 U. S., 488. 
 
 In the case of In re Hohorst, 150 U. S., 653, it 
 was decided that the clause of the act of 1888 lim- 
 iting the right to bring suits to the district whereof 
 the defendant is an inhabitant, or to the districts 
 wherein the plaintiff or defendant reside in case the 
 federal jurisdiction is based solely upon the diverse 
 citizenship of the adversary parties, applies only to 
 so much of the jurisdiction of the circuit courts of
 
 22 EQUITY PRACTICE. 
 
 the United States as is concurrent with the jurisdic- 
 tion of the state courts, and does not apply to cases 
 wherein the federal jurisdiction is exclusive or 
 wherein the controversy is between citizens of a 
 state and foreign states, citizens or subjects. 
 
 XXIII. From the construction thus given to the 
 several statutes regulating this subject, the rules 
 governing the district within which suits may be 
 brought, briefly stated, are as follows : 
 
 In cases which, from the subject-matter and the 
 relief sought W'ith regard thereto, are local in their 
 nature, the suit must be brought in the district 
 wherein the property sought to be reached or af- 
 fected is situated, and this rule is applicable to the 
 class of cases named in the eighth section of the ju- 
 diciary act of 1875, being those brought to enforce 
 a legal or equitable lien upon, or claim to, or to re- 
 move any incumbrance or lien or cloud upon the title 
 to real or personal property. 
 
 Massie v. Watts, 6 Cranch, 148; McKenna v. Fisk, 1 How., 
 210; Northern Indiana R. R. Co. v. Michigan Central R. R. Co., 
 15 How., 232; Casey v. Adams, 102 U. S., 66. 
 
 In cases wherein the special statute of the United 
 States creating a right and })rescribing a remedy 
 or conferring tlie jurisdiction over the subject-matter 
 also enacts that suit must be brouglit in a named 
 court or district, the ])lacc of bringing suit will be 
 that delined in the particular statute. 
 
 In cases wherein the phiintiir is a citizen of a state 
 of the Union and the defomlaiit is a foreign state,
 
 UNITED STATES CIKOUIT COURTS. 23 
 
 citizen or subject, suit may be brought in any dis- 
 trict wherein the defendant may be found for pur- 
 poses of service of process. 
 In re Holiorst, 150 U. S., 653. 
 
 In cases wherein the controversy is between cit- 
 izens of different states and the federal jurisdiction 
 is based solely on the diverse citizenship of the ad- 
 versary parties, suit may be brought in the district 
 wherein either the plaintiff or defendant resides. 
 
 McCormick Co. v. Walthers, 134 U. S., 41; Shaw v. Quincy 
 Mining Co., 145 U. S., 444. 
 
 In cases wherein a foreign state, citizen or subject 
 sues a citizen of a state of the Union, the suit must 
 be brought in the district wherein the defendant re- 
 sides; and the same rule applies in cases wherein the 
 federal jurisdiction is based upon the fact that the 
 controversy arises under the constitution, laws or 
 treaties of the United States, except where the stat- 
 ute of the United States creating the right of action 
 or providing a remedy specially defines the court 
 or district wherein the remedy by action must be 
 brought. 
 
 "Where the controversy is between citizens of the 
 same state claiming land under grants from differ- 
 ent states, suit must be brought in the district 
 wherein the defendant resides, unless the proceeding 
 is practically in rem and therefore local in its nat- 
 ure, in which case the suit must be in the district 
 wherein the realty is situated.
 
 24: EQUITY PRACTICE. 
 
 In cases brought for the infrincjement of letters 
 patent under the provisions of the act of March 3, 
 1897, suit may be brought in the district of which 
 the defendant is an inhabitant, or in any district in 
 which the defendant, whether a person, partnership 
 or corporation, shall have committed acts of in- 
 fringement, and have a regular and established place 
 of business. 
 
 29 Statutes at Large, 695. 
 
 XXIY. A corporation created under the laws of 
 a state of the Union is held to reside only in the 
 state under whose laws it is created,* and in case 
 there are two or more districts in the state, to be a 
 resident of the district in the state wherein its prin- 
 cipal place of business is located.'^ By engaging in 
 business in other states it does not acquire a resi- 
 dence therein or become an inhabitant thereof. 
 
 IBank of Augusta v. Earle, 13 Peters, 519; Lafayette Gas 
 Co. V. French, 18 How., 404; Shaw v. Quincy Mining Co., 145 
 U. S., 444; Soutliorn Pacific Co. v. Denton, 146 U. S., 203. 
 
 2 Galveston, etc., Ry. Co. v. Gonzales, 151 U. S., 496. 
 
 XXY. A corporation created under the laws of a 
 foreiirn countrv cannot become an inhabitant or resi- 
 dent of a state of the Union, but it may be sued in 
 anv district wherein valid service of process can bo 
 had. 
 
 In re Iloiiorst, 150 U. S., 053; Galveston, etc., Ry. Co. v. Gon- 
 zales, 151 U. S.. 496. 
 
 XXVI. The liglit to insist that a suit which is 
 within federal jurisdiction in ecpiity must be brought
 
 UNITED STATES CIRCUIT COUBTS. 25 
 
 within a particular district is a privilege personal 
 to the defendant, which he may Avaive at his pleas- 
 ure, and by appearing generally, or by pleading to 
 the merits, either by motion, demurrer, plea or an- 
 swer, he will be deemed to have waived the right to 
 insist that suit has been brought in the wrong dis- 
 trict, 
 
 St. Louis, etc., Ry. Co. v. McBride, 141 U. S., 127; Texas & 
 Pacific Ry. Co. v. Cox, 145 U. S., 593; Southern Pacific Ry. Co. 
 V. Denton, 146 U. S., 202; Trust Co. v. McGeorge, 151 U. S., 129; 
 Interior Construction Co. v. Gibney, 160 U. S., 217. 
 
 XXYII. So far the question of the place of bring- 
 ing suit has been considered with relation to cases 
 wherein there is but one party plaintiff and one 
 party defendant, or, if more than one, wherein all 
 the parties on one side are citizens and residents of 
 the one state and district, and the parties of the 
 other side are citizens and residents of another state 
 and district. 
 
 Cases arise, however, in which the essential par- 
 ties on one side or the other are not citizens or resi- 
 dents of the same state and district, although of di- 
 verse citizenship from the adversar}'^ parties. 
 
 The rule in such cases is that where the federal 
 jurisdiction is based upon the diverse citizenship of 
 the adversary parties, and the place of bringing suit 
 is limited to the districts wherein one or the other 
 part}^ reside, the words "plaintiflf " and "defendant" 
 are used in a collective sense and include all persons 
 interested on that side of the controversy. If, there-
 
 26 EQUITY PKACTICE. 
 
 fore, it is sought to bring suit against more than one 
 defendant, and to base the right to maintain the ac- 
 tion in a given district upon the ground of the resi- 
 dence of the party defendant, all of the defendants 
 must reside in the district wherein suit is brought. 
 
 So, also, if it is proposed to bring suit on behalf 
 of several plaintiffs and to base the right to main- 
 tain the action in a given district upon the ground 
 of the residence of the party plaintiff, all the plaint- 
 iffs must be residents of the district wherein suit is 
 brought. 
 
 Several parties plaintiff, residing in different states 
 or districts, may unite in a suit against a single de- 
 fendant or several defendants residing in the same 
 district, if the suit be brought in the district wherein 
 the defendant or defendants reside. 
 
 A single plaintiff or several parties plaintiff re- 
 siding in the same district may bring suit in the dis- 
 trict wherein he or they reside against one or any 
 number of defendants residing in other states. 
 
 Strawbiidf^e v. Curtiss, 3 Cranch, 267; Peninsular Iron Co. 
 •V. Stone, 121 U. S., 631; Smith v. Lyon, 133 U. S., 315. 
 
 XXYIIL In cases wherein federal jurisdiction is 
 not based u})on tlie diverse citizenship of the adver- 
 sary jiarties, and in which cases there are two or 
 more defendants residing in din'crent districts of the 
 same state, suit may bo brought in cither district 
 wherein a defendant resides against all the defend- 
 ants residing in the state, and (hiplicate writs may 
 be issued and served u})on the defendants residing in
 
 UNITED STATES CIRCUIT COURTS, 27 
 
 the other districts.^ And in suits of a local nature, 
 wherein the defendant or one or more of the defend- 
 ants resides in a different district in the same state 
 from that in which the suit is brought, a writ may 
 be issued and be served upon the defendant or de- 
 fendants in the districts wherein he or they reside.^ 
 In suits of a local nature, wherein the land or sub- 
 ject matter lies partly in two or more districts in the 
 same state, suit may be brought in either district, 
 and the court has jurisdiction to decide the contro- 
 versy fully,, and to issue and execute process the 
 same as though the property were wholly in one 
 district.^ 
 
 J Revised Statutes, section 740. 
 
 2 Revised Statutes, section 741. 
 
 3 Revised Statutes, section 743. 
 
 XXIX. To obviate the difficulties that would en- 
 sue under the foregoing rules, in cases wherein there 
 are several parties in interest who are not residents 
 of the same state, it is enacted in section 737 of the 
 Kevised Statutes that where there are several de- 
 fendants and one or more of them are neither inhab- 
 itants of nor found within the district in which the 
 suit is brought, and do not voluntarily appear, the 
 court may entertain jurisdiction and proceed to trial 
 and adjudication of the suit between the parties who 
 are properly before it, but the judgment or decree 
 rendered therein shall not conclude or prejudice 
 other parties not regularly served with process nor 
 voluntarily appearing to answer; and the non-join- 
 
 N
 
 28 EQUITY PRACTICE. 
 
 der of parties who are not inhabitants of nor found 
 within the district shall not constitute matter of 
 abatement or objection to the suit; and in equity 
 rule 47 it is provided that in all cases where it shall 
 appear that persons, who might otherwise be deemed 
 necessary or proper parties to the suit, cannot be 
 made parties thereto by reason of being out of the 
 jurisdiction of the court, or because their joinder 
 would oust the jurisdiction of the court as to the 
 parties before the court, or if for any reason they 
 cannot be made parties, the court may in its discre- 
 tion proceed in the cause without making such per- 
 sons parties, the decree being without prejudice to 
 their rights.^ 
 
 In construing this section of the statutes and the 
 equity rule, it is held by the supreme court that the 
 provisions thereof do not enable a court to dispense 
 with the presence of parties whose interests are so 
 connected with the subject of the controversy that 
 a decree cannot be .entered without affecting their 
 interests, or leaving the controversy in such a con- 
 dition that its termination, by any decree that might 
 be entered, would be inconsistent with equity and 
 good conscience.- 
 
 1 Williams V. United States, 138 U. S., 514. 
 
 -'Sliields V. Barrow, 17 How., 129; Barney v. Baltimore City, 
 () Wall., 2«4; Ribon v. Railroad Companie.s, IG Wall., 440; Ken- 
 dig V. Dean, 07 U. S., 425; Gregory v. Stetson, 133 U. S., 579. 
 
 XX X. Ill some districts, divisions therein are cre- 
 ated by act of congress, and the statute defines the 
 division whoroin suit sIkjuUI bo brougiit, the general
 
 UNITED STATES CIRCUIT COURTS. 29 
 
 rule being to require that suits not local in character 
 must be brought in the division wherein the defend- 
 ant resides, or, if there are several defendants resid- 
 ing in different divisions, then suit may be brought 
 in any division wherein a defendant resides, and in 
 suits of a local character the same must be brought 
 in the division wherein the property or some part 
 of it is situated. 
 
 To ascertain the rule, in this particular, obtaining 
 in a given district, reference must be made to the 
 act of congress creating the divisions in that district.
 
 30 ' EQUITY PKACTICE. 
 
 CHAPTEE lY. 
 
 MODE OF BRINGING SUIT — FORM OF BILL — JURIS- 
 DICTIONAL AVERMENTS. 
 
 XXXI. The initial step in bringing a suit in equity 
 is the preparation and filing of the bill, the intro- 
 ductory part of which should be substantially in the 
 following form: 
 
 In the Circuit Court of the United States in and for the 
 
 District of , 
 
 Term, 18—. 
 
 A. B. ) 
 
 V. [ Equity. 
 
 C. D. and E. F. ) 
 
 To tlie Judges of the Circuit Court of the United States for 
 
 the District of . 
 
 A. B., a citizen of the state of , residing in county 
 
 in said state, brings tliis his bill against C. D., a citizen of the 
 
 state of , residing in county in said state, and E. F., 
 
 a citizen of the state of , residing in county in said 
 
 state. And thereupon this complainant avers and says, etc. 
 
 XXXII. From the fact that the courts of the 
 United States are of limited jurisdiction, it follows 
 that the existence of jurisdiction should be made 
 plain upon the face of the record in each case. 
 
 Therefore whether jurisdiction in the federal court 
 over a given cause is claimed to exist by reason of 
 the diverse citizenship, or alienage and citizenship, 
 ol" the adversary parties, or b}" reason of the subject- 
 matter of the controversy, the facts relied on as 
 .showing the existence of the federal jurisdiction in 
 equity in the court and district wherein the suit is
 
 UNITED STATES CIRCUIT COURTS. 31 
 
 brought should be made clear upon the face of the 
 bill, or the same will be demurrable, or may be dis- 
 missed by the court of its own motion. 
 
 Hornthal v. Collector, 9 Wall., 560; Godfrey v. Terry, 9T 
 U. S.. 171: Mansfield R. R. Co. v. Swan, 111 U. S., 379; Han- 
 cock V. Holbrook, 112 U. S., 229; Insurance Co. v. Rhoads, 119 
 U. S., 237; Everhart v. Huntsville College, 120 U. S., 223; Cam- 
 eron V. Hodges, 127 U. S., 322; Stevens v. Nichols. 130 U. S., 
 230; Tyler v. Savage, 143 U. S., 79; Hanford v. Da vies, 163 
 U. S., 273. 
 
 XXXIII. In cases wherein suit may be brought 
 only in the district wherein the defendant resides, or 
 wherein suit may be brought in the district wherein 
 either plaintiff or defendant resides, and the suit is 
 instituted in a state wherein there are two or more 
 federal districts, it is not sufficient to aver solely 
 that the party is a citizen of the state, but in addi- 
 tion thereto the averment must show that the party 
 resides in the district wherein suit is brought, which 
 may be done by averring that the party resides 
 within the district, naming it, or by averring the 
 place of his residence to be within a named county, 
 and the court will take judicial knowledge of the 
 fact that the named county forms part of the dis- 
 trict. 
 
 XXXIV. A corporation cannot be or become a 
 citizen of a state ;^ and for jurisdictional purposes a 
 suit by or against a corporation is deemed to be 
 a suit in favor of, or against, the stockholders therein, 
 "who are conclusively held to be citizens of the state 
 under whose laws the corporation is created.^
 
 32 EQUITY PRACTICE. 
 
 AVhen, therefore, a corporation is a part}"", it is 
 not sufficient to simply aver that the corporation is 
 a citizen of a named state, but the corporate name 
 should be set forth, followed by the averment that 
 the same "is a corporation created under the laws 
 
 of the state of , and having its principal place 
 
 of business at ."^ 
 
 1 Paul V. Virginia, 8 Wall., 168; Ducat v. Chicago, 10 Wall., 
 410. 
 
 2 I.ouisville R. R. Co. v. Letson, 2 How., 497; Muller v. Dovvs, 
 M U. S., 444. 
 
 3 Lafayette Ins. Co. v. French, 18 How., 404; Railroad Co. 
 V. Harris, 12 Wall., 65; Ex parte Schollenberger. 96 U. S., 369; 
 Pennsylvania Co. v. Railroad Co., 118 U. S., 290; Goodlet v. 
 Railroad Co., 122 U. S., 391. 
 
 XXXY. In cases wherein a copartnership or as- 
 sociation other than a corporation is a party, the 
 names of the individuals composing the same must 
 be set forth, with the proper averment of their citi- 
 zenship, as it is not permissible to declare in favor 
 of or against a copartnership or association in the 
 firm name,^ and the given names of the parties in 
 all cases should be used instead of the initial only.^ 
 
 Residence and citizenship are not synonymous 
 terms, and, to show jurisdiction, the averment must 
 be that of citizenship.' 
 
 1 The Protector, 11 Wall., 82; Moore v. Simonds, 100 U. S., 
 145; Chapman v. Barney, 129 U. S., 677. 
 
 ^ Monroe Cattle Co. v. Becker, 147 U. S., 47. 
 
 3 Parker v. Overman, 18 How., 137; Robertson v. Case, 97 
 U. S., 046; Grace v. American Central Ins. Co., 109 U. S., 378; 
 Anderson v. Watt, 138 U. S., 094; Finmour v. Elyton Land Co., 
 1.39 U. S., 398; Southern PaciHc R. R. Co. v. Denton, 140 U, S., 
 202; Wolfe v. Insiniuu;e C(j., 148 U. S., 389.
 
 UNITED STATES CIRCUIT COURTS. 33 
 
 XXXVI. The facts constituting the cause of action 
 should be set forth concisely, yet clearly, avoiding 
 all unnecessary recitals of deeds, documents, con- 
 tracts, or other instruments in hcBC verha, or of mat- 
 ters of mere evidence. 
 
 It is not necessary to include a clause averring a 
 confederacy between the defendants to injure or de- 
 fraud the complainant, unless such confederation 
 constitutes, in the particular case, one of the grounds 
 relied upon by complainant for the relief sought; 
 nor a clause setting forth the matters or excuses 
 which the defendant is supposed to rely upon by 
 way of defense; but the complainant may, when 
 desirable, state in his bill any matter which he may 
 suppose the defendant will rely upon, and avoid the 
 effect thereof by making proper counter averments 
 thereto; nor a clause averring that the acts com- 
 plained of are contrary to equity, and that complain- 
 ant is remediless at law. 
 
 If the facts averred in setting forth the cause of 
 action show a case of equitable cognizance, then a 
 formal averment that the party is without remedy 
 at law is merely surplusage; whereas if the facts 
 averred do not show that the party has no ade- 
 quate and complete remedy at law, then a formal 
 averment to that end is ineffectual to show the fact, 
 being the averment of a mere conclusion of law. 
 
 Rule 31. 
 
 XXXVII. If any persons, other than those named 
 in the bill as defendants, should appear to be neces- 
 
 3
 
 34 EQUITY PEACTICE. 
 
 sary or proper parties, the reason why they are not 
 made parties should be averred; as, for instauce, 
 that they are without the jurisdiction of the court, 
 or cannot be joined without ousting the jurisdiction 
 as to the other parties. 
 
 If desired, the bill may contain a prayer that if 
 the absent parties should come within the jurisdic- 
 tion, process may issue to bring them into the suit. 
 
 Rule 22. 
 
 XXXVIII. If a preliminary injunction, writ of 
 ne exeat or other special process Or order pending 
 the suit is sought for, the reasons or grounds upon 
 which the same is asked should be set forth, with a 
 special prayer for the issuance of such process. 
 
 Rule 21. 
 
 XXXIX. The bill must also contain a prayer for 
 the issuance of the process by subpoBna, in which 
 prayer must be included the names of all the defend- 
 ants named as such in the introductory part of the 
 h\\\} 
 
 If any of the defendants are minors, or otherwise 
 under guardianship or incompetent, the fact should 
 be stated, in order that proper service may be had 
 and such other action be taken as is necessary for 
 the protection of the rights of such party.' 
 
 XL. The bill concludes with the prayers for relief, 
 which must include the special relief sought by com- 
 plainant, and also a prayer for general relief.^ Under 
 the latter there can be properly granted only relief;
 
 UNITED STATES CIKCUIT COURTS. 35 
 
 conformable to the case made in the bill, and there- 
 fore care should be taken to include within the spe- 
 cial prayer all the relief to which the complainant 
 may be entitled under the facts of the case.^ 
 
 There must be annexed to the bill the signature 
 of one of the counsel for complainant, which signing 
 is deemed to be an affirmation on his part that upon 
 the instructions given to him and the case laid before 
 him there is good ground for the suit in the manner 
 in Avhich it is set forth in the bill.* 
 
 It is not required that the bill shall be sworn to 
 or be supported by affidavit, unless some special 
 order or process, pending the suit, is asked for, such 
 as a preliminary injunction or writ of ne exeat or 
 other like matter. 
 
 1 Rule 23. 
 
 2 Rule 21. 
 
 3 Tyler v. Savage, 143 U. S., 79; Kent v. Canal Co., 144 
 U. S., 75. 
 4 Rule 24. 
 
 XLI. Since the adoption of the amendment to 
 rule 40, declaring that it shall not be necessary to 
 interrogate a defendant specially upon any state- 
 ment in tfie bill, unless complainant desires to do so 
 for the purposes of discovery, and of the statute 
 permitting and compelling parties in interest to tes- 
 tify as witnesses, the use of special interrogatories 
 as part of the bill as a means of discovery has largely 
 fallen into disuse, rendering it unnecessary to notice 
 the rules regulating the form and particulars thereof, 
 otherwise than by reference to rules 40-44 inclusive.
 
 ^ EQUITY PRACTICE. 
 
 XLII. If the averments of the bill show that the 
 injuries complained of have been of long standing, so 
 that laches may be imputed to complainant in not 
 sooner moving for the protection of his rights, the 
 facts relied on as excusing the delay should be set 
 forth in the bill, or otherwise it may be attacked 
 by demurrer or plea, or the court may of its own 
 motion refuse to consider the case. 
 
 Thus, if suit could not be earlier brought by rea- 
 son of the absence of defendant, or of some disabil- 
 ity on part of complainant, or because defendant 
 fraudulently kept the facts concealed, or because 
 complainant, without fault, was ignorant of his 
 rights, or if any other reason exists excusing the 
 delay, the facts should be averred in the bill, and 
 thus the apparent laches on part of complainant be 
 explained. 
 
 Badger v. Badger, 3 Wall., 87; Hume v. Beal, 17 Wall., 336; 
 Marsh v. Whitmore, 21 Wall., 178; Sullivan v. Railroad Co., 94 
 U. S.,806; Ilayward v. National Bank, 96 U. S., 611; Speidel v. 
 Henrici, 120 U. S., 377; Richards v. Mackal, 124 U. S., 183; 
 Mackall v. Casilear, 137 U. S., 556; Martin v. Gray, 142 U. S., 
 236; Foster v. Railroad Co., 146 U. S., 88; Lane & B. Co. v. Locke, 
 150 U. S., 193; Halstead v. Grinnan, 152 U. S., 412; Willard v. 
 Wood, 104 U. S., 502. 
 
 XLIII. Where one or more stockholders in a cor- 
 poration bring a bill against the corporation and 
 other parties for the enforcement or protection of 
 rights ordinarily assertable by the corporation as 
 the re[)rescntativo of all the stockholders, on the 
 ground that the corporation fails or refuses to act in 
 tfie premises, such bill must be vcriliod, and must
 
 UNITED STATES CIRCUIT COURTS. 37 
 
 show that the complainant was a shareholder at the 
 time of the transaction of which he complains, or 
 that his share had since devolved on him by opera- 
 tion of law ; that the suit is not collusively brought 
 in the name of the stockholder as a means of con- 
 ferring jurisdiction on the United States court, and 
 must also set forth with particularity the efforts 
 made by complainant to secure action by the direct- 
 ors or trustees, and if necessary by the sharehold- 
 ers, and the cause of failure in securing actioB 
 through the corporation. 
 
 Rule 94. Hawes v. Oakland, 104 U. S., 450; Huntington v. 
 Palmer, 104 U. S., 482; Quincy v. Steele, 120 U. S., 241; Porter 
 V. Sabin, 149 U. S., 473.
 
 38: EQUITY PRACTICE. 
 
 CHAPTER Y. 
 
 OF THE PARTIES. 
 
 XLIV. As to parties, the general rule is that all 
 persons interested in or to be affected by the results 
 of the litigation should be made parties plaintiff 
 or defendant, to the end that the one proceeding 
 and the one decree may settle and adjudicate the 
 entire controversy.^ 
 
 Where it appears, however, that one or more of 
 those interested cannot be made parties, by reason 
 of being without the jurisdiction of the court, or for 
 other good reason, or because making them parties 
 would oust the jurisdiction of the court, the cause 
 may proceed without their presence, provided the 
 interest of those made parties is such that the court 
 can consistently hear and determine the issues as to 
 them; but in such cases the decree cannot prejudice 
 the rights of those not made parties.^ 
 
 So, also, where the parties on either side are verj 
 numerous, and cannot, without manifest inconven- 
 ience and delay, be all brought in as parties, the 
 suit may proceed if suflicient parties to represent 
 all the adverse interests are brought before the 
 cou rt.* 
 
 Where, upon the face of the bill, it appears that 
 persons not made parties are interested in the suit, 
 the reasons why they arc not made parties should 
 be set forth in the bill.
 
 UNITED STATES CIKCUIT COURTS. 39 
 
 If the interest of those not made parties is such 
 that a final decree cannot be entered without injuri- 
 ously affecting such interest, or leaving the contro- 
 versy in such condition as may be inconsistent with 
 equity, the court will require such absent parties to 
 be brought in, and if this cannot be done Avill dis- 
 miss the bill.* If doubt exists whether the court 
 will grant a final decree by reason of the absence of 
 parties, the question should, if possible, be presented 
 and settled before incurring the delay and expense 
 of taking testimony. 
 
 1 Russell V. Clark's Ex'r, 7 Cranch, 74; Caldwell v. Taggart, 
 4 Pet., 190; Shields v. Barrow, 17 How., 130; Williams v. Bank- 
 head, 19 Wall., 563: McArthur v. Scott, 113 U. S., 340. 
 
 2 Mulligan v. Milledge, 3 Cranch, 220; Elmendorf v. Taylor, 
 10 Wheaton, 153; Mallow v. Hinde, 12 Wheaton, 193; Payne 
 V. Hook, 7 Wall, 425; Traders' Bank v. Campbell, 14 Wall., 87; 
 Keller v. Ashford, 133 U. S., 610; McGahan v. Bank of Rond- 
 out, 156 U. S., 218. 
 
 * Mandeville v. Riggs, 2 Pet., 482; Williams v. Bankhead, 
 19 Wall., 563. 
 
 4 Riddle v. Mandeville, 5 Cranch, 332; Russell v. Clark's Ex'r, 
 7 Cranch, 74; Marshall v, Beverly, 5 Wheaton, 313; Mallow v. 
 Hinde, 12 Wheaton, 193; Barney v. Baltimore, 6 Wall., 280: 
 Bank v. Railroad Co., 11 Wall., 624; Traders' Bank v. Camp- 
 bell, 14 Wall., 87; Ribon v. Railroad Co., 16 Wall, 446. 
 
 XLY. Persons incapable of instituting suits for 
 themselves may sue by guardian or prochein a?nif 
 and a guardian ad litem may be appointed by the 
 court or judge to defend on behalf of such incapa- 
 bles. 
 
 Rule 87. 
 
 XLYI. In suits upon joint and several demands, 
 including those against principals and sureties, the
 
 4:0 EQUITY PRACTICE. 
 
 complainant may at bis option proceed against one 
 or more of those severally liable.^ 
 
 In suits to enforce the execution of the trusts of 
 a will it is not necessary to make the heir at law 
 a party, unless it is desired to establish the will 
 against him.^ 
 
 Where real estate is vested in trustees by devise, 
 with power to sell and to collect and receipt for the 
 rents and profits, such trustees, for purposes of suit, 
 represent the beneficiaries to the same extent as 
 administrators or executors represent the persons 
 interested in the personal estate, and such benefi- 
 ciaries, interested in the realty or the rents and 
 profits thereof, need not be made parties unless the 
 court shall so order.' 
 
 So, also, where trustees represent the beneficiaries 
 in regard to the general interest in the trust prop- 
 erty, so that their acts touching the property bind 
 the beneficiaries, the trustees alone may be made 
 parties to suits affecting the trust property. 
 
 1 Rule 51. 
 
 2 Rule 50. 
 
 3 Rule 49. Kerrison v. Stewart, 93 U. S., 155; Corcoran v. 
 Canal Co., 04 U. S., 741; Shaw v. Railroad Co., 100 U. S., 605; 
 Richter v. Jerome, 133 U. S., 233.
 
 UNITED STATES CIRCUIT COURTS. 41 
 
 CHAPTER YL 
 
 MESNE PROCESS — ISSUANCE — SERVICE. 
 
 XLVII. The ordinary process issued to bring the 
 defendants into court is a subpoena, which is issued 
 by the clerk upon the filing of the bill in his office, 
 and at the option of the complainant may be made 
 returnable at the first or second rule day next ensu- 
 ing, occurring after twenty days from date of the 
 issuance of the process. 
 
 If there are more than one defendant, separate 
 subpoenas for each, or a joint subpoena for all, may 
 be issued at the election of complainant, save in 
 cases wherein a husband and wife are defendants, 
 against whom the subpoena must be joint. 
 
 When the bill is filed 2. praecipe must also be filed 
 with the clerk, directing the issuance of a subpoena 
 or subpoenas as desired, and naming the rule day to 
 which process is to be made returnable. 
 
 Rules 7, 11, 13. 
 
 XLVIII. When issued, the subpoena is served by 
 the marshal, his deputy or by some other person 
 specially appointed by the court, or by a judge 
 thereof, when necessity for such appointment exists. 
 
 In case of service by an appointee, return of serv- 
 ice must be made under oath. 
 
 Rule 15. Revised Statutes, section 923. 
 
 XLIX. Service is made by delivering a copy of 
 the subpoena to the defendant personally, or by
 
 42 EQUITY PRACTICE. 
 
 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 fam- 
 ily of the defendant. 
 Rule 13. 
 
 L. If a subpoena is returned not served upon a 
 defendant, the complainant is entitled to other sub- 
 jioenas against such defendant, until due service is 
 made. 
 
 Rule 14. 
 
 LI. When a suit in equity is commenced, and sat- 
 isfactory proof is made to the circuit court, or to 
 the circuit justice or judge, that the defendant de- 
 signs quickly to depart from the United States; that 
 there is due from him a sum certain or capable of re- 
 duction to certainty; that complainant has no suffi- 
 cient legal redress, and that irreparable injury or a 
 •denial of justice Avill be caused to com])lainant if 
 the defendant so departs, such court or judge may 
 order the issuance of a writ of 7ie exeat., upon which 
 the marshal arrests the defendant and keeps him in 
 custody, unless he gives security to abide the order 
 and decree of the court. 
 
 Revised Statutes, section 717; Griswold v. Hazard, 141 U. S., 
 200. 
 
 LII. In suits to enforce a lien upon, or claim to, 
 or to remove any incumbrance, lien or cloud upon, 
 the title to real or j)crsonal property within the dis- 
 trict wherein the suit is brou<rht, if one or more of
 
 UNITP3D STATES CIKCUIT COUKTS. 43 
 
 the defendants shall not be an inhabitant of or found 
 within the district, service may be made by procur- 
 ing from the court an order directing such defend- 
 ant to appear, plead, answer or demur by a day to 
 be fixed in the order, which order shall be served 
 on such defendant wherever found, and also upon 
 the person or persons in possession or charge of the 
 property, if any there be. If personal service of 
 such order cannot be made upon such defendant, 
 the same may be published, in such manner as the 
 court may dii-ect, not less than once a week for six 
 consecutive weeks. 
 
 To procure such order, a motion in writing should 
 be filed, accompanied with an aiRdavit stating briefly 
 the nature of the suit, the names of the defendants 
 upon whom service cannot be had within the dis- 
 trict, and the place of their supposed residence. 
 
 Upon proof being filed showing service of publi- 
 cation of the order as directed by the court, juris- 
 diction attaches so as to enable the court to adjudi- 
 cate touching the property involved in said suit and 
 to bind the interest of the absent party in the same, 
 subject to the right of such party to appear within 
 one year from the entry of final judgment, and, upon 
 motion, to have such judgment against him opened 
 and the matter reheard. 
 
 18 Statutes at Large, 473. 
 
 LIIL When a subpoena, order or other process 
 is to be served without the limits of the district 
 wherein suit is brought, it should be placed in the
 
 44 EQUITY PRACTICE. 
 
 hands of the marshal within whose district service 
 is to be made, unless some other person has been 
 appointed to make service. 
 
 LIY. The marshal or person charged with the 
 duty of making service of the subpoena should make 
 the same forthwith, and when made should at once 
 return the process to the clerk's office whence it 
 issued, and, upon return of service being made, the 
 clerk must enter the suit upon his docket as pend- 
 ing in the court, stating the time of such entry. 
 
 Rule 16. Warren Co. v. Marcy, 97 U. S., 96; Union Trust 
 Co. V. Navigation Co., 130 U. S., 565.
 
 UNITED STATES CIllCUIT COUKTS. 45 
 
 CHAPTER YIL 
 
 DEFAULT AND DECREE PRO CONFESSO. 
 
 LY. If a defendant, having been duly served, fails 
 to enter an appearance at the proper time, or hav- 
 ing appeared fails to file a plea, demurrer or answer 
 to the bill by the proper rule day, the complainant 
 may enter an order that the bill be taken ^;/'o con- 
 fesso. 
 
 Thereupon the cause may be proceeded in exj^cirts, 
 and, after the expiration of thirty days from the 
 entry of default, decree therein may be entered, or 
 the complainant, if he requires an answer to enable 
 him to obtain a proper decree, may procure process 
 by attachment against such defendant, upon which 
 process the defendant may be arrested and held until 
 he fully complies with the order of the court or 
 judge, as to pleading to or answering said bill. 
 
 Rules 18, 19. Thomson v. Wooster, lU U. S., 101.
 
 46 EQUITY rr.ACTICE. 
 
 CHAPTER YIII. 
 
 APPEARANCE AND PROCEEDINGS ON BEHALF OF 
 DEFENDANT. 
 
 LYI, To prevent the entry of a default the defend- 
 ant must, either personally or by his solicitor, enter 
 his appearance at the rule day to which the process 
 is made returnable, provided he was served with 
 process twenty days before that day ; otherwise the 
 appearance day shall be the next rule day succeed- 
 ing the day when the process is returnable. 
 
 A defendant may waive the service of process, or, 
 being served, may waive the time allowed him and 
 enter his appearance either personally or by his so- 
 licitor, entry thereof to be noted in the order book 
 by the clerk. 
 
 Rules 17, 18. 
 
 LVII. Having appeared, the defendant, if cause 
 therefor exists, may, on or before the rule day next 
 after the return day of the process, except to the 
 bill on the ground that it contains impertinent or 
 scandalous matter, that is, that it contains recitals 
 of matters not pertinent or relevant to the real cause 
 of action, or that it contains needless repetitions 
 rendering the bill unnecessarily prolix, or that it 
 contains, unnecessarily, statements of a scandalous 
 nature calculated to do injury to the persons affected 
 thereby. 
 
 Upon exceptions of this nature being filed, the
 
 UNITED STATES CIKCUIT COUKTS. 4:^ 
 
 same may be at once referred to a master. If it be 
 found by the master, or by the court, that the ex- 
 ceptions are well taken, the impertinent or scandal- 
 ous matter will be expunged at the expense of com- 
 plainant, and he may be adjudged to pay all the 
 costs of the defendant to that time. 
 
 When the defendant has procured an order refer- 
 ring such exceptions to a master, he must procure 
 action thereon by the master by the next succeeding 
 rule day, or the exceptions will be deemed to be 
 abandoned, unless the master certifies that further 
 time is needed to enable him to complete the exam- 
 ination. 
 
 Rules 25-27. 
 
 LYIII. Unless otherwise ordered by a judge of the 
 court, for cause shown, the defendant, to prevent a 
 default being entered, must file a plea, demurrer or 
 answer to the bill on the rule day next succeeding 
 the rule day upon which his appearance was entered. 
 
 Rules 18, 33. 
 
 LIX. The defendant may demur or plead to the 
 whole bill or to part of it, or he may demur to part, 
 plead to part, and answer as to the residue, or he may 
 answer to the whole bill. 
 
 In case the bill specially charges fraud or combina- 
 tion on part of the defendants, a plea to such part 
 must be accompanied with an answer fortifying the 
 plea, and explicitly denying the fraud and combina- 
 tion, and. the facts on which such charge is founded.
 
 48 EQUITY PRACTICE. 
 
 If any part of the bill is good and a demurrer to 
 
 the whole bill is tiled, it ^Yill be overruled. 
 
 Rule 32. Livingston v. Story, 9 Pet., 632; Buffington v. 
 Harvey, 95 U. S., 99. 
 
 LX. ]^o demurrer or plea shall be allowed to be 
 filed to a bill unless accompanied by a certificate of 
 counsel that it is in his opinion well founded in point 
 of law, and by the afhdavit of the defendant that it 
 is not interposed for the purpose of causing delay in 
 the progress of the suit, and, in case of a plea, the 
 affidavit must further aver that it is true in point of 
 fact, and unless thus supported the demurrer or plea 
 may be disregarded. 
 
 Rule 31. Sheffield Furnace Co. v. Witherow, 149 U. S., 574. 
 
 LXI. Whenever a ground of defense is apparent 
 on the bill itself, either from matters therein alleged, 
 or from a failure to allege some fact or facts essential 
 to sustain complainant's right to relief, or from de- 
 fects in the frame or form of the bill, or because it 
 appears that the lapse of time or laches of complainant 
 have barred the right of recovery, or it appears that 
 there is a misjoinder of parties or a want of neces- 
 sary parties, or that there is a lack of jurisdiction in 
 the court, a demurrer to the bill will lie, and usually 
 the objection should thus be taken. 
 
 If the bill is defective in substance in not show- 
 ing a sufficient original cause of action, or by show- 
 ing that a sufficient defense exists or that the court 
 is without jui'isdiction, a demurrer saves the expense 
 caused by answering and taking evidence.
 
 UNITED STATES CIRCUIT COURTS. 49 
 
 If the defect is in matter of form, the failure to 
 demur may be deemed to be a waiver of the objec- 
 tion. 
 
 Livingston v. Story, 9 Pet., 633; Maxwell v. Kennedy, 8 
 How., 210: Griffing v. Gibb, 2 Black, .519; Dillon v. Barnard, 
 21 Wall., 430; National Bank v. Carpenter, 101 U. S., 567. 
 
 LXII. If the court of equity has jurisdiction over 
 
 the subject-matter and can grant the reh'ef sought, 
 
 the objection to the jurisdiction on the ground that 
 
 there is an adequate remedy at law should be taken 
 
 promptly and before entering upon a defense to the 
 
 merits. 
 
 Reynes v. Dumont, 130 U. S., 354; Kilbourn v. Sunderland, 
 130 U. S., 505; Brown v. Lake Superior Iron Co., 134 U. S., 530; 
 Perego v. Dodge, 163 U. S., 160. 
 
 LXIII. The demurrer may be general or special. 
 It is the former when no particular ground is as- 
 signed, except that there is no equity in the bill. If 
 the bill is attacked for defects in substance, the gen- 
 eral demurrer is sufficient, though it is usual, and is 
 the better practice, to state clearly and concisely the 
 defects relied on as showing want of equity. 
 
 A demurrer is special when particular defects are 
 attacked, and this form is indispensable when the 
 objection to the bill is as to matter of form. 
 
 When a demurrer is interposed to a part only of 
 a bill, it should show the part or parts to which it is 
 intended to apply. 
 
 LXIV. Where the objections or defenses relied 
 upon by the defendant do not appear upon the face 
 of the bill, they must be raised by a plea or answer, 
 4
 
 50 EQUITY PKACTIUE. 
 
 A plea is said to be a special answer to a bill, or 
 some part of it, whereby it is sought to show that, 
 by reason of the special matter in the plea set forth, 
 the complainant is barred from maintaining suit on 
 the matters in the bill alleged, or is stopped from 
 further progress in the forum or form in which the 
 suit is pending. 
 
 The main purpose of the plea is to save the delay 
 and expense of going into the case at large when 
 some ground exists which, when it is brought to the 
 attention of the court, will result in the abatement 
 of the pending suit or bar recovery therein. The de- 
 fense, therefore, proper for a plea is generally one 
 that reduces the case, or some material part of it, to 
 a single point. 
 
 Thus, if the defense is that the court has not juris- 
 diction of the cause, or that the suit is barred b}'' the 
 statute of limitations, or that an indispensable party 
 is not joined, or that there is pending another suit 
 upon the same cause of action, or other single mat- 
 ter which, if proven, will abate or bar the suit, the 
 same should be presented by a plea. 
 
 Livingston v. Story, 11 Pet., 351; Wickliffe v. Owings, 17 
 IIow,, 47; Insurance Co. v. Brune, 96 U. S., 588; Farley v. 
 Kittson, 120 U. S., 303. 
 
 LXV. If the bill is not demurrable, and no fact, 
 proper to be presented by a plea, exists either as 
 raatter in abatement or in bar, then the defense must 
 bo presented by way of answer, and the defendant 
 is entitled by answer to insist upon all matters of
 
 UNITED STATES CIRCUIT COURTS. 51 
 
 defense, not being merely matters of abatement, or 
 to the character of the parties, or of form, which 
 exist in his behalf.^ 
 
 The defendant may in the answer suggest that the 
 bill is defective for want of parties, and by proper 
 averment state the names of such parties and their 
 relation to the case.^ 
 
 If the bill does not waive an answer under oath, 
 the same must be sworn or affirmed to by the de- 
 fendant before a judge of a court of the United 
 States or of a- state or territory, or before a commis- 
 sioner appointed by the United States circuit court 
 to take testimony, or before a master in chancery 
 appointed by a United States circuit court or notary 
 public.^ 
 
 If thus sworn to, in obedience to the demand of the 
 bill, the allegations of the answer, so far as respon- 
 sive to the bill, are evidence in favor of defendant. 
 To overcome same requires satisfactory testimony 
 of two witnesses, or of one corroborated by circum- 
 stances equivalent in weight to that of another.* 
 
 1 Rule 39. Wickliffe v. Owings, 17 How., 47. 
 
 2 Rule 53. 
 
 3 Rule 59. 
 
 * Rule 41. Seitz v. Mitchell, 94 U. S., 580; Vigel v. Hopt, 104 
 U. S., 441; Farley v. Kittson, 120 U. S., 303; Morrison v. Durr, 
 132 U. S., 518; Union R. R. Co. v. Dull, 124 U. S., 173; South- 
 ern Co. V. Silva, 125 U. S., 247. 
 
 LXYI. When a corporation is a party defendant 
 to a bill requiring an answer under oath, the answer 
 of the corporation should be attested by the corpo- 
 rate seal, that being the highest evidence that the
 
 52 EQUITY PRACTICE. 
 
 answer is the solemn act of the corporationj and 
 stands in place of the oath of an individual. 
 BroQSon v. Railroad Co., 2 Wall., 283. 
 
 LXYII. The defendant may in his answer suggest 
 that the bill is defective for want of parties, giving 
 the names or description of such parties and the 
 facts showing the necessity of their being made 
 parties, and thereupon the complainant may, within 
 fourteen days after answer filed, set down the cause 
 for argument upon this objection only, by entering 
 in the clerk's order book a notification to that ef- 
 fect. 
 
 If complainant does not thus set down the cause 
 for argument on the objection of want of parties, 
 but proceeds to a hearing generally, he shall not, if 
 the objection of want of parties be sustained, be en- 
 titled as of course to an order to amend by adding 
 the parties, but the court msty, if it thinks fit, dis- 
 miss the bill. 
 
 Rule 52. 
 
 LXVIII. If the defendant does not, by plea or 
 answer, object to the bill as defective for want of 
 parties, the objection will not be allowed to prevail 
 at the hearing of the cause, if the court can grant a 
 decree saving the rights of the absent parties. 
 
 Rule 53. I^aiik v. Scton, 1 Pot., 299; Story v. Livingston, 
 13 Pet, 35y; Keller v. Asliford, 133 U. S., GIO. 
 
 LXIX. If the allegations of tlic bill, averring the 
 character of the parties, as that they are administra- 
 tor.s, executors, trustees, or the like, and averring the 
 citizenship of the adversary parties, are sullicient,
 
 UNITED STATES CIRCUIT COURTS. 53 
 
 prima facie, to sustain the jurisdiction of the court 
 and the right to sue, issue thereon, if at all, must be 
 taken by a plea, and not b}-- answer. 
 
 Rule 39. Wickliffe v. Ovvings, 17 How., 47; Farmington v. 
 Pillsbury, 114 U. S., 148. 
 
 LXX. Since the adoption of the act of 1875 this 
 general rule is subject to the qualification found in 
 section 5 of that act, to the effect that if it appears 
 in a suit at any time that it does not really and sub- 
 stantially involve a controversy within the jurisdic- 
 tion of the court, or that the parties have been 
 collusively made or joined for the purpose of creat- 
 ing a cause cognizable in the United States circuit 
 court, such court shall proceed no farther, but must 
 dismiss the cause. 
 
 18 Statutes at Large, 470. Williams v. Nottawa, 104 U. S., 
 209; Barry v. Edmunds, 116 U. S., 550; Hartog v. Memory, 110 
 U. S., 588. 
 
 LXXI. As already stated, the defendant may de- 
 mur to part, plead to part, and answer to the residue 
 of the bill. 
 
 It cannot be objected to the demurrer or plea 
 that the same does not cover so much of the bill as 
 it might, by law, have extended to, nor because the 
 answer may extend to some part of the same mat- 
 ter covered by the demurrer or plea,^ but, if the an- 
 swer extends to the whole of the matter covered by 
 the plea, the latter will be overruled.^ 
 
 1 Rules 33, 36, 37. 
 
 2 Grant v. Phoenix Life Ins. Co., 121 U. S., 105.
 
 §4 EQUITY PEACTICE. 
 
 CHAPTER YIIL 
 
 FURTHER PROCEEDINGS ON PART OF COMPLAUT- 
 ANT, INCLUDING REPLICATION. 
 
 LXXII. If a demurrer to a bill is filed, the com- 
 plainant must, on the rule day the same is filed, or 
 on the next succeeding rule day, set the same down 
 for argument, or the failure so to do will be deemed 
 an admission that the demurrer is well taken, and 
 ■his bill will be dismissed, unless, upon application to 
 a judge of the court, further time be allowed him, 
 to set the same down for hearing. 
 
 Rule 38. 
 
 LXXIII. If a plea to the bill is filed, the complain- 
 ant must, on the same or by the next ensuing rule 
 tlay, either set the same down for argument or file a 
 reply to the plea.^ 
 
 If set down for argument the facts well pleaded 
 in the plea are admitted for the purposes of the ar- 
 gument, and the question of the legal sufficiency of 
 the plea, in form and substance, is alone presented.^ 
 
 If, ujion the hearing, tlie plea is held good, or, in 
 other words, is allowed, the comi)lainant is entitled 
 to file a rej)ly, as he may do without setting down 
 tlie plea for argument.^ 
 
 By a reply issue is taken upon the facts alleged in 
 the plea. 
 
 The allegations of fact in the pica, though under 
 oath, are not evidence in favor of defendant.^
 
 UNITED STATES CIRCUIT COURTS. 55 
 
 The taking of the evidence upon an issue of fact 
 arising upon a plea, and reply thereto, is governed by 
 the rules applicable to an issue arising upon an an- 
 swer and replication.* 
 
 If, upon the hearing of the issue of fact, the find- 
 ing is in favor of the defendant, the effect thereof 
 depends upon the nature of the issue or facts de- 
 termined upon the plea, the defendant being entitled 
 to the benefit thereof only so far as in law and equity 
 they ought to avail hira.^ 
 
 1 Rule 33. 
 
 2 Farley v. Kittson, 120 U. S., 303. 
 
 3 United States v. Dalles Military Road Co., 140 U. S., 599. 
 < Hughes V. Blake, 6 Wheaton, 453. 
 
 5 Rule 33. Pearce t. Rice, 142 U. S., 28; Horn v. Detroit Dry 
 Dock Co., 150 U. S., 610; Green v. Bogue, 158 U. S., 478. 
 
 LXXIY. If, upon the hearing, a demurrer or plea 
 is overruled, the complainant is entitled to costs, un- 
 less the court is satisfied that there was good ground 
 for the interposition of the same, and that it was 
 not interposed for delay.' 
 
 The defendant will also be required to answer the 
 bill, or so much thereof as was covered by the plea 
 or demurrer, by the next rule day or such other 
 time as the court may deem advisable, and in de- 
 fault of such answer the bill may be taken pro con- 
 fesso} 
 
 If the demurrer or plea on the hearing is sus- 
 tained the defendant is entitled to costs, and the 
 court may, at its discretion, upon motion of com-
 
 56 EQUITY PRACTICE. 
 
 plainant, permit him to amend bis bill upon such 
 terms as may be reasonable.'^ 
 
 1 Eule 34, Powder Co. v. Powder Works. 98 U. S.. 126. 
 
 2 Rule 35. National Bank v. Carpenter, 101 U. S., 567. 
 
 LXXY. Upon the filing of an answer the com- 
 plainant may, if cause exists, file exceptions thereto 
 on the ground that it contains scandalous or imper- 
 tinent matter. 
 
 The exceptions must be in writing, signed by 
 counsel, and be filed by the rule day next after the 
 day of the filing the answer. 
 
 Upon filing the same the complainant must at 
 once apply to a judge for an order referring the ex- 
 ceptions to a master for examination, and without 
 delay procure the master to examine and report 
 thereon on the same or the next succeeding rule 
 day, unless the master shall certify that further 
 time is needed to enable him to complete the exam- 
 ination. 
 
 Rule 27. 
 
 LXXVI. Exceptions to the answer may also be 
 filed on the ground of insufficiency. 
 
 The exceptions must be in writing, be signed by 
 counsel, and be filed by the rule day next succeeding 
 the niUi day ui)on which the answer was filed, unless 
 the coui't, or a judge thereof, shall, for cause shown, 
 enlarge the time.' 
 
 The exceptions should ])oint out specifically the 
 particular parts of the bill which it is claimed are
 
 UNITED STATES CIRCUIT COURTS. oT 
 
 not sufficiently answered, and the defects in the an- 
 swer excepted to. 
 
 Exceptions for scandal or impertinence should h& 
 disposed of before excepting on ground of insuffi- 
 ciency. 
 
 If a defendant demurs or pleads to an}^ part of 
 the discovery sought by a bill, and also answers the 
 bill, exceptions to the answer for insufficiency should 
 not be filed until the demurrer or plea is disposed 
 of, as filing the same admits the validity of the de- 
 murrer or plea. 
 
 If, however, the demurrer or plea is only to the 
 relief prayed by the bill, exceptions to the answer 
 may be filed without thereby admitting the validity 
 of the demurrer or plea. 
 
 If the defendant deems the exceptions well taken, 
 he must file an amended answer by the next suc- 
 ceeding rule day ; but if he does not, by so amending, 
 admit the exceptions, then the complainant must set 
 the same down for hearino; on the next followinof 
 rule day before a judge of the court.^ 
 
 If not thus set down for hearing the exceptions, 
 are deemed abandoned, and the answer is deemed 
 sufficient.''' 
 
 If, on hearing, the exceptions are sustained, the 
 defendant must, by the next rule day, file a full and 
 complete answer, or the complainant may take the- 
 bill as confessed, so far as the matter excepted to in 
 the answer applied thereto, or he may by attach- 
 ment compel the defendant to make full answer to 
 the matters covered by the exceptions.''
 
 58 EQUITY PRACTICE. 
 
 The court or a judge thereof may, for cause shown, 
 enlarge the time for amending the answer. 
 
 ' Rule 61. 
 
 2 Rule 63. 
 
 3 Rule 63. 
 * Rule 64. 
 
 LXXYIL If the complainant does not except to 
 the answer, or if, being excepted to, the same is 
 amended, or the exceptions upon a hearing are not 
 sustained, and if the case is not set down for hear- 
 ing on the bill and answer, the complainant must, 
 by the rule day next succeeding the rule day upon 
 which the answer or the amended answer is iiled, 
 file a general replication thereto, and thus complete 
 the issue in the cause. If the replication is not thus 
 filed, the defendant is entitled to an order, as of 
 course, for the dismissal of the suit. 
 
 The court or a judge thereof, for cause shown, 
 may allow a replication to be filed after the rule day 
 upon which it should have been filed.^ 
 
 Special replications cannot be filed. 
 
 If, by reason of matters alleged in the answer, it 
 becomes necessary for complainant to allege new 
 matter, it must be done by an amendment to the 
 bill, or by a supplemental bill.'* 
 
 1 Rule 66. 
 
 2 Rules 45. 57. Marsteller v. McLean, 7 Cranch, 156; Vattier 
 V. Hindc, 7 Pet., 252. 
 
 Exceptions to the answer do not perform the 
 ollice of a demurrer, in presenting the question
 
 UNITED STATES CIRCUIT COUKTS. 59 
 
 whether the facts averred in the answer constitute a 
 defense to the case made in the bill, and as it is not 
 permissible to file a demurrer to an answer, if it is 
 desired to submit the case on the questions of law 
 arising on the answer, the only method is by setting 
 down the case for hearing on bill and answer.' 
 
 1 Rule 66. 
 
 2 Rules 45, 57. 
 
 3 Banks v. Manchester, 128 U. S., 244
 
 GO EQUITY PKACTICE. 
 
 CHAPTEH IX. 
 
 HEARING ON BILL AND ANSWER — TAKING TESTI- 
 MONY ON ISSUE JOINED— REFERENCE TO MASTER 
 AND PROCEEDINGS BEFORE SAME. 
 
 LXXVIIL The complainantraay, when the origi- 
 nal or amended answer is filed, set the cause down 
 for hearing upon bill and answer. 
 
 In such case, the matters well pleaded in the an- 
 swer are deemed to be true as matters of fact, and 
 the case is heard upon the allegations of fact in the 
 bill contained, and not denied in the answer, taken 
 in connection with the facts averred in the answer. 
 
 Rule 41. Leeds v. Insurance Co., 8 Wheaton, 380; Banks v. 
 Manchester, 128 U. S., 244. 
 
 LXXIX. A cause being at issue upon questions of 
 fact, two general modes exist for submitting such 
 issue for final determination; i.e., the evidence may 
 be taken and the cause be submitted in the first in- 
 stance to the court, or by consent of parties the 
 same may be sent to a master for his examination 
 and report. 
 
 LXXX. If the cause is not referred to a master, 
 ninety days from the time the issue is joined are 
 allowed for the taking of the testimony on behalf 
 of both parties, unless the court or a judge thereof, 
 for good cause shown, shall enlarge the time. 
 
 Rule 69. Ingle v. Jones, 9 Wall., 486. 
 
 LXXXI. Either party may give notice to the 
 other that he desires the evidence to be taken orally,
 
 UNITED STATES CIRCUIT COCKTS. 61 
 
 in which event all the witnesses must be examined 
 before one of the examiners of the court, or before 
 an examiner specially named by the court to act in 
 the given case, who must be furnished with a copy 
 of the bill and answer. 
 
 The parties have a right to be present at the ex- 
 amination, and the witnesses are examined and 
 cross-examined in the mode usual in common-law 
 courts. The testimony given must be taken down 
 in form of question and answer, unless parties con- 
 sent that same be taken in narrative form. When 
 completed, each deposition must be read over to the 
 witness giving the same, and be by him signed in 
 the presence of the parties or their counsel. If a 
 witness refuses to sign a deposition the examiner 
 may do so, and thus authenticate the same. 
 
 Objections made to questions or answers must be 
 noted down upon the deposition by the examiner, 
 as he does not possess the power to decide upon the 
 competency, relevancy or materiality of the ques- 
 tions. 
 
 When the evidence is to be thus taken orally, the 
 court may, upon motion of either party, assign the 
 time within which the complainant shall take his 
 evidence in support of the bill, and a time thereafter 
 for the defendant to take his evidence, and a time 
 thereafter for complainant's evidence in re})ly ; and 
 the evidence of the respective parties must be so 
 taken, unless the parties by agreement, or the court 
 on motion and for cause, shall extend the time there- 
 for.
 
 62 EQUITY PRACTICE. 
 
 If either party has any documentary evidence not 
 introduced before the examiner in connection with 
 the testimony of the witnesses, he should file the 
 same with the clerk of the court within the time al- 
 lowed him for taking evidence orally. 
 
 The examiner may fix, by order, the time and 
 place for conducting the examination of the several 
 witnesses, and notice thereof must be given by the 
 counsel of the moving party to the adversary party 
 or his counsel. 
 
 Rule 67. Blease v. Garlington, 93 U. S., 1. 
 
 LXXXII. If neither party requires the testimony 
 to be taken orally in the method just described, then 
 the same may be taken by depositions, according to 
 the provisions of rule 67, or according to the acts of 
 congress, or statutes of the state wherein the case is 
 pending. 
 
 Rules 07, 68. Revised Statutes, sections 863-875 ; 27 Statutes 
 at Large, 7, 
 
 LXXXIII. If taken under the provisions of rule 
 67, the interrogatories must be written out and filed 
 with the clerk, with a request to the clerk to issue a 
 commission at the proper time, unless the parties 
 agree that the testimony may be taken on oral in- 
 terrogatories. Ten days' notice thereof must be 
 given to the adverse l)arty or his counsel, in order 
 that cross-interrogatories may be filed. 
 
 The court or a judge thereof, or the clerk, if so 
 authorized by general order, selects the person to 
 act as commissioner, and upon the expiration of the
 
 UNITED STATES CIKCUIT COURTS. G'^ 
 
 ten days' notice issues to the party selected a com- 
 mission, having attached thereto the interrogatories 
 and cross-interrogatories to be propounded to the 
 witness. 
 
 If testiraon}'- is taken upon written interrogatories^ 
 the last interrogatory must be substantially in the 
 following form : 
 
 " Do you know, or can you set forth, any other 
 matter or thing which may be a benefit or advan- 
 tage to the parties at issue in this cause, or either of 
 them, or that may be material to the subject of thia 
 your examination, or the matter in question in this 
 cause ? 
 
 " If yea, set forth the same fully and at large in 
 your answer." 
 
 Rules 67-71. 
 
 LXXXIY. Sections 863, 864 and 865 of the Ee- 
 vised Statutes contain the provisions authorizing 
 taking depositions de herie esse. 
 
 According to section 863, if a witness lives at a 
 greater distance than one hundred miles from the 
 place of trial, or is bound on a sea voyage, or is about 
 to go out of the United States, or out of the district 
 in which the case is pending, and to a distance greater 
 than one hundred miles from place of trial, or when 
 he is ancient or infirm, the party wishing his evi- 
 dence may take his deposition before any judge or 
 clerk of a United States court, or before a commis- 
 sioner of a circuit court, or before any judge of a 
 state court, or before a mayor or chief magistrate
 
 64 EQUITY PKACTICE. 
 
 of a cit}'", or before a notary public, provided such 
 party is not of counsel or an attorney for either 
 party to the litigation, and is not interested in the 
 event of the cause. 
 
 Reasonable written notice of the time, place and 
 officer before whom the deposition is to be taken, 
 with the names of the witnesses, must be given to 
 the opposite party or his counsel. 
 
 Section 866 of the Revised Statutes provides that 
 T.here it is necessary in order to prevent a failure or 
 delay of justice, the court may grant a dedimus po- 
 testatem to take depositions according to common 
 usage. And by the act of March 9, 1892, it is en- 
 acted that it shall be lawful to take the testimony or 
 depositions of witnesses in the mode prescribed by 
 the law of the state wherein the federal court is held. 
 
 27 Statutes at Large, 7. 
 
 LXXXV. If, after a bill is filed, and before the de- 
 fendant has answered the same, it is made to appear 
 by affidavit that any of the complainant's witnesses 
 are aged and intirm, or are about to leave the coun- 
 try, or that any of them is a single witness to a ma- 
 terial fact, the com])lainant may upon application 
 procure from the clerk the issuance of a commission 
 to such person as a judge of the court shall direct, 
 to take the testimony of such witness or witnesses, 
 <hie notice of the time and place of taking the same 
 being given to the adverse party. 
 
 Bule 70.
 
 UNITED STATES CIKCUIT COURTS. 65 
 
 LXXXYI. The court may, if it deems it advisable, 
 permit witnesses to be examined viva voce, in open 
 court. 
 
 If the case is appealable, the testimony thus heard 
 should be taken down and made part of the record, 
 or it will be disregarded by the appellate court. 
 
 Rules 67-78. Blease v. Garlington, 92 U. S., 1. 
 
 LXXXYII. The circuit courts may appoint stand- 
 ing masters in chancery, and they may also appoint 
 a master to act in a particular case. 
 
 Rule 83. 
 
 LXXXVIII. A master in chancery is an officer 
 appointed by the court to assist it in various proceed- 
 ings incidental to the progress of a cause before it, 
 and is usually employed to take and state accounts, 
 to take and report testimony, and to perform such 
 duties as require computation of interest, the value 
 of annuities, the amount of damages in particular 
 cases, the auditing and ascertaining of liens upon 
 property involved, and similar services. 
 
 Kimberly v. Arms, 129 U. S., 512. 
 
 LXXXIX. The court cannot, without the consent 
 of the adversary parties, refer the decision of the 
 entire case to a master, but with the consent of the 
 parties such a reference may be made, and the find- 
 ings of the master in such case will be taken to be 
 presumptively correct and are not subject to be set 
 5
 
 G6 EQUITY PRACTICE. 
 
 aside and disregarded at the mere discretion of the 
 court. 
 
 Kimberly v. Arms, 129 U. S., 513; Davis v. Schwartz, 155 
 
 u, s., cyi. 
 
 XC. The court on its motion, or at the request of 
 either of the parties, may refer to a master any spe- 
 cial matter arising in a case. Ordiuarily, if after a 
 hearing and decision by the court upon the plead- 
 ings or upon the pleadings and proofs of the main 
 issues involved, it becomes necessary to have an ex- 
 amination and statement of accounts, or to ascer- 
 tain the damages to be awarded, or to take further 
 evidence in order to properly apply the rulings of 
 the court to the facts of the case, a reference will be 
 made. 
 
 The report of the master, upon a reference of this 
 character, is merely advisory to the court, whicn 
 may accept and act upon it, or may disregard it in 
 whole or in part, according to its own judgment as 
 to the weight of the evidence, although the conclu- 
 sions of the master in weighing conflicting testi- 
 mony have every reasonable presumption in their 
 favor and will not be set aside unless error or mis- 
 take clearly appears. 
 
 Kimberly v. Arms, 129 U. S., 513; Tilghman v. Proctor, 125 
 U. S., 149; Callaghan v. Myers, 128 U. S., 617. 
 
 XCI. "When a reference to a master is had, the 
 party at whoso instance the reference was had, or, 
 if made by the court of its own motion, then the
 
 UNITED STATES CIKCUIT COURTS. 67 
 
 party upon whom the burden of proof lies, must, on 
 or before the next rule day, bring the matter before 
 the master, or, if he does not so do, the other party 
 may bring the matter before the master at the costs 
 of the delinquent party. 
 
 The matter is brought before the master by fur- 
 nishing him a certified copy of the order of reference, 
 and a request that he assign the time and place of 
 proceeding with the hearing. 
 
 Rule 74. 
 
 XCII. The order of reference to a master should 
 always clearly show what issue or matter is thus 
 referred to him, whether the issues at large or only 
 some special matter or matters connected therewith. 
 
 XCIII. The master assigns the time and place for 
 the hearing, giving due notice thereof to the parties 
 in interest or their solicitors. 
 
 If either party fails to appear at the proper time 
 and place, after due notice thereof has been given, 
 the master may proceed ex parte, or may adjourn to 
 a future day, giving notice thereof to the absent 
 party or his solicitor. It is the duty of the master 
 to proceed with all reasonable diligence, and either 
 party may, when cause exists, apply to the court or 
 judge for an order to speed the proceedings. 
 
 Rule 75. 
 
 XCIY. The master has the power to regulate the 
 proceedings before him ; to direct the manner in 
 which the matters shall be proven before him; to
 
 68 EQUITY PEACTIOE. 
 
 examine the parties and their witnesses either viva 
 voce^ or when necessary to cause depositions to be 
 taken; to require the production of all books, pa- 
 pers, writings, vouchers and other documents appli- 
 cable to the matters covered by the reference; and 
 generally to do all other acts and direct all other 
 inquiries and proceedings by him deemed necessary 
 to fully and justly perform the duties imposed upon 
 him. 
 
 Rules 77-79. Story v. Livingston, 13 Pet., 359. 
 
 XCY. All affidavits, depositions and documents 
 previously made, read or used in the court in the 
 progress of the cause may be used before the mas- 
 ter.i 
 
 When necessary the master may direct the taking 
 of testimony to be used before him by depositions, 
 the same to be taken according to the provisions of 
 the acts of congress, or the master may issue a cer- 
 tificate to the clerk directing him to issue a commis- 
 sion for the examination of the named witnesses.^ 
 
 If either party requires it, the testimony of wit- 
 nesses examined viva voce before the master must 
 be taken down by the master, or by some one ap- 
 pointed by him and in his presence, in order that 
 the same may be preserved for use before the court.^ 
 
 1 Rule 80. 
 ■i Rule 77. 
 3 Rule 81. Blease v. Garlington, 93 U. S., 1. 
 
 XCVI. Upon the completion of the hearing be- 
 fore tlio mailer his rej'ort is prepared, and, with the
 
 UNITED STATES CIRCUIT COURTS. 69 
 
 evidence taken before the master, is returned into 
 the clerk's office, the date of such return being en- 
 tered by the clerk in the order book.^ 
 
 If either party desires to except to the report, the 
 exceptions must be filed in the clerk's office within 
 one month after the filing of the report.^ 
 • The exceptions should clearly and specifically 
 point out the matter or matters excepted to, so that 
 upon the face thereof the court can see the grounds 
 of exception, and the parts of the report excepted 
 to.' 
 
 If no exceptions are filed within the month al- 
 lowed, the report will stand confirmed upon the 
 rule day next succeeding the expiration of the 
 month allowed for filing exceptions. 
 
 If exceptions are filed they stand for hearing be- 
 fore the court, if then in session, and if not, then at 
 the next session thereof."^ 
 
 iRules76, 83, 83. 
 
 2 Rule 83. 
 
 3 Story V. Livingston, 13 Pet., 859; Foster v. Goddard, 1 
 Black, 506. 
 
 XCYII. When a case is at issue in such form as 
 to require the taking of evidence, the parties should 
 promptly determine whether the whole case is to 
 be referred by consent to a master, in which event 
 the mode of taking the evidence will be directed 
 by the master, or whether the issues are to be sub- 
 mitted in the first instance to the court. If the 
 latter course is pursued, then if it is desired that the
 
 70 EQUITY PRACTICE. 
 
 testimony, or any part thereof, shall be taken viva 
 voce before the court, an application for an order 
 to that effect should be made to the court, for, unless 
 the court permits, the testimony cannot be taken in 
 this manner. 
 
 If it is desired that the witnesses be examined 
 orally, but not in open court, then the requisite notice 
 must be given to the opposite party and the services 
 of an examiner must be secured. 
 
 If neither of these methods is adopted, then the 
 testimony of the witnesses must be taken by depo- 
 sition, and the documentary evidence not introduced 
 in connection with the testimony of the witnesses 
 should be filed with the clerk.
 
 UNITED STATES CIEOUIT COURTS. 71 
 
 CHAPTER X. 
 
 WITNESSES— ATTENDANCE — MODES OF SUMMONING 
 AND ENFORCING ATTENDANCE — FEES. 
 
 XCVIII. Witnesses living within the district 
 wherein the cause is pending may be summoned to 
 testify before the court, before a commissioner or 
 examiner appointed to take testimony, or before a 
 master to whom a refei'ence has been made.^ 
 
 Witnesses living without the district at distances 
 not exceeding one hundred miles from the place of 
 trial may, in like manner, be summoned to appear 
 and testify .2 
 
 Witnesses living outside the district wherein the 
 cause is pending, and more than one hundred miles 
 from the place of trial, cannot be compelled to at- 
 tend in person. 
 
 In such cases, if they do not voluntarily appear 
 in person, their testimony must be taken before a 
 commissioner or examiner at a place sufficiently 
 near their residence to compel their attendance by 
 subpoena. 
 
 When testimony is sought to be taken under a 
 dedim,us^ a witness cannot be required to go out of 
 the county of his residence, nor to a distance greater 
 than forty miles from his place of residence. Nor 
 can he be deemed guilty of contempt for not obey- 
 ing a subpoena, unless his fee for going and return-
 
 T2 EQUITY PEACTICE. 
 
 ing, and for one clay's attendance, is paid or tend- 
 ered him at the time the subpoena is served.' 
 
 1 Rule 78. 
 
 2 Revised Statutes, section 876. 
 8 Revised Statutes, section 870. 
 
 XCIX. For attendance before a court, commis- 
 sioner, examiner or master, witnesses are entitled to 
 a per diem of $1.50, and to mileage at the rate of five 
 cents for each mile traveled in going from his place 
 of residence to the place of hearing and returning. 
 
 Revised Statutes, section 848. 
 
 ^C. Subpoenas for summoning witnesses are issued 
 by the clerk. Subpoenas signed and sealed by the 
 clerk, but without the names of the witnesses being 
 set forth, may be furnished by the clerk to the par- 
 ties litigant and their solicitors, or to a commissioner, 
 examiner or master, any one of whom can insert the 
 names of the parties to be summoned. 
 
 Rule 78. 
 
 CI. A refusal to obey a subpoena properly issued 
 and served upon a witness, requiring him to appear 
 and testify before a commissioner, examiner or mas- 
 ter, is a contempt of court. In such case the com- 
 missioner, examiner or master may certify the facts 
 into the clerk's office, and thereupon the court or 
 judge may order the issuance of an attachment 
 agaiust tlio party in default. 
 
 Rule 78. 
 
 CII. When a commission issues for the taking the 
 testimony of a witness at any place within any dis-
 
 TNITED STATES CIKCUIT COURTS. 73 
 
 trict or territory of the United States, the clerk of 
 any United States court for such district or terri- 
 tory, ujDon the application of either party to the 
 suit, or his agent, may issue a subpoena command- 
 ing the witness to appear and testify before the 
 commissioner named in the commission, at a time 
 and place stated in such subpoena. 
 
 If the witness, after due service of the subpoena, 
 refuses or neglects to appear, or, after appearing, 
 wrongfully refuses to testify, the judge of the court 
 from which the subpoena issued may enforce obedi- 
 ence to such process, or punish the disobedience 
 thereof as a contempt of court. 
 
 Revised Statutes, section 868. 
 
 cm. If the witness whose testimony is sought to 
 be taken upon commission is found within the Dis- 
 trict of Columbia, then the application for a sum- 
 mons to the witness must be made to a justice of 
 the supreme court of the District, and due proof bo 
 made to him that the testimony of the witness is 
 material and that a commission has issued for taking 
 the same. 
 
 Revised Statutes, section 871. 
 
 CIY. Upon the application of either party to a 
 suit, a judge of any court of the United States in 
 any district or territory may order the clerk of hi& 
 court to issue a suhjxjena duces tecum requiring the 
 witness therein named to appear and testify before 
 the commissioner at the time and place named ia
 
 74 EQUITY PEACTICE. 
 
 the subpoena, and to bring with him and produce 
 before said commissioner any paper, writing, instru- 
 ment, book or document supposed to be in his pos- 
 session, the same to be described in said subpoena; 
 provided it is made to appear to said judge, by affi- 
 davit or otherwise, that there is reason to believe 
 that said writing, paper, instrument, book or docu- 
 ment is in the possession or power of said witness, 
 and if produced would be competent evidence on be- 
 half of the party applying for the order. 
 
 For failure to obey such subpoena the party may 
 be proceeded against for contempt before the judge 
 granting said order. 
 
 Revised StatuteSj, section 869.
 
 UNITED STATES CIRCUIT COUKTS. 75 
 
 CHAPTEE XL 
 
 AMENDMENTS — SUPPLEMENTAL AND REVIVAL 
 BILLS. 
 
 CY, The complainant is entitled, as a matter 
 of course and without paj'ment of costs, to amend 
 the bill in any particular before a copy thereof has 
 been taken by, or furnished to, a defendant; and, 
 after copy taken, may amend as to matters of form, 
 clerical errors, misnomer of parties, misdescription 
 of premises, errors of date or failure to fill blanks. 
 
 If, after a copy of the bill has been taken by a 
 defendant, but before a demurrer, plea or answer 
 has been filed, the complainant desires to amend the 
 bill in a material point, which he may do, he must 
 furnish a copy of the amendment, or of the bill as 
 amended, to the defendant, and pay defendant the 
 costs occasioned thereby. 
 
 After a demurrer, plea or answer has been filed 
 to the bill, but before a replication has been filed, 
 the complainant may, upon motion or petition to a 
 judge, without notice thereof to defendant, obtain 
 an order allowing him to amend his bill on or before 
 the next succeeding rule day. 
 
 After replication has been filed, complainant can- 
 not withdraw the replication and file an amendment 
 to the bill, except upon an order to that effect being 
 granted by a judge, upon a motion or petition, with 
 due notice of the application to the defendant, the
 
 76 EQUITY PKACTICE. 
 
 motion or petition to be supported by an affidavit 
 showing that the same is not made for delay or vexa- 
 tion, and that the amendment is material and could 
 not have been sooner introduced into the bill. 
 
 If the complainant, having obtained leave to 
 amend, does not file the same by the next succeed- 
 ing rule day or the time specially named in the order, 
 he will be deemed to have abandoned the same, and 
 the cause must proceed as if no such application had 
 been made. 
 
 Rules 28, 29. 
 
 CVI. Generally, defects in the form of the bill, in 
 the non-joinder or misjoinder of parties, in the state- 
 ment of improper matter, in the omission to state 
 some material or pertinent matter, are matters to 
 be remedied by filing an amendment; and also if, to 
 meet the averments of the answer, it becomes neces- 
 sar}' to set forth matters existing when the bill was 
 filed, but which are not contained in the original bill, 
 the same should be set forth b}^ way of amendment. 
 
 So, also, leave to amend the bill at the hearing 
 may be granted in furtherance of justice, if the 
 ])roofs show that complainant is entitled to relief, 
 but there appears need of the addition of a party, 
 or of more precise averments of facts, or of an amend- 
 ment of the prayer. 
 
 Revised Statutes, section 954. Neale v. Neale, 9 Wall., 1; 
 TIh- Tremolo Patent, 23 Wall., 518; ITardin v. Boyd, 113 U. S., 
 750; (Jrallani v. Burgess. 117 U. S., 180; Richmond v. Irons, 
 121 U. S., 27; Chicago, etc., Ry, Co. v. Chicago Nat. Bank, 134 
 U. S., 27<S; Connley v. Bunyan, 138 U. S., 023.
 
 UNITED STATES CIRCUIT COUKTS. 7 < 
 
 CYII. The answer may be amended as a matter 
 of course in a matter of form or as to filling blanks, 
 correcting dates, or by reference to a document or 
 other small matter, and be resworn to, at any time 
 before a replication thereto is filed or the cause is 
 set down for hearing upon bill and answer. 
 
 After replication is filed or the cause is set down 
 for hearing on bill and answer, no material amend- 
 ment can be made, except upon leave granted by 
 the court or judge, after due notice of the applica- 
 tion therefor given to the complainant. 
 
 Rule 60. 
 
 CYIII. When a pending suit becomes defective 
 by the happening of some event after the filing of 
 the bill, afi:'ecting the interest of the parties or the 
 subject-matter of the suit, or for any other reason it 
 becomes apparent that some new party should be 
 brought in or some new fact should be alleged, the 
 defect may be cured by filing a supplemental bill. 
 
 Application for leave to file same should be made 
 to a judge upon a rule day, notice being given to 
 the adversary party. 
 
 If leave is granted and the supplemental bill is 
 
 filed the defendant must demur, plead or answer to 
 
 the same on the next succeeding rule day, unless some 
 
 other time is assigned by the judge. If new parties 
 
 are brought in, a subpoena must be issued and served 
 
 on them. 
 
 Rule 57. Kennedy v. Bank, 8 How., 586; Shaw v. Bill, 95 
 U. S., 10.
 
 78 EQUITY rEACTICE. 
 
 CIX. In suits wherein there are two or more com- 
 plainants or two or more defendants, and one or 
 more of them dies, and the cause of action survives 
 in the remaining complainants or against the re- 
 maining defendants, the suit is not thereby abated, 
 but upon suggestion of the death of the party en- 
 tered upon the record, the suit continues. 
 
 Revised Statutes, section 956, 
 
 CX, "When either of the parties, complainant or 
 defendant, dies before final decree, the executor or 
 administrator of such deceased party may, in case 
 the cause of action survives by law, prosecute or de- 
 fend such suit as though originally a party thereto. 
 
 If the executor or administrator does not volun- 
 tarily make himself a party, the adversary party 
 may sue out a scire facias from the office of the 
 clerk of the court wherein the suit is pending, re- 
 quiring him to become a party or show cause to the 
 contrar}^ and if he does not, within twenty days 
 from service thereof, make himself a party or show 
 sufficient cause, the court may render judgment 
 against the estate of the deceased party the same 
 as though the administrator or executor had volun- 
 tarily made himself a party. 
 
 Revised Statutes, section 955. 
 
 CXI. If, after the filing the bill and service of 
 process, or waiver of same by entering an appear- 
 ance, an event happens of such a nature as to abate 
 the suit as then pending, as, for instance, the death
 
 UNITED STATES CIRCUIT COURTS. 79^ 
 
 of either party, then the suit, where the cause of ac- 
 tion sui'vives, may be revived by the filing of a bill 
 of revivor, or a bill in the nature of a bill of revivor,, 
 as the circumstances may require. 
 
 The former lies in cases wherein the interest of the 
 deceased party passes to another by reason of mere 
 privity of blood or of representation by operation of 
 law; the latter in cases wherein the interest of the 
 deceased party passes to another by virtue of the act 
 of the deceased. Thus, an heir may be made a party 
 by a bill of revivor because he inherits by operation 
 of law and as a privy by blood. An executor or ad- 
 ministrator may also be made a party by a bill of 
 revivor because they represent the deceased by oj^er- 
 ation of law. 
 
 In case, however, lands are devised to another by 
 the deceased party, the devisee is brought in by a bill 
 in the nature of a bill of revivor. 
 
 Practically the difference between the named 
 forms of bills is reduced to the title thereof, as all 
 that is essential therein is to set forth the title of the 
 cause, aver its pendency in the court, the happen- 
 ing of the event abating the suit, and the name or 
 names of the parties in Avhose favor or against whom 
 it is sought to revive the suit, with a statement show- 
 ing that they are the now proper parties, and pray- 
 ing that they may be made parties and for process 
 against them. Upon the filing of the bill the clerk 
 issues a subpoena requiring the proper representatives 
 of the other party to appear and show cause why 
 the suit should not be revived.
 
 80 EQUITY PEACTICE. 
 
 If cause is not shown at the rule day occurring next 
 after fourteen days from service of the subpcena, the 
 suit stands revived as matter of course. 
 
 If cause is shown, then the matter must be sub- 
 mitted for decision to the court or a judge thereof. 
 
 Rule 56. Clarke v. Matthewson, 12 Pet., 164. 
 
 CXII. The revival of a cause is not deemed to be 
 the beginning of a new suit, but it is simply the con- 
 tinuance of the original proceeding.^ The jurisdic- 
 tion of the court is not affected nor defeated if the 
 representative parties thus brought in are citizens of 
 the same state with the adversary party.^ Jurisdic- 
 tion having once rightfully attached is not defeated 
 by the subsequent changes in the parties necessitated 
 by the abatement and revival of the suit.^ 
 
 Evidence taken before the happening of the event 
 necessitating the revival may be used in the further 
 progress of the cause.^ 
 
 1 MoUan V. Torrance, 9 Wheaton, 537; Clarke v. Matthew- 
 son, 12 Pet., 164. 
 
 2 Vattier v. Hinde, 7 Pet., 253. 
 
 CXIII. If a party to a final decree dies before 
 an appeal is perfected within the time allowed for 
 taking an a])peal, and it is desired to take an appeal, 
 it is not necessary to revive the suit by formal pro- 
 ceedings. 
 
 If the representative of such deceased party de- 
 sires the appeal, he may file in the office of the clerk 
 of the circuit court a duly certified copy of his ap-
 
 UNITED STATES CIRCUIT COURTS. 81 
 
 pointment, and may thereupon enter an appeal as 
 the party he represents might have done. 
 
 18 Statutes at Large, 473. Dolan v. Jennings, 139 U. S., 385. 
 
 CXIV. If the party in whose favor the decree was 
 entered dies before appeal, and the other party de- 
 sires to take the case to the supreme court, he may 
 procure the allowance of an appeal, docket the case 
 and file the record in the supreme court, suggest 
 the death of the party, and in that court obtain an 
 order that unless the representative of the deceased 
 party appear and become a party within the first 
 ten days of the ensuing term, the appellant shall 
 have leave to open the record and submit the cause, 
 a copy of such order being printed in some news- 
 paper of general circulation within the state, ter- 
 ritory or district from which the case is brought for 
 three successive weeks, such publication to be com- 
 pleted at least sixty days before the beginning of 
 the next term of the supreme court. 
 
 18 Statutes at Large, 473. Supreme Court Rules, No. 15. 
 
 CXY. In cases wherein the appeal lies to a circuit 
 court of appeals and a party dies either before an 
 appeal is taken or pending the hearing in the appel- 
 late court, the mode of procedure is governed by the 
 following rules, which are the same in the several 
 circuits : 
 
 1. Whenever pending a writ of error or appeal in 
 this court, either party shall die, the proper repre- 
 sentatives in the personalty or realty of the deceased 
 6
 
 82 EQUITY rEACTICE. 
 
 party, according to the nature of the case, may vol- 
 untarily come in and be admitted parties to the suit, 
 and tliereupon the case shall be beard and deter- 
 mined 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 re]iresentatives shall become parties within 
 sixty days, the party moving for such order, if de- 
 fendant in error, snail 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 en- 
 titled to open the record, and on hearing have the 
 judgment or decree reversed, if it be erroneous: 
 Provided^ however, that a copy of every such order 
 shall be personally served on said representatives at 
 least thirty days before the expiration of such sixty 
 days. 
 
 2. When the death of a party is suggested, and 
 the representatives of the deceased do not appear 
 within ten days after the expiration of such sixty 
 days, and no measures are taken by the opposite 
 ])art3'' within that time to com])el their ajipearance, 
 the case shall abate. 
 
 3. When cither part}'' to a suit in a circuit or dis- 
 trict court of the United States shall desire to prose- 
 cute a writ of error or appeal to this court from 
 jiny final judgment or decree rendered in the circuit 
 or district court, and at the time of suing out such 
 writ of crroi' or aii[)eal the other party to the suit
 
 UNITED STATES CIRCUIT COURTS. 83 
 
 shall be dead and have no proper representative 
 within the jurisdiction of the court which rendered 
 such final judgment or decree, so that the suit can- 
 not be revived in that court, but shall have a proper 
 representative in some state or territory of the 
 United States, or in the District of Columbia, the 
 party desiring such writ of error or appeal may pro- 
 cure the same, and may have proceedings on such 
 judgment or decree superseded or stayed 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 filing of the record in this court the plaint- 
 iff in error or appellant shall make a suggestion to 
 the court, supported by affidavit, that the said party 
 w^as 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 such 
 judgment or decree, so that the suit could not be re- 
 vived in that court, and that said party had a proper 
 representative in some state or territory of the 
 United States, or in the District of Columbia, and 
 stating therein the name and character of such rep- 
 resentative, and the state or territory or district 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 
 withifl ninety days, the plaintiff in error or appellant 
 shall be entitled to open the record, and, on hearing, 
 have the judgment or decree reversed if the same be
 
 B4: EQUITY PKACTICE. 
 
 erroneous: Provided^ however, that a proper citation 
 reciting the substance of such order shall be served 
 upon such representative, either personally or by 
 being left at his residence, at least thirty days before 
 the expiration of such ninety days: Provided, also, 
 that in every such case, if the representative of the 
 deceased party does not appear within ten days 
 after the expiration of such ninety days, 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, ihdit 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 case shall proceed, and be 
 heard and determined as in other cases.
 
 UNITED STATES CIKCUIT COUKTS. '85- 
 
 CHAPTER XII. 
 
 PREPARATION FOR HEARING — SUBMISSION OF 
 CAUSE — DECREE. 
 
 CXYI. Preparatory to submitting a cause to the 
 court upon the pleadings and evidence, if the same 
 are voluminous, proper abstracts thereof, with in- 
 dexes thereto, should be prepared. 
 
 The evidence bearing upon each issue or distinct 
 question of fact should, so far as possible, be grouped 
 together. 
 
 There is no other step in the preparation and sub- 
 mission of a cause in which care, discrimination and 
 thoroughness on part of counsel are of greater mo- 
 ment than in bringing together in logical and lucid 
 form and sequence the vital issues in the case and 
 the evidence applicable thereto. 
 
 CXYII. After the taking of the evidence is closed 
 and before the final rendition of decree, if a party, 
 desires to present any new matter in the way of issue 
 or evidence, he must apply for leave to the court or 
 judge by petition setting up the new matter or i3sue, 
 so that its relevancy and materiality can be judged 
 of, and asking leave to introduce further evidence, 
 or to amend the pleadings, and also showing the rea- 
 sons why the party was not in fault in not earlier 
 presenting the matter. 
 
 CXYIIL When the decision of the court is made 
 known, a decree in accordance therewith should be
 
 86 EQUITY PKACnCE. 
 
 prepared and be submitted to the judge for signa- 
 ture, and wlien signed must be filed witli the clerk 
 for entry. 
 
 In drawing up decrees no part of the pleadings, 
 nor of the master's report or other prior proceed- 
 ings, should be recited or stated in the decree. 
 
 It should, in apt terms, clearly set forth the exact 
 conclusion and judgment of the court upon the issue 
 or issues passed upon, and if by such judgment the 
 defendant is required to abstain from doing any act, 
 or is required to perform any act, the same should 
 be set forth clearly, and, in case of performance re- 
 quired, the time, mode and conditions thereof should 
 be made plain. 
 
 Rule 8a 
 
 CXIX. In suits for the foreclosure of mortgages, 
 Avherein the mortgaged property does not realize 
 enough to pay the debt due complainant, a decree 
 for the balance left unpaid may be rendered, and 
 execution may issue therefor. 
 
 Rule 93. 
 
 CXX. After decree in the trial court, rehearings 
 may be applied for by petition, although it is not 
 necessary to ask for a new trial or rehearing in order 
 to be entitled to take an appeal. Prior to the adop- 
 tion of tlie act creating the circuit courts of appeals, 
 an ;ipp(!al could not be taken in all cases to tiie su- 
 ])remo court, and by Equity Kule 88 it was provided 
 that in cases wiiercin an appeal could be taken to
 
 UNITED STATES CIRCUIT COUIITS. 67 
 
 the supreme court, the petition for rehearing must 
 be filed and brought to the attention of the court 
 during the term at which the final decree was en- 
 tered, but in cases wherein no appeal could be taken 
 the trial court might permit the petition to be filed 
 before the end of the term next after that at which 
 the decree was entered. As an appeal in all cases 
 either to the supreme court or a circuit court of ap- 
 peals is now provided for, it would seem to follow 
 that in all cases the application for a rehearing must 
 be made du^nng the term at which the final decree is 
 entered. 
 
 The petition for rehearing must set forth clearly 
 the special matter or cause on which the rehearing 
 is sought, must be signed by counsel, and the facts 
 relied on, if not already apparent on the record, must 
 be verified by the oath of the party, or some other 
 person having knowledge thereof. Notice of the ap- 
 plication should be given to the adversary party or 
 his solicitors. The granting or refusing a rehearing 
 is a matter wholly within the discretion of the cir- 
 cuit court, and its action thereon cannot be appealed 
 from. 
 
 Steines v. County, 14 Wall., 15; Buffington v. Harvey, 95 
 U. S., 99; Boesch v. Graff, 133 U. S., 697. 
 
 CXXI. In cases, therefore, in which it is desired 
 to present to the circuit court grounds for a rehear- 
 ing, and if the relief thus sought is refused, then to 
 appeal from such refusal, the remedy must be sought 
 by filing in the circuit court a bill of review.
 
 88 EQUITY PRACTICE. 
 
 If the error complained of is apparent upon the 
 face of the record, by which is meant the bill, an- 
 swer and other pleadings and proceedings, the mas- 
 ter's report and the decree, but not including the 
 evidence, then the same may be presented by a pure 
 bill of review. In other words, upon a pure bill of 
 review nothing can be urged as ground of reversal 
 save error of law apparent on the face of the record.' 
 
 If, however, after decree rendered, discovery is 
 made of any new matter of a nature sufficient to 
 show error in the decree, or of new evidence ma- 
 terial to the issue upon which the case was heard, 
 and the party seeking the benefit thereof was not in 
 fault in not discovering and presenting such matter 
 or evidence before the hearing, relief by reason 
 thereof may be sought b}'" filing a bill of review, in 
 which may be joined allegations showing error of 
 law on the face of the record, as well as the allega- 
 tions touching the newly-discovered matter or evi- 
 dence.^ 
 
 1 Whitinjr V. Bank, 13 Pet., 6; Putnam v. Day, 22 Wall., 60; 
 Buffinj,'ton v. Harvey, 95 U. S., 99; Tliompson v. Maxwell, 95 
 U. S., 391; Beard v. Biirts, 95 U. S., 434; Clark v. Killian, 103 
 U. S., 706; Slielton v. Van Kleeck, 106 U. S., 532; Nickle v. 
 Stewart. Ill U. S., 776; Bridge Co. v. Hatch, 125 U. S., 1. 
 
 2Buflitigton V. Harvey, 95 U. S., 99. 
 
 CXXII. "Where a bill of review, based in whole or 
 in ])art upon the alleged discovery of new matter or 
 new cvidi'iicc, is allowed and iilod, it stands, so far 
 as such iKMv matter or evidence is concerned, as an 
 original bill, to which the adversary ])arty may in-
 
 UNITED STATES CIKCUIT COURTS. 89 
 
 terpose a demurrer or an answer. If, by reply ta 
 the answer, an issue of fact is made, evidence wili 
 be heard thereon, and if the facts alleged are found 
 to be true, and to be sufficient to affect the original- 
 decree, the same will be opened, and, if necessary, a 
 new hearing will be had, and the proper decree be 
 entered. 
 
 If, upon demurrer or the hearing on the facts, it 
 be held that the same are not sufficient to require a 
 rehearing or the modification or reversal of the de- 
 cree, the bill of reviev/ will be dismissed. 
 
 Upon such issue of fact the evidence adduced at 
 the original hearing cannot be discussed for the pur- 
 pose of showing error in the conclusions based 
 thereon at the original hearing, although it may he 
 adverted to for the purpose of showing the bearing 
 and materiality of the new matter or evidence 
 sought to be availed of by means of the bill of review^ 
 
 Buffington v. Harvey, 95 U. S., 99; Craig v. Smith, 100 U. S,, 
 236. 
 
 CXXIII. Bills of review based solely upon errors 
 of law apparent on the face of the record are filable 
 as matter of right, and ordinarily must be brought 
 within the time limited by statute for taking an. 
 appeal.^ 
 
 If a case is appealed and disposed of on its merits 
 by the appellate court, then a bill of review, for er- 
 rors appearing on the face of the record, cannot be en- 
 tertained by the trial court, the remedy in such case 
 being by a direct application to the appellate court.
 
 90 EQUITY PKACTICE. 
 
 Xor will a bill of review, on the ground of newly- 
 discovered evidence, be entertained by the trial court 
 after a decision on appeal, except by the permission 
 or authority of the appellate court, evidenced by a 
 reservation to that effect in the original decree or- 
 dered in the appellate court, or by an order granted 
 upon an application to the appellate court for that 
 purpose.^ 
 
 1 Whiting V. Bank, 13 Pet., 6; Tliomas v. Harvie's Heirs, 10 
 Wheat., 146; Clark v. Killian, 103 U. S., 766; Ensmiuger v. 
 Powers, 108 U. S., 292. 
 
 2 Southard v. Russell, 16 How., 5^7; Ballard v. Searls. 130 
 U. S., 50; Kingsbury v. Buckner, 134 U. S., 650; lu re Potts, 
 166 U. S., 263. 
 
 CXXIV. If, however, the cause is taken by ap- 
 peal to an appellate court, but is not there heard 
 upon the merits, but the appeal is dismissed without 
 opportunity being had to present the merits, the party 
 aggrieved may file a bill of review in the circiut 
 court after the dismissal of the appeal, even though 
 the time for an appeal may have elapsed, as in such 
 case he could not file the bill while the appeal was 
 pending, and under such circumstances the period 
 during which the circuit court was deprived of ju- 
 risdiction is not computed in ascertaining whether 
 the limitation has ex|)ired.^ 
 
 AVhen the bill is founded upon matters discovered 
 since entry of decree, this limitation does not neces- 
 sarily apply; yet as bills of this character arc, ordi- 
 narily, appeals to the discretion of the chancellor, 
 the matter of the lapse of time is always one of
 
 UNITED STATKS CIRCUIT COUBTS. 91 
 
 weight in deciding what equitable discretion de- 
 mands in a given case.^ 
 
 Hence a party against whom a decree has gone 
 should be diligent in ascertaining whether cause for 
 review exists, and upon discovery thereof should 
 promptly apply for leave to file the proper bill. 
 
 'Not only so, but he should, so far as it is in his 
 power, perform the decree in all particulars, save 
 those in which, by performance, he would defeat the 
 rights sought to be protected by obtaining a review 
 of the decree, and the reasons why the decree is not 
 performed should be set forth in the bill.* 
 
 J Ensminger v. Powers, 108 U. S., 292. 
 
 2 Thomas v. Harvie"s Heirs, 10 Wheat., 146; Rubber Co. v. 
 Goodyear, 9 Wall., 805; Ricker v. Powell, 100 U. S., 104. 
 
 SRicker v. Powell, 100 U. S., 104; Davis v. Speiden, 104 
 U. S., 83. 
 
 CXXY» A bill of review is the proper remedy 
 when it is sought to set aside a decree on the ground 
 of fraud in the procurement thereof. 
 
 Tenny v. Bank, 92 U. S., 454. 
 
 CXXYI. The right to take an appeal, to petition 
 for a rehearing, or to file a bill of review, is ordi- 
 narily confined to the parties appearing of record. 
 
 If, after the entry of a decree and before the ap- 
 peal or rehearing is applied for, a party dies, his 
 ])roper legal representative or the proper party suc- 
 ceeding to his interest should be made party on the 
 record. 
 
 If one or more of a class represented on the record
 
 92 EQUITY PKACTICE. 
 
 by a few of the same class, or by a trustee or other 
 
 like representative, desires an appeal or a rehearing 
 
 for the protection of his interests, and he wishes to 
 
 be heard in respect thereto, he should apply to the 
 
 circuit court by petition and notice to the adversary 
 
 party for leave to become a party to the record for 
 
 the desired purpose. 
 
 Sage V. Railroad Co., 93 IT. S., 413; Ex parte Cutting, 94 
 U. S., 14; Thompson v. Maxwell, 95 U. S., 391.
 
 UNITED STATES CIECUIT COUKTS. 93 
 
 CHAPTER XIII. 
 
 PRELIMINARY INJUNCTIONS AND RESTRAINING 
 ORDERS. 
 
 CXXYII. Pending the hearing and final disposi- 
 tion of cases in equity, writs of injunction, when 
 cause therefor exists, may be issued by the circuit 
 court or any judge thereof. 
 
 The justices of the supreme court cannot hear or 
 allow any- application for a restraining order or an 
 injunction in a case pending in the circuit court, ex- 
 cept within the limits of the judicial circuit to which 
 they are severally assigned, except in cases wherein 
 such application cannot be heard by the circuit or 
 district judges. 
 
 As one of the judges of the circuit court, the dis- 
 trict judge cannot order the issuance of an injunc- 
 tion, if the party applying therefor has had a reason- 
 able time to apply to the circuit court for the writ. 
 
 An injunction allowed by a district judge con- 
 tinues in force only until the first day of the next 
 term of the circuit court. 
 
 If it is desired to continue the same, an order to 
 that effect must be procured from the court. 
 
 Revised Statutes, section 719. Parker v. Judges, 12 Wheaton, 
 561. 
 
 CXXYIII. "When the bill prays an injunction to 
 stay proceedings at law, if the defendant does not 
 appear and plead, demur or answer to the same 
 within the time required by the rules, the complain-
 
 9-1: EQUITY rEACTICE. 
 
 ant is entitled as of course, and upon motion with- 
 out notice, to the issuance of the writ for the pur- 
 pose named. 
 
 In other cases injunctions are granted only after 
 a hearing by the court if in session, or by a judge 
 thereof, due notice of the application being first 
 given to the adverse party. 
 
 Injunctions awarded in vacation, unless previously 
 dissolved by the judge granting the same, continue 
 in force until the next term of the court, or until 
 dissolved by some order of court. 
 
 It is the safer practice, if it is desired to continue 
 the injunction granted in vacation, to obtain an 
 order for its continuance on the first day of the next 
 ensuing term of the court. 
 
 Rule 55. 
 
 CXXIX. Upon notice being given of a motion 
 for an injunction, the court or judge, if there ap- 
 pears to be danger of irreparable injury from delay, 
 may grant an order restraining the act sought to be 
 enjoined until the decision upon the motion for the 
 injunction, which restraining order may be granted 
 with or without security, in the discretion of the 
 court or judge. 
 
 Revised Statutes, section 718. 
 
 CXXX. The courts of the United States, or the 
 judges thereof, cannot by injunction stay proceed- 
 ings in the courts of the state, except in cases where 
 such injunction is authorized by the laws relating 
 to proceedings in bankruptcy. 
 
 Revised Statutes, section 720.
 
 UNITED STATES CIRCUIT COURTS. 95 
 
 CHAPTER XIY. 
 
 CROSS-BILLS. 
 
 CXXXI. A cross-bill, being a bill brought by a de- 
 fendant against the complainant, or against other 
 defendants, or against both, is usually filed (1) to ob- 
 tain a discovery of facts in aid of the defense to the 
 original bill, or (2) to obtain full relief touching the 
 matters of the original bill. 
 
 When filed for the purposes of discovery only 
 against the complainant, the defendant to the origi- 
 nal bill must answer the original bill before the com- 
 plainant therein can be required to answer the cross- 
 bill.i 
 
 The statutory change in the admissibility of par- 
 ties in interest as witnesses has largely obviated the 
 necessity of resorting to a cross-bill for the sole pur- 
 poses of discovery. 
 
 When filed for purposes of relief, the cross-bill 
 must be based upon the matters in question in the 
 original bill, and it must appear that a settlement of 
 the controversy presented by the cross-bill is fairly 
 necessary in order to enable the court to fully dis- 
 pose of the litigation connected with the matter of 
 the orio;inal bill.'^ 
 
 Leave to file a cross-bill must be procured before 
 filing same or the bill may be disregarded at the 
 hearing.^ 
 
 New parties cannot be introduced by a cross-bill.*
 
 06 EQUITY PEACTICE. 
 
 The cross-bill should pray process against those 
 raade defendants thereto, and unless they appear to 
 the cross-bill a subpoena should be issued and served 
 upon them.^ 
 
 The defendants therein may, by demurrer, plea 
 or answer, make defense to the allegations and relief 
 sought by the cross- bill. 
 
 1 Rule 72. 
 
 2 Cross V. De Valle, 1 Wall., 1; Rubber Co. v. Goodyear, 9 
 Wall., 807; Railroad Co. v. Chamberlain, 6 Wall, 748; Kings- 
 bury V, Buckner, 134 U. S., 650; Chicago, etc., Ry. Co. v. Chicago 
 Bank, 134 U. S., 276; Morgan Steamship Co. v. Texas Central 
 R. R. Co., 137 U. S., 171. 
 
 3Bronson v. Railroad Co., 2 Wall., 283. 
 
 4 Shields v. Barrow, 17 How., 130; Bank v. Railroad Co., 11 
 Wall., 624. 
 
 5 Washington R. R. Co. v. Bradleys, 10 Wall., 299.
 
 UJSIITED STATES CIRCUIT COURTS. 97 
 
 CHAPTER XY. 
 
 RIGHT OF INTERVENTION BY THIRD PARTIES. 
 
 CXXXII. Where a person not a party to the orig- 
 inal bill has an interest by way of title, lien or other- 
 wise in the property which forms the subject-matter 
 of the suit, or which has, by means of process or 
 order of the court, passed into the possession or 
 under the control of the court, and such interest is 
 liable to h6 affected by the proceedings, he may, by 
 petition, apply to the court for leave to intervene 
 for the protection of his rights, and such leave will 
 be granted when cause exists. 
 
 The right of the court to grant such leave and to 
 hear and adjudicate upon the rights of such inter- 
 vener is not defeated by reason of the fact that such 
 intervener and complainant are citizens of the same 
 state. 
 
 If leave is granted, the party obtaining same must 
 forthwith, unless time be granted, file his petition 
 in the cause, setting forth his rights, and praying 
 for the relief sought, and give notice of the filing 
 thereof to the other parties to the cause. 
 
 Freeman v. Howe, 24 How., 450; Krippendorf v. Hyde, 110 
 U. S., 276; Gunibel v. Pitkin, 113 U. S., 545; Stewart v. Dur- 
 ham, 115 U. S., 61; Gurabel v. Pitkin, 124 U. S., 143. 
 7
 
 98 EQUITY PRACTICE. 
 
 CitAPTER XYI. 
 
 APPEALS TO SUPREME AND CIRCUIT COURT OF AP- 
 PEALS. 
 
 CXXXIII. By section 1012 of the Eevised Stat- 
 utes it is enacted that appeals from the district and 
 circuit courts shall be subject to the same rules, reg- 
 ulations and restrictions as are or may be prescribed 
 in law in cases of writs of error, and hence it is 
 that many sections of the statutes, which in terms 
 refer only to writs of error, are held applicable also 
 to cases on appeal. 
 
 Danville v. Brown, 128 U. S., 503. 
 
 CXXXIY. The adoption of the act of congress, 
 approved March 3, 1801, creating the circuit courts 
 of appeals, greatly changed and enlarged the right 
 of appeal in equity cases. The appellate jurisdiction 
 previously existing in the circuit courts is abolished ; 
 all previously existing limitations upon the right of 
 appeal, based uyion the amount in controversy, are 
 swept away, and provision is made for an appeal in 
 all cases cognizable in the district or circuit courts, 
 the original appellate jurisdiction being distributed 
 between the supreme court and the circuit courts of 
 np]ieals Avithin their respective circuits, provision 
 being also made for securing ultimate uniformity of 
 decision on all questions, by authorizing the several 
 circuit courts of appeals to certify to the sui)reme 
 court for its instruction specific questions of law
 
 UNITED STATES CIRCUIT COURTS. l/i> 
 
 arising in the cases pending before them, and by 
 granting to the supreme court the power, by certio- 
 rari or otherwise, to cause to be brought before that 
 court, for hearing and final decision, any case pend- 
 ing in a circuit court of appeals, 
 
 26 Statutes at Large, 826. McLish v. Roff, 141 U. S., 661. 
 
 CXXXY. According to the provisions of the act 
 of 1891, the appeal lies to the supreme court, — 
 
 When the jurisdiction of the trial court is in issue, 
 in which case the question of jurisdiction alone is 
 certifiable to the supreme court; 
 
 "When the case involves the construction or appli- 
 cation of the constitution of the United States; 
 
 When in the case there is drawn in question the 
 constitutionality of any law of the United States, or 
 the validity or construction of any treaty made under 
 the authority of the United States; 
 
 When in the case it is claimed that the constitu- 
 tion or law of a state is in contravention of the con- 
 stitution of the United States.^ 
 
 In all other cases the appeal lies in the first in- 
 stance from a final order or decree of the circuit 
 court to the circuit court of appeals of the proper 
 circuit.^ And in cases wherein an appeal to a circuit 
 court of appeals will lie from the final decree, an 
 appeal to the proper circuit court of appeals may be 
 taken from an interlocutory order or decree grant- 
 ing, continuing, refusing, dissolving or refusing to 
 dissolve an injunction.^ 
 
 126 Statutes at Large, 828. 
 2 28 Statutes at Large, 666.
 
 loo EQUITY PKACTICE. 
 
 CXXXVI. In construing the provisions of the stat- 
 ute regulating appeals, the supreme court has laid 
 down the following rules for determining the court 
 to which appeals are to be taken in the first instance: 
 
 If the jurisdiction of the circuit court is questioned 
 and the decision of the trial court is against the ex- 
 istence of jurisdiction, thus resulting in the dismissal 
 of the case, the party interested in sustaining the 
 jurisdiction must have the question of jurisdiction 
 properly certified and thereupon take an appeal to 
 the supreme court. 
 
 If the jurisdiction of the circuit court, being ques- 
 tioned, is sustained, an appeal cannot be taken until 
 the case is determined on the merits; and if upon 
 the merits the decree is for the defendant, then the 
 complainant must appeal the whole case to the 
 proper circuit court of appeals, and if in that court 
 the question of the jurisdiction of the trial court 
 arises, the circuit court of appeals may certify it to 
 the supreme court for decision. 
 
 If the jurisdiction of the circuit court, being ques- 
 tioned, is sustained, and upon the merits the decree 
 is in favor of the complainant, the defendant ma}'" 
 elect to stand upon the question of jurisdiction alone, 
 in which event the apj)eal will be to the supreme 
 court direct, or he may elect to carry the whole case 
 by ai)peal to the })roper circuit court of ajipcals, and 
 if in that court the question of the jurisdiction of 
 the circuit court is presented, it may bo certified by 
 the circuit court of appeals to the supreme court.
 
 UNITED STATES CIRCUIT COURTS, 101 
 
 If the jarisdiction of the circuit court, being ques- 
 tioned, is sustained, and a decree on the merits is 
 rendered against the defendant, yet touching which 
 the complainant has ground of complaint, the latter 
 may take an appeal on the merits to the proper cir- 
 cuit court of appeals. The defendant may take an 
 appeal on the question of jurisdiction to the supreme 
 court direct, or may appeal the case to a circuit court 
 of appeals, but cannot do both. If the defendant 
 appeals to the supreme court on the question of ju- 
 risdiction, the complainant can appeal to a circuit 
 court of appeals on the merits, which court will en- 
 tertain the appeal, but will suspend a decision on the 
 merits until the supreme court has passed on the 
 question of jurisdiction. If the defendant appeals 
 to a circuit court of appeals on the merits, the com- 
 plainant may take a cross-appeal to the same court, 
 and if the question of jurisdiction is presented the 
 circuit court of appeals may certify the same to the 
 supreme court for decision ; and the same rules apply 
 to cases wherein the complainant questions the ju- 
 risdiction of the circuit court, but the jurisdiction 
 is sustained and a decree is entered upon the merits 
 with which the complainant is, or both complainant 
 and defendant are, dissatisfied. 
 
 United States v. Jahn, 155 U. S., 109; Robinson v. Caldwell, 
 165 U. S., 359. 
 
 CXXXYII. From the rules thus established it fol- 
 lows that the one party cannot take an appeal to 
 the supreme court upon the question of jurisdiction
 
 102 EQUITY PRACTICE. 
 
 and also take an appeal to a circuit court of appeals 
 on the merits; but one party may go by appeal to 
 the supreme court on the question of the jurisdic- 
 tion of the circuit court, and the adversary party 
 may take an appeal on the merits to a circuit court 
 of appeals. 
 
 McLish V. Roff, 141 U. S., 661; United States v. Jahn, 155 
 U. S., 109. 
 
 CXXXYIII. In cases wherein an appeal lies direct 
 to the supreme court, on the ground that there is 
 involved therein the construction or application of 
 some provision of the constitution of the United 
 States, or the constitutionality of a law of the United 
 States, or the construction or validity of a treaty of 
 the United States, or the validity of the constitution 
 or law of a state, and a general appeal is allowed, 
 the supreme court has the power to dispose of the 
 entire case upon the merits, including the question 
 of jurisdiction. 
 
 Chappell V. United States, 160 U. S., 499; Robinson v. Cald- 
 well, 165 U. S., 359. 
 
 CXXXIX. Appellate jurisdiction may be exer- 
 cised by the supreme court over cases pending in 
 the circuit courts of appeals in three modes, to wit: 
 \*y entertaining questions of law duly certified to it 
 from a court of api)cals; by issuing a writ of certio- 
 rari to a court of appeals and thereby causing the 
 record in the case to bo sent uj) to the supreme 
 court for its consideration; by means of an appeal 
 properly taken in cases wiierein by statute an appeal 
 is given as matter ol' right.
 
 UNITED STATES CIRCUIT COURTS. l03 
 
 In section G of the act of March 3, 1891, creating 
 the circuit courts of appeals, it is provided that in 
 any case coming within the appellate jurisdiction of 
 a circuit court of appeals that court may certify to 
 the supreme court any questions or propositions of 
 law concerning which it desires the instruction of the 
 supreme court for the proper decision of the case 
 pending before it. In form, the certificate of the 
 questions to be submitted must be prefaced with a 
 brief statement of the nature of the case, and with 
 a proper statement of the facts, sufficient to show 
 the pertinency of the questions of law upon which 
 the instructions of the supreme court are sought.' 
 The questions submitted must be of law onl}^, and 
 not of fact or of law and fact intermingled or com- 
 bined, and must not present the entire case split up 
 into questions of law.^ 
 
 1 Supreme Court Rule 37. 
 
 2 Graves v. Faurot, 162 U. S., 435; Cross v. Evans, 167 U. S„ 
 60; Warner v. New Orleans, 167 U. S., 467. 
 
 CXL. If, upon examination of questions of law 
 thus certified from a circuit court of appeals, the 
 supreme court deems it advisable, it may require 
 that the whole record and cause be sent up to it 
 from the circuit court of appeals, and may thereupon 
 decide the whole matter in controversy in the same 
 manner as if it had been brought there for review 
 by an original appeal; and if application for that 
 purpose is made to the supreme court, a certified 
 copy of the record must accompany the application. 
 
 1 26 Statutes at Large, 828; Supreme Court Rule 37.
 
 104: EQUITY PRACTICE. 
 
 CXLI. It is furthermore provided in section 6 of 
 the act of March 3, 1891, that in any case wherein 
 an appeal does not exist as a matter of right to the 
 supreme court from the decision of a court of ap- 
 peals, the supreme court may require, by certiorari 
 or otherwise, that the case be certified to it for its 
 review and determination. 
 
 It is held that the power thus granted to the su- 
 preme court to require a case to be certified to it is 
 one to be sparingly exercised and only in cases of 
 peculiar gravity and importance, or where necessary 
 to secure uniformity of decision in the several cir- 
 cuits. 
 
 In re Lau Ow Bew, 141 U. S., 583; Lau Ow Bew v. United 
 States. 144 U. S., 47; In re Woods, 143 U. S., 202; Amer. Const. 
 Co. V. Railway Co., 148 U. S., 372; Forsyth v. Hammond, 166 
 U. S., 506. 
 
 CXLII. "When the issuance of a certiorari is sought 
 under this clause of the statute, the petition there- 
 for must be filed in the supreme court, must con- 
 tain a clear statement of the grounds relied upon 
 for the issuance of the writ, and must be accompa- 
 nied with a certified copy of the entire record of 
 the case, as the same exists in the circuit court of 
 appeals. 
 
 Supreme Court Rule 37. 
 
 CXLTIT. I5y tbc provisions of section 6 of the 
 act of IMarcli 3, IS'JI, the decisions of the circuit 
 courts of api)oal are made final in all cases wherein 
 the federal jurisdiction is dependent entirely upon
 
 UNITED STATES CIRCUIT COURTS, 105 
 
 the opposite parties to the suit or controversy being 
 aliens and citizens of the United States or citizens 
 of different states, and in cases arising under the 
 patent or revenue laws. In all other cases determi- 
 nable in a circuit court of appeals, a right of appeal 
 to the supreme court exists from the decision of the 
 circuit court of appeals, provided the matter in con- 
 troversy exceeds in amount the sum of $1,000, ex- 
 clusive of costs. 
 
 The mode of taking such appeal is the same as in 
 cases of appeal from a circuit court, requiring the 
 filing of an assignment of errors in the circuit court 
 of appeals, the allowance of an appeal by a judge 
 of that court or by a justice of the supreme court 
 and the filing of the transcript in the supreme court, 
 the time limited for taking an appeal in such cases 
 being one year. 
 
 CXLIY. To authorize an appeal under this clause 
 of the act, it must appear that the matter actually 
 in controversy exceeds in value the sum of $1,000 
 besides costs, and therefore, unless upon the face of 
 the record this value is made to appear, evidence 
 thereof should be supplied by affidavits; and the 
 better practice is to file them in the trial court and 
 to obtain a finding of that court upon the question 
 of the amount involved ' although such finding is 
 not binding on the supreme court.'^ 
 
 It is the amount involved in the controversy, when 
 sought to be appealed, that determines the jurisdic- 
 tion. Thus, if a party seeks to recover money or
 
 106 EQUITY PRACTICE. 
 
 property in excess of $1,000 and recovers a part, lie 
 cannot appeal unless the difference between the re- 
 covery and the amount or value of the property he 
 sought to recover exceeds §1,000,- 
 
 1 Wilson V. Blair, 119 U. S., 387; Red River Cattle Co. v. 
 Needham, 137 U. S., 632; Rector v. Lipscomb, 141 U. S., 557. 
 
 2 Hilton V. Dickinson, 108 U.S., 165; New England Mort- 
 gage Co. V. Gay, 145 U. S., 123; Hollander v. Fechheinier, 163 
 U. S., 326. 
 
 CXLY. In cases wherein the decision and decree 
 of a circuit court of appeals are made final under 
 the sixth section of the act of March 3, 1891, and 
 wherein orders or decrees are rendered upon pro- 
 ceedings in intervention or in auxiliary or ancillary 
 proceedings, an appeal to the supreme court cannot 
 be taken from a circuit court of appeals with re- 
 spect thereto, as decrees entered in accessory and 
 subordinate proceedings partake of the nature of 
 the decree in the original suit. 
 
 Rouse V. Letcher, 156 U. S., 47; Gregory v. Van Ee, 160 
 U. S., 043; Carey v. Houston & Texas Ry. Co., 161 U. S., 115.
 
 UNITED STATES CIRCUIT COURTS. 107 
 
 CHAPTER XVII. 
 
 TIME WITHIN WHICH APPEALS CAN BE TAKEN. 
 
 CXLYI In cases appealable in the first instance 
 to the supreme court, the appeal must be taken 
 within two years from the entry of the order or 
 decree appealed from, unless the party seeking the 
 appeal is an infant, insane, or imprisoned, in which 
 cases the time during Avhich such disability exists is 
 excluded from computation. 
 
 Revised Statutes, section 1008. 
 
 CXLYII. In cases appealable in the first instance 
 to a circuit court of appeals, the appeal must be 
 taken within six months after the entry of the order 
 or decree sought to be reviewed,^ unless a shorter 
 time is allowed by the act creating the right of ap- 
 peal,^ as in cases of appeal from an order granting, 
 continuing, refusing, dissolving or refusing to dis- 
 solve a writ of injunction, in which cases the appeal 
 must be taken in thirty days. 
 
 1 26 Statutes at Large, 829. 
 
 2 28 Statutes at Large, 666. 
 
 CXLYIII. In cases appealable, as matter of right, 
 from the circuit courts of appeals to the supreme 
 court, the appeal must be taken within one year from 
 the entry of the order or decree by the circuit court 
 of appeals. 
 
 26 Statutes at Large. 828.
 
 108 EQUITY PKACTICE. 
 
 CXLIX. In cases wherein an appeal is sought 
 to a circuit court of appeals from an interlocutory 
 order or decree ffrantins:, continuino^, refusino; dis- 
 solving or refusing to dissolve an injunction, the ap- 
 peal must be taken within thirty days from the 
 entry of the order or decree. 
 
 28 Statutes at Large, 666. 
 
 CL. In computing the time within which an ap- 
 peal may be taken, the day on which the order or 
 decree sought to be appealed from was entered is 
 not included.^ 
 
 If an application for a rehearing is duly filed in 
 and entertained by the trial court, the time limited 
 for taking an appeal does not begin to run until the 
 application for rehearing is overruled.'^ 
 
 1 Smith V. Gale, 137 U. S., 577. 
 
 2 Brocket v. Brocket, 2 How., 238; Memphis v. Brown, 94 
 U. S., 715; Texas & Pacific Ry. Co. v. Murphy, 111 U. S., 488; 
 Aspen Mining Co. v. Billings, 150 U. S., 31. 
 
 CLI. If upon the entry of an order or decree an 
 appeal therefrom is allowed, the trial court during 
 the term at which the decree is entered, and before 
 the jurisdiction of the appellate court attaches by 
 the filing of the transcript in that court, may enter- 
 tain an a|)plication for a rehearing, and if the same 
 is granted the jui-isdiction of the trial court remains 
 unaffected, and the appeal cannot be perfected.^ 
 
 If in such case the application for rehearing is en- 
 tertained, but upon consideration is refused, then a 
 new appeal should be taken, the same as though an
 
 UNITED STATES CIRCUIT COURTS. 109 
 
 appeal had not been previously allowed, as it is the 
 overruling of the application for a rehearing which 
 renders the decree final and therefore appealable.^ 
 
 iGoddard v. Ordway, 101 U. S., 745; Keyser v. Farr, 105 
 U. S., 265; Aspen Mining Co. v. Billings, 150 U. S., 31. 
 2 Voorhees v. Noye Man. Co., 151 U. S., 135. 
 
 CLII. If the last day of the period fixed by stat- 
 ute for taking an appeal falls upon a non-juridical 
 day, such as Sunday or a legal holiday, the time for 
 taking an appeal ends with the day preceding the 
 non-juridical day. This is the rule held by the cir- 
 cuit court of appeals in the eighth circuit in the case 
 of Johnson v. Myers, 4 C. C. A., 399; and although 
 as stated by the supreme court in Street v. United 
 States, 133 U. S., 299, the general rule is that a 
 power that may be exercised up to and including a 
 given day, if that day falls on Sunday, may be ex- 
 ercised on the following day, yet, in cases of appeal, 
 safety lies in taking the appeal within the time lim- 
 ited, according to the ruling in Johnson v. Myers, 
 su;pra.
 
 110 EQUITY PKACTICE. 
 
 CHAPTER XVIII. 
 
 ALLOWANCE OF APPEALS — CITATION — RETURN 
 DAY — ASSIGNMENT OF ERRORS — SECURITY — 
 SUPERSEDEAS. 
 
 CLIII. During the term at which the order or de- 
 cree sought to be appealed from was entered, tho 
 appeal ma_y be allowed in open court without filing 
 a petition to that end ; but, unless thus allowed ia 
 open court, a petition praying an appeal must be 
 prepared, and be submitted to a judge or justice 
 authorized to grant an appeal in the particular case. 
 Under the rules now in force, an assignment of errors 
 must be filed with the clerk of the circuit court be- 
 fore an appeal is properly allowable. 
 
 Brown v. McConnell, 124 U. S., 489. 
 
 CLIV#. If an appeal allowed in open court is per- 
 fected by filing in the appellate court the transcript 
 and docketing the case within the re(j[uired time, the 
 issuance and service of a citation is not necessary; 
 but, unless the case is properly docketed and in cases 
 wherein an appeal is allowed upon petition and not 
 in open court, a citation must be issued and be 
 served within tho time fixed b}'' tho rules of the ap- 
 ])ellato court, or the ajjpeal will become inoi)erative. 
 
 llowitt V. Filbert, IIG U. S., 113; Jacobs v. Ceorge, 150 U. S., 
 4\r,. 
 
 CLY. A citation is a notice admonishing the ad- 
 versary ])arty that an ap|)eal in tho given case has
 
 UNITED STATES CIRCUIT COURTS. Ill 
 
 been allowed, and that he must appear at the proper 
 time in the appellate court if he wishes to be heard 
 in the cause, and is signed by a judge or justice au- 
 thorized to grant an appeal in the particular case. 
 
 CLVI. In cases appealed to the supreme court the- 
 citation must be made returnable not exceeding 
 thirty days from its date, w^hether the return day 
 fall in vacation or in term time, and must be served 
 before the return day, except in appeals from Cal- 
 ifornia, Oregon, Nevada, Washington, jS^ew Mexico, 
 Utah, Arizona, Montana, Wyoming, North Dakota, 
 South Dakota, Alaska and Idaho, in which cases the 
 time is extended to sixty days. 
 
 Supreme Court Rules 8, 9. 
 
 CLYII. In cases appealed from final orders and 
 decrees to the circuit courts of appeal, the citation 
 must be made returnable not exceeding thirty days 
 from its date, whether the return day fall in vaca- 
 tion or in term time, and must be served before the 
 return day, except in the eighth circuit, wherein the 
 time is sixty davs, and except also in the fifth cir- 
 cuit, in cases of appeal from an order granting, con- 
 tinuing, dissolving or refusing to dissolve an injunc- 
 tion under the provisions of the act of February 18, 
 1895, wherein the citation must be made returnable 
 and be served within ten days from its date. 
 
 Circuit Courts of Appeal Rules, 14. 
 
 CLYIII. As already stated, the party desiring to 
 take an appeal must file with the clerk of the trial
 
 112 EQUITY PEACTICE. 
 
 ■court a proper assignment of errors, and an appeal 
 is not properly allowable until the assignment is 
 filed. If allowed without the filing of an assign- 
 ment of error, the appellate court may dismiss the 
 appeal, although it may notice a plain error appear- 
 ing on the record. 
 
 Revised Statutes, section 997; Supreme Court Rule 35; Cir- 
 cuit Courts of Appeals Rules 11. Churchill v. Farrar, 135 U. S., 
 C09. 
 
 CLIX. The assignment should set out separately 
 and particularly each error intended to be urged 
 before the appellate court, and in case the error 
 alleged is to the admission or rejection of evidence, 
 the assignment must quote the full substance of the 
 evidence admitted or rejected. 
 
 The purpose of the assignment of errors is to point 
 out to the appellate court, and to the appellee, the 
 specific questions which are to be submitted for de- 
 cision, and each error assigned should include but 
 one question only, stated with fullness sufiicient so 
 that the gist thereof can be gathered from the as- 
 signment itself. 
 
 On the one hand, therefore, it is necessary that 
 the errors assigned should be sufficient in number 
 and be sufficiently specific to fairly cover and point 
 out the several matters in which it is claimed the 
 trial court erred, and this is not accomplished by 
 errors assigned in general terms. And on the other 
 hand, it is advisable to avoid assigning a large num- 
 ber of errors, covering eveiy possible detail in which
 
 UNITED STATES CIRCUIT COURTS. 113 
 
 it might be claimed error existed, or repeating the 
 same question in slightly varying forms. 
 
 The aim should be to reduce the errors assigned 
 to the number necessary to fairly present the ques- 
 tions at issue, and then to make each specification of 
 error sufficiently full and clear so that no doubt will 
 exist touching the question intended to be presented 
 thereby. 
 
 CLX. The record must show that the questions 
 upon which errors are assigned were raised in the 
 trial court, as the assignment of errors cannot be 
 availed of as a means for importing into the case 
 questions not presented to the trial court. 
 
 Ansbro v. United States, 159 U. S., 695. 
 
 CLXI. The petition praying an appeal to the su- 
 preme court from an order or decree of a district or 
 circuit court may be submitted for allowance to and 
 be allowed by any district judge within his district, 
 by any circuit judge within his circuit, or by any 
 justice of the supreme court. 
 
 CLXII. If the appeal is sought to the circuit court 
 of appeals from an order or decree of a district or 
 circuit court, the petition may be submitted to and 
 allowed b}"" any district judge in cases pending within 
 his district, by any circuit judge in cases pending 
 within his circuit, and by the supreme justice assigned 
 to the circuit w^hereiu the case is pending. 
 
 CLXIII. If the appeal is sought from a judgment 
 or decree of a circuit court of appeals to the supreme 
 court, the petition for allowance may be submitted 
 8
 
 114 EQUITY PRACTICE. 
 
 to and allowed by any of the judges of the court of 
 appeals from which the appeal is sought, or by any 
 of the justices of the supreme court. 
 
 CLXIY. The judge by whom an appeal is al- 
 lowed will designate the amount of the bond required 
 as a condition of appeal. 
 
 If it is desired to supersede the execution of the 
 order or decree appealed from, the bond must be 
 conditioned that the appellant shall prosecute his 
 appeal to effect and answer all damages and costs 
 if he fail to make his plea good; and the amount 
 thereof, where the decree is for the recovery of 
 money not otherwise secured, must be in a sum suffi- 
 cient to cover the whole amount of the judgment, 
 including just damages for delay and costs and in- 
 terest on the appeal; but where the property in 
 controversy necessarily follows the suit, as in real 
 actions and mortgage foreclosures, or where the prop- 
 erty or its proceeds or a bond for its value is in the 
 hands of the marshal or in possession of the court, 
 the amount of the bond need be only in a sum suffi- 
 cient to secure the sum recovered for the use and 
 detention of the property, the costs of suit, and just 
 damages for delay and costs and interest on appeal. 
 
 Revised Statutes, section 1000; Supreme Court Rule 29; Cir- 
 cuit Courts of Appeals Rule 13. 
 
 CLXV. If the appeal is not to act as a svjyersedeas, 
 then the bond is conditioned that the appellant shall 
 prosecute his ai)|)eal to elfect, and if ho fail to make 
 good his pl(,'a shall answer all costs.
 
 UNITED STATES CIRCUIT COURTS. 115 
 
 In cases brought up by the United States or by 
 direction of any department of the government, no 
 security is required to be given. 
 
 The judge or justice who allows the appeal or 
 signs the citation, or one who is authorized so to do, 
 must approve the security, and this duty cannot be 
 delegated to the clerk. 
 
 Revised Statutes, section 1000; O'Reillj v. Edgington, 90 
 U. S., 724. 
 
 CLXVI. On appeals from interlocutory orders or 
 decrees granting, continuing, dissolving or refusing 
 to dissolve injunctions, the court may at its discre- 
 tion require the filing of an additional injunctioa 
 bond, and the appellant must also file a bond as se- 
 curity for costs. 
 
 28 Statutes at Large, 666. 
 
 CLXVII. In cases wherein the appellant desires 
 to stay the execution of an order or decree pending 
 an appeal therefrom, he must procure the allow- 
 ance of an appeal and give the required security, 
 duly approved, within sixty days, Sundays not in- 
 cluded, after the entry of the order or decree. 
 
 If the appeal is allowed within the sixty days, 
 but the requisite security is not given and approved 
 within that time, the same, by permission of a jus- 
 tice or judge of the appellate court, may be after- 
 wards given, and process on the decree be stayed. 
 
 Revised Statutes, sections 1007-1013; 18 Statutes at Large, 
 318. Telegraph Co. v. Eyser, 19 Wall, 419.
 
 116 EQUITY PKACTICE. 
 
 CLXyill. A supersedeas of its own force does 
 not suspend the effect of a final decree granting, re- 
 fusing or dissolving an injunction. To accomplish 
 this, a justice or judge who took part in the decision 
 of the cause may in his discretion, at the time of 
 the allowance of the appeal, make an order suspend- 
 ing or modifying the injunction pending the appeal, 
 upon such terms as to bond and otherwise as he may 
 deem proper for the security of the rights of the 
 opposite party. 
 
 Rule 93. Hovey v. McDonald, 109 U. S., 150; Knox v. Harsh- 
 man, 132 U. S., 14.
 
 UNITED STATES CIKCDIT COURTS. 117 
 
 CHAPTER XIX. 
 
 APPEALABLE DECREES — FINAL — INTERLOCUTORY. 
 
 CLXIX. Except in the case of appeals from orders 
 with respect to injunctions, an appeal can be taken 
 only from final orders or decrees.^ Ordinarily an 
 appeal will not lie until all the matters in contro- 
 versy between the parties to the record have been 
 determined, so as to obviate the necessity of succes- 
 sive appeals.^ 
 
 If, however, the suit involves separable matters of 
 controversy and the trial court determines them 
 separately, an appeal may be taken from each decree 
 entered, which is final with respect to the contro- 
 versy affected by it.^ 
 
 1 Revised Statutes, section 692. Mordecai v. Lindsay, 19 
 How., 199. 
 
 ■■^Forgay v. Conrad, 6 How., 200. 
 
 3 Hill V. Chicago, etc., R. R. Co., 140 U. S., 52; Rouse v. 
 Letcher, 156 U. S., 47. 
 
 CLXX. Successive appeals may be taken in cases 
 wherein the court enters a decree final in its effect 
 upon the matters in litigation, and therefore appeal- 
 able, and subsequently enters orders or decrees in 
 execution of the prior decree. The second or suc- 
 cessive appeals are available only for the purpose of 
 correcting errors in the subsequent decrees. 
 
 Railroad Co. v. Fosdick, 106 U. S., 47; Lewisburg Bank v. 
 Sheffey, 140 U. S., 445; Hill v. Railroad Co., 140 U. S., 52.
 
 118 EQUITY PFvACTICE. 
 
 CLXXI. If the decree accomplishes the purposes 
 of the suit by determining the litigated matters or 
 the questions included within the issues, and, with- 
 out further judicial action, fixes the rights and lia- 
 bilities of the parties, as b}'' settling the title or right 
 of possession to property, or directing the perform- 
 ance of a specific act, or directing the sale of prop- 
 erty upon foreclosure of mortgages or other liens, 
 in these and like cases the decree is deemed to be 
 final for the purposes of appeal, although the trial 
 court may continue its jurisdiction over the case for 
 ministerial purposes,, such as making sale of property 
 or taking an account rendered necessary by the 
 terras of the decree, or otherwise executing the de- 
 cree rendered. 
 
 Decrees held final: Ray v. Law, 3 Cranoli, 179; Wliiting v. 
 Bank, 13 Peters, 6; Forgay v. Conrad, 6 How., 201: Wabash 
 V. Beers, 1 Black, 54; Bronson v. Railroad Co., 3 Black, 5.24; 
 Blossom V. Railroad Co., 1 Wall, 655; Thomson v. Dean, 7 
 Wall., 342; Railroad Co. v. Bradley, 7 Wall., 575; French v. 
 Shoemaker, 12 Wall., 8G; Crosby v. Buchanan, 23 Wall., 420; 
 Fuller V. Claflin, 93 U. S., 14; Ex parte Railroad Co., 95 U. S., 
 221; Winthrop v. Meeker, 109 U. S., 180; First National Bank 
 V. Shedd, 121 U. S., 74; Stewart v. Masterson, 131 U. S., 151; 
 In re Farmers' Loan & Trust Co., 129 U. S., 205; Central Trust 
 Co. V. Grant Locomotive Works, 135 U. S., 207; Wheeling & 
 B. Bridge Co. v. Wheeling Bridge Co., 138 U. S., 287; Fowler 
 V. llamill, 139 U. S., 549; Hill v. Chicago R. R. Co., 140 U. S., 
 52; Bank v. Sheffoy, 140 U. S., 445. 
 
 CLXXIl. If, liowever, the decree, although in form 
 final, cannot be immediately carried into clfect, and 
 does not executo itself, but to that end needs further
 
 UNITED STATES CIKCUIT COUKTS. 119 
 
 judicial action on part of the court, it is deemed to 
 be interlocutory only, and therefore an appeal can- 
 not be taken therefrom. 
 
 Decrees held not final: Hiriart v. Ballou, 9 Peters, 158; Lea v, 
 Kelly, 15 Peters, 213; Young v. Smith, 15 Peters, 287; Perkins 
 V. Fourniquet, 6 How., 206; Pulliam v. Christian, 6 How., 209; 
 Craighead v. Wilson, 18 How., 199: Beebe v. Russel, 19 How., 28:3; 
 Ogilvie V. Knox Ins. Co., 2 Black, 589; Huiuiston v. Staintliorpe- 
 3 Wall., 106; Wheeler v. Harris, 13 Wall., 51; Thomas v. Wool- 
 bridge, 23 Wall., 283; Railroad Co. v. Swasey, 23 Wall., 405; But, 
 terfield v. Usher, 91 U. S., 246; Bostwick v. Brinkerhoff, 106 U. S., 
 3; Grant v. Insurance Co., 106 U. S., 429; Grant v. Insurance 
 Co., 121 U. S., 118; Bank v. Whitney, 121 U. S., 284; Parsons v. 
 Bostwick, 122' U. S., 112; Railroad Co. v. Simmons, 123 U. S., 
 52; Barker v. Craig, 127 U. S., 213; Keystone Manganese Co. v. 
 Martin, 132 U. S., 91; Winters v. Ettrell, 132 U. S., 207; Meagher 
 V. Thresher Co., 145 U. S., 608; McGourkey v. Toledo & O. C. 
 R. Co., 146 U. S., 536; Luxton v. North River Bridge Co., 147 
 U. S., 337; Hohorst v. Hamburg Am. Packet Co., 148 U. S., 262; 
 Latta V. Kilbourn, 150 U. S., 524. 
 
 CLXXIII. The general rule allowing appeals to be 
 taken from final decrees only is qualified by the pro- 
 visions of the act of congress approved February 
 18, 1895,^ amending section 7 of the act approved 
 March 3, 1891,^ providing for an appeal to a circuit 
 court of appeals from an interlocutory order or de- 
 cree granting, continuing, refusing, dissolving or re- 
 fusing to dissolve an injunction, in all cases wherein 
 an appeal from a final decree will lie to a circuit 
 court of appeals; and upon such an appeal, if the 
 record before the appellate court is such that thereby 
 the merits of the controversy are presented, the ap- 
 pellate court may decide the controversy on the mer-
 
 120 EQUITY PRACTICE. 
 
 its, not being limited to the consideration of the 
 
 order made with respect to the injunction.^ 
 
 1 28 Statutes at Large, 666. 
 2 26 Statutes at Large, 828. 
 3 Smith V. Vulcan Iron Works, 165 U. S., 518. 
 
 CLXXIY. Previous to the adoption of the acts of 
 congress just cited, it was held that in cases brought 
 under the patent laws of the United States, to se- 
 cure relief by way of injunction and an accounting 
 for profits or damages, a decree sustaining the va- 
 lidity of the patent sued on, finding infringement 
 thereof on part of the defendant and granting an 
 injunction in restraint thereof, was not final for 
 purposes of an appeal, if the trial court, by refer- 
 ence to a master or otherwise, continued to deal 
 with the question of damages, that being one of the 
 main issues presented by the bill filed in the case. 
 But since the adoption of the acts of congress just 
 cited, it is held that an appeal to the proper circuit 
 court of appeals may be taken from the decree 
 granting the injunction before the issue with regard 
 to damages or profits is disposed of by the trial 
 court. And from this it follows that upon an ap- 
 peal in patent cases, whether from the granting, dis- 
 solving or refusing to grant a strictly preliminary 
 injunction, or from the granting, continuing or re- 
 fusing an injunction after hearing upon the merits, 
 the appellate court, if tlu; I'ecord llled therein pre- 
 sents the necessary facts, may determine the ques- 
 tion whether the com])lainant has shown himself 
 entitled to relief, and is not limited merely to a con-
 
 UNITED STATES CIRCUIT COURTS. 121 
 
 sideration of the propriety of granting, continuing^ 
 dissolving or refusing an injunction. 
 
 Smith V. Vulcan Iron Works, 165 U. S., 518. 
 
 CLXXV. By the terras of the acts of congress 
 approved March 3, 1891, and February 18, 1895, the 
 right of appeal therein provided for from interlocu- 
 tory orders or decrees is limited to cases in which 
 an appeal may be taken from a final decree to a cir- 
 cuit court of appeals, and the right of appeal thus- 
 provided for does not appl}'" to cases wherein the 
 original appeal must be taken to the supreme court. 
 
 CLXXVI. The general rule is that the whole 
 cause or controversy, so far as possible, should be 
 brought before the appellate court at the same time^ 
 and that all the parties united in interest and af- 
 fected by the decree must join in the appeal. There- 
 fore if the order or decree is joint and affects the 
 interests of all, all should join in the appeal or it 
 may be dismissed. 
 
 Owings V. Kincannon, 7 Peters, 399; Williams v. Bank of 
 United States, 11 Wheat, 414; Simpson v. Greeley, 20 Wall., 
 152; Hanrick v. Patrick, 119 U. S., 156; Mason v. United States, 
 136 U. S., 581; Hardee v. Wilson, 146 U. S., 179; Beardsley v. 
 Ark. & La. Ry. Co., 158 U. S., 133. 
 
 CLXXVII. If, however, one or more of the parties 
 whose interests are affected b}" the order or decree 
 refuse to join in taking an appeal, the remaining 
 parties affected thereby can secure the right to ao 
 appeal by resorting to the process of summons and 
 severance, or the equivalent thereof, which is ac- 
 complished by serving a written notice upon the 
 party who refuses to join in the appeal that an ap-
 
 122 EQUITY PEACTICE. 
 
 peal is about to be taken and inviting him to unite 
 therein, and if be fails so to do, or does not ajDpear 
 in the trial court in response to the notice, that 
 court can grant an appeal to the party asking it and 
 bar the other parties from subsequently taking an 
 appeal. 
 
 These proceedings should be made part of the 
 record and be included in the transcript filed in the 
 appellate court. 
 
 Todd V, Daniel, 16 Peters, 531; Masterson v. Herndon, 10 
 Wall., 416; Hardee v. Wilson, 146 U. S., 179; Inglehart v. 
 Stansbury, 151 U. S., 68. 
 
 CLXXYIII. If the case is such that the order or 
 decree affects only the interests of one or more of 
 the parties to the record, leaving the interests of the 
 remaining parties unaffected, then those whose in- 
 terests are affected may appeal without joining the 
 remaining parties therein. 
 
 Forgay v. Conrad, 6 How., 203; Germain v. Mason, 12 Wall., 
 261; Simpson v. Greeley, 20 Wall., 152: Gilfillan v. McKee, 159 
 U. S., 303. 
 
 CLXXIX. Even though one is a party to the rec- 
 ord, he cannot take an appeal from an order or de- 
 cree unless the same affects his interest. 
 
 Farmers' Loan & Trust Co. v. Waterman, 106 U. S., 265. 
 
 CLXXX. An appeal can bo taken only by a party 
 to the record. 
 
 Therefore, one whoso interests are affected by a 
 suit in e(juity, but who is not a ])arty to the record, 
 if he wishes to a])pcal from the decree therein, must 
 apply to the trial court by petition and notice to the
 
 UNITED STATES CIECDIT CODKTS. 123 
 
 adversaiy party for leave to become a party to the 
 record for the purpose of taking- an appeal. 
 
 Sage V. Railroad Co., 93 U. S., 412; Ex parte Cutting, 94 
 U. S., 14 
 
 CLXXXI. A purchaser of property sold under a 
 decree rendered in a suit in equity has a right to be 
 heard in the trial court upon all questions arising 
 subsequent to the decree authorizing the sale which 
 affect his bid or the burdens assumed by him as 
 purchaser, and he has the right to appeal from or- 
 ders or decrees affecting his rights as purchaser. 
 
 Kneeland v. American Loan Co., lo6 U. S., 89, 
 
 CLXXXII. To perfect an appeal it is not only 
 necessary that all jointly interested as appellants 
 should join therein, unless a severance is allov^ed, 
 but it is also necessar}'- that all parties adversely 
 interested should be made parties to the appeal by 
 being duly notilied of the appeal, which fact must 
 be made apparent upon the record filed in the appel- 
 late court, 
 
 CLXXXIII. The appeal must be taken, both as 
 to appellants and appellees, in the individual names 
 of the parties, and not in the name of a firm or 
 other collective designation. 
 
 This rule does not apply to corporations having 
 authority to sue, and being liable to suit, in the cor- 
 porate name. 
 
 Estes V. Trabue, 128 U. S., 225. 
 
 CLXXXIY. Decrees rendered by consent will not 
 be reversed on the appeal of any of the consenting
 
 124 EQUITY rRACTICE. 
 
 parties. An appeal may be taken therefrom, but the 
 appellate court will affirm, without considering er- 
 rors assigned thereon, all matters properly within 
 the assent of the parties to the decree rendered. 
 
 Pacific R. R. Co. v. Ketchum, 101 U. S., 289; Nashville Ry. 
 Co. V. United States, 113 U. S., 261. 
 
 CLXXXy. An appeal will not ordinarily lie 
 from a decree upon the mere matter of costs, and 
 especially when the question of costs is within the 
 discretion of the trial court; and if an appeal.be 
 taken from a decree upon the merits -and the same 
 is affirmed with respect to the merits, it will not be 
 reversed upon the question of costs. 
 
 Elastic Fabric Co. v. Smith, 100 U. S., 110; Paper Bag Ma- 
 chine Cases, 105 U. S., 766; Wood v. Weimar, 104 U. S., 786; 
 Russell V. Farley, 105 U. S., 433; Trvistees v. Grenough, 105 
 U. S., 527; Burns v. Rosenstein, 135 U. S.,449; Du Bois v. Kirk, 
 158 U. S., 58. 
 
 CLXXXVI. If, however, the decree awarding costs 
 is attacked on the ground that the trial court had 
 not jurisdiction over the case, and hence could not 
 award costs,^ or on the ground that costs were or- 
 dered paid from a fund not liable therefor,- or against 
 a party not within the jurisdiction of the trial court,' 
 or against whom liability for costs does not right- 
 fully exist, an appeal in such cases will be sustained. 
 
 1 Mayor v. Cooper, 6 Wall., 247; Hornthall v. The Collector, 
 9 Wall., 560; JihuOdock v. Small, 127 U. S., 90; Citizens' Bank 
 V. Carmon, 104 U. S., 319. 
 
 ■'« Trustees v. Grenough, 105 U. S., 527. 
 
 3 Freeman v. A1<Ut.soii, 119 U. S., 185.
 
 UNITED STATES CIKCL'IT COUKTS. 125 
 
 CLXXXYII. If a decree decides the merits of a 
 controversy and also awards or refuses costs, and 
 upon appeal the decree is reversed upon the merits, 
 the appellate court will consider errors assigned 
 upon the question of costs, but will not reverse the 
 ruling of the trial court, unless a manifest abuse of 
 discretion is shown. 
 
 Dobson V. Hartford Carpet Co., 114 U. S., 439; Dobson v. 
 Dornan, 118 U. S., 10. 
 
 CLXXXVIIL As a suit in equity may involve 
 separable controversies arising out of the matters 
 presented by the complainant's bill, or upon a cross- 
 bill filed by the defendant, or out of matters pre- 
 sented by intervening bills or petitions, it results 
 that there may be several final and therefore appeal- 
 able decrees rendered in the same case. 
 
 Each decree must be viewed with reference to the 
 particular issue or controversy it deals with in de- 
 termining its finality, and when a decree, final as to 
 the issue or controversy it deals with, is rendered in 
 a suit involving two or more controversies, the time 
 allowed for taking an appeal therefrom dates from 
 the entry of that particular decree; or, in other 
 words, the time limit begins to run against each ap- 
 pealable decree from the date of its entry. 
 
 CLXXXIX. If the adversary parties in a cause 
 each desire to take an appeal from an order or de- 
 cree therein, separate appeals should be perfected 
 on behalf of the complainant and defendant parties. 
 
 An appeal on behalf of one side to a controversy
 
 126 EQUITY PRACTICE. 
 
 takes np only errors against the appellant, and if the 
 adversary party thereto does not also appeal, he is 
 deemed to admit the correctness of the decree ap- 
 pealed from.^ 
 
 A cross-appeal on behalf of an appellee ma}'^ be 
 allowed after the case has been carried up to the 
 ajjpellate court, but must be taken within tiie time 
 allowed for taking an original appeal, and the same 
 requirements with regard to assignment of errors, 
 allowance, notice, and security must be observed as 
 in case of an original appeal; ^ but a transcript of the 
 record tiled in the appellate court by one of the ap- 
 pealing parties may be used by the other, thus avoid- 
 ing the cost of tiling two transcripts of the same 
 record.^ 
 
 1 Chittenden v. Brewster, 3 Wall., 191; S. S. Osborne, 105 
 U. S., 447; Mackal v. Mackal, 135 U. S., 167; Gage v. Pumpelly, 
 115 U. S., 454; Cherokee Nation v. Blackfeather, 155 U. S., 218. 
 
 2Farrar v. Churchill, 185 U. S., GOO. 
 
 * Revised Statutes, section 1013. 
 
 CXC. If two or more decrees are entered in the 
 same suit, affecting the same controversy, and doubt 
 exists with respect to the finality of the earlier de- 
 cree or decrees, it is advisable to take an appeal 
 from each one, and usually successive appeals thus 
 taken can be licard as one in the appellate court. 
 
 CXCI. As the transcrii)t of the record must be 
 filed in the appellate court not later than the return 
 (lay named in the citation, tiie appellant, as soon as 
 the a])peal is allowed, should direct the clerk of the
 
 UNITED STATES CIRCUIT COURTS- 127 
 
 trial court to prepare the transcript and forward it 
 to the clerk of the appellate court. 
 
 CXCII. To be effectual the appeal must be taken 
 within the period fixed by statute for taking the 
 same, and an appeal, for this purpose, is properly 
 perfected by filing in the court from which the ap- 
 peal is sought the necessary papers constituting an 
 appeal, which ordinarily include the petition for and 
 allowance of the appeal, the assignment of errors^ 
 the appeal bond approved, and the citation duly 
 served. 
 
 Credit Co. v. Arkansas Central Ry. Co., 128 U. S., 258. 
 
 CXCIII. Strictly speaking, as an appeal is a right 
 conferred by statute, the only step absolutely re- 
 quired to be taken, within the time limited for tak- 
 ing an appeal, in order to confer jurisdiction upon 
 the appellate tribunal, is the obtaining an allowance 
 of the appeal with notice thereof in some form to 
 the adversary party. 
 
 Dodge V. Knowles, 114 U. S., 430; Hewitt v. Filbert, 116 U. S., 
 142; Brown v. McConneli, 134 U. S., 489; Credit Co. v. Arkan- 
 sas Central Ry. Co., 128 U. S., 258; Evans v. State Bank, 184 
 U. S., 330. 
 
 CXCiy. The fact that an appeal has been allowed 
 is proven if the record shows an appeal prayed for 
 and allowed in open court during the term at which 
 the order or decree sought to be appealed from was 
 entered, or if it shows the filing of a petition for 
 appeal and an allowance thereof by a judge or jus- 
 tice competent to grant the same.
 
 128 EQUITY PRACTICE. 
 
 It may be inferred from the fact that an appeal 
 bond has been approved and a citation has been 
 signed by a judge competent so to do/ or from the 
 latter act only.^ 
 
 1 Sage V. Railroad Co., 96 U. S., 712; Draper v. Davis, 103 
 U. S., 370; Brandies v. Cochrane, 105 U. S., 262; Credit Co. v. 
 Arkansas Central Ry. Co., 128 U. S., 258. 
 
 2 Hewitt V. Filbert, 116 U. S., 142; Brown v. McConnell, 124 
 
 U. S., 489. 
 
 CXCY. Notice of the appeal to the adversary 
 party is assumed, without service of a citation, if 
 the appeal is allowed in open court at the term at 
 which the order or decree sought to be appealed 
 from was entered, provided the transcript of the 
 record is duly filed within the required time in the 
 appellate court. 
 
 CXCYI. If the appeal is allowed after the term, 
 then notice thereof must be given by the issuance 
 and service of a citation,^ unless the appellee, in 
 writing, acknowledges notice or waives service of 
 citation or enters a general appearance in the case 
 in the appellate court.^ 
 
 1 Dodge V. Knowles, 114 U. S., 430; Hewitt v. Filbert, 116 
 U. S., 142; Brown v. McConnell, 124 U. S., 489. 
 
 2 Alviso V. United States, 5 Wall., 824; Sage v. Railroad Co., 
 96 U. S., 712; Richardson v. Green, 130 U. S., 104. 
 
 CXCVII. If steps sufficient to confer jurisdiction 
 on appeal in the appellate tribunal have been taken, 
 but the appeal has not been ])erfected through fail- 
 ure to give notice to the appellee, or to file the re- 
 quired security ai)])rovcd by the court, or to docket
 
 UNITED STATES CIKODIT COURTS. 129 
 
 the case on appeal, or to pay the sura required to 
 be paid to the clerk of the appellate court, an appli- 
 cation must be made to that court for leave to per- 
 fect the appeal, and if the defect is in matter of 
 mere procedure, the court may grant leave to per- 
 fect the same, and ma}' also grant leave to amend 
 the record in matters of form, or to correct mistakes 
 in names, or to describe more fully the parties, or 
 other like matters, when the amendment is in fur- 
 therance of justice and will not prejudice or injure 
 the adversary party. 
 
 Revised Statutes, section 1005. Moore v. Simonds, 100 U. S... 
 145; United States v. Schoverling, 146 U. S., 76; Walton v. 
 Marietta Chair Co., 157 U. S., 343. 
 
 CXCVIII. Although, from the authorities cited 
 in connection with the past few paragraphs, it ap- 
 pears that jurisdiction on appeal may be conferred 
 by acts falling short of a perfected appeal, relief 
 being grantable to supply matters of mere proced- 
 ure, the safer and better practice is to file in the 
 trial court within the time allowed for taking the 
 appeal a proper assignment of errors, and then cause 
 the record to show the allowance of an appeal by 
 either having the same allowed in open court dur- 
 ing the term at which the order or decree appealed 
 from is entered, or by filing a petition praying an 
 appeal with the allowance thereof indorsed thereon 
 by the proper judge, and in the latter case file the 
 citation after due service upon the appellee, and also
 
 130 EQUITY PKACTICE. 
 
 file a bond in the required amount, properly condi- 
 tioned and approved bj the judge. 
 
 CXCIX. If from any cause an appeal attempted 
 to be taken is not perfected, so as to enable the ap- 
 pellate court to take jurisdiction, or the same is dis- 
 missed for a failure to observe the rules governing 
 appeals, and the time allowed for taking an appeal 
 has not expired, a second appeal may be taken, 
 which will be entertained by the appellate court, if 
 jurisdiction is obtained in the appellate court withia 
 the time allowed for an appeal. 
 
 Evans v. State Bank, 134 U. S., 330.
 
 UNITED STATES CIECUIT COURTS. 131 
 
 CHAPTER XX. 
 
 PROCEEDINGS IN APPELLATE COURTS — TRAN- 
 SCRIPT—DOCKETING CASE. 
 
 CO. It is the duty of the appellant to docket the 
 case and file the record thereof with the clerk of the 
 appellate court by or before the return day, whether 
 the same falls in vacation or in term time; but for 
 good cause shown, the judge or justice who signed 
 the citation, or any judge or justice of the appellate 
 court, may enlarge the time for filing the record, by 
 or before the expiration thereof, the order therefor 
 to be filed with the clerk of the appellate court. 
 Upon filing the record, the appellant must give se- 
 curity, or otherwise satisfy the clerk of the appel- 
 late court, for his fees. 
 
 Supreme Court Rule 9; Circuit Courts of Appeals Rule 16. 
 
 CCI. If the appellant fails to file the record and 
 docket the case within the required time, the ap- 
 pellee may have the case docketed and dismissed 
 upon producing a certificate, either in term time or 
 vacation, from the clerk of the trial court, showing 
 that an appeal in the case had been duly allowed ; 
 and if the appellee thus procures a dismissal of the 
 case, the appellant cannot subsequently file the rec- 
 ord and docket the case, unless leave so to do is ob- 
 tained from the appellate court. 
 
 The appellee has the option, in case of a failure on 
 part of the appellant, to docket the case and file a
 
 132 EQUITY PRACTICE. 
 
 copy of the record, when the case stands for argu- 
 ment. 
 
 Supreme Court Eule 9; Circuit Courts of Appeals Rule 16. 
 
 ecu. The transcript or record, to be complete, 
 must contain in itself, and not by reference, a perfect 
 copy of the pleadings, and of all papers, exhibits, 
 depositions or testimony however preserved, and 
 any matters appearing of record necessary to bring 
 the controversy fully before the appellate court, in- 
 cluding the decrees or orders appealed from; and if 
 any part of the proceedings are in a foreign lan- 
 guage, the record must contain a translation thereof, 
 made under the authority of the trial court or ad- 
 mitted by the adversary party to be correct, and the 
 transcript must have annexed thereto a copy of the 
 opinion or opinions filed in the trial court, and also 
 the assignment of errors and the papers constituting 
 the appeal, and must be duly certified to by the clerk, 
 with the seal of the court attached. 
 
 Supreme Court Rules 8, 11; Circuit Courts Rules 14, 15; 
 Railroad Co. v. Dinsmore, 108 U. S., 30. 
 
 CCIII. If the transcript filed in the appellate court 
 is imperfect in that there has been omitted there- 
 from some material or necessary part of the record, 
 us the same exists in the trial court, a motion, sug- 
 gesting a diminution of the record, may be filed in 
 the appellate court, asking the issuance of a certi- 
 orari to the trial court directing that the omitted 
 ])ortion of the record be forthwith certified up to 
 the appellate court. The motion must be verified
 
 UNITED STATES CIRCUIT COURTS. 133 
 
 by affidavit, unless the facts upon which it is based 
 are admitted by the other party, and must be made 
 at the first term of the entry of the case in the ap- 
 pellate court, or otherwise the same will not be 
 granted, unless the delay in applying for the same 
 is accounted for to the satisfaction of the appellate 
 court. 
 
 Supreme Court Rule 14: Circuit Courts of Appeal Rules 18. 
 
 CCIV. Upon docketing a case in an appellate 
 court, the appellant must cause the record to be 
 printed in the manner and within the time specified 
 in the rules of the court; must prepare and print a 
 proper brief and argument and file copies thereof 
 witli the clerk; must be in attendance upon the 
 court w^hen the case is reached upon call of the 
 docket, if an oral argument is desired, and must, in 
 all other respects, meet the requirements of the rules 
 governing the court to which the appeal lies; and 
 the appellee must in like manner prepare, print and 
 file with the clerk a brief and argument, and be in 
 attendance when the case is called, if he wishes 
 to be heard orally. For the details governing the 
 practice in the appellate court, reference must be 
 had to the rules adopted by the particular court in 
 which the case is pending. The rules of the su- 
 preme court, together with the rules in equity, are 
 made part of this Manual, but the rules in force 
 in the several circuits are not attached, as the same 
 could not be included without greatly increasing the 
 size of the Manual. The rules of the several circuit
 
 134: KQUITY PKACTICE. 
 
 courts of appeal, fully annotated, will be found pre- 
 fixed to volume 78 of the Federal Reporter. 
 
 CCY. After the final determination of the case in 
 the appellate court, a mandate issues therefrom, the 
 time of issuance being regulated by the rules of the 
 particular court, to the circuit court from which the 
 appeal was taken, for the purpose of informing that 
 court of the decision reached by the appellate court, 
 and, when necessary, for the purpose of directing the 
 action of the trial court in the further progress of 
 the case. It is the duty of the circuit court to re- 
 cord the mandate and to follow its directions. 
 
 Supreme Court Rules 39; Circuit Courts of Appeals Rules 32; 
 Circuit Courts of Appeals Rules, 7th Circuit, 30. Kingsbury 
 V. Buckner, 134 U. S., 650,
 
 UNITED STATES CIECUIT COUBTS. 135 
 
 CHAPTER XXL 
 
 THE ENFORCEMENT OF PROCESS AND DECREE — AUX- 
 ILIARY PROCEEDINGS. 
 
 CCVI. When proper cause therefor exists, the 
 court may enforce obedience to its process or orders 
 by the issuance of writs of attachment for the arrest 
 of the person of the disobedient party, or by the is- 
 suance of writs of sequestration for the seizure of 
 his property. 
 
 Rule 8. 
 
 CCVII. Every person who, not being a party in a 
 cause, has obtained an order, or in whose favor an 
 order has been made, is entitled to enforce obedience 
 to the same as if he were a party to the suit; and 
 every person, not a party to the cause, against whom 
 obedience to any order of the court may be enforced, 
 shall be liable to the same process for enforcing 
 obedience to such order that he would be were he a 
 party to the cause. 
 
 Rule 10. 
 
 CCV^IIL In those states wherein judgments in the 
 courts of the state are liens upon the property of the 
 debtor, the like effect is given to judgments ren- 
 dered in the United States courts. Hence in such 
 states a decree adjudging a sum certain to be due 
 and ordering payment, being in effect a judgment, 
 becomes a lien upon the property of the debtor.^ 
 
 Prior to the adoption of the act of August 1, 1888,
 
 136 EQUITY TRACTICE. 
 
 it was held that the lien was co-extensive with the 
 jurisdiction of the court rendering the judgment or 
 decree. 
 
 By the provisions of that act it is declared that 
 judgments or decrees rendered in the circuit or dis- 
 trict courts of the United States shall be liens on 
 property throughout the state in the same manner, 
 to the same extent, and under the same conditions 
 only, as if such judgments ordered had been ren- 
 dered by a court of general jurisdiction of such state ; 
 provided, however, that whenever the laws of a state 
 require a judgment or decree of a state court to be 
 registered, docketed, indexed, or any other thing to 
 be done in a particular manner, or in a certain office 
 or county, or in the state of Louisiana in any parish, 
 before the lien attaches, the provisions of the act 
 should be applicable to the judgments and decrees 
 of the United States courts in such state, only when 
 the laws of the state authorizes the judgments and 
 decrees of the United States courts to be registered, 
 recorded, docketed, indexed or otherwise conformed 
 to the requirements of the state law.^ 
 
 1 Massingill v. Downs, 7 How., 700; Wai'd v. Chamberlain, 3 
 Black, 4:30. 
 
 2 25 Statutes at Large, 357; 28 Statutes at Large, 814. 
 
 CCIX. Where, by the terms of the decree, spe- 
 cific property is onhn-cd to bo sold, as in mort- 
 gage forcch)surcs and like cases, it is customary to 
 direct such sale to Ik; made by a master named in 
 the decree, which should also provide for the man-
 
 UNITED STATES CIRCUIT COUUTS. 13T 
 
 ner and terms of the sale, which are largely con- 
 trolled by the provisions of the act of March 3, 1893, 
 which require sales of realty to be at the court-house 
 of the county, parish or city in which the property 
 or greater part thereof is situated, or on the prem- 
 ises if the court so orders. 
 
 A certified copy of the decree should be furnished 
 to the master named, as the evidence of his author- 
 ity to proceed in the premises. 
 
 In conducting such sale the master must fully ob- 
 serve and carry out the provisions of the decrea 
 touching such sale, and, when made, must promptly 
 make and return into court a report in writing of 
 the proceedings had. 
 
 If the property sold was required to be appraised 
 as a condition of sale, the report should show the 
 proceedings had in this regard, also the notice of 
 sale given, the time and place of sale, whether the 
 property was sold in parcels or as a whole, and to 
 whom and for what sum the sale was made. 
 
 Upon the filing of the report of sale, a motion for 
 the confirmation thereof should be filed, upon which 
 the court will make an order that exceptions to the 
 sale must be filed within a given time. 
 
 Pewabic Mining Co. v. Mason, 145 U. S., 349. 
 
 If exceptions to such sale are filed and for cause 
 sustained, or if the court of its own motion deems 
 the sale to be faulty in form, or inequitable in sub- 
 stance, the same will be set aside and a resale be 
 ordered.
 
 lob EQUITY PRACTICE. 
 
 If exceptions are not filed and cause to the con- 
 trary does not appear, the court, at any time after 
 the expiration of the time for filing exceptions, may 
 approve the report and confirm the sale, and order 
 a convej^ance of the property executed by the master 
 to be delivered to the purchaser. If the sale is sub- 
 ject to redemption, the conversance cannot be deliv- 
 ered until the expiration of the time of redemption. 
 In such cases the master should execute a certificate 
 of purchase and deliver the same to the purchaser. 
 Upon the expiration of the period of redemption, if 
 redemption has not been made, a brief report show- 
 ing the fact, with the proper master's deed, should 
 be submitted to the court for its approval, and for 
 the order of delivery. 
 
 If redemption of the property has been made, then 
 a report showing such fact should be returned by the 
 master, upon which the proper orders and entries 
 %vi]l be made by the court. 
 
 CCX. If by decree the payment of money be or- 
 dered, the same may be enforced by the issuance 
 of a writ of execution in the form proper in an ac- 
 tion at law in assu7nji?sit} If there are two or more 
 districts in a state, the ^vrit can be executed in either 
 of the districts. 
 
 If the decree be for the })erformance of a specific 
 act, as for the execution of a conveyance of land, 
 the delivering up or cancellation of deeds or con- 
 ti-acts, or other like act, the decree must prescribe
 
 UNITED STATES CIRCUIT COURTS. 139 
 
 the time within which the act must be done, and, in 
 default thereof, upon affidavit of the complainant 
 showing such default, the clerk issues a writ of at 
 tachment against the delinquent party, from which 
 he cannot be released except upon full compliance 
 with the decree and the payment of all costs, unless 
 the court or judge, upon motion and affidavit, shall 
 enlarge the time for performance.^ 
 
 If the delinquent party cannot be found, a writ 
 of sequestration issues against his estate to compel 
 obedience to the decree.^ 
 
 If the decree is for the delivery of possession of 
 property, upon proof made by affidavit that the 
 party refuses obedience to the decree upon demand 
 made, a writ of assistance issues to enforce the de- 
 livery of possession, or otherwise to enforce the de- 
 cree.^ 
 
 This is the appropriate remedy to enforce the de- 
 livery of possession of property sold upon foreclos- 
 ure of mortgage after the deliver}^ of the master's 
 deed.2 
 
 If a party is ousted from or deprived of the pos- 
 session of property by force of a decree which is 
 subsequently reversed, the court, upon entry of the 
 order of reversal, will make all necessary orders for 
 the restoration of the property, or its proceeds if 
 sold, to the party wrongfully deprived thereof, and 
 when necessary will issue a writ of restitution for 
 that purpose, or upon summary hearing upon no-
 
 140 EQUITY PKACTICE. 
 
 tice raa\" enter judgment for money collected on the 
 judgment subsequently'" reversed.' 
 
 1 Rule 8. 
 
 2 Rule 9. Ten-ell v. Allison, 21 Wall, 289; Root v. Wool- 
 worth, 150 U. S., 401. 
 
 3 Northwestern Fuel Co. v. Brock, 139 U. S., 216, 
 
 CCXI. Upon the rendition of an interlocutory or 
 final order or decree, if the defendant refuses or neg- 
 lects to obey the same, and cannot be found within 
 the jurisdiction of the court, so that obedience to the 
 decree may be enforced by attachment of his person, 
 a writ of sequestration may be issued against the es- 
 tate of such delinquent defendant for the purpose of 
 compelling obedience to the decree. 
 
 The proper practice is to file in the clerk's office 
 the affidavit of complainant showing the non-com- 
 pliance on part of defendant with the order or de- 
 cree, and thereupon to procure the issuance by the 
 clerk of a writ of attachment for the person of the 
 defendant, which should be placed in the hands of 
 the marshal for service. If service thereof cannot 
 be had, by reason of not finding the defendant, the 
 marshal must make return of such fact upon the 
 writ of attachment, and thereupon complainant 
 should file a ])etition in the cause reciting the ren- 
 dition of the decree, the failure of defendant to obey 
 the same, tlic issuance of the writ of attachment, and 
 the return thereof unserved because the defendant 
 cannot be found, and the fact that the defendant 
 has property within the jurisdiction of the court,
 
 UNITED STATES CIKCUIT COUKTS, 141 
 
 and submit the same to the court for its order 
 thereon. 
 
 The writ is directed to the party or parties selected 
 to act as sequestrators, directing and commanding 
 them to take possession of the estate, or named por- 
 tions thereof, of the delinquent defendant, and to 
 hold the same, and the proceeds, rents and profits 
 thereof, until the further order of court. 
 
 The rents and profits, and, if sold by order of 
 court, the proceeds of the property, if sequestered, 
 may be applied to the satisfaction of the decree, 
 although primarily the object sought by the seizure 
 of the property is the compelling the defendant to 
 perform or yield obedience to the order or decree. 
 
 Rules 7, 8. 
 
 CCXII. Under the general rule that a court of 
 equity has jurisdiction to enforce its decrees, co- 
 extensive with its jurisdiction to hear and decree the 
 rights of the parties, it is held that the circuit court 
 has full power, not only to issue all proper process, 
 but to entertain all ancillary or auxiliary proceed- 
 ings needed to fully enforce its decrees. 
 
 Jurisdiction over bills and proceedings of this 
 
 character is not defeated by the citizenship of the 
 
 parties thereto, as the jurisdiction is sustained by 
 
 that of the original cause. 
 
 Minnesota Co. v. St. Paul Co., 2 Wall, 609; Terrell v. Alli- 
 son, 21 Wall., 289; Krippendorf v. Hyde, 110 U. S., 276; Rail- 
 road Co. V, Railroad Co., Ill U. S.. 505; Dewey v. Coal Co., 123 
 U. S., 329; Rouse v. Letcher, 156 U. S., 47; Gregory v. Van Ee, 
 160 U. vS., 643; Carey v. Houston, etc., Ry. Co., 161 U. S., 115.
 
 1-12 EQUITY PRACTICE. 
 
 CCXIII. For the purpose of preserving in proper 
 form the evidence of the proceedings had in suits in 
 equity, upon the termination of a cause, a final rec- 
 ord thereof containing the process, return of service, 
 the pleadings, the decree and all other proceedings 
 necessary to show the jurisdiction of the court, the 
 regularity of the proceedings, and the results ob- 
 tained, should be duly entered upon the records of 
 the court. 
 
 Revised Statutes, section 750. '' 
 
 CCXIV. Under the provisions of section 918 of 
 the Revised Statutes, the circuit courts have full 
 power to make rules regulating the practice in suits 
 in equity, not inconsistent with the laws of the 
 United States or the rules prescribed by the supreme 
 court. 
 
 Regard must therefore be had in each district to 
 the special rules, if any, adopted by the circuit court 
 for the district, touching the preparation and bring- 
 ing to trial of suits in equity.
 
 ETJLES OF PRACTICE 
 
 FOR THE 
 
 COURTS OP EQUITY 
 
 OF 
 
 THE UE"ITED STATES. 
 
 RULE I. 
 
 Coiirt 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 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. 
 
 RULE IL 
 
 Rule day. — The clerk's office shall be open, and the clerk 
 shall be in attendance therein, on the first Monday of eveiy 
 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 
 parties or their solicitors, in all causes pending in equity, in 
 pursuance of the rules hereby prescribed.
 
 144: EULES OF PRACTICE IN EQUITY. 
 
 RULE III. 
 
 Orders at chainbers. — Any judge of the circuit court, as 
 well in Tacation as in term, may at chambers, or on the rule 
 ■days, at the clerk's office, make and direct all such interlocu- 
 tory 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 there- 
 after, unless some other time is assigned by the judge for the 
 hearing. 
 
 RULE IV. 
 
 Order book — Entry of motions.— All motions, rules, or- 
 ders 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 inspec- 
 tion 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, no- 
 tices and other proceedings entered in such order book, touch- 
 ing 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 tlie parties for whom they appear and 
 whom they represent, in all cases where personal notice on tlie 
 parties is not otherwise specially required. "Where the solic- 
 itors 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 
 tlio time for notict; of rules, orders, or other ju-oceodings not 
 requiring personal service on the parties, in their discretion.
 
 UNITED STATES CIRCUIT COURTS. 145 
 
 RULE V. 
 
 Motions grantable by clerk. — All motions and applica- 
 tions in the clerk's ofifice 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 
 amendments to bills and answers ; for taking billspro 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 VL 
 
 Motions not of course.— All motions for rules or orders 
 or other proceedings which are not grantable of course or 
 without notice shall, unless a different time be assigned by a 
 judge of the court, be made on a rule day, and entered in the 
 order book, and shall be heard at the rule day next after that 
 on which the motion is made. And if the adverse party, or 
 his solicitor, shall not then appear, or shall not show good 
 cause against the same, the motion may be heard by any judge 
 of the court ex parte, and granted, as if not objected to, or re- 
 fused, in his discretion. 
 
 RULE VII. 
 
 Mesne process. — The process of subpoena shall constitute 
 the proper mesne process in all suits in equity, in the first in- 
 stance, to require the defendant to appear and answer the exi- 
 gency 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 sequesti-ation, 
 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 compelling obedience to any interlocutory or 
 
 final order or decree of the court. 
 10
 
 146 EULES OF PEACTICE IN EQUITY. 
 
 EULE VIII. 
 
 Final process. — Final process to execute any decree may, 
 if the decree be solely for the payment of money, be by a writ 
 of execution 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 exe- 
 cution of a conveyance of land or the delivering up of deeds 
 or other documents, the decree shall, in all cases, prescribe the 
 time witliin which the act shall be done, of which the defend- 
 ant 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 de- 
 linquent party, from which, if attached thereon, he shall not 
 be discharged, unless upon a full compliance with the decree 
 and the payment of all costs, or upon a sj^ecial order of the 
 court, or of a judge thereof, upon motion and affidavit, en- 
 larging the time for the performance thereof. If the delin- 
 quent 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. 
 
 RULE IX. 
 
 Writ of assistance. — Wlien 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 X. 
 
 Persons not parties. — 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 obedi- 
 ence 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 olnvlience to any order of the court may be en- 
 forced, shall bo liable to tiie same process for enforcing obedi- 
 ence to such orders as if he were a party in tlie cause.
 
 UNITED STATES CIRCUIT COURTS. 147 
 
 RULE XI. 
 
 Issuance of subpoena. — No process of subpoena shall issue 
 from the clerk's office in any suit in equity until the bill is filed 
 in the ofiice. 
 
 RULE xn. 
 
 Return of subpoena. — Whenever a bill is filed, the clerk 
 shall issue the process of subpoena thereon, as of coui'se, upon 
 the application of the plaintiff, which shall be i-eturnable into 
 the clerk's office the next riile 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 o'f 
 the subpoena sh^U be placed a memorandum that the defend- 
 ant is to enter his appearance in the suit in the clerk's office on 
 or before the day at which the writ is returnable; otherwise 
 the bill may be taken pro confesso. Where there are more than 
 one defendant, a writ of subpoena may, at the election of the 
 plaintiff, be sued out separately for each defendant, except in 
 the case of husband and wife defendants, or a joint subpoena 
 against all the defendants. 
 
 RULE XIII. 
 
 Manner of service of subpoena. — The service of all sub- 
 poenas 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 usual place of abode of 
 each defendant, with some adult person who is a member or 
 resident in the family. 
 
 RULE XIV. 
 
 Alias subpoena. — Whenever any subpoena shall be re- 
 turned not executed as to any defendant, the plaintiff shall be 
 entitled to another subpoena, toties quoties, against each de- 
 fendant, if he shall require it, until due service is made.
 
 14:3 EDLES OF PRACTICE IN EQUITY. 
 
 RULE XV. 
 
 By whom served. — 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 
 purpose, and not otherwise. In the latter case, the person 
 serving the process shall make affidavit thereof. 
 
 RULE XVI. 
 
 Docketing cause. — Upon the return of the subpoena 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 XVII. 
 
 Appearance, when and how entered. — The appearance 
 day of the defendant shall be the rule day to which the sub- 
 poena is made returnable, provided he has been served with 
 the process twenty days before that day ; otherwise his ap- 
 pearance day shall be the next rule day succeeding the rule 
 day when the process is returnable. 
 
 The appearance of the defendant, either jiersonally or by his 
 solicitor, shall be entered in the order book on the day thereof 
 by the clerk. 
 
 RULE XVIIL 
 
 Default and decree pro confesso. — 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 
 onteririg his ai>pcaraiice. In default thereof the plaintifT may, 
 <at hit< cloction, outer an order (as of course) in the order book 
 that the bill be taken jr/'o coiifi'sso; and thereupon the cause 
 hhall be proceeded in ex parte, and the matter of the bill 
 may bo decreed by the court at any lime after the expiration
 
 UNITED STATES CIRCUIT COURTS. 149 
 
 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 discharged therefrom, unless upon filing his an- 
 swer, or otherwise complying with such order as the court or 
 a judge thereof may direct, as to pleading to or fully answer- 
 ing the bill, within a period to be fixed by the court or judge, 
 and undertaking to speed tlie cause. 
 
 RULE XIX. 
 
 Decree pro confesso — Default set aside.— 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 de- 
 cree rendered sliall be deemed absolute, unless the court shall, 
 at the same term, set aside the same, or enlarge the time for 
 filing the answer, upon cause shown, upon motion and affida- 
 vit 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 sub- 
 mit to such other terms as the court shall direct, for the pur- 
 pose of speeding the cause. 
 
 EULE XX. 
 
 Bill, form of.— 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 fol- 
 lows; " 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
 
 150 KULES OF PRACTICE IN EQUITY. 
 
 citizen of the state of , and E. F., of , and a citizen of 
 
 the state of . And thereupon your orator complains and 
 
 Bays that," etc. 
 
 RULE XXI. 
 
 Clauses omitted from bill.— The plaintiff, in his bill, shall 
 be at liberty to omit, at his option, the part which is usually 
 called the common confederacy clause of the bill, averrmg a 
 confederacy between the defendants to injure or defraud the 
 plaintiff; also what is commonly called the charging pai-t of 
 the bill, setting forth the matters or excuses which the defend- 
 ant is supposed to intend to set up by way of defense to the 
 bill; also what is commonly called the jurisdiction clause of 
 the bill, that the acts complained of are contrary to equity, 
 and that the defendant is without any remedy at law; and the 
 bill shall not be demurrable therefor. And the plaintiff may, 
 in the naiTative or starting 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 
 defense or excuse to the case made by the plaintiff for relief. 
 The prayer of the bill shall ask the special relief to which the 
 plaintiff supposes 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 be specially asked for. 
 
 RULE XXIL 
 
 Parties beyond jurisdiction.— 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 rea- 
 son why tliey are not made parties, by showing them to be 
 without the jurisdiction of the court, or that they cannot be 
 join('d without ousting the 'jurisdiction of the court as to the 
 Other parties. And as to persons who are without the jurisdic- 
 tion and may properly be made parties, the bill may pray that 
 process may issue to niaUe tlitin parties to the bill if they 
 siiould come within the jmiMliction.
 
 UNITED STATES CIKCUIT COURTS. 151 
 
 RULE XXIII. 
 
 Prayer for process. — The prayer for process of subpoena 
 in the bill shall contain the names of the defendants named ia 
 the introductory part of the bill, and if any of them are known 
 to be infants under age, or otherwise under guardianship, 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- 
 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 XXIV. 
 
 Counsel must sign bill. — Every bill shall contain the 
 signature of counsel annexed to it, which shall be 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 suit in the manner in which it is framed. 
 
 RULE XXV. 
 
 Costs — Purposes of taxation. — In order to prevent un- 
 necessary costs and expenses, and to promote brevity, succinct- 
 ness and directness in the allegations of bills and answers, the 
 regnlar 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 an- 
 swer. 
 
 RULE XXVI. 
 
 Contents of bill — Exceptions.— Every bill shall be ex- 
 pressed in as brief and succinct terms as it reasonably can be, 
 and shall contain no unnecessary recitals of deeds, documents, 
 contracts or other instruments, in hcec verba, or any other im- 
 pertinent matter, or any scandalous matter not relevant to the 
 suit. If it does, it may, on exceptions, be referred to a master
 
 152 KULES OF PRACTICE IN EQUITY. 
 
 by any judge of the court, for impertinence or scandal; and if 
 so found by liira, 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 tliat the bill 
 is not scandalous or impertinent, the plaintiff shall be entitled 
 to all costs occasioned by the reference. 
 
 RULE XXVII. 
 
 Exceptions for scandal or impertinence.— No order 
 shall 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 
 in writing and signed by counsel, describing 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 
 obtaining the order shall, without anj' unnecessary delay, pro- 
 cure the master to examine and report on the same on or be- 
 fore the next succeeding rule day, or the master shall certify 
 that further time is necessary for him to complete the exam- 
 ination. 
 
 I RULE XXVIIL 
 
 Bills amended — Costs paid and copy furnished.— 
 The plaintiff 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 parties, mis- 
 description of premises, clerical errors, and generally in mat- 
 ters 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 ti> tlie bill, lie shall i)ay to the dereiiduiit 
 the costs occasioned thereby, and shall, without delay, furnish
 
 UNITED STATES CIRCUIT COURTS. 153 
 
 hini a fair copy thereof, free of expense, with suitable refer- 
 ences to the places where the same are to be inserted. And if 
 the amendments are numerous, he shall 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 shall be fur- 
 nished to each defendant affected thereby. 
 
 RULE XXIX. 
 
 Amendraent of bill. — After an answer or plea or demur- 
 rer is put in, and before replication, the plaintiff may, upori 
 motion or petition, without notice, obtain an order from any 
 judge of the court to amend his bill on or before the next suc- 
 ceeding 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 ba 
 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 
 tliat 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 intro- 
 duced 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 XXX. 
 
 Abandonment and proceeding thereon.— If the plaint- 
 iff so obtaining any order to amend his bill after answer, or 
 plea, or demurrer, or after replication, shall not file his amend- 
 ments or amended bill, as the case may require, in the clerk'a 
 office on or before the next succeeding rule day, lie shall be 
 considered to have abandoned the same, and the canse shall 
 proceed as if no application for any amendment had been made.. 
 
 RULE XXXI. 
 
 Certiflcate of counsel — Affidavit.— No demurrer or plea 
 shall be allowed to be filed to any bill unless upon a certificate
 
 154 EULES OF PEACTICE IN EQUITY. 
 
 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 XXXII. 
 
 Defendant may demur, plead or answer. — The defend- 
 ant may at any time before the bill is taken for confessed, or 
 afterward 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 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 denying the fraud and combination, and the 
 facts on which the charge is founded. 
 
 RULE XXXIIL 
 
 Setting down for argument.— The plaintiflf 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 tlie defendant, they shall avail him as far as in 
 law and equity they ought to avail him. 
 
 RULE XXXIV. 
 
 Proceedings on overruling demvirrer or plea. — If, 
 
 upon tl>e hearing, any demurrer or plea is overruled, the plaint- 
 iff shall be entitled to his costs in the cause up to that period, 
 unless the court shall be satisfied that the defendant has good 
 ground, in point of law or fact, to interpose the same, and it 
 was not interposed vexatiously or for delay. And, upon the 
 overruling of any plea or demurrer, the defendant shall be as- 
 signed to answer the bill, or so nmch 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 tlio judgment of the court, be 
 reasonably done; in' default whereof, tlio bill shall bo taken 
 against him pi'o cuiifesso, and the matter thereof proceeded in 
 and decreed accordingly.
 
 UNITED STATES CIRCUIT COURTS. 155 
 
 RULE XXXV. 
 
 If sustained — Amendment of bill. — If, upon the hear- 
 ing, any demurrer or plea shall be allowed, the defendant shall 
 be entitled to his costs. But the court may, in its discretion, 
 upon motion of the plaintiff, allow him to amend his bill, upon 
 such terms as it shall deem reasonable. 
 
 RULE XXXVI. 
 
 Extent of demurrer or plea. — 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 XXXVII. 
 
 Answer as affecting demurrer or plea.— 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 XXXVIII. 
 
 Failure to reply or to set down for argument.— 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 sufficiency thereof, and his bill shall be 
 dismissed as of course unless a judge of the court shall allow 
 him further time for the purpose. 
 
 RULE XXXIX. 
 
 Answer.— The rule that if a defendant submits to answer 
 he shall answer fully to all the matters of the bill shall no 
 longer apply in cases where he might by plea protect himself 
 from such answer and discovery. And the defendant shall be 
 entitled in all cases, by answer, to insist upon all matters of 
 defense (not being matters of abatement, or to the character of
 
 156 EULES OF PKACI'ICE IX EQUITY. 
 
 the parties, or matters of form\ in bar of or to the merits 
 of the bill, of which he may be entitled to avail himself by a 
 plea in bar; and in such answer he shall not be compellable to 
 answer any other matters than he would be compellable to 
 answer and discover upon filing a plea in bar and an answer 
 in support of such plea, touching the matters set forth in the 
 bill, to avoid or repel the bar or defense. Thus, for example, 
 a bona fide purchaser for a valuable consideration, without 
 notice, may set up that defense by way of answer instead of 
 plea, and shall be entitled to the same protection and shall not 
 be compellable to make any further answer or discovery of his 
 title than he would be in any answer in support of such plea. 
 
 RULE XL. 
 
 Interrogatories. — It shall not hereafter be necessary to in- 
 terrogate a defendant specially and particularly upon any state- 
 ment in the bill, unless the complainant desires to do so to 
 obtain a discovery. 
 
 RULE XLI. 
 
 Interrogatories continued. — (1) The interrogatories con- 
 tained in the interrogating part of the bill shall be divided as 
 conveniently as may be from each other, and numbered con- 
 secutively 1, 2, 3, etc. ; and the interrogatories which each de- 
 fendant is required to answer shall be specified in a note at the 
 foot of the bill, in the form or to the efTect following, that is to 
 say: "The defendant (A. B.) is required to answer the inter- 
 rogatories numbered respectively I, 2, 3," etc. ; and the office 
 copy of the bill taken by each defendant shall not contain any 
 interrogatories except those v^hich such defendant is so required 
 to answer, unless such defendant shall require to be furnished 
 witli a copy of the whole bill. 
 
 (2) If the complainant, in his bill, shall waive an answer 
 under oath, or sliall only reijuire an answer under oath with 
 regard to certain specified interrogatories, the answer of the 
 (lof('n<lant, tliough umier oath, except such part thereof as 
 shall be directly responsive to such interrogatories, shall not be
 
 UNITED STATES CIRCUIT COURTS. 157 
 
 evidence in his favor, unless the cause be set down for hearing 
 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 mo- 
 tiou in the cause ; but this shall not prevent a defendant from 
 becoming a witness in his own behalf under section 3 of the 
 ^ct of congress of July 2, 1864. 
 
 RULE XLII. 
 
 Note specifying interrogatories to be answered, part 
 ■of bill. — Tlie note at the foot of the bill, specifying the inter- 
 rogatories 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 XLIII. 
 
 Form when interrogatories are used.— Instead of the 
 •words of the bill now in use, preceding the interrogating part 
 thereof, and beginning with the words: "To the end, there- 
 fore," there shall hereafter be used words in the form or to the 
 effect following: "To the end, therefore, that the said defend- 
 ants ma}', if they can, show why your orator should not have 
 the relief hereby prayed, and may, upon their several and re- 
 spective corporal oaths, and according to the best and utmost 
 -of their several and i-espective knowledge, remembrance, in- 
 formation 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 
 respectively required to answer; that is to say — 
 
 " 1. Whether, etc. 
 
 "2. "Whether," etc. 
 
 RULE XLIV. 
 
 "When interrogatories need not be answered. — A de- 
 fendant shall be at liberty, by answer, to decline answering
 
 158 RULES OF PRACTICE IN EQUITY. 
 
 any interrogatory, or part of an interrogatory, from answering 
 which he might have protected liimself by demurrer ; and he 
 shall be at liberty so to decline, notwithstanding he shall an- 
 swer other 1 arts of the bill from which he might have pro- 
 tected himself by demurrer. 
 
 RULE XLV. 
 
 Special replication not allowed. — 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 
 payment of costs, as the court, or a judge thereof, may in his 
 discretion direct. 
 
 RULE XLVI. 
 
 Answer to amended bill.— In every case where an 
 amendment shall be made after answer filed, the defendant 
 shall put in a new or supplemental answer on or before the 
 next succeeding rule day after that on which the amendment 
 or bill is filed, unless the time is enlarged or otherwise ordered 
 by a judge of tJie court ; and upon his default, the like proceed- 
 ings may be had as in cases of an omission to put in an an- 
 swer. 
 
 RULE XLVII. 
 
 Omission of parties. — In all cases where it shall appear to 
 the court that persons, who might otherwise be deemed neces- 
 sary or proper parties to the suit, cannot be made parties by 
 reason of tlieir being out of the jurisdiction of the court, or 
 inca|)able otherwise of being made parties, or because their 
 joinder would oust the jurisdiction of the court as to the par- 
 ties before the court, the court may in their discretion proceed 
 in the cause without making sucii persons parties; and iu 
 Buch cases the decree shall bo wiLliuut prejudice to the rights 
 of the absent parties. 
 
 RULE XLVIII. 
 
 Parties, when numerous. — Where the parties on either 
 Bide are very numerous, and cannot, witliout manifest incon-
 
 UNITED STATES CIRCUIT COURTS. 151) 
 
 venience and oppressive delays in tlie suit, be all brought be- 
 fore it, the court, in its discretion, may dispense with making 
 all of them parties, and may proceed in the suit, having suffi- 
 cient parties before it to represent all the adverse interests of 
 the plair.tiffs and the defendants in the suit properly before it. 
 But, in such cases, the decree shall be without prejudice toth& 
 rights and claims of all the absent parties. 
 
 RULE XLIX. 
 
 Suits by trustees. — In all suits concerning real estate which 
 is vested in trustees by devise, and such trustees are competent 
 to sell and give discharges for the proceeds of the sale, and for 
 the rents and profits of the estate, such trustees sliall represent 
 the persons beneficially interested in the estate, or the pro- 
 ceeds, or the rents and ijrofits, in the same manner and to the 
 same extent as tlie executors or admin.strators in suits con- 
 cerning personal estate represent the persons beneficially inter- 
 ested 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, parties to the suit ; but the 
 court may, upon consideration of the matter on the hearing, if 
 it shall so think fit, order such persons to be made parties. 
 
 RULE L. 
 
 Heir, when party, and when not.— 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 estab- 
 lished against him. 
 
 RULE LI. 
 
 Joint and several demands. — In all cases in which the 
 plaintilT has a joint and several demand against several per- 
 sons, 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 persons liable thereto; but the plaintiff may 
 proceed against one or more of the pei-sons severally liable.
 
 IGO EULES OF PRACTICE IN EQUITY. 
 
 RULE LII. 
 
 Defect of parties. — Where the defendant shall, by his an- 
 swer, 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 eiTect 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, notwithstanding an objection 
 for want of parties taken by the answer, he shall not, at the 
 hearing of the cause, if the defendant's objection shall then be 
 allowed, be entitled as of course to an order for liberty to 
 amend his bill by adding parties. But the court, if it thinks 
 fit, shall be at liberty to dismiss the bill. 
 
 RULE LIII. 
 
 Objection of defect of parties.— If a defendant shall, at 
 the hearing of a cause, object tiiat a suit is defective for want 
 of parties, not having by plea or answer taken the objection, 
 and therein specified by name or description of parties to whom 
 the objection applies, the court, if it shall think fit, shall be at 
 liberty to make a decree saving the rights of the absent parties. 
 
 RULE LIV. 
 
 Nominal parties. — 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 requires 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 shall be bound b)' all tlie proceedings 
 in the cause. If the plaintiff shall reciuire him to appear and 
 answer ho shall be ciititkMl to the costs of all the proceedings 
 against him, unless the court shall otherwise direct.
 
 UNITED STATES CIKCUIT COURTS. lOl 
 
 EULE LV. 
 
 Injunctions. — Whenever an injunction 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 plaintiff 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 previouslj'^ 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 LVI. 
 
 Revivor of suit. — 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 re- 
 quire, 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 coux'se. 
 
 RULE LVII. 
 
 Supplemental bill. — Whenever a suit in equity shall be- 
 come defective from any event happening after the filing of 
 the bill, as, for example, by change of interest in the parties, 
 or for any other reason, a supplemental bill, or a bill in the 
 11
 
 162 EULES OF PRACTICE IN EQUITY. 
 
 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 
 sucli supplemental bill, the defendant shall demur, plead or 
 answer thereto on the next succeeding rule day after the sup- 
 plemental bill is filed in the clerk's office, unless some other 
 time shall be assigned by a judge of the court. 
 
 RULE LVIII. 
 
 Bills of revivor or supplement. — It shall not be neces- 
 sary in any bill of revivor or supplemental bill to set forth any 
 of the statements in tlie original suit, imless the special circum- 
 Btances of the case may require it. 
 
 RULE LIX. 
 
 Answer verifi.ed before whom.— 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 be- 
 fore any judge of any court of a state or territory, or notary 
 public. 
 
 RULE LX. 
 
 Amendment of answer. — Alter an answer is put in it 
 may be amended as of course in any matter of form or by fill- 
 ing up a blank, or correcting a date, or reference to a docu- 
 ment, or other small matter, and be resworn, at any time 
 before a replication is i)ut in, or the cause is set down for a hear- 
 ing upon bill and answer. But after replication or such setting 
 down for a lioaring it shall not be amended in any material 
 mutters, as by atlding new facts or defenses, or quaiil'ying or 
 altering the original statuinents, except by special leave of the 
 court, or of a judge thereof, upon motion and cause shown, 
 alter due. notice to the adverse party, Huj)j)orted, if required, 
 by afliduvit; and in every case where leave is so granted, the
 
 UNITED STATES CIRCUIT COURTS. 163 
 
 court or the judge granting the same may, in his discretion, 
 require that the same be separately engrossed, and added as a 
 riistinct amendment to the original answer, so as to be distin- 
 guishable therefrom. 
 
 RULE LXI. 
 
 Exceptions for insuflB.cieney.— 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 insufficiency, and no longer, unless a longer time 
 shall be allowed for the purpose, upon cause shown to the 
 court, or a judge thereof; and, if no exception shall be filed 
 thereto within that period, the answer shall be deemed and 
 taken to be sufficient. 
 
 RULE LXII. 
 
 Costs of separate answers.— When the same solicitor is 
 employed for two or more defendants, and separate answers 
 sliall be filed, or other proceedings had, by two or more of the 
 defendants separately, costs shall not be allowed for such sep- 
 arate answers, or other proceedings, 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 LXIIL 
 
 Setting down exceptions for argument.— Where ex- 
 ceptions shall be filed to the answer for insufficiency, within 
 the period prescribed 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 
 dovn 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 
 80 set down the same for a hearing, the exceptions shall be 
 deemed abandoned, and the answer shall be deemed sufficient; 
 provided, however, that tlie court, or any judge thereof, may^
 
 1G4 KULES OF PKACTICE IN EQUITY. 
 
 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 LXIV. 
 
 If exceptions sustained, further answer. — 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 the matter of such 
 " exceptions is concerned, as confessed, or, at his election, he may 
 have a writ of attachment to compel the defendant to make a 
 better answer to the matter of the exceptions; and the defend- 
 ant, when he is in custody upon such writ, shall not be dis- 
 charged therefrom but by an order of the court, or of a judge 
 thereof, upon his putting in such answer, and complying with 
 such other terms as the court or judge may direct. 
 
 RULE LXV. 
 
 Costs on exceptions. — If, upon argument, the plaintiff's 
 exceptions to the answer shall be overruled, or the answer shall 
 be adjudged insuflicient, 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 ex- 
 ceptions. 
 
 RULE LXVI. 
 
 Replication.— Whenever the answer of the defendant 
 Bhall not be excepted to, or shall be adjudged or deemed suffi- 
 cient, the plaintiff sliall lile 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 re- 
 joinder or other jjleading on either side. If the plaintiff sliall 
 omit or refuse to lile such roi)lication within the prescribed 
 period, the defendant shall be entitled to an order, as of course, 
 for a dismissal of tlie suit; and tlie suit shall thereupon stand
 
 UNITED STATES CIKCUIT COURTS. 105 
 
 dismissed, unless the court, or a judge thereof, shall, upon mo- 
 tion, for cause shown, allow a replication to be filed nunc pro 
 tunc, the plaintiff submitting to speed the cause, and to such 
 other tei'ms as may be directed. 
 
 RULE LXVII. 
 
 Testimony— How taken.— (1) 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 is- 
 suing of the commission; and if no cross-interrogatories are 
 filed at the expiration of the time, the commission may issue 
 ex parte. In all cases the commissioner or commissioners 
 ehall be named by tlie court or by a judge thereof. Ordered, 
 that the sixty-seventh rule governing equity practice be so 
 amended as to allow the presiding judge of any court exercis- 
 ing jurisdiction, either in term time or in vacation, to vest in 
 the clerk of said court general power to name commissioners 
 to take testimony in like manner that the court or judge thereof 
 can now do by the said sixty-seventh rule. 
 
 (2) 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 examiners of the court or before an examiner 
 to be specially appointed by the court, the examiner, if he so 
 request, shall be furnished with a copy of the pleadings; and 
 such examination shall take place in the presence of the par- 
 ties or their agents, by their counsel or solicitors, and the wit- 
 nesses shall be subject to cross-examination and re-examina- 
 tion, and which shall be conducted as near as may be in the 
 mode now used in common-law courts. The depositions taken 
 upon such oral examinations shall be reduced to writing by 
 the examiner, in the form of question put and answer given; 
 provided, that by consent of parties, the examiner may take 
 down the testimony of any witness in the form of narrative.
 
 163 KULES OF PKACTICE IN EQUITF. 
 
 At the request of either part}', with reasonable notice, the 
 rlpprsition of any witness shall, under the direction of the 
 ex miinei', be taken down either by a skilful stenographer or 
 by a skilful typewriter, as the examiner may elect, and when 
 iaken stenographically sliall be put into typewriting or other 
 writing; provided, that such stenographer or typewriter has 
 been appointed bj^ the court, or is approved by both parties. 
 
 The testimony of each witness, after such reduction to writ- 
 ing, shall be read over to him and signed by him in the pres- 
 ence of the examiner and of such of the parties or counsel as 
 may attend; provided, that if the witness shall refuse to sign 
 his deposition so taken, then the examiner shall sign the same, 
 stating upon the record the reasons, if any, assigned by the 
 witness for such refusal. 
 
 The examiner may, upon all examinations, state any special 
 matters to the court as he shall think fit; and any question 
 or questions which may be objected to shall be noted by the 
 examiner upon the deposition, but he shall not have power to 
 decide on the competency, materiality or relevancy of the ques- 
 tions; and the court shall have jjower to deal with the costs 
 of incompetent, immaterial or irrelevant depositions, or parts 
 of them, as may be just. 
 
 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 prac- 
 ticed with respect to witnesses to be produced on examination 
 before an examiner of said court on written interrogatories. 
 
 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. 
 
 When the examination of witnesses before the examiner is 
 CDiu-Iuded, the original do))()sitions, autiienticated by the sig- 
 nature of the examiner, shall be transmitted by him to the 
 clork of tlie court, to be there hied of record, in the same 
 mode as prescribed in section HO') of the Revised Statutes. 
 
 Testimony may be taken on commission in tlie usual way,
 
 UNITED STATES CIRCUIT COURTS. 167 
 
 by 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. 
 
 Where the evidence to be adduced in a cause is to be taken 
 orally, as before provided, the court may, on motion of either 
 party, assign a time within which the complainant shall take 
 his evidence in support of the bill, and a time thereafter witliin 
 which the defendant shall take his evidence in defense, and a 
 time thereafter within which the complainant shall take his 
 evidence in reply; and no further evidence shall be taken in 
 the cause, unless by agreement of the parties or by leave of 
 court first obtained, on motion for cause shown. 
 
 The expense of the taking down of depositions by a stenog- 
 rapher and of putting them into typewriting or other writ- 
 ing shall be paid in the first instance by the party calling the 
 witness, and shall be imposed by the court, as part of the 
 costs, upon such party as the court shall adjudge sliould ulti- 
 mately bear them. 
 
 Upon due notice given as prescribed by previous order, the 
 court may, at its discretion, permit the whole, or any specific 
 part, of the evidence to be adduced orally in open court on 
 final hearing. 
 
 RULE LXVIII. 
 
 Under acts of congress. — 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 affidavit of the fact, be entitled to a 
 cross-examination of the witness, either under a commission or 
 by a new depos.tion taken under the acts of congress, if a court 
 or judge thereof shall, under all the circumstances, deem it 
 reasonable. 
 
 RULE LXIX. 
 
 Time for testimony. — Three months, and no more, shall 
 be allov.ed for the taking of testimony after the cause is at
 
 168 EULES OF PRACTICE IN EQUITY. 
 
 issue, unless the court, or a judge thereof, shall, upon special 
 cause shown by either party, enlarge the time; and no testi- 
 mony 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 testiaiony into the 
 clerk's office, publication thereof may be ordered in the clerk's 
 office, by any judge of the court, upon due notice to the par- 
 ties, or it may be enlarged, as he may deem reasonable under 
 all the circumstances; but, by consent of the parties, publica- 
 tion of the testimony may at any time pass into the clerk's of- 
 fice, such consent being in writing, and a copy thereof entered 
 in the order books, or indorsed upon the deposition or testi- 
 mony. 
 
 RULE LXX. 
 
 Infirm, single or about to depart. — After any bill filed, 
 and before the defendant hath answered the same, upon affi- 
 davit made that any of plaintiff''s witnesses are aged and in- 
 firm, or going out of the country, or that any one of them is a 
 eingle witness to a material fact, the clerk of the court shall, 
 as of course, upon the application of the plaintiff, issue a com- 
 mission to such commissioner or commissioners as a judge of 
 the court may direct, to take the examination of such wit- 
 ness or witnesses de bene esse, upon giving due notice to the 
 adverse party of the time and place of taking his testimony. 
 
 RULE LXXL 
 
 Last interrogatory. — The last interrogatory in the writ- 
 ten 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 fortii, any other matter or thing 
 which may be a benefit or advantage to the parties at issue in 
 tliis cauHc, or either of them, or tlwit may be material to tlio 
 subject of tliis your cxaminaliDii, or tlie matters in question in 
 this ("luse? If yea, set forth the same fully and at large in your 
 aniiwcr."
 
 UNITED STATES CIKCUIT COURTS. IGO" 
 
 RULE LXXII. 
 
 Cross-bill — Answer to. — 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 an- 
 swer thereto before the original plaintiff shall be compellable 
 to answer the cross-bill. The answer of the original plaintiff 
 to such cross-bill may be read and used by the party filing the 
 cross-bill at the hearing, in the same manner and under the 
 same restrictions as the answer praying relief may now be read 
 and used. 
 
 RULE LXXIII. 
 
 Account of estate. — 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 LXXIV. 
 
 Proceedings on reference. — Whenever any reference 
 of any matter is made to a master to examine and report there- 
 on, the party at whose instance or for whose benefit the refer- 
 ence was made shall cause the same to be presented to the 
 master for hearing on or before the next rule day succeeding 
 the time when the reference is made; if he shall omit ta 
 do so, the adverse party shall be at liberty forthwith to cause 
 proceedings to be had before the master, at the costs of tha 
 party procuring the reference. 
 
 RULE LXXV. 
 
 Master, proceedings before. — Upon every such refer- 
 ence, it shall be the duty of the master, as soon as, he rea- 
 sonably 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 appointfed
 
 170 EULES OF PRACTICE IN EQUITY. 
 
 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 tlie absent party or his solicitor of 
 such adjournment ; and it shall be the duty of the master to 
 proceed witli 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 LXXVI. 
 
 Master's report.— In the reports made by the master to 
 the court, no part of any state of facts, charge, affidavit, dep- 
 osition, examination or answer brought in or used before 
 them shall be stated or recited. But such state of facts, charges, 
 affidavits, deposition, examination or answer shall be identified, 
 specified and referred to, so as to inform the court what state 
 of facts, charge, affidavit, deposition or answer were so brought 
 in or used. 
 
 RULE LXXVII. 
 
 Duty and power of master.— The master shall regulate 
 all the px-oceedings in every hearing before him upon every 
 such reference ; and he shall have full authority to examine 
 the parties in the cause, upon oath, toucliing all matters con- 
 tained in the reference; and also to require the production of 
 .all books, papers, writings, vouchers and other documents ap- 
 plicable thereto; and also to examine on oath, viva voce, all 
 witnesses produced by the parties before him, and to order the 
 -examination of other witnesses to be taken under a commis- 
 sion to bo 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, ami direct all other inquiries 
 and jn-oceedingH in the matters before him, which he may 
 deem necessary and proper to the justice and merits thereof 
 and the riglils of the parties.
 
 UNITED STATES CIRCUIT COURTS. 
 
 RULE LXXVIII. 
 
 171 
 
 Attendance of witnesses.— Witnesses who live within 
 the district may, npoii due notice to the opposite party, be 
 eummoned to appear before the commissioner appointed to 
 take testimony, or before a master or examiner appointed in 
 any cause, by subpoena in tlie usual form, which may be issued 
 by the clerk in blank, and filled up by the party praying the 
 same, or by the commissioner, master or examiner, requiring 
 the attendance of the witnesses at the time and place specified, 
 who shall be allowed for attendance the same compensation as 
 for attendance in court ; and if any witness shall refuse to ap- 
 pear or give evidence, it shall be deemed a contempt of the 
 court, which being certified to the clerk's office by the com- 
 missioner, master or examiner, an attachment may issue there- 
 upon 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- 
 fusing to give testimony in the court. But nothing herein con- 
 tained shall prevent the examination of witnesses viva voce 
 when pi'oduced in open court, if tlie court shall, in its discre- 
 tion, deem it advisable. 
 
 RULE LXXIX. 
 
 Form of accounts. — All parties accounting before a mas- 
 ter shall bring in their respective accounts in the form of debtor 
 and creditor; and any of the other parties wlio shall not be 
 satisfied with the accounts so brought in shall be at liberty to 
 examine the accounting party viva voce, or upon interroga- 
 tories, in the master's ofiice, or by deposition, as the master 
 shall direct. 
 
 RULE LXXX. 
 
 What used before master.— 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.
 
 172 ETJLES OF PRACTICE IN EQUITY. 
 
 RULE LXXXI. 
 
 Who may be examined.— The master shall be at liberty 
 to examine any creditor or other peison coiuing 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 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 LXXXII. 
 
 Appointment — Fees. — Tlie circuit courts may appoint 
 standing masters in chancery in their respective districts, both 
 the judges concurring in the appointment; and they may also 
 appoint a master pro hoc 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 com- 
 pensation ; but, when the compensation is allowed by the court, 
 he shall be entitled to an attachment for the amount against 
 the party who is ordered to pay the same, if, upon notice 
 thereof, he does not pay it within the time prescribed by the 
 court. 
 
 RULE LXXXIII. 
 
 Return and entry of master's report.— 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 tho 
 clerk in the order book. The parties shall have one month 
 from tlie time of filing the report to file exceptions thereto, 
 and, if no exceptions are witliin that period filed by either 
 party, tiie report sliall stand confirmed on tho next rule day 
 after tlie month is expired. If exceptions are filed they shall 
 stand for Ik arlM;; before the court if the court is then in ses-
 
 UNITED STATES CIRCUIT COUKTS. 173 
 
 sion, or, if not, then at the next sitting of the court which 
 shall be held thereafter, by adjournment or otherwise. 
 
 RULE LXXXIV. 
 
 Costs on frivolous causes.— And, in order to prevent ex- 
 ceptions to reports from being filed for frivolous causes, or for 
 mere delay, the party whose exceptions are overruled shall, 
 for every exception overruled, pay costs to the other party, 
 and for every exception allowed shall be entitled to costs ; the 
 costs to be fixed in each case by the court, by a standing rule 
 of the circuit court. 
 
 RULE LXXXV. 
 
 Correction of decree. — Clerical mistakes in decrees or 
 decretal 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 LXXXVL 
 
 Decree, form of.— 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 pro- 
 ceeding, shall be recited or stated in the decree or order; but 
 the decree and order shall begin, in substance, as follows: 
 " This cause came on to be heard (or to be further heard, as the 
 case may be) at this term, and was argued by counsel; and 
 thereupon, upon consideration thereof, it was ordered, ad- 
 judged and decreed as follows, viz. : " [Here insert the decree 
 or order.] 
 
 RULE LXXXVII. 
 
 Suits by or against incompetents.— 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 lyrochein ami; subject, however, 
 to such orders as the court may direct for them.
 
 174 RULES OF PKACTICB IN EQUITY. 
 
 RULE LXXXVIII. 
 
 Rehearing. — Every petition for a rehearing shall contain 
 the special matter or cause on which such rehearing is applied 
 for, shall be signed by counsel, and the facts therein stated, if 
 not apparent on the record, shall be verified by the oath of the 
 party or 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 LXXXIX. 
 
 Rules by circuit court. — The circuit courts (a majority 
 of all the judges thereof, including the justice of the supreme 
 court, the circuit judges and the district judge for the district, 
 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 XC. 
 
 Rules of practice.— In all cases where the rules pre- 
 scribed 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 applied consistently with the local 
 circumstances and local conveniences of the district where the 
 court is lieM, not as positive rules, but as furnishing just 
 analogies to regulate the practice. 
 
 RULE XCI. 
 
 Affirmation. — Whenever, und(!r those rules, an oath is or 
 may be refpiired to bo taken, tlio party may, if conscientiously 
 scrupulous of taking an oath, in lieu tlioreof make solemn 
 afiiriiiatioa to the truth of tlin facts stated by him.
 
 UNITED STATES CIRCUIT COUETS. ITS- 
 
 RULE xcir. 
 
 Decree in foreclosure cases.— In suits in equity for the 
 foreclosure of mortgages in the circuit court 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 provided in the eighth rule of this court reg- 
 ulating the equity practice, where the decree is solely for the 
 payment of money. 
 
 RULE XCIIL 
 
 Injunction — On appeaL— 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 al- 
 lowance, make an order suspending or modifying the injunc- 
 tion during the pendency of the appeal, upon such terms as to 
 bond or otherwise as he may consider proper for the security 
 of the rights of the opposite party. 
 
 RULE XCIV. 
 
 Bill by stockholder. — Every bill brought by one or more 
 stockholders in a corporation, against the corporation and other 
 parties, founded on rights which may properly be asserted by 
 the corporation, must be verified by oath, and must contain 
 an allegation that the plaintiff was a shareholder at the time 
 of the transaction of which he complains, or that his sliare had 
 devolved on hina since, by operation of law, and that the suit 
 is not a collusive one to confer on a court of the United States 
 jurisdiction of a case of which it would not otherwise have 
 cognizance. It must also set forth with particularity the 
 efforts of the plaintiff to secure such action as he desires on 
 the part of the managing directors or trustees, and, if neces- 
 sary, of the shareholders, and the causes of his failure to ob- 
 tain such action.
 
 RULES 
 
 OP THE 
 
 SUPMllE COET OF M UillED SIAIES. 
 
 1. 
 
 CLERK. 
 
 1. The clerk of this court shall reside and keep the oflSce at 
 the seat of the national government, and he shall not practice, 
 either as attorney or counselor, in this court or in any other 
 court, while he shall continue to be clerk of this court. 
 
 2. The clerk shall not jjermit any original record or paper to 
 be taken from the court room or from the office without an 
 order from the court except as provided by rule 10. 
 
 2. 
 
 ATTORNEYS AND COUNSELORS. 
 
 1. It shall be requisite to the admission of attorneys or coun- 
 selors to practice in this court that they shall have been such 
 for three years past in tlie supreme courts of the states to 
 which they respectively belong, and that their private and 
 professional character shall appear to be fair. 
 
 2. They shall respectively take and subscribe the following 
 oath or affirmation, viz. : 
 
 I, , do solemnly swear [or, affirm] that I will de- 
 mean myself, as an attorney and counselor of this court, up- 
 rightly and according to law, and that I will support the con- 
 stitution of the United States. 
 13
 
 178 EDLES. 
 
 3. 
 
 PRACTICE. 
 
 This court considers the former practice of the courts of 
 king's bench and of chancery, in England, as affording out- 
 lines for the practice of this court; and will, from time to 
 time, make such alterations therein as circumstances may 
 render necessary. 
 
 4. 
 
 BILL OF EXCEPTIONS. 
 
 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 common law, upon any 
 general exception to the whole of such charge. But the party 
 excepting shall be required to state distinctly the several mat- 
 ters of law in such charge to which he excepts; and those 
 matters of law, and those only, shall be inserted in the bill of 
 exceptions and allowed by the court. 
 
 5. 
 
 PROCESS. 
 
 1. All process of this court shall be in the name of the Presi- 
 dent of the United States. 
 
 2. When 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. 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, the complainant shall be at liberty to proceed ex parte. 
 
 6. 
 
 MOTIONS. 
 
 1. All motions to the court shall be reduced to writing, and 
 .sliall contain a brief statement of the facts and objects of the 
 motion.
 
 UNITED STATES SUPREME COURT, 179 
 
 2. One hour on each side shall be allowed to the argument 
 of a motion, and no more, vvitliout special leave of the court, 
 granted before the argument begins. 
 
 3. No motion to dismiss, except on special assignment by 
 the court, shall be heard, unless previous notice has been given 
 to the adverse party, or the counsel or attorney of such party. 
 
 4. All motions to dismiss writs of error and appeals. excejDt 
 motions to docket and dismiss under rule 9, must be submitted 
 in the first instance on printed briefs or arguments. If the 
 court desires further argument on that subject, it will be or- 
 dered in connection with the hearing on the merits. The party 
 moving to dismiss sliall serve notice of the motion, with a 
 copy of his bripf of 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. Affidavits of the deposit in the mail of the notice 
 and brief to the proper addi-ess of the counsel to be served, 
 duly post paid, at such time as to reach him by due course of 
 mail the three weeks or thirty days before the time fixed by 
 the notice, will be regarded as prima facie evidence of service 
 on counsel who reside without the District of Columbia. Oa 
 proof of such service, the motion will be considered, unless, 
 for satisfactory reasons, further time be given by the court to 
 either party. 
 
 5. There may be united, with a motion to dismiss a writ of 
 error or an appeal, a motion to affirm on the ground that, 
 although the record may show that this court has jurisdiction, 
 it is manifest the writ or appeal was taken for delay only, or 
 that the question on which the jurisdiction depends is so friv- 
 olous as not to need further argument. 
 
 6. The court will not hear arguments on Saturday (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; and motions not required by 
 the rules of the court to be put on the docket shall be entitled
 
 180 KULES. 
 
 to preference immediately after the reading of opinions, if 
 such motions shall be made before the court shall have en- 
 tered upon the hearing of a case upon the docket. 
 
 7. 
 
 LAW LIBRARY. 
 
 1. During the session of the court, any gentleman of the bar 
 having a case on the docket, and wishing to use any book or 
 books in the law library, shall be at liberty, upon application 
 to the clerk of the court, to receive an order to take the same 
 (not exceeding at any one time three) from the library, ha 
 being thereby responsible for the due return of the same 
 within a reasonable time, or when required by the clerk. It 
 shall be the duty of the clerk to keep, in a book for that pur- 
 l)0se, a record of all books so delivered, which are to be charged 
 against the party receiving the same. And in case the same 
 shall not be so returned, the party receiving the same shall be 
 responsible for and forfeit and pay twice the value thereof, 
 and also one dollar per day for each day's detention beyond 
 tlie limited time. 
 
 2. The clerk shall deposit in the law library, to be tliere 
 carefully preserved, one copy of the printed recoFd in every 
 case submitted to the court for its considei'ation, and of all 
 printed motions, briefs or arguments filed thei'ein. 
 
 3. The marshal shall take charge of the books of the court, 
 together witli such of the duplicate law-books as congress 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 there- 
 :from by any one except the justices of the court. 
 
 8. 
 
 WRIT OF ERROR, RETURN AND RECORD. 
 
 1. The clerk of the court to which any writ of error may be 
 directed shall make return of the same, by transmitting a true 
 copy of the record, and of the assignment of errors, and of all 
 .j)roceeding3 in the case, under liis hand and the seal of the 
 court.
 
 UNITED STATKS SUPKKME COUKT. 181 
 
 2. In all cases brought to this court, by writ of error or ap- 
 peal, to review any judgment or decree, the clerk of the court 
 by which such judgment or decree was rendered shall annex 
 to and transmit with the record a copy of the opinion or opin- 
 ions filed in the case, and in cases at law a complete copy of 
 the charge of the court to the jury. 
 
 3. No case will be heard until a complete record, containing- 
 in itself, and not by reference, all the papers, exhibits, deposi- 
 tions, and other proceedings which are necessary to the hearing- 
 in this court, shall be filed. 
 
 4. Whenever it shall be necessary or proper, in the opinion 
 of the presiding judge in any circuit court, or district court 
 exercising circuit-court jurisdiction, that original papers of 
 any kind should be inspected in this court upon writ of 
 error or appeal, such presiding judge may make such rule 
 or order for the safe-keeping, transporting, and return of such 
 original papers as to hira may seem proper, and this court will 
 receive and consider such original papei's in connection with 
 the transcript of the proceedings. 
 
 5. All appeals, writs of error, and citations must be made 
 returnable not exceeding thirty days from the day of signing 
 the citation, whether the return day fall in vacation or in term 
 time, and be served before the return day. 
 
 6. The record in cases of admiralty and maritime jurisdic- 
 tion, when vinder the requirements of law the facts have been 
 found in the court below, and the power of review is limited to 
 the determination of questions of law arising on the record, 
 shall be confined to the pleadings, the findings of fact, and con- 
 clusions of law thereon, the bills of exceptions, the final judg- 
 ment or decree, and such interlocutory orders and decrees a& 
 may be necessary to a proper review of the case. 
 
 9. 
 
 DOCKETING CASES. 
 
 1. It shall be the duty of the plaintiff in error or appellant; 
 to docket the case and file the record thereof with the clerk of 
 this court by or before the return day, whether in vacation or
 
 182 KULES. 
 
 in term time. But, for good cause shown, the justice or judge 
 who signed the citation, or any justice of this court, may en- 
 large the time, by or before its expiration, the order of enlarge- 
 ment to be filed with the clerk of this court. If the plaintiff 
 in error or appellant shall fail to comply with this rule, the 
 defendant in error or appellee may have the cause docketed and 
 dismissed upon producing a certificate, whether in term time 
 or vacation, from the clerk of the court wherein the judgment 
 or decree was rendered, stating the case and certifying that 
 such vi'rit of error or appeal has been duly sued out or allowed. 
 And in no case shall the plaintiff in error or appellant be en- 
 titled to docket the case and file the record after the same 
 shall have been docketed and dismissed under this rule, un- 
 less by order of the court. 
 
 2. But the defendant in error or appellee may, at his option, 
 docket the case and file a copj' of the i-ecord with the clerk of 
 this court; and, if the case is docketed and a copy -of the rec- 
 ord filed with the clerk of this court by the plaintiff in error 
 or appellant within the period of time above limited and pre- 
 scribed by this rule, or by the defendant in error or appellee 
 at any time thereafter, the case shall stand for argument. 
 
 3. Upon tlie filing of the transcript of a record brought up 
 by writ of error or appeal, the appearance of the counsel for 
 the party docketing the case shall be entered. 
 
 4. In all cases where the period of thirty days is mentioned 
 in rule 8, it shall be extended to sixty days in writs of error 
 and appeals from California, Oregon, Nevada, Washington, 
 New Mexico, Utah, Arizona, Montana, Wyoming, North Da- 
 kota, South Dakota, Alaska and Idaho. 
 
 10. 
 
 PHINTINO UKOORDS. 
 
 t. In all cases tlie plaintiff in error or a])pellant, on docket- 
 ing a case and filing the record, sliail enter into an undertaking 
 to the clerk, with surety to his satisfaction, for the payment 
 of liis fees, or otherwise satisfy him in that behalf.
 
 UNITED STATES SUPEEME COUKT. 183 
 
 2. Tlie clerk shall cause an estimate to be made of the cost 
 of printing the record, and of his fee for preparing it for the 
 printer and supervising the printing, and shall notify to the 
 party docketing the case the amount of the estimate. If he 
 shall not pay it within a reasonable time, the clerk shall notify 
 the adverse party, and he may pay it. If neither party shall 
 pay it, and for want of such payment the record shall not 
 have been printed when a case is reached in the regular call 
 of the docket, after March 1, 1884, the case shall be dismissed, 
 
 3. Upon payment bj' either party of the amount estimated 
 by the clerk, twenty-five copies of the record shall be printed, 
 under his supervision, for the use of the court and of counsel. 
 
 4. In cases of appellate jurisdiction the original transcript 
 on file sliall b^ taken by the clerk to the printer. But the 
 clerk shall cause copies to be made for the printer of such 
 original papers, sent up under rule 8, section 4, as are neces- 
 sary to be printed; and of the whole record in cases of orig- 
 inal jurisdiction. 
 
 5. The clerk shall supervise the printing, and see that the 
 printed copy is properly indexed. He shall distribute the 
 printed copies to the justices and the reporter, from time to 
 time, as required, and a copy to the counsel for the respective 
 parties. 
 
 6. If the actual cost of printing the record, together with 
 the fee of the clerk, shall be less than the amount estimated 
 and paid, the amount of the difference shall be refunded by 
 the clerk to the party paying it. If tlie actual cost and clerk's 
 fee shall exceed the estimate, the amount of the excess shall 
 be paid to the clerk before the delivery of a printed copy to 
 either party or his counsel. 
 
 7. In case of reversal, affirmance, or dismissal, with costs, 
 the amount of the cost of printing the record and of the clerk's 
 fee shall be taxed against the party against whom costs are 
 given, and shall be inserted in the body of the mandate or 
 other proper process. 
 
 8. Upon the clerk's producing satisfactory evidence, by affi- 
 davit or the acknowledgment of the parties or their sureties.
 
 18i RULES. 
 
 of having served a copy of the bill of fees due by them, re- 
 spectively, in this court, on such parties or their sureties, an 
 attachment shall issue against such parties or sureties, re- 
 spectively, to compel payment of said fees. 
 
 9. The plaintiff in error or appellant may, v^-ithin ninety 
 days after filing the record in this court, file with the clerk a 
 statement of the errors on which he intends to rely, and of 
 the parts of the record which he thinks necessary for the con- 
 sideration thereof, and forthwith serve on the adverse party 
 a copy of such statement. The adverse party, within ninety 
 days thereafter, may designate in writing, filed with the clerk, 
 additional parts of the record which he thinks material; and, 
 if he shall not do so, he shall be held to have consented to a 
 hearing on the parts designated by the plaintiff in error or 
 appellant. If parts of the record shall be so designated by 
 one or both of the parties, the clerk shall print those parts 
 only; and the court will consider nothing but those parts of 
 the record, and the errors so stated. If at the hearing it shall 
 appear that any material part of the record has not been 
 printed, the writ of error or appeal may be dismissed, or such 
 other order made as the circumstances may appear to the 
 court to require. If the defendant in error or appellee shall 
 have caused unnecessary parts of the record to be printed, 
 such order as to costs may be made as the court shall think 
 proper. 
 
 The fees of the clerk under rule 24, section 7, shall be com- 
 puted, as at present, on the folios in the record as filed, and 
 shall be in full for the performance of his duties in the execu- 
 tion hereof. 
 
 11. 
 TRANSLATIONS. 
 
 Whenever any record transmitted to this court upon a writ 
 of error or appeal shall contain any document, paper, testi- 
 mony, or other proceedings in a foreign language, and the 
 record does not also contain a translation of such document, 
 paper, testimony, or other proceeding, made under the au-
 
 UNITED STATES SUPREME COURT. ISS 
 
 thoriiy 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. 
 
 12. 
 
 FURTHER PROOF. 
 
 1. In all cases where further proof is ordered by the courts 
 the depositions which may be taken shall be by a commission, 
 to be issued from this court, or from any circuit court of the 
 United States. 
 
 2. In all cases of admiralty and maritime 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-interrogato- 
 ries within twenty days from the service of such notice: Pro- 
 vided, however, that nothing in this rule shall prevent any 
 party from giving oral testimony in open court in cases where^ 
 by law it is admissible. 
 
 13. 
 
 OBJECTIONS TO EVIDENCE IN THE RECORD, 
 
 In all cases of equity or admiralty jurisdiction, heard in this 
 court, no objection shall hereafter be allowed to be taken to- 
 the admissibility of any deposition, deed, grant, or other ex- 
 hibit found in the record as evidence, unless objection was 
 taken thereto in the court below and entered of record; but 
 the same shall otherwise be deemed to have been admitted by 
 consent.
 
 186 KULES. 
 
 14. 
 
 CERTIORARL 
 
 No certiorari for diminution of the record will be hereafter 
 awarded in any case, unless a motion therefor shall be made 
 . in writing, and the facts on which the same is founded shall, 
 if not admitted by the otlifer party, be verified by affidavit. 
 And all motions for certiorari must be made at the first term 
 of the entry of the case; otherwise, the same will not be 
 granted, unless upon special cause shown to the court, ac- 
 counting satisfactorily for the delay. 
 
 15. 
 
 DEATH OF A PARTY. 
 
 1. AVhenever, pending a writ of error or appeal in this court, 
 either party shall die, the proper representatives in the per- 
 sonalty or realt)' of the deceased party, according to the nat- 
 ure of the case, may voluntarily come in and be admitted 
 parties to the suit, and thereupon the case shall be heard and 
 determined as in other cases; and if such representatives shall 
 not voluntarily become parties, then the other party may sug- 
 gest the death on the record, and thereupon, on motion, ob- 
 tain 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 en- 
 titled to open the record, and on hearing have the judgment 
 -or decree reversed, if it be erroneous: Provided, however, that 
 ■& copy of every such order sliall bo printed in some news- 
 paper of general circulation within the state, territory, or dis- 
 trict from which the case is brought, for three successive 
 weeks, at least sixty days before the beginning of the term of 
 the supreme court then next ensuing. 
 
 2. When the death of a i)arty is suggested, and the repre- 
 sentatives of the deceased do not ai)pear by the tenth day of 
 the second term next succeeding the suggestion, and no meas-
 
 U^;iTED STATES SUPREME COUKT. 18T 
 
 ures are taken by the opposite party within that time to com- 
 pel their appearance, the case shall abate. 
 
 3. When either party to a suit in a circuit court of the 
 United States shall desire to prosecute a writ of error or ai> 
 peal to the supreme court of the United States from any final 
 judgment or decree rendei'ed in the circuit court, and at the 
 time of suing out such writ of error or appeal the other party 
 to the suit shall be dead and have no proper rei^resentative 
 within the jurisdiction of the court which rendered such final 
 judgment or decree, so that the suit cannot be revived in that 
 court, but shall have a proper representative in some state or 
 territory of the United States, the party desiring such writ of 
 error or appeal may procure the same, and may have proceed- 
 ings on such judgment or decree superseded or stayed in the 
 same manner as is now allowed by law in other cases, and 
 shall thereupon j^roceed with such writ of error or appeal as 
 in other cases. And within thirty days after the commence- 
 ment of the term to which such writ of error or appeal is 
 ■returnable, the plaintiff in error or appellant shall make a 
 suggestion to the court, supported by 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 ju- 
 risdiction of the court which rendered said judgment or de- 
 cree, so that the suit could not be revived in that court, and 
 that said party had a proper representative in some state or 
 territory of the United States, and stating therein the name 
 and character of such representative, and the state or terri- 
 tory in which such representative resides; and, upon sucli 
 suggestion, he maj', 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 plaint- 
 iff in error or appellant shall be entitled to open the record, 
 and, on hearing, have the judgment or decree reversed if the 
 same be erroneous: Provided, however, that a proper citation 
 reciting the substance of such order shall be served upon such 
 representative, either personally or by being left at his resi- 
 dence, at least sixty days before the beginning of the term of
 
 188 RULES. 
 
 the supreme court then next ensuing: And provided, also, 
 that in every such case, if the representative of the deceased 
 party does not appear by the tenth day of the term next suc- 
 ceeding said suggestion, and the measures above provided to 
 compel the appearance of such representative have not been 
 taken within time as above required by the opposite party, 
 the case shall abate: And provided, also, that the said repre- 
 sentative may at any time before or after said suggestion 
 come in and be made a party to the suit, and thereupon the 
 case shall proceed, and be heard and determined as in other 
 cases. 
 
 16. 
 
 NO APPEARANCE OF PLAINTIFF. 
 
 Where no counsel appears and no brief has been filed for 
 the plaintiff in error or appellant, when the case is called for 
 trial, the defendant may have the plaintiff called and the writ 
 of error or appeal dismissed, or may open the record and pray 
 for an atiirmance. 
 
 17. 
 
 NO APPEARANCE OF DEFENDANT. 
 
 Where the defendant fails to appear when the case is 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 case. 
 
 18. 
 
 NO APPEARANCE OF EITHER PARTY. 
 
 When a case is reached in the regular call of the docket, 
 and there is no appearance for either party, the case shall be 
 dismissed at the cost of the plaintiff. 
 
 19. 
 
 NEITHER PARTY READY AT SECOND TERM. 
 
 When a case is (■all(Ml for argument at two successive terms, 
 and upon the call nt the second term neither party is prepared 
 to argue it, it shall he dismisso<l at the cost of the plaintiff, 
 unless suflicicnt cause is sliown for furtlior postponement.
 
 UNITED STATES SUPREME COURT. ISO 
 
 20. 
 
 PRINTED AKGUMENTS, 
 
 1. In all cases brought here on writ of error, appeal, or other- 
 wise, 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 to submit the same within the first ninety 
 days of the term; and, in addition, appeals from the court of 
 claims may be submitted by both parties within thirty days 
 after they are docketed, but not after the 1st day of April; 
 but twenty-five copies of the arguments, signed by attorney's 
 or counselors of this court, must be first filed. 
 
 2. When a case is reached in the regular call of the docket, 
 and a printed argument shall be tiled for one or both parties, 
 the case shall stand on the same footing as if there were an 
 appearance by counsel. 
 
 3. 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 
 paries, no printed argument for the opposite party will be re- 
 ceived, unless it is filed before the oral argument begins, and 
 the court will proceed to consider and decide the case ui3on 
 the ex parte argument. 
 
 4. No brief or argument will be received, either through 
 the clerk or otherwise, after a case has been argued or sub- 
 mitted, except upon leave granted in open court after notice 
 to opi^osing counsel. 
 
 21. 
 
 BRIEFS. 
 
 1. The counsel for plaintifl; in error or appellant shall file 
 with the clerk of the court, at least six days before the case 
 is called for argument, twenty-five copies of a printed brief, 
 one of which shall, on application, be furnished to each of 
 the counsel engaged upon the opposite side. 
 
 2. This brief shall contain, in the order here stated — 
 
 (1) A concise abstract, or statement of the case, presenting 
 succinctly the questions involved and the manner in which 
 they are raised.
 
 190 KULES. 
 
 (2) A specification of the errors relied upon, which, in cases 
 brought up by writ of error, shall set out separately and par- 
 ticularly each error asserted and intended to be urged; and 
 in cases brought up by appeal the specification shall state, as 
 particularly as may be, in what the decree is alleged to be 
 erroneous. 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. When 
 the error alleged is to the charge of the court, the specifica- 
 tion shall set out the part referred to totidem verbis, whether 
 it be instructions given or instructions refused. When the 
 error alleged is to a ruling upon the report of a master, the 
 .specification shall state the exception to the report and the ac- 
 tion of the court upon it. 
 
 (3) A brief of the ai'gument, 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. 
 
 3. The counsel for a defendant in error or an appellee shall 
 file with the clerk twenty-five printed copies of his argument, 
 at least three days before the case is called for hearing. His 
 brief shall be of like character with that required of the plaint- 
 iff in error or appellant, except that no specification of errors 
 shall be required, and no statement of the case, unless that 
 presented by the plaintiff, in error or appellant is controverted. 
 
 4. When there is no assignment of errors, as required by 
 section 997 of the Revised Statutes, counsel will not be heard, 
 except at the request of the court; and errors not specified 
 according to this rule will be disregarded; but the court, at 
 its option, may notice a i)lain error not assigned or specified. 
 
 n, Wiicn, according to tliis rule, a plaintiff in error or an ajv 
 pellant is in default, the case may be dismissed on motion; 
 and wlion a defendant in error or an appellee is in default, he 
 will not be heard, except on consent of his adversary, and by 
 request of tlie court.
 
 UNITED STATES SUPREME COUKT. 101 
 
 6. When no oral argument is made for one of the parties^ 
 only one counsel will be heard for the adverse party. 
 
 22. 
 
 ORAL ARGUMENTS. 
 
 1. The plaintiff or appellant in this court shall be entitled to 
 open and conclude the argument of the case. But when there 
 are cross-appeals they shall he argued together as one case^ 
 and the plaintiff in the court below shall be entitled to open 
 and conclude the argument. 
 
 2. Only two counsel will be heard for each party on the 
 argument of a case. 
 
 3. Two hours on each side will be allowed for the ai'gument, 
 and no more, without special leave of the court, granted be- 
 fore the argument begins. The time thus allowed may be 
 apportioned between the counsel on the same side, at their 
 discretion: Provided, always, that a fair opening of the case 
 shall be made by the party having the opening and closing 
 arguments. 
 
 23. 
 
 INTEREST. 
 
 1. In cases where a writ of error is prosecuted to this courts 
 and the judgment of the inferior court is affirmed, the inter- 
 est shall be calculated and levied, from the date of the judg- 
 ment below until tlie same is paid, at the same rate that 
 similar judgments bear interest in the courts of the state 
 where such judgment is rendered. 
 
 2. In all cases where a writ of error shall delay the proceed- 
 ings on the judgment of the inferior court, and shall appear 
 to have been sued out merely for delay, damages at a rate 
 not exceeding ten per cent., in addition to interest, shall be 
 awarded upon the amount of the judgment. 
 
 3. Tlie same rule shall be applied to decrees for the pay- 
 ment of money in cases in equity, unless otherwise ordered 
 by this court. 
 
 4. In cases in admiralty, damages and interest may be al- 
 lowed if specially directed by the court.
 
 292 KCLES. 
 
 24. 
 
 COSTS. 
 
 1. In all cases where any suit shall be dismissed in this 
 court, except where the dismissal shall be for want of juris- 
 diction, costs shall be allowed to the defendant in error or 
 appellee, unless otherwise agreed by the parties. 
 
 2. In all cases of affirmance of any judgment or decree in 
 this court, costs shall be allowed to the defendant in error or 
 appellee, unless otherwise ordered by the court. 
 
 3. In cases of reversal of any judgment or decree in this 
 court, costs shall be allowed to the plaintiff in error or appel- 
 lant, unless otherwise ordered by the court. The cost of the 
 transcript of the record from the court below shall be a part 
 of such costs, and be taxable in that court as costs in the case. 
 
 4. Neither of the foregoing sections 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. 
 
 5. 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 proceed- 
 ings in this court, so that further proceedings may be had ia 
 such -court as to law and justice may appertain. 
 
 6. When costs are allowed in this court, it shall be the duty 
 of the clerk to insert the amount thereof in the body of the 
 mandate, or other proper process sent to the court below, and 
 annex to the same the bill of items taxed in detail. 
 
 7. In pursuance of the act of March 3, 1883, autliorizing and 
 empowering this court to prepare a table of fees to be charged 
 by the clerk of this court, the following table is adopted: 
 
 For docketing a case and filing and indorsing the transcript 
 of the record, five dollars. 
 
 For entering an appearance, twenty-five cents. 
 For entering a continuance, twenty-five cents. 
 For filing a motion, order, or other paper, twenty-five cents.
 
 UNITED STATES SUPKEME COUKT. 193 
 
 For entering any rule, or for making or copying any record 
 or other paper, twenty cents per folio of each one hundred 
 words. 
 
 For transferring each case to a subsequent docket and in- 
 dexing the same, one dollar. 
 
 For entering a judgment or decree, one dollar. 
 
 For every search of the records of the court, one dollar. 
 
 For a certificate and seal, two dollars. 
 
 For receiving, keeping and paying money in pursuance of 
 any statute or order of court, two per cent, on the amount so 
 received, kept and paid. 
 
 For an admission to the bar and certificate under seal, ten 
 dollars. 
 
 For preparing the record or a transcript thereof for the 
 printer, indexing the same, supervising the printing and dis- 
 tributing the printed copies to the justices, the reporter, the 
 law library, and the parties or their counsel, fifteen cents per 
 folio. 
 
 For making a manuscript copy of the record, when required 
 under rule 10, twenty cents per folio, but nothing in addition 
 for supervising the printing. 
 
 For issuing a writ of error and accompanying papers, five 
 dollars. 
 
 For a mandate or other process, five dollars. 
 
 For filing briefs, five dollars for each party appearing. 
 
 For every copy of any opinion of the court or any justice 
 thereof, certified under seal, one dollar for every printed page, 
 but not to exceed five dollars in the whole for any copy. 
 
 25. 
 
 OPINIONS OF THE COURT. 
 
 1. All opinions delivered by the court shall, immediately 
 upon the delivery thereof, be handed to the clerk to be re- 
 corded. 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. 
 13
 
 194 EULES. 
 
 2, The original opinions of the court shall be filed with the 
 clerk of this court for preservation. 
 
 3. Opinions printed under the supervision. of the justices de- 
 livering the same need not be copied by the clerk into a book 
 of records; but at the end of each tex-ni the clerk shall cause 
 such printed opinions to be bound in a substantial manner 
 into one or more volumes, and when so bound they shall be 
 deemed to have been recorded within the meaning of this 
 rule. 
 
 26. 
 
 CALL AND ORDER OF THE DOCKET. 
 
 1. The court, on the second day in each term, will commence 
 calling the cases for argument in the order in wliich they 
 stand on the docket, and proceed from day to day during the 
 terra in the same order (except as hereinafter provided); and 
 if the parties, or either of them, shall be ready when the case 
 is called, the same will be heard: and if neither party shall be 
 ready to proceed in the argument, the case shall go down to 
 the foot of the docket, unless some good and satisfactory rea- 
 son to the contrary shall be shown to the court. 
 
 2. Ten cases onlj' shall be considei'ed as liable to be called 
 on each day during the term. But on the coming in of the 
 court on each day the entire number of such ten cases will be 
 called, with a view to the disposition of such of them as are 
 not to be argued. 
 
 3. Criminal cases maj^ be advanced by leave of the court on 
 motion of either party. 
 
 4. Cases once adjudicated by this court upon the merits, and 
 again brought up by writ of error or appeal, may be advanced 
 by leave of tlie court on motion of either party. 
 
 5. Revenue and otlier cases in whicli the United States are 
 concerned, which also involve or alTect some matter of gen- 
 eral public interest, may also by leave of the court be advanced 
 on motion of tlie attorney-general. 
 
 (). All motions to a<lvance cases must be printed, and must 
 conlain a brii'f Klatcmeiit of the matter involved, with the 
 reasons fur tlic application.
 
 UNITED STATES SUPREME COURT. 195 
 
 7. No other case will 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 case 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. 
 
 8. Two or more cases, involving the same question, may, by 
 the leave of the court, be heard together, but they must be ar- 
 gued as one case. 
 
 9. If, after a case 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 case 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 case, and it shall then be assigned to such place 
 upon the docket as the court may direct. 
 
 10. No stipulation to pass a case without placing it at the 
 foot of the docket will be recognized as binding upon the 
 court. A case can only be so passed upon application made 
 and leave granted in open court. 
 
 27. 
 
 ADJOURNMENT. 
 
 The court will, at every term, 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 adjournment. 
 
 28. 
 
 DISMISSING CASES IN VACATION. 
 
 Whenever the plaintiff and defendant in a writ of error 
 pending in this court, or the appellant and appellee in an ap- 
 peal, shall in vacation, by their attorneys of record, sign and
 
 196 EULES. 
 
 file with the clerk an agreement in writing directing the case 
 to be dismissed, and specifying the terms on which it is to be 
 dismissed, as to costs, and shall pay to the clerk any fees that 
 may be due to him, it shall be the duty of the clerk to enter 
 the case dismissed, and to give to either party requesting it a 
 copy of the agreement filed; but no mandate or other process 
 shall issue without an order of the court. 
 
 29. 
 
 SUPERSEDEAS. 
 
 Supersedeas bonds in the circuit courts must be taken, with 
 good and sufficient security, that the plaintiff in error or ap- 
 pellant shall prosecute his writ or appeal to effect, 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 actions, replevin, and in suits on mortgages, 
 or where the property is in the custody of the marshal under 
 admiralty process, as in case of capture or seizure, or where 
 the proceeds thereof, or a bond for the value thereof, is in the 
 custody or control of the court, indemnity in all such cases is 
 only required in an amount sufficient to secure the sum re- 
 covered for the use and detention of the property, and the 
 costs of tlie suit, and just damages for delay, and costs and 
 interest on the appeaL 
 
 30. 
 
 REHEARINO. 
 
 A petition for rehearing after judgment can be presented 
 only at the term at wliicli judgment is entered, unless by spe- 
 cial leave granted during the term; and must be printed and 
 briefly and distinctly state its grounds, and be supported by
 
 UNITED STATES SUPREME COURT. 197 
 
 certificate of counsel; and will not be granted, or permitted to 
 be argued, unless a justice who concurred in the judgment 
 desires it, and a majority of the court so determines. 
 
 31. 
 
 FORM OF PRINTED RECORDS AND BRIEFS. 
 
 All records, arguments, and briefs printed for the use of the 
 court must be in such form and size that they can be convenr- 
 iently bound together, so as to make an ordinary octavo vol- 
 ume. 
 
 32. 
 
 WRITS OF ERROR AND APPEALS UNDER THE ACT OF FEBRUARY 
 25, 1889, CHAPTER 236, OR UNDER SECTION 5 OF THE ACT 
 OF MARCH 3, 1891, CHAPTER 517. 
 
 Cases brought to this court by writ of error or appeal, under 
 the act of February 25, 1889, chapter 236, or under section 5 
 of the act of March 3, 1891, chapter 517, where the only ques- 
 tion in issue is the question of the jurisdiction of the court 
 below, will be advanced on motion, and heard under the rules 
 prescribed by rule 6, in regard to motions to dismiss writs of 
 error and appeals. 
 
 33. 
 
 MODELS, DIAGRAMS, AND EXHIBITS OF MATERIALS. 
 
 1. Models, diagrams, and exhibits of material forming part 
 of the evidence taken in the court below, in any case pending 
 in this court, on writ of error or appeal, shall be placed in the 
 custody of the marshal of this court at least one month before 
 the case is heard or submitted. 
 
 2. All models, diagrams, and exhibits of material, placed in 
 the custody of the marshal for the inspection of the court on 
 the hearing of a case, must be taken away by the parties 
 within one month after the case is decided. When this is not 
 done, it shall be the duty of the marshal to notify the counsel 
 in the case, by mail or otherwise, of the requirements of this
 
 198 ■ KULES. 
 
 rule; and if the articles are not removed within a reasonable 
 time after the notice is given, he shall destroy them, or make 
 such other disposition of them as to him may seem best. 
 
 34. 
 
 CUSTODY OF PRISONERS ON HABEAS CORPUS. 
 
 1. Pending an appeal from the final decision of any court 
 or judge declining to grant the writ of habeas corpus, the cus- 
 tody of the prisoner shall not be disturbed. 
 
 2. Pending an appeal from the final decision of any court or 
 judge discharging the writ after it has been issued, the pris- 
 oner shall be remanded to the custody from which he was 
 taken by the writ, or shall, for good cause shown, be detained 
 in custody of the court or judge, or be enlarged upon recog- 
 nizance as hereinafter provided. 
 
 3. Pending an appeal from the final decision of any court or 
 judge discharging the prisoner, he shall be enlarged upon re- 
 cognizance, with surety, for appearance to answer the judg- 
 ment of the appellate court, except where, for special reasons, 
 sureties ought not to be required. 
 
 35. 
 
 ASSIGNMENT OF ERRORS. 
 
 1. Where an appeal or a writ of error is taken from a dis- 
 trict court or a circuit court direct to this court, under sec- 
 tion 5 of the act entitled "An act to establish circuit courts of 
 appeals and to define and regulate in certain cases the juris- 
 diction of the courts of the United States, and for other 
 purposes," approved March \i, 1891, the plaintiff in error or 
 appellant shall file with the clerk of the court below, with his 
 petition for the writ of error or appeal, an assignment of er- 
 rors, wiii{!li siiall set out separately and particularly each 
 error asserted and intended to bo urged. No writ of error or 
 appeal shall bo allowed until such assignment of errors shall 
 have been filed. AVhoii tiie error alleged is to the admission
 
 UNITED STATES SUPREME COURT. 199 
 
 or to the rejection of evidence, the assignment of errors shall 
 quote the full substance of the evidence admitted or rejected. 
 When the error alleged is to the charge of the court, the as- 
 signment of errors shall set out the part referred to totident, 
 verbis, whether it be in instructions given or in instructions 
 refused. Such assignment of errors shall form part of the 
 transcript of the record, and be printed with it. When this 
 is not done counsel will not be heard, except at the request of 
 the court; and errors not assigned according to this rule will 
 be disregarded, but the court, at its option, may notice a plain 
 error not assigned. 
 
 2. The plaintiff in error or appellant shall cause the record 
 to be printed, according to the provisions of sections 2, 3, 4, 5, 
 6 and 9 of rule 10. 
 
 36. 
 
 APPEALS AND WRITS OF ERROR. 
 
 1. An appeal or a writ of error from a circuit court or a dis- 
 trict court direct to this court, in the cases provided for in 
 sections 5 and 6 of the act entitled " An act to establish cir- 
 cuit courts of appeals, and to define and regulate in certain 
 casps the jurisdiction of the courts of the United States, and 
 for other purposes," approved March 3, 1891, may be allowed, 
 in term time or in vacation, by any justice of this court, or 
 by any circuit judge within his circuit, or by any district 
 judge within his district, and the proper security be taken 
 and the citation signed by him, and he may also grant a sm- 
 persedeas and stay of execution or of proceedings, pending 
 such writ of error or appeal. 
 
 2. Where such writ of ei'ror is allowed in the case of a con- 
 viction of an infamous crime, or in any other criminal case 
 in which it will lie under said sections 5 and 6, the circuit 
 court or district court, or any justice or judge thereof, shall 
 have power, after the citation is served, to admit the accused 
 to bail in such amount as may be fixed.
 
 200 KULES. 
 
 37. 
 
 CASES FROM CIRCUIT COURT OF APPEALS. 
 
 1. Where, under section 6 of the said act, a circuit court of 
 appeals shall certify to this court a question or proposition of 
 law, concerning which it desires the instruction of this court 
 for its proper decision, the certificate shall contain a proper 
 statement of the facts on which such question or proposition 
 of law arises. 
 
 2. If application is thereupon made to this court that the 
 whole record and cause may be sent up to it for its considera- 
 tion, the party making such application shall, as a part thereof, 
 furnish this court with a certified copy of the whole of said 
 record. 
 
 3. Where application is made to this court under section 6 
 of the said act to require a case to be certified to it for its re- 
 view and determination, a certified copy of the entire record 
 of the case in the circuit court of appeals shall be furnished 
 to this court by the applicant, as part of the application. 
 
 38. 
 
 INTEREST, COSTS, AND FEES. 
 
 The provisions of rules 23 and 24 of this court, in regard to 
 interest and costs and fees, shall apply to writs of error and 
 appeals and reviews under the provisions of sections 5 and 6 
 of the said act. 
 
 39. 
 
 MANDATEa 
 
 Mandates shall issue as of course after the expiration of 
 thirty days from the day the judgment or decree is entered, 
 unless tlie time is enlarged by order of the court, or of a jus- 
 tice tliereof when the court is not in session, but during the 
 term.
 
 FORMS. 
 
 BILL OF COMPLAINT. 
 
 In the United States Circuit Court in and for the Dis- 
 trict of . Term, 18—. 
 
 A. B. ^ 
 V. >- Equity. 
 
 C. D. and E. R J 
 
 To the Judges of the Circuit Court of the United States for 
 the District of : 
 
 A. B., a citizen of the state of , residing in county 
 
 in said state, brings this his bill against C. D., a citizen of th& 
 
 state of , residing in county in said state, and E. F., 
 
 a citizen of the state of — — , residing in county in said 
 
 state, and thereupon your orator complains and says that, etc. 
 
 [Here insert cause of action^] 
 
 To the end that your orator may obtain the relief to which 
 he is justly entitled in the premises, he now prays the court to 
 grant him due process by subpoena directed to said C. D. and 
 E. F., defendants hereinbefore named, requiring and com- 
 manding each of them to appear herein and answer under 
 oath \pr, but not under oath, the same being expressly waived] 
 the several allegations in this your orator's bill contained. 
 
 And your orator further prays that upon the final hearing 
 it be ordered and decreed that [here insert the special relief 
 sought]. 
 
 And further prays for such other and further relief as may 
 be just and equitable. A. B., 
 
 X. Y., ByX.,Y. andZ., 
 
 Of Counsel. His Solicitors.
 
 202 FORMS OF PRACTICE IN EQUITV, 
 
 If a writ of ne exeat is desired the reasons for asking there- 
 for should be set out immediately following the prayer for the 
 process by subpoena, with the prayer — 
 
 Wherefore your orator prays tlie court to grant him a writ 
 cf ne exeat restraining and forbidding said C. D., defendant 
 lierein, from departing beyond the limits of the United States 
 without leave of this court first had. 
 
 If an injunction is desired pending the trial, a prayer for the 
 issuance thereof should be added immediately following the 
 prayer for process. 
 
 If the grounds therefor have not already been fully set forth 
 in the bill, the same should be set forth followed by tlie 
 prayer — 
 
 Wherefore your orator prays the court to now grant him a 
 writ of injunction restraining and enjoining the said defend- 
 ants from [here insert the special matters desired to he enjoined], 
 until the further order and decree of this court in the prem- 
 ises. 
 
 PRECIPE FOR PROCESS. 
 
 [Entitle as before.] 
 To Clerk of said Court : 
 
 In above cause, being a bill filed for [here state briefly pur- 
 pose of bill, as for foreclosure of mortgage, or to set aside con- 
 •veyance of realty], please issue a subpoena to C. D. and E. F., 
 ■defendants, returnable on the i-ule day in [here insert the name 
 of month], X. Y., 
 
 Solicitor for Complainant. 
 
 If for any reason it is desired to issue separate subpoenas the 
 prcecipe should so direct. 
 
 ENTRY OF APPEARANCE IN PERSON. 
 
 [Entitle as befoi'e.] 
 To Clerk of said Court: 
 
 Please enter my appearance as defendant in above cause on 
 the rule day [or as of the date of the filing hereof].
 
 UNITED STATES CIRCUIT COUKTS. 203 
 
 ENTRY OF APPEARANCE BY SOLICITOR. 
 
 [Entitle as before.] 
 To Clerk of said Court: 
 
 In above cause please enter the appearance of , de- 
 fendant, and of myself as his soHcitor, on the rule day for 
 
 as of the date of the filing hereof], 
 
 GENERAL DEMURRER. 
 
 [Entitle case as before.] 
 
 The demurrer of C. D. and E. F., defendants. 
 
 These defendants, not confessing all or any of the matters in 
 the bill of complaint contained to be true as therein set forth, 
 do demur to said bill for that the same does not state such a 
 case, nor contain any matter of equity, entitling the complain- 
 ant to any relief against these defendants. Wherefore they 
 pray the judgment of the court whether they shall be com- 
 pelled to further answer said bill, and further pray to be dis- 
 missed with their costs. 
 
 1, , of counsel for the defendants in the above cause, 
 
 do hereby certify that the foregoing demurrer to the bill of 
 complaint is in my opinion well founded in law. 
 
 United States of America, ) 
 
 District of . ) •• 
 
 I, , defendant in the above cause, being duly sworn, 
 
 do say that the foregoing demurrer to the bill of complaint is 
 not interposed for purposes of delay. 
 
 Subscribed and sworn to before me this day of . 
 
 SPECIAL DEMURRER TO BILL. 
 
 [Entitle case as before.] 
 
 The demurrer of C. D. and E. F., defendants. 
 
 These defendants, not confessing all or any of the matters 
 and things in the bill of complaint contained to be true as 
 therein alleged, do demur to said bill, and for cause thereof
 
 204: FORMS OF PRACTICE IN EQUITY. 
 
 showeth that, etc. [here set forth specifically the grounds of 
 demurrer]. 
 
 Wherefore they pray the judgment of the court whether 
 they shall be compelled to further answer said bill. And fur- 
 ther pray to be dismissed, with costs. 
 
 [Add certificate and affidavit as before.] 
 
 ' DEMURRER TO PART OF BILL. 
 
 [Entitle case as before.] 
 
 The demurrer of C. D. and E. F. to part of bill. 
 
 These defendants, not confessing all or any of the matter3 
 and things in the bill of complaint contained to be true as 
 therein alleged, do demur to so much of said bill as [here de- 
 scribe the part or parts of bill demurred to, and set forth the 
 grounds of demurrer thereto]. 
 
 Wherefore defendants pray the judgment of the court 
 whether they shall be compelled to further answer make to 
 said parts of the bill herein demurred to. 
 
 [Add certificate and affidavit as before.] 
 
 PLEA TO BILL. 
 
 [Entitle as before.] 
 
 The plea of C. D. and E. F, to the bill of complaint. 
 
 Tliese defendants, not confessing all or any of the matters in 
 Baid bill of complaint to be true as therein alleged, for plea to 
 said bill aver and say [here set forth the matter of the plea]. 
 
 All of which matters and things these defendants do aver to 
 be true, and plead the same in bar [or, in abatement, as the 
 case may be] of complainant's said bill, and pray the judgment 
 of the court whether they shall be compelled to further an- 
 swer said bill, and pray to be hence dismissed with costs. 
 
 I, , of counsel for defendants in above cause, do cer- 
 tify that the foregoing pica to the bill of complaint is in my 
 opinion well founded in law.
 
 UNITED STATES CIRCUIT COURTS. 205 
 
 United States of America, i 
 District of . J 
 
 I, , defendant in the above cause, being duly sworn, 
 
 do say that the foregoing plea to the bill of complaint is true 
 in point of fact, and is not interposed for purposes of delay. 
 
 Subscribed and sworn to before me this day of . 
 
 PLEA TO PART OF BILL. 
 
 {Entitle as before.} 
 
 The plea of C. D. and E. F., defendants, to part of said bill. 
 
 These defendants, not confessing all or any of the matters in 
 said bill of complaint contained to be true as therein alleged, 
 for plea to so much and such part of said bill as [here describe 
 part pleaded to], aver and say that [here set forth the matter 
 o/ f/ie pZea], all of which matters and things these defendants 
 do aver to be true, and they plead the same to so much of said 
 bill as is hereinbefore described, and pray the judgment of the 
 court whether they shall be required to further answer so 
 much of said bill as is covered by this plea. 
 
 [Add certificate and affidavit as before.} 
 
 DEMURRER, PLEA AND ANSWER IN ONE. 
 
 [Entitle as before.} 
 
 Demurrer, plea and answer of E. F. and C. D., defendants. 
 
 I. These defendants, not confessing all or any of the matters 
 and things in said bill contained to be true as therein alleged, 
 do demur to so much of said bill of complaint as [here describe 
 parts of bill to which the demurrer applies}, and for cause of 
 demurrer do show that [here set forth grounds of demurrer}. 
 
 Wherefore they pray judgment of this court whether they 
 shall be required to further answer the parts of said bill de- 
 murred to. 
 
 II. And the said defendants, not waiving the foregoing de- 
 murrer, but wholly relying thereon, as to so much of said bill 
 as [here insert description of parts of bill to which plea is in- 
 terposed}, do plead thereto, and for cause thereof do aver and
 
 206 FORMS OF PRACTICE IN EQUITY. 
 
 say that [here set forth the grounds of p/ea]. All of which 
 matters the said defendants do plead to so much of said bill as 
 is herein last above mentioned, and pray the judgment of this 
 court whether they shall be compelled to further answer said 
 parts of said bill thus pleaded to. 
 
 III. And the said defendants, not waiving their said de- 
 murrer and plea, but relying thereon, for answer to so much 
 of said bill as they are advised it is material and necessary to 
 answer unto, do say that [here set forth the viatters necessary to 
 be stated in response to the bill, as well as matters of defense]. 
 
 Wherefore these defendants pray to be hence dismissed with 
 costs. 
 
 [Add certificate and affidavit as to demurrer and plea.] 
 
 ANSWER TO BILL. 
 
 [Entitle as before.] 
 
 The answer of C. D. and E. F., defendants to the bill of com- 
 plaint. 
 
 These defendants, saving and reserving unto themselves the 
 benefit of all exceptions to the errors and imperfections in said 
 bill contained, for answer to so much thereof as they are ad- 
 vised it is necessary or material for them to answer unto, do 
 aver and say that [/(ere insert the matters responsive to the 
 bill, as ivell as the matters of defense]. 
 
 And having thus fully made answer to said bill, these de- 
 fendants pray to be hence dismissed with costs. 
 United States of America, | 
 District of . ' 
 
 We, and , defendants in above cause, hav- 
 ing read the foregoing answer, and being each duly sworn, do 
 Bay that the matters and things in said answer contained are 
 true. 
 
 Subscribed and sworn to before me this day of .
 
 UNITED STATES CIKCUIT COURTS. 20 T 
 
 EXCEPTIONS FOR SCANDAL OR IMPERTINENCE. 
 
 [Entitle as before.] 
 
 Exceptions taken to the bill [or ansiver] in said cause filed for 
 expunging the scandalous [or impertinent] matter therein con- 
 tained. 
 
 Complainant [or defendant] excepts to so much of said bill 
 [or aii.sirer] as is included within [here describe the passages 
 or parts excepted to], for that tiie same is scandalous [or im- 
 pertinent^, for which reason the complainant [or defendant] ex- 
 cepts to said bill [or answei'], and prays that such scandalous 
 [or impertinent] matter be expunged therefrom. 
 
 X. Y., 
 Solicitor for . 
 
 EXCEPTIONS TO ANSWER FOR INSUFFICIENCY. 
 
 [Entitle as before.] 
 
 Exceptions for insufficiency to the answer of C. D. and E. F., 
 defendants in above cause. 
 
 Complainant excepts to the answer of said defendants herein 
 filed [or to so much of said ansiver, describing same] for insuf- 
 ficiency, for that [/lere insert the grounds of exception]. For 
 which reasons the said answer is insufficient and incomplete 
 and ought to be amended, and complainant prays that the 
 same be amended accordingly. 
 
 REPLICATION TO ANSWER. 
 
 [Entitle as before.] 
 
 Replication of complainant in above cause to the answer of 
 C. D. and E. F., defendants. 
 
 This repliant, saving and reserving all advantage of exception 
 to the manifold insufficiencies of said answer, for replication 
 thereto saith that he will aver and prove his said bill to be 
 true and sufficient, and that the said answer is untrue and in- 
 sufficient ; wherefore he prays relief as in said bill set forth.
 
 208 FORMS OF PRACTICE IN EQUITY. 
 
 PRECIPE FOR SUBPOENA TO WITNESS. 
 
 [Entitle as before.] 
 To Clerk of said Court : 
 
 In above entitled cause in equity please issue subpoena to 
 
 F. G., a witness on behalf of , directing him to appear and 
 
 testify before , commissioner, at , on the . 
 
 X.Y., 
 Solicitor for . 
 
 PRECIPE FOR COMMISSION ON INTERROGATORIES. 
 
 [Entitle as before.] 
 To Clerk of said Court : 
 
 In above entitled cause in equity please select some proper 
 person as commissioner and issue a dedimus to him authoriz- 
 ing him to take the testimony of F. G. and H. K., upon the 
 interrogatories filed in your office for that purpose. Witnesses 
 
 reside at . X. Y., 
 
 Solicitor for . 
 
 PRECIPE FOR SETTING DOWN CAUSE FOR ARGU- 
 MENT OR HEARING. 
 
 [Entitle as before.] 
 To Clerk of said Court : 
 
 In above cause set down for argument demurrer [or, plea] 
 filed to the bill. 
 
 Set down above cause for argument on defendant's objection 
 for want of parties. 
 
 Set down above cause for hearing on bill and answer. 
 
 Set down above cause for hearing on pleadings and proofs. 
 
 PETITION FOR APPEAL, 
 
 [Entitle as before.] 
 
 Your petitioner, the in the above entitled cause, would 
 
 respectfully represent and show that in the above entitled
 
 UNITED STATES CIRCUIT COURTS. 209 
 
 case pending in the United States circuit court in and for the 
 
 district of , there was entered at the term, 18 — , 
 
 of said court, a final decree greatly to the prejudice and injury 
 of your petitioner, which said decree is erroneous and inequi- 
 table in many particulars. 
 
 Wherefore, in order that your petitioner may obtain relief 
 in the premises and have opportunity to show the errors com- 
 plained, your petitioner prays that he may be allowed an ap- 
 peal in said case to the court, and that the proper orders 
 
 touching the security required of him may be made. 
 
 CITATION. 
 
 United States of America, To : 
 
 You are hereby notified that in a certain case in equity 
 
 in the United States circuit court in and for the district 
 
 of , wherein is complainant and and 
 
 are defendants, an appeal has been allowed the 
 
 therein to the , and you are hereby cited and admon- 
 ished to be and appear in said court at , days after 
 
 the date of this citation, to show cause, if any there be, why 
 the order and decree appealed from should not be corrected 
 and why speedy justice should not be done the parties in that 
 behalf. 
 
 Witness the Honorable , judge of , this 
 
 day of , A. D. 18—. 
 
 Judge of . 
 
 BILL OF REVIVOR. 
 
 [Entitle as before.] 
 To , the Judges of said Court: 
 
 Complainant herein avers and shows to this honorable court 
 that since the beginning of this suit [here insert event that has 
 caused the abatement and necessity of reviving the cause, as 
 U
 
 210 FORMS OF PRACTICE IN EQUITY. 
 
 the death of party, and set forth icJio are the representatives, 
 lieirs or others against whom it is sought to revive]. 
 
 Wherefore, by reason of the premises, this suit has become 
 abated ; and to revive and further proceed therevpith it has be- 
 come necessary to make said and parties 
 
 hereto, to which end complainant prays that process by sub- 
 poena may be issued to said and requiring 
 
 them to appear and show cause why said suit should not be 
 revived against them and they be required to abide the orders 
 and decree of the court in the premises. 
 
 BILL OF REVIEW FOR ERRORS ON FACE OF RECORD. 
 [Entitle as before.] 
 — >• Bill of review on behalf of . 
 
 To the Judges of said Court: 
 
 Complainant herein avers and shows that in a certain suit en- 
 titled as above, and brought in this court to the term, 18 — , 
 
 thereof, tliis complainant was defendant [or, complainant] 
 
 therein, and that at the term, 18 — , of said court, upon a 
 
 hearing therein, a final decree was entered in said cause greatly 
 to the prejudice and injury of your complainant, which said 
 decree is entered at large upon the records of this court, and to 
 which reference is prayed. And complainant avers and says that 
 said decree so entered is upon the face of the record erroneous 
 for that [here set forth the particular matters in which error is 
 alleged, and show how such alleged errors prejudice coniplain- 
 unt]. 
 
 Wlierefore, as said errors appear on the face of the record, 
 and are greatly prcjvidicial to complainant and his rights in 
 tlio premises, complainant prays that said decree may be re- 
 viewed, reversed and set aside. And to that end complainant 
 
 prays process by subpoena against requiring him to 
 
 uppear and answer hereto and show cause, if he may, why
 
 UNITED STATES CIRCUIT COURTS. 
 
 211 
 
 said decree should not be reviewed, reversed and set aside, 
 and such further orders and decrees be made as to the court 
 may seem just. 
 
 BILL OF REVIEW ON GROUND OF NEW MATTER. 
 [Entitle as before.] 
 
 Bill of review on behalf of . 
 
 To the Judges of said Court : 
 
 Complainant avers and shows that in a certain suit entitled 
 
 as above, and brought in this court to the term, 18 — , 
 
 thereof, this complainant was defendant [or, complainant] 
 
 therein, and that at the term, 18 — , of said court, upon a 
 
 hearing therein, a final decree therein was entered in said 
 cause greatly to the prejudice and injury of this complainant, 
 which said decree is entered at large upon the records of this 
 court and to which reference is prayed. 
 
 And this complainant avers and says that lately and since 
 the entry of said final decree aforesaid he hath discovered that 
 [here set forth the new matter or the new evidence relied on as 
 ground of revidv, with proper averments to show its materi- 
 aliiji, and also show that the party was not in fault in not ad- 
 ducing siich matter at the hearing]. 
 
 Wherefore, for said causes alleged, said decree should be re- 
 viewed, reversed and set aside ; and to the end that complain- 
 ant may be permitted to show and prove the matters afore- 
 said, complainant prays process by subpoena against , 
 
 requiring him to appear hereto and due answer make, and 
 that upon the hearing hereof the said decree may be reviewed, 
 reversed and set aside, and such otlier and further orders and 
 decree be made as may to the court seem proper. 
 United States op America, 
 District of . 
 
 I, , being duly sworn, do say that I am complainant 
 
 in the foregoing bill of review, that I have read the same, and 
 that the matters and things therein set forth are true. 
 
 Subscribed and sworn to before me this day of . 
 
 \
 
 212 FOKMS OF PRACTICE IN EQUITY. 
 
 WRIT OF NE EXEAT. 
 
 [Entitle as before.^ 
 
 The President of the United States, To , the United 
 
 States Marslial in and for District of : 
 
 Wliereas in the above entitled cause in equity now pending 
 
 in the United States circuit court in and for the district of 
 
 , it has been made to appear by satisfactory proof to the 
 
 said court [or, to tlie circuit justice or judge] that , de- 
 fendant in said cause, is equitably indebted to the complainant, 
 and that the said , defendant, designs quickly to de- 
 part from the United States, and thereby defeat the remedy 
 sought by complainant and greatly to prejudice the rights of 
 said complainant: 
 
 Therefore you are hereby ordered and commanded that with 
 out delay you cause the said to give good and suffi- 
 cient bail or security in the sum of dollars, to be by you 
 
 approved, that he will not depart beyond the limits of the United 
 States without leave of this court first had ; and in case said 
 
 , defendant, fails to give bail or security as aforesaid, 
 
 you are commanded to keep him in custody until the further 
 order of court or until he gives the bail or security above re- 
 quired. 
 
 Witness the honorable , chief justice of the supreme 
 
 court of the United States, this day of , 18 — , and the 
 
 seal of said circuit court in and for the district of . 
 
 , Clerk. 
 
 WRIT OF SEQUESTRATION. 
 
 [Entitle as before.] 
 The PxticsiDENT op the United States, To : 
 
 Whereas, in the above entitled cause in equity, pending in 
 
 tlie United States circuit court in and for the district of 
 
 , it was, on the day of , ordered and decreed that 
 
 , defendant, should [h.ere hrkflu state requirement of 
 
 the order or decree]. And it now appearing that the said 
 
 , defendant, lias wholly failed to obey and perform such
 
 UNITED STATES CIRCUIT COURTS. 213 
 
 order and decree, and that for such failui-e a writ of attach- 
 ment has been hitherto duly issued from the clerk's office of 
 this court for the attachment of the person of said defendant, 
 but that said writ has been returned by the marshal of this dis- 
 trict unserved for the reason that said defendant cannot be 
 found within the jurisdiction of this court, and that for cause 
 shown a writ of sequestration has been ordered to issue for the 
 seizure of the estate of said , defendant, for the pur- 
 pose of compelling obedience on his part to said order and 
 decree hereinbefore mentioned : 
 
 Now, therefore, know ye that, having confidence in your 
 prudence and fidelity, you are hereby authorized, empowered 
 and commanded to seize and take possession of [here describe 
 the estate, or portion of it, to he seized, as the real and personal 
 estate of said within , or certain realty or per- 
 sonalty}, and the rents and profits of said realty to collect and 
 receive, and possession of said personalty to take and keep 
 until the further order of the court in the premises. 
 
 Witness the honorable , chief justice of the su- 
 preme court of the United States, this day of , with 
 
 the seal of said United States circuit court in and for dis- 
 trict of . 
 
 RESTRAINING ORDER PENDING APPLICATION FOR 
 INJUNCTION. 
 
 [Entitle as before.'] 
 
 Whereas, in the above cause, a motion for the issuance of a 
 preliminary writ of injunction has been duly filed, the hear- 
 ing thereof being fixed for the day of , 18 — ; and it 
 
 having been made to appear that there is danger of irreparable 
 injury being caused to complainant, before the hearing of said 
 application for the writ of injunction, unless the said defend- 
 ants are, pending such hearing, restrained as herein set forth, 
 therefore complainant's application for such restraining order 
 is granted [if security is required, then add, upon his giving 
 good security in the sum of , for making good to the de-
 
 214 rOEMS OF PRACTICE IN EQUITY. 
 
 fendants the damages and costs that may be awarded them by 
 reason of the granting of this order] : 
 
 Now, therefore, take notice that you, and , 
 
 defendants herein, your agents, servants and attorneys, and 
 each of you, are hereby specially restrained and enjoined from 
 Ihere insert the act or acts sought to be restrained], until the 
 hearing upon said aiDplication for a writ of injunction and the 
 further order of the court in the premises. 
 
 , Judge. 
 
 OEDER GRANTING PRELIMINARY INJUNCTION. 
 
 [Entitle as before.] 
 
 Wliereas, in the above entitled cause, an application for the 
 issuance of a preliminary writ of injunction was duly filed and 
 Bet down for hearing before the court lor, before the Honor- 
 able G. H., a judge of said court] on the day of , 18 — , 
 
 at , notice of such application being given to and 
 
 , defendants herein ; and the parties now appearing 
 
 by their solicitors and being heard upon such application, and 
 it appearing that cause exists for the granting a writ of injunc- 
 tion, pending the final hearing of the cause, as prayed for : 
 
 It is therefoi'e ordered that upon the complainant giving se- 
 curity, by bond, in the sum of , conditioned that [here in- 
 sert the x>roper conditions], a writ of injunction issue com- 
 manding, restraining and enjoining the defendants, their 
 agents, servants and attorneys, from [here set forth the special 
 matter sought to be enjoined], until the further order of the 
 court in the premises. 
 
 WRIT OF PRELIMINARY INJUNCTION. 
 
 [Entitle as before]. 
 TuE President of the United States, To and 
 
 "Whereas, in the above entitled cause, now pending in said 
 
 United States circuit court in and for tiie district of , 
 
 upon application duly made to the court [or if to the judge, so
 
 UNITED STATES CIKCUIT COURTS. 215 
 
 state, giving his name], it was on the day of ,18 — , 
 
 ordered that a preliminary writ of injunction issue therein as 
 prayed for in the bill of complaint herein filed and as directed 
 in said order : 
 
 Now, therefore, know ye, that you, and , 
 
 your agents, servants and attorneys, and each of you, are 
 hereby strictly restrained and enjoined from [here set forth 
 clearly the act or acts sought to be restrained], and you and 
 each of you are hereby commanded that you do desist and re- 
 frain from doing or causing to be done all or any of the acts 
 and things hereinabove recited and set forth, until the fur- 
 ther order of the court in the premises. 
 
 "Witness the Honorable , chief justice of the su- 
 preme court of the United States, this day of , and 
 
 the seal of said circuit court in and for the district of . 
 
 , Clerk. 
 
 WRIT OF ASSISTANCE. 
 
 [Entitle case as before.] 
 
 The President of the United States, To , Marshal 
 
 of the District of , Greeting: 
 
 Whereas in the above entitled cause it has been made to 
 appear to the said United States circuit court in and for the 
 district of , that under the decree of said court here- 
 tofore rendered in the above case, and the proceedings had for 
 
 the enforcement thereof, the said , complainant as 
 
 aforesaid [or, H. B., the purchaser at the foreclosure sale, or 
 tohoever the party entitled to the writ may be], is now entitled 
 to be put in possession of the following realty [describing it], 
 or to have delivered up to him the following described per- 
 sonal property: 
 
 Now, therefore, you, as United States marshal for said 
 
 district of , are hereby directed and commanded that you 
 
 forthwith put the said into possession of the real 
 
 estate above described [or, cause to be delivered to said 
 
 the personal property above described], and that you cause 
 
 the defendants in the above suit, their agents, servants and
 
 216 FORMS OF PRACTICE IN EQUITY. 
 
 attorneys, to forthwith yield possession of said property in obe- 
 dience to the decree heretofore entered in this case. Hereof 
 fail not. 
 
 Witness the Honorable , chief justice of the su- 
 preme court of the United States, this day of , 18 — , 
 
 with the seal of said United States circuit court in and for 
 
 the district of . 
 
 , Clerk.
 
 INDEX. 
 
 In the column headed " Rules," the reference is to the Rules in Equity by 
 their number, save when the number is preceded by the letters S. C, in 
 which case the reference is to the Rules of the Supreme Court. All the rules 
 thus referred to will be found on pages 143-300 of the book. 
 
 The rules of the several circuit courts of appeals wiU be found in volume 
 78 of The Federal Reporter. 
 
 In the colunm headed "Statutes," the reference is to the sections of the 
 Revised Statutes, save when preceded by " Sts.," in which cases the refer- 
 ence is to volume and page of the Statutes at Large. 
 
 In the column headed " Page, " the reference is to the top page of the 
 Manual. 
 
 ABATEMENT 
 
 ABSTRACT 
 
 Of pleadings and evidence. 
 
 ACCOUNTS.... 
 AFFIDAVIT . . . . 
 AFFIRMATION 
 
 AMENDMENT . 
 Of bills . . . . 
 Of answers. 
 Of decree .. 
 Of process. 
 
 ANSWER 
 
 When evidence 
 
 Form of 
 
 Supplemental . 
 "To cross-bill . . . 
 
 APPEALS 
 
 What cases appealable to supreme 
 
 court 
 
 What cases appealable to circuit 
 
 court of appeals 
 
 Appellate jurisdiction of su- 
 preme court over circuit 
 
 courts of appeals 
 
 By certificate 
 
 By certiorari 
 
 By appeal as matter of 
 right 
 
 Rules. 
 
 28, 29, 45 
 6J, 63, 64 
 
 85 
 
 39, 40, 41, 
 43, 44, 64, 
 72 
 41 
 
 46 
 
 S. C. 3^ 
 S. C. 3; 
 
 Statutes. 
 
 955, 956; 
 18 Sts., 473 
 
 954 
 
 948, 1005 
 
 26 Sts., 827 
 26 Sts., 828, 
 
 26 Sts., 82S 
 20 Sts., 828 
 26 Sts., 828 
 
 26 Sts., 828 
 
 Page. 
 
 85 
 
 65, 66 
 
 j 35, 43, 105, 
 ( 133 
 
 35, 51 
 
 56 
 
 75,76 
 
 57, 58, 75, 
 
 76,77 
 
 I 45, 47, 49, 
 
 50, 51, 5;^, 
 
 ' 55, .57 
 
 51 
 
 206 
 
 99, 100 
 99, 100 
 
 102 
 103 
 104 
 
 105
 
 218 
 
 INDEX. 
 
 APPEALS (continued) 
 
 Time within wliich, must be taken 
 
 How taken 
 
 By whom allowed. . 
 Appealable decrees. 
 
 In matter of injunctions. 
 
 Successive appeals 
 
 Severance among parties . 
 
 Cross-appeals 
 
 "Who can appeal 
 
 Security on appeal 
 
 After death of party 
 
 Petition for 
 
 Form 
 
 Transcript 
 
 Docketing in appellate court. 
 
 ASSIGNEE 
 
 Suits by 
 
 ASSIGNMENT OF ERRORS , 
 
 ATTACHMENT 
 
 Process by 
 
 To compel payment of master's 
 compensation 
 
 AUXILIARY PROCEEDINGS. 
 
 BILLS 
 
 Suits commenced by 
 Introductory part. . . . 
 Frame of 
 
 Where filed . . . 
 Amendment of. 
 
 Scandal and impertinence in . 
 Form of 
 
 ■CHAMBERS 
 
 Proceedings at , 
 
 CITATION . . 
 Form of . 
 
 CIRCUIT COURT 
 Court of equity 
 
 Jurisdiction of ., 
 
 Under interstate commerce act . 
 
 <CLKHK 
 
 Duties and powers . 
 Adjourn court 
 
 Rules. 
 
 S. C. 35 
 S. C. 36 
 
 S. C. 15 
 S. C. 35 
 
 S. C. 8 
 
 S. C. 9 
 
 S. C. 35 
 
 ~, 8, 18, 
 &i, 67 
 
 82 
 
 2() 
 
 30, 21, 22, 
 
 •Si, 24, 26 
 
 1 
 
 28, 29, 45 
 
 26,27 
 
 3, 4 
 
 Statutes. 
 
 1008; 26 Sts., 829 
 
 );26Sts.,829 
 
 26 Sts., 828 
 28 Sts., 666 
 
 1000, 1007; 
 26 Sts., 829 
 
 999, 1003 
 
 25 Sts., 434 
 
 990 
 
 629 
 
 629; 18 Sts., 470; 
 25 Sts., 4:« 
 
 24 Sts., 383, 385 
 
 Page. 
 
 105, 107, 
 108, 10:» 
 110, 123 
 
 113, 114 
 117, 118, 
 
 123, 125 
 
 120 
 
 117 
 
 121 
 
 12.5, 126 
 
 122, 123 
 
 114, 115 
 
 80, 82 
 110 
 208 
 132 
 131 
 
 16 
 110, 112 
 
 I 45, 57, 135, 
 r 139 
 
 30 
 
 30 
 
 I 30, 32, 33, 
 
 )■ 34, 35, 36 
 
 53, 75, 76 
 
 46 
 201 
 
 7,8 
 
 110 
 
 209 
 
 9, 11, 12, 
 
 13, 14, 1.5, 
 
 16, 17, 18, 
 
 19 
 
 6,7
 
 INDEX. 
 
 2ld 
 
 
 Rules. 
 
 Statutes. 
 
 Page. 
 
 CLERK (continued) 
 
 Attend on rule days 
 
 2 
 
 4,6 
 17 
 
 33, 52 
 16 
 
 m 
 
 16 
 
 
 6 
 
 Enter rules, motions, or orders, 
 
 
 6, 7 
 
 Enter appearance of parties 
 
 Enter order setting down for argu- 
 
 
 46 
 54, 208 
 
 Enter pendency of suit 
 
 Enter report of master 
 
 
 44 
 
 
 69 
 
 
 
 
 
 69 
 
 
 67 
 
 4,6 
 
 67, 70, 71 
 7, 8, 9, 12 
 
 67 
 69 
 
 67 
 67 
 
 
 70 
 
 Grant motions, rules, orders, etc., 
 
 
 6,7 
 
 Issue commissions to take testi- 
 
 
 62 
 
 
 
 41,62 
 
 Kanie parties to act as commis- 
 
 
 
 Publication of testimony . 
 
 COMMISSIONER 
 
 To take testimony 
 
 
 
 
 
 Named by com-t, judge or clerk. . . 
 
 CORPORATIONS 
 
 Citizens of states under whose.laws 
 created 
 
 
 62 
 31 
 
 Mode of averment to show juris 
 diction 
 
 
 
 32 
 
 
 
 
 51 
 
 COSTS 
 
 CROSS-BILL 
 
 By whom filed 
 
 25, 34, 35, 
 84 
 
 I 968 
 
 47,55 
 95 
 
 
 73 
 
 
 96 
 
 DEATH OF PARTY 
 
 955 
 955; 18 Sts., 473 
 
 78 
 
 Substitution of representative — 
 DECREE 
 
 S. C. 15 
 
 19 
 86 
 85 
 
 78, 79, 80 
 45 
 
 
 
 86 
 
 
 
 
 
 
 118 
 
 Final 
 
 
 
 118 
 
 
 
 25 Sts., 357 
 
 135 
 
 DEFAULT 
 
 DEMURRER TO BILL 
 
 18 
 
 45 
 47 
 
 Supported by certificate of coun- 
 sel and affidavit of party 
 
 31 
 
 
 48 
 49 
 
 
 
 
 20:i 
 
 
 
 
 49 
 
 
 
 
 203 
 
 To part of bill 
 
 32, 36, 37 
 
 
 49 
 
 Form of 
 
 204
 
 220 
 
 INDEX. 
 
 DEMURRER TO BILL (continued) 
 
 Set down for argument. . . 
 
 Form for 
 
 Costs on 
 
 DEPOSITIONS 
 
 See Tr.sTiMONT. 
 
 ENTRY 
 
 Final. 
 
 EQUITY 
 
 Jurisdiction of court of 
 
 Suits in, not sustainable if com- 
 plete remedy at law 
 
 EVIDENCE 
 
 Time for taking 
 
 Modes of taking 
 
 See Testimony; Witnesses. 
 
 EXAMINER. 
 
 By whom named. 
 
 Rules. 
 
 33 
 34, 35 
 
 Statutes. 
 
 Page. 
 
 EXCEPTIONS 
 
 To bills 
 
 Form of, for scandal or imper 
 
 tinence 
 
 To answers 
 
 To answers for insufficiency 
 
 Form of 
 
 FORECLOSURE 
 
 Decree for balance 
 
 GUARDIAN 
 Suit by . . 
 
 HEARING 
 
 On hill and answer 
 
 ( )ii ('xo'j)tions 
 
 ( )ii e.\ce])tioiis for defect of parties 
 On Lssue joined and evidence. . 
 
 IMPERTINENCE 
 
 In bills 
 
 In answer 
 
 INFANTS 
 
 Suit hy 
 
 Suit against 
 
 Appeal hy; time allowed 
 
 INJUNCTION 
 
 Hy whom grnnlahle 
 
 I'roci-cdiiigH for 
 
 Form of 
 
 69 
 
 Cr, 68, 70 
 
 26, 27 
 
 27 
 
 92 
 
 41 
 
 63 
 
 52, 53 
 
 26, 27' 
 -JT, 
 
 750 
 
 913 
 
 862 
 
 54 
 208 
 53 
 
 142 
 
 9, 11, 12, 
 
 13, 14, 16, 
 
 18 
 
 10, 11 
 
 60 
 60, 61, 62, 
 63, 64, 65 
 
 207 
 56 
 56 
 
 207 
 
 39 
 
 60 
 C9 
 52 
 60 
 
 39 
 34, 89 
 
 107 
 
 93 
 
 34, 93 
 
 214
 
 INDEX. 
 
 221 
 
 INSANE 
 
 Suit by 
 
 Suit against 
 
 Appeal by ; time allowed 
 
 INTERLOCUTORY 
 
 Orders gran table by clerk. . . 
 Grautable by court or judge. 
 Not appealable 
 
 INTERROGATORIES 
 In biU 
 
 FLnal, in depcsitions 
 
 INTERVENTION 
 
 Right of 
 
 Petition of .■ . . . 
 
 JURISDICTION 
 
 Of circuit courts, based on special 
 statutes and several judiciary 
 acts ... 
 
 In equity, derived from English 
 rules, statutes of United States 
 and statutes of states 
 
 Adequate remedy at law defeats . . 
 
 MANDATE 
 
 MARSHAL 
 
 General duties and powers. 
 
 Adjournment of court 
 
 Service of process by 
 
 Return of process by 
 
 MASTER 
 
 Appointment of . . . . 
 Compensation of . . . 
 Proceedings before 
 
 Report of 
 
 Exceptions to report of. 
 
 MISJOINDER 
 
 Ground for demuiTer to bill. 
 
 MOTIONS 
 
 Entry of 
 
 Grantable of course . . 
 Upon order or notice . 
 
 NE EXEAT 
 
 Writ of 
 
 Prayer for 
 Form of . . .. 
 
 NEXT FRIEND 
 Suit by 
 
 Rules. 
 
 40, 41, 42, 
 43, 44 
 
 71 
 
 S. C. 39 
 
 82 
 82 
 T4, 75, 
 79, 80, 
 81 
 75,70 
 83, 84 
 
 1,2,4 
 
 5 
 
 3,6 
 
 Statutes. 
 
 1008 
 
 787, 788 
 671, 672 
 
 39 
 34 
 107 
 
 7 
 117 
 
 11, 12, 13 
 
 9 
 10, 11 
 
 134 
 
 41,42 
 44 
 
 60,65 
 
 67, OS, 
 69 
 
 68 
 69 
 
 7, 8 
 
 42 
 34. 3:5 
 
 212 
 
 39
 
 222 
 
 INDEX. 
 
 NON-JOINDER 
 
 Ground for demurrer to bill 
 Exceptions to bill for 
 
 NOTICE 
 
 When entry in order book is . 
 To solicitors, when sufficient. 
 
 ORDERS 
 
 Entry in book by clerk 
 
 Grantable by clerk 
 
 Grautable by court or judge.. 
 Deemed abandoned 
 
 PARTIES 
 
 All interested should be made — 
 
 Indispensable, being absent, no de- 
 cree 
 
 If parties cannot be brought in, 
 decree may be granted if their 
 rights may be saved 
 
 Nominal 
 
 Numerous 
 
 Heirs 
 
 Joini debtors 
 
 Trustees 
 
 Defect of, how availed of 
 
 PETITION 
 
 Of intervention. 
 For rehearing . . 
 
 PLACE OF SUIT 
 
 See Venue. 
 
 PLEA 
 
 Time of filing 
 
 Certificate of counsel 
 
 F<irin of 
 
 Affidavit of defendant . . . 
 
 Form of 
 
 To part or whole of bill . . 
 
 Form of 
 
 Arpnjnent on 
 
 Issue on 
 
 Admission of 
 
 Nature of 
 
 Matter of 
 
 Aliatcment should be by. 
 In luir 
 
 PLEADING 
 
 Modes and forms prescribed by su- 
 preme court 
 
 PRACTICE IN EQUITY 
 
 To conform to cstiiblished usage, 
 the hIaI uIcs and rules of supreme 
 and circuit courts 
 
 Rules. 
 
 47, 48, 49 
 53 
 
 4 
 
 5 
 
 1, 3, 4, 6 
 
 27, 30, 63 
 
 31 
 32, 36,' 37 
 
 39 
 
 89,90 
 
 Statutes. 
 
 Page. 
 
 48 
 52 
 
 8 
 
 A 
 
 7 
 
 47, 5T 
 
 33 
 
 27,38 
 16 
 38 
 40 
 39 
 
 48, 50, 53 
 
 47 
 48 
 
 204 
 4ti 
 
 205 
 
 no 
 
 205 
 54 
 54 
 
 013, 917 
 
 913, 917. 918
 
 INDEX. 
 
 223 
 
 
 Rules. 
 
 Statutes. 
 
 Page. 
 
 PRAYER 
 
 2.3 
 
 
 34 
 
 
 
 201 202 
 
 
 21 
 
 34 
 
 
 
 201 
 
 PRECIPE 
 
 
 
 41 
 
 
 
 
 202 
 
 PROCESS 
 Mesne 
 
 SubpcBna for defendant 
 
 Subpcena for witnesses 
 
 78 
 55 
 
 
 41 
 
 
 72, 73 
 
 
 11 
 
 
 718 
 
 
 94 
 
 Fiiial 
 
 Attachment..' 
 
 8 
 
 7,9 
 
 8 
 
 135 
 
 
 
 139 
 
 
 
 138 
 
 
 4921 
 
 
 Restitution 
 
 
 139 
 
 
 7 
 
 26,27 
 73,74 
 
 88 
 88 
 
 45 
 66 
 
 
 140 
 
 REFERENCE 
 
 Of exceptions 
 
 
 47 56 
 
 Of issues 
 
 60, 65 
 
 REHEARINO 
 
 Applied for by petition 
 
 Time of filing 
 
 
 86 
 87 
 
 REPLICATION 
 
 5& 
 
 When filed 
 
 
 58 
 
 Form of 
 
 
 207 
 
 RESTRAINING ORDER 
 
 
 718 
 
 94 
 
 Form of 
 
 
 2ia 
 
 REVIEW 
 
 
 
 87, 88 
 
 Form of 
 
 
 
 210 211 
 
 REVIVOR 
 
 Bill of 
 
 56,57 
 S. C. 15 
 
 
 78 
 
 On suggestion of death 
 
 
 7» 
 
 
 
 209 
 
 RULE DAY 
 
 2 
 
 
 6, 7 
 
 RULES IN EQUITY , 
 
 
 6 143 
 
 RULES OF SUPREME COURT 
 
 
 
 177 
 
 SALES BY MASTER 
 
 
 
 136 
 
 SCANDAL 
 
 In bill or answer 
 
 25, 27 
 
 
 46, 56
 
 224: 
 
 IN^DEX. 
 
 SECURITY ON APPEAL. 
 
 SEQUESTRATION 
 
 Writ of 
 
 Form of 
 
 SERVICE OF PROCESS 
 
 By whom made 
 
 How mada 
 
 SETTING DOWN FOR ARGUMENT 
 
 Dc^murrer 
 
 Form of 
 
 Plea 
 
 Form of 
 
 Answer suggesting defect of par 
 
 ties 
 
 Form of 
 
 STATUTORY PROVISIONS AFFECT 
 
 ING CIRCUIT COURT AND 
 
 PRACTICE 
 
 Abatement 
 
 Adjournmpnt of court 
 
 Amendment of process and plead 
 
 iugs 
 
 Appeal 
 
 To supreme court 
 
 To circuit court of appeals. 
 
 To supreme from circuit court 
 of appeals 
 
 By infant, insane or pi'isoner 
 
 On death of party 
 
 Assignee 
 
 ^uit by 
 
 Circuit court 
 
 Creation and organization.. 
 Jiu-isilietion. 
 
 Under judiciary acts 
 
 Under special acts 
 
 Revenue from imports, ton- 
 nage or internal taxes 
 
 Patents 
 
 Copyrights. 
 
 Trade-marks 
 
 National bank acts. 
 
 Interstate commerce. 
 
 Trusts 
 
 Tariff dnties 
 
 Condemnation of laud for pub- 
 lic use 
 
 Unlawful occupancy of public 
 lands 
 
 Rules. 
 
 S. C. 29 
 
 33 
 
 Statutes. 
 
 1000, 1007, 1013 
 
 955, 956: 
 
 18 Sts., 473 
 
 67a 
 
 948, 9.54, 1005 
 
 69:i, 699, 1008, 
 
 1012 
 
 26 Sts., 82? 
 
 26 Sts., 828 
 
 26 Sts., 828 
 
 1008 
 
 955, 956 
 
 25 Sts., 433 
 
 605-628 
 
 Title Xin, R 
 
 S.; 18 sts., 470: 
 
 25 Sts., 433 
 
 692 
 
 6>)2; 29 Sts., 002 
 695 
 
 957; 28 Sts., 965; 
 
 29 Sts., 483-694 
 
 21 Sts., .502 
 
 1012; 25 Sts., 
 
 43(! 
 
 84 Sts.. 380; 25 
 
 St.s., 8.55 
 
 26 Sts , 209 
 
 26 Sts., 131 
 
 25 Sts., 357 
 
 23 Sts.. 321 
 
 Page.
 
 INDEX. 
 
 225 
 
 STATUTORY PROVISIONS AFFECT 
 ING CIRCUIT COURT AND 
 PRACTICE (continued) 
 Under special acts (continued) 
 Lumigration and alien con- 
 tract labor 
 
 Suits against the United States 
 
 Death of party 
 
 Decree, hen of 
 
 Evidence 
 
 Mode of proof — 
 
 Witness, who competent 
 
 Privileged 
 
 Injunction 
 
 When and by whom grantable. 
 
 Continuance of.... 
 
 Jurisdiction 
 
 See Circuit Court. 
 National banks ' 
 
 Ju risdiction limited 
 
 Pleading 
 
 Practice 
 
 Process, form of 
 
 By whom served .... 
 
 Amendment of 
 
 Receivers 
 
 Jurisdiction 
 
 Restraining order on application 
 
 for injunction 
 
 Security on appeal 
 
 Subpoena for witnesses 
 
 Duces tecum 
 
 Supersedeas 
 
 Witnesses 
 
 Who competent 
 
 Privilege . 
 
 Fees of 
 
 Testimony of, taken de bene.. 
 
 On dedinius 
 
 Under state statute . . 
 
 Distance may be required to 
 
 travel 
 
 Writs 
 
 Power to issue 
 
 Of injunction 
 
 Of ne exeat 
 
 STOCKHOLDER 
 Bill by 
 
 SUBPCENA 
 
 Issued by clerk 
 
 Not until bill filed. ... 
 
 Returnable 
 
 Service of, how made. 
 
 By whom served 
 
 Alias issued 
 
 RUIiES. 
 
 94 
 
 Statutes. 
 
 26 Sts., 1084 
 
 24 Sts., 505 
 
 955 
 
 18 Sts., 473; 25 
 
 Sts., a57 
 
 858 
 859,860 
 
 719 
 719 
 
 25 Sts., 436 
 91.3, 917 
 913, 918 
 
 811, 912, 918 
 922 
 
 25 Sts., 436 
 
 718 
 1000, 1007, 101 
 86 
 869 
 1000, 1007, 1012 
 
 859, 860 
 
 848 
 
 863, 864, 865 
 
 866 
 
 27 Sts., 
 
 876, 870 
 
 716 
 719 
 71 
 
 Page. 
 
 15
 
 226 
 
 INDEX. 
 
 SUBPCEXA FOR WITNESSES 
 
 Issued by nlerk 
 
 Duces tecum 
 
 SUPPLEMENTAL BILL 
 
 SUPERSEDEAS 
 
 Security and condition of bond . . 
 In case of injunction 
 
 TESTIMONY 
 
 Time for taking. 
 
 How taken 
 
 Of aged; infirm 
 
 About to leave 
 
 Single witness 
 
 De bene esse 
 
 Dedimus 
 
 According to state statutes. 
 
 Abstract on hearing 
 
 Publication of 
 
 TRANSCRIPT 
 
 On appeal, contents of. 
 Filing 
 
 XJNITED STATES CIRCUIT COURTS 
 
 VENUE 
 
 Local actions 
 
 Patents 
 
 Transitory 
 
 Waiver of objection to venue. 
 
 VERIFICATION OF ANSWER 
 Before whom ... 
 
 WRIT 
 
 Attachment... 
 Assistance . . . . 
 Execution. ... 
 Injunction . ... 
 Bequi'sl ration , 
 Restitution. ... 
 
 Rules. 
 
 78 
 
 57 
 
 S. C. 29 
 93 
 
 67,68 
 
 70 
 
 69 
 
 S. C. 8 
 S. C. 9 
 
 59 
 
 7,8 
 
 7-9 
 
 8 
 
 65 
 
 Statutes. 
 
 809 
 
 1000, 1007, 1012 
 ""28Sts.", 666 
 
 863, 864, 865 
 
 866 
 
 27 Sts., 7 
 
 629;18Sts., 470; 
 
 25 Sts., 433 
 
 742 
 
 J 18 Sts., 470 
 
 \ 25 Sts., 433 
 
 29 Sts., 695 
 
 25 Sts., 433 
 
 719 
 
 Page. 
 
 72 
 73 
 
 77 
 
 114, 116 
 
 115, 116 
 
 60 
 60 
 60, 61, 62, 
 63, 64, 65 
 64 
 64 
 64 
 63 
 64 
 64 
 85 
 
 133 
 131 
 
 20 
 
 24 
 
 23, 24, 25, 26 
 25 
 
 51 
 
 215 
 
 214 
 212
 
 
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