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RULES OF PRACTICE
COURTS OF EQUITY OF THE UNITED STATES.
UNDER the authority given to this Court, by the Act of May 8th, 1792, c. 137. s. 2., the following Rules were ordered by the Court, at the present term, to be the Rules of Practice for the Courts of Lquity of the United States:
--- RULE I.
Rules shall be held monthly in the Clerk's office on the first Monday in every month, for the purpose of entering all proceedings and orders which may be entered at the rules, and which are not taken or made in open Court. The rules shall be held under the direction of the Clerk ; but either of the Judges of the Court may make or allow any special orders in any cause, not inconsistent with the regulations herein prescribed, which shall be entered in the rule book, and take effect accordingly.
All process shall be made returnable to the next succeeding term, or to any intermediate rule day, at the election of the party praying the same, and the return of the said process “executed” shall be effectual whereon to ground any subsequent proceedings. If the party be not found, a copy served by the person leaving the same shall be left with his wife, or any free white person who is a member of his or her family, at his or her dwelling-house or usual place of abode, and the truth of the case shall be returned ; and where such process shall not be executed, the Clerk is directed to issue other similar process, if the same be required by the party at whose instance the original process was sued out; and if upon such second process the party be not found, a copy shall be again left in like manner as is hereinbefore directed, and upon a second return that the party is not found, and that a copy has been left as herein directed, the same proceedings may be had as on process returned executed.
Where any person, either plaintiff or defendant, in any suit, shall be dead, it shall be lawful for the Clerk, during the recess of the Court, upon application, to issue process to bring into Court the representative of such deceased person.
The plaintiff shall file his bill before or at the time of taking out the subpoena.
The plaintiff may amend his bill before the defendant or his attorney or solicitor hath taken out a copy thereof, or in a small matter afterwards, without paying costs; but if he amend in a material point after such copy obtained, he shall pay the defendant all costs occasioned thereby,
The day of appearance shall be the rule day after the process is returned executed, or after the second return of a copy left if the process shall not be executed, when the process is returnable to the rules, or the rule day next succeeding the term, where the process shall be returnable to a term of the Court; and if the defendant shall not appear and file his answer within three months after the day of appearance, and after the bill shall have been filed, the plaintiff may proceed to take his bill for confessed, and the matter thereof shall be decreed accordingly ; which decree shall be absolute, unless cause be shown at the term next succeeding that to which the process shall be returned executed.
If the defendant cannot be found, it shall be sufficient service of any decree nisi, to leave a copy thereof with his wife, or any free white person who is a member of his or her family; and if no such person be found, then it shall be sufficient service to publish the same in such paper of the District as may be designated by the Court for such time as the Court shall direct.
All process shall be executed by a sworn officer, or affidavit must be made of the service thereof, when executed by any other person.
Every defendant may swear to his answer before any justice or judge of the United States, or a commissioner or master, or other person appointed by the Court, or judge of any Court of a State or Territory, or justice of the peace, or notary public of any State or Territory.
If the defendant does not file his answer within three months after the subpoena be returned executed, or after a second return of a copy left having been made at least three months, the plaintiff may either proceed on his bill as confessed, or have a general commission to take depositions, or he may move the Court for an attachment to bring in the defendant to answer interrogatories, at his election, and may proceed to a hearing in the two last cases as if the answer had been filed and the cause was at issue. Provided that the Court may, on cause
shown, allow the answer to be filed, and grant a further day for such hearing. And when a party is in custody on such writ of attachment, he shall be detained in custody until he shall file his answer, or be discharged by order of the Court or one of the judges thereof.
No special replication to an answer shall be filed but by leave of the Court, or one of the judges thereof, for cause shown ; and if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without costs at the discretion of the Court.
When a cross bill shall be exhibited, the defendant or defendants to the first bill shall answer thereto, before the defendant or defendants to the cross bill shall be compelled to answer such cross bill.
RULE XIII. The complainant shall put in the general replication, or file exceptions within two calendar months after the answer shall have been put in. If he fails so to do, the defendant may leave a rule to reply with the clerk of the Court, which being expired, and no replication or,exceptions filed, the suit may be dismissed with costs ; but the Court may, for cause, order the same to be retained on payment of costs.
If the plaintiff's attorney or solicitor shall except against any answer as insufficient, he may file his exceptions, and leave a rule with the clerk to make a better answer within two calendar months ; and if within that time the defendant shall put in a sufficient answer, the same shall be received without costs ; but if any defendant insists on the sufficiency of his answer, or neglects or refuses to put in a sufficient answer, or shall put in another insufficient answer, the plaintiff may set down his exceptions to be argued at the next term ; and after the expiration of that rule, or any second insufficient answer put in, no farther or other answer shall be received but on payment of costs.
RULE XV. If upon argument the plaintiff's exceptions shall be overruled, or the defendant's answer adjudged insufficient, the plaintiff shall pay to the defendant, or the defendant to the plaintiff, such costs as shall be allowed by the Court.
RULE XVI. Upon a second answer being adjudged insufficient, costs shall be doubled by the Court, and the defendant may be examined upon interrogatories, and committed until he or she answer them; or the plaintiff may move the Court to take so much of his bill as is not answered for confessed, and may file his replication, obtain commissions, and proceed to hearing in the usual manner.
Rules to plead, answer, reply, rejoin, or other proceedings not before particularly mentioned, when necessary, shall be given from month to month with the clerk in his office, and shall be entered in a rule book for the information of all parties, attorneys, or solicitors concerned therein, and shall be considered as sufficient notice thereof.
The defendant may at any time before the bill is taken for confessed, or afterwards with the leave of the Court, demur or plead to the whole bill, or part of it, and he may demur to part, plead to part, and answer as to the residue ; but in any case in which the bill charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea, and explicitly denying the fraud and combination, and the fact on which the charge is founded. YoL. VIL