RULES

OF THE

DISTRICT COURT,

NORTHERN DISTRICT OF NEW YORK.

Rules of Practice of the District Court of the United States for the Northern District of New York, in cases of Admiralty and Maritime Jurisdiction on the instance side of the Court, as amended and established at the May Term, 1856. [Corrected to March 1, 1893.]

1.

The "Rules of Practice of the courts of the United States, in causes of admiralty and maritime jurisdiction, on the instance side of the court," prescribed by the Supreme Court of the United States, at the January Term, 1845, and the rules of said court in addition to or in modification of the same, are rules of practice in this court in all cases of admiralty and maritime jurisdiction, including cases within the act entitled "An Act extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same," passed February 26th, 1845.

2.

A special session of the court is hereby appointed to be held at Utica on Tuesday of every week, at ten o'clock in the forenoon; at which special session all process may be made returnable, and all proceedings may be had, except trials by jury, which will not be held without a special order by the judge for that purpose, except at a stated term; and except trials of issue of fact before the court, which will be had only on the first Tuesday of each month, other than the months of July and August, without a like special order. Issues of fact may be brought to trial by either party after twenty days' notice to the other parties in interest or in pursuance of an order previously obtained for such purpose; and issues of law, and enumerated and non-enumerated motions may be brought to a hearing after eight days' notice as aforesaid, or in pursuance of a like order; but no notice shall be required in respect to any proceeding or motion which can be properly made or taken on the return day of process, if such motion shall be made or proceeding taken on such return day, or, when the

court shall not sit on such return day, on the first court day thereafter. In case of the non-attendance of the judge at the time hereby appointed, or at any other time which may by special order be appointed, for any special session of the court, all process and proceedings shall be continued as of course, and without prejudice, to the next special sessions, or by special order, to some earlier day for that purpose appointed by the judge.

3.

All process shall bear test of the day on which it is sealed, and shall be made returnable before the judge at Utica on any Tuesday thereafter, sufficiently remote to admit of the prescribed notice. But final process upon bonds or stipulations may be made returnable at a stated term of the court, or at a special session as hereinbefore provided.

4.

The newspaper called the Buffalo Commercial Advertiser, printed at the city of Buffalo, is hereby designated, in pursuance of Rule 9 of the Rules of Practice in admiralty and maritime causes prescribed by the Supreme Court, as the newspaper in which all notices shall be printed, which are by the said rule required to be published in a newspaper, in all suits in rem, in which the arrest of the vessel, goods, or other thing proceeded against, has been made at or within the collection district of Buffalo Creek, or the collection district of Niagara.

5.

The Third National Bank, in the city of Buffalo, is hereby designated as the place of deposit for moneys paid into court.

6.

Libels, answers, and all other pleadings and papers to be filed, shall be so plainly written as to be readily legible, and shall be free, to all reasonable extent, from interlineations and erasures; and it shall be the duty of the clerk to reject all papers delivered to him to be filed, which are not in conformity with this rule.

7.

All libels praying process of arrest in personam shall be verified by the oath or solemn affirmation of the libellant, or of one libellant, unless, for sufficient cause shown, such oath or affirmation shall be dispensed with by the special order of the judge. All libels praying process of arrest in rem shall be verified by the oath or solemn affirmation of the libellant, or of one libellant, or of an officer or agent of the libellant, or of one libellant, or by oath or affirmation of the proctor, to the best knowledge, information and belief of the person so verifying the same. Such libels need only be signed by the proctor. The clerk is authorized to issue process of arrest and of monition on libels so verified and signed.

All answers and other pleadings, not herein before provided for, shall be signed and verified in the same manner as libels praying process of arrest in

rem.

8.

In suits in rem, the mesne process shall be served, and the required notices given, at least fourteen days before the return day of the process, unless a shorter time shall be prescribed by special order, founded upon the exigencies of the particular case.

9.

All process, and all notices for publication in a newspaper in pursuance of Rule 9 of the Rules of Practice in admiralty and maritime causes, prescribed by the Supreme Court, shall be drawn up by the clerk; and no process, except subpoenas, shall be issued by him in blank.

10.

The notice mentioned in the last preceding rule shall contain the title of the suit, a summary statement of the cause of action, the amount of the demand, and the day and place fixed for the return of the process; and shall have affixed at the close thereof the name of the proctor of the libellant, and that of the marshal, or of his deputy intrusted with the execution of the process.

11.

The amount of the debt or damages for which the action is brought, shall be stated in the libel, and, with the addition thereto, for costs, of $250 in a suit in rem, and of $100 in a suit in personam, shall, be indorsed on the mesne process, thus: "Action for $ ;" and in a suit in rem the requisite bond or stipulation, upon the release of the property, shall be in the sum of $250, in addition to twice the amount demanded in the libel; and in a suit in personam in the sum of $100, with the addition of twice the amount of the demand.

12.

When the libellant is not a resident of the district, he shall, at the time of commencing his suit, give a bond or stipulation, with one or more sufficient sureties, in the sum of at least one hundred dollars, if the suit is in personam; and in the sum of at least two hundred and fifty dollars, if the suit be in remconditioned that he will appear from time to time, and abide by all orders, interlocutory and final, of the court, and pay the costs and expenses, if any, which shall be awarded against him by the final decree of this court, or of any appellate court: Provided, however, that this regulation shall not extend to suits for seamen's wages, nor to suits for salvage, when the salvors have come into port in possession of the property libelled.

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13.

In all cases not embraced within the last preceding rule, on motion of the defendant or claimant, the court will, in its discretion, direct the libellant, on pain of dismissing his libel, to give the like security.

14.

Instead of the security specified in the last two preceding rules, the party from whom it is required may, at his option, deposit in court a sum of money of the like amount.

15.

If in any case a libel shall be filed in behalf of a libellant who is not a resident within the district, before security for costs and expenses shall be filed as required by Rule 12, the proctor for such libellant shall be liable for costs and expenses to the amount specified in the said rule, until such security shall be filed; and the payment thereof may be enforced by summary process in personam against such proctor.

16.

When a proctor is retained to defend in any suit, before the return day of the mesne process therein, who resides or has his place of business more than three miles from the clerk's office, and not more than three miles from the residence or place of business of the proctor for the libellant, such proctor for the defendant may, at any time before the return day of the process, serve a notice of his retainer on the proctor for the libellant; and it shall thereupon be the duty of the proctor for the libellant, without delay, to serve on the proctor for the defendant a copy of the libel on file.

17.

When the defendant's answer, or any other pleading subsequent to the libel, is put in by being simply filed in the clerk's office, instead of being given in open court, in presence of the proctor or advocate for the adverse party, a copy thereof, with notice of the time of filing the same, shall without delay be served on the proctor of such adverse party.

18.

When a decree is made in the absence of the proctor of either party to the suit, unless such proctor resides at the place where the clerk's office is kept, it shall be the duty of the clerk immediately to transmit to him by mail a copy of the decree; and such proctor and party shall be responsible to the clerk for the fees to which he may be entitled for such service, according to the usual rate of charge.

19.

In all suits, others than those founded upon municipal seizure, not less than six days' notice of the sale of property on final process shall be given. A longer notice may be given at the discretion of the marshal or his deputy by whom the sale is to be made, or by order of the court. It shall be the duty of the marshal in all cases in which it shall be practicable, to make the sale and pay the proceeds into court on or before the return day of the process, under which such sale is to be made. The clerk will in all cases make the process returnable at such time as may be necessary to enable the marshal to give the requisite notice, make the sale, and return such process on or before the return day thereof.

20.

Whenever any libel shall be taken as confessed, for want of answer, there shall be an order of reference to the clerk or a commissioner pro hac vice to take proof of the material facts and circumstances stated in the libel, and to examine the libellant on oath or affirmation, in respect to payments or offsets, and in the discretion of the referee in respect to any other matters pertaining to his demand, and the referee shall report accordingly.

Upon sufficient cause shown, the court will in the order of reference, or otherwise, direct that the oath or affirmation of the libellant may be received in support of the allegations of the libel, or will give such other special directions in respect to the proceedings upon the reference as the nature of the case may require.

21.

In cases of reference under a decree pro confesso, the libellant shall, unless otherwise specially directed, proceed with the reference within four days from the date thereof; and upon a reference in cases in which an answer shall have been interposed, or in which, for other reasons, notice of hearing on the reference shall be required, the hearing may proceed on any day appointed by the referee, at the instance of either party; provided, that eight days' notice shall have been given of such hearing, to all adverse parties who have appeared in the cause.

Such reference may be continued from day to day, or by adjournment, and when adverse parties appear, the proofs shall be closed at the end of thirty days from the date of the order of reference, unless the parties shall agree to the closing of the same at an earlier day, or unless the time shall be extended by the written order of the referee, or by the written stipulation of the parties, or by the order of the court for that purpose obtained; and the clerk or commissioner shall make and file his report within eight days after the testimony shall have been closed.

22.

Exceptions to any report made by the clerk or a commissioner, must be filed or served on the adverse party within ten days after such report shall have