attend; provided, if the witness shall refuse to sign the said deposition, then the examiner shall sign the same; and the examiner may, upon all examinations, state special matters to the court as he shall think fit, and any question or questions which may be objected to, shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality or relevancy of the questions, and the court shall have power to deal with the costs of incompetent, immaterial or irrelevant depositions, or parts of them, as may be just.

The compulsory attendance of witnesses, in case of refusal to attend, to be sworn, or to answer any question put by the examiner, or counsel or solicitor, the same practice shall be adopted as is now practised with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories.1

Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause.

When the examination of witnesses before the examiner is concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record, in the same mode as prescribed in the 30th section of the act of congress, September 24, 1789.

Testimony may be taken on commission in the usual way by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge.'

1 The language of this paragraph, it will be observed, is inaccurate. It is copied verbatim, however, from the first volume of Mr. Black's Reports.

IV.

RULES OF THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.

I.

Attorneys and counselors of the supreme court, and solicitors and counselors of the court of chancery of the State of New York, may, on motion in open court, or on presentation of their licenses to the clerk in vacation, be admitted of course to the same degrees in this court; and attorneys and solicitors of the said courts may, also, in like manner be admitted as proctors; and counselors of the said courts may be admitted as advocates on the admiralty side of this court.

II.

All persons who had been admitted and were entitled to practice as attorneys, counselors, solicitors, proctors or advocates, in the district court of the United States for the northern district of New York, on the third day of March, eighteen hundred and thirty-seven, shall be entitled to practice in the like capacity in this court.

III.

Grand and petit jurors, to serve at the session of the court required by law to be held at Albany, shall be taken alternately from the counties of Albany and Rensselaer; and those to serve at the session required to be held at Canandaigua, shall be taken from the county of Ontario; and they shall be drawn, summoned and returned in the manner prescribed by the rules of the district court for the northern district of New York, for the drawing, summoning and returning of jurors to serve therein.

[Rules IV and V, obsolete.]

VI.

In cases not provided for by the rules of this court, the rules of the district court for the northern district of New York, so far as the same

are, in their nature applicable, are to be considered as rules of this

court.

VII.

In cases of opposition of opinion between the judges, whether in civil or criminal cases, either party may, within four days after such opposition of opinion occurs, serve on the other party a statement in writing of the point or points of disagreement, and also of such facts and of so much of the pleadings in the case as are necessary to present the said point or points with clearness and precision; and if no amendments are proposed thereto within two days, such statement shall be filed and shall be engrossed by the clerk and certified under the seal of this court to the supreme court. When amendments are proposed, such statement and amendments shall be submitted to the court for settlement, like a case or bill of exceptions.

VIII.

All general rules of practice heretofore made are abrogated.

[The foregoing rules, except the last, were adopted in 1841. Those which follow were adopted in 1848; and relating as they do exclusively to one branch of practice, they were numbered as a distinct set from one onward, and are accordingly so numbered here. Though writs of error are not named, it is presumed the first four rules would be held applicable to them also.]

IX.-1854.

Ordered, That the clerk of this court be, and he is hereby vested with general power to name commissioners in commissions to be issued, to take testimony, in like manner that the court or judge thereof can now do by the 67th Equity rule, prescribed by the supreme court of the United States.

Rules regulating Appeals from the District Court.-June Term, 1848.

I.

The transcript to be sent to this court, on appeal thereto from a sentence or decree of the district court, may be certified by the clerk of the latter court, under his hand and the seal of the court.

II.

Eight days' notice of hearing on appeal shall in all cases be given by the service thereof on the adverse party, or on his proctor.

III.

When an appeal from a decree of the district court is interposed twenty days before the next stated session of this court, it may be noticed for hearing at such session by either party.

There was formerly a rule constituting the first judges and clerks of counties commissioners of the court, which was abrogated in 1858.

IV.

When an appeal from a decree of the district court is interposed less than twenty days before the next stated session of this court, the appellee may, at his option, notice the cause for hearing at such session, on the first or other day thereof; or have the cause continued until the next stated session.

Transcripts of the depositions taken in any cause in the district court, according to law-whether de bene esse under the acts of congress, or on commission-and read at the hearing of the cause in that court, may be transmitted to this court on appeal, and read by either party as evidence at the hearing of the cause in this court.

VI.

A copy of the notes taken by the judge, or under his direction, by the clerk of the district court, of the evidence of witnesses examined orally therein, shall be certified and transmitted to this court on appeal, along with the transcript of the record and other proceedings in the cause, and shall be admitted to prove the evidence given by such witnesses; but nothing herein contained shall be construed to abridge the right of the parties to re-examine such witnesses in this court, if they shall see fit to do so.

V.

RULES OF THE DISTRICT COURT OF THE UNITED STATES IN AND FOR THE NORTHERN DISTRICT OF NEW YORK.

I.

The clerk of this court shall reside and keep his office at Utica, until otherwise ordered by the court.1

II.

Proctors of any circuit or district court of the United States, attorneys of the supreme court, and solicitors of the court of chancery of the State of New York, may, on motion in open court, or on presentation of their licenses to the clerk in vacation, be admitted attorneys and proctors of this court; and counselors and advocates of any circuit or district court, and counselors of the said supreme court and court of chancery, may, in like manner, be admitted counselors and advocates of this court, of course, on taking the oath or affirmation prescribed by the third rule of this court.

III.

All persons admitted to practice in this court, shall in open court take either an oath or affirmation of the tenor following, viz: I

do solemnly swear (or affirm as the case may be) that I will demean myself as attorney (or counselor, solicitor, proctor, or advocate, as the case may be), of this court, uprightly and according to law, and that I will support the constitution of the United States.

IV.

Every attorney, proctor and solicitor of this court, who does not reside in Utica, shall have an agent residing there. But if such attorney, proctor or solicitor has an agent in the supreme court of the state residing there, he shall be considered the agent of such attorney, proctor or solicitor in this court. The appointment of agents in this court shall be in writing, signed by the principal, and filed in the office

1By an order made at the January term, 1853, the clerk is required to keep his office at the city of Buffalo, where it is now kept.