cise the same jurisdiction as is now possessed and exercised by the circuit court of the 3 March 1863. District of Columbia; and the justices of the court so to be organized shall severally Jurisdiction. possess the powers and exercise the jurisdiction now possessed and exercised by the judges of said circuit court. Any one of said justices may hold a district court of the District court. United States for the District of Columbia, in the same manner and with the same powers and jurisdiction possessed and exercised by other district courts of the United States. Any one of said justices may also hold a criminal court for the trial of all Criminal court. crimes and offences arising within said district, which court shall possess the same powers and exercise the same iurisdiction now possessed and exercised by the criminal court of the District of Columo.a.,

Ibid. 24.

4. General terms of the said supreme court shall be held at the same times at which terms of the circuit court of the District of Columbia are now required to be held, and Terms of the at the same place. District courts and criminal courts shall also be held by one of said courts. justices at the several times when such courts are now required by law to be held, and at the same place.

Ibid. 25.

5. Special terms of said supreme court shall be held by one of said justices, at such time or times as the said court, in general term, shall appoint; non-enumerated Business at spemotions, in all suits and proceedings at law and in equity, shall first be heard and deter- cial terms. mined at such special terms; suits in equity, not triable by jury, shall also be heard and determined at such special terms; but the justice holding such special term may, in his discretion, order any such motion or suit to be heard, in the first instance, at a general term. Any party aggrieved by any order, judgment or decree, made or pro- Appeals to genenounced at any such special term, may, if the same involve the merits of the action or proceeding, appeal there from to the general term of said supreme court, and upon such appeal the general term shall review such order, judgment or decree, and affirm, reverse or modify the same, as shall be just.

ral term.

Ibid. 26.

6. The said court, in general term, shall adopt such rules as it may think proper, to regulate the time and manner of making appeals from the special term to the general Rules of practice. term, and may prescribe the terms and conditions upon which such appeals may be made; such court may also establish such other rules as it may deem necessary, for regulation of the practice of the several courts organized by this act, and from time to time, revise and alter such rules; it may also determine by rule, what motions shall be heard at a special term, as non-enumerated motions, and what motions shall be heard at a general term in the first instance.

Ibid. 7.

7. All issues of fact triable by a jury, or by the court, shall be tried before a single justice; when the trial is by jury, at a circuit court; and when the trial is without a Trial of issues. jury, at a circuit court or special term; issues of law may be tried at a circuit court or special term. At any time after issue, and at least ten days before the sitting of the court, either party may give notice of trial; the party giving the notice shall furnish the clerk, at least four days before the sitting of the court, with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon a calendar, according to the date of the issue.

Ibid. 28.

8. If, upon the trial of a cause, an exception be taken, it may be reduced to writing at the time, or it may be entered on the minutes of the justice, and afterwards settled Bills of excepin such manner as may be provided by the rules of the court, and then stated in writing tion. in a case or bill of exceptions, with so much of the evidence as may be material to the questions to be raised; but such case or bill of exceptions need not be sealed or signed.(b) The justice who tries the cause may, in his discretion, entertain a motion, to be made New trials. on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages: Provided, That such motion be made Appeals. at the same term or circuit at which the trial was had; when such motion is made and heard upon the minutes, an appeal to the general term may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner. 9. A motion for a new trial on a case, or bill of exceptions, and an application for judgment on a special verdict, or a verdict taken subject to the opinion of the court, Hearing of rules shall be heard in the first instance at a general term.

10. Writs and process issued out of the court hereby organized may be tested in the name of any justice of said court.

Ibid. 29.

for new trial, &o Ibid. 10.

Ibid. 11.

11. Any final judgment, order or decree of said court may be re-examined and reversed, or affirmed in the supreme court of the United States, upon writ of error or Jurisdiction of appeal, in the same cases and in like manner as is now provided by law in reference to

(a) The supreme court is a different one from the criminal court, though held by one of the same judges. Ex parte Bradley, 7 Wall. 364.

supreme court of United States. (b) This does not dispense with a regular bill of exceptions. Thompson v. Riggs, 5 Wall, 663.

3 March 1863.

Ibid. 12. Appeals from justices of the peace.

Ibid. 13. Prosecution of pending causes.

Ibid. 14.

the final judgments, orders and decrees of the circuit court of the United States for the District of Columbia. (a)

12. Appeals may be made from the judgments of justices of the peace to the court hereby organized, in like manner, and in the same cases in which such appeals are now allowed to the circuit court of the United States for the District of Columbia; such appeals shall be heard and decided at a special term.(b)

13. All suits and proceedings which, at the time this act takes effect, shall be pending in any of the courts hereby abolished shall be transferred to the courts to be established under the provisions of this act, and may be prosecuted therein with the same effect as they might have been in the court in which the same were commenced; process issued out of any of said courts shall also be returned to the court hereby established.

14. Justices of the peace may be removed by the court to be organized under the Removal of jus provisions of this act, at a general term, after due notice, and an opportunity to be heard in their defence, and for causes to be assigned in the order of removal.

tices.

Ibid. 16. Former courts abolished.

27 June 1864 23. 13 Stat. 196,

Deposit of fees

on commencement of suit.

Ibid. 4.

15. The circuit court, district court and criminal court of the District of Columbia are hereby abolished. All laws and parts of laws relating to said courts, so far as the same are applicable to the courts created by this act, are hereby continued in force in respect to such courts, and all other laws and parts of laws relating to said circuit, district and criminal courts are repealed.

16. At the commencement of every suit in the supreme court of the District of Columbia, the plaintiff shall deposit at least eight dollars with the clerk, to be appropriated toward the costs of the suit; and if the plaintiff recover against the defendant a judgment with costs, and said costs do not amount to eight dollars, the overplus shall be paid back to the plaintiff by the clerk: Provided, That suits may be prosecuted in said court by poor persons, without making the deposit herein prescribed, upon the order of the court, or of one of the justices thereof.

17. The following fees, and no other, shall be allowed to the clerk of said court, and Fees of clerk and the marshal of said district, for the services following:

marshal.

3 March 1865 2 2. 13 Stat. 532.

Exceptions in favor of absent

parties repealed.

1 June 1866 2. 14 Stat. 55.

Salaries of the judges.

28 July 1866 1. 14 Stat. 309.

Ibid. 2.

Adjustment of the clerk's accounts.

Ibid. § 3. Jurisdiction of the court over the clerk's accounts.

Ibid. 4.

For all services rendered by said clerk to the United States, in cases in which the said United States is a party of record, five dollars.

For each marriage license issued by him, one dollar.

For each certificate of official character, including the seal, fifty cents.

For service of any warrant, attachment, summons, capias or other writ (except execution, venire or a summons or subpoena for a witness), one dollar for each person on whom such service may be made.

18. All exceptions in favor of parties beyond the District of Columbia, which may by existing laws be replied or relied on in any action or proceeding brought in said district, are hereby repealed and abrogated: Provided, That this section shall not affect the right of parties in actions now pending, and such as may be brought within three years from the passage of this act.

19. The annual salaries of the chief justice and associate justices of the supreme court of the District of Columbia, instead of the amount now fixed by law, shall be as follows: for the chief justice, four thousand and five hundred dollars, and for each of the associate justices, four thousand dollars.

20. The clerk of the supreme court of the District of Columbia shall pay into the treasury of the United States all the earnings of his office, over and above the necessary expenses of the same and his own compensation.

21. His accounts of said earnings and expenses shall be adjusted by the regular auditor of the court, or by a special auditor to be appointed by the court for the purpose, within thirty days after the first day of January and July, every year; and the auditor shall immediately report his adjustment to the court, with such exceptions thereto as the clerk shall, within four days after the adjustment reported, take and file with the auditor.

22. The court shall pronounce such decree upon said report and exceptions as may seem to it equitable and just; and said decree shall be final, and be binding upon the United States and the clerk. If, upon such account, a balance be found due from the clerk to the United States, the court shall order payment by the clerk into the treasury, and enforce its order by execution, process of contempt or otherwise; and if the clerk refuse to pay the money, shall remove him from office. If a balance be found due from the United States to the clerk, the same shall be paid upon presenting to the treasurer a copy of the decree, duly certified.

23. The clerk shall, as in other cases of judgments to which the United States is a (a) A writ of error does not lie, unless there be a final judg- Wall. 165. ment or decree: what is such final decree. Brown v. Wiley, 4

(b) See infra 90-2.

party, furnish the solicitor of the treasury a copy of the decree immediately after it is pronounced.

28 July 1866.

Ibid. 25.

22 Feb. 1867 1

14 Stat. 408.

24. All other modes of accounting for the earnings of said office are hereby repealed. 25. The bailiffs and criers, who are required by the marshal or courts of the District of Columbia to attend upon the district, circuit or criminal court of said district, shall be paid by said marshal three dollars and fifty cents per day, for each day's attendance, Compensation of instead of two dollars, as now provided by law.

II. PRACTICE.

26. Writs of attachment and garnishments shall be issued by the clerk of the supreme court of the district, without any authority or warrant from any judge or justice, whenever the plaintiff, his agent or attorney, shall file in the clerk's office, whether at the commencement or during the pendency of the suit, an affidavit, supported by the testimony of one or more witnesses, showing the grounds upon which he bases his affidavit, and also setting forth that the plaintiff has a just right to recover against the defendant what he claims in the declaration, and also stating either, first, that the defendant is a non-resident of the district; or, second, that the defendant evades the service of ordinary process by concealing himself or by withdrawing from the district temporarily ; or, third, that he has removed or is about to remove some of his property from the district, so as to defeat just demands against him; and shall also file his (the plaintiff's) undertaking, with sufficient surety or sureties, to be approved by the clerk, to make good all costs and damages which the defendant may sustain by reason of the wrongful suing out of the attachment: Provided, however, That if the defendant, his agent or attorney, shall file an affidavit traversing the said affidavit, the court shall determine whether the facts set forth in said plaintiff's affidavit are true, and that there was just ground for issuing said writ or warrant of attachment; and if the court shall deem the facts do not sustain the affidavit, he shall quash the writ of attachment or garnishment: and this issue may be tried by a judge at chambers on three days' notice. And the thing attached shall not be discharged from the custody of the officer seizing it until the defendant shall deliver, either to the officer or to the clerk, to be filed in the cause, his undertaking, with sufficient surety or sureties, to satisfy and pay the final judgment of the court against him; and in case the defendant be found liable to the plaintiff's claim, in whole or in part, the final judgment shall be that the plaintiff recover against the defendant and his surety or sureties; and if the defendant fail to execute such undertaking, the court may sell the thing attached whenever it is satisfied that it is the interest of the parties that it should be sold before final judgment.

27. Publication may be substituted for personal service of process upon any defendant who cannot be found, in suits for partition, divorce, by attachment, for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens and all other liens against real or personal property, and in all actions at law or in equity which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court.

bailiffs and criers

1 June 1866 2 1.

14 Stat. 54.

Proceedings by attachment.

22 Feb 1867 2 7.

14 Stat. 403.

Service of process

by publication.

Ibid. § 8.

28. No order for the substitution of publication for personal service shall be made till a summons for the defendant shall have been issued and returned "not to be found." Order of publica And when an order for publication shall be made, it shall be in the following or equiva- tion. lent form:

"In the Supreme Court of the District of Columbia, the

C. D.,

V.

defendant.

}

(At law,) (In equity,) No

day of

18-.

On motion of the plaintiff, by Mr. his attorney, it is ordered that the defendant cause his appearance to be entered herein, on or before the first rule day occurring forty days after this day; otherwise the cause will be proceeded with as in case of default."

29. All sales duly made in cases in which publication is substituted for personal Ibid. 29. service of process shall be good and valid, and shall vest any purchaser with a perfect Effect of sales. title.

foreign corp .a

30. In actions against foreign corporations doing business in the District of Columbia, Ibid. 11. all process may be served on the agent of such corporation or person conducting its Process against business aforesaid, or in case he is absent and cannot be found, by leaving a copy tin thereof at the principal place of business in the district; and such service shall be effectual to bring the corporation before the court.

31. Where a suit is brought upon an open account, verified by the plaintiff's or his agent's affidavit, that the amount claimed by the plaintiff is justly payable by the

Ibid. 19.

Judgments by default.

22 February 1887. defendant to the plaintiff, and the defendant fails to defend the suit, the plaintiff may have judgment final by default for said amount, with interest from the day specified in the declaration, without an inquiry of damages. If the affidavit be made before an officer, of whose authority to administer oaths the court cannot take notice, his authority must be verified by the certificate under official seal, if he have one, of the officer having authority to give such certificate.

Ibid. ? 20.

joint debtors.

32. Where money is payable by two or more persons jointly or severally, as by Actions against joint obligors, covenantors, makers, drawers or endorsers, one action may be sustained and judgment recovered against all or any of said parties, by whom the money is payable, at the option of the plaintiff. But an action against one or some of the parties by whom the money is payable may, while the litigation therein continues, be pleaded in bar of another action against another or others of said parties.

Ibid. ? 22.

Costs on recovery of a sum below the jurisdiction.

2 July 1864 1. 13 Stat. 374.

Parties may be examined by their opponents.

Exceptions.

3 March 1865 1. 13 Stat. 528.

Depositions in criminal cases.

Ibid. 22.

Commissioners.

33. If the declaration state a cause of action of which the court has jurisdiction, but the verdict finds the money payable by the defendant to the plaintiff to be less than the lowest sum of which the court has jurisdiction, the plaintiff shall have judgment for the amount found due to him from the defendant, but without costs.

III. EVIDENCE.

34. On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or other proceeding in any court of justice, in the District of Columbia, or before any person having by law, or by consent of parties, authority to hear, receive and examine evidence within said district, the parties thereto, and the persons in whose behalf any such action or other proceeding may be brought or defended, and any and all persons interested in the same, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said action or other proceeding: Provided, That nothing herein contained shall render any person who is charged with any offence in any criminal proceeding competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, or in any proceeding instituted in consequence of adultery; nor shall any husband be compellable to disclose any communication made to him by his wife during the marriage, nor shall any wife be compellable to disclose any communication made to her by her husband during the marriage.

IV. DEPOSITIONS.

35. Any defendant in a criminal case, in the District of Columbia, either after preliminary examination, indictment or information, may examine witnesses on commission in such manner as is hereinafter prescribed.

36. A defendant wishing to take the deposition of a witness residing more than one hundred miles from the city of Washington may select any of the following officers as a commissioner to take such deposition: the clerk or judge of any court of record, or any notary public, or any consul of the United States, either by the name of office of such officer, or by his individual name and official style; and the name of the court of which such constituted commissioner is clerk or judge, and the name of the state and county, or if without the United States the name of the state and town or city, in which such notary or consul resides must be stated in the notice and in the commission.

Ibid. 23. 37. Five days' notice must be given by a defendant, or his or her attorney, of the time Notice to district when a commission will be sued out of the office of the clerk of the criminal court for the District of Columbia for taking the deposition of the witness (giving the name of the witness), which notice must be accompanied with a copy of the interrogatories to be asked such witness.

attorney.

Ibid. 4.

38. At or before the time fixed in the notice, the district attorney may file crossCross-interroga- interrogatories; but if he fail so to do, the clerk shall file the following:

tories.

Ibid. 25.

I. Are all of your statements in the foregoing answers made from your personal knowledge; and if not, do your answers show what are made from your personal knowledge, and what from information, and the source of that information? If not, now show what is from information, and give its source.

II. State everything you know concerning this case favorable to either the government or the defendant.

39. The notice and copy of interrogatories may be served and returned in the same Service of notice, manner and by the same officers or persons, as is provided by law for the service and return of a summons or subpoena in civil actions within the District of Columbia.

&r.

40. The commission shall issue in the name of the criminal court, and under its seal, 3 March 1865 2 6. and must be signed by the clerk, and need contain nothing but the authority con- Issuing of comferred upon the commissioner and instructions to guide him, a statement of the cause mission. in which the testimony is to be used, and a copy of all the interrogatories filed, appended.

Ibid. 7.

41. The person before whom any of the depositions above contemplated are taken must cause the interrogatories appended to the commission to be written out, and the Duties of com answers thereto to be inserted immediately underneath the respective questions; the missioner. whole, when completed, being read over by or to the witness, must be by him or her subscribed and sworn to, in the usual manner.

42. All exhibits produced before the person taking the deposition, or proved or referred to by any witness, or correct copies thereof, must be appended to the deposi- Exhibits to be tions, and returned with them, unless sufficient reasons be shown for not so doing.

Ibid. ? 8.

annexed.

Ibid. 9.

43. The person taking the deposition shall attach his certificate thereto, stating that it was subscribed and sworn to by the deponent at the time and place therein mentioned; Commissioner's the whole, including the commission and interrogatories, must then be sealed up and certificate. returned to the clerk of the criminal court of the District of Columbia, by mail, unless the defendant and the district attorney agree upon some other mode; and when received by said clerk, he shall open the package and place the deposition on file in his office. 44. Unimportant deviations from any of the above directions shall not cause the deposition to be excluded, where no substantial prejudice could be wrought to the government by such deviation.

45. Subject to the regulations herein before contained, the court may establish further rules for taking depositions and all other acts connected therewith.

Ibid. 2 10.

Ibid. 11.

15 Stat. 324.

commissions from

tions.

46. Any party to any suit depending in any court of any state or territory of the 3 March 1869 1 United States, or of any foreign nation, may obtain the testimony of any witness residing in, or temporarily within the District of Columbia, to be used in such suit. Execution of When a commission to take such testimony shall have issued from the court in which other states or such suit is pending, or a notice shall have been given according to the rules of practice from foreign naprevailing in such court, on producing the same to a justice of the supreme court of the District of Columbia, and on due proof being made to such officer that the testimony of any witness residing in the district, or temporarily within it, is material to the party desiring the same, such officer shall issue a summons to such witness, requiring him to appear before the commissioners named in such commission or notice, to testify to such suit. Such summons shall specify the time and place at which such witness is required to attend, which shall be within the District of Columbia.

47. If a suit be pending in any court of any state or territory of the United States, or of any foreign nation, and it shall satisfactorily appear by affidavit, to any officer named in the next preceding section, or to the judge of the orphans' court, or any commissioner for the taking of depositions appointed by the supreme court of the

district

I. That any person residing or temporarily dwelling in the District of Columbia is a material witness for either party to such suit:

II. That no commission or notice to take the testimony of such witness has been issued or given: and

III. That according to the course and practice of the court in which such suit is pending, the deposition of a witness taken without the presence and consent of both parties will be received on the trial or hearing of such suit:

Ibid. 2.

When process to

issue for wit

nesses.

Ibid 23.

Such officer shall issue his summons requiring such witness to appear, before him, at a place within the district, at some reasonable time, to testify in such suit. 48. The officer before whom such witness shall appear shall take down his testimony in writing, and shall certify and transmit the same to the court before which such suit How testimony is pending, in such manner as the practice of the court may require. If any person to be taken. shall refuse or neglect to appear at the time and place mentioned in the summons issued Process of conin accordance with this act, or if, on his appearance, he shall refuse to testify, he shall be liable to the same penalties as would be incurred for a like offence, on the trial of a suit.

tempt.

Ibid. 4.

49. Every witness appearing and testifying under this act shall be entitled to receive, from the party at whose instance he has been summoned, the fees now provided by law Fees of witnesses. for each day he shall give attendance.

V. SET-OFF.

14 Stat. 403.

50. Mutual debts between the parties to an action, or between the testator or intes- 22 Feb. 1867 2 5. tate of both parties, or either party, may be set off against each other, by plea in bar,