been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you may leave the same at Washington, on the Monday next, in the said Supreme Court to be then and there held, that the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein, to correct that error, what of right, and according to the laws and customs of the United States, should be done. Witness the Honorable Supreme Court, the day of Chief Justice of the said in the year of our Lord one thousand eight hundred and or District of clerk of the Supreme Court of the United States, Iclerk of the Circuit Court for the CITATION THEREON. United States of America, ss. To GREETING: You are hereby cited and Monday of next, admonished to be and appear at a Supreme Court of the United States to be holden at Washington on the pursuant to a writ of error, filed in the clerk's office of the Circuit Court of the United States for the district of wherein is plaintiff, and you are defendant in error, to show cause, if any there be, why the judgment in the said writ of error mentioned, should not be corrected, and speedy justice should not be done to the parties in that behalf. Witness, the Honorable Supreme Court of the United States, this Chief Justice of the said day of in the year of our Lord, one thousand eight hundred and Chief Justice (or one of the Justices) of the willing," I used the following clause: "and it being fit that the error, if any there hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, you are hereby commanded." But it is understood that the form above given is that devised and adopted in pursuance of the 9th section of the Process Act of 1792 (ch. 36: 1 Stat. at Large, 275), and though I do not doubt that this modification would be an improvement, and do not believe it would be deemed objectionable by the Supreme Court, I deem it more respectful and discreet, to discard it. 1 When a State is defendant in error, the citation is addressed to such State, and is, as we have seen, served on the governor and attorney-general of the State; and in To the citation, before it is filed in the office of the clerk of the court to which it is directed, there must be annexed an affidavit of the service on the defendant in error personally, of a true copy, stating the day of service. WRIT OF ERROR TO A DISTRICT COURT. United States of America, ss. The President of the United States, to the Judge of the District Court of the United States for the District of GREETING: Because in the record and proceedings, and also in the rendition of the judgment of a plea which is in the said court, before you, between and a manifest error hath hapas by pened, to the great damage of the said complaint appears. We being willing that the error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Circuit Court of the United States, together with this writ, so that you may have the same at in the said district, on the day of next, in the said Circuit Court to be then and there held, that the record and proceedings aforesaid being inspected, the said Circuit Court may cause further to be done therein, to correct that error, what of right, and acording to the laws and customs of the United States, should be done. Witness the Honorable Supreme Court of the United States, the Chief Justice of the day of in the year of our Lord one thousand eight hundred and Clerk of the Circuit Court of the United States for the District of The form of the citation is the same as the case of a writ of error to a circuit court, mutatis mutandis, and it must be accompanied, on filing, with a like affidavit of service. such case the phraseology is, wherein State of is plaintiff, and the said is defendant in error; and so, when the United States are defendants in error, and the service is to be made on the District Attorney. WRIT OF ERROR TO A STATE COURT. United States of America, ss. The President of the United States, to the Honorable, the Judges of the Court of Appeals of the State of New York (or otherwise, as the case may be), GREETING: wherein Because in the record and proceedings, as also in the rendition of the judgment, of a plea which is in the said Court of Appeals, before you, or some of you, being the highest court of law or equity of the said State, in which a decision could be had in the said suit, between and was drawn in question the validity of a treaty (or statute) of (or an authority exercised under), the United States, and the decision was against its validity; [or, wherein was drawn in question the validity of a statute of (or an authority exercised under), the said State, on the ground of its being repugnant to the constitution (treaties, or laws) of the United States, and the decision was in favor of such its validity]; [or wherein was drawn in question the construction of a clause of the constitution (or of a treaty or statute) of (or of a commission held under) the United States, and the decision was against the title, right, privilege, or exemption, specially set up or claimed under such clause of the said constitution (treaty, statute, or commission),] a manifest error hath happened, to the great damage of the said as by complaint appears. We being willing that the error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then, under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you may have the same at Washington, on the Monday of next, in the said Supreme Court to be then and there held, that the record of proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error, what of right, and according to the laws and customs of the United States, should be done. Witness the Honorable Supreme Court, the Chief Justice of the said day of ', in the year of our Now the first Monday of December Lord, one thousand eight hundred and or the District of Clerk of the Supreme Court of the United States, The form of the citation and the proof of service is the same as in the preceding cases, mutatis mutandis. ASSIGNMENT OF GENERAL ERRORS, IN THE SUPREME COURT, IN A JUDGMENT FOR THE PLAINTIFF IN THE COURT BELOW. Supreme Court of the United States. C. D. v. A. B. In Error. Of December Term, in the year of our Lord one thousand eight hundred and Afterwards, to wit, on the first Monday of December, in this same term, before the justices of the Supreme Court of the United States, at the Capitol in the city of Washington, comes the said C. D., by his attorney, and says that in the record and proceedings aforesaid, there is manifest error in this, to wit [that the declaration aforesaid, and the matters therein contained, are not sufficient in law for the said A. B. to have or maintain his aforesaid action thereof against the said C. D.; there is also error in this, to wit], that by the record aforesaid it appears that the judgment aforesaid given, was given for the said A. B. against the said C. D., whereas, by the law of the land, the said judgment ought to have been given for the said C. D. against the said A. B.; and the said C. D. prays that the judgment aforesaid may be reversed, annulled and altogether held for nothing, and that he may be restored to all things which he hath lost by occasion of the said judgment, &c. Attorney for Plaintiff in Error. When the judgment of the court below is in favor of the defendant, omit the allegation of insufficiency of the declaration, included in brackets. Monday of December in December term, in the year of our Lord one the said A. B., by his thousand eight hundred and attorney, freely comes here into court, and says, that there is no error, either in the record and proceedings aforesaid, or in the giving of the judgment aforesaid; and he prays that the said Supreme Court of judicature, before the justices thereof now here, may proceed to examine, as well the record and proceedings aforesaid, as the matters aforesaid above assigned for error; and that the judgment aforesaid, in form aforesaid given, may be in all things affirmed, &c. Attorney for Defendant in Error. When the writ of error is to the circuit court, the forms are the same, mutatis mutandis. III. PROCEEDINGS TO TAKE TESTIMONY DE BENE ESSE. AFFIDAVIT TO OBTAIN AN ORDER FOR THE EXAMINATION OF A WITNESS IN BEHALF OF THE PLAINTIFF. [When the application is in behalf of the defendant, there will be no difficulty in making the required alterations.] Circuit Court of the United States for the Circuit and District of A. B., &c., being sworn, says that he is the plaintiff in the above entitled cause; that he is advised by his counsel and verily believes, that the testimony of E. F., at present of mariner (or as the 1 When the deposition is to be taken out of the district in which the suit is pending, the affidavit may, and in strictness ought to be made in the district in which the proceeding is to take place. In practice it is usually, though perhaps not necessarily, sworn to before the officer to whom the application is made to take the examination. But in whatever district it is sworn to, the name of that district should be used at the beginning of it. |