and cross-examination, unless the court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a commission to issue to take such deposition upon written interrogatories and cross-interrogatories. When such deposition shall be taken by oral examination, a notification from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall be pending, to the adverse party, to be present at the taking of the same, and to put interrogatories if he think fit, shall be served on the adverse party or his attorney, allowing time for their attendance after being notified, not less than twenty-four hours, and, in addition thereto, one day, Sundays exclusive, for every twenty miles' travel.

Provided, that the court in which such appeal may be pending, or either of the judges thereof, may, upon motion, increase or diminish the length of notice above required.

Ordered, that, when oral evidence shall be taken down by the clerk of the district court, pursuant to the above-mentioned section of the act of congress, and shall be transmitted to the circuit court, the same may be used in evidence on the appeal, saving to each party the right to take the depositions of the same witnesses, or either of them, if he should so elect.

DECEMBER TERM, 1854. 17 HOWARD, vi.

Ordered, that the following supplemental rules be added to the rules. heretofore adopted by this court, for regulating proceedings in admiralty.

RULE NO. LII.

When the defendant in his answer, alleges new facts, these shall be considered as denied by the libellant, and no replication, general or special, shall be allowed. But within such time after the answer is filed as shall be fixed by the district court, either by general rule or by special order, the libellant may amend his bill, so as to confess and avoid, or explain or add to the new matters set forth in the answer; and within such time as may be fixed in like manner, the defendant shall answer such amendments.

RULE NO. LIII.

The clerks of the district courts shall make up the records to be transmitted to the circuit courts, on appeals, so that the same shall contain the following:

1. The style of the court.

2. The names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has taken place.

3. If bail was taken, or property was attached or arrested, the process of arrest or attachment, and the service thereof, all bail and stipulations, and if any sale has been made, the orders, warrants, and reports relating thereto.

4. The libel, with exhibits annexed thereto.

5. The pleadings of the defendant, with the exhibits annexed thereto. 6. The testimony on the part of the libellant, and exhibits not annexed to the libel.

7. The testimony on the part of the defendant, and any exhibits not annexed to his pleadings.

8. Any order of the court to which exception was made.

9. Any report of an assessor or assessors if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report was not excepted to, only the fact that a reference was made and so much of the report as shows what results were arrived at by the assessor, are to be stated.

10. The final decree.

11. The prayer for an appeal and the action of the district court thereon, and no reasons of appeal shall be filed or inserted in the transcript.

The following shall be omitted:

1. The continuances.

2. All motions, rules, and orders not excepted to, which are merely preparatory for trial.

3. The commissions to take depositions, notices therefor, their captions and certificates of their being sworn to, unless some exception to a deposition in the district court was founded on some one or more of these; in which case so much of either of them as may be set out. In all other cases it shall be sufficient to give the name of the witness, and to copy the interrogatories and answers, and to state the name of the commissioner, and the place where, and the date when, the deposition was sworn to. And in copying all depositions taken on interrogatories, the answer shall be inserted immediately following the question.

The clerk of the district court shall page the copy of the record thus made up, and shall make an index thereto; and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transscript of the record of the district court in the cause named at the beginning of the copy made up, pursuant to this rule; and no other certificate of the record shall be needful or inserted.

It is further ordered, that these rules be published in the next volume of the reports of the decisions of this court, and that the clerk cause them to be forthwith printed and transmitted to the several district courts. JANUARY 22, 1855.

GENERAL RULE, No. 9.

DECEMBER TERM, 1859. 21 HOWARD.

[This rule has changed in some respects the sixty-third rule, passed December term, 1853, 16 Howard. The changes are indicated in the notes.]

First. In all cases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant, as the case may be, to docket the cause, and file the record thereof with the clerk of this court within the first six days of the term; and if the writ of error or appeal shall be brought from a judgment or decree rendered less than thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appellant to docket the cause and file the record thereof with the clerk of this court within the first thirty days of the term; and if the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the case docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the cause and certifying that such writ of error or appeal has been duly sued out and allowed.

And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court.1

2

Second. But the defendant in error or appellee may, at his option, docket the case and file a copy of the record with the clerk of the court; and if the case is docketed and a copy of the record filed with the clerk of this court, by the plaintiff in error or appellant, within the periods of time above limited and prescribed by this rule, or by the defendant in error or appellee at any time thereafter during the term the case shall stand for argument at the term.

Third. In all cases where the period of thirty days is mentioned in this rule, it shall be extended to sixty days in writs of error and appeals from California, Oregon, Washington, New Mexico, and Utah.

DISTRICT COURT RULES IN ADMIRALTY. MASSACHUSETTS

DISTRICT.

In cases in admiralty in which an appeal is permitted by law, an appeal

1 In the sixty-third rule, the words "or consent of the opposite party," were added.

2 In the sixty-third rule this sentence read "by either party within the periods of time above limited and prescribed by this rule, the case shall stand for argument at the term."

may be claimed at any time within ten days, Sundays inclusive, from the time of entering up the final decree, and not afterwards, unless the court for cause shown, shall prescribe a longer or shorter time.

ADMIRALTY RULE, ADOPTED JUNE 27th, 1855.

In suits in personam, where the defendant cannot be legally arrested, the mesne process may be a warrant to attach his goods and chattels to the amount sued for, or if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein, or by a simple monition in the nature of a summons to appear and answer to the suit as the libellant shall in his libel or information pray for or elect.

FORMS.

MUCH space is generally devoted in works on Admiralty Practice to forms of libels and answers; but this, we think, is, to a great extent, unnecessary. The narrative part of each libel depends so much on the particular facts of the case, that no form can be literally followed, and the commencement and close of all libels and answers are so similar to each other, that we do not deem it necessary to give more than one form, and then state the peculiarities of the different causes of action.

The libel is generally entitled

To the Honorable

Judge of the District Court of the United

States, within and for the District of

According to the forms given in Dunlap's Admiralty Practice, and which are generally followed in Massachusetts, the libel begins as follows: "The libel and complaint of A. B. of in the district aforesaid,1 in a cause of contract. And thereupon this libellant alleges and articulately propounds as follows."

This form of commencement is, perhaps, not strictly grammatical, and we prefer the form which seems to be in use in other districts, and which we have known used in Massachusetts. This omits the clause, " And

1 If the libel is in rem it must state that the property is within the district, and if it is in personam, the names and occupations and places of residence of the parties must be stated. 23d Admiralty Rule.

2 Or of tort, or damage, or of salvage, or of possession, or otherwise, as the case may be. 23d Admiralty Rule.

thereupon your libellant," etc., and adds the words "alleges as follows." Thus making the libel allege instead of leaving the nominative without a predicate.

Another form is: A. B. of

exhibits this his libel, etc. And

thereupon the said A. B. alleges and articulately propounds as follows.

The following pleadings in a suit in rem against a vessel for nondelivery of goods, will serve as a guide for all cases of contract. After one of the above headings, the libel would proceed as follows:

to

the high seas, and on waters within the admiralty and maritime jurisdiction of the United States and of this honorable court, to wit, from the said port of the libellant (or here give the name of the shipper of the goods, if the libellant is not the shipper) being the owner of certain goods (describe them), shipped them on board the said vessel in good order and well-conditioned, to be carried and transported in said ship to the said and there to be delivered to your libellant, or his assigns, in like good order, dangers of the sea only excepted, for the freight of per cent. primage and average accustomed, to be paid by your libellant or his assigns. And the said as aforesaid, at the said port of

; with

day of

-, master received said merchandise, and on the in the year aforesaid, signed two bills of lading, and delivered the same to the shipper of said merchandise. (Copies of the bills of lading should be annexed.)

Second. That on or after the said

day of said for the said port of

the said

at which

ship sailed from the port of port she duly arrived and now is; but notwithstanding your libellant has been at all times and still is ready to receive the whole of said merchandise in good order, and on so receiving the same, to pay the freight and charges thereon, according to the tenor and effect of the said bills of lading, yet of the value of dollars, part of the said

-, shipped as aforesaid, the said master has not yet delivered, but refuses so to do, and owing to the negligent, improper, and careless manner in which the said were partially transported, and for want of proper care on the part of said master and persons employed by him, the said were thrown into the water by the bursting of the boiler, or some portion of the steam apparatus of the steam-lighter, which your libellant avers was not a danger of the sea, wherein the said master as aforesaid, was transporting said port of

from the shore at said

to said ship.1 By reason of which said casting of said

1 Or, if the goods are delivered in a damaged condition, it is sufficient to state this fact, setting forth the nature and extent of the damage, and the burden of proof is then on the respondent to show the cause of the injury.