SUPREME COURT RULES. ADOPTED AUGUST 5TH, 1852. ORDERED. That the following Rules shall commence and take effect on the first day of October, 1852. RULE 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 an examination, he must prove to the court: 1. That he is a citizen of the United States, and that he is twentyone years of 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] (Amended.) 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,* the * These rules were made by the whole court, under the authority of the code, and may be considered as giving construction to the statute. Per Hand, J., in Myers v• Feeter, 4 Pr. R., 240. See note to rules of court of appeals, on page 454, and code, s. 470. The number within brackets [] is the corresponding number of the rule, in the rules adopted in 1849. The difference between the present rules and the rules adopted in August, 1849, are pointed out, except where the difference is palpably immaterial. 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. 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. The words, as required by section 125 of the code, were struck out in the revision of 1852 where the asterisk is placed. See Andrews v. Durant, 6 Pr. R., 191; and Code, s. 278, n. 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. An attorney has the right himself 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. The words "place of residence," in rule 5, must be understood with reference to the name of the post-office to which the papers are to be directed. Ib. See code, s. 410, and note. 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. 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. See index to this work; title, SHERIFF. RULE 7. [7.] Service of notice, of an appearance or retainer generally by an attorney 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. 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. 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. There may be a special or limited retainer; see Webb v. Mott, 6 Pr. R., 440, in note to section 128 of code, on page 116, ante. RULE 8. [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 for 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. [12.] Inquest may be taken at the circuit 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 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. See note on page 271, ante, and 5 Pr. R., 14-236-238 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,* unless the justice who holds the court shall otherwise order. The words, to the jury, are struck out were the asterisk is placed, and the words, issues of fact substituted for the words, causes at the circuit. RULE 14. [14.] (Amended.) At the hearing of causes at a general or special term, not more than one counsel shall be heard on each side, and then not more than two hours each, except when the court shall otherwise order. The amendment is the insertion of the words in italic. RULE 15. [15] (Amended.) 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 thereto 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 copy shall correspond. Cases reserved for arguments and special verdict shall be settled in the same manner. The amendment is the insertion of all the parts in italic. A bill of exceptions should be settled, signed, and sealed by the justice or court to whose decision the exceptions were taken. Morse v. Evans, 6 Pr. R., 445. Law v. Jackson, 8 Cow., 746. Where a justice of the supreme court dies pending the settlement of a bill of exceptions taken to his decision, the party will be allowed to make a case containing the exceptions, which may be settled by any justice of the court. Ib. When a case and when a bill of exceptions is necessary,-Hastings v. McKinley, 3 Code Rep., 10. Where any exception is taken at the trial, the party may make a case presenting such exceptions. Huff v. Bennett, 2 Sand. S. C. R., 703. A bill of exceptions will only lie to review a decision made at the trial of the cause, and if it be so framed as to show that the exception was taken to a question in banc made after the trial, an appellate court cannot look into it. Onondaga Co. Mut. Ins. Co. v. Minard, 2 Coms., 98. A bill of exceptions should give a plain and concise statement of the facts out of which the questions of law arise, and the evidence should not be set forth in detached and scattered parcels. Price v. Powell, 3 Coms., 322. The practice of inserting the judge's charge in extenso, in a bill of exceptions is improper. Bulkeley v. Keteltas, 4 Sand. S. C. R., 450. "Where a record [bill of exceptions], is itself contradictory in its parts, we must for the furtherance of justice adopt that construction, if practicable, which will make sensible and consistent. Wooten v. Wingate, 6 Sme. & M., 274. RULE 16. [16.] (Amended.) If the party shall omit to make the case within the time above limited, he shall be deemed to have waived his right thereto; and when a case is made and the parties shall omit, within the several times above limited, the one party to propose amendments and the other to notify an appearance before the justice or referee, they shall respectively be deemed, the former to have agreed to the case as proposed, and the latter to have agreed to the amendments as proposed. The amendment is the insertion of the words, or referee. RULE 17. [19.] (Amended.) Where a party makes a case or exceptions, he shall procure the same to be filed, within ten days after the same shall be settled, or it shall be deemed abandoned. RULE 18. [20.] (Amended.) When a party shall be entitled to turn a case into a special verdict, or exceptions, he shall have thirty days after notice of the decision thereon, to prepare and serve such special verdict or exceptions. The party upon whom the same shall be served, shall have twenty days to prepare and serve amendments; and in case such amendments shall not be agreed to, the same shall be settled by one of the justices of the court, on a notice to be given within ten days after service of such amendments. The amendment is the substitution of the words in italic for the words, When there shall be a stipulation in a case, giving either party leave to turn the same into a special verdict or bill of exceptions, the party to whom the right shall be reserved. |