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SUPREME COURT RULES.
ADOPTED AUGUST 2d, 1854.
ORDERED, That the following Rules* shall commence and take effect on the first day of October next (1854).
Rule 1. [1.] 1 Applicants for admission to practice as attorneys and counsellors of this court, who are entitled to examination, shall be examined in open court; the examination to commence on the first day of each general term.
RULE 2. [2.] To entitle an applicant to examination, he must prove to the court :
1. That he is a citizen of the United States, and that he is twentyone years
age, and a resident of the district in which he applies, which proof may be made by his own affidavit of the fact.
2. The evidence of good moral character shall be the certificate of a reputable counsellor of this court, or of some other reputable person known to the court; but such certificate shall not be deemed conclusive evidence, and the court must be satisfied on the point, after a full examination and inquiry.
Rule 3. [3.] Papers shall be filed in the office of the clerk of the county specified in the complaint as the place of trial. And in case the place of trial is changed for the reason that the proper county is not specified, as required
a. These rules were made by the whole court, under the authority of the code, and may be considered as giving construction to the statute. Hand, J., Myers v. Feeter, 4 Pr. R., 240.
b. See note to Rules of Court of Appeals, on page 454, and code, s. 470.
tc. The number within brackets () is the corresponding number of the rule in the rules adopted in 1852.
d. The difference between the present rules and the rules adopted in August, 1852, are pointed out, except where the difference is palpably immaterial.
e. Throughout the present rules, the word circuit is used for circuit court, and the word exceptions for the words bill of exceptions, respectively used in the rules of 1849, and this difference is not noticed as an amendment.
by section 125, the papers on file at the time of the order making such change, shall be transferred to the county specified in such order; and all other papers in the cause shall be filed in the county so specified.
a. The amendment is the words in italic, and restores the words which were struck out on the revision in 1852,
b. Where the county named in the complaint was Ulster, and the defendants entered judgment of nonsuit and filed the roll in Ulster county, and on appeal to the general term at Albany judgment was affirmed, and the defendants entered judg. ment and filed another roll in Albany county, held that it was a violation of this rule, and should have been entered in Ulster county. Andrews v. Durant, 6 Pr. R., 191.
RULE 4. [4.] The several clerks of this court shall keep in their respective offices, in addition to the “judgment book,” required to be kept by $ 279 of the code of procedure, such other books, properly indexed, as may be necessary, to enter the title of civil actions and special proceedings, and the steps taken therein; to enter the minutes of the court; docket judg. ments; enter orders, and all other necessary matters and proceedings; and such other books as the courts of the respective districts, at a general term, may direct.
Rule 5. [5.] On process or papers to be served, the attorney, besides subscribing or endorsing his name, shall add thereto his place of residence; and if he shall neglect so to do, papers may be served on him through the mail, by directing them according to the best information which can conveniently be obtained concerning his residence.
This rule shall apply to a party who prosecutes or defends in person, whether he be an attorney or not.
c. An attorney has the right hinself to determine where he resides for the purpose of this rule, and of having papers served on him; and if papers are sent to him by mail, they must be directed accordingly, provided he has complied with the rule in subscribing and endorsing his papers. Rowell v. McCormick, 1 Code Rep., N. S., 73; 5 Pr. R., 337.
d. The words "place of residence,” in rule 5, must be understood with refer. ence to the name of the post-office to which the papers are to be directed. Ib.
e. Where the plaintiff's attorney omitted to endorse his name and residence on the copy declaration served, and afterwards entered defendant's default for want of an answer, the default was held to be irregular. 2 Pr. R., 28.
See code, s. 410, and note.
RULE 6. [6.] At any time after the day when it is the duty of the sheriff or other officer, to return, deliver, or file any process, undertaking, order, or other paper, by the provisions of the code of procedure, any party entitled to have such act done, may serve on the officer a notice to return, deliver, or file such process, undertaking, order, or other paper, as the case may be, within ten days; or show cause at a special term to be designated in said notice, why an attachment should not issue against him.
RULE 7. [7.] Service of notice of an appearance, or retainer generally, by an attor. ney for the defendant, shall in all cases be deemed an appearance. And the plaintiff, on filing such notice at any time thereafter, may have the appearance of the defendant entered, as of the time when such notice was served.
Q. A notice of retainer is not equivalent to an appearance entered, within the meaning of the act of congress regulating the removal of causes from a State court to the United States court. Field v. Blair, 1 Code Rep. N. S. 292, 361.
b. A notice of bail imports a notice of retainer. 3 Caines R., 133. So does a notice of motion. 1 Wend., 13; and see 2 Hill, 362.
c. Service of an order extending the time to answer with a copy of the affidavit on which the order was made, is equivalent to a notice of appearance. Quin v. Til. ton, 2 Duer, 648.
d. “ It is said in White v. Featherstonhaugh (5 Pr. R., 358), that under the former practice it was well setiled, that when notice of retainer was not served until after default, it might be disregarded; and Lynd v. West (12 Weud. 235) is quoted to that effect. This is contrary to what is believed to have been the practice here,"Mitchell, J, Abbott v. Smith, 8 Pr, R., 463,
e. There may be a special or limited retainer ; see Webb v. Mott, 6 Pr. R., 440, in note to section 139 of code, on page 157, ante.
RULE 8.  Applications may be made, in the manner provided by law, to compel the production and discovery of books, papers, and documents relating to the merits of any civil action pending in this court, or of any defence in such action, in the following cases :
1. By the plaintiff to compel the discovery of books, papers, or documents in the possession or under the control of the defendant, which
may be necessary to enable the plaintiff to frame his complaint, or to answer any pleading of the defendant.
2. The plaintiff may be compelled to make the like discovery of books, papers, or documents, when the same shall be necessary to enable the defendant to answer any pleading of the plaintiff. See Code, s. 388.
Rule 9. [9.] The petition such discovery shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit stating that the books, papers, and documents whereof discovery is sought, are not in the possession nor under the control of the party applying therefor, and that the party making such affidavit, is advised by his counsel, and verily believes, that the discovery of the books, papers, or documents mentioned in such petition, is necessary to enable him to draw his complaint, answer, demurrer, or reply, or to prepare for trial, as the case may be.
Rule 10. (10.) The order granting the discovery shall specify the mode in which the same is to be made,
which may be either by requiring the party to deliver sworn copies of the matters to be discovered, or, by requiring him to produce and deposit the same with the clerk of the county in which the trial is to be had, unless otherwise directed in the order. The order shall also specify the time within which the discovery is to be made. And when papers are required to be deposited, the order shall specify the time that the deposit shall continue.
Rule 11. (11.) The order directing the discovery of books, papers, or documents
, shall operate as a stay of all other proceedings in the cause, until such order shall have been complied with or vacated; and the party obtaining such order, after the same shall be complied with or vacated, shall have the like time to prepare his complaint, answer, reply, or demurrer, to which he was entitled at the making of the order. But the justice, in granting the order, may limit its effect by declaring how far it shall operate as a stay of proceedings.
Rule 12.  (Amended.) Inquests may be taken in actions out of their order on the calendar, in cases in which they were heretofore allowed at the opening of the court, on any day after the first day of the court, provided the intention to take an inquest is expressed in the notice of trial, and a sufficient affidavit of merits shall not have been filed and served.
a. The amendment is the striking out the words “at the circuit" after" taken* in the first line.
b. It should be observed that an inquest can be taken in actions out of their ore der on the calendar, only in cases in which they were heretofore allowed. This limitation first appeared in the rules adopted in 1849. It is material, therefore, to ascertain in what case such inquests were heretofore allowed." c. The earliest rule on the subject is to be found in 3 Juhns. R., 542, as follows:
GENERAL RULE, Nov. 21, 1808. d. “Ordered, that hereafter a plaintiff in any cause, at any circuit court or sittings, may at the opening of the court on each day, or on such days as the presiding judge shall allow, and before the court shall proceed to try any litigated cause, take an inquest, provided the intention of the plaivtiff to take an inquest shall be expressed in the notice of trial, and unless (before a jury are empapnelled to take the idquest) the party defendant or his attorney shall file with the clerk of the circuit or sittiugs an affidavit, satisfactory to the judge presiding at the circuit or sittings, that such defendant has a good and substantial defence, and serve a copy thereof on the opposite party, the defendant shall be liable to pay the costs of the trial, provided the in. quest is afterwards set aside, together with the costs of the application."
e. It will be observed that this rule embraced any causes; and any, as there used, is equivalent to every. The 31st of the supreme court "rules at law " adopted in July, 1847, is as follows:
f. Inquests in causes may be taken at the circuit out of their order on the calendar, at the opening of the court on any day after the first day of the circuit, provided the intention to take an inquest is expressed in the notice of trial, and a sufficient affidavit of merits shall not have been filed and served; and when an inquest shall be regularly taken, the same shall not be set aside except on payment of the costs thereof.” This rule, like that of 1808, seems to embrace every or any cause on the calen. dar. It does not appear that an affidavit of merits was necessary in the practice in chancery; and it seems as is the limitation inserted in the rule adopted in 1849, and subsequently in 1852, was intended to preserve the distinction between what were formerly known as actions at law and suits in equiry; so that in all actions which
prior to the code would have been aations at law, it is necessary to file and serve an affidavit of merits in order to prevent the cause being tried as an inquest out of its order on the calendar; but no affidavit of merits seems necessary in an action which, before the code, would have been a suit in chancery.
a. The rule adopted since the code, omits the provision as to the terms on which an inquest regularly taken is to be set aside ; but it is still the practice in all the courts to set aside an inquest regularly taken, on the production of an affidavit of merits, and on payment of the costs of the inquest, and of the motion to set it aside.
b. In the case of Randall v. Raab (not reported), Mitchell, J. at special term, held that au affidavit of merits was necessary to prevent an inquest in an artion to recover possession of real property (ejectment).
c. In all cases susceptible of such an application, the rules of the supreme court relative to proceedings at circuits should be construed to apply equally to the trial terms of the superior court.” Duer, J. Smith v. Brown, 1 Duer, 665.
Rule 13. (13.) (Amended.) On the trial of issues of fact, one counsel on each side shall examine or cross-examine a witness, and one counsel only on each side shall sum up the cause ; and during such examination the examining counsel shall stand and the testimony if taken down in writing, shall be written by some person other than the examining counsel, unless the justice who holds the court shall otherwise order.
The amendment is the part in italic.
d. An application for a resettlement of a bill of exceptions must be made to a justice of the supreme court at special term, notwithstanding an appeal is pending in the court of appeals; and it is not necessary to apply first to the court of appeals to have the cause remitted to the supreme court before making such application.Whitbeck v. Waine, 8 Pr. R., 433 ; ciling Ren v. Barber, 2 Cow. 408; Lyslie v. Sniffin, 3 Pr. R., 250.
Rule 14. (14.] At the hearing of causes at a general or special term, not more thản one counsel shall be heard on each side, and then not more than two hours each, except when the court shall otherwise order.
Rule 15. [15.] Whenever it shall be intended to move for a review upon the evidence appearing on the trial, when the cause is tried by the court or referee, or to set aside a nonsuit, dismissal of the complaint, or verdict (except for irregularity or surprise, or upon the minutes of the judge), a case shall be prepared by the party intending to make the motion, and a copy thereof shall be served on the opposite party, within ten days after the trial or notice of the judgment, as the case may be; who may, within ten days thereafter, prepare amendments tliereto and serve a copy on the party who prepared the case; who may then, within four days thereafter, serve the opposite party with a notice to appear, within a convenient time before the justice or referee who tried the cause, to have the case and amendments settled. The justice or referee shall thereupon correct and settle the case, as he shall deem to consist with the truth of the facts. The time for settling the case must be specified in the notice, and it shall not be less than four nor more than twenty days after service of such notice. The lines of the case shall be so numbered that each