Erastus Cornelius Benedict.

The American admiralty, its jurisdiction and practice, with practical forms and directions online

. (page 42 of 80)
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allowed to the plaintiff in error or appellant, 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 whei*e 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 ?l pro-
cedendo, to the court below, for the purpose of informing such court of the pro-
ceedings in this court, so that further proceedings may be had in 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 sam^ the bill of items taxed in detail.

7. In pursuance of the Act of March 3, 1888, authorizing 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.

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 indexing 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 distributing the printed copies to the jus-
tices, 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 papei*3, five dollars.

For mandate or other process, five dollars.

For filing briefs, five dollars for each party appearing.

For eveiy 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.



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SUPBEME COURT KULES. 407

'25.
OPINIONS OF THE COURT.

1. All opinions delivered by the couit shall, immediately upon tfep delivery
thereof, be handed to the clerk to be recorded. And it shall be the duty of the
clerk to cause the same to be foithwith recorded, and to deliver a copy to the
reporter as soon as the same shall be recorded.

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 delivering tlie same
need not be copied by the clerk into a book of records ; but at the end of each
term 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 teinn, will commence calling the cases
for argument in the order in which they stand on the docket, and proceed from
day to day during the term in the same order (except as hereinafter provided) ;
and if the parties, or either of them, shall be ready when the case is called, the
same will be heard ; and if neither party shall be ready to pi*oceed in the argu-
ment, the case shall go down to the foot of the docket, unless some good and
satisfactory reason to the contrary shall be shown to the court.

2. Ten cases only shall be considered as liable to be called on each day dur-
ing 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. Ciiminal cases may be advanced by leave of the court on motion of either
party.

4. Cases once adjudicated by this court upon the ments, and again brought
up by writ of error or appeal, may be advanced by leave of the court on motion
of either party.

6. Revenue and other cases in which the United Sutes ai'e concerned, which
also involve or afiect some matter of general public interest, may also by leave
of the court be advanced on motion of the Attoraey -General.

6. All motions to advance cases must be printed, and must contun a brief
Statement of the matter involved, with the reasons for the application.

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 argued as one case.

9. If, after a case has been passed under circumstances which do not place it



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408 APPENDIX.

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 ease shall then be by him
reinstated for call ten cases after that uhder argmnent, 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 appeal, shall in vacation, by their attorneys
of record, 'sign and file with the clerk an agreement in writing directing the
case to be dismissed, and specifying the terms on which it is to be dismissed as
to costs, and 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 re-
questing 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 CJourts must be taken, with good and suffi-
cient security, that the plaintiff in error or appellant 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 ap-
peal ; 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 recovered for the
use and detention of the property, and the costs of the suit, and just damages
for delay, and costs and interest ^n the appeal.



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8UPBE1CB 0OT7BT BX7LE8. 409

30.
REHBARIKa.

A petition for rehearing after judgment can be presented only at the term at
which judgment is entered* unless by special leave granted during the term ;
and must be printed and briefly and distinctly state its grounds, and be sup-
ported by certificate of counsel ; and will not be granted, or permitted to be ar-
gued, unless a justice who concurred in the judgment desires it, and a m^ority
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 convenientiy bound together, so as to
make an ordinary octavo volume.

32.

WRITS OF ERROR AND APPEALS UNDER THE ACT OF FEBRUARY 25, 1889,

CHAPTER 286.

Ca«es brought to this court by writ of error or appeal under the Act of Feb-
ruary 25, 1889, chapter 236, or under section 5 of the Act of March 8, 1891,
chapter 517, where the only question in issue is the question of the jurisdiction
of the court below, will be advanced on motion and heard under the rules pre-
scribed 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 inile ; and if the articles
are not removed within a reasonable time after the notice is given, he shall de-
stroy 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 custody of the prisoner shall not be dis-
turbed.

2. Pending an appeal from the final decision of any court or judge discharg-
ing the writ after it has been issued, the prisoner shfdl be remanded to the cus-



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410 APPENDIX.

tody 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 recognizance as
hereinafter provided.

3. Pending an appeal from the final decision of any court or judge discharg-
ing the prisoner, he shall be enlarged upoji recognizance, with surety, for ap-
pearance to answer the judgment of the Appellate Court, except where, for
special reasons, sureties ought not to be required.

35.

ASSIGNMENT OF ERBOBS.

1. Where an appeal or a writ of error is taken from a District Court or a Cir-
cuit Court direct to this couil, under section 5 of the act entitled '* An act to es-
tablish Circuit Courts of Appeals and to define and regulate in certain cases the
jurisdiction of the courts of the United States, and for other purposes," approveti
March 3, 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
errors, which shall set out separately and particularly each error asserted and
intended to be urged. No writ of eiTor or appeal shall be allowed until such
assignment of erroi's shall have been tiled. When the error alleged is to the
admission or to the rejection of evidence, the assignment of erroi's shall quote
the full substance of the evidence admitted or rejected. When the error alleged
is to the charge of the court, tlie assignment of errors shall set out the part re-
ferred to tottdem verbis^ whether it be in instructions given or in instructions
refused. Such assignment of errors shall form part of the transcript of the rec-
ord, and be printed with it. When this is not done counsel will not be heai*d,
except at the request of the court ; and en*ors not assigned according to this rule
will be disregarded, but the court, at its option, may notice a plain en'or not
assigned.

2. The plaintiff in error or appellant shall cause the record to be printed, ac-
cording 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 en*orfrom a Ciixiuit Court oraDistiict Court, direct
to this court, in the cases provided for in sections 6 and 6 of the act entitled •• An
act to establish Circuit Courts of Appeals, and to define and regulate in certain
cases the jurisdiction of the courts of the United States, and for other purposes,^^
approved March 3, 1891, may be allowed, in terai time or in vacation, by any jus-
tice of this court, or by any ciixiuit judge within his circuit, or by any district
judge within his district, and the proper securi^ be taken and the citation sign-
ed by him, and he may also grant a supersedeas and stay of execution or of pro-
ceedings, pending such writ of error or appeal.

2. Where such writ of error is allowed in the case of a conviction of an in-
famous crime, or in any other criminal case in which it will lie under said sec-
tions 6 and 6, tlie Circuit Court or Distiict 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.



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8UPBBHB C01TBT BULBS. 411

37.

CASES FROM CIRCUIT COURT OF APPEALS.

1. Where, under section 6 of the said act, a Circuit Court of Appeals shall cer-
tify to this court a question or proposition of law, concerning which it desires
the instruction of this couit 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 consideration, the paity making such applica-
tion shall, as a part thereof, furnish this court with a certified copy of the whole
of said record.

.i. Where application is made to this court under section 6 of the said act to
i*equire a case to be certified to it for its review and determination, a certified
copy of the entire record of the case in the Circuit Coui-t of Appeals shall be for*
nished 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.



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RULES

OF THB

UNITED STATES CIRCUIT COURT OF APPEALS,

FOR THE SECOND CIRCUIT.
(See Admiralty Rule XIX, post, p. 427.)



1.

NAME.

The court adopts '* United States Circuit Court of Appeals for the Second
Circuit ^^ as the title of the court. .



SEAL.

The seal shall contain the words ♦* United States ^^ on the upper part of the
outer ed^e; and the words "Circuit Court of Appeals '' on the lower part of
the outer edge, running from left to right; and the words "Second Circuit"
in two lines, in the centre, with a dash benealih.

IHere insert SecU,]



TERMS.

One term of this court shall be held annually at the city of New York on the
last Tuesday of October, and shall be adjourned to such times and places as the
court may from time to time designate.

4.

QUORUM.

1. If , at any time, a quoinim does not attend on any day appointed for hold-
ing it, any judge who does attend may adjourn the court from time to time, or,
in the absence of any judge, the clerk may adjourn the court from day to day.
If, during a term, after a quorum has assembled, less than that number attend
on any day, any judge attending may adjourn the court from day to day until
there is a quorum, or may adjouiii without day.
(412)



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RITLES OF THE IT. S. CIRCUIT COURT OF APPEALS. 413

2. Any judge attending when less than a quomm is present may make all
necessary orders touching any suit, proceeding, or process depending in or re-
turned to the court, preparatory to hearing, trial, or decision thereof.



CLERK.

1 . The clerk^s office shall be kept at the place designated in the act creating
the court at which a teim shall be held annually.

2. The clerk shall not practice, either as attoiiiey or counsellor, in this court
or in any other court while he shall continue to be clerk of this court.

3. He shall, before ho enters on the execution of his office, take an oath in
the form prescribed by section 794 of the Revised Statutes, and shall give bond
in a sum to be fixed, and with sureties to be approved by the court, faithfully
to discharge the duties of his office and seasonably to record the decrees, judg-
ments, and determinations of the couit. A copy of such bond shall be entered
on the journal of the court, and the bond shall be deposited for safe-keeping as
the court may direct.

4. He shall not permit any original record or paper to be taken from the
court-room or from the office, without an order from the court.

6

MARSHAL, CRIER, AND OTHER OFFICERS.

1. Every marshal and deputy marshal shall, before he enters on the duties
of his appointment, take an oath in the form prescribed by section 782 of the
Revised Statutes, and the marshal shall, before he enters on the duties of his
office, give bond in a sum to be fixed, and with sureties to be approved by the
court, for the faithful pei*formance of said duties by himself and his deputies.
Said bond shall be filed and recorded in the office of the clerk of the court.

2. The marshal and cHer shall be in attendance during the sessions of the
court, with such number of bailiffs and messengers as the court may, from time
to time, order.



ATTORNEYS AND COUNSELLORS.

All attorneys and counsellors admitted to practice in the Supreme Court of
the United States, or in any Circuit Court of the United States, shall become
attorneys and counsellors in this court on taking an oath or affirmation in the
form prescribed by Rule 2 of the Supreme Court of the United States and on
subscribing the roll ; but no fee shall be charged therefor.

8.

PRACTICE.

The practice shall be the same as in the Supreme Court of the United States,
as far as tiie same shall be applicable.



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414 APPENDIX.



PROCESS.
All process of this court shall be in the name of the president of the United
States, and shall be in like form and tested in the same manner as process of the
Supreme Ck>urt.

10.

BILL OP EXCEPTIONS.

Tlie judges of the Circuit and Distnct Courts shall not allow any bill of ex-
ceptions 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. Bat
the party excepting shall be required to state distinctly the several matters of
law in such charge to which he excepts : and those matters of law, and those
only, shall be inseited in the bill of exceptions and allowed by the court.

11.

ASSIGNMENT OF ERRORS.

The plaintiff in eiTor or appellant shall file with the clerk of the court below,
with his petition for the writ of error or appeal, an assignment of eiTors, which
shall set out separately and pailicularly each error asserted and intended to be
urged. No writ of error or appeal shall be allowed until such assignment of
errors shall have been filed. When the error alleged is to the admission or to
the rejection of evidence, the assignment of errors shall quote the full substance
of the evidence admitted or rejected. When the en*or alleged is to the charge
of the court, the assignment of errors shall set out the part refeired to tolidem
verbis, whether it be in instructions given or in ii^structions refused. Such as-
signment of en-ors shall fonii 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.

12.

OBJECTIONS TO EVIDENCE IN THE RECORD.

In all cases of equity or admiralty jurisiliction, heard in this court, no objec-
tion shall be allowed to be taken to the admissibility of any deposition, deed,
grant, exhibit, or translation 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.

13.

SUPERSEDEAS AND COST BONDS.

1. Supersedeas bonds in the C^ircuit and District Courts must be taken, with
good and sufficient security, that the plaintiff in error or appellant shall prose-
cute his writ or appeal to effect, and answer all damages and costs if he fail to



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RULES OF THE U. S. CIRCUIT COURT OF APPEALS. 415

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 propeity in controvei*sy necessarily fol-
lows the suit, as in real actions and replevin, and in suits on mortgages, or
where the propei-ty is in the custody of the marshal under admiralty process, or
where the proceeds thereof, or a bond for the value thereof, is in the custody of
the court, indemnity in all such cases will be required only in an amount suffi-
cient to secure the sum recovered for the use and detention of the property, and
the costs of the suit and just damages for delay, and costs and interest on the
appeal.

2. On all appeals from any interlocutoiy order or decree gi-anting or continu-
ing an injunction in a Circuit orDistiictCouit, the appellant shall, at the time of
the allowance of said appeal, file with the clerk of such Circuit or District Court
a bond to the opposite party in such sum as such court shall direct, to answer
all costs if he shall fail to sustain his appeal.

14.

WRITS OF ERROR, APPEALS, RETURN, AND RECORD.

1 . The clerk of the court to which any writ of error may be directed shall
make a return of the same by transmitting a true copy of the record, bill of ex-
ceptions, assignment of errors, and all proceedings in the case, under his hand
and the seal of the court.

2. In all cases brought to this court by wint of error or appeal, 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 opinions filed in the case.

8. No case will be heard until a complete record, containing in itself, and not
by reference, all the papers, exhibits, depositions, 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 or Distinct Court, that original papers of any kind should be
inspected in this court upon writ of eiTor or appeal, such presiding judge may
make such rule or order for the safe-keeping, transporting and return of such
original papers as to him may seem proper ; and this court will receive and con-
sider such original papers in connection with the transcript of the proceedings.

5. All appeals, writs of error, and citations must be made returnable not ex-
ceeding 30 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 iii cases of admiralty and maritime jurisdiction shall be made
up as provided in General Admiralty Rule No. 62 of the Supreme Court.

15.

TRANSLATIONS.

Whenever any record transmitted to this court upon a writ of error or appeal
shall contain any document, paper, testimony, or other proceeding in a foreign



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 42 of 80)