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Act of March if an appeal be had, such testimony may be used on the trial of the same, 3, 1803, ch. 40. if it shall appear to the satisfaction of the court which shall try the ap
peal, that the witnesses are then dead or gone out of the United States, or to a greater distance than as aforesaid from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or
imprisonment, they are unable to travel and appear at court, but not Depositions otherwise. And unless the same shall be made to appear on the trial of used in case of sickness, death,
any cause, with respect to witnesses whose depositions may have been &c.
taken therein, such depositions shall not be admitted or used in the
cause. Provided, That nothing herein shall be construed to prevent Dedimus po. any court of the United States from granting a dedimus potestatem to testatem as take depositions according to common usage, when it may be necessary
to prevent a failure or delay of justice,(a) which power they shall severally possess, nor to extend to depositions taken in perpetuam rei memoriam, which if they relate to matters that may be cognizable in any court of the United States, a circuit court on application thereto made as a court of equity, may, according to the usages in chancery direct to be taken.
Sec. 31. And be it [further enacted, That where any suit shall be de
pending in any court of the United States, and either of the parties shall Executor or administrator
die before final judgment, the executor or administrator of such deceased may prosecute party who was plaintiff
, petitioner, or defendant, in case the cause of action and defend. doth by law survive, shall have full power to prosecute or defend any such
suit or action until final judgment; and the defendant or defendants are hereby obliged to answer thereto accordingly; and the court before whom such cause may be depending, is hereby empowered and directed to hear and determine the same, and to render judgment for or against
the executor or administrator, as the case may require. And if such exNeglect of ecutor or administrator having been duly served with a scire facias from executor or ad. the office of the clerk of the court where such suit is depending, twenty become a party days beforehand, shall neglect or refuse to become a party to the suit, to the suit, the court may render judgment against the estate of the deceased party, judgment to be in the same manner as if the executor or administrator had voluntarily
Executor and made himself a party to the suit.(6) And the executor or administraadministrator tor who shall become a party as aforesaid, shall, upon motion to the may have con.
court where the suit is depending, be entitled to a continuance of the tinuance.
same until the next term of the said court. And if there be two or Two plaintiffs. more plaintiffs or defendants, and one or more of them shall die, if the
Surviving cause of action shall survive to the surviving plaintiff or plaintiffs, or plaintiff may continue suit.
against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.(c)
Supreme Court by appeal, the evidence goes with the cause, and it must consequently be in writing. 1 Gallis. C. C. R. 25; i Sumner's C. C. R. 328.
(a) When a foreign government refuses to suffer the commission to be executed within its jurisdiction, the Circuit Court may issue letters rogatory for the purpose of obtaining testimony according to the forms and practice of the civil law. Nelson et al. v. The United States, Peters' C. C. R. 255. Šee Buddicum v. Kirke, 3 Cranch, 293; 1 Cond. Rep. 535.
Depositions taken according to the proviso in the 30th section of the judiciary act of 1789, under a dedimus potestatem, according to common usage, when it may be necessary to prevent a failure or delay of justice, are, under no circumstances, to be considered as taken de bene esse. Sergeant's Lessee ». Biddle, 4 Wheat. 508; 4 Cond. Rep. 522.
(6) This statute embraces all cases of death before final judgment, and of course is more extensive than the 17 Car. 2, and 8 and 9 W.3. The death may happen before or after plea pleaded, before or after issue joined, before or after verdict, or before or after interlocutory judgment; and in all these cases the proceedings are to be exactly as if the executor or administrator were a voluntary party to the suit. Hatch o. Eustis, 1 Gallis. C. C. R. 160.
(C) In real and personal actions at common law, the death of the parties before judgment abates the suit, and it requires the aid of some statutory provision to enable the suit to be prosecuted by or against the personal representatives of the deceased, where the cause of action survives. This is cffected by the 31st section of the judiciary act of 1789, chap. 20. Green v. Watkins, 6 Wheat. 260; 5 Cond. Rep. 87.
In real actions the death of either party before judgment, abates the suit. The 31st section of the judiciary act of 1789, which enables the action to be prosecuted by or against the representatives of the
Act of March
Sec. 32. And be it further enacted, That no summons, writ, declaration, return, process, judgment, or other proceedings in civil causes in Writs shall any of the courts of the United States, shall be abated, arrested, quashed fect of form.
not abate for de. or reversed, for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleading, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall Exceptions. specially sit down and express together with his demurrer as the cause thereof. And the said courts respectively shall and may, by virtue of Courts may a. this act, from time to time, amend all and every such imperfections, de
mend imperfec. fects and wants of form, other than those only which the party demurring shall express as aforesaid, and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts respectively shall in their discretion, and by their rules prescribe.(a)
Sec. 33. And be it further enacted, That for any crime or offence against the United States, the offender may, by any justice or judge of Fested by Saarthe United States, or by any justice of the peace, or other magistrate of justice of the any of the United States where he may be found agreeably to the usual peace. inode of process against offenders in such state, and at the
2, 1793, ch. 22. the United States, be arrested, and imprisoned or bailed, as the case Act of July may be, for trial before such court of the United States as by this act 16, 1798, ch.83. has cognizance of the offence.(b) And copies of the process shall be
Recognizance returned as speedily as may be into the clerk's office of such court, to- to gether with the recognizances of the witnesses for their appearance to office. testify in the case; which recognizances the magistrate before whom the examination shall be, may require on pain of imprisonment. And if such
Offender may commitment of the offender, or the witnesses shall be in a district other be removed by than that in which the offence is to be tried, it shall be the duty of the judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender, and the witnesses, or either of them, as the case may be, to the district in which the trial is to be had. And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and the usages of law. And if a person committed by a jus
Bail, how ta. t'ce of the supreme or a judge of a district court for an offence not punishable with death, shall afterwards procure bail, and there be no judge
to be returned
deceased, when the cause of action survives, is clearly confined to personal actions. Macker's heirs v. Thomas, 7 Wheat. 530; 5 Cond. Rep. 334.
(a) The 32d section of the act of 1789, allowing amendments, is sufficiently comprehensive to embrace ciuses of appellate as well as original jurisdiction; and there is nothing in the nature of an appellate jurisdiction, proceeding according to the common law, which forbids the granting of amendments. 1 Gallis. C. C. R. 22.
If the amendment is made in the Circuit Court, the cause is heard and adjudicated in that court, and upon appeal by the Supreme Court on the new allegation. But if the amendment is allowed by the Supreme Court, the cause is remanded to the Circuit Court, with directions to allow the amendment to be inade. The Mariana Flora, 11 Wheat. 1; 6 Cond. Rep. 201.
By the provisions of the act of Congress a variance which is merely matter of form may be amended at any time. Scull v. Biddle, 2 Wash. C. C. R. 200. See Smith v. Jackson, 1 Paine's C. C. R. 486. Ex parte Bradstreet, 7 Peters, 634. Randolph v. Barrett, 16 Peters, 136. Hozey v. Buchanan, 18 Peters, 215. Woodward v. Brown, 13 Peters, 1.
(6) The Supreme Court of the United States has jurisdiction, under the constitution and laws of the United States, to bail a person committed for trial on a criminal charge by a district judge of the United States. The United States v. Hamilton, 3 Dall. 13.
The circumstances of the case must be very strong, which will, at any time, induce a court to admit a person to bail, who stands charged with high treason. The United States v. Stewart, 2 Dall.
of the United States in the district to take the same, it may be taken by
any judge of the supreme or superior court of law of such state. Laws of States rules of deci.
Sec. 34. And be it further enacted, That the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.(a)
Sec. 35. And be it further enacted, That in all the courts of the United manage their
States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules
of the said courts respectively shall be permitted to manage and conduct Attorney of
causes therein. And there shall be appointed in each district a meet the U. S. for each district.
person learned in the law to act as attorney for the United States in such
district, who shall be sworn or affirmed to the faithful execution of his His duties. office, whose duty it shall be to prosecute in such district all delinquents
for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be con
cerned, except before the supreme court in the district in which that Compensation. court shall be holden. And he shall receive as a compensation for his
(a) The 34th section of the judiciary act of 1799, does not apply to the process and practice of the courts. It merely furnishes a decision, and is not intended to regulate the remedy. Wyman v. Southard, 10 Wheat, 1 ; 6 Cond. Rep. 1.
In construing the statutes of a State, infinite mischief would ensue, should the federal courts observe a different rule from that which has long been established in the State. M'Keen v. Delancy's lessee, 5 Cranch, 22; 2 Cond. Rep. 179.
In cases depending on the statutes of a State, and more especially in those respecting the titles to land, the federal courts adopt the construction of the State, where that construction is settled or can be ascertained. Polk's Lessee v. Wendall, 9 Cranch, 87; 3 Cond. Rep. 286.
The Supreme Court uniformly acts nnder a desire to conform its decisions to the State courts on their local law. Mutual Assurance Society v. Waits, 1 Wheat. 279; 3 Cond. Rep. 570.
The Supreme Court holds in the highest respect, decisions of State Courts upon local laws, forming rules of property. Shipp et al. v. Miller's heirs, 2 Wheat. 316; 4 Cond. Rep. 132.
When the construction of the statute of the State relates to real property, and has been settled by any judicial decision of the State where the land lies, the Supreme Court, upon the principles uniformly adopted by it, would recognize the decision as part of the local law. Gardner v. Collins, 2 Peters, 58.
In construing local statutes respecting real property, the courts of the Union are governed by the de. cisions of State tribunals. Thatcher et al. v. Powell, 6 Wheat. 119; 5 Cond. Rep. 28.
The courts of the United States, in cases depending on the laws of a particular State, will in general adopt the construction given by the courts of the State, to those laws. Élmendorf v. Taylor, 10 Wheat. 152 ; 6 Cond. Rep. 47.
Under the 34th section of the judiciary act of 1789, the acts of limitation of the several States where no special provision has been made by Congress, form rules of the decision in the courts of the United States; and the same effect is given to them as is given in the State courts. M'Cluny v. Silliman, 3 Peters, 277.
The statute laws of the States must furnish the rules of decision to the federal courts, as far as they comport with the laws of the United States, in all cases arising within the respective States; and a fixed and received construction of these respective statute laws in their own courts, makes a part of such statute law. Shelby et al. v. Guy, 11 Wheat. 361; 6 Cond. Rep. 345.
The Supreme Court adopts the local law of real property as ascertained by the decisions of State courts; whether those decisions are grounded on the construction of the statutes of the State, or from a part of the unwritten law of the State, which has become a fixed rule of property. Jackson v. Chew, 12 Wheat. 153; 6 Cond. Rep. 489.
Soon after the decision of a case in the Circuit Court for the district of Virginia, a case was decided in the court of appeals of the State, on which the question on the execution laws of Virginia was elaborately argued, and deliberately decided. The Supreme Court, according to its uniform course, adopts the construction of the act, which is made by the highest court of the State. The United States v. Mor. rison, 4 Peters, 124.
The Supreme Court has uniformly adopted the decisions of the State tribunals, respectively, in all cases where the decision of a State court has become a rule of property. Green v. Neal, 6 Peters, 291.
In all cases arising under the constitution and laws of the United States, the Supreme Court may exercise a revising power, and its decisions are final and obligatory on all other tribunals, State as well as federal. A State tribunal has a right to examine any such questions, and to determine thereon, but its decisions must conform to those of the Supreme Court, or the corrective power of that court may be exercised. But the case is very different when the question arises under a local law. The decision of this question by the highest tribunal of a State, should be considered as tinal by the Supreme Court; not because the State tribunal has power, in such a case, to bind the Supreme Court, but because, in the language of the court in Shelby v. Guy, 11 Wheat. 361, a fixed and received construction by a State, in its own courts, makes a part of the statute law. Ibid. See also Smith v. Clapp, 15 Peters, 125. Watkins v. Holman et al., 16 Peters, 25. Long v. Palmer, 16 Peters, 65. Golden v. Price, 3 Wash. C. C. R. 313. Campbell v. Clandius, Peters: C.C. R. 484. Henderson and Wife v. Griffin, 5 Peters, 151. Coates' executrix v. Muse's adm'or., 1 Brocken's C. C. R. 539. Parsons v. Bedford et al., 3 Peters, 433.
services such fees as shall be taxed therefor in the respective courts before which the suits or prosecutions shall be. And there shall also be Attorney Gen
eral of the U.S. appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all Duties. suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required
Act of May 29, by the President of the United States, or when requested by the heads 1830, ch. 153. of any of the departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall Compensation. by law be provided.(a)
APPROVED, September 24, 1789.
CHAP. XXI.-- An Aci lo regulate Processes in the Courts of the United States.
Sept. 29, 1789.
Section 1. Be it enacted by the Senate and House of Representa
Act of May tives of the United States of America in Congress assembled, "That all 26., 1790. Obsowrits and processes issuing from a supreme or a circuit court shall bear Act of Feb. test of the chief justice of the supreme court, and if from a district court, ruary 18, 1791.
Repealed. shall bear test of the judge of such court, and shall be under the seal of
Writs to bear the court from whence they issue; and signed by the clerk thereof. The test of the Chief seals of the supreme and circuit courts to be provided by the supreme
To be under court, and of the district courts, by the respective judges of the same.
the seal of the Sec. 2. And be it further enacted, That until further provision shall Court from be made, and except where by this act or other statutes of the United which they is. States is otherwise provided, the forms of writs and executions, except
Act of May 8, their style, and modes of process and rates of fees, except fees to judges, 1792. in the circuit and district courts, in suits at common law, shall be the
Act of May
19, 1828. same in each state respectively as are now used or allowed in the su
Forms of writs preme courts of the same.(b) And the forms and modes of proceedings in and executions
(a) The acts relating to the compensation of the Attorney General of the United States are: Act of March 2, 1797 ; act of March 2, 1799, chap. 38; act of February 20, 1804, chap. 12; act of February 20, 1819, chap. 27; act of May 29, 1830, chap. 153, sec. 10.
(6) The 34th section of the judiciary act of 1789, authorizes the courts of the United States to issue writs of execution as well as other writs. Wayman v. Southard, 10 Wheat. 1; Cond. Rep. 1.
Whenever, by the state laws in force in 1789, a capias might issue from a state court, the acts of 1789 and 1792, extending in terms to that species of writ, must be understood to have adopted its use perma. nently in the federal courts. Bank of the United States v. January, 10 Wheat. 66min note.
The process act of 1792, chap. 36, is the law which regulates executions issuing from the courts of the United States, and it adopts the practice of the supreme courts of the States existing in 1789, as the rule for governing proceedings on such executions, subject to such alterations as the Supreme Court of the United States may make; but not subject to the alterations which have since taken place in the State laws and practice. Wayman v. Southard, 10 Wheat. 1; 6 Cond. Rep. 1.
At an early period after the organization of the federal courts, the rules of practice in the State courts, which were similar to the English practice, were adopted by the judges of the Circuit Court. A subsequent change in the practice of the State courts will not authorize a departure from the rules first adopted in the Circuit Court. 1 Peters' C. C. R. 1.
Whenever by the laws of the United States a defendant may be arrested, the process of arrest employed in the State may be adopted. Buri's trial, 431.
The process act of 1828 was passed shortly after the decision of the Supreme Court of the United States, in the case of Wayman v. Southard, and the Bank of the United States v. Halstead, and was intended as a legislative sanction of the opinions of the court in those cases. The power given to the courts of the United States to make rules and regulations on final process, so as to conform the same to the laws of the States on the same subject, extends to future legislation; and as well to the modes of proceeding on executions as to the forms of writs. Ross and King v. Duval et al., 13 Peters, 45.
The first judiciary act of 1789, chap. 20, does not contemplate compulsive process against any person, in any district, unless he be an inhabitant of, or found within the same district at the time of serving the writ. Picquet v. Swann, 5 Mason's C. C. R. 35.
Congress have by the constitution, exclusive authority to regulate proceedings in the courts of the United States, and the States have no authority to control those proceedings, except so far as the State process acts are adopted by Congress, or by the courts of the United States under the authority of Congress. Wayman v. Southard, 10 Wheat. 1; 6 Cond. Rep. 1.
The laws of the United States authorize the courts of the United States so to alter the form of process of execution used in the Supreme Court of the United States in 1789, as to subject to executions
to be the same causes of equity, and of admiralty and maritime jurisdiction,(a) shall as used to the be according to the course of the civil law; and the rates of fees the of the States. same as are or were last allowed by the states respectively in the court
Fees to be the exercising supreme jurisdiction in such causes.(6) Provided, That on Supreme Courts judgments in any of the cases aforesaid where different kinds of execuof the States.
tions are issuable in succession, a capias ad satisfaciendum being one, the plaintiff shall have his election to take out a capias ad satisfaciendum in the first instance and be at liberty to pursue the same until a tender
of the debt and costs in gold or silver shall be made. Limitation. Sec. 3. And be it further enacted, That this act shall continue in
force until the end of the next session of Congress, and no longer.
APPROVED, September 29, 1789.
Sept. 29, 1789.
Chap. XXII.–An Act to explain and amend an Act, intituled " An Act for regis
tering and clearing Vessels, regulating the Coasting Trade, and for other purAct of Sept.
poses." 1, 1789, ch. i1.
Repealed by Section 1. Be it enacted by the Senate and House of RepresentaAct of February tives of the United States of America in Congress assembled, That when Goods unladen any goods, wares or merchandise of foreign growth or manufacture, by permit and shall be unladen from any ship or vessel in virtue of a permit obtained transported to a for that purpose, and shall be put into a craft or vessel, with intent to be same district, to
transported to a landing within the same district, it shall be the duty of be accompanied the inspector, or other officer attending the unlading of such goods, with a certifi.
wares and merchandise, to deliver to the master or commander of every cate from the inspector or
such craft or vessel, a certificate of such goods, wares and merchandise other proper
having been duly entered, and a permit granted therefor; and such officer.
certificate shall contain a description of all the packages with their marks and numbers, and shall authorize the transportation and landing of the same, at any landing within the same district, without any further fee or permit, any thing in the said recited act to the contrary notwithstanding
Sec. 2. And be it further enacted, That so much of the twenty-second section of the said recited act, as exempts vessels of less than twenty,
issuing out of the courts of the United States, lands and other property not thus subject by the State laws in force at that time. Bank of the United States v. Halsted, 10 Wheat. 51; 6 Cond. Rep. 22.
See Fullerton v. The Bank of the United States, 1 Peters, 604. Yeaton v. Lenox, 8 Peters, 123, Toland v. Sprague, 12 Peters, 300.
The process act of 1828, expressly adopts the mesne process and modes of proceeding in suits at common law, then existing in the highest State court, under the State laws, which of course included all the regulations of the State laws as to bail, and exemption of the party from arrest and imprisonment. In regard also to writs of execution, and other final process, and the proceedings thereupon,” it adopts an equally comprehensive language, and declares they shall be the same as were then used in the courts of the State. Beers v. Haughton, 9 Peters, 329. The Lessee of Walden v. Craig's heirs, 14 Peters, 147. The United States v. Knight, 14 Peters, 401. Amis v. Smith, 16 Peters, 303.
So far as the acts of Congress have adopted the forms of process and modes of proceeding and pleading in the State courts, or have authorized the courts to adopt them, and have actually adopted them, they are obligatory; and no further. But no court of the United States is authorized to adopt by rule any provision of State laws which are repugnant to, or incompatible with the positive enactment of Con. gress upon the jurisdiction, or practice, or proceedings of such courts. Keary et al. v. The Farmers and Mechanics Bank of Memphis, 16 Peters, 89. Duncan v. Darst, 17 Peters, 209.
(a) The act regulating processes in the courts of the United States, provides that the forms and modes of proceeding in the courts of equity, and in those of admiralty and maritime jurisdiction, shall be according to the principles, rules, and usages which belong to courts of equity, and to courts of admiralty, respectively, as contradistinguished from the courts of common law, subject, however, to alterations by the courts. This act has been generally understood to adopt the principles, rules, and usages of the court of chancery in England. Manro v. Almedia, 10 Wheat. 473; 6 Cond. Rep. 190.
(b) The compensation to clerks of courts are regulated by the acts of March 3, 1791, chap. 22, sec. 1 ; act of May 8, 1792, chap. 36, sec. 3 ; act of February 28, 1799, chap. 19, sec. 3; act of April 18, 1814, chap. 79 ; act of March 8, 1824, chap. 26; act of March 3, 1841, chap. 16. Compensation of Marshals, act of March 3, 1791, chap 22, sec. 1; act of May 8, 1792, chap. 36, sec. 3; aci of February 28, 1799, chap. 19, sec. 2 ; act of April 18, 1814, chap. 79; act of March 8, 1824, chap. 26; act of March 3, 1841, chap. 16