§ 44

(Suits in equity under interstate commerce laws; expedition of suits)

Note to Subdivision (d). This modifies U. S. C., Title 28, former § 874 (Supersedeas). See Rule 36 (2), Rules of the Supreme Court of the United States, which governs supersedeas bonds on direct appeals to the Supreme Court, and Rule 73 (d), of these rules, which governs supersedeas bonds on appeals to a circuit court of appeals. The provisions governing supersedeas bonds in both kinds of appeals are substantially the same.

Note to Subdivision (e). This states the substance of U. S. C., Title 28, formerly § 870 (now § 2408) (Bond; not required of the United States).

Note to Subdivision (f). This states the substance of U. S. C., Title 28, former § 841 (Executions; stay of one term) with appropriate modification to conform to the provisions of Rule 6 (c) as to terms of court.

NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENT TO RULES

Note. Subdivision (a). [This subdivision not amended]. Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U. S. C. Appendix, § 501 et seq. [§§ 523, 524], provide under certain circumstances for the issuance and continuance of a stay of execution of any judgment or order entered against a person in military service. See Bowsman v. Peterson, D. Neb. 1942, 45 F. Supp. 741. Section 201 of the Act [50 U. S. C. App. § 521] permits under certain circumstances the issuance of a stay of any action or proceeding at any stage thereof, where either the plaintiff or defendant is a person in military service. See also Note to Rule 64 herein.

Subdivision (b). This change was necessary because of the proposed addition to Rule 59 of subdivision (e).

Subdivision (h). In proposing to revise Rule 54 (b), the Committee thought it advisable to include a separate provision in Rule 62 for stay of enforcement of a final judgment in cases involving multiple claims.

AMENDMENTS

1961-The amendment adopted Apr. 17, 1961, eliminated words "on some but not all of the claims presented in the action" which followed "final judgment."

1948-The amendment effective October 1949 deleted at the end of subdivision (g) the following language which originally appeared after the word "entered": "and these rules do not supersede the provisions of Section 210 of the Judicial Code, as amended, U. S. C., Title 28, former § 47a, or of other statutes of the United States to the effect that stays pending appeals to the Supreme Court may be granted only by that court or a justice thereof."

CROSS REFERENCES

Deposit of bonds or notes of United States in lieu of surety, see section 15 of Title 6, Official and Penal Bonds. Execution, see rule 69.

Security not required of United States, see section 2408 of this title.

RULE 63.-DISABILITY OF A JUDGE

If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.

NOTES OF ADVISORY COMMITTEE ON RULES This rule adapts and extends the provisions of U. S. C., Title 28, former § 776 (Bill of exceptions; authentication; signing of by judge) to include all duties to be performed by the judge after verdict or judgment. The statute is therefore superseded.

CROSS REFERENCES

Findings of fact and conclusions of law, see rule 52. New trial, see rule 59.

FEDERAL RULES OF CRIMINAL PROCEDURE Disability of judge, see rule 25, Title 18, Appendix, Crimes and Criminal Procedure.

VIII.—PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

RULE 64.-SEIZURE OF PERSON OR PROPERTY

At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought, subject to the following qualifications: (1) any existing statute of the United States governs to the extent to which it is applicable; (2) the action in which any of the foregoing remedies is used shall be commenced and prosecuted or, if removed from a state court, shall be prosecuted after removal, pursuant to these rules. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent remedies, however designated and regardless of whether by state procedure the remedy is ancillary to an action or must be obtained by an independent action.

NOTES OF ADVISORY COMMITTEE ON RULES

This rule adopts the existing Federal law, except that it specifies the applicable State law to be that of the time when the remedy is sought. Under U. S. C., Title 28, former § 726 (Attachments as provided by State laws) the plaintiff was entitled to remedies by attachment or other process which were on June 1, 1872, provided by the applicable State law, and the district courts might, from time to time, by general rules, adopt such State laws as might be in force. This statute is superseded as are district court rules which are rendered unnecessary by the rule. Lis pendens. No rule concerning lis pendens is stated, for this would appear to be a matter of substantive law affecting State laws of property. It has been held that in the absence of a State statute expressly providing for the recordation of notice of the pendency of Federal actions, the commencement of a Federal action is notice to all persons affected. King v. Davis, 137 Fed. 198 (W. D. Va., 1903). It has been held, however, that when a State statute does so provide expressly, its provisions are binding. United States v. Calcasieu Timber Co., 236 Fed. 196 (C. C. A. 5th, 1916).

For statutes of the United States on attachment, see e. g.:

§ 759

§ 760

§ 843

§ 844

(Calling of bail in Kentucky)

(Clerks may take bail de bene esse)
(Imprisonment for debt)

(Imprisonment for debt; discharge according
to State laws)

§ 845 (Imprisonment for debt; jail limits) For statutes of the United States on replevin, see, e. g.: U. S. C., Title 28, former:

§ 747 (Replevy of property taken under revenue laws)

SUPPLEMENTARY NOTE OF ADVISORY COMMITTEE REGARDING THIS RULE

Note. Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U. S. C. Appendix, § 501 et seq. [§§ 523, 524], provide under certain circumstances for the issuance and continuance of a stay of the execution of any judgment entered against a person in military service, or the vacation or stay of any attachment or garnishment directed against such person's property, money, or debts in the hands of another. See also Note to Rule 62 herein.

CROSS REFERENCES

Execution, see rule 69.

RULE 65.-INJUNCTIONS

(a) Preliminary injunction.

(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.

(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a) (2) shall be so construed and applied as to save the parties any rights they may have to trial by jury.

(b) Temporary restraining order; notice; hearing; duration.

A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required.

Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

(c) Security.

No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof.

The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. (d) Form and scope of injunction or restraining order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

(e) Employer and employee; interpleader; constitutional cases.

These rules do not modify any statute of the United States relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee; or the provisions of Title 28, U. S. C. § 2361, relating to preliminary injunctions in actions of interpleader or in the nature of interpleader; or Title 28, U. S. C. § 2284, relating to actions required by Act of Congress to be heard and determined by a district court of three judges. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec.

29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966.

NOTES OF ADVISORY COMMITTEE ON RULES

Note to Subdivisions (a) and (b). These are taken from U. S. C., Title 28, former § 381 (Injunctions; preliminary injunctions and temporary restraining orders).

Note to Subdivision (c). Except for the last sentence, this is substantially U. S. C., Title 28, former § 382 (Injunctions; security on issuance of). The last sentence continues the following and similar statutes which expressly except the United States or an officer or agency thereof from such security requirements: U. S. C., Title 15, §§ 77t (b), 78u (e), and 79r (f) (Securities and Exchange Commission). It also excepts the United States or an officer or agency thereof from such security requirements in any action in which a restraining order or interlocutory judgment of injunction issues in its favor whether there is an express statutory exception from such security requirements or not.

See U. S. C., Title 6 (Official and Penal Bonds) for bonds by surety companies.

Note to Subdivision (d). This is substantially U. S. C., Title 28, former § 383 (Injunctions; requisites of order; binding effect).

Note to Subdivision (e). The words "relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee" are words of description and not of limitation.

Compare former Equity Rule 73 (Preliminary Injunctions and Temporary Restraining Orders) which is substantially equivalent to the statutes.

For other statutes dealing with injunctions which are continued, see e. g.:

U. S. C., Title 28, former:

§ 4

§ 25 § 26

(Jurisdiction of courts; duty of district attorney; procedure)

(Restraining violations; procedure)

(Injunctive relief for private parties; exceptions)

§ 77t (b) (Injunctions and prosecution of offenses) NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENT TO RULES

Note. It has been held that in actions on preliminary injunction bonds the district court has discretion to grant relief in the same proceeding or to require the institution of a new action on the bond. Russell v. Farley, 1881, 105 U. S. 433, 466. It is believed, however, that in all cases the litigant should have a right to proceed on the bond in the same proceeding, in the manner provided in Rule 73 (f) for a similar situation. The paragraph added to Rule 65 (c) insures this result and is in the interest of efficiency. There is no reason why Rules 65 (c) and 73 (f) should operate differently. Compare § 50, sub. n of the Bankruptcy Act, 11 U. S. C. § 78, sub. n, under which actions on all bonds furnished pursuant to the Act may be proceeded upon summarily in the bankruptcy court.

See 2 Collier on Bankruptcy, 14th ed. by Moore and Oglebay, 1853-1854.

NOTES OF ADVISORY COMMITTEE ON 1966 AMENDMENT TO RULES

Subdivision (a) (2). This new subdivision provides express authority for consolidating the hearing of an

application for a preliminary injunction with the trial on the merits. The authority can be exercised with particular profit when it appears that a substantial part of evidence offered on the application will be relevant to the merits and will be presented in such form as to qualify for admission on the trial proper. Repetition of evidence is thereby avoided. The fact that the proceedings have been consolidated should cause no delay in the disposition of the application for the preliminary injunction, for the evidence will be directed in the first instance to that relief, and the preliminary injunction, if justified by the proof, may be issued in the course of the consolidated proceedings. Furthermore, to consolidate the proceedings will tend to expedite the final disposition of the action. It is believed that consolidation can be usefully availed of in many cases.

The subdivision further provides that even when consolidation is not ordered, evidence received in connection with an application for a preliminary injunction for a preliminary injunction which would be admissible on the trial on the merits forms part of the trial record. This evidence need not be repeated on the trial. On the the other hand, repetition is not altogether prohibited. That would be impractical and unwise. For example, a witness testifying comprehensively on the trial who has previously testified upon the application for a preliminary injunction might sometimes be hamstrung in telling his story if he could not go over some part of his prior testimony to connect it with his present testimony. So also, some repetition of testimony may be called for where the trial is conducted by a judge who did not hear the application for the preliminary injunction. In general, however, repetition can be avoided with an increase of efficiency in the conduct of the case and without any distortion of the presentation of evidence by the parties.

Since an application for a preliminary injunction may be made in an action in which, with respect to all or part of the merits, there is a right to trial by jury, it is appropriate to add the caution appearing in the last sentence of the subdivision. In such a case the jury will have to hear all the evidence bearing on its verdict, even if some part of the evidence has already been heard by the judge alone on the application for the preliminary injunction.

The subdivision is believed to reflect the substance of the best current practice and introduces no novel conception.

Subdivision (b). In view of the possibly drastic consequence of a temporary restraining order, the opposition should be heard, if feasible, before the order is granted. Many judges have properly insisted that, when time does not permit of formal notice of the application to the adverse party, some expedient, such as telephonic notice to the attorney for the adverse party, be resorted to if this can reasonably be done. On occasion, however, temporary restraining orders have been issued without any notice when it was feasible for some fair, although informal, notice to be given. See the emphatic criticisms in Pennsylvania Rd. Co. v. Transport Workers Union, 278 F. 2d 693, 694 (3d Cir. 1960); Arvida Corp. v. Sugarman, 259 F. 2d 428, 429 (2d Cir. 1958); Lummus Co. v. Commonwealth Oil Ref. Co., Inc., 297 F. 2d 80, 83 (2d Cir. 1961), cert. denied, 368 U.S. 986 (1962).

Heretofore the first sentence of subdivision (b), in referring to a notice "served" on the "adverse party" on which a "hearing" could be held, perhaps invited the interpretation that the order might be granted without notice if the circumstances did not permit of a formal hearing on the basis of a formal notice. The subdivision is amended to make it plain that informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all.

Before notice can be dispensed with, the applicant's counsel must give his certificate as to any efforts made to give notice and the reasons why notice should not be required. This certificate is in addition to the requirement of an affidavit or verified complaint setting forth the facts as to the irreparable injury which would result before the opposition could be heard.

The amended subdivision continues to recognize that a temporary restraining order may be issued without any notice when the circumstances warrant.

Subdivision (c). Original Rules 65 and 73 contained substantially identical provisions for summary proceedings against sureties on bonds required or permitted by the rules. There was fragmentary coverage of the same subject in the Admiralty Rules. Clearly, a single comprehensive rule is required, and is incorporated as Rule

65.1.

AMENDMENTS

1948-The amendment effective October 1949, changed subdivision (e) in the following respects: in the first clause the amendment substituted the words "any statute of the United States" for the words "the Act of October 15, 1914, ch. 323, §§ 1 and 20 (38 Stat. 730), U. S. C., Title 29, §§ 52 and 53, or the Act of March 23, 1932, ch. 90 (47 Stat. 70), U. S. C., Title 29, ch. 6"; in the second clause of subdivision (e) the amendment substituted the reference to "Title 28, U. S. C., § 2361" for the reference to "Section 24 (26) of the Judicial Code as amended, U. S. C., Title 28, § 41 (26)"; and the third clause was amended to read "Title 28, U. S. C., § 2284," etc., as at present, instead of "the Act of August 24, 1937, ch. 754, § 3, relating to actions to enjoin the enforcement of acts of Congress."

CROSS REFERENCES

Anti-trust laws, restraining violation, see section 4 of Title 15, Commerce and Trade. Appeals

District Courts to courts of appeals, see section 1292 of this title.

Injunction pending, see rule 62 (c).

Interlocutory orders of district courts to courts of appeals, see section 1292 of this title. Appellate court's power to suspend, modify or grant pending appeal, see rule 62 (g).

Atomic Energy Act, enjoining violation of act or regulation, see section 2280 of Title 42, The Public Health and Welfare.

Bond for injunction pending appeal, see rule 62 (c). Clayton Act, violation of, see sections 25, 26 of Title 15. Copyrights, injunction against infringement, see section 101 of Title 17, Copyrights.

Fair Labor Standards Act, restraint of violations of regulations, see section 217 of Title 29, Labor.

Federal statute, restraining enforcement, etc., ThreeJudge Court required, see section 2282 of this title.

Findings of fact and conclusions of law, necessity for, see rule 52 (a).

Internal revenue, prohibition of suits to restrain assessment or collection, see section 7421 of Title 26, Internal Revenue Code.

Labor-Management Relations Act

Petition by Attorney General to enjoin strike or lockout, see section 178 of Title 29.

Restraining unfair labor practices, see sections 160, 161 of Title 29.

Patent infringement, see section 283 of Title 35, Patents. Securities Act, actions to restrain violations, see section 77t of Title 15.

Securities Exchange Act, restraint of violations, see section 78u of Title 15.

State statute, restraining enforcement, etc.. ThreeJudge Court required, see section 2281 of this title.

State of state court proceedings, see section 2283 of this title.

Three-Judge Court, composition of, see section 2284 of this title.

Trade-marks and trade-names, infringement, see secsection 78u of Title 15.

RULE 65.1.-SECURITY: PROCEEDINGS AGAINST

SURETIES

Whenever these rules, including the Supplemental Rules for Certain Admiralty and Marine Claims, require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be

served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known. (Added Feb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADVISORY COMMITTEE ON RULES See Note to Rule 65 (c).

RULE 66.-RECEIVERS APPOINTED BY FEDERAL COURTS An action wherein a receiver has been appointed shall not be dismissed except by order of the court. The practice in the administration of estates by receivers or by other similar officers appointed by the court shall be in accordance with the practice heretofore followed in the courts of the United States or as provided in rules promulgated by the district courts. In all other respects the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by these rules. As amended Dec. 29, 1948, eff. Oct. 20, 1949. NOTES OF ADVISORY COMMITTEE ON AMENDMENTS TO RULES Note. The title of Rule 66 has been expanded to make clear the subject of the rule, 1. e., federal equity receivers. The first sentence added to Rule 66 prevents a dismissal by any party, after a federal equity receiver has been appointed, except upon leave of court. A party should not be permitted to oust the court and its officer without the consent of that court. See Civil Rule 31 (e), Eastern District of Washington.

The second sentence added at the beginning of the rule deals with suits by or against a federal equity receiver. The first clause thereof eliminates the formal ceremony of an ancillary appointment before suit can be brought by a receiver, and is in accord with the more modern state practice, and with more expeditious and less expensive judicial administration. 2 Moore's Federal Practice, 1938, 2088-2091. For the rule necessitating ancillary appointment, see Sterrett v. Second Nat. Bank, 1918, 248 U. S. 73, 39 S. Ct. 27; Kelley v. Queeney, W. D. N. Y. 1941, 41 F. Supp. 1015; see also McCandless v. Furlaud, 1934, 293 U. S. 67, 55 S. Ct. 42. This rule has been extensively criticized. First, Extraterritorial Powers of Receivers, 1932, 27 Ill. L. Rev. 271; Rose, Extraterritorial Actions by Receivers, 1933, 17 Minn. L. Rev. 704; Laughlin, The Extraterritorial Powers of Receivers, 1932, 45 Harv. L. Rev. 429; Clark and Moore, A New Federal Civil Procedure-II, Pleadings and Parties, 1935, 44 Yale L. J. 1291, 1312-1315; Note, 1932, 30 Mich. L. Rev. 1322. See also comment in Bicknell v. LloydSmith, C. C. A. 2d, 1940, 109 F. 2d 527, cert. den., 1940, 311 U. S. 650, 61 S. Ct. 15. The second clause of the sentence merely incorporates the well-known and general rule that, absent statutory authorization, a federal receiver cannot be sued without leave of the court which appointed him, applied in the federal courts since Barton v. Barbour, 1881, 104 U. S. 126. See also 1 Clark on Receivers, 2d ed., § 549. Under 28 U. S. C. § 125 leave of court is unnecessary when a receiver is sued "in respect of any act or transaction of his in carrying on the business" connected with the receivership property, but such suit is subject to the general equity jurisdiction of the court in which the receiver was appointed, so far as justice necessitates. Capacity of a state court receiver to sue or be sued in federal court is governed by Rule 17 (b).

The last sentence added to Rule 66 assures the application of the rules in all matters except actual administration of the receivership estate itself. Since this implicitly carries with it the applicability of those rules relating to appellate procedure, the express reference thereto contained in Rule 66 has been stricken as superfluous. Under Rule 81 (a) (1) the rules do not apply to bankruptcy proceedings except as they may be made applicable by order of the Supreme Court. Rule 66 is applicable to what is commonly known as a federal "chancery" or "equity" receiver, or similar type of court officer. It is not designed to regulate or affect receivers in bankruptcy, which are

governed by the Bankruptcy Act and the General Orders. Since the Federal Rules are applicable in bankruptcy by virtue of General Orders in Bankruptcy 36 and 37 [following section 53 of Title 11, U. S. C.] only to the extent that they are not inconsistent with the Bankruptcy Act or the General Orders, Rule 66 is not applicable to bankruptcy receivers. See 1 Collier on Bankruptcy, 14th ed. by Moore and Oglebay, ¶¶ 2.23-2.36.

AMENDMENTS

1948-The amendment effective October 1949 deleted a sentence which formerly appeared immediately following the first sentence and which read as follows: "A receiver shall have the capacity to sue in any district court without ancillary appointment; but actions against a receiver may not be commenced without leave of the court appointing him except when authorized by a statute of the United States."

CROSS REFERENCES Receiver suable without leave of court, see section 959 of this title.

RULE 67.-DEPOSIT IN COURT

In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing. Money paid into court under this rule shall be deposited and withdrawn in accordance with the provisions of Title 28, U. S. C., §§ 2041, and 2042; the Act of June 26, 1934, ch. 756, § 23, as amended (48 Stat. 1236, 58 Stat. 845), U. S. C. Title 31, § 725v; or any like statute. As amended Dec. 29, 1948, eff. Oct. 20, 1949.

NOTES OF ADVISORY COMMITTEE ON RULES

This rule provides for deposit in court generally, continuing similar special provisions contained in such statutes as U. 8. C., Title 28, formerly § 41 (26) (now §§ 1335, 1397, 2361) (Original jurisdiction of bills of interpleader, and of bills in the nature of interpleader). See generally Howard v. United States, 184 U. S. 676, 22 S. Ct. 543, 46 L. Ed. 754 (1902); United States Supreme Court Admiralty Rules (1920), Rules 37 (Bringing Funds into Court), 41 (Funds in Court Registry), and 42 (Claims Against Proceeds in Registry). With the first sentence, compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 22, r. 1 (1).

AMENDMENTS

1948-The amendment effective October 1949 substituted the reference to "Title 28, U. S. C. A. §§ 2041, and 2042" for the reference to "Sections 995 and 996, Revised Statutes, as amended, U. S. C. A., Title 28, §§ 851, 852." The amendment also added the words "as amended" following the citation of the Act of June 26, 1934, ch. 756, § 23, and in the parenthetical citation immediately following, added the reference to "58 Stat. 845."

RULE 68.-OFFER OF JUDGMENT

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is

not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior the commencement of hearings to determine the amount or extent of liability. (As amended Dec. 27, 1946, ec. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADVISORY COMMITTEE ON RULES

See 2 Minn. Stat. (Mason, 1927) § 9323; 4 Mont. Rev. Codes Ann. (1935) § 9770; N. Y. C. P. A. (1937) § 177. For the recovery of costs against the United States, see Rule 54 (d).

NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENT TO RULES

Note. The third sentence of Rule 68 has been altered to make clear that evidence of an unaccepted offer is admissible in a proceeding to determine the costs of the action but is not otherwise admissible.

The two sentences substituted for the deleted last sentence of the rule assure a party the right to make a second offer where the situation permits-as, for example, where a prior offer was not accepted but the plaintiff's judgment is nullified and a new trial ordered, whereupon the defendant desires to make a second offer. It is implicit, however, that as long as the case continues-whether there be a first, second or third trial-and the defendant makes no further offer, his first and only offer will operate to save him the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered. In the case of successive offers not accepted, the offeror is saved the costs incurred after the making of the offer which was equal to or greater than the judgment ultimately obtained. These provisions should serve to encourage settlements and avoid protracted litigation.

The phrase "before the trial begins", in the first sentence of the rule, has been construed in Cover v. Chicago Eye Shield Co., C. C. A. 7th, 1943, 136 F. 2d 374, cert. den. 1943, 320 U. S. 749, 64 S. Ct. 53.

NOTES OF ADVISORY COMMITTEE ON 1966 AMENDMENT TO RULES

This logical extension of the concept of offer of judgment is suggested by the common admiralty practice of determining liability before the amount of liability is determined.

(a) In general.

RULE 69.-EXECUTION

Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable. In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held.