(Snrnrll ICam irl^onl IGtbraty Cornell University Library KF8719.C75 1870 A treatise on the organization, jurisdic C.2 3 1924 020 613 463 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92402061 3463 A TREATISE ON TEB OrsaDizatioD, Jirisfliclion aM Practice 07 THB COUHTS OF THE UNITED STATES IN" SUITS AT.LA^W. moLUDmo MUNICIPAL SEIZURES AND CRIMIML PROSECUTIOIfS, WITH iN APPENDIX OF PRACTICAL FORMS. By ALFEED gpisTKLII^G, IiATB JtJDQE 01" THE UNITED STATES TOR THE NORTHEBN DISTRICT OP NEW TOBK ,' AUTHOR OP "THB ADMIBALTY JURISDICTION, LAW AND PBAOTIOK OP UNITED STATES COURTS." FIFTH EDITIOIST, EBTISBD, COBEECTED ASTD EITLARaED BY THB AufsOB.' ALBANY: "W. 0. Little & Co., Law Publishers, 535 Broadway. 1870. ■ A/^33r^ 'e,^l9/6, e.a. Entered according to act of Congress, in the year eighteen hundred and forty-two, by ALFRED CONKLING, In the Clerk's Office of the District Court of the Northern District of New York. Entered according to act of Congress, in the year eighteen hundred and fifty-six, by ALFRED CONKLING, In the Clerk's Office of the District Court of the Northern District of New York. Entered according to act of Congress, in the year eighteen hundred and sixty-four, by ALFRED CONKLING, In the Clerk's Office of the District Court of the Northern District of New York. Entered according to act of Congress, in the year eighteen hundred and seventy, by ALFRED CONKLING, In the Clerk's Office of the District Court of the Northern District of New York. TfBinj, PABBOKa « 00., PftDtTEBS, ALBAST, H. T. Entered according to Act of Congress, in the year eighteen hundred and seventy, by ALFRED CONKLING, In the Office of the Librarian of Congress, at Washington. PART I. OF THE OEaANIZATION AND JURISDICTION OP THE COUETS OE THE UNITED STATES. CHAPTER I. OE THE JUDICIAL POWEE OE THE UNITED STATES. The scope of the judicial power of the United States is defined by the constitution ; which also ordains that this power "shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain or establish." In the language of the constitution, it extends — 1. To all cases in law and^equity, arising under this constitution : 3. To all cases arising under the laws of the United States : 3. To all cases arising under treaties made or to be made under the authority of the United States : 4., To all cases affecting ambassadors, or other public ministers and consuls : 5. To all cases of admiralty and maritime jurisdic- tion: 6. To controversies to which the United States shall be a party : 7. To controversies between two or more states : 8. To controversies between a state and citizens of nother state : a JUDICIAL rOWEB OF THE UJSITED iSTATES. PAETi. 9. To controversies between citizens of diflferent states : 10. To controversies between citizens of tlie same state, claiming lands under grants of different states : and, 11. To controversies between a state or the citizens thereof and foreign states, citizens and subjects.' ' Const. U. S., Art. 3, Sec. 2. The following brief but dis- criminating exposition by Chief Justice Jay, in the case of Ghisholm y. The State of Georgia (2 Dallas, 419, 475), of the policy which dictated the grant of jurisdiction over these several cases (except the 9th, which seems to have been accidentally omitted) it is presumed will not be unin- teresting to the reader. "1st. To all cases, arising under this constitution; because the meaning, construction and operation of a compact ought always to be ascertained by all the parties, not by authority derived only, from one of them. 3d. To all cases arising under the laws of the United States ; because, as such laws, constitutionally made, are obligatory on each state, the measure of obligation and obedience ought not to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the parties. 3d. To all cases arising under treaties made .by their authority; because, as treaties are compacts made by and obligatory on the whole nation, their operations ought not to be aflfected or regulated by the local laws or courts of a part of the nation. 4th. To all cases affepting ambassadors or other public min- isters and consuls ; because, as these are officers of foreign nations, whom this nation is bound to protect and treat according to the law of nationfe, cases affecting them ought ^only to be cognizable by national authority. 6th. To all cases of admiralty or maritime jurisdiction; because, as the seas are the joint property of nations, whose rights and priv- leges relative thereto are regulated by the law of nations, and treaties, such cases necessarily belong to national juris- diction. 6th. To controversies to which the United States shall be a party; because, in cases in which the whole people Judicial Power of the United States. The constitutioiL proceeds one step further, and as chap. we shall see in the third chapter, fixes the boundary between the original, and, ' ' with such exceptions and are interested, it would not be equal or wise to let any one state decide and measure out tlie justice due to others. 7th. To controversies between two or more states; because domestic tranquillity requires that the contentions of states should be peaceably terminated by a common judicatory ; and because, in a free country, justice ought not to depend on the will of either of the litigants. 8th. To controversies between a state and citizens of another state; because, in case a state (that is, all the citizens of it) has demands against citizens of another state, it is better that she should prosecute her demands in a national court, than in a court of the state to which those citizens belong ; the danger of irritation and criminations arising from apprehensions and suspicions of partiality being thereby obviated. Because, in cases where some citizens of one state have demands against all the citizens of another state, the cause of liberty and the rights of men forbid, that the latter should be the sole judges of the justice due to the former ; and true republican government requires that free and equal citizens should have free, fair, and equal justice. 9th. To controversies between citizens of the same state claiming lands under grants of different states ; because, as the rights of the two states to grant the land are drawn into question, neither of the two states ought to decide the controversy. 10th. To controversies between a state or the citizens thereof, and foreign states, citizens or subjects ; because, as every nation is responsible for the conduct of its citizens toward other nations, aU questions touching the justice due to foreign nations or people, ought to be ascertained by, and depend on, national authority. "Even this cursory view of the judicial powers of the United States" (adds the Chief Justice) "leaves the mind strongly impressed with the importance of them io the pres- ervation of the tranquillity, the equal sovereignty, and equal rights of the people." 1. 4 Judicial Power of the United States. P ABTi . under sucli regulationa as congress shall make," tlie appellate jtirisdiction of the supreme court. Upon this footing, with the exception of certain summary injunctions relative to the prosecution of public offenders, trial by jnry, and baU, which will be duly noticed in the sequel, the subject is left by the constitution. In what other courts the residue of the judicial power should be vested, and to what extent, and subject to what regulations, the supreme court should be clothed with appellate power, was submitted to the discretion of the legislative branch of the government. At the first session of congress an act was accord- ingly passed "to establish the judicial courts of the United States." The additional courts established by it are the circuit and district courts. This act — familiarly known as the judiciaet [or judicial] ACT, though modified in some respects by the eleventh amendment of the constitution, and by snbsecLuent legislation ; and, in a few particulars declared invalid for want of constitutionality — still continues the leg- islative basis of the judicial system of the United States. ' ' But by the 11th amendment to the constitution it is declared with regard to the 8th specification above stated, that the judicial power of the United" States shaU not be "construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.' It will be perceived therefore, that the capacity of the federal courts to take cognizance of legal controversies depends upon the subject matter of the controversy ; and upon the character of the parties : that is, their ' This amendment was adopted in consequence of the 'decision in the case mentioned in the last preceding note, by which a state was held to be suahh by a citizen of another state. OEGAinZATION OF THE SUPEEME OOUET. 5 jurisdiction extends to certain classes of cases, wlio- chap. i. ever may be parties, — and to controversies between certain descriptions of parties, whatever may be tlie nature of the controversy. In other words, if the case arises under the constitution, &c., or if it is of admiralty or maritime jurisdiction, it matters not who may be the parties ; and if, on the other hand, the controversy is one affecting ambassadors, &c., or if the United States are plaintiffs, or if it is between citizens of different states, &c., it matters not what may be the nature of the controversy. CHAPTER II. OF THE ORGAITIZATIOK OF THE STJPREME COTJET. 1. The Judges and Officers of the Court. Judges.] The supreme court origiaally consisted of a chief justice and five associate justices. The number of judges has since been repeatedly changed. By an act passed April 10, 1869, ch. 22 ; 16 Stat, at Large, 44, the court is made to consist of a "chief justice and eight associate justices, any six of whom shall constitute a quorum." They are appointed by the president, t)y and with the advice and consent of the senate. Const., art. 2, sec. 2. In order to secure ia the most effectual manner the independence and integrity of the judiciary, it is provided by the constitution (art. 3, sec. 1), that "the judges both of the supreme and inferior courts shall hold their ofllces during good behavior ;" and that they "shall at stated times receive for their services a compensation, which shall not be diminished dur- ing their continuance in office." But they may be 6 Orgah'izatiost of the Supeeme Couet. PART 1. removed from office on impeaclimeiit for, and convic- tion of, treason, bribery, or other Mgh crimes and misdemeanors. Art. 2, sec. 4. The judges, in addition to the oath or affirmation to support the constitution of the United States, are required, before they proceed to execute the duties of their offices, to take an oath or affirmation that they win administer justice without respect to per- sons, and do equal right to the poor and rich, and that they wUl faithfully and impartially discharge and perform all the duties incumbent upon them as such judges, according to the best of their abilities and understanding, agreeably to the constitution and laws of the United States.' The order of precedence among the .associate jus- tices is according to the date of their commissions ; or, when two or more commissions are contemporane- ously issued, according to their respective ages.'' In case of a vacancy in the office of chief justice, or of his inability to ..discharge the duties of his office, his powers and duties devolve on the senior associ- ate justice.' By the act of Dec. 18, 1812, ch. 5, it is declared to be unlawful ' ' for any judge appointed under the author- ity of the United States to exercise the profession or employment of counsel or attorney, or be engaged in the practice "of the law." GlerTc.] Notwithstanding the multifarious jurisdic- tion and diversified business of the supreme court, it ' has but one clerk, in whose office aU its proceedings are entered and all its records kept. He is appointed by the court, and is required to take an oath, and to execute a bond with sureties in a penalty of two ' Act of Sept. 24, 1789, ch. 20 ; 1 Stat, at Large, 76. ''Act of Sept. 24, 1789, ch. 30; 1 Stat, at Large, 73. ' Act of June 25, 1868, ch. 81 ; 15 Stat, at Large, 80. Organization op the Supebmb Court. 7 thousand dollars, for tlie faitMul performance of Ms chap. s. duties.' He is required to keep Ms office at the seat of the national government, and is prohiMted from practic- ing as attorney or counsel." His office is in fact kept in the capitol. He is forMdden to permit any original record or paper to be taken from the supreme • court room, or from the office, without an order from the court." His compensation consists of an allowance of ten doUars a day during his attendance in court, and fees for specific Services." He is required in all cases to take from '■HTie party'''' a bond, with com- petent security, in a penalty of two hundred dollars, or a deposit to that amount, to secure his fees ; and upon service and non-payment of Ms bill of fees, he is entitled to an attachment to compel payment.' His duties, so far as it is necessary to treat of them, will be sufficiently indicated in the sequel. Grier.'l The crier is appointed by the court.' Attorneys and Counselor s.\ By the act of Sept. 24, 1789.,' it is provided, "that ia all the courts of the United 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 causes therein." Notwithstanding the privilege here secured to sui- tors, of litigation without the intervention of profes- sional agents, it is hardly necessary to say tl^at the 'Act of Sept. 34, 1789, ch. 20 ; 1 Stat, at Large, 76. ''Appendix, Rvde 1, of Sup. Court of United States. ^Appendix, Rule 1, S. C. Bules. 'Act Feb. 28, 1799, ct. 19 ; 1 Stat, at Large, 634. ' See Appendix, Rule 10. S. C. Bules. ° Act of 1799, iM supra. ' Ch. 20 : 1 Stat at Large, 93. . } Organization of the Supreme Court. PABT 1. business of these courts is in fact conducted by attor- neys and counselors.' To entitle persons to admission as attorneys or counselors in the supreme court, " it is required that they shall have been such for three years past in the supreme court of the state to which they respectively belong ; and that their private and professional char- acters shall appear to be fair.'" The oath or affirmation taken upon admission is as follows : I do solemnly swear (or affirm) that I will demean myself (as attorney, 'or counselor of this court), uprightly, and according to law, and that I will support the constitution of the United States.' Of the privUeg'es, disabilities and duties of attor- neys — of their appointment, the duration of their authority, the mode of changing them, their punish- ment for misconduct, &c., it is deemed unnecessary • to treat at large. With very few exceptions the acts of congress, as well as the rules of the court, are silent with respect to all these particulars. But by an act passed July 22, 1813, it is enacted that "if any attorney, proctor or other person, admit- ted to manage and conduct causes in a court of the United States, or of the territories thereof, shall appear to have multiplied the proceedings in any cause before the court, so as to increase the costs unreasonably and vexatiously, such person may be ' These are the only denominations of practitioners designated by the judicial act, and no others have been recognized by the rules of the supreme court. For, though it is a court of equity as well as of law, it has no solicitors, eo nomne, nor, although it is a civil law court, has it any proctors or advocates. 'Appendix, Rule 2, S. C. To obtain admission under this rule, it is only necessary that some counselor in whom the court reposes con- fidence, should make a motion, for that purpose, and state orally that the case of the appellant falls within the rule. ° Appendix, Eule 3, S. C. Organization of the Supreme €otjrt. 9 required by tlie order of tlie court to satisfy an excess chap. 2. of costs so incurred."" ' The other legislative enactments, together with, the judicial decisions, applicable to the subject,' will be sufficiently treated of in the second part of this work; and it need at present only be observed, that the law and practice of the court of king's bench and chan- cery in England, afford in general the true guide in relation to it." Attorney-General.'] By the last section of the judi- cial act, it is provided that ' ' there shall be 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 Ms office ; whose duty it shall be to prosecute and conduct all 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 by the presi- dent of the United States, or when requested by the heads of any of the departments, touching any mat- ters that may concern their departments.'" He is charged with the general superintendence and direc- tion of the district attorneys and marshals in the several judicial districts and territories, as to the manner of discharging their duties ; and these offi- cers are required to report to him their official pro- ceedings, as he shall direct. He is empowered also to employ attorneys and counselors when he thinks it necessary, to assist the district attorneys in the performance of their duties, and to enter into stipu- lations with such assistants as to the amount of their compensation.' He is appointed by the president, by and with the " Ch. 14 : 3 Stat, at Large, 31, "Appendix, No. 3, S. C. Rules. 'Act of Sept. 34, 1789, ch. 30, 1 Stat, at Large, 93. *Act of August 8, 1861, ch. 37, 13 Stat, at Large, 385. 2 lO Oeganization" of the Supreme Couet. PAET 1. advice and consent of the Senate, and tlie duration of Ms office is not limited by law. He is empowered also to appoint two assistant attorneys-general.' • Marshal.'] By the act of June 9, 1794, chapter 64, so much of the 27th section of the judicial act, "as is or may be construed to require the attendance of the marshals of aU the districts at the supreme court," was repealed ; and this duty was restricted to the marshal of the district in which the court shall sit, unless the attendance of the marshals of the other districts shall be required by the special order of the court. But by the act of March. 2, 1867, ch. 156, the supreme court is- empowered to "appoint a mar- shal for the said court, whose compensation shall be three thousand five hundred dollars per annum ;' and said marshal shall take charge of all property of the United States used by said court or its members, and shall serve and execute aU process and orders issuing out of said court, or made by the chief justice or any associate j:ustice, in pursuance of law ; and shall pay iato the treasury of the United States all fees and compensation aEowed by law, and render a true account thereof, at the close of each term, to the secretary of the interior ; and the said marshal, with the approval of the chief justice, may appoint assist- ants and messengers in place of the crier and mes- sengers now employed, with such compensation as is or may be allowed to officers of the ho\ise of repre- sentatives of similar grade ; and all acts and parts of acts now in force relating to the marshal of the Dis- trict of Columbia shaU apply to the marshal of the supreme court, except so far as in this act otherwise provided." Reporter.] The decisions of the supreme court have uniformly been reported, ever since its organ- ization. ■ Ko provision, however, it is believed, was ■Act of March 17, 1866, ch. 19 ; 14 Stat, at Large, 9. Organization of the Supreme Court. 11 made by law for the appointment or compensation c hap, a. of a reporter until 1817 ; when an act was passed providing an annual compensation of one thousand dollars to the reporter who should from time to time be appointed by the court to report its decisions ; upon the condition, however, that he should print and publish the decisions of the court within eight months after such decisions were pronounced ; and should deliver eighty copies thereof to the secretary of state (for distribution in the ma,nner therein directed), without any expense to the United States.' This act was limited to three years, but its provi- sions were continued in force by successive acts of short duration, until 1842, when a permanent act was passed, recognizing the power of the supreme court to appoint a reporter of its decisions, and awarding to him a compensation of thirteen hundred doUars per annum, provided he publish the decisions of the court within six months after they were made ; that he deliver to the secretary of state one hundred and fifty copies thereof (for distribution in the manner prescribed by the act), and that they be^ not sold to the public at large for a greater price than five dol- lars for each volume." In addition to the above mentioned compensation the reporter is entitled to the copyright of his volumes. 2. Sessions or Terms of tTie Supreme Court. The act of June 17, 1844, ch. 96 (5 Stat, at Large, 676), fixed the first Monday of December as the day on which the annual session of the court should com- mence. But the act of July 23, 1866, ch. 210 (14 ' Stat, at Large, 209), reorganizing the. court, only requires, in general terms, that the court "shall hold "Act of May 31, 1866, ch. 88 ; 14 Stat, at Large, 51. 'Act of August 29, 1843, oh. 364 ; 5 Stat, at Large, 645. 12 ^ Obgastzatiok of the Stjpeeme Ooukt. PAfiTi. one term annually at tlie seat of government/ and such, adjourned or special terms as it may find neces- sary for the dispatch of business ;" and the amend- atory act of April 10, 1869, ch. 32 (16 Stat, at Large, 44), is silent on this poi^t. The result seems to be that the day for the commencement of its next annual session is to be fixed by the court itself, either from year to year or by general prospective order. If a quorum does not attend on the day appointed for the commencement of the session, the justice or justices attendlag are authorized and required to adjourn the court from day to day, for twenty days, unless a quorum shall sooner attend. And if after a quorum shall have been formed, it shall happen that on any day a less number shall attend, the justice or justices attending are empowered to adjourn the court from day to day, until a quorum shall attend, and when expedientand proper to adjourn without day." The duration of the session is not prescribed by law, and is therefore discretionary with the court. In case of any adjournment for want of a quorum, tjie business of the coui;^ is to be continued to the next session ; and the justice or justices attending are to make all necessary orders touching any suit, action, &c., pre- paratory to the hearing thereof.' The sessions of the court are held in a room appropriated for that pur- pose in -the national capitol. 'Act of June 17, 1844, ch. 96 ; 5 Stat, at Large, 676. Whenever by reason of contagious sickness it shall, in the opinion of the chief jus- • tice, or, in the case of his death or disability, of the senior associate justice, be hazardous for the court to sit in Washington, he is author- ' • ized to direct its adjournment to some other place. The same authority is also given to the district judges to adjourn the district or circuit courts. Act of Feb. 25, 1799, ch. 13 ; 1 Stat, at Large, 619. 'Act of Jan. 31, 1839, ch. 13; 4 Stat, at Large, 333.' = Act of April 39, 1803, ch. 31 ; 3 Stat, at Large, 156. Original Jurisdiction of the Supreme Court, 13 CHAP. 8. CHAPTER III. OF THE OEIGINAL JUEISDICTION OF THE STJPBEME COTJET. In defining the original jurisdiction of the supreme constitn- court, tlie constitution designates two, and only two, nition- descriptions of cases to which, it shall extend ; 1, cases affecting ambassadors, other public ministers and. consuls ; and 2, cases in which a state shall be a party. And with respect to all the other enumerated cases embraced by the judicial power, it is declared that, of these the supreme court "shall have appellate jurisdiction, both as to law and fact, with such exqep- tions and under such regulations as congress shall make." Article 3, section 2." But in the organic act, congress saw fit not only to exercise the discre- tidnary authority thus expressly given with respect to the appellate jurisdiction of the supreme court, but to deal, also, with its original jurisdiction con- ferred without any qualification. This was done chiefiy by the thirteenth and fourteenth sections of the act, as foUows : " Sec. 13. And ie it further enacted, That the supreme As defined court shall have exclusive jurisdiction of all controversies of ciarj act. '" a civil nature, where a state is a party, except between a state and its citizens ; and except, also, between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction ; and shall have exclu- sively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consis- tently with the law of nations ; and original but not exclusive jurisdiction of all suits brought by ambassadors, or othfer pub- lic ministers, or in which a consul or vice-consul is a party ; and the trial of issues of fact, in the supreme court, in all actions at law against citizens of the United States, shall be by jury. The supreme court shall also have appellate jurisdiction from the 14 Okiginal Jueisdictiok of the StTPEEME Court. PAET 1. circuit courts and courts of the several states, in cases herein- after specially provided for ; and shall have power to issue ■writs of prohibition to the district courts, when proceeding as courts of admiralty and marine jurisdiction, and writs of 'mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under authority of the United States. " Sec. 14. And le it further enacted. That all the before- mentioned courts of the United States shall have poyrer to issue writs oi scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreea- ble to the principles and usages of law. And that either of the justices of the supreme court, as well as the judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of inquiry into the cause of commit- ment. Provided, that writs of habeas corpus shall in no case extend to prisoners in gaol, unless they are in cus- tody, under or by color of authority of the United States, or are committed for trial before some court of the same, or are brought into court to testify." ' By tlie 30tli section of the same act the power of the courts of the United States to grant a ' ' dedimus potestatem to take depositions according to comnaon usage, where it may be necessary to prevent a faUnre or delay of justice," is expressly recognized. The foregoing are all the writs which the courts of the United States are, by the organic act, expressly empowered, by name, to issue. writBnot With respect to the authority of these courts con- ferred by the 64th section of the act to issue "a;ll other writs * * * which may be necessary for the exercise of their respective jurisdictions, and agreea- ' This section is inserted here because it purports to confer original jurisdiction upon the supreme court in common and co-extensive with that conferred on the circuit and district courts ; although as we shall Sep in the sequel, it was in this particular not warranted by the consti- tution. See post, chapter v. Original Jueisdictiok of the Supeemb Court. 15 ble to the principles and usages of law, ' ' Chief Justice c hap. 3. Marshall, on the trial of Burr, took occasion to observe, that the principles and usages here referred to meant those general principles and usages which are to be found, not in the legislative acts of any par- tictllar state, but in that generally recogni^ied and long established law, which forms the substratum of the laws of every s^ate. This authority was doubt- less designed to comprise the capias, subpcena, venire facias, fieri facias, capias ad satisfacien- dum, quo warranto, attachment, certiorari, injunc- tion, ne exeat, writ of error and warrant of arrest, in familiar use in the English courts, for the institution of suits at law, and in equity, and in criminal prose- cutions, and for the conducting of such suits and prosecutions to their consummation. Some of these writs have been made the subject of legislative regulation. Thus, by an act "in addition to the" judiciary act, passed March 3, 1793, ch. 22, § 5, it is enacted "that writs of ne exeat and of Ne exeat. injunction may be granted by any judge of the supreme court in cases where they might be granted by the supreme or circuit court ;' ^but no writ of ne exeat shall be granted unless "a suit in equity be com- menced, and satisfactory proof shall be made to the court or judge granting the same, that the defendant designs quickly to depart from the United States ; nor shaU a writ of injunction be granted to stay pro- '^^'^ eeedings in any court of a state ; nor shall such writ be granted in any case without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving for the same." There are. ' The power to issue -writs of injunction has since heen conferred on the district judges (see post, " Jurisdiction of the District Courts") but not to issue the writ of ne exeat : and so it was held in Qernon v. Boc- caUne, 2 Wash. C. C. Rep., 130. 16 Oeigikal Jubisdiotion of the Supeemb Court. New trials, F AET.i . enactments relative to other forms of process wMcli will be noticed in their proper places in tlie sequel. The courts of the United States are also by this act expressly empowered to "grant new trials, in cases where there- has been a trial by juTy, for reasons for which new trials have usually been granted in courts of law, and to impose and administer all necessary oaths or affirmations, and to ^punish by fine or imprisonment, at the discretion of the said courts, all contempts of authority in any cause or hearing before the same ; and to make and establish all neces- sary rules for the orderly conducting of business in the said coui;ts, provided such rules are not repugnant to the laws of the United States."^ Contempts. By a subsequeut act, the power to inflict punish- ment for contempt has been limited and defined, and it has been declared an offense punishable by indict- ment, to interfere, corruptly or forcibly, with the administration of justice. The enactment is as fol- lows: " Sec. 1. That the powers of the several courts of the United States to issue attachments and inflict summary punishment .for contempts of court, shall not be construed to extend to any cases, except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the mis- behavior of any of the officers of the said courts in their official transactions, or the disobedience or resistance by any officer of the said courts, party, juror or witness, or any other person or persons to any lawful writ, process, order, rule, decree, or command of the said courts. " Sec. 3. That if any person or persons shall corruptly, or by threats of force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly, or by threats or force, obstruct or impede, or endeavor to 'Act of 24tli Sept., 1789, ch. 30 (1 Stat, at Large, 73). Obigikal Jueisbiction of the Stjpbemb Cotjet. 17 obstruct or impede, the due administration of justice therein, chap. 3. every person or person so offending shall be liable to prose- cution therefor, by indictment, and shall, on conyiction thereof, be punished by fine, not exceeding five hundred dollars, or by imprisonment, not exceeding three months, or both, according to the nature or aggravation of the offense.'" The power of making rules, lias been more fully Enies. and explicitly granted by the act of March 2, 1793, by which it declared to "be lawful, for the several courts of the United States, from time to time, as occasion may require, to make rules and orders for their respective courts, directing the return of writs and process, the filing of declarations, and other pleadings, the taking of rules, the entering and making up judgments by default, and other matters in the vacation ; and otherwise, in a manner not repug- nant to the laws of the United States, to regulate the practice of the said courts respectively, as shall be fit and nece'Ssary for the advancement of justice, and especially to that end to prevent delays in pro- ceedings.' By an act passed July 16, 1798, ch. 83, 1 Stat, at \^^^} Large, 608, it is also enacted that the judges of the supreme court and of the several district courts shall, respectively, have the like power and .authority to hold to security of the peace and for good hehavior, in cases arising under the constitution and laws of the United States, as may or can be lawfully exer- cised by any judge or justice of the peace of the respective states, in cases cognizable before them." And by the act of July 13, 1866, ch. 184 : 14 Stat, s^^f^"- at Large, 152, the justices of the supreme court as 'Act of March 3, 1831, ch. 99 (4 Stat, at Large, 487). 'Act of March 3, 1793, ch. 33 (1 Stat, at Large, 333). As to the authority of the supreme court to prescribe rules of procedure for the circuit and district court, see, post, " Practice of the Circuit and District Courts." 3 18 ObIGINAL JUKISDICTIOlf OF THE SUPEEME COTJKT. PART 1. LawB of the state to be ruleB of de- cieiOD. Congresa hasnu power to extend the original jnnsdic- tion of the supreme court, and an act for that pnr- pose may be declared void. judges of the circuit court are empowered, witllin their respective circuits, to issue search warrants authorizing any internal revenue officer to search any premises, i£ such officer shall make oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being com- mitted upon or by the use of such premises.' The 34th section of the judiciary act of 1789, enacts "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." Upon the organization of the. supreme court the important and delicate duty devolved upon it of determining and clearly defining the limits, not only of the jurisdiction of the circuit and district courts, but also of its own. Questions of this nature, as they arose from time to time, were almost invariably very elaborately argued by lawyers of great ability, and- thoroughly canvassed by the court. Certain funda- mental principles were thus early established which have long since come to be regarded as indisputable landmarks. • 1. Among the early cases here alluded to, is that of Marhury v. Madison.'' The case was one of grave importance, for it imposed upon the court the duty of deciding upon its competency to pass upon the constitutionality of an act of congress ; and on arriv- ing at the conclusion that it possessed the power, the duty also of exercising it by pronouncing the enact- ment brought into question invalid. Mr. Marbury had been appointed a justice of the peace in the ' This act confers the same power also on the district judges and on the commissioners. nCranch,137. OeIGINAL JUEiSDICTIOU OP THE SUPREME COUKT. 19 District of Columbia, and Ms commission, signed by chap. 3. the president, but not yet sealed, was withheld from him by Mr. Madison, secretary of state. One of the TUeprovi- powers of the supreme court, specified, as we, have isthBecLu seen, in the thirteenth section of the ludicial act, is iz'^^^^ .1 , „ . . . , „ ''"^ power tnat 01 issuing writs of mandamus to persons hold- mandaZs ing office under the authority of the United States ; t^nf^ and Mr. Marbury, deeming himself agrieved, applied afa^'Icfe to the court to issue a writ of mandamus to Mr. rfeSon!" Madison, requiring him to deliver the commission. «^i'"^'°''* The case was one arising under the constitution and laws of the United States, and one, therefore, to which the judicial power of the United States extended ; but did the particular power invoked belong to the supreme court ? Congress had assumed to confer it ; but was the enactment warranted by the constitution ? To issue the writ in such a case would be essentially the same as to entertain an original suit for the paper, and would, therefore, be the exer- cise, not of an appellate, but of original jurisdiction ; the true criterion of appellate jurisdiction being, that it revises and corrects the proceedings in a cause already instituted, and does not create the cause. But the framers of the constitution thought proper to designate the cases over which the court should be invested with the original jurisdiction, and to declare that, in all others to which the judicial power extended, its jurisdiction should be appellate ; and this affirma- tive grant of original jurisdiction implied a negative upon its exercise in any other case. For these reasons the court held that congress, in assuming to confer the jurisdiction in question, had transcended the limits of its own authority ; and the motion was, ^^^ ^^ ^^ accordingly, denied for want of jurisdiction. And Sttinrthe in accordance with this principle the enactment con- fS(f °^ tained in the 13th section of the act of June 30, 1864, cuTcoSt" ch. 164 (13 Stat, at Large, 311), authorizing the premeconrt 20 Oeiginal Jueisdiction OS THE Stjpeemb Coust. PART 1. And so of the writ of Aabeai cor- pus. transfer of causes, pendente lite, from a circuit court to the supreme court, was held to be unwarranted by the constitution and consequently void. The Alicia, 7 WaUace, 571. The same consequence follows with respect to the power conferred in general terms by the 14th section upon the supreme court in common with the circuit and district courts, to issue the writ of habeas corpus. The power can be exerted by the supreme court as an act of original jurisdiction in those cases only to which this branch of its jurisdiction is, by the con- stitution, declared to extend : and so it was held on the application of an alien for a writ of habeas corpus for the purpose of obtaining possession of his infant daughter. As an alien, he had a right to sue in a court of the United States ; but not being an ambas- sador, or other public minister, or consul, the origi' nal jurisdiction of the supreme court did not extend to his case, and the application was denied on this, ground.' Hence results the anomaly that whUe'the power to issue writs of habeas corpus, as an exercise of original jurisdiction, may be constitutionally con- ferred on the several justices of that court individu- ally, it cannot be conferred on the court itself. 2. But in;the case of Marbury v. Madison another important principle was laid down. It was held that when a statute purports to confer on the supreme pow.*"*'^ court a power not withia the scope of its original jurisdiction as defined by the constitution, but which admits of application as an appellate power, it may be exercised as such in conformity with the regula- tions prescribed by law concerning this branch of the jurisdiction of the supreme coui-t. Had Barry, for example, previously applied to a circiiit court, the decision of that court would have been subject to Bat the power given to iBsue them may be ex- ercised as ^Expwrte Bwry, 2 Howard's R., 65. maintained. Original JuEiSDicTioi>r of the Supreme Court. 21 review by tlie supreme court, provided the matter in c hap, a. dispute appeared to be of suflElcient value.' The authority, conferred on the supreme court to issue the writs of mandamus and habeas corpus must, therefore, be classed with its appellate powers, except when invoked in cases affecting ambassadors, other public ministers, or consuls ; or in cases in which a state is a party. The power conferred by 13th section of the judici- wmt or ary act to " issue ^writs of prohibition to the district tion. courts, when proceeding as courts of admiralty and maritime jurisdiction," though to some extent sui generis must be regarded as belonging to the same category. 3. Notwithstanding the express delegation to the Junsdic- supreme court, by the constitution, of original juris- againet\' * diction in all cases in which a state shall be a party, tested and , r *J 1 maintained the power of that court to entertain original jurisdic- tion of suits of any discription against a state, has been repeatedly and very earnestly contested, on the ground that congress had prescribed no suflBcient rules of procedure adapted to the nature of the case, and that the court possessed no adequate means of enforcing its judgments. The question was very elaborately examined by the court in the early case of CTiisTioT/ra v. The State of Georgia (2 Dallas, 419), and the above mentioned objections (Mr. Justice Iredell dissenting), were decided to be invalid.' In The State of Rhode Island v. The State of Massa- chusetts (12 Peters, 657), which was a suit in equity, brought to ascertain and establish the boundary between the states, the jurisdiction was strenuously contested on the part of Massachusetts, not only on the above mentioned grounds, but also on the ground that the matter in controversy, pertaining, as it did, to the rights of sovereignty of the respective parties, ' B(M-ry V. Mercein, 5 Howard's R., 103. 22 OBIGIlfAL JUEISDICTION OF THE SUPEBME COUBT. PART 1. A state may be sued by a foreign state. But cannot be sued by an Indian nation. was not in its nature a subject for judicial cogni- zance ; ia other words, that the question presented for decision was a political and not a judicial ques- tion. The court, in a very elaborate and able opinion delivered by Mr. Justice Baldwin, sustained its jurisdiction over the case. Chief Justice Tanet, however, dissented from the opiaion of the court, on the ground last above indicated, viz., that this was a contest for rights of sovereignty and jurisdiction, and therefore not a fit subject for judicial cognizance and control. Mr. Justice Baebour concurred in the decision, but desired to be understood as not adopt- ing all the reasoning by which the court had arrived at its conclusion. Mr. Justice Stoey did not sit in the case. 4. One of the descriptions of cases to which, as we have seen, the original jurisdiction of the supreme court is declared by the constitution to extend, is that in which a state is sued by a foreign state. The only case in which this branch of jurisdiction is known to have been invoked, is that of The Qhero- Tcee Nation of Indians v. The State of Georgia (5 Peters, 1). But it was decided (Mr. Justice Thomp- son and Mr. Justice Stoey dissentiag), that the Cherokees were not a foreign state in the sense in which the term is used in the constitution, and that they were therefore incompetent to maintain their suit in that character. It was admitted that they were a state., having been uniformly recognized by the gov- ernment of the United States as a people capable of maiataining the relations of peace and war ; of being responsible in their political character for the viola- tion of their engagements, and for aggressions com- mitted on the citizens of the United States by indi- viduals of their community. But it was denied that they were a foreign state ; the condition of the Indi- ans in relation to the United States being sui generis Original Jueisdiction of the Stjpeeme Court. 23 and such as to constittite them rather domestic depen- c hap. 3. dent nations than foreign nations. 5. In order to enable the supreme court to enter- The state ^ must te the tain jurisdiction of a cause upon the ground that a reai party. state is a party, it is not sufficient that a state may be consequentially affected ; but a state niust be a party in fact, if not in name, at least substantially. Fowler et at. Lindsey et al., 3 Dallas, 411. See also 4 Dallas, 3, and 1 Peters, 121. 6. We have seen that by the thirteenth section of whether ■' congress the iudicial act, congress saw fit further to enact that tad power o ^ ^ to declare the original jurisdiction conferred by the constitution Inris'dic-'"*^ on the supreme court should be in part exclusive, and Bup1.e4e''° in part concurrent ; and the constitutionality of this cMren™"' part of the section also has been several times drawn into question with respect to the branch of this juris- diction comprising those cases in which ambassadors, other foreign ministers, or consuls, are parties, and thus indirectly, with respect also to the other branch embracing cases in which a state is a party. In The United States v. Bavara (2 Dallas, 297), in the circuit court for the district of Pennsylvania, upon motion to quash an indictment against a consul for want of jurisdiction, it was held that the grant, by the constitution to the supreme court of original jurisdiction, did hot preclude congress from vesting a concurrent jurisdiction in other courts over the same causes. On the other hand this decision has been consid- ered as seriously impugned by the case of Marbury v. Madison, 2i\)oye referred to. (1 Cranch, 137.) See also 5 Serg. and Rawle, 545. It is to be observed, however, that this was not a point in judgment in case of Marbury v. Madison, and that the same great judge who pronounced the decision, has since, in the case of Cohens v. Virginia (6 Wheat'on, 264), strongly inculcated caution in the application of his 24 Oeiginal JuEiSDiCTiosr of the Supeeme Couet. PAETi. powerful but somewliat discursive reasoning in tliat case. In The United States v. Ortega (11 Wheat., 467), this was treated and left by the supreme court, as still an open question. But in the recent case of ■TTie State of Pennsylvania v. The Wheeling and Belmont Bridge Company et al. (13 Howard, 516), originally prosecuted in the supreme court, it is inci- dentally asserted in the most explicit terms, both by Mr. Justice McLean in delivering the opinion of the court, and by Chief Justice Tawey in his dissenting opinion, that the suit might have been instituted in the circuit court for the western district of Virginia. Suit in 7. In the case last cited, which was a suit in equity equity by a state for prosBcuted Originally in the supreme court, the Btrnotion to important question arose whether the judicial power Sf ^ffvlr of the United States extended to the case of an taxable!"' alleged nuisance consisting in the obstruction, by the erection of a bridge, of a free navigable river expressly recognized as such by congress. The case was held to be within the jurisdiction of the court, mainly on the ground that the only limitation to the equity jurisdiction of the courts of the United States, where the parties are competent, and the amount in controversy is sufficient, is 1;hat imposed by the 16th section of the judiciary act, viz. : "That suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, ade- quate and complete remedy may be had at law;" and that the case in question was one, in its nature, falling within the scope of equity jurisdiction, according to the usage and practice of the high court of chancery of England. Chief Justice Taney and Mr. Justice Daniel dissented from the decision. The court 8. The court cannot take upon itself the decision jannot take « 7 . / . 7 , )f^°cJiitSai political questions ; and on this ground a bill in luestiona. equity brought by a state asking an injunction to Appellate Jurisdiction of the Supreme Court. 25 restrain officers ^wlio represent tlie executive antlior- chap. 4. ity of tlie United States, from carrying into effect certain acts of congress, the' enforcement of wMch, it was alleged, would annul and totally abolish the existing state government of the state, and establish another different one in its place, was held not to be within the jurisdiction of the court. The State of Georgia v. Stanton, 6 Wallace, 50. CHAPTER IV. OF THE APPELLATE JURISDICTION OF THE SUPREME COURT FROM THE CIRCUIT COURTS, BY WRIT OF ERROR AND APPEAL ; AND FROM THE STATE COURTS BY WRIT OF ERROR. We have seen' that by the thirteenth section of the LegiBiative judicial act it is declared, in general terms, that "the supreme court shall also have appellate jurisdiction from the circuit courts and courts of the several states in the cases hereinafter provided for." The reference here is to the twenty-second section of the act which defines the appellate jurisdiction of the court from the circuit courts ; and to the twenty- fifth section which defines this jurisdiction from the state courts. The provisions of these sections, except those parts of the former which will find a more suit- able place in the subsequent parts of this work, now require attention, together with some subsequent enactments modifying and extending them. The 23d section declares that "final judgments and decrees in a circuit court, in civil actions and suits in equity," may be re-examined and reversed or afiirmed in the supreme court, upon, writ of error, which has been, ' Ante, 13. 26 Appellate Jueisdictiok of the Supreme Coubt. PAETl. Appeal instead of writ of error in suits in equity and admiralty. Appellate jurisdic- tion ex- tended to suits by U. S. to en- force rev- enue laws, whatever he the amount in contro- versy. 1. BrougM there by original process (*. e., origi- nally instituted there) ; or, 3. Removed there from the courts of the several states ;' or, 3. Removed there by appeal from a district court, provided the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs. Under this provision, it wUl be observed, the mode of removal, whate'oer might be the nature of the suit, was by writ of error; and so it was held in the case of Blain v. Ship Charles Carter, 4 DalL, 22. But this was subsequently altered, and the appel- late power of the supreme court also extended, by the act of March 3, 1803, by which an appeal to the supreme court was given instead of a writ of error, "from all final judgments or decrees rendered, or to be rendered, in any circuit court, or iu any district court acting as a circuit court, in any cases of equity, of admiiralty and maritime jurisdiction, and of prize or no prize, where the matter in dispute, exclu- sive of costs, shall exceed the sum or value of two thousand dollars ; "' and so it was held in the case of the 8an Pedro, 2 Wheat., 132. Experience having demonstrated that causes aris- ing under the revenue laws directly involving only trifling sums, nevertheless sometimes involved ques- tions of considerable importance affecting the public revenue, an act was at length passed providing ' ' that final judgments in any circuit court of the United States, in any civil action brought by the United States for the enforcement of the revenue laws of the United States, or for the collection of duties due on any merchandise imported therein, may be examined, 'These, cases are designated by the 13th section and, several subse- quent acts, and will be noticed in treating of the jurisdiction of the circuit court. "Ch. 40 : 3 Stat, at Large, 244. Appellate Jueisdictiok of the Supreme Coubt. 27 and reversed or affirmed in the supreme court of the chap. 4. United States, upon writ of error, as in other cases, without regard to the amount in controversy m such action, at the instance of either party;'" and the phrase "revenue laws" in this enactment has been held to embrace an act of congress prescribing the rates of postage for the conveyance of letters by mail, and providing for the punishment of frauds on the revenue of the" post-office department ; and a writ of error to the supreme court was accordingly adjudged to lie to reverse the judgment of a circuit court in an action of debt for a penalty of less than two thousand dollars accruing under the act of March 3, 1845.' The United v. States Bromley, 12 Howard, 88. The act of 1844, just above cited, it will be noticed. Extended is restricted to actions brought by the United States ; net to Zlts ■, , . . , . -1 /. . against col- but a practice having ensued of suing the collectors lectors, &c. of revenue to recover back duties alleged to have been unlawfully exacted, the act of March 27, 1868, ch. 34 (15 Stat, at Large, 44), was at length passed, giving a writ of error to the parties in snch actions also. It enacts "That final judgments in any cir- cuit court of the United States in any civil action against a collector or other officer of the revenue, for any act done by him in the performance of his offi- cial duty, or for the recovery of any money exacted by or paid to him, which shall have been paid into the treasury of the United States, may, at the instance of either party^ may be re-examined and reversed or affirmed in the supreme court of the United States, upon writ of error, without regard to the sum or value in controversy." The second and only remaining section of the act repeals so much of the act of February 5, 1867, ch. 28 (14 Stat, at Large, 385), as authorizes appeals ' Act of May 31, 1844, ch. 31 : 5 Stat, at Large, 658. »Ch.42: id.,782. 28 Appellate Jueisdiction of the Supeeme Couet. PAKTi. from the judgments of the circuit court to the supreme court. Also to ' ^^^ similar reasons congress has seen fit to enact : copKigM* " That from all judgments and decrees of anycircuit court '^^^' rendered in any action, suit, controTersy or case, at law or in equity, arising under any law of the United States granting or confirming to authors the exclusive right to their respect- ive writings, or to inventors their exclusive right to their inventions or discoveries, a writ of error or appeal, as the case may require, shall lie, at the instance of either party, to the supreme court of the United States, in the same man- ner and under the same circumstances as is now provided by law in other judgments and decrees of such circuit courts, without regard to the sum or value in controversy in the action." ' Upon the provision of the judicial act above referred to giving a writ of error to the supreme court from the final decisions of the circuit courts on "appeal" from the district courts, the nice ques- tion arose at an early period, vrhether the term appeal was there used in its general sense, as descrip- tive of appellate jurisdiction without regard to the particular mode, by which a cause is transmitted to that jurisdiction, or in its ordinary technical sense, expressive of the civil law mode of removal, as con- tradistinguished from the common law process of writ of error. The latter was held to be its true sense. The United States v. Goodwin, 7 Cranch, 108 ; The United States v. Cfordonetal., id., 387/ The United States V. Ten BroecJc, 2 Wheat., 248 ; The United States V. Barker, id., 395. Bxtendea From this construction it followed, therefore, that to cases , ,(.'.., fcircrat**" ^^ judgment oi a circuit court, in a case brought ^IfJrror ^efore it by a writ of error, from a district court, or appeal Scrart. '-A-ct of Feb. 18, 1861, ch. 37 : 12 Stat, at Large, 130. This act en- larges ^.nd suparsedes the prior act of July 4, 1856, conferring the like privilege, somewhat qualified, in patent caBes. Appellate Jueisdiotiou of the Supeeme Court. 29 could be re-examined in the supreme court. TMs c hap. 4. arbitrary distinction continued until it was abolished by the act of July 4, 1840, by wMch. it is enacted, "that writs of error shall lie to the supreme court from all judgments of a circuit court, in cases brought there by writs of error from the district court, in like manner and under the same regulations, limitations and restrictions, as are now provided by law for writs of error to judgments rendered upon suits originally brought in the circuit court."' By the act of June 30, 1864, ch. 174 : (13 Stat, at Appeals m •' J ; \ prize causes Large, 310,) appeals in prize causes from the district f°o^*'^g'.®'^' courts are to be made directly to the supreme court, to°sapr'eme and made within thirty days, unless for cause shown ''°^' *"• the'tune for appeal shall have been extended by the court. Such appeals may be claimed in all cases where the amount in controversy exceeds two thousand doUars, and in other cases on th« certificate of the district judge that the adjudication involves a ques- tion of difficulty and general importance. And by the act of June 25, 1868, ch. 71 : 15 Stat. ^-XmT' at Large, 75, an appeal is given from all final decis- ^^^'^.^ns ions of the court of claims adverse to the United x^^.'^^*" States." ' Ch. 44 : 5 Stat, at Large, 393. Particular district courts have, from time to time, been invested with the original jurisdiction of a circuit court, and from their judgments and decrees a writ of error or appeal has been declared to lie to the supreme court, as from those of a circuit court ; and in each of the organized Territories of the United States, there are district courts and a supreme court, and from the final decis- ions of the latter, writs of error and appeals are given to the supreme court of the United States. These branches of jurisdiction will receive a separate notice in the sequel. "In the District of Columbia, the court originally established by con- gress therein, bearing the name of circuit 'court, was abolished by an act passed March 3, 1863, and in lieu of it a new court was, by the same act, established, under the name of Supreme Court of the District of Columbia, modeled 'essentially after the state supreme courts for the several judicial districts of New York. It consists of "four justices, ' EBBOK TO STATE OOUBTS 30 Appellate Jukisdiction of the Supebmb Court. P ARTI . After a lapse of nearly eigMy years the venerable wb^ 25tli section of the judicial act, holding so prominent a place in the history of American jurisprudence, was (except its last clause) supplanted by an act passed February 5, 1867, ch. 28 : 14 Stat, at Large, 385. The new enactment is as follows : "Sec. 3. And ie it further enacted, That a final judgment Qt decree in any suit in the highest court of the State in ■which a decision in the suit could be had, where is drawn in question the Talidity of a treaty or statute of, or an authority exercised under, the United States, and the deci- sion is against their validity, or where is drawn in question the validity of a statute of or authority exercised under any State, on the ground of their being repugnant to the con- stitution, treaties or laws of the United States, and the deci- sion is in favor of their validity, or where any title, right, privilege, or" imtnunity is claimed under the constitution, or any treaty or statute of, or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity set up or claimed by either party under such constitution, treaty, statute, com- mission or authority, may be reversed or affirmed in the Supreme Court of the United States, upon a writ of error, the citation being signed by the chief justice, or judge, or one of whom shall be denominated as chief justice." They are requir- ed to hold general terms, for which purpose three constitute a quorum, and special terms to be held \>j one of them. Fdr exact information relative to the organization and jurisdiction of this court, I refer the reader to the act itself. See 13 Stat, at Large, 762. Its final judg- ments, orders and decrees are subject to review by the supreme court of the United States, " upon writ of error or appeal, in the samecases and in the like manner as is now provided by law in reference to the final judgments, orders and decrees of the circuit court of the United States for the District of Columbia." The reference here is to the act of February 27, 1801, ch, 15 : 2 Stat, at Large, 103, giving a right of appeal and writ of error when the matter in dispute exceeded $100; and to an amendatory act of April 3, 1816, cM. 39 : 3 Stat, at Large, 361, substituting $1,000 in lieu of $100, unless one of the justices of the supreme court shall, for special prescribed reasons, upon petition by a suitor, otherwise order. Appellate Jurisdiction of the Supreme Court. -31 tlie chancellor of the court rendering or passing the judg- chap. 4. ment or decree complained of, or by a justice of the supreme court of the United States, in the same manner, and under the same regulations, and the writ shall have same effect, as if the judgment or decree complained of had heen rendered or passed in a court of the United States ; and the proceed- ings upon the reversal shall also be the same, except that the supreme court may, at their discretion, proceed to a final decision of the same, and award execution, or remand the same to an inferior court. This act shall not apply to the case of any person who is or may be held in custody of the nailitary authorities of the United States, charged with any military offense, or with having aided or abetted rebellion against the government of the United States, prior to the passage of this act." Except by the addition of its concluding provisory clause, tMs latter act differs little from the former except ia omitting its last clause in the following words: "But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before men- tioned questions of validity or construction of the said constitution, treaties, commissions, or authorities in dispute." The new act does not in terms repeal the old, and there being no irreconcilable inconsistency between the former and the omitted clause of the latter, the clause is doubtless to be regarded as still in force. The purpose of the new act appears to have been, 1, to exclude any limitation which might be supposed to be implied by the words " or where is drawn in question the construction of any blause of the constitution" &c., and thus to give to this great conservative enactment a freer and more unquestion- able scope, in strict accordance, however^ with its original policy ; and, 3, to empower the supreme court at its discretion, "to proceed to a final deci- sion" of the cause, "and award execution or 32* Appellate Jurisdiction of the Supreme Court. PARTI, remand the same to an inferior tribunal," without having once already fruitlessly remanded the cause to the state court. The phrase of "an inferior court," not ia the original act, seems, however, unnecessary and Ul-chosen. It will be noticed also that the word "construction," omitted iu the new enactment occurs again in the last clause, retained, of the 25th section ; but its restrictive import wiU doubtless be held to be neutralized, by its omission in reconstructing the more vital part of the section. The learned reader, I trust, will see that there is . nothing in these changes of the original act which affects the applicability or importance of the judicial dicisions enumerated iu the sequel relative to the 25th section of the judicial act ; and to avoid unne- cessary circumlocution no change of phraseology will be made in the few instances ia which the enact- ment is designated under the familiar name of the 25th section. The power conferred on the supreme court by the judiciary act to issue the writs of prohibition and mandamus has been left undisturbed by any addi- tional legislation. The authority to issue the writ qf Jidbeas corpus., on the contrary, has been largely extended and accurately defined. The power to issue it except to a very limited extent, being vested pri- marily, not in the supreme court, but in its judges individually, and in the judges of the district court, this is not the place for its further consideration. Its nature and importance entitle if to a separate chap- ter. The writs of prohibition and mandamus wiU be disposed of in this chapter. decMoM '^^ foregoing legislative acts have given rise to endless forensic disputation, a considerable propor- tion of which seems referable to want of due atten- tion to their provisions, and to antecedent adjudica- Appellate Jurisdiction op the Supebmb Oouet. 33 tions.' It is now proposed to state and illustrate tlie ohap. 4. judicial interpretations wMcli these acts have re- ceived ; and in doing so, to treat, conjointly, of the jurisdiction they confer, with respect to the national courts and to the state courts. Many of the decisions, especially those relating to the finality of judgments and decrees, are applicable alike to both. Little would be gained by an attemipt to sever them, and it would unavoidably lead to prolixity and repetition. 1. As shown in the last chapter, the constitution. Appellate after defining the original jurisdiction of the supreme tioncan be court, proceeds to ordain that in all the other cases ™'L'?^f"' BUallCc OI comprised within the judicial power of the United SritJ? States, this court shall have appellate jurisdiction '•'■wifh such exceptions and under such regulations as congress shall make. ' ' And we have now seepi that congress did not see fit, in pursuance of this discre- tionary power, expressly to limit the' appellate juris- diction of the court, by forbidding its exercise in certain specified cases; but on the contrary, chose simply to designate the cases to- which it should ex- tend. , This omission to make ' ' exceptions ' ' by nega- tive or restrictive words, gave rise to the question whether the court might not entertain jurisdiction of other cases, in virtue of the authority conferred by the constitution. But the reverse of this was held in the early case of Wiscart\. Dauchy (3 Dallas, 321) ; and the same result was, a few years later, more fully reasoned out by Chief Justice Marshall, in pro- nouncing the decision of the court in Durouseau v. The United States, 6 Cranch, 307. The question, therefore, in any given case, whether the court possesses appellate jurisdiction over it, ' TMs is especially true of the 25th section of the judicial act. It is wonderful to what misapprehensions it has led, and how often the supreme court has been called upon to decide over again what had already been virtually decided. 5 4 Appellate Jueisdiction of the Supreme Court. PAETi. resolves itself into the simple incLuiry whether such case falls within the legislative provisions enacted in pursuance of the constitution relative to the exercise of this branch of jurisdiction. If congress have pro- vided no rule of proceeding applicable to the case, either in express terms, or inferentially by fair intend- ment, no cognizance can be taken of it. It is not, however, to be understood by this that the appellate powers of the. supreme court are given to it by the judicial act. They are given by the constitution. And had this act merely organized the court, with- out defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns it. In that case, the legislature, by otaitting to exercise the right of excepting from its constitutional powers, would necessarily have left those powers undiminished. The doctrine of the cases above cited results from the fact that congress, in proceeding to carry this part of the constitution into effect, has provided extensively for the exercise of this bi'anch of jurisdiction ; and is, therefore, to be understood as having intended to execute the power it possessed of maTcing exceptions. For though it has not made those exceptions in terms, yet the affirmative discription of the appellate power of the court implies a negative upon the exercise of such constitutional appellate power as is not com- prehended within it. See also, in illustration of this principle, the case of OlarTce v. Bazadone (1 Cranch, 212), in which it was held that a writ of error did not lie to the supreme court from a court of the United States for the territory northwest of the Ohio, because it had not been authorized by congress, joesnot 2. In conformity with this principle, it has been irimiuai decided that the supreme court possesses no appel- late jurisdiction in any form, /rom the circuit courts in eriminal cases ; no such pow;er having been con- Appellate jTrRiSDicTiON of the Supreme Court. 35 Med to it by congress. United States v. Moore, 3 chap. i. Crancli, 159; ex parte Kearney, 1 Wteat., 38; ex parte WatMns, 3 Peters, 193.' 3. In Martin v. Hunter (1 Wheat., 304), tlie con- From the ..,,-_. judgments stitntionality of the 25t]i section of the judicial act, of^t**^ providing for the re-examination by the supreme court in certain cases of the judgments of state courts, was strenuously drawn in question by the counsel for the defendant in error, upon the ground thaf^the appellate power of the court was, according to the true construction of the constitution, limited to proceedings in the inferior national judicatories. But the validity of the law was most elaborately and sstii sectioii ably vindicated, and fully maintained by the supreme titionai. court. The appellate jurisdiction of the court, in this form, had before, as it has since, tteen repeatedly exercised, and is now, especially after the ample and explicit confirmation of it in QoJiens v. Yirginia (6 Wheat., 264), to be regarded as definitely settled. 4. In this last mentioned case of Cohens v. Yirqinia, i* matters ■^ ' not thongh it was also decided, that the circumstance of a state * ^^t^ be a ^ party. ieing a party (this case being a criminal prosecution against a citi^ien of Virginia for a violation of a law of that state), constituted no objection to the exercise of this appellate jurisdiction ; the validity of a stat- ute of a state being drawn in question on the ground of its repugnancy to a law of the United States, and the decision having been in favor of its validity ; and no exception of cases of this discription having been made by congress. In this case the whole subject of the judicial ' The power exercised by the supreme court in cases brought before it from the circuit courts, by certificates of opinions opposed, an4'wHch extends as well to criminal as to civil cases, is sui generis, being advi- sory, rather than appellate. 36 Appellate Jurisdiction of the Supeeme Court. PAKTl. Maybe ex- tended to caBes of original ju- ileaiction. Wliat jndg- mentB are final. Hnst deter- mine the whole merits. autliority of the Union over the state judicatories, was canvassed by the cMef justice in a most masterly and instructive manner. It is proper here also, somewhat more explicitly to add, that although the supreme court can exercise original jurisdiction only in those two descriptions of cases in which it has in terms been confided to it by the constitution, and, although it is declared by the constitution that in all the other cases, it shaU have appellate jurisdiction, yet that there is no con- stitutional restraint upon its exercise of appellate jurisdiction in any case to which the judicial power of the United States extends, though it should be a case falling within its original jurisdiction. CoTiens V. Virginia, 6 Wheat., 264. 5. By the judicial act, as already shown, it is only the ^TiaZ judgments and decrees of the courts of the states, and of the circuit courts of the United States, which are subject to re-examination in the supreme court. In reference to this limitation it has been determin- ed, that a writ of error' will not]lie from a decree in a circuit court upon a bUl in equity, overruling a plea, and ordering the defendant to answer the bill. ButTierford Y. Fisher, 4 Dallas, 22. Nor does an appeal lie from an interlocutory decree dissolving an injunction. • Y&wng v. Chrundy, 6 Cranch, 51. Nor from a decree affirming a decretal order of an inferior court, refusing to dissolve an injunction. QiUbons v. Ogden, 6 Wheat., 448. A decree in chancery direct- ing a further inquiry as to matter of law or fact is not final. To warrant an appeal it must finally decide and dispose of the whole merits of the cause, so that . it will not be necessary to bring the cause again before the court for its final decision. Beebe et al. v. ' This was before the substitution of an error in cases in equity. instead of a writ of Appellate Jueisdictiost of the Supeemb Ooubt. 37 Russell, 19 Howard, 283. In tMs case the rale was chap. 4. fully discussed, and, as therein laid down, was reas- serted in Farrely v. WoodfoTc, id., 288; see also Mordecai v, Lindsay, id., 199. Nor for want of final- ity, will a writ of error lie to reverse an award of a writ of restitution in an action of ejectment. BmiW s Lessee Y. Trdbu^s heirs, 9 Peters, 4. Nor npon an order of the circuit court quashing an inquisition of damages under the charter of a canal company. Chesapeake & Ohio Ganal Qo. v. Union BanTc, 8 Peters, 259. But a decree for the sale of mortgaged property, upon a bill to forclose, is a final decree from which an appeal Ues to the supreme court. Ray V. Law, 3 Cranch, 179. A judgment of the highest court of a State revers- ing a judgment of an inferior court, and awarding a' venire de novo is not a final judgment in the sense in which that term is used in the 25th section of the judicial act. Houston v. Moore, 3 Wheat., 433. Nor a judgment of a court of appeals reversing a judgment of an inferior court, and remanding the cause for further proceedings. BrownY. The BanTc of Florida, 4 Howard 465; Pepper v. Bunlap, 5 id. 51. In the case of Martin v. Hunter's Lessee (1 Wheat., 304), the court of appeals of Virginia having decMned to obey the mandate of the supreme court of the U:^ited States, issued to such state court upon the reversal by the supreme court of a judgment rendered therein, it was held that such refusal was a final judgment, upon which a writ of error would lie. In the case of Weston et al. v. The City Council of judgment or d6cr66 Charleston (2 Peters, 449), the defendants, under a anaiif it ^ 7/7 determineB general authority by law to tax the property owned f^j%P^',^™- and possessed within the city of Charleston, had imposed a tax upon certain property, supposed by the owners to be protected from taxation under the authority of a state, by the constitution and laws of 38 Appellate Jurisdiction of the Supreme Court. PAETi. the United States. Upon application to an inferior state court, a prohibition was granted to restrain the defendants from levying the tax. The defendants, therefore, removed the proceeding to the highest Gonrt in the state, and obtained a reversal of the order of the inferior court, awarding the prohibition. Upon a writ of error from the supreme court of the United States, to re-examine this latter decision, the question arose whether this was a "flnal judgment" according to the true iaterpretation of these terms ia this section of the judicial act : and it was held by a maj ority of the court that it was. If the term ' ' final' ' was applicable to those judgments and decrees only, in which the right was finally decided, and could never again be litigated between the parties, the pro- vision of this section would be confined within much narrower limits than the words import, or than con- gress intended. Judgments in actions of ejectment, and decrees in chancery dismissing a bUl without prejudice, however deeply they might affect the rights protected by the constitution, laws, or treaties of the United States, would not be subject to the revision of this court. A prohibition might issue restraining a collector from collecting duties, and this ■court could not revise and correct the judgment. The word "final," must be understood in the section under consideration, as applying to all judgments and decrees which determine tlie particular- cause : and it must, in this sense be final as to all the parties to the record ; otherwise the writ of error wHl be dismissed. The United States v. Oirault et al., 11 Howard, 22 ; see also Van Ness v. Van Ness, 6 id., 62 ; PerMns v. Fourniquet et al., id., 206; Pepper v. Dunlap, 6 id., 51; Miners' BanJcY. The United States, id., 213 ; Listendorfer v. Webb, 20 id., 170 ; Holcombe V. McEussicTi, id., 652; McCargo v. Chapman, id., 555. Appellate Jueisdiction op the Sttpkeme Cotjet. 39 6. But the judgment or decree of the state court ca gAP. 4. must he in a '^ suit, ' ' and tlie question has arisen what what is a constitutes a suit within the purview of the act. It arose in the case last above cited, and the proceeding in the state court therein described was held to be a suit. The term ' ' suit, ' ' say the court, is a very com- prehensive one, and is understood to apply to any pro- ceeding in a court of justice, by which an individual pursues therein, that remedy which the Mw affords him. The modes of proceeding may be various, but if a right is litigated between the parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit. The question arose, also, and was elaborately discussed in the case of Holmes V. Jennison et at. (14 Peters, 540), which came before the court on a writ of error to reverse the judgment of a state court on a writ of Tiaheas corpus. Upon the question of jurisdiction the court was equally divided. But the chief justice, in pronouncing his own opinion and that of three of the associate justices, assigned very satisfactory reasons for holding the proceeding to be a suit, and the remaining members of the court founded their conclusions against its jurisdiction. mainly on other grounds.' And in the subsequent case of Ableman v. Booth (31 Howard, 506), also a writ of error to reverse the judgment of a state court on a writ of habeas corpus, the jurisdic- tion of the court was unquestioned, and, apparently, not doubted. It is perfectly clear, indeed, that a proceeding on habeas corpus is embraced by the interpretation given to the word suit in the case of Weston V. The City Council of Charleston, just above cited. 7 In what manner, or rather with what degree of jurisaic- j}i ^ ^ J.-1 tion under certainty it must ''appear upon the face of the ^^^^-^ record"" that some one of the points specified in the ma^eto •See a note upon this case a few pages ^o«<. 40 Appellate JuBiSDioTibN of the Supeemb Couet. PAETl. Unavoid- able impli- cation suffi- cient. twenty-fiftli section' of the juaicial act in order to enable the supreme court to revise the judgments and decrees of the state courts, '■^was drawn in question" in the state court, is a question which has often been agitated. By a long series of decisions, however, the following general principle may now be regarded as definitely settled, viz : that it need not appear in terms upon the, record that one of these poiats in' fact arose and was' decided in the required . manner ; but that it is sufficient, if it is apparent that the case in point of law involved one of the specified questions, and could not have been decided by the state court in the manner it was, unless such question had been virtually passed upon and determined in the required manner. Thus in the case of Craig et al. V. The State of Missouri (4 Peters, 410), the suit in the state court having, as appeared by- the record returned with the writ of error, "been upon a promissory note (the declaration being in the usual form, and the plea being the general issue), in which (neither party having required a jury), the court found that the defendant did assume, &c., and that the consideration of the note was "the loan of loan office certificates, loaned by the state at their office at Charleston ; which certificates were issued and the loan made in the manner pointed out by an act of the legislature of the said state of Missouri, approved the 27th day of June, 1831, entitled "an act for the establishment of loan offices," and the "act amendatory and supple- mentary theretd," and that "the plaiitiff had sus- tained damages, &c., &c.; for which a judgment was rendere'd ; it was held, that it was sufficiently apparent upon the face of the record, that the validity of a -statute of the state of Missouri, was drawn ia question upon the ground of its being ' Vide swpra, 25. Appellate Jurisdiction op the Sxtpebmb Cotjrt. 41 f repugnant to that provision of the constitution of the ohap. 4. United States, which prohibits the states from emit- ting bills of credit, and that it presented a case therefore, to wMch the appellate jurisdiction of the court extended, in virtue of the twenty-fifth section of the judicial act." "The record," say the court, " shows distinctly that this point existed, and that no other did exist ; the special statement of the facts made by the court as exhibiting the foundation of its judgment, contains this point and no other; The record shijws clearly that the cause did depend and must depend on this point alone. If in such a case the mere omission of the court of Missouri to say in terms, that the act of the legislature was constitu- tional, withdraws that point from the cause, and must close the judicial eyes of the appellate tribunal upon it, nothing can be more obvious than that the provisions of the constitution and of an act of con- gress, may be always evaded ; and may be often, as we think they would be in this case, unintentionally defeated." This decision, the court were of opinion, was in strict conformity with their prior decisions upon this section of the judicial act, and they cite the following cases in confirmation of the fact : Bmith V. The State of Maryland, 6 Cranch, 286 ; Martin V. Hunter's Lessee, 1 Wheat., 355 ; Miller v. Nich- ols, 4 id., 311; Williams v. Norris, 11 id., 117; Wilson et al. v. The BlacTcMrd CreeTc Marsh Com- pany, 2 Peters, 246; and Harris v. Dennie, 3 id., 292 ; see also Mills v. Brown, 16 id., 525. But that some one of the questions designated in the 25t'h section did arise in the state court, and that it was decided in the manner required by the section, , must appear on the face of the record, either in express terms or by necessary intendment. It is not enough that such question may have arisen and may have been so decided. Crowell v. Bandell, 10 Peters, 42 Appellate JuEiSDicnoN of the Supreme Court. pAETi. 368 ; W Kinney Y. Carroll, 12 id., 66 ; Ocean Insur- ance Company v. Policy s, 13 id., 187 ; Coons et al., V. Qallaher et al., 15 id., 18. See, also, Dams v. PacTcard et al., 6 id., 41 ; S. C, 7 id., 276 ; 8 id., 312 ; Wallace v. ParJcer, id., 680 ; Byrne v. The State of Missouri, 8 id., 40 ; The City of Mw Orleans v. De Armas et al, 9 id., 224 ; The Palmyra, 10 Wheat., 602 ; Carter's heirs v. Cutting et ux., 8 Crancli, 251 ; Mason v. Mason, 1 Cranch, 45 ; Mills v. Broibn, 16 Peters, 525. Mnet be The jurisdiction of the court^miist appeaj" from the the record. rcGord per sc, strictly considered. Fisher v. CocTc- erell, 5 Peters, 548 ; Lessee of Reed v. Marsh, 13 Peters, 153. And therefore the certificate of the clerk of the state court appended to the record, showing what documents were read and relied on at the trial, or on what grounds the case was decided, can have no. uifluence. lb. See, also, the case of Armstrong V. Treasurer of Athens County, 16 Peters, 281, where this principle is elaborately reasserted and defined as foUo'ws : " In order to giye this court jurisdiction under the 25th section of the act of 1789, it must appear on the record itself, to be one of the cases enumerated in that section : and nothing out of the record certified to this court can he taken into consideration. This must be shown : First, Either by express arerment, or by necessary intendment, in the plead- ings in the 'case ; or, Secondly, By the direction given by the court, and stated in the exception ; or, Thirdly, When the proceeding is according to the law of Louisiana, by the statement of facts, and of the decision, as usually made in such cases, by the court ; or, Fourthly, It must be entered on the record of the proceedings in the appellate court, in cases where the record shows that such a point may have arisen and been decided, that it was in fact raised and decided — and this entry must appear to have been made by order of the court, or by the presiding judge, by order of the court, and certified by the clerk, as a part of the record in Appellate JuRisDicriosr of the Supreme Court. 43 the state court ; or, PiftMy, In proceedings in equity, it may chaj. 4. be stated in the body of the final decree of the state court ; or, Sixthly, It must appear from the record that the ques- tion was necessarily involved in the decision, and that the state court could not have given the judgment or decree which they passed, without deciding it. "We are not aware of any other mode in which the judgment or decree of a state court can lawfully be brought before us ; and we have stated them particularly, in order to prevent, in future, the difficulties and discrepancies which have so often arisen on this subject." See to tlie like effect, Commercial Bank of Qincin- nuti V. BuckingTiam) s Executors, 5 Howard, 317; Or and Gulf Railroad Company et al., v. Ma/r shall, 12 Howard, 165 ; 20 Howard, 26. WTiere it appears from the record that the decision constrnc- tion of state of the state court turned upon the construction of the ^^^i""' ^ within the state law, and that the question of its validity was ^^^ ""^^s^- not raised, the court has no-jurisdiction. 12 Howard, 165. See, also, Oill v. Oliver's Executors et al., 11 id., 629 ; Williams et al., v. Oli'oer et al., 12 id., Ill ; Linton et al. v. Stanton, 12 id., 423 ; Smith v. Hun- ter et al., 7 id., 738 ; Udell et al. v. Davidson,' id., 769 ; Neilson v. Lagow, id., 772 ; Mills et al. v. The County of St. Clair et al., 8 id., 569 ; Baltimore and Susquehannah R. R. Co., v. Nesbit et al., 10 id. 395 ; ■ • The State of Maryland v. The Baltimore and Ohio R.R. Co., Sid., 534. To entitle a party to a writ of error on the ground The right, J^ J ° &c., denied that the decision of the state court was adverse to a s"?'^^,, that of the title, right, privilege, or exemption, set up or claimed l^^^^- by him in virtue of the constitution, or of a treaty or statute of the United States, it must appear that such title, &c., was claimed &shis, and not for a third person; and, therefore, where a defendant, in an action of ejectment, set up an outstanding tttle in a third person, derived from a treaty with an Indian 44 Appellate Jtteisdiction of the Supreme Court. * PART 1. tribe, and the decision of the state court was against such title, the case was held not to be embraced by the 25th section of the judiciary act, because the defendant derived his right to set up this form of defense, not from the treaty, but from the laws of the state of Tennessee, by which it was authorized. Henderson et al. v. TJie State of Tennessee, 10 How- ard, 311. What con- 8. What sJiall he considered as constituting a case case arising arisino undcT tJie constitution, laws or treaties of under the " ' to'&ci ^^^ United States witMn the import of these terms as used in the constitution, is a question which has sev- eral times been brought iato discussion in the supreme court. In the case of Worcester v. The State of Georgia (6 Peters, 515), the plaiatiff in error had been indict- ed and convicted in a state court of Georgia for residing among the Cherokee Indians without having complied with certain conditions required by an act of the legislature of Georgia. His defense before the state court was, that the law of Georgia under which he was indicted, was repugnant to the treaties between the United States and Georgia, and also to the provisions of the act of Congress of March, 1802,' regulating trade and intercourse with the Indian tribes, and was therefore void. The court considered its jurisdiction over the case too clear for controversy. The indictment and plea drew in question the validity of the treaties relied on by the plaintiff in error, or, at least their construc- tion ; and the decision had been, if not against their validity, against the right, privilege, or exemption specially set up or claimed under them." They also drew into question the validity of a statute of the state of Georgia, "on the ground of its being repug- nant to- the constitution, treaties and laws of the Appellate Jueisdiction of the Supeeme Court. 45 United States, and the decision had been in favor of chap. 4. its validity." The case of Smith v. Maryland (6 Cranch, 286), involved the question, whether the confiscation of the property of British subjects, under a law of the state of Maryland, was complete, before the treaty of peace of 1783, between the United States and Great Britain, so as to render the 6th article of the treaty protecting such property if not actually con- fiscated, inapplicable to the case : and it was held that the appellate jurisdiction of the supreme court extended to it. In the case of Owing s v. Norwood) s Lessee (5 Cranch, 344), ia which the defendant in an action of ejectment set up an outstanding title in a British subject, which he contended was protected by the treaty of 1794, and that the title was therefore out of the plaintiff, it was held that a writ of error would not lie to re- move the decision of the state court against the title thus set up. The language of the judiciary act must b% restrained by that of the constitution ; according to which the case must arise under a treaty, &c. But in this case no title was claimed by either party under the treaty, nor could the title of either party be protected by it ; it was not a case therefore arising under a treaty. But it was further remarked by the court, that itissufli- •^ ' cient if wherever a treaty of the United States is drawn in 'J'^i^'f^'j^ question, whether directly or incidentally ; whether g™^^t°Sy, a right claimed grows out of, or is protected by, the *"'• treaty, the appellate power of the court extends to the case. In the case of The City of New Orleans v. Be Arms et al. (9 Peters, 224), on a motion to dismiss a writ of error to the state court for want of jurisdic- tion, it was insisted by the counsel for the defendants in error, that a case could be considered as arising 46 Appellate JiTEiSDiCTrosr of the Supbeme Court. PAETi. Tinder tlie constitution or a treaty, only wlien tlie riglit or title claimed must originate in, or be created by, the constitution or treaty. But though the writ of error was dismissed for want of jurisdiction on other accounts, the court, in accordance with what was said in the case last above cited, held the prin- ciple thus laid down by the counsel to be too narrow. Such a construction of the constitution and of the judicial act, said Chief Justice Marshall, would defeat the obvious purpose of both. The language of both extends the jurisdiction of this court to rights protected by the constitution, treaties, or laws of the United States, from wJiatexier source those rights may spring. In the case of Wallace v. ParTcer (6 Peters, 680), on appeal from the supreme court of Ohio, it appear- ing on the face of the record that there had been drawn in question at the trial, the construction of the act of cession by Virginia ; of the resolution of con- gress accepting the deed of cession ; and of the acts of congress prolonging the time for compMtng the title to lands withia the Virginia military reservation (of which the lands in question formed a part) ; and that the decision of the state court has been against the title set up under the acts of congress, it was held that the supreme court had jurisdiction. "^^X^f-^ But the right or title claimed must be one depend- theSstf- *^''9' ^^ *-^^ constitution, laws or treaties of the United States. It is not sufficient that it was originally derived from one of these sources, unless the validity of such original grant is drawn into controversy. Thus, in a suit between parties claiming title to lands under separate patents therefor, granted by a state deriving its title thereto from an act of congress, the supreme court has no jurisdiction under the 25th sec- tion, to review the judgment of the state court in favor of one of the claimants, both parties admittiag tion, &c. Appellate Jubisdictiost of the Supeemb Court. 47 the title of the state, and the act of congress, there- c hap. 4 . fore, not having been .drawn in question. Shaffer v. Scvddy, 19 Howard, 16 ; see to the like eflfect, Mich. HR. V. Mich. 8. ItR. Co., id., 379 ; BurTce v. Qaines, id., 338; WymanY. Morris, id., 3. If a state court deny or disregard a petition for the »eniai by •' or state court, removal of a cause to the circuit court, and proceed foVremovai to judgment, and its judgment is affirmed in the high- act.'™'*'^* est court of the state, this is a case within the 25th section — the right of removal being given by a law of the United States. Gordon v. Longest, 16 Peters, 97 ; Kanouse v. Martin, 15 Howard, 198. It has been imagined that the repugnancy of a Alleged re- ^ ^ ^ *J pugnaucT state law to some restrictive provision of the state llllll^l^. constitution, as, for example, a clause forbidding the not wuSiu taking of private property for public use without just *^® **''■ compensation, would constitute a case for the exer- cise by the supreme court, of the jurisdiction con- ferred by the 25th section of the judiciary act. But the contrary has been repeatedly decided. !N"or, in the case supposed, can the court exercise jurisdiction in virtue of the like inhibition contained in the 5th article of the amendments to the constitution of the United States. This is a restraint imposed on con- gress, not, on the state legislatures. WitJiersY. Buck- . ley, 2 Howard, 84, citing other cases. See, also, relative to the subject, Byrne v. The State of Missouri, 8 Peters, 40 ; Crowell v. Bandell, 10 Peters, 368 ; M' Bride v. Eoey, 11 Peters, 167 -, Choteau v. Marguerite, 12 Peters, 107 ; The Ocean Insurance Company v. Policy s, IS Peters, 157.' 'In tlie case of OroweU^ v. Sandell, the antecedent cases relating to tMs point are reviewed ; and in the subsequent case of Chateau v. Mar- guerite (13 Peters, 507), the court refer to it as a case in which the law is laid down as they wish it to be universally understood. 48 Appellate Jtjeisdiction of the Supreme Court. PARTI. There are otlier decisions affecting tMs ^[Tiestion, • wMcli will be noticed in a subsequent part of this work. ' ' In the case of George Holmes v. 8Uas E. Jennison, Governor of the State of Vermont, cmd John Sta/rkweather, Sheriff of the County of Washington, in tlae said state, and their successors in office (14 Peters, 540), the plaintiff in error had been 9,rre8ted in the State of Vermont, on a warrant or order issued by Governor Jennison to Starkweather, setting forth that an indictment had been found by a grand jury of the district of Quebec, in the British Province of Lower Canada, against the said Holmes, for the crime of murder, alleged to have been comniitted within the district of Quebec, and that as it was fit and expedient that he should b"e made amenable to the laws of the country where the offense was charged to have been committed, the said Starkweather was commanded to convey the body of the said Holmes to some con- venient place on the confines of the State of Vermont, and the Pro- vince of Lower Canada, and there deliver him to such persons as might be empowered by the Canadian authorities to receive him ; to the end that he might be there dealt with as to law and justice appertained. On the application of Holmes a writ of habeas corpits was issued by the supreme court of the State of Vermont, commanding the said Stark- weather to bring into court the body of the said Holmes ; and in return to this writ the warrant or order of the governor of the state, as above described, was set forth as the cause of the said arrest and deten- tion. Holmes having been brought into court, in obedience to the writ- the judgment of the court, on the motion for his discharge, was in the following words : " Wherefore, after a full hearing of the parties, and all and singular the premises aforesaid being s^en and fully examined, it is adjudged by the court here that the aforesaid cause of detention and imprisonmeht of the said George Holmes is good and sufficient in law ; and that he be remanded and held accordingly, under the process set forth in the return to this writ of habeas corpits." For the re-examination of this decision, as a final judgment of the highest court of a state, in a suit in which was drawn in question the validity of an authority exercised under a state, on the ground of such authority being repugnant to the constitution of the United States, and in which the decision was in favor of such validity — a writ of error was brought to the supreme court. Mr. Van Ness, by whom the case was elaborately and very ably argued for the plaintiff, insisted, first, that the supreme court had jurisdic- tion of the case ; and second, that the State of Vermont had no right or power to deUver up Holmes, such authority belonging, from its nature, to the national government. Upon the question of jurisdiction, the court was equally divided; the Chief Justice, and Justices Storey, McLean and Wayne being of Appellate Jurisdiction- of the Supreme Court. 49 9. Several decisions have been made with, respect chap. 4. to the provision contained in the judicial act of 1789, when the and contained also in the act of March 3, 1803, limit- rantro- " ing writs of error and appeals from the circuit to the i^e said to ■^■'^ exceed suprelne court, to cases in which the matter in con- ^^-o*"'. troversy exceeds two thousand dollars. This affirmative description of cases to which the appellate jurisdiction of the court shall extend, ex- cludes, by implication, all cases not excepted by subsequent laws, in which the matter in dispute does opinion that the jurisdiction of the court extended to the case ; Justices Thompson, Baldwin, Bakbouk and Catkon being of the opposite opinion, and Mr. Justice M'Kinlet being absent. No authoritative judgment could, therefore, be pronounced, either upon the qestion of jurisdiction or upon the merits. The chief justice, however, in deliver- ing the opinion of himself and his three brethren who concurred with him, considered it necessary to enter elaborately into the nature of the authority exercised by the governor of Vermont, and to show (as he has, I think, very satisfactorily done) that it belongs, not to the states, but to the nation, as a power pertaining to foreign intercourse, and which may be called into action either by law or by treaty. The question of jurisdiction was one of great nicety. The case is highly instructive, and should be attentively read. Treaties have since been entered into by the United States, with Great Britain and France, containing mutual stipulations for the sur. render of fugitives from justice charged with great crimes. One of the questions on which the jurisdiction of the court was sup- Proceed- posed to depend was, whether a proceeding in a state court on a writ of or habeaB habeas corpus, is a, suit within the just interpretation of the word as j^"^'* used in the twenty-fifth section of the judiciary act, and the question was elaborately discussed by the counsel for the plaintiff in error, and by the chief justice in pronouncing the opinion of himself and three of his associates. But the jurisdiction of the court was denied by the other justices, on the less questionable ground that the validity of no treaty or statute of the United States had been drawn in question in the suit in the state court, nor the validity of any statute of the state, on the ground of its being repugnant to the constitution, treaties or laws of the United States, neither of which contained any express pro- vision upon the subject. In AJbleman v. Booth, also a case of habeas corpus occurring several years later, in which the decision was unani- mous, jurisdiction was exercised without question, and apparently without scruple. This last mentioned case will be more particularly noticed in the sequel. 7 50 PART 1. When the action la on a penal hond, the amonnt of the recov- ery Is the test. On a writ of error brought hy J>laintiff on ndgment for defend- ant, the amount of damages claimed Is the test. Appellate Jurisdiction of the Supreme Court. not exceed the sum specified, and therefore in these cases no writ of error lies. Durousseau v. The United States, 6 Cranch, 307, 314. Difficulty, however, sometimes exists in the prac- tical application of this test. The case of Wilson v. Daniel (3 Dallas, 401, and see 8. C.,2 Dallas, 360, n.), was an action of debt, in which the judgment was for sixty thousand dollars, "to be discharged by the payment of eighteen hun- dred dollars," and it was held by a majority of the judges that the court possessed jurisdiction. But the reasons by which they appear to have been severally led to this conclusion are so variant as to render it difficult to deduce from the decision any rule applicable to other cases. In the case of The United States v. McDowell (4 Cranch, 316), it was decided that a writ of error would not lie to reverse a judgment for the defendant in an action of debt upon a marshal's bond in a penalty of twenty thousand dollars, for the faithful performance of official duties, where the breach assigned was the omision to pay over the sum of three hundred and twenty-eight dollars. It is therefore to the condition and not to the penalty of the bond that the court will look. In the case of CooJce v. Woodruff (5 Cranch, 13), which was an action in trover, in which the judgment upon which the writ of error was brought, was for the defendant, it was objected that the amount of damages laid in the plaintiff'' s declaration was not sufficient evidence of the sum in dispute, to enable the supreme court to entertain jurisdiction in error ; and the counsel for the defendant in error, in sup- port of this objection, referred to the 13th general • rule of the court by which the plaintiff in error is permitted to proxie the amount in dispute by affi- davit. Appellate Jtjrisdiction- of the Supreme Court. 61 But the objection was overruled ; and Chief Jus- chap. 4. tice Maeshaxl said, that that rule applied only to cases where the property itself (and not damages), was the matter in dispute-rsuch as actions of detinue, &c. If the judgment below be for the plaintiff, that judgment ascertains the value of the matter in dis- pute ; but where the judgment below is rendered for the defendant, this court has not, by any rule or practice, fixed the mode of ascertaining that value. The only point directly adjudicated in this case, it will be perceived is, that in actions of tort sounding in damages, where the judgment is for the defendant, the question of jurisdiction, so far as it depends upon the sum in dispute, is to be determined by reference to the amount of damages claimed by the plaintiff ia his declaration. But it will also be observed, that another rule is laid down in unqualified terms by the chief justice of no less importance, viz., that where the judgment below is for the plaintiff, the amount of the recovery is to gonern; and 'in the subsequent case of Wise & Lynn v. Colwrribian Turnpike Co. (7 Cranch, 276), this point was directly adjudicated. But in the cases of Gordon et at v. Ogden (3 Peters, 33), and of Smith V. Honey (id. 469), the rule was qualified and defined in a- manner obviously agreeable to the spirit of the act. It is there decided that whatever may have been the amount claimed by the plaintiff in the court below, if the judgment in his favor is for less on a jnag- than two thousand dollars, and the writ of error has >eBB than $2,000 a been sued out by the defendant below, the court ^"^n"! T" has not jurisdiction ' but if, in such case, the writ of aSdiiS^ error is brought by th.^ plaintiff helow (provided the byVSmtifft amount claimed in his declaration exceeds two thous- ^"c."^^^' ' It is the amount for whicli the judgment was given that is to govern. Interest subsequent accruing, therefore, is disregarded. Kna/pp v. Banks' 2 How. E., 73. )2 Appellate JtrBiSDiCTiosr of the Supreme Cottet. PAHT 1. and dollars), the court ^as jurisdiction, because should the judgment be reversed he may stUl recover what he claims. See, also, Knapp v. Banks, 2 Howard, 73, low on In the case of Lee v. Lee (8 Peters, 44), a petition reedom. °' for freedom, by persons who have been slaves, had been filed in the circuit court for the county of Wash- ington, ia the District of Columbia, from which court an appeal lies to the supreme court only where the matter ia dispute is of the value of one thousand dollars or upwards. The decision of the circuit court was against the petitioners. On a writ of error to the supreme court it was objected, that the value in controversy was insufficient to give j urisdiction. But the niatter in dispute being the freedom of the peti- tioners, the c6urt entertained no doubt of its jurisdic- tion ; and as the value of freedom was not susceptible of a pecuniary valuation, it was held not to be a case to which the rule authorizing the amount in dispute to be shown by affidavit, was applicable. Had the decision of the circuit court been in favor of the peti- tioners, and the writ of error been prosecuted by the party claiming to be the owner, the value of the slaves as property would have constituted the matter in dis- ' pute, and affidavits to ascertain this value would have been admissible. rainotiie Nevertheless, in the case of Barry y: Mercein (5 m refaaal tttjt/t >f iiabeas Howard, 103), it was held that where the circuit court scrpns by y / / "tSn'poB- ^^^ refused to grant a -writ of Tidbeas corpus prayed lirchui fo^ by a father, to take his infant child out of the cus- tody of the mother, a writ of error would not lie. The matter in dispute, say the court, must have a known and certain value, which can be proved and calculated sor on dis- in the ordinary mode of business transactions And :harge from " imprison- upou this grouud it was held, m Pratt v. Fitzhugh (1 Black.,' 271), that a writ of error wUl nat Lie to reverse the judgment of a circuit court discharging a party from imprisonment on execution. Appellate Jurisdictiok of the Sttpreme CotrRT. 53 Wlieii tlie prayer of a bill in ecLuitj shows that the chap. 4. complainant' s demand is susceptible of computation, Nor where and that by no legal possibility it can be adjudged to is^eyid^nSy exceed two thousand dollars, no appeal will lie. required^ ^^ ' ■' -L a. amount. 8ewall V. CTiarriberlain, 5 Howard, 6. In the .case of Meredith v. McKee (1 Peters, 248), Thereqni- ^ ' y' site amount the point decided seems to be that the requisite ^"tiyta^' amount must be directly in contest in the suit, and <=°°*^^'- that the covoct will not look beyond the case before them, to see what other or further interests may be incidentally affected by the decision. The case, how- ever, is rather peculiar in its nature, and perhaps may not folly warrant this position without qualification, as it seems not to do the abstract of it by the reporter. In the admiralty, seamen are permitted to sue comwna- jointly for wages accruing under the same shipping ateSflsrwe articles for the same voyage. But their respective contracts are, nevertheless, to be treated as several and distinct, and the fact that several claims of this description embraced in the same suit amount, in the aggregate, to more than two thousand dollars, is instifficient to give jurisdiction on appeal to the supreme court. Oliver et al. v. Alexander et al., 6 Peters, 143. The same principle is applicable also to the case of salvage adjudged against the several owners of parts of a cargo saved, when the sum to be paid by no one of the owners exceeds two thous- and dollars, although the whole amount awarded to the salvors is more than that sum. Spear, claimant, &c., V. Place, 11 Howard, 532. And also to the case of several suits consolidated by order of the court below, brought by the owners of goods to recover damages for the breach of a contract of affreight ment. And where, in such case, the sum awarded to some of the libelants is more, and to others less than two thousand dollars, the appeal will be dis- 54 Appellate Jurisdiction- of the Stipeeme Court. PARTI, missed as to the latter. Rich et al. v. Lambert et al., 12 Howard, 347. In further illustration of the principles above stated, relative to this point, see Scott v. Lunt^s Administrator,' Q Peters, 349 ; The United States v. M' Daniel et al., id., 634 ; The Bank of the United States V. Daniels, 12 id., 32 ; Boss v. Prentiss, 3 Howard, 771 ; Oruner v. The United States, 11 id., 163; Shields Y. Thomas, 17 id., 3; Udall\. Steam- ship Ohio, Yt id., 17; Knapp v. Banks, 2 Peters, 73 ; Bank of the United States v. Daniel, 12 id., 32 ; United States v. 84 Boxes of Sugar, 7 id., 453 ; Crrant v. M'Kee, 1 id., 248 ; jRi/an v. Bradly, 1 Wallace, 66; Walker v. The United States, 4 id., 163. Exceptions But wlth Tespect to Certain cases of prize, and to to the rule ^ makingju- all final judgments of the court of claims adverse on^lmolmt. ^ ^^^ United States ; and with respect also to cer- tain cases arising under the revenue laws of the United States, and to all cases arising under the copyright and patent acts, the appellate jurisdictibn of the supreme court, as we have already seen, does not depend on the amount in controversy, the limita- tion in this respect imposed by the judiciary act having been abolished by subsequent acts of con- gress. Attempts have been made by liberal construc- tion to extend these latter acts to cases supposed to be within their spirit, though not described in terms ; and the supreme court has been called upon to deter- mine their scope. But, as might have been expected, they have been held to embrace none but the cases To be they literally describe. Thus the act giving a writ limited- of error from the iudgment of a circuit court in a revenue *' '-^ laws. "civil action brought by the United States for the enforcement of the revenue laws, or for the collection of duties," without regard to the amount in contro- versy, has been decided not to extend to an action Appellate Jtjkisdiction oe the Sttpkbme Coukt. 55 against a collector to recover back duties paid under c hap. 4. protest ; for although the question of the plaintiff' s right of recovery depended on the just interpreta- tion of a revenue law, and the case was therefore within the general policy of the act, it was not such an action as the statute describes ; and, consequent- ly, the judgment of the circuit court was not subject to review in such a case, unless the amount in dis- pute exceeded two thousand dollars.' The language ^^^^^^^^ of the act giving a writ of error or appeal, whatever acts. may be the amount in controversy, in ' ' cases aris- ing under '^ the patent and copyright acts, it will be observed, is more general and comprehensive. But the act has been held to be strictly limited to such cases, and therefore, upon an appeal from the decree of a circuit court in a suit in equity to annul a conditional assignment of a privilege under a patent on the ground that the assignee had failed to comply with the terms of the assignment, the case was held not to be within the statute, and the amount in controversy appearing to be less than two thousand dollars, the appeal was dismissed for want of juris- diction." And in another case, of a bill in equity, filed in the circuit court, to enforce the specific execu- tion of a similar contract, an appeal met with a like fate for the same reason.' In these cases the rights of the parties depended not upon the patent acts, but upon the general principles of law and equity touch- ing private contracts. Upon the question, what con- stitutes "a case "arising under" the copyright acts, I have met with no report of any judicial decision. It is very clear, however, that the principle govern- ' Mason t Oamlle, 31 Howard, 390. The plirase " revenue laws " in the act has, however, been held to embrace an act prescribing the rates of postage. TM United States v. Bromley, 12 Howard, 88. ' Wilson V. Samdford et al, 10 Howard, 99. , 'Brown v. Shannon, 20 id., 9. 56 Weit of Pbohibitiok. PABTl. Jnrisdic- tion on error from a state court not dependent on amount in contro- Tersy. WmT oi- Pbohibi- TION. Wbitb op hansahus maybe issued to courts of the United States. ing cases relating to patents is strictly applicable also to those relating to copyrigMs. The appellate jurisdiction of tlie supreme court over tiie final judgments and decrees of the Mghest court of state in the cases specified in the 25th section of the judiciary act, is independent of the amount in controversy. 10. The power conferred on the supreme court to issue the writ of prohibition has led to no serious forensic controversy. The purpose for which it was given being specified, viz.: to restrain the district courts "when proceeding as courts of admiralty and maritime jurisdiction," it is limited to this pur- pose. Ex parte Christy, 3 Howard, 292. In one reported case this power was exercised to restrain a district court from proceeding further in a case held not to be within its jurisdiction, and in which no sentence had yet been pronounced. The United States V. Peters, 3 Dallas, 121. The writ of mandamus. It has already been inci- dentally stated, in treating of the original jurisdiction of the supreme court, that the clause of the judicial act giving to that tribunal the power of issuing this writ to "persons holding office under the authority of the United States," other than judicial officers, has been held in the case of Marhury v. Madison (1 Cranch, 137), not to be warranted by the constitution. But we have seen also that the authority conferred by the act to issue this writ to ' ' any courts appointed under the authority of the United States" is liable to no such objection. To control in this manner the proceedings of these tribunals,, is but the exercise of appellate power ; a branch of the jurisdiction of the supreme court which congress are expressly author- ized by the constitution (as we have already seen), to regulate and define according to their discretion. This power has been repeatedly exercised. Wbit of Makdamus. 67 Upon the question whether the attorney-general of ohap. 4. the United States has a right, ex officio, and of his Eight of own mere motion to apply for a mandamus to com- glneSo pel the' execution of an act of congress, which the ^°^^ "" judges of the circuit court for the district of Penn- sylvania declined to execute, the supreme court' was equally divided. 2 Dallas, 409. In the case of The United States v. Judge Lawrence wui not te (3 Dallas, 43), in which a district judge upon the ^°°t'onar'°' application of the vice-consul of the French Eepub- ^°""^''- lie, founded upon the provisions of a convention between the two countries, had refused to issue a warrant for the apprehensipn of Capt. Barre, alleged to be a deserter from the French fleet, the supreme court refused to grant a mandamus to compel him to do so, upon the ground that he had acted judicially in the case, and that the court had "no power to compel a judge to decide according to the dictates of any judgment, but his own." And, therefore, a mandamus directing a district court to grant an application to set aside a default and inquisition, will not be granted ; the application being to the discretion of the court. Ex parte Boierts ; Ex parte AdsTiead, 6 Peters, 216. Nor to control the decision of a district judge as to the sufficiency of an affidavit to hold to baU, or as to the amqunt of bail. Ex parte Taylor, 14 Howard, 3. Nor to order a district court to enter a judgment ; it appearing that a motion for a new trial was pending. Bradstreet v. Huntington, 8 Peters, 588. Nor where a district judge, sitting in the circuit court, was proceeding in an equity suit, as it was alleged, irregularly ; the only remedy in such case being by appeal after a final decree. Ex parte Whitney, 13 Peters, 404. Nor to order a judge, to sign a bill of exceptions, which he returns is not conformable to the truth. Ex parte Bradstreet (4 Peters, 102) ; although the court does 8 68 Wbit of MAlTDAMtrS, PART 1. not doubt its power for tMs purpose in a proper case. Ex parte Crane, 5 Peters, 190. See, to the like ejafect, Bradstreet v. Huntington, 8 Peters, 588 ; Bank of Columbia y. Sweeney, 1 Peters, 567; Life^& Fire ' Insurance Company v. Adams, 3 Peters, 571, 573. In Sx parte Many (14 Howard, 24), a mandamus was denied directing a circuit court to fill a blank in its judgment, with the amount of costs, after the mandate of the supreme court affirming its judgment had been received. In Ex parte Davenport (6 Peters, 661), and in Ex parte Hoyt (13 Peters, 297), the court expressed an opinion on the questions of law that gave rise to the applications, although they were denied. Where it was sworn that the judge had neglected or refused to enter a judgment, a rule to show cause why a mandamus should not issue was granted. Ex parte Bradstreet, ^Y process to tioner was imprisoned on process to enforce a recoe- enforce re- -r -I. o cognizance. nizance entered into by him to appear and answer to an indictment, and the jurisdiction of the court was not questioned. In Ex parte Barry (2 Howard, 65), the petitioner being an alien, applied for a habeas corpus for the purpose of obtaining the custody of his infant daughter. - His petition was denied on the ground, that, as no ^^t a©- previous application for redress had been made by ^j^)^°^^ the petitioner to the circuit court, — to award the writ ^pp-J.^^™ would be to exercise an original jurisdiction not ''°'"'- belonging to the court. In Ex parte Dorr (3 Howard, 103), the prisoner ^*^ be- having been convicted of a criminal offense, and sen- ^|fj,"°.°«j tenced to imprisonment for life by a state court, an ^tlte pro-""^ application was made in his behalf for a habeas cor- '''°°- pus, to the end that, by being brought out of prison, he might be enabled to obtain a review of the judg- ment of the state court, under the twenty -fifth sec- 'A writ of habeas corpus having been awarded, the petitioner was again committed upon writs issuing on the same judgments, and on application for another writ of habeas corpus, the judges of the supreme court were eqiiaUy divided in opinion. 70 Habeas Coepus. PAETi. tion of the judiciary act ; of wMch privilege, it was alleged, he was deprived, aU access to Mm being denied in the prison where he was confined. The court rejected the application for want of jurisdic- tion, the imprisonment being under the ailthority of a state, and not of the United States. Commit- In Metzgefs Case (5 Howard, 176), an application district liad been made by the minister of France to the judge at ■' writdl-"' executive government of the United States, under ""^ the treaty of 1843 for the surrender of an alleged fugitive from justice. The application was denied on the ground that no such power belonged to that branch of the government. The minister was refer- red to the judiciary ; and he accordingly addressed himself to the judge of the United States for the southern district of New York,, who; upon a full examination of the case at chambers, held that the evidence was sufficient to warrant a surrender of the fugitive, and committed him to abide the order of the president. An application to the supreme court for a habeas corpus was denied on the ground that the power exercised by the district judge under the treaty was a special authority, and that no provision had been made by law for the revision of his decis- ion. It was said also, in general terms, that " there is no form iu which an appellate power can be exer- cised by" the supreme court " over the proceedings of a district judge at his chambers." Commit- A like application was made to the suisreme court ment nnder . ^ extraction ^^ ™® ^^^^ ^" KaiTie (14 Howard, 103) arising under a mutual stipulation for the extradition of fugitives from justice contained in the treaty of 1842, between writde- the United States and Grreat Britain. A warrant had nied on tlie . ■ . . merits. been issued by a commissioner, at the instance of the British consul, for the apprehension of Kaine, and the commissioner being of opinion that the evidence against him was sufficient. to warrant his surrender Habeas Corpus. 71 ordered Mm to be committed to await the order of the c hap, s. president. A writ of habeas corpus was sued out, an& allowed by the district judge of the southern district of New York, returnable to the circuit court ; and on a subsequent day the district judge, then sitting alone in the circuit court, decided that the writ should be dismissed, and the prisoner was remanded to the custody of the marshal. This deci- sion having been made known to the executive, the secretary of state issued a warrant, directing the marshal to deliver up Kaine to the British consul. Before this was done, however, a precept was issued by Mr. Justice Nelson, which, being in several re- spects sui generis, requires to be copied. It bore the seal of the circuit court of the southern district of New York, and was as follows : " The president of the United States of America to the United States marshal for the southern district of the state of New York, or to any other person or persons having the custody of Thomas Kaine, greeting : We command you, that you have the body of Thomas Kaine, by you imprisoned and detained, as it is said, together with the cause of such imprisonment and detention, by what- soever name the said Kaine may be called, or charged, before our justices of our supreme court of the United States, at his chambers, in Cooperstown, New York, on the 11th day of August, instant, to do and receive what shall then and there be considered, concerning the said Thomas Kaine. Witness Samuel Nelson, -Esq., one of our justices of our said court, this third day of July, eighteen hundred and fifty-two. EIOHAED BUSTEED, Attorney for the Petitioner." The marshal having made his return, a hearing took place at Cooperstown, when Mr. Justice Neisok made the following order : . ' 72 Habeas Oobptts. PART 1. « OooPEBSTOwir, August 11, 1853, ) At Chambers. ) The marshal haying made the within return, Ordered, that in consequence of the difficult and important questions inTolved in the case, it be heard before all the justices of the supreme court, in bank, at the commencement thereof; and that in the meantime the prisoner remain in the custody of the said marshal. S. NELSON"." The prisoner was detained by the marshal accord* ingly until the next session of the supreme court ; but the court being of opinion that it could not take cognizance of the anomalous proceedings before Mr. Justice Nelsobt, nevertheless held itself competent, Mr. Justice Ctjetis dissenting, to entertain an appli- . cation for a writ of habeas corpus, for the purpose of revising the decision of Judge Betts sitting in the circuit court. . A majority of the court concuringitt this decision, the motion was heard, but the writ of habeas corpus was denied. Mr. Justice Nelson, how- ever, delivered an elaborate and very animated opin- ion, in which the Chief Jttstioe and Mr. Justice Dawiel fully concurred, maintaining, 1. That "the judiciary possesses no jurisdiction to entertain pro- ceedings under the treaty [with Great Britain] for the apprehension and committal of the alleged fugi- tive, without previous requision made under the authority of Q-reat Britain,. upon the president of the United States, and his authority obtained for that purpose. 2. That the United States commissioner in this case is not an officer within the treaty or act of congress, upon whom the power is conferred to hear and determine the question of criminality, upon which the surrender is made."' ' The commissioner in this case seems to lave been an ordinary com- missioner of the circuit court, acting under a general appointment as such, without having been specially appointed, as required by the act Habeas CoEPtrs. 73 He denied, also, the sufficiency of the evidence of chap. b. guilt, and was accordingly of opinion that a writ of habeas corpus ought to be granted. Ex parte Cabrera,' the petitioner, being secretary commit- of the Spanish legation, had been arrested and im- Sa™*" prisoned, under the authority of the state of Pennsvl- wrT'/eked „ . J. J, -,-,., •'for want of vania, lor forgery, -and, having been brought before JfJi'*'<=- the circuit court of the United States on habeas cor- pus, claimed immunity from prosecution in the tribu- nals of this country, under the law of nations, in virtue of his diplomatic character. But the court, conceding his exemption, held itself incompetent to discharge him for want of jurisdiction. The laws of nations, Mr. Justice Washington observed, were obligatory no less upon the state courts than upon the courts of the United States ; of August 12, 1848, ch. 67 (9 Stat, at Large, p. 303), passed for the express purpose of giving effect to our treaty stipulations for the surrender of fugitives. Mr. Justice McLean, in pronouncing the judgment of the court, referring to this objection, and the embarrassment arising from it, said that commissioners had executed the act of 1848, without any one sup- posing they wanted power, until now ; nor had any special appoint- ment been made, to his knowledge, for this purpose, by any court of the United States. He added, also, that he felt " quite safe in saying that it" had "not been done in any judicial circuit of the United States." There is no court for any judicial circuit of the United States, and if it had been done, it must have been done in some judicial district. But his Honor was altogether mistaken. In the northern district of New York, into which, bordering as it does, for several hundred miles on Canada, offenders against the laws of Great Britain frequently make their escape, the ordinary commissioners of the circuit court, as well as the local magistrates, refused to oflSciate under the treaty, from an apprehension of threatened prosecutions for false imprisonment, and the act of congress was passed for the express purpose of remedying the evil. In that district, at least, appointments were accordingly made by the circuit court, in some instances of persons who had received no previous appointment as commissioners under the antecedent acts of congress, and in others by superadding an appointment under the act of 1848. ' Wash. C. C. R., 333. 10 74 Habeas Oobpus. PAETi, and it was to the former that the prisoner must appeal for redress. In The United States v. French^ the circuit court for the district of Massachusetts held that it had not the power to award a writ of habeas corpus for the purpose of enabling bail to surrender their principal in jail under process from a state court. It will be seen from this brief review of the judi- cial decisions relative to the writ of habeas corpus ad subjeciendiim, that the power conferred on the courts and judges of the United States tp grant it, by the judiciary act, is strictly limited to the cases therein specified. It is only in behalf of persons ia confiinement "under or by color of the authority of the United States,", or "committed for trial before some court of the same"" that the power can be exercised. In all sucTi cases, except after final con- viction before a court of competent jurisdiction, the • writ may be awarded either by a circuit or district court, or by a judge of the district court, and, it is presuined, also, by a justice of the supreme court. This power was accordingly exercised, as we have seen, by the circuit court for the eastern district of Virginia, in the case of Randolph, who was in cus- tody under a warrant of distress issued by the solici- tor of the treasury, and by the circuit court for the southern district of I^ew York in the case of Kaifie, who had been committed by a commissioner. In virtue of the same authority, a person commit- ted on a warrant issued by a commissioner under the act commonly known as the fugitive slave act, was brought up on a writ of -habeas corpus awarded by ■IGallison,!. ' The latter clause was doubtless designed eitherto enlarge the power conferred by the former, or to exclude some doubt that it was supposed might otherwise arise as to its extent. But I have met with no judicial exposition of this point. courts. Habeas Oobpus. ' 75 the district judge of the northern district of New c hap. 6. York. In all these cases it was sufficient that applicants Power of ^ ^ supreme were "in custody under or by color of the authority eiYocom-*" of the United States." But, as we have seen, ^y'Sw according to the interpretation given to the constitu- tion in Marbury v. Madison, and in Ex 'parte Boll- man & Swartwout, there is a further • and very com- prehensive limitation to the power of the supreme court, although no such distinction is made by the fourteenth section of the judicial act. The original jurisdiction of that court being specified in the con- stitution, congress, it was held, had no power to enlarge it; and consequently the authority of the supreme court to grant a writ of habeas corpus is restricted to cases falling within the scope of its appellate power, and cases, should any arise requir- ing this form of redress, affecting an ambassador, other public ministers or consuls, or to which a state is a party. The power exercised under a writ of habeas cor- pus, where the party is in custody under a commit- ment by some other judicatory, as observed by Chief Justice Marshall in the case of Bollman & Swart- wout, is always in its nature revisory. But to bring a case within the appellate jurisdiction of the supreme court in the sense requisite to enable that court to award the writ, it is necessary that the com- mitment should appear to have been by a tribunal whose decisions are subject to revision by the supreme court. And so strictly has this limitation been observed latterly, that, as we have seen, while the court did not scrupple to entertain an applica- tion for a, writ of habeas corpus, upon the merits, in the case of Kaine, under commitment by a district judge, made whUe sitting alone in the circuit court, it dismissed a like application for want of jurisdic- 76 Habeas Coepus. PARTI , tion, in the case of Metzger who had been committed by the same judge acting at chambers, thereby over- ruling the dL^cisLonin Hamilton^ s Case, and Ex parte Barry is to the like effect. It is important to observe, however, that no dis- tinction in this respect has been made between cases * in which the original commitment was under process from a circuit court, and cases where it had been made by a justice of the peace or a commissioner, and the prisoner, having , afterward been brought before a circuit court on habeas corpus, had been remanded by that court. In re ICaine, Mr. Justice CuKXis, in his dissenting opinion, very forcibly main- tained that the prisoner having been simply remanded by the circuit court, ought to be regarded as still in justody under the commissioner' s warrant, and con- sequently that the case was not within the appellate jurisdiction of the court ; and, in an antecedent case, Mr. Justice Johnson, in an able dissenting opinion, expressed himself to the like effect. But in both instances the objection was unheeded by the court. Thus stood the statutory law and the judicial decisions regulating the remedy by writ of habeas corpus during the lapse of more than forty years. But when, in the year 1832, one of the states of the union attempted, by coercive legislation, forcibly to prevent the collection of duties on merchandise imported from foreign countries, it became necessary to extend this remedy to prisoners under or by color Act of 1833. of the laws of the states ; and the act of March 2, 1833, ch. m (4 Stat, at Large, 632), entitled "An act further to provide for the collection of duties on imports," was accordingly passed, by which it was enacted : Extendsto " That either of the iustices of the supreme court, or a persoDB im- . ■* ^ -' prieoned judge 01 any district court of the United States, in addition under awy »» o ./ j law.&e. to the authority already conferred by law, shall have power Habeas Ooepus. 77 to grant writs of habeas corpus in all cases of a prisoner or chap. 5. prisoners in jail or confinement, where he or they shall be committed or confined on or by any authority of law, for any act done in pursuance of a law of the United States, or any order, process or decree of any judge or court thereof, any thing in any act of congress to the contrary notwith- standing." This act, it will be seen, provides for the relief of persons deprived of liberty in virtue of '■'■any authority of law," for any act or omission in obedi- ence to the authority of the United States. The act contained other provisions to insure the payment of imposts, adapted to the extraordinary exigencies of the case, which it was deemed advisable to limit to the period of two years ; but the seventh section, containing the above cited enactment, Was left to remain permanently in force. This act was speedUy followed by another, to meet another new and unforeseen emergency arising out of our duplex political system. One McLeod had been indicted in a court of the state of New York for his supposed participation in the burning of the steamer "Caroline," at Schlosser, on the Magara river, during an insurrection in Canada ; and the prosecution had been persisted in notwithstanding the assumption by the British government of all responsibility for the acts of McLeod, and its formal protest acquiesced in by the executive of the United States. The act is entitled "An act to provide further Actofi842. remedial justice by the courts of the United States," passed August 29, 1842, ch. 257 (5 Stat, at Large, 539), and is as follows : " Be it enadted That either of the justices of the supreme court of the United States, or judge of any district 78 Habeas Ooepus. PAETl. Aliens im- prisoned for acts or omissionB sanctioned by the gov- ernment to •which they owe alle- giance en- titled to relief hy habeas cor- pus. Appeal al- lowed from the decision of a justice or judge. court of the United States, in wkicli' a prisoner is confined, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases of any prisoner or prisoners in jail or confinement, where he, she or they, being subjects or citizens of a foreign state, and domiciled therein, shall be committed or confined, or in custody, under or by any authority of law, or process grounded thereon, of the United States, or any one of them, for or on account of any act done or omitted under any alleged right, authority, priTilege, protection or exemption, set up or claimed under the commission or order, or sanction, of any foreign state or soTereignty, the validity and effect whereof depend upon the law of nations, or under color thereof. And upon the return of the said writ, and due proof of the service of notice of said proceeding to the attorney-general or other officer prosecuting the pleas of the state, under whose authority the petitioner has been arrested, committed or held in custody, to be prescribed by the said justice or judge at the time of granting said writ, the said justice or judge shall proceed to hear the said cause ; and if, upon hearing the same, it shall appear that the prisoner or prisoners is or are entitled to be discharged from such confinement, com- mitment, custody or arrest, for or by reason of such alleged right, title, authority, privilege, protection or assumption, so set up and claimed, and the laws of nations applicable thereto, and -that the same exists in fact, and has been duly proved to the said justice or judge, then it shall be the duty of the said justice or judge forthwith to dis- charge such prisoner or prisoners accordiagly. And if it shall appear to the said justice or judge that such judgment or discharge ought not to be rendered, then the said ppsoner or prisoners shall be forthwith remanded. Provided, always, that from any decision of such justice or judge an ' The phrase " in which " in this highly important act, it will be noticed, is badly chosen. I copy from 5 Stat, at Large, p. 539. The sense doubtless intended requires for its fit expression the words, for any judicial district, next after the " United States," or else after " dis- trict court," and the substitution of the in lieu of "any," before these words. So, doubtless, it will be interpreted. I Hab^eas Corpus. 79 appeal may be taken to the circuit court of the United > c hap, s. States for the district in which the said cause is heard, and from the judgment of said circuit court to the supreme court of the United States, on such terms and under such regulations and orders, as well for the custody and appear- ance of the prisoner or prisoners as for the sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus return thereto, and other proceedings, as the judge hearing the said cause may prescribe ; apd pending such proceedings or appeal, and until such final judgment be rendered therein, and, after final judgment, of discharge in the same, any proceeding against such prisoner or prison- ers in any state court, or by or under the authority of any state, for any matter or thing so heard and determined, or in process of being heard and determined under and by virtue of such writ of habeas corpus, shall be deemed null and Toid." There is a third act respecting the writ of habeas corpils traceable to an event in onr national history, compared with which the incidents that produced the acts of 1833 and 1843 dwindle into insignificance. I hardly need to add, that I allude to the late formi- dable and destructive civil war. This act was passed February 5, 1867.' It is enti- tled "An act to amend '•An act to establish the judicial courts of United States,' approved Septem- ber twenty-fourth, seventeen hundred and eighty- nine.'' ' The first section, omitting the enacting clause, is as follows : "That the several courts of the United States, and the writ to be several justices and judges of such courts, within their when^he respective jurisdictions, iu addition to the authority already monYista Tiolation of the conetl- » Ch. 38 ; 14 Stat, at Large, 385. The second section of this act has t°«o.°'g ^^ already been recited in treating of the power of the supreme court to laws, review the final judgments and decrees of the highest courts of the several states. 80 Habeas Corptts. PARTI, conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in Tiolation of the constitution, or of any treaty or law of the United States ;' and it shall be lawful for such person ■ so restrained of his or her liberty to apply to either of said justices or judges for a writ of habeas cor- AppUcation pus, which application shall be in writing, and verified by writing and affidavit, and shall set forth th-e facts concerning the. deten- tion of the party applying, in whose custody he or she is Writ to be detained, and by what claim or authority, if known; and feB6°&c.°°' the said justice or judge to whom such application shall be made shall forthwith award a writ of habeas corpus, rinless it shall appear, from the petition itself, that the party is not deprived of his or her liberty in contravention Direction of the constitution or laws of the United States. Said writ shall be directed to the person in whose custody the party is detained, who shall make return to the said writ and bring the party before the judge who granted the writ, Number of and certify the true cause of the detention of such person lowed to within three days thereafter, unless such person be detained bring pris- oner ijefore beyond the distance of twenty miles ; and if beyond the dis- tance of twenty miles and not above one hundred miles, then within ten days ; and if beyond the distance of one hundred Day to be miles, then within twenty days ; and upon' the return of the ing. writ of habeas corpus a day shall be set for the hearing of ' the cause, not exceeding five days thereafter, unless the party petitioning shall request a longer time. The peti- 'A studiously devised and carefully framed act " relating to habeas corpus, and reguMing judicial proceedings in certain cases " (amended by tbe act of May 11, 1866, cb. 80), Was passed Marcb 3, 1863, to meet tbe exigencies of tbe rebellion then at its height. It empowered the president, " whenever, in his j udgment, the public safety may require it," to " suspend the writ of habeas corpus in any case throughout the United States, or any part thereof ; " and contained many provisions for the safe custody and speedy trial of prisoners, for the security of public oflBcers employed in making arrests, and for the removal of causes from the state courts to the courts of the United States. Most of its provisions are in terms limited to the diiration of the rebellion, and such of them as are adapted to a state of domestic peace have been superseded by subsequent legislation. Habeas Cospits. 81 tioner may deny any of the material facts set forth in the chap. 5. return, or may allege any fact to show that the detention is Petitioner in contravention of the constitution or laws of the United SetSrn" States, which allegations or denials shall be made on oath- °" "*"'• The said return" may be amended, by leaye of the court or Ketnm judge, before or after the same is filed, as also may sugges- amended, tions be made against it, that thereby the material facts may be- ascertained. The said court or judge shall proceed Hearing, in a summary way to determine the facts of the case, by .dacted. * hearing testimony and arguments of the parties interested ; and if it shall appear that the petitioner is deprived of his Prisoner, or her liberty in contravention of the constitution or laws discharged. of the United States, he or she shall forthwith be dis- charged and set at liberty. And if any person on persons Penalty for to whom such writ of habeas corpus may be directed shall enceof writ refuse to obey the same, or shall neglect or refuse to make make re- return, or shall make a false return thereto, in addition to the remedies already given by law, he or they shall be deemed and taken to be guilty of a misdemeanor, and shall, on conviction before any court of competent juris- diction, be punished^ by fine not exceeding one thousand dollars, and by imprisonment not exceeding one year, or by either, according to the nature and aggravation of the case." The remainder of tMs section gives an appeal Appeal, "from the final decision of any judge, justice or court inferior to the circuit, and from the judgment of the said circuit court to the supreme court." But the latter clause has been repealed by the act of March 27, 1868, ch. 34: 14 Stat, at Large, p. 44. The importance of the subject will, I hope, be accepted as a justification for the occupancy of so considerable a space by the recital of the foregoing acts at large. Neither of the three latter acts contain Review of any repealing clause, and each of them purports in acts. terms to confer power " fw addition to the authority already conferred by law." Tliey must all be 11 82 Habeas Coepus. PAETi. regarded, therefore, as in fall force, except such provisions, if any there be, of a prior act as are inconsistent with those of a snbsecLuent act, or are clearly intended to be superseded by it. The acts of 1833 and 1842 were severally designed for a special purpose, to which accordingly they are in terms limited. Neither of them conflicts with the original act, or invades its provisions, and they consequently leave it unchanged. Scope of the In the remaining act of 1867, described by its title to be an act to amend the original act of 1789, the generality of the language of the brief formula defining the power to be conferred seems to infer an intent to give to the remedy, by writ of Jiabeas cor- pus the utmost scope of which it is susceptible in our national jurisprudence vsdthout transgressing the limits of the sphere assigned to the judicial authority of the nation. Whether the terms of the definition are fitly chosen aud sufficiently precise for this purpose, will proba- bly be found to be a question of no great practical importance ; because, while the antecedent acts are left in full force to speak for themselves^ this act, it may be presumed, can hardly fall short of supplying of_the i4tii their deficiencies. The adequacy of the acts of 1833 and 1842 for the accomplishment of their particular designs has never been questioned, and the judiciary act was at length, after repeated and earnest forensic discussion, found sufficient for ordinary cases arising in peaceful times, and, among others, for bringing prisoners before a court or judge to be liberated on reasonable bail, as well in civU as in criminal cases. But whatever may be the judicial interpretation of the act of 1867 with respect to the extent of the power to award the writ of habeas corpus, it may, I trust be safely presumed that the exact and judicious Habeas Coepus. 83 rules it prescribes, regulating the proceedings from chap. s. beginning to end upon a resort by a prisoner to this form of remedy, will be held applicable Jo all cases. This act, it -will be'remarked, like the 14th section Deposi- ts.ri6s of tuB of the act of 1789, assumes to confer the power to p°^j'^Jga award the writ upon "the several courts of the '^"'• United States," indiscriminately, as well as upon the justices and judges, while each of the intermediate acts' restrict it to the justices of the supreme court and the judges-of the district courts. But, as already shown, in treating of the original jurisdiction of the supreme court, that court has no authority, and can-- not be made by law the recipient of any, to award the writ, except in the exercise of its appellate juris- diction over the judgments of the courts whose deci- sions are subject to its revisory power, except in those rare cases to which its original jurisdiction is limited by the constitution. Nevertheless, the authority conferred in general Bight of terms on the supreme court by the judiciary act to issue the writ inay, as we have also seen, according to the principle to that effect established in the case of Marbury v. Madison, be exercised as an appellate power. "Whether this power has been taken away by the repeal, by the above mentioned act of March 27, 1868, ch. 34, and of the clause of the act of 1867, which specifically gives a right of appeal in aU cases of habeas corpus from the decisions of the circuit court to the supreme court, can only be certainly determined by authoritative judicial decision. But, considering the nature and importance of the power, and recollecting at what expense of forensic and judicial dialectics it was reasoned out, and at length firmly established, the student of our national juris- prudence cannot but find it difllcult, not to say impossible, to reconoUe himself to the belief that it 84 Habeas Corpus. PART 1. ' was intended thus indirectly to sweep it away. Nor, when lie comes to subject the question to the test of a severer logic, will he faU to perceive that there are very strong grounds, sanctioned by law as weU as reason, for the conclusion that the appellate power of the supreme court derived from the constitu- tion and judiciary act, remains unaflfected by this repeal.' [Since the reTision of this chapter was completed, and as it is about to go to press,! see in a newspaper a report of the case of Ex parte Yerger just decided by the supreme court, now in session. The decision is highly important, and I accordingly interpolate a notice of it in this place. The case was this : Yerger was a private citizen of the state of Mississippi. He had been arrested in virtue of a military order, and held for trial upon a charge of murder, before a military commission, under the act of congress of March 3, 1867, " to provide for the more efficient government of the rebel states." Upon his prayer, a writ of habeas corpus was issued by the circuit court of the United States for the southern district of Mississippi, "directed to certain of&cers holding him in custody. In obedience to the writ he was brought into court by the commanding oflBcer of the mih- tary district comprising the state of Mississippi, who made a return in due form, certifying the cause of the prisoner's detention, as above stated. The circuit court adjudged his imprisonment to be lawful, and accordingly dismissed the writ and remanded the prisoner to the custody of the officer by whom he had been brought before the court, to be held and detained for the purpose, and to answer to the charge set forth in the return. ' Since the text was written It appears, by the last and recently pub- lislied volume of the reports of the decisions of the supreme court, that this question has been decided. In Mx paHe McArdle, 7 Wallace, 500, it was held that the appellate jurisdiction of the supreme court, as it was prior to the act of February 5, 1867, was unaffected by *he repeal of that act by the act of March 37, 1868. Habeas Ooepxjs. • 85 To obtain the reversal of this .order and relief from chap. 5. imprisonment, the prisoner petitioned the supreme court for a writ of certiorari to bring up for review the proceedings of the circuit court, and for a writ of habeas corpus to the officer to whose custody he had been remanded. In opposition to the petition, it was insisted that the court had no authority to grant it. As the newspaper report con- sists only of the opinion of the court (with some omissions) the grounds on which the jurisdiction of the court was asserted and denied at bar can only be inferred from the opinion — marked throughout by signal perspicacity and ability — of the chief justice in pronouncing the decision of the court. The controversy, he said, resolved itself necessarily into two narrow questions : First, has the court jurisdiction, in a case like the present, to inquire into the caiise of deten- tion (alleged to be in fact unlawful), by a writ of habeas corpus, under the judiciary act of 1789 : Second, if, under that act, the court possesses this jurdiction, has it been taken away by the act of March 27, 1868, repealing so much of the act of February 5, 1867, as authorizes appeals from the circuit court to the supreme court. To the first of these questions the court gave an affirmative answer, deduced by a cogent train of reasoning from the nature and importance of the power ; the significant recognition of it by the con- stitution ; and the carefully devised and ample provision for its exercise made by first congress at its first session. It was true, it had been adjudged that the supreme court could not, constitutionally, be made the recipient of it as a branch of its original jurisdiction ; but it had also been adjudged that this was no impediment to ijs exercise as an appellate power. The objection, that to bring a case within the jurisdiction of the court, the commitment must be shown to have been made by a tribunal whose decisions are subject to the revisory power of the supreme court, was held to be untenable. The decision which the court was called on to review was made by such a tribunal, and its order remanding the prisoner was equivalent to an order of commitment. The second question, touching the effect of the repeal of that clause of 86 • Habeas Oobpus. PART 1. 1867 vhicli conferred upon the supreme court authority to entertain appeals in all cases of habeas corpus from the decisions of the circuit courts, was also decided favorably to the petitioner. The clause in question enlarged the appel- late power of the court, and its repeal took away the power it gave. But it did not give the power of which the court was already possessed, and which was sufficient for the case before it, and its repeal ought not, therefore, be held to have taken away this power. But, assuming that it did so, there would still remain another obstacle to be surmounted, in the rule of construction whereby an act repealed is to be held reinstated by the repeal of the repealing act. , Had the act of 1867 repealed all former laws investing the supreme court with this power, doubtless the repeal of the clause conferring it would have left the court powerless in this respect ; but it enacts no such repeal. The court accordingly summed up its decision on the < whole question as follows: "They are obliged to hold, therefore, that in all cases where a circuit court of the United States has, in the exercise of its original jurisdic- tion, caused a prisoner to be brought before it, and has, after inquiring into the cause of detention, remanded him to the custody from which he was taken, this court, in the exercise of its appellate jurisdiction, may, by writ of habeas corpus, aided by the writ of certiorari, revise the decision of the circuit court ; and, if it is found unwarranted by law, relieve the prisoner from the unlawful restraint to which he has been remanded." The question, it will be seen, related exclusively to the appellate jurisdiction of the supreme court over the adjudi- cations of the circuit courts, in cases depending on the judiciary act of 1789. It in no respect affected the author- ity conferred by that act, by the act of 1843, or by the act of 1867, on the justices of the supreme court, the judges of the district courts, the circuit courts, or the district courts, to grant the writ of habeas corpus ; nor the appel- late jurisdiction vested by any of those acts in the circuit and district courts. . For the purpose , of determining whether, independently of the acts of 1867 and 1868, the Habeas Corpus. 87 court had authority to entertain an appeal from a circuit chap. 5. court where the prisoner was restrained of his liberty under a military order, and, haying been brought before the circuit court on a writ of habeas corpus, had been remanded to the same custody, it became necessary to recur to the original sources of the power (of the supreme court) to issue the writs of habeas corpus and certiorari to ref ise the judgment of the circuit court and to the early adjudications relative to it. Haying come to the conclusion that the power tried by this test belonged to the court, it only remained to determine whether it had been abrogated by the act of 1868. This supplemental exposition is giyen on account of the summary manner in which the long, elaborate and able opinion ' of the court has been unavoidably dealt with.] ■ The Englisli habeas corpus act, 31 Car., II, c. 2, '^^^^''^^ excepts from the privilege of the writ persons com- ^°^^^^ mitted on a charge of treason or felony plainly expressed in the warrant, or as accessory, or npon suspicion of being accessory before the fact, to petit treason or felony so expressed, or committed or charged in execution by legal process. The act of 1789, as we have seen, contains no such exceptions, and the act of 1867 confers the power to grant the writ of habeas corpus in all cases of restraint "in violation of the constitution, or of any treaty or law of the United States." But this power as defined by the former act was held to be limited in its exercise by certain implied restrictions founded in a just regard to fitness. Thus, in Ex parte Kear- wiubede- ney, 7 Wheat. E., 33, as we have seen, it was held P^j^^ft'^g^ inapplicable to the case of a prisoner under commit- ^^^^°^i^ ^^ ment for contempt ; and, in Ex parte WatMns, 3 Peters, 193, the writ was denied to a prisoner under sentence on conviction for a criminal ofiense before a court of competent jurisdiction. conviction. 88 Habeas OoEPtra. PARTI. These decisions, thougli made before the passage of the act of 1867, it may reasonably be expected will be adhered to, notwithstanding the generality of its language.' state courta Whether the courts and judges of the several cannot ^^' statcs are empowered to issue the writ of habeas isBue the „ . . _l t j.i j.t h^mcor- (corpus in cases of imprisonment under the author- Sni^riton- ity of the United States, is a question which, though thfauthor-' often brought under discussion, remained for seventy Wnitst^ years unsettled. Some of these courts and judges have claimed and exercised it without limitation ; others only to the extent of instituting an inquiry into the jurisdiction of the officer or court of the United States, on whose process or order the peti- tioner was subjected to restraint, while others have declined its exercise altogether. In this predicament the question stood until shortly before the last edi- tion of this work ; and so, in the antecedent editions, it was accordingly left by the author, surrounded by all the doubt and uncertainty in which it had thus become involved. But at length, in the case of Able- man V. Booth (21 Howard, 506), the question was, for the first time, brought under the consideration of the supreme court of the United States, and was there decided upon grounds so unquestionable, and by a course of reasoning so forcible and convincing, as to command, it may be hoped, the ready assent of every enlightened and impartial mind, and to put the question forever at rest. The case came before the court on a writ of error under the 25th section of the judiciary act. Booth had been committed to prison in virtue of a warrant issued by a commis- sioner for an alleged 'oflFense against the United States, and, on being brought up on a writ of 'The judges of the district courts are specially empowered to issue the writ of Mbeaa cor'pua for the release of soldiers in certain cases. Fide 'post. District Courts. Habeas Cobpus. 89 habeas corpus issued by one of the justices of the c hap. 5. supreme court of the state, was discharged by his order from the custody of the marshal, on the ground that the act of congress, with the violation of which he stood charged, was unconstitutional and void ; and, on certiorari to the supreme court of the state, his decision was afllrmed. The writ of error, there- fore, presented the question directly whether the state judge, in exercising jurisdiction in the case, had not transcended his lawfol authority. The court held that he had. The chief justice, in delivering the unanimous opinion of the court, observed : "We do not question the authority of a state court or judge, who is authorized by the laws of the state to issue the writ of habeas corpus, to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the state sovereignty. And it is the duty of the marshal, or other person having the custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. The right to inquire by habeas corpus, and the duty of the officer to make return, grows, necessarily, out of the complex char- acter of our government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, aiid each within its sphere of action, prescribed by the constitution of the United States, independent of the other. But, after the return is made, and the state judge or court is judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdic- tion of another government, and that neither the writ of 12 00 Habeas Corpus. PAETi. habeas corpus, nor any other process issued under state authority, can pass oyer the line of division between the two sovereignties. He is then within the dominion and exclusive jusisdiction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford hiin redress. And although, as we have said, it is the duty of the marshal, or other person , holding him, to make known, by a proper return, the authority under which he detains him, it is at the same time imperatively his duty to obey the process of' the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other government. And, consequently, it is his duty not to take the prisoner, nor suffer him to be taken, before a state judge or court upon habeas corpus issued under state authority. !N"o state judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or require him to be brought before them. And if the authority of the state, in the form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States, in any respect, in the custody of the prisoner, it would be his duty to resist it, and to call to his aid any force that might be neces- sary to maintain the authority of law against illegal inter- ference. No judicial process, whatever form it may assume, can have any lawful authority outside the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce, it beyond these bouiidaries is nothing less than lawless violence." The cMef justice proceeds to show, with, admir- able clearness and force, that there is nothing in this supremacy of the general government, or in the jurisdiction of its judicial tribunals to awaken jeal- ousy or offend the natural and just pride of state sovereignty. The powers confided to the national government were voluntarily and deliberately con- ferred by the people of the several states for their Habeas Corpus. ' 91 own protection and safety. And their anxiety to c hap, s. preserve it in its full force, >nd to guard it against resistance or evasion on the part of a state, is mani- fested in the final clause of the constitution, added when the whole frame of government, with all the powers specified therein, had been adopted by the convention ; requiring the members of the itaie legis- latures, and all the executive and judicial officers of the several states, to bind themselves by oath or solemn affirmation to support this constitution. "]N"ow," continued the chief justice, "it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. * * * And no power is more clearly conferred by the con- stitution and laws of the United States, than the power of this court to decide, ultimately and finally, all cases arising under such constitution and laws ; and for that purpose to bring here for revision, by writ of error, the judgment of a state court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal of the state.'" 'Looking at this question under the strong light shed upon it by the opinion of Chief Justice Taney, it may seem strange, not to say unao- countaWe, that it should have rested so long in doubt, or, indeed, that it should have led to any diversity of opinion at all among the learned and able men under whose judicial consideration it had, from time to time, been brought, during the lapse of three-quarters of a century. But it is to be borne in mind that until the establishment of the consti- , tutional government, the judicial power, with a very limited exception, under the articles of confederation, had been lodged exclusively, first in the colonial and then in the state tribunals. Their power to grant relief on habeas corpus was plenary. It was as ample as that of the king's bench in England, and they were inured to its unquestioned exercise. The constitution, it is true, had invested the national judiciary with jurisdiction over all cases arising under the ooneatutaoni laws and 92 Adyisoet Power of the Shpkeme Court. PAHTl. CHAPTEE VI. OF THE ADVISOET POWEB OE THE STJPKEME COTJET ON CEETIEICATE OF OPINIOITS OPPOSED. By "An act to amend the judicial system of the United States," passed AprU 39, 1802, it is provided "that whenever any question shall occur before a circuit court, upon which the opinions of the judges shall he opposed, the point upon which the disagree- ment may happen shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified, < under the seal of the court, to the supreme court, at their next session to be held thereafter ; and shall by treaties of the United States, and congress at its first session had enacted , that the national courts and judges should have power to issue the writ of hai)eas corpus for the relief of all persons restrained of their liberty under or by color of the authority of the United States. With this exception, hardly comprehensive enough to embrace one in a hundred ' of the cases requiring the application of this remedy, the state judica- tories were left in full possession of their jurisdiction over the remaining ninety-nine. Nor was the limited power conferred upon the federal ' judiciary to grant the writ, in terms declared to be exclusive. If to these circumstances we add the prejudice arising from a widely diffused jealousy of the national government, it will appear less surprising that even lawyers and judges were slow to discern that, from the very nature of the power, it must of necessity be exclusive, and that the authority of the state courts and judges had accordingly become indirectly limited pro tanto. It was a result not to be arrived at by the study of English law books, but to be reasoned out by an attentive consideratioh and thorough comprehension of our duplex system of civil government. In some of the discussions to which the subject has given rise, it has been said that each state is bound to protect the liberties of its own citizens, and that to this end its judiciary must be armed with unlimited power to aflbrd a remedy in all cases of unlawful restraint from what- ever quarter. But the citizens of a state are citizens also of the United States, and the national government is no less imperatively bound, and its j udiciary no less competent, to afford them the like protection agaiuBt any infringement of their rights under color of its authority. It is unnecessary to add that no provision contained in the constitu- tion or laws of any state touching the writ of habeas corpus, can in any respect vary the duty of its courts and judges, as indicated in the Advisor-st Powee of the Sitpbeme Couet. 93 the said court be finally decided. And the decision c hap, e. of the supreme court, and their order in the premises, shall be remitted to the circuit court, and be there entered of record, and shall have eflfect according to the nature of the said judgment or order : Provided, that nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits : and provided also, that imprisonment shall not be allowed, nor punishment in any case be inflicted where the judges of the said court are divided in opinion upon the question touching the said imprisonment or punishment.'" The form of remedy provided by this section is Nature and importance peculiar to our national jurisprudence. Strictly, the gjg^^^o- jurisdiction thus exercised is neither . original nor i"on.^'°' appellate ; it is simply advisory ; and in the actual - state of the law in other respects, it is of considerable importance ; for it affords the only means by which any question arising in the circuit court in a criminal case ; or, with some exceptions, in a civil suit in which the amount in controversy does not exceed judgment of the court in the case of AhUma/n v. Booth, mentioned in the text, nor afford any justification for a disregard of such duty. For example, a statute of the state of New York, in describing the persons who shall not he entitled to prosecute this writ, designates those " com- mitted or detained \yj virtue of any process issued by any court of the United States, or any j'w(i^e thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States ; " but is silent as to cases of commitment on process issued by the commis- sioners of the United States, although, probably, nineteen-twentieths of the commitments before indictment are made by these ofBcers ; and it is silent also with respect to restraints of liberty in virtue of the military laws of the United States. These omissions can have no legitimate influence on the conduct of the state courts and judges, but it would have been better to supply them, and better still to have excepted in general terms all persons restrained of liberty under or ly color of the laws of the United States. Ch. 31, § 6 : 3 Stat, at Large„|56. 94 Advisory Power of the Supreme Cottht. PAKTi. two thousand dollars, can be brought under the cog- nizance of the supreme court for decision. In other words, the circuit courts would be obliged in these cases to decide absolutely, and their decisions would be final. To what With respect to the kind of questions of which the questionB it ..,.„. ^aj)pii- supreme court may take cognizance m this form, its jurisdiction has been held to be confined to questions of law. Wilson v. Barnum, 8 Howard, 258. The question in this case was, whether a machine was substantially like the thing patented ; and it was held not to be within the act. Nor does the act embrace questions depending on the discretion of the circuit court. Davis v. Braden, 10 Peters, 286 ; Smith v. Yaughan, id., 366; Packer v. Nixon, id., 408; and on this ground it was held that the court had no jurisdiction upon a certificate of division of opinion on a motion to quash an indictment. The United States V. Rosenburgh, 7 Wallace, 580. Neither can a certificate of disagreement be resorted to for the purpose of transferring an entire cause to the supreme court. The particular point must be dis- tinctly stated; and, therefore, where there was a demurrer to an indictment, assigning several distinct causes of demurrer, a certificate that the judges of the court were divided in opinion as to the point whether the demurrer should be sustained, was held to be insufficient. The United States v. Briggs^ 5 Howard, 208. And so, when, on the trial of an indictment, the counsel for the prisoner moved the court to instruct the jury, that, "the evidence did not conduce to establish the offense " with which the prisoner was charged, and the opinions of the judges being opposed upon the propriety of giving this instruction, this division of opinion was certified to the supreme court, it was held that the court could not entertain jurisdiction o^the case. The United Advisobt Power op the Sfpebmb Court. 95 .States V. Bailey, 2 Peters, 267. See, also, Webster chaf. s. V. Cooper, 10 Howard, 54; Luther v. Borden, 7 Howard, 1 ; White v. Turk, 12 Peters, 283. The rule is strongly exemplified in this case. A motion has been made in the circuit court to set aside a judg- ment on a bail bond, and the question certified was, whether the motion ought to be granted. But though the various questions on which the motion depended were separately certified, yet inasmuch as they brought the whole case before the supreme court, the case was held not to be within the jurisdiction of the -court. See, also, Nesmith v. Sheldon, 6 Howard, 41. But though the motion on which the question arises be one addressed to the discretion of the cir- cuit court, and though the certificate state several poiats of disagreement, yet if the question relates to matter of strict right, the court has jurisdiction, and will decide the points necessary to a decision of that question, provided they arose simultaneously, and may be resolved virtually into one point. The United States v.- Chicago, 7 Howard, 185. The question whether a new trial ought to be granted, whether in a civil or a criminal case, is not a question upon which a division of opinion can be certified. The United States v. Daniel, 6 Wheat., ' 642. Yet in a case where such a division was certified, ' it appearing by the record that the division was upon the same points raised by bills of exception taken at the trial, the court heard the argument, reserving its judgment until a writ of error had been sued out. Qrant v. Raymond, 6 Peters, 218. It has been held, also, that the court has not juris- diction of a question arising in the circuit court upon some proceeding subsequent to the decision of the cause in that court. Deter eaux v. Marr, 12 Wheaton, 212. In Wayman v. Southard (10 Wheaton, 1), it was decided, that on a certificate of division of opin- 96 Advisory Powee of the Sttpeemb Court. PART 1. ion, tlie court could not inquire whether tlie parties- were properly before the circuit court. When the question certified is adjudged to be one not within the jurisdiction of the court, the case is simply dismissed- In Wolfe v. Usher, however (3 Peters, 259), of which the court was unable to take jurisdiction, because, upon opening the record, it was found to contain a certificate that the judges of the circuit court had differed in opinion, but the point on which they differed was not stated, the case was remanded to the circuit court, with directions to pro- ceed according to law. And in Sanders v. Gould (4 Peters, 392), where the whole case had been sent to the court upon a certificate, it was remanded. But in Sadler v. Hoover (7 Howard, 646), which was essentially identical with Wolfe v. Usher, the cause was dismissed. It is presumed, however, that these diversities were not designed to be substantial. And although the act requires the point of disagreement to be certified "during the same term," it maybe supposed that where the certificate admits of correc- tion, it may be amended. A certificate of opinions opposed in a cause is no impediment to the prosecution of a writ of error upon the final judgment therein, and the whole record will then be before the court. Ogle v. Lee, 2 Cranch, 35. The certificate brings nothing before the supreme court but the points certified. The cause remains upon the docket of the circuit court, , and, at its discretion, may be prosecuted ; provided, only, that nothing be done to defeat or impair ^the t proper legal effect of the decision of the supreme court where it shall be made. Kennedy v. Georgia State Bank, 7 Howard, 586, 611. Thjs, indeed, is virtually said in the act itself. Besides the forego- ing cases, affecting the jurisdiction of the court, a multitude of others, involving no question of juris- JUEISDICTIOl!]" OF THE SUPEBME 'OOUET. ft? diction, tave been carried to the supreme court by c hap. 6; certificate of division of opinion. A large propor- tion of these consisted of criminal cases, in most of wMch the question certified arose either on a motion to quash the indictment, or a motion for an arrest of judgment after conviction. Upon a motion to quash, the court doubtless has a discretionary- authority either to overrule the motion, pro forma, and put the accused on trial upon a plea of not guUty, or to postpone the trial to avfait the decision of the supreme court. When the question on which the judges differ arises on a motion in arrest, sen- tence, it may be supposed, w^ould be deferred, care being taken in both cases to secure the re-appear- ance of the accused at the proper time, either by commitment or bail. EECAPITULATION. At the conclusion of this survey of the constitu- tional and statutable provisions, and of the judicial decisions, by which the jurisdiction of the supreme court is declared and defined, a summary statement of the result may serve to disentangle a subject at first view somewhat complex. The cognizance of the court embraces litigation under all the various forms in which it is pursued in that country whence the principles of our jurispru- denc'e are chiefly derived. It is a court of common law, of equity, and of admiralty and maritime juris- diction. It is hardly necessary to add, that its jurisdiction extends, and, of course, its process runs, throughout the Union. Its jurisdiction is original, that is to say, suits may be instituted in it, and be brought to trial or hearing and decision before it, in the first instance : 1. In all civU cases cognizable in the courts of the United States, in which a state is a party. 13 98 . Jurisdiction of the Supreme Court. PABTi, And tlie cases of tMs description cognizable in these courts, it must be remembered, comprise all those in wMch. a state can either sue or be sued, except those in which a state is plaintiff against its own citizens. Of these the state courts alone have jurisdiction. It must be remembered, also, that no suit can be maintained against a state by any pri- vate person. ' From these premises, therefore, it follows that the supreme court has original jurisdiction of all civil actions between different states, of all brought by a state against the citizens of another state, and against aliens ; and of all such actions brought against a state by a foreign state. This branch of the original jurisdiction of the supreme court is declared by the judicial act to be partly exclusive and partly concurrent ; exclusive, in suits between different states, and by a foreign state against a state ; concurrent, where the stiit is against a citizen of another state, or an alien. 2. The second and only remaining branch of the original jurisdiction of the supreme court embraces all cases affecting ambassadors, other public minis- ters and consuls. Of all such suits or judicial proceedings against ambassadors, othei; public ministers, their domestics, or domestic servants, as are permitted by the laws of nations, this jurisdiction is declared by the judicial act to be exclusive; and of all suits brought bp amba'ssador, or other public ministers, or in which a consul or vice-consul shall be a party, plaintiff, or defendant, it is declared to be concurrent. But whether these restrictions are warranted by the constitution, and whether the jurisdiction of the supreme court over these cases is not in fact wholly exclusive, is a question resting in doubt. JUEISDIOTIOK OF THE SUPKBMB COTJRT. 99 The original jurisdiction of the supreme court, c hap. 8. being limited by the constitution as interpreted by that court, to these two classes of cases, cannot be extended to others. As an appellate tribunal, the supreme court has cognizance, by a writ of error and appeal, of all civil causes whatsoever decided in the circuit courts of the United States, or in such district courts as are invested with the original jurisdiction of the circuit courts,^ or in the supreme courts of the territories, provided, as the general rule, the sum or value in dispute exceeds two thousand dollars ; but in certain prize causes, and in cases decided by the court of claims adversely to the United States, and in suits arising under the revenue laws, or the patent or copyright acts, no such limitation exists. Over the judgments of these courts, in criminal cases, it has no jurisdiction. But in all cases, as well criminal as civU (except such as are brought up by vmt of error or appeal from the district court of the same district), questions arising upon the trial or hearing of a case, upon which the judges of the circuit court may happen to disagree in opinion, may be certified to the supreme court for decision. This court also possesses appellate jurisdiction, by writ of error, over the final judgments and decrees of- the highest court in which a decision could be had, of any state. In every case belonging to either of the three classes of cases described in the 25th section of the judicial act, under the^ restrictions therein mentioned, whether the case be civil or criminal, whoever may be the parties, and whatever may be amount in controversy. Finally, the supreme court has power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty without jurisdiction ; writs of 100 Oeqanizatiois" op the Circuit Cottets. PART 1. mandamus to the district and circuit courts of tlie United States, but not to the ministerial oflScers thereof ; writs of habeas corpus, to bring up prison- ers in jail, when in custody under the authority of the United States, or for trial before some court thereof, in virtue of the process or order of a court whose decisions are subject to the appellate jurisdic- tion of the supreme court, or when it is necessary to bring them into court to testify, but not when com- mitted for contempt, nor in execution in criminal or civil cases ; writs of scire facias, of dedimus potestatem, and all other writs which may be neces- sary for the exercise of its jurisdiction, and -agree- able to principles and usages of law. CHAPTER VII. OF THE OEGANIZATION OP THE CIECTTIT COURTS. These courts, substantially as they at present exist, formed a part of the Original judicial system of the United States as established by the judicial act of 1789. They were established by congress in virtue of the authority given by the constitution, to constitute other courts inferior to the supreme court. By an act passed February 13, 1801, this system was virtually abolished, and a new one substituted. The new system was, however, of short duration, this act having been repealed on the 8th of March, 1803, and the former system expressly revived. SECTION 1. OP THE CIECTIITS. The judicial districts of the United States are arranged into nine circuits, as follows : The districts of Maine, New Hampshire, Massachu- setts and Rhode Island constitute the first circuit. OEGAmZATIOK OF THE ClfeCTJIT COTJETS. The districts of Vermont, Connecticut, the North- chap. 7. ern, Southern and Eastern districts of New York, the second circuit. The districts of Eastern and Western Pennsyl- vania, New Jersey and Delaware, the tMrd circuit. The districts of Maryland, West Virginia, Vir- ginia, North Carolina and South Carolina, the fourth circuit. The districts of Georgia, Florida, Alabama, Mis- sissippi, Louisiana and Texas, ih.e fifth circuit. The districts of Ohio, Michigan, Kentucky and Tennessee, the sixth circuit. The districts of Indiana, Illinois and Wisconsin, the semnth circuit. The districts of Minnesota, Iowa, Missouri, Kansas and Arkansas, the eighth circuit. The districts of Calfornia, Oregon and Nevada, the ninth circuit. "^ SECTION II. OF THE JTODGES AND OFFICERS OP THE CIRCUIT COURT. Judges']. At the date of the passage of the act (to be noticed presently) of April 10, 1869, ch. 22 (16 Stat, at Large, 44), entitled "An act to amend the judicial system of the United States,''^ and limited to take effect on the first Monday of December of ' These circuits are defined and established by tbe act of July 33, 1866, ch. 210, 14 Stat, at Large, p. 209. With respect to the first and second circuits, the act, however, simply directs that they " shall remain as now constituted.'' The second circuit was established by the act of I March 3, 1837, ch. 34. At that date, and until the passage of the act of February 25, 1865, ch. 54, creating the eastern district of New York, there were but the northern and southern districts. Neither this nor any other act expressly assigns the new district to the second circuit ; but it is supposed that it may properly be regarded as belonging to it, by just legal intendment. The first circuit was established by the act of March 30, 1820, ch. 27. The distribution, it will be seen, comprises all the thirty-six states of the Union except Nebraska, which did not become a state until March 1, 1867. 102 Obganization of the Circuit Oottbts. PAETi. that year, the circuit courts of the United States con- sisted, regularly and ordinarily, of the justice of the supreme court assigned to the circuit, and the district judge for the district in which the court sat ; bilt the supreme court were authorized, in cases where spe- cial circumstances should, in their judgment, render it necessary, to assign two of the justices to attend ;' and when either the justice of the supreme court, (5r the district judge by whom any circuit ought to be held, should fail to attend, the court might be held by the judge attending." The allotment of judges to the several circuits (made January 15, 1869) is as follows : To Vas. first circuit — Mr. Justice Cliffoed. To the second circuit — Mr. Justice Nelson. To the third circuit — Mr. Justice Gteier. To \hQ fourth circuit — Chief Justice Chase. To \hB fifth circuit — Mr. Justice Swatne. To the sixth circuit — To the seventh circuit — Mr. Justice Davis. To the eighth circuit — Mr. Justice Milleb. To the ninth circuit — Mr. Justice Field. By "An act in amendment of the acts respecting the judicial system of the United States," passed February 28, 1839, ch. 36 (5 Stat, at Large, 322), it is enacted : Suits to be " That in all suits and actions in ajiy circuit court of the another cir- United States, in which it shall appear that both the judges cnit, when. - 'Act of March 3, 1793, ot. 32 ; 1 Stat, at Large, 333. ' Act of April 39, 1803, ch. 31 ; 3 Stat, at Large, 156. Whether, in thus constituting these courts, congress did not transcend its constitu- tional authority, is a question which does not appear to have heen raised for judicial decision until many years after their organization ; and when at length their constitutionality was assailed, the supreme court considered tto question as already settled by the force of cotem- porary interpretation and long acquiescence. " This practical exposi- tion," said the court, " is too strong and obstinate to be shaken or con- trolled. Of course the question is at rest, and ought not to be disturbed." Okganizatioij op the Cibctjit Couets. 103 thereof, or the judge thereof, -who is solely competent by c hap. 7. law to try the same, shall be any ways concerned in interest therein, or shall have been of counsel for either party, or is or are so related to or connected with either party as to render it improper for him or them, in his or their opinicjn, to sit in the trial of such suit or action, it shall be the duty of such judge or judges, on application of either party, to cause the fact to be entered on the records of the court ; and also to make an order that an authenticated copy thereof with all the proceedings in such suit or action shall be cer- tified to the most conyenient circuit court in the next adjacent state, or in the next adjoining circuit ; which cir- cuit court shall, upon such record and order being filed with the clerk thereof, take cognizance thereof in the same man- ner as if such suit or action had been rightfully and originally commenced therein, and shall proceed to hear and determine the same accordingly ; and the proper process for the due execution of the judgment or decree rendered therein shall run into and be executed in the district where such judgment or decree was rendered, and also into the district from which such suit or action was removed." An act entitled ' ' An act to give greater efficiency to tlie judicial system of the United States," passed Marcli 3, 1863, eh. 93 ; (12 Stat, at Large, 768), directs : " That whenever the judge of the supreme court for any in case of circuit, from disability, absence, the accumulation of business biiity, &c., in any circuit court in any district within his circuit, or judge, mb from his having been of counsel or being interested in any be sappiied cause pending in such circuit court, or from any other judge of cause, shall deem it advisable that the circuit court in such cult, district shall be' holden by the judge of any other, circuit, he may request, in writing, the judged of any other circuit to hold the circuit court in such district, during a time to be named in such request ; and such request shall be entered on the journal of the circuit court so to be holden. And thereupon it shall be lawful for the. judge so requested, to hold the court in such district and exercise all the powers of the judge of such circuit within and for such district, 104 OEGANIZATIOBr OF THE ClECUIX COUETS. PART 1. Causes cer- tified into a circait court may be Bent back. The act of 1839 not repealed by the act of 1863. during the time named in such request, When, by reason of death or resignation, there shall be no judge in any circuit, this request may be made by the chief justice, and shall be operatiTO until such circuit shall be assigned to anoth(jr judge." The second section of this act contains the follow- ing provision : "And be it further enacted, that the judge of any circuit may order any civil cause certified into any circuit court within his circuit from any court of the United States, to be certified back to the court whence it came ; and in such case such cause shall be proceeded in by such court in all respects as if the same had not been certified from it: Provided, That, if from any cause it shall be improper that the judge of such court should try any cause so certified back, the same shall be tried by some other judge holding such court, pursuant to the provisions of this act." The third and last section enacts : "That all acts and parts of acts inconsistent with the provisions of this act be and the same are hereby repealed." There were also several antecedent acts (which wUl be noticed ia treating of the district courts), directing in case of the disability, etc., ot a judge of a district court, the transmission of causes from that court to ' the circuit court for the same district. Under this state of the law the question arose in the case of Supervisors v. Hodgers, 7 Wallace, 175, whether the above recited provision of the act of 1839 was repealed by the second section of the act of 1863. The supreme court held that it was not, the above quoted provisions of that section being applicable only to the cases specified in the first section. It was said also in this case that the court to which the cause is certified may, in conducting it, adopt, pro hac vice, the practice of the court whence it came. Organization of the Circuit Courts. 106 By an act passed August 6, 1861, ch. 59 ; (13 Stat. chap. 7. at Large, 318), when there are two districts in a state, whencir- in case of a vacancy in the office of district judge in mly be"' one of them, and of the sickness or absence of the afetrict circuit judge, the circuit court may be held therein ^°3^I by the district judge of the other district. An act passed June 17, 1844, ch. 96, relieves the justices of the supreme court from the duty of attending more than one term of the circuit court in any district in any one year. Such was the predicament of the circuit courts of the United States as constituted and regulated by law at the passage of the act of 1869, cited at the commencement of this chapter. It directs for the appointment "for each of the a circuit judge for nine judicial circuits," of "a circuit judge, who shall *^|_^- reside in his circuit, and §hall possess the same powers. power and jurisdiction therein as the justice of the supreme court allotted to the circuit." The circuit circnit conrts, by courts in each circuit may be "held by the justice of wuom teid. the supreme court allotted to the circuit, or by the cir- cuit judge of the circuit, or by the district judge ; and such courts may be held at the same time in diflterent districts of the same circuits ; and cases may be heard and tried by each of the judges holding any such court, sitting apart, by direction of the presiding justice or judge, who shall designate the business to be done by each." The act makes it "the duty of Justice of , "' •' supreme the chief justice and of each justice of the supreme Xnd once court" to "attend at least one term of the circuit ^*J^° court in each district of his circuit during every period of two years." This last clause supplants the above mentioned Effector rir tjjg change. enactment, exonerating the justices of the supreme court from their obligation to attend more than one term of a circuit court in each year ; but whether it interferes with the foregoing enactments authorizing 14 106 Obgan-izatiok of the Ciecuit Courts. PART 1. the substitution of one justice for anotlier ; the trans- mission of causes to an adjoining circuit ; and the holding of a circuit court in one district in a state by the district judge of another district of the same state, is a question upon which I forbear to speculate. Cleric.] It is by this act further enacted that noth- ing therein "shall aflfect the powers of the justices of the supreme court as judges of the circuit court, except iu the appointment of clerks of the circuit courts, who in each circuit shall be appointed by the judge of that circuit." The act of March 3, 1863, ch. 93, requires that "the clerk of every court shall give bond in such sum as may be fixed by the court, with sureties to be approved by the court, and a new bond may be required whenever the court shall deem it proper . that such bond be given." A copy of the bond is to be "entered on the journal of the court" and the original " deposited for safe keeping as the court may direct. A certified copy of such entry shall be prima facie proof of the execution of such bond and of the contents thereof." The compensation of the clerk consists of fees fixed by acts of congress which wUl be foujad ia the appendix. Crier.] The crier is appointed by the courts and is. entitled to a compensation of two dollars per day for his services." Commissioners to taJce acknowledgments of hail and affidavits, &c., depositions, &c.] The office of commissioner was originally created by an act of congress passed ia the year 1812, empowering the circuit courts, whenever the extent of their districts renders it necessary, "to appoiat such and so many discreet persons, in different parts of the district, as such court may deem necessary, to take acknowl- 'Act of February 26, 1853, ch. 80. OEGAKIZATIOlir OF THE OlECUIT OOUETS. 107 edgments of bail and affidavits ; wMch. acknowledg- ohap. 7. ments of bail and affidavits shall have the like force and eflfect as if taken before any judge of the said courts.'" And by the act of September 18, 1850, ch. 60, this power has been conferred on the superior court of each of the organized territories of the United States. By several successive subsequent acts of congress, Their the powers of these officers have been greatly tended. enlarged, until at length the office has become one of considerable importance and responsibility. The authority to take acknowledgments of bail and affi- Mar take davits, conferred by the original act, being limited to ™ aiBtrict suits' in the circuit courts, an act was passed a few years later extending it to causes in the district court ; and by the same act these persons were empowered to take depositions de hene esse under Deposi- tionB. the thirtieth section of the judiciary act, a power of which it will be necessary to treat in the second part of this work.^ The power to take affidavits and depositions extends as well to suits in admiralty as to those at law and in equity ; and by the rules of practice in admiralty and maritime causes, pre- scribed by the supreme court ia 1845, commissioners are empowered to t^ke admiralty stipulations. By another act these officers are invested with "all May grant the powers that a judge or justice of the peace may f^^^ °^ exercise" under and in virtue of the sixth and seventh sections of the act of July 20, 1790, for the government and regulation of seamen in the merchant service.' The power here designated is that of granting a summons in behalf of seamen to whom wages are •Act of Feb. 30, 1813, ch. 35 : 3 Stat, at Large, p. 679. 'Act of March 1, 1817, ch. 30 : 3 Stat, at Large, p. 350. 'Act of August 33, 1843, ch. 188, §1:5 Stat, at Large, p. 516 : act of July 38, 1866, ch. 309. 108 Oeganizatioh of the Circuit Ootjets. PART 1. due, calling on the master to show cause wliy admir. ralty process should not issue against the vessel; and if no sufficient cause is shown, granting a certL' ficate authorizing the issue of such process. May cause By the Same section of the act last above cited, it te arrested, ig also enacted that commissioners "shall and may exercise all the powers that any justice of the peace or other magistrate of any of the United States may now exercise in respect to offenders for any crime or offense against the United States, by arrestingi. imprisomng or baiHag the same, under and by vir- tue of the thirty-third section of the" judiciary act of 1798. And, by the second section of the same May require act, it is further Buacted, "That in all hearings to give before any justice or judge of the United States, or any commissioner appointed as aforesaid, under and by virtue of the said thirty-third section, it shaU be lawful for such justice, judge or commissioner, where the crime or offense is charged to have been committed on the high seas or elsewhere withia the; admiralty and maritime jurisdiction of the United States, in his discretion to require a recognizance of any witnesses produced in behalf of the accused^, with such surety or sureties as he may judge neces- sary, as well as "in behalf of the United States, for their appearing and giving testimony at the trial of the cause, where testimony^ in his opinion, is important for the purposes of justice at the trial of the cause, and in danger of being otherwise lost." Mayreqnire By au act passed a few years later it is enacted, " That upon the necessary proof being made to any judge of the United States, or other magistrate hav- ing authority to commit on criminal charges against the laws of the United States, that a person pre- viously admitted to bail on any such criminal charge is about to abscond, and that his bail is insufficient, it shall and may be lawful for any such judge or Oegastization of the Circuit Coubts. 109 magistrate to require such person to give better c hap. 7. security, or in default thereof, to cause Mm to be committed to prison ; and to that end an order for his arrest may be- indorsed on the former commit- ment, or a new warrant therefor may be issued by such judge or magistrate, setting forth the cause thereof."' The terms "other magistrate having authority to commit," &c., have in this instance been understood to embrace commissioners, and the policy of the act and the relation it bears to the other enactments on the same subject and ia which commissioners are expressly named, favor this con- struction. And by another act of the same date, entitled May issue process to "An act more eflfectually to provide for the enforce- enforce de- ■^ ^ cisions of ment of certain provisions in the treaties of the eonsnia. United States," commissioners, as well as the dis- trict and circuit courts of the United States, are , empowered, upon the application of consuls, vice- consuls or commercial agents of foreign powers, with which the United States have entered into treaty stipulations to the effect mentioned in the preamble of the act, to issue process for the purpose of enforce- ing the awards and decisions of such consuls, &c., relative to controversies which may arise in our ports between the masters and crews of vessels belonging to their respective countries." By the act of July 13, 1866, ch. 184 (14 Stat, at May issue •' J 7 :> \ search war- Large, 152), commissioners, as well as the judges of rant. the circuit and district courts, are empowered to issue search warrants authorizing any iatemal reve- nue officer to search any premises, if he shall make oath in writing that he has reason to believe and does believe that a fraud upon the revenue has been or is being committed upon or by the use of such premises. 'Act of August 8, 1846, ch. 98, § 6 ; 9 Stat, at Large, p. 73. 'lb., p. 79. 110 Oegakization- of the Circuit Courts, pABTi. No marshal or deputy marslial is permitted to Marshal In- hold the office of commissioner, or exercise the competent i • ■ i^ o i to act aa dutiBS thereoi. sioner''' In those districts in which the district courts are ijavested with the original jurisdiction of the circuit courts, these officers, it is hardly necessary to add, are appointed by the district courts, acting as circuit courts. Attorneys, Counselors &c.] The circuit court be- . ing a court of law and equity, and, as an appellate tribunal, a court of admiralty also, the persons appointed to conduct the business of suitors therein, are properly designated under- the various appella-^ tions of attorneys, solicitors, proctors, counselors and advocates. The names of proctor and advocate are derived from the civil law, and are used in admiralty proceedings, as correspondent with those of attorney and counselor in proceediags at law, and those of solicitor and counselor in proceedings in equity. The admission of persons to practice ia the several circuit courts, is regulated by the rules of those, courts respectively. As far as I have been able con- veniently to ascertain, and probably throughout the Union, those who have been already admitted to practice in the supreme or superior courts of the several states, are entitled to admission to the corres- ponding rank in the circuit courts held therein, of 'Act of August 16, 1856, oh. 134, § 13 ; 11 Stat, at Large, p. 50. The fees of these officers are regulated hy the act of February 26, 1853, ch. 80. See Appendix. 'The rule upon, this subject of the circuit court for the southern district of New York, is as follows : " Attorneys and counselors of the supreme court, and solicitors and counselors of the court of chancery of this state, may, on presentation of their licenses to the clerk and his report of their degree, have an order of course entered in open court in term time, or in the common OeGANIZATIOIT OS THE ClECtriT CotTRTS. Ill Of the privileges, disabilities and duties of attor- c hap, t. neys, of their appointment, the duration of their authority, and the mode of changing them, their punishment for misconduct, &o., it is suflBicientto say that the practice of the supreme courts of the respec- tiive states, relative to these particulars, are appli- cable to the national courts sitting in such states respectively, except so far as the same may be altered by acts of congress, or by rules of court. Attorneys, &c., may be required, by order of court, to satisfy costs unnecessarily made.' Their fees are prescribed by a late act of congress, a copy of which is appended to this work." District Attorney and Marshal. ^ See post, Organ- ization of the District Courts.' rules in vacation, admitting them to the same standing ip this court ; and attorneys and solicitors of the said courts may also be admitted as proctors ; and counselor? of the said courts may be admitted as advo- cates, on the admiralty side of the court ; all such officers first taking and subscribing the oaths of office, prescribed by the constitution and laws of the United States." The rule of the circuit court for the northern district is substantially the same. Appendix, Eule 1, C. C. (N. D.) N. T. On the establishment of this court in 1837, a rule was made authorizing the practitiouers in the district court to practice also in this. Appendix, Eule 13. 'Act of July 33, 1813 ; 3 Stat, at Large, 31. "Acts of February 36, 1858, ch. 80, Appendix. ° The times and places designated by law for the stated sessions of the circuit court in the northern district of New York are as follows : At the village of Cancmdaigva, on the third Tuesday of June, and at the city of Albany on the second Tuesday of October. The October term to be adjourned to the third Tuesday of January, at Albany, and again to the third Tuesday of March, at the city of Utica ; " and the said adjourned term [terms ?] shall be held for the transaction of civil business only; and no jury shall be drawn for service therein exclu- sively, but the jury drawn to serve in the district court at the same time and place of the said adjourned terms of the said circuit shall be used for the trial of issues of fact arising in civil causes in said circuit court," &c. Act of July 3, 1864, ch. 355 ; 13 Stat, at Large, p. 385. 112 Obganization oe the Cibctjit Courts. PART 1. Special Sessions.] By the act of March 2, 1793, it Maybe is provided, "That the supreme court, or, when the fOT °he wai supreme court shall not b6 sitting, any one of the jus- cau8e™at! tices thereof, together with the judge' of the district within which a special session, as hereafter author- ized, shall be holden, may direct special sessions of the circuit courts to be holden for the trial of crimi- nal causes, at any convenient place within the dis- trict, hearer to the place where the offenses may be said to be committed than the place or places Notice to appointed by law for the ordinary sessions ; that the tme ana° clerk of such circuit court shall, at least thirty days before the commencement of such special sessions, cause the time and place for holding the same to be notified, for at least three weeks, successively, in one or more of the newspapers published nearest to the place where the session is to be holden ; that aU process, writs and recognizances of every Mnd, whether respecting juries, witnesses,'' bail or other- wise, which relate to the cases to be tried at the said special sessions, shall be considered as belonging to such sessions, in the same manner as if they had been issued or taken in reference thereto ; that any special session, may be adjourned to any time or times previous to the next stated meeting of the cir- cuit court ; that all business depending for trial at any special court, shall, at the close thereof, be consid- ered as of course removed to the next stated term of the circuit court.' ' 1 Stat, at Large, oh. 33, § 3, p. 333. In the case of The United States v. BamMon (3 Dallas, 17,) strong doubts were expressed, 1. Whether a special circxut court could be appointed to be held on a day subsequent to that fixed by law for the next stated session ; and, &. Whether admitting the power to appoint such court, indictments found at a stated session could be tried at such special session. And in the case of The United States v. Imurgenti (id., 518), it seems to have been justly considered that the authority conferred by the above recited aet'was to be exercised in subordination Orsanization of the Circuit Ootjuts. 113 And by the act of July 4, 1840/ it is enacted, c hap, t. " That the presiding judge of any circuit court may, May be ^ at Ms discretion, appoint special sessions thereof, to by'presid. be held at the places where the stated sessions thereof atf ic.,^fpr - all buBineSB are holden ; at which special sessions it shaU. be except competent to the said court to entertain jurisdiction J""?- of and hear and decide all cases in equity, cases in error, or on appeal, issues of law, motions in arrest of judgment, motions for new trial, and all other motions, and to award executions and other final pro- cess, and to do and trapsact all other business, and , • direct all other proceedings, in all causes pending in the circuit court, except trying any cause by jury, in the same way and with the same force and effect as the same could or might be done at the stated sessions of such court." With respect to the form in which the power here Notioe, how to be conferred upon the presiding judge is to be exercised, given, the act is silent. But considering that it invests the court appointed in pursuance of it with all the pow- ers pertaining to a stated session, except the power of trying causes by jury, and that all suitors are e^^ually entitled to. a hearing, and may even be held chargeable with laches for neglecting the opportunity, it would seem to be highly proper, if not indispensa- ble, that full and timely publicity should be given td the appointment, according to the express require- ment of the above recited act of March 2, 1793." to the provision contained in the judicial act of 1789, (vol. 3, p. 67, § 39)) directing " that in cases punishahle with death, the trial shall be in the county where the offense was committed ; or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence." ' Ch. 43, § 3 ; 5 Stat, at Large, p. 393. ' The acts of May 5, 1863, ch. 71 ; 13 Stat, at Large, p. 386, respeoi- ing the courts for the district of Kentucky, contain very definite and judicious regulations relative to special sessions and adjournmenta, which, for the sake of simplicity and certainty, it would have been well . to extend to all other districts. 15 114 OsGASriZATION OF THE CIRCUIT COURTS. PART 1. In addition to tlie facilities afforded to suitors by Court the above mentioned provisions, it bas also been opra^'aBa enacted that tbe district courts as courts of admi- eqnity.for Taltj, and tbe circuit courts as courts of equity, poses. sbaU be deemed always open for tbe purpose of filing libels, bills, petitions, answers, pleas and other pleadings, for issuing and returning mesne and final process and commissions, and for making and direct- ing all interlocutory motions, orders, rules, and other proceedings whatever, preparatory to the hearing of Powers of all causes pending therein upon their merits. And vacation, it shall be competent for any judge of the court, upon reasonable notice to the parties, in the clerk's ofl3.ce or at chambers, and in vacation as well as ia term, to make and direct, and award all such pro- cess, commissions and interlocutory orders, rules, and other proceedings, whenever the same are not grantable of course according to the rules and prac- tice of the court.'" Original Adjournment, &c.] By the judiciary act of 1789 ' 'Of- it is provided ' ' That a circuit court may be adjourned from day to day" by any one of its judges, or, if none are present, by the marshal of the district, untU a quorum be convened." The circuit courts consisted originally of two judges of the supreme court and the district judge, two of whom constituted a quo- rum. ° But by an act passed in 1793, as we have seen, these courts were made to consist of one judge , of the supreme court and the district judge ; and the judge of the supreme court, in the absence of the district judge, was authorized to hold the court alone. 'Act of August 23, 1842, ch. 188, § 5 ; 5 Stat, at Large, 516. See, alBO, Appendix, Rules 1, 2 and 3, of the Rules regulating the practice of the C. C. in equity, embodying and amplifying the above recited provisions of this act. ^ Ch. 34, § 7 ; 1 Stat, at Large, 73. •Ibid, §4. Oeganization of the Circuit Coxjbts. 115 By an act passed May 19, 1794,' it is provided c hap, t. "That a circuit court in any district, when it shall Tonext happen that no justice of the supreme court attends by judge™ within four days after the time appointed by law for the commencement of the session, may be adjourned to. the next stated term by the judge of the district, or, in case of his absence also, by the marshal of the district." But by the act of April 29, 1803, as we have seen, a circuit court may be holden by either of the judges; and the necessity of an adjourn- ment on account of the absence of the judge of the supreme court was thereby removed, and the appli- cability of the act of 1794 vt^as thus limited to the case of the absence of both of the judges. Under this state of the law, the act of July 4, 1840,' was passed, by which it was enacted, ' ' That whenever it in the shall so happen that neither of the judges of a cir- ]'oth cuit court of the United States shall attend at the marshal may ad- commencement of a session of the said court, or at J^^tten^ the time appointed on any adjournment thereof, to °^^^^- open and adjourn the said court in person, either of the said judges may, by a written order to the marshal, adjourn the court from time to time, as the case may require, to any time or times antecedent to the next stated term of the said court ; and all suits, actions, writs, processes, recognizances, and other proceedings pending in such court, or returnable to or to be acted upon at such court, shall have day and be returnable to, and be heard, tried and deter- mined, at such adjournment or adjournments, in the same manner and with the same effect as if the said court had been duly opened and held at the com- mencement of such session, or other day appointed therefor ; and aU persons bound or required to appear at said court, either as jurymen, witnesses, parties, Ch. 32 ; 1 Stat, at Large, 369. 'Ch. 43 ; 5 Stat, at Large, 892. 116 OBGAmZATiON OF THE ClBCUIX COUETS. PAETi. or otherwise, shall be bound and required to attend at such, adjournment or adjournments accordingly." Practical I have deemed it necessary to enumerate these the forego- several legislative provisions relative to the power Bions. of adjournment, on account of the importance of the subject, and because there seems to be some ground for doubt concerning the precise result of these various enactments. Unquestionably the pro- vision of the judiciary act authorizing one judge to adjourn from day to day till a quorum shall appear, is wholly superseded by the subsequent acts. It is equally clear, also, that the provision of the act of , 1794, authorizing the district judge to adjourn the court to the next stated term on account of the non- attendance of the justice of the supreme court, is also in like manner, superseded. But whether the authority given to the marshal by that act is taken away, is a question which may admit of doubt. It may be that congress intended by the act of 1840, to supersede and thus indirectly to repeal all existing regulations on the subject. But the act contains no repealing clause, and its provisions are ' not repugnant to those of the act of 1794. The bet- ter opinion, therefore, seems to be, that the power given by this act to the marshal, stUl exists. The, authority expressly given to this officer, is that of adjourning the court to the next stated terTn, in case of the non-attendance of either of the judges within four days after the time appointed by law for the commencement of the court. But, as incidental to this authority, an implied power is also probably given to the marshal to open and adjourn the court from day to day during the four days, and it seems advisable for him to do so. The act of 1840 author- ises the marshal to act only in pursuance of a written order of one of the judges, for the adjournment of Oegakization of the Ciecuit Courts. 117 the court to some day, to be specified in the order, chap. 7. prior to the next stated term.' By the act of February 25, 1799," when a "-conta- in case of gious disease shall render it hazardous" to hold a SaT"^ • . , T J . , court to be Circuit or district court at the place prescribed by "^^Jl^^- law, the district judge is authorized to designate Pa^le""^^ some other place within the district for holding such court, and for that purpose to issue his order to the marshal of the district, who is required to "make publication thereof, in one or more public papers printed at the place by law appointed for holding the same, from the time of receiving such order until the time by law prescribed for commencing the said ses- sions.'" And by the act of January 18, 1*839,' it is enacted ormaybe " That the judges, or someone of them, of the cir- * ^°"°?'^" cuit court of the United States shall have power to direct the said courts to be adjourned over to some future day, designated in a written • order to the clerk of either of the said courts, whenever there is a dangerous and general disease at the place where the court is usually holden ; and the adjournment over by the clerk, in the absence of the judges, shall have the same force and effect as if the judges had been present." The courts of the United States have power to ' See note •'p. 113, relative to the District of Kentucky. ' Ch. 13, § 7, 1 Stat, at Large, 619. ' By this act (§ 5) it is also humanely declared that it shall be lawful for the "judge of any district court of the United States, within whose district any contagious or epidemic disease shall at any time prevail, so as in his opinion to endanger the life or lives of any person or persons confined in the prison of such district, in pursuance of any law of the United States, to direct the marshal to cause the person or persons con- fined as aforesaid to be removed to the adjacent prison where such disease does not prevail, there to be confined, until he, she or they may safely be removed back to the place of their first confinement, which removals shall be at the expense of the United States." *Ch. 3, § 9, 5 Stat, at Large, 313. 118 . Oeiginal Jurisdiction- of the Circtiit Ooubts. PAST 1 . adjourn to a distant day, and not merely from day 'conrtB to day. Thus, when the circuit court for the District Mourned of Columbia, having continued to sit regularly from day. the commencement of its session in April until the ■ 16th of May, adjourned to the fourth Monday of June following, and then resumed and continued its sessions, the adjournment was held to be a legal continuation of the April term ; and to adjourn la this manner was said to be a power common to aU courts not restrained in this respect by express law. 6 Wheaton, 106. CHAPTER VIII. OF THE OEIGINAL JTJEISDICTION OF THE CIECUIT COURTS. The constitution, as we have seen, defines the judicial power of the United States ; designates one tribunal through which it is to be exerted, and vests a portion of it absolutely in that tribunal ; but con- fides every thing else relating to the subject to the wisdom of congress. "What other courts should be established— in what proportions and under what modifications the judi- cial power should be distributed among them — were points to be determined by laws enacted in pursu- ance of the constitution. To these laws, therefore, and to the judicial expo- sitions they have received, recourse must be had, to ascertain the jurisdiction of the circuit and district courts. Bythejudi- The original jurisdiction with which congress saw fit at the outset to invest the circuit courts is described chiefly in the 11th section of the organic act of September 34, 1789, as follows : " Sec. 11. And ie it further enacted, That the circuits of the United States shall have original cognizance, concurrent cial act. Oeisinal Jurisdiction of the Circuit Courts. 119 "witli the courts of the several states, of all suits of a civil chap. s. nature at common law or in equity, where the matter in dis- circuit pute exceeds, exclusive of costs, the sum or value of five have'cwi hundred dollars, and the United States are plaintiffs or ISa"' petitioners ; or an alien is a party, or the suit is between a '"''** '^*^^"- citizen of the state where the suit is brought, and a citizen of another state. And shall have exclusive cognizance of Criminal all crimes and offenses cognizable under the authority of t?on! the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein. But no person shall be arrested in one district for trial in another, in any civil suit before a circuit or district court. And no civil suit shall be No person brought before either of said courts against an inhabitant of arrested the United States, by any original process in any other dis- another trict than that whereof he is an inhabitant, or in which he civiisuit, shall be found at the time of serving the writ; nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have A^^'snee's been prosecuted in such court to recover said contents if no action re- assignment had been made, except in cases of foreign bills of exchange. And the circuit court shall also have appel- late jurisdiction from the district courts under ,the regula- tions and restrictions hereinafter provided.' Subsequent laws have considerably enlarged the The juris- jurisdiction specified in this section, by abolishing ci'rciit the limitations in point of amount in several descrip- tended to ■^ ^ smts by tions of cases, and by extending the jurisdiction to ^^^ «' additional ones. An act of March 3, 1816, does both, ^SfimTta-"' though in terms rather indirect. It enacts "That Amount.*" the district courts of the United States shall have cogniaance, concurrent with the courts and magis- 'Ch, 30; 1 Stat, at Large, 78. The 13th section authorizing the removal of suits from the state courts, and extending the jurisdiction of the circuit courts to certain controversies concerning the title to lands, will be noticed presently. 120 Oeigiital Jurisdictiok of the Circuit Courts. PAKTi. trates of the several states and the circuit courts of the United States, of all suits at common law, where the United States, or any officer thereof, under the authority of an act of congress, shall sue, although the debt claimed or other matter in dispute shall not amount to one Tiundred dollar sy"^ This act came under the review of the supreme court in TTie Post- master-General V. Early et al. (12 Wheat., 136), and was held sufficient to confer upon the circuit courts jurisdiction of cases in which an officer of the United States shall sue, and upon the same grounds must be considered as abolishing the restriction in point of amount in both cases. jnrisdic- By the act of March 2, 1833, ^^ further to provide cQit courts for the collection of duties on imports,''^'' ii is pro- arishf^^ vided, "That the jurisdiction of the circuit courts ^'n?^ of the United States shall extend to all cases in law revenue BaTtBfor^ or equity, arising under the revenue laws of the fnSmdin United States, for which other provisions are not their main- -, -^ nii n.j? in tenance. already made by law; and if any person shall receive any injury to his person or property for or on account of any act by him done under any law of the United States, for the protection of the revenue or the collection of duties on imports, he shall be entitled to maintain suit for damage therefor in the circuit court of the United States, in the district where the party doing the injury may reside or shall be found." The jurisdiction here conferred, it will not fan to be observed, is of great importance, and does not depend upon the citizenship of the parties or the amount in controversy. This act also provides for the removal from the state courts to the circuit courts of the United States, of suits. against revenue officers; and both 'Ch. 101, § 4; 3 Stat, at Large, 344. The limitation in the district courts was $100. ' Ch. 57, § 2 ; 4 Stat, at Large, 633. Oeiginal Jurisdiction of the Circitit Courts. 121 of these provisions were, by tlie 50tli section of c hap, a. the act of June 30, 1864 (13 Statl at Large, 241), extended to like cases arising under the internal revenue acts. But this section was repealed by the 68th section of the act of June 18, 1866 (14 Stat, at Large, 172), which, moreover, for greater caution, forbids the application of the provisions of the act of 1833 to cases arising under this or any other inter- nal revenue act. It, however, (section 67) extends the jurisdiction of the circuit courts, without regard to citizenship or amount in controversy, to suits brought by officers appointed under it for any injury to their persons or property committed on account of acts done in pursuance of it ; and also provides for the removal of suits and prosecutions against them for such acts. See post, Removal FEOM State Coubts. By the act of April 20, 1818,' it is enacted, that Qam in any suit or action which shall be hereafter insti- ™¥^ •' • Unit tuted l)y the United States against any corporate f^^j body for the recovery of money upon any bill, note 1°^ or other security, it shall be lawful to summon as garnishees the debtors of such corporation ; and it shall be the duty of any person so summoned to appear in open court and depose, in writing, to the amount which he or she was indebted to the said corporation, at the time of the service of the sum- mons, and at the time of making such deposition ; and it shaU be lawful to enter up judgment in favor of the United States, for the sum admitted by such garnishee to be due to the said corporation, in the same manner as if it had been due and owing to the United States : Promded, that no judgment shall be entered against any garnishee until judgment shall have been rendered against the corporation defeud- » Ch. 83, §§ 8, 9, 10 : 3 Stat, at Large, 441. 16 1^2 Oeigi^al JtrksDicTiosr oi* the Oikcuit GotrETS. PAKTi. ant to the said action, nor until the snm in which such garnishee may stand indebted be actually due. That when any persoli summoned as garnishee shall depose in open court that he or she is not indebted to such corporation, hor was not at the tiine of the Bemce of the suinmons, it shall be lawful for the United States to order an issue upoii such demand ; and if, upon the trial of such issue, a verdict shall be rendei-ed against Such garnishee, judgnleht shall be entered in favor of the United States, pursuant to such f erdict, with costs of suit. That if an;^ person summoned as garnishee under the provisions of this act shall fall to appear at the term of the court to which he has been summoned, he shall be subject to attachment for contempt of the court. Deben- By thfe " act to regulate the coUiection of duties of *''^' imports and tonnage," passed March 2, 1799,' it is made the duty of the coUectors in certain cases to grant certificates called debentures, certifyihg 'that the sutns therein mentioned are due from the United States, payable at the ofBce of such Collector, to the persons therein named, or order. These debentures are also dieclared to be negotiable by Indorsement and delivery, and "the possessor or asSigniee" thereof is aiithoriiied, upoh their non-payment by the collector, to maintain Suits thereOn agaihst any inddrser, in the proper circuit or district court. In this case alSo, as weU the aMount in dispute as the character of ttie parties is unimportant to the question of juris- diction. KaS of ^^ *^^ " act to iacorporate the subscribers to the Reunited ^a%k of the Uhit&d States,'^ passed April 10, 1816,' the president, directors and company of the said bank are authorized and rendered liable "to sue 'Ch. 23, § 80 : 1 Stat, at Large, 627. "Ch.. 44, § 7 : 3 Stat, at Large, 266. OBIfJ^INAI, JUEISDIGTXOJJ" Oy THE QlKOTJIT CQUBTS. 13^ and be sued, plead and be impleaded, answer sind c hap, s. be answered, defend and be defended, in all state courts having competent jurisdictipn, and in g,ny circuit court of the United Sto/tes.'''' And bere again it will be perceived tbe jurisdic- tion is ii^dependent of tbe amount in controversy, and of the citizensMp of the parties. Similar acts bave been passed with respect to suits cik ■■^ ^ con: arising under the patent and copyright acts. ^^. By the judiciary act patentees and authors were |"j left upon the same footing as suitors in general ; pati their right to sue in the circuit courts depej^ding on acts citizensMp and the amount in controversy. But theirs being cases '* arising under the constitution and laws of the United States," congress had power to bring them within the jurisdiction of the circuit (jourts without regard either to amount or tjo citiz;en- &hip. This was done by an act of February 15, 1819, ch. 19, giving to the circuit courts original jurisdictipn, "as well in equity as in law, of all actions, ,suits, controversies, and cases arising under any law of the United States, granting or confirming to authors and inventors the exclusive right to their respective writings, inventions and discoveries," (Tvith power, at the suit of any party aggrieved," %o grant mjujictions, according to jthe coujrse ai^-^,v principles of courts of equity, to prevent t|ie vio^;' tion of the rights of any authors or inventors, secured to them by any laws of the United States, on such terms and conditions as the said coi^ijfts may deem fit and reasonable." This act has been superseded and repealed, with respect io copy- rights, by the copyright act of February 3, 1831, ch. 16 (4 Stat, at Large, 436) ; and .with respect to patent rights, by the patent ^ct of July ,4, 18?6, ch- 357 (5 ■Stat, at -Large, 117), both of -which, hawever, incor- 124 Oeiginal JuEisDicTioiir of the Ciecuit Courts. PAETi. porate and re-enact the above mentioned provisions of the act of 1819.' Mann- By a Subsequent act the courts of the United ecripts. .' j. States are expressly empowered to grant injunctions, in like manner, according to the principles of equity, to restrain the unauthorized publication of any manu- scripV ' This last mentioned act has received in the circuit court of the United States for the southern district of New York, an interpretation BO extraordinary as to require notice, but as it does not admit of being fitly treated in a note, and, as I am averse to interweaving my criticisms upon it with the main body of the text, I assign them a distinct place at the close of the appendix. It may be hoped that the unequivocal repudiation, either by j udicial or legislative authority, of the mischievous heresy to which I am referring, will permit the omission of its further exposure in future editions of this work. ° The subject of copyrights is one of considerable interest, and- its importance is daily increasing. In pursuance of the power expressly delegated by the constitution to congress for that purpose, an act was passed at the first session of that body "for the encouragement of learning, by securing the copies of ma^s, chaHs and hooks to the authors and proprietors of such copies, during the terms therein mentioned." (Act of May 31, 1790 : 1 id., p. 124). This act embraced only the pro- ductions named in the title, and secured (or was inteded to secure) to ,^ the author (being a citizen or resident of the United States), and to his executors, administrators and assigns, the exclusive right to publish and sell the same during the period of fourteen years ; and if at the expiration of that period the author should stiU be living, and a citizen or resident of the United States, then, upon certain conditions, for the further term of fourteen years. On the 29th of April, 1802, a supplemental act was passed, extending the benefits of the foregoing act to the " arts of designing, engramng and etching, historical and other prints." 8 id., p. 171. The act of February 3, 1831, in addition to books, maps, charts, prints, and engravings embraces also musieal compositions. But the most important alteration introduced by it consists in the extension of the period of the exclusive enjoyment to twenty-eight instead of fourteen . years, and in the right conferred upon the widow and children of the author, in case of his death before the expiration of the first term, to renew the copyright for fourteen years longer, in the same manner as the author himself may do if living. These liberal and just provisions are also extended to existing copyrights, dating from the time of their entry. This act was designed wholly to supersede the two former acts Oeigikal Jukisdiction of the Ciecuit Courts. 125 A power of considerable importance has been con- chap. s. ferred on the circuit and district courts, and also on to enfo the commissioners, to take affidavits and acknowl- oSS edgments of bail, &c., designed more fully to eflfectuate certain treaty stipulations with, foreign powers. The preamble to the act for this purpose recites a provision contained in a treaty between the United States and Prussia, provisions similar in substance being also contained in treaties with some other foreign powers, that the consuls, vice-consuls, and commercial agents of the respective parties, "shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authori- ties, unless," &c. And it is therefore enacted that the district courts and circuit courts of the United States, and the commissioners shall have full author- ity, on the application of any such consuls, or vice- consuls, or commercial agents, for assistance to carry into effect the award, arbitration or decree of such consul, &c., to issue all proper remedial process, mesne and final, to carry into full effect such award, &c. ; and to enforce obedience thereto, by imprison- ment in the common jaU, or other place in the district, where the United States may lawfully imprison per- of 1790, and 1803, and expressly repeals them ; saving only suet rights as had already heen 'acquired under them. It accordingly provides remedies for any invasion of the exclusive rights intended to he secured hy it. But in this respect it adopts, suhstantially, the provisions of the two former acts. It imposes forfeitures and penalties; the one moiety thereof to the use of the United States; and " to he recovered in any court homing competent jurisdiction thereof." These remedies, in point of form, were originally horrowed from the laws of England. Whether it was wise to adopt and thus continue them, may be doubted. It is believed they will, in practice, be found inconvenient and embar- rassing. 126 OaiGISTAL jFKESDIfTION OP T^HE OrE&triT GjeHjaK. ?AjiT 1. sons arrested under their aiathority, iintil sucli award, "^ &c., shall be complied with., or the parties shall be otherwise discharged therefrom, by the eoijieeHt in writing of such consul, &c., or his successor, or by authority of his government.' To alter The process act of May 8, 179?, empowers all the of morels courts of the United States to makp, and the supreme 1^6?"°°" court to prescribe, such alterations in the forms of writs, executions a,nd other process, except their style, and in the forms aijd modes of proceeding, as ■ they shall in their discretion reepeetiveily deem expe- dient.' Power to For the statutable authority of the circuit courts Issne writs, , . .x j. . _<» ■ i i make rniea to issue wnts of sotre facias, fiaveas corpus, ne and grant - v j , new trials, exeot, inj%neUon, and " all other wrUs -wMah. ixiSbj be necessary for the exercise of their jurisdiction and agreeable to the principles and usages of law," and for the restrictions upon the exercise of that author- , ity, as also for power to. punish for contempts, make rules ^ grant new trials, &c., see pp. 76-81. Removals from state courts- Lastly, it remains now to bring to the notice of the reader the import- ant provisions of the 13th section of the judicial act- In the first place it prescribes a mode by which the jurisdiction conferred by the 11th section, of suits to which an alien is a party, and suits between eitir zens of different states, may be made effective, when such suits are commenced in a state court ; and, in the next place, it makes the only provision which congress has yet seen fit to make, for the purpose "of giving effect to the constitutional grant of judicial power over ''controversies between citizens of the same state claiming lands under grants from different states" — thus superadding another distinct branch ' Act of August 8, 1846, ch. 105 ; 9 Stat, at Large, p. 78. ' Ch. 36, § a : 1 Stat, at Large, p. 376. OEIGIKAi JtTEISDTCTIOil: OF THU ClROUIT CoUBlS. 127 of jurisdiction to those specified in tile preceding csap. s. section. It is in tlie following words : " Sec. 12. And be it fuHher enacted, That if a suit be snit*^^ cominenced in any state court, against an alien, or ly a citi- a"®™ « zen of the state in which the suit is irought against a citizen '^^^ of another state, and the matter in dispute exceeds the afore- etatea. said sum or value of five hundred dollars, exclttsiTe of costs, to be made to appear to the satisfaction of the court, and the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next circuit court, to be held in the district Tfhere the suit is pending, or if in the district of Maine, to the district court next to be holden therein, or if in Ken- tucky district,' to the district court next to be holden therein, and offer good and suflBcient surety for his entering, in such court, on the first day of its next session, copies of said pro- cess against him, and also for his there appearing and entering special bail in the cause, if special bail was origi- nally requisite therein, it shall then be the duty of the state court to accept the surety, and proceed no further in the cause ; and any bail that may have been originally taken, shall be dischai-ged ; and the said copies being entered as aforesaid, in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process. And any attachment of the goods or estate of the defendant, by the original process, shall hold the goods or estate so attached, to answer the final judgment, in the same manner as by the laws of the state they would have been holden to answer final judgment had it been rendered by the court in which the suit com- menced." Thus' far, it will be perceived, the civU jurisdiction conferred depends wholly upon the character of the parties and the amount in dispute. 'The districts of Maine and Kentucky were by this act excepted from the circuits, and the district courts therein invested with the origin^ jurisdiction of the Circuit courts. 128 Obigihal Jubisdiction' oe the Cikcuit Ooxiets. PAET 1. But tMs section also further enacts, tliat — Suits con- " If in any action commenced in a state court, the title titk'S? of land be concerned, and the parties are citizens of the tweenciti- same state, and the matter in dispute exceeds the sum Bame state, or Talue of fiye hundred dollars, exclusive of costs, the sum or Talue being made to appear to the satisfaction of the court, either party, before the trial, shall state to the court, and make affidavit, if they require it, that he claims and shall rely upon a right or title to the land, under gra,nt from a state, other than that in which the suit is pending, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his power, and shall move that the adverse party inform the court whether he claims a right or title to the land under a grant fro«n the state in which the suit is pend- ing, the said adverse party shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence upon the trial; and if he informs that he does claim under such grant, the party claiming under the grant first mentioned, may then, on motion, remove the cause for trial to the next circuit court to be holden in such district, or if in the district of Maine, to the court to be holden next therein, or if in Kentucky district, to the court to be holden next therein ; but if he is the defend- ant, he shall do it under the same regulations as in the before mentioned case of the removal of a cause into such court by an alien ; and neither party removing the cause, shall be allowed to plead, nor give evidence of any other title than that by him stated as aforesaid, as the ground of his claim." Witli respect to tlie last description of cases, it will be observed, the jurisdiction is founded entirely upon the nature of the controversy, and the amount in dispute. It wUl, doubtless, also occur to the student that this is an ingeniously devised, if not indeed the only unexceptionable mode of giving effect to the consti- Obiginal Jueisdictioh op the 'Circuit Cotjets. 129 tutional grant of jurisdiction over "controversies chap « between citizens, of the same state, claiming lands under grants of different states." The right of removal from state courts has, by the Act of : act of March 2, 1833, been extended to another ftVcc description of cases, viz., those in which any officer ^%f, of the United States, or other person, is sued in a ^^^1% state court for or on account of any act done under ""°™ the revenue laws of the United States, or under color thereof, or for or on account of any right, author- ity or title, set up or claimed by such officer or other person, under any such law of the United States.' This enactment composes a part of the act before referred to in treating of the power of the national judges to grant the writ of habeas corpus, as having grown out of a course of proceeding on the part of a state, hostile to the government of the Union. The act accordingly proceeds,, in the section above men- tioned, and that immediately following, to provide with great minuteness against the consequences of a refusal by the state court to lend its aid for the removal of a cause or to surrender its jurisdiction. For the same reason the petition for removal ia these cases, verified by affidavit and a certificate from an attorney or counselor at law, is to be prosecuted, not to the state courts, but to the circuit court. In this description of cases the right of removal is conferred without regard to the amount in controversy or citi- zenship. The rebellion gave rise to a series of acts, extend- Acts of a n i J.1 3 • like nature ing this form of antidotal remedy to other descnp- ^™™»«»e tions of cases. rebelUon. The first of these enactments is contained in the fifth section of the act of March 3, 1863, ch. 81 (12 ' Ch. 57, § 3 : 4 Stat at Large, 632. 17. J30 Obigiital JuEieDioTioiir of the OiROiriT Coubts. PAETi. Stat, at Large, 75^), entitled "An act relating to Actlf" habeas corpus, and regulating judicial proceedings isesjmend- in Certain cases." It confers the right of removal in Mw'^iif ° criminal prosecutions, as well as in civil suits, for " ' arrests or other alleged torts, against officers or other persons acting under authority deriyed from the president or any act of congress. It gives to each party a right of removal by appeal and re-trial, aftev judgment, except a judgnient of acquitial in a criminal prosecution. But this act is virtually obsolete, and is noticed chiefly on account of its priority in the extension of the right of remoyal to criminal prosecutions and to cases after judgment. It also subjects an unsuccessful plaintiff to double costs, and gives a writ of error to the supreme court, whatever naay be the anjount of the judg- ment. Thig act was followed by others, in their nature permanent, conferring the right of removal upon other descriptions of persons, and comppLsing, like- wise, criminal prosecutions, as well as civil suits. Act of April The other acts here alluded to are : 1, "An act to ' ■ protect all persons in the United States in their civU rights, and. furnish the means of their vindication," passed April 9, 1866, ch. 31 (14 Stat, at Large, 37). Removal in It defines citizensMp and asserts equal rights in all tal^tht *°" citizens pf the United States. It inflicts penalties gtizen- for the invasion of such rights ; invests the district courts with jurisdictioii, exclusiye of the state courts,, of all offenses against the act, and concurrently with the circuit courts, of all cases civil an4 criminal, in behalf of persons otherwise remediless, for the pur- pose of vindicating such rights ; and gives a right of yemoyal in the manner prescribed by the act of 1863 above mentioned, of aU suits and prosecutions in a state court against the beneflciaries of the act, for any cause, ox agaiaat aay offiger, civil or military, OsieiKAL JuMgDldWOir 6F tHE Ol&CTTiT OOtTEfS. iSl or other person, for aAj arrest or other act done, in chap./. virtue or under color of the act, or of the act estab- lishing a bureau for the relief df freedmen and refugees, and the acts amendatory' thereof.' 3. "An act to reduce iQternal taxation and to Actofirn 18, 1866. amend an act entitled 'An act to provide internal revenue to support the goVerniiient, and to pay interest on the public debt, and for dther purposes,' approved June 30, 1864, and the acts amendatory thereof," passed July 13, 1866, ch. 184 (14 Stat, at Large, 98). By section 67 of this act, at page 171, snitsana ■ -■.■.,« . . -Lo proaecu- the right of removal is given in clvU Suits or crmimal tions for "^ ^ acts done prosecutions for acts done in execution of the internal ["^'J j.^; revenue laws. It directs the clerk of the circuit ™"«'*w' CertioBir court, when the suit in the state court has been com- aidhabei! ' corpus ct menced by summons to issue a writ of ceftiotafi to ■=*"'»• that court ; and if by a capias, a writ df habeas corpus cum causa, in virtue of which, if the defend- ant is in confinement on mesne process, the marshal is required td take him intd his custddy, td be dealt with by the circuit cdurt, accdrding td law and the exigencies df the case. The act cdUtains dther strin- gent provisions to insure the accomplishment df its design, and forbids the application of the provisions ^^o' of the above mentioned act of March 2, 1833, ch. 37, ?833, *.' ' ' ' inappU- to cases arising under the "act to provide internal =*"»• revenue to support the gdvernment, td pay interest dU the public debt, and for dther purpdseS," passed June 30, 1864, ch. 173, dr any dther amendatdry thereof dr in additidu thereto, and, by sectidn 68^ repeals the 50th section df that act. ' This act contains an unique and studiously qualified recognition of the " common law," adapted to provoke speculation as to its purpose and its effect. But, as it is limited to cases arising under the act, and as it may be reasonably hoped .that there will be few, if any, further violatioHs of it, it would be imfertineilt tc* indulge in Such SpeciU latiou. 133 Original JuEiSDicTiosr of the Oircttix Courts. PART 1. Act of July 27,1866, ch. 288. Snlts be- tween dti- zens of different states. Plaintiff entitled to removal. The lath section of judiciary act unaffect- ed by this act. Section 67 also extends the jurisdiction of the circuit courts to all suits brought therein by "any officer appointed under and by virtue of any act to provide internal revenue, or by any person acting under or by authority of such officer," to recover damages "for injury to his person or property, for or on account of any act by him done under any law of the United States, for the collection of taxes." 3. The next act, giving a right of removal, is that of July 27, 1866, ch. 288 (14 Stat, at Large, 306), as amended by the act of March 2, 1867, ch. 96 (14 Stat, at Large, 658). It provides that where a suit is brought in a state court, "in which there is con- troversy between a citizen of the state in which the suit is brought, and a citizen of another state, and the matter in dispute exceeds the sum of five hun- dred dollars, exclusive of costs, such citizen of another state, whether he be plaintiff or defendant, if he will file in the state court an affidavit, stating that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such state court, may, at any time before the final hearing or trial of the suit, file a petition," &c. The novelty introduced by these acts, in defining the right of removal, as compared with that conferred by the 12th section of the judiciary act, it will be seen, consists in extending the right to the plaintiff, in requiring an affidavit setting forth the specified reason for demanding a removal, and in allowing the application to be made at a later stage of the pro- ceedings in the state court. It seems unlikely that it was the purpose of congress to interfere with the right conferred upon the defeThdant in the state court by the 12th section, which may, therefore, it is pre- sumed, be regarded as still in full force. These acts, OrIGIITAL JuEISDICTIOH- op the ClECtriT COTJETS. 133 however, prescribe other modes for rendering them chap. g. effective and guarding the rights of the defendant. 4. By the act of February 5, 1867, ch. 27 (14 Stat, at Large, 885), when in a suit in a state court all the requisite steps have been taken for its removal under and by virtue of the provisions of the "act relating to habeas corpus, and regulating certain judicial proceedings in certain cas^s," of March 3, 1863, ch. 81 (12 Stat, at Large, 755), or by virtue of an act amendatory thereof, approved May 11, 1866, ch. 80 (14 Stat, at Large, 46), and the defendant therein is if aa in actual custody under process from the state court, prfso the clerk of the circuit court is required to issue a p""= writ of habeas corpus cum, causa, on which the mar- *'*°* shal is to take the defendant in charge, "to be dealt with in the said circuit court according to the rules of law and the orders of the said court, or of any judge thereof in vacation ; and he shall file a dupli- cate copy of the said writ of habeas corpus with the clerk of the state court," or deliver it to him, and "all attachments made, and all bail and other secu- rity given," shall continue in full force. 5. Lastly. By the act of July 27, 1868, ch. 255 (15 Stat, at Large, 227), it is enacted : " That any corporation, or any member thereof, other than High a banking corporation, organized under a law of the United tenai States, and against which a suit at law or in equity has been porat or may be commenced in any court other than a circuit or district court of the United States, for any liabihty or alleged liability of such corporation, or any member thereof as such member, may have such suit removed from the court in which it may be pending to the proper court of the United States, upon fiKng a petition therefor, verified by oath, either before or after issue joined, stating they have a defense arising under or by virtue of the constitution of the United States, or any treaty or law of the United States, and offering good and sufacient security, * * * * and 134 OkIGIKAL JtmiSDlOMOlf Off TffE CfBCltrtT OOtTRTS. PAHT 1. In what sense the circuit and district conrta are inferior courts. doing such other appropriate acts as are required to be done by the act," &c., Tiz., the act of July 2?,. 1866, ch. 288, above cited.*' Having pointed ottt the sources whence the original jurisdiction of the circuit courts is derived, I pro- pose in the next place, to bring under review certain GrEiTEBAL pEiiiTOiPLES affecting it in the aggregate, and, lastly, to treat summarily Of the several parts of which it consists. I. In denominating the courts to be Ordained and established by congress "inferior courts," the con- stitution is to be understood as speaking of them only in their relation to the supreme court as an appelate tribunal. But, in the technical sense of these terms, they are not inferior courts." In the language of Chief Justice Ellsworth, therefore, in' the first of the above cited cases, "their proceedings are not subject to the scrutiny of those narrow rules, which the caution or jealousy of the courts at West- minster, long applied to courts of that denomination; but are entitled to as liberal intendments or pre- sumptions, in favor of their regularity, as those of any supreme court." They, are, however, he adds, "of limited jurisdiction; and have cognizance not of cases generally, but only of a few specially cir- cumstanced, amounting to a small proportion of ' Some at the above mentioned acts came under review in the cases of Insurance Company v. BUeMe^ 5 WsfllaicB, 541 ; and City of PhUa^ ddphia v. Collector, Id., 720. ' Staley v. Th^ Bank of America, 4 Dallas, 11 ; Kemp's Lessee v. Kennedy, 5 Cranch, 185 ; Kennedy v. The Bank of Georgia, 8 Howard, 586, 611. One of the powers confided to congress by the eighth section of the first article of the conBtitutioB is, "to constitute tribunals inferior to the supreme court." IH this same sense, doubtless, it was that the word "inferior" was used in section one of article three, ordaining that the judicial power should be vested in "one supreme court, and in such inferior courts" as congress might establish. The true meaiuiig.i8j one supreme court and siuji olSu/r cotiirts inferior thereio, die. OEIGIKAJi JFBISDICTIOlir OF TEE OlBCUU COTTEXB. 135 the cases, which an Tinlimited JTirisdiction would chap. s. embrace. And the fair presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather), that a cause is without their jurisdic- tion till the contrary appears" The chief justice then proceeds to deduce the following corollary, which has ever since been rigorously adhered to, and has led, as the student will perceive in the sequel, to highly important practical results. "This renders it necessary," he observes, "inasmuch as the proceedings of no court can be deemed valid further than its jurisdiction appears, or can be presumed, to set forth upon the record of a circuit court the facts or circumstances which give ju/risdiction, either expressly, or in such manner as to render them certain by legal intend- ment." See, also, MWormicTc v. 8ullivam,t, 10 Wheat., 193. But though, when the jurisdiction of th^ court is not shown, the judgment is erroneous and liable to be reversed on error, yet it is not a nullity. Kennedy V. The Bank of Georgia, 8 Howard, 686, 611. 2. The same general fundamental principle which Jnrii has already been stated as applicable to the appel- «*' late branch of the jurisdiction of the supreme court, o°\^ is equally applicable to the ew.foVe jurisdiction of the and" circuit courts ; and is founded, indeed, upon sub- stantially the same reasons. It results in each case from the discretionary powers confided by the con- stitution to congress, over the subject. The principle is this : That the circuit courts pos- sess no powers except such as both the constitution and the acts of congress concur in conferring upon them. In other words, to enable them to act in any given case, it is not sufficient that such case falls within the scope of the judicial power of the United 136 OeIGIITAL JtTEISDICTION OF THE ClECTJIT OOUETS. EAST 1. States, as declared in the constitution, unless juris- diction over it has also been conferred by some act of congress ; nor, on tlie other hand, is it sufficient that the case is thus embraced within some legisla- tive act, unless it also appears that it belongs to one of the classes or descriptions of cases enumerated in the constitution. This important doctrine, though under one of its aspects particularly it has been strenuously con- tested, is now definitely settled upon the most stable basis. Thus though as we have seen, it is declared in unqualified terms by the judicial act that the circuit courts shall have original cognizance of all civil suits where an alien \s& party : yet, inasmuch as the con- stitution only provides that the judicial power of the United States shall extend to controversies between a state or the citizens tTiereof and the citizens or suhjects of foreign states, it is held that the juris- diction of these courts, founded upon the alienage of a party, is' limited by the constitution to the cases therein specified ; and that it does not extend to suits between aliens. Mossman v. Wigginson, 4 Dallas, 11 ; Hodgson v. BowerhanTc, 5 Cranch, 303. It may not be amiss here also to observe, that although these decisions were made in causes origi- nally instituted in the courts of the United States in virtue of the 11th section of the judicial act, they are equally applicable to causes removed from the state courts on the ground that the defendant is an alien, in virtue of the 12th section ; which, though in terms it authorizes the removal of a suit ''against an alien" must, nevertheless, in conformity with the constitution, be limited to suits in which a citizen is plaintiff. And so upon the other hand, though by the con- stitution the judicial power of the United States is Origikal Jurisdiction of the Circuit Courts. 137 declared to extend to all cases arising under the chap. s. laws of the United States, yet congress having omit- ted in the act incorporating the former Bank of the United States, expressly to enact that suits brought by it should be cognizable in the circuit courts, it was decided that they could not, in virtue of this provision of the constitution, exercise jurisdiction. Bank of the United States y. Deveaux, 5 Cranch, 61. So, also, in the case of IP Intyre v. Wood (7 Cranch, 504), it was held that the circuit courts have no authority to grant a mandamus to a ministerial officer of the United States to compel him to perform an official act enjoined upon him by the laws of the United States; because the authority conferred by congress upon these courts, to issue this writ, is not extended in terms beyond those cases in which it is necessary for the exercise of their acknowledged jurisdiction.' And, again, in the case of Livingston et al. v. Yan Ingen et al. (1 Paine, 45), (decided before the act of 15th February, 1819), it was held by Judge Living- ston that the circuit court had no jurisdiction in equity upon a bill to restrain the infringement of rights secured by letters patent ; because no such jurisdiction had then been conferred by congress. So, too, although the judicial power of the United States, as defined in the constitution, is extensive ' The same reason would forbid the issuisg of the writ of mwn- da/mus, except under the limitations mentioned, by the district courts. It has been seen that the power of the supreme court to issue this writ (though for a very different reason) is subject to the same restrictions : and it has also been decided that a state court cannot issue a mandamus to an officer of the United States. WGleary v. SUlmum, 6 Wheat., 598. It follows, therefore, that the ministerial officers of the United States, as such, are leyond the reach of this process, except in the District of Columbia, where the circuit court, from its peculiar organization and functions, is held to possess the power to issue this writ to officers of the United States where the act to be done is expressly enjoined by law. Kendall v. The United States, 12 Peters, 524. 18 138 Original Jurisdiction of the Circuit Courts. PARTI, enough to embrace many common-law offenses not enumerated in any act of congress, still it must now ,be considered as settled, ip. conformity with tlie decision of tlie supreme court in th,e case of TTie - United States v. Hudson & Goodtoin\7 Cianch, 33), that the ijation^l courts can tafcecpgnizance only of such as are expressly provided for by the statutes of the United States. A^d though, \)y the constitu- tion, the judicial power of the United States is declared to extend to all cases of admiralty and maritime jurisdiction, yet no other q^enses of this description are cogniz?ible ip their courts except such as are specified by law. Vifdted States v. Bemns, 3 Wheat., 336. See, also. United States v. Wittier - g'e/-, 5 Wheat., 76. In fact, congress, in legislating upon this subject, whUe they have, in a very few instances, inadver- tently transcended the limits imposed by the consti- tution, have intentionally permitted, a cpn§iderable portion of the judicial power placed, at their dispo- sal by the constitution, to lie dormant, by omitting . to call it into action by law. LawBofthe 3. The 34th section of the judiciary act (1 Stat, at ?SeIofdl-: Large, p. 92) directs that "the laws. of, the several states, except where, the constitution, treaties, or statutes of the United States shall otherwise require OT 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." In the case of Swift v. Tyson (16 Peters, 1); the just interpretation of this important enactment was brought under , the consideration of the supreme ; court on a writ of error to the circuit court of the , ^ United States for the Southern District of New York. "The action was assumpsit on a bill of exchange. • There was no statute of : the State of New York applicable to the questions before the cburt, and Oeiginal Jurisdiction op the Circuit Courts. 139 taey depended therefore upon the general principles chap. s. of law regulating negotiable ■ instrtiments, of wMcIi ~~ Mr. Justice Story said it might be truly declared, in the language of Cicero, adopted by Lord Mans- !FiELD-in Lu^e v. Lyinde (2 Burr. R., 883, 887), in relation to a question of maritime law, to be, in a great measure, not the law of a single country only, iJut of the commercial world. Non erit alia lex RoTTKB alia Athanis ; alia nuTpc, alia posthac ; sed et apud omnes gentes, et omni tempore, una eadem- que lex ohtinebit. The counsel for the defendant in error nevertheless insisted that, under the enact- ment above quoted, the case was to be governed by the laws of New York, and that the court was bound to look to the decisions of the judicial tribunals of that state as an authoritative expo- sition of those laws.' But the court, in answer to this argument, observed, that, in order to maintain it, it was essential to hold ihat the word "laws" in this section includes within the scope of its mean- ing the decisions of the local tribunals ; whereas, according to the ordinary' use of language, it could hardly be contended that the decisions of courts constitute laws. They are, at niost, only evidence of what the laws are, and not of themselves laws. 4. The laws of a state are most usually understood oniy i to mean the rules and enactments promulgated by laws, the legislative authority thereof, or long established ™»«9i . . local customs having the force of laws ; and in all tended, the various cases that had hitherto come before the court for decision, the court had unifomlly supposed that the true interpretation of the thirty-fourth sec- tion limited its application to state laws strictly local ; that is to say, to positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, Such as the rights and titles t(5 140 Obiginal Jubisdiotion op the Cibcuit Oouets. PAHT 1. real estate, and other matters immovable and intra- territorial in their nature and character. It never had been supposed by the court that the section did . apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon" to perform the like functions as this court : that is, to ascertain, upon general reasoning and legal- analogies, what is the true exposition- of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. The court, therefore, felt not the slightest difficulty in holding, that this section upon its true intendment and con- struction was limited to local statutes and local usages of the character before stated, and did not extend to contracts and other instruments of a com- mercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubt- edly the decisions of the local tribunals upon such subjects were entitled to and will receive the most deliberate attention and respect of this court ; but they could not furnish positive rules or conclusive authority by which its judgments are to be con- trolled. See, also, Ames v. Smith, 16 Peters, 303. . mil, pro- 5. In the case of Wyman v. Southard (10 Wheat., ^pucawe 1), this euactmeut was decided to be wholly inap- t?ceof the plicable to the practice of the national courts, and courtB. iT-ii, i. *! „ was held to be operative only as furnishing a rule to guide them in the formation of their judgments. ■ The words of the act being, that the laws of the state shall govern "m trials,'''' &c., this phrase is to be Origikal Jueisdiction of the Circuit Ooukts. 141 considered as implying litigation in conrt. These chap. s. laws, therefore, of themselves, were held to fnrnish no rale of proceeding for a ministerial officer of the conrt in the execution of its process. Supposing, for example, that after the service of an execution by the marshal, a question respecting the legality of his proceedings should be brought before the court by a regular suit against him : there would, it is true, then be a "trial at common law : " but stUl this would not be a case where the laws of- the state would apply : because, it was not to these laws that the officer was required to look for the regulation of his conduct. "It would," say the court, "be con- trary to all principle to admit that, in the trial of a suit, depending on the legality of an official act, any other, law should apply than that which had been previously prescribed for the government of the officer." The provision, it will be observed, is limited in terms to "trials at common law" and it has, accord- ingly, never been supposed to be applicable to suits in equity. 6. The judicial act, it will be recollected, forbids suits i the arrest of any person in one district for trial in thedfs another, in any civil action before a circuit or dis- fendar sideB < trict court ; and also, t?ie bringing of any civil suit found. before either of the said courts, against an inhab- itant of the United States by original process in any other district than that whereof he is an inhab- , itant, or in which he shall he found at the time . of serving the writ. Although this restriction does not, strictly speaking, aflfect the jurisdiction of the court, it is convenient to notice it in this place. The first clause, it will be seen, is applicable more particularly to suits at law, in which the first pro- cess authorizes the arrest of the defendant, while the 142 .Os'iaiN-At JUBISDICXIOBT OF THE ClPCFIX COIJETS. PABTl. Extent of the restric- tion. Maybe waived. second extends also to suits in equity, in which, th^ process is in the pature of a summons. Taken together, the provision merely imports that process for the institution of a suit, either at law or in equity, whether in the circuit or district courts, shall not run beyond the limits of the district for which the court, from whicli it issues, is held. This prohibition, as already intimated, has been adjudged not to amount to a denial of jurisdiction over causes otherwise in thenaselves cognizable in the national courts, hut only to a privilege given to the defendant ; of which, hqweyer, he must avail himself at the outset, or he will be held to have waived it. An appearance, therefore, by the defendant and answering generally without objectian, has always ibeen cpnsidered to be a waiver. Pollard.Y. DwigM, 4 Cranch, 421 ; Logan V. Patrick, 5 Cranch, 288 ; Grade v. Palmer, .8 Wheat., 699. So, also, an oppeaTance alone and omission to plead, or otherwise to insist upon this privilege until a . subsequent term, has beeji held to be a waiver of it. Flanders v. The Mtna Insur- ance Company,^ Msi&on, 158; Harrison et al. v. Rowan, Peters' s C, C. R., 489. In the case last cited, another point was also adjudicated. The case arose in the circuit court for the District of New Jersey, and was as follows : It was set down by the plaintijafs for hearing (in equity) upon a plea stating that the defendants are citizens and residents of Pennsylvania ; that they were served with subpoenas in that state, and not in the State of New Jersey. Against the plea it was e^dence of showu by the docJcct entrics, that, after service of the subpoenas, the defendants' appearance was entered by a solicitor of the court, and that, after sundry orders in the cause, ruling the defendants to answer, this plea was filed.' -The court was clearly, of opin- Docket entries not OrIGIKAL JUErSDICTIOX OP THi) OiECTTIT OotTETS. 1'43 ion that the previous appearance of the liefendaihts c Bn^.k . at a former term, by a solicitor, xinaccompanied b;^ any objection, wonld amount to a 'waiver, provided the court could take notice of the doctet as sufficient- proof of . the fact. This, it was however held, the court was not at liberty to do ; inasmuch as the appearance might have been without the authority of the defendants. The plea was therefore held suffl- . cient ; but the plaintiff was allowed to amend, so as to put the fact of authority to the solicitor to appear for the defendants at issue. But where this objection is seasonably urged, the if sea proceedings will be quashed. See the cases above tbe^' referred to ; and HollingswortJi v. Adams (2 Dallas, "^^ 396), Which was a foreign attachment, returnable in the circuit court for the Pennsylva,nia District, in which the defendant was described as a citisen of Delaware. Upon the return of the process, an affidavit was also produced in proof of that fact, and the proceeding was, on 'motion, quashed, with costs. 7. It is proper, however, here to observe, that there Excei is one description of cases, attended by circumstances tau^t so peculiar as to have been deemed sufficient to warrant a departure in practice from the strict letter of this enactment. Where a party, residing out of the jurisdiction of the court, has obtained a. judg- ment at law which is sought to be enjoined, by bill in equity filed by the defendant in the judgment, on the equity side of the court ; or, where a non-resident has instituted a suit in equity, and a cross bill is filed by the defendant iff such suit, the court, upon motion, will order that a service of the fiubpoena upon the attorney of solicitor of such non-resident . party, shall be sufficient. Hitner v. Suckley, 2 Wash. C. C. Eep., 466; EaTcerty. Bauert, 4 id., 2.10; Ward V. Sedbry, id., 426; Bead v. Qonsequa, id., 174, 144 Oeigikal Jueisdiction of the Ciecuit Oouets. PARTI. All process subject to the like limitation except when otherwise specially directed by law. Subpoenas. Bxecntions in favor of the Uaited States. 8. The legislative restriction in qnestion, and the foregoing adjudications with regard to its construc- tion, relate, it will be observed, exclusively to the first process in a suit, by which the defendant is called upon to appear and answer to the plaintiflf's demand. But, although I have met with no similar legislative provision with respect to other forms of process, it is well understood that no process what- ever issued from the circuit or district courts, can be legally executed without the limits of the judicial district in which it is issued, unless congress ex- pressly authorize it to be done. Hx parte QraTiam, 3 Wash. C. C. Rep., 456., Such too. has been the understanding of congress. A legislative provision was deemed necessary to give efficacy to the suh- pcena ad^ testifidanduTn, beyond the bounds of the district in which it was issued:' and by an act passed May 20, 1826 (4 Stat, at Large, 184), it is enacted that where a state is divided into two judi- cial districts, writs of execution from the district or circuit court for either district, may run and be executed, in any part of such state. So, too, it is enacted by the act of March 3, 1797 (1 Stat, at Large, 512, §6), "that all writs of execution upon any judgment obtained for the use of the United States, in any of the courts of the United States, m one state, may run and be executed in any other state, or in any of the territories of the United States, but shall be issued from, and made returnable to, the court where judgment was obtained, any law to the contrary notwithstanding." And, again, where a » By tKe 6tli section of the act of March 2, 1793 (vol. 2, p. 367), it is enacted, "that subpoenas for witnesses, who may he required to atteid a court of the United States, in any district thereof, may run into another district: Provided, That in dTM causes, the witnesses living out of the district in which the court is holden, do not live at a greater distance than one hundred miles from the place of holding the same." OeIGIKAL JuBISDICTIOir OF THB ClBCfTTIT COURTS. 145 defendant, having been sued, and having put in c hap, b. special bail in one district, and having afterwards Againa been arrested in another district, is surrendered by eostod; his bail in the former district, to the marshal of the latter district, it is expressly provided, by the act authorizing such surrender, that the execution upon the judgment obtained in the former district may be executed by the marshal of the latter. Act of March 2, 1799, 1 Stat, at Large, 727. And, by the act of May ,4, 1858, ch. 37 (11 Stat, at how,^^ Large, 272), in suits not local, "if there be two or ™e a^ more defendants residing in different districts in the l^^.^, same state, the plaintiff may sue in either district **'*"^ and issue a duplicate writ against the defendants, directed to the marshal of any other district within the state in which any of the defendants reside, on which duplicate writ the clerk, issuiag the same, shall iudorse^ that it is a true copy of a writ sued out of the court of the proper district, and such original and duplicate writs, so issued, when exe- cuted and returned into the office from which they issued, constitute one writ and be proceeded on accordingly, and upon any judgment rendered in a suit so brought, process of execution may be issued directed to the marshal of any district in the samp state." The act, it will be seen, comprehends all cases of joint liability, whether of contract or tort, cogniz- able in the national courts ; and this modification of the restriction imposed by the act of '89, so reason- able and unobjectionable, ought not to have been so long deferred. 9. The distinction between local and transitory ^.chom, actions has, from the outset, been recognized in the transitory, .courts of the United States, and actions, in their nature local, according to the laws of the state in which they arise, must be prosecuted only in the 19 146 ' Oeigikal Jueisdiction of the Ciecuit Cofets. PART 1. circuit court for the district in wMcli they originate. In the case of Limngston \. Jefferson (4 Hall's American Law Journal, 78), it was accordingly held that an action quare clausum f regit, for a trespass alleged to have been committed on lands in New Orleans, could not be maintained in the circuit court, for the district of Yirginia, although the plaintiflF T^as a citizen of Louisiana, and the defend- ant a citizen of Virginia. And, in accordance with this principle, where a suit in equity was instituted in the circuit court, for the district of Michigan, by a railroad company established in the state of Indiana, against a railroad, company established in the state of Michigan, to obtain redress and relief for alleged injuries to the road of the complainants, it was held to be a case not within the jurisdiction of the court, the injuries complained of being iritru- sions upon the real estate of the complainants, situ- ate in another district. Northern Indiana Railroad Co. V. MicMgan Central Railroad Co., 15 Howard, 233. When more This distinction is recognized also by the act of than one district in a May 4, 1858, just above cited, by which it is further 6L3it6, pro* • cess in local euacted, that, "in suits of a local nature, where the actions may be serve "" where d fendant wh^rie. defendant resides in a different district in the same r™id?s! state than the one in which the suit is brought, the plaintiff may have original and final process against such defendant, directed to the marshal of the dis- whenthe trict iu wMch he residcs." And, " that in all cases land is j? i n ^ ^ i . partly in 01 a local nature at law or m equity where the land one and ■'■ '^ another"dia- ^^ ^^^'^ subject matter of a fixed nature is partly in Ictfon^iLy o^® district and partly in another district, within the taeuhef." same state, the plaintiff may bring his action or suit in the circuit or district court of either district, and the court in which any such action or suit shall have been commenced, as aforesaid, shall have jurisdic- tion to hear and decide the same, and to cause Oeigin-al Jurisdiction of the Circuit Courts. 147 mesne or final process to be issued and executed as c hap, s. if tlie land or other subject matter were wholly within the district for which such court is consti- tuted." 10. The jurisdiction conferred on -the circuit courts The by the 11th section of the judiciary act, it will be ^^p"^' remembered, was by that section restricted to cases in which the amount in controversy, exclusive of costs, exceeded five hundred dollars, whoever might be the parties, and whatever might be subject mat- ter of the suit ; and, though, as we have also seen, this restriction has been abolished with respect to several kinds of suits, all others remain subject to it. It has been held, however, that the sum claimed in the plaintiff's declaration is to be deemed the amount in dispute ; so that, unless the suit be for a less sum certain, fixed by a contract, which the plaintiff is obUged to set forth, he- may always obtain a standing in court by laying his damages at the requisite sum. Gordon v. Longest, 10 Peters, 97. But, by the twentieth section of the judicial act, if he recovers less "he shall not be allowed, but, at the discretion of the court, may be adjudged to pay costs." 11. One of the restrictions upon this branch of the ^Js" jurisdiction of the circuit courts, the reader will |S?!n remember, is the denial of it, contained in the 11th °' *'" section of the judicial act, "in any suit to recover the contents of any promissory note, or other chose in action, in fator of an assignee, unless a suit might have teen prosecuted in such court to recover the said contents, if no assignment had teen made, except va. cases oi foreign tills of exchange.'''' With regard to promissory notes, it was held by Mr. Justice Stoey, in the case of Bullard v. Bell (1 Mason, 251), that this provision is inapplicable to 148 OEiGrirAL Jtjbisdiction of the Cibctjit Ooubxs. fARTi . notes payable to hearer^ upon tihe ground that the original promise is to pay any person who may hap- pen to be the bearer, and that, as the interest in such a note passes by mere manual delivery, the plaintiff cannot, therefore, be said to claim in virtue of an assignment It is true the particular case. before the court was a very strong one of this description, the jsuit being upon a bank note' payable to *' W. Pitt, or bearer." But there was no proof that W. Pitt was a fictitious person, and the decision proceeded avowedly upon the general grounds above men- tioned. In the case of the Bank of the United States V. Planters' Bank of Georgia (9 Wheat., 904), this question was, however, expressly waived. But, in the case of the Bank of Kentucky v. Wister et al. (2 Peters, 318), the question is treated as set- tled in conformity with the decision in Bullard v. BeU."" In the case of Young v. Bryun (6 Wheat., 146), it was also determined, that a suit may be brought in the circuit court by the indorsee, resi- dent in a different state, against the indorser of a note, whether the maker could be sued there or not^ because the indorsee does not claim through an assignment, but in virtue of a new contract between him and the indorser. But, when the suit is against a remote indorser, it must appear, in order to give jurisdicti^an, that the intermediate indorser, through whom the plaintiff's title is traced, could have sus- ' Prosecuted under a statute of New Hampshire, giving an action in certain cases against the >Btockholders. ' See, also, the case of A. & E. Bonnaffee v. W&liamis et al. (3 How- ard, 574), in which it was also held that the jurisdiction of the court was not affected by the circumstance that the note was made payable to the person therein named as payee or bearer, " to the use " of per- sons residing in the same state as the maker; nor will the case be altered by the joinder, in virtue of a state law, of the maker with the payee as indorsee in an action by the indorsee. Dromdale et a. v. TTie Fwrmers' and Merehanti^ Bank of Miaaissippi, 2 Howard, 241. Original Jtteisdiction of the Ciecuit Courts. 149 tained an action against the defendant. Turner v. chap. b. The Batik of North America, 4 Dallas, 8 ; Mollan et al. V. Torrance, 9 Wheat., 537; Coffee v. The Planters' Bank of Tennessee, 13 Howard, 183. In the case of Bean v. Smith et al. (2 Mason, 252), this restriction was held not to embrace the case of a Bxdt in equity brought by a judgment creditor against his debtor and others, they being citizens of different states, to set aside conveyances made in fraud of creditors, although the judgment waa founded upon a negotiable chose in action, on which a suit could not originally have been main- tained in the circuit court. And where a judgment rendered in a state court between citizens of different states had been assigned to a citizen of ■ the same state with the original plaintiff, it was held that the circuit court might entertain jurisdiction of a suit in, equity brought by such assignee, although the ground of the original suit in which the judgment was obtained, was a negotiable chose in action fall- ing within this restriction. Dexter v. Smith et al., 2 Mason, 303. In the case of Chappedelaine et al. v. Dechenaux Legatee and rep (4 Cranch, 306), the complainants, who were aliens, ^|"^^*y were, one of them, a residuary legatee, and the other p^^^' an administrator de bonis non, of a testator who ti^eact. could not have sued in the circuit court ; and this restriction seems to have been considered inapplica- ble to them, because (as was subsequently remarked by Ch. J. Marshall, in the case of Sere et al v. Bitot et al. (6 Crancl^ 332), "the representatives of a deceased person are not usually designated by the term 'assignees,' and are, therefore, not within the words of the act." In the case just cited of Sere et al v. Bitot et al., another point of considerable importance was set- tled, viz. : that this disability attaches to assignees 150 OEIGIlirAL JUKISDICTION OF THE ClECUIT OOTJBTS. PAETi. iy operation of law, as well as to those wlio become sucli by the voluntary act of the party. The complainants were aliens, and syndics, or assignees by law of an insolvent trading company composed of citizens of Orleans territory, and the defendants were also citizens of the same territory : and it was held, in accordance with the principles above stated, that the suit could not be maintained in the court of the United States for ths-t terri- tory.' This restriction does not apply to cases in which the Ba/Tik of the United States is a party. Bank of the United States y. Planters' Bank of Georgia, 9 Wheat., 904. Foreign 12. In the case of Picguet v. Swan (5 Mason, 35), attachment . • . ^ ^ ^ ^ not admiB- the important question arose, whether, m the states TOuxts*' where the proceeding, usually denominated a For- eign Attachment, was sanctioned by the local law, this form of proceeding could be lawfully resorted to in the courts of the United States. ' In the case of DeMer v. Bodge (16 Howard, 632), this enactment was held to be inapplicable to a suit by the assignee of a chose in action to recover possession of the thing in specie, or damages for its wrongful caption or detention ; that it applied only to the case of a suit brought to recover the contents of, or to enforce the contract contained in, the instrument assigned, and that it was, therefore, no impediment to an action of replevin by the assignee of a package of bank notes. See, also, Bmith et al v. Kemochen, 7 Howard, 198 ; Sheldon et al. v. SiU, 8 id., 441. Nor does the restriction apply to railroad bonds issued in blank. Thus, a bond issued by a railroad company to a citizen of Massachusetts, and coming into the hands of a citizen of Hew Hampshire, may be filled up by making it payable to himself or bearer, or order ; and a suit may be maintained upon it on his own name in the circuit court of the United States for the district of Massachusetts. Without the name of a payee the bond was inchoate and ineffectual. Established public usage in this country, gave the holder a right to give it validity in his hands by inserting his name. By the late decisions of the English courts, bonds delivered in blank are held absolutely void : but the reverse has been repeatedly decided or assumed by the state courts. White v. The Vermont & Mass. BaO/road Co., 21 Howard, 575. ORiaiNAL JUEISDICTION OF THE ClECUIT COXJKTS. 151 The decision was that it could not. The opinion chap, s. of the court, delivered by Mr. Justice Stoet, is elaborate, forcible and eminently instructive. This case was decided in 1828. It appears to be the first reported case in which the question on which it turned had been distinctly presented for adjudication in any court of the United States ; and it was not until the case of Tolland v. Sprague (11 Peters, 300), that this question was brought directly before the supreme court for adjudication. The decision (Chief Justice Taney and Mr. Justice Catbon doubting, and Mr. Justice Baldwin and Mr. Justice Wayne intimating dissent) was in ac- cordance with that of the circuit court of Massachu- setts in the case above cited, and the reasoning of Mr. Justice Stoey in that case was expressly adopted, enforced and justified.' Having completed our general survey of the field, comprehending the original jurisdiction of the cir- cuit courts, it remains to examine each of its divi- sions, t 1. Of eiml suits in which the United States are plaintiffs or petitioners. To enable the United States to maintain an action when t . IT United on a contract, it is not necessary that there should states i be an act of congress expressly authorizing such suit. A right of action results to them in common with individuals from the contract itself. Bungan v. The United States, 3 Wheat., 172, 181; Barker v. The United States, 1 Paine, 156. But to sustain an action in the name of the United States, it is in general necessary, especially if the ■' An abridgment of the train of reasoning that led to these decisions, sufficiently full to be intelligible and useful, would occupy more space than is compatible with the plan of this work, and is on that account reluctantly omitted. I beg leave, however, to recommend the cases themselves to the attentive study of the reader. 152 Obigistal Jtjeisdictiok of the Circuit Oottets. PARTI, contract be in writing, that it should have been entered into with the United States, eo nomine. The United States v. Parmelee, 1 Paine, 252 ; The United States V. Kennon, Peters' s C. C. Rep., 168. But in the case of Dungan v. The United States (3 Wheat., 172, above referred to), it was held, nevertheless, that such a suit might be maintained against the first indorser upon a biU of exchange which had been indorsed to the treasurer of the United States, acting under the direction of the secretary of the treasury, who was the agent of the commissioners of the sinking fund. See, also, to the same point, the case of Barker v. The United States, above referred to. The United No coutract, however, can be judicially enforced l^tbsSed. against the United States. If the other contracting party is dissatisfied with the course pursued towards him by the officers of the executive branch of the government, who are generally charged with the ful- fillment of contracts on the part of the United States, he can obtain redress only by petition to Congress. Cohens v. Virginia, 6 Wheat., 411, 412. Nor can this principle be evaded in a suit in which the United States are plaintiffs, by pleading an offset and obtaining the verdict of a jury finding a balance in favor of the defendant, although the 'laws of the state provide this form of redress between private parties. Beeside v. Walker, 11 Howard, 272. 2. Of suits in which an alien is a party. Nature and The privUege secured to aliens (which term com- the aiien'B prises all Unnaturalized foreigners, whether resident abroad or in the United States), of suing and being sued in these courts, consists merely in the right -of electing between the national and state tribunals ; and does not therefore supersede the disability, founded in general principles of law, of non-resident Original Jurisdiction of the Circuit Courts. 153 alien enemies to sue. Mumford v. Mumford, 1 Gal- c hap, s. lison, 366. It is sufficient if the real party be an alien, although the Twminal party be a citizen. Thus, in a suit insti- tuted under the laws of Virginia, in the names of certain justices of the peace of that state, against another citizen of the same state, upon his bond as executor to recover a debt due to a British subject, the jurisdiction was sustained. Brown v. Strode, 5 Cranch, 303. A trustee is not a nominal party ; and, therefore, an alien executor is competent to sue upon the ground of his alienage. Ohapdelaine et al. V. Dechneaux, 4 Cranch, 306. It has already been seen that the jurisdiction of the circuit courts does not extend to suits ietween aliens. 3. Of suits between a citizen of the state in which the suit is brought, and a citizen of another state. ^ The word ^^ state,'' ^ in the judicial act, is to be whai interpreted by reference to that term as used in the °****' constitijtion ; and means not merely a distinct politi- cal society, according to the definitions of writers on general law, but a member of the American confede- racy. It is not, therefore, applicable to the District of Columbia. Hepburn v. Elzey, 2 Cranch, 445. Nor to the Territories of the United States. Cor- poration of New Orleans v. Winter, 1 Wheat., 91. What is sufficient to constitute citizenship within whatcon- the meaning of the constitution and the judicial act, zenahip."' " is a question which, in its practical application, has , been attended with some difficulty. It arose in the case of Knox v. Oreenleaf (4 Dallas, 360) ; but as it would lead to unwarrantable.prolixity ■ See further, on this subject, part II, ch. 2, sec. 7, " Character of the Parties." 20 154 OeIGINAL JtrEISDIGTIO-lf OF THE ClEOUIT COXTBTS. P ABTi . to state the circumstances upon wMcli it depended, the student is merely referred to the case as reflect- ing some light upon the subject. In the case of Mabauld et al. v. If Wolf (1 Paine, • 580), Belknap, one of the plaintiffs, who was averred to be a citizen of the state of Massachusetts, was proved either to have been bom in Boston or to have removed there with his father, at aa early age, from New Hampshire, and to have resided there until he went to France, where he resided ten or tweilve years, and then returned to Boston. It further appeared that he was an unmarried man ; that he lived at lodgings in Boston, occupying rooms hired, as was understood for a year, and was there about two-thirds of his time. The rest of his time was occupied in attending to the business of the firm of which he was a partner, principally in New York, Philadelphia, and the other cities of the United States. All the witnesses considered his home to be in Boston. This evidence was held sufficient to establish the fq,ct pf citizenship as averred. In th^e case of Gartlett et al. v. T7i^ Pdcific Insu- rance Coinfany (1 Paiae, 594), this question was again agitated- Cartlett, one of the plaintiffs, was averred to be a citizen of Virginia ; and Mr. Justice TnoMPsoisr, in considering the question whether this averment had been sufficiently proved, expressed himself as fol- lows : "There is some difficuly in understanding, precisely, the sense in which the term citizen is used in reference to this question. A citizen of the United States is, to many purposes, a citizen of each state ;• and I am not aware that it has ever been held, that where there is a permanent change of residence by a citizen from one state to another, the party so remov- ing must acquire aU the rights and privileges of a citizen of the state to which he removes, acQprdmg Obi&ikal Jueisdiction of the Circuit Coubts* , 155 to til© state laws, before lie can come into tlie circuit chap. s. court of the United States. It lias been held, how- ever, that it is not enough for the party to aver that he is a resident or inhabitant of the state^. but there must be an averment in the language of the law and constitution,, that, he is a citizen. This presents some difficulty, then, as to the proof that will sustain such averment. But I am inclined to think it is sustained by proof of a permanent and fixed residence, under such circumstances that it may be said, that he has his domicile there. A mere temporary residence for temporary purposes might not be sufficient; "In the present case there is no question as to Keith, one of the plaintiffs. The objieetion only goes to Cartlett, the other plaintiff. And with respect to him, the proof is substantially, that he removed from Alexandria into Virginia, in December, 1824,.' avow- ing that one of the objects of his removal was to enable him to prosecute this suit in the courts of the United States, at the same time declaring that it was a permanent removal, never intending to returh again to reside in Alexandria — that he leased a house in Yirginia, and had lived there ever since his removal with his family. It has been said that his declaration, that one object he had in view by the removal, was to enable him to bring this suit, makes it a fraud upon the law. I do not think it can be regarded in this light. If he had avowed that his sole object was to place himself in a situation to bring this suit, with an intention of returning to his former residence when it was ended, it might have been considered a fraud upon the law. But if he deemed the privilege of bringing a suit in the courts of the United States of sufficient conseq^uence to justify a bona fide change of residence, he cannot be charged with a fraudulent evasion of the law, so as > The trial took' pW(^in October; 1^6. 166 Obiginal Jurisdiction of the Oikcuit Courts. PABTi. to make the act void. Whether it was a T}ona flde, ', or a mere colorable removal, is a ctuestion for the - jury, continnons At length, in the case of STielton v. Tiffin et al. (6 w»t Howard, 163, 184), the subject came under the cogni- SSf bn/i- zance of the supreme court. This suit was instituted S^^tf " in the circuit court for the eastern district of Louisi- ana, the complainants being citizens of the state of Missouri, and the defendant described as a citizen of the state of Louisiana. He, however, interposed a plea to the jurisdiction of the court in which he alleged that he was a citizen of Virginia. The facts, as they appeared in evidence, relative to his citizen- ship, were as foUows.: He and his wife, they having no children, became residents of Louisiana more than two years before the commencement of the suit ; they had, during this time, been absent from the state only once, a short time, on a visit to a watering place in Mississippi. During the greater part of the time they had resided on the plantation which was the subject of the controversy, cultivating and improving it by the labor of slaves, and had erected thereon a more comfortable dwelling-house. In the winter next succeeding his removal, the de- fendant observed toi a witness, that he considered himself a resident of Louisiana. There was no proof that he had voted at any election in that state, or served on a jury. At one time, subsequent to the commencement of the suit he refused to vote. Some of the witnesses had heard him speak of returning to Virginia, but whether to reside there permanently, or only on a visit, did not appear. The court adjudged him to be a citizen of Louisiana under the act of congress, and accordingly upheld the jurisdic- tion of the circuit court. Mr. Justice McLean, in delivering the opinion of the court, expressed him- self as follows: "When an individual has resided Original Jurisdiction of the Circuit Courts. 157 in a state for a coilsiderable time, being engaged in chap. s. tlie prosecTition of business, he may be presumed to be a citizen of such state, unless the contrary appear. And this presumption is strengthened where the individual lives on a plantation and cultivates it with a large force, as m the case of Shelton, claim- ing and improving the property as his own. On a change of domicile from one state to another, citizen- ship may depend upon the intention of the individual. But this intention may be shown more satisfactorily by acts than declarations. An exercise of the right of suffrage, accompanied by acts which show a_per- manent location, unexplained, may be sufficient." To vest this branch of jurisdiction it is not suffi- one oi cient, as will readUy be perceived, according to the mnst i 11th section of the judiciary act of 1789, that, in ^«^^ the language of the constitution, the adverse parties ^^^^ are citizens of different states. Congress, in provid- ing for its exercise, thought proper to restrict it to cases in which one of the parties (and it matters not which) is a citizen of the state in which the suit is brought, and to forbid the service of the process of arrest out of that state. It was also held that where there is a plurality of plaintiffs or of defend- ants, each one must possess the requisite character in this respect, to sue or be sued. Under this state of the law, the common law rule being that in an action on a joint contriact all the parties liable must be joined as defendants, and that all the defendants must be brought into court, the result was that the present residence, whether origi- nal or by removal, of any one of any number of joint contractors, beyond the limits of the state where the rest resided, was sufficient to defeat the jurisdiction of the national courts, unless the non- resident party should happen to be found in that state, or choose voluntarily' to appear in the suit. 158 OErGEKAL jTTErlSDICTIOif OP THE ClECUIT GOUKTa of judi- ciary act modifled. PARTI, Strawbridge et al. v. Curtis et al., 3 Crancliy 267; Ward V. Arredondo et al., Paine' s C. C. Rep., 410 ; Levy V. Fitzpatrick, 15 Peter's Rep., 167. This con* sequence being deemed inconsistent witli tile policy of tlie constitutional grant' of judicial power over controversies between citizens of different states, an iith section act was at length passed providing " That where, in any suit at law or in equity, commenced in any court of the United States, there shall be several defend- ants, any one or more of whom shall not be tahabit- ants of, or found within the district where the suit is brought, or shall not voluntarily appear thereto, it shaft be lawful for the court to entertain jurisdiction and proceed to the trial and adjudication of such suit, between the parties who may be properly before it ; but the judgment or decree rendered therein shall not conclude or prejudice other parties, not r^ularly served with process,, or not voluntarily appearing to answer \ and the non-joinder of parties who are not so inhabitants, or found within the district, shall constitute no matter of abatement or other objection to said suit.'" The language of this act speaks for itself. Since its passage a suit, may be effectively prosecuted against such of a larger number of persons jointly liable, as are inhabitants of, or found within the dis- trict where the suit is brought, notwithstanding the non-residence, or absence of the rest ; the plaintiff being at liberty either to include them in his process (to be in that: case returned non est inventus as to them), or to omit them altogether, and in either case, to proceed to judgment against those on whom the process has been served. A controversy arose early, and was continued witbi great earnestness, and with varying fortunes, through many years, touching, the. capacity of corporations 'Act of Feb. 28, 1839, oil. 37, § 1 : 5 Stat, at Large, 321. Corpora- tions aggregate, OBICHlSrAI, JtTBISDICTIOM- OF THE OiKCUIT OOTTETS. 159 aggregate to sue and be sued in tlie courts of tlie c hap. 6. United States. The .question was, wliether it was necessary to ascertain who where the persons com- posing these bodies, and to show that each one of them, individually, possessed the requisite character. It was so decided in The Hope Insurance Company V. Boardmian, and The Bank of the United States v. De^au (5 Cranch, 57, 61) ; and the decisions in these cases were followed (though, as we learn from a sub- sequent case, with great reluctance,) in The Oom- m,ercial BanTc of VieJcshurg v. Slocomh, 14 Peters, 60. The decision was that a corporation could not, in its corporate capacity, be a citizen, and could not, there- fore, litigate in the courts of the United States, except in consequence of the citizenship of the indi- vidual meinbers composing it. Each of the corpo- rators must be a person capable of suing where the corporation was plaintiff, and of being sued where it was defendant, and it appearing that some of them were citizens of the same state with the plaintiffs, it was held that the circuit court had not jurisdiction. But in the case of The Louisville, Cincinnati, Maysn ' and be and Charleston Railroad Co. v. Lettson (2 Howard, »j »^^' 497), the supreme court saw fit to subject this doc- <='«»''" trine to a severe and searching re-examination ; and, upon mature deliberation, declared its unanimous dissent from the narrow and inconvenient rule laid down in the antecedent cases, and holding " that a corporation created by and doing business in a par- ticular state, is to be deemed, to all intents aiM purposes, as a person, although an artificial person, capable of being treated as a citizen of that state as well as a natural person;" and that as such, it may, in strict conformity with the language of the constitution and of the 11th section of judiciary act, sue and be sued by a citizen of another state, with- out regard to the citizenship of the persons of whom 160 Obigikal Jukisdiction of the Cibcttit Courts. f ABTi . it is composed. It matters not, therefore, in a suit against a corporation, if some, of the corporators are citizens of tlie same state with the plaintiff, provided he is a citizen of another state than that in which the corporation is established, and where the suit must be prosecuted. The doctrine of this case is firmly established. It was fully discussed, re-examined and affirmed in Marshall v. The Baltimore and Ohio Rail/rood Co. (16 Howard, 314), and applied in The Lafayette Insurance Co. v. French (18 Howard, 404) ; in The Covington Drawbridge Co. v. Shepherd (20 Howard, 225) ; and in The Ohio and Mississippi Railroad Co.Y. Wheeler (1 Black, 286). In the last two cases the chief justice, in pronouncing the. judgment of the court, reviewed the antecedent cases, and reas- serted the rule laid down in LettsorHs case ; as he also did the decision of the court in the prior case of The Bank of Augusta v. Earl (13 Peters, 512), in which it was held that a corporate body can have no existence beyond the limits of the state or sovereignty which indues it with its faculties and powers. It must dwell in the place of its creation. The result then is, that the legal entity brought into being as a corporation aggregate by any state of the Union, is placed, under the 11th section of the judiciary act, upon the same footing, both as plaintiff and defendant, as an individual citizen of that state.' The individuality of its members is, pro tanto, merged in their collective corporate character. They are to be presumed to inhabit the state to which 'This is true, without qualification, with respect to suits brought hy a corporation ; but it will be seen that a suit against a, corporation can be instituted only in the district comprising (wholly or in part) the state where, by law, it has its domicU ; while an individual may be sued either in the state of which he is an inhabitant, in that of whiob the plaintiff is a citizen, if casually " found " there. A corporation can be founA only at its hom«. ORIGIlTAt JUEISDIOTIOK OF THE OlRCTJIT COURTS. 161 they owe their corporate existence, and no allegation c hap, s. to the contrary will be admitted. In one of the above cited cases, The OMo and Mississippi Railroad Oo. v. Wheeler, in which the •corporation was plaintiff, in the circuit court, the jurisdiction of that court was denied by the supreme court. The action was brought in the State of Indiana, to recover the amount of the defendant's subscription to the capital stock of the company. The plaintiffs alleged themselves to be a body corpo- rate, created by the laws of the States of Indiana and Ohio, having their principal place of business in Cincinnati, in the latter state, and that the cor- poration was a citizen of that State, and the defend- ant a citizen of the State of Indiana. The decision of the court was, that the suit was to be regarded and treated as a suit in which the citizens of Ohio and Indiana are joined in an action against a citizen of the latter state, and, consequently, that such an action, the jurisdiction depending altogether on the character of the parties, could not be maintained in a court of the United States.' 'As to the proper modes of describing a corporate body in pleading see part 3, ch. 3, sec. 7, " Character of the Parties." In the case of TTie ZowiamUe, Ginainnati and Chwrleston BaMroad Co. V. Lettaon, which, as we have seen, was the first of the series of cases ascribing to corporate bodies the attributes of citizenship, the suit was instituted againstthe corporation in the circuit court for the district of South Carolina, to recover damages for the alleged non-fulfillment of a contract relating to the construction of the defendant's road, entered into by them in their corporate capacity, with the plaintiff, who was a citizen of the State of New York ; and among the stockholders of the company were two other corporate bodies, some of the members of which were also citizens of New York. The court desired to be con- sidered as founding its decision upon the ground above mentioned ; but at the same time declared its opinion to be, that jurisdiction of the case might also be maintained in virtue of the act of February 38, 1839, ch. 37. This act is not referred to as a ground of jurisdiction in any of the subsequent cases, and I cannot well understand its applicability in a 21 162 OeIGIN"AL JtTEISDICTIOK OF THE ClHCtJIT CotTETS. PAET 1. This re- striction cannot be evaded by colorable ment. Jurisdiction cannot be created by an assignment of the property, wMoli is the subject matter of the suit, merely colorable, and made for that purpose, by one not competent to sue in the circuit court, to one having the requisite character. Thus in an action of ejectment brought by a citizen of Maryland against a citizen of Pennsylvania, in which it appeared from the ansvrer of the defendant to a bill of discovery filed against him on the equity side of the same court by the defendant, that the only title he pos- sessed to the premises in question was derived through a conveyance from a citizen of Pennsyl- vania, made vidthout consideration, for the purpose of enabling his grantor to litigate in the circuit court, the cause was for that reason struck off the calendar suit against a corporation. This is not a case in which some of " the parties" are "properly before" the court, and others not. The process having been served on the official representation of the corporation, if , valid as to any of the corporators as natura,l persons, must be equally so as a service on all; and the same is true of the appearance of the corporation in court. And a judgment rendered against it must be equally binding and operative against all its members, so thatno effect could be given to the saving clause of the statute, providing that the judgment "shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer." But there is another question of considerable importance, to which the act of '39 may fairly give rise, and which, to my knowledge has not yet been definitively settled. It is whether, when some of several persons jointly liable in their individual capacity, are citizens of a state other than that of which the adverse party is a citizen, an action against them may not be maintained, notwithstanding others of the persons so liable are citizens of the latter state. In the previous case of The Commercial Bank of Vkkshi/rg v. Slocomb (14 Peters, 60), this act was invoked by the plaintiff against a corporation, and the court held it inapplicable, adhering to the general rule established before the passage of the act, that each of the several plaintiffs must be capable of suing, and each of the persons who ought to be joined as defend- ants must be capable of being sued. But this is one of the cases over- ruled by The Louisville, Cincinnati and Chon-leston Railroad Co. v. Lettson, in which, as above observed, the opinion was expressed by the court, that the act was applicable to corporations. I have already intimated my dissent from this opinion, but for reasons inapplicable to Oeigikal Jtjeisdictiou- of the Circuit Courts. 163 upon motion. Maxfield^s Lessee v. Levy, 2 Dallas; chap, s. 381 ; ^. C, 4 Dallas, 330. But a conveyance by a trustee not competent to sue, to the cestui que trust, who is competent, is not colorable witMn tMs rule. Browne's Lessee v. AurhucTcle, 4 Dallas, 338; note (2). As in suits in wHch. an alien is a party, so in those J* ^gp^^'l between citizens of different states, it is the charac- p»'^'«»- ter of the real and not that of the nominal parties which determines the question of jurisdiction. But f^|''^^° executors and administrators are considered as real i!?t^l' parties, and the courts of the United States have jurisdiction by or against them, if they are citizens of different states, although their testators or intes- tates were not thus entitled to sue, or liable to be suits against individuals ; and I can discern no reason for excluding such, suits from the operation of .the statute, although a part of the persons to -whom the joint liability attaches may be citizens of the same state as the plaintiff. Such a case seems to be clearly embraced by the policy of the act, and to be fully warranted by its terms. Its language is general, and is as much descriptive of a case in which some or one of the defendants is a citizen of the same state as the plaintiff when the siut is brought in another state, as it is of the apposite case ; and it may be added also that the policy of the act appears to extend alike to both. It is true, congress has not power to confer a general jurisdiction on the national courts of controversies between citizens of the same state ; and the question, therefore, is, whether the jurisdiction in question can properly be said to be of this character. If a citizen of Pennsylvania, having a right of action against several persons jointly, a part of whom are residents of that state, and the rest of the state of Alabama, should institute a suit in the circuit court of the United States in the latter state against those resident therein, could the court, in entertaining jurisdiction of the case and rendering a judgment therein which could not conclude or prejudice those resident in Penn- sylvania, be properly said to take cognizance of a suit between the plaintiff and his Pennsylvania debtors? If not, I perceive no reason why the act should not receive an interpretation which would sanction such a suit. To adopt it is but to decide that the act allows a citizen of one state in the American Union to institute a suit in the circuit court of the United States in any other state, against such of his joint debtors as reside or may be found there, without any regard to the citizenship of the others. 164 Original Jueisdiotion of the Cieotjit Cottkxs. rARTi . sued, in these courts. CMld/ress, ea^r, &c., v. Emory et al., ea^rs, &o., 8 Wheat., 642. The legal But ttt suits at law, the legal interest alone is to be KeltV* regarded. Irvine v Lowry, 14 Peters, 293 ; Colson v. Lewis, 2 Wheat., 377. jorisdic- The jurisdiction of the circuit courts being once be'diveBtod vested between citizens of different states, cannot be of reel- divested by a change of domicU of one of the par- ties, and his removal into the same state with the adverse party, pendente lite. Morgan) s Heirs v. Morgan et al., 2 Wheat., 290. And a bUl for an injunction to stay execution on a judgment at law, may be entertained, although the adverse parties to the judgment have, subsequent to the judgment, become citizens of the same state. Dunn et al. v. Qlarhe et at.., 8 Peters, 1. 4. Of suits '■'■arising under'''' the Patent and Qopy- right Acts. What con- To coustitute a suit of this description, of which a rafder'the'^ circuit court may take cognizance, without regard to copyright ^'^ citizeusMp of the parties, or the amount in con- '*^°- troversy,-it must arise strictly under the patent or copyright laws. It is not sufficient that it relates to rights acquired under them ; the rights of the parties in contest must depend on them. And therefore a bm in equity for the specific performance of a con- tract for the use of privileges secured by letters patent, was held not to be a suit arising under the patent laws.' And so of a bUl in equity to annul a conditional assignment of a patent right, on the ground that the assignee had faUed to comply with the terms of the assignment.' Unquestionably the same principle is applicable to contracts respecting copyrights. ^ Brown v. Shannon, 9 Howard, 9. ^WUrni V. Somdford et aZ., 10 id., 99. OBiaiKAL JUEISDIOTION OF THE CIRCUIT COURTS. ' 165 In Stephens v. Cady (14 Howard, 539), it waa de- chap. s. cided that the purcliaser at a sale under execution, mrcha of a copperplate engraving of a map, the copyright piat. a' whereof had been secured, acquired no right to use eaie co the plate for the purpose of making maps. Copy- »seif. right is an incorporeal property, not subject to sale on execution. An engraved map plate is but an instrument for the exercise of this right, and stands in the same relation to it as the implements employed* by a patentee ia the construction of the machine patented do to the right secured by the patent. Besides, tie copyright act of February 3, 1831, ch. 16, § 7 (4 Stat, at Large, p. 436), forbids, under severe penalties, the copying of any map, &c., the copyright whereof has been secured, without the consent of the proprietor, in writing, signed in the presence of two witnesses. Doubtless this incor- poreal right, like a share of a debtor in a joint stock company, may be reached by a creditor's bill ; but even when this mode of transfer is resorted to, it may weU be doubted, said Mr. Justice Nelson, in pro- nouncing the decision of the court, whether it would not be necessary for the court to direct a conveyance to the purchaser in the mode prescribed by the statute. It was held, also, that the proprietor of the copy- right could not be required, as a condition on which the purchaser of the plate should be enjoined from using it, to refund the purchase money.' ' There ia one other reported case deciding a point, it is true, about which it seems strange that any doubt should have been entertained, but to which, nevertheless, I deem it proper to advert, partly as an act of justice to the district judge of the northern district of New York, before whom, sitting alone in the circuit court, the cause was tried. The only point decided by the supreme court, of the nine points pre- sented by the bill of exceptions, is that the penalty of fifty cents imposed by the sixth section of the a«t on the unauthorized publisher of a book, " for every sheet / When the damages are laid by the plaintiff at more than five hundred dollars, this satisfies the words of the act "to be made to appear to the satisfaction of the court," &c,, and is conclusive upon the state court, with respect to the sufficiency of the amount in dispute. Id. When the state court, after improperly refusing to allow the petition for removal, proceeds to render a judgment against the defendant, and the judgment is affirmed on writ of error to the highest court of the state, the .defendant may prosecute a writ of error to the supreme court of the United States in virtue of the 25th section of the judiciary act, and- sheets not found in his possession. Of course it does not ; nor did the judge decide otherwise. No such point was raised or suggested. The amount for which, if for any thing, the verdict was to be rendered, was a mere matter of computation between the counsel, acquiesced in by bpth parties, and announced to the court. There were six questions raised, and no more, as conclusively appears by the full minutes of the trial, carefully made by the judge, and the one on which the case turned in supreme court is not one of them. How, without the know- ledge of the judge, it found its way into the bill of exceptions, it is unnecessary to trouble the reader by explaining. Backus v. QovM & Banks, 7 Howard, 798. OeIGIKAL JuEISDICTIOif OF THE OlBCUIT COURTS. 167 the judgment of affirmance will be reversed, and the c hap, s. cause remanded to the state court with instructions that it shall be transmitted to the court in which it originated, with directions to allow the petition of the defendant for the removal of the cause to the circuit court. Id. In the subsequent case Kanouse v. Martin (15 Howard, 198), these principles were reasserted. The suit was instituted in the court of common pleas for the city and county of New York, the plaintiff being a citizen of the state of New York, and the defend- ant of New Jersey. The sum originally claimed in the declaration, as damages, was one thousand dol- lars ; but after the defendant had presented his peti- tion for the removal of the cause, the plaintiff was allowed to reduce his claim to the sum of four hun- dred and ninety-nine dollars. The petition was then denied, and the plaintiff recovered a judgment. On a writ of error to the superior court of the city of New York, the highest court possessing appellate power in the case, the judgment was affirmed, the court refusing to entertain the question of the de- fendant's right of removal, because the objection did not appear upon the record ; no plea to the jurisdic- tion of the inferior court having been interposed therein. But this decision was held by the supreme court to be erroneous. The denial of the defendant' s petition was an infringement of a right conferred by the act of congress, and entitled him to a writ of error and the reversal of any judgment the court might render in that suit against him. To require him to plead was inconsistent with this right, and with the obligation imposed on the court by the act of congress, to "proceed no further in the cause." For these reasons also it was erroneous in the court of common pleas to allow the declaration to be amended by the reduction of the damages claimed. 168 Obigihtal Jueisdiction op the Circuit Cottets. PARTI. Snit on re- cognizance for good behavior not re- morable. A bill for an injunc- tion to re- strain another state conrt not within the act. Rule as to character of parties , the same as in original suits. At a previous term of the supreme court a motion had been made in behalf of the defendant in error to dismiss the cause for the want of jurisdiction ; but the court held the case to be clearly one of those enumerated in the 25th section of the judiciary act of 1789. The plaintiff in error claimed the right under the 12th section of this act, to remove the cause from the state court to the circuit court of the United States. The right claimed was denied. The construction of an act of congress was therefore drawn in question, and the decision of the court was against the right claimed under it. In the case of The State of Pennsylvania v. Cob- hett (3 Dallas, 467), it was held by the supreme court of that state, that an action of debt upon a recog- nizance for good behavior, against an alien, was not removable by the defendant to the circuit court of the United States ; it being in the nature of a crimi- nal proceeding, and therefore not such a case as was contemplated in the judicial act. It having been held {Diggs & KeitTi v. Wolcott, 4 Cranch's E., 179), that a court of the United States has no power to enjoin proceedings in a state court ; it therefore follows, that a bill in equity filed in a state court (though against an alien, or a citizen of another state), for the purpose of obtaining an injunction to restrain proceedings in another state court, is not such a suit as is removable to the cir- cuit court of the United States. And so it was held by the court of chancery of New York. 1 Paige's Chan. Rep., 183. The rule relative to suits originally instituted in the courts of the United States, that where the juris- diction depends upon the character of the parties, all the individuals composing the respective parties, plaintiff and defendant, must possess the requisite character, was held applicable also to suits removed ObIGINAL JtrEISDICTION OF THE OiKCUIT OOUETS. 169 from the state courts. Accordingly, where the chap, s. plaintiffs were citizens of the state in which the suit was brought, and one of the three defendants was also a citizen of the same state, it was held that the suit could not be removed, although the other two defendants were aliens. Ward v. Arredondo et al., 1 Paine, 410. Indeed it is perfectly obvious that no suit can be removed to the national courts, which might not by the constitution of the United States have been origi- nally commenced in one of these courts. It is true, as we have seen, that congress in defining the origi- nal jurisdiction of the inferior courts of the United States have not seen fit to cover the whole ground embraced by the constitution. . But it is evident from the language of the twelfth section of the judicial act, that it was not intended by it to extend the jurisdiction of these courts over causes brought be- fore them on removal, beyond the limits prescribed to their original jurisdiction ; and such, as far as it goes, is the judicial constructiou which has been given to this section. It may, therefore, be safely assumed, that all the decisions affecting the original jurisdiction of the circuit courts in the classes of cases which may be removed are equally applicable to them as the sub- jects of removal. In the case of Spraggins v. TTie County Court of ^»pMj-j^ Hwmphries (1 Cooke, 160), it was held that a state f^if^by court improperly refusing to permit the removal of a S2"nfo?^d cause to the circuit court of the United States may Sj.^"^ be compelled to allow such removal, by mandamus, ff om the circuit court to which the removal is sought ; and in the case of Brown v. Cupin & Wise (4 Hen. and Munf., 173), it was held that a mandamus, under the like circumstances, and for the like purpose, 22 170 Obiginal Jubisdiotiojj of the Cibouit O0UE13. PAST a. The peti- tion for remoTal mnst be filed at the time pre- scribed b; tlie act. A snit im- properly removed should be remanded by the cir- cuit court. Jmiadie- tion not di- vested by redaction of damages claimed. would lie from a superior to an inferior court of the state. The act, it will be recollected, authorizes a removal upon the filing of a petition by the defendants, at the time of entering Ms appearance in the state court ; and in the case of Oibson v. Johnson (Peters' s G. C. R., 44), in which the defendant had suffered two terms to intervene between the time of entering his appearance in the state court and the filing of his petition for removal, the circuit court remanded the cause for that reason, although the petition was granted by the state court nunc pro tunc as of the term of the d.efendant's appearance. When a cause is improperly removed, it is the duty of the circuit court to remand it to the state court in which it was instituted ; and if the circuit court should entertain jurisdiction of a cause thus improp- erly brought before it, and the cause should subse- quently be carried by writ of error to the supreme court, the latter court would be bound still to remand it. Pollard et al. v. DwigM, 4 Cranch, 429. In the case of Wright v. Wells (Peters' s G. C. R., 220), the cause was removed before a declaration was filed in the state court. Upon the defendant's ap- pearance in the circuit court, the plaintiff filed his declaration, and laid his damages at one thousand dollars. Afterwards, bya release of part of the debt, he reduced the sum in controversy to less than five hundred doUars : whereupon it was moved to remand the cause to the state court for want of jurisdiction : but the motion was denied, upon the ground that jurisdiction having once vested, it was not competent for the plaintiff by his own act to oust it. The foregoing decisions, it will be perceived, relate to the first description of causes mentioned in the section above referred to, viz. : those against an aUen or a citizen of another state. ObIGIKAL JUHISDICTIOir OF THE OntCTIIX OOTTETS. 171 Aa it regards the other description of causes, the char a. removal of which is provided for by this section, viz. : Grant ft those in which the parties claim title to land under fore* ana grants from dififerent states, it has been held, where state aft( division. one party claimed under a grant from a state before its division, and the other under a grant from a new state subsequently formed from a portion of the territory, that these were grants from different states within the meaning of the constitution and judicial act. Town of Pawlet v. Clark et al., 9 Cranoh, 292. So, also, where both parties obtained inchoate titles There m 111* A. p1fl,ii from the same state before its separation into two Jfj,*''^^ states, and after such separation severally received e""'*- conflicting grants from the two new states ; the con- stitution and laws looking to the grants as the test of jurisdiction, and not to any equitable title pre- viously acquired. Oolson v. Lewis, 2 Wheat., 377. 6. Of the Jurisdiction, conferred on the circuit courts by the act to incorporate the Bank of the United States.^ The validity of that provision contained in the charter CODStltll* charter of The Bank of the United States, granted ti™»/jfj in 1816, which confers on the bank an unlimited J'^^p^ right to sue in the circuit courts of the United f^^fi'^, States, has been questioned on two grounds : 1. That congress had no power, by the constitution, to incor- porate a national bank; and 2. That, admitting this power, congress could not, constitutionally, empower the circuit courts to take cognizance of suits between citizens of the same state. But in the case of WCulloch v. The State of Ma/ryland (4 Wheat., 316), after elaborate argument and full con- 'TbiB subject may strike tbe reader as obsolete. But the profound discussions to wHcb it gave rise, and tbe comprehensive scope and importance of tbe principles to tbe establishment of which it led, give tolt an enduring interest. cuit coui 172 Original Jueisdictiok of the Oiecttit Couhts. PASTi . sideration, the court, tlrrongh Chief Justice Mae- shall, pronounced its unanimous decision in favor of the constitutionality of the bank. And in the subsequent case of Osborn et al. v. The Bank of the United States (9 Wheat., 738), in which, on account of the great importance of the question, the same question, at the request of the court, was re-argued, this decision was, with like unanimity, re-affirmed. In this latter case it was also further decided that, inasmuch as the bank owed its existence to an act of congress, and could sue and be sued only in virtue of this act, suits to which the bank was a party must be considered as cases arising (in the language of the constitution) under a law of the United States, and, as such, might constitutionally be made cognizable in the circuit courts, without regard to the citizenship of the parties. In the case of The Bank of the United States v. The Planters' Bank of Georgia (9 Wheat., 904), the suit was founded on negotiable promissory notes, made payable to a citizen of Greorgia, and- which had been transferred to the plaintiffs. The Planter's bank interposed a plea to the juris- diction of the circuit court, alleging that the said bank was a corporation, of which the state of Georgia and certain individuals, who are citizens of the same state, with some of the plaintiffs, are members; and, further, that the persons to whom the notes in question were made payable were citi- zens of the state of Georgia, and, therefore, inca- pable of suing the said bank in a circuit court of the United States — and being so incapable, could not, by transferring the notes to the plaintiffs, enable them to sue in that court. To this plea the Bank of the United States interposed a demurrer, and upon this issue the case came before the supreme court, on a certificate of division of opinion between the Original Jueisbiction of the Ciecuit Courts. 173 judges of tlie circuit coiirt, for the district of c hap, s. Georgia. In support of the plea it was insisted that inas- much as the state of Georgia was a stockholder in the Planters' bank, and so one of the corporators, the suit must be considered as one against that state, and was therefore prohibited by the 11th amendment to the constitution, by which it is de- clared that "the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, or by citizens or subjects of any foreign state," or, that, if such a suit could be main- tained at all, it was maintainable only in the supreme court. The decision of the court was against the validity of this objection. The state does not, it was said, by becoming a corporator, identify itself with the corporation. The Planters' bank is not the state of Georgia, although the state holds an interest in It. It was considered a sound principle, that when a government becomes a partner in any trading com- pany, it divests itself, so far as concerns the transac- tions of that company, of its sovereign character, and takes that of a private citizen. Instead of com- municating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted. The state of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily stripped itself of its sovereign character, so far as respected the transactions of the bank, and waived all the privileges of that character. It was, however, further contended in support of the above plea to the jurisdiction of the court, that the case fell within the limitation contained in the 11th section of the judiciary act, which is in these 174 Original JuEiSDrcTios' of the CrBcrriT Courts. PARTI, words : "nor shall any district or circuit court hare cognizance of any suit, to recover the content^ of any promissory note, or other chose in action, in favdr of an assignee, unless the suit might have been prosecuted in such court, to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange." But this objection was also overruled. The above cited provision of the judiciary act was held to be a limitation on the jurisdiction conferred by that act. The bank did not sue in virtue of any right conferred by the judiciary act, but in virtue of a right conferred by its charter. It was authorized to sue, not because the defendant was a citizen of a different state from any of its members, but because its charter conferred upon it the right of suing its debtors in a circuit court of the United States. 7. Of the jurisdiction conferred Jyy the act author- ing Banking Associations. The above-named act declares "that suits, actions and proceedings by and against any association under this act, may be had in any circuit, district or territorial court of the United States, held within the district in which such association may be estab- lished.'" 8. Of the power to issue particular writs, and other special powers. The only writs of this description which the cir- cuit courts are specially authorized by the judicial act to issue, it wUl be recollected, are tiiose of 'Act of February 25, 1863 (ch. 58, § 59: 13 Stat, at Large, p. 681). And the aot of March 3, 1863 (oh. 67, § 4: 13 Stat, at Large, p. 698), gives to the circuit and district courts jurisdiction of all suits for the recovery of fines and forfeitures incurred under that act. The act denounces 'forfeitures and penalties for frauds committed by persons in the military and naval service of the United States. OBIGINAL JuEISDICTION OS THE OlECUIT OOTJETS. 175 scire facias, habeas corpus, dedimus potestatem. c hap, b. Respecting the first and last named, there are no judicial decisions requiring notice under this head. The authority of the courts and judges of the United States to grant the writ of habeas corpus ad subjiciendum, has already been considered in treat- ing of the jurisdiction of the supreme court. Writ of Mandamus. \ This is one of those writs " not specially provided for by statute," but which the circuit courts are authorized to issue only when "necessary for the exercise of their jurisdiction." Of course it can be issued in no other cases. M^Intire v. Wood, 7 Cranch, 504.' But it will lie, for example, to a district court, which refuses to pro- ceed to judgment, in a case subject to the appellate jurisdiction of the circuit court to which the appli- cation is made ; but not to compel it to expunge amendments improperly made, m a record returned to the circuit court, on error. Smith v. JacJcson, 1 Paine, 453. Writ of Injunction.] The authority of the circuit court to grant injunctions, except in patent and copy- right cases, where, 9.3 we have seen, the power is specially conferred, is founded in the same general grant of power. There are many judicial decisions regulating its exercise, which will be noticed hereafter. It will be sufficient in this place to cite the following, which are all that I have met with that involve the ques- tion of juri.sdiction. An ini unction may be issued from the equity side Maybe . *' . ^ -,. . ■, ioBued after of a Circuit court, to stay proceedings upon a juag- removal by ment at law in the same court, notvTithstanding the «"<»• removal of the record by writ of error to the supreme * Except in the District of Columbia, as already stated and explained. 176 Oeiginal Jiteisdictiok of the Oiecuit Oottbts. PART 1. To restrain a state offi- cer. Not to a Btate court. Power of judges to Issue. court. Parker v. The Judges of the Circuit Court of Maryland, 12 Wheat., 561. It may also be issued to restrain the performance of an ofllcial act by an officer of a state, if a state law reqiiiring bim to perform sucb an act is repug- nant to the constitution of the United States. Osborne et al. v. The Bank of the United States, 9 Wbeat., 738. The circuit courts bave no jurisdiction to enjoin proceedings in. a state court, and so it was beld in tbe case of Diggs et al. v. Wolcott, 4 Crancb, 179. By tbe act of 1793, tbe reader will bear in mind, any judge of tbe supreme court is autborized to issue tbis writ in cases wbere it migbt be granted by tbe supreme or circuit court ; and by a later act tbis authority bas been extended, witb certain limitations, to tbe judges of tbe district courts.' Tbis power may of course be exercised ui vacation. As to tbe power to issue writs of ne exeat, pro- cedendo, qv^ warranto, certiorari, &c., and as to tbat of appointing special courts, and punisbing for contempts, see ante, Supreme Court, wbere wbat is said is equally applicable in tbis place. Tbe jurisdiction in regard to some of tbe foregoing writs, it will be remarked, is of a nature ratber .appellate tban original. But in tbe.br^ef disquisi- tions upon tbem ia tbis part of tbe work, it was deemed unnecessary formally to recognize tbis dis- tinction. 9. 0/ the power to make alterations and additions in the forms of process. Tbe nature and extent of tbe power vested in tbe courts of tbe United States, generally, by tbe pro- cess of tbe act of 1792, of making alterations and additions, and in tbe supreme court in particular, of 'See pott, Jurisdiction of the District Courts. Original Jurisdiction of the Ciecuit Courts. 177 prescribing regulations to the circuit and district chap. s. courts, respecting the forms of writs, executions, and ~ other process, and especially in the forms and modes of proceeding in suits, were very fuUy and ably ex- amiaed ia the cases of Waymom et al. v. Southard et al. (10 Wheat.), and TTie BanJc of the United States V. Ealsted (ib., 51). The questions decided ia both these cases, however, related immediately to writs of execution ; and the only poiats established by them, which it is deemed necessary to state in this place, are the following : Congress possesses the power, exclusive of the congr state legislatures, of regulating the proceedings of reVis the national courts, and might constitutionally con- ™'g'^* fide this power to these courts themselves, to the ^*"'' extent declared in the process act. The courts of the United States were therefore authorized to determine the form and effect of their own process. They might, in their discrection, if they considered it expe- dient to do so, adopt such regulations as might from time to time be resorted to by the states ; but such state regulations would be in no degree binding upon them^er se. Thus, the laws of Kentucky compelling plaintiffs to receive certain bank notes in satisfaction of their executions, or, upon their refusal to do so, authorizing the defendant to give a replevin bond for the debt, payable in two years, were held to be inope- rative with regard to executions issuing from a court of the United States. So, also, a statute of Ken- tucky forbidding the sale of property upon exe- cution for less than three-fourths of its appraised value was held not to be binding upon the mar- shal acting under a writ of nenditioni exponas, from the circuit court of the United States for the district of Kentucky, but it was his duty to proceed, without regard to it, to a sale of the defendant's land. So, too, the statute of New York, passed in 1820, direct- 23 178 Okiginal Jueisdictiok of the Ciecuit Coitets. pAETi. ing the sheriff, instead of executing a deed for lands sold under execution, to give the purchaser a certifi- cate, and authorizing a redemption of such lands within a limited period, would doubtless have been held to be inapplicable to executions issued upon judgments rendered in the courts of the United States, state laws But the law as it was at the time of these adju^i- flnaipro- catious, SO far as final process is concerned, is, as will tfatatt^ S- readily be perceived, materially altered, by the act «pt!&cf^' of May 19, 1828, ch. 68, § 3 : 4 Stat, at Large, p. 378. By this act all the existing laws and usages of the several states regulating the effect and operation of judgments and executions and the proceedings for their enforcement, appear to be adopted into the national courts in each state respectively with the single exception that where, by the local law, judg- ments are not allowed to be enforced until after the lapse of more than one term after their rendition, the period of such suspension is limited in the national courts to one term. And no power is left to these courts to modify such laws and usages, except "if they shaU see fit in their discretion, by rules of court so far to alter final process in said courts as to conform^the same to any change which may be adopted by the legislature of the states for the state courts." In those states, however, in which there are no courts of equity, the national courts are authorized by rule to prescribe the mode of executing their decreed in equity. As derived With the exceptiou of the power given to congress 10. Criminal jurisdiction. exception of the power given jo^Mtitu- "to provide for the punishment of counterfeiting the securities and current coin of the United States," and "to declare the punishment of treason," there is not, in the constitution, either among the enumerated Original Jurisdictiok of the Oikcuit Courts." 179 powers of congress, or in the section defining the chap. s. judicial power, any authority expressly conferred to inflict punishment for crimes. There are, however, several provisions regulating the exercise of this power, in general, and clearly implying its existence in other than the cases above mentioned. Thus, it is ordained that "the trial of all crimes, except in impeachment, shall be by jury;" that "no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, except," &c. ; that " excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted." And even had all these provisions been omitted, it cannot be doubted that this power would have belonged to the national government. In confiding to it the exclusive guardianship of those great political inter- ests which concern the whole American people, and in giving to congress power to make all laws which shaU be necessary and proper for carrying into exe- cution all the other enumerated legislative powers, and all other powers vested in the government, or any department or officer thereof, there could have been no question that it was intended also to confer the requisite authority to enforce obedience to the laws by penal sanctions. At any rate, under the constitution as it is, no doubt has ever been enter- tained about the existence of this power. But with resTDect to the nature and extent of the contro- versy con- criminal jurisdiction vested in the national courts, cemmg. widely different opinions prevailed at the outset, which were maintained with zeal and tenacity. On the one hand, it was contended that this jurisdiction comprehended all common-law offenses against the United States, and especially, all offenses cognizable by the maritime law in a court of admiralty ; and, on the other hand, it was insisted that this jurisdic- 180 Original Jueisdiotiok of the Ciecuit Oottets. PAET 1. tion extended only to those offenses wMch. had been defined and made punishable by act of congress. Its extent After repeated and very animated discussions ta bySute.^ the circuit courts, resulting in conflicting decisions, the subject was, for the first time, brought under the consideration of the supreme court, in the case of The United States v. Hudson & OoodAJoin!' Upon the trial of an indictment against the defendants in the circuit court for the district of Connecticut, for a libel upon the president, the judges disagreed ia opinion upon the question of jurisdiction, and this question was certified to the supreme court for its decision. ■ The act charged against the defendants was an offense at common law, and being directed against the chief magistrate of the nation, it was con- tended that it was an offense against the United States, and, as such, cognizable in a national court. But, on the other hand, congress had not seen fit to enumerate this among the numerous offenses speci- fied in the crimes act of April 30, 1790, ch. 9 ; and on this ground a majority of the judges held it not to be within the jurisdiction of the circuit court. The next case was The United States v. Coolridgej' in which the indictment was for a forcible rescue of a prize captured by,, an American cruiser. This was an offense under the iharitime law, and therefore of admiralty jurisdiction ; and inasmuch as the United States had, by the constitution, been invested- with the entire admiralty jurisdiction, it was supposed the case might, on this ground, be distinguishable from that of Hudson & Ooodv^in — the soundness of the decision of which was, moreover, denied. But the majority of the court, being of opinion that the case before them was not distinguishable from that, contented themselves with merely declaring their adherence to their former decision, limiting the • 7 Cranoh, 32. ' Wheat., 415. Oeiginajj Jueisdictiok of the Cikottit Courts. 181 criminal jurisdiction of the national courts, witliout chap, s. exception, to statute offenses. In accordance with this rule, it was held, in the case of The United States V. Bevans,^ that the circuit court for the dis- trict of Massachusetts could not take cognizance of the crime of murder committed on board an Ameri- can ship of war in Boston harbor, because the 8th section of the act of 1790, by which, alone, any provision had been made for the punishment of this crime committed on shipboard, speaks only of offenses committed "upon the high seas, or in any river, harbor, or bay out of the jurisdiction of any particular state." And in the case of The United States V. Wilfberger,'' the rule was applied with the same result in the case of manslaughter committed on board an American merchant vessel while within the dominions of a foreign power, because the pro- vision contained in the 13th section of the same act for the punishment of that offense committed on shipboard is also confined to manslaughter perpe- trated on the high seas." The result, then, with respect to the criminal juris- diction of the courts of the United States is this, that, in order to ascertain its extent, resort must be had to the various statutes of the United States providing for the punishment of crimes. For although the national courts are unquestionably to look to the common law, in the absence of statutable provisions, for rules to guide them in the exercise of their func- tions in criminal as weE as in civil cases, it is to the statutes of the United States, enacted in pursuance of the constitution, alone, that they must have re- ' 3 Wheat.. 336. " 5 Wheat., 76. But by the crimes act of March 3, 1835, offenses committed on boaid American ships while within the jurisdiction of a foreign state or sovereign are made cognizable and punishable in the courts of the United States, in the same manner as if committed on the high seas. Ch. 65, § 5 : 4 Stat, at large, 115. 183 Obiqiitai, Jitbisdiction' of the Cibcuit Oouets. PABTi. course to determine what constitutes an offense against the United States. The United States have no unwritten criminal code to which resort can be had as a source of jurisdiction. A considerable proportion of these offenses are, in their natui;e, of admiralty jurisdiction. But this distinction in our system is merely theoretical, the form of prosecution and trial, and the rules of evidence being the same in these last-mentioned cases as in others. The con- stitution, it is true, extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction ; and this plenary grant em- braces criminal as well as civil causes. But this power can be brought into action, only through the instrumentality of the national legislature. This principle is applicable as well to criminal as to civil jurisdiction, and extends as well to admiralty as to common-law offenses. Congress, in dealing with the admiralty and maritime jurisdiction placed by the constitution at their disposal, have thought proper to provide for its exercise, eo nomine, only in civil cases, and have confided this branch of it, exclu- sively, except under an appellate form, to the district courts. Criminal jurisdiction in admiralty, as such, is not conferred by any act of congress. The judicial act only declares in general terms that the circuit courts, and the district courts under certain limita- tions, shall have cognizance of all crimes and offenses cognizable under the authority of the United States ; and the subsequent acts providing for the punish- ment of specific offenses make no distinction between those of admiralty and those of common-law juris- diction. Comprises The crimeS designated in the several penal statutes oFcrimes!' of the United States are referable to one or other of the two following classes : 1. Such as are perpetrated . on board American vessels on the high seas, or in Original Jurisdiction- of the Circuit Courts. 183 any arm of the sea, or in any river, haven, creek, chap, a. basin, or bay, within the jurisdiction of the United States, and out of the jurisdiction of any particular state (and which are, therefore, comprehended within the admiralty jurisdiction), or within any fort, dock- yard, navy-yard, arsenal, magazine, site of a light- house, or other place which has been ceded to the United States, and is under their jurisdiction. 2. Such as relate to subjects committed to the charge of the national government, and which are, therefore, comprised within the grant of judicial power over all cases arising under the constitution, laws and treaties of the United States, and over all cases affecting ambassadors or public ministers and consuls. Of this nature are forgeries of the public securities or other instruments, documents', or papers, whereby the United States, or others, may be defrauded ; counterfeiting the current coin ; depredations upon the mail ; false swearing in oaths taken under the laws of the United States ; crimes and trespasses against the Indians ; enticing soldiers to desert ; frauds committed by public officers and contractors ; violence to public ministers. Most of these offenses Bywhi are specified in the crimes act of AprU 30, 1790,' and defined of March 3, 1825 ; ^ the amendatory act of March 3, 1835 ;* the act of the same date, regulating the post- office department ; ' the neutrality act of April 20, 1818;" the act of March 2, 1863, to prevent and punish frauds upon the government of the United States ; ° the act of March 3, 1863, to punish frauds upon the revenue, &c. ;' the acts for the suppression ' Ch. 9 : 1 Stat, at Large, p. 113. " Ch. 65 : 4 Stat, at Large, p. 115. ' Ck. 40 r 4 Stat, at Large, p. 775. * • Cli. 64: 4 Stat, at Large, p. 103. ' Ch. 88 : 3 Stat, at Large, 447. • Cli. 67 : 13 Stat, at Large, 694. ' Ch. 76 ; 13 Stat, at Large, 737. 184 Appellate Jurisdiction of the Ciecuit Courts. PART 1. of piracy and the slave trade ; tlie acts to regu- late trade and intercourse witli the Indian tribes ; and tlie acts regulating tlie carriage of passengers in merchant vessels.' CHAPTER IX. OF THE APPELLATE JUEISDICTIOIir OF THE CIECUIT COUKTS. The revisory power of the circuit courts over final judgments and decrees of the district courts is exer- cised either, 1. By appeal, in this, its technical sense, a civil-law process by which the entire cause is removed, and both the law and the fact are subjected to review and retrial ; or, 3. By writ of error, a common-law process which removes for re-examina- tion nothing but the law. The following are the enactments by which the jurisdiction is conferred : LegiBiative " That from final decrees in the district court, in eases of ferringf' admiralty and maritime jurisdiction, where the matter in dispute exceeds the sum or value of three hundred dollars, exclusive of costs, an appeal shall be allowed to the next circuit court to be holden in such district." Act of 24. Sep- tember, 1789, ch. 30, § 21 : 1 Stat, at Large, p. 83. 'The Criminal Code of the United States is, in several respects, defective, and stands much in need of a thorough revision. It is want- ing in precision and consistency, and requires additions. Some of its defects are pointed out by Chancellor Kent in a note at page 363 of Vol. 1 of his Commentaries. But there are others equally objectionable. The crimes act of 1825 repeals all prior acts and parts of acts incon- sistent with its provisions, as it doubtless would have been held to do by implication, without this clause. But to determine the precise ex- tent to which it repeals the acts of 1790, will be found to be a task of some difficulty. The judicial decisions in cases arising under this branch of jurisdiction are numerous. Most of them are cited in notes appended to the several acts under which the cases arose, in the Statutes at Large. A notice of them, sufficiently full, to supersede the necessity of resorting elsewhere for further informntion, would require too much space, and is, for that reason, omitted. Appellate Jurisdiction op the Circuit Courts. 185 " That final decrees and judgments in civil actions in a chap. 9. district court, where the matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, may be re- examined and reversed or affirmed in a circuit court, holden in the same district, upon a writ of error." Id., § 22, p. 84 ' " That from all final judgments and decrees, in any of the district courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars, shall he allowed to the circuit court next to he holden in the district where such final judgment or judgments, decree or decrees, may be rendered." Act of March 3, 1803, ch. 11 : 3 Stat, at Large, p. 244. Before the act of 1803, and while this branch of consti jurisdiction was regulated only by the two sections tiieee 1 of the judicial act above referred to, no difficulty existed in deciding in what cases it was requisite to resort to an appeal, and in what to a writ of error. The right of appeal was clearly restrained by the • 31st section to cases of admiralty and maritime juris- diction, as the writ of error was to civil actions at common law,- by the 22d section. But the act of 1803, giving an appeal from all final judgments or decrees, involving an amount exceeding fifty doUars, gave rise to the perplexing question whether it was not intended to substitute, or at least to confer upon suitors, the privilege of electing the process of appeal instead of the writ of error, in actions of common law. But in the case of the United States y. Won- son (1 Grallison, 5), upon very fuU examination, it was held that the enactment in question was appli- cable only to cases of admiralty and maritime juris- diction, and had no other effect except to reduce the amount in controversy requisite to the exercise of appellate power in those cases, from three hundred to fifty dollars. See, also, M'Lellan v. The United States, 1 GaUison, 327. Prom aU final decrees, therefore, of the district court in cases of admiralty and maritime jurisdic- 24 186 PAHTl. What de- crees and jndgmenn are flnal. Amonnt In dlipute. JUBISDIOTION OP THE ClECXJIT COUBTS. tion, involving an amount exceeding fifty dollars, exclusive of costs, an appeal lies to the next circuit court to be held in the district where the decree is pronounced ; and from all flnal judgments in actions at common law involving the like amount, 2iWrit of error lies. But no right of election exists in either of these descriptions of cases. As to what. shall he deemed ^TiaZ decrees and judg- ments, within the meaning of these acts, vide Juris- diction of the Supreme Court, ante; M^Lellan V. The United States, 1 Gallison, 227; and Brig Helen, 1 Mason, 431. And as to the principles which have been settled with respect to the amount in controversy, as requi- site to vest jurisdiction, see Jurisdiction of the Supreme Court, ante; Martin v. Taylor, 1 Wash. C. C. Rep., 1 ; and Postmaster-Cfeneral v. Cross et at, 4 Wash. C. C. Rep., 326. The legislative provisions and judicial decisions stated in this chapter relative, to the appellate juris- diction of the circuit courts, it must be borne in mind, are appiicable only to the district courts for those districts in which circuit courts have been established, except, as wUl be hereafter explained in treating of the jurisdiction of the district courts; when, as already intimated, the peculiar structure of the courts for the other districts will be considered. I EEOAPITTJLATION". From the foregoing analysis it therefore follows : that the circuit coxirts of the United States are tribu- nals both of original and appellate jurisdiction : that their original jurisdiction embraces, concurrently with the courts of the several states, all civil suits at common law and in equity, 1. In which the United States are plaintiffs ; 2. In which any officer of the United States, suing under the authority of JURISDICTIOK OF THE OlECtllT OOTJRTS. 187 an act of congress, is plaintiff ; 3. In which an alien c hap. 9. is a party plaintiff or defendant, against a citizen, or the party defendant at the snit of a state; 4. In which one of the parties is a citizen of the state in which the snit is brought, and the other a citizen of another state, promded, that where the snit is brought by the assignee (claiming title through the assigranent), of a promissory note, or other chose in action (except foreign bUls of exchange, and deben- tures) to recover the contents thereof, the court would have had jurisdiction if the suit had been brought by the original party before assignment ; 5. By removal from state courts, or suits in which the parties are citizens of the same state, and are liti- gating concerning the title to lands claimed by the one party under a grant from the state of which he is a citizen, and by the other under a grant from another state, provided, ■ that, in each of the three last descriptions of cases, the amount claimed by the plaintiff exceeds five hundred dollars;' 6. In which damages are claimed by the plaintiff for injury to his person or property on account of any act done by him under some revenue law ; 7. In which the president, directors and company of the bank of the United States are a party ; 8. Concur- rently with the district courts, suits upon deben- tures, without regard to the character bf the parties ; 9. Exclusively (as it is apprehended), all suits for the infringement of patents and copyrights; 10. Suits in a few specified cases for penalties ; 11. Con- currently with the district courts, prosecutions for all crimes and offenses cognizable under the authority of the United States, and of which the latter courts possess jurisdiction, and exclusively, prosecutions for all other such crimes and offenses : and that their ' And of certain other cases arising out of the present rehellion, as to which, iiide gupr'a. 188 Oeganization- of the District Oouets. PAST 1. appellate jurisdiction extends to all final decrees of the district courts in cases of admiralty and mari- time jurisdiction (in wMcli cases the remedy is by appeal), and to all final judgments in civil actions (in wMcli case the remedy is by writ of error), when the matter in dispute exceeds fifty dollars. CHAPTER X. OF THE OEGANIZATIOK OF THE DISTEIOT OOTTBTS. The district courts, like the circuit courts, were established by congress in virtue of the power con- ferred by the constitution, to establish other courts inferior to the supreme court. #>' 1. Cf the Districts. The plan originally adopted by the framers of our national judicial system was, to constitute each of the several states of the Union a judicial district, and to direct the appointment' of a judge, a clerk (to be appointed by him), a district attorney, and a mar- shal for each district. The only exceptions to this arrangement were the erection of that part of the state of Massachusetts which now constitutes the state of Maine, and of that part of the state of Vir- ginia which now forms the state of Kentucky, into independent districts, under the names of the dis- trict of Maine and the district of Kentucky, and the establishment of a district court in each, invested with the powers of a circuit court ; the remaining portions of the states thus divided being constituted judicial districts, bearing the names of these states. Of the eleven original states, Virginia has since been divided into two states, one of them retaining the name of Virginia, and the other denominated West Virginia, each of which constitutes a single district ; Obganizatiok of the Disteict Oouets, 189 New York has been divided into three and Pennsyl- chap, lo. vania into two districts. Of the states since admitted into the Union, Ohio, Illinois, Missouri, Louisiana, Florida, Texas and Michigan, though at' first seve- rally organized as single districts, have since been respectively divided, in like manner, into two dis- tricts ; and California was thus divided at the outset. But by the act of July 27, 1866 (ch. 380), Louisiana and California have severally been converted into a single district. All these being completely organized districts, like those consisting of entire states, they require no farther separate notice. But of several other states, subdivisions have been made of so anomalous a character, and so different from each other, as to render it no easy matter to decide whether any of them, £%d if any, which, are entitled to the appellation of judicial districts. North Caro- lina, Tennessee, South Carolina, Alabama, Missis- sippi, Georgia, Arkansas and Iowa are the states here referred to. Notwithstanding their subdivision into what are denominated districts, each bearing a distinctive nam§, and some of them partially organ- ized by having a marshal or clerk, or both, they stm, collectively, bear the name of the state, and have only one judge. 2. Of the judges and immediate officers of the dis- trict courts. Judges. \ The judges of these courts are appointed in the same manner, hold their offices by the same tenure,' enjoy the same immunities with respect to " This remark, with regard to the tenure by which the district judges hold their offices, requires, perhaps, a word of explanation. As import- ing merely the security of these judges against removal by the execu- tive, it is strictly true. But congress have, in one memorable instance, exercised the power pf indirect removal from the judicial office, by vir- tually abolishing the office itself. By an act passed in 1801, the judicial system of the United States was remodeled, so far as the circuit and 190 OBQASriZATIOK Ot THE DiSTBIOT OotTSTS. PAHTi. their . salaries, are in like manner prohibited from being engaged in the practice of the law, and are req^uired to take the same oath, as the judges of the supreme court.' Clerk.] This officer is appointed by the court ; and is required to keep his office at the place of holding the court, where there is only one place ; and where there are more, at the place appointed by the judge. * Before entering upon the execution of his office; he is required to take an oath, (of which the form is prescribed), and to give bond, with sufficient sureties (to be approved of by the court), to the United States, in the sum of two thousand doUars, "faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments and determinations of the court of which he is cterk." ' In case of the absence or disability of the judge, the clerk is authorized to take recognizances of special bail, de bene esse, in any action depending in the court, and also the affidavits of all surveyors, relative to their reports, and to administer oaths to all persons identifying papers found on board of vessels or elsewhere, to be used on trials in admiralty district courts were concerned, and the number of national judges increased. These newly created offices were filled. But the act was itself re- pealed, and the incumbents displaced, though it was strenuously- objected that such an exercise of power was forbidden by that clause of the constitution which provides that "the judges both of the supreme and inferior courts shall hold their offices during good behavior." In the case of StiUM-t v. Laird (1 Cranch, p. 399), which arose -soon after, the constitutionality of this act was drawn in q'uestion,*but the cause was determined upon other grounds. It may now, therefore, be considered as practically settled, that the power conferred upon congress "from time to time to ordain and establish inferior courts," implies also the power to aboUsh such courts. ' Vide, iupra, Organization of the Supreme Court. ' In a few instances the place is desi^ated by law. ' Act of Sept. 24, 1789, oh. 20, §7: 1 Stat, at Large, p. 73. Obqanization of the Disthiot Ooitbts. 191 cases.' TMs provision, thougli stUl in force, is now ohap.io. in a great measure superseded by subsequent acts; authorizing the appointment of commissioners, with more ample powers, to take affidavits and special baU." By the act of March 2, 1809,' it is enacted, that in case of the disability of .the judge of any district to discharge Ms duties, the clerk of such district shall be authorized and empowered, by leave or order of the circuit judge of the circuit in which such district isr included, to take, during such disability of the district judge, all examinations and depositions of witnesses, and make all necessary rules and orders preparatory to the final hearing of all causes of admiralty and maritime jurisdiction. By the act of March 3, 1817,* it is required that all moneys which shall be paid into the circuit or district courts, or received by the officers thereof, in cases pending therein, shall be immediately deposited in the branch bank of the United States within such district, if there be one, otherwise in some incorpo- rated state bank within the district, in the name and to the credit of the court : that no money so depos- ited shaU be drawn from the bank^ except by order of the judge or judges of the court in term or vaca- tion, to be signed by such judge or judges, and to be entered and certified of record by the clerk ; and every such order shall state the cause in or on ac- count of which.it is drawn ; and that if any clerk of any such court, or other officer thereof, having re- ceived any such moneys as aforesaid, shall refuse or neglect to obey the order of such court, for deposit- ing the same as aforesaid, such clerk, or other officer, ' Act of May 8, 1793, cli. 30, § 10 : lb., 375. ' See, infra, CommissioneTa. = Ch. 37, § 3 : 3 Stat, at Large, p. 534 * Ch. 108 :' 3 Stat, at Large, p. 395. 192 Obganization" of the Disieict Coubts. PAKT.1. shall be fortliwith proceeded against by attacliinent for contempt. It is also fartlier enacted that at each regular and stated session of said courts, the clerks thereof shall present an account to the said court of aU moneys remaining therein, or subject to the order thereof, stating particularly on account of what causes said moneys are deposited ; which account and the vouchers thereof shall be filed in court : Pro- vided, netertheless, That if in any district there shall be no branch of the bank of the United States, nor any incorporated state bank, the courts may direct such moneys to be deposited, according to their dis- cretion, as heretofore. By the act of May 15, 1820, it is made the duty of the clerks of the district and circuit courts within thirty days after the adjournment of each- successive term of the said courts, respectively, to forward to the agent of the treasury a list of all judgments and decrees which have been entered in the said courts respectively during such term, to which the United States are parties, showing the amount which has been so adjudged or decreed, for or against the United States, and stating the term to which execu- tion thereon wiU be returnable.' A subsequent act, however, creates a new officer called the solicitor of the treasury, to whom it trans- fers the powers and. duties of the agent of the treas- ury, and requires the clerks to forward the list to Mm.' The fees and emoluments of the clerk are pre- scribed in a recent statute, a copy whereof is appended to this work.' This is a very carefully framed dct, and contains many important regulations besides the tariffs of • Ch. 107, §8:8 Stat, at Large, 593. • "Act of May 39, 1830, ch. 153 : 4 Stat, at Large, p. 414. ' Act of Februaij 36, 1853, ch. 80 : Appendix. Oegakizatiost op the District Courts. 193 fees, with which officers of the courts of the United c hap, lo. States ought to be famUiar. Its ihsertion in the appendix supersedes the necessity of more full and minute references to its provisions, in treating the various subjects to which these provisions relate. The proviso contained in the second section, entitling Minimn clerks whose compensation falls short of five hun- tionof i ^ repealed dred dollars per annum to the payment of the deficit, is repealed by the amendatory act of August 16, 1856, ch. 124, § 9 : 11 Stat, at Large, p. 50 ; and this act (§ 1) requires that all accounts of clerks, as well as of district attorneys and marshals, shall be exam- ined and certified by the district judge before pre- sentation to the accounting officers of the treasury department for settlement. The above cited act, cierk oi every cc authorizing the appointment of a separate clerk for ^ gfvo the circuit courts, is silent as to any security to be given by them for the faithful performance of their duties ; but a subsequent act directs that "the clerk of every court shall give bond ia such sum as may be fixed by the court, with sureties to be approved by the court, and a new bond may be required whenever the court shall deem it proper that such bond shall be given.'" The act, it will be noticed, prescribes no condition for the required bond, but leaves that as well- as the penalty to be determined by the court. Doubtless it ought to be for the faith- ful performance of duty ; and it seems to have been taken for granted that the courts would be of this opinion. A public officer cannot delegate his powers with- out express authority of law. There is no general act of congress empowering the clerks of the national courts to constitute deputies, and conse- quently no such general power exists. In several • Act of March 3, 1863, ch. 93 : 13 Stat, at Large, 768. 25 194 Organizatiok of the Distbict Couets. PAET 1. instances, this power has been conferred on the clerk of a particular 'district, by special act.' Crier.] The crier is appointed by the court, and is entitled to two dollars per day for his services.^ Special Sessions.] By the judicial act of Septem- ber 24, 1789, ch. SO, § 3 (1 Stat, at Large, p. 73), the district judges are authorized to hold special ses- sions at their discretion, at such places within their respective districts as they may deem proper. In most of the acts providing for the establishment of district courts in the districts which have been organized since 1789, the power to appoint special courts is specifically given ; probably on the suppo- sition that the provision above cited, contained in the judiciary act, could not properly be construed so as to embrace any other than the districts desig- nated in that act. The mode of appointing special sessions of the dis- trict courts is not prescribed by any general law. But the act of March 2, 1793, as we have seen, authorizes the supreme court, or, when it is not in session, a justice thereof, together with the proper district judge, to appoint special sessions of the cir- cuit courts for the trial of criminal causes ; and it directs the clerk to publisji a notice of such appoint- ment at least thirty days before the commencement of the session, for three successive weeTcs, In the absence of any other legislative direction, it would seem to be most discreet to conform to the provisions of this act in the appointment of special sessions of the district courts. ' There has been strange miBapprehension on this point. A clerk in a neighboring district who also held the oflSce of commissioner, having assumed to appoint a deputy, the latter was supposed to be empowered, not only to. exercise the functions of clerk, but those of commissioner also ; and ' he actually took it upon himself to act in this latter capacity. "Act of February 36, 1853, ch. 80. See Appendix. Oeganization of the DfSTEioT Courts. 195 As courts of admiralty, the district courts, except c hap, m . for the final hearing of causes on their merits, are deemed to be always open.' Adjoummenis, &c.'\ By the act of 1793, just cited, (§ 6) it is enacted that a district court, in case of the inability of the judge to attend at the commence- ment of the session, may, by virtue of a written order from the said judge, directed to the marshal of the district, be adjourned by the said marshal to such day, antecedent to the next stated session of the said court, as in the said order shall be appointed ; and, in case of the death of the said judge, and his vacancy not being supplied, aU pro- cess, pleadings and proceedings, of what nature soever, pending before the said court, shall be con- tiaued of course until the next stated session, after the appointment and acceptance of the office by his successor." By act of March 26, 1804, ch. 44 (3 Stat, at Large, p. 291), it is Enacted, "That in case of the inability of the judge of any district court to attend on the day appointed for holding a special or adjourned district court, such court may, by virtue of a written order from the jMge thereof, directed to the marsha'l of the district, be adjourned by the marshal to the next stated term of said court, or to such day, prior thereto, as in the said order shall be appointed." As to the power to adjourn the session of the court to some other place, in case of contagious sickness, and the power to continue a session by adjournment to a distant day, see conclusion of ch. 7, Organiza- tion of the Circuit Courts. The act of March 3, 1809, ch. 27 (2 Stat, at Large, p. 524), provides "That in case of the disability of the district judge of either of the districts of the 'Act of August 23, 1842 ; ch. 188 : 5 Stat. a,t Large, 116. 196 OEGANIZATIOIf «F THE DiSTEIOT OOITETS. PAET 1. United States to hold a district court, and to perform the duties of Ms oflBice, and satisfactory evidence thereof being shown to the justice of the supreme court, allotted to that circuit in which such district court ought by law to be holden ; and, on applica- tion of the district attorney or marshal of such dis- trict, in writing, to the said justice of the supreme court, said justice of the supreme court shall there- upon issue his order, in the nature of a certiorari, directed to the clerk of such district court, requiring him forthwith to certify into the next circuit court, to be holden in said district, all actions, suits, causes, pleas, or processes^ civil or criminal, of what nature or kind soever, that may be depending in said dis- trict court and undetermined, with all the proceed- ings thereon, and all files of papers relating thereto, which order shall be immediately published in one or more newspapers printed in said district, and at least thirty days before the session of such circuit court, and shall be deemed a sufficient notification to all concerned. And the said circuit court shall thereupon have the same cognizance of all such actions, suits, causes, pleas, or processes, civil or criminal, of what nature or kind soever, and in the like manner as the district court of said district by law might have, or the circuit court, had the same been originally commenced therein ; and shall pro- ceed to hear and determine the same accordingly ; and the said justice of the supreme court, during the continuance of such disability, shall moreover be invested with, and exercise, all and singular, the powers and authority vested by law in the judge of the district court in said district." The act' further requires the clerk of the district court during the continuance of the disability of the judge to con- tinue in like manner to certify and transmit all suits, &c., subsequently brought in the district court ; and Obganization of the District Oouets. 197 ■when tlie disability of the judge shall have ceased, c hap, l o. aU suits, &c., so certified and transmitted, which remain undetermined, and which, from their nature, are by law exclusively cognizable in a district court, to be remanded by the order of the circuit court, and the clerk of that court is to transmit the same to the district court.' [As to the power conferred by this act on the clerk of the district court during the disability of the judge, mde supra, Cleric.] The act of March 3, 1821, ch. 51 (3 Stat, at Large, 643), contains provisions of a similar nature in relation to all suits and actions in any district court, in which it shall appear that the judge of such court is any ways concerned in interest, or has been of counsel for either party, or is so related to, or con- nected with, either party, as to render it improper for biTTi in his opinion, to sit on the trial of such suit or action. In case of the sickness or other disability of the judge of any district, which shall prevent him from holding any stated or appointed term of the district or of the circuit court, in the absence of the circuit judge, and upon the fact of such sickness or disa- bility being certified by the clerk of such court to the circuit judge of the circuit comprising the district, it is enacted that it shall be lawfuL for such circuit judge, if, in his judgment, the public interest shall so require, to designate and appoint the district judge of any other district, within the same circuit, to hold such court in place of th& sick or other- wise disabled judge, and to discharge all his judicial duties, during the continuance of his inability ; which , appointment shall be filed in the office of the clerk ' in a case which arose under this act, Mr. Justice Story held that . ■when the disability of the district judge terminated in his death, it was the duty of the circuit court to remand the certified causes remain- ing undetermined. 1 Gallis, 338. 198 OBGANIZATIOir OF THE DiSTEICX COTJBTS. PARTI. Want or absence of circuit judge, how Bupplied. Provisions of this act extended. of the said district court, and be entered on the minutes of the court, and a certified copy thereof, under the seal of the court, be by such clerk trans- mitted to the ju^ge so designated and appointed. The act further provides that, If there be no circuit judge resident within the circuit, or if the resident circuit judge be absent, or unable to make the required appointment, or if the judge, designated by him, fail to perform the service, it shall be the duty of the clerk to certify the facts to the chief justice of the United States, who, in such case, is empowered to make the required appointment by the designation of any district judge of the same or of a contiguous circuit. The like authority is also given to make new appointments, from time to time, as the exigencies of the case may require, by the designation of other judges. The act enjoins it upon the judge, on receiving the speqified notice of his appointment, to execute the notice it implies.' An amendatory act extends the provisions of thig act to the case of such an accumulation or urgency of judicial business in any district as to require relief in this form. The certificate of the clerk of the circuit or district court, to the circuit judge or chief justice, must be under the seal of the court, "and it shall be lawful in case of such appointment, for each of the said district judges separately to hold a district or circuit court at the same time in sudi district, and discharge all the judicial duties of a ' Act of July 39, 1850, ch. 30 : 9 Stat, at Large, 443. The provisians of this act have been extended, by the act of Feb. 24, 1855 (ch. 125), to the Florida districts, so as to authorize the holding of a court in one by the judge of the other, the appointment for that purpose being made by the chief justice, or by the judge of an adjoining circuit. The act also authorizes this to be done on the applicatfon of the disabled judge of one district to the judge of the other. Obgakization of the District Couetb. 199 district judge therein, but no sucIl judge Bhall hear c hap, l o. appeals from the district court. "^ And by a more recent act, "in case of a vacancy in the office of district judge in any state in which there are two judicial districts, it shall be lawful for the district judge of the other district in said state to hold the district court or circuit court, in case of sickness or the absence of the circuit judge, and discharge all the judicial duties of the district judge of such vacant district so long as such vacancy shall continue ; and all the acts and proceedings in said courts, or by or before the said district judge of the adjoiaing district shall have the same force, effect and validity as if done and transacted by and before the judge appointed for such district." ' When a vacancy occurs in any judicial district ia vacancy, a state in which there are two such districts, the onwodia- ' trictB in judge of the other district is empowered to hold the ^X\^^.'^' district courts ia both during the continuance of p'^*^- the vacancy, and, in case of the sickness or absence of the circuit judge, the circuit courts also.* There are a few special provisions relating to par- ticular districts which it is proper to notice. With respect to the district of North Carolina, it is enacted that if the judge fails to attend on the first day of the term, the marshal may adjourn the court to the next day ; and, if he does not attend on the second day, the marshal may adjourn the court to the next term.* In the Western District of South Carolina, the judge "is authorized and directed to hold such » Act of April 3, 1852, ch. 20 : 10 Stat, at Large, 5. . "Act of August 6, 1861, ch. 59 : 13 Stat, at Large, p. 318. These acts being general, supersede several special acts containing similar provi- sions relative to particular districts which were noticed in the last edition. •Act of August 6, 1861, ch. 59 : 12 Stat, at Large, 818. < Act of January 23, 1812, ch. 17 : 2 Stat, at Large, 675. 200 Okganization of the Distkict Courts. FABTi . special courts as he may deem necessary for the dis- patch of the causes in said court, at such time or times as he may deem expedient, and may adjourn such special sessions to any other time previous to the stated session." * With respect to- the Northern and Southern Dis- tricts of Alabama, it is enacted that in case of the non-attendance of the judge before the close of the third day of the term, the business of the court shall stand adjourned until the next term." And in the Middle District of Alaba/ma, the busi- ness of the court is in like manner to stand adjourned if the judge fails to attend before the close of the fourth day of any term.* Court Houses.] No general provision has been made by law for the erection of court houses in the several judicial districts ; the United States having hitherto relied, with few exceptions, upon the liber- ality of the local governments for the accommoda- tion of the national courts. As yet it is not known that any very serious inconvenience has arisen from this circumstance. The circuit and district courts are generally held in public buildings belongiag to the state, county or city where they sit, with the assent, either express or implied, of the proprietors. Should such assent at any time be withdrawn, or a court from any other cause be excluded from its accustomed place of session ; or should a special court be appointed at a place destitute of a pubUo buildtag affording the requisite accommodations, it would doubtless be the duty of the marshal, under the direction of the court, to provide a suitable room, at the expense of the United States, subject, how- . ever, to the following proviso: that he "shall not 'Act of February 31, 1833, ch. 11 : 3 Stat, at Large, 737. 'Act of March 10, 1834, ch. 38, § 9 : 4 Stat at Large, 9. •Act of February 6, 1839, ch. 30, § 10 : 5 Stat, at Large, 315. Organization of the Distbict Courts. 201 incur an expense of more than twenty dollars in any chap. lo. one year for furniture, or fifty dollars for rent of building and making improvements tliereon, with- out first submitting a statement and estimates to the Secretary of the Interior, and getting his instruc- tions in the premises." * Jails.] The only provisions which congress have hitherto deemed it necessary to make for the safe keeping of prisoners, committed under the authority of the United States, are the following : At the first session of congress, after the adoption Hecom- of the constitution, it was '•'■Resolved, by the senate tcfthe* ""' fit&tGB and house of representatives, that it be recommended to the legislatures of the several states, to pass laws, making it expressly the duty of the keepers of their jails, to receive and safely keep therein, all prisoners committed under the authority of the United States, untU they shall be discharged by due course of law thereof, under the like penalties as in the case of prisoners committed under the authority of such states respectively : the United States to pay for the use and keeping of such jails at the rate of fifty cents per month for each prisoner that shall, under their autliority, be committed thereto, during the time such prisoner shall be therein confined : and also to support such of said prisoners as shall be committed for offenses. " ^ On the 3d of March, 1791, To be pro- videdby after a preamble reciting in substance the foregoing ^^^^ resolution, and "in order to insure the administra- necessary, tion of justice," it was ^^ Hesolved, that in case any ftate shall not have complied with the said recom- mendation, the marshal in such state, under the direction of the judge of the district, be authorized to hire a convenient place to serve as a temporary Act of February 26, 1853, ch. 80, § 2: 10 Stat, at Large, 161. See Appendix. ' Resolution of September 33, 1789 : 1 Stat, at Large, 96. 26 202 Oegakization of the District Gottets, PAHTl. Becom- mendatlon to states complied with. jail, and to make the necessary provision for tlie safe keeping of prisoners committed linder the authority of the United States, until permanent provision shall be made by law for that purpose ; and the said marshal shall be allowed his reasonable expenses, incurred for the above purposes, to be paid out of the treasury of the United States. ' ' * By a resolution passed March 3, 1821, this provision was extended in the same words to all cases in which ' ' any state or states, having complied Avith the above recommend- ation, shall have withdrawn, or shall hereafter with- draw, either in whole or part, the use of their jaUs."2 And by an act passed March 2, 1833, it was enacted, "That in any state where jails are not allowed to be used for the imprisonment of persons arrested or committed under the laws of the United States, or where houses are not allowed to be so used, it shall and may be lawful for the marshal, under the direction of the judge of the United States, for the proper district, to use other convenient places within the limits of said state, and to make such other provision as he may deem expedient and neces- sary for that purpose." ^ In pursuance of the recommendation of congress, laws have been enacted in the several states making it the duty of the proper officers to receive into their custody prisoners committed under the authority of the United States, and making them responsible for their safe keeping. The laws of New* York upon the subject may be found in vol. 2 of the original edition of the Revised Statutes, pp. 448, 773, 774. ' 1 Stat, at Large, 225. ' 3 Stat, at Large, 646. ' Ch. 57, § 6, 4 id., 633. Organization- of the District Courts. 203 Under this system the responsibility of the mar- c hap, l o. shal ceases with the delivery of his prisoner to thQ Hesponei- keeper of the prison — the iailer being neither in fact marehai • 1 ■ , , _ ceases on nor m law the deputy of the marshal, and the delivery of j-i « t . prisoner to prisoner, therefore, bemg no longer, even, construct- Mer. ively, in the custody of the latter. Randolph v. Donaldson, 9 Cranch, 76. The marshal ought to deliver to the keeper a copy of the process or warrant in virtue of which the commitment is made, and take a receipt for the prisoner. 4. Attorneys, counselors, &g. The district courts being courts of law and of admiralty, the persons admitted to conduct the busi- ness of suitors therein, are designated under the appellation of Attorneys, Counselors, Proctors and Advocates. Those district courts which are invested with the original jurisdifition of the circuit courts, and being therefore courts of equity, as well as of law and admiralty, have Solicitors also, in addition to the practitioners above mentioned. The conditions of admission are prescribed by the rules of the respective courts. The rules of the national courts in New York on this subject are extremely liberal. See Appendix, Eule 2, D. C, Northern District of New York, which is also the rule of the circuit court, and the rule in the courts of the southern district is substantially the same. The fees of the practicers in the national courts are prescribed by a late statute. See Appendix. 5. Marshal. The marshal is the executive officer of the courts of the United States, corresponding with the sheriff in England. He is appointed by the president, by 204 Oeganization of the Distsicx Oouets. PABTi. and with tlie advice and consent of the senate of Ho^ the United States, for the term of four years ; but is poi^t^i removable from office at the pleasure of the presi- dent.' And in case of a vacancy in the office of marshal in ainy cirjcuit, the judge of such circuit may fill such vacancy, and the person so appointed shall serve until an appointment is made by the president and the appointee shall be duly quali&ed, and no longer. He is required to give bond as if appointed by the president. The appointment must be in writing, and filed and recorded in the clerk's office of the circuit court." Required to Before entering upon flie duties of his office he is bond and required to execute a bond to the United States for take au -^ oath. the faithful perfoi-mance of his duties by liimself and his deputies, before the judge of the district coui-t, jointly and severally with good and sufficient sure- ties, inhabitants and freeholders of the district, to be approved by the district judge, in the sum of twenty thousand dollars. He is further required, as also are his deputies, to take before the district judge the following oath or affirmation : " I do solemnly swear (or affirm), that I will faithfully execute all lawful precepts directed to the marshal of the District of under the authority of the United States, and true returns make, and in all things well and truly, and without malice or partiality, perform the duties of marshal (or marshal's deputy, as the case may be), of the District of during my con- tinuance in said office, and take only my legal fees.'" ' Act of September 24, 1789, ch. ?0, § 27 : 1 Stat, at Large, 73. 'Act of Mai;cji 3, 1863, cli. 93 : 12 Stat, at Large, 768. ' Act of September 26, 1789, ch. 20, § 37 : 1 Stat, at Large, 73. By the act of February 28, 1799 (ch. 19, § 2 : 1 Stat, at Large, 624), deputies •who reside more than twenty miles from the district judge may take the required oath before " any judge or justice of a state court, within the same district, or before any justice of the peace having authority therein ;" wliich oath is to be certifitd to the district judge. ORGAKIZATIOST 03? THE DISTRICT COURTS. 205 By "an act relating to bonds given by marshals," c hap, l o. passed April 10, 1806,' it is required that such bonds his bona to shall be filed and recorded in the office of the clerk recorded" of the district court, or circuit court, sitting within the district ; and certified copies thereof, under the certmea _ copieB of it seal of the court, are declared to be competent evi- toiieevi- ' ^ deuce, dence in any court of justice. And it is further enacted, that, in case of the breach of the condition of such bond, the party injured may institute a suit thereon, in tlie name, and for the sole use of such party, for the recovery of such damages as shall be legally assessed, with costs of suit.' By section three, it is farther enacted, that the said bonds, after any judgment thereon, shall remain as a security against future breaches, until the whole penalty shall have been recovered ; and that the proceedings shall always be in the same manner, as hereinbefore described. The fourth and last section limits the right of prosecuting suits on marshals' bonds, to the period of six years, after such right shall have accrued ; saving, nevertheless, the rights of infants, feme • coverts, and persons non compos mentis, so that they sue within three years after their disabilities are removed. The duties of the marshal, as prescribed by the HiBdnties. act of September 24, 1789,° are, to attend to the dis- trict and circuit courts, when sitting (in the district for which he has been appointed), and also the supreme court in the district in which that court 'Ch. 31: 3 id., 378. ' This act does not designate the court in -which such suit is to be brought ; but by the act of March 3, 1815 (3 Stat, at Large, 244), giving concurrent jurisdiction to the circuit and district courts, of suits by any oflBcer of the United States suing under their authority, it may be brought in either of these courts. ' Ch. 30, § 37 : 1 Stat, at Large, 73. 206 Oegan-ization- of the District Coubts. PARTI, shall sit;' and to execute, throughout the district, all lawful precepts directed to him, and issued under the authority of the United States;" and he is em- powered "to command all necessary assistance in the execution of his duty, and to appoint, as there Hisdepn- shall be occasiou, one or more deputies," who are Ibie'bydu- declared to be "removable from office by the judge trict judge. of the district court, or the circuit court sitting m the district, at the pleasure of either." Marshal Any marshal, deputy marshal, or other ministerial fine and officers of the United States, having in custody any imprison- , . . • -i ^ _l ment for prisouer m Virtue of process issued by any court, suffering ludge OT commissiouer of the United States under escape, «. o the laws thereof, who shall voluntarily suflfer such prisoner to escape, shall be deemed guilty of a mis- demeanor, and, upon conviction, in any district or circuit court of the United States, shall be fined or imprisoned, or both, according to the discretion of the court, having respect to the nature of the crime charged against the prisoner, in a sum not exceeding two thousand dollars, and for a term not exceeding • two years. And the act is to be taken to apply as well to prisoners in custody charged with oflfenses . against a foreign government, and arrested under a treaty of extradition, as to prisoners charged with, or convicted of, offenses against the United States.' By the 28th section of the act of 1789, it is further provided, that when the marshal or his deputy shall be a party, the process in the suit shaU be directed to a disinterested person, appointed by the court or ' So much of tWs section " as is or may be construed to require the attendance of the marshals of aU the districts at the supreme court is repealed by an act of June 9, 1794, ch. 64, §. 7 ; and, this duty iS re- stricted to the marshal of the district in which the court shall sit, unless the attendance of the marshals of the other districts shall be required by special order of the court. » Act of June 21, 1860, ch. 64 : 12 Stat, at Large, 69. Oegakizatiok of the District Cquets. 207 any judge thereof, wL,o is authorized to execute and chap, lo. return such process. In case of the death of the marshal, his deputies Theoface ' -^ of deputy continue m office unless specially removed, and exe- ^^'ja^at^d cute the duties in his name, until another marshal ^^'■^^• shall be appointed and sworn ; and the bond of the deceased marshal continues as security against their defaults and misfeasances in the meantime. The responsibility of the deputies also continues, and may be enforced by the legal representatives of the marshal. ' 'And every marshal or his deputy. May exe- when removed from office, or when the term for cese after removaL which the marshal is appointed shall expire, shall have power, notwithstanding, to execute all such precepts as may be in their hands respectively, at the time of such removal, or expiration of office." The marshal is "answerable for the delivery t^ his Besponsi- successor, of all prisoners which may be in his cus- prfBoners. tody at the time of his removal, or when the term for which he was appointed shall expire, and for that purpose may retain such prisoners in his custody, until his successor shall be appointed, and qualified as the law directs." By the act of May 7, 1809, ch. 45, § 3 (2 Stat, at f^^^^"''^'- Large, 60), it is enacted, that whenever a marshal execute shall sell any lands, tenements or hereditaments, by virtue of process from a court of the United States, and shall die or be removed from office, or the term of his commission expire, before a deed shall be exe- cuted for the same to the purchaser : in every such case, the purchaser or plaintiff at whose suit the sale was made, may apply to the court from which the process issued, and set forth the case, assigning the reason why the title was not perfected by the marshal who sold the same ; and thereupon the court may order the marshal for the time being, to perfect the title and execute a deed to the purchaser, he pay- 208 Oegajnization" of the Disteict Coxtets. PART 1. His powers in eiecut- ing the laws of tlie United States. To receive Instruc- tions from tlie solici- tor of the treasury, and report to him. ing the purchase money and costs remaining unpaid ; and where a marshal shall take in execution any lands, &c., and shall die, &c,, before sale, or other final disposition made of the same ; in every such case, the like process shall' issue to the succeeding marshal, and the same proceedings shall be had, as if such former marshal had not died, &c.' By the act of February 28, 1795,' it is declared that the marshals of the several districts and their deputies shall have the same powers in executing the laws of the United States, as sheriffs and their deputies, in the several states, have by law in exe- cuting the laws of the respective States. ' The act of May 15, 1820,' makes it "the duty of such oflBcer of the treasury department, as the presi- dent of the United States shall, from time to time, designate for that purpose, as the agent of the treas- ury, to direct and superintend all orders, suits or proceedings, in law or equity, for the recovery of money, chattels, lands, tenements, or hereditaments, ' In a recent case in the supreme court the question 3.rose whether so much of the 28th section of the judiciary act of 1789 as confers on a person no longer in office, power to execute process which came to his hands as marshal, is not superseded and virtually repealed by the above mentioned section of the act of 1800. ft was a question, as the learned reader will observe, of no slight difficulty. The conclusion of the court was, that the two enactments were not absolutely repugnant, and that the former remained in force ; and it was accordingly held that a sale of land by a marshal, after his removal and the appointment of his successor, on a venditioni exponas which had come to his hands while in office, was a valid sale. DooUttle et al. v. Bryan et al., 14 Howard, 563. It will be perceived, therefore, that process remaining in the hands of the late marshal may be executed by hitn in virtue of the act of 1789 ; or the party at whose suit it was issued may, at his option, sue out new process to the new marshal, in virtue of the act of 1800. Indeed, this is expressly said by the court in the above cited case. ' Ch. 36, § 9 : 1 Stat, at Large, 424. This enactment is repeated, verbatim, in the act of July 29, 1861, ch. 27, § 7 : 12 Stat, at Large 283. » ' Act of May 15, 1830, ch. 108 : 3 Stat, at Large, 593. Organization of the District Courts. 209 in the name and for tlie use of tlie United States." chap. lo. And by the 8tli section of this act,. it is made "the duty of the marshals of the several judicial districts of the United States, within thirty days before the 'commencement of the several terms of the said courts (circuit and district courts), to make returns to the said agent of the proceedings which have taken place upon all writs of execution, or other process, which have been placed in his hands, for the collection of the money which has been adjudged and decreed to the United States, in the said courts respectively. The act passed ten years later' directed the appointment of an officer to be known as Solicitor of the Treasury, to whom it transferred all the powers and duties of the agent of the treasury ; and it empowers the solicitor of the treasury "to instruct the district attorney, marshals and clerks of the circuit and district courts of the United States, in aU matters and proceedings, appertaining to suits in which the United States is a party, or interested, and cause them, or either of them, to report to him, from time to time, any information he may require in relation to the same." Whether the above recited provision of the act of 1820, requiring returns from the marshals thirty days before each ensuing term, is stUl in force, is, to say the least, very doubtful. But it may, in virtue of the power conferred on the solicitor by the act of 1830, iC. he shall see fit, be reinstated and enforced by instructions from j;iim. And now, by a subsequent act, the attorney- And the general is "charged with the general superintend- general, ence and direction of the attorneys and marshals of all the districts in the United States and territories as to the manner of discharging their respective duties ; and the said district attorneys and marshals 'Act of May 29, 1830, ch. 153 : 4 Stat, at Large, 414. 27 210 OEGAsrizATiosr of the District Courts. PARTI, are hereby required to report to the attorney-general an account of their official proceedings, and. the state and condition of their respective offices, m such time and manner as the attorney-general may direct."^ This act does not, in terms, repeal the above men- tioned provisions of the prior acts, and though its language admits of an interpretation broad enough to cover the entire ground embraced by them, it probably was not designed to supersede them. The duty it enjoins on the attorney-general is limited to a general supervision and direction, as to all the duties of the marshal, and in both these respects it differs from the older act. It was passed soon after the breaking out of the rebellion, and congress may well" be supposed to have had in view, maialy, if not exclusively, the new and important interests growing out of the rebellion and requiring judicial cognizance, and, consequently, the agency of the district attorneys and marshals ; and its design may reasonably be supposed to have been to guard against errors on their part in point of law. They are to make such reports as the attorney-general may require, and follow such directions as he may see fit to give ; and it was probably taken for granted that he would be careful not to interfere, unnecessarily, with the more special and limited range of duty prescribed by the former acts. Salaries. To the Several marshals of a considerable number of disjtricts, a salary of two hundred dollars per annum was given by acts passed from time to time before the passage of this act, in addition to the fees allowed for specific services. But inasmuch as the act expressly declares that the compensation given by it "and no other compensation" shall in future be allowed, it would seem to follow that the^e . salaries were abrogated. . ' Act of August 3, 1861, ch. 37: 13 Stat, at Large, 385. Oeganizatiok of the Disteiot Courts. 211 This act, itself, liowever, -gives to the marshal of chap. lo. South Carolina a salary of two hundred dollars, and the prohibitory clause above quoted may, possibly, by construction, be limited to specific services. The marshal is entitled to the summary process of attachment to enforce the payment of his fees of office, upon demand and non-payment, against suitors in court, and also against the attorney, &c., where, by the lex. loci, the latter is responsible for such fees. Anonymous, 2 Gall., 101. See, also, Caldwell v. Jackson, 7 Cranch, 276.' 6. District Attorney. By the judicial act of September 24, 1789, it is hib duties, enacted that "there shall be appointed in each dis- trict a meet person, learned in the law, to act as attorney for the United States in such district, who shall be sworn or affirmed to the execution of his office, whose duty it shall be to prosecute, in shch district all delinquents, for crimes and offenses cog- nizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the supreme court in the district in which that court shall be holden."^ By the act of Felbruary 27, 1813, the foregoing provision is extended to the several territories of the United States.* These officers are appointed by the president, by ^^Jf °^ and with the advice and consent of the senate. oS*"^ The term of their office is four years ; but they are removable from office at pleasure.^ ' For several years past, annual appropriations have been made by congress, and placed at the disposal of the president, for the allowance of additional compensation to marshals for extra services in efforts to Suppress the slave trade. « Ch. 20, § 35 : 1 Stat, at Large, 73. ' Ch. 35, 3 Stat, at Large, 806. * Act of May 15, 1830, ch. 103, §1:3 Stat, at Large, 682. 312 Oeganization of the District Courts. PART 1. Vacancy in the office of district attorney maybe tempora- rily filled by circuit judge. To receiTe instruc- tions from tbe solici- tor of the treasury, and report to him. But in case of a vacancy in the office of district attorney in any circuit, the judge of such circuit may fill such vacancy, and the person so appointed shall serve until an appointment shall be made by the president, and the appointee shall be duly quali- fied, and no longer.^ The scope and general nature of the duties of this officer are sufficiently indicated by his official desig- nation, and the summary description of them con- tained in the original act above recited. But by subsequent legislation his duties have been more particularly defined, and for the purpose especially of insuring promptitude, efficiency and fidelity on his part, many regulations have been prescribed for his guidance and direction in their performance. His correspondence with the government is conducted mainly through the solicitor of the treasury, whose office was created by the act of May 29, 1830,^ and who, by that act, was invested with the powers and charged with the duties of the agent of the treas- ury, prescribed by the act of May 15, 1820.' The act of 1830 directs "that when any suit or action for the recovery of any fine, penalty or forfeiture shall be instituted or commenced, a statement of such suit or action shall be immediately transmitted to the solicitor of the treasury, by the attorney insti- tuting the same." The act also, as we have seen, empowers the solicitor to give instructions to the district attorneys ;* and they are required, at the, end of each term, to forward to him a full and particular statement of the cases in which the United States are a party, decided during the term, and of those ' Act of Marci 3, 1863, ch. 93 : 12 Stat, at Large, 768. ' Ch 107 : 3 Stat, at Large, 593. ' Ch. 153 : 4 Stat, at Large, 414. This act requires the attorney- general, at the request of the solicitor, to advise with and direct him as to the manner of conducting suits and prosecutions. *Yid6, tv^ra, "Mwrthal." Organization of the Distbict Courts, 313 still pending. Thej are required also, by the act of chap. lo. August 2, 1861, as we have seen, to make reports to to report the attorney-general, and conform to his instruc- tomeyien- , . . eral and tlOnS. conform to Mb Instruo- W henever the district attorney shall find it impos- "ons- sible to attend a court, he may engage some fit "Int'mb- person residing pear the place where the court is to wh°nf"' be held, to supply his place, who shall receive for his services the same compensation that the district attorney would have been entitled to if he had acted in person, provided the necessity of such substitution shall be satisfactorily shown to the secretary of the interior.' The fees and emoluments of the district attorneys Fees and emoln- are prescribed by an act of congress, a copy whereof mentB. may be found in the appendix to this work. By antecedent enactments small salaries, in addition to fees for- specific services, had been allowed to the dis- trict attorneys for most of the districts. The strong language of the recent act above referred to seems to infer an intention on the part of congress to abolish these salaries, though there may be ground for the opposite construction. But the provisions of this act relative to the compensation of district attor- neys have been essentially modified by a subsequent act allowing to these officers two per centum of all moneys collected or realized in any suit or proceed- ' As to the practical effect of this act, vide, supra, "McvrsTial." Im- portant duties are enjoined on these officers by acts passed in conse- quence of the rebellion. Among these are the acts of July 17, 1863, ch. 304 (13 Stat, at Large, 608), and the act of June 30, 1864, ch, 174 (13 Stat. at Large, 306), regulating proceedings in cases of prize; the act of March 3, 1863, ch. 67 (13 Stat, at Large, 698), to prevent and punish frauds; and the act of February 35, 1863, ch. 58 (13 Stat, at Large, 683), to provide a national currency. A notice, sufficiently comprehen- sive and minute to be useful, of the new duties and responsibilities developed by these acts on the district attorneys and marshals of the United States, would occupy too much space, and is accordingly omitted. 'Act of August 16, 1856, ch. 134, § 14 : 11 Stat, at Large, 51. 314 Oegaitization of the Distbict OotrETS. PAETi. ing arising under the revenue laws, conducted by ~ them in which the United States is a party, in lieu of the fees prescribed by the former act. And the same act further directs that in all suits or proceed- ings against collectors or other officers of the reve- nue, for any act done by them, or for the recovery of any money exacted by or paid to such officer for the United States, in which the district attorney or other attorney shall be directed to appear for such officers, or in which he shall so appear without any such directions, .as the act makes it his duty to do in all such cases as shall come to his knowledge, such attorney shall be allowed for his services such sum as the court shall certify to be reasonable and proper.' 7. Commissioners to take acknowledgments of 'bail, affidavits, dispositions, &c. [ Yide, supra, Organization of the Circuit Courts.]' ' Act of March 3, 1863, ch. 76, §§ 11, l2, 18 : 12 Stat. Large, 741. ' The times and places prescribed by law for the stated terms of the district court for the northern district of New York, are as follows : At the city of Albany, on the third Tuesday of January ; at the city of Utiaa, on the third Tuesday of March ; at the city of Boehest^, on the third Tuesday of May ; at the city of Buffalo, on the third Tuesday of August ; at the city of Aiiburn, on the third Tuesday of November ; " and, in the discretion of the judge of said court, one term annually at such time and place within the counties of St. Lawrence, Clinton, Jef- ferson, Oswego or Franklin, as the judge of the said district shall from time to time appoint, by a notice of at least twenty days to be pub- ' lished * * * which term shall be held only for the trial of issues of fact arising within the said counties." Act of July 4, 1864, ch. 345 ; 13 Stat, at Large, 385. See advertisement to this edition. / JUEISDIOTION OF THE DISTRICT OOUETS. 215 CHAP. 11. CHAPTEE XI. OF THE JUEISDICTIOK OF THE DISTEICT COURTS. By the judicial act of September 24, 1789, it is enacted : " That the district courts shall have, exclusive of the courts Criminal of the several states, cognizance of all crimes and offenses, Hon as that shall be cognizable under the authority of the United conferred. States, committed within their respective districts, or upon the high seas, where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hun- dred dollars, or a term of imprisonment not exceeding six months, is to be inflicted; and shall also have exclusive Exclusive original cognizance of all civil causes of admiralty and nsaiction maritime jurisdiction, including all seizures under laws of raityand impost, navigation or trade of the United States, where the causes and -I 1-T •Tin T seizures on seizures are made on waters which are navigable from the waters, &c. sea by vessels of ten or more tons' burden, within their respective districts, as well as upon the high seas ; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. And shall of seizures also- have exclusive origiaal cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall also have cognizance concurrent concurrent with the courts of the several states, or the circuit courts, as tion of _ suits by the case may be, of all causes where an alien sues for a tort only aliens ; and by the in violation of the law of nations, or a treaty of the United g?it«d •' states — States. And shall also have cognizance, concurrent as last when, mentioned, of all suits at common law, where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of two hundred dollars. And of suits shall also have iurisdiction, exclusive of the courts of the consuls, except, iSic. several states, of all suits against consuls, or vice-consuls, except for offenses above the description aforesaid. And Trial by the trial of issues in fact, in the district courts, in all causes ^^' 216 Jurisdiction" of the District Courts. PART 1. except civil causes of admiralty and maritime jurisdiction, shall be by jury." ' . K$stric- titbs im- posed by llth eection judicial act. Jarisdic- tion ex- tended. Captures within American waters. Criminal jurisdic- tion ex- tended. The eleventh section of the judicial act contains certain restrictions, affecting, however, as well the circuit as the district courts, and which have there- fore already been noticed in treating of the jurisdic- tion of the former courts. It has already been stated, also, that, by the act of March 3, 1815,^ the jurisdiction of the district courts (as also of the circuit courts), is extended to all suits at common law, in which the United States, or any officer thereof, under the authority of an act of con- gress, shall sue, without regard to the amount in controversy. The act of February 25, 1863,' authorizing bank- ing associations, gives jurisdiction, without regard to the amount in controversy, as well to the district as to the circuit coiirts of all suits by and against such associations. By an act passed in 1794, it was "enacted and declared that the district courts shall take cognizance of complaints by whomsoever instituted, in case of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof;" and this provision is re-enacted in the act of 20th April, 1818,* which embodies and repeals all the provisions of prior acts relative to our neutral relations. The very limited criminal jurisdiction conferred by the judiciary act of 1789 has since been extended to all cases not capital ; and, even in capital cases, ' Ch. 30, § 9 : 1 Stat, at Large, 73. See 'post, part 3, » Ch. 101, §4:8 Stat, at Large, 344. ' Ch. 58, § 59 : 13 Stat, at Large, 681. * Ch. 88, § 7 : 3 Stat, at Large, 447. JUBISDIOTIOK OF THE DISTRICT COUBTS. 217 indictments may b'e found in the district court to be chap. ii. transmitted for trial to the circuit court. ^ By an act passed July 13, 1866, eh. 184 (14 Stat, at Large, 152), the district judges, in common with the justices of the supreme court within their respect- ive, circuits, and also with the commissioners, are authorized to issue search warrants to any internal revenue officer, to search any premises, if such officer shall make oath, in writing, that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of such premises. We have already seen that all the courts of the Habeas United States are authorized by the judicial act to '''^^'' issue writs of scire facias, of habeas corpus,' "and ■ Act of August 3, 1843, §3:5 Stat, at Large, 516. ' By an act relative to the army of the United States, passed March 3, 1799, ch. 48, § 4 (1 Stat, at Large, 751), a special authority is given to the judges of the district courts to issue the writ of habeas corpus in a case not embraced within this general provision. It is enacted " that all non-commissioned officers, artificers, privates, and musicians, who are, and who shall be enlisted, and the non-commissioned officers, artificers, privates and musicians of the militia, or .other corps, who, at any time, may be in the actual service of the United States, shall be, and they,are hereby, exempted, during the time of their service, from all personal arrests, for any debt or contract. And whenever any non- commissioned officer, artificer, private or musician shall be arrested, whether by mesne process, or in execution contrary to the intent hereof, it shall be the duty of the judge of the district court of the United States. and of any judge of a covirt of a state, whto, by the laws of such state are authorized to issue the writ of Tiabeas corpus, respectively, on application by an officer, to grant a writ of Tiabeas corpus, returnable before himself; and upon due hearing and examination, in a summary manner, to discharge the non-commissioned officer, private or musician, from such arrest, taking common bail, if required, in any case upon mesne process, and commit him to the applicant or some other officer of the same corps." But by the subsequent act of March 16, 1803, ch. 9, § 28 (3 Stat, at Large, 136), it is enacted, " that no non-cotnmis- Bioned officer, musicia;n or private shall be arrested or subject to arrest, or be taken in execution, for any debt under the sura of twenty dollars contracted before enlistment, nor for any debt contracted aftfer onllst- 28 318 JUKISDICTIOK OF THE DiSTEICT COUSTS, PARTI , all other writs not specially provided for by statute, which, may be necessary for the exercise of their respective jurisdictions and agreeable to the princi- ples and usages of law," and that the power to grant writs of habeas corpus for the purpose of inquiry ' into the cause fof commitment is given also 'to each of the judges of the district courts, as well as to the several justices of the supreme court. The nature and extent of this latter power has been considered in treating of the jurisdiction of the supreme court. Ne exeat "It has been seen, also, that of these "other writs," 8n^ iDjnnc- i^^^^ ^^ ^g exeot and of injunction, may, by a sub- sequent act, be granted by any justice of the supreme court. And, by a still later act, entitled "An act to extend the power of granting writs of injunction to the judges of the district courts of the United States," these judges are invested with "as fall power to grant writs of injunction, to operate within their respective districts, in all cases which may come before the circuit courts within their respective districts, as is now exercised by any of the judges of the supreme court of the United States, under the same rules, regulations and restrictions, as are prescribed by the several acts of congress, establishing the judiciary of the United States, any law to the contrary notwithstanding: Provid&4i that the same shall not, unless so ordered by the circuit court, continue longer than to the cir- cuit court next ensuing ; nor shall an injunction be ment." 4jad by the last section of tjiia act, " so much of any act or acts now in force, as comes. mjWw Uie pimiev) of this act," is repealed ; " saving," &c. The only change in the prior law, made by this latter act, seems to be, that the persons named are rendered liable to arrest for debts of twenty dollars and upwards, contracted before enlistment. It will be teen that the act of 1799 purports to confer on the state judges the power to issue the writ of Tidbeas carpus. As. to the authority of con- gress to do this, 8ee,j)o«5, part 4, chapter 3. JlTRISDICTIOK OF THE DISTRICT COURTS. 219 issued by a district judge in any case where a party c hap, i i. lias had a reasonable time to apply to the circuit court for the writ. ' ' ^ The limitations imposed by the proviso, I pre- limitation sume, are to be considered as abrogated by the rules {'Jj'JJf'J^^ regulating proceedings in equity prescribed by the supreme court in 1842. These rules having been devised and promulgated in pursuance of plenary authority conferred by con- gress,^ it seems undeniable that they have the force of laws ; and that, when they come in conflict with a prior statute prescribing some regulation of a nature fairly within the scope of this authority, they are to prevail. Such, probably, was the design of congress ; and such, unq^uestionably, must have been the view of » the subject entertained by the supreme court. The fifty-fifth of these rules, after ordaining that injunc- tions to ste,y proceedings at law may, under certain specified circumstances, be obtained upon motion, without notice, further ordains, as follows: "But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing which may be ex parte, if the adverse party does not appear at the time and place ordered. In every case, where an injunction, either the common injunction or a special injunction, is awarded in vacation, it shall,, unless previously dissolved by the judge granting the same, continue until the next term of the court, or until it is dissolved by some other order of the court."* This rule, it will be seen, makes no distinction in point of authority •Act of February 13, 1807, ch. 13 : S Stat, at Large, 418. » See act of August 33, 184S, ch. 188, §6:5 Stat, at Large, 516. ' The word " or," I imagine, must either have been inadvBTtently^ uBed, or misprinted, inBtead of md. 220 JUEISDiCTION OF THE DISTRICT COUETS. PABTi. between the two judges composing the circuit court, each being alike empowered to grant an injunction, and the injunction having the same duration, when granted by the district judge, as by the justice of the supreme court. With regard to the other restriction contained in the proviso of the above recited enactment, limiting the power of the district judge to cases in which the party has not had rea- sonable time to apply to the court, it seems ec[uaUy clear that this, also, is abrogated by the rule. See, also, rule 3.^ Injunction The judges of the district courts are also invested ceedings with au independent authority of considerable on distress . , , . . i- ■ i . i warrant, importance to grant injunctions m a particular case, by the act of May 16, 1820, providing for the better organization of the treasury department.* By this act (§§ 2 and 3), if any collector of the ]^evenue, receiver of the public money, or other public officer, who shall have received the public money before it is paid into the treasury of the United States, or if any officer employed, or who has been employed in the civil, military or naval departments of the government, to disburse public money appropriated for the service of those depart- ments respectively, shall fail to render his accounts and pay over, in the manner and at the times required by law, or the regulations of the department 'Appendix. — ^Rules of Practice in Equity. These rules were promul- gated on the 3d of March, 1843. The time prescribed for them to take effect, on the 2d day of August next following, which, it will be observed, was prior to the 'passage of the act. No one, however, who compares some of these rules, ihe first and third, tat example, with the 5th and 6th sections of the act, will entertain a doubt that the rulei were framed in the confident expectation of precisely such enactments, , and that one object, at least, which the court had in view in designat- ing so remote a future day before which the rales were not to take effect, probably was to provide against the contingency of delay on the port of congress. ' Ch. 107 : 8 Stat, at Large, 592. Jurisdiction of the District CTourts. 221 to wMch lie is accototable, any sum of money c hap, i i. remaining in Ms hands, the agent of the treasury, upon the balance due from the.delinc[uent officer, being duly certified, is "authorized and required to issue a warrant of distress against such delinquent officer and his sureties directed to the marshal of the district in which," ' &c. And the marshal is to proceed to levy and collect such balance by distress and sale of the goods and chattels, and for the want thereof, by the sale of the lands of the delinquent, or his surety or sureties. And by the fourth section it is provided,: " That if any person shall consider himself aggrieved by any warrant issued under this act, he may prefer a bill of complaint to any district judge of the United States, setting forth therein the nature and extent of the injury of which " he complains^ and thereupon the judge aforesaid may, if in his opinion the case requires it, grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires ; but no injunc- tion shall issue till the party applying therefor shall give bond and sufficient surety, conditioned for the performance of such judgment as shall be awarded against the com- plainant, in such amount as the judge granting the injunc- tion shall prescribe; nor shall the issuing of such injunction in any manner impair the lien produced by the issuing of such warrant. And the same proceedings shall be had on such injunction as in other cases, except that no answer shaU be necessary on the part of the United States ; and if, upon dissolving the injunction, it shall appear to the satis- faction of the judge, who shall decide upon the same, that the application was merely for delay, in addition to the law- ful interest which shall be assessed on all sums which may be found against the complainant, the said judge is hereby authorized to add such damages as that, with the lawful ' This duty now appertains, as we have seen, to the solicitor of the treaawry. Saa JUBISDICTIOK OP THE DiSXBIOT CoUHTa. PAKT 1. interest, it shall not exceed the rate of ten per centum per ' annum, on the principal sum." The 5tli section provides, "That snch injtinction may be granted or dissolved by such judge, either in or out of court." ightof The 6th section gives to the applicant the right of ^Igeof" appeal to a judge of the supreme court, from the )urt. decision of the judge of the district court either refasing to issue the injunction prayed for, or dis- solving it after it has been granted. The direction to the agent to issue the warrant, it will be observed, is peremptory and imperative. He is "authorized and required to issue it." But by the last section of the act it is provided "that noth- ing in this act contained shall be construed to take away or impair any right or remedy which the United States now have, by law, for the recovery of taxes, ' debts, or demands." And according to the con- struction which seems to have been given to the act at the treasury department, it is discretionary with the agent either to resort to this summary proceed- ing, or to prosecute in the ordinary form of action. No appeal lies in behalf of the United States from the decision of the district judge granting an injunc- tion under this act. None is given by the act itself j nor does the act of March 3, 180S (ch. 40), extend to the case. The United States v. Nourse (6 Peters, 470). And a decree of the district judge in favor of the party against whom the warrant was issued, is conclusiv-e on the subject-matter of the contro- versy, and a bar to a suit at law to recover the bal- ance claimed in behalf of the United States. The United, States v. Wourse (9 Peters, 8). deter- By the act "for the government and regulation of prtuneBis seameu in the merchants' service," passed July 20, 1790, ch. 29 (1 Stat, at ]jarge, 132), the district judges are authorized and required, under certain circum- JUBISBICTIOlf OF THE Dlg|TBICT OOUBTS. 223 , stances, upon the report of persons skilled in mari- chap. n. time affairs to be by th.em appointed, to determine whether ships and vessels are fit to proceed to sea. The authority expressly conferred by law on the Newtnau, district as well as the other courts of the United *"" States, to grant new trials, to administer oaths, to punish for contempts, to make rules, and to hold to security of the peace and for good behavior, has already been stated. As already stated, the district courts are invested to enforce concurrently with the circuit courts, for the purpose im"^ °' of giving effect to certain treaty stipulations, with '^°°"^'" authority to enforce awards made by foreign consuls in controversies between masters of vessels and sea- men. The only remaining act affecting the jurisdiction ActofisiB; of the district courts, requiring notice, is one which, waters, as we shall see in the sequel, constitutes a new and important era in our national jurisprudence. It pur- ports to confer a large additional jurisdiction upon the district courts ; but upon being brought under the consideration of the supreme court on appeal, soon after its passage, it led, as we shall also see, to the judicial annunciation and establishment of a great principle which supersedes the designs of the act, and imparts to it a character the reverse of that which its title imports. It is entitled "An act exteTiding the jurisdiction of the district courts to certain cases upon the lakes and navigable waters, connecting the same." It consists of a single section, which is as follows : "5e it enacted" ' ^c, "That the district courts of the United States shall have, possess and exercise the same juris- diction in matters of contract and tort, arising in, upon, or concerning steamboats and other vessels of twenty tons burthen or upwards, enrolled and licensed for the coasting trade, and at the time employed in business of commerce 224 Jurisdiction of the Disteict Courts. PART 1. and nayigation between ports and places in different states and territories upon the lakes and navigable waters connect- ing the said lakes, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels employed in navigation and commerce upon the high seas, or tide waters, within the admiralty and maritime jurisdiction of the United States ; and in all suits brought in such courts, and in all such matters of contract or tort, the remedies and the forms of process, and the modes of proceeding, shall be the same as are or may be used by such . courts in cases of admiralty and maritime jurisdiction ; and the maritime law of the United States, so far as the same is or may be appli- cable thereto, shall constitute the rule of decision in such suits, in the same manner, and to the same extent, and with the same equities, as it now does in cases of admiralty and maritime jurisdiction ; saving, however, to the parties, the right of trial by jury, of all facts put in issue in such suits, where either party shall require it ; and saving, also, to the parties the right of a concurrent remedy at the common law, where it is competent to give it, and any concurrent remedy which may be given by the state laws, when such steamer or other vessel is employed in such business of commerce and navigation." ' The foregoing are all the statutable provisions relative to the jurisdiction of the district courts, and of the judges thereof, which it is deemed necessary to cite in this place! By recurring to the ninth section of the judicial act first above quoted, the student will perceive that it is by this that their multifarious and comprehen- sive jurisdiction is chiefly regulated and defined ; and that by it the district courts are . constituted courts of criminal jurisdiction ; of common law jurisdiction ; and, in civil cases, of admiralty and maritime jurisdiction. •Act of February 26, 1845, ch. 20 : 5 Stat, at Large, 726. JtJElSDICTlOK Of THE DISTRICT OOITETS, 226 1. Their criminal jurisdiction has already been c hap, u . described in treating of tMs branch, of the jurisdic' criminal tion of the circnit conrt.^ "on- 2. As courts of admiralty, the district courts are Admfaaity prize courts and instance courts. , t*™- Their prize jurisdiction was, however, originally mm jmis. much questioned. It was argued that this is not an g^J'^^^g^ ordinary inherent branch of the admiralty jurisdic-. tion, but an extraordinary faculty, from its nature operative only in time of war, and requiring, in England (although prize and instance jurisdiction are there, as here, exercised by the same person), a special commission upon the breaking out of war, to call it into action.* It was contended also, that, admitting prize jurisdiction to be comprized within the unqualified terms of the constitution, "all cases," &G., it was not embraced by those of the judicial act, delegating to the district courts juris- diction of "aU cinil causes," &c. Upon this question conflicting decisions were pro- nounced in the district and circuit courts for the district of Pennsylvania, and in those for the dis- trict of Maryland. But, upon its being brought before the supreme court in 1794, in the case of Glass V. T7ie Schooner Betsey (3 Dallas, 6), the court, after an elaborate and able argument at the bar, declared itself decidedly of opinion that the dis- trict courts possessed all the powers of a court of ■admiralty, whether considered as an instance or a prize court ; and in the case of Penhallow v. Doom, (3 Dallas, 54), decided at the next succeeding term, the court expressed its unshaken confidence in the soundness of this decision, and it has never since been drawn in question. Indeed, this jurisdic- " See, also, post, Part IV. 'See the important case otlAndo v. Rodney, Douglas, 613, note, upon the authority of which this argument was chiefly founded. 39 226 JUEISDICTION OF THE DISTRICT COTJRTS. PART 1. Extent of prize juris- diction. tion was expressly sanctioned and declared by the national legislature, in the prize act of June 26, 1812, by which, it is enacted, that, "in the case of all captured vessels, goods and effects, which shall be brought within the jurisdiction of the United States, the district courts of the United States shall have exclusive original cognizance thereof, as in civil causes of admiralty and maritime jurisdic- tion." " The district courts are, therefore, prize courts of admiralty, possessing all the powers inci- dent to their character as such under the laws of nations. To ascertain the precise limits of this jurisdiction, and the rules which regulate its exercise, recourse must be had to the works of elementary writers of acknowledged credit upon national law, and espe- cially to the reports of judicial decisions in this country and Great Britain. The cases of this de- scription which have arisen in our own courts, alone, are numerous ; and the learned and profound dis- quisitions to which they have given rise, will be found to embrace most of the principles appertaining to this branch of jurisdiction. They are stated sum- marily, but with characteristic precision and clear- ness, by Chancellor Kent, in the first volume of his Commentaries. The pithy laconicism of Sir Wil- liam Scott, "I know of no other definition of prize goods, than they are goods taken on the high seas, jure belli, out of the hands of the enemy, "^ quoted and adopted by the chancellor, could not have been Extends to designed to be strictly accurate. Indeed, the learned naval cap- turcBwhen- commeutator proceeds, at once, to show that the ever made. '- ' prize jurisdiction extends to all captures, whether on the high seas, or in ports, harbors, creeks or rivers, or even on land, if made by naval forces, or by land •oil. 107, §6:3 Stat, at Large, 759. ' The Tm FHends, 1 Rob. Ad. Rep., 338. JUKISDICTIOK OF THE DiSTEICT COURTS. 227 and naval forces acting in concert. This doctrine chap. n. "was asserted and maintained upon English, authority by the circuit court for the district of Massachusetts, in the early case of TTie Emulous, "^ and does not appear to have since been controverted. The above cited act of 1812, passed a few days after the declara- tion of war against Great Britain, investing the dis- trict courts with jurisdiction "in the case of all captured vessels, goods and effects, which shall be irougM within,''^ etc., may seem, literally, to embrace only captures made beyond the territorial limits of the United States ; but it can hardly be doubted that it was in fact the intention of congress to confer plenary jurisdiction extending to all captures cog- nizable, by the laws of nations, in the admiralty. ' The prize iurisdiction of the district courts extends Toinci- dental ques- to the subordinate questions, affecting as well neu- tio^s. ' 1 Gallison, 563. ' A like literal interpretation would also exclude prizes not brought into an American port ; but it is an established rule in England and in this country, that the actual presence of the prize is not necessary to the exercise of jurisdiction over the capture ; for if the prize be carried by the captor into a port of a foreign neutral nation, or even be lost by accident at sea, the court may, nevertheless, proceed to adjudicate upon the capture and the questions incident to it. See 1 Kent's Com., 358, 104, and the authorities there cited. The language of the act of 1812 is comprehensive enough to include captures as well upon the great lakes as upon the ocean. But at the date of its passage, and for many years after, the constitutional grant of admiralty jurisdiction was held to extend only to cases arising on the high seas and tide waters ; and it is not easy to discern how, consist- ently with this interpretation of the grant, captures made on inland waters, not navigable from the ocean, could be brought within it. As cases arising under the constitution and laws of the United States, there would have been no diflBculty in disposing of them in the manner pro- vided for cases of municipal seizures on land : but by what authority could congress declare them " civil causes of admiralty, and maritime jurisdiction?" " But, as we shall presently see, this narrow interpreta-. tion of the constitution has, at length, upon fuil consideration, and with entire unanimity, been discarded, as unreasonable and unsound, by the supreme court. 238 JT7BISDICTI0N OS THK DlSTEiei OoUBTa. PAKTi. trals as the belligerents, to which captures ineident- ally give rise. Belongs ft ig an established principle, that the right of exclnaiTCly . „ . , m to?B° °^ adjudicating all captures and questions of prize, be- country. jongs in general, exclusively to the courts of the captor's country. Jj' Invincible, 1 Wheat., 238 ; T^e Estrella, 4 Wheat., 298. Generally speaking, there- fore, this branch of the jurisdiction of our courts is Eiffhtof dormant when the nation is at peace. But it is the right and the duty of neutral nations to prevent their neutrality from being abused by belligerents for pur- poses of hostility against each other ; and, therefore, if a captured vessel is brought, or comes voluntarily^ infi^a prcRsidia of a neutral nation, the courts of such neutral nation may rightfully take cognizance of the capture, so far as to ascertain whether a trespass has been committed on its neutrality by the vessel which made the capture ; and if it appears that its neutral rights, as secured by the laws of nations, or declared by its own municipal regulations, have been violated, as for example, that the capture was made within its waters, or that the capturing vessel had been equipped in its ports, the capture may be declared illegal, and the property restored. The Estrella, 4 Wheat., 298 ; La Amistad de Hues, 5 Wheat., 385 ; The SanUssima, Trinidad, 7 Wheat., 283 ; The Ar- Togante Bareelones, ib., 496. This description of cases, therefore, forms an exception to the general principle above laid down. And so too captures made by the public armed vessels of the United States, in virtue of the authority conferred by the act relating to piracies, of 3d March, 1819,' and made perpetual by the act of January 30, 1823,^ though not strictly cases of prize ^w^e helli, are considered to be of prize jurisdiction. The Palmyra, 12' Wheat., 1; ' Ch. 77 : 3 Stat. »t.l<»J!g% 510. '001.7: id, 731. JUElSDICTIOir 0? TSE DISTRICT OOURTS. 229 Long since the foregoing paragraphs toucliing the c hap, i l prize jurisdiction were written, the memorable rebell- ion broke forth and with aU its horrors passed away ; and among the nnmberless extraordinary exigencies to which it gave rise, was supposed to be that of pre- scribing by statute a more full and exact code of judicial procedure in causes of prize, including the distribution of prize money. This was elaborately done by the act for these purposes, of June 30, 1864, oh. 174 (13 Stat, at Large, p. 306), to a large extent repealing, superseding or modifying several previous kindred enactments. The proceedings prescribed by this act belong to the admiralty branch of the national jurisprudence, and are, moreover, to a large extent sui generis as a branch even of admiralty procedure. It may reasonably be hoped, moreover, that it wUl be long before the powers it confers, already beginning to slumber upon the pages of the statute books, will again be evoked. These are abundant reasons for abstaining from further notice of them, either here or in the second part of this work, to which they would more appropriately be- long. As instance courts of admiralty, the district courts instance have cognizance of aU civil causes (other than those won. of prize) of admiralty, as contradistinguished from common law, jurisdiction. The most important class of these cases, so far as seizures they have as yet been authoritatively and definitively we waters. determined, is that of all seizures under laws of im- post, navigation, or trade, of the United States, where the seizures are made on the high seas, or on waters which are navigable from the sea by vessels of ten or more tons burden. This class, and this alone, it will be recollected, is expressly designated in the 9th section of the judicial act, above recited. There are, however, other laws prohibiting acts of a 230 JUKISDICTION OJ THE DISTRICT COTJETS. PART 1. maritime character, and subjecting tlie property of the offender to forfeiture. Of this description is the act of April 20, 1818,' relative to our neutral rela- tions, and the acts for the suppression of the slave trade, jnrisdic- But though it may now be regarded as definitely seizures Settled, that cases of this nature are cognizable on questioned. , ^ u the admiralty side of the district courts, the con- struction which has thus been given to the constitu- tion and the judicial act, was, at first, repeatedly and earnestly controverted ; and serious doubts have, I perceive, lately been expressed of its soundness, by a learned jurist, whose opinions are, throughout this country, universally and most justly regarded with Importance Very high respect.^ The question was one of great of the qnes- ,• ^ • , ■, tion. practical importance, because upon its decision it depended whether the mode of proceeding in these cases was to be according to the civil or the common law ; that is, whether the trial should be by the court or a jury.,' The judicial act, as we have seen, invests the district courts with "exclusive original cognizance of all civil causes of admiralty and mari- Gronndsof time ] urisdictlou, includina aR seizures,'^ &c. One objection. -, j, ■, • i- ,-, , ground of objection was, that congress did not intend to declare such seizures to be of admiralty jurisdic- tion. The word "including," it was argued, was not to be construed cumulatively as referring to "jurisdiction," but to "cognizance," and that con- ■ Cli. 88 : 3 Stat, at Large, 447. ' Kent's Commentaries upon American Law, voL 1, 350. " By the process act of May 8, 1793 (ch. 34, § 2 : 1 Stat, at Large, 275), it is enacted that the forms and modes of proceeding in siiits of admiralty and maritime jurisdiction, shall be according to the principles, rules and usages, which belong to courts of admiralty, as contradistinguished from courts of common law. And, indeed, without this provision, the courts would probably have considered themselves bound to adopt the course of proceeding prescribed by it, as implied by the terms in which this branch of jurisdiction is conferred. JUEISDIOTION OF THE, DISTRICT COUETS. 231 gress meant only to declare such seizures to be cog- chap. u. nizable in tlie district courts. TMs construction, it was said, was corroborated by the next succeeding clause, " saving to suitors, in all cases, the right of a common law remedy, when the common law was competent to give," clearly indicating an intention not to extend the admiralty jurisdiction beyond its proper limits. In England, cases of this nature were, and for a long period had been, cognizable, not in the admiralty, but in the court of exchequer ; and, though the proceeding was in rem, it was according to the course of the common law, and the trial was by jury. The common law, therefore, did afford a remedy, through the instrumentality of the court of excheq- uer ; and it was as competent for congress to ordain a court of exchequer, as a court of admiralty ; as ^indeed it had done for the adjudication of seizures of land, and on waters not navigable from the sea, by boats of ten tons burden. But the objection was supposed to rest on a still stronger ground. As "cases arising under the laws of the United States," no doubt could be entertained of the power of con- gress to declare them cognizable in the district courts ; but unless, according to the just interpreta- tion of those terms in the constitution, they were cases "of admiralty and maritime jurisdiction," congress had no authority to declare them to be so, and thus exclude the privilege of a trial by jury. That such was their character was denied, upon the ground that they were cases of common law jurisdic- tion in England, by reference to whose laws and to the structure of whose judicatories, it was said the terms of the constitution ought to be construed. It , was contended, moreover, that, admitting them, in the language of the constitution, to be cases of admi- ralty and maritime jurisdiction, they were not ciml ■ 232 JtraisDicTiON- op the Dibtrict OotrMS. PARTI , causes according to the terms of the judicial act. It was admitted, however, that all seizures of this nature were cognizable in the colonial vice^admi- ralty courts of this country, and of the West Indies. This question was first presented for decision in the supreme court in the case of La Vengeance, a French privateer, seized and libeled for exporting arms and ammunition to a foreign country, in contravention of the laws of the United States. The court, after advisement, pronounced the foUowii^g judgment : ' ' We are perfectly satisfied upon the points that have been agitated in this cause. In the first place we think it a cause of admiralty and maritime jurisdic- tion. The exportation of arms and ammunition is, simply the offense ; and exportation is entirely a water transaction. It appears, indeed, on the face of the libel, to have been commenced at Sandy Hook, which certainly must have been upon the water. In the next place we are unanimously Of opinion, that it is a civil cause : It is a process of the nature of a libel in rem; and does not in any degree touch the person of the offender. In this view of the subject, it follows, of course, that no jury was necessary, as it was a civil cause." ' 3 Dallas, 297. This question was afterwards several times agitated in cases of seizure under various laws, but the supreme court have uniformly sustained the early decision in this case of La Vengeance. The United States v. The Schooner Sally, 3 Cranch, 406 ; The Same v. The Schooner Betsy, 4 Cranch, 433 ; The Samuel, 1 Wheat. , 9. The Octama, id., 30; The Sarah, 8 Wheat, 391. The question must, therefore, it is presumed, be regarded as definitively settled ; though it would cer- tainly have been more satisfactory had the course of judicial reasoning, which originally led to its decis- ' Criminal causes in the EngliBh Admiralty were tried by jury. JUBISDICTION OF THE DiSTEICT COUETS. 233 ion,' been stated witli more of that fullness, per- chap, h. spicuityand precision, ■ by wMch the later decisions of the supreme court are in general so eminently • distinguished. In order to give jurisdiction to the district court of seiznres, ^ " where cog- any particular district, it is sufficient if the seizure sizable, was made in such district, without regard to the place where the forfeiture accrued. Keen v. The United States, 5 Cranch, 304; see also 1 Paine' s Rep., 40. But where the seizure is upon the high seas, and vaiidBub- ', - X o 7 sisting seiz- Without the limits of a iudicial district, the case is nreneces- " ' sary. cognizable in any district into which the property may be brought. The Sloop Abby, 1 Mason, 360. There must be in all cases a good subsisting seizure at the time when the libel or information is filed ; and, therefore, where the collector, in pursu- ance of directions from the treasury department, had explicitly relinquished the seizure, and restored the property before such proceeding had taken place, " jurisdiction was held not to have attached. The Brig Ann, 9 Cranch, 289 ; see also The Josef a Segunda, 10 Wheat., 312. But to constitute an abandonment after seizure there must be an unequivocal act of dereliction. The Ahby, 2 Mason, 360. The jurisdiction of the districts courts, in cases, of Decisions seizure, is exclusive of all other courts ; and the seizure con- ' elusive. general rule is, that their decisions upon questions of forfeiture, whether of condemnation or acquittal, unless reversed upon appeal, are conclusive, not only with respect to the title to the property seized, but ' In the subsequent case of the U. 8. v. The Betsy (4 Cranch, 443, note), it was remarked by Chase, J., that the case of La Vengeance was well considered; and he took occasion to add that the " reason of the legislature for putting seizures of this kind on the admiralty side of the court was the great danger to the revenue if such causes should be left to the caprice of juries." 30 234 JUEISDICTION OF THE DiSTBICT COURTS. PAET 1. as it regards the incidental rights and responsibilities of the parties concerned. * Therefore, though a collector or other officer acts at his peril in making a seizure, and is liable to an action in a state court for an unwarrantable seizure, the right of recovery against him depends, subject to certain qualifications, absolutely on the decision in the courts of the United States upon the question of forfeiture. A decree or judgment of condemna- tion is conclusive in his favor, and, on the other hand, if the seizure is adjudged tortious, such decision is equally conclusive against him in an action for damages. Qelson et al. v. Hoyt, 3 Wheat., 246; . Slocum V. Mayierry, 2 Wheat., 1 ; see also Hose v. Mimley, 4 Cranch, 241. This doctrine, independent of statutable provisions, would, in general, be appli- cable in its full extent to cases of seizure ujider mere municipal laws, as the revenue laws, insomuch that after a decision in the district court in favor of the claimant upon the question of forfeiture, the seizing officer could not protect himself in an action for damages by proof of probable cause. The Palmyra, Certificate 12 Wheat., 1, 17. But in order to mitigate the of reason- ..„.,.. . awe^cauae Operation of this rigorous rule against public officers whose duty it' is to make seizures, it was provided, by the act of 24th February, 1807, "that when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares or mer- chandise made by any collector or other officer, under any act of congress authorizing such seizure, and judgment shall be given for the claimant or claimants, if it shall appear to the court before whom such prose- cution shall be tried, that there was a reasonable cause of seizure, the said court shall cause a proper certificate or entry to be made thereof ; and, in such case, the claimant or claimants shall not be entitled to costs, nor shall the person who made the seizure, JtlRISDICTIOK OF THE DiSTKICT COTTRTS. 235 or the prosecutor, be liable to suit, action or judg- c hap, u . ment on acconnt of such, seizure or prosecution ; Pro- mded, That the ship or vessel, goods, wares or mer- chandise, be, after judgment, forthwith returned to such claimant or claimants, his, her, or their agents."* A certificate granted in pursuance of this act, in Grantor . " . ^ denial of case 01 acquittal, is a positive bar to an action against certificate ., conclUBlve. the seizing officer, while, by an acquittal without such certificate, the seizure is definitely settled to be a tortious act. Oelson et al. v. Hoyt, 3 Wheat., 246. This provision is copied verbatim from the 89th section of the act relative to the collection of duties, of March 2, 1799,^ with the addition only in the first clause of the words, "made by any collector or other officer, under any act of congress authoriz- ing such seizure." Seizures under laws authorizing the exercise, to a AppiicaWs to Beizures Umited extent, of belligerent rights, or quasi bel- g^gj^J"® ligerent rights, as those relative to piracy, are con- sidered as analogous, in this respect, to captures strictly jure telli; and proof of probable cause is admissible in defense against a claim for damages, without any statute to warrant it. The Palmyra, 12 Wheat., 1, 17 ; The Marianna Flora, 11 Wheat., 1. The general doctrine that the decisions of a court Decieions " 11°'' 'or6'J?n of admiralty are conclusive, is applicable as well to ^^|™^y . the judgments of foreign courts, as to those of our oinsive. own country. But it is well settled that the tribu- nals of one country may, nevertheless, examine the jurisdiction of those of another, and disregard their decisions as coram non judice, when it appears that they acted without authority. . The point was lumi- nously discussed and adjudicated in the case of liose V. Himley, 4 Cranch, 241. The question in this case respected the effect of the sentence of a French court ' Ch. 19 : 2 Stat, at Large, 433. ' Cb. 33 : 1 Stat, at Large, 60S. 236 Jurisdiction- of the Distkiot Courts. PABTi. of admiralty in St. Domingo, condemning an Ameri- can vessel and cargo, and purporting to be in con- formity witli a municipal regulation, prohibiting aU intercourse witii the revolted blacks, and authorizing the seizure of all vessels found within two leagues of the coast, though in fact the seizure was in that case made more than ten leagues from the coast, and the vessel was never carried within the territorial limits of France ; and it wag held to be competent for the courts of this country not only to examine the coti- stitution of the court in which the decree of con- demnation was pronounced, in order to ascertain whether, so far as its powers depended upon the law of nations, it possessed those which it professed to exercise, but to inquire also concerning the actual situation of the particular thing on which the sentence had passed, for the purpose of deciding whether that thing was in a state which subjected it to the jurisdiction of the court passing sentence. It was added, however, that, so far as the authority of a foreign court depends on municipal regulations, it is the judge of its own jurisdiction, and its decision is to be respected, provided the jurisdiction exer- cised be such, that its sovereign had a right, by the laws of nations, to confer it. Cargo aii- A question somewhat analdgous to this, though able from rcstuig upon peculiar grounds, was decided in the when.' case of Slocum V. Mayherry, 2 Wheat., 1. By the embargo act of April 25, 1808,' the collectors of cus- toms were "authorized to detain any vessel osten- sibly bound vdth a cargo to some other port of the United States, whenever, in their opinion, the inten- tion was to violate or evade any of the provisions of the acts laying an embargo, untU the decision of ■ the President of the United States be known there- upon." ' Ch. 66, § 11 ra Stat, at Large, 49D. JUBISDICTIOISr OF THE DISTRICT OOUKTS. 237 In virtue of this act, the surveyor of customs of chap. u. the port of Newport, under the direction of the col- lector, had seized a vessel with a cargo on board, ostensibly bound to some other port of the United States. The owners of the cargo brought an action of replevin for it& recovery, and having obtained a judgment in the supreme court of Ehode Island, the case was removed to the supreme court of the United States by writ of error. It was contended by the counsel for the plaintiff in error first, that the act under which the seizure was made justified the seizure of the cargo as well as of the vessel ; and, second, that the case being brought under the cognizance of the United States, and within the jurisdiction of their courts, by the just exercise of an authority by one of their officers, the state court had no right to interfere and arrest the seizure by its process. On the part of the defendant in error it was, wtenthe among other things, insisted that the act of congress eSbjeato" "^ , seizure, it authorized the seizure and detention of the vessel jb recover- able in only, and conferred no authority for the seizing ^'**« «""*■ officer to detain the cargo, beyond the momentary detention unavoidably incident to the seizure and securing of the vessel ; so that, as to the cargo, the officer in continuing the detention, could not be said to be acting under any law of the United States ; that the subject matter of the suit in the state court presented nothing for the judicial powers of the United States to act upon, and that there was, there- fore, no impediment to the interposition of the State court to protect the rights and restore the property of the defendant in error ; and of this opinion were the supreme court. The judgment of the state court was, therefore, affirmed. It is not easy, perhaps, to deduce from this case any definite general principle, which, while it is 238 JUEISDICTIOK OF THE DiSTKICT OOTJETS. P A^tT 1. strictly warranted by the case itself, will not appear to impinge upon other unquestionable doctrines. The case, in truth, was an embarrassing one ; and that it was felt to be so by the court, is inferable from the cautious manner in which they have en- deavored to guard against misapprehension, by the distinct assertion of certain' principles, which it might otherwise be supposed, were impugned by their decision. othemiae "The iudiciary act," said the Chief Justice, state court />'.'■' ' Sterfere " gi"^6S to the federal courts exclusive cognizance of all seizures made on land or on water. Any inter- vention of a state authority which, by taking the thing seized out of the possession of the officer of the United States, might obstruct the exercise of this jurisdiction would unquestionably be a violation of the act ; and the federal courts, having cognizance of the seizure, might enforce a redelivery of the thing, by attachment or other summary process, against the parties who should divest such a possession. The party supposing himself aggrieved by a seizure cannot, because he considers it tortious, replevy the property out of the custody of the seizing officer, or of the court having cognizance of the cause. If the officer has a rigJit, under the laws of the United States, to seize for a supposed forfeiture, the ques- tion whether that forfeiture has been actually in- curred belongs exclusively to the federal courts, and cannot be drawn to another forum ; and it de- pends upon the final decree of such courts; whether such seizure is to be^deemed rightful or tortious. If the. seizing officer should refuse to institute pi-oceed- ings to ascertain the forfeiture, the district court may, upon the application of the aggrieved party, compel the officer to proceed to adjudication, or to abandon the seizure." "This, however, being an action which takes the thing out of the possession of Jurisdiction of the Disteict Courts. 239 • tlie officer, could certainly not, be maintained in a c hap, u . state court, if, by the act of congress, it was seized for the purpose of Ming proceeded against in the federal court. ^^ "Had this action been brought for the vessel instead of the cargo, the case would have been essentially different. The detention would have been by virtue of an act of congress, and the jurisdiction of a state could not have been sustained. But the action having been brought for the cargo, to detain which the law gave no authority, it was triable in the state courts." The district courts, as instance courts, also have JnriBaic- cognizance of marine torts, and of marine contracts, marine contracts But the task which devolved upon the courts, of ?na torts, ^ 'its extent ; determining the precise limits of their powers with opiSa"^ respect to these subjects, has been found exceedingly jng""^' perplexing ; has led to many conflicting decisions in the district and circuit .courts ; and, even now, can hardly be said to have been fully accomplished. Several circumstances conspired to cause the embar- rassment which has been experienced. The language of the constitution, as we have seen, is general, that "the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction ; and that of the judicial act is equally so, except that, instead of conferring upon the district courts jurisdiction of all cases, it confers it only in "all civil causes of admiralty and maritime jurisdiction-;" and except, also, that it specifies one description of the causes, viz. : seizures ; as we have seen above. The point to be settled, therefore, was, what causes are of admiralty and maritime jurisdic- tion. It was a question of great practical import- ance, and the controversy to which it led is one of the most remarkable in the history of our national jurisprudence. It is worth while, therefore, to devote a few pages to its elucidation. 240 JUBISDIOTIOIT OF THE DISTRICT COURTS. PART 1. In all the considerable maritime countries of conti- oatiineof nental Europe there Were courts corresponding sub- versy"'' "*' stantiallj with the courts of admiralty in England, and administering justice in common with them, according to principles, in their nature, of universal applicability, but yet differing from them, in some degree, both in regard to their structure and the scope of their power. Colonial vice-courts of admi- ralty also existed in this country before our .separa- tion from Grreat Britain, established by the crown and possessing a jurisdiction conferred by the com- missions under which they acted and by acts of par- liament, confessedly exceeding that of the admiralty in England. Under these circumstances it was not easy to decide even by what standard this general grant of jurisdiction was to be measured. And, accordingly, we find that whUe one judge has expressed the opinion that our coiirts are to be governed in their decisions by the maritime code we possessed anterior to the revolution, and by the particular laws since established by our own government, i a second has said that the words of the constitution declaring that the judicial power shall extend to all cases of admi- ralty and maritime jurisdiction must be taken to refer to the admiralty and maritime jurisdiction of England (4 Dallas, 426, ,429) ; a third, referring to the admiralty courts of other nations, has asked, if the district court, by its act of organization, has exclusive original cognizance of all civU causes of admiralty and maritime jurisdiction, why should it be restricted in its cognizance to such cases as belong to the Eng- lish courts of admiralty as instance courts more than those of any other nation? (1 Paine' s Eep., Ill, 117), and a fourth has strongly intimated, that recourse may rightfully be had for guidance and direction to ' Peters's Ad/ Decisions, 113. JUBISDICTIOK OF THE DISTRICT COURTS. 241 the codes and usages of all maritime nations, includ- chap, u. ing our own country in its colonial state. 2 Gallis., 398. It was, however, most natural and convenient at contest least, to refer to the records of English jurisprudence English for a just interpretation of the terms of the grant But unfortunately, their import in that country had been fluctuating for centuries. The English court of admiralty was of great antiquity, and its powers ori- ginally were very extensive. But during the reign of Richard II two statutes were passed, intended to limit and define its powers, which, according to the interpretation given to them by the courts of com- mon law, greatly abridged its former jurisdiction. This construction was, however, strenuously contro- verted by the civilians, and a long and acrimonious contest ensued, in the coujse of which numerous writs of prohibition were issued by the court of king' s bench, to restraia the exercise by the admiralty, of powers claimed on the one side and denied on the other. At length, however, in 1632, an agreement was entered into for the adjustment of this harassing controversy, signed in presence of the kiag, by all the judges of the court at Westminster, and by the judge of the court of admiralty, and ratified by the king in councU. To the terms of this compromise the rival jurisdictions appear for a while to have con- formed ; but its authority was afterwards denied and disregarded by the common law courts. See the case of De Lovio v. Boit, 2 GaUis., 398 ; the arguments of counsel and the notes of the reporter in the case of United States v. Bevins, 3 Wheat,, 336 ; note "a" appended to the case of The United States v. Wilt- herger, 5 Wheat., 106 ; the opinion of Mr. Justice Johnson in the case of Hamsai/ v. AUegre,12Wh.e3it., 614 ; and the numerous authorities there cited. 31 243 JUBISDICTION OE THE DISTRICT OOUBTS. PABT 1. Under tMs state of the law, it is not surprising that learned judges should have entertained discordant views of the extent of the jurisdiction of the admi- ralty courts of the United States. To what extent this has occurred may be learned from the opinions of Mr. Justice Stoet in the case of De Lovio v. Boit, and Mr. Justicfe Johnson in the case of Bamr sey V. Allegre; the attentive study of which will enable the student to obtain a pretty fuU view of the debatable ground pertaining to this subject. These opinions both bear upon their face the evidence of distinguished ability and profound research ; but they stand in strong and irreconcilable opposition to each other. The learned judges appear to entertain very different sentiments relative to the comparative merits and value of the common law and admiralty tribunals, and consequently of the policy of extend- ing or restricting the remedies afforded by them respectively; and considering the diversified and •uncertain character of the tests to be applied to the subject, it is neither unreasonable nor disrespectful to suppose, that this circumstance may have had some influence upon their particular conclusions. De LoTio In the case of De Lovio v. Boit, the question was, whether a suit could be maintained on the admiralty side of the district court upon a marine policy of insurance. The novelty and importance of the question induced the court to enter into a thorough original examination of the whole jurisdiction of the admiralty. The result of this examination with respect toi the English court of admiralty, was summed up in the following propositions : 1. That the jurisdiction of the admiralty, untU the statutes of Eichard II, extended to all maritime contracts, whether executed at home or abroad, and to all torts, injuries and offenses on the high seas, and in ports and havens, as far as the ebb and. flow of the Jurisdiction" of the District Courts. 243 tide. 2. That the common law interpretation of c hap, i i. these statutes abridges the jurisdiction to things wholly and exclusively done upon the sea. 3. That this interpretation is indefensible upon principle, and the decisions founded upon it are inconsistent and contradictory. 4. That the interpretation of the same statutes by the admiralty, does not abridge any of its ancient jurisdiction, but leaves to it cog- nizance of all maritime contracts, and of all torts, injuries and offenses upon the high seas, and in pprts as far as the tide ebbs and flows. 5. That this is the true limit which, upon principle,. would seem to belong to the admiralty ; that it is consistent with the language and intent of the statutes ; and is supported by analogous reasoning and public convenience, and a very considerable weight of authority. That, under all the circumstances, the courts of law and admiralty in England are not so tied down by a uniformity of decisions, that they are not at liberty to entertain the question anew, and to settle the doctrines upon their true principles ; and that this opinion is supported by some of the best .elementary writers in that kingdom. But, admitting the binding authority in England, of the common law decisions, affecting the jurisdic- tion of the admiralty, the court was of opinion that "in the United States we are at liberty to re-examine the doctrines, and construe the jurisdiction of the admiralty upon enlarged and liberal principles." Having arrived at this general result, Mr. Justice Stoet proceeded to discuss the question, what is the true interpretation of that clause of the constitution, " aU cases of admiralty and maritime jurisdiction"? If we examine the etymology or received use of the words "admiralty" and "maritime jurisdiction," we shaU find that they include jurisdiction of all things done upon and relative to the sea, or in other 244 JUKISDICTION OF THE DiSTBIOT COUETS. PARTI, words all transactions and proceedings relative to commerce and navigation, and to damages and inju- ries upon the sea. In all tlie great maritime nations of Europe, the terms "admiralty jurisdiction" are uniformly applied to the courts exercising jurisdic- tion over maritime contracts and concerns. We shall find the terms just as familiarly known among the jurists of Scotland, France, HoUand and Spain as of England, and applied to their own courts pos- sessing substantially the same jurisdiction as the \ English admiralty in the reign of Edward III. If we pass from the etymology and the use of these terms in foreign countries, the only expositions of them that seem to present themselves are, that they refer : 1. To the jurisdiction of the admiralty as acknowledged in England, at the American revolution ; or, 2. As there acknowledged at the emigration of our ancestors ; or, 3. As acknowledged and exercised in the United States at the American revolution ; or, 4. To the ancient and original juris- diction, inherent in the admiralty of England, by virtue of its general organization. Neither the first nor the second of these tests were considered admissible. To adopt them, it was said, would be to apply to our own courts statutable pro- vision^, designed only to regulate the high court of admiralty in England, and not extending in terms or in effect to the colonies. It would moreover involve qualifications of jurisdiction which are arbitrary in themselves, inapplicable to our situation, and con- tradictory to the commissions and practice of the colonial vice-admiralty courts. And even if we were to adopt this exposition, the question would still remain whether we are to be governed by the doc- trines of the common law, or of the admiralty. With respect to the third exposition, viz. : the admiralty jurisdiction acknowledged and exercised Jurisdiction- of the Disteict Coubts. 245 in the United States at the American revolution, it c hap, u . was remarked, that, " tested by this exposition, the admiralty jurisdiction of the United States would be as large as its most strenuous advocates ever con- tended for." It was observed, also, that the constitution not only confers admiraliy jmisddction, but the word " mari- time' ' is superadded, seemingly, ex industria, to remove every latent doubt. The disputes and dis- cussions respecting what the admiralty jurisdiction was, cotQd not but be well known to the framers of that instrument. One party sought to limit it by locality; the other by the subject matter. It was wise, therefore, to dissipate all question, by giving cognizance of all "cases of maritime jurisdiction," or, what is precisely equivalent, of all maritime causes. Upon any other construction, the word "maritime" would be mere tautology; but in this sense it has a peculiar and appropriate force. The language of the constitution, it was supposed, would, therefore, warrant the most liberal interpre- tation; and it might "not be unfit to hold, that it had reference to that maritime jurisdiction which commercial convenience, public policy, and national rights have contributed to establish, with slight local differences, over all Europe : that jurisdiction which, under the name of consular courts, first established itself upon the shores of the Mediterranean, and, from the general equity and simplicity of its pro- ceedings soon commended itself to all maritime, states ; that jurisdiction, in short, which, collecting the wisdom of the civil law, and combining it with the customs and usages of the sea, produced the venerable Consolato del Mare, and still continues, in its decisions, to regulate the commerce, the inter- course, and the welfare of mankind." 246 JUEISDICTION- OF THE DlSTBIOX OOUBTS. PARTI. At all events, it was said, there was no solid reason for constructing the terms of tlie constitution In a narrow and limited sense, or for ingrafting upon them the restrictions of English statutes, or decisions at common law. The doctrine that would extend the statutes of Kichard and the narrow and per- plexed doctrines of the common law to the present judicial power of the United States, was declared to be little short of an absurdity ; and irreconcilable, moreover, with the decisions of the courts of the United States, and particularly with the decisions of the supreme court, declaring all seizures under the laws of impost, navigation and trade, on waters navigable from the sea, by boats of ten or more tons burden, within the districts of the United States, as well as upon the high seas, to be causes of admiralty and maritime jurisdiction, although it was held by the courts of common law in England, after the statutes of Eichard, that the admiralty had no juris- diction of things done within the ebb and flow of tide, in ports, creeks and havens. And considering the advantages resulting to the commerce and navi- gation of the United States, from a uniformity of rules and decisions in all maritime questions, the conclusion was, that national policy as well as judi- cial logic require the clause of the constitution to be so construed, as to embrace all maritime contracts, torts and injuries, or, in other words, to embrace all those causes, which originally and inherently belonged to the ad/miralty, before any statutable restriction. With regard to torts and injuries, the admiralty jurisdiction over them was necessarily bounded by locality ; but-it was held to extend ' ' over all contracts (wheresoever they .may be made or executed, or whatsoever may be the form of the stipulations). JUEISDICTIOSr OF THE DISTRICT OOURTS. 247 which, relate to the navigation, business or commerce c hap, u . of the sea." Finally, Mr. Justice Story proceeded to the inquiry, what are properly to be deemed "maritime contracts." "In this particular," he observed, "there is little room for controversy. All civilians and jurists agree, that in this appellation are included, among other things, charter parties, affreigJitments, marine hypothecations, contracts for marine sermce in the building, repairing, supplying and navigat- ing ships ; contracts between part owners of ships ; contracts and quasi contracts respecting averages, contributions and jettisons, and policies of insur- ance. And in point of fact," he added, "the admi- ralty courts of other foreign countries have exercised jurisdiction over policies of insurance as marine contracts ; and a similar claim has been uniformly asserted on the part of the admiralty of England." The judgment of the court accordingly was, ' ' that policies of insurance are within (though not exclu- sively within) the admiralty and maritime jurisdic- tion of the United States." This decision was pronounced in 1815 ; and the doctrine of it was re-asserted and acted upon in the same court in 1822, in the case of Peele et al. v. The Merchants Insurance Company, 3 Mason, 27. The case of Ramsey v. Alleqre, in which the above HameeyT. ' _ , ,. Allegre. mentioned opinion of Mr. Justice Johnson was deliv- ered, was decided in 1827. It was a suit by libel in ' pers'onam, originally brought in the district court for the district of Maryland, to recover of the defend- ant, as owner, ship's husband or a consignee af the schooner Dorothea, for work and labor performed, and materials furnished for the use of the schooner to equip and prepare her for a voyage on the high seas. The district court dismissed the libel upon the ground that the libelant had waived his right to 248 JUBISDICTIOIT OF THE DISTRICT OOTTBTS. PAHT 1. resort to that court as an instance court of admiralty, by the acceptance of a promissory note for the amount of his claims. This decision was affirmed in the circuit court, and came before the supreme court by appeal from the decree of affirmance. Upon the authority of the case of TTie General 8mit7i (4 Wheat. , 438), it was assumed by the counsel for the appellant, and-tacitly admitted by the counsel for the respondent, that the district courts, proceeding as courts of admiralty and mari- time jurisdiction, might, in general, take cognizance of suits by material men, either in personam or in rem. The argument turned, therefore, chiefly upon the effect of the note, and the court in deciding the case confined itself to that point alone, and affirmed the decree upon the ground that "it did not appear by the record that the note had been tendered to be given up, or actually surrendered at the hearing in the court below, it not heing necessary to consider tTie general question of jurisdiction.'''' But Mr. Justice Johnson thought proper to place his decision upon different and higher grounds, and to avail himself of the occasion to inculcate the necessity of checking what he considered the "silent and stealing progress of the admiralty in acquiring jurisdiction to which it had no pretensions." He accordingly entered into a comprehensive survey and. examination of the history and present state of the ' admiralty jurisdiction over contracts in England. His conclusion was, that the extensive jurisdiction exercised by the admiralty before the statutes of Richard II, was founded in usurpation, and required to be restrained ; that the decisions of the courts of common law upon these statutes, and relative to the extent of the admiralty jurisdiction generally, were sound ; that it belonged of right to these courts to restrain the admiralty within proper bounds ; that JUBISDICTION" OF THE DlgXKICT CopRTS. 249 their adjudications afford the only safe and author- chap. h. itative exposition of the laws upon the subject, and that it was incorrect, therefore, to characterize the juris4iction once in possession of the admiralty, but now exercised by the courts of common law, as a dis- puted jurisdiction. He insisted, therefore, that, with the single exception of seamen's wages, there was no contract upon which a suit in personam could be maintained in the admiralty, and that there was not the slightest ground for saying that there was a eoTiciirre/i^ jurisdiction in matters of contract between the admiralty and the courts of common law^' the rule running through all the cases being, that if the ' In the case of De Lovio v. Boit, as we have seen, the decision was, that the district courts possess jurisdiction (as courts of admiralty) of suits on marine policies of insurance, concurrently with the courts of common law, i. e., the state courts. And in a note subjoined to the case (by the learned judge who delivered the opinion, it is presumed,) it is said; "there can be no possible question that the courts of common law have acquired a concurrent jurisdiction, though, upon the principles of the ancient common law, it is not easy to trace a legitimate origin to it." 3 Gallison, 476. This doctrine of a concurrent jurisdiction between the district courts as courts of admiralty, and the state courts, has also received the solemn s3,nction of the courts of New York. In the case of HaRet v. If avion (14 Johnson, 373 ; S. C, 16 Johnson, 327), and of Percival v. Hickey (18 Johnson, 357), which were cases of marine tort, the admiralty jurisdiction of the district courts was largely and ably discussed. In both cases it was strenuously contended that the state courts had no jurisdiction. The question in both cases was examined and decided chiefly upon English authorities. In the first case it' was held that the state court had no jurisdiction, because the question pre- sented by it was a question of prize, and therefore exclusively cognizable in the admiralty. In the second case the jurisdiction of the state court was sustained upon the ground that the case, though of admiralty jurisdiction, and therefore cognizable in the district court as such, belonged to the Instance and not to the prize jurisdiction, and was one, therefore, of which, from its nature, according to the English decisions, the courts of common law, as "well as the courts of admiralty, might, and in fact did, exercise jurisdiction. See Kent's Commentaries, vol. 1 (3d ed.), 377, note c; and 1 Story's Commentaries on the Constitution of the U. S., 533, note. 32 250 JUEISDICTIOK OP THE DiSTEICT COUETS. PARTI , common law can give full redress, that alone takes away the admiralty jurisdiction. The contract of bottomry, though sometimes cited as an instance of concurrent jurisdiction, served only to illustrate this rule ; for, if executed by the master, the only remedy was by proceeding in rem, and it was, therefore, exclusively cognizable in the admi- ralty, but if executed by the owner, it became a per- sonal contract, and as such was always enforced in the courts of common law, like the contract of respondentia, which, though as much a maritime con- tract as bottomry, gives no jurisdiction to the admi- ralty either in rem or in personam. He considered the doctrine that the admiralty and maritime juris- diction, vested by the constitution of the United States, was that which the English admiralty pos- sessed, or pretended to, before the time of Richard II, as wholly untenable and not warranted (as was supposed in the case of I>e Lovio v. Boif) by the early American decisions, the weight of authority being against it ; and as it regarded the more recent decision in the case of De Lovio v. Boit, it was in direct conflict with a decision in the circuit court for the sixth circuit. It was admitted by Mr. Justice Johnson that there is a class of cases which may at first view appear to maiutain the doctrine that the admiralty possesses a jurisdiction in personam. The cases of Manro v. Almeida (10 Wheat., 472), and Sweet v. Wolff (3 Term Rep., 323), were cases of this description. But though the proceeding in these cases was in form in personam, yet they were cases quasi, and in sub- stance, in rem, in which the admiralty had jurisdic- tion of the principal questicgi, not of contracts, but marine torts and prize causes, or their incidents, the process in personam being only the means of getting possession of the res svbjecta; that is, of exercising JURISDICTIOIT OF THE DISTRICT COUETS. 251 an unquestionable jurisdiction in rem. He admitted, c hap, n . also, upon tlie authority of the St. Jago de Cuba (9 Wheat., 409), that in a case where a hypothecation would have been legal and valid, the claims of mate- rial men may 'be satisfied out of money in court, Mr. Justice Johnson, in conclusion, scrutinized the case of the General Smith (4 Wheat., 438), which has so often and so confidently been quoted as sup- porting the doctrine that the admiralty possesses a general jurisdiction in personam and in rem,, of suits 'by material men. The case was this : The vessel was owned in Baltimore, and the libelant fur- nished for her use various articles of ship chandlery to equip her for a foreign voyage. The libel set forth these facts, and prayed the usual process against the ship, and that she should be sold under a decree of the court, to pay and satisfy the libelant's claim. The district court ordered the shi;^ to be sold, and decreed that the libelant should be paid out of the proceeds. This decree was, on appeal, affirmed pro forma, in the circuit court, and came before the supreme court on further appeal. The only point directly in judgment, it will be seen, was, whether a suit in the district court, as a court" of admiralty, could be maintained by material men against a domestic ship, in a state where the local law gave no specific lien. The supreme court decided that such a suit could not be maintained ; but put its decisions exclusively upon the ground that the common law, which was the law of Mary- land, gave no lien,' and the ship not being &. foreign ' In New York a lien is given by statute, in favor of material men and sbipwrights, and for wharfage and the expenses of keeping the vessel in port, when the debt amounts to fifty dollars ; which lien may be enforced by a summary proceeding before certain judicial officers of the state. (2 Kevised Statutes, 493.) ■ And in the case of The -Ship Bdbert FuUcm (1 Paine, 620), it was held that the district courts in this 253 JUEISDICTIOK OF THE DISTRICT OOTJETS. PART 1. vessel, the admiralty law' gave none. The court took occasion, however, to state its views of the admiralty jurisdiction over suits of this nature somewhat at large, and laid down the doctrine that "the admiralty rightfully possesses a general juris- diction in cases of material men," and remarked that, "if this had been a suit in personam, there would not have been any hesitation in sustaiaing the jurisdiction of the district court," The court then proceeded to draw a distinction between the case of repairs made, and necessaries furnished, to a foreign ship, or a ship in a port of the state to which she does not belong, in which case, it is said, that the general maritime law, following the civil law, gives the party a lien on the ship itself for his security ; and the case of such repairs made and necessaries furnished in the port or state to which the ship belongs, in which case the municipal law of that state is to govern, and no lien is implied unless it is recognized by that law, and in pursuance of this distinction, as already stated, the judgment of the court below was reversed. To the correctness of this decision of the question directly before the court, it is unnecessary to say, Mr. Justice Johnson fully state, as courts of admiralty, have a concurrent jurisdiction with the state courts to enforce this lien ; and that the right to maintain this jurisdiction in a particular case, attaches and belongs to that court which first exercises it, and takes possession of the thingf. - Since the decision in the case of the- General Smith, the jurisdiction of the national courts to enforce the lien of a material man given by a state law on a domestic vessel, has become firmly established by a series of judicial decisions. See, on this subject, Conkling's Admiwdlty. This jurisdiction was asserted, as well in rewias in personam, by the 13th of the rules of admiralty practice, prescribed in 1844 by the supreme court. See 3 Howard, or Ckmkling's Admiralty, appendix. But, in 1859, the rule was altered so as to limit the jurisdiction to pro- cess in personam, unless a lien was also given by the maritime law. See The Steamer St. Lawrmiei (1 Black's S. C. Eep., 522), where the reaeoas for ^s alteration are stated and ^plained. JtTBISDICTIOK OF THE DISTRICT CotTBTS. 253 assented. But he denied nnequivocally most of the c hap, i i. other doctrines advanced by the court, and summed up what he considered to be the law upon the sub- ject in the follpwing propositions, viz. : "That in case of contracts, it (the admiralty) has no jurisdiction at all in personam, except as incident to its jurisdiction in rem. " That with regard to the contracts of shipwrights and material men in her home port, the vessel can- not be subjected, unless by express hypothecation by the owner. "That on her voyage, and where the master is des- ., titute of other means of raising the necessary funds, she may be so subjected by the master, but it must be by actual hypothecation.- "But when the ship has been sold for other claims, and the money is in the registry, so that the master no longer has it it in his power to raise money on her bottom to satisfy demands which have been legally incurred, cases may arise in which the claims of mate- rial men and shipwrights, and of the master himself, may be sustained without actual hypothecation." From this brief analysis of the opinion of Mr, Justice JoHNSOis', it is obvious that, in his judgment, the grant of admiralty and maritime jurisdiction in the constitution and judicial act, ought to be con- strued by reference to the acknowledged limits of that jurisdiction in England at the time when the constitution was framed. The late Mr. Justice Baldwin, soon after his appointment, took occasion in the circuit court also very emphatically to declare his unqualified dissent from the doctrines of the case of De Lotio v. Boit, relying for their refutation, likewise, on the decisions of the English common law courts. But these decisions, made in the course of a long and bitter contest with the high court of admiralty, 254 JUEISDICTION- OF THE DISTRICT COURTS. PAST 1. SabJectB to which the- admiralty jurisdic- tion of the district court ex- tends. have at length ceased to trammel the independence and obscure the judgments of American judges. After having been, in several instances, virtually disregarded, their authority as a test of the extent of the admiralty jurisdiction of our courts, was, at length, uneguivocally denied by the supreme court in the case of Smith et al. v. Condry (1 Howard, 28) ; and the doctrine of that case has been distinctly reiterated in the case of The New Jersey Steam Navigation Company v. The Merchants' Bank of Boston (7 Howard, 344) ; and again in the case of Rich'etal. v. Lambert {12 id., 347). It may now, therefore, be said, in general, that the admiralty jurisdiction of the United States extends to all con- tacts, claims and services, essentially maritime ; among which are bottomry bonds, contracts of aflfreightment, including charter-parties, and quasi contracts respecting the averages, contributions and jettisons, and contracts for the conveyance of pas- sengers, pUotage on the high seas, wharfage, agree- ments of consortship, surveys of vessels damaged by the perils of the seas, the claims of material men and others for the repair and outfit of ships belonging to foreign nations, or to other states, and mariners' wages ; and also to civil marine torts and injuries : among which are assaults or other personal injuries, collisions, spoliation and damage, consisting of ille- gal seizures or other depredations on property, ille- gal dispossession, or withholding possession from the owners of ships, commonly called possessory suits, disagreement among part owners as to the em- ployment of ships, cases of seizure under municipal authority, for supposed breaches of revenue, or other prohibitory laws, and cases of salvage.^ ' See an admirably reasoned essay on the extent of the admiralty and maritime jurisfiction of the courts of the United States, by the learned and distinguished judge of the district of Maine, appended to the case of The EunPfeia, Davies, 9^. Jtteisdictioit of the District Courts. 255 There remained, however, • another point to be c hap, i i. determined, and it has proved a very fruitful source To what of controversy. To constitute a maritime contract, Senla. cognizable in admiralty, it is indispensable that it should relate to commerce carried on by water ; and to render a tortious act thus cognizable it must be shown to have been committed, or, at least, begun, on water. But all waters are not comprehended within the admiralty jurisdiction ; and it accord- ingly became necessary to determine to what waters it extended. That, in addition to the open sea it com- prised waters extending inland not within the body of a county, was of course undeniable ; while, on the other hand, it was at first tacitly admitted that it did not extend to inland waters having no naviga- ble communication with the ocean. But how was it with navigable rivers flowing into the ocean ? This question was* for the first time, brought distinctly under the consideration of the supreme court, in the case of TJie TKomas Jefferson, which was a suit in : admiralty for a seaman's wages earned above tide water, on the river Mississippi.' The decision of the court was that the admiralty jurisdiction extended up such rivers as far as the flow and ebb of tide, and no further, and it was accordingly held that the suit could not be maintained. This rule was persistently adhered to for more than a quarter of a century." In one of the cases just cited, however (that of Waring v. ClarTc, a cause of collision originating far up the river Mississippi), it was objected that the Towaten place where the collision happeijed was within the pus comi- body of a county, and the jurisdiction was denied on that ground. The objection was overruled by the ' 10 Wheat., 428. ' Paroux V. Howa/rd, 7 Peters, 524 ; Orleans v. Plabus, 11 Peters, 175 ; Waring v. Clwrk, 5 Howard, 441 ; Mw Jersey Navigation Company v. Merehcmta' Bank, 6 Howard, 344. 256 JUBISDICTIOIT OF THE DISTRICT COUETS. PART 1. Declared to extend to inland waters. court, and this decision has been reiterated in sub- sequent cases.' Upon this footing stood the subject of the admi- ralty jurisdiction in 1851, when in a case of collision originating on Lake Ontario, and instituted under the act of February 26, 1845, ch. 20,*the supreme court saw fit to subject this much contested branch of jurisdiction, as far as it depended on locality, to a rigorous re-e;xainination. The scrutiny resulted in the conviction that its limitation to tide water was in itself unreasonable and inconvenient, and was neither enjoined nor warranted by a just interpretation of the constitution, and the prior decisions of the court in conflict with this conclusion were accordingly solemnly overruled. Mr. Justice Daniel alone, of the eight judges present, dissenting.* The doctrine of this case has been steadily main- tained and unsparingly applied by the Supreme court in the numerous cases that have since been brought under its consideration.* ' See The Commerce, 1 Black's S. C. R,, 574. ' 5 Stat, at Large, 736. ' The Genesee Chief, 12 Howard, 443. * Fretz V. Bull, 13 Howard, 460 ; The MagnoKa, 30 Howard, 296 ; The Niagara, 21 Howard, 7 ; Stwrges v. Clough, 21 Howard, 451 ; Allen v. Newberry, 21 Howard, 244 ; The Brig. Gen. B. H. Stokes, 23 Howard, 48 ; Pierce v. Page, 24 Howard, 228 ; The Commerce, 1 Black, 574. This last was a case of collision originating on thq Hudson river in New York, and the court expressly decided that to bring such a case within the "admiralty jurisdiction, it is not necessary to show that either of the vessels was engaged in foteign commerce, or commerce between the states. It ought, therefore, doubtless to be considered as overruling the previous decision in The GfUah (21 Howard, .248), where it xvas held that a suit in admiralty could not be maintained for supplies furnished to a steamer navigating the river Sacramento, in California, because she was engaged in trade exclusively within the State of California ; and the decree of the district court, in favor of the libelant, was reversed on this ground. The case of Allen v. Newberry (31 How., 344), had been previously decided at the same term. It arose under the act of 26th February, 1845, and was founded on a contract of afiieightment JUBISDICTION OF THE DISTRICT OOTJBTS. 267 The principle, as explained and illustrated in these c hap, n . cases, is, that the admiralty jurisdiction, as a branch of the judicial power conferred by the constitution, subject, however, to such restrictions as congress may see fit to impose, extends to all navigable waters, whether salt or fresh, whether tide waters or not, and wherever situated, which are subservient to the purposes of commercial intercourse. The particular question before -the court, in the The act case of The Genesee GMef, was, whether congress i8«; ci». 20. for the transportation of goods on Lake Michigan. In this case it was very properly held that the admiralty jurisdiction of cases arising on the great lakes and their connecting waters, was limited to vessels employed in commerce between ports or places in different states or territories, for such is the express language of the act. But the court saw fit, it seems, to Ingraft another limitation on this jurisdiction, by restricting it, in cases of affreightment, to contracts for the conveyance of goods from a port in one state to a port in another state — a restriction for which the act furnishes no warrant. The same judge who had pronounced the judgment of the court in this case, delivered the opinion ♦ of the court also in The Ooliah, and, referring to the decision in Allen V. Newbe/rry, he observes that the restriction imposed by the act of 1845, " was regarded by the court as but declaratory of the law, and that it existed independently of that statute." But in The Oommerce> as we have seen, this is expressly denied. It is true this case was a case of tort, and The Ooliah was a case of contract ;^ but it is hardly to be imagined that the jurisdiction was supposed to be affected by this difference, for there is not the slightest warrant for such a supposition in any sound principle of law applicable to the subject, nor in any ante- cedent decision of the court. It seems very clear, therefore, that the decision in The OoUah is overruled by that in The Commerce. The truth is, the notion that the admiralty jurisdiction is in any respect dependent on the power to regulate commerce, is a bald fallacy. The admiralty jurisdiction, like the power to regulate commerce, is given by the constitution, each independently of the other. They are kindred subjects, however, and congress in exercising its authority over one of them, ought, undoubtedly, not to lose sight of the other. If the interests of commerce require the imposition of new limitations upon the admi- ralty jurisdiction, congress should impose them ; but the courts have no such discretionary authority. There has been a great deal of specu- lation of latter years, relative to maritime liens, which, I take leave, •with deference, to say, is less suitable on the bench of a judicial tnbunul than in a legislative hall. 33 258 JUEISDICTION OF THE DiSTEICT COUETS. PAETi. had authority to pass the act of :|.845. It seemed clear upon the face of the act that it had been carefully framed with reference to the law as then understood, excluding the admiralty jurisdiction from all other than tide waters, and, consequently, that congress could not have intended to extend it to the lakes ; but that, under a mistaken view of the subject, it was designed, in virtue of the power to regulate commerce among the several states, to apply the admiralty forms of procedure and the rules of the maritime law to the cases described in the act, saving to both parties the right of trial by jury. But the supreme court, seeing that the act could not be upheld as an exercise of the power to regulate commerce, proceeded to incLuire whether it might not be held valid as an act to enlarge the admiralty jurisdiction of the district courts ; and having, as already stated, arrived at the conclusion that the « constitution admitted of its extension to inland waters, the court held the act constitutional on that ground. Under the authority of this decision, a limited admiralty jurisdiction has, accordingly, ever since, been freely exercised by the courts for the several judicial districts bordering on the great lakes and the straits connecting them ; as the admi- ralty jurisdiction, untrammed by the restrictions imposed by this act, has been, on navigable rivers * elsewhere, throughout the Union.' ' Touching the true character of the act of 1845, see further. Conk- ling's Admiralty, 2d ed., vol. 1, p. 7-18. I have met -with nothing in the reports of judicial decisions more surprising and unaccountable than the assumption hy the supreme court in The Genesee Chief, and in the subsequent case of The Magnolia (30 Howard, 396, 300), that the admiralty jurisdiction was excluded from the great lakes by the terms of the 9th section of the judiciary act. The language of the act is : " and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of Jdeisdicxion of the Distkict Courts. 269 It is an important rule in regard to all admiralty chap. u. cases, that an appeal suspends the sentence alto- Bffectof gether, and tliat the cause is to be heard and decided of wf act ,■1 , n , pending an in the appellate court, according to the existing law, appeal. ten or more tuns burden, within their respective districts as well as upon the high seas." Act of 34th September, 1789, ch. 30, § 9 : 1 Stat, at Large, p. 76. I can trace this novel assumption to nothing, unless it be to the latter clause of the provision above recited, " including all seizures * * * where the seizures are made," &o. But this clause refers exclusively to municipal seizures under laws of impost, &c., and has no relation whatever to suits by private persons. No aeizv/re is made anywhere in such suits. As to them the jurisdiction conferred on the district courts by the 9th section of the judiciary act is exactly co-extensive with that conferred by the constitution ; and this having been adjudged to extend to inland waters, it follows that the district courts were already invested with it when the act of 1845 was passed. The jurisdiction described in this act accordingly thus becomes a sense- less anomaly. A considerable proportion of the proper civil jurisdic- tion is not embraced by it, and the criminal and prize jurisdictions are absolutely excluded. The only imaginable necessity there is for an act of congress respecting inland waters, is for the purpose of placing revenue or other municipal seizures, made on such waters, upon the , same footing as that on which such seizures made on waters navigable from the ocean are placed by the judiciary act ; and this is what the act of 1845 does not accomplish. Its only effect is to restrict instead of enlarging the admiralty powers of the district courts conferred by the judiciary act, with respect to cases arising on the lakes, by limiting those powers to the cases specified in the act. Can it be doubted that it ought to be repealed ? Since the publication in an antecedent edition of the foregoing part of this note, its statements have been fuUy confirmed by the supreme court, and the admiralty jurisdiction of the courts of United States in State Courts. 301 Mr. CMef Justice Taket, in an opinion strongly c hap, u . marked by that extraordinary perspicacity, precision and force wMch nsnally cliaracterize Ms judicial utterances, earnestly combated tlie opinion of the majority of the court, and Mr. Justice Watne, l^lr. Justice Geiek and Mr. Justice Cliffoed concurred with him. He denied that the case before the court was one of conflict between the jurisdiction and rights of a state court and the rights of a court of the United States ; a conflict between sovereignties, both acting by their own ofiicers,' within the spheres of their acknowledged powers. It was not a question between the relative powers of a state and the United States acting through their judicial tribunals, but merely concerning the relative powers and duties of a court of admiralty and a court of common law, in the case of an admitted maritime lien. It was true the court of admiralty was a court of the United States, and the court of common law was a court of the state of Pennsylvania. But the very same ques- tions may arise, and indeed have arisen, where both courts are created by and acting under the same sovereignty. And the relative powers and duties of a court of admiralty and a court of common law could, upon no sound principles, be difl'erent, because the one was a court of the United States and the other the court of a state. The same rules which would govern under similar circumstances, where the process of attachment or a fieri facias had issued from a circuit court of the United States, exercising a common law jurisdiction, must govern in this case. The court of admiralty and the court of common, law have each their appropriate and prescribed sphere of action, and can never come in conflict unless one of them goes outside of its proper orbit ; and a court of common law, although acting under a state, has no right to place itself within the sphere of action 303 JtJETSDiCTIOH' OF THE NATIOM-AL AXD STATE CoTXRTS. PABTi. appropriated peculiarly and exclnsively to a court of admiralty, and thereby impede it in the discliarge of the duties imposed upon it by the constitution and laws. "There are some principles," he proceeded to observe, "which have been so long and so well established, that it is sufficient to state them without referring to authorities." The lien of seamen for their wages is prior and paramount to all other claims on the vessel, and must be first paid. By the constitution and laws of the United States, the only court that.has jurisdiction over this lien, or authorized to enforce it, is the court of admiralty, and it is ttie duty of that court to do so. The seamen, as a matter of right, are entitled to the process of the court to enforce payment promptly, in order that they may not be left penniless and with- out the means of support on shore. And the right to this remedy is as well and" firmly established as the right to the paramount lien. No court of common law can enforce or displace this lien. It has no jurisdiction over it, nor any right to obstruct or interfere with the lien, or the remedy which is given to the seaman. A general creditor of the ship-owner has no lien on the vessel. When she is attached (as in this case), by process from a court of common law, nothing is taken or can be taken but the interest of the owner after the maritime liens are satisfied. The seizure does not reach them. The thing taken is not the whole interest in the ship ; and the only interest which this process can seize is a secondary and sub- ordinate interest, subject to the superior and para- mount claims for seamen's wages ; and what will be the amount of those claims or whether any thing will remain to be attached, the court of common law JUEISDICTION OP THE NATIONAL AND STATE COUETS. 303 cannot know until they are heard and decided upon c hap. i 4. in the court of admiralty.'" The chief justice added, that he did "not under- stand these propositions to be disputed;" and he proceeded at length to deduce from them a conclu- sion the opposite of that at which a majority of his brethren had arrived. It was perfectly clear, he said, that, if the ship had been seized by common law process from a court of the United States for a debt due froni the owner, the possession of the marshal under that process would have been super- seded' by process from the admiralty upon a pre- ferred maritime lien ; and the fact that in the case before the court the process was from a common law court of a state, and served by its own officer, could make no difference. A state court has no more right to impede the admiralty in the exercise of its legiti- mate powers, 'than a common law court of the^United States. The sheriff, as the ministerial officer of the court, can have no greater power over the vessel than the court whose process he executes. He seizes what the court has a right to seize, and has no pos- session beyond it. If the interest over which the court has jurisdiction is secondary and subordinate to the interest over which the admiralty has exclu- sive jurisdiction, his possession is secondary and subordinate in like manner, and subject to the pro- cess oa the superior and paramount claim. The circumstance that the processes were respectively served by officers of different courts was wholly immaterial. In the case of The Flora (1 Hagg., 398), the vessel had been seized by a sheriff on pro- ■ It is an established principle in admiralty, that all persons who have any claims upon the ship or other property proceeded against, are permitted, and are by public notice, to be invited to appear in court, and not only to claim any surplus that may remain after satisfy ing the maritime lien, but also, if they see fit, to contest its validity. 304 JtTBISDICTIOK OF THE NATIONAL AND STATE COTJETS, PARTI, cess from tlie king's bencli. She was afterwards, while, in possession of tlie sheriflf, arrested on pro- cess from tlie admiralty on a prior maritime lien, and was sold by the marshal while the sheriff still held her under the coinmon law process ; and the sale was held valid by the king's bench. That court did not seem to have supposed that there was any conflict of jurisdiction in the case, or that its officer had been improperly interfered with by the marshal ; nor did the king's bench hold that there was any incongruity in the possession of the sheriff and the marshal at the same time. On the contrary it was conceded that the possession of the sheriff was no obstacle to the arrest by the marshal, nor any impediment to the exercise by the court of admiralty of its appropriate and exclusive jurisdic- tion, in enforcing claims prior and superior to that of the attaching creditor. Between that case and the case before the court, the chief justice said he could discern no substantial difference. Precisely the same question, moreover, he added, had been decided by the circuit court for the district of Massachusetts, twenty years ago, in the case of Certain Logs of MaJtogany, Thomas Richardson, Claimant (2 Sumner, 589), and also by the district court for the district of Maine, thirty years ago, in the case of Poland et al. v. The Freight and Cargo of the Spartan, Weare's R., 143. In both of these cases the question was fully con- sidered by the court ; and in both it was held that a previous seizure under process of attachment from a state court could not prevent the admiralty from proceeding in rem, to enforce the preferred liens of which it has exclusive jurirdiction. After pointing out what he conceived to be the broad and palpable distinctions between the case in judgment and that of Hagan v. Lucas, and a brief JtJEISDICTIOSr OF THE NATIOlSrAL AND STATE COURTS. 305 notice of some of the deplorable consequences to c hap, u . ■wMch. the novel principle adopted by the court, if followed out to its legitimate results would inevitably lead, Mr. Chief Justice Takey concluded his opinion with an instructive and highly significant reference to the protracted and impassioned controversy in England relative to tlie extent of the admiralty jurisdiction. Commending this remarkable case to the examina- tion and impartial meditations of the reader, I here dismiss it. 39 PART 11. OF THE PEACTICE OF THE SEVEEAL COUETS OF THE UNITED STATES IN THE EXEEOISE OF THEIE OEIGINAL AND APPELLATE JUEIS- DICTION IN CIVIL ACTIONS AT COMMON LAW. CHAPTBE I. OF THE PEACTICE OF THE SUPEEME COTJET IK STTITS OEIftllfALLY COMMENCED THEEEIH". The original jurisdiction of the supreme court, as already shown, is defined in the constitution, and is limited to cases in wMch a state is a party, and to cases affecting ambassadors, other public minisjiers and consuls ; and we shall now see that, so , far as this branch of its jurisdiction is concerned, congress has done little more than merely to organize the court ; having omitted, with the exception of a few very general provisions, to regulate its proceedings. liie authority conferred by the judicial act of 1789, to issue writs, to make all rules necessary for the orderly conducting of business, to administer oaths, to grant new trials, and to punish for con- tempt, has already been stated in treating of the jurisdiction of this court. By the sajj^e act, the courts of the United States are empowered in certain cases, "to require the par- ties to produce books or writings in their possession or power which contain evidence pertinent to the 308 Peactice of the Supreme Court. PARTS, issue."* These provisions are applicable to tlie supreme court as well as to tlie circuit and district courts. But their particular consideration will be deferred until the practice of these latter courts comes to be treated of. . By the act of September 29, 1789, passed, it will be remarked, a few days after the judiciary act, entitled "An act to regulate processes ia. the courts of the United States," it is enacted "that all wrifs and processes, issuing from the supreme'or circuit court shall bear teste of the chief justice of the supreme court ; and, if from a district court, shall bear teste of the judge of such court, and shall be under the seal of the court from whence they issue, and signed by the clerk thereof. The seals of the supreme and circuits courts are to be provided by the supreme court, and of the district courts by the respective judges of the same.^ ' These two acts (excepting one other, fixtag the compensation of the judges) are the only laws passed at the first session of congress relating to the judi- ciary ; and the scanty provisions above referred to are the only ones to be found in them relative to the practice of the supreme court in the exercise of its original jurisdiction. Under this state of the law, the court held its first session (at New York, then the seat of government), in February, 1790, -where the following ettles (toge- ther with two others only, regulating the admission of attorneys and counselors), were "declared and established." Ordered, that the seal of the court shall be the arms of the United States, engraved on a piece of steel of the size of a dollar, with these words in the margin: "The seal of the Supreme Court of the ' Act of 24 Sept., 1789, ch. 20, § 15 : 1 Stat, at Large, 73. ' Cai. 21, § 1 : id. 93. Peactice of the Supbeme Court. 309 United States ;" and that the seals of the citQuit c hap, i. courts shall be the arms of the United States, engraved on circular pieces of sUver, of the size of a half-doUar, with these words in the margin, viz. : ia the upper part, "The seal of the Circuit Court ;" and in the lower part the name of the district for which it is intended. Ordered, that (unless, and until it shall be other- wise provided by law), all process of this court shall be in the i^ame of "the President of the United States." The act of September 29, 1789, above cited, was, by its terms, limitfed in duration to the end of the next succeeding session of congress ; it was how- ever, by subsequent acts, continued until 1792, when a permanent act, usually denominated the Process Act, was passed.^ The first section of this act is as follows: "All writs and processes, issuiag from the supreme or a circuit court, shall bear teste of the chief justice of the supreme court, or (if that office shall be vacant) of the associate justice next in precedence ; and all writs and processes, issuing from a district -court, shall bear teste of the judge of such court, or (if that office shall be vacant) of the clerk thereof, which said writs and processess shall be under the seal of the court from whence they issue, and signed by the clerk thereof. The seals shaU be provided at the expense of the United States." The second section provided that the forms of process, and the forms and modes of proceeding in suits at common law, which had been adopted by the several courts under the prior law should con- tinue ; subject however to alterations and additions by rules of court. ' Act of May 8, 1793, ch. 36 : 1 Stat, at Large, 276. 10 Pbactice of the Supebme Oottbt. PABTs, By an act passed at the next succeeding session of congress, "in addition to" tlie judiciary act, the subject of the power of the courts to regulate their own proceedings, is resumed and provided for more in detail as foUows : "it shall be lawful for the several courts of the United States, from time to time, as occasion may require, to make rules and orders for their respective courts, directing the return of writs and processes, the filing of declara- tions and other pleadings, the taking of rules and the entering and making up judgments by default, and other matters in vacation ; and otherwise, in a manner not repugnant to the laws of the United States, to regulate the practice of the said courts, respectively, as shall be fit and necessary for the advancement of justice, and especially to that end, to prevent all delays in proceedings."^ As the supreme court has ifot hitherto thought proper to prescribe the mode of procedure in causes originally instituted in that court, by any complete body of prospective rules, but has contented itself with making, from time to time, such orders m each particular case as seemed proper and necessary, it is proposed briefly to notice such of the reported cases of this description as tend to elucidate the subject. In the case of Van JStropTiorst et al. v. The State of Maryland (3 DaU., 401),* there having been a voluntary appearance on the part of the state, a motion was made in behalf of the plaintiff for a commission to examine witnesses in HoUand ; but without naming the commissioners. To this motion the counsel for the defendant assented ; but the > Act of Mareh 3, 1793, cL. 33, § 7 : 1 Stat, at Large, 835. ° This and the cases subsequently cited, in ■which a state was the party defendant at the suit of an indJi/mAual pldintiff, it will of course be understood, arose before the amendment of the constitution depriv- ing the supreme court of jurisdiction in such cases. Peactice of the Supreme Ootjbt. 311 court refused to award the commission until tlie chap. i. commissioners were named, wMcli being done, tlie motion was granted. In tlie case of Oswald v. The BtaU of New YorTc (2 DaU., 402), a motion was made that tlie marshal return the writ ; and the 'court, after advisement, granted a rule in the following terms: '■'■ Order 6cL, that the marshal of the New York district return the writ to him directed in this cause before the adjourn- ment of this court, if a copy of this rule shall be seasonably served upon him or his deputy, or other- wise, on the first day of the next term. And that, in case of a default, he do show cause therefor, by affi- davit taken before one of the judges of the United States." At the same term (August, 1792,) the attorney- general having moved for information relative to the system of practice by which attorneys and counsel- ors of this court shall regulate themselves, the chief justice, at a subsequent day, laid dovra the following general rule: "The court considers the practice of the courts of king's bench and chancery in England as aflfbrding outlines for the practice of .this court ; ' and they will, from time to time, make such altera- tions therein as circumstances may render necessary. ' ' In the case above cited of Oswald v. The State of New YorTc, at the succeeding term, Proclamationvim made, "that any person having authority to appear for the state of New. York is required to appear accordingly;" and no person appearing, it was ordered, on motion, that "unless the state of New York appears by the first day of the next term to the above suit, or show cause to the contrary, judg- ment will be entered by default against the said state." 3 Dallas, 415.' ' This practice, it Will be seen, was subsequently changed, and tte plaintiff is to proceed ix pa/rie. 512 Peactice of the Supreme Court. P ART 3 . In the case of Chisholm v. TJie State of Georgia (2 Dall., 419,) the marslial of the district of Georgia having returned the writ, "Executed as within com- manded, that is to say, served a copy thereof on his Excellency Edward Telfair, Esq., Governor of the State of Georgia, and one other copy on Thomas , P. Carnes, Esq., the attorney-general of the said State ;" the counsel of the state of Georgia thereupon pre- sented to the Court a written remonstrance and pro- testation on behalf of the state against the exercise of jurisdiction in the cause ; but, in pursuance of their instructions, declined taking any. part in argu- ing the question. It was, however, elaborately argued on the other side, by Mr. Randolph, the. attorney-general, as counsel for the plaintiff." At a subsequent day, the judges, seriatim, pro- nounced their opinions at great length upon this interesting question, and decided (Judge Iredelll dissentiag) that the court possessed, and was bound to exercise, jurisdiction in the case. Whereupon, it was ordered ' ' that the plaintiff in this cause do file his declaration on or before the first day of March next. "That certified copies of the said declaration be served on the governor and attorney-general of the state of Georgia on or before the first day of June next. "That unless the state shall either in due form appear, or show cause to the contrary, in this court, by the first day of the next term, judgment by default shall be entered against the said state."' ' To tMs case the reporter has appended the following notes : " In February term, 1794, j udgment was rendered for the plaintiff and a writ of inquiry awarded. The writ, however, was not sued out and exe- cuted ; so that this cause and all other suits against states were swept at once from the records ^f the court by the amendment to the federal constitution, agreeably to the unanimous determination of the judges in EoUingsworth et al. v. Virgima, argued |at February term, 1798. See the report of the case, 3 Dall., 378." Pbactice of the Supreme Oottet. 313 In the case in eqiiity of Gray son v. The State of c hap, i. Virginia (3 Dallas, 320,) the subpoena having been returned executed, the plaintiff moved for a dis- tringas to compel the appearance of the state. The court postponed its decision on the motion in conse- quence of a doubt whether the remedy to compel such appearance should be furnished hy the court itself or hy the legislature. At a subsequent term the court, "after a particular examination of its powers," determined that, though "the general rule prescribed the adoption of that practice which is founded on the custom and usage of courts of admi- ralty and equity," still the court was "also author- ized to make such deviations as are necessary to adapt the process and rules of the court to the parti- cular circumstances of this country, subject to the interposition, alteration and control of the legisla- ture." Under this view of its powers and duties, the court, therefore, made the following general orders : "1. Ordered, that when process at common law or in equity shall issue against a state, the same shall be served upon the governor or chief magistrate and the attorney-general. "2. Ordered, that process of subpoena issuing out of this court in any suit in equity shall be served on the defendant sixty days before the return day of the said process ; and further, that if the defendant,, on such service of the subpoena, shall not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte. '''"^ In the case of The State of New Jersey v. The People of the State of New TorTc, in equity, the ser- ' These two general orders are embodied and numbered 5, in a set of rules adopted by the supreme court at December term, 1858, the rest of which, except such as are directory to the clerk, relate, chiefly or wholly, to the appellate jurisdiction of the court, and will be noticed in their appropriate places in the sequel. 40 314 PeACTICB of the StrPEEMB COTTET. PAHT2. vice of tlie subpoena to appear and answer having been made upon the acting governor of the state of New York only^ the marshal of the southern district returning that the attorney-general was not found in his district, the service was held to be insufficient. The rule required a service on both, and must be literally observed. 3 Peters, 461. At a subsequent term, the subpoena having in the meantime been regularly served, and the state of New York having failed to appear, it became necessary for the com- plainant again to apply to the court for further assist- ance and direction. The court took occasion to review the antecedent cases, and Chief Justice Mae- shall concluded its opinion as follows: "It has been settled by our predecessors, on great delibera- tion, that this court may exercise its original juris- diction in suits against a state, under the authority conferred by the constitution and existing acts of congress. The rule respecting the process, the per- sons on whom it is served, and the time of service is fixed. The course of the court on the failure of the. state to appear, after the due service of process, has been also prescribed. In this case the subpoena has been served as is required by the rule. The com- plainant, according to the practice of the court, and according to the general order made in the case of Orayson v. The Commonljoealth of Virginia, has a right to proceed ex parte / and the court wUl make an order to that effect, that the cause may proceed to a final hearing. If, upon being served with a copy of such order, the defendant shall stiLL faU. to appear, or show cause to the contrary, this court wUl, as soon thereafter as the cause shall be prepared by the complainant, proceed to a final hearing and decision thereof. But inasmuch as no final decree has been pronounced, or judgment rendered, in any suit heretofore instituted in this court, against a Peactice of the Supeeme Oouet. ' 315 state, the question of proceeding to a final decree c hap, i. will be considered as not conclusively settled, nntn the case shall come on to be heard in chief." 5 Peters, 284. It will be seen from these cases, that in suits against a state, if the state shall neglect to appear on due service of process, no coercive measures are to be resorted to, to compel appearance ; but the plaint- iff will be allowed to proceed ex parte. And such was expressly said to be the settled practice of the court in the case of The State of Massachusetts ads. The State of Rhode Island^ 12 Peters, 755. In the case just cited, which was a bill in equity for the purpose of ascertaining and determining the true boundary line between the parties, the state of Massachusetts had appeared and put in an answer and plea, and then at a subsequent term, by her counsel, moved to dismiss the bill on the ground that the court had no jurisdiction of the cause. This motion the court held itself bound to entertain. 12 Peters, 657. The motion having been denied,' a motion was made in behalf of Massachusetts for leave to withdraw her plea, and also her appearance. The motion was granted, and leave was at the same time given to Rhode Island to amend her bUl. At the next term (1839), nothing having in the mean- time been done on the part of Massachusetts in pursuance of the .leave given, and Rhode Island having (though not till the second day of that term) amended her bUl, it was ordered by the court that Massachusetts be allowed untU the first Monday of the next August to elect whether she would with- draw her appearance ; and if her appearance should > The objection was that the controversy related, not to a question of property, but simply of jurisdiction, and was, therefore, as it was insisted, not a judicial but a political question. On this ground Chief Justice Takby dissented from the decision of the court. 316 Practice of the Supreme Court. PARTS, be withdrawn within the time limited, that Rhode Island should be thereupon at liberty to proceed ex parte. And if the appearance of Massachusetts .should not be so withdrawn, it was ordered, that then the said state should answer the amended bill, on or before the second day of January, 1840. The case had been brought before the court on a motion in behalf of the complainant, that the defendant be required to answer within some short period to be fixed by the court, so as to enable the complainant to bring the cause to a hearing during the same term; which motion was denied. 13 Peters, 23. At the next term (January, 1840), the defendant having in the meantime made her election to put in a plea and answer to the amended bill, the case was brought to argument on the sufficiency of the plea and answer. A preliminary question arose as to the party whose right it was to begin and close the argument. The court considered the . rule of the English Chancery to be, that this right pertains to the party who puts in a plea which is the subject of discussion, and that it belonged, therefore, to the state of Massachusetts. 14 Peters, 210. The plea was overruled, on the ground that it was multi- farious ; and it was ordered, that the defendant answer the bill on or before the first day of the next term. lb. At the next term (January, 1841), the counsel for the defendant filed a demurrer to the bUl, which was argued and overruled, and thereupon the defendant was ordered to answer the biU on or before the next August. 15 Peters, 233. When the case was before the court in 1840, the court laid down the important principle that, in suits between states, it was incumbent on the court to take care that full opportunity should be afforded to each party to bring before the court what it might conceive to be the merits of its side of the case, in such manner as Pkactiob of the Supreme Ooubt. 317 to entitle it to a direct decision upon them ; and that c hap, i. the court was bound, if necessary, so to modify the technical rules of pleading as to secure this end. In 1846 the cause was brought to a final hearing on its merits, and was elaborately argued. The state of Rhode Island having, in the opinion of the court, faUed clearly to establish its right of jurisdiction over the disputed territory, the bill was, for that reason, dismissed. 4 Howard, 591. The State of Missouri v. TTie State of Iowa (7 Howard, 660) was also a suit in equity to settle a question of boundary, the bill having been filed by the state of ^Missouri, "with the consent of the state of Iowa." A cross bUl was also filed by the state " of Iowa. The court, having, by its decree, designated what it deemed to be true boundary line, decreed that the state of Missouri be perpetually enjoined from exercising jurisdiction to the north of it, and that the state of Iowa be in like manner enjoined from exercising jurisdiction to the south of it. The court also appdinted commissioners to run and mark the line, and to erect durable monuments with proper insci'iptions ; a moiety of the costs of the whole pro- ceeding to be paid by each party. The commissioners ' were also directed to report to the court at its next term. This having been done, and no exception being taken to the report, it was confirmed, and the boundary line was accordingly finally declared and established. 10 Howard, 1. In The State of Georgia v. Orant, 6 Wallace, 241, the court said when a party wishes to file a bUl in equity in the supreme court it is usual to hear a motion in his behalf for leave to do so. 1 he State of Florida v. The State of Georgia gave rise to a new, important and difficult question. Like the preceding cases, the controversy concerned the boundary line between the two states. TJie bill hav- 318 Peacticb of the Supbemb Court. PART 8. ing been filed, and a subpoena, on motion, awarded by the court at December term, 1850, "against tbe state of • Georgia " (11 Howard, 293), at December term, 1854, , Georgia having in the meantime answered the bill, and other steps having been taken, but the cause not being ready for a final hearing, the attorney-general of the United States filed an information setting forth that the United States were materially interested ia the controversy on account of the bearing it had upon the extent of the public lands obtained by the purchase of Florida ; and upon this ground he moved for leave not only to be heard, but to adduce evi- dence ia behalf of the United States. By the decision of a majority of the court pro- nounced in an elaborate opinion delivered by the Chief Justice, he was permitted to do this. Mr. Justice M'Lban, Mr. Justice Daniel, Mr. Justice Curtis and Mr. Justice Campbell dissenting, and the two latter assigning the reasons of their dissent at length. It was conceded by the court that the United States could not be made a party to the suit ; but the jurisdiction exercised by the court in suits between states being in its nature sui generis, no rules of procedure having been prescribed by law to regulate its exercise, and no means having been provided for a revision of the judgment to be pro- nounced, the court felt itself to be at liberty, and deemed it to be its duty, to disregard the technicali- ties and forms applicable to ordinary litigation, and allow the attorney-general to intervene, and to adduce proofs and arguments to be considered by the court in deciding the question before it. 17 Howard, 478. ' The only case ever brought to trial by jury before the supreme court, of which I have met with any report, is that of The State of Georgia v. Brailsford et al. (3 DaU., 1), which was a feigned issue, and affords nothing worthy of remark in this place. Pkactioe op the Supreme Ooub*. 319 The foregoing abstract presents, in substance, all c hap, i. tbe written materials for the compilation of a system of practice in proceedings in tbe supreme court as a court of original jurisdiction. A few general directions will, therefore, complete all that will be attempted under this head. Process.] In actions at law against a state, as there can be no actual arrest, the first process is a sum- mons. This writ is directed to the marshal of the district comprising the state, or (when it is divided into more than one district) a part of it, and, as has been seen above, must be served upon the chief executive magistrate and the attorney-general of the state. Should the state fail ■ to appear, it may well be doubted, since the annunciation of the principle stated in the case of RTiode Island v. Massachusetts, whether the court would now make an order, like that entered in the case of Oswald v. The State of New TotTc, that, unless the defendant "appears by the first day of next term, or shows cause to the con- trary, judgment will be entered by default against said state." Judging from the language held by the court in more recent cases, it seems more probable that an actual trial would be considered an indis- pensable prerecLuisite to any conclusive decision upon the rights of the parties. In suits against ambassadors, or other public ministers or their domestics or domestic servants (if indeed any such suits can be maintained), the same form of process ought doubtless to be resorted to ; since by the act of April 30, 1790,' it is enacted (in accordance with the law of nations), "That if any writ or process shall, at any time hereafter, be sued forth or prosecuted by any person or persons, in any of the courts of the United States, or in any of 'Ch. 9, § 25 : 1 Stat, at Large, 113. 320 Pbaotice of the Supeeme Ooitbt. PART 2. the courts of a particular state, or by any judge or justice therein, respectively, whereby the person of any ambassador or other public minister of any foreign prince or state, authorized and received as such by the President of the United States, or any domestics or domestic servant of any such ambas- sador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized or attached, such writ or process shall be deemed and adjudged to be utterly void, to all Intents, constructions and purposes, whatsoever." As to the description of persons who fall under the denomination of domestics and domestic ser- vants, and touching the true construction of this act (which is substantially a transcript of the statute of 7 Anne, chap. 12, § 34), see 8 Mod., 388 ; 3 M. & S., 284 ; Barnes, 370, 374, 375 ; 1 Wm. Bl., 471 ; 3 Burr., 1478, 1676, 1731 ; 1 Burr., 401 ; 3 Wils., 33 ; 1 WHs., 20, 78 ; Fitzg., 200 ; 2 Stra., 797 ; 2 L. Raym., 1524 ; 4 Burr., 2017 ; 3 T. E,., 79 ; 3 Camp., 47. By the next section it is declared that all persons convicted of suing forth or prosecuting any such writ or process, and all officers executing the same, ' ' shall be deemed violators of the laws of nations and disturbers of the public repose, and imprisoned not exceeding three years, and fined at the discretion of the court ; Provided, nevertheless, that no citizen or inhabitant of the United States who shall have contracted debts prior to his having entered into the service of any ambassador or other public minister, which debts shall be stUl due and unpaid, shall have, take or receive any benefit of this act ; nor shaU any person be proceeded against by virtue of this act, for having arrested or sued any other domestic servant of any ambassador or other public minister unless the name of such person be first registered in the office of the secretary of state, and Pbacticb of the Supreme Ooubt. 321 by such, secretary transmitted to the marshal of the c hap, i. district in which congress shall reside, who shaU, upon receipt thereof, affix the same in some public place in his office, whereto all persons may resort and take copies without fee or reward." In actions personal against a citizen by an am- bassador or other public minister ; and by or against consuls (who are not entitled to the immunities of public ministers), the process would doubtless be the writ of capias ad respondendum, upon which the defendant might be held to bail (upon filing an affi- davit for that purpose, according to the English practice), or not, according to the nature of the plaintiff's demand. Pleadings.] The jurisdiction of the courts of the ■ United States being special and limited, it is a fun- damental rule of pleading (as will be fully explained and illustrated in treating of the practice of the other courts), that the jurisdiction of the court must dis- tinctly appear upon the face of the plaintiff' s declar- ation. Depending, therefore, as it does in this court (as a court of original jurisdiction), entirely upon the character of the parties, that character must be distinctly averred. Judgment and Execution.] As we have already seen, the form and effects of judgments and execu- tions in the circuit and district courts are regulated by the laws of the respective states. But the acts of congress are silent with respect to these particulars, as it regards the supreme court, except in conferring the authority to make rules. In the exercise of this power, should circumstances call it into action, it may be suppqsed that, as against individual defend- ants, the court would adopt the laws of the states of which such defendants were citizens or residents. What form of process would ba devised to enforce a judgment agauist a state, when the judgment 41 322 Pbactice of the Supbeme Coubt. PAST 3. would otherwise be ineffectual, is a grave question upon which no conjecture wUl be hazarded. In the case of QMsholm v. Georgia, and again in that of Rhode Island v. Massachusetts, referred to above, the want of any legislative provision on this subject was strenuously insisted on at the bar, as an insup- erable obstacle to the exercise of jurisdiction. Mr. Justice Baldwin, in pronouncing the decision of the court in the latter case, has given an interest- ing and instructive summary of the English decisions relating to the question. In the former case the point was left untouched by the court ; in the latter case, which, it will be recollected, involved no question of property, but concerned only the rights of sovereignty and juris- diction, one answer given to the objection by the counsel for Ehode Island was, that the decree of the court asked for by that state would execute itself, by definitively settling the question in issue between the parties, and actually vesting the rights decreed. The court seems to have concurred in this view of the subject, and no doubt is intimated that it would be the duty of the court to adjudicate upon any question suitable for judicial cognizance when called upon to do so by a suit between states ; and this, as we have seen, the court has not hesitated to do, in subsequent cases, and to enjoin obedience to its decree. In conclusion, it is proper to add, that, by a rule of the supreme court, all motions to the court are required to be reduced to writing, briefly stating the facts and the objects of the motion. This rule is doubtless applicable as well to cases of original as of appellate jurisdiction.^ ' The form of compliance with this rule may be seen, for exsmple, in White's Admimiitrator v. The United States, 1 Black, 501, and Bfee v. The Minnesota am,d Northwestern B. M. Co., 31 Howard, S3 PbACTICB of the OiBOUIT AH^D DiSTHIof COTJRT^. 323 CHAP. S. CHAPTER II. OF THE PRACTICE OF THE CIKCTJIT AND DISTRICT COURTS IN (JiVIL ACTIONS AT COMMON LAW, INCLUD- ING CAUSES REMOVED FROM THE STATE COURTS. SECTION I. AS REGXILATBD BT STATUTE. Several statutable provisions, directly or indirectly relating to tlie practice of these courts, have already been recited, or referred to, at the commencement of the preceding chapter, and need not, therefore, be here particidarly noticed, although it is indispensa- bly necessary that the student should bear them in mind as equally applicable to these courts. Others will be hereafter cited under particular heads to which they respectively relate. But those which constitute the basis of the practice in suits at common law, tin both the cirauit and district courts, through- out the Union, are the following : The second section of the temporary act of S9th Sept., 1789 (the first section of which has already been given verbatim in the preceding chapter), enacts "That untU further provision shall be made, and except where, by this act or other statutes of the United States, is otherwise provided, the forms of writs and executions, except their style and modes of process and rates of fees, except fees to judges, in the circuit and district courts, in suits at common law, shall be the same in each state respectively, as are now used or allowed in the supreme courts of the same. And the forms and modes of proceeding in causes of equity, and of admiralty and of maritime- jurisdiction shall be according to the course of the civil law ; and the rates of fees the same as are or were last allowed by the states respectively in the court exercising supreme jurisdiction in such causes.'" > Ch. 21 : 1 Stat, at targe, 93. 324 Peactic:^ of the Circuit and Disteict Cottets. PART 8. Under this simple and highly judicious regulation these courts went into action. At the third session of congress the forms of pro- cess and modes of proceeding in the Courts having in the mean time become in some degree settled iii conformity with the act just recited, the permanent act of May 8, 1792, usually denominated the Process Act, was passed (the first section of which has also been recited in the preceding chapter), the second section of which is as foUows : " The forms of writs, executions and other process, except their style,' and the forms and modes of proceeding in^suits in those of common law, shall be the same as are now used in the said courts [the supreme, circuit and district courts], respectively, in pursuance of the act entitled 'An act to regu- late process in the coiirts of the United States' [the act of * 29th September, 1789, above cited] ; in those of equity and in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of equity, and to courts of admiralty, respectively, as contradis- tinguished from courts of common law ; except so far as may have been provided for by the act to establish the judicial courts of the United States ; subject, however, to such alter- ations and additions as the said courts, respectively, shall, in their discretion, deem expedient, or such regulations as the supreme court of the United States shall think proper from time to time, by rule, to prescribe to any circuit or district court concerning the same : Provided, that on judgments in any of the cases aforesaid, where different kinds of executions are issuable in succession, a capias ad satisfaciendum being ' The words " except their style," must have been inadvertently copied from the first act. In that act they referred to the style of processes (i. «., the name of the authority under which they were issued) in th« state courts, and were therefore appropriate and necessary ; but as they stand in this act, they refer to process in the courts of the United States, in the style of which it was not intended to make any alteration. They have accordingly been inoperative in practice. Practice of the Oibcuit and District Courts. 325 one, the plaintiff shall have his election to take out a capias chap. 2. ad satisfaciendum in the first instance." ' By the first act, therefore (of 29th September, 1789), the then existing systems of practice in the several states were temporarily adopted as the prac- tice of the circuit ^nd district courts, in and for those states respectively ; subject, however, to be modified by rules of court ; and, by the act last recited, the system of practice thus introduced into the courts of the United States was sanctioned and permanently established ; subject, however, to the like power of modification, as circumstances and convenience might require. ' Ch. 36 : 1 Stat, at Large, 275. The power conferred by this act on the supreme court, to prescribe rules of procedure to the circuit and district coilrts, remained -wholly dormant until the year 1822, when ' a body of rules was framed and promulgated to regulate the practice of the circuit courts in equity. These rules continued in force until 1842, when a more complete set of rules of equity practice was prescribed ; and, on the 23d of August of that year, an act was passed conferring this power in very comprehensive as well as explicit terms. The enact- ment here referred to is as follows : " The supreme court shall have full power and authority, from time to time, to prescribe, and regu- late and alter, the forms of writs and other process to be used and issued in the district and circuit courts of the United States, and the forms and modes of framing and filing bills and Jibels, answers and other proceed- ings and pleadings, in suits at common law, or in admiralty, and in equity pleadings in the said courts, and also the forms and modes Of taking and obtaining evidence, and of obtaining discovery, and gene- rally the forms and modes of drawing up, entering and enrolling decrees, and the forms and modes of proceeding before trustees appointed by the court, and generally to regulate the whole practice of the said courts, so as to prevent delays, and to promote brevity and succinctness in aU pleadings and proceedings therein, and to abolish all unnecessary costs and expenses in any suit therein." Act of August 23j 1842, ch. 188, § 6 ; 5 Stat.-at Large, 516. In the year 1845, the supreme court promulgated another body of rules to regulate the practice in causes of admiralty and maritime juris- diction. With respect to proceedings at common law this power has never been executed. 326 Peacticb op the Circuit anB Disteict OourtS. FAST 8 . It is proper here also to B&f, that ^ulbseciTient changes in the modes of pfoceedrng in the state courts, whether introduced by the legislature of by the courts themselves, are wholly inapplicable, per 6e, to the national courts. It is competent for the judges of the latter courts, in the exercise of the large dis- cretionary powers with which they are invested, to adopt such innovations, by rule, if they think proper; but untU so adopted, thej' are wholly inope- rative .in these courts. With respect to another highly important enactment, adopting the laws of the states (except where the constitution, treaties or statutes of the United States otherwise recLuire or provide), as rules of decision in trials at common law, in cases where they apply, the operation, as we have seen,' is otherwise. This provision is pros- pective, and questions are to be decided according, to the laws of the state in which the court is sitting, as they exist when such questions arise. But to determine with certainty whether the question falls under the one or the other of these provisions is not always quite easy. The student will, however, find a very able interpretation of them in the cases of Wayman et al. v. Southard et al,, 10 Wheat., 1, and' the BanTc of the United States v. Halstead, 10 Wheat. , 51 ; more full citations of which have been given in the first part of this treatise. The provision of the process act under considera- tion, it must be observed, is applicable only to the states which composed the Union at the time of its^ passage. But, by an act passed May 19, 1828j* it was extended to the states subsequently admitted into the Union, and, by an act passed August 1, 1842,' the act of 1828 was extended to the states ' Ch. 68 : 4 Stat, at Large, 378. « Ch. 109 : 5 Stat, at Large, 499. Pbactice of the Oinbmii aj^td Djstbict Coubts, 337 admitted during tlie intermediate years. The first c haf. a. section of this last-mentioned act is as follows : " The forms of mesne process, except the style, and the forms and modes of proceeding in snits in the courts of the United States, held in those states admitted to the Union since the twenty-ninth day of September, in the year seven- teen hundred and eighty-nine, in those of common law shall be the same in each of the said states, respectiTely, as are now used in the highest court of original general jurisdic- tion of the same, in proceedings in equity, according to the principles, rules and usages which belong to courts of equity, and in those of admiralty and maritime jurisdiction, accord- ing, to the principles, rules and usages which belong to courts of admiralty, as contradistinguished from courts of common law, except so far as may have been otherwise pro- vided for by acts ,of congress ; subject, however, to such alter- ations and additions as the said courts of the United States, respectively, shall/ in their discretion, deem expedient, or to such regulations as the supreme court of the United States shall think proper, from time to time, by rules, to prescribe to any circuit or district court concerning the same." The act of 1843 merely ordains that the provisions of the act of 1838 "shall he, and they are hereby, made applicable to such states as haVe been admitted into the Union since the date of said act." The second and third sections of the act of 1838 contain important provisions applicable to the old as well as new states. They are as follows : " Sec. 2. That, in any one of the United States, where judgments are a lien upon the property of the defendant, and where, by the laws of such state, defendants are entitled, in the courts thereof, to an imparlance of one term or more, defendants, in actions in the courts of the United States, holden in such state, shall be entitled to an imparlance of one term. "Sec. 3. That writs of execution and other final process issued on judgments and decrees, rendered in any courts of the United States, and the prooeedings thereupon, shall be 338 Peactice oe the Ciecuix and District Cotjets. PABT 2. the same, except their style, in each state, respectively, as are now used in the courts of such state, saving to the courts of the United States in those states in which there are not courts of equity, with the ordinary equity jurisdiction, the power of prescribing the mode of executing their decrees in equity by rules of court. Provided, however, that it shall be in thfe power of the courts, if they see fit in their discretion, ^ by rules of court, so far to alter final process in said courts as to conform the same to any change which may be adopted ' by the legislature of the respective states for i;he state courts." The foTirth and last section of the act directs that its provisions shall not extend to the national courts in Louisiana.' It may not be useless to pause here, for a moment, at the close of this general outline, for the purpose of stating with precision its practical result, which may be summed up as follows : In order to determine a cLuestion of practice (un- less it relates to imprisonment for debt)," we are to ascertain, 1, whether it is specifically prescribed by any act of congress ; if not, 2, whether it is so by the rules of the .court in which it arises ; and, if not, then finally, we are to inquire what was the practice upon the point in question in the supreme court of the state where the question arises, on the 29th of September, 1789, or if the question arises in one of the states since admitted into the Union, or if it con- cern final process, what was the practice of the state court on the first of May, 1842. A careful and judicious application of these tests, though the ' The case of Amis v. Smith (16 Peters, 303), contains an instructive commentary on this act. See,. also, the case of 8ea/rs v. Easfburn (10 Howard, 187), where it is held that a statute of a state, admitted into the Union since 1789, abolishing the action of ejectment and substitut- ing an action of trespass, is binding on the circuit court of the United States in that state, ° Vide, post, Bail and Exboution. Practice of the Cibcuit and District Courts. 339 process may in some instances require time and c hap. 8 . patience, cannot fail to lead to a correct decision. Having premised tlins much, it remains, as far as the nature of the subject will conveniently permit, to lay down more particular directions for the insti- tution of suits, and for their management through the various stages of their progress. But to do this with that degree of miauteness which is- found in books treating of the practice of a single court, as of the king' s bench in England, or of the supreme court of the state of New York, for example, so as to afford a perfect guide in regard to. every particu- lar, in every district of the Union, while it would be superfluous, would at the same time be imprac- ticable. Many things, however, are common to all the cir- cuit and district courts in every state. These I shall endeavor, as far as I am able, to make plain ; and shall, moreover, with regard to the two districts in the state of New York, descend somewhat more into particulars. SECTION II. OP THE SEyBBAI, F0KM8 OF ACTION. Suits at law, whether personal, mixed or real, -may be maintained in these courts in all the forms of action pursued in the superior courts of the several states embraced within their several respective juris- dictions. , SECTION III. OF THE LIMITATION OF ACTIONS. Although acts of limitation, embracing particular descriptions of actions, have from time to time been passed by congress, no general statute of limitatiofts has yet been enacted. Special provision has, however, been made for certain cases. By th&aot to establish and regulate the post-office department, of Marcl; 8, 1885, suits 42 330 Practice of the Ciecuit abtd District Courts. PART 2. against tlie sureties in the official bonds of pOst- masters are required to be brought within two ye^rs after th6 default of the principal.' By the act of April 80, 1790, for the punishment df certain crimes against the United States,' prose- cutions for treason Or other capital oflfeiises, willful murder and forgery exceptedj were limited to three years ; and it was also further enacted, that no "per- son should be prosecuted, tried or punished for any offense not capital, nor for any fine or forfeiture under any penal statutie, unless the indictment or information for the same should be fouUd or insti- tuted within two years from the time of committing the offense, or incurring the fine or forfeiture. In the case of Xcdams, qui tarn, v. Wood (2 Cranch, 33iS), this latter provision was held to be applicable prospectively to penalties and forfeitures imposed by subsecLuent acts. And although it speaks only of prosecutions by indictment and information, it was held to extend to actions of debt for the recov- ery of statute penalties. But by the act of March 26, 1804, the period of limitation for proseoutiOn« for fines or forfeitures arising under the revenue latos of the United States was extended to five; years' instead of the three years' limitation prescribed by the collection act of March 2, 179&, ch. 22. And by the act of April 20, 1818, relating to the importation of slaves, prosecu- tions for penalties and forfeitures incurred under it, were also limited to flm years.* ' Ch. 64, § 3 : 4 Stat, at Large, 103. But this limitation shall not he considered as running in any state or part thereof, the inhabitants •whereof have been, by the proclamation of the president, declared in a state of insurrection, during the lime the insurre^it^Qfl shall oontinxie. Act of July 11, 1863, ch. 189 : 13 Stat, at Large, SSQ. ^ Ch. 9, § 33 : 1 Stat, at Large, 119. » Ch. 40, § 3 : 3 Stat, at Large, 290. * Ch. 91, § 9 : 3 Stat, at Large, 450. PSACTIOE OF THE CiRCFIT AND DiSTBICX COUETS. 831 . By the eopyright act of February 3, 1831, prose- chap. 9. cutioas for any forfeiture or penalty incurrM under that act were limited to two years.' By the act of April 10, 1806, suits on marshals' bonds were limited to six years ; saving the rights of infants, feme coverts, and persons non compos mentis, for three years after the removal of their dis- abilities.* And in the case of Montgomery v. Her- nandez et al. (12 Wheat., 129), it was held that, where after a breach of the condition of a marshal's bond, the proceeding out of which the liability arose was suspended by appeal, whereby the right of action of the party injured was also suspended, the period of limitation did not commence until after the determination of the appeal. The foregoing are, it is believed, all the provisions to be found in the permanenj; acts of congress rela- tive to this Subject, untU the act of February 38, 1839, by the fourth section of which it is enacted, "That no suit or prosecution shall be maintained for any penalty or forfeitures, pecuniary or otherwise, accruing under the laws of the United States, unless the same suit or prosecution shall be commenced within ^«e years from the time when the penalty or forfeiture accrued : Provided, that the person of the offender, or the property liable for such penalty or forfeiture, shall, within the same period, be found within the TJnited States ; so that the proper process may be instituted and served against such person or property therefor.'" The language of this enactment, it will be per- ceived, is very comprehensive. It seems to have been intended to embrace every description of pen- alty or forfeiture imposed by any act of congress ' C!h. 16, § 13 : 4 Stat, at Large, 436. ' Ch. 81, § 4 : 3 Stat, at Large, 374. > Ch. 36, § 4 : 5 Stat, .at Lar|;e,. 331. 332 Pbactice of the Circuit and District Cotjbts. PARTS, then in force, or whicli might "be subseqnenlly en- acted ; and every form of prosecution, whether by indictment, information, libel or action of debt, and whether in personam or in rem, for the recovery of such penalty or forfeiture. If this be the true con- struction of it, it will be seen that it supersedes, and, therefore, virtually repeals, all^the other enactments above mentioned, except so much of the crimes act of 1790 as relates to other forms of punishment, and the provisions relative to suits on marshals' bonds.* With the exceptions above specified, all actions, whether real, personal or mixed, and whether arising ex contractu or ex delicto, are left subject to the local legislation of the several states, so far as such legis- lation is applicable ; for it has never been doubted that state limitation acts were embraced by that pro- vision of the judiciary act of 1789, by which it is declared 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 ■ Nevertheless, it was deemed expedient, for some reason, expressly to repeal the provisions of the acts of 1790 and 1804, mentioned in the text, with respect to cases arising under the revenue laws, which, of course, remain subject to the five years' limitation prescribed by the act of 1839. Act of March 3, 1863, ch. 76, § 14 : 13 Stat, at Large, 741. By another act of the same date (ch. 81, § 7 : 12 Stat, at Large, 757), it is enacted, " that no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or omitted, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from, or exercised by, or under the president of the United States, or by or under any act of congress, unless the same shall be commenced within two years next after such arrest, imprisonment, trespass or wrong may have been done or committed, or act may have been omitted to be done : Provided, that in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act." Practice of the Circuit and District Courts. 333 cases where they apply. '''''^ Tlie laws, then, of each. c hap, a. particular state, respectively, furnish the general rule of limitation in common law actions to the national courts, sitting in such state. These laws are a part of the lex /on,*and are to be construed and applied by the national courts in the same man- ner as by the state courts. To illustrate what is here said, it will be sufficient to cite a single case, which I am induced to select, because, while it wUl serve the purpose of illustration as well as any other, it determines, moreover, a particular question of con- siderable practical interest. The case of W Elmoryle V. Cohen (13 Peters, 312), presented the question whether the law of a state (G-eorgia) limiting the right of action (to five years) on judgments obtained in courts other than the courts of such state, was not a violation of that provision of the constitution of the United States, by which it is declared that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of other states. But the supreme court were unanimously and clearly of opinion that the case did not fall within the scope of this provision. The act of limitation in no respect impaired the validity or conclusiveness of, the judgment as to the merits in the original suit ; and only assumed to regulate the remedy — a power undeniably within the legislative authority of the states. But there is one very numerous and important description of cases to which the state limitation acts do not apply ; namely, those in which the United States are plaintififs. It was so held by Mr. Justice Story, in the case of The United States v. Hoar (2 Mason, 311) ; and in the case of The United States v. Knight (14 Peters, 301, 315), this doctrine was inci- dentally asserted by the supreme court, and treated 'Act of Sept. 24, 1789, ch. 30, § 31 : 1 Stat, at Large, 173. 334 PbA-OTICE of thj^Oibcuit and Distbict Cotjbts, PABT3. as unquestionable. It is, in fact, but an application in this country of a long established doctrine of the common law, expressed by the familiar maxim, nvl" Iwm, tem/pus ooGurrit regi; a doctrine not founded in prerogative, even in England, but resting on a great principle of public policy, which pertains alike to all governments, viz. : that the public interests should not be prejudiced by the negligence of public officers, to whose care they are confided. This prin- ciple, it is obvious, oomprehends suits instituted by public officers in behalf of the United States, no less than those brought in the name of the United States^ and the doctrine, it is presumed, therefore, is alike applicable to both descriptions of cases. In the case at Brown v. Jones (3 GraUis., 477), it was held by Mr. Justice Stoey, that the statute of limitation of Massachusetts did not apply to suits in admiralty for seamen's wages. The terms of the act (which were substantiiaUy a transcript of the statute of limitations of 21 James), were not considered to be applicable to a proceeding in admiralty ; the case moreover did not fall within the terms of the above mentioned provision contained in the judiciary act, .adopting the laws of th« states as rules of decision in trials at common law ; and, inasmuch as the admiralty and maritime jurisdiction is confided exclusively to the courts of the United States, it was doubted whether a statute of limitations of a state could, proprio mgore, apply to suits on the admiralty side of these courts. And in the case of Willard y. Dorr (3 Mason, 91), it was further held that the statute of Anne, limiting suits in the admi- ralty for seamen's wages to six years, is not opera- tive in the courts of the United States ; the colonial vice-admiralty courts not being named in the act — there being no evidence that this limitation had in fact ever been jidopted by ttem — and it being by no PeACTICE op the ClBCtriT AKO DlSTSICT OOUBTS. 335 means clear, even if it was known to have been so c hap. 9. adopted, that it would, therefore, be binding on the admiralty ooiirtB of the United States. It follows, therefore, from this brief analysis, that all prosecutions or suits for penalties or forfeitures are to be commenced within ^«e years ; that suits on marshals' bonds are to be brought within six years ; that with regard to all other suits in which the United States are plaintiffs there is no limitation; that all suits at common law between private parties are governed m this respect by the laws of the state in which they are prosecuted ; and that in regard to suits of admiralty jurisdiction (except such as are brought to enforce municipal forfeitures), there is no statute linoitation — these being subject only to such limitations as result from those principles of justice and expediency which regulate the exercise of admiralty jurisdiction. The better opinion seems to be that, in suits On penal statutes, the statute of limitations need not be pleaded ; but may be taken advantage of under the general issue. Buller' s Msi Prius, 195 ; Parsons v. Hunter, 2 Sumner, 419. SECTIPN IV. WHO AEE PKinLEGBD FROM AEKBST. The immunity from arrest of ambassadors, other public ministers, their domestics and domestic ser- vants, has already been sufficiently stated and ex- plained in the preceding chapter. Senators and representatives in congress are also privileged from arrest in all oases, except treason, felony and breach of the peace, during their attend- ance at the session of their respective houses, and in going to or returning from the same. Const. IT. S., art. 1, § 6 ; see Lewis v. JSlmendorf, 2 Johns. Cas., 333. 336 Practice of the Oiecuit and District Courts. PART 2. The npn-commissibned officers, musicians, seamen and mariners in tlie naval service of the United States are exempted during the term of their service from all personal arrests, for any debt or contract.' And no non-commissioned officer, musician, or pri- vate in the armyt of the United States, "shall be arrested, or subject to arrest, or be taken in execu- tion for ajiy debt, under the sum of twenty dollars, contracted before enlistment, nor for any debt con- tracted after enlistment." ° By the common law, parties to a suit, their attor- neys, counsel and witnesses, are privileged from arrest, while going to, attending upon, and return- ing from, court ; and such it is believed is the rule in all the districts of the union. This privilege, how- ever, extends only to exemption from arrest, and does not preclude the service of a mere summons to answer. Peters' s C. C. Eep., 41. TnEurfs case (4 Dall., 387 ; -S'. C, 1 Wash. C. C. Rep., 186), it was held that the court, in which a vritness is attending, has authority to discharge him from arrest made under process from another court. A witness attending the circuit court for the district of Penn- sylvania was accordingly discharged from arrest in virtue of process issued,, by the supreme court of , the state." ' Act of July 11, 1798, eh. 73, § 5 : 1 Stat, at Large, 594. 2 Act of March 16, 1803, ch. 9, § 33 ; 1 id., 133. ' The process in this case was a capias ad satisfOfdendum. The motion to discharge was resisted on the ground that this privilege did not extend to oj"re«t in execution; and in addition to several English authorities cited in support of it, the case of Stwrret (1 Dall., 356) was relied upon, in which Chief Justice M'Kean, at nin prius, recognized this distinction between mesne and final process, and refused to dis- charge a witness taken in execution. It was contended, moreover, that the discharge would subject the sheriff to an action for an escape, should the state court adhere to this decision of the Chief Justice. But the circuit court denied the existence of the distinction contended for, and held also that the discharge of the party, by a court having' Pbactice of the Cieouit and Disteiot Oouets. 337 CHAP. S. SECTION V. OF THE FIRST PBOCESS. We have already seen, that the forms of process used in suits at law in the supreme courts of the several states are adopted by congress for the prose- cution of suits in the national courts.' In most of the states, it is believed, suits at la-w- are commenced by the writ of capias, correspond- ing substantially with the English capias ad respondeTidum. In the state of New York this was the only mode of instituting personal actions against natural per- sons, until, by the Revised Statutes, the plaintiff was permitted, at his option, to commence his suit by merely filing, in the ofllce of the clerk of the court, a declaration ; entering the usual rule to plead ; and serving a copy of the declaration, together wit^i a rule to plead, personally on the defendant. This legislative regulation has been adopted by rule in the circuit and district courts of the northern district.^ In the southern district suits at law, not affecting the title or possession of competent jurisdiction, would protect the sheriff, even though it should be considered erroneous by the Qourt in which he might be sued for the escape. ' The practice of using parchment instead of paiper for all writs was probably universally adopted originally in the federal courts. Whether the use of this material would be considered essential to the validity of process in these courts, the decisions of the courts, as far as I am in- formed, afford no means of determining*. In the state courts of New York parchment was considered indispensable for this purpose, until, by an act of the legislature, passed in 1815, the use of paper was expressly authcwized. Sirice that period, the practice of the state courts, in cases not otherwise provided for, has been adopted by general rules in each of the national courts in New York. In these ' courts, therefore, however it may be in other states, parchment is not now necessary. « See Appendix, Rule 11, D. C. N. D. N. Y. 43 838 Peactice op the OiBCtrir and District Co'aBTS. PARTS, land, are required to be commenced by capias ad respondendum or summons,' ' The following explanatory olwervations relative to the ruleB of the national courts in New York may be usefnl in this place. They were framed before the late radical reorganization of the state judiciary and the adoption of a new system of procedure ; and, with slight excep- tions, were in accordance with the antecedent practice of the former supreme court of the state. The new state code of practice has not been adopted by the national courts, and their practice remains unal- tered. By one of the rules of the circuit court of the southern district it is declared, that, " JU cases not provided for by the rules of that court, the rules of the district court of the southern district of New Tork, for the time being, whether now in force or subsequently addpted, so far as the same are applicable, are to be considered as rules for this court." And by a rule of the district court, it is declared, that, " in all cases not provided for by the rules of this court, the rules of the circuit court, so far as the same may be applicable, shall regulate the practice of this court ; and when there is no rule of the circuit court to apply, then the rules of the supreme court of this state, now in force, so far as the same may be applicable, shall govern." Except, therefore, in the few in- stances in 7f hioh the rules of the two courts conflict, they are reciprocal in their operation so far as they are applicable. Hence the reference in the text to a rule of the cirpuit court as evidence of the practice in both courts. And with respect to the latter clause of the above cited rule of the district court, adopting, in cases not expressly provided for, the practice of the supreme court of this state — that, also, it will be per- ceived, is to be regarded as equally the rule of the circuit court. It Is of some importance, therefore, to observe that these rules are under- stood to have been declared in 1838. The rules of the district court of the northern district underwent a general revision in 1831. Some of them have since been altered, and new rules have been added. They are conformable, as will be seen, In almost all respects to the practice of the supreme court of the state befpre the adoption of the present Code of Procedure, many of the most important innovations of latter years having been specially adopted by rule (though in a few instances, with some modification), and a general rule having been made adopting the existing practice of the supreme court of the state as regulated by the Revised Statutes and the rules of that court. See Appendix, Eule 88. And jn the circuit court in this district 9, rule has been made declaring that, "in cases not provided for by the rules of this court, the rules of the district court for the northern distppt of New Tork so far as the same are in their nature applicable, are to be considered as rules of this court." See Appendix, Rule 6, C. 0, N- D. N. Y. These PbACXIGB op the ClECXTIl AND DiSTBICX COUKTS. 33£t In New England, the process is of a peculiar char- c hap, a. acter. It authorizes the actual seizure, in the first instance, of the defendant's property, to be held as security to satisfy such judgment, if any, as may be obtained against him. In some, if not all of these states, this process also contains a command, for want of property, to take the body of the defendant. It is served according to circumstances, and at the election of the plaintiff, in either of the three follow- ing modes: 1. By attaching the property of the defendant only to a nominal amount, and summon- ing the defendant to appear ; 2. By a seizure of aU the property of the defendant, or a portion thereof sufficient to satisfy the plaintiff's demand; or, 3. By arresting the body of the defendant. rules, therefore, taken in connection with the proviaions of the judicial act adopting the laws of the states as rules of decision in the national courts (the two codes together covering as they do the whole field of litigation in suits at common law), have greatly simplified the proceed- ing of the courts of this district ; and will, to a great extent, preclude the question (sometimes an embarrassing one), whether the point in judgment does or does not fall within the action of the state laws. Thus, for example, no doubt can be entertained upon the question whether the writ of right, or the action of dower, or of ejectment in the ancient form, may stUl be prosecuted in this court ; the first two having been abolished, and the last having been modified by the abolition of fictitious parties, and otherwise by the Revised Statutes. It is not to be understood, however, that the authority of the circuit and district courts to conform their practice to that of the state courts is unlimited. The laws of a state regulating the proceedings of its own courts cannot authorize the national courts to depart from the modes of proceeding prescribed by the constitution and laws of the United States. And, therefore, where, in an ejectment suit, the parties agreed to waive a trial by jury, and to submit both matters of fact and of law to the decision of the court, and a bill of exceptions, reciting all the evidence in the case, was taken to the decision, the supreme court refused to look into the alleged errors either of fact or law, in a proceeding so irregular, and affirmed the judgment. Kehep et al. v. Forsyth, 21 Howard, 85 ; see, also, GUd v. je^mtin, 18 Howard, 135 ; Bwydamy. MS»(M»M(OT, 20 Howard, 438. 340 ' Peactice of the Oibcuit and Disteict Oottbts. PAKT 3. Whence it issues.]. The process, in whatever form, issues from the court in which the suit is iastituted, imder the seal of the court which is affixed by the clerk, and under his signature.' To whoTA directed.'] It is directed to the marshal of the district, by his official description ; or, when he or his deputy is a party, to such disinterested person as the court or a judge thereof shall appoint to execute it. In some of the districts certain official persons are designated by general rule to serve pro- cess in all cases in which the marshal or his deputy is a party. Thus, in the southern district of New York, the sheriff and under-sheriff of the city and county of New YorTc are appointed both by the cir- cuit and district courts for this purpose. And, ia the northern district of New York, the sheriff and the under-sheriff of the county of Oneida are ap- pointed for this purpose." ^ Style.] In aU the ckcuit and district courts, as well as in the supreme court, all process is in the name of the president of the United States, to which official description the words "^ America ^^ are usually, though it is presumed unnecessarily, added. Instead of the mandatory phrase ordinarily used in the state courts (process from which runs in the name of the people), viz., "we command you" the ' But, where there are sev.eral defendants residing in different districts in the same states the suit may be instituted in either district, and a duplicate writ issued to the marshal of the other district, and the plaintiff may have execution directed to the marshal of either district. And when in a local action the defendant resides in a different district in the same state from that in which the suit is brought, the- plaintiff may have original and final process against the defendant directed to the marshal of the district in which he resides. And when the land or other subject-matter of a locsd action lies partly in one and partly in another district in the same state, the action may be brought in either district. Act of May 4, 1858, ch. 27 : 11 Stat, at Large, 372. « Appendix, Rule 77, D. C, Pbactice of the Circuit and District Courts. 341 words, you are Thereby commanded, are, or ougM to o hap. g. be, used. Teste.] All process issuing from the circuit courts is tested in the name of the chief justice of the supreme court of the United States, or (if that oflBlce be vacant) in the name of the associate justice next in precedence ; and all process issuing from the dis- trict courts is tested in the name of the judge, or (if the office be vacant) of the clerk of such court. Return.] It is made returnable before the judge or judges of the court, by its descriptive appellation, thus : "Before the judges of the circuit (or the judge of the district) court of the United States, in and for the district of The teste and return days being in some degree the subject of arbitrary regula- tion, different rules with regard to them may prevail in different districts. By a rule of the circuit court of the southern dis- trict of New York, it is provided, concerning writs and process, that, "usually, they are to bear teste the day they are issued, and may be returned the same day, or any day thereafter (Sundays excepted), in term or vacation ; but alias siaA. pluries writs may be tested on the return day of the next preceding process ; and writs of execution, attachments for contempt of court, or non-payment of costs, writs of error, mandamus, or inhibition, and writs on recognizance of bail in civil causes, must be return- able in term." In the district court of that district, the capias, except in suits on baU bonds, must be returnable in term. In the circuit and district courts of the northern district, process issued in term may be tested on any day in that term, and made returnable on any day in the same term or the next term ; and if issued in vacation, may be tested on any day of the preceding term, and made returnable on any day in the next 342 Pbacticb of the Oiecuit and Distbiot Ooubts. PABTa. tenn, in conformity with, the practice of the supreme court of the state as prescribed by the Revised Statutes." With very few exceptions, no particular building is designated by law as the place in which the courts are to be held. It is, therefore, in general, suffi- cient, as well in. the return as in the teste of writs, to name the city or village in which the court is next to sit, last sat or is sitting, as the case may be^ Thus, ia the northern district of JN"ew York, for example, the marshal is commanded to have tlie body of the defendant before the circuit or district court of the United States, in and for the northern district of New York, to be held at Albany (or else- where, as the case may be), ia the said district, before the judges or judge of the said court, on the day of next, to answer &c., &c. And the teste is as follows : "Witness , Enquire, Chief Justice of the supreme court of the United States (or, if in the district court, , Esq[uire, judge^ of the said court) at Albany (or elsewhere, as the case may be), the day of , in the year of our Lord, &c., &c. But when the court-house is designated by law, it is proper, and perhaps necessary, that process should be made returnable at such particular place. Sermce.l The writ may be served in any part of the district in which it is issued, in like manner as writs issued to sheriffs may be executed ia their respective counties. The service may be made either by the ■ marshal, by his general deputy, or by a special deputy or bailiff constituted for that purpose, either by the marshal himself^ or, it is presumed, by his general deputy. Such, at least, is the law ia England, and in the state of New York. For, though the maxim ■ Appendix, Role 13, D. G. Pbacticb op the Ciscuit and Disteict Couets. 343 delegata poiestas non potest delegari will not permit chap. a. a general deputy to delegate or assign his general authority, he may, nevertheless, appoint another to do a particular act. Hunt v. Burr el et al., 6 Johns. Eep., 137. At common law, ra actions against several joint defendants, all. must be served with process, or those not served must be prosecuted to outlawry, before the plaintiff is authorized to proceed in his action. This inconvenient rule has been variously modified in some of the states, by substituting some other pro- ceeding to compel appearance as equivalent to out- lawry. In others (such, at least, is the case in Penn- sylvania and New York), the rule, as it respects actions arising on contracts, has been abolished alto- gether, so far as it presents an obstacle to the plaint- iff's proceeding to judgment and execution against such of the defendants as are found. And, without descending to particulars, it is sufficient to remark, that, upon this point, the laws of the respective states furnish the rule of proceeding, and determine the force and effects of judgments and executions in suits of this description, in the several courts of the United States, in such states. In each of the national courts in this state there is a rule ordaining that, "When the capias has been served on the real party intended, the plaintiff, before or after its return, may amend, of course, any error in the name of the party inserted in the process, giving the defendant notice of such ^amendment." And, by another rule of the circuit and district courts of the northern district, "the court will not entertain a motion to set aside the process or proceedings in a cause on the ground of the misnomer of the party arrested ; but will leave him to his remedy by a plea in abatement." I Appendix, Eules 16, 16, D. C. 344 Peactioe op the Oibouit and District Oouets. F AHT8 . As it regards the mode of service and the duty of the marshal consequent thereupon, no precise direc- tions can be given applicable to all the districts. Where, by an act of congress, or by the local law and practice, the process in any given case requires the defendant to be held to baU, or to indorse his appearance upon the writ, it is the duty of the mar- shal to make an actual aijrest, in order to compel a compliance with the exigency of the writ, an^ in default of such compliance to commit the defendant to prison. But, where no such act is required of the defendant, it is sufficient to show him the writ, and to serve Mm with a copy of it. Thus, by the Eevised Statutes of the state of New York, when the capias "does not require the defendant to be held to baU, he may indorse his appearance on such writ, or, if he refuse to do so, the sheriff may return the writ personally served." And by a rule of the district court of the southern district of New York, "when baU is not rec(uired it shall be a sufficient service of the capias or other mesne process in personam for the marshal to show such process to the defendant, or offer to show it, and at the same time leave with him a true copy thereof. In which case the marshal shall indorse his return, ^personally served.^ The same rules and orders may be taken on filing siich return, as if common bail had been filed, or the defendant had indorsed his appearance on such pro- cess." The rule of the circuit and district courts of the northern district is substantially the same.' But in the circuit court of the southern district, it would seem the defendant ia that court is required to indorse his appearance. That civil process cannot be served on Sunday — but that after a negligent, though not after a volun- tary escape, the defendant may be retaken on that 1 Appendix, Bole 14, D. C. Peactice of the Oiecuit and Disteict Couets. 345 day ; that no man can be arrested in Ms own house, c hap, a. provided the outer door be shut— but that if the outer door be open, the officer, having gained admit- tance, may break an inner door to make an arrest ; that the marshal may break open the outer door to retake a prisoner who has escaped, and that bail may do the same to arrest and surrender their prin- cipal — are principles which it is believed are recog- nized in all the districts in the union. Jail liberties.] "Persons imprisoned on process issuing from any court of the United States, as well at the suit of the United States as at the suit of any person or persons in civil actions, shall be entitled to the like privilege of the yards or limits of the respective jaUs, as persons confined, in like cases, on process from the courts of the respective states, are entitled to, and under the like regulations.'" Under this act it is obligatory upon the sheriff to take a bond for the limits from a prisoner committed to his custody in virtue of process issued from a court of the United States, and false imprisonment would lie against, him if he should refuse. By it congress have adopted the state laws relative to jail liberties, and the bond has the same incidents and legal effect as a bond taken under the laws of the state. TTie United States v. NoaJi, 1 Paine' s C. C. R., 368. According to the construction which has uniformly been given to the acts of congress adopting the state laws in relation to process, and the proceedings thereon, this act is doubtless to be considered as applying only to state laws in force at the time of its passage. It is on this account the more impor- tant here to notice an act of more recent date. By the act of 19th May, 1838," it is enacted, " That writs ' Act of January 6, 1800, ch. 4, § 1 : 3 Stat, at Large, 4. » Ch. 68, § 3 : 4 Stat, at Large, 378. 44 346 Peactice of the Ciecuit and Disteict Cottets. F ART a . of execution and other final process, issued on judg- ments and decrees rendered in any of tlie courts of the United States, and the proceedings thereon, shall be the same, except their style, in each state, as are ' now used in the courts of such state : Provided, Tiow- emr, that it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts as to- conform the same to any change which may be adopted by the legislatures of the respective states for the state courts." In the case of The United States v. KnigM (14 Peters, SQl), this act was held to embrace the state laws in force at the date of its enactment rela- tive to jaU liberties. This, indeed, so far as private suitors alone were concerned, was considered very clear. But the case presented another very highly important question, viz. : whether the act embraced executions and the proceedings thereon issued on judgments in favor of the United States. It was insisted, by the attorney-general, that the United States were never to be considered as embraced in any statute, unless expressly named. But the court, admitting'this to be the rule in constructing acts of limitation, overruled the objection, using the follow- ing humane, just and salutary language : ' ' Without undertaking to lay down any general rule as -appli- cable to cases of this kind, we feel satisfied that when, as in this case, a statute which proposes only to regulate the mode of proceeding in suits does not - divest the public of any right — does not violate any principle of public policy; but, on the contrary, makes provisions in accordance with the policy which the government has indicated by many acts of previous legislation, to conform to state laws, in giving to persons imprisoned under their execution the privilege of jail limits, we shall but carry into Practice of the Cieouit and District Goubts. 347 effect the legislative intent by construing tlie execn- c hap, a. tions at the suit of the United States to be embraced within the act of 1828.' ' SECTION VI. OF BAIL. In what cases it may ie exacted. With the exception of two descriptions of suits (as far as I have been able to discover), the right to hold the defendant to bail is left by the laws of congress entirely at large, to be determined by the local laws and practice in each district. It is now well settled by the decisions of the supreme court that the subject of arrest and bail belongs to the category of procedure. The prospect- ive adoption of the state laws, by the judiciary act, as "rules of decision," does not, therefore, embrace it. It was provided for by the process acts of 1789 and 1792, by which the then existing state laws of procedure were adopted. The policy of these acts has since been extended to the new states ; and, so far as final process is concerned, re-asserted, with regard to all the states, by the act of May 19, 1828, and again extended by the act of August 1, 1842. The two descriptions of suits above referred to, in which bail is expressly required by act of congress, are those for duties and those for pecuniary 'penal- ties. They are, therefore, both coinprehensive and important. By the collection act of March 2, 1799, it is pro- vided, "that in all cases in which suits or prosecu- tions shall be commenced for the recovery of duties or pecuniary penalties prescribed by the laws of the United States, the person or persons against whom process may be issued shall and*may be held to special bail, subject to the rules and regulations wMch prevail in civil suits in which special hail is 348 Pbactioe of the Oiecuit astd Disteict Coukts. PABTs. required.''''^ In actions upon penal statutes, accord- ing to tlie law of England and of most of the states, the defendant conld not in general be held to baU. Hence the necessity of this enactment in regard to them ; and suits for duties were doubtless included, for greater caution, on account of their paramount . importance. The right to exact bail from, a defendant of course implies the right to imprison him if he fails to give bail ; and, on the other hand, the abolition by law of the right to imprison implies the abolition of the right to hold to bail. It is proper, therefore, here to notice the late acts qf congress relative to imprison- ment for debt. By the act of 28th February, 1839 (vol. 9, p. 962), it is provided that "no person shall be imprisoned for debt in any state on process issuing out of a court of the United States, where, by the laws of such state, imprisonment for debt has been abolished; and where, by the laws of a state, imprisonment for debt shall be allowed under certain cdnditions and restrictions, the same conditions and restrictions shaU be applicable to the process issuing out of the courts of the United States ; and the same proceedings shall be had therein as are adopted in the courts of such states." By an act of January 14th, 1841,^ this act is declared to embrace future as well as existing state laws. The decision in the case of the United States V. KnigJit, just above cited, leaves little room for doubt that this act vsdll be construed to embrace the United States in common with private suitors. The adoption by congress of a state law must be exactly eqLuivalent (within the limits prescribed for the operation of such law) to the enactment of a law by congress in the same terms. It is presumed, ' Cai. 23, § 65 : 1 Stat, at Large, 676. > Ch. 2 : 5 Stat, at Laige, 410. Practice of the Circuit anb District Ootjrts. 349 therefore, that even in suits for duties, whether c hap, a. actions of assumpsit (which, however, are of rare occurrence), or actions of debt on duty bonds, no bail can now be exacted where, by the local law, imprisonment for debt has been abolished, unless such law contains some exception which embraces the case. In the case of Leonard v. CasMn (Bee's Rep., 146, which arose under an act of congress prior to that above cited, of 1799, but in which the terms of the enactment were exactly the same) it was decided, in reference to the law of the state of South Carolina and of England, that in an action upon a penal statute of the United States the defendant could not be held to baU, except in pursuance of a judge's order to be obtained upon an affidavit, satisfactorily showing probable cause of action. But, by an act of the legis- lature of South Carolina, passed in 1769, it is provided that no person shall be held to bail for debt, unless duly attested, &c. ; novfor any other cause, without a judge' s order on probable cause of action shown, to be indorsed on, or annexed to, the writ, &c. This decision, therefore, is in strict accordance with the qualification, "subject," &c., in the act of congress above recited. By the Revised Statutes of New York it is declared "that no person shall be held to bail on a capias ad respondendum, unless the true cause of action be particularly expressed therein." This provision, however, is only declaratory of the law as it was before, and is understood to mean no more than that, ia order to hold the defendant to bail, it is necessary to insert the ac etiam clause in the vmt. This is also expressly required by the rule of the national courts in New York.* And the rules of the JAppendix, Rule 17, D. C. N. D. of N. T. 350 Practice op the CiEctriT and Disteict Couets. PAHTs. courts in tlie southern district go further than this, and require the true cause of action to be expressed in all cases. * Bail to the arrest. How taken.] In most, if not all, of the New Eng- land states, the distinction between bail .for appear- ance and bail to the action does not appear to exist. But upon the service of the process, the persons who are to become bail, enter into their engagement as such by indorsing their names upon the writ ; and by this single act become, or rather assume, the responsibility of special bail. In the other states, the course of proceeding in this particular is understood to correspond substan- tially with that of the English courts. In the northern district of New York, the practice, in this respect, is that prescribed by. the Revised Statutes of the , state of JSTew York, and a former rule of the. supreme court. Upon the arrest of the defendant, upon bailable process, the oflBicer is authorized to exact a bond, with two sufficient sureties, in a penalty equal to the sum indorsed on the writ (which is usually about double the amount for which the action. is brought), conditioned that such defendant will appear in the action, by putting in special bail within twenty days after the return day specified in the writ, and by perfecting such bail, if required, according to the rules and practice of th^ court.' Before the passage of the act, the bond in use, in terms, required the defendant to appear on the return day of the writ ; though in practice he was allowed twenty days thereafter for that purpose ; so that the form here prescribed is in reality in con- formity with the practice as it was before. But in ■Appendix, Rvdes 18, 24, D. C. N. D. N. T. ^Practice of the Circuit ai^d District Courts. 351 the courts of the southern district, the time for put- c hap. 2. ting in special bail, prescribed by the rules of these courts, is ten days after the return day of the writ. The form of the bond, in these courts, also con- tinues the same as formerly, being, generally, for the appearance of the defendant on the return of the writ. By whom taken.} When bail is tendered at the time of the arrest, and before the actual commit- ment of the defendant by the marshal to prison, it is obvious that the bond is to be taken by and to the marshal. But we have already seen' that persons arrested under the civil authority of the United States are to be committed to the custody of the sheriffs in their respective districts ; that the respon- sibility of the officer, by whom the arrest has been made, ceases upon the delivery over of the prisoner ; and that the sheriff immediately becomes liable in case of an escape. And, as ■ this doctrine is laid down without qualification, it would certainly seem to follow that, when bail is tendered after the com- mitment of the defendant, the bond is to be taken by and to the sheriff; It is understood, however, that, so far as bail is concerned, the sheriff, upon the receipt of the prisoner, does not become the substi- tute of the marshal, but that it is the marshal and not the sheriff who is bound to receive bail when offered, and who, consequently, is responsible for the due appearance of the defendant, by putting in and perfecting special bail. In practice, when it is inconvenient for tlje marshal to be present in person, he may, doubtless, authorize the sheriff or keeper of the jaU., for him and in his name, to receive the bond. The form and legal effect of the security to be given ; the obligation of the marshal to receive bail ' Swpra, p. 803. 352 Peactice of the Ciecttit and Disteict Couets. PART 2. when tendered ; the power of the defendant volun- tarily to surrender himself in discharge of his baU, and of his bail to surrender him ; and, in short, the obligations, rights and responsibilities of all parties concerned, are regulated by the local' law in each district, except in cases provided for by rules of court. The provision contained in the Revised Statutes of New York, authorizing the surrender of the prin- cipal in the bail bond in discharge of his baU, has been expressly adopted by rule in the district court of the northern district of this state.' And also in the courts of the southern district. Discharging the defendant and mitigating hail.'] Before the statute of 12 Geo. I, which requires an affidavit of the debt dr cause of action to be filed, preparatory to the issuing of process requiring the defendant to be held to baU, the practice prevailed in the English courts, of permitting a defendant, who had been held to baU, to summon the plaintiff before a judge to show cause of action ; and if he failed in doing so, of discharging ihe defendant upon his indorsing his appearance before the return of the writ, or upon filing common baU if after ; and when the indebtedness proved was insufficient in amount to justify a demand of bail in the sum exacted, the amount was mitigated. No such pre- vious affidavit being required in New York, this early English practice was adopted here, and is to be regarded as existing in each of the three nattonal courts in this state. . It prevails also in the Pennsyl- vania districts. Some diversity of opinion is understood to have prevailed in the national courts, relative to the right of a defendant to be discharged upon filing common bail, on the ground of his having been discharged as • Appendix, Bale 68. Peactice of the Oiecuit and District Courts. 353 an insolvent debtor. Tlie rtde to be extracted from c hap. 2. the few reported cases upon tbe subject seems to be, that this privilege does not extend to cases, either where the debt was contracted and made payable out of the state, although the discharge was granted within it, or, where the discharge was granted out of the state, although the debt was contracted and made payable within it; but that it is limited to cases where the debt has been incurred and made payable, and where the discharge hks been granted, at least within the same state, if not in the state where the question arises. Campbell v. Claudius, Peters' s C. C. Rep., 484; Read v. Chapman, id., 404; Craig y. Brown, id., 352. Where, on a rule to show cause of action, the plaintiff produced a positive affidavit of debt, the allegation on the part of the defendant that a suit for the same cause of action had been instituted in another court, was not listened to. Post et al. v. Sarmento, 2 Wash. C. C. Rep., 198. Proceedings in case the defendant fail to appear. ] Of the responsibility of the marshal for the defend- ant' s appearance by putting in special bail ; of his remedy on the bail bond; and of the plaintiff's right to take an assignment of the bond, it is deemed unnecessary to treat at large. I^ese are all matters concerning which resort must be had to the local law and rules of court, to ascertain both the remedy and the mode of pursuing it. By the Revised Statutes of New York, the former regulations on this subject in this state were in some respects changed. These modifications are adopted in the courts of the northern district by their general rules adopting the practice of the supreme court of the state in cases not otherwise provided for.* ' Appendix, Rule 83, D. C. 45 354 Practice of the Circuit and District Courts. PART 2. The rule of the district court for the southern dis- trict of New York is as follows : "In suits in which the 'United States shall be plaintiffs, or in which they shall be interested, though not plaintiffs, or in which the defendant shall be held to bail, the assignment of the bail bond, and the acceptance thereof, by the plaintiff's attorney, shall not be deemed to preclude him from excepting to the suflBiciency of the special bail ; and the marshal shall become responsible for good bail, in like manner as if the bail bond had not been assigned and accepted as aforesaid." In the courts for the northern district of New York there are also rules of the same import. Extent of the liability of'bail.'\ The Revised Stat- utes of New York contain a new provision upon this subject, which, as it will probably be regarded as affording a "rule of decision," operative in all the national courts in this state, it is proper to notice. Where the sheriff, upon the neglect of the defendant, and for his own indemnity, puts in special baU, it is enacted that "the putting in such bail by such offi- cer shall not be deemed a performance of the condi- tion of the bail bond taken on the arrest ; but the officer may, notwithstanding, prosecute such bond, and recover the amount of aR damages he may have sustained by the neglect of the defendant to put in bail." Terms on which suits on the hail hond will he stayed or set aside.} These depend entirely upon the local practice and rules of the court.' In each of the national courts in New York there are rules upon this subject, corresponding substantially with the former ' In the state of New York the courts are, hj statute, expressly author- ized, in suits upon bail bonds which have been assigned to the plaintiff, to give such relief to defendants as may be just ; and it is declared that all orders of the courts for that purpose shall have the effect of a defeas- ance of the bond. 3 K. S., 380. Practice op the Cikcuit and District Courts. 835 practice, in this particular, of the supreme court of c hap, a. the state.^ The rule of the circuit court of the south- ern district is substantially the same. These rules provide for the ordinary case of an application to be relieved from the consequences of a neglect to put in baU to the action in proper time, where no legal impediment has arisen to the further prosecution of the suit. But there are also extraordinary cases ifk which the baU are entitled to relief. As in the event of the death of either party at certain stages of the original suit.^ ' Filing common hail, or evterinff am, appearance for the defendant. 1 It may sometimes happen, when the defendant neglects to appear in pursuance of the condition of the bail bond, that the plaintiff would prefer dispensing with special bail rather than incur the delay which would be occasioned by proceeding: against the officer, to compel an appearance, or by taking an assignment .of the bail bond. The law® of this state long since made provision for such a, case. The former act authorized the plaintiff, in case the defendant did not appear within doiuble the time allowed him for that purpose (forty days after the return day of the writ), to file common bail for the defendant, and then to proceed against him as if he had appeared by putting in special baU. This prac- tice is supposed to be stOl subsisting ia the national courts of the southern district. But, as by the rules of these courts, the defendant is allowed but ien days after the return day of the writ to put in. baU, com- mon bail may be filled by the plaintiff, it is presumed, after the lapse of twenty days. By the Eevised Statutes the form of proceeding for this purpose is changed. The plaintiff is now authorized, after the expiration of the same time, to " enter the defend- ' Appendix, Rule 35, D. C. N. D. ' 2 Sand. Eep., 61, &; 1 Johns. Eep., 515 ; Cowp. R., 71. 356 Peacticb of the Ciecuit and Disteict Ootjets. PAST 2 . ant's appearance." And this, under the rules of the courts for the northern district, is the practice of these courts. The mode of entering the appear- ance, is by entering, in the common rule book, a rule that the defendant's appearance be, and the same is, , hereby entered. Special hail. When, and Jiow put in.] The time allowed to the defendant to put in special baU depends upon the local law and rules of court. In the national courts for the southern district of N'ew York, as we have seen, the time allowed in ordinary cases is ten da^/s after the return day of the writ ; and in suits upon bonds for the payment of duties, such bail is re- quired to be put in, and if excepted to, justiJBled, on the return day of the writ. In order to give effect to this latter regulation, the marshal ought to exact a bail bond, conditioned for the appearance of the defendant on such return day. In the courts for the northern district, the time prescribed in ordinary cases is twenty days after the return day of the writ, in conformity with the prac- tice in the state courts.' . The judges of the several courts may take acknowl- edgments of baU, in suits pending in their courts respectively. But the want of some further pro- vision for the accommodation of suitors was early felt, and by the act of 8th May, 1792,^ the clerks of the several courts were authorized, "in case of the absence or disability of the judges, to take recog- nizances of special baU, de 'bene esse." These pro- visions being found inadequate, an act passed in 1812 authorized the circuit court to appoint commis- sioners for that purpose ; and by a subsequent act, ' Appendix, Rule 24, D. C. » Ch. 36, § 10 : 1 Stat, at Large, 375. Practice of the Circuit and District Courts. 857 passed in 1817, the commissioners appointed in pur- c hap, a. suance of it are empowered to act in cases pending in th.e district as well as circuit courts.' And in those districts in wMch. there are no circuit courts, and in which the district courts are invested with the original jurisdiction of the circuit courts, the power of appointing- these commissioners is also exercised. Who are disqualified from becoming special bail.'] In each of the national courts ia New York there is a rule prohibiting the marshal, his deputies and all other persons concerned in the service of process, from becoming bail, except for the purpose of sur- rendering the defendant ; in which case the surrender must be made, in the courts in the southern district within eight, and in the district court of the northern district, witMn fourtem days, after special bail shall have been put in.^ It is a rule in the English courts, that no attorney shall become bail. This was the rule in the supreme court of New York, and is to be considered as a rule in the national courts here. The general qualifica- tion of baU is, that they should be housekeepers, or freeholdel"S, and respectively worth double the sum for which the defendant is held to bail, after pay- ment of all their debts. But in the courts for the southern district of New York it is provided by rule, that, in every recognizance of bail in a civil suit pending therein, the sum for which the suit is instituted shall be expressed in the baU piece, and every notice of baU shaU express the sum demanded in the suit, and in such suits where the sum demanded exceeds ten thousand dollars, two or more bail may justify foi' proportionate parts of such amounts, in sums to be determined by the judge. • See, ante, p. 106. » Appendix, Rule 75, D. C. N. D. 358 Practice of the Oiectjit and Disteict Couets. F ABT8 . Excepting to and justifying hail.} The time ' allowed in the courts of the southern district of this state, for excepting and notice thereof, is four days; for justification, four days. In the courts for the northern district the time allowed for exception and notice is twenty days, after notice of bail ; the time for justification, eight days, of which, four days' notice must be given. In the northern district of New York bail may. justify in open, court, or before a judge at chambers, or before the clerk, with the right of appeal in the last case to the court or judge at chambers. In the southern district, baU may justify before the clerk, or one of the commissioners to take affidavits, &c., appointed by the courts, with the like right of appeal. Of bail in suits in which judgment may be rendered at the return term. It is necessary here to notice certain descriptions of suits of great importance and of frequent occur- rence, concerning which, congress has thought proper to prescribe regulations incompatible with the ordi- nary rules relative to baU. By the act of March 3, 1797,' it is enacted, that, in suits against delinquent revenue officers or other per- sons accountable for public moneys, "it shall be the duty of the court where the same may be pending to grant judgment, at the return term, upon motion, unless the defendant shall, in open court (the United States' attorney being present), make oath or affirma- tion that he is equitably entitled to credits, which had been, previous to the commencement of the suit, submitted to the consideration of the accounting officers of the treasury and rejected ; specifying each particular claim so rejected in the affidavit, and that ' Ch. 30, § 3 : 1 Stat, at Large, 513. Pbactice of the Circuit and District Courts. 359 lie cannot then come safely to trial. Oath or afflrma- c hap, a. tion to this effect being made, subscribed and filed, if the court be thereupon satisfied, a continuance untU the next succeeding term may be granted ; but not otherwise, unless as provided in the preceding section." The preceding section referred to declares that in suits against public delinquents, copies duly authenticated, in the manner therein specified, of bonds, contracts or other papers on file in public offices at the seat of government, shall be received in evidence : ' ^Provided, that where suit is brought upon a bond, or other sealed instrument, and the defendant shall plead 'non est factum,' or, upon motion to the court, such plea or motion being verified by the oath or affirmation of the defendant, it shall be lawful for the court to take the same into consideration, and (if it shall appear necessary for the attainment of justice) to require the production of the original bond, con- tract or other paper specified in such affidavit." By the act of March 2, 1799,^ it is enacted "That where suits shall be instituted on any bond for the recovery of duties due to the United States, it shall be the duty of the court where the. same shall be pending to grant judgment at the return term, upon motion, unless the defendant shall, in open court, the United States attorney being present, make oath or affirma- tion that an error has been committed in the liquida- tion of the duties demanded upon such bond, speci- fying the errors alleged to have been committed, and that the same have been notified, in writing, to the collector of the district, prior to the commencement of the return term aforesaid ; whereupon, if the court be satisfied that a continuance until the next succeeding term be necessary to the attainment of justice, and not otherwise, a continuance may be granted untU the next succeeding term, and no ' Ch. 33, § 65 : 1 Stat, at Large, 676. 360 Practice of the Circuit and District Courts. PARTS., longer." ' And in the act of Marcli 3, 1825," regu- lating tlie post-office department, it is enacted "Tliat in all suits or causes arising under this act, the court shall proceed to trial, and render judgment the first term after such suit shaU be commenced : Provided, always, that whenever service of the process shall not have been made twenty days at least previous to the return day of such term, the defendant shall be entitled to one continuance, if the court, on the statement of such defendant, shall judge it expe- dient : Provided, also, that if the defendant in such suit shall make affidavit that he has a claim against the general post-office, not allowed by the post- master-general, although submitted to him conform- ably to the regulations of the post-office, and shall specify such claim in the affidavit, and that he could not be prepared for the trial at such .term for want of evidence, the court, in such case, being satisfied in those respects, may grant a continuance until the next succeeding term." This section is referred to, and its provisions expressly adopted by the act "to change the organization of the post-office depart- ment," &c., of July 2, 1836.= To give effect, as far as possible, to these regula- tions, without at the same time dispensing with special bail, in those districts especially, in which ' In the case Ex patri Davenport, 6 Peters, 661, it was decided, that, according to the true interpretation of this section, the legislature was to he considered as having intended no more than to interdict the defendant from delay by means of sham pleadings or other pretended defenses, in fraud of his ohligation to make punctual payment. It was not intended to debar him from any plea which, upon general principles, could constitute a good defense upon the merits. And it was accord- ingly held that a plea of tender pleaded, in addition to non est factum, ought to have been received. See, also, to the same effect. The United States V. Phelps et al., S'FeteiB, 700. » Ch. 64, § 38 : 4 Stat, at Large, 113. < » Ch. 270, § 15 : 5 Stat, at Large, 83. Appendix, Rule 19, D. 0., and, infra, ^declaration and notice of trial. Practice of the CiEcrriT and District Courts. 361 the forms of proceeding are borrowed substantially c hap. 2. from tbe EngKsli courts, some special provision by rule regulating tbe mode of putting in and perfect- ing special bail is necessary. Sucli provision has been made by the courts for the northern district of New York. In the courts for the southern district, provision for this class of cases has also been made. Surrender. '\ The particular mode of proceeding to be pursued by the bail to effect a surrender of the principal, is of course to be determined by reference to the local law and usages of the courts. In the national courts of- New York the course is specially prescribed by rules of court. In the southern district the rules for this purpose are as follows : " Bail, desiring to surrender the principal, or the principal wishing to surrender himself in discharge of his bail, may give two days' notice in writing to the, attorney of the plaintiff, of the time and place of surrender. " Two certified copies of the bail piece being produced to the judge, with proof of the due service of such notice, he will indorse on each a committitur of the principal to the custody of the marshal. " On the written admission of the marshal, or due proof that the principal is in custody under such committitur, and no sufficient cause being shown to the contrary, the judge will immediately thereupon order an exoneretur to be entered. "An exoneretur may be entered on filing the written consent of the plaintiff's attorney, without an order of the judge. "An immediate committitur before notice given may be had on proof satisfactory to the judge that the principal is about to depart the district, or that the bail cannot with safety await the expiration of such notice before a surrender is made. 46 363 Peaoticb of the Ciecuit and Disteict Oouexs. PART 2. "In such c^se, the surrender shall be made in conformity ' to the present practice of this court, and may be made on the bail bond, or by putting in special bail, before a return of the writ." The rules upon this subject of the courts of the northern district of JSTew York, are in most respects conformable with the Eevised Statutes of the state. They also provide, that when the plaintiff or his attorney, upon whom the rule to show cause is served, residesj at the time of service, more than one hundred miles from the place at which cause is to be shown, the service shall be made eight days before the time appoiuted in the order for showing cause, and that in other cases, four days shall be sufficient.' By an act of congress, passed March 3, 1799, pro- vision is made for the surrender of a defendant, who, having put in special baU in a suit in one district, is afterwards arrested in some other district, and com- mitted to a jaU, the use of which has been ceded to the United States for the custody of prisoners. It authorizes a surrender before a judges of the court, in which baU has been given, to the custody of the marshal of the district in which the defendant had been committed." In each of the national courts in this state, it is provided by rule, that, in cases falling within this provison, the surrender may be made in the same manner as in other cases," 'Appendix, Rules 65, 66, 67, D. C. , 'Chap. 33, 1 Stat, at Large, 737. The third section of this act pro- vides, that defendants so surrendered " shall, unless sooner discharged by law, be holden in jaU until final judgment shall be rendered in the suit in which he. procured bail as aforesaid, and sixty days thereafter, if such judgment shall be rendered against him, that he may be charged in execution, which may be directed to, and served^by, the marshal in whose custody he is." 9 Eule 69, D. C. N. D. Pbacticb op the Circuit and District Ooubts. 363 In the courts for the northern district, it is farther chap, a. provided by rule, in accordance with the present law of the state, that bail to the arrest may sur- render the principal, or he may surrender himself, "in the same manner and with the like eflfect as in case of special bail, except that two copies of the bail bond, proved to be such by the affidavit of the marshal, or his deputy, or of a subscribing witness, shaU be used instead of certified copies of the bail piece.' ' Appendix, Rule 68, D. C. A question of jurisdiction occurs relative to suits against bsSl, and some other suits of a kindred nature to which it may not be amiss here briefly to advert. The question, as it respects bail, is this : Is it competent for the national courts to entertain juris- diction, mthout regard to the citizenship of the immediate partiea, of suits upon bail bonds taken, and recognizances entered into in such courts respectively? In the generality of cases, it is true, no such ques- tion can arise. Most of the suits in the courts of the United States are prosecuted either by the United States, by oflScers thereof, serving under the authority of an act of congress, by aliens, or by citizens of other states. In these cases, the bail usually being citizens of the state in which the suit is brought, no impediment to the exercise of jurisdiction exists. But where the plaintiff is a citizen of the state in which the suit is prosecuted (as he may be against an alien, or against a citizen of another state, who happens to be " found " in the state of which the plaintiff is a citizen), there would in such case, according to the general rule, be a want of proper parties to a suit against the bail. It would be a suit between citizens of the same state — a case to which the judicial power of the United States (except in a few specific crises arising under the laws of the United States) does not extend. So, too, when the plaintiff, instead of taking an assignment of the bail bond, and prose- cuting in his own name, elects to seek satisfaction for the defendant's , default in not putting in special bail to the action, against the marshal — and where the latter is consequently obliged to resort to a suit on the bail bond for his indemnity. And so, also, of suits upon bonds for the jail liberties, by the marshal or by a citizen plaintiff to whom the bond has been assigned. To be obliged to resort to the state tribunals in these cases would, to say the least, be inconvenient. Indeed, the inconvenience attending the prosecution of suits against bail, even in a different co-ordinate court, has been considered to be of so serious a nature as to have led to the adoption of a rule, in England and in New York, requiring such suits to be brought in the same court in which the original action was 364 Pbactioe of the Circuit and District Oouets. PAHT9. SECTION VII. PROOEBDINaS FROM THE DBCLABATIOTT (IHCLTJSIVB) TO THE TRIAL ; mCLTIDIKG JCDQMENTS BY DEFAULT. The defendant having perfected his appearance, is entitled, by the rules of the national courts in New York, at any time thereafter, to take a rule of course agaiast the plaintiff requiring him to declare within twenty days after notice of such rule, or, in the courts of the southern district that Tie he non- prosecuted, except in cases where its enforcement woiald be destructive of the remedy; as where the original suit is in a counly court, and the bail resides without the limits of its jurisdiction. And upon this ground alone, proceeedings in such suits have frequently been set aside. Burr, 642, 1923; 3 Wils., 348; 8 T. R., 152 ; 2 Cowp., 396; 13 Johns. Bep., 424. Unless, therefore, it should be clearly shown .that a suit brought in a state court, against bail, who had become such in a court of the United States, could not have been sustained in the latter court, we may suppose such suits would be dismissed; and hence the greater practical importance of this question. If, as is probably generally supposed, the jurisdiction in question exists, it can only be, I apprehend, upon the ground that suits of this nature are to be regarded as mere incidents to the original suits that give rise to them, which the ends of justice require to be prosecuted in the same court ; and as such are to be considered as falling within the spirit and intent of the constitutional and legislative provisions, by which the jurisdiction of the courts of the United States is defined. In other words, the jurisdiction in such cases is to be implied, from the grant of jurisdiction over the suits in which they have their origin. This is the view of the subject taken by Mr. Justice Washington in the case of BdbyshaM v. Oppmheimer, 4 Wash. C. C, 482. But in the case of Dam V. Paekwrd (7 Peters, 276, 285,) the supreme court seems to have taken the opposite view. There are also other analogous cases ; and, among these, may be men- tioned actions against tlie officers of the court for acts of negligence or misfeasance, whereby the rights of parties litigant are defeated ; such as the omission or refusal to return process, false return, escape, &c. The question of jurisdiction with respect to this last ground of action {escape) becomes especially interesting in this state, by reason of the peculiar form of the enactment contained in the late Revised Statutes, declaring the liability of sheriffs, for the safe custody of persons com- mitted in virtue of civil process from the courts of the United States. These oflScers are declared to be "answerable in the courts of the United Peactice of the Circuit and District Courts. 365 prossed, and in the courts of the northern district, chap. 2. ihaXjudgmeTvt of discontinuance -he entered against 1. Of the declaration. Of the formal parts of the declaration, it would be impertinent, for reasons already mentioned, to treat at large. The common rules of pleading, except where they have been changed by the laws of the states or by rules of court, are in general strictly applicable to proceedings in the national courts. The pleader in these courts must, therefore, have recourse to the same treatises upon this science for direction, that he resorts to as his guide in the management of Ms causes in the state tribunal. It is true that many questions of pleading have arisen and been deter- mined in the courts of the United States. But, as with few exceptions, they arose from no peculiarity States." But, as the sheriff is always a citizen of the state, whenever the plaintiff happens to he a citizen, here again, there ynW, prima facie, be a want of proper parties. This statute contains, moreover, as we have seen, another qualification. The sheriff is to be " answerable in the courts of the United States, according to the la/wa thereof." But the laws of the United States are silent upon the subject. It is true they declare that the laws of the several states shall be rules of decision when applicable in trials at common law ; but the state laws by no means become laws of the United States, in the sense in which these terms are used in the constitution, and in the acts of congress, nor indeed in any proper sense. So that, according to the literal construc- tion of the state law, it would seem to be at least questionable, whether in any case an action for escape from process issued by a court of the United States, can be maintained against a sheriff of the state of New York. Congress, it may be said, may remove this difficulty by yet legislating upon the subject. But, to say nothing of the constitutional impediments in the way of such a course (so far as suits between citi- zens of the same state are concerned), this could not be done without a departure, in some degree, from a great fundamental principle of our national jurisprudence, that of leaving aU controversies propeily falling within its scope to be determined by the lex loci. ' Appendix, Eule 37, D. C. N. D. 366 Pbacticb of the Oikcuit and Disteiot Courts. FAST a . in the constitution of these tribunals, but are in accordance with the decisions of other courts, pro- ceeding according to the course of the common law, it would be foreign from the design of this work to notice them in detail. There is, however, one rule applicable to the framing of the declaration in the national courts, of such vital importance as to req^uire it to be impressively stated, and fully explained. For, although it was early established, and has ever since been uniformly adhered to, by the courts, either through inadvertence or misapprehension, it is is even yet frequently disregarded by the practi- tioner. It springs from the peculiar character of these courts, whose jurisdiction, while it extends to every species of litigation under every form, is yet so limited as to embrace but comparatively few cases specially circumstanced : whence it results that the legal presumption in regard to them is (not, as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary ap- pears, but rather) that a cause is without their jurisdiction till the contrary is shown. Ground, of jurisdiction to he stated. 1 The funda- mental rule, therefore, to which I refer, is this : That the facts or circumstances upon which the jurisdic- tion over the case depends, must be set forth in the declaration. In some cases these facts and circumstances can- not fail to appear without any express averment for that purpose: as where the United States are plaintiflfs ; or where the postmaster-general sues in his own name in virtue of the acts of congress authorizing him to do so ; or where the president, directors and company of the bank of the United States are a party. The jurisdiction in these cases, resulting as it does wholly from the character of the Practice of the Circuit and District Courts. 367 parties, and that character being fully indicated by c hap, a . their names, is necessarily manifest. So, too, when the suit is for the infringement of a patent or copy- right, or upon a debenture, or a qui tarn action for a penalty accruing under the laws of the United States ; the jurisdiction in these cases depending, as it does, entirely upon the nature of the controversy, must be manifest from the bare statement of the plaintiff's title. But in the other classes of cases falling within the judicial power of the United States, the facts or cir- cumstances giving jurisdiction must be expressly stated. Character of the parties. \ Thus in a suit between an aHen and a citizen, the alienage of the one, and the citizenship of the other, must be stated. HodgsoVf et al. V. Bewerhank et al., 5 Cranch, 303 ; Jackson V. Twentyman, 2 Peters, 136. And so, doubtless, when a state is plaintiff against an alien, the alien- age of the defendant must be stated. When the suit is between citizens of diflferent states the citizenship of the parties (so as to show, not only that they are citizens of different states, but also that one of them is a citizen of the state where the suit is brought) must be stated. Brigham, v. Gabot et al., 3 Dallas, 383; Ahercrombie v. Dupuis et al., 1 Cranch, 343 ; Wood V. Wagnon, 2 id., 9 ; Gapron v. Yan Noorden, id., 126 ; Winchester v. JacTcson et al., 3 id, 515; Btrawbridge et al. v. Gurtis et al., id., 267 ; Hope Insurance Company v. Board/man et al., 5 id., 57 ; Sullivan v. Fulton Steamboat Com- pany, 6 Wheat., 450 ; Breithaupt v. Bank of Georgia, 1 Peters, 238. In a suit to recover the contents of a promissory note or other chose in action (except foreign bills of exchange and deben- tures), brought by an assignee of such promissory note, &c., it is necessary to aver that the original Peactice of the Circuit and Distbict Courts. PAETs. promisee, througli whom tlie plaiatiff claims to recover, is an alien or citizen of another state, as the case may be, so as to show that he also might have maintained an action in the conrt to recover such contents. Turner v. The Bank of North America, 4 Dallas, 8 ; Montalet v. Murray, 4 Cranch, 46. The averment of citizenship mnst be positive, and must be in terms conformable with those of the con- stitution and judicial act conferring the jurisdiction. Thus, it is not sufficient to describe a party as of, or as resident in, a particular state ; but he must be stated to be a citizen of the state. Mtercronibie v. Dupuis et al., 1 Cranch, 343 ; Wood v. Wagnon, 2 id., 9. In a more recent case it has, however, neverthe- less, been held that an averment, which is only equivalent in import to an averment of citizenship, is sufficient. Gassies v. Ballou, 7 Peters, 761. The defendant in that case was decribed as "now resid- ing in the parish of West Baton Eouge, where the, said Pierre Grassies caused himself to be naturalized an American citizen. ' ' This wias held to be sufficient. "A citizen of the United States," say the court, "residing in any staj;e of the Union is a citizen of that state." In suits to which corporations aggregate are par- ties, the members of the corporation, as we have seen, are to be presumed to be citizens of the state by which the charter was granted. But this must clearly appear from the pleadings, and it has been a question what description is sufficient for this pur- pose. In The Lafayette Insurance Company v. French et al. (18 Howard, 404), in error from the circuit court for the district of Indiana, the plaintiffs, in their declaration, were averred to be citizens of Ohio, and they complained of the Lafayette Insur- Practice of the Circuit and District Courts. 369 ance company, a citizen of the state of Indiana. The c hap, a. court held this description to be insufficient. It did not appear from it that the company was a corpora- tion, or, if it was, by the law of what state it was created. And as to the allegation that it was a citi- zen of Indiana, no sensible meaning could be attached to it. No association of persons, whether incorpor- ated by law or not, was a citizen witMn the meaning of the constitution. But the plaintiffs, in their repli- cation to the defendant' s plea, having averred that the defendants were a corporation, created under the laws of Indiana, haying its principal place of busi- ness in that state,' and the defendants having con- fessed these allegations by demurrer, this was held sufficient to bring the case within the decision of the court in Marshall v. The Baltimore & Ohio Railroad Company (16 Howard, 314), in which the allegation was, that the "defendants were a body corporate by the act of the general assembly of Maryland," and the prior decisions. In the only remaining case to which it is necessary to refer, that of The Covington Drawbridge Company v. Shepherd et al. (20 Howard, 227), in error from the circuit court for Indiana, the decision turned upon a provi- sion in the constitution of the state of Indiana, which seems to have been overlooked, or not appreciated, in the case in 18 Howard. The plaintiffs, describing themselves as citizens of the state of Ohio, complained of "the Covington Drawbridge company, citizens of the state of Indiana, defendants in this suit;" and the only question before the supreme court was whether that description was sufficient to bring the case within the jurisdiction of the circuit court. The court held it to be so, on the ground, alone, that, by an article of the constitution of Indiana, it was ordained that every statute shall be a public law, unless otherwise declared in the statute itself. The 47 870 Practice of the' Circtjit and District Courts. PART 2. description did not, jper se, show the company to be a corporate body, but the act of incorporation did ; and, being a public law, say the court, the circuit court and this court are bound to take judicial notice of it, without its being pleaded or offered in evidence. And, as to the citizenship of the persons composing the company, it was, in fact, expressly averred, and, if it had not been, the defendants would have been estopped by legal presumption from controverting it. It seems to follow, therefore, that when the act of incorporation is a public law of a state, mad« so by its own terms, or by a provision of the state consti- tution, it is sufficient in pleading, to name the cor- poration as designated in the act. But acts of incor- poration are private acts, unless otherwise declared, and the chief justice, in pronouncing the judgment of the court, took occasion to give what he deemed a proper description in such cases. " If, " he observes, ' ' the act of incorporation had not been a public act of which the court is bound to take notice, then, undoubtedly, the proper description of the defend- ants would have been 'the Covington Drawbridge company, citizens of the state of Indiana, incorpor- ated by that name by the said state, and having their principal place of business therein.' " Amount in dispute..] But it will be recollected that in all those cases in which the jurisdiction depends upon the alienage or citizenship of the parties, it is also requisite, according to the 11th section of the judicial act,^ in order to enable these courts to exer- cise jurisdiction, that the matter in dispute should exceed, exclusive of costs, the sum or value of five hundred dollars. Until after the lapse of more than forty years from the establishment of the government, there had been no decision |)y the supreme court directly on the ■'Act of September 34, 1789, ch. 20 : 1 Stat, at Large, 73. Practice of the Circuit and District Courts. 371 question whether it was not q,lso incumbent on the c hap, a. plaintiff to insert in his declaration an allegation to this effect. But in the case of Lessee of Lansing v. BolpTi et al. (4 Wash. C. C, 624), the circuit court for the district of Pennsylvania held such allegation to be indispensable. The question was discussed by , Mr. Justice Washington with great clearness and force. "The amount or value in dispute," he ob- served, "is as essentially a ground of jurisdiction as the character of the parties.. What reason can be given why the latter must be stated in order to give validity to the proceedings of the court, which does not apply with equal force to the latter ? The inge- nuity of the plaintiff's counsel has been taxed in vain to point out a difference, and we are quite satisfied that no difference exists. ' ' ^ And in the case of Bmith V. Jackson (1 Paine, 486) Mr. Justice Thompson had expressed an opinion to the same effect. These judges considered the necessity of an averment of the requisite amount as clearly following from the principles so fuUy established with respect to citizen- ship and alienage, where these constitute the grounds of jurisdiction. In conformity with these decisions a like decision had been made in several causes in the district court of the northern district of New York. Under these circumstances, the author, in the first edition of this work, did not hesitate strongly to intimate his belief that an averment of the requisite amount in dispute was necessary. But in the case of JSx parte Martha Bradstreet, decided in 1833 (7 Peters, 634), it seems to have been held otherwise. ' The case was an action of ejectment, in ■which the damages were laid at $3,000. But inasmuch as this action, though in form an action of trespass for the recovery of damages, is in reality brought to recpver land, it was held that the claim of damages was merely formal, and that the value of the premises in question ought to have been stated. 372 Practice (3f the Cikcttit and District Oottrts. PART 2. TMs decision appears to me to be at war with, well-establislied principles, and with, the whole cur- rent of previous reported decisions in the national courts upon this and analogous questions. It is a general principle with regard to courts of limited jurisdiction, that a cause is presumed to be without their jurisdiction unless it is expressly shown to be within it. This is the well-known doctrine of the English courts; and it was: laid down and sanc- tioned by the supreme, court of the United States in the early case of Stanley v. The BanJc of America (4 DalL, 11), and has been repeatedly re-asserted and maintained in tliat court ever since. The deci- sion in the case of Bradstreet is, that the plaintiff, without any averment for that purpose in his de- claration, may prove on trial that the controversy involves the requisite amount. But it is a rule of pleading that the ^ plaintiff is bound to allege what it is necessary for htm. at the trial to prove, and, e converso, that he is not required, and wiU not be permitted, to prove what he has not alleged. ' Chief Justice Marshall, in delivering the opinion of the court, refers to the practice, in the supreme court, of permitting a plaintiff in error to show by affidavit that the matter in dispute exceeds $2,000, so as to entitle him to a hearing there. It is true, that after considerable difficulty and embarrassment on this subject, that court made and adopted a rule- authorizing this, practice.' But this was done ex necessitate. There are no pleadings, in this appellate court in which an allegation of the amount in litiga- tion could with propriety be inserted, and no such form of trial as would afford an opportunity to prove it. There is a want of analogy, therefore, between the cases thus placed by the late Chief Justice in 1 Appendix, Eule 13, .S. C. U. S. Pbacticb of the Circuit and District Courts. 373 the same category ; and he appears to me to have c hap. 2. been misled by a fancied similitude, where none in reality existed. It is true he also refers to the prac- tice of the other courts of the United States. " The practice," says he, " of this court and of the courts of the United States, is to allow the value to be given in evidence. ' ' But I have met with no reported decision in any of the other courts, affording the least countenance to such a practice, and those above cited show that, in the second and third circuits, it has been considered wholly inadmissible. Why not, with equal propriety, permit the plaintiff, without any allegation to that effect, to prove that he is an alien, or a citizen of a different state ? The circuit court can, in general, no more take cognizance of a case where the plaintiff claims less than five hundred dollars, than of an ordinary case where the adverse parties are citizens of the same state. The just rule of pleading, unquestionably is, that it should be made to appear afiirmatively on the face of the plaintiff' s declaration that the case is within the jurisdiction of the court ; and this rule obviously demands as well an allegation of the requisite amount in controversy, as of the alienage or requisite citizen- ship of the respective parties. Whether the decision in the case of Bradstreet will be adhered to, should the question be again brought before the supreme court and fully con- sidered, I must be permitted most respectfully to doubt. Although it appears to me to be idle, in giving a construction to the act in question, to attempt to make a distinction in this respect between the dif- ferent forms of action, it is proper to remark that the case of Bradstreet was a writ of right, and that the decision is limited in terms to "cases where the demand is not for money, and the nature of the 374 Peactice of the Circuit and Distkict Couets. P ART 2 . action does not require the value of the thing demanded to be stated in the declaration." By the 20th section of the judicial act, it is declared that where a plaintiff in a circuit court, recovers less than the sum or value of five hundred dollars, he shall not be allowed, but, at the discre- tion of the court, may be adjudged to pay costs. It is, therefore, clear that congress contemplated the possibility of a valid recovery for less than the minimum sum or value prescribed by the 11th sec- tion, as a limit of jurisdiction. Indeed, in the early case of Hulsecamp v. Teel (2 Dallas, 358), in the circuit court for the district of Pennsylvania, this provision, concerning costs, was considered as suffi- cient of itself to vest jurisdiction ; "since," say the court, "it would be impossible to adjudge that the defendant should pay costs, without taking cogni- zance of the cause." And in the case of Oreen v. Liter et al. (8 Cranch, 229), where the land to which the demandant in a writ of right claimed title, ex- ceeded five hundred dollars in value, but the tene- ment held by the tenant, was of less value than that sum, and one of the questions upon- which the circuit court divided, was, whether, under these circum- stances, it had jurisdiction ; the supreme court decided that it had jurisdiction ; using the follow- ing language:. "Taking the 11th and 20th sections of the judicial act of 1789, ch. 20, in connection, it is clear that the jurisdiction attaches where the property demanded exceeds five hundred dollars in value, and if, upon the trial, the demandant recovers less, he is not allowed his costs ; but, at the discretion of the court, 'may be adjudged to pay costs." From this language it is obvious that the 20th section was considered as in some respect quali- fying what would otherwise have been the operation of the 11th section. To what extent it is to have this Practice of the Circuit and District Courts. 375 influence, seems not to have been settled. But it is c hap, a. by no means to be considered as conferring jurisdic- tion without regard to amount. Such a construction would virtually repeal the limitation in the 11th sec- tion and would of course render the allegation in question unnecessary. The 11th section, it will be perceived, speaks of the amount of the '■'■matter in dispute f while the 20th section speaks of the amount of the recovery. While, therefore, it was clearly intended, by the former of these sections, to limit the jurisdiction of the circuit courts to con- troversies involving more than five hundred dollars in amount, it seems to be hardly less clear from the two sections taken together that it was intended to authorize the rendering of judgments for a smaller amount. It was doubtless foreseen that suits would be instituted by plaintiffs having an unquestionable right in law to recover, but under mistaken though honest views, with respect to the amount to which they were entitled. Thus an action might Jae brought for the recovery of lands worth more than five hun- dred dollars, under the belief, on the part of the plaintiff, that his title extended to the whole prem- ises, or to the entire interest therein, when it might appear upon the trial that he was entitled to recover only a part, worth less than that sum ; or, in a suit for the recovery of a debt amounting to the requisite sum, the amount of the recover}^ might be reduced below it by set-o|f on the part of the defendant, of which the plaintiff previous to the commencement of his suit was not apprised or which he expected to be able successfully to resist. Considering the hardship of driving a party under such circum- stances to a second suit in a different court, to say nothing of 'the danger of his ultimate defeat, upon the ground of a former suit for the same cause of action, it was probably deemed advisable to author- 376 Pkactice op the Ciecuit and District Couets. PART 8. ize the court to render judgment in such cases, with- out regard to the amount found by the jury ; sub- jecting the plaintiff to no other disadvantage than that of failing to recover, or, in the discretion of the court, of paying costs. This view of the intentions of the legislature appears upon the whole the best adapted to reconcile the two sections' with each other, and the few decisions bearing upon the subject which have been made with both. But to lay down rules which, while upon the one hand they give full effect to the intentions of the legislature (admitting them to be as here stated), will upon the other preclude abuse, will probably be found no easy task. In what manner the defendant may avail himself of the want of jurisdiction. * 1. WTien apparent on the face of the declaration. ] In the case of The Lessee of Lansing v. Lolph (4 Wash. C. C. Rep., 624), the plaintiff, having in his declaration omitted to show that the court had juris- diction of the case by a proper statement of the facts on which the jurisdiction was supposed to depend, the court permitted the defendant to take advantage, of the omission by motion to dismiss the suit, pending the trial ; saying, however, that, if he intended to controvert the jurisdiction, he should have put it in issue by a plea, which he could not be permitted to do pending the trial. In another case in the same court, 8hute v. Bavis (Peters' s C. C. Rep., 431), the jury having found a verdict for the plaintiff, the judgment' was arrested. And, in a long series of cases, commencing at a very early period, judgments obtained in the circuit court have been reversed on a writ of error, by the supreme court, for want of juris- diction apparent on the record. These are. the only modes which appear, by any reported case that I have seen, to have been resorted to in the courts Practice of the Oibctjit and District Courts. 377 CHAP. a. of the United States to defeat a recovery on tMs ground. But if, according to tlie decision in The Lessee of Lansing v. DolpTi, a motion to dismiss a cause for tMs defect can be entertaiaed pending the trial, it may be presumed that it would be at any time before. Nor can I discern any reason why the expedient of a demurrer to the declaration may not be successfully resorted to. As far as I am aware, it is universally true that a demurrer is the proper form of defense to a declaration which does not show that the plaintiff has a right in law to maintain his action ; and this right he cannot have in a court which by law has no jurisdiction of his case. If there are no express decisions on this subject in the English and American common law courts, the fact is easily accounted for. Being courts of general jurisdiction it is to be presumed in every case fit for judicial cognizance that they are competent to entertain it until the contrary is affirmatively shown by a plea in abatement ; and it is, accordingly, in this mode only that their jurisdiction is brought into contest. But in courts of equity, whose jurisdiction like that of the courts of the United States is limited to cer- tain descriptions of cases, a demurrer is the familiar and established mode of defense, on the ground of a want of jurisdiction, to the plaintiff's bill. 2. When the declaration contains the requisite averments.] The want of jurisdiction in the courts of the United States in nearly all instances, in actual litigation, results from the want of the requisite char- acter as to citizenship or alienage in the parties ; the jurisdiction in suits between private parties being, as we have seen, in general, limited to suits between citi- zens of different states, and between an alien plaintiff and a citizen, one of the parties, in both cases, being an inhabitant of the judicial district in which the suit is instituted. In such suits, where the requisite 48 S78 Peactice of the Circuit and Distbict Cottets. PAET2. fcharacter of the parties was averred iti the declara- tion, it was formerly tlie practice to allew tlie defend- ant to contest the truth of such averments at the trial, under the general issue. But, in the case of jy Wolf V. Rebdud et al. (1 Peters, 476), the supreme court said, "it has recently been decided by this court, on full consideration, that the question of citi- zenship constitutes no part of the issue upon the inerits, and n^iust be brought forward by a proper plea in abatement in an earlier stage of the cause.'" The rule has ever since been adhered to, and is now firmly established. Philadelphia, Wilmington & Baltimore Ji. H. Co. v. Quigley, 21 Howard, 302. And it has also been held that a defendant, after having pleaded in bar, may be permitted by the court to withdraw his plea, and plead in abatement that the plaintiflF is not a citizen of another state, as alleged in his declaration, but a citizen of the same state as the defendant, where the suit is pending. Eberly et al. v. Moore et al., 24 Howard, 147. And, in this case, the jury having found a verdict in favor of the defendant, upon the issue on the plea of abate- ment, the cause was dismissed, and the supreme court affirmed the judgment. The defendant, how- ever, holding the affirmative in such an issue, must establish the truth of his plea by proof." It is neces- ' The decision here allnded to by the court was probably that of GAE*f 9. tlieredf, shall appear to have multiplied the proceed- ings in any canse before the court, so as to increase costs unreasonably and vexatiously, such person may be required, by order of the court, to satisfy any excess of costs so incurred.'" The precise nature and extent of the authority here conferred does not appear to have been deter- mined by judicial exposition. It would seem, how- ever, that the legislature had in view a more com- prehensive power than that of merely consolidating actions, subject to the limitation under which it is exercised in the courts of England and of the state of Kew York ; where it is applicable only to actions brought by the same plaintiff against the same defendant for the causes of action which may be joined. It probably was intended to vest large dis- cretionary powers to prevent abuse by all such "orders and rules" as are "conformable to the principles and usages of courts ;" of which the con- solidation of suits being the most usual, and depend- ing upon principles the best defined, was on that account spedifled, without any intention thereby to limit the scope of the preceding clause. Thus, for example, in New York, where several causes had been carried down for trial at the sxiit of the same plaintiff, all depending upon the same questions of law, the judges at the circuit have frequently exer- cised the power, when, upon the trial of one of such causes, those questions were decided against the plaintiflf, or a special verdict was found, of refuang to try the others until such decision should be pro- nounced erroneous by the supreme court, or until the plaintiff's right to recover upon such special verdict should be established. So in an English case, on a rule to show cause why the proceedings in aU the cases, to the number ' Ch. 14, § 3 : 3 Stat, at Large, 19. PbACTICB of the OlRCUiT AND DISTRICT OOUET8. 387 of tMrty-seven, should not be stayed and abide the c hap, a. event of a special verdict, already taken in one of them, Lord Kenton said it was a scandalous pro^ ceeding ; they all depended precisely upon the same title, and ought to be all tried upon the same record ; and the rule was made absolute. See 2 Sellon's Practice (Dublin Ed. of 1796), 229. The practice of consolidating actions had alWays prevailed in the state of New York, as derived from the common law, and received the express sanction of the legislature by the act of AprU 21, 1818, and again in the last revision. Independently, therefore, of the above recited act of congress, it'would have prevailed in the national courts of this state. The laws of New York also contain another pro- vision upon this subject, which is to be regarded as operative in the national courts here. By the Revised Statutes it is enacted that when several suits shall be commenced against "joint and several debtors,'''' the plaintiff may in like manner consolidate them. This enactment, relating, as it does, to procedure, must be considered as operative in each of the national courts of New York, under their rules, made subsequent to its passage, adopting the practice of the supreme court of the state in cases not otherwise specifically provided for. 4. Of pleas, replications, &g.^ and demurrers. The order, form and requisites of the various plead- ings between the declaration and issue are to be determined by reference to the laws, and to the prac- tice of the superior courts of the several states, in connection with the rules of the particular court in which the suit is pending. The only mode by which a party is permitted to avail himself of the defects of form is by special 388 Practice of the Circttit aitd District Oottrts, PARTI deimirrer; it being declared by the judicial act "That no summons, writ, declaration, return, process, judg- ment or other proceedings in civil cases, in any of the courts of the United States, shall be abated, arrested, quashed 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 whatso- ever,_ except those only in cases of demurrer, which the party demurring shall specially set down and express^ together with his demurrer as the cause thereof.' In each of the national courts of New York the rule to plead, answer or join in demurrer is a rule of twenty days after service of notice thereof, and of a copy of the pleading to be answered ; except the rule to join in demurrer to a plea in abatement, which is a rule of four days ; and except, also, that a plea in abatement must be served ia the northern district la four days, and in the southern district in ten days, after service of the declaration and rule to plead.' In these courts, common rules, or rules of course, are entered at any time, pleadiugs are filed and served, dilatory pleas are to be sworn to, special pleas are to be signed by counsel, defaults for not pleading or answering are to be entered, notice of special matter may be given with the general issue, &c., &c., according to the original practice of the supreme court of the state and of the king's bench.' In the courts of the northern and southern districts of New York there is a rule directiug "that no plea • Act of September 34, 1789, ch. 20, § 32 : 1 Stat, at Large, 73. ' Appendix, Rule 28, D. C. N. D. » Qraham'8 Practice, 229 ; Rule 83, D; C. N. D. N. Y. Practice of the CiROinT astd District Courts.* 389 shall be received in any suit upon a bond executed c hap, a. to the United States for payment of duties, or in any suit insti^tuted upon a bail bond taken in consequence of such suit, unless such plea shall be accompanied by an affidavit of the truth of the matter in the said plea contained.'" And, in actions founded on contract, the defendant is required to annex to his plea of the general issue, and to file therewith an affidavit that he has a good and substantial defense upon the merits, as he is advised by his counsel and verily believes, together with a certificate of counsel that he so advised the party ; otherwise, such plea may be treated as a nullity. It is required, also, that special pleas or demurrers to pleadings shall be accompanied by a certificate of a counselor of the court, that, in his opinion, the special plea or demurrer is well founded ; otherwise, the plea or demurrer may be treated as a nullity.' 6. The issue. The English practice of making up an issue roll or paper book preparatory to the trial of issues of fact wa^, several years ago, in New York, abolished by law as useless and expensive ; and the practice of the supreme court of the state (in cases not other- wise provided for), having since been adopted by rule in each of the national courts in the state, it would seem to be no longer necessary to make up an issue roll in them. The nisi prius record, or, as it was in later years called in New York, the circuit roll, is not, strictly speaking, applicable to the courts of the United States in which all trials are at bar. But it is convenient and useful for the court to be furnished at the trial with copies of the pleadings in » Appendix, Bule 33, D. C. N. D. N. T. » Appendix, Rule 28, D. C. N. D. 390 'PbA-Ctiob of the Gibguit ajstd District Oottbts. PARTI their proper order; and perhaps the spirit of the rules of the national courts in JCfew York, adopt- ing the practice of the supreme court of the state, requires it to be done. When there is an issue upon demurrer to be argued, it is incumbent on the party demurring to make up the demurrer book and furnish copies to the judges. 6. Judgmemt as in case of nonsuit. The practice under this head of the national courts for each of the districts of New York, is regulated by their rules. The rule of the circuit court of the southern district is as follows: "Motion for judg- ment that the suit be dismissed for not going to trial, may be made after the discharge of the jury, in the same term for which notice of trial was given, or at the next term; and the plaintiff shall not be per- mitted to stipulate to try the cause at the next term, unless upon sufficient excuse, to be approved by the court, for not having proceeded to trial ; and if the costs ordered to be paid on permission to stipulate be not paid within twenty days after such permission, the defendant may, after demand and service of a cer- tified copy of the order to pay costs and the taxed bill, on filing an affidavit of such demand and ser- vice, and on non-payment, enter jndgment as in case of nonsuit, in the same manner as if no permission had been given." The rules upon this subject of the circuit and dis- - trict courts for the northern district are less rigid with respect to the privilege of stipulating, being in conformity with the practice in this respect of the supreme court of the state," It will be perceived, that as in the courts of the northern district the notice of trial is in all cases a notice of fourteen ' Rules 62, 63, D. C. Peacticb ov the Cibcuit and District Oot7et3. 891 daya, and the notice of motion a notice of eight c hap, a. days, it is at all times in the power of the defend- ant' s attorney, by proper diligence, to obtain a judgment as in case of nonsuit, or to compel the plaintiflF to stipulate, at the next term after his default in not noticing his cause for trial. 7. Evidence. ■This is an important title and rec[uires to be treated somewhat at length ; for though it is not compatible with the design of this work to discuss at large all kinds of legal evidence, much less to enter into an extended dissertation upon the general rules of evidence, the constitution and laws of the United States contain, as will be seen, several im- portant provisions relative to the subject demanding particular notice. These together with the judicial decisions to which they have given rise, will there- fore be stated though, from the nature of the case, the manner of doing it must necessarily be desultory. Of the mode of authenticating the legislative acts, judicial and other records of the several states, and the effect thereof as evidence. The government of the different states being sev- erally independent and, sui modo, foreign with respect to each other, it was deemed necessary by the framers of the constitution of the United States to provide against the inconveniences likely to result in judicial proceedings from this relation. By section one of the fourth article of the consti- tution, it is accordingly declared that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And congress may, by general laws, prescribe the manner in which such acts, records, 392 Pbaotiob of the Ciecuit aitd District Coukts. PARTS, and judicial proceedings shall be proved, and the " effect thereof." In pursuance of this authority, congress, by the act of May 26, 1790,' enacted : "That the acts of the legislature of the sereral states shall be authenticated by having the seal of their respective states afiBxed thereto; that the records and judicial pro- ceedings pf the courts of any state shall be proved or admit- ted, in any other court within the United States, by attesta- tion of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have, by law or usage, in the courts of the states from whence the said records are, or shall be taken." By a supplemental act of March 27, 1804,' it is further enacted : " Sec. 1. That from and after the passage of this act, all records and exemplifications of oflB.ce books, which arfe or may be kept in any public oflBce of any state, not apper- taining to a court, shall be proved or admitted in any other court or oflBce in any other state, by the attestation of the keeper of the said records or books, and the seal of his oflBce thereto annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such oflBce is or may be kept ; or of the governor, the secretary of state, the chancellor or keeper of the great seal of the state, that the said attestation is in due form, and by the proper oflBcer; and the said certificate, if given by the presiding justice of a court, shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and seal of his oflBce, that the said presiding justice ' ' Ch. 11 : 1 Stat, at Large, 132. ' » Ch. 56 : a Stat, at Large, 298. Pbacticb of the CiRctriT AND District Courts. 393 is duly qommissioned and qualified ; or if the said certificate chap. a. be given by the governor, the secretary of state, the Chan- cellor or keeper of the great seal, it shall be under the great seal of the. state in which the said certificate is made. And the said records and ex;mplifications, authenticated as afore- said, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the state from whence the same ar^' or shall be taken. " Sec. 3. That all the provisions of this act, and the act to which this is a supplement, shall apply, as well to the public acts, records, office books, judicial proceedings^ courts, and offices of the respective territories of the United States, and countries subject to the jurisdictioil of the United States, as to the public acts, records, office books, judicial proceedings, courts and offices, of the several fitates." Witli respect to the legislative acts of the several states, it has been held, that' the great seal of the state alone, afBxed to copies thereof, without the attestation of any officer, is a sufficient authentica- tion ; this being all that the act in terms requires ; the seal being in fact the highest test of authenticity; and the legal presumption being, in the absence of proof to the contrary, that it was affixed by the officer having the custody thereof, and possessing ^ competent authority to do the act. 4 Dall., 412 ; 11 Wheat., 392 ; see also Peters' s C. C. Rep., 352. TTie records and judicial proceedings of the courts of the states are to be verified in strict conformity with the provisions of the act above cited. They must be attested by the clerks, under the seal of the court, and the judge, chief justice or presiding magistrate must certify that such attestation is in due form. A certificate from the presiding judge, that the person whose name is signed to the attestation is clerk of the court, and that the signature is his proper hand- writing, without stating that the attestation is in d/ue 60 394 Practice of the Ciecuit and District Courts. PART s. form, is therefore insufficient. 9 Crancli, 132 ; Peters' s C. C. Rep., 353. The phrase '■^dueform,^^ in the acts of congress, means the form of attestation nsed in the state from which the record comes, and the cer- tificate of the presiding judge of the court, being the evidence prescribed by law that this form has been observed, is at once indispensable and conclusive, lb. and 7 Cranch, 408. But the question, by far the most important and difficult which has arisen under these provisions, is as to the force and effect of judgments rendered in one state, in the courts of other states. The great question for decision was, whether a judgment ren- dered in one state was to be regarded in the courts of other states as 2^, foreign judgment, and so, incon- clusive between the parties, or as a domestic judg- ment, and consequently conclusive upon their rights. The question, after much discussion and contrariety of opinion, has, however, long since been definitively settled. The constitution, in conformity with a prin- ciple of the common law founded in comity, secures the ad/mis sibility of such. records as evidence, but leaves it to congress to prescribe, first, the tests of their genuineness, and second, their legal effect as evidence. Congress has exercised this power, and, in regard to the latter branch of it, has made the authenticated exemplification of a record out of its ' proper state equivalent to the record in its proper state. It is therefore evidence of the highest nature, viz. : record evidence, and not to be contradicted but by a plea of nul tiel record. Not that a record thus authenticated is held to be absolutely and under all circumstances conclusive, so as in all cases neces- sarily to preclude every other plea, for this would be to give it an efficacy superior to what the orignal would possess where the. judgment was pronounced. But the principle established is, that the record of a PSACTIC* OF THE ClEOTTIT AlTD DiSTEICT COUETS. 395 judgment of a state court, duly authenticated, shall chap, a. have the same credit, validity and effect in the courts of every other state that it has in the courts of the state where it was rendered. The proper inquiry, therefore, in every case is, what would be the effect of the record in that state?' Mills v. Duryee, 7 Cranch, 481 ; Hampton v. M'Oonnel, 3 Wheat., 234 ; Mayhew v. Thatcher, 6 Wheat., 129; Hopkins v. Lee, ib., 109 : Armstrong v. Car son, 2 Dall., 302 ; Green r. 8armiento, 3 Wash. C. C, 17; Borden v. Fitch, 15 Johns. Rep., 121 ; Shumway v. Stilmany 4 Cowen, 292. ' To this principle an importantexception has, however, been asserted by the sapreme court of the United States. The question arose, how- ever, upon a statute of the state of New Tork, which was understood by the court to be peculiar to that state. The decision is,, therefore, limited in its operation to the judgments of the courts of New Tork. The above mentioned statute authorizes a judgment against several joint debtors against whom process has been issued, and an execution against their joint property, although the process may have been served only on one of them ; ajid the courts of New York, in giving a construction to this enactment, have held that in a suit on such a judgment it is to be deemed valid and obligatory upon an absent defendant, as prima facie evi- dence of his indebtedness to the plaintiff. A New York firm having, in virtue of this act, recovered a judgment in a court of that state against two defendants, who were citizens of Louisiana, one of whom only was served with process, a suit on this judgment was prosecuted in the cir- cuit court of the United States for the district of Louisiana, against the other defendant ; and the court, in accordance with what it deemed the sound construction of the act of congress of May 26, 1790, gave judg- ment for the plaintiffs upon the production of the record of the New Tork judgment without further proof. On a writ of error, to reverse this judgment, the act of congress alfcve mentioned was held not to embrace a judgment of this description. ' Judgments obtained without notice to the defendant in the courts of one nation are uniformly disre- garded by the judicial tribunals of other nations ; such was the rule among the several states of the Union at the time the act of congress was passed ; and the court were of opinion that there was nothing in the language of the act so clearly indicative of an intent to change it as to warrant a construction to that effect ; a construction which, in the opinion of the court, was likely to lead to great injustice. D'Arcy v, Ketchvm et ai., 11 Howard B., 165. 896 Practice of the Circuit and Di8tbict'C0uet^ PARTS. The constitutional provision in question is not, however, to be understood as imposing any restrict tion upon the power of the states to legislate upon the remedy in suits on the judgments of other states, except so far as the merits of the original suits are Goncerned. The judgment is to be regarded as a debt of record, not examinable on the merits ; but, in other respects, it is subject to the lex fori. And, therefore, in an action instituted in one state on % judgment obtained in another, a statute of limita^ tions to suits on judgments of the former state may be pleaded. W Elmoyle v. Cohen, 13 Peters, 312. Relative to "■office hooks— not appertaining to a court,'' ^ no decisions deserving notice appear to have been made. The manner in which these are to be proved is very plainly prescribed by the act, and they are, like the records of judicial proceedings, to have "such faith and credit given to them in every court and office within the United States as they have by law or usage in the coftrt or offices of the state from whence the same are or shall be taken." Public documents, iooks, records and papers in the offices of the heads of departments, attorney-general and solicitor of the treasury. At the first session of coi^gress an act was passed, establishing the department of slate, requiring the Secretary to cause a seal of his office to be made, and ordaining that all qppies of records and pajjers in his office authenticated under its seal should be evidence equally as the original record or paper.' In 1823 it was made the duty of the secretary of the treasury, upon the application of any person cl9.iming to be interested in or entitled to land under a grant or patent from the United States, to cause • Act of Sept. 15, 1759, ch. 14, § 5 : 1 Stat, at Large, 80. Pbactice ow the OisciriT anI) District CauKTS, 89T eopies of any papers filed and remaining In the chap, s, treasury department to be made out and authenti- ' eated under hip liand and seal, and such copies so authenticated were declared to be evidence equally as the original papers. In 1849 (the early act, to be mentioned presently, providing for documentary evidence from the treas- ury department in suits against public debtors, hav- ing in the meantime been passed), the provisions of the act above recited relative to the state department were extended to the war, navy, treasury and post- office departments, and to the offices of the attorney- general and solicitor of the treasury. These officers are required to provide a seal for their respective offices, and the act ordains that "all boo]£S, papers, documents and records" in these departn^ents and offices "maybe copied and certi- fied under seal in the same manner as those in the state department may now by law be, and with same force and effect."' The department of the interior having, during the same session, been created, the same provisions were subsequently extended to that also.' Laws, Sc, dc, or other public documents of foreign govern- ments, relating to the title of lands claimed by or under the United States. By the first section of the act of February 22, 1849, ch. 61," as amended by an act passed a few days afterwards, it is enacted : ' Act of February 22, 1849, ch. 61 ; 9 Stat, at Large, 846. » Act of May 31, 1854, ch. 60 : 10 Stat, at Large, 297. By this section it is also enacted that " in all cases where a seal is necessary by law to any commission, process or other instrument provided for by thp laws of congress, it shall be lawful to affix the proper seal by making an impression therewith directly on the paper to which such seal is necessary, which shall be as valid as if made on wax or other adhesive substance." -^ ' 9 Stat, at Large, 346, 850. 398 Practice of the Ciecttit akd District Courts. PART 8. " That it may and shall be lawful for the keepers or per- sons having the custody of the laws, judgments, orders, decrees, journals, correspondence or other public documents of any foreign government or its agents, relating to the title to lands claimed by or under the United States, on the application of the head of one of the departments,' the solic- itor of the treasury, or the commissioner of the general land ofi&ce, to authenticate the same under his hand and seal, and certify the same to be correct and true copies of such laws, judgments, orders, decrees, journals, correspond- ence or other public documents, and when the same shall be certified by an American minister or consul, under his hand and seal of office, or by a judge of one of the United States courts, under his hand and seal, to be true copies of the originals, the same shall be by him sealed up and returned to the solicitor of the treasury, who shall file the same in his oflBce, and cause it to be recorded in a book to be kept for that purpose. A copy of said laws, judgments, orders, decrees, journals, correspondence or other public documents b6 filed, or of the same so recorded in said book, may be read in evidence in all courts where the title to land claimed by or under the United States may come in question, equally with the originals thereof." Certificates of congressional proceedings. By another act, certificates of the proceedings of the two houses of congress are made evidence in the national courts. The enactment for this purpose is brief, and is as follows: "That extracts from the journals of the senate, or of the house of representa- ' tives, and of the executive journal of the senate, when the injunction of secrecy is removed, duly cer- tified by the secretary of the senate or clerk of the house of representatives, shall be admitted as evi- dence in the several courts of the United States, and ' The language of the act (obviously a mistakie) is, '■ of one of the head of one of the departments.' PSACTICE OF THE CIRCUIT AND DISTRICT COTJETS. 399 shall have the same force and effect as the originals c hap, a. thereof would have if produced in court and proved.' Consular certificates. Consuls and vice-consuls of the United States are authorized, in the ports or places to which they are severally appointed, to receive the protests or decla- rations which such captains, masters, crews, passen- gers and merchants, as are citizens of the United States, may respectively choose to make there ; and also such as any foreigner may claim to make before them relative to the personal interests of the citizens of the United States ; and the copies of such acts, duly authenticated by them, under the seal of their consulates respectively, are evidence in all courts of the United States equally as the originals would be." But the certificates of consuls are not evidence, except in those cases in which they are made so by the laws of the United States. They are not, therefore, evi- dence of foreign laws. 2 Cranch, 187. See, also, 16 Com. Law Eep., 40. Evidence in, suits against public debtors. Upon this subject, the laws of the United States contain the following important provisions, viz. : " That in every case of delinquency, where suit has been, or shaU be instituted, a transcript from the books and proceedings of the treasury, certified by the register, and authenticated under the seal of the department, shall be admitted as evidence, and the court trying the cause shall be thereupon authorized to grant judgment and award execution accordingly. And all copies of bonds, contracts, or papers, relating to, or connected with, the settlement of any account between the United States and an individual, when certified by the register to be true copies of the ' Act of August 8, 1846, ch. 107 : 9 Stat, at Large, 80. " Act of ApxU 14, 1793, ch. 34, § 3 : 1 Stat, at Large, 354. 400 PbACTICB 0? THl! GiBCTJIT ASD DlSTMiCa! CoTTBTS. PABTS/ originalsi on file, and authenticated under the seal of the departments as aforesaid,, may be annexed to such transcript, and shall hare equal validity, and be entitled to the same degree of credit, which would be due to the original papers, if produced and authenticated in court: Provided, that where suit is brought upon a bond or other sealed instru- ment, and the defendant shall plead non est factum, or upon motion to the court, such plea or motion being verified by the oath or affirmation of the defendant, it shall bp' lawful for the court to take the same into consideration, and (if it shall appear to be necessary for the attainment of justice) to require the production of the original bond, contract or othe]* paper, specified in such affidavit." ' The fourth, section of this act contains also another provision relative to suits in vrhich the United States are plairitiffSj which, though not strictly pertinent to the subject under consideration, is of too much importance to be passed over without notice. It is as follows : " In suits between the United States and individuals, no claim for a credit shall be admitted upon trial, but. such as shall appear to have been presented to the accounting officers of the treasury, for their examination, and by them disallowed in whole or in part, unless it should be proved, to the satisfaction of the court, that the defendant is, at the time of trial, in possession of vouchers, not before in his power to procure, and that he was prevented from exhibit- ing a claim to such credit, at the treasury, by absence from the United States, or some unavoidable accident." " But it is suflicient to show that the claim was pre- sented for allowance at any time before the trial. It need not have been presented before the commence- ment of the suit. The United States v. HawMns, 10 Peters, 125. At the passage of this act, and until 1817, there were in th« treasury department but one ' Act of March 3, 1797, Ch. 30, § 2 : 1 Stat, at Large, 513. ' Act of March 3, 1797,-cli..20, .§ 4: 1 Stat, at Large, 512. Pbacticb of the CiBCurr akd Distkict Ooubts. 401 comptroller and one auditor. By an act of March 3, c hap, a. of that year,' several offices connected with the war and navy departments were abolished, and one addi- tional comptroller, and four additional auditors were added to the officers in the treasury department. It was further provided, that, in future, all claims and demands whatever, by the United States or against them, and all accounts whatever, in which the United States are concerned, either as debtors or creditors, should be settled and adjusted in the treasury department. And it was by the 11th sec- tion of this act also declared, that "the provision, above cited, of the act of 1797, directing that a tran- script from the books and proceedings of the treas- ury, certified by the register, shall be admitted as evidence, be extended in regard to the accounts of the war and navy departments, to the auditors re- spectively charged with the examination of those accounts, and that certificates, signed by them, shall be of the same efiect as that directed to be signed by the register." In order clearly to understand the practical operation of this provision, it is neces- sary to attend to the provisions of the fourth section of the act, prescribing some of the duties of the several auditors, and designating the descriptions of accounts which they are respectively authorized to certify. It is declared to be the duty of the first auditor "to receive all accounts accruing in the treasury department, and, after examination, to certify the balance and transmit the accounts, with the vouchers and certificate, to the first comptroller, for his decis- ion thereon." The second auditor "is to receive all accounts relative to the pay and clothing of the army, the sub- sistence of officers, bounties and premiums, military 1 Ch. 45 : 3 Stat, at Large, 366. SI 402 Practice op the Oibcuit astd District Cotthts. PAETa. and hospital stores, and tlie contingent expenses of tlie war department, to examine tlie same and certify tlie balance, and transinit the accounts, with the . vouchers and certificate, to the second com/ptroller, for his decision thereon. The third auditor is in like manner to receive, certify and transmit "all accounts relative to the subsistence of the army, the quartermaster's depart- ment, and, generally, all accounts of the war depart- ment, other than those provided for." 1h.Q foiorth auditor is in like manner to receive, certify and transmit "all accounts accruing in the navy department, or relative thereto." The fifth auditor is "to receive all accounts accruing in, or relative to, the department of state, the general post-office, and those arising out of Indian aflfairs, and examine the same, and thereafter certify the balance, and transmit the accounts, with the vouchers and certificate, to the first eomptroller, for his decision thereon." But an act "to change the organization of the post-office department," &c., passed July 2, 1836, section 8,' provides for the appointment of a new officer, to be called the auditor of the post-offiee department; and by the 15th section of this act it is enacted "that copies of the quarterly returns of postmasters, and of any papers pertaining to accounts in the office of the auditor of the post- office department, certified by him, under his seal of office, shall be admitted as evidence in the courts of the United States ; and in every case of delin- quency of any postmaster or contractor, in which suit may be brought, the said auditor shall forward to the attorney of the United States certified copies of all papers in his office tending to sustain the claim; and in every such case a statement of the 1 9 Stat, at Large, 463. PaAOTICE OF THE ClECTTIT ATSCD DISTRICT COUKTS. 403 account, certified as aforesaid, shall be admitted as c hap, a. evidence, and tlie conrt trying the cause shall be thereupon authorized to give judgment and avrard execution, subject to the provisions of the thirty- eighth section of the act to reduce into one act the several acts establishing and regulating the post- office department, approved March third, eighteen hundred and tvrenty-five." This section also contains a provision of the same nature as that contained in the fourth section of the act of 1797, just above cited, viz., that "no claim for a credit shall be allowed on the trial but such as shall have been presented to the said auditor, and by Mm disallowed in whole or in part, unless it shall be proved to the court that the defendant is, at the time of the trial, in possession of vouchers, not before in his power to procure, and that he was pre- vented from exhibiting to the auditor a claim for such credit, by some unavoidable accident." The foregoing enactments relative to the use of treasury transcripts have given rise to several im- portant judicial decisions, from which the following rules may be deduced : 1. That these transcripts are evidence only of such transactions as are shown by the books of the treas- ury department, and of which the officers of that' department have official knowledge. Thus, they are evidence of advances of money made directly to the defendant, through the ordinary official channels, but not of the receipt of moneys by him from the hands of another disbursing officer. The United States V. Buford, 3 Peters, 13. Nor of a payment made at the treasury to another person on the order or bill of exchange of the defendant. United States V. Jones, 8 Peters, 375. Nor of a payment to the agent of the defendant under a power of attorney to receive the money. The United States v. Jones f 404 Peacticb op the Ciecttit and Distbict Courts. PAHTt id., 387. The officers of the treasury could, have no official knowledge that the defendant ever gave the order, bill of exchange, or power of attorney ; they might have been forgeries ; and to make the tran- script evidence in such cases, there should be annexed to it a copy, certified under the second section of the act of 1797, above quoted, of the instrument in virtue of which the money was drawn. To a copy thus certified and annexed, the court would be bound to give the same effect that the original, if produced, would have. But the defend- ant would be at liberty to impeach the evidence, and, under peculiar circumstances of alleged fraud, the court might require the production of the origi' nal instrument, and enforce its order by a continu- ance of the cause from time to time till' the original should be produced. 2. That the defendant is entitled to the credits given to him in the certified account ; and by claim- ing those credits he does not waive or in any degree impair his right to object to the insufficiency of the evidence furnished by the transcript of the items of debit. He is entitled to the full benefit of the deci- sion of the treasury officers on his vouchers without reference to the charges against him. The counsel for the United States, having .produced a treasury account, has no power to Mmit its effect injuriously to the defendant by offering to use it for a limited purpose ; nor can he withdraw it altogether without the assent of the defendant, except by an abandon- ment of the suit. 3. In every treasury account on which suit is brought, the law requires the credits to be stated as well as the debits. 4. In making a "transcript from the books and proceedings of the treasury" evidence, the law does not meau the statement of an accoimt iu gross, but Pbaotice or the Oibcttit and District Couets. 405 a statement of the items, both, of debits and credits, c bap. x as they were acted upon by the accounting officers of the treasury department. Such a statement is indispensable, on the one hand, to enable the defendant to object to what he deems improper charges against him, and, on the other hand, to give proper effect to the provision that the defendant shaU be allowed no credit on vouchers which have not been rejected by the treas- ury officers, unless he can show that it was out of his power to present them for allowance. The fol- lowing charge in a treasury transcript was therefore held to be inadmissible as evidence : ' ' 1818, June 23. To account transferred from the books of the second auditor for this sum, standing to his debit, under said contract, on the books of the second auditor, transferred to his debit on those of this office, $45,000." But the transcript need not contain the particular items in each quarterly return ; and, in a suit against a collector of customs, it is sufficient if the transcript states the aggregate amount of bonds and duties accruing within the quarter, and refers to an abstract containing the particular items. The United States V. Sbpt, 8 Peters, 375 ; IToyf v. The United States, 10 Howard, 109. f Competency of witnesses.'] By the ^^ Act in relation to the competency of witnesses, and for other pur^ poses,'' passed July 16, 1862 (ch. 189, 12 Stat, at Large, 588), congress saw fit to enact " that the laws of the state in which the court shall be held shall be the rules of decision as to the competency of wit- nesses in the courts of the United States in trials at common law, in equity and admiralty." And, as in some of the states the common law rules of evidence had still been adhered to, it was, hy a proviso in the appropriation act of July 2, 1864 (ch. 210, 13 Stat. 406 Peactice of the Cieouit and Disteict Couets. PARTS, at Large, 351), enacted, "that in tlie courts of the United States there shall be no exclusion of any wit- ness on account of color, nor, in civil actions, because he is a party to, or interested in, the issue tried.'" This proviso was, however, at the next session, amended as follows: ^^ Provided further, that, in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. 13 Stat, at Large, 533. But in another appropriation act, passed March 2, 1867 (ch. 166, 14 Stat, at Large, 457), it is enacted, the above mentioned proviso of the act of 1864 "shall be construed to embrace all suits to which the United States shall be a party in the court of claims, either plaintiff or defendant."* These signal relaxations of the laws of evidence might well awaken some solicitude touching their practical effectSj and lead to some antidotal legisla- tion ; and, accordingly, it was, by the act of Febru- ary 25, 1868 (ch. 13, 15 Stat, at Large, 37), enacted— ' It had already been repeatedly decided by the supreme court (whether soundly or not) that the laws of the several states defining the competency of witnesses were to be regarded and applied in the Courts of the United States as rules of decision in trials at common law within the purview of the 34th section of the judiciary act. See 1 Black, 430 ; 2 id., 535, and Byan v. Bradley, 1 Wallace, 66. It may reasonably be doubted whether it would not have been expedient for congress to let the matter rest here instead of forcing this improvement in the law of evidence upon the states which had not yet become sufS- ciently enlightened clearly to discern its merits. " In the case of Jones, et cd. v. The United State) (1 Court of Claims Hep., 383), decided October term, 1865, it had, in a very able judgment pronounced by Judge NoTT, been held that the act of 1864 did not extend to the court of claims. Peaotice op the Circttit and Disteicx Courts. 407 " That no answer or other pleading of any party, and no chap. a. discovery or other evidence obtained by means of any judi- cial proceeding from any party or witness in this or any foreign country, shall be given in evidence, or in any man- ner used against such party or witness, or his property or estate, in any court of the United States, or in any proceed- ing by or before any officer of the United States, in respect to any crime, or for the enforcement of any penalty or for- feiture by reason of any act or omission of such party or witness : Provided, that nothing in this act shall be con- strued to exempt any party or witness from prosecution and punishment for perjury committed by him in discovering or testifying as aforesaid." By the above cited act of March, 1867, the aboli- tion of the long established rules of the common law, by which parties and persons otherwise interested in judicial proceedings were held incompetent to testify as witnesses, became total and absolute in civU causes in all the courts of the United States as far as congress had power so to render it. But one of these courts was held in one of the rooms of the capitol, and was always in session during the vdnter sessions of congress. A convenient opportunity was thus aflfbrded to members of congress of witnessing or otherwise learning the practical operation of this new order of things. It may, therefore, well be regarded as a signifi- cant, if not instructive, fact, that, after an experi- ment of little more than a year, it was, by an act * passed June 25, 1868 (ch. 71, 15 Stat, at Large, 75), ordained — "That no plaintiff or claimant, or any person from or through whom any such plaintiff or claimant derives alleged title, claim or right against the United States, or any person interested in any such title, claim or right, shall be a com- petent witness in the court of claims in supporting any such title, claim or right, and no testimony given by such plaint. 408 Pbaotice OB the CiBotrrr and District CoxmTd. PABT2. iff, claimant or person shall be usedr: Provided, that the United States shall, if they see cause, haye a right to exam- • ine such plaintiff, cMimant or person as a witness, under the regulations and with the privileges provided in section eight of the act passed March third, eighteen hundred and sixty-three, entitled " An act to amend an act to establish a court for the investigation of claims against the United States," approved February twenty-fourth, eighteen hun- dred and fifty-five." it is Mghly commendable, no doubt, in congress to look sharply to the pecuniary interests of TTie^ United States ; but the United States, in this sense, is but another name for the several persons, collect- ively, who compose the American people ; and, if the revival of the common law rules excluding parties and persons interested from the vntnesses' stand had, . by so brief an experiment, been shown to be necessary for the protection of the rights and interests of the former, it may, without intentional disrespect, be suggested that the thousands of iadividual suitors who throughout the Union are daily subjected to the same perilous ordeal, if such it be, ought not to have been overlooked ; nor, if only for the sake of consistency, should it have been forgotten that a vast proportion of the legal controversies to which the United States are parties are carried on in the district courts.* Process to obtain the attendance of witnesses. \ ' The usual process to compel the attendance of wit- nesses in court, is the writ of supbcena ; or, if the ' The Ifigislature of New York has taken another still more extra ordinary step in its career of innovation, in allowing persons charged with criminal offenses, by indictment or otherwise, at their option, to testify as witnesses : " but " (adds the act) " the neglect or refusal of any such person to testify shall not create any presumption against him." It is, I trust, superfluous to observe that the national courts have no authority to adopt this act. Congress alone has power to do this. Pbactioe of the Circuit astb Distbiot Courts. 409 party have in Ms possession any written instmment, c hap, a. &c., which, it is desired to .have in evidence, a sub- poena duces tecum. Without any legislative pro- vision upon the subject, it is obvious that this writ would be inefficacious beyond the limits of the dis- trict in which it might be issued. The judicial act is silent on this subject, but by the act of March 2, 1793,' this writ may run to all places not more than one hundred miles distant from the place of holding the court at which the attendance of the witnesses is required, although without the district. If the witness is in custody he may be brought into court to testify, by habeas corpus ad testiflcandwtn ; this being one of the purposes for which the courts of the United States are expressly authorized, as we have seen, .to issue the writ of Tiabeas corpus. In England,' and in New York,' this writ may be obtained upon application to a judge at chambers, as well as upon motion in open court ; a'privUege of considerable importance to suitors, inasmuch as without it they would sometimes be unable to secure the presence of witnesses in season to testify. But, though the judges of the United States are, gener- ally, authorized to issue the writ of Tiabeas corpus., to inquire into the cause of commitment, it seems questionable, at least, whether the authority to issue the writ of Tiabeas corpus ad testificandum is hot limited to the courts, in session. The authority to issue this latter writ is understood not to be restricted to cases in which the party whose evidence is desired is held in custody under the authority of the United States, but that it extends to those also in which he is held under the authority of a state. The applica- tion for this writ ought to be upon affidavit, stating ' Ch. 38, § 6 : 1 Stat, at Large, 383. » 1 Archb. Practice, 151. • 2 N. Y. Revised Statutes, 559. 62 410 Practice of the Circuit akd District Courts. PARTS, the materiality of the -witnesses, as. the party is ■ advised by his counsel and believes, but does not require a previous notice to the opposite party. In determining the fees which a sheriff ought to receive for bringing up a person to testify, the courts of the United States would doubtless have recourse to the laws of the state in which the service was performed. Penalty of not obeying the svbpcena.] A person - who, after being regularly served with a subpoena, refuses or neglects to attend the trial, may be pro- ceeded against by attachment. It is presumed also that an action on the case may be maintained against him. In England and New York, in addition to these remedies, there is also an action given by statute, in which the damages sustained, together with a penalty, may be recovered. But the acts of congress are sUent upon the subject. Before an attachment will be granted against a witness for not attending a trial, it must appear that a subpoena was personally served upon him a reasonable time before the trial, and that the fees allowed by law were paid or tendered to him. In England an attachment for non-attendance as a wit- ness will not, it seems, be granted, unless the motion therefor "be brought forward as soon, as possible." Tidd's Practice, 738. Nor is it the practice in the courts of that country to grant an attachment in the first instance ; but only a rule nisi. See the cases cited, 1 Archb. Practice, 152 ; particularly 5 Taunt., 260, and 6 Taunt., 9. These oases also show the great caution observed in the English courts in the exercise of this extraordinary jurisdiction. "It must be a perfectly clear case," say the court in 6 Taunt., 9, "to. call for an attachment." And it would seem that it will not be granted when the witness has even a plausible excuse. The rule in Peacticb of the Oibcuit akd District Couktsi 4H New York also formerly was, in ordinary cases of c hap, a. disobedience of a subpoena, to grant only a rule to show cause, in tlie first instance. 2 Gaines' Rep., 92. But if it is 8liOA\Ti that, the witness is guilty of will- ' ful contempt, as where at the time of the service of the subpoena, he positively refuses to attend, the rule is peremptory for an attachment. 2 Johns. Gas., 109. In Pennsylvania, it seems, the practice is to grant the attachment in the first instance, merely upon proof of due service of the subpoena, and of the non-attendance of the witness. 2 Dallas, 333 ; id., 335. And such, I understand, is the present practice of the courts of New York. In a case pending several years ago in the circuit court of the United States for the northern district of New Yprk, an application on behalf of the plaintiff for an attachment, founded on an affidavit merely stating the service of the subpoena, and the non-attendance of the witness, was denied. But on a renewal of the motion upon a supplemental affida- vit, showing that a large sum was claimed in the action; that the witness was the defendant's son, and had charge of his business out of which the suit arose; and that he was in good health when the subpoena was served, only a few days before the application, an attachment was granted. Witnesses' fees.] In courts of the United States, ■witnesses are entitled to the sum of one dollar and fifty cents for each day's attendance at the court; to the further sum of five cents per mile, for travel- ing from their place of abode to the place where the court is holden, and to the like allowance for return- ing.' The sum, therefore, which it is necessary to tender upon serving a subpoena, is one dollar and fifty cents for one day's attendance, and ten cents for each mUe of the distance between the residence ' Act of February 26, 1853, ch. 80. See Appendix. 413 Peactiob of the OiRCtrrr and Distbiot Oottbts. PABTs, of the witness and the place where the court is to be held. Witnesses whose attendance is recLuired at any court in behalf of the United States, must "be sub- poenaed to attend and testify generally in their behalf, and not depart the court without leave of the court or district attorney;" and they are to appear before the pourt or grand jujy, or both, as required by the court or district attorney.' Witnesses, subpoenaed in more than one suit between the same parties, are entitled to but one travel fee, and one per diem compensation^ to be taxed in the first cause disposed of, and in the other causes in succession for further attendance. Other modes of obtaining testimony. In England the process of subpoena furnishes the only direct means possessed by the courts of law of obtaining the testimony of witnesses, except in suits commenced in any of the courts at Westmin- ster, for a cause of action which arose in India ; in which case these courts are authorized by statute (13 Geo. Ill) to "award a writ in the nature of a mandamus or commission for the examination of witnesses in that country." 1 Archb. Practice, 154. A practice,- however, prevails in England, when a witness is going abroad, or is so ill that it is not likely he will be able to attend the trial, of applyiftg to the court in term for a rule, or to a judge at chambers in vacation for a sutamons, to show cause why the witness should not be examined upon inter- rogatories ; or, if it is impossible to bring the witness to the judge's chambers to be examined, as if he is too ni, or out of the country, or the like, the motion is to show cause, why he should not be examined upon interrogatories before certain commissioners to 'Act of February 16, 1853, § 3 : Appendix. Practice of the Circuit and District Cottkts. 413 be appointed and approved of by the parties. A c hap, a. copy of the rule or summons thus obtained is served upon the attorney ; but i'f, at the time of showing cause, the opposite party does not consent, there is an end of the proceeding ; the court having no direct means of compelling him. 1 Archb. Practice, 153, 154. It may be proper to remind the student, also, that the court of chancery in England has power in certain cases, upon a biU filed for that purpose, to order testimony to be taken in perpetuam rei memoriam. 1 Haddock's Chancery, 152, et seq. But by the laws of the United States this import- ant subject, as will be seen^ is more amply provided for by authorizing the taking of ^ Depositions de bene esse. The judicial act of 1789 ordains that — " When the testimony of any person shall be necessary in any civil cause depending in any district in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voy- age to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient, or very infirm, the deposition of every such person may be taken de bene esse, before any justice or judge of any of the courts of the United States, or before any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of any county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause, provided that a notification from the magistrate before whom the deposition is to be taken- to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party, or his attorhey, as either may be nearest, if either is within one hundred miles of the place of caption, allowing time for their attendance after notified, not 414 Peactice op the Oibcuit and Distbicx Oouets. PABT a. less than at the rate of one day, Sundays exclusive, for every twenty miles' travel. And every person deposing as aforfe- said shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence'. And the. depositions so taken shall be retained by such inagistrate until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid, of their being taken, and of the notice, if any, given to the adverse party, be by him, the- said magistrate, sealed up and directed to such court, and remain under his seal until opened in court. And any person may be compelled to appear and depose as aforesaid, in the same manner as to appear and testify in court." It is also by this section further provided that evi- dence thus taken may be used on the trial of any cause — " If it shall appear to the satisfaction of the court 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, sick- ness, bodily infirmity or imprisonment, they are unable to travel and appear at court, but not otherwise. Provided^ that nothing hereiin shall be construed to prevent any court of the United States from granting a- (Zet^mMS potestatem, to take depositions according to common usage, which power they shall severally possess ; nor to extend to depo- sitions in perpetuarn rei memoriam, which if they relate to any 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 of chan- , eery, direct to be taken."' The modes of obtaining evidence mentioned in the proviso being already in use and well understood, ' Act of September 24, 1789, ch. 20, § 80 : 1 Stat, at Large, 73. Practice of the Cibcttit and District Ooitrts. 415 notMng more was necessary with regard to them c hap. 9. than to recognize "them as admissible in the national courts, in order to forestall any inference against the power of these courts to resort to them. But the provisions for the taking of depositions de bene esse were substantially new both in our own country and inthat whence the forms of most of our judicial pro- ceedings are derived. In New York, at least, no trace of any similar proceeding occurs until several years afterwards.' Hence the propriety of prescrib- ing with so much precision the forms of the pro- ceeding. The drcv/mstances under which depositions de \ bene esse may be taken and used.] By recurring to the act above recited, it will be seen that the testi- / mony to be thus taken can only be of some person who lives at a greater distance than one hundred miles from the place of trial, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district, and to a greater dis- ^ tance from the place of trial than as aforesaid, or is ancient, or very infirm. With regard to the first description of persons whose testimony may be-thus taken, viz., those who live more than one hundred miles distant from the place of trial, it is settled that the act embraces as well those who live out of the district as those who live in it. Petapsco Insurance Go. y. Soufhgate, 5 Peters, 604. And the certificate of the officer by w:hom the deposition was taken, specifying the residence of the witness, and stating it to be more than one hun- ' ConMn v. EaH, 1 Johns. Cas., 103, is the first reported case in which it was sanctioned by the supreme court, though in the case of Mumford v. Ohwch, id. 150, decided at a subsequent term of the same year, it is said to be the established practice of the court. It after- wards received the express sanction of the legislature. 416 PfiACTICJi OF THE ClECUIT AND DiSTBICT CoUETa. PAHT », dred miles distant from the place of trial, is suffi- cient evidence, prima facie, of such, residence. Nor is it incumbent on the party oflfering the depo- sition to prove that the witness continues to reside more than a hundred miles distant. The opposite party is, however, at liberty to prove that the wit- ness has removed within the reach of a subpoena after the deposition was taken, and if it also appears that the party oflfering the deposition knew of such change of residence the deposition cannot be read. But, with regard to all the other descriptions of persons named in the act, except the first, the disa- bility of the witness must be shown to be subsisting at the trial. » When the deposition is taken on the ground of the remote residence of the witness, and the witness lives out of the district, it need not be shown that he has been subpoenaed. , The service of the subpoena in such a case would be an idle ceremony. But where the witness resides within the district, and therefore within the reach of a subpoena, it is presumed that the party oflfering the deposition is bound to prove the service of a subpoena. Id. By whom taTcen.'] The officers designated in the act to take these depositions, are, as we have seen, The judges of the United States ; The chancellors, the judges of the supreme or superior courts, and the judges of the county courts or courts of common pleas of the several states, and the mayors or other chief magistrates of cities iu the several states. N To these are to be added the commissioners ap- pointed by the courts of the United States to take aflB.davits and acknowledgments of baU, &c. In what manner to he' taken and transmitted.'\ The first step ia the proceeding is to apply to some PKACTICE of the OlECtTIT AND DISTRICT COUETS. .'4V1 one of the above mentioned officers before whom the chap. 2. witness can most conveniently be brought, to take the deposition, upon an affidavit setting forth the grounds of the proceeding, so as clearly to bring the case within the provisions of the act; and in order to enable the officer to determine whether a notice to the opposite party or his attorney, if he has one, is required (which, it will be recollected, is the case when either party or his attorney resides within one hundred miles of the place of caption), the affidavit should state the residence of the party and of his attorney. Having obtained an order for the examination, a notice of the time and placa appointed for that purpose (if the case requires it) is to be served on the opposite party or his attorney, as the case may be. When notice is required, the officer cannot proceed to examine the witness with- out proof of its service. If the person to be exam- ined refuses to attend voluntarily, he may, in the language of the act, "be compelled to appear and depose in the same manner as to appear and testify in court." This part of the act, however, does not appear by any reported case to have received any precise judicial interpretation, and it is to be re- gretted that its*provision8, in this particular, are not more definite and precise. Whether the officer before whom the deposition is to be taken is author- ized to issue a summons in the nature of a subpoena, and if so, whether he would be authorized in case of disobedience to follow it up by a warrant or attach- ment to bring the witness before him ; or whether a subpoena from the court in which th^ cause is pend- ing, where the deposition is taken in the same dis- trict, is to be resorted to, and obedience enforced by attachment as in ordinary cases ; and, where the .deposition is taken out of the district, whether the process of the circuit or district court for the district 63 418 Pbacticb of the Oibcuit and Distbict Coubts. PAHT9. ia wMoli the proceeding takes place, can, in like manner, be resorted to, are questions to whicli no certain answer is furnished by the act. The phrase- ology of the act ("in the same manner," &c.) seems to favor this latter construction. This construction may also, perhaps, be considered as deriving some additional countenance from the provisions of a more recent act of 24th January, 1827,' prescribing the mode of compelling the attendance of witnesses before comissioners acting under a dedimus potes- tatem, in the United States, which is by subpoena issued by the clerk of any court of the United States for the district in which the commission is to be executed, upon application to him for that purpose. See post, Depositions taken in. mrtue of a dedimus potestatem or commission.] If, upon the appearance of the witness before the officer, it should clearly appear that the alleged ground of the proceeding does not exist — as that the witness does not reside more than one hun- dred miles, &c., or is not about to" remove, or is not aged or very infirm — ^it would be the duty of the officers to refuse to take the deposition. The witness is to "be carefully examined and cautioned, and sworn or affirmed td*testify the whole truth," He is to be examined ewe ^ew.'?^* as in court, and his evidence carefully reduced to writing either by the examining officer or by the deponent himself in presence of the officer. When the examination in behalf of the party at whose instance it is taken, is finished, if the adverse party is present he may have the witness further examined, and his evidence reduced in like manner to waiting. The deposition must be signed by the deponent. It is then either to be retained by the officer until the session of the court and be by him in person delivered in open ' Ch. 4 : 4 Stat, at Large, 197. Dis Peacticb op the CiEcurt and Disteict Cottets. 41d conrt, or, together with a certificate of the reasons c hap. 9. of the proceeding, and of the notice if any given to the adverse party, be by him, sealed up and directed to the court ; in which case it must remain tinder his seal until opened in court. In short, the directions of the act must in all things be strictly pursued, or the deposition cannot be read, unless by express consent. 7 Wheat., 426 ; 1 Peters, 351 ; see, also, 1 Wheat., 15. The mode of transmission is not pre- . scribed by the act. In practice it is usual to employ the mail for that purpose, directing to the clerk of the court. Care must however be taken, either by suitable indorsement or otherwise, to apprise the clerk of the nature of the inclosure, in order to prevent him from opening it, as an ordinary letter, out of court. If so opened, it would be rejected. 8 Cranch, 70. By designating the mail, as the usual instrument of transmission, it is by no means intended to inti- mate that a suitable private agent might not with equal propriety be employed for this purpose ; of whom, however, it would probably be required that he should appear personally in court and testify to the fact of his having received the deposition duly sealed from the hands of the officer, and that it had not subsequently been out of his possession or opened. The certificate of the officer. 1 The only facts to which the magistrate is by the terms of the act expressly required to certify, are the reasons of his takiug the deposition, and the notice, if any, given to the opposite party. As to these facts the certificate is indispensable, parol evidence at the trial to supply the want of it being inadmissible. Harris v. Wall, 7 Howard, 693. In the case here cited it is said, also, to be ''reasonable" that the notice should specify the ground of the proceeding. 420 Peactioe op the Ciecuit and District Coubts; PAST a . The certificate is 'held to be good evidence also, pro- vided it is sufficiently explicit, of a compliance with the act in other particulars, viz., of the fact that the deposition was' reduced to writing either by the magistrate himself or by the deponent in his pres- ence, and that it was afterwards subscribed by the deponent. Bell v. Morrison, 1 Peters, 351. But it * must be full and explicit (id.) ; and is not conclu- sive. Dick V. Runnels, 5 Howard, 7. It has been held that the requisite official character of the person by whom a deposition has been taken, is sufficiently established prima facie if it appears upon the face of the deposition. 1 Paine, U58. Whether it ought not to appear from the certificate, 6r be otherwise shown, that the officer was not of counsel or attorney for either party, may possibly be made a question. It would seem reasonable, however, his official character being shown, that his competency in this respect should be presumed, until disproved. Objections to the competency of a witness should bemade at the time of taking the deposition, if the party attends, and the grounds of the objection are known to him ; and, if not so made, will be pre- sumed to have been waived. 1 Paine, 400. But if the facts upon which the objection rests are unknown to the party when the deposition is taken, he may object when it is read in evidence. Id. [For more particular directions, see 'Appendix,. Practical Forms. "^^ ' lu the case of The Steamboat Deda/ration (13 Howard, 383), the supreme court, adverting to the increased facilities at the present day compared with those existing at the date of the passage of the judiciary act of 1789, for transmitting and returning commissions, took occasion pointedly to express its disapprobation of the practice of taking depo- sitions ex parte, on account of its great liability to abuse, except for the purpose of mere formal proof (of the execution, for example, of a legal Instrument), or to verify some isolated fact, such as a demand of pay- ment; olr notice-to an indbfeer. ' " Peacticb or the CiEcrriT and Distbict Couets. 421 CHAP. 2. Depositions taken in virtue of a dedimus potestatem or ~ commission. The judicial act, as we have seen, merely confers upon the courts of the United States the power to issue commissions in general terms. Upon this foot- ing the subject contiaued to rest until 1827, when a new and important act was passed in relation to it. The structure of our judicial system enabled con- gress authoritatively to bring into req^uisition the instrumentality of each of the national courts, for the purpose of compelling the attendance of wit- nesses before commissioners appointed by any one of them, acting in any part of the United States. This, under proper restrictions, was done by the act of 24th January, 1827,' which is as follows : " Sec. 1. That whenever a commission shall be issued, by any court of the United States, for taking the testimony of a witness or witnesses, at any place within the United States, or the territories thereof, it shall be lawful for the clerk of any court of the United States, for the district or territory within which'such place may be, and he is hereby empowered and required, upon the application of either of the parties in the suit, cause, action or proceeding, in which such com- mission shall have issued, his, her, or their agent or agents, to issue a subpcena or subpoenas for such witness or witnesses, ' residing within such district or territory as shall be named in the said commission, commanding such witness or wit- nesses to appear and testify before the commissioner or com- missioners, in such commission named, at a time and place in the subpoena to be stated, and if any witness, after being, duly served with such subpoena, shall refuse or neglect to, appear, or^ after appearing, shall refuse to testify (not being privileged from giving testimony), such refusal or neglect ^ being proven to the satisfaction of any judge of the court, whose clerk shall have issued such subpoena or subpoenas, he may thereupon proceed to enforce obedience to the process, ^ - >Ch.-4: 4Stat. atLarge.lW. -^ 422 Peacticb of the Ciecuit and District Oottets. PARTS, or punish the disobedience, in like manner as any court of the United States may do in case of disobedience to process of subpmna ad testificandum, issued by such court; and the "witness or witnesses in such cases shall be allowed the same compensation as is allowed to witnesses attending the courts of the United States : Provided, that no witness shall be required to attend at any place out of the county in which he may reside, nor more than forty miles from his place of residence, to give his or her deposition under this law. " Sec. 3. That whenever either of the parties in such suit, cause, action or proceeding, shall apply to any judge of a court of the United States, in the district or territory of the tJnited States, in which the place for taking such testimony may be, for a suipmna duces tecum, commanding the wit- ness, thereia to be named, to appear and testify before the said commissioner or commissioners, at the time and place in the said subpoena to be stated, and also to bring or carry with him or her, and produce to such commissioner or commissioners, any paper, writing, or written instrument, or book, or other document supposed to be in the possession or power of such witness, such judge being satisfied by the afladavit of the person applying, or otherwise, that there is reason to believe that such paper, writing, written instru- ment, book, or other document, is in the possession or power of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of the court, of which he is a judge, to issue such subposna duces tecum, accordingly; and if such witness, after being served with such sulpcma duces tecum, shall fail to produce any such paper, writing, written instrument, book, or other document, being in the possession or power of such witness, and described in such sulpcena duces tecum, before, and to such commissioner or commis- sioners, at the time and place in such subpoena stated, such failure being proved to the satisfaction of the said judge, he may proceed to enforce obedience to the said process of subpoena duces tecum, or punish the disobedience, in like manner as any court of the United States may do, in case of disobedience to like process issued by such «ourt; and Peacticb of the Ciuouit and Disteici Coubts. 423 when, any such paper, -writing, written instrument, book, or chap. 3. other document, shall he produced to such commissioner or commissioners, he or they shall, at the cost of the party requiring the same, cause to he made a correct copy thereof, or of so much thereof as shall he required by either of the parties : Provided, that no witness shall be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of this act, unless his fee for going to, returning from, and one day's attendance at the place of examination, shall be p^id or tendered to him at the time of the service of the subpoena." * Although the proper office pf a commission is to obtain the evidence of witnesses- residing beyond the reach of the process of the conrt, yet it may be re- sorted to by consent of parties, for the purpose of examining witnesses residing within the reach of process. 4 Wheat., 508. And thongh thns taken, the deposition is absolute. Id. ' By an act, doubtless designed mainly to meet exigencies originating in the rebellion, special provision is made for taking the testimony of witnesses residing in the United States, on commission or in compliance with letters rogatory in siuts pending in the courts of foreign countries, in which the government of such foreign country is a party, or has an interest. The district judges are required to issue a summons to the witnesses named, specifying a time for the attendance of the witness at a specified place, not exceeding one hundred miles from the witness's place of residence, and reqtdring his attendance. Act of March 3, 1863, ch. 95 : 12 Stat, at Large, 769. The same act directs that when, in a suit in which the United States are parties, or have an interest, the testimony of any witness is taken in a foreign country, on commission, or in pursuance of letters rogatory, the testimony of such witness shall be returned by the commissioner or court to the minister or consul of the United States nearest the place where it has been taken, who, on receiving the same, shall indorse thereon a certificate stating the time when, and the place where, it was received, and that it is in the same condition as when received ; and shall transmit the commission or letters rogatory so executed and cer- tified by mail to the clerk of the court from which the same issued in the manner in which his official dispatches are transmitted to the government, and the evidence so taken shall be read on the trial, with- out objection as to the mode of retom. '424 .Pbactice of the Circuit akd Disteict Coubts. , PAHT «. The circumstances under wMcL. a commission will be issued,/ and tlie mode of obtaining, executing and returning it, in the several districts, depend upon the laws and practice of the respective states, and the rules of the several courts of the United States. 3 Cranch, 293. The practice of the circuit and district courts of the southern district of New York, relative to com- missions is fully regulated by rules of court. The rules of the district court for the northern dis- trict of New York provide that commissions for the examination of non-resident witnesses may issue by order of the court in term, or of the judge thereof in vacation, ia the manner, and subject to the regu- lations (so far as the same are applicable), mutatis mutandis, prescribed by the Revised Statutes of the state ; and also that such commissions may be issued by consent, but the agreement for that purpose must be in writing, and filed iu the clerk's office, and the commission be indorsed by the clerk, under his signature, allowed hy consent of parties.^ The decisions which have been made in the national courts, upon this subject, do not appear to rec[uire particular notice. They may be found under the following references: 2 Dall., 401; 4 id., 410; 3 Cranch, 293 ; 4 id., 224, 228 ; 2 Wheat., 371 ; 1 GaU., 166 ; 1 Wash. C. C. Rep., 43, 144 ; 2 id., 7, 223, 356 ; 3 id., 226; 4 id., 186. Depositions in perpetuam rei memoriam. In addition to the general provision in the judicial act authorizing the circuit courts, on application to them as courts of equity, to direct these depositions ' See Appendix, Rules 43, 44, D. C. N. D. N. Y. The provisions of ! the New York Revised Statutes, thus adopted, are very judicious. Thev .were printed in a note in former editions of this work ; but being num&< rous, they are omitted for the sake, of brevity. , PeACTICE of the CiRCTTIT and DiSTBlCT OOTIBTS. 425 to be taken, it is, by the act of 20th February, 1813,' chap, a. declared, "That in any cause before a court of the United States, it shall be lawful for such court, in its discretion, to admit in evidence any deposition taken in perpetuam rei memoriam, which would be so admissible in a court of the state wherein such cause is pendLng, according to the laws thereof." Congress not having prescribed the mode of taking depositions of this nature, it may be presumed to have been intended by this enactment to authorize the use, in the courts of the United States, of those taken according to the state laws. Order for the production of looks and writings. By the 15th section of the judicial act,' the courts of the United States are empowered — " In the trial of actions at law, on motion, and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evi- dence pertinent to the issue, in cases and under circum- stances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery ; and if a plaintiff shall fail to comply with such order to produce books or writings, it shall be lawful for the courts, respect- ively, on motion, to give the like judgment for the defend- ant as in cases of nonsuit ; and if a defendant shall fail to comply with such order to produce books or writings, it shall be lawfal for the courts, respectively, on motion as aforesaid, to give judgment against him or her by default." Considering the importance of the power conferred by this section, it is to be regretted that its scope and objects have not been more fully and clearly defined. And the few reported cases in which it has been judicially noticed seem to shed little light upon its true construction. One highly important ques- » Ch. 35, § 3 : 2 Stat, at Large, 679. 'Act of September 84, 1789, ch. 20 : 1 Stat, at Largs, 73. 54 436 Practice of the Oibcuit and Distkict Oouets. ,PAET2. tion to which it is likely to give rise is, whether a party can be compelled, in pursuance of it, to pro- duce papers to be used by the adverse party /or any other purpose, except as evidence upon the trial. The courts are authorized, ^Hn the trial of actions at law," to compel the parties to produce books and writings "which contain evidence pertinent to the issue." This language certainly seems to imply that the legislatuse had no intention beyond that of enabling a party to obtain evidence. And such, it is inferable, was the view of the subject entertained by the circuit court, for the district of Pennsylvania, in the cases reported in 1 Wash. C. C. Rep., 298, 243, and 3 Wash. C. C. Rep., 381; and, indeed, by the supreme court in Thompson v. Selden, 20 Howard, 194. But then, on the other hand, the act proceeds to declare that parties may thus be required to pro- duce, &c., "in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery." It seems clear, therefore, that this provision was in- tended as a substitute, so far as written documents are concerned, for a bill of discovery in equity in aid of jurisdiction at law. And such was said to be its intention by the cir- cuit court for the district of Pennsylvania, in the case of Geyger's Lessee v. Geyger, 2 Dallas, 332 ; where, however, its design is spoken of as being "to obtain from the adverse party the production of deeds and papers relative to the litigated issue." But the remedy by biU of discovery is by no means restricted to the object above mentioned. It may be resorted to at any stage of the suit, and even in contemplation of a suit at law, to enable the com- plainant advantageously to prosecute or defend such suit. 1 Mad. Ch., 160, et seq. And, indeed, it is Pkactice of the Oiecuit ahd District CotjetS. 427 sometimes as indispensable to the plaintiff to enable c hap, a. Mm to declare or reply, and to a defendant to enable Mm to frame Ms plea, that he should have a knowl- edge of the contents of documents in possession of the adverse party, as it is that he should be fur- nished with proper evidence upon the trial. A power of this nature has long been sparingly exer- cised by the common law courts in England, and by the supreme court of New York ; but neither in England nor here does the remedy appear to have been considered as available for the mere purpose of procuring evidence to be offered in proof on the trial. 1 Tidd's Pr., 440; 1 Taunt., 384; 4 id., 157; 1 Brod. & Bing., 318 ; 11 Johns. Rep., 345, note a ; 19 id., 268. By the Revised Statutes of New York, however, the power in c[uestion is expressly conferred upon the supreme court of the state. It is declared that the court " shall have power, in such cases as shall be deemed proper, to compel any party to a suit pending therein to produce and dis- cover books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defense therein." It is made the duty of the court, "by general rules," to "prescribe the cases in which such dis- covery may be compelled, and the proceedings for thatpurpo.se," where the same are not by the stat- ute itself provided ; and, in doing so, the court are required to "5e governed hy the principles and practice of the court of chancery in compelling dis- covery, except that the cost of such proceedings shall always be awarded, in the discretion of the court." It is further provided, that, "to entitle a party to any such discovery, he shall present a petition, veri- fied by oath, to the court, or to any justice thereof, or to any circuit judge in vacation, upon wMch an 428 Pbacticb op the Circuit akd District Courts. PART 2. order may be granted by the court or such, officer for the discovery sought, or that the party against whom the same is sought should show cause why the prayer of such petition should not be granted." The court is also required to "provide by general rules for staying the proceedings of any party against whom such discovery shall have been ordered, until the same shall have been complied with or vacated ;" and, in case of a party refusing or neglecting to obey such order, the court are authorized to "nonsuit him," or to "strike out any plea or notice he may have given," or "to debar him from any particular defense in relation to which such discovery may be sought." This statute also contains this further important provision, viz. : that the books, papers and documents produced under any order made in pursuance of it, " shall have the same effect, when used by the party requiring them, as if produced upon notice accord- ing to the practice of the court." It is clear that the terms used in this statute to confer the power with which it invests the supreme court of New York are, in some respects, more comprehensive than those employed by congress in the 15th section of the judicial act. It will be^seen, however, that the two acts concur in expressly referring to the usages of the courts of equity in compelling discovery, as fur- nishing the true limits of the authority intended to be conferred. And if, as we have seen, there is much in the terms of the 15th section, from which it may be inferred that the national legislature intended only to provide an easier method of obtaining evi- dence to be used upon trials, it will be perceived, also, that a similar inference might very naturally be dravn with respect to the intention of the legislature of New York, from the language of the enactment last above cited, prescribing the effect of books, &c., Practice of the Oibcuit and District Coxjets. 429 when produced. They are to "have the same effect, chap, a. when used by the person requiring them, as if pro- duced upon notice," that is, obviously, the same eflfect as evidence. Under these circumstances it is proper to see what construction has been given to the New York statute by the court whose duty it is to carry it into eflfect. By the 28th rule of that court, it is provided, that "application may be made in the manner provided, by the Revised Statutes, to compel the production and discovery of books, papers and documents, relating to the merits of any suit pending in this court, or any defense in such suit, in the following cases : "1. By the plaintiff, to compel the discovery of papers or documents in the possession or under the control of the defendant, which may be necessary to enable the plaintiff to declare or answer any pleading of the defendant. "2. The plaintiff may be compelled to make the like discovery of papers or documents, where the same shall be necessary to enable the defendant to answer any pleading of the plaintiff. "3. The plaintiff may be compelled after declar- ing, and the defendant after pleading, to produce and discover all papers or documents, on which the action or defense is founded. "4. After issue joined in any action, either party may be compelled to produce and discover all such books, papers and documents as may be necessary to enable the party applying for such discovery, to prepare for the trial of the cause." Prom this judicial exposition of the New York statute, it will, therefore, be at once perceived, that it is considered as warranting the interposition of the court to compel the production and discovery of books, papers and documents, not merely as evi- 430 Peacticb of the Cibcuit and District Coitets. PAET2. dence, but for every purpose connected with, the advantageous prosecution or defense of a suit at law. Whether the 15th section of the judicial act will warrant a similar conWuction, is a question upon which I shall not presume to express an opinion. As it regards the form, and manner in which this power of the courts of the United States is to be invoked and exercised, it is not to be expected that entire uniformity wUl exist in this respect among the several courts. Eeasonable notice to the opposite party is, however, expressly required by the act, and indeed would doubless have been held to be- indispensable by the courts, if it had not thus been prescribed. The statute of New York, as we have seen, requires that the application for discovery shall be made by petition, verified by oath ; and the 29th rule of the supreme court of the state requires that the petition "shall state the facts and circum- stances on which the same (the discovery) is claimed, and shall be verified by aflidavit, stating that the books, papers and documents, whereof discovery is sought, are not in the possession nor under the control of the party applying therefor, and that the party, making such affidavit, is advised by his counsel, and verily believes, that the discovery of the books, papers or documents, mentioned in such petition, is necessary to enable him to declare or answer, or to prepare for trial, as the case may &e." In the circuit and district courts for the northern district of New York, a rule has been adopted, similar, in substance, to the foregoing ; except that, instead of the concluding clause of the rule of the state court, the petitioner is required to state, in general terms, that the production of the books or writings, mentioned in his petition is necessary to Pbacticb of the Oiecuit and Disteict Courts. 431 enable Mm '■'■safely to proceed in the 'prosecution c hap. 2. or defense {as the case may he) of Ms suit." ' This modification, it will doubtless be seen, has reference to the uncertain extent, as above explained, of the power in question. By another rule of this court (in conformity with the practice of the state court) it is provided that the petition may be presented to the judge of the court in vacation as well as to the court in term. The rule to be granted is a rule to show cause, and is "to be served, together with a copy of the petition, upon the attorney of the opposite party a reasonable time, to be prescribed in the order, before the day therein appointed for showing cause. The order is also to specify the manner in which the books or writings are to be produced, and may require the party either to produce and deposit the same with the clerk of the court, or to deliver to the petitioner, or his attorney, copies thereof verified by oath.' All these regulations are in conformity with the practice of the supreme court of the state. By a rule of the state court it is also expressly provided that such order shall operate as a stay of all other proceedings in the cause, until it shall be complied with or vacated ; and that the party obtain- ing such order shall, after the same shall have been complied with or vacated, have the same time to declare, plead or answer, to which he was entitled at the making of the order. By a rule of the circuit and district courts for the northern district of New York,' the practice of the supreme court of the state, in all cases not other- wise provided for, is adopted, ''so far as the sam0 ' Appendix, Rule 39, D. C. N. D. N. Y. 2 Appendix, Rules 40, 41, 43, D. C. N. D. N. Y. 3 Ibid., Rule 83. 432 Peacticb of the Cibcitit akb Disteict Couets. PART 2. may he applicable.'" Whether the last above men- tioned rule of the state court, especially the latter clause of it, is applicable, will depend upon the question whether the 15th section of the judicial act authorizes the interposition of the courts of the United States before issue joined, or for any other purpose than to enable a party to obtain evidence to be used upon the trial. The same remark, it will readily be seen, is applicable to all but the last pro- vision of the 28th rule of the state court above recited. This inquiry seemed to me due to the importance of the subject. But it may not be amiss before dis- missing it, to consider the act and the form of pro- ceeding under it when restricted to its narrowest scope, as merely aflEbrdtng the means of compelling the production of books and papers to be used as evidence in a trial about to take place in a cause already at issue. It is very clear that the act was not designed, when used for this purpose, to interfere with the familiar practice of giving notice to the opposite party to produce a paper for the purpose of securing the right to give secondary evidence of its contents in case of its non-production ; but to superadd the consequences, mentioned in the act, against the delin- quent party. It is manifest, that to entitle the defendant to judgment, as in case of non-suit, or the plaintiff to a judgment by default, he must have first obtained an order of the court, on motion and notice, requiring the production of the books or writings in ■question ; and so it was held in Thompson v. Selden, 20 Howard, 194. The more convenient and beneficial practice would seem to be to apply for a peremptory ^ order, previous to the trial ; but in Dunham v. Itiley (4 Wash. C. C. E., 126) Mr. Justice Washingtobt is reported to have said, that "this order need not be absolute when moved for, but may be nisi, unless Pbactice op the OiEcriT AKD District Courts. 433 cause be shown at the trials In general it wonld c hap. 2. be more conducive to justice to liave the parties infonned of their rights and obligations in this respect beforehand. 8. Summoning and returning jurors, their qualifi- cations, &G. Instead of adopting prospectively the laws of the several states prescribing the qualifications of jurors, and the mode of summoning them, it was the prac- tice of congress, until lately, to adopt the existing state regulations with respect to these particulars, from time to time, by successive enactments for this purpose.' The last act upon the subject, and by which all prior correspondent enactments are wholly superseded, is that of July 20, 1840. It prescribes "That jurors to serve in the courts of the United States, in each state respectively, shall have the like qualifications, and be entitled to the like exemptions, as jurors of the highest court of law of such state, now have and arfe entitled to, and shall hereafter, from time to time, have and be entitled to, and shall be designated by baUot, lot or otherwise, according to the mode of forming such juries now practiced and hereafter to be practiced therein, in so far as such mode may be practicable by the courts of the United States, or the officers thereof; and for this purpose the said courts shall have power to make all necessary rules and regulations for conforming the designation and impaneling of juries, in substance, to the laws and usages now in force in such state ; and, further, shall have power, by rule or order, from time to time, to conform the same to any change in these respects which may be hereafter - ' See § 39 of the Judiciary Act of 1789, ch. 30: 1 Stat, at Large, 73, and the act of May '13, 1800, ch. 61 : 3 Stat, at Large, 82. 55 434 Pbacticb of the Cibcuit Asro Distbict Couets. PARTS, adopted by the legislatures of tlie respeotiv© states for the state courts." ' This act, it will be perceived, is prospective ; and, unlike the correspondent preceding acts, it expressly recognizes the grounds of exemption prescribed by the state laws. It was doubtless designed to embrace petit jurors for the trial as well of crimiaal as of civil causes ; and grand as well as petit jurors. Rules have been framed for giving it fuU ejffect in the northern district of New York, and it is presumed in the other districts also." By the 29th section of the judiciary act of 1789," it is enacted that "writs of loenire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the mar- shal in his proper person, or by his deputy, or in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as the court shall specially appoint for that purpose, to whom they shall administer an oath or affirmation, that he will truly and impar- tially serve and return such writ. And when, from challenges, or otherwise, there shall not be a jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court where such defect of jurors shall happen, return jurymen de talibus eircumstantihus sufficient to complete the panel ; and when the marshal or his deputy are discLualifled as aforesaid, jurors may be returned by such disinterested person as the court shall appoint." ■ Act of July 30, 1840, ch. 47 : 5 Stat, at Large, 394. 2 See Appendix, Eule 46, N. D. N. Y. This act is still in force, bnt other regulations of great importance, respecting the qualifications of grand jurors, have, by a recent act of congress, been superadded to meet the exigencies of an insurrection against the national govern- ment, vehich, however, vrill find a more appropriate place in the fourth part of this work treating of criminal proceedings. « Ch. 20: 1 Stat, at Large, 73. Practice op the Circuit and District Courts. 435 In tlie state of New York, wliile, as formerly, chap. ^. jurors were selected by tlie sheriff, as in England, ad libitum, from the body of the county, there was no room for doubt that if the sheriflf was a party or otherwise interested in the event of the suit, he was thereby disqualified for serving the venire, and that this would be good ground of challenge to the array. But after the law was altered in this respect, and petit jurors were required to be drawn by lot by the county clerk, the question arose, in the case of Woods V. Rowan & Coon (5 John. Eep., 133), whether it was still a valid ground of objection to the array that the sheriff by whom the jurors ha;d been summoned was a party to the suit. The court decided this question in the aflSrmative, chiefly on the ground, that though the sheriff no longer possessed the power to designate the jurors, yet that, under various pretexts, he might omit to summon those named in the panels whom- he might vdsh to exclude. The act of 39th April, 1802, enacts that from and after the passage thereof "no special juries shall be returned by the clerks of any of the circuit courts ; but that in all cases in which it was the duty of the clerks to return special juries before the passing of this act, it shall be the duty of the marshal for the district where any circuit court may be held, to return special juries ia the same manner and form as by the laws of the respective states the said clerks were required to return'the same.'" Waixier of trial hy jury.] By an act of congress passed March 3, 1865 (ch. 86, 13 Stat, at Large, 601), the right of trial by jury may, in civil cases in the circuit courts of the United States, be waived by voluntary agreement of parties. The enactment is as follows : ' Ch. 31, § 30 : 2 Stat, at Large, 167. 436 Practice op the OiBctriT an^d Disxeict Cotjets. PART s. " Sec. 4. And he it further enacted, That issues of fact, in civil cases in any circuit court of the United States, may be tried and determined by the court without the interven- tion of a jury, whenever the parties, or their attorneys, of record, file a stipulation in writing with the clerk of the court waiving a jury. The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the progress of the trial, when excepted to at the time, may be reviewed by the supreme court of the United States upon a writ of error, or upon appeal, provided the rulings be duly presented by a bill of exceptions. Where the finding is special, the review may also extend to the determination of the sufficiency of the facts found to sup- port the judgment."' Jurors' feesJ] Jurors are entitled to a compensa- tion of two dollars for each day' s attendance in conrt ; and to five cents a mile for traveling, in going to and returning from tlie place of holding the court.' Before the passage of the act here cited, the fees of jurors were prescribed hj the act of 28th February, 1799. The old as well as the new act gave per diem compensation, and the practice under it was for the marshal, at the adjournment of the court, to pay the jurors for each day's attendance, without regard to the particular nature of the services they had been required to perform. It seems highly improbable that congress designed to alter this practice. But • the act of 1853 contains a provision that appears, ' This enactment is doubtless traceable, directly or indirectly, to the New York Code — ter quaterque exeerandug. Under what view of the subject it could have been deemed necessary or expedient to assert the right of excepting to the decisions — " rulings "—of the court in the progress of the trial, and to have them reviewed by the supreme court, is not obvious. Was it intended to confer a right to a writ of error or appeal, without regard to the nature of the suit or the amount in dispute ? = Act of February, 26, 1853, ch. 80, § 3 : 10 Stat, at Large, 168. See Appendix, where this act will also be found. Peactice of the Circuit and Disthxct Courts. 437 nevertheless, to infer sncli a purpose. It is this : c hap, a. "/ti cases where the United States are parties, the marshal shaU, on the order of the court, to be entered in its minutes, pay to the jurors and witnesses all such fees as they may appear by such order to be entitled to, which sums shall be allowed him at the treasury in his accounts." "With respect to wit- nesses, this provision is intelligible and unobjection- able, and in accordance with antecedent usage, except that, so far as I am informed, no order of the court was supposed to be required to authorize the pay- ment by the marshal of the compensation due, to wit : for attendance in behalf of the United States. Witnesses are summoned to testify in particular specified causes ; and, ia suits between private par- ties, may conveniently, and in justice should, be paid by the party at whose instance they attend. But it is otherwise with jurors, and it seems most probable that they were inadvertently coupled in this enact- ment with witnesses, without any actual design to introduce an innovation scarcely susceptible of prac^ tical application. 9. Notice of trial. In the circuit and district courts for the southern district of New York eight days' notice of trial is to be given. In the district court for the northern district of New York fourteen days' notice of trial and six days' notice of countermand are to be given in all cases, without regard to the defendant's place of residence, as ia the supreme court of New York,' In each of these courts, a note of the issue, and of the pleadings and attorneys' names, must be delivered to the clerk, on or before the Thursday preceding the term, who is required, as early as the ' Appendix, Rule 31, D. C. 438 Pbacticb of the Circuit and Disteict CotJETS. PAKT s. followmg day, to have tlie calendar of causes to be tried, made up, arranging tliem according to tlie dates of their issues." ^ There are, however, certain descriptions of cases, as already shown, in which the United States are entitled, tinder certain circumstances, to judgment against the defendant, at the return term of the pro- cess by which he is brought in to answer. With the rigid enforcement of this right, the regular service of a notice of trial is, of course, incompatible. And, for the regulation of the practice, in one of those cases, the following rules have been adopted by the district court for the southern district of 'New York, and are also to be considered as operative in the circuit court for that district : "In suits in behalf of the United States, in which the plaintiffs are by statute entitled to judgment at the return term of the writ,>the declaration may be filed in open court on the day the writ is returned ; and proper proceedings may be thereon taken for perfectiag judgment instanter, unless a plea is filed arid a continuance of the cause allowed by the court. "If the defendant pleads to any such suit, the district attorney may have the cause placed on the calendar at the same term, and may, without other notice, bring the same to trial when called, unless, at the instance of- the defendant, the court shall grant a continuance in the cause." " The rules upon this subject of the courts for the northern district of -New York, are substantially the same as the foregoing.' A civil cause may, by consent of the attorneys on both sides, be lawfully referred for decision to a referee. Hecliers v. Fowler^ 2 Wallace, 123. The 1 Appendix, Rule 45, D. C. N. D. « Rules 209, 310, D. C. s Appendix, Rules 30, 31. Peactice of the Ciecuit and Distbiot Ooxtets. 439 action was for breach of covenant, in tlie ctrcnit c hap, a. ' court of the United States for the southern district of New York. It was referred to a referee "to hear and determine all the issues therein," who reported that there was due to the plaintiff from the defend- ants the sum of $9,000, besides costs. He filed his report with the clerk of the court, who entered judgment thereon. On writ of error to the supreme court these proceedings were held regular and valid. SECTION VIII. PROCBHa>rNGS FROM THE TBIAL TO THE EXECUTION, INCLTJSrVB. 1. Of the trial and its, incidents. No one acquainted with the manner of conducting trials in the courts of a state, is likely to be at a loss in the management of a trial in the national courts of that state. There is nothing in the organization of these courts, nor in the acts of congress regulat- ing the proceedings, which necessarily leads to any diversity of practice in this respect, between them and the courts of the several states in which they act. The jurors are called and sworn ; may be fined for non-attendance ; may be challenged upon the same grounds, and the challenge is tried in the same manner in each. To these grounds are, however, to be added other special grounds, specified in the act of June 17, 18^2, ch. 103, applicable- alike to civil and criminal trials, and designed to exclude from the jury box all disloyal persons. Tide infra, part 4, section 4. And by an act of March 3, 1865, ch. 86, it is enacted, that "all challenges, whether to the array of panel or to individual jurors for cause or favor, shall be tried by the court without the aid of triers." But whether this provision is applicable to civil as well as criminal cases can only be determined by judicial interpretation. With the exception of the fourth section, which is totally foreign to this 440 Peacticb of the CiECiriT and Distbict Coukts. PAST 2. question, the act relates rigorously to criminal prose- cutions ; and it would be no unreasonable applica- tion of the rule noscitur a sociis, to adjudge the abolition of triers to be limited to such prosecutions. The case is opened ; the witnesses are called, sworn and examined, in the same manner ; and the rules of evidence are the same ; ' it is in like manner the duty of the judge to decide pertinent questions of law as they arise, and equally the right of the parties to except to his decisions ; a plea puis dar- rien continuance may in like manner be pleaded ; a demurrer to evidence may in like manner be put in ; the verdict is in like manner either general or special, or (when the state practice admits it) may be taken, subject to the opinion of the court, on a special case ; a juror may, under like circumstances, be withdrawn, and the rules with regard to damages are the same, excepting always such modifications as may have been introduced by special rules of court, in relation to such of these particulars, as from their nature, are subject to judicial discretion.' ' In some of the states the parties in a suit are, by statute, permitted to testify in their own behalf, and also to call each other as -witnesses. Doubts were entertained whether this great innovation upon a funda- mental principle of the common law was within the provision of the thirty-fourth section of the judicial act of 1789, adopting the laws of the several states as rules of decision in trials at common law. This question has at length received an aflSrmative answer in Ya/nce v. GaumpbAl et al., 1 Black, 427 ; Mausahnecht -v.\Glaypool et al., 1 Black, 431 ; and Wright v. Balet, 2 Black, 535. And by a pr N. J>. Pbactice of the Circuit and District Courts. 455 States, who should recover less, but also empowered c hap. 2. the court, in its discretion, to adjudge costs against him. But this restriction in point of amount to which the jurisdiction of the circuit courts was thus origi- nally subjected, has, by subsequent legislation, as already shown, been considerably narrowed. Of suits in favor of the United States ; suits to which the bank of the United States is a party ; suits for the infringement of rights secured by letters patent and copy -rights ; and suits upon debentures by assignees ; these courts, as already shown, have been invested with jurisdiction without regard to the amount in dispute ; and, by the act of February 3, 1831, respecting copy-rights, "full costs," and, by the patent act of July 4, 1836, " costs," are given in all cases of recovery under them. By the act of 8th May, 1792, it is declared, "that in every prosecution for any fine or forfeiture incur- red under any statute of the United States, if judg- ment is rendered against the defendant, he shall be subject to the payment of costs ; and if any informer or plaintiflf on a penal statute, to whose benefit the penalty, or any part thereof, if recovered, is directed by law to accrue, shall discontinue his suit or prose- cution, or shall be nonsuit in the same, or, if upon trial a verdict shall pass for the defendant, the court shall award to the defendant his costs, unless such informer or plaintiff be an oificer of the United States, specially authorized to commence such prose- cution; and the court, before whom the action or information shall be tried, shall, at the trial, in open court, certify upon record that there was reasonable cause for commencing the same, in which case no costs shall be adjudged to the defendant."' ' Ch. 34, § 5 : 1 Stat, at Large, 275. 456 Pbactice of the Circuit and District Cottets. PART 2. By the act of 28tli February, 1799, it is further declared, "that, if any informer on a penal statute, and to whom the penalty, or any part thereof, if recovered, is directed to accrue, shall discontinue his suit or prosecution, or shall be nonsuited in the same, or if, upon the trial, judgment shall be rendered in favor of the defendant, unless the informer be an officer of the United States, he shall be alone liable to the clerks, marshals and attorneys for the fees of such prosecution ; but if such informer be an officer whose duty it is to commence such prosecution, and the court shall certify that there was reasonable ground for the same, then the United States shall be responsible for such fees.'" An act of February 24, 1807,' contains a similar provision relative to costs in cases of seizure, by any collector or other officer, for which see part III. And by the act of 22d July, 1813, it is provided, "That whenever there shall be several actions or processes against persons who might be legally joined in one action or process, touching any demand or matter in dispute before a court of the United States, or of the territories thereof, if judgment be given for the party pursuing the same, such party shall not thereon recover the costs of more than one action or process, unless special cause for several actions or processes shall be satisfactorily shown on motion in open court." ' It remains only to refer the reader to the act of congress already cited, prescribing the fees or "com- pensation" allowable for professional and official services in the courts of the United States. The , ' CU. 19, § 8 : id., 634. » Ch. 19, § 1 : 3 Stat, at Large, 423. 'Ch. 14, §1: 3 Stat, at Large, 19. The second section contains similar provisions relative to proceedings by libel and information upon seizures. Practice of thb Oibcuit and Distbict Courts. 467 design of the act is to deteitoine the amount of costs c hap, a. recoverable from the unsuccessful party throughout the Union, and not to interfere between the attorney and his client ; and so the act, in the first section, declares. The necessity of frequent recurrence to the act seems to furnish a more than sufficient apol- ogy for inserting it in the appendix to this work.' Subject to the restriction imposed by the twentieth section of the judiciary act, there seems to be little room for doubt that in the courts of the United States the successful party is entitled to recover costs according ito this act. 5. Of the judgment. When: a verdict is given, the party for whom it is given may immediately thereafter enter a rule for judgment nisi causa. At common law, in ordinary cases, this rule does not expire until after the four days, exclusive of the day on which it was entered ; but, if there are not four days remaining in term after the verdict, in that case the rule expires, and judgment may be signed on the last day of the term. 1 Arch. Pr., ?00 ; Salk., 77 ; 2 Bos. & Pul., 393. And such is the practice of the national courts for the northern district of New " York ; it being provided by their rules, that the rule for final judgment shall become absolute, unless cause to the contrary be shown in four days after the entry thereof, if there shall be so many days remaining in term ; and if not, then unless cause to the contrary be shown during the term.' 1 Act of Feb. 36, 1853, ch. 80. See appendix. An act purporting to be'a.mendatory of this act was passed August 16, 1856 (cU. 134), but it does not alter the tariflFof fees allowed by the original act. It consists of new miscellaneous regulations intended to guard the treasury, and relating mainly to public oflBcers. 'Appendix, Bule 33, D. C. 68 458 Pbactice op the Cikcuit astd Distkict Gou&ts. PART 2. In each of tlie national coxirts in New York, the clerk* is authorized by rule to tax costs and sign jtidgment records.' Liens, when to cease.] By the act of July 4, 1840, it is provided that judgments and decrees thereafter rendered in the circuit and district courts of the United States, within any state, "shall cease to be liens on real estate or chattels real in the same man- ner, and at like periods as judgments and decrees of the courts of such state now cease by law to be liens . thereoni" ' 6. Execution. When to issue.] The right at common law to issue an execution immediately after judgment is quali- fied and in some degree abridged by the laws of the ' United States. The twenty -third section of the judi- cial act of 24th September, 1789, forbids the issuing of an execution upon a judgment in the district or circuit courts, ' ' in any case where a writ of error may be a supersedeas,'''' ' until the expiration of ten days after judgment. ' Appendix, Rule 79, D. C. N. D. ' Ch. 43, §4:5 Stat, at Large, 393. ^ Unless the clause quoted in the text means in any ease where a writ of error may be 'brought, it seems not easy to discern its practical import ; and to express that meaning the words are not well chosen. At common law a writ of error is always a supersedeas. Indeed the preceding clause of the section, limiting the operations of writs of error in this respect to cases in which the writ shall be sued out and served ■within ten days after judgment, infers this. The interpretation above suggested seems, therefore, to be unavoidable, and, if so, it follows that in no case subject by law to revision on writ of error, can an execution issue until the expiration of ten days after judgment. And such, I jmagine, was Mr. Justice Washington's view of the subject in 4 Wash. C. C. R., 388, where an execution was set aside upon the ground of its having been issued within ten days after judgment, although no writ of error had in fact been sued out. See further on this subject. Part V. It is true there are cases in which courts, in their discretion, have refused to permit a writ of error to operate as a supersedeas, and have. Pbactice op the Circuit and Disteict Coukts. 459 And by tlie act of 19tli May, 1828, it is enacted, chap. a. "that in any one of the courts of the United Stalies, where judgments are a lien upon the property of the defendant, and where, by the laws of the state, ■defendants are entitled, in the courts thereof, to an imparlance of one term or more, defendants in actions in the courts of the United States, holden in such state, shall be entitled to an imparlance of one term." ' The term ' ' imparlance ' ' is understood here to mean a stay of execution. Form of executions and proceedings thereon.} The third section of the act last above cited directs, that "writs of execution issued on judgments, in any of the courts of the United States, and the proceed- ings thereon shall be the same, except their style, in each state respectively, as are now used in the courts of such state : Provided, however, that it shall be in the power of the courts, if they see fit in their dis- cretion, by rules of the court so far to alter final process in said courts as to conform the same to any change which may be adopted by the legislature of the several states for the state courts." ' By the act of 8th May, 1792, it is provided, "that where difierent kinds of executions are issuable in succession, a capias ad satisfaciendum being one, the plaintiff shaU have his election to take out a capias ad satisfaciendum, in the first instance." ' upon application and snfiBcient cause shown, allowed an execution to be issued, notwithstanding a writ of error had been sued out ; as where it appeared from the admission of the plaintiff in error o± his attorney that the writ of error was brought for the purpose of delay ; or where it was brought against good faith, or a positive agreement. 1 Arch. Pr., 331. But whether the exercise of such a discretionary power by the courts of the United States would be compatible with the statute regu- lations stated in the text may be doubted. ' Ch. 68, § 3 : 4 Stat, at large, 378. 2 As to the change introduced by this section, vide, lupra. ' Ch. 34, § a : 1 Stat, at Large, 375. 460 Pbaotice of the Oikctjit and Distbict Oouets. PARTS. But whether this election is not now abrogated by the act of 1828, just above cited, in those states in which it is not sanctioned by the local law, is a question worthy of consideration. By the act of February 28, 1839, "to abolish im- prisonment in certain cases," it is enacted, "that no person shall be imprisoned for debt in any state, on process issuing out of any court of the United States, where, by the laws of the state, imprison- ment for debt has been abolished ; and where, by the laws of the state, imprisonment for debt shall be allowed, under certain conditions and restrictions, the same conditions and restrictions shall be appli- cable to the process issuing out of the courts of the United States ; and the same proceedings shall be had therein as are adopted in the courts of such state." ' And by the act of 14th January, 1841,' this important enactment is expressly declared to be prospective, so as to embrace aU future as well as existing state laws abolishing imprisonment for debt. According to the principle of construction applied by the court in the case of The United States V. Knight (14 Peters, 301), this act is doubt- less to be considered as embracing process in behalf of the United States, as well as of private persons. The provision contained in the act of March 2, 1798,' relative to the appraisement of goods taken in execution on a writ ot fieri facias, is, it is pre- sumed, superseded by the more comprehensive and mandatory provisions of the act of 1828, above cited. As to the mode of proceeding in case of the death or removal of the marshal, having in his hands an execution partly executed, see part I. ' Ch. 35 : 5 id., 331. » Cb. 2 : id., 410. » Ch. 22, § 8 ; 1 Stat, at Large, 328. Pbactice of the Cibouit akd District Coubts. 461 Where to run.] In general, executions from the c hap, s. district and circuit courts are operative only in the districts in which the judgments are rendered. But to this there are the following exceptions : The act of March 3, 1797, provides "that all writs of execution upon any judgment obtained for the use of the United States, in any court of the United States, in one state, may run and be executed in any other state, or in any of the territories of the United States, but shall be issued from, and made returnable to, the court where the judgment was ob- tained, any law to the contrary notwithstanding." ^ And, by the act of 20th May, 1836, it is further provided, "that all writs of execution upon any judgment or decree obtained in any of the district or circuit courts of the United States, in any one state which shall have been, or may hereafter be, divided into two judicial districts, may run and be executed in any part of such state ; but shall be issued from, and made returnable to, the court where the judg- ment was obtained, any law to the contrary notwith- standing."' A considerable number of decisions have taken place in the national courts relative to executions and the proceedings thereon, but as they are only declarative of the general common law principles recognized in all courts of common law jurisdiction, or of the' laws of the respective states, it does not fall within the design of this work to notice them.' It results, then, that the forms of executions (ex- cept their style) from the courts of the United States, their force and eflfect, and the duty of the marshal in ' Ch. 20, § 6 : Stat, at Large, 513. ' Ch. 124 : 4 Stat, at Large, 184. ' The case of Wayman et at. v. Southard et al. (Wheat., 1), and of the Bank of the United States v. ffalstead (10 id., 61), are exceptions to this remark, but Ijave already been noticed in the first part of this work. 462 Pbactice of the CiEctriT and Disteict Couets. PART 2. levying, appraising (in some of tlie states), advertis- ing and selling, are to be ascertained by reference to the laws of the respective states, as they were on the 19th of May, 1828, except in those states in which the law in relation to one or more of these particulars has since been changed, and the national courts in such states have also, in their discretion, adopted such innovations, by rule of court ; and except also such subsequent state legislation as relates to impris- onment for debt, and which falls therefore within the purview of the acts of February 28, 1839, and 14th January, 1841. The state of Kew York will serve as the most apposite example to illustrate what is here said. Since the 19th of May, 1828, a code of laws, in many respects new, and containing several provisions rela- tive to the subject under consideration, has gone into operation. For instance, not to mention other changes, new regulations are introduced relative to the right of redeeming land sold by execution. These regulations being subsequent to the act of 1828 (which, it has been seen, is not prospective), and not being embraced by the act of 1839, would, per se, be inoperative in the national courts of the state of New York. But according to the principles established by the cases cited in the last preceding note; and by the case of Boss ef al. v. Duval et al. (13 Peters, 45) ; and, indeed, by the express terms, of the act of 1828, the national courts in New York had power to. adopt these regulations by rule. This power has been exercised. By a rule of the district court for the northern district, made in 1831, and adopted by the circuit court, the practice of the supreme court of the state, as regulated by rules of court and by the laws of the state, is adopted ; ' and in the circuit court for the southern district, the fol- ' Appendix, Kule 83, D. C, and Eule 6, C. C. PbACTICE of the ClECtriT AND DiSTEICT COUETS. 463 lowing explicit rules have been made : "In the sale c hap, a. of real estate under execution issuing from this court, the marshal shall conform his proceedings to the directions of the law of this state, now in force, in relation to the sale of real estate on execution, and in addition to the certificate filed with the' clerk of the county where the lands sold are situated, shall file a copy thereof with the clerk of this court." "Redemption of lands, sold under execution out of this court, may be made in the same manner, and with like effect, and by the same persons, as prescribed by the law of this state now in force, and sales by the marshal shall be made subject to such redemption." Again, in 1831, the legislature of the state of New York passed an act "to abolish imprisonment for debt, and to punish fraudulent debtors." It was probably within the large discretionary powers con- fided by law to the national courts, so far at least as imprisonment on final process was concerned, to adopt by rule the provisions of this state law. But the change was deemed too important to be intro- duced by judicial authority alone, and the act, therefore, continued to be inoperative in the national courts untU it was expressly adopted by the act of congress of February 28, 1839. In accordance with the policy originally adopted, and steadily adhered to, of requiring the national courts, in the administration of justice, to conform to the laws of the state in which they sit, congress have seen fit to ordain, "that on all judgments in civU cases, hereafter recovered in the circuit or dis- trict courts of the United States, interest shall be allowed, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the laws of the state in which such circuit or district court shall be held, interest may be levied 464 Peacticb of the Oiecuit and Distkict Couets. PART 2. under process of execution on judgments recovered in the courts of such, state, to be calculated from the date of the judgment, and at such rate per annum as is allowed by law on judgments recovered in the courts of such state." SECTION IX. The design of this section is to notice_ certain matters appertaining to the management of suits at common law, but not referable exclusively to any particular stage of the suit. 1. Amendments and jeofails. Eelative to this subject, the judicial act of 24th September, 1789, contains the following highly important provision, viz. : "That no summons, writ, declaration, return, . process, judgment, or other proceedings in civil cases, in any of the courts of the United States, shall be abated, arrested, quashed or reversed for any defect or want of form; but the said courts, respectively, shall proceed to 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 cause of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall specially set down and express, together with his demurrer as the cause thereof. And the said courts, respectively, shall and may, by virtue of this act, from time to time, amend all and every such imperfec- tions, defects, 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, by their rules prescribe." ' • Ch. 20, i 32 : 1 Stat, at Large. 73. ^BACTICB OP THE OlECUIT AND DiSTEIOT COUBTS. 465 It is obvious at first view, that the subtile niceties c hap. 2. of the common law, in pleading, are here amply provided against, and that the authority conferred upon the courts to allow amendments, as well in' matters of substance as of form, in furtherance of justice, is very extensive. The first reported case I have met with, in which this enactment was brought under minute consideration, is that of Smith v. Jacksofh., 1 Paine, 486. It is there said, as indeed is very clear, that every part of the section, except the last clause of it, relates to defects in matters of form ; and that the last clause extends to matters of substance. And it was held that the defects in substance can only be amended while the proceedings are in fieri, and before judgment, and cannot, like mere formal defects, be disregarded by the appellate court. But ia an anonymous case (1 Gallis. R., 23) the statute was held to be sufficiently comprehensive to embrace causes under appellate as well as original jurisdiction ; and this decision is referred to with approbation in Kennedy v. The Bank of Georgia (8 Howard, 586, 610), where it is held that this power may be exercised by the supreme court upon a record before it on appeal, though the usual prac- tice has been to remand the case to the circuit for amendment. What is only matter of form, and what matter of substance, is a nice and often an embarrassing question. The party demurring may indeed always avoid encountering it, by putting in a special demurrer, in all cases where the defect is not clearly one of sub- stance ; but the question wUl nevertheless occur, according to the above decision, upon motions to amend after judgment, and upon writ of error. 59 466 Peactice of the Ciecuit and Disteict Couets. PARTS. 2. Death, and substitution of parties. The provisions of the laws of the United States against the abatement of suits by death, are very- ample. Concerning the effect of marriage in this respect, they are sUent: leaving such effect to be determined by the rules of the common law, or the statutes of the several states. ' The 31st section of the judicial act is as foUows : " That where any suit shall be depending in any coiirt of the United States, and either of the parties shall die before final judgment, the executor or administrator ' of such deceased party, who was plaintiflF, petitioner, or defendant, in case the cause of action doth by law survive, shall have full power to prosecute or defend 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 case 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 executor or administrator, having been duly served with a scire facias, from the ofSce of the clerk of the court where such suit is depending, twenty days beforehand, shall neglect or refuse to become a , party to the suit, the court may render judgment against the deceased party, in the same manner as if the executor or administrator had voluntarily niade himself a party to the suit; and the executor or administrator who shall become a party as aforesaid, shall, upon motion to the court where the suit is depending, be entitled to a continuance of the same 'until the next term of the said court. And if there be two or more plaintiffs, or defendants, and one or more of them shall die, if the cause of action shall survive to the remaining plaintiffs, or against the surviving defend- ant or defendants, the suit or action shall not be thereby abated ; but such deSSih being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants." ' ' Ch. 30 : 1 Stat, at Large, 73. Peactice of the Circuit and Distbict Oouets. 467 Several important decisions have been made rela- c hap 2. tive to the construction of this section, and the prac- tice under it, which it is proper here to state. The section extends only to personal actions. When in a writ of right, therefore, the defendant died, without having appeared, it was held that the court had no authority to make the heirs parties ; and also that a writ of error would lie, upon this ground, to reverse a judgment entered against them by default for want of a plea, in the origtaal action, after having been made parties by rule of court. 7 Wheat., 530; see, also, 6 id., 260. The executor or administrator is entitled to come in, instanter, and make himself a party, upon motion. 3 Cranch, 193, 206. If, upon application for this purpose, his representative character is con- tested, he must establish it by the production of his letters testamentary, or of administration ; but after the order for his admission as a party, it is too late to question his right of representation. If the executor or administrator of the deceased party omits, voluntarily to make himself a party, the Buxviylng party is then entitled to a scire facias against him to enable the court "to render judgment ' against the estate of the deceased party, in the same manner as if the executor or administrator had vol- untarily made himself a party in the suit." The right to a continuance to the next term is given to the executor or administrator for the purpose of afford- ing him time to prepare for the proper .management of the suit, and does not extend to the other party. See, also, 1 Paine, 483. In the case of McOoul v. Lekamp's administratrix (3 Wheat., Ill), the plaintiff having died after issue joined, his administratrix resorted to a proceeding by sm^re facias for the removal of the action. While the siut was penduig the adau^stratxLs married ; 468 Peacticb of the Circuit and Distkict Cottets. PART 8. which fact being pleaded, puis darrien continuance, the suit was held, upon common law principles, to have abated. A new scire facias was then sued out in the name of the administratrix and her husband, &c., and a recovery was obtained in the original suit. Upon error to reverse this judgment, one of the ques- tions was, whether the ^econdi scire facias was author- ized by the above recited section of the judicial act ; and it was held that the abatement of the first scire facias did not in any manner affect the original suit ; but that after such abatement, the administratrix, together with her husband, had the same right to institute a new proceeding by scire facias, as she alone, while sole, had to institute the first. In the case of Hatch v. Eustis (1 Gall., 160), the defendant having died after tier diet and before judg- ment his administrator was brought in by scire facias ; and a judgment passed in favor of the plaintiff. Upon this judgment an execution was issued and returned nulla bona testatoris. After- wards a scire facias was brought to revive the judg- ment against the administrator. Held, that the defendant was not precluded from pleading no assets. The court also took occasion to express strong doubts whether, before issuing his execution upon the original judgment, the plaintiff ought not to have sued out a second scire facias, to afford the administrator an opportunity to plead the want of assets or other matter of defense, which an executor may plead to a scire facias brought upon a final judgment against his testator. 3. Security for costs. In the circuit court for the southern district of New York this subject is regulated by rule, as follows : ' 'If the plaintiff, at the commencement of the action be, or pending the same become, a non-resident of Pbacticb of the Cibcuit and District Couets. 46& the state, or, if on demand in writing by tlie defend- c hap, a. ant' s attorney, notice in writing of Ms residence sliall not be given, the defendant may on proof of such, non-residence, or failure, enter a rule of course, that the plaintiff give security for the defendant's costs, within ten days after service of a notice of the rule, or be non-prossed, which security shall be a bond filed in the clerk' s office, duly executed by some suffi- cient person residing within the district, to the de- fendant, in the penalty of one hundred dollars (unless a larger penalty shall be directed by the court), with a condition that if the plaintiff shall discontinue his action, or if it be dismissed or non-prossed, or judg- ment pass against him therein, he shall pay all such costs as shall be adjudged or awarded against him in such action. And the sufficiency of the said security may be excepted to, and such security shall -justify before the clerk, within the respective periods, and in like manner as is the practice with respect to special bail. And on failure of giving such security, or in default of such justification, and on due proof of the service of notice of such rule, and of any such default, a judgment of non-pros may be entered. "When a suit shall be commenced for any such non-resident, and, also, when at any time pending the action, the plaintiff shall remove out of the dis- trict,' and the attorney shall thereafter proceed in such suit, without such security being given, he shall, . in eithet case, be deemed to have become security for costs to an amount not exceeding one hundred dol- lars. Provided that this rule shall not apply where one of several plaintiffs resides within the district." By a rule of the district court of the northern dis- trict of New York, which is also the rule of the ' There is, it will be perceived, an incongruity in these rules, in first providing foAhe case of non-residence within the state, and afterward within the dittrict. 470 Peaotice of the Cibcuit and Disteict Cotjets. PAHT8 . circnit court, the provisions relative to this subject, contained in the Eevised Statutes of New York, are expressly adopted.' 4. Notices to the adverse party — Service thereof— Agents, In tlie national courts for the New York districts, ' these subjects are regulated by rules of court ; and, it is presumed, also in the courts for the other dis- tricts of the Union. The rules of the courts for the southern district are too numerous for insertion here. For those of the courts for the northern district of New York, see Appendix. The rules of the courts for the southern district authorize a service upon the agent, or, where none has been appointed, by affixiag in the clerk's office in all cases in which the attorney, &c., of the adverse party does not reside in the city of New York. By the rule of the district court for the northern district such service is permitted only when the attorneys, &c., of the adverse party do not reside within forty miles from each other.' By the rules of the courts for the southern' district, service may be made upon a party who prosecutes or defends in person, unless he is an attorney of the court, residing in the city of New York, by affixing the notice in the clerk's office. The rule of the district court for the northern dis- trict requires, in such case, either a personal service, or a transmission by maU ; or, under certain circum- stances, a delivery to the jailer, or the sheriff, or one of his deputies ; in conformity with the practice of the supreme court of the state.' ' Appendjiz, Rule 64. » •Appendix, Rule 3. * Appendix, Rule 10. Pbactice of the GiEctriT and District Cottets. 471 CHAP, s. 5. Affidamts. Affidavits to be read in the courts of the United States are to be taken only before either a judge of the United States, or a commissioner appointed for that purpose by the court in pursuance of the acts of congriess.' SECTION X. OF THE EEMOTAIi OF CAtTSEB FBOU THE STATE COTJKTS. The twelfth section of the judiciary act, providing for the removal of causes from the state to the national courts, has already been recited, and the provisions made by a series of later acts, for the like removal of other descriptions of causes, have been summarily stated in the first part of this work.' Under the twelfth section of the act of 1789, many cases have arisen, and some reported decisions, relating to the forms of procedure ia such cases, require notice in this place.' The act, it wUl be ' Vide, swpra, " CommiBsioners," p. 106, et seg. The judges and the justices of the peace of the several states are empowered to cause the arrest of persons charged before them with offenses against the United States, to admit to bail or commit such oflfenders, and require of them security to keep the peace, &c. Vide, injfa. ch. 2, part 4. These powers imply authority to administer oaths and affirmations, and to take affida- vits pertaining to the due exercise of such powers ; and such oaths, &c., may incidentally be brought under the cognizance of the courts of the United States. But such state magistrates have not been empowered to take affidavits, either in criminal or civil cases, designed primarily • to be read in the courts of the United States. But many oaths are required by law which do not pertain to judicial proceedings ; for example, in applications for pensions, and applications by inventors for letters patent ; and it may be useful here to notice an act of congress, apparently designed to facilitate proceedings of this nature by empowering notaries piMie to administer oaths and affirma- tions, and to take acknowledgments in all cases in which state magis- trates are by the laws of the United States authorized to exercise these powers. Act of September 16, 1850, ch. 53 : 9 Stat, at Large, 449. ' Vide, supra, p. 126, et seq. ' Touching the jurisdiction conferred by this section, see part I. 472 Pbactice oj the Cibctjit and Distsicx Couets. ■ PART 3 . recollected, designated three diflferent classes of cases in wMcli tlie right of removal may be exer- cised, provided the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, viz. : 1. Suits by a citizen against an alien. 3. Suits by a citizen of the state where the suit is brought against a citizen of another state. 3. Suits between citizens of the same state, con- cerning the title of land, in which the party petition- ing for removal claims under a grant from a state other than that in which the suit is pending, and his adversary claims under a grant from the state in which the suit is pending. In the first two classes of cases, the right of removal is limited to the defendant; and as the proceeding in these cases is essentially different from that prescribed in the third, it is proposed to treat of them first in order. -M At what time the application for removal must he made.] In the language of the twelfth section of the judiciary act, the defendant may " file his petition, at the time of entering Ms appearance in the state court ;" and, according to the judicial construction which has been given to this clause, he is strictly limited to this time. Thus, when the appearance of the defendant was entered in September, and, in February following, the sta.te court allowed the petition to be filed nunc pro tunc as of September, the circuit court refused to receive the cause, upon the ground that it could take jurisdiction only where the order for removal was obtained at the time of the defendant's appearing, and that the permission given by the state court to file the ' petition as of the preceding term did not alter the case. Oibson v. Johnson, Peters' s C. C. ; see, also, 1 Paine, 410. PbACTICB of the CiRCTTIT XTStD DiSTBICT COURTS. 473 But though, the correctnes of this construction in ghap. g. the abstract has .never been doubted, yet difficulties have arisen in its practical application. In the case of Redmond v. Bussel, in the supreme court of New York (12 Johns., 153), the defendant put in special baU after the expiration o^ the term at which the capias against him was returnable, viz., on the 3d of September. On the 6th of the same month, the defendant's attorney gave notice to the plaintiff's attorney, that he should petition the court at the next term for a removal of the cause to the circuit court of the United States, and served him with a copy of the petition, but did not file the petition in the clerk's office ; and the question upon the motion at the next term was, whether the defendant had complied with the provision of the act of congress, requiring him to "file his petition at the time of entering Ms appearance." A majority of the court were of the opinion that he had not, but that he ought to have UteraUy ^Ze*^ his petition in the clerk' s office on the day upon which he entered special baU ; and on that ground alone denied his petition. Two of the judges, however, dissented from the decision, being of opinion that the appearance spoken of in th^ act of congress was an actual personal appearance, and in open court ; and that, as the defendant had then for the first time appeared in this manner, h© was entitled to have his cause removed. I am not apprised that this decision, or the grounds of it, have since been questioned in the court in which it becurred, and it will probably continue to be ob- served as a rule by the courts of New York. But whether the construction of the act assumed by the court was a sound one, appears to be at least ques- tionable. For my own part, I cannot concur entirely in the views of the subject taken either by the major- ity or minority of the judges. It may, I think, w^ 60 474 Peacticb of the Ciectjit akd District Courts. PART 2. be doubted whether congress contemplated ilie filing of the petition under any circumstances out of term. The language of the act is, if the defendant shall, at the time of entering his appearance in such state court, "file a petition for the removal," &c., "and offer good and sufficient surety," &c., "it shall be the duty of the state court to accept the surety, and proceed no further in the cause." The filing of the petition and the offer of security seem, therefore, clearly to be here treated as simultaneous acts ; and, if so^ then, as one of these acts from its nature can be done only in open court, it follows that the other is also to be performed in open court. Nor does this construction involve any inconsist- ency or serious inconvenience. The difficulty in the case arose wholly from the circumstance that the, defendant had availed himself of the rule of practice in the court in which he was prosecuted, permitting him to defer entering his appearance, by putting in special baU, until after the term at which the pro- cess against him was returnable ; instead of perform- ing this act during term, as he might have done. Had he adopted this course, his right to have his cause removed would have been incontestible. But, having suffered this opportunity to pass unimproved, and having entered his appearance at a time when the court was npt in session, and when, therefore, the concomitant acts required of him to effect a removal of his cause could not be performed, he was justly considered as having lost the right of removal by neglect.' It is true that the process may sometimes be served so late in the term as not to afford suffi- cient time to the defendant to give the required notice' to the plaintiff of his intention to petition. ' In the case under coniment in the text, it is remarked by the learned judge who delivers 'the opinion of the minority of the court, that the "«tatute does not require notice to be given" of the presentation of tha Pbactice of the Oiecxtit and Distbict Ooukts. 475 But, in such extraordinary cases, the defendant c hap, a. might, with propriety, and doubtless would, be relieved from embarrassment by an order to stay proceedings until the next term. It has been held not to be necessary where there are several defendants that they should all petition for the removal of the cause at the same time ; but that when their appearance is entered in the state courts at different times, they may successively pre- sent their petitions for removal ; and if, eventually, all the defendants should not petition, the cause, as against those who have petitioned and obtained a removal, may be remanded to the state court. 1 Paine, 410. The circumstance that an exception has been en- tered to the special bail does not affect the defend- ant' s right to remove the suit. 1 Caines, 248. In an action of ejectment, if the landlord, being an alien, is admitted to defend after judgment, by default against the casual ejector, he is in season to petition for a removal ; for it is then that he first appears. 4 Johns. Rep., 493. And it was held by a majority of the court in this case, that he was entitled to such removal, notwithstanding that, by a statute of the state, the judgment against the casual ejector is to remain, when the landlord is let in to defend. In what form, and manner tlie application for a removal must he made.] Where there are several defendants, all must join in the petition for removal. Smith V. Rives, 2 Sumner, 338. petition. This is true of the express terms of the act. But, independ. ently of the impropriety, upon general principles, of permitting such a proceeding to be conducted ex parte, it can hardly be doubted that it ia competent for the state courts, by general rules, to require a previous notice ; and, according to the established practice of the courts in New York, notice must be given of all special motions in causes pending. 47© PSACTICE OF THE CIRCUIT AITD DiSTHICX COUBIS, PARTS. In the first and second descriptions of cases, a petition is to be presented to the state court, stating the ground upon which the right of removal is claimed, as that the defendant is an alien and the plaintiff a citizen of the United States ; or that the plaintiff is a citizen of the state in which the suit is brought, and the defendant a citizen of anothra? state ; and that the matter in dispute exceeds the sum or value of five hundred dollars. The state- ment of the grounds of removal must be positive and unequivocal. Thus it is not sufficient for the defendant to state that he is a resident of another state. . He must aver that he is a citizen of another state. 3 Johns. Eep., 145. It has, however, been held, that when, in an action sounding in damages, the plaintiff had laid his dam- ages at more than five hundred dollars, and the defendant had been held to bail upon the affidatit of the plaintiff in more than that sum, this was sufficient proof that the cause involved the requisite amount. 2 Wash. C. C. Eep., 463.' The petition should be verified upon oath, and a copy of it, together with a notice of the time and place of its presentation (as of any other special motion), should be served upon the attorney of the adverse party. Of the security required by the act of the petitioner, that he will, on the first day of the next session of the circuit or district court to which the removal is to be made, enter therein copies of the process against him ; that he will appear therein ; and (if special bail was originally required) that he will enter special bail in the cause ; it can only be said in general, that it must be such as is satisfactory to the state court. It ought doubtless to be a bond to the plaintiff, with at least one sufficient surety ; the penalty of which, ' See faither on this point. Fart I. PBA.CTICB OF THE ClECUII AND DiSTBICX OOUETS, 477 especially in baUable actions, it is presumed, should c hap, a. be sufficient to cover tlie whole demand of the plaintiflF, since the bail in the" state court are to be absolutely discharged upon the allowance of the petition for removal. Perhaps it is to be inferred from the language of the act ("it shall be the duty of the state court to accept the surety," &c.), that the state court ought to retain the custody of the bond, to be delivered over to the plaintiff for prose- cution, in the event of the non-performance of its condition by the defendant. If this is not the true construction of the act, then it is to be delivered to the plaintiff. The order to be entered is, that 'the security offered be accepted ; that the cause be re- moved to the circuit (or district) court of the United States in and for the district of ; and, if bail has been put in, that the bail of the defendant be dis- charged. Such order being entered, all further pro- ceedings in the cause are suspended untD. the next session of the court to which the removal is directed to be made ; at which time a certified copy of the order of removal and of the process by which the defendant was brought into the state court must be produced in the national court; upon the reading and filing whereof, it will be ordered by that court that the cause be entered therein. K bail has been entered, or was requisite in the state court, it must be put in also in the national court, within such time as is allowed for that purpose by the rules of the court. As it regards the third description of suits which may be removed from the state to the national courts, the directions given in the act are so ample and explicit as to leave no great difficulty in their prac- tical application. Upon the question, what shall be considered as Constituting: grants from different states, the. deci- 478 Pbacticb op the Circuit and District Courts. PART 8. sions that have been made have already been stated. Relative to another restrictive clause in the act I have not met with any decision. The action, in order to be the subject of removal, must be one in which the title ' ' to lands is concerned. ' ' It does not appear from any reported case which I have been able to find that any suit of this nature has been removed which was not brought /ot- the recovery of lands thus claimed. But the language employed seems to have been intended to embrace aU suits essentially depend- ing upon such conflicting grants ; as, for example, trespass quare clausum, f regit, in which the plea of title is interposed. This description of causes may be removed, as will be seen, at any time he/ore trial and at the instance of either party, provided he stand in the prescribed predicament. , The motion is, in the first place, to require the opposite party to "inform the court whether he' claims a right or title to the land under a grant from the state in which the suit is pending." If he admits that he so claims, the party moving "may then, on motion, remove the cause for trial," &c., &c. ; but if, on the other hand, he refuses to give the information required, he is to be precluded from pleading or giving in evidence such grant. The whole design may, however, it is presumed, be embraced by one motion. The motion may, doubt- less, be (upon notice to that effect) that the adverse party inform whether, &c. ; and if he shall inform that he claims, &c., that then the cause be removed, &c. ; but if he shall refuse to inform, &c., that then •he shall not be allowed, &c. When the removal is ordered at the instance of the defendant, such removal is, by the act, to be "under the same regulations as in the before men- tioned case of the removal of a cause by an alien." - Practice of the Circuit and District Courts. 479 This provision doubtless refers to the security to be c hap. 8. given by the defendant for entering in the circuit court, on the first day of its session, copies of the process against him, and for his appearing and entering special baU in the cause, if requisite. On the footing rested the right of removal, untU by the act of March 3, 1833 (ch. 57 : 4 Stat, at Large, 632), it was extended to an additional class of cases, without regard to citizenship or the amount in con- troversy. Then followed a series of acts of a like nature, but embracing criminal as well as civil cases. These acts have been noticed in the first part of this work. They prescribe regulations, touching the cases to which they relate, some of which are not likely hereafter to arise, too numerous for recital in this place. PART III. OF THE PKACTICE OF THE DISTRICT COURTS IN .CASES OF SEIZURE. INTRODUCTION. By the judicial act, the district courts are invested •with exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation and trade of the United States^ where the seizures -are made on waters which are navigable from the sea, by vessels of ten or more tons burden, within their respective districts as well as upon the high seas ; and also of all seizures on land, or other waters than as aforesaid, made under the laws of the United States. According to the judicial constructions whiph, at an early period, were given to this enact- ment, seizures of the first above mentioned descrip- tion are of admiralty jurisdiction, and those of the second description, of common law jurisdiction. The judicial proceedings in these cases are insti- tuted and carried on under the authority, and in the name, of the United States, by public oflBicers (attor- neys of the United States) appointed for this purpose. , Admiralty jurisdiction was first exercised in this country by vice-courts of admiralty, deriving their powers from the commissions under which they acted, and froifl acts of parliament. During the revolution, and until the adoption of the federal constitution, this branch of jurisdiction 61 482 Pe'actice in Cases of Sbizuke. PART 3. was exercised by state courts of admiralty instituted for that purpose. At th.e first session of congress under tlie consti- tution, it was, as we have seen, temporarily provided that the forms and modes of proceeding in causes of admiralty and maritime jurisdiction should be according to the course of the civil law. And by the permanent act, commonly known as the process act, of May 8, 1793, it was enacted that the forms of proceedings in suits in admiralty and maritime jurisdiction should be according to the principles, rules and usages which belong to courts of admi- ralty, as contradistinguished from courts of common law, except so far as had been provided by the judi- cial act,' subject, however, to such alterations and additions as the courts should deem expedient, or such regulations as the supreme court should think proper, from time to time, by rule, to prescribe." No reason is perceived for the supposition that, by the reference contained in the act of 1789 to the civil law, congress intended to change the accus- tomed modes of proceeding which had prevailed in the colonial, and subsequently in the state, courts of admiralty ; nor that, by the reference in the pro- cess act of 1792 to the usages of courts of admiralty, it was intended to prescribe different modes of pro- cedure from those contemplated by the former act. The antecedent practice had been in substantial con- formity wi1;h the civil law, and especially in the important particular (which it is probable congress had chiefly in view), of the form of trial. But cer- tain forms and usages, originally peculiar to the common law, had been adopted by the British courts of admiralty, and thence ingrafted in our ' The provisions of the judicial act here referred to relate to the mode of proof and to appeals. » Ch. 34, g 2 : 1 Stat, at Large, 375. Practice ik Oases of Seizttbe, 483 own ; and it was, probably, with a view to this cir- cumstance, and for the express purpose of legalizing these modifications of the civil law forms of proce- dure, that a different phraseology was employed in the latter act.' With the exception of proceedings on seizures under the laws of impost, , navigation and trade (which, as will be seen in the sequel, are, to a considerable extent, regulated by the collection act of 1799), and proceedings in rem, for the recovery of seamen's wages (which to some extent are also prescribed by the act of 1790, for the regulation and government of seamen, &c.), the admiralty jurisdic- tion has been left to be carried into effect with no other legislative direction than what was implied, ex m termini, by its designation as such^and the injunctions above mentioned, contained in the acts of 1789 and 1792. Actions in admiralty are eitheir in rem — against the thing ; or in personam — against the person. The party instituting the suit is called the libelant. Where the action is in rem, it is entitled in the name of the libelant against the thing libeled ; and he who appeal^ and is admitted to defend is called the claimant. When the suit is in personam, the person against whom it is brought is called the respondent. The officers of court, by whom proceedings in admi- ralty are conducted in behalf of suitors, are denomi- nated ^rocfor* and advocates (names borrowed from the civil law), corresponding with attorneys and counselors in courts of common law. The descriptions of actions of which it is proposed here to treat are suits in rem, prosecuted in the name and under the authority of the United' States by the attorney of the United States for the district in which the action is brought ; and they are instituted, some- > See Mcmre v. Almeida, 10 Wheat. R., 478. 484 Peactice in Cases of Seizure. PAKT3. times on the admiralty side, and sometimes on tlie common law side, of the court, according to circum- stances. With these explanatory observations, I proceed to . the consideration of the particular subject indicated by the title to this part. Tlie foregoing introduction to the ensuing chapters, treating of the forms of procedure in cases of seizure, as well as the chapters themselves, were written with an exclusive view to seizures made ' ' under laws of impost, navigation and trade." It was of this de- scription of cases alone that jurisdiction was con- ferred by the ninth section of the judiciary act of 1789 upon the districts courts ; and it may reason- ably be doubted whether at the date of that act any others 'had been thought of. At the expiration of little more than twenty years, however, the exigencies of an expensive war with England led to the imposi- tion of duties upon articles of domestic manufacture, and a final resort to seizure, confiscation and sale to enforce their payment. The laws enacted for this purpose ceased with the tempofkry emergency in which they originated. But the lapse of half a century brought another emergency no less urgent, imperatively demanding their revival, extension and indefinite continuance, and to these it is necessary now briefly to advert. For the purpose of defraying the enormous current expenses of the civil war which broke out in the year 1861, and of providing for the payment of the vast national debt incurred in its prosecution, nume- rous laws have been enacted by congress, well known under the name of the Internal Eeventje Acts. An elaborate analysis of these acts would be incon- sistent vsdth the design of this work. But a brief Practice in Oases of Seizuee. 485 explanatory notice of them in tMs place may be found useful. To insure tlie collection of the onerous taxes they impose and to that end a compliance with their numerous requirements, the collectors are investedwith very large powers. One of the coer- cive means employed is the liability of delinquents and culprits to the forfeiture of their goods, and seizures to enforce such forfeiture are declared to be cognizable as well in the circuit as in- the district courts, although the jurisdiction of these latter courts had, as we have seen, by the ninth section of the judi- ciary act, been made exclusive in all cases of seizure. In cases of indisputable delinquency the collector is authorized to take the goods of the delinquent into his possession, and, on due notice to the owner and his sureties, summarily to declare a forfeiture. But, in ,other instances of a nature to demand more thorough examination, resort is to be had to the circuit or dis- trict court of the United States, by the formal seizure of the goods supposed to have been forfeited, and the institution of, a suit in rem for their condemnation. In cases of this description (which are designated in these statutes), this form of proceeding is expressly enjoined. lliis, however, seems to have been done for abundant caution ; because such is the established mode of prosecution in the exercise, by the district courts, of the jurisdiction conferred by the ninth section of judiciary act of 1789, of all seizures on land as well as on water, "under the laws'' of the United States;" and, in the taking cognizance of this new class of cases, in addition to that of seizures under the "laws of impost, navigation and trade," it would, it may be presumed, have been regarded as a matter ' of course to deal with it in the same manner. Indeed, the rule prescribing the form of the informa- tion or libel of information upon seizures, comprises, in terms, as well seizures for the breach of any 486 Peacticb IK 0ASE3 OP Seizuse. PAET3. "other laws of tlie United States" as those for, the breach of the revenue and navigation laws. It wUl be perceived, therefore, that the proceeding in rem, dictated in the internal revenue laws, for the con- demnation and sale of property seized under these acts, is identical with that described in the following chapters, in cases of seizure on land or on waters not navigable from the ocean by vessels of ten or more tons burden, except such slight and consistent modi- fications as the courts may have deemed it expedient to introduce by special rules, the better to adapt it to the nature of this new class of cases. A few such Special rules will be found at the conclusion of the rules of the district court for the northern district of New York. CHAPTER I. OF THE SEIZUEE. Judicial proceedings in rem, for the purpose of enforcing a forfeiture, can be instituted only in pur- suance of a previous seizure of the thing to be pro- ceeded against. It is by virtue of the seizure that the thing is brought within the reach of the process of the court, and, constructively, into its possession ; when, and not before, judicial cognizance attaches; The Ann, 9 Cranch, 289. 1. How it is to he made. To constitute a valid seizure, there must be an open, visible possession claimed, and authority exercised under the seizure. The party must understand that he is dispossessed, and that he is no longer at liberty to exercise any dominion over the property. But this by no means implies the necessity of employing physical force, where there is a voluntary acquiescence in the Peactice in Oases of Seizure. 487 seizure and dispossession. If the party, npon c hap, i . notice, agrees to submit, and actually submits to the command and control of the seizor, that is sufficient. The JosepTia Segunda, 10 Wheat., 312. No record or memorandum of the seizure is neces- sary. 1 Gallis., 75. There must be a good subsisting seizure at the time the action is commenced ; and the jurisdiction acquired by the seizure may be lost by voluntary discharge or abandonment, and, in the case of a vessel, by subsequent escape or capture. Hudson et al. V. Ouesfier, 4 Cranch, 293. But to constitute an abandonment after seizure, there must be an unequivocal act of restoration or dereliction. The Ahhy, 1 Mason, 360. The practice prevailing in courts of admiralty of proceeding to the condemnation of prizes of war while lying in the ports of foreign neutral nations, has been held to be applicable also to municipal seizures. The principle on which the practice rests in cases of capture Jure belli is, that the prize, when in a neutral port, is in the possession of the sovereign of the captor ; the neutral sovereign hav- ing no right to divest the captor of his possession, because he can, by himself or by his courts, take no cognizance of the question. of prize or no prize ; and this principle is considered to hold good in cases of seizure for the violation of municipal regulations. Hudson et al. v. Questier, 4 Cranch, 293. And it makes no difference that the seizure was beyond the territorial limits of the nation of the seizor, and the vessel carried directly to the neutral port. B. C, 6 Cranch, 281, overruling the principle of the case of Hose Himely, 4 Cranch, 241. This case, however, turned upon the effect of a decree of con- demnation by a French court ; and I am not aware that the practice sanctioned by it, in respect to the 488 Practice isr Cases of Seizure. PARTS, courts of otlier nations where it prevails, has been enforced in onr ovra courts ; but their right to adopt it is strongly intimated in the case of TTie Rover, 1 GaUis., 75. 2. By whom made. Officers of the customs.] By the 70th section of the act to regulate the collection of duties on imports and tonnage, passed March 2, 1799, it is enacted "that it shall be the duty of the several officers of the customs to make seizure of, and secure, any ship or vessel, goods, wares or merchandise, which shall be liable to seizure by virtue of this or any other act- of the United States, respecting the revenue, which is now or may hereafter be enacted, as well without as within their respective districts." ' And by the 27th section of the previous act of February 18, 1793, for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same, it is enacted "that it shall be lawful for any officer of the revenue to go on board of any ship or vessel, whether she shall be within or without his district, and the same to inspect, search and examiae, and, if it shall appear that any breach of the laws of the United States has been committed, whereby such ship or vessel, or the goods, wares and merchandise, on board, or any part thereof, is or aire liable to forfeiture, to make seizure of the same." ' The duty enjoined on the officers of the customs by the act of 1799, it will be seen, is limited to infractions of the laws "respecting the revenue." But the authority conferred on these officers by the act of 1793, to make seizures for "any breach of the laws of the United States," has been understood 1 Cli. 22 : 1 Stat, at Large, 678. Ch. 8 : 1 Stat, at Large, 315. Pbactice in Oases of Seizure. 489 to extend to all the laws denouncing tlie penalty c hap, i. of forfeiture. Gelson v. m^t, 3 Wheat, 2A6. The revenue officers' of the United States may, therefore, ' By the act of March 2, 1799, to regulate the collection of duties on imports and tonnage, just cited, and which repealed all former acts on the same subject, and which still constitutes the basis of our impost system, aU those parts of the United States which border on the sea coast, on water [navigable from the ocean, and on the dominions of Great Britain, were divided into collection districts. Many of these districts have, by subsequent acts, been subdivided. For each of them a collector is appointed ; for several of them a naval ofScer and one or more surveyors, and for others one or more surveyors only, are also appointed. These officers are all designated in the act of 1799 above referred to, and are all appointed by the president and senate. This act (§ 21) also requires the several collectors, with the approbation of the secretary of the treasury, to employ proper persons as inspectors, weighers, gaugers and measurers, at the several ports within their respective districts. And by the 7th section of the act of March 3, 1817 (3 Stat, at Large, 397), made perpetual by the act of March 6, 1822, ch. 56, the several collectors are authorized, with the approbation of the secretary of the treasury, to employ such number of persons as he shall judge necessary, as deputy collectors, who are declared to be officers of the customs. Collectors, naval officers, surveyors and deputy collectors, unquestionably, fall under the denomination, as used indif- ferently in acts of congress, of officers of the customs, or revenue officers. It has been adjudged that inspectors are also included under this denomination. The United States v. Sears, 1 Gall., 215. Weighers, gaugers and measurers, I infer, are not included. By the collection act of 1799, above referred to, the president is empowered, for the better securing the collection of the duties imposed on goods, wares, and merchandise, imported into the United States, and on the totinage of ships or vessels, to cause to be built and equipped, and kept perma- nently In commission, so many revenue cutters, not exceeding ten, as may be necessary to be employed for the protection of the revenue. §g 97, 100. It is by this act further provided, that to each of these vessels there shall be one captain-, a master, and no more than three lieutenants or mates, first, second and third. These officers are to be appointed by the president ; and it is expressly declared that they shall be officers of the revenue, and be subject to the direction of such collect- ors of the revenue, or other officers thereof, as, from time to time, shall be designated for that purpose. They are expressly empowered and directed to go on board all ships or vessels which shall arrive within the United States, or within four leagues of the coast thereof, if bound for the United States, and to search and examine the same, and every 62 490 Pbactice in Oases of Seizuee. PARTS, be considered as specially charged with the duty of making seizures. But, being local, resident officers, their ability to execute this duty is necessarily limited to the land and the waters adjacent thereto. Commanders of armed vessels.] Seizures -on the high seas for offenses against laws which have an extra-territorial operation, such as the acts prohibit- ing the slave trade; acts for the suppression of piracy, non-intercourse and embargo acts, and the like, are generally made by the commanders of public armed vessels under the authority' of acts of congress, or in pursuance of express instructions from the president which he is authorized by law to give. Thus, by the act of May 10, 1800, in addition to the act of 1794, for the suppression of the slave trade in one of its forms, it is declared to be lawful for any of the commissioned vessels of the United States to seize and take any vessel employed in the interdicted trade." And by the act for the same purpose, of March 2, 1807, the president is author- ized to instruct and direct the commanders of armed vessels to seize and bring in vessels found on the high seas contravening the provisions of that act.' So, by the act of March 3, 1819, to protect the com- merce of the United States and to punish the crime of piracy, authority is conferred on the president to part thereof, &c., &c. §§ 98, 99. The collectors are also aathorized, ■with the approbation of the secretary of the treasury, to employ open row and saU boats for the use of the surveyors and inspectors in going on board vessels. These cutters and boats are required, in order to distinguish them from other vessels, to carry an ensign and pennant, and, in case any vessel liable to seizure or examination shall not bring to on being required or chased, the master of the cutter or boat> after hoisting his pennant and ensign, and firing a sigQal gun, is authorized to fire at or into such vessel. §§ 101, 103. ' Ch. 51, § 4 : 2 Stat at Large, 70. » Ch. 23, § 7 : 3 Stat, at Large, 436. Practice in Cases op Seiziteb. 491 instruct the commanders of public armed vessels c hap, i. to subdue, seize, take and send into port, any pira- tical vessel, &c.' . Upon the report to the district attorney of a seiz- ure by an officer acting in obedience to the law, it is a matter of course to institute judicial proceedings for forfeiture, provided the grounds Of the seizure appear to have been sufficient. Private citizens.]. But seizures may also be law- fully made by any citizen. In the case of The' Caledonian (4 Wheat., 100), the court say, "it is a general rule, that any person may seize any prop- erty forfeited to the use of the government, either by the municipal law, or by the law of prize, for the purpose of enforcing the forfeiture. And it depends on the government itself whether it will act upon the seizure. If it adopts the acts of the party, and pro- ceeds to enforce the forfeiture by legal process, this is a sufficient recognition and confirmation of the seizure, and is of equal validity in law, with an original authority given to the party to make the seizure. The confirmation acts retroactively, and is equivalent to a command." This doctrine was re- asserted in the case of Taylor et al. v. TJie United States (3 Howard, 197), where it is said to be wholly immaterial who makes the seizure, or whether it is irregularly made or not, or whether the cause assigned originally for the seizure be that for which the condemnation, takes place, provided the adjudi- cation is for sufficient cause. 3. In what places. By a well settled rule of international law, every nation is entitled to exclusive jurisdiction, not only over the por^s, harbors, bays, mouths of rivers and adjacent parts of the sea inclosed by headlands on ■ Oh. 77, § £ : 3 Stat, at Large, 510. 492 Pbacticb ik Cases of Seizuke. PABT8. its coasts, but also to the distance of the range of a cannon shot from the shore along its entire mari- time border. This rather indefinite limit, introduced since the invention of fire arms, is in accordance with the older rule of national law, terrce dommiwm finitur, uM finitur armorum vis; and is generally- understood to extend to a maritime league, or three miles from the coast. 1 Kent's Com., 3d ed., 28 ; Wheaton' s Elements of International law, 142. Within these limits of exclusive territorial juris- diction, the right of seizure is of course absolute and unqualified. It exists also beyond this limit; but is there qualified by the co-existence of equal rights itt other nations. If the right is exercised in a manner unnecessarily vexatious and harass- ' ing to the commerce of other nations, they will resist such abuse of it. But, so long as it is exer- cised only in such manner as is reasonable and necessary for the purpose of securiag the laws of the country from violation, foreign nations have no right to complain. Church v. ITubiart, 2 Cranch, 187; Hudson v. Guestier, 6 id., 281. Within the territorial limits of a foreign friendly power no nation has a right to make a ^seizure. But if a vessel^ of the United States be seized even within such limits, for a violation of our laws, the courts of the United States are bound to take cognizance of the case ; the law not connecting such illegal seizure with the sub- sequent arrest under the process of the court. The offense against the foreign power must be adjusted between the two governments. A judicial tribunal cannot take cognizance of it. The Ship Richmond V. TM United States, 9 Cranch, 102. To guard more effectually against frauds on the revenue, it is provided by the 68th section of the duty act of 1799," "that every collector, naval officer ' CSi. 22 : 1 Stat, at Large, 677. Practice in Cases of Seizure. 493 and surveyor, or other person specially appointed by c hap, i. either of them for that purpose, shall have full power and authority to enter any ship or vessel in which they shall have reason to suspect any goods, wares or merchandise, subject to duty, are concealed, and therein to search for, seize and secure any such goods, wares or merchandise, and if they shall have cause to suspect a concealment thereof in any particular dwelling-house, store, building or other place, they, or either of them, shaU, upon proper application or oath, to any justice of the peace, be entitled to a warrant to enter such house, store or other place (in the day-time only), and there to search for such goods ; and, if any shall be found, to seize and secure the same for trial ; and all such goods, wares and merchandise on which the duties shall not have been paid, or secured to have been paid, shall be forfeited." The authority here given, it will be perceived, is limited, in terms, to collectors, naval officers, survey- ors, and such other persons as may, by either of them, be specially appointed for this purpose. The subor- dinate officers of the customs, who are in general authorized to make seizures, seem, therefore, to be excluded. So far, however, as ships and vessels are concerned, the specific power here conferred may be considered as fairly implied by the authority conferred and the duties enjoined on these officers in common with their superiors, by other enactments. The United^ States V. Sears, 1 GaUis., 215. By the phrase "or other person specially appointed by either of them for that purpose," I understand to be meant a special , agent appointed to act in a particular case. The power to search dwelling-houses is one of great deli- cacy, and can be safely exercised only by a rigid 494 Peactice in Cases of Seizube. PAST 8. observance of the forms, and in all respects in the , mode, prescribed by the act. By a temporary act, passed March 3, 1815, it was declared to be lawful for any collector, &c., in his own or in an adjoining district, to stop, search and examine any carriage or vehicle whatsoever, or to stop any person traveling on foot or beast of bnrden, on which he may suspect that there are goods, wares or merchandise which are subject to duty, or which shall have been introduced into the. United States in any manner contrary to law, and if he find any such goods, &c., to seize the same.' This section was continued in force for the term of four years by the act of March 3, 1817, when it was suflfered to expire, doubtless, on account of the great delicacy of the powers it conferred ; but by the act of Feb- ruary 28, 1865 (ch. 67 : 13 Stat, at Large, 441), the provisions of it, above recited, were "revived and re-enacted," and the carriage or other vehicle, and the beasts of burden employed, together with the teams or other motive power, as well as the goods, are made subject to seizure and forfeiture. It adopts also, with respect to the disposition of seizures made under it, the provisions of the 91st section of the collection act of 1799, and invests inspectors of the customs with the power given by the 68th section of that act, to collectors, naval officers and surveyors, ■to enter ships and other vessels, and, upon a warrant obtained on oath, to enter (in the day time), any dwelliag-house, store, building or other place where he shall have reason to suspect any goods, subject to duty, are concealed. It repeals so much of the 91st section of the collection act of 1799, as withholds from any officer of the customs, necessarily sworn as a witness in any proceedings, to enforce a fine, penalty or forfeiture, the share therein to which > Ch. 94, § 2 : 8 Stat, at Large, 231. Pbactice in Oases of Seizuee. . 495 he would otherwise be entitled. Finally, this act c hap, i. denounces forfeitures and severe pains and penalties for using any store, warehouse or other building, upon or near the boundary line between the United States and any foreign country, for the purpose of illicit trade. 4. Of the 'protection afforded 'by law to the seizing officer. Fine for obstructing, c6c. J For the greater security of the seizing officer against forcible resistance in the execution of his duties, it is provided by the collection act of March 2, 1799," that "if any person shall forcibly resist, prevent, or impede any officer of the customs, or their deputies, or any person assisting them in the execution of their duty, such person so offending,- shall, for every such offense, be fined in a sum not exceeding four hundred dollars. • And if any master, or other person having the charge or command of any ship or vessel coming into or arriving at any port or place within the United States, shall obstruct or hinder, or shall be the cause or means of any obstruction or hindrance, with such an intent, to any officer of the customs or revenue, in going on board such ship or vessel, for the purpose of carrying into effect any of the reve- nue laws of the United States, he shall forfeit, for every such offense, a sum not exceeding five hun- dred dollars, nor less than fifty doUars." See act of February 18, 1793,' and of March 3, 1833.' ,To enforce these fines an indictment lies. The United States v. Sears, 1 Gallis., 215. It was held also in this case that an inspector is an officer of the customs within the designation of the foregoing pro- ' Ch. 33, § 71 : 1 Stat, at Large, 678. ' ' Ch. 7, § 31 : 1 Stat, at Large, 316. '(C!h.58,§8: 8 id., 781. 496 . Peactiob ik Cases of Seizure. PART 8. vision ; that as such. ofl3.cer he had a right to go on board any vessel to discover infractions of the laws, and that, if obstructed in so doing, an indictment will lie. To show the official character of the inspector at the trial, his commission from the col- lector, reciting the approbation of the secretary of the treasury,' and also a copy from the treasury department, of the oath taken by him, were pro- duced, and an actual execution by him of the duties of the office of inspector was shown. It was objected by the counsel for the defendant, that no proof had been adduced to show that the secretary of the treasury had approved the appointment of the in- spector. But the court considered the evidence sufficient, and expressed strong doubts whether the I express approbation of the secretary, of the specific officer, was necessary. It was further objected, that the commission of the collector by whom the appointment had been made, ought to have been produced ; but the court was of opinion that it was sufficient to have shown that he had for several years actually executed the duties of the office of collector. In the subsequent case of The^ United States v. Batchelder (2 Gallis., 15), the principles of this case were re-affirmed ; and it was further held, that when an inspector has been appointed and commissioned by the collector, and is acting in the duties of his office, he is to be pre- sumed not only to have been employed with the approbation of the secretary of the treasury, but also to have taken the requisite oaths. ' The words of the 31st section of the act under which inspectors are appointed, are, that the collector " shall, mtli the approiation of the principal officer of the treaswry department, employ proper persons as weighers, gangers, measurers and inspectors at the several ports within his district. Practice in Oases of Sbizueb. 497 But the ofllce of inspector ceases witli that of the c hap, i. collector who appoiated him. It is held at the pleasure of the collector, and is vacated by his death, removal or resignation. An indictment, therefore, will not lie for resisting an inspector after the resig- nation of the collector from whom he received his appointment. TTie United States v. Wood, 1 Gallis., 361.' An indictment for resisting the seizing officer will not lie, unless there was "probable cause" for the seizure." The United States v. Oay, 2 GaHis., 359. In this case it was also held, that whether there was or was not reasonable cause, was a question of law on which it was the duty of the court to instruct the jury. By the act of March 2, 1833, "to provide for the collection of duties on imports," new and important immunities and remedies are provided. It declares ' The 22d section of the collection act of 1799 provides that every collector, naval officer and surveyor, in cases of occasional and necessary absence, or of sickness, and not otherwise, may respectively exercise and perform their several functions, powers and duties, by deputy duly constituted under their hands and seals, respectively, and " that, in case of the disaMlity or death of a ceUeetor, the duties and authorities vested in him shaU devolve on his deputy, if any there be at the time of the dis- ability or death of such collector." And, by the 7th section of the act of March 3, 1817 (vol. 6, 344), which section is re-enacted and made perpetual by the act of March 6, 1833, it is enacted "that every col- lector of the customs shall have authority, with the approbation of the secretary of the treasury, to appoint, within his district, such number of proper persons as deputy collectors of the customs as he shall judge necessary, who are hereby declared to be officers of the customs." Now; independently of the provision in the 33d section of the act of 1799, for the continuance of deputy collectors appointed in virtue of that section, it is very clear, that, according to the decision in the case of The United States V. Wood, the office of a deputy collector appointed under the act of 1817 would cease upon the death, removal or resignation of the col- lector who made the appointment. Whether this provision in the 32d section of the act of 1799, by which so very limited and qualified a power of appointment is conferred, is applicable to appointments made under the 7th section of the act of 1817 may well be doubted. ' See the next two particular heads. , 63 498 Practice in Cases of Seizure. PASTS, "that tlie jurisdiction of the circuit courts shall extend to all cases of law and equity arising under the revenue laws for which provision is not already made by law ; and that, if any person shall receive any injury to his person or property for or on account of any act by him done under any law of the United States, for the protection of the revenue or the col- lection of duties or imports, he shall be entitled to maintain suit for damage therefor in the circuit courts of the United States in the district wherein the party doing the injury may reside, or shall be found. ' ' The act further provides, that ' ' aU property taken or detained by any officer or other person, under authority of any revenue law pf the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof." Ai^d further, that, "if any person shall dispossess or rescue, or attempt to dis- possess or rescue, any property so taken or detained as aforesaid, or shall aid or assist therein," such per- son shall be liable to the punishment prescribed by the 22d section of the crimes act of April 30, 1790, for the willful obstruction or ^-esistance of officers in the service of process.' By the 3d and 4th sections of the same act, pro- vision is made for the removal to the circuit court in and for which the defendant has been served with process, at the instance of the defendant, at any time before trial, of any suit instituted in a state court "against any officer of the United States, or other person, for or on account of any act done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority or title, set up or claimed by such officer or other person, under any law of the United States," ' Ch. 57, § 3 : 4 Stat, at Large, 633. Practice in Cases of Seizure. 499 General issue ; double costs ; onus prohandi.'] It is c hap, i. further enacted by the seventy-first section of the act of 1799, above referred to, ' ' that if any officer, or other person, executing or aiding or assisting in the seizure of goods . shall be sued or molested for any thing done in virtue of the powers given by this act, or by virtue of a warrant granted by any judge or justice, pursuant to law, such officer or other person may plead the general issue, and give this act and the special matter in evidence ; and, if in such suit the plaintiff is nonsuited, or judgment pass against him, the defendant shall recover double costs ; and, in actions, suits or informations to be brought, where any seizure shall be made pursuant to this act,' if the property be claimed by any person, in every such case the onus proiandi shall lie upon the claimant. But the onus prohandi shall lie on the claimant only where probable cause is shown for such prosecution, to be judged of by the court before whom the prose- cution is held." In this enactment, two very distinct subjects,, it will be perceived, are rather inaptly blended. The • In order to perceive the just teope of the words " made in pursuance of this act," it is necessary to bear in mind the provision of the 70th section, whereby the " several officers of the customs " are enjoined " to make seizure of, and secure, any ship or vessel, goods, wares or mer- chandise, which shall be liable to seizure by virtue of this or any other act of the United States, respecting the revenue, which now is, or may hereafter he, enacted." The effect of this enactment appears to be to bring -all municipal seizures for forfeitures incurred, under whatever act of congress, within the provision of the 71st section ; and yet, in the case of The United States v. An Open Boat, 5 Mason's R., 232, 234, where the seizure was made for an asserted violation of the act of March 15, 1820, prohibiting commercial intercourse with the British colonies, Mr. Justice Stoet held, that " every fact alleged in the libel, and necessary to maintain the asserted forfeiture, must be established by the government ; for," he added, " the case does not fall within the 71st section of the revenue collection act of 1799." This observation, so far as I can discern, seems to infer that the learned judge had over- looked the provisions of the 70th section. 500 Practice in Oases of Seizure. PARTS, first brancla of it relates to the form of pleading, and to costs, in a personal action for the recovery of dam- ages against the seizing officer, and requires no com- ment; the second relates to suits m rem to enforce the seizure ; and, under this latter branch of the enactment, it becomes a highly important question what is to be deemed a probable cause for prosecu- tion, whereby the burden of exculpatory proof is cast upon the claimant. In the case of LocJce, claim- ant of the cargo of the schooner Wendell v. The United States {7 Cranch, 339), the charge in the libel on which the decision turned was, that the goods, being of foreign growth and manufacture, and sub- ject to the payment of duties, were imported from some foreign port or place, to the district attorney unknown, into some port of the United States, to the district attorney unknown, and were unladen with- out a permit. On the trial, it appeared that the goods, had been shipped from Boston for Baltimore (at which latter place the seizure was made) in the names of thirteen different persons, some of whom had no existence, but that, in fact, it belonged wholly to Locke, the .claimant ; that no evidence existed of a legal importation into Boston ; and that the orig- inal marks on the packages had been removed and others substituted in their place. The question before the supreme court was whether these several circum- stances unexplained were sufficient to warrant the condemnation of the goods ; or, in other words, whether they constituted probable cause, whereby, according to the seventy-first section of the duty act above cited, the onus proiandi was thrown upon the claimant. This question was decided in the affirm- ative ; and the judgment of the circuit court affirm- ing that of the district court condemning the goods was affirmed. The words "probable cause," in the Pbaoticb iif Oases op Sbiztjee. 501 sense in wMcL. tliey were supposed to be used in the c hap, i. act, are thus defined by Chief Justice Maespiall : " It is contended that probable cause laeans prima facie evidence, or, in other words, such eyidence as, in the absence of exculpatory proof, -would [upon general principles, he doubtless meant] justify condemnation. This argument has been very satisfactorily answered on the part of the United States by the obserration that this would rendei the proTision totally inoperative. It may be added that the term 'probable cause,' according to its usual accepta- tion, means less than evidence which would justify con- demnation, and, in all cases of seizure, has a fixed and well known meaning. "It imports a seizure made under circumstances which warrant suspicion. In this, its legal sense, the court must understand the term to have been used by congress." When sufficient proof has been given on the part of the governnent to cast the onus proiandi on the claimant, it is hardly necessary to add, that, if the claimant fails, by proof, to explain the difficulties of the case, condemnation must foUovp. The Lumi- nary/, 8 Wheat, 407. Certificate of reasonable cause.} With a view to the further protection of the officers of the revenue in the reasonable and proper discharge of their responsible duties, it is declared by law that, in any prosecution founded on a seizure, made by any col- lector or other officer, under any act of congress authorizing such seizure, in which the judgment shall be for the claimant, if it shall appear to the court that there was "reasonable cause of seizure," the court shall so certify, and in such case the claim- ant or claimants shall not be entitled to costs, nor shall the person who made the seizure be liable to any suit, action or prosecution on account of such seizure.* " Act of February 84, 1807, ch. 19 : 2 Stat, at Large, 422. 602 Pkactice in Oasbs of Seizure. PAET 3. It will be observed that this act, for the better pro- tection of the seizing officer, like the provisions of the act of 1799, designed to facilitate prosecutions in rem for the forfeiture of goods seized,' embraces aU seizures under the laws of the United States. Properly to appreciate its importance it is necessary to remember that, without it, a decree in favor of the claimant would leave the officer absolutely defense- less in an action for damages^ such a decree being conclusive evidence that the seizure was wrongful. It may, it is believed, be safely asserted that, where the legality of the seizure depends on a ques- tion of fact, the phrase, "reasonable cause," in the acts last above referred to, ought to receive the same interpretation as the phrase "probable cause," and that where, in such a case, the facts proved on the trial are such as to call for exculpatory evidence from the claimant, bnt not otherwise, the court would be bound, in the event of a judgment for the claimant, to grant a certificate to exonerate the seizor from liability. But it is held that a doubt as to the true construction of the law is sufficient to entitle the seizor to a certificate. The United States V. Middle, 5 Cranch, 311; TTie FriendsMp,\ GraDis., 111. In this latter case a vessel was seized and Kbeled ■ under an ambiguously expressed section of one of the embargo acts, which was reasonably, but, in the opiaion of the court, erroneously, supposed by the collector to denounce a forfeiture, and it was decided that he was entitled to a certificate. It is hardly necessary to remark, however, that a doubt con- cerning the construction of the law can never con- stitute "probable cause," within the meaning of the seventy-first section of the duty act, because such an interpretation of the phrase would be equivalent < See note, p. 499. Pbaotice IK Cases of Seiztjbe. 603 to declariBg that a forfeiture may be incurred witli- chap. i. out violating the law. It is important to bear in mind that a mere inten- tion to infringe the law will not authorize a seizure. The Julia, 1 Gallis., 43 ; The FriendsMp, id., 45 ; Le Tigre, 3 Wash. C. C. Eep., 567, 573. And, therefore, no suspicion, however well founded, of such an intention, will entitle the seizing officer to a certificate. Thus, in a case in the district court for the north- ern district of New York, where the seizure had been made for a supposed violation of the act of 2d March, 1821,' requiring the conductor or driver of any carriage or sleigh, coming from any foreign territory adjacent to the United States, with mer- chandise subject to duty, to deliver a manifest of such merchandise, immediately on his arrival within the United States, at the office of any collector or deputy collector nearest the boundary line, or nearest to the road by which such merchandise is brought, and declaring such merchandise, together with the vehicle forfeited, if such conductor or driver shall neglect or refuse to deliver such manifest, or pass T)y, or avoid such office ; a certificate was refused by the court under the following circumstances appear- ing in proof at the trial ; the court being of opinion that they evinced, at most, only an intention to violate * the act, and did not afford any ground for reasonable suspicipn of an actual violation. The merchandise, consisting of British fabrics, was brought in a wagon by a road leading from Canada into the village or hamlet in which a deputy collector of the Champlain district resided and kept his office, which, by its position, was that at which the conductor of the wagon was bound to deliver a manifest. He reached this place, where the owner of the goods, who was a » Ch. 14 : 3 Stat, at Large, 471. 504 Peaoticb in Cases of Seizukb. PART 8. merchant, and was in the habit of importing goods from Canada, and paying the duties, also resided, at an early hour ia the morning, before he had any reason to suppose the collector was out of bed, and before he had in fact arisen. Instead of driving directly to the office of the deputy collector, he turned off from the main road a few rods (without passing the collector's office, which was still a little further south), and drove into a yard. The goods, wagon and horse were immediately seized by an officer of the customs, who, having seen thfe wagon pass his house, which was at a short distance to the north of the yard, followed the wagon to the yard, and there at once made the seizure.' 5. Chround of seizure. It is not compatible with the design of this work to enumerate the various offenses for which the penalty of forfeiture is denounced by the laws of the United States. These offenses are very numerous : to render their enumeration useful, it would be neces- sary to define them with perfect precision, and to specify all the statutory conditions, limitations and exceptions to which they are subject ; and to do this would reqLuire too much space. The acts under which forfeitures arise are those regulating the commerce, foreign and domestic, of the United States, including trade with the Indians ; the collection of the customs ; those for the suppres- sion of the slave trade ; those for the preservation of ' Several acta have from time to time been passsd, containing pro- visions for aiding and protecting oflSeers of the customs in the execu- tion of th|!ir duties of a far more stringent character than those above enumerated ; but these acts were temporary, and are not now in force. Such were the act of March 3, 1815 (ch. 94 : 3 Stat, at Large, 231) ; and the expired sections of the act of March 8, 1833, ch. 57 : 4 Stat, at Large, 633. Peactice in Cases op Seizure. 505 our international relations ; and the' internal revenue c hap, i. acts. The most important of these acts are the following, viz. : "An act concerning the registering and recording of ships and vessels," passed December 31, 1793. "An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same," passed February 18, 1793. "An act regulating passenger ships and vessels," passed March 2, 1819. "An act supplementary to the acts concerning the coasting trade," passed March 2, 1819. "An act respecting the enrolling and licensing ot steamboats," passed March 12, 1812. "An act to authorize the register or enrollment and license to be issued in the name of the president or secretary of any incorporated company owning a steamboat or vessel," passed March 3, 1825. "An act concerning vessels employed in the whale fishery," passed March 3, 1831. "An act to regulate the foreign and coasting trade on the northern, northeastern and northwestern frontiers of the United States, and for other pur- poses," passed March 2, 1831. "An act to regulate the collection of duties on imports and tonnage," passed March 2, 1799. "An act to continue in force an act, entitled 'An act further to provide for the collection of duties on imports and tonnage, passed March 3, 1815,' and for other purposes," passed March 8, 1817.' "An act further to regulate the entry of merchan- dise imported into the United States from any adja- cent territory," passed March 2, 1821. 'All but the 3d, 4th, and 7t]i sections of this act are expired ; and, with them, the act of 1815, referred to in the title. The three seotiona above mentioned, are made perpetual by the act of May 6, 1833, chap. 56. ■ 64 506 Peacticb in- Oases of Seizure. PARTS. "An act to araend an act, entitled 'An act further to regulate. th.e entry of mercliandise imported into the United States from any adjacent territory,' " passed March 3, 1823. "An act supplementary to, and to amend an act, entitled 'An act to regulate the collection of duties on imports and tonnage, passed March 2, 1799, and for other purposes,' " passed March 1, 1823. "An act for the more eflfectual collection of duties," passed May 28, 1828. "An act for the more effectual collection of impost duties," passed May 28, 1830. "An act to alter and amend the several acts impos- ing duties on imports," passed July 14, 1832. "An act to provide revenue from imports, and to change and modify existing laws imposing duties on imports, and for other purposes," passed August 30, 1842, and, "An act reducing the duty on imports, and for other purposes," passed July 30, 1846. "An act to prevent smuggling, and for other pur- poses," passed June 27, 1864, ch. 164; 13 Stat, at Large, 197. "An act to provide internal revenue to support the government, and pay interest on the public debt, and for other purposes," passed June 30, 1864, ch. 173 ; 13 Stat, at Large, 223. "An act to reduce internal taxation, and amend an act entitled, &c. [the act last above mentioned] and the acts amendatory thereof," passed July 13, 1866, ch. 184 ; 14 Stat, at Large, 98. Some of the above named acts, as wUl be perceived by their titles, relate chiefly to the inland trade between the United States, and the British domin-- ions on this continent. As the legislative enactments relating especially to this subject, are few and short ; as infractions of them are of frequent occurrence. Peacticb iir Oases oj Seizure. 507 generally no doubt by design, but nbt unfrequently c hap, i. also from ignorance-; and as their penalties are very severe, it will be useful to devote a brief space to their particular consideration. One of the general regulations prescribed by the duty act of 1799, in relation to the importation from foreign countries, of goods subject to duty; prohibits such importation, except by sea, in vessels of not less than thirty tons burden, and into certain speci- fied ports on the sea coast. But the inland collec- tion districts bordering on the British dominions in Upper and Lower Canada are expressly excepted." And by the 105th section of the same act, it is moreover enacted that — "It shall be lawful for citizens of the United States, and for all other persons, to import any goods or merchandise, of which the importation shall not be entirely prohibited, into the districts ■which are or may be established on the north- ern and northwestern boundaries of the United States, and on the rivers Ohio and Mississippi, in vessels or boats of any burden, and in rafts or carriages of any kind or nature whatsoever." ^ From Canada, therefore, merchandise may be brought into the adjacent districts of the United States, in any description of water craft, or any • description of land vehicles, and at any place along the boundary line. ' By the next section it is enacted that — "All vessels, boats, rafts and carriages, of whatever kind and nature soever, arriving in the districts aforesaid, contain- ing goods, wares or merchandise, subject to duty on being imported into any port of the United States, shall be reported to the collector or other chief officer of the customs at the port of entry, in the district into which they shall be imported; and such goods shall be accompanied by the like ■ Ch. 32, § 93: 1 Stat, at Large, 697. ' Ch. 33, § 93 : 1 Stat, at Large, 703. 508 Peactice in Oases of Seizuee. f ART 3 . manifests, and like entries shall be made by the person hav- ing charge of any vessels, boats, rafts and carriages afore- said, and by the owners or consignees of the goods, wares and merchandise laden on board the same ; and the powers and duties of the oflBcers of the customs shall be exercised and discharged in the districts last mentioned, in like man- ner as is hereinbefore directed and prescribed, in respect to goods, wares and merchandise, imported into the United States in vessels from the sea ; and generally all importa- tions as aforesaid shall be subject to the like regulations,- penalties and forfeitures as in other districts, except as here- inafter specially provided." ' But by subsequent legislation other regulations, supposed to be better adapted to the peculiar nature of this description of trade, have been substituted. . By one of the above entitled acts (passed March 3, 1817), it is enacted that vrhen any goods, wares or merchandise shall hereafter be imported from the province of Lower Canada into the United States, in any steamboat on Lake Champlain, and such goods, &c., shall have been duly entered and the duties thereon paid, or secured, at the office of the collector of any district adjoining Lake Champlain, it shall be lawful to land such goods, &c,, in the same or any other district adjoining said lake. ° By another of the above entitled acts (passed March 2, 1821), it is enacted : ' This exception appears to refer to the regxilations prescribed by the three next sections, relative to the transportation of goods across por- tages. ' Ch. 109, §4:3 Stat, at Large, 396, By the third section it is also declared to be thereafter lawful for the master, or person having charge or command of any steamboat on Lake Champlain, when going from the United States into the province of Lower Canada, to deliver a man- ifest of the cargo on board, and take a clearance from the collector of the district through which any such boat shall last pass, without regard to the place from which any such boat shall have commenced her voyage, or where her cargo shall have been taken on board. Pbacticb in Oases of Sbizukb. 609 " That it sliall be the duty of the master of any vessel, chap. i. except registered vessels, and of every person having charge of any boat, canoe, or raft, and of the conductor or driver of any carriage or sleigh, and of every other person coming from any foreign territory adjacent to the United States into the United States, with merchandise subject to duty, to deliver, immediately on his or her arrival within the United States, a manifest of the cargo or loading of such vessel, boat, canoe, raft, carriage or sleigh, or of the merchandise so brought from such foreign territory, at the oflBce of any collector or deputy which shall be nearest to the boundary line or nearest to the road or waters by which such merchandise is brought; and every such manifest shall be verified by the oath of such person delivering the same ; which oath shall be taken before such collector or deputy collector; and such oath shall state that such manifest contains a full, just and true account of the kinds, quantities and values of all the mer- chandise so brought from such foreign territory; and, if the master or other person having charge of such vessel, boat, canoe or raft, or the conductor or driver of such carriage or sleigh, or other person bringing merchandise as aforesaid, shall neglect or refuse to deliver the manifest herein required, or pass by or avoid such office, the merchandise sub- ject to duty, and so imported, shall be forfeited to the United States, together with the vessel, boat, canoe or raft, the tackle, apparel and furniture of the same, or the carriage or sleigh, and harness and cattle drawing the same, or the horses with their saddles and bridles as the case may be ; and such master, conductor, or other importer shall be subject to pay a penalty of four hundred dollars." ' The second section of this act, authorizes any deputy collector, stationed in any district of the cus- toms contiguous to a foreign territory, to whom a manifest of merchandise, subject to duty, shall be delivered as aforesaid, to require of the importer of such merchandise the payment of the duties thereon, or good and ample security, either by bond, with one 'C!li. 14, § 1 : 3 Stat, at Large, 616. 510 Pkactiob iif Oases of Seiztteb. PART 8. or more sufficient sureties, for tlie payment thereof, or by the deposit of a portion of such merchandise, • equal, at least, to double the amount of duties on the whole importation ; which bond shall be canceled, or the merchandise so deposited shall be delivered to the owner, on producing to the deputy collector a certificate of the collector of the district that the duties have been duly paid. The third and only remaining section of this act relates exclusively to the mode of enforcing, miti- gating and remitting the forfeitures and penalties inflicted by this act, and, for that purpose, adopts the provisions of the duty act of 1799, and those of the act of March 3, 1797 (1 Stat, at Large, 506). By an act to amend this act, passed March 3, 1833 (3 Stat, at Large, 781), four times the value of the goods imported is substituted for the specific penalty of four hundred dollars. The second section of this amendatory- act contains an important provision < applicable as well to importations by sea, as from an adjacent territory. It declares that if any person or persons shall receive, conceal or 'buy any goods, &c., knowing them to have been illegally imported into the United States, and liable to seizure by virtue of any act in relation to the revenue, such person or persons shall, on conviction thereof, forfeit and pay a sum double the amount or value of the goods, &c., so received, concealed or purchased. It is proper to add, tow- ever, that the duty act of 1799 (sec. 69), contains a provision substantially the same with this, except that, in the former act, the word ' ' receive "is omitted; the offense being defined by the terms "conceal and buy" alone. The 4th section of this amendatory act declares, that the provisions of the 46th section of the duty act of 1799 (which relates to "wearing apparel, and other personal baggage, and the tools * Practice IN Oases OF Seizueb. 511 and implements of a mechanical trade"), stall be c hap, i. . "extended to tlie case of goods, wares and merchan- dise, imported into the United States from an adjacent territory. ' ' Although the language of this proyision is comprehensive enough to embrace every descrip- tion of merchandise, it is clear that it was intended to apply only to the same descriptions of property as are provided for by the section of the collection act referred to, and which are exempted from duty. The motive to this enactment is doubtless to be found in the fact that the act of 1821 applies only to vessels, boats, &c., coming from an adjacent foreign territory into the United States, ' ' with merchandise subject to duty." To prevent the possibility of misconception, it is proper to remark, that it must by no means be under- stood to have been the intention of this act, with respect to the particular branch of foreign commerce to which it relates, to supersede entirely the regula- tions prescribed by the duty act of 1799, and that in the prosecution of this inland trade no forfeitures can be incurred, except by transgressing the injunctions of this act. On the contrary, the provisions of the former act are displaced or modified by the latter act only so far as they are inconsistent with it. Many of them, however, are of such a nature as not to be applicable at least to importations by land. Thus, for example, the 50th section prohibits the ' unlading or delivery of goods, &c., from any ship or vessel without a permit, or, in the night-time, without a special license, on pain of forfeiture of the goods so unladen or delivered, and under the further pecu- niary penalty of four hundred dollars against the master and every other person knowingly concerned ; and, if the goods, &c., so unladen are of the value of four huiidred dollars at the highest market price, the vessel is also subjected to forfeiture. Whether these 512 Peactice in Cases of Sbizuee. PAHT 3. provisions are still to be considered as operative with, respect to importations from adjacent foreign terri- tories, even by water, may be doubted. Their sole object in requiring a permit was to secure the pay- ment of duties. The sole object of the act of 1821, in requiring the immediate delivery of a manifest, was the same. The object was intended to be attained by putting it into the power of the collector to exact the payment of duties before the goods should be removed beyond his control, and for this purpose the requirements of the act of 1821 are all sufficient, and may therefore not unreasonably be considered as superseding the requirement of the 50th section of ' the act of 1799. This construction is further recom- mended by the- inconsistency which would result from the opposite one. The 50th section imposes a personal penalty of four hundred dollars. This penalty was adopted by the act of 1821 ; but it was abolished, and a penalty of four times the value of the goods substituted by the amendatory act of 1823. If, therefore, the 50th section is still in force with respect to importations from adjacent foreign terri- tories, it follows, that, for substantially the same ofltense, either the one or the other of two very dif- ferent penalties may be exacted at the option of the public prosecutor. It is proper to add, however, that, in the northern district of New York, the 50th section has generally been considered as unaffected by the act of 1821, and has been repeatedly enforced without resistance or complaint. It is supposed, also, that the immediate delivery of a manifest verified by oath, and the payment forth- with of the duties of giving bond] therefor, required by the act of 1821, was intended by Congress to be a full substitute for the reports by the master and the subsequent entry by the owner enjoined by the Peacxice in Cases of Seiztjee. 513 act of 1799, so far at least as importations by land c hap, i. are concerned. But there are other provisions in the act of 1799, which, though they do not admit of a literal applica- tion in all respects to importations by land, are never- theless susceptible of being substantially applied, and must, therefore, it is presumed, be considered as in spirit applicable to such importations. Such are supposed to be the prohibition under penalty of forfeiture, contained in the 51st section, of the removal of such articles, brought in any ship or 'vessel, as require to be weighed, gauged or measured, in order to ascertain the duties thereon, or their proof or quality or quantity to be ascertained and marked thereon, without the consent of the proper officer ; and the special regulations prescribed relative to importations of distUled spirits, wines, and teas, by the 35th, 37th, 38th, 39th, 41st, 42d, 43d, and 44th sections.' The act of 1821, as we have seen, requires the manifest to be delivered by the master, &c., " imme- diately on Ms or her arrival within the United States,''^ and makes the offense to consist in neglect- ing or refusing to do so, or in passing by or avoiding the proper office. A literal interpretation of the language of this enactment, it is obvious, would embrace every unregistered vessel, having any mer- chandise on Tjoard subject to duty, which, sailing from a Canadian port on the waters traversed by the boundary line between the United States and Great Britain, should pass that line. But there are many weighty objections to such an interpretation, particularly in regard to the commerce carried on upon the great lakes through which the boundary line betw;een the two countries passes. It would effect 'These regulations are, however, in part repealed by the act of 14th July, 1833, §5:4 Stat, at Large, 591. 514 Peactice in Cases oe Seizure. ■ PART 3. Britisli as well as American vessels ; and as well vessels bound from one Britisli port to another, as those bound from a Britisli to an American port. But the right to navigate these lakes is common to the two nations, and this construction carried into practice would not only be highly vexatious to our own com- merce, but would furnish good ground for complaint and resistance on the part of our neighbors. Indeed, the doctrine of the case of The Appollon (9 Wheat., 362), would forbid the attempt to extend this con- struction beyond our own citizens and vessels. The more reasonable conclusion would, therefore, seem to be, that, in regard to importations by water the legis- ' lature contemplated an arrival at the American shore. The other requirements of the act of 1799, not inconsistent with the provisions of the act of 1831, are supposed to be operative with respect to impor- tations from adjacent territories, so far as they are susceptible of application. It will be observed, that " registered tessels,'" are excepted from the provisions of the act of 1821. Under the general navigation acts of the United States [the first two of the acts above enumerated under this head], vessels designed to be employed in foreign commerce are to he registered : and those to be used in the coasting trade or fisheries are to be enrolled and licensed, or, when under twenty' tons burden, licensed only ; and a vessel having been either registered or licensed, is restricted by these laws to the business for which she had thus become qualified, until her character is changed by the sur- render of her papers, and the taking out of new ones. Until recently, these regulations extended as well to the navigation of our inland frontier waters as to that carried on by sea. But in regard to the former, a new and different system has been intro- Pbactice in Oases of Seizure. 616 dnced. By one of the above enumerated acts, viZi, c hap, i. that of March 2, 1831, it is enacted : " That from and after the passage of this act, any boat, sloop, or other Tessel of the United States, navigating the waters on our northern, northeastern and northwestern frontiers, otherwise than by sea, shall be enrolled and licensed in such form as may be prescribed by the secre- tary of the treasury; which enrollment and license shall authorize such boat, sloop or other vessel, to be employed either in the coasting or foreign trade ; and no certificate of registry shall be required for vessels so employed on said frontiers : Provided, that such boat, sloop or vessel, shall be, in every other respect, liable to the rules, regulations and penalties now in force, relating to registered vessels on our northern, northeastern and northwestern frontiers." ' It is easy to perceive that q^uestions of considera- ble importance and no little difficulty may arise out of the existing state of the law regulating this branch of our foreign and domestic commerce. The subject has always been attended with embarrassment. Prior to 1821, it was regulated by the collection act of 1799. But many of the regulations prescribed by that act were, from the nature of the case, partially or wholly inapplicable, especially in respect to importations by land. If the very rigorous act of 1821 introduced a greater degree of simplicity in some respects, it gave rise, also, to the embarrassing question — in. what particulars, and to what extent it superseded or modified the act of 1799 ? By the act of 1831, much additional confusion and perplexity have been introduced, by the creation of a new and distinct description of American vessels, indued with peculiar privileges, but of so indefinite a character as to render it no easy task to determine to what regulations they are subject. The part of it to which I refer is the third section above recited. The main 1 Ch. 98, § 3 : 4 Stat, at Large, 487. 516 PBACTICB ilf CASIiS 6f SEIZURi. PART 3. design of this section, tittqnestionAbiy, was to confer on vessels navigating onr inland frontier waters, and whioli should be enrolled and licensed under it, the conjoint privileges in regard to trade of registered and licensed vessels ; or, in otEer words, to authorize one and the same vessel to be employed simultane- ously or alternately, both in foreign and domestic commerce, under the same set of papers. The pro- vision includes "boats, sloops or other vessels;" and they are " to be enrolled and licensed in such forms as may be prescribed by the secretary of the treasury." The form which has, in fact, been pre- scribed,' and which is now in actual use for this pur- pose, is understood to be in exact conformity with the requirements of the act of February 18, 1793, "for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and ' for regulating the same;"' except that the act of 1831, now in question, as well "as that of 1793, are referred to in the certificates of enrollment and license. What then is to be considered to be the true character and condition of this new description of vessels with respect to many of the restrictions and requirements enjoined by the general laws concern- ing registered and licensed vessels, and by the special act of 1821, having for their objects the protection of our navigation and the security of the revenue ? In name, at least, they are licensed vessels ; and, looking at the question independently of the proviso in the act of 1831, there appear to be strong reasons for considering them subject, as such, to all the disabil- ities and penalties which would attach to them as vessels licensed under the original general act, except the ability conferred on them lawfully to engage in foreign as well as domestic trade. But the proviso ' Ch. 8 : 1 Stat, at Large, 305. Pbacticb in Oases of Sbiztjsb. 617 declares, that "Such boat, sloop or vessel shall in ohap. i. every other respect [except not being required to have a certificate of registry] be liable to the rules, regulations and penalties now in force relating to registered vessels on our northern, northeastern, and northwestern frontiers." The difficulty of giving a. satisfactory interpretation to this proviso is increased by the circumstance that there are no special laws to which the reference it contaias to existing rules, &c., can apply, unless, indeed, it be the few provisions relative, not to registered vessels in particular, but, in general terms, to the branch of commerce in ques- tion. ' It is not to be disguised that acts of congress are occasionly met with which appear to have been passed under an erroneous or defective apprehen- sion of the existing state of the law, and with little apparent regard to collateral consequences. The proviso in question it strikes me is an instance of this sort. Perhaps the actual intention of con- gress would be best effectuated by considering the design of the proviso to have been merely to exclude the inference that, in conferring on licensed vessels the privileges pertaining to registered vessels, while at the same time the accustomed form and certificate were dispensed with, it was intended to relieve them from all the peculiar restrictions imposed on regis- tered vessels. Such was the view entertained by it by the judge of the district court for the northern district of New York, in the case of The Steamboat BlacJc JaawTc. She was enrolled and licensed under the act of 1831. 'Among several other counts, the libel of information contained one founded on the 16th section of the registry act of 1793, requiring all sales and transfers of licensed vessels to be reported to the proper collector under penalty of forfeiture ; ' See, supra, 507-509. 618 Pbactiob iisr Oases of Seiztjeb. PARTS, and another count founded on the 32d section of the license act of 1793, absolutely prohibiting all such sales or transfers of licensed vessels, under a like penalty. The part of the opinion delivered in the case most pertinent to the present inquiry, is as follows : " It is not important to the decision of the case to inquire ■whether or not the 16th section of the registry act is appli- cable to vessels enrolled and licensed, like the Black Hawk, in pursuance of the provisions of the act of 1831. " It seems to me, however, very questionable, to say the least, notwithstanding the proviso of this latter act, whether the 16th section can be so applied. The design of the act of 1831 unquestionably was to confer upon vessels naviga- ting our inland frontier waters, and which should be enrolled and licensed uhder it, the conjoint privileges, in regard to trade, of registered and licensed vessels ; leaving them sub- ject, however, in other respects, to all the restrictions imposed on vessels of either character, for the protection of our shipping and domestic trade. A registered vessel may lawfully be sold to a foreigner, and, if the sale be duly reported as required by law, she merely loses her American character. But congress has thought proper to prohibit the sale of licensed vessels to any other than resident American citizens. Can a vessel licensed for the foreign and coasting trade, under the act of 1831, be lawfully sold to a foreigner ? I think not. She is not the less a licensed vessel, because she has become entitled to the privileges of a registered vessel. If this is so, then by the sale itself the violation of law would be complete, and the vessel be subject to for- feiture ; and it would be seen to be inconsistent as well as useless to require the sale to be reported." This view of the design of the act of 1831 was also acted on in the same court in the case of The Steam- boat Red Jacket. She had been enrolled and licensed under that act, and the information was founded on the act of 1821. A claim had been interposed, but no one appeared in Peactice in Oases of Seiztteb. 619 the court nt tlie trial to contest the forfeiture. It was chap. i. proved that, on two different occasions, foreign fab- rics, to a small amount, had been brought in, the Red Jacket, from Canada to the port of Buffalo, and that no manifest of them had been delivered. Upon this proof there was a verdict in favor of the United States and a judgment of condemnation, though certainly not without some degree of doubt of the applicability of the act of 1821 to the case. The circumstances of the case were calculated to awaken doubts. The vessel was of considerable value, and, though, in one of the two instances of illicit importation, the evidence showed that the master had been the offender, it furnished no ground for suspicion of connivance or knowledge on the part of the owners. It is under- stood that, in point of fact, all or nearly all of the vessels and boats of every description engaged in commerce on the waters in question are enrolled and licensed under the act of 1831. If, therefore, boats and vessels so enrolled and licensed are to be consid- ered as exempt from the operation of the act of 1821, this act, so far as importations by water are con- cerned, is virtually repealed. In concluding the foregoing summary reference to the ground of seizure under the laws of the United States, it is proper to notice the reported judicial decisions which determine, or tend directly or indi- rectly to elucidate, the true construction of some of these numerous enactments. Effect of a hona fide sale.] The case of the Schooner Mars, Jffawes, claimant (^ Gallis., 192), presented the important and interesting question, whether property which had become subject to forfeiture was protected by a subsequent sale made before seizure, for a valu- able consideration, and without notice of the offense. Mr. Justice Stoet, in a very elaborate and learned opinion, held that it was. A like decision was nearly 530 Pbacticb ikt Oases op Sbizuee. F AKT 8 . simultaneously made in tlie circuit court f©r the dis- trict of Maryland. But these decisions were reversed by the supreme court of the United States, in the case of The United States v. One thousci,nd ninehund/red and sixty Bags of Coffee, Mr. Justice Stoet and two of Ms brethren dissenting. 8 Cranch, 398 ; id., 417 ; id. , 198. The principle appears to be, that the for- feiture attaches absolutely, so as to divest the prop- erty at the moment the offense is committed. Oelson V. Hoyt, 3 Wheat., 346, 311. Where, however, the act gives a forfeiture in the alternative, of the thing in respect to which the offense was committed, or of its xialue, no title vests in the United States until after they shall have made their election, by actual seizure, to proceed against the thing, instead of re- sorting to an action against the offender for the pecu- niary penalty. The United States v. Grundy and Thornhurgh, 3 Cranch, 337. And in such a case a sale to a bona fide purchaser, withoui notice before actual seizure, is valid and effectual. The United States V. TJie Ship Anthony Maugin, 2 Admiralty Decisions, 452. The doctriae of the cases above cited, from 8 Cranch and 3 Wheaton, will of course be understood as applying only to cases of forfeiture for some act or pmission for which a forfeiture is denounced by law, and not to the mere lien of the government for duties, which attaches upon goods at the moment of importation, in cases where no for- feiture has been incurred. Thus, in the case of The United States v. Thr^e hundred and fifty Cfhests of Tea (12 Wheat., 586), where the teas in question, after having been regularly imported and stored (bonds having been given for the payment of the duties thereon), were removed by the fraudu- lent connivance or culpable negligence of the in- spector without the payment of duties, the court, after speaking of the lien of the government for Practice ik Oases of Seizure. 531 duties as.one wMcli could not be discliarged by sucli c hap, i. illegal removal, add, " whether it could be enforced against a 'bona fide purobaser of goods, removed from the store by a permit from the proper officers, with- out notice that the duties were not paid or secured, is a question which does not arise in this case, and upon which no opinion, therefore, is intended to be given.'" The lien above spoken of, as attaching at the moment of importation, is the right of possession secured to the United States by the laws regulating importa- tions, on the arrival of the vessel in port, or within four leagues of the coast ; and, of course, before the duties are paid or secured according to law — the object of it being to insure their payment. This lien transcends all adverse rights and authority. Thus, in the case of Harris v. Dennie (3 Peters, 392), where a cargo had been seized by a sheriff, in virtue of an attachment from a state court, on the arrival of a vessel in port, the attachment was held to be an inter- ference with the lien, and consequent right of custody belonging to the United States, and therefore void. Im,portation:~\ To constitute an importation it is necessary not only that there should be an arrival within the limits of the United States, and of a col- lection district, but also withia the limits of a port of ' With regard to the form of action iu which this lien is to be enforced, the language of the court in this case is not explicit. It was considered to be perfectly clear that it coujd not be done by seizure and a proceed- ing in rem. The court speaks of it as a lien " which might have been enforced by the ordinary remedies provided by law in similar cases." And, at the close of the opinion, it is said there is no doubt but that a suit at common law might be instituted in the district or circuit courti "in the name of the United States, founded on their legal right to recover the possession of goods upon which they have lien for duties, or damages for the illegal taking or detaining of the same.'' Probably the action of replevin, and the action of trespass de bonis aaportatis, or tro- ver, may be considered to have been the forms of remedy here referred to. It has been held that, against the importer, an action of assumpsit will lie for the recovery of duties. 522 Peacticb in Cases of Seizure. PARTS, entry. United States Y.Vowel, 5 Cranch, 368; Arnold V. The United States, 9 id., 104. The mere act of coming into port without breaking bulk is prima facie evidence of importation ; but this presumption may be rebutted ; and, if a vessel be driven in by dis- tress, or to avoid capture, it is not importation. The Boston, 1 GaUis., 239 ; The Mary, id., 206. ' The voluntary arrival of a vessel at her port of destination, with intent to unload her cargo, consti- tutes a complete importation, on which duties at once accrue. The Boston, 1 Grallis., 239 ; Perot et al. v. The United States, 1 Peters' s G. C. Rep., 256 ; The United States v. Lindsey, 1 Gallis., 365 ; The United States V. Lyman, 1 Mason, 482. Unavoidable acts or omissions. '\ It is only under circumstances which admit of an observance of the forms prescribed by law, that the penalty of forfeit- ure can be incurred by the omission of such forms. Thus, where, upon the discovery of a vessel adrift in Delaware bay without masts, anchors or rudder, and in danger of being carried out to sea, several persons, who had associated themselves together for the purpose, succeeded, by great efforts, in bringing the vessel to the nearest accessible part of the shore, and in saving the cargo, a part of which consisted of wines and brandy, and which, after being landed, was removed to a place of greater safety, it was held, that neither the 43d section of the act of 1T99, declaring distilled spirits, wines and teas subject to forfeiture when found in the possession of any one unaccompanied by the mark and certificates required by the act, — nor the 51st section, subjecting articles of this description to forfeiture for being removed from the place of landing without the consent of the proper officer of the customs, was applicable to the case. The court were of opinion, that, in order to determine the just scope of these sections, it was Peacticb isr Oases of Sbizuee. S23 indispensably necessary to examine the preceding c hap, i . sections regulating the importation of spirits, (fee, and the provisions of these sections being adapted to regular importations, and not to the case of goods saved from a wreck, the sections in question were held to require the like limitation. Peisclt et at. v. Ware et al. ; The United States v. The cargo of the ship Favorite, 4 Cranch, 347. But the court placed its decision also on another ground ; and, by doing so, established an important general principle. "The court is also of opinion," said Chief Justice Maeshall, "that the removal for which the act punishes the owner vdth a forfeiture of the goods must be made with Ms consent or con- nivance, or t^ith that of some person employed or trusted by him. If, by private theft, or open rob- bery, without any fault on his part, his property should be invaded, while in the custody of the officer of, the revenue, the law cannot be under- stood to punish him vnth the forfeiture of that property. ******* " The law is not understood to forfeit the property of owners or consignees, on account of the miscon- duct of mere strangers, over whom such owners or consignees could have no control." Concealing.] In the case of The United States v. Three hundred and fifty Chests of Tea (12 Wheat., 486, 493), the term "concealed," in the 68th section of the act of 1799, was held to apply only to articles fraudulently withdrawn from public view, and in- tended to be secreted on account of their being sub- ject to duties. Merely having possession of such goods is not, per se, a concealment. It is said, also, in this case, that in a prosecution under this section, " the owner of the goods is not put upon his trial to prove that the duties were paid or secured, until that fact is established." 524 Peacticb in Oases of Seizxtrb. PAST 3. Marks and certificates.'] To authorize a seizure of spirits, teas and wines Under the 43d section, declar- ing these articles subject to forfeiture when found in the possession of any one, unaccompanied with the marks and certificates required by the 39th and 40th sections, it is necessary that the casks, chests or other vessels in which they are contained should be unaccompanied by both the required marks and certificates. The want of either of them alone is not sufficient. Id. Unlading and delivering goods ipitTiout a permit.'] Under the 50th section of the collection act of 1799, subjecting vessels to forfeiture, from which goods brought from a foreign country, and which are of the value of four hundred dollars, are unladen or delivered within the United States, without a per- mit, it is not necessary that the goods should have been actually brought from such foreign country in such vessel ; for, if it turns out that they had been transhipped into her on the homeward voyage, the forfeiture nevertheless attaches. The Schooner Har- mony, 1 GralUs., 123. This section is understood to embrace every description of merchandise, whether chargeable with duties or free. This construction was assumed as unquestionable in the case of the Schooner Elizabeth and Jane (2 Mason, 407), and it was also held that silver dollars fell within the desig- nation of "goods, wares and merchandise," and were subject to forfeiture for having been landed without a permit. 6. Of the remedies of the owner for groundless seizure, &c. However essential it may be to the public welfare that the United States should possess, and, through their officers, exercise, the power of seizure, and how- ever just and proper it may be that these officers Practice in Cases of Seizure. 525 sliOTild be protected by law, so long as they act with c hap, i. honesty and discretion, it is no less indispensable to the security of the citizen that the law should afford the means of redress for any misuse of a power so summary and cogent, and so liable to abuse. It is accordingly a settled principle of law that the seizing officer acts at his perU, and that unless he can show at least probable cause for any seizure he may make, he is responsible to the owner for all the damage he may sustain. This principle was acted on and well defined in the cases of Sloeum y. Mayherry, 2 Wheat., 1, and Oelson et al. v. Hoyt, 3 Wheat., 246. Both of these cases were brought before the supreme court by a writ of error from a state court. The former was an action of replevin for the cargo of a vessel detained by a collector under an act of Congress authorizing the detention of any vessel ostensibly bound to some other port of the United States, on suspicion of an intention to violate or evade any of the provisions of the acts [laying an embargo. The action was held to be maintainable on the ground that the authority conferred on the collector by the act did not in any manner extend to the cargo of the vessel, being limited in its terms and its object to the vessel alone, and therefore, although the detention of the vessel necessarily involved the present arrest of the cargo in its course to any other port, yet the collector had no right to seize it specifically nor to detain it against the will of the owner. The owner's legal right to it conse- quently remained unimpaired. He had a right there- fore to demand it of the officer, and if withheld, he had a consequent right to resort to the law for redress. And as no act of Congress, either expressly or by implication, forbade the state courts to take cogni- zance of suits instituted for property in possession of 526 Pkacticb ik Cases of Seizuee. PAKT3. an officer of the United States not detained nnder some law of tlie United States, tlie state court liad jurisdiction. But the circumstances of this case, it will be seen, were very peculiar ; and Chief Justice Maeshall, in pronouncing the decision of the court, was careful to distinguish it from the more ordinary case of a seizure for a supposed oflfense against some act of Congress inflicting the penalty of forfeiture for such offense, and authorizing such seizure. In such a case, any intervention of a state authority which, by tak- ing the thing seized out of the possession of the officer of the United States, might obstruct the exer- cise of the exclusive jurisdiction over seizures con- ferred by the judiciary act on the federal courts, would unquestionably be a violation of that act; and the federal court, having cognizance of the seizure, might enforce a redelivery of the thing by attach- ment or other summary process against the parties who should divest such possession. The party sup- posing himself aggrieved by a seizure, cannot, because he considers such seizure tortious, replevy the prop- erty out of the custody of the seizing officer, or of the court having cognizance of the cause. If the offi- cer has a right, under the laws of the United States, to seize for a supposed forfeiture, the question whether that forfeiture has been actually incurred belongs exclusively to the federal courts, and cannot be drawn to another forum. The party must, there- fore, await the final decree of such courts upon the case. If the seizure shall be adjudged tortious and without probable cause, his right to the recovery of damages is conclusively established, and he may at once bring an action at common law in a state court, or a suit in admiralty in the district court. ' ' This latter remedy is supposed to be limited to tiose cases in wliicli the seizure was of admiralty jurisdiction ; i. e., a seizure made on the Practice ik Oases oe Seizube. 527 Should tlie seizing officer refuse to institute pro- chap. i. ceedings pursuant to the seizure, it would be the dutj of the district court, upon the application of the aggrieved party, to compel the officer to proceed to adjudication, or to abandon the seizure, i Since the decision of the case of Slocum, v. May- herry, of the doctrines of which the above is an abstract, an act has been passed by congress con- taining several highly important provisions relative to this subject, which it is proper to notice in this place. By one of these provisions it is declared, ' ' that the jurisdiction of the circuit court of the United States shall extend to all cases in law and equity, arising under the revenue laws of the United States, for which other provisions are not already made by law." It is not known that this clause of the act has yet received any authoritative judicial construction. The design of the act was to provide more effec- tually for the security of the revenue derivable from imposts, and for that of the officers employed in its collection ; and all the other provisions of the act are directed to this obj ect exclusively. But the terms of this clause are general, ^and as a suit against an officer of the customs for illegally seizing property on account of an alleged violation of "the revenue laws, " would seem unquestionably to be a case " arising under" these laws, it is supposed that the circuit courts are by this clause invested with juris- diction, concurrently with the state courts, of suits of this description, without regard to the citizenship of the parties. ' Another of the provisions of this act gives to any officer who may be sued in a state court for any act high seas, or on waters navigable from the ocean, by vessels of at least ten tons burden. 'Act of March 3, 1833, ch. 57, § 3 : 4 Stat, at Large, 633. 528 Practice in Cases of Seizure. PARTS , done under the revenue laws, tlie right to remove the cause to the circuit court for the district in which the process was served. , So that now, when a suit for an illegal seizure is instituted in a state court, the defendant may, if he thinks proper, have the cause tried and determined in the federal court. Id., §§ 3, 4. The other provision above alluded to declares that, "aU property itaken or detained by any officer or other person under the authority of any revenue law of the United States, shall be irrepleviable, and deemed to be in custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof. " Id., § 2. It is doubtful whether this clause in any manner affects the principles on which the case of Slocum v. Mayberry turned ; or whether any thing beyond a direct legislative sanction and affirmance of these principles was intended by it. The next clause, pro- viding for th^ punishment of those who shall interfere with property under seizure," it is presumed embraces as well persons who may do so in obedience to the command of process from a state court, as others. But no sufficient reason is perceived for supposing that it was the intention of congress to substitute a criminal prosecution in the place of the coercive interposition of the court by "attachment or other summary process," to enforce a redelivery of the thing. In a proceedrag in rem,, the possession of the res is indispensable to the effectual exercise of jurisdiction. It is upon this ground alone that the courts are authorized, when unlawfully dispossessed to compel a redelivery; and the exercise of this authority is not perceived to be incompatible with the further amenability of the party by whom the wrong has been committed, as a public offender. ' Tide, swpra. Peactioe in Cases of Seizueb. 539 If tMs view of the provisions of the act of 1838 is chap, i. correct, it follows that they do not, in any manner, conflict with the principles of the case of Slocum v. Mayberry. In the other case above cited, that of Oelston et al. V. Hoyt, these principles were distinctly reasserted, and the legal consequences resulting from them were stated and applied with great precision and force. Among the points decided, those requiring notice in this place are the following : In an action of trespass brought in a state court against the seizing officer while the suit for the sup- posed forfeiture is pending, the fact of such pendency may be pleaded in abatement, or as a temporary bar to the action. If the action be commenced after a decree of condemnation, or after' an acquittal with a certificate or reasonable cause of seizure, then, in the former case the fact of such condemnation, and in the latter case the acquittal with such certificate^ may be pleaded as a bar. If after an acquittal and a denial of such certificate, then the officer is with- out justification for the seizure, it being definitively settled to be a tortious act. A plea merely averring the fac^ of a forfeiture, without averring a Us pendens to enforce the forfeiture, or a condemnation, or an acquittal with a certificate of reasonable cause of seizure, is bad ; because it attempts to put in issue the question of forfeiture in a state court, where it cannot be tried. When the charge in the declaration is for taking, detaining and converting property, it is sufficient to plead a justification of the taking and detention. If the plaintiff relies on the conversion, he should reply it by way of new assignment. A plea alleging a seizure for a forfeiture as a justification, should not only state the facts relied on to establish the forfeiture, but aver that thereby the property 67 530 Pbactice in Cases of Seizube. PARTS, became and was actually forfeited, and was seized as forfeited. In the case of Slocum v. Mayberry, it is said,^ as we have seen, that a party injured by an unlaw- ful seizure of his property may, at his election, resort either to an action at common law in a state court, or to an admiralty suit in the district court, for the recovery of damages. It is presumed, how- ever, that a suit in admiralty for this purpose would lie only when the seizure was made on the high seas, or on waters navigable from the sea by vessels of at least ten tons burden. When made on the high seas, jurisdiction would doubtless attach to the case as constituting a marine trespass ; and, according to the case of BurJce v. Tremtt (1 Ma- son, 96), jurisdiction may, in other cases as well as in this, be maintained, as an incident to the exclu- sive jurisdiction conferred on the district court over all such seizures. On this latter grotind it might be supposed that, in the case of a seizure not of admi- ralty jurisdiction, a suit at common law for damages might be maintained in the district court. If the admiralty jurisdiction attaches as an incident to the general jurisdiction over the subject, why should not also the common law jurisdiction % In the case of Slocum V. Mayherry, however, the court seems to have been clearly of opinion that the state tribunals alone were competent to afford a remedy in this form. But, before recourse can be had to these tribunals, it is indispensable, as we have seen, that there should have been a decree of restoration and a refusal of a certificate of reasonable cause of seizure ia the dis- trict court. But, when the seizure is of admiralty jurisdiction, the owner may, it is presumed, avoid this circuity of action by demanding his damages in the character of claimant in the suit instituted to enforce the forfeiture. In cases of prize, strictly y?ire Peaotice iit Cases of Sbiztjke. 531 belli, and also of forcible arrest on the high seas, in chap. i. the nature of captures y^re helli, by the public ships of war of the United States, such is the establishfed and familiar practice.' And no reason is perceived why it should not also prevail in cases of seizure by custom-house officers. The relation in which the captor in the one case, and the seizor in the other, stands to the government, the nature and limits of the responsibility assumed by each, and the form of proceeding for the purpose of condemnation, in both cases, are substantially the same." Indeed, there is nothing to excite a doubt concerning the right of the claimant to seek redress in this form, instead of resorting to an original action for the purpose, except the absence (as far as I know) of any reported case in which it has been exerted. I understand the right, however, to be distinctly recognized in the case of the Appollon, 9 Wheat., 362. That was a case of municipal seizure by a collector of the customs, against whom the suit was instituted in the district court for the recovery of damages ; and having been commenced before a final decree had been pronounced ' See, for example, the following cases : Murray v. Tlie Oharming Betsey, 3 Crancli, 64 ; The Marianna Flora, 11 Wheat., 1 ; The Lively, 1 Gallis., 315 ; The Lkerpool Paehet, id., 513. '"In every case of a proceeding for condemnation upon captures by the public ships of war of the United States" (said the supreme court in The Pahnyra, 13 Wheat., 1), "whether the same be cases of prize, strictly j'Mr« ieUi, or upon public acts in the nature of captures jwre belli, the proceedings are in the name and authority of the United States, who prosecute for themselves as well as for the captors. The captors cannot, without the authority of the government, proceed to enforce condemnation. The suit is, in form and substance, a proceeding by and In the name of the United States for the benefit of all concerned.'i These agents and oflScers are, indeed, in a certain sense, parties to the suit, as the seizing officer is in cases of mere municipal seizure. In cases of capture, probable cause is a good defense against a claim for damages by the general law of prize ; a.nd, in cases of mere muni- cipal seizure, it is, as we have seen, made so by statute. The Appollon, 9 Wheat., 363 ; The Marianna Flora, 11 idi., 1 ; Th* Palmyra, 13 id., 1. 532 Peactice in Cases of Seizure. PABTs. in the suit for condemnation, it was objected that it ought not, on that account, to be entertained, because it was competent for the court to award damages in that suit, if the seizure was without probable cause ; and the objection was adjudged by the supreme court to have been well founded. . But, in a great majority" of the reported cases, even of capture, in which damages were awarded, they were recovered in a suit instituted by the owner, sometimes after a decree of restoration and refusal of a certificate of probable cause, and sometimes before. In the latter case, the libel, alleging the capture to have been illegal, claims restoration and damages, or, if the prize has been lost in consecLuence of the capture, damages alone, and prays a monition to the captor to proceed forthwith to adjudication. The captor may then, at his option, either insti- tute proceedings for condemnation, or appear in the character of respondent, and contest the claim for - . damages. With regard to the q-mount of damages recovera- ble, whether in cases of Ulegal capture or seizure, the general rule is, that it ought to be equal to the real injury sustained. The Lively, 1 GaUis., 315. Where the vessel and cargo have been entirely lost to the owner, the proper measure of damages is, the prime value, including all charges, premiums pf insurance and counsel fees, with interest ; and, in case of injury, the amount of the diminution in value, with interest. Where the voyage has been lost, or the cargo undelivered, the loss of freight is a proper item of damages. Supposed loss of profits on the voyage is in no case allowable. In case of gross and wanton outrage, vindictive damages may be rewarded. Murray v. The Charming Betsey, 2 (Cranch, 64; Maley v. ShattucTc, 3 id., 458; The George, 1 Mason, 24; The Ulprino, id., 91; Hoi- Practice in Oases of Seizuee. 533 lingsworth v. The Betsey, 2 Adm. Decis., 380; The chap, i. Anna Maria, 2 Wheat., 327 ; The Amiable Nancy, 3 id., 546 -,8.0., Paine' sC. C. Kep., Ill ; La Amistad Be Rues, 5 Wheat., 385 ; The AppoUon,9 id., 362 ; The Lively, 1 Gallis., 315 ; Canter v. The American Insurance Company et al., 3 Peters, 307. If the captors wantonly injure the captured crew, damages will be awarded for personal ill-usage. The Lively, 1 Gallis., 315. The commander of a squad- ron is liable to individuals for the trespasses of those under his command, acting in pursuance of positive or permissive orders, and in case of actual presence and co-operation. The Eleanor, 2 Wheat., 345. In the case of Little et al. v. Bareme et al. (2 Cranch, 170), the important principle was settled that the instructions of the president to a naval commander, when not strictly warranted by law, afford no protection to the officer against a claim for damages on account of a capture made by him in pursuance of such instructions. This case arose under the act of February 9, 1799, "further to sus- pend the commercial intercourse between the United States and France and the dependencies thereof." The first section forbade all vessels, owned or em- ployed by persons resident within the United States, to proceed thence to any French port, or to be em- ployed in any traffic or commerce with persons resi- dent in France or any places under her jurisdiction. The fifth section authorized the president to give instructions to the commanders of public armed ships of the United States, to stop and examine any ship or vessel of the United States on the high seas, which there might be reason to suspect to be engaged in any traffic or commerce contrary to the true tenor of the act; and if, upon examination, it should appear that such ship or vessel was hov/ad or sail- ing to any port or place within the territory of the 534 Peacticb in Cases of Seizure. PAET8. French Eepublic, or her dependencies, contrary to the intent of the act, it shall be the duty of such commanders to seize and send into port such ship or vessel. The instructions given' by the president to our naval commanders, under this act, directed the ■ seizure of vessels bound from as well as to French ports. The vessel, on account of whose capture the suit was brought, was, when captured, returning with a cargo of coffee from a French West India port. The court were of opinion that the instruc- tions, and, consequently, the capture, were not warranted by the act. Chief Justice Marshall, in delivering the opinion of the court, says : " I confess the first bias of my mind was very strong in favor of the opinion that, though the instructions of the executive could not give a right, they might excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of mili- tary officers ; and between proceedings within the body of the country and those on the high seas. The implicit obedience which military men usually pay to the orders of their superiors, which, indeed, is indispensably necessary to every military system, appeared to me strongly to imply the principle that these orders, if not to perform a prohib- ited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situaiaon which, in general, requires that he should obey them. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which, without these instructions, would have been a plain trespass. Captain Little then must be answerable in damages," &c. What has thus far been said of the liability of the seizor relates to cases of seizure without reasonable cause ; in which cases the liability attaches at the moment of the seizure ; and if the property be sub- Peactice in Oases of Seizure. 535 sequently lost or injured while under seizure, it mat- chap. 2. ters not how the loss or injury was occasioned. But "" as the authority of the owner over his property is suspended while it is under seizure, he has a right to have it safely kept, and in the event of its final acquittal, even though there was reasonable cause for seizure, to have it restored to him. The seizing officer while the property remains in his custody, and the marshal, after its arrest by him under the process of the court, are therefore responsible, in such a case, for any loss or injury resulting from want of ordinary care. Burke v. Trevitt, 1 Mason, 96. CHAPTEE II. OF THE XIMITATION OF PEOSECUTIOKS FOUNDED ON SEIZTJEES. " All prosecutions and suits for penalties or forfeit- ures, pecuniary or otherwise, accruing under the laws of the United States, are required to be com- menced within five years from the time when the penalty of forfeiture accrued ; provided the offender or the property liable to forfeiture) shall within that period be found within the United States, so that the proper process may be instituted and served agaiast such person or property therefor. Act of Feb. 28, 1839. ' It is presumed, from the terms of the act, that it is not sufficient that the seizure be made within the prescribed period, unless the judicial pro- ceedings be also instituted within that period. ' Ch. 30, § 4: 5 Stat, at Large, 321. The same limitation for prose- cutions to enforce fines and forfeitures incurred under the revenue laws was prescribed by the act of March 26, 1804, ch. 40, but without the proviso contained in the act of 1839. The limitation imposed by the 89th section of the collection act of 1799, ch. 22, was three years. Both these enactments are expressly repealed by the act of March 3, 1868, ch. 76, §14, probably to relieve the act of 1839 from a possible doubt about their interference with it, though it seems very clear that they were superseded, and, by implication, repealed by that act. 536 Pbactioe in Oases oe Seizuee. PABT 3. CHAPTER IIi: OF THE PEOOEEDIIirGS FEOM THE LIBEL OE rFTFOK- MATIOK (inclusive), TO THE HEAEING OE TEIAL, INCLXTDING- CONDEMITATIOM'S BY DEFATTLT. SECTION I. ' AS BBOULATBD BY STATUTE, It has already been intimated that the proceedings of which we are now to treat, were, to a considerable extent, regulated by the act of March 2, 1799,' some- times called the duty act and sometimes the collec- tion act, and which still forms the basis of our revenue system. The provisions alluded to are chiefly embodied in the 89th, 90th and 91st sections ; and as it will be necessary in the sequel to make frequent and minute references to various clauses of these sections, it will be convenient and useful, long as they are, here to insert them. They are as follows : " Sec. 89. And he if further enacted, that all penalties accrtiiiig by any breach of this act, shall be sued for and recovered with costs of suit, in the name of the: United States of America, in any court competent to try the same ; and the trial of any fact which may be put in issue, shall be within the judicial distrirffc in which any such penalty shall have accrued j and the collector within whose district the seizure shall be made, or forfeiture incurred, is hereby enjoined to cause suits for the same to be commenced with- out delay, and prosecuted to effect; and is, moreover, authorized to receive from the court within which such trial is had, or from the proper of&cer thereof, the sum or sums so recovered, after deducting all proper charges, to be allowed by the said court ; and on the receipt thereof, the said col- lector shall pay and distribute the same without delay, according to law, and transmit, quarter yearly, to the treasury, an account of all moneys by him received for fines, penalties 'Chap. 33: 1 Stat, at Large, 637. Practice iif Cases of Seizure. 537 and forfeitures during such quarter. And all ships or Tessels, chap. 3. goods, wares or merchandise, which shall become forfeited in virtue of this act, shall he seized, libeled and prosecuted as aforesaid, in the proper court, having cognizance thereof; which court shall cause fourteen days' notice to be given of such seizure and libel, by causing the substance of such libel, with the order of the court thereon, setting forth the time and place appointed for the trial, to be inserted in some newspaper published near the place of seizure, and also by posting up the same in the most public manner, for the .space of fourteen days, at or near the place of trial ; for which advertisement a sum not exceeding ten dollars shall be paid ; and proclamation shall be made in such manner as the court shall direct ; and, if no person shall appear and claim any such ship or vessel, goods wares or merchandise, and give bond to defend the prosecution thereof; and to respond to the cost in case he shall not support his claim, the court shall proceed to hear and determine the cause according to law ; and, upon the prayer of any claimant to the court, that any ship or vessel, goods, wares or merchan- dise so seized and prosecuted, or any part thereof, should be delivered to such claimant, it shall be lawful for the court to appoint three proper persons to appraise such ship or vessel, goods, wares or merchandise, who shall be sworn in open court for the faithful discharge of their duty; and such appraisement shall be made at the expense of the party on whose prayer it is granted ; and, on the return of such appraisement, if the claimant shall, with one or more sure- ties, to be approved of by the court, execute a bond in the usual form to the United States, for the payment of a sum equal to the sum at which the ship or vessel, goods, wares or merchandise, so prayed to be delivered, are appraised, and, moreover, produce a certificate from the collector of the dis- trict wherein such trial is had, and of the naval oflficer thereof, if any there be, that the duties on the goods, wares and merchandise, or tonnage duty, on the ship or vessel so claimed, have been paid or secured, in like manner as if the goods, wares or merchandise, ship or vessel, had been legally entered, the court shall, by rule, order such ship or vessel, 538 Pbaotiob iir Oases of Seizukb. PAET8, goods, wares or merchaiidise, to be delivered to the said claimant, and the said hond shall be lodged with the proper officer of the court, and, if judgment shall pass in favor of the claimant, the court shall cause the said bonfl. to be can- celed ; but, if judgment shall pass against the claimant as to the whole, or any part of such ship or vessel, goods, wares or merchandise, and the claimant shall not, within twenty days thereafter, pay into the court, or to the proper officer thereof, the amount of the appraised value of such ship or vessel, goods, wares or merchandise, so condemned, with the costs, judgment shall and may be granted upon the bond on motion in open court without further delay. And, when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares or mer- chandise, and judgment shall be given for the claimant or claimants, if it shall appear to the court before whom such prosecution shall be tried that there was a reasonable cause of seizure, the said court shall cause a proper certificate or entry to be made thereof, and, in such case, the claimant or claimants shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor be liable to action, suit or judgment on account of such seizure and prosecu- tion; Provided, that the ship or vessel, goods, wares or merchandise be, after judgment, forthwith returned to such claimant or claimants, his, her or their agent or agents; And provided, that no action or prosecution shall be main- tained in any case under this act, unless the same shall have been commenced within three years next after the penalty of forfeiture was incurred. "Sec. 90. And he it further enacted, that all ships or ves- sels, goods, wares, or merchandise, which shall be con- demned by virtue of this act, and for which bond shall not have been given by the claimant or claimants, agreeably to the provisions for that purpose, in the foregoing section, shall be sold by the marshal or other proper officer of the court in which condemnation shall be had, to the highest bidder at public auction, by order of such court, and at such place as the court may appoint, giving at least fifteen days' notice (except in cases of perishable goods) in one or Practice ik Oases of Sbizuee. 539 >» more of the public newspapers of the place where such sale chap. 3. shall be ; or, if no paper is published in such place, in one or more of the papers published in the nearest place thereto ; for which advertising, a sum not exceeding five dollars shall be paid. And the amount of such sales, deducting all proper charges, shall be paid within ten days after such sale, by the person selling the same, to the clerk, or other proper oflBcer of the court directing such sale, to be by him, after deducting the charges allowed by the court, paid to the col- lector of the district in which such seizure or forfeiture has taken place, as hereinbefore directed. "Sec. 91. And le it further enacted, that all fines, penal- ties and forfeitures, recovered by virtue of this act (and not otherwise 'appropriated), shall, after deducting all proper costs and charges, be disposed of as follows ; One moiety shall be for the use of the United States, and be paid into the treasury thereof, by the collector receiving the same ; the other moiety shall be divided between, and paid in equal portions to the collector, and naval officer of the district, and surveyor of the port, wherein the same shall have been incurred, or to such of the said officers as there may be in the said district ; and in districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer ; Provided, nevertheless. That in all cases where such penalties, fines and forfeitures shall be recovered in pursuance of information given to such col- lector, by any person other than the naval officer or sur- veyor of the district, the one-half of such moiety shall be given to such informer, and the remmider thereof shall be disposed of between the collector, naval officer, and surveyor or surveyors in' manner aforesaid ; Provided also, That where any fines, forfeitures and penalties incurred by virtue of this act are recovered in consequence of any information given by any officer of a revenue cutter, they shall, after decucting all proper costs and charges, be disposed of as follows : One-fourth part shall be for the use of the United States, and paid into the treasury thereof, in manner as before directed ; one-fourth part for the officers of the cus- toms, to be distributed as hereinbefore set forth ; and the 540 Pbactice IK Cases op Seizure. PAET 3. remainder thereof to the officers of such cutter, to be divided among them agreeably to their pay : And provided like- wise, That whenever a seizure, condemnation and sale of goods, wares or merchandise shall take place' within the United States, and the value thereof shall be less than two hundred and fifty dollars, that part of the forfeiture which accrues to the United States, or so much thereof as may be necessary, shall be applied to the payment of the cost of prosecution: And be ii further provided, That if any offi- cer, or other person, entitled to a part or share of any of the fines, penalties or forfeitures incurred in virtue of this act shall be necessary as a witness on the trial for such fine, penalty or forfeiture, such officer or other person may be a witness upon the said trial; but in such case he^shail not receive, nor be entitled to, any part or share of the said fine, penalty or forfeiture, and the part or share- to which he otherwise would have been entitled shall revert to the United States." As soon, then, as tlie seizure has been made, it is the duty of the seizing officer to cause proceedings to be instituted to enforce the supposed forfeiture ; and for this purpose he is to give notice of the seiz- ure, of the place v?^here it was made, and of the par- ticular grounds of it, to the United States attorney of the proper judicial district. If the seizure be made vrithin the limits of a judicial district, the court for that district alone can take cognizance of it, wherever the offen* may have been committed. See the judiciary act of 24th September, 1789, ch. 20, § 9 : 1 Stat, at Large, Y3 ; Keen v. The United States, 5 Cranch, 304; The Marino, 9 Wheat., 351. But,*if the seizure be made on the high seas, it is properly cognizable in the district into which the thing seized is first brought. Id. The Ally, 1 Mason, 360.' ' In this case, Mr. Justice Stoky considers the phrase " high seas," in the connection in which it is used in the text, as importing all waters on the sea coast below low-water mark, and at flood tide below high- water mark. He mast, of course, be understood to refer, as indeed the Practice in Cases of Seizure. 541 CHAP. 3. SECTION II. OF THE INFORMATION AND THE LEBEL OF INFORMATION. The district attorney, upon receiving due notice of the seizure, proceeds to institute a suit against the thing seized, by drawing up a written statement of the case setting forth the facts by reason of which a forfeiture is supposed to have been incurred. When the seizure has been made on land, or on water not navigable from the sea by vessels of ten or more tons burden, the case is of common law, or, as is sometimes said, of exchec[uer jurisdiction, and this pleading is denominated an information : when the seizure has been made on the high seas, or on waters which are so navigable, the case is of admiralty jurisdiction, and the pleading is called a libel of information^ circumstances of the case imply, only to the main coast, and not to the shores of bays, harbors, inlets and the like, within the limits of a state. Each of the judicial districts of the United States consists of a state or part of a state, eo nomine, and is, of course, conterminous with it. ' See, anU, Part I, and The Betsey and CharloUe, 4 Cranch, 443 ; Wha- len V. The United States, 7 id., 112. This distinction is well estab- lished, and the tferms by which it is expressed, as, so far as I am informed, they seem to have been invariably understood by the courts, leave little room for doubt or difficulty in their application. But, in a case in the district court of the northern district of New York, it was strenuously contended by the counsel for the claimant that the practical construction which they had uniformly received in that court was founded in error. As the subject is of considerable importance, I shall make no apology for inserting the following extract from the judgment • pronounced in the case by the judge of that court ; merely premising, that the proceeding was on the admiralty side of the court, against the steamboat Black Hawk and her appurtenances, for various alleged infractions of the navigation laws of the United States ; and that the seizure was made at the port of Ogdensburg, on the waters of the St. Lawrence : which waters were described in the libel, as being navigable from the sea by vessels of ten or more tons burden.- " A preliminary objection is taken that the waters of the St. Lawrence at the port of Ogdensburg are not so navigable ; and that this proceed- ing is, therefore, improperly instituted on the admiralty side of the court. It is not denied that the river St. Lawrence, throughout its entire 542 Phactice iisr Cases of Seizure. PARTS. In the northern district of New York (where reve- nue seizures are of very freciuent occnrrence) it is the established practice to file the libel or informa- tion and issue the proper process at once, whether the court happens to be in session or not ; and this I understand to be the practice in most of the other course, is of sufficient depth to admit the passage of vessels of a bnrden far exceeding ten tons. But it is asserted, and, as a geographical fact, is notorious, that at several places below Ogdensburg, and at one, in par- ticular, for several miles in extent, the velocity of the current is so great that it caimot be overcome by ascending" boats without the aid of extraordinary means of propulsion or traction. That neither sails, nor oars, nor even steam, are sufficient for this purpose, but that it requires a resort to setting-poles or drag-ropes. The forcing of vessels through water by such means, it ia argued, is not navigation ; and the quality of navigableness cannot, therefore, be truly predicated of waters which can be traversed only by such unusual, tardy and laborious processes. " There is unquestionably force and plausibility in the argument. " Another ground of doubt, whether this is a case of admiralty juris- diction, was also suggested. The constitution of the United States declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. But congress has no power to enlarge this jurisdiction beyond what was understood and intended by it when the constitution was adopted ; for this would be to deprive the citizen of the right of trial by jury, secured to him by the constitution, in suits at common law. ;It was upon this ground, that, in the case of TTie Vengeance (3 DaUas, 297), which arose not long after the adoption of the constitution, it was strenuously contended that con- gress had no authority to include seizures under the laws of impost, navigation and trade, wherever made, within the admiralty jurisdiction of the district courts; because, in England, such cases were cognizable not in the high court of admiralty, but in the court of exchequer. But it was admitted that the colonial vice-admiralty courts, both in this country and in the West Indies, had always exercised jurisdiction over seizures of this nature ; and the objection was overruled. It was also objected in that case, that it was not in fact the intention of congress to embrace such seizures within the admiralty jurisdiction; an objection to which the somewhat ambiguous phraseology of the ninth section of the judiciary act afforded considerable plausibility. But this objection was also overruled; and, though the principles of this early case have several times since been called in question at the bar, it has been steadily adhered to by the supreme court. Pbacxicb in Oases oe Seizure. 543 districts. Indeed, except in tlie few districts in whicL. c hap, s. all the terms of the district conri; are held in the same place, ia which the judge and other officers of the court also reside, and where, therefore, the regu- lar sessions of the court may be conveniently pro- tracted by successive adjournments, or special ses- " But the admiralty jurisdiction in England is limited to cases arising ■within the ebb and flow of tide ; and that of the courts of the United States has been decided to be, in general, subject to the same limitation. Thus, for example, though the district courts, as instance courts of admiralty, possess an unquestionable jurisdiction of suits for the recov- ery of seamen's wages, and of suits by materialmen and shipwrights (except in the case of a domestic ship, where the local law gives no lien), this jurisdiction is held not to extend to cases where the wages are earned, the materials furnished or the services rendered, above the ebb and flow of tide ; and so in regard to other maritime contracts, and in regard also to cases of marine trespass, false imprisonment and assault and battery, the admiralty jurisdiction is subject to a like limita- tion. The Steamboat Jefferson, 10 Wheat., 433 ; The Steamboat Planter, 7 Peters, 334. " "Without, therefore, questioning the general soundness of the decision in the case of The Vengeance, it might still be insisted that the admi- ralty jurisdiction of municipal forfeitures is limited to seizures made upon tide waters. An exception to this extent might, perhaps, not unreasonably be implied, as within the contemplation of the legislature ; for it may well be doubted whether it was in fact intended to extend the admiralty jurisdiction thousands of miles into the interior of the country, to the waters, for example, of the Mississippi, Missouri, Ohio, and their tributaries, throughout their whole navigable extent ; and even, if it was so intended, the constitutional power of congress to do it might reasonably be questioned. > "I have thought it right to notice the objection to the jurisdiction of the court in the present case, and thus briefly to advert to the grounds on which it rests. But, as applied to the waters in question, it is altogether novel. Hitherto, ever since my official connection with this court, and, as I understand, ever since its organization, all seizures made on lake Ontario and the river St. Lawrence have been considered and treated as of admiralty jurisdiction ; and I am of opinion, that it would not become me, at this late day, to entertain the question whether this practice had not its origin in usurpation. If a jurisdiction which has been constantly exercised and acquiesced in without com- plaint for half a century, and which is in apparent accordance with the decisions of the supreme court, is to be renounced by this court, it can, 544 Pbactice in Cases of Seizxteb. PAST 8. sions may be conveniently lield, the delays which would arise from postponing all suits on seizures made in vacation until the next succeeding term of the court would be intolerable. [Besides, by the 89th section of the collection act every collector, within whose district a seizure is made, or forfeiture incurred, is expressly "enjoined to cause suits for the same to be commenced without delay.'''' Rules regulating the structure of the Information and libel of Injormation.'] These rules are enjoined by rule 22, of rules of practice prescribed by the supreme court, in causes of admiralty and maritime jurisdiction. It relates, it will be seen, exclusively to cases of seizure, and is as follows : " All informations, and libels of information, upon seizures for any breach of the revenue or navigation or other laws of the United States, shall state the place of seizure, whether it be on the land or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States; and the district within which the property is brought and where it then is. The information or libel of information shall also propound, in distinct articles, the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the fijrm of the statute or statutes of the United States in such case provided, as the case may require ; and shall conclude with a prayer of due process to enforce the forfeiture, and to give notice to all persons concerned in interest to appear and show cause, at « in my judgment, be properly and decorously done only in obedience to the decision of an appellate tribunal." The foregoing note is reprinted from a preceding edition of this work. But since the date of that edition, as already shown, the antecedent decisions of the supreme court, declaring the admiralty jurisdiction of the courts of the United States to be limited to cases arising on the high seas or tide waters, have been unequivocally overruled, and the distinction on which they turned repudiated, by that court. I have deemed it fit, nevertheless, to retain the note as a record of the past, pertaining to the judicial history of the United States, and, as such not devoid of interest. Pbactice lis: Cases op Sbizubb. the return day of the process, why the forfeiture should not chap. be decreed." ' As to tlie degree of strictness necessary to be observed in framing a libel or information, it may be said in general, that in regard to mere form no great nicety is required. It is proper to remark, however, tbat the reported decisions in our courts on this sub- ject relate to proceedings in admiralty, in which, it lias uniformly been said, less strictness is requisite than is exacted in proceedings, especially criminal proceedings, in courts of common law. "Whether the same rule is applicable to proceedings by infor- mation on the common law side of the court, is a question to which the decisions thus far do not appear to aflfbrd a satisfactory answer. It is hardly to be supposed, however, that what would be suffici- ent as a libel of information, would be adjudged insufficient as a simple information. A distinction • in this respect would seem to savor too much of arbi- trary and senseless technicality ; and such, I infer, was the impression of Mr. Justice Story, in the case of Cross Y. The United States, 1 Gallis., 31. But with regard to matters of substance, the rule is, that every fact find circumstance material in law to the maintenance of the suit must be set forth with precision, clearness and all reasonable certainty. The owner of the property proceeded against is entitled to know exactly to what he is called upon to answer ; and the case must be so presented as to enable the court to see, judicially, that the fact alleged to have been committed is an oflfense against the laws. This rule is extracted from the case of The Schooner ' A rule of the district court of the northern district of New York, made in 1869, permits the joiuder of a suit in rem for a forfeiture and a suit in personam for a fine, penalty or debt, incurred by one and the same offense ; and their consolidation when separately instituted. See post, Bules D. C, N. D. N. T. 546 Practice in Oases op Seiztteb. PART 3. Hoppet and Cargo v. The United States, 7 Cranch, 389. A rule, say tlie court, so essential to justice and fair proceedings as that wMcli requires a substan- tial statement of the offense upon whicli the prosecu- tion is founded, must be the rule of every court where justice is the object. The reasons of it apply to prosecutions in courts of admiralty with as much force as to prosecutions in other courts ; and it is a maxim of the civil law that a decree must be secun- dv/m allegata as well as secundum probata — a maxim essential to justice in all courts. The libel of infor- mation against the vessel in that case charged in sub- stance, that while the act entitled ' ' An act to interdict commercial intercourse," &c., was in force, certain goods of the growth, produce, or manufacture of France, were imported into the United States, to wit, into the port of New Orleans, in the said vessel, from some foreign port or place, to wit, from St. Bartholomew, contrary to, and in violation of, the fourth, fifth and sixth sections of the act. By reason of which, and by force of the act of congress entitled An act, &c., the said vessel, her tackle, apparel'and furniture had become forfeited to the United States. The only section of the act impelling a forfeiture on the vessel was the sixth ; by which it was in sub- stance enacted, that if any article, the importation of which is prohibited, shall be put on board of any ship, &c., with intention to import the same into the United States contrary to the true intent and mean- ing of the act, and with the knowledge of the owner or master of such ship, &c., such ship, &c., shall be forfeited. The crime for which alone the vessel could' be subjected to forfeiture consisted in the prohibited articles heing put on hoard with the intention of importing them into the United States, and with the Tcnowledge of the owner or master. But upon both these points the libel was silent. It neither Pbactice in Cases op Seizure., 547 alleged that the goods were put on board with intent chap. 3. to import them into the United States, nor with the knowledge of the owner or master. It did not there- fore state a case showing that the law had been vio- lated. Upon this ground it was held to be insufficient to warrant a sentence of condemnation, although it was shown hy the evidence that in point of fact the vessel was liable to forfeiture. See, also, The Caro- line V. ITie United States, 7 Cranch, 496 ; The Anne V. The United States, 7 id., 570. In accordance with the principle of this case a decree of condem- nation was withheld upon a count in a libel of infor- mation in a case {The Steamboat BlacTc Hawk) decided in the district court for the northern district of New York. The article in the libel was founded on the 4th section of the act of December 31, 1793, " concerning the registering and recording of ships and vessels, as partially modified by the act of March 3, 1831, relating to the inland frontier trade, and requiring, that, in order to the registry of any ship or vessel, an oath or affirmation shall be taken by the owner before the officer authorized to make such registry." The point of the decision will be suffi- ciently indicated by* the following extract from the opinion of the court : " The act designates the officer before whom the oath shall be taken, specifies the particulars which it is to embrace, and punishes the owner by the forfeiture of his vessel if he knowingly swears falsely in regard to any one of these particulars. A prosecution under this section, therefore, bears a close analogy to a prosecution for perjury ; and, although it is well settled that less technical nicety is in general required in a libel than in an indictment, I am nevertheless of opinion that it is indispensable that the libel should contain a positive and direct allegation that the party charged with the false swearing was in fact sworn, that it should designate the officer before whom the oath was taken. 548 Pbacticb ik Cases op Seizure. PAST 3. that it should set forth so much of the matter sworn to as it is intended to falsify, and distinctly show in what the falsity is supposed to consist. In framing this article nei- ther of these requisites has been complied with, unless it be the last — and even in regard to this, there is a want of con- formi^ to the statute, and also to the terms of the oath which was proved on the trial to have been actually taken. The allegation is, that ' William Bacon, upon whose oath, &c., well knew, at the time he so made oath as aforesaid, that the said steamboat Black Hawk, &c., was not whoUy and entirely owned by resident citizens of the United States. ' But the act does not require, when the oath is made by a part owner, that he should state in terms, that the other < owners are citizens, much less resident citizens of the United States. He is required to state his own residence, and to swear that no subject or citizen of any foreign prince or state is interested in the vessel; .and such is the form of the oath produced in evidence. But, if this is the part of the oath on which reliance was placed, the assignment of false swearing should have been applied to this part, by a direct denial of its truth. " Another highly important rule, which has been established is, that it is sufficient, on a libel or infor- mation on a seizure, to describe the oflFense in the words of the statute, provided it be so described, that, if the allegation be true, the case must be within the law. The Samuel, 1 Wheat., 9 ; The Mary Ann, 8 id., 381 ; The Umily and The Caroline, 9 id., 381 ; The Merino et al., 9 id., 391. It is in no case necessary to state any fact which constitutes matter of defense to the .claimant ; and, therefore, it is unnecessary to negative exceptions which come in by way of proviso to an act, or which are contained in subsequent statutes. But when the exception is in the enacting clause, there must, of course, be an averment that the case is not within it. Pbactice in Cases of Seizueb. 549 The Aurora, 7 Crancli, 382 ; The United States v. chap. 3. Hay ward, 2 Gallison, 485, 487/ Amendments. 'I Courts of admiralty are little tram- meled by a regard to mere teclinicalities ; substan- tial justice, without unnecessary delay or expense, being the great object which, they keep steadUy in view and constantly aim to accomplish. They accord- ingly acknowledge no limits to their right to allow amendments when conducive to this end. Such, at least, seems to be the just inference from the decisions of our own court ; and it appears to be equally true of every stage of the proceedings from the institution of the suit of the district court to its final decision in the last court of appeal. We have already seen that mere formal defects are disregarded. What is here said relates therefore to substance. When the ground of forfeiture is stated with in- sufficient certainty or fullness to justify a decree of condemnation founded on it, the court may, on application, allow it to be reformed, and may also permit new substantive charges to be introduced by ' The antecedent editions of this work contained some observations in this place, under the head of "Interrogatories" which, upon reconsider- ation, I conclude to omit. Adverting to the general rule in admiralty, allowing the libelant to propound interrogatories to the respondent, to be answered by the latter under oath, I stated that this right might be exercised by the district attorney in cases of seizure, cognizable on the admiraUy side of the district court. I am now of opinion that this was an error. There are several very grave objections to such a practice ; and, upon a careful examination of the rules of admiralty practice men- tioned in.the last preceding note, I also think there is strong reason to conclude that the practice is, in effect, forbidden. The 33d rule, it will be seen, is sUent with respect to interrogatories. The next rule (the 23d) prescribes the form of " all libels in instance causes, civU and mari- time ;" and concludes as follows : " And the libelant may further require the defendant to answer, on oath, all interrogatories propounded by him, touching all and singular the allegations in the libel, at the close or conclusion thereof." Here, then, is a case to which that venerable maxim, expreaiio urmtt exchisio est alteri/us, appears to me to be applicable. 550 Peacticb is- Cases of Sbiztjeb. PAHT3. additional articles or counts for that purpose. In tte (?!ase of The Edward (1 Wheat., 261), and again in the case of The Marianna Flora (11 id., 1), the power of the circuit court to allow the introduc- tion of new allegations was strongly contested by the counsel for the claimants, on the ground that the cir- cuit court is authorized to exercise only an appellate jurisdiction in cases of this description, and that to permit a new and independent cause of forfeiture to be set up would, be, m effect, to arrogate an original jurisdiction. But the court considered this power as no longer open to question in our courts, and vin- dicated its exercise as in strict accordance with the common usage and admitted doctrine of admiralty courts to permit the parties on appeal to introduce new allegations as weU as new proofs — non allegata allegare, et non probata prdbare. This rule is not to be understood, however, as authorizing the introduction before the appellate court of a new res or subject of controversy. Thus where the controversy in the court below was con cerning seventy-two bales of cotton, and new plead- ings having been filed on both sides in the appellate court, where the libelant set up a title to one hun- dred and seventy-two bales, and obtained a decree therefor, the supreme court reversed the decree as to the fifty additional bales. "The case carried up," say the court, "was the controversy about the seventy -two bales ; * * * this was the re« in con- troversy; and, in so far as the seventy-two bales were concerned, either party was authorized to make amendments, or to introduce new evidence, in order to support his title in the appellate court. But the libelant could not introduce a new subject of con- troversy; and the amendment which brought into the case the additional fifty bales was the introduc- tion of a new res, which did not go up by the appeal ; Peactice in Oases of Seizure. 551 and could not be originally instituted in an appellate o hap. 3. court. We tMnk tMs amendment is not justified by admiralty practice ; although, it is weU known that the most liberal principles prevail in admiralty courts, in relation to amendments." Houseman v. TTie Schooner North Carolina, 15 Peters, 40, 50. If, on appeal to the supreme court, the evidence appears to be sufficient to establish the forfeiture, but the libel is too defective to authorize a decree of condemnation, it is the practice of that court to remand the cause to the circuit court with directions to allow the requisite amendment. \^8ee the cases above cited; and also The Harrison, 1 Wheat., 298.] And, in the case of the Adeline (9 Cranch, 244), the court, in deciding on the validity of an objection taken to the libel, say, "if, indeed, there were any thing in the objection, it cannot in any beneficial manner avail the claimants. The most that could result would be, that the cause would be remanded to the circuit court, with directions to allow an amendment of the libel. When merits clearly appear on the record, it is the settled practice, in admiralty proceedings, not to dismiss the libel, but to allow the party to assert his rights in a new allegation. This practice, so consonant with equity and sound principle, has been deliberately adopted by this court on former occasions." See, also, the case of The Palmyra (12 Wheat., 1), where the same language is again used. Finally, in the case of The United States v. Four pieces of Woolen Qloth (Paine' s C. C. Rep., 435), in the circuit court for the southern district of l^ew York, the district attorney was permitted so to amend a libel of information pending on the admiralty side of the court, as to change it to an information- on the common law side of the court, for the purpose of adapting it to the place of seizure. 553 Peactici! ik Cases of Sbizuee. PART 3. The foregoing decisions relative to amendments were made in cases instituted on the admiralty side of the district court. Whether their doctrines are applicable, without qualification, to exchequer infor- mations is a point that has not yet, as I am aware, been i^in terms decided. I may be permitted, how- ever, to suggest a doubt whether there is any just foundation for a distinction in this respect between the cases. It is true, that, in the cases above cited, the com- prehensive power in question is generally claimed and vindicated by reference to the established usages of admiralty courts. ]But by the judiciary act of 1789, the courts of the United States are expressly empowered, at anytime, to permit 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." ' The authority conferred by this enactment is certainly very comprehensive, and such as would seem to leave little room to question the power of the court to establish uniformity where discrepancy would be strikingly incongruous. [See an Anonymous case, 1 Gallis., 23. J It must not be supposed, however, that all amendments that may be asked for are to be granted of course. The power in question is under- stood to be a discretionary power, to the exercise of which the court may annex such terms and condi- tions as justice appears to require or may decline to exert it at all in extraordinary cases, when its exer- cise would be productive of injustice. Thus, in the case of The Harmony (1 Gallis, 133), it was decided, that, although the fact that the statute of limitations would otherwise run against a cause of action then before the court, had been held to be a good reason for allowing an amendment as to such cause of action^ » Ch. 20, § 33 : 1 Stat, at Large, 73. / Peactice in Cases of Seizure. 553 yet that tlie reverse of this rale ought to prevail witli chap. 3. regard to an axhendment introductive of a new sub- stantive cause of action. And in several cases, in that, for example, of TTie Hoppet v. The United States (7 Cranch, 389), in which the decree of the circnit court; was reversed on account of the insufll-- ciency of the libel, the cause was not remanded with directions to allow an amendment. And although the adjudications above cited, and such others as I have met with relative to the subject, pertain explu- sively to the libel of information, doubtless the liberality they inculcate in allowing amendments is to be extended in an equal degree to the pleadings on the part of the claimant. SECTION III. OP THE PROCESS, AKD DUTY OP THE MAESHAl THEEEON. Upon the filing of the libel or information, the clerk issues a vsrrit to the marshal, commanding hjm to attach the property seized, and to give notice to all persons claiming it, or knowing or having any thing to say why it should not be condemned pur- suant to the prayer of the libel br information, to appear before the district court on a day and at a place therein named, and interpose their claim. It is, therefore, an attachment and citation or monition combined. It is usually and most properly denom- inated a warA,nt of arrest, but is also sometimes called a monition. The form of it is given in the Appendix. On receiving it, it is the duty of the marshal to arrest the property seized by taking it into his custody. He is henceforth chargeable with its safe keeping, and may remove it or not at his dis- cretion, and either retain it in his own possession, 01 pilt it in charge of an agent or keeper appointed by him for the purpose. 70 554 Peactice in- Cases of Seizure. PARTS. The next duty of the mstrshal is to give the required notice ; a duty enjoined and regulated by the following clause in the 89th section of the collec- tion act of 1790 : "AH ships or vessels, goods, wares or merchandise, which shall become forfeited in virtue of this act, shall be seized, libeled and prose- cuted, as aforesaid, in the proper court having cog- nizance thereof; which court shall cause fourteen days' notice to be given of such seizure and libel, by causing the substance of such libel, with the order of the court thereon, setting forth the time and place appointed for trial, to be inserted in some newspaper published near the place of seizure, and also by posting up the same in the most public man- ner, for the space of fourteen days, at or near the' place of trial ; for which advertisement a sum not exceeding ten dollars shall be paid." ' Unless there be some rule of the court prescribing a different practice, the warrant of arrest may be tested and made returnable on any day in term. But, in order to enable the marshal to comply with the require- mQnt of the act, there must of course be at least fourteen days between the time of issuing the pro- cess and the return of it. The notice is drawn up by the clerk, and delivered or sent to the marshal along with the warrant. Its form, and the mode of serving it, or rather of giving it publicity, are suflS.ciently indicated in the provision of the act above cited. The proper form of the return of the marshal, when the process has been executed, is given in the appendix. 'Ch. 23 : 1 Stat, at Large, 695. By the act of February 26, 1853, oh. 80, the fees of printers in all judicial proceedings are fixed at forty cents per folio of a hundred ■words, for the first insertion, and twenty cents for each subsequent insertion. 10 Stat, at Large, 168. See appendix. Peacticb IK Oases oe Seizure. 556 CHAP. 3. SECTION IV. OF CONDEMNATION BY DEFAULT. The 89tli section of the act above referred to fur-' ther provides tliat "proclamation shall be made in STicli manner as tbe court sbaU direct ; and, if no person shall appear and claim any such ship or ves- sel, goods, wares or merchandise, and give bond to defend the prosecution thereof, and to respond the costs, in case he shall not support his claim, the court shall proceed to hear and determine the cause according to law." The practice under this provision, in the district courts of New York, is this : On the return day of the warrant of arrest, if it is returned by the mar- shal executed, or on some subsequent day of the term, the district attorney reads the libel or informa- tion, or so much thereof as is necessary to show what property it is that he is proceeding against, by whom the seizure was made, and the grounds of the seizure. He thereupon moves that the usual procla- mation be made ; and the crier accordingly makes one proclamation to the purport, that, if any one can aught say why the property mentioned in the' libel or information should not be condemned as for- feited to the United States, he may come forth and shaU be heard. If no claimant appears, the district attorney moves for a decree of condemnation, and that the property be sold at a designated place ; and it is so decreed by the court of course, without fur- ther inquiry. SECTION V. OF THE BOND HEQUtRED BY LAW OP THE CLAIMANT, ON THE DELIVERY TO HIM OF THE PROPERTY SEIZED. As a considerable period, more or less extended, generally elapses between the seizure and the final decision of the courts upon the case, as in some 556 Peactxce ik Cases of Seizuke. PAET3. instances the property may be of a perisliable nature, and in others it may be of importance to the owner to have the use and disposition of it in the mean time, and as the care and custody of it by the marshal occasions expense, congress has wisely provided for the delivery of it to the owner, pendente lite, if he chooses to make an application for this purpose, and offers sufficient security to pay the value of it in the event of its condemnation. The clause in the 89th section of the collection act, by which alone, until recently, this proceeding was regulated, is as follows : " Upon the prayer of any claimant to the court, that any ship or any part thereof should be delivered to such claim- ant, it shall be lawful for the court to appoint three proper persons to appraise such ship or vessel, goods, wares or merchandise, who shall be sworn in open court, for the faithful discharge of their duty; and such appraisement shall be made at the expense of the party on whose prayer it is granted; and, on the return of such appraisement, if the claimant shall, with one or more sureties, to be approved by the court, execute a bond ' in the usual form, to the United States, for the payment of a sum equal to the sum at which the ship or vessel, goods, wares or merchandise, so ' In the case of the AUigator (1 Gfallis., 148), and in several other cases, Mr. Justice Stobt speaks of the right of the courts to exact, on the delivery of property, an admiralty stipulation, instead of a bond, in cases of municipal seizure, where the statute does not otherwise pro- vide, and expresses a preference for the stipulation. But I am not aware that he has anywhere intimated an opinion that this latter form of security could properly be required in a case of seizure under the collection act of 1799. For all such cases, the 89th section of the act, as we have seen, expressly directs that a bond shall be taken. The term hond has a familiar and well-deflned signification in law, and always imports an instrument under seal, which the stipiUatlon is not. But, independently of this statute designation, no one will suppose that an admiralty stipulation would be a proper form of security in cases of seizure prosecuted on the common law side of the court ■ and to exact different forms of security, according to the place of seizure would only create imnecessary complexity and embarrassment. Peactice in Oases of Seizure. 557 prayed to be delivered, are appraised, and, moreover, produce c hap. 3. a certificate from the collector of the district wherein such trial is had, and of the naval officer thereof, iJ^ any there he, that the duties on the goods, wares and merchandise, or tonnage duty on the ship or vessel, so claimed, have been paid or secured, in like manner as if the goods, wares or merchandise, ship or vessel, had been legally entered, the cmirt shall, by rule, order such ship or vessel, goods, wares or merchandise, to be delivered to. the said claimant; and the said bond shall be lodged with the proper officer of the court, and, if judgment shall pass in favor of the claimant the court shall cause the said bond to be canceled ; but if judgment shall pass against the claimant as to the whole or any part of the said ship or vessel, goods, wares or mer- chandise, and the claimant shall not, within twenty days thereafter, pay into the court, or to the proper officer thereof, the amount of the appraised value of such ship or vessel, goods, wares or merchandise, so condemned, with costs, judgment shall and may be granted upon the bond, on motion in open court, without further delay." It will be observed that nearly all the steps here prescribed are required to be taken in court. The application must be made to the court ; the apprais- ers must be appointed by the court, and they must be sworn in court ; the sureties in the bond are to be approved by the court, and, lastly, the order of delivery must be made by the court. It will be readily seen that the proceedings thus conducted, especially in large districts, comprising large and widely separated collection districts (like the north- ern district of New York, for example), must be so dilatory as in a great measure to defeat the design of the act. To remedy this evil the act of April 5, 1832, was passed. It is by this act enacted— " That in 'any cause of admiralty jurisdiction, or other Cause of seizure, depending in any court of the United States, any judge of the said court, in vacation, shall have the same 558 Peacticb iir Oases of Seizubb. PAET 3. power and authority to order any vessel or cargo, or other property, to be delivered to the claimants upon bail or bond, under the statute, as the case may be, or to be sold when necessary, as the said court now has, in term time, and to appoint appraisers, and to execute every other incidental power, necessai-y to the complete execution of the authority herein granted ; and the said recognizance of bail or bond, under such order, may be executed before the clerk, upon the parties producing the certificate of the collector of the district of the sufBciency of the security offered ; and the same proceedings shall be had in case of said order of deliv- ery or sale as are now had in like cases when ordered in term time: Provided, that upon every such application, either for an order of delivery or of sale, the collector and attorney of the district shall have reasonable notice in cases of the United States, and the party or counsel in all other It has been supposed, in tlie northern district of New York, that the clause above quoted from the col- lection act of 1799, considering its obvious policy and general design, vfas to be construed as manda- tory upon the courts, so as to render it obligatory on them to order the delivery of property seized to the lavp^ful claimant, upon his fully complying with the prescribed conditions. But I perceive that Mr. Jus- ticB Story does not so understand it, but is of opinion that the courts may lawfully exercise a sound discre- tion in deciding whether they will appoint appraisers or not. TTie Brig Struggle, 1 GraUis., 476. The directions prescribed by the legislative pro- visions above quoted, in relation to the delivery of property seized, are so full and exact as to leave little room for much substantial diversity of practice in the several districts in carrying them into effect ; and it is presumed that no such diversity in fact exists. By the rules' of the district court for the > Ch, 66 : 4 Stat, at Large, 503. PSACTicE IN Oases of Sbiztjee. 559 soutliern district of New York, it is provided that, in c hap. ». case of seizure of property in behalf of the United States, an appraisement, for the purpose of bonding the same, may be held by any party in interest, on giving one day's previous notice of motion before the court or the judg^, in vacation, for the aJ)point- ment of appraisers ; and, if the parties and their proctors and the* district attorney are present in court, such motion may be made instanter after seizure, without previous notice. By another rule [the 66th] it is directed that ap- praisers, before executing their trust, shall be sworn or affirmed to its faithful discharge before the clerk or his deputy (who, the rule declares, are thereby appointed commissioners for the qualification of ap- praisers), and shall give one day' s previous notice, &c. The 89th section of that act of 1799, however, directs that the appraisers shall be sworn "in open court," and the act of 1832 makes no other alteration in this respect, except to empower the judge to act in vacation. By the 67th rule the appraisers are allowed three dollars a day for each day necessarily employed in making the appraisement. In the dis- trict court for the northern district of New York, the forms to be observed in executing the provisions of the two enactments in question are prescribed, with considerable particularity, by rule, and I cannot better express my apprehension of what the practice ought to be under these provisions than by referring to the rule of that court on the subject, and to the practical forms in the appendix adapted to it.' When the bond is entered into before the clerk, it is made indispensable by the act of 1833, that the certificate of the proper collector, as to the sufficiency of the security offered, should be produced ; this being the evidence designated by the act. And when ,^ • Appendix, Kule 86. ^ 560 Peacticb in Cases op Sbiztjee. PART 8. this course is adopted, tlie application to tlie court or the judge for the order for delivery may be made (provided all the other requirements of the law have been complied with), either before the execution of the bond (in which case the order will be conditional, that the delivery be made on the execution of the bond before the clerk according to law) ; or the order may be deferred until after the execution of the bond ; when, on the production of a certificate from the clerk of its due execution, an absolute order will be made. It will be observed that the regulations prescribed by the 89th section of the collection act of 1799 are, by the terms of this section, restricted to "ships or vessels, goods, wares or merchandise, which shall become forfeited in virtue of this act. " Most, if not all, of the subsequent acts creating forfeitures, however, contain provisions that the forfeitures which shall accrue under them may be enforced "in the manner" prescribed by the collection act. To what precise extent the directions contained in the 89th section are to be considered as adopted by this gen- eral form of reference, so as to render them compul- sory in cases of seizure in virtue of the acts contain- ing such reference, is a question which may admit of doubt. In the case of The Struggle (1 G-allis., 476), which arose under the non-importation acts of 1809 and 1811, and in which the vessel had been delivered on bond to the claimant, the court were of opinion that the bond was not to be considered as having been taken under the 89th section of the collection act. " I do not, " said Mr. Justice Stoet, "con- sider the present case as governed by any statute provision ; I have never considered the 89th section of the act of the 2d of March, 1799, as reaching beyond cases within the purview of that act. Though the acts on which this information is founded refer Practice in Oases of Seizure. 561 to that act as to the mode of prosecution, it does not chap. 3. follow that all the interlocutory proceedings of the court are to be governed Iby it." The bond was, however, held to be valid nevertheless, according to the doctrine of the case of TTie Alligator in the same court. 1 GalKs., 148. In that case, the vessel had been delivered on bond, and afterward con- demned by the district court ; and, on the affirmance of the decree of condemnation in the circuit court, the district attorney moved for judgment and execu- tion on the bond. The motion was opposed on the ground that, as the .seizure was not made under the collection act of 1799, the provisions of the 89th section of that act were inapplicable to the case ; that the taking of the bond and the delivery of the property were therefore with- out authority, and that the court had no power to grant the summary judgment prayed for. But the court held that it was immaterial whether there was any statute which authorized the delivery or not. The cause, it was observed, was a civil cause of admiralty and maritime jurisdiction, and nothing could be better settled than that the admiralty may take 2i fldejussory caution or stipulation in cases in rem, and may, in a summary manner, award judg- ment and execution thereon. The district court, pos- - sessing this jurisdiction, and being fully authorized to adopt the process and modes of proceeding of the admiralty, had an undoubted right to deliver the property on bail, and to enforce a conformity to the terms of the bailment. In what manner this security was taken, whether by a sealed instrument, or by, a stipulation in the nature of a recognizance, Gould not affect the jurisdiction of the court. In all cases of this nature, the security, in whatever form, is taken by order of the court upon the voluntary application of the party, and therefore is apvd acta. 71 562 Peactioe in Cases of Seizure. PABT8. Having jurisdiction over tlie principal cause, tlie court must possess jurisdiction over all the inci- dents, and may, by monition, attachment or execu- tion, enforce its decree against all parties to' the proceedings. The motion of the district attorney was accordingly granted. In the case of The United, States- Y. Woolen Cloth (Paine' s C. C. Rep., 435); and in the case of Neilson et al. v. The United States (Peters' s Circuit Court Rep., 335), this case was cited by the court with unqualified approbation, and its principles applied. The case in Peters was a prosecution on the admiralty side of the court, and was, therefore, a fit case for the application of these principles. But their applicability to the case in Paine seems to me less clear. That was a land seizure, cognizable on the exchequer or common law side of the court. It seems to have been assumed by the court, apparently without hesita- > tion, that the case was not embraced by the 89th section of the collection act. The reason why it was supposed not to be within the provisions of this sec- tion is not explicitly stated, but, from the language of the court, I infer that these provisions were understood to be applicable only to seizures cogni- zable on the admiralty side of the court. But the section embraces, in express terms, all forfeitures accruing under that act. It is true it Erects that all vessels, &c., which shall become forfeited in virtue of that act, "shall be seized, libeled and prosecuted," &c. But, though the appellation "libel" does not properly belong to the information in rem on the exchequer side of the court, the use of the term in this section does not appear to me sufficient to exclude the otherwise irre- sistible bonclusion that it was the intention of con- gress to prescribe rules for the prosecution of all seizures, made under the act, without regard to the Practice ik Cases of Seizttrb. 563 place of seizure. At the early day, when the act chap. 3. was passed, it is not improbable that the distinction, now so well understood, between land and water seizures, was overlooked. Indeed, in that very case the proceeding had originally been instituted on the admiralty side of the court, under the supposition that no such dis- tinction existed but that all seizures were of admi- ralty jurisdiction. If, as from the report I can see no reason to doubt, it was within the 89th section, then, by the express terms of this section, a judg- ment might have been summarily granted on the bond (after twenty days), and upon such judgment an execution might have been issued as upon other judgments. But, admitting the case not to have been within this section, although the bond might have been obligatory as an instrument voluntarily executed on good consideration and for a lawful pur- pose, and, as such, might have been enforced by an action of debt, yet, the case being one of common law jurisdiction, it does not appear to me that the admiralty powers of the court could properly be resorted to for a sunlmary remedy unknown to the common law. It would seem very clear, from the language of the 89th section of the collection act of 1799, that it was intended that no judgment should be granted on the bond for value, until after the lapse of twenty days after the decree or judgment of condemnation ; and such was the impression of Mr. Justice Stoey in the case of McLeUanv. The United Siates (1 Q-aUis., 227, 229). But in the case of Weilson v. The United States (Peters' s C. C. Eep., 240), Mr Justice Wash- ington was clearly of opinion that it was only in the district court that the obligors could claim this delay, and he therefore granted a judgment instanter, on 564 Practice in Cases of Seizure. PART 3. the affirmance of a decree of condemnation on appeal from the district court. It will be observed, too, that the judgment is to ' ' be granted on motion in open court. ' ' Should the session of the court at which the condemnation takes place be terminated within less than twenty days thereafter it would seem to follow therefore, that no judgment could be granted on the bond until the next term. See, as to this point, the case otMeLel- lan-v. The United States, 1 G-allis., 227, 229. It will be further observed that the bond is required to be " for the payment of a sum equal to the sum at which the ship or vessel, &c., are appraised ;'''' whUe by a subsequent clause it is declared, that, if judgment shall pass against the claimant, and he i' shall not, within twenty days thereafter, pay into court the appraised value of such ship or vessel, &c., with costs, judgment shall and may be granted," &c. While, therefore, the condition of the bond is not required to contain any stipulation for the pay- ment of costs, the plaintiff is, nevertheless, required to pay costs, in addition to the appraised value, as the condition on which he and his sureties are to be exonerated. It is of some importance, therefore, to ascertain what costs are here intended. The claim of the United States against the offending property is in the nature of a lien upon it to the amount of its value ; and the object of the proceeding is its con- fiscation. The legislative provisions by which for- feitures of this nature are imposed, declare a simple forfeiture. In some instances a pecuniary penalty, to be recovered of the offender, is superadded, but I am not aware of any instance in which a forfeiture in rem, with costs Of prosecution is inflicted ; and when no claimant appears, a simple decree, or judg- ment of condemnation, is pronounced against the res, and the costs are paid out of the proceeds of Peactice in Cases of Seizuee. 565 tlie sale of it, before distribution, in accordance with. c hap, s. tlie express provisions of tlie 91st section of tlie col- lection act of 1799. These views of the subject seem strongly to favor the inference that no other than the additional costs occasioned by the defense, includ- ing the delivery, were intended to be exacted; and to this extent only were the claimants held respon- sible by Mr. Justice Story, in the case of The Sally (1 Gallis., 397, 414) ; which, though it did not arise under the collection act of 1799, is not, it is sup- posed, distinguishable from such a case in this respect. By a rule of the district court of the southern dis- trict of New York, no vessels, goods, wares or mer- chandise in the custody of the marshal, shall be released from detention upon appraisement and security, until the costs and charges of the officers of the court, so far as the same shall have accrued, shall first be paid into court by the party at whose instance the appraisement shall take place, to abide the decision of the court in respect to such costs. This rule seems to imply an assumption that the court possesses a discretionary power to subject the claimant to costs when the decision is in his favor. In cases falling within the general inherent jurisdic- tion o'f the court as a court of admiralty, and when no statute interferes to prevent it, a discretionary power with respect to costs may unquestionably be exercised. But the admiralty jurisdiction of the district courts over revenue seizures is an extraordi- nary jurisdiction, conferred and regulated by stat- ute. The statute requires, when the decision on the merits is in favor of the claimant, that his property shaU forthwith be restored, and that the bond for the appraised value shall be canceled ; and it then pro- ceeds to declare that if the court shall certify that there was reasonable cause of seizure, the claimant 566 Eeactice in Cases of Seizure. PAET8. shall not be entitled' to costs. I am not aware of any principle, therefore, which warrants the appli- cation of the above mentioned rule to cases of this description. The statute, however, requires that the appraisement shall be made at the expense of the party on whose prayer it is granted. In each Of the districts of New York the practice was early adopted, and still prevails, of permitting the value of the property seized to be agreed on by the collector and district attorney, in behalf of the United States and the claimant, and of receiving a written certificate of such agreement, signed by them, instead of an actual appraisement.' It is a highly convenient and beneficial practice, and, though not expressly provided for in terms by the acts of con- gress on this subject, it is warranted nevertheless by their spirit." ' See Appendix, Rule 86, D. C. ' For tlie purpose of guarding against possible misappreliensions it may not be amies to advert to the act of March 3, 1847, (ch. 55, 9 Stat, at Large, 181), " An act for the reduction of costs and expenses of pro- ceedings in admiralty against ships and yessels," and providing, " that, in any case brought in the courts of the United States exercising juris- diction in admiralty, where a warrant of arrest or other process in rem shall be issued, it shall be the duty of the marshal to stay the execution of such process, or to discharge the property arrested, if the same has been levied, on receiving from the claimant of the same a bond or stipu- lation in double the amount claimed by the libelant, with sufficient surety, to be approved," &c. The language of this act, "in any case brought," &c., and especially the language of its title, is sufficiently gen- eral to comprise municipal Seizures on navigable waters. But such seiz- Tires are made to enforce the total forfeiture of the property for the violation of penal laws — whereas a careful examination of this act will render it apparent that it extends only to private suits in rem to enforce the payment of personal demands against the owners of the property, as, for example, suits for seamen's wages. Pbacticb in Cases of Seizubb. 567 CHAP. 3. SECTION VI. 01" THE SAIE OF PEKISHABLE PBOPEKTY, PENDENTE LITE. One of the powers exercised by courts of admi- ralty in proceedings in rem is that of decreeing a eale, pendente lite, of the thing proceeded against when, from its nature or condition, it is likely to become worthless or of greatly diminished value if kept under arrest until the termination of the suit. As an incident to the admiralty jurisdiction conferred on the courts of the United States over seizures made on the high seas, or on water navigable from the sea, by vessels of ten or more tons burden, it may doubt- less be exercised in these cases, independently of any specific legislative direction.' But in cases of seizure of the opposite description, which we have seen are of common law jurisdiction, it is not supposed that the admiralty powers of the courts can be rightfully invoked for this purpose. This power is, however, understood to belong also to the English court of exchequer, and it is moreover expressly recognized, and its exercise is regulated by the act recited under the last preceding head of April 5th, 1833, not only in cases "of admiralty and maritime jurisdiction," but also in ^'^ any other case of seizure."''- It is believed, therefore, that it may safely be considered as pertaining alike to both descriptions of seizure, and it is apprehended that no distinction has hitherto been made between them by the courts in this respect. There is one description of property which is iiot, strictly speaking, perishable ; but to which, neverthe- less, the reason for directing the sale of perishable property is strongly applicable. I refer to domestic 1 See, also, Rule 10 of the rules of practice in admiralty, prescribed by the supreme coutt, expressly aflBinning this power. Appendix. ' Ch. 66 : 4 Stat, at Large, 503. 568 Practice in Cases of Seizure. PART 3. animals, wMcli are frequently the subject of seizure on our inland frontier. It often happens, especially when the proceedings are protracted by the interpo- sition of a claim, that the expense of keeping and feeding such animals untU the final decision of the case nearly equals, and it sometimes exceeds, their full value. Whether the power in question extends to this species of cases is a question upon which I am not aware that any judicial decision has yet been made. But it would seem difllcult to distinguish them in principle from those in which the power is indisputable. , By the act last above cited, the application for ah order of sale may be made, as we have seen, as well to the judge in vacation, as to the court in session. It may be made, therefore, at any time after the service of the warrant of arrest. The petition setting forth the facts on which the application is founded ' ought to be verified by oath, and a copy of it, with notice of the motion, served on the opposite party, his proctor or attorney. See Appendix, Rule 87, D. C, N. D. N. Y. Upon the entry of the order of sale, a writ is issued by the clerk to the marshal, commanding him to sell the property, and pay the proceeds into court to abide the final decision of thecause. See Appendix, "Practical Forms." A sale, pendente lite, being a proceeding adopted for the benefit of all parties, the costs of the proceed- ing, includiagthe commissions of the marshal, ought, unless in very special cases, to be paid by the party to whom the property is ultimately awarded. In other words, they are to be paid out of the fund pro- duced by the sale. TTie Sally, 1 Grallis., 401, 415. Contrary to the doctrine laid down by the court in the early case of Jennings v. Carson (4 Cranch, 2), Pbaotige iiir Cases of Seiztjee. 569 it ia now well settled that by an appeal from tlie chap. 3. sentence of a district court to the circuit court in a suit in rem, the property (or, if it has been sold, the proceeds of it) follows the cause into the circuit court. After appeal, therefore, the district court can no longer order a sale, but such order must emanate from the circuit court. But, if a further appeal be ;^had to the supreme court, the property or its proceeds will still continue in the circuit court, because the supreme court, in such cases, does not execute its own judgment, biit sends a special mandate to the circuit court to award .execution thereon. TTie OoU&cior, 5 Wheat., 194; The Groiius, 1 Gallis., 503. SECTION VII. OP THE CLAIM AND DEFENSE, AND THE BOND FOB C0ST8. 1. 0/ the Claim. In proceeding to the consideration of the several matters falling under this head, it will be useful for the reader to keep steadily in view the nature and objects of the proceeding of which we are treating. ■It is strictly a prosecution against a thing, which has been seized as forfeited to the United States on account of some imputed illegal act in regard to it. No inquiry is instituted on the part of the govern- ment concerning the ownership of the property, and no person is called upon coercively to answer for the supposed offense ; and, if no one chooses voluntarily to interpose, the judgment which follows acts directy on the thing only. But, in accordance with obvious principles of jus- tice, the law, as we have seen, nevertheless, requires that public notice should be given of the prosecution, to the end that the owner, whoever he is, may be apprised of the peril in which his property has been 73 670 Peacticb in Cases op Sbizuke. PAST 3. placed, and have an opportunity of contesting the truth of the charge against it. It is obvious then that the claimant is an actor, and that he is entitled to come before the court in that character, only in virtue of his proprietary interest in the thing in controversy. He is therefore required to establish his right to that character, as a preliminary to his admission as a party, ad litem, capable of sustaining the litigation. The United States V. Four hundred and twenty-two Casks of Wine, 1 Peters, 547. What interest in the res is sufficient.'] It is not necessary that the title of the claimant should be absolute or exclusive. It is sufficient that he has some definite interest, known and recognized in law. Thus, a pawnee or mortgagee of the property, or one having any specific lien upon it, would be entitled to appear as a claimant. The claim should, however, be co-extensive only with the interest of the claimant. It is irregular, therefore, for the owner or owners of a part of the property to interpose a general claim to the whole of it. Btratton v. Jarms and Brown, 8 Peters, 4. The master of a vessel may appear as claimant in behalf of the owners of the vessel or cargo, at a place reinote from that of their residence, but not in or near the place where they reside. Spear, claimant, &c. v. Place, 11 Howard, 522. By whom the claim is to ie made.] When the circumstances of the case admit of it, the claim should be preferred by the owner in person. The Adelaide, 9 Cranch, 214 ; The Sally, 1 Gallis., 401. When the principal is without the country, or resides at a great distance from the court, the claim may be made through the intervention of an agent. Id. Such are the rules laid down by the court in the cases here referred to, and there can be no doubt Peacticb in Cases of Seizuee. 57I of the solidity of tlie grounds on wMch they rest. chap. 3. But in truth, in both of them as well as in other reported cases, a claim by an agent was received and treated as regular, although the claimant resided at no remote distance from the court. The master of a vessel, which, or the cargo of which, has been seized, may claim in behalf of absent owners, though he lias no personal interest in the prop- erty. And a consul, duly recognized as such by our government, has a right, in virtue of his official character, to interpose a claim in behalf of the absent citizens or subjects of the country whose commer- cial interests he represents. But without specific authority for that purpose, he will no#*be permitted to receive actual restitution of the property in case ' of its acquittal, but it will be retained to be delivered over to the owner when he applies for it. The Bello Qorrunes, 6 Wheat., 152 ; The London Packet, 1 Mason, 14 ; The Antelope, 10 Wheat., 66. How put in.] The first step to be taken by the owner of property seized, when he intends to contest the forfeiture, is to engage the services of a, practi- tioner of the court in which the prosecution is pend- ing, who will at once apply to the clerk of the court for a copy of the libel or information.' It is not usual to file the claim before the return day of the process. But this is the time for preferring it which seems to be contemplated by the 89th section of the collection act of 1799 ; and as it is liable to preliminary objections, and the court may be called on to decide whether it is to be received, a good rea- son exists for deferring it tUl this time, admitting that it could regularly be made before. There is, ' At this stage of the proceeding the right accrues, as we have seen, to apply for a delivery of the property on bond ; and it is a question for the decision of the claimant, under the advice of his proctor or attorney, whether he wUl exercise this right, and if so, at what time. 572 Peactice in Cases of Seiztjee. PART 3. however, a rule in the district court for the southern district of New York, expressly permitting a claim to be filed at any time after the service of the process, and, in the northern district, it is sometimes done in vacation before the return of the process by arrange- ment with the district attorney. The rule of the court of the southern district is, doubtless, designed for the beneficial purpose of enabling the claimant to obtaui an earlier decision upon his rights, by placing the cause in a situation to be heard and determined at the next term after the seizure. StUl, however, it would remain optional with the district " attorney to bring the cause to trial at that term or not ; and if, in any case, he should be willing to do so, an arrangement for this purpose might be made with him out of court, at the instance of the proctor orattorney for the claimant. The claim, in itself, is nothing more than a direct assertion, verified by oath, of the proprietary interest of the claimant in the property under prosecution. The oath, when made by the claimant in person, ought to be direct and positive : when made by another acting in his behalf, it must at least affirm the belief of such agent in the verity of the claim. The United States v. Four hundred and twenty- four Casks of Wine, 1 Peters, 547. Ohjections to the claim. '\ If the interest .in the res set up by the claimant be insufficient to entitle him to assume that character ; or if he refuse or omit to make the required affidavit in support of his claim, it is subject to preliminary objection and will be rejected on these grounds. The United States v. Four hundred and twenty four Casks of Wine, 1 Peters, 547. So "if the claim be made through the intervention of an agent, if there is ground for sus- picion, he may be required to produce and prove his authority, before he can be admitted to put in the Peaotice in Oases of Sbizuee. 573 claim. If this is not done it furnislies matter of chap. a. exception, and may be insisted upon hy the adverse party, for the dismissal of the claim." Id. Objections of this nature may properly be made orally at the time of the presentation of the claim. "If the claim be admitted upon this preliminary proof, it is stUl open to contestation, and, by a suitable exceptive allegation in the admiralty, or, by a correspondent plea in the nature of a plea in abatement to the per- son of the claimant, in the exchequer, the facts of proprietary interest, sufficient to support the claim, may be put in contestation, and formally decided. It is in this stage of the proceedings, and in this only, 'that the (Question of the claimant's right is generally open for discussion. If the claim is admitted with- out objection, and allegations or pleadings to the merits are subsequently put in, it is a waiver of the preliminary inquiry, and an admission that the party is rightly in court, and capable of contesting the merits. If, indeed, it . should afterward appear, upon the trial, even after the merits have been dis- posed of in favor of the claimant, that the claimant had, in reality, no title to the property, but that the same was the property of a third person, who was not represented. by the claimant, or had an adverse interest, or whose rights had been defrauded, it might still be the duty of the court to retain the property in its own custody, until the true owner might have an opportunity to interpose a claim, and receive it from the court. But such cases can rarely occur ; and are applications to the discretion of tjie court, for the furtherance of justice." Id. The above quotations are the language (obviously well consid- ered) of Mr. Justice Stoky. His professed object was to state with clearness and precision what he conceived to, be the just rules of practice touching the points embraced by his remark. 574 Practice ik Cases of Seizure, PART 3. 2. Of the defense.^ In connection with, the claim, nsnally, thie claim- ant iaterposes a response of some sort to the libel or information. This response is frequently united continuously with the claim ; though it would undoubtedly be more formal and congruous to keep the claim and answer separate ; the object of the claim being to set up a right to defend the suit, and to oflfer an answer to the libel or information ; and that of the answer being to set forth the grounds of defense, after the claim has been admitted. Denial. General issue.] It is very rare, in the description of actions of which we are treating, that any other defense than that of a direct denial of the charges of illegal conduct set forth in the libel or information is interposed ; the only question in gen- eral being whether the acts and omissions charged have in fact been committed. In all such cases the only pertinent answer or plea is a simple denial, equivalent to the general issue in personal actions. When the libel or information alleges several dis- tinct offenses or causes of forfeiture, the more formal • There is, as we have seen, a general rule prescribed by the supreme court regulating the structure of the libel, and of the libel of information, in cases of seizure. Eespecting the form of the answer, there is no such rule, and it is accordingly governed by rules and prac- tice of the several district courts. The 27th, as amended by the 49th, of the rules of practice in admiralty, dictates the form of the answer to the libel in causes of civil and maritime jurisdiction, whether in rem or in personam, when the sum in dispute exceeds fifty dollars. The answer is to be " on oath or solemn afiBrmation ;" and "shall bfe full and explicit and distinct to each separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like manner each interrogatory propounded at the close of the libel." But it is clear that this rule is but the correlative of rule 23, prescribing the structure of " all libels in instance causes, dvil and maritime," from which "informations', and libels of information upon seizure" are, by the 22d rule, carefuUy dAstinguished. P'baoticb in Cases of Seizitke. 575 and exact practice would be to traverse each one of c hap, a. them. Bnt, by a rule of the district court of the southern district of New York, it is provided, that, instead of a traverse of each separate cause of for- feiture, the claimant may plead, as a general issue, "that the several goods, in the information men- tioned, did not, nor did any part thereof, become for- feited ia manner and form as in the information in that behalf alleged. This rule is of early date, and preceded the body of rules, prescribed by the supreme court, mentioned in the last note. But it is understood to be still adhered to in practice ; and, in 1869, a rule was made by the district court of the northern district of New York (amendatory of rule 23 of the rules of that court regulating proceedings in civU causes at common law), to substantially the same effect, tliough even more comprehensive. See appendix, rule 23 of rules district court of the northern district of New York. The rule in both districts, however, is merely ^er- misswe, and the form of answer prscribefl by the 27th of the rules of the supreme court, in causes civil and maritime, is recommended by its superior precision and its conformity to the science of plead- ing. When the proceeding is on the exchequer side of the court, the plea in the above mentioned form, or other form of the like import, ought to conclude to the country ; and, in that case, the issue is com- pleted by adding the similiter ^ ' It having been intimated to me in general terms that the judge of tha district court of the United States for the eastern district of Mis- souri differed from me in the interpretation of rule 27 of the rules prescribed Toj the supreme court, regulating admiralty procedure, I carefully reconsidered the subject, and what I have said under this head, including the last preceding note, is the result of this reconsid- eration. I was not then aware that Judge Treat had pronounced any judicial opinion upon the subject, but a friend has since furnished me with No. 1 of vol, 3 of the Western Jurist, containing an elab- 576 Peacticb in Oases op Seizure. PARTS. Demurrer.] The libel or information is always founded on some statute, and we have seen that it is in general sufficient to state the offense in the words of the statute ; provided, however, the charge be so framed that if true the offense must necessarily have been committed. We have seen, also, that if the offense is insufficiently described, in a case on the admiralty side of the court, no decree of con- demnation will be made, though the 'evidence is sufficient to show that a forfeiture has in fact been incurred ; and upon the same principle, the court, in a proper case, would, doubtless, at the instance of the claimant, withhold a judgment of condemnation after verdict, in a case on the exchequer side of the court. But the claimant may also, if he thinks proper, insist on such sufficiency by demurrer. orate opinion of Ms, in wliich. he maintains that the 37th rule prescribing the form of the answer to " all VbdB, in causes ciml and maritime, " mentioned in rule 33, extends also to " all informa- tions and libels of information " mentioned in rule 23. My answer is that already given in the last note. The scope of rule 37 is limited by its terms to that of the 33d rule, and consequently it does not com- prehend the distinct class of cases designated in rule 33. That such must be the opinion also of the judges of New York districts I have already shown, for, according to Judge Treat's construction of rule 37 (the language of which he has omitted to give), they could not lawfully tolerate, much less introduce, the practice prevailing in their courts ; nor need I add, that, according to the opposite interpretation, it would he equally unwarrantable in a judge to forbid this practice. His honor can see no reason for making a distinction in this respect between instance cases and cases of seizure. If in fact there were none, it would be a sufficient answer to say that the supreme court, in the exercise of a power expressly conferred by law, have seen fit to make this distinc. tion. But, in truth, these two classes of cases differ so widely in character that their subjection to different forms of pleading infers no incongruity. It would be easy to show this, but I have already dwelt too long upon the subject. There are other criticisms, in the opinion of the learned judge, of the. soundness of which he has failed to convince me, but they relate happily to matters of trivial importance, and I dismiss them with a disclaimer of all pretentions to infallibility. Practice in- Oases of Seizure. 577 Unless, however, tlie defect is sucIl as really to leave c hap, s. Mm in doubt as to the ground on wMcli the for- feiture is claimed, or one which cannot be supplied consistently with the facts likely to be proved, the great liberality exercised by the courts in allowing amendments, leaves the claimant, in general, little chance of being a gainer in the end by objecting at all. Want of Jurisdiction.] It is, as already explained, essential to the jurisdiction of the court that there should be a valid subsisting seizure at the time of the institution of the suit, and also that it should have been made either within the judicial district where the action is pending, or on the high seas and without the limits of any judicial district. In a case, therefore, in which either no effective seizure had in fact been made, or in which, after having been made, it had been abandoned, or where the seizure was made in a different district, it is in the power of the claimant to defeat the action on the ground of a want of jurisdiction in the court to hold cognizance of it. But care must be taken that the objection be not waived. The libel or information always alleges the seizure to have been made within the district or on the high seas for the purpose of making it appear that the case is within the jurisdiction of the court ; but the fact or the place of seizure is not. put in issue by a general denial of the alleged forfeiture. A claimant who wishes to avail himself of such an objection, must therefore put in an answer or plea, in terms denying the allegation of the fact or the place of seizure. The Abby, 1 Mason, 360. And if he intends to rely on a subsecLuent abandonment of the seizure, he ought, doubtless, to set up affirma- tively the fact of such abandonment, because a seizure having once been made and followed up by a prosecution, the legal presumption would unques- 73 578 Peacticb in Cases of Seizueb. PARTS, tionably be, that it had not been abandoned. In the case of The Abhy, above cited, Mr. Justice Stoet also placed its decision upon the further ground, that a plea to the merits was an admission of the jurisdiction of the court ; and he was also of opinion that applying for and receiving the property on bond, was such an acknowledgment of jurisdiction as the claimant was not at liberty to controvert. As a delivery on bond may now by a late statute be made out of court, before the return of the monition, it may be important, therefore, for the claimant to consider whether a delivery might not have the eflfect to deprive him of his right to contest the jurisdiction of the court. Matter of justiflcation or excuse.] Most of the forfeitures denounced by our laws are imposed for omitting to do some act enjoined by law. Rigorous and peremptory as they are, no forfeiture, as we have seen, can be incurred under them by unavoid- able omissions ; nor by illegal acts committed with- out the consent or connivance of the owner, or of some person employed or trusted by him. But, as the proof required of the public prosecutor in the first instance is slight, cases of this nature may well arise, in which he might be able to make out a prima facie case of forfeiture, by proving just enough for this purpose, and omitting to give evidence of the exculpatory circumstances. In such cases it would be advisable for the claimant, in order to pre- clude an doubt of his right to prove his justification, to set it up by way of defense, affirmatively, in his answer or plea. Replication.] One of the supplemental rules of the supreme court, regulating proceedings in admiralty (rule 62, 1854), directs that, "when the defendant in his answer alleges new facts, these shall be consid- ered as denied by the libelant ; and no replication, Peactice in Cases of Seizuee. 579 general or special, shall be allowed. But, witliin c hap, a. such, time as shall be fixed by the district court, * * * * the libelant may amend his libel so as to confess and avoid, or explain or add, to the new matter set forth in the answer; and * * * the defendant shall answer such amendments." No care, it will be seen, was taken in framing this rule to discriminate between causes civil and mari- time, and cases of seizure. It seems improbable, however, that it was intended to embrace the latter. But the 23d rule of the district court of the northern district of New York, as amended in 1869, expressly applies its provisions, with some variations, to cases of seizure. See Appendix. Statute of limitations. '\ ' The rule in England ap- pears to be that the limitations of a penal suit need not be pleaded, but may be given in evidence under the general issue. Buller's Nisi Prius, 195 ; Espinasse on Penal Statutes, 78. And so Mr. Justice Stoey understood the law to be in the case of Parsons Vf Hunter f 2 Sumner, 419, 426. Under these authorities this rule was applied in a case of seizure on the admiralty side of the court {The United States v. The Black Hawk) in the district court for the north- ern district of New York. 3. Qf the hand for costs. By the 89th section of the collection act, before the owner of property seized in virtue of that act is entitled to contest the forfeiture, he is required, as we have seen, to "give bond to defend the prosecution, and respond the costs in case he shall not support his claim." Under this provision it is understood to have been the practice of the courts of the United States to exact from the claimant a bond, with one ' See the commencement of this chapter. 680 Pbactice in Cases of Seizubb. PAET 3. or more sureties, as the condition on wMch he is allowed to contest the alleged forfeiture of his prop- erty. This may not have been the case in all ti^ districts, though I am not aware of any exception, • But the act being silent as to sureties, I cannot but think it at least doubtful whether this practice is in' accordance with the actual intention of the legisla- ture. There are certainly strong reasons why no security for costs beyond the individual bond of the claimant should be required. The proceeding on the part of the United States is highly rigorous. The citizen is forcibly dispossessed of his property by a subordinate ministerial officer of the government, himself entitled to share in the forfeiture if condem- nation shall foUow, and, however groundless the seizure may in fact have been, if only a plausible pretext for making it can be shown, it is condemned of course, unless the owner can establish his inno-' cence by proof on his part ; and, even when he does so, he is without redress for all the loss, inconve- nience and expense to which he has been subjected by the seizure and prosecution. In all this there may be nothing to complain of. But to deprive the owner of the right of being heard in his defense, and peremptorily to subject his property to confiscation without any inquiry into the validity of the grounds of seizure, unless he can furnish security for the pay- ment of costs in the event of his failure to maintain his claim, seems to be discordant with the spirit of our civil institutions. The law lends its sanction to nothing analogous to this in controversies between private suitors, and the genius of our government is hostile to the exercise of prerogative rights. To be permitted to contest a charge of guUt and the reality of an alleged forfeiture, ought not to be regarded as a privilege, but as a right, and it is not easy to dis- cern the justice of annexing to its exercise an oner- Practice in Cases of Seizure. 581 ous and sometimes impossible condition. "When no c hap. 3. claimant appears, the forfeiture is treated as a mere lien on the thing, and the costs are paid out of its proceeds. The interposition of a claim no otherwise alters the case than by augmenting,, in some degree, the expenses of the prosecution, and to compel the owner on this ground to bring in a third persen as surety, who, aside from the promptings of his love of justice, or his benevolence, has no concern in the matter, appears to me, I confess, to savor of rapa- city and oppression. Unless, therefore, congress, in » assuming, as it has done, to regulate this part of the proceedings in cases of seizure, has unequivocally required the courts to exact the security in question, , it ought not to be required. But the omission of any such requirements, in terms, is not the only evidence furnished by the fe-ct of the absence of any such intention. The 89th section, after requiring the claimant to "give bond" to respond the costs, &c., immediately proceeds to prescribe the conditions on which prop- erty seized shall be delivered to the claimant, pen- dente lite ; and, as we have seen, one of these condi- tions is, that he "shaU, with one or more sureties, to be approved of by the court, execute a bond," &c. The act of 1799, containing these provisions, was a substitute for the collection act of 1790, the 67th section of which contains substantially the same provisions, and makes precisely the same distinction between the bond for costs and that for the appraised value. The propriety and necessity of requiring sureties in the latter case must be obvious to every one. There is, therefore, no want of sufficient rea- sons for this distinction, and the presumption is strong that it was intentional. There are 'also a mul- titude of other instances in which laws relating to judicial and other proceedings, expressly require 582 Peactiob in Cases of Seizuee. < PAST 3. bonds with sureties to be given, insomuch that it it may safely be affirmed to be the uniform practice of congress, whenever it is intended to exact sure- ties," to declare such intention in terms. The bond is usually offered and filed simultane- ously with the claim, and it has been usual in the New York districts to require it to be in the penalty of two hundred and fifty dollars. * ' The following supplemental judgment pronounced by Mr. Justice Stoet in the case of The aoTwoner Sally and cargo, which had been cap- tured during the last war by an American privateer for an alleged trad- ing with the enemy, and condemned as lawful prize, cannot fail to be acceptable to the reader. " The principal questions on the merits having now been disposed of, an application has been made to the court respecting the taxation of costs and expenses against the claimants. The bill presented to the courts is as follows, viz. : Attorney's fee, $35 00 Depositions. F. Slocumb, , 6 00 [Here follow the names of four other witnesses.] Bwrvey and Appraisement. Surveyor's fees, 34 00 Marshal's do 9 50 Clerk's do.. 4 00 Marsihal's fees and charges, ': 75 94 Clerk's fees, entry, filing, recording, &c., 25 00 Circuit Court, May, 1813. Copies, :.... 35 00 Attorney's fee, 25 00 Filing, recording, &c., 25 00 JohnEice'a bill, 82 67 1350 11 The items objected to by the claimants are : 1. The Clerk's fees for recording the proceedings, and for the copy thereof transmitted to this court. 2. The marshal and clerk's fees on the sale under a perishable monition. And 3. Mr. Rice's bill for dockage and custody. It is the unquestionable rule of the court, that the claimants shall not be liable for expenses, which would have been incurred indepen- dently of the interposition of their claim ; but for all charges and Pbactice in Oases of Seizure. 583 CHAP. 3. SECTION VIII. EVIDENCE. The usual mode of taking proofs in the British courts of admiralty is by deposition on interroga- tories before a standing examiner, or a commissioner under a dedimus potestdtem, ; but, by the judiciary act, it is provided, that "the mode of proof by oral testimony, and the examination of witnesses in open court, shall be the same in all the courts of the United States, as well in the trial of causes in equity expenses, which, grow out of their claim, they must be held responsi- ble. On this ground the commissioners' fees for the deposition, taken under the standing interrogatories, though not objected to, must be deducted ; but the expenses of the depositions of Slocumb, and others, which were admissible on the order for further p,roof, are properly chargeable. The survey and appraisement, having been made at the instance of the claimants, fall tinder the same consideration. The objection to the clerk's fees fcir recording, &c., rests upon the ground that he is not obliged to record all the proceedings in the circuit court ; and, at all events, is not obliged to record the evidence. But, however true the latter position may be under our practice, as to . cases on the instance side of the admiralty (on which I give no opinion), I am well satisfied that the clerk is bound to record the whole proceed- ings in this court in prize causes, as the evidence is always in writing, and inseparable from the allegations of the parties. » * * * As to the fees of the clerk for a copy of the proceedings, it is a mere question of fact whether the sum claimed by the clerk is to be allowed or not. The statute of 1st March, 1793, ch. 30, has prescribed the fees of the clerk for services of this nature, and the court is bound to apply the regulations. It will be easy for the counsel to ascertain the amount which will become thus due to the clerk, and that sum and no more must be allowed. As to the marshal's and clerk's fees on the sales of the cargo by order of the court, I think, that, in general, it must be considered a charge on the property itself. It is a proceeding adopted for the benefit of all parties, and, unless in very special cases, should be paid by the party to whom the property is ultimately awarded. Nothing has been pre- sented to the court to distinguish the present case from the general rule. As to the dockage of the schooner, I think it must be allowed against the claimants, from the time of the interposition of their claim to the time of the delivery on bail. This expense was necessarily incurred for the preservation of the vessel during the litigation of their claim ; 584 Practice ik Cases of Sbizueb. PARTS, and of admiralty jurisdiction as of actions at com- mon law. ' ' ' Having already, in a preceding chapter, treated of the subject of evidence, and, what is there stated, being in general applicable to the description of actions . now under consideration, lit- tle remains requiring notice in this place. In cases of seizure, whether prosecuted on the admiralty or exchequer side of the court, witnesses are sum- moned by the like process, and are subject to the same penalties for non-attendance ; the same descrip- tion of documentary evidence are admissible, and the production of books and other writings may be required under the like conditions and with the like effect ; depositions de b.ene esse, or under a com- mission, or in perpetuam rei testimoniam, may be taken and used in like manner as in ordinary actions at law. , The section of the judiciary act, above referred to, which authorizes and regulates the taking of deposi- tions de hene esse, contains also the following pro- vision, applicable especially to this description of suits, viz., that — and they have not, in my judgment, entitled themselves to be relieved from the burden. Cases may occur in which it would be highly proper to make this charge on the property. With respect to the charge of Mr. Rice for custody, the allowance of it depends altogether upon the facts. If a person was, in fact, employed to take care of the schooner during the whole time, a proper compen- sation for his services ought to be allowed. If no person was employed, I should not, as at present advised, incline to grant a compensation for ideal custody. There should be an actual superintendence over the property, to entitle the party to a beneficial recompense, and, even in cases of actual custody, if there be gross negligence or fraud, I should have no diflculty in refusing the party any compensation. Let the captors show by affidavit whether there has been any actual custody, and what would be a reasonable compensation. If actual custody, with competent diligence, be shown, I shall allow the item against the claimants, as this is not a case entitling them to a very favorable con- sideration in this court." "Act of 24th Sept., 1789, ch. 20, § 30 : 1 Stat, at Large, 73. Peacticb in Oases ov Seizukb. 585 "In causes of admiralty and maritime jurisdiction, or chap. s. other causes of seizure, when a libel shall be filed, in which an adverse party is not named, and depositions of persons circumstanced as aforesaid shall be taken before a claim be put in, the like notification as aforesaid shall be given to the person having the agency or possession of the property libeled, at the time of the capture or seizure of the same, if known to the libelant." The language of this provision implies tha-t depo- sitions may be taken in behalf of the government, in these cases, before the cause is at issue. Indeed, according to the terms in which the right to take such depositions is conferred, authorizing them to be taken "in any civil cause depending in any court of ' the United States," it seems to have been intended generally to give to each party the right of taking them immediately upon the institution of the suit. But, inasmuch as there is no personal party defend- ant in suits in rem until after the claimant has appeared and been admitted in that character, it is presumed that this right cannot be exercised by the owner of property seized until after the actual inter- position of his claim. There is another mode of obtaining the testimony of witnesses resident in a foreign country, which is peculiar to admiralty courts ; and that is by invok- ing the instrumentality, for this purpose, of the admiralty courts of the country within whose juris-, diction the witnesses are. This method is resorted to when it is foreseen or apprehended that an at- tempt to have the desired evidence taken under a commission will be rendered abortive by the jeal- ous interference of the authorities of such foreign country. The request to the foreign court is made by what is denominated letters rogatory/. This mode of obtaining proofs in admiralty cases is said to be recognized by all nations where courts of admiralty 74 686 Practice in Oasbs of Seiztjee. PART 3. are establislied ; and as all are interested in main- taining it, great reliance may be placed upon its certainty and efficiency. ' Interrogatories accompany ■ the letters rogatory. The depositions, when taken, are recorded in the registry of the foreign conrt, and authenticated copies of them are transmitted to the court whence the letters rogatory emanated ; and these, according to the established usage of courts of admiralty, are admissible as evidence.* When, in compliance with letters rogatory, ad- dressed by a court of a foreign country to a circuit court of the United States, a commissioner is desig- nated by the circuit court to take the required testi- mony, such commissioner is empowered "to compel the witnesses to appear and depose in the same manner as to appear and testify in coujt." Act of March 3, 1855, ch. 140 : 10 Stat, at Large, 630. With a view, it may be supposed, of securing evidence of frauds on the revenue, it is enjoined by law on the district judge of any district, whenever it shall be made satisfactory to appear, by affidavit, that any puch fraud has been committed or attempted, forthwith to issue his warrant, directed to the col- lector of the port, where the merchandise in question has been entered, directing him or his duly appointed agents or assistants to enter any place or premises where invoices, books or papers relating to such merchandise or fraud are deposited, and to take and carry them away for the use of the United States, so long as the retention thereof may be Necessary, sub- ject to the control and direction of the solicitor of the treasury.' ' See Appendix, "Practical Forms." = Act of Marcli 3, 1863, ch. 76, § 7 : 13 Stati at Large, 740. Section Sth of this act makes it a misdemeanor severely punishable \>j fine and imprisonment, to conceal or destroy any such papers to prevent their use as evidence. Pracxicbin Cases of Seizueb. .587 The officers of the customs and informers, as we c hap. 3: have seen, are declared by the 91st section of the collection act of 1799, to be. competent witnesses in cases of seizure — ^the distributive share to which they would otherwise be entitled being withheld from them, when they are sworn as such witnesses. SECTION IX. IPKOCBEDINOS F^OM THB HEABINS OR TRIAL, INCLtTSITE, TO THE TEBMINATION OF THE SUIT. 1. Of the hearing or trial. Little is required to be said in this place in addi- tion to the directions already given under the cor- responding head in an antecedent part of this trea- tise. Wheu the proceeding is on the exchequer or common law side of the court, the trial is conducted in all respects in the same manner, and is subject to the same incidents as an ordinary personal action. When the seizure is of admiralty jurisdiction, the case is heard and the questions of fact as well as of law are determined by the court, without the inter- vention of a jury, as in cases of equity. The revenue laws are not, in a strict sense, penal acts, and they ought to be so construed as most effect- ually to accomplish the intention of the legislature in passing them, instead of being construed with great strictness in favor of the defendant. Taylor, BlacTcburn & Co. v. The United States, 3 How., 197. By the thirtieth section of the judiciary act, it is provided, that, "in the trial of any cause of admi- ralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court that probably it will not be in his power to produce the witnesses, then testifying, before the circuit court, should an appeal be had, and shall move that their teetimony 588 Practice in Cases of Seizure. PARTS, betaken down in writing, it shall be done bykthe clerk of the conrt." ' 3. Of the decree or judgment, and execution. Wlien the proceeding is on the common law side of the court, the judgment either of acquittal or con- demnation follows the verdict of course as in other suits at law. When the case is of admiralty jurisdiction, the decree or sentence is either pronounced immediately, or time is taken by the judge for deliberatioji, and if he thinks proper, to reduce his opinion to writing. The sentence must, however, be entered in court ; and as several months intervene between the stated terms of the district Courts, with one or two excep- tions, it may sometimes be the duty of the judge, when the decision is to be deferred, to prolong the term by adjourning the court to some day only sufficiently distant to aflford the necessary time for advisement. But when the property has been deliv- ered on bond, no very serious inconvenience can in general arise from postponing the entry of the decree tOl the next ensuing term. When the judgment or decree is in favor of the claimant, it is the duty of the court to consider whether there was reasonable cause for seizure ; and if so, to certify accordingly. It will be remembered that in all suits in the dis- trict court involving an amount exceeding fifty dol- lars, a writ of error or appeal lies to the circuit court ; and that on judgments subject to review by writ of error, no execution can be issued until after the expiration of ten days from the rendition of the judgment--that period being allowed to the party to deliberate on the propriety of bringing a writ of error and to sue out the same in proper form. ' Ch. 30 : 1 Stat, at Large, 73. •pKACTioE IN Cases of Seizure. 589 It follows, therefore, that upon a judgment in cases chap. s. of seizure on the common law side of the court, when the property in controversy exceeds fifty dollars in value, no execution can issue until after ten days. In regard to appeals, however, there is no such legis- lative provision. And, therefore, in cases on the admiralty side of the court, unless a stay of execution is provided for by the rules of the court, the decree may be executed without delay. In case of acquittal, a warrant of restitution issues to the marshal, commanding him. to restore the prop- erty to the claimant.' Upon a sentence or judgment of condemnation, a writ of laendiUoni exponas issues (unless the property has been delivered on bond), commanding the marshal to ' sell the property and pay over the proceeds in pursuance of the sentence." If the costs occasioned by the interposition of the claim are not paid on demand, after taxation, an action on the bond for costs may be instituted to enforce their payment. When the property condemned has been delivered on bond, the fruits of the decree or judgment are, as we have seen, to be obtained by requiriag the claim- ant to pay into court the appraised or agreed value of the property, together with the costs. If he fail to do this within twenty days, a judgment will be granted, summarily, on the bond against him and his sureties, and enforced by execution in the usual form. Costs. 1 An act of congress passed July 22,- 1813, contaias the following salutary provisions, viz. : " That whenever proceedings shall be had on sereral libels against any vessel and cargo which might legally be joined in one Libel, before a court of the United States, or the terri- ' Vi&e, swpra, as to the power of the court to award damages to the claimant. WiAe, aupra^ and Appendix, "Practical forms." 590 Peactice in Cases of SeizueE". PAET s, tories thereof, there shall not be allowed thereon more costs than on one libel, unless special cause for libeling the yessel and cargo, seTcrally, shall be satisfactorily shown as afore- said [viz. : on motion in open court]. And in proceedings on several libels or informations against any cargo, or parts of cargo or merchandise, seized as forfeited for the same cause, there shall not be allowed by the court more costs than would be lawful on one libel or information, whatever may be the number of owners or consignees therein con- cerned ; but allowance may be made on one libel or inform mation for the costs incidental to several claims : Provided, . that in case of a claim of any vessel or other property seized on behalf of the United States, and libeled or informed against as forfeited under any of the laws thereof, if judg- ment shall pass in favor of the claimant, he shall be entitled to the same on paying only his own costs." The third section of the same act contains also the following provision: "And if any attorney, proctor, or other person, admitted to manage and conduct causes in a court of the United States, or the territories thereof, shall appear to have multi- plied the proceedings in any cause before the court, so as to increase costs unreasonably and vexatiously, such person may be required, by order of court, to satisfy any excess of costs so incurred."^ This is a remedial statute, and it very clearly re- veals the nature of the abuses to be remedied or prevented by that part of the second section which precedes the proviso, and by the third section. But the precise nature of the mischief at -which the pro- viso is aimed is not so obvioiis. Its design doubtless was tp secure each of the several claimants against being held responsible for the costs occasioned by the claims interposed by the other claimants. But the language of it seems to imply that the property of a claimant who has been successful in defending » Ch. 14, § 3 : a Stat, at Large, 19. Pbacticb in- Oases of Seizueb. 591 it from condemnation, may nevertheless be adjudged chap. s. to pay costs. Costs, in courts of admiralty, are said to be.purely discretionary ; but I am not aware that the payment of costs has ever been exacted as a condition precedent to be complied with before, ia the language of the act of 1813, the claimant "shall be entitled to" his property. The 89th section of the collection act of 1799, already so often referred to, requires the claimant, in all cases, to give a bond, "to respond the costs in case he sJiall not support Ms claim;'''' and, as one of the conditions on which he is entitled to have the property delivered to him pendente lite, he is required to give another bond with sureties for the appraised value of the property. The act does not, in terms, require the condition of this latter bond to contain any express stipula- tion for the payment of costs ; but it directs a summary judgment to be entered on it in case of condemnation, unless the claimant, within twenty days, pays the appraised value, with the costs ; and it expressly enjoins the court, "if judgment shall pass in favor of the claimant," to '■'•cause tJie said bond to ie canceled." It provides, moreover, that, when a certificate of reasonable cause of seizure shall be given, '^the claimant, or claimants, shall not be entitled to costs." These provisions seem to me clearly to imply an absolute mandatory direction to the courts to award restitution unconditionally, in cases of acquittal, and to leave them no discretionary power to exact costs of the claimant in such a case.' ' Such, seems to liave been the view of the circuit court for the Mas- sachusetts district, in the case of The Louisetta (2 Gallis., 307), in which the vessel, after seizure, had been sold on an interlocutor/ order, and finally decreed to be restored. Under the circumstances of the case, which were supposed by the marshal to be peculiar, he considered the ciistody fees not properly chargeable against the United States. But the court said " the expenses must be borne by the United States, there having been probable cause, which excused the collector." 593 Pkactice ih" Oases of Seizure. PART 8. It is to be borne in mind, also, that a large proportion of seizures are of common law jurisdiction ; and that these statutory regulations are intended to embrace these as well as the opposite description of seizures. But it would be contrary to all analogy to adjudge costs against a successful defendant in an action at common law. It is worthy of remark, too, that in England all revenue seizures are cognizable exclu- sively in the court of exchequer, and that such of them as are cognizable on the admiralty side of the district courts of the United States are made so only by force of a legislative act. The effect of this statute, with regard to the description of seizures embraced by it, is to withdraw them from the con- sideration of a jury, "according to the course of the civil law." But, with respect to the essential rights and responsibilities of the claimant, it would seem to be both natural and proper to look for guid- ance to the English court of exchequer, rather than to foreign courts of admiralty exercising no similar jurisdiction. In truth, however, there seems to be good reason to suppose that congress intended, per- emptorily, to prescribe the course of proceeding in cases of seizure, in all its most essential particulars, so as to leave but little discretionary power to the courts in regard to it. There was abundant cause for doing this. The subject was one of great import- ance, deeply affecting the revenue and commerce of the country, and the rights of the citizen. The practice of the state courts, by which this branch of jurisdiction had previously been exercised, was unquestionably ill-digested, fluctuating and multi- form. This was a great evil, not -at all likely to be cured by the mere substitution of national for state tribunals. There were cogent reasons, therefore, for devising and establishing by law a uniform course of procedure, adapted to the exigencies of the case : Practice in Oases of Seizueb. 598 one wMcli, wMle it stould studiously and suflS.ciently c hap. 3. guard th.e revenue, should not, on the other hand, unreasonably trench upon the security of private rights. This I should unhesitatingly suppose to have been done, but for the great respect I entertain for the opinions of those who seem to have enter- tained different views of the subject, and I venture, with all suitable humility, to suggest that it would be far safer to yield implicit obedience to these legis- lative directions than to incur the hazard of intro- ducing incongruity, perplexity and confusion by attempting to follow the feeble and flickering lights transmitted to us through the medium of books across the Atlantic. It may not be amiss to add, that it is by no means intended to question the power of the court to impose costs on the claimant by interlocutory orders, as the condition upon which any favor or relief, of which he may stand in need, shall be accorded to him. The fees which may be lawfully exacted in cases of seizure for official and professional services are prescribed by the act of February 26, 1853, ch. 80.' SECTION X. SETTING . ASIDE CONDEMNATION BY DEFAULT — EEHEAKING — NEW TRIAL. It sometimes happens that the owner of property seized, who intends to interpose a claim, is prevented by accident or misapprehension from doing so, untU after condemnation on proclamation. In such cases, it is the practice in the northern district of New York, and, it is presumed, also in the other districts, on sufficient cause shown, to vacate the sentence of condemnation and receive the claim, at anytime dur- ing the term at which the condemnation took place ; and in an extraordinary case in the above named ' See Appendix. 75 594 Practice in Cases of Seizubb. PAST 3. district, an order to stay proceedings until the next term was granted in vacation, to enable tlie owner of a vessel, wMcli had been condemned on proclama- tion, to move the court for relief. When a party is dissatisfied with the decree in a cause on the admiralty side of the court, he has a right, provided the value of the thing in controversy exceeds fifty dollars, to appeal to the next circuit court, and there to have his cause heard anew. But he may also apply during the same term for a rehear- ing in the district court. The application for this purpose is to the equitable discretion of the court ; and the principles which govern courts of equity in similar cases furnish the surest guide in the exercise of this discretion. In suits on the common law side of the court, the unsuccessful party is entitled, under the like limita- tion as to amount, to a writ of error for the correction of any error of law. But he may also, as in other cases at common law, apply for a new trial. Applications for the above mentioned or other special purposes are brought before the court by petition or affidavit and notice to the opposite party, according to the rules or established practice of the court. PART lY. PEACTIOE OP THE OOUETS OP THE UNITED STATES IN GEIMINAL CASES. The nature and general limits of the criminal juria- diction of the national courts have already been sufficiently stated and defined in the first part of this work. "We have seen that these courts derive no criminal jurisdiction from the common law, and that it is therefore only after the national legislature, acting within the limits of its constitutional authority, has declared an act to be punishable, that the judicial tribunals can take cognizance of such act as a public offense. But we have seen, also, that while no resort can be had to the common law as a source of criminal jurisdiction,- it nevertheless furnishes the proper and, as the state laws are here inoperative, the only guide, in the absence of constitutional or statutory regula- tions, as to the principles and rules of procedure in the exercise of this branch of jurisdiction. My design now is to poiat out the few constitu- tional and statutory provisions pertaining to the subject, and to offer such brief explanatory observa- tions as may suffice to relieve it from embarrassment. PAET4. Pbactice in Ceiminal Cases. CHAPTER I. LIMITATION" OF CEIMINAL PEOSECUTIONS. By the 32d section of tlie crimes act of 1790, it is enacted — " That no person or persons shall be prosecuted, tried or punished for treason or other capital offense aforesaid, ^ will- ful murder or forgery excepted, unless the indictment for the same shall be found by a grand jury within three years next after the treason, or capital offense aforesaid, shall be done or committed ; nor shall, any person be prosecuted, tried or punished, for any offense not capital, unless the indictment for the same shall be found within two years from the time of committing the offense aforesaid ; Provided, that nothing herein contained shall extend to any person or persons fleeing from justice.''^ By tlie act of March. 26, 1804, the period of limita- tion for the prosecution of ' ' any crime arising under the revenue laws of the United States," is extended iofive years." 1 The term ■" aforesaid," must, it is presumed, be considered here as referring to the capital offenses defined in the same act. If so, it would seem at least to be very doubtful whether the prescribed limitation would apply to a capital offense of a diflferent description defined by a different act. There are several such cases, see, for example, the act of March 36, 1804, and the postoffice act of March 3, 1835. The second branch of the section, relative to offenses not capital, it will be be seen, has no such qualification. Since the foregoing part of this note was written a limitation of five years has, by the act of July 26, 1868, ch. 236 (15 Stat, at Large, 183), been prescribed for the prosecution of offenders against the act of March 36, 1804, ch. 40 (2 Stat, at Large, 290), denouncing the penalty of ideath for the malicious destruction of vessels on the high seas. The latter part of the 3d section of this act, as printed, beginning with, the words " or if," is not intelligible. It should be read with the omission of this " if " and of the word " of" in.the next line. » Ch. 9 : 1 Stat, at Large, 119. ' Ch. 40, § 3 : 3 id., 390. As to jother cases, vide supra. Practice ik Ceiminal Oases. 697 . CHAP. 2. CHAPTER II. OF THE AEEEST. • On what grounds and in what manner to he made. ] By article fourth of the amendments to the constitu- tion of the United States, it is declared, that "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated ; and no warrants shall issue but upon probable cause, sup- ported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." The design of this amendment was not to intro- duce new principles, but more effectually to guard against the. infringement of private rights already recognized by the common law. See 1 Hale's P. C, 580 ; 4 Bla. Com., 291, 292 ; 1 Chit. Cr. Law, 41. Its . introduction is supposed to have been occasioned by the sensibility which was aroused in England and in this country, shortly before the commencement of the American revolution, on the subject of general warrants. 3 Story's Com., 748. It appears to have been aimed chiefly against unreasonable searches. But it has been understood to extend also to the arrest of persons on warrants for that purpose alone ; and it was accordingly held by the supreme court of the United States in the case JSx parte Burford (3 Cranch, 447) to be necessary that the warrant and the complaint on which it is founded should specify not only the name ' of the person to be arrested, but also, with reasonable certainty, the time, place and nature of the offense. To justify an arrest there must be probable cause, supported by oath or affir- 1 When the name of the party is unknown, a description of his per- son would doubtless be sufficient, as at common law.. 598 Pbactice in Criminal Cases. PART 4. motion. Probable cause, in tMs sense, is under- stood to mean such probable cause as miglit induce a discreet, impartial man to suspect tlie party to be guilty. 1 Chit. Cr. Law, 34. But the fact that the crime imputed to him has been actually committed by some one should first be established with reason- able certainty. Id., 33. As will be seen in the sequel {^ide, post, Chap. Ill), it has been determined by the supreme court of the United States that one magistrate may, except under suspicious circumstances, commit on a duly authen- ticated affidavit taken before another magistrate. It follows, therefore, a fortiori, that such evidence is sufficient to warrant an arrest in the first instance. In England, a Quaker's affirmation is said to be inadmissible in criminal proceedings, to criminate or accuse another, though it may be read to excul- pate himself; and that no warrant ought therefore to be granted on such affirmation. 1 Chit. Cr. Law, 34. It is otherwise here. By the common law, a magistrate may commit upon view of the ofl'ense without oath. It is not supposed to have been the intention of the article of the constitution above cited to forbid the exercise of such power under the laws of the United States ; but I am not aware that the question has been judicially decided. By whom the warrant may he issued.'] By the 33d section of the judicial act it is enacted — " Tliat for any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace or other magistrate of any of the United States, where he may be found, agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before Pbactice in Oeimikal Oases. 599 such court of the United States as by this act has cogni- chap. 2. zance of the offense." ' And by«tlie act passed July 16, 1798, it is further enacted — " That the judges of the supreme court, and of the several district courts of the United States, and all the judges and justices of the courts of the several states, having authority, by the laws of the United States, to take cognizance of offenses against the constitution and laws thereof, shall, respectively, have the like power and authority to hold to security of the peace and good behavior, in cases arising under the constitution and laws of the United States, as may or can be lawfully exercised by any judge or justice of the peace of the respective states in cases cognizable before them.'" Wlietlier congress could constitutionally confer tlie authority specified in these enactments upon state magistrates, is a question which has repeatedly been agitated, and which has been variously decided by the state courts and judges. It has been sup- posed to depend upon the question whether the power intended to be conferred is to be considered a ministerial or judicial power ; the judicial power of the United States being, by the constitution, vested in a supreme court, and in such inferior courts as congress may from time to time ordain and establish ; and it being, moreover, a settled principle of jurisprudence that the criminal laws of a country can be enforced only in its own courts. The power to order the arrest of a citizen, and then of deciding on the propriety of discharging, com- mitting or baHiag him, seems to savor strongly of judicial authority, and to stand in striking contrast to that exercised by the ministerial officer who merely obeys such order. It appears to be agreed ' Ch. 20 : 1 Stat at Large, 73. ''Ch. 83,: 1 Stat, at Large, 609, 600 Practice ik Oeimikal Cases. PAET4. on all hands that state magistrates are not obliged to exercise this power. The question is, whether, if they voluntarily do so, their acts are tq be held- vaUd. This is a question of considerable import- ance. The judges of the United States being so few in number, in proportion to the extent of the Union, the occasional interposition of the local magistrates for the arrest of offenders against the United States would tend to promote public justice and the security of the citizen, by rendering the escape of offenders less easy and frequent. The right of these magistrates to exercise this power is believed to be in accordance with the general apprehension of the law throughout the Union. In the northern district of IS'ew York it has often been exercised, and has never, to my knowledge, been disputed or com- plained of. I do not, however, intend to be under- stood as intimating any opinion of my own relative to the validity of the act in question. The commissioners, to take affidavits, acknowledg- ments of bail, &c., are also, as we have seen, invested with plenary powers to arrest and commit or bail offenders against the laws of the United States. It may seem superfluous to add that the warrant, by whomsoever issued, under the laws of the United States, ought, unless it be in the name of the judge or other magistrate issuing it, to be in the name of the president of the United States ; though I have understood that, probably through inadvertence or the influence of habit, such warrants have some- times been made in the name of the people of the State of New York. To whom, directed.'] When the warrant is issued by a judge of the supreme court of the United States, it may doubtless be directed to the marshal of any one of the districts composing the circuit to which he is allotted ; or, generally, it is presumed, Practice in Criminal Oases. 601 to any marshal of sucli circuit ; but not, it is sup- chap. 3. posed, to the marshal of any district beyond the limits of such circuit ; because the original criminal jurisdiction of a judge of the supreme court belongs to him only as a judge of the circuit court. When issued by a district judge, it must be directed to the marshal of the district for which such judge is appointed. When the warrant is issued by a state magistrate (assuming the right of these officers to act), the question to whom the warrant may lawfully be directed seems to be less simple, and any answer which may be given to it less satisfactory. The marshals of the United States and their depu- ties are the only officers ordained by the laws of the United States to execute precepts issued under the authority of these laws. Prom this it -would seem to follow that these officers alone are competent to perform this service, and consequently that warrants issued by state magistrates, as well as those issued by the judges of the United States ought to be directed to them and to them only. But at common law a warrant may be directed to any indifferent person by name who is not an officer. 1 Salk., 347 ; 1 Hale's P. C, 581 ; 2 id., 110 ; 4 Bla. Com., 29 ; 1 Chit. Cr. Law, 38. In most of the states, if not in all, where this rule has not been displaced by legislation, it would probably be recognized as operative. It is worthy of remark, too, that the section of the judicial act above cited, conferring the power in question on state magistrates, provides that it may be exercised "agreeably to the usual mode of process against offenders in such state." There is reason for the conclusion, therefore, that these magistrates may, lawfully (as it is believed they generally do), direct their warrants to a consta- 76 602 Practice in Okiminal Cases. PAET4. ble ; or, if the local law permits it in other cases, to any indifferent person by name. It is, however, by no means intended to recommend this course. It is certainly regular to direct process, by whomsoever issued, for the arrest of offenders against the United States, to the marshal ; and this is unquestionably the safer and most proper course. Summary trial.'] Before proceeding farther, it is necessary to advert to an act of congress, authorizing forms of procedure in certain specified cases, so widely different from those treated of in the sequel as to require separate notices. The act alluded to is entitled, "An act to provide for the summary trial of minor offenses against the laws of the United States,'' passed June 11, 1864 (ch. 121 : 13 Stat, at Large, 125). After empowering the judge of any district court. to hold a special session of it at any time, whether in term or vacation, for the trial of minor offenses against the United States, as therein- after provided, it enacts — " That wheneTer a complaint stall be made against any master, oflBcer or mariner of any ship belonging, in whole or in .part, to any citizen or citizens of the United States, of the commission of any offense, not capital or otherwise infamous, against any law of the United States, made for the protection of persons or property engaged in commerce or navigation, it shall be the duty of the district attorney to investigate the same and the general nature thereof, and if, in his opinion, the case is such as should be summarily tried under the provisions of this act, he shall report the same to the district judge, and the judge shall fortwith, or as soon as the ordinary business of the court will permit, proceed to try the same, and, for that purpose, may, if necessary, hold a special session of the court. That at such trial it shall not be necessary that the accused shall have been previously indicted, but a statement or complaint, verified by oath, in writing, shall be presented to the court, setttag out the offense in such a manner as clearly to apprise Practice in Obiminal Oases. 603 the accused of tlie character of the offense complained of, chap. a. and to enable him to answer such complaint. And the said complaint or sfatement shall be read to the accused, who may plead to or answer the same, or make a counter-state- ment. That the said trial shall thereupon be proceeded with in a summary manner, and the case may be decided by the court, unless, at the time for pleading or answering, the accused shall demand a jury, in which case the trial shall . be upon the complaint and plea of not guilty." The act limits the sentence, on conviction, to im- prisonment in jail for one year, or to a fine not exceeding five hundred dollars, or both, at the dis- cretion of the court, in those cases where the laws of the United States authorize such imprisonment and fine. The court may allow the district attorney to amend his statement or complaint at any stage of the proceediags before verdict, when such 'amend- ment will work uo injustice to the accused ; and may adjourn the cause to some future day, if it shall appear that the accused is unprepared to meet the charge as amended, and that an adjournment will promote the ends of justice. The seventh and last section enacts — " That at such trial, if by jury, the United States and the accused shall each be ' entitled to three peremptory challenges. Challenges for cause, in such cases, shall be tried by the court, without the aid of triers." 604 Peactice in Ceiminal Cases. PART 4. An affidavit made before one magis- trate may warrant commit- ment ty another. But Bhonld be cantiona- ly admitted. And its aatbentica- tion com- plete. CHAPTER III. OF THE EXAMINATION — BAIL — COMMITMENT — AND HABEAS C0KPIJ8. ^Examination.] In the case Ex parte Boleman and Ex parte Swartwout (4 Cranch, 75), the important question arose, whether one magistrate could law- fully commit on an affidavit made before another magistrate. The question was decided in the affirm- ative, ' ' on the principle -that before the accused is put on his trial all the proceedjjigs are ex parte. ''^ This decision was applied by Chief Justice Mae- shall in the case of The United States v. Burr (Burr's Trial, vol. 1, pp. 14, 97). But he was- of opinion that such affidavits ought to be received and acted on with much caution. The follovnng are his remarks upon this point : "That the magistrate may commit upon affidavits has been decided in the supreme court of the United States, though not without hesitation. The presence of the wit- ness, to be examined by the committing justice, confronted with the accused, is certainly to be desired, and ought to be obtained, unless considerable inconvenience and difficulty exist in procuring his attendance. An ex parte affidavit, shaped, perhaps, by the person pressing the prosecution, will always be viewed with some suspicion, and acted upon with softie caution; but the court thought it would be going too far to reject it altogether. If it was obvious that the attendence of the witness was easily attainable, but that he was intentionally kept out of the way, the question might be otherwise decided." And he added, that before a paper purporting to be an affidavit could properly be received and acted on as such, its verity must appear to be established beyond a doubt. Its authentication must not rest on probability, but must be as complete as the nature of the case admits of. On this ground the chief justice Practice IN" CBmiNAL Cases, 606 refused to admit an afl&davit purporting to have been chap. 3. "! taken on the fifteenth April, before B. Cenas, a justice of the peace," to which was appended a cer- tificate of the governor of the territory of Louisiana, dated "at New Orleans the sixteenth of April, 1807," stating that " B. Cenas was a justice of the peace for the county of New Orleans;" first, because there was no designation of the place where the affidavit was taken, and the oath might therefore have been administered out of the county of New Orleans, and so beyond the jurisdiction of the justice ; and, sec- ondly, because the certificate of the governor did not state that the person who tool* the affidavit was a magistrate ; but only that a person of that name , was a magistrate. , An act, passed at the second session of the first Accnsea entitled to congress, gives to persons ^^ accused or mdicted," the ^^'J?^||^ right to offer evidence in their defense. This act and *™^fe e™ a later one amplifying its provisions, will be more f^e unued particularly noticed in the sequel. It is adverted to ^**'**- here for the purpose of stating, that, according to the liberal iuterpretation which, as I understand, has been practically given to it, a person arrested on a criminal pharge is entitled to have witnesses sum- moned in his behalf to testify on Ms examination, at the expense of the United States ; but that this privi- lege has been restricted by a subsequent act, forbid- ding the taxation against the United States of the fees of more than four witnesses on the examination of criminal cases before a commissioner, unless their materiality and importance shall be certified to by the district attorney. ' This enactment was designed to correct the preva- lent abuse of unnecessarily summoning a multitude of witnesses in behalf of the United States. But it doubtless embraces the witnesses on both sides. This 1 Act of August 16, 1856, ch. 134, § 3 : 11 Stat, at Large, 49. 606 Peactioe isr Ceiminal Cases. PABT4. act (§ 8) also forbids the allowance of witnesses' fees to any officer of the United States courts, including bailiffs, guards, or deputies of marshals, testifying before a court or commissioner. Accnseato The accused (unless discharged) must, as already or com- atated, be ' ' imprisoned or bailed, as the case may be, trial, &c. for trial before such court of the United States as hy this act Tias cognizance of tJie offense." And the act proceeds to require that "copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case ; which recognizances, the magistrate before whom the examination shall be, may require on pain Attendance of imprisonment." ' The means resorted to in the neaees, how first instance to procure the attendance of a witness Becnred. is a summons. If this be disregarded, a warrant may be issued to bring the witness compulsorily. If the witness refuses to testify, he may be committed until he shall consent to do it, or shall be otherwise discharged by due course of law. He may be required to enter into a recognizance for his future appearance at the proper court, and be committed if he refuse to do so. Married women and children, not being able to bind themselves must procure others to be bound for them. 1 Chit. Cr. Law, 76, 77 ; 90, 91. The Kevised Statute^ of the State of New York, contain a provision authorizing the magistrate, when he shall be satisfied, by due proof, that there is good reason to believe that the witness will not ful- fill the condition of his recognizance, to require sure- ' It will be observed, that the recognizance for the appearance of the offender is not specifically mentioned as one of the papers to be trans- mitted to the clerk's office, of the district to which the prisoner is to be sent. It can hardly be doubted, however, that this is the proper dispo- sition of it, for it is only in the court of that district that the recogni- zance can be enforced or the penalty remitted. The omission was doubtless from inadvertance. Pbacticb in Cbiminal Cases. 607 ties. This provision is believed to be in accordance c hap, a. at least witb tbe spirit of tlie common law. It infers tbe power and duty of commitment for want of STireties, and such, must have been the apprehen- sion of congress, for, by an act, passed May 20, 1826, tbe marshals of the several districts and territories of the United States are "authorized to pay such persons as shall be imprisoned on account of inability to give security in a recognizance for their attendance as witness on behalf of the United States, the same sum for each day's imprisonment as is provided by law for witnesses actually attending court under pro- cess ;" the allowance to be fixed and certified by the judge, as in other cases.' It has been deemed expedient, nevertheless, by Power to subsequent acts, expressly to confer the power of expressly commitment. By the act of August 23, 1842, when statute. the offense is charged to have been committed on the high seas, or elsewhere within the admiralty and maritime jurisdiction of the United States, the judge, justice or commissioner is empowered, on the hearing before him, in his discretion, to require any witness produced in behalf of the accused, as well as in behalf of the United States, to enter into a recognizance with such surety or sureties as he, may deem neces- sary for his appearance as such witness at the trial, provided his testimony appears to be important for the purpose of justice, and is otherwise in danger of being unattainable." And, by the act of August 8, 1846, it is provided that any person whose testi- mony, on an application by the district attorney to any judge of the United States, is shown by satis- factory proof to be admissible and necessary on " the trial of any criminal cause or proceeding in which the United States shall be a party or interested," ' Ch. 75 : 4 Stat, at Large, 174. ' Ch. 188, §8:5 Stat, at Large, 516. Peactice in Criminal Oases. PAST 4. may be compelled to enter into a recognizance with or without sureties for Ms due appearance as a wit- • ness, and, on Ms refusal or neglect to give such recognizance, may be committed to prison, there to remain until he shall be brought before the court to testify, or shall give such recognizance/ Persons so committed are entitled to one dollar a day while in confinement, in addition to subsistence.' The act of 1842 was obviously framed witla. refer- ence to witnesses brought before the examining magistrate, and is, besides, limited, it wUl be seen, to prosecutions for maritime offenses ; whereas the act of 1846 was doubtless more especially designed to embrace vsdtnesses subsequently discovered at any time before trial ; and extends, moreover, to prosecu- tions for any offense against the United States. The rate of compensation fixed by the act of 1853, it is presumed, was designed to supersede that prescribed by the act of 1826. BaU.~\ The 8th article of the amendments to the constitution ordains, that "excessive baD. shall not be recLuired, nor excessive fines imposed, nor cruel and unusual punishments inflicted." By the judicial act, the "justices of the peace or other magistrates" of the several states are in gen- eral terms empowered to baU persons brought before them for examination on arrest.' But, by a subse- quent clause of the same section, it is further pro- vided, that, "upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which case it shall not be admitted but by the supreme or circuit court, or by a justice of the supreme court, or a judge of the district court, who shall exercise their discretion therein, regarding ' qi. 98, § 7 : 9 Stat, at Large, 73. 5 Act of February 26, 1853, ch. 80, § 3. See Appendix. » Act of 24tli Setepmber, 1789, oh. 20, § 33 : 1 Stat, at Large, 91. Practice ik Crimin-al Cases. 609 the nature and circ]imstances of the oflfense, and of c hap, s. the e"vidence and the usages of law. And if a per- son, committed by a justice of the supreme court, or a judge of a district court, for an oflfense not pun- ishable with death, shall afterwards procure bail, and there be no judge 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.' ' This last clause, it will be perceived, relates to the case of persons already committed by a judge of the United States for want of sureties ; but, by the subsequent act of March 2, 1793, it is, in general terms, provided, "that bail for appearance ia any court of the United States, in any criminal cause in which baU is by law allowed, may be taken by any judge of the United States, any chancellor, judge of a supreme or superior court, or chief or first judge of a court of common pleas, of any state, or mayor of a city," and also by "any person having authority from a circuit court to take bail ; which authority, revocable at the discretion of such court, any circuit court "may give to one or more discreet persons, learned in the law, in any district for which such court is holden, where, from the extent of the district, and remoteness of its parts from the usual residence of any of the before mentioned ofllcers, such provision shall, ia the opinion of the court, be necessary. Provided, that nothing herein shall be construed to extend to taking bail in any case where the punishment for the oflfense may be death ; nor to abridge any power heretofore, given by the laws of the United States, to any description of persons to take baU." ' This proviso, it will readUy be seen, refers to the authority given to the judges of the United States by the 33d section above cited of the judicial act, at their discretion, to admit to bail even Ct. 32, § 4 : 1 Stat, at Large, 333. 77 610 Practice in Ceiminal Cases. PART 4. May te snr- Tendered. in capital cases, and to tliat given to state magis- trates to bail persons brought before them on arrest^ in cases not capital.' , Offenders may he required to gite better security.'] Any judge of the United States, or other magistrate, having authority to commit offenders against the laws of the United States, upon satisfactory proof that a person previously admitted to baU as such offender is about to abscond, and that his bail is insufficient, is empowered to require such person to give better security, or, for default thereof, to cause him to be committed to prison ; and, to that end, an order for his arrest may be indorsed on the original warrant or order of commitment, or a new warrant therefor may be issued by such judge or magistrate, setting forth the cause of such proceeding." BaU have the privilege in vacation to surrender their principal, and, for that purpose, to arrest him and deliver him to the marshal or his deputy, to be carried before any judge or other officer having power to commit, who, at the request of the baU, shall recommit the principal to the custody of the marshal, and indorse on the recognizance, or a cer- ' The power, conferred by tliis act on the circuit courts, to appoint persons "learned in the law," to take bail in criminal cases, has long since been superseded by the authority subsequently vested in these courts, to appoint the officers, now familiarly known as commissioners, and by another act (of 33d August, 1843: 5 Stat, at Large, 516), expressly empowering them to exercise all the powers conferred by the 33d section of the judiciary act, on justices of the peace or other mag- istrates of the several states, in respect to arresting, imprisoning or bailing offenders against the laws of the United States. Vide supra, commissioners to take bail, &c. 'Act of August 8th, 1846, ch. 98, § 6 : 9 Stat, at Large, 73. In con- ferring this power on "any judge of the United States, or other magistrate, having authority," &c., it is hardly to be imagined that congress designed to exclude commissioners ; but, if hot, it would have been far better to name them. It may reasonably be presumed, how- ever, that the term " magistrate " was supposed to embrace them. Practice in CBiMiiq-AL Oases. 611 tified copy of it, tlie discharge or exoneratur of tlie c hap. 3. baU ; and the principal is to stand committed until discharged by due course of law.' By the act of February 28th, 1839, it is provided — "That in all cases of recognizances in criminal cause Bail may be Picon pr&fifid [causes] taken for or in, or returnable to, the courts of the when. United States, which shall be forfeited by a breach of the condition thereof, the said court for or in which the same shall be taken, or to which the same shall be returnable, shall have authority, in their discretion, to remit the whole or a part of the penalty whenever it shall appear to the ■ court that there has been no willful default of the parties, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be exacted or enforced." ' ComTnitment.] To warrant a commitment of the accused, the evidence must be such as to afford a strong presumption of his guilt. It sometimes hap- pens that a person indicted in one district makes Ms escape before arrest into another district. In such cases the exhibition of a copy of the indictment, authenticated by the certificate of the clerk under the seal of the court, would, it is supposed, be tl^e proper evidence. Perhaps, also, an affidavit, or the certificate of the clerk alone, that an indictment had been found, would be sufficient, as in England. See 1 Chit. Cr. Law, 342. But where the application is founded on the fact of indictment found alone, there ought, on the arrest of the supposed party, to be evidence of Ms identity to warrant a commitment. Removal of 'prisoner to another district. ~\ By the thirty-tMrd section of the judicial act, already so fre(iuently referred to, the following provision is made for the ;removal of persons committed under • Ibid.. § 4, ' Ch, 36, § 6 : 5 Stat, at Large, 333. 613 Pkactice in Ceiminal Oases. PART 4. the laws of the Unifed States, and also of the wit- nesses against them, from one district to another : "And if such commitment of the offender, or the wit- nesses, shall be in a district other than that in which the offense 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 remoTal 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." The generality of this provision leaves the mode of removal to be devised by the judges who are to per- form the duty it enjoins. It is probable that some diversity of form in this particular has prevailed in the different districts. But congress at length saw fit to regulate the practice in accordance with that described in an antecedent edition of this work, as having been adopted in the northern district of New York, except that, by the new act, a "copy" of the warrant "maybe delivered to the sheriff or jailer, from whose custody he' may be taken, and another copy thereof to the sheriff or jailer to whose custody he may be committed," instead of a separate war- rant. The act directs that the original vn-it, with the marshal's return thereon, shall be returned to the clerk of the district to which he [the prisoner] may be removed.^ The authority to direct the removal of the prisoner, it win be seen, is confined to the district judge. It contemplates a previous commitment of th* offender to prison — ^the act generally of a commissioner, and sometimes of a state magistrate — ^to await the action of the judge on receiving information of the commit- ment. But it occasionally happens that the original ' Act of February 36, 1853, ch. 80 : 10 Stat, at Large, 161. This is the act to regulate fees and costs, and will be found in the Appendix. Practice ijs- Ceimistal Cases. 613 complaint is made before the judge in person, and c hap. 4. tliat the accused is brought before him in the first instance on his own warrant ; and, in such cases, if the offense appears to have been committed in another district, although the act speaks only of persons under "commitment," it may doubtless be con- strued to warrant a removal without the formality of a previous commitment to prison, the form of the warrant being varied accordingly. CHAPTER ly. OF THE INDICTMENT — AEEAIGNMENT — ^AND THEIE INCIDENTS. Where the indictment is to te preferred.'] The 6th amendment to the constitution, adopted soon after the passage of the judiciary act, among other things ordains that " in all criminal prosecutions the accused shall enjoy the right to a speedy public trial by an impartial jury of the state or district wherein the crime shall have been committed." Congress had, however, already seen fit, at its first session, to pro- vide ' ' That in cases punishable with death, the trial shall be had in the county where the offense was committed ; or where that cannot be done with- out great inconvenience, twelve petit jurors at last shall be summoned thence."' This statutable pro- vision, not being inconsistent with the amendment, is not repealed by it, and so it was considered by the circuit court of the district of Virginia on the trial of Burr for treason. The crime was alleged to ^ave been committed in Wood county, one of the frontier counties of Yirginia. The trial was at the city of Richmond, in that state, on account, it is presumed, of the inconvenience of holding the court in Wood ■ Act of Sept. 24, 1789, ch. 20, § 29 : 1 Stat, at Large, 88. 614 Pbactice in Cbimistal Cases. PAST 4. county. But twelve of the petit jurors were directed to be drawn from that county, the court being of opinion that the act requiring this to be done was still obligatory, certainly so unless its observance was waived as well by the United States as by the accused.' But by a recent act this provision of the act of '89 is repealed." So much of it, however, as '^ requires the trial in capital cases to be held in the county where the oflfense was committed, where this can be done "without great inconvenience," is yet in force. But to render the enactment effective, it was necessary to confer the power of appointing special sessions of the circuit courts ; and this authority was accordingly given by an additional act passed March 2d, 1793, which was made to embrace criminal offenses of whatever grade. It empowers the supreme court if in session, or if not, any justice thereof together with the district judge, to order special sessions of the circuit court "for the trial of criminal causes at any convenient place within the district nearer to the place where the offense may be said to be committed, than the place or places appointed by law for the ordinary sessions.' •Burr's Trial, vol. 1,353. 5 Act of July 16, 1863, ch. 99, § 3 : 13 Stat, at Large, 589. 'Ch. 33, § 3 : 1 Stat, at Large, 834. The section proceeds to direct, that, upon the appointment of any such special session, " the clerk of ' such circuit court shall, at least thirty days before the commencement of such special session, cause the time and place of holding the same to be notified for at least three weeks successively, in one or more of the •newspapers published nearest to the. place where the session is to be holden. That all process, suits and recognizances of every kind, whether respecting jurors, witnesses, bail or otherwise, which relate to the cases to be tried at the said special sessions, shall be considered as belonging to such sessions,'in the same manner as if they had been issued or taken in reference thereto. That any special session may be adjourned to any time or times previous to the next stated meeting of the circuit court. That all business depending for trial at any special court shall at the close thereof be considered as of course removed to the next stated term of the circuit court." Peacxice in Cbiminal Oases. C15 The foregoing regulations respecting the place of chap. 4. trial all relate to offenses committed wiiliia the United States. But the jurisdiction of the national courts is not limited to such offenses ; and by a later act it is ordained that the trial of all offenses which shall have been committed on the high seas, or elsewhere out of the limits of any state or district, shall be in the district where the offender is apprehended, or into which he may be first brought. ' Indictments for all offenses against the United JnnBaic- " tion of States may be found indifferently either in the district ^"g^^'^j*"* or circuit court, and may, at the instance of the dis- ^°^e'nt'°S- trict attorney, by order of the court having posses- '^^p'- **=■ sion of them, to be entered on its minutes, be trans- mitted from the one court to the other for trial, except that all indictments for capital offenses, found in either court, are triable only in the circuit court, whither it is made the duty of the district court to send all such indictments found therein." "Whenever there are several charges against the same Joinder of person or persons for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses which may te properly joined, instead of having Beveral indictments, the whole may be joined in one indict- ment in separate counts ; and if two or more indictments shall be found in such cases, the court may order them con- Bohdated." Act of 16th Feb., 1853 ; see Appendix. Indictment necessary in all cases.] The 5th article of the amendment to the constitution declares that "no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or actual danger." 1 Act of March 3, 1835, ch. 65, § 1 : 4 Stat, at Large, 115. 'Act of August 8, 1846, ch. 98, §§3, 3 : 9 Stat, at Large, 73. 616 Peactice IK Cbiminal Cases. PAST i. This provision being in terms confined to capital or otherwise infamous crimes, it leaves to congress a discretionary power to provide some more simple mode of bringing minor ofienders to justice, as, for example, the legislature of the state of Kew York has done, although the state constitution contains a similar inhibition. But this power is limited by a further restriction imposed by the second section of the 3d article of the constitution, which ordains that "The trial of all crimes, except in cases of impeach- ment, shall be by jury," and congress has not seen fit to exercise it. Consequently no punishment can be inflicted by the civil judicial tribunals of the United States (unless the limited authority possessed by the courts to imprison for contempt is to be considered an exception), except through the intervention of a grand jury. state laws The Grand Jurv.] The mode of designating and adopted. o cj summonmg grand and petit jurors, their qualifica- tions, &c., have already been treated of in one of the earlier parts of this work, to which the reader is referred. In those states where, as in Kew York, grand jurors are designated by lot to serve in the state courts, the same mode of designation must be resorted to in the national courts. Upon this point he act of 1840 is explicit, and it expressly empowerst the court ' ' to make all necessary rules and regula- tions for conforming the designation and impannel- ing of juries to the laws and usages now in force " in the several states. Grand The rarity of criminal prosecutions in the courts tobejum-. of the United States, where it often happened that ^e'cuS' the attendance of a grand jury was but an idle order. Ceremony, owing to the limited criminal jurisdiction of these courts, a well guarded act of congress was at length passed, by which it was enacted — Pbactice in Ckimikal Oases. 617 " That no grand jury shall hereafter he summoned to chap. 4. attend any circuit or district court of the United States, unless the judge of such district court, or one of the judges of such circuit court, shall, in his own discretion, or upon the notification of the district attorney that such jury will be needed, order a venire to he issued thereon : Provided, that nothing herein shall prevent either of the said courts in turn from directing a grand jury to be summoned and impaneled, whenever, in its judgment, it may be proper to do so, and at such time as it may direct : And, provided further, that nothing herein shall operate to extend beyond what the law now permits, the imprisonment before indict- ment found of an individual accused of a crime or offense, or the time during which an individual thus accused may ' be held under recognizance before indictment formed." * It was held by tlie circtiit court, for the district of The right of ^ challeDgo. Virginia, that a person, under accusation, whose case is to be submitted to a grand jury, has the same right to challenge for cause, before the jurors are sworn, as he would have if about to be put upon his trial by a petit jury ; and it appearing that the marshal, after completing his panel of twenty -four jurors, and summoning them, upon ascertaining that two of the number would be unable to attend, summoned twQ other persons in their stead, he was held to have acted without legal authority. Having once chosen and summoned the full number, he became pro Jiac vice, functus officio. The two su- pernumeraries were accordingly set aside, and the deficiency was supplied from the bystanders.' In that case the persons to compose the jury had been selected ad libitum by the marshal. Had they been designated by lot, the objection would have been more forcible stUl, > Act of August 8, 1846, ch. 98 : 9 Stat, at Large, 73. «Burr'sTrial, vol. 1,31. 78 618 Practice in Criminal Cases. PAST 4. Special causes of challenge, new oatb. In the state of New York the grounds of chal- lenge (or objection, as it is denominated in the statute) are specified and fixed by law; and they are very limited, being, 1, that the juror objected to is the prosecutor, or complainant, upon any charge against the accused ; 2, that he is a witness on the part of the prosecution, and has been subpoenaed or been bound in a recognizance as such. Whether the act of July 20th, 1840, requiring that "jurors to serve in the courts of the United States, in each state respectively, shall have the like qualifications," &c., "as jurors of the highest court of law of such state," is to be considered as embracing this limita- tion, has not, to my knowledge, been decided. Doubtless congress had reference mainly to qualifi- cations of a more general nature, relating to citizen- ship, property, age, &c. But, considering the spirit and policy of the act, there is strong ground for holding the state law operative. Be this as it may, however, although 1;he ISTew York statute expressly forbids the allowance "of any other challenge to the array of grand jurors, or to any person sum- moned to serve as a grand juror," than those above specified, it can hardly be supposed that it was intended to exclude irregularities in the drawing and summoning of the persons composing the array. It is necessary now to bring into view the several acts of congress ; the first of which prescribes other causes of challenge and an additional oath. This act was the oflFspring of extraordinary circumstances existing at the date of its passage ; but will doubt- less remain to meet the possible exigencies of the future. It is too important to be omitted, and does not admit of analytical abbrevia,tion. It is as follows : Pbacticb IK Ceimikal Oases. 619 C^AB. 4. "An act defining additional causes of challenge, and pre- '~~' scribing an additional oath for grand and petit jurors in the United States courts. Be it enacted, That, in addition to the existing causes of disqualification and challenge of grand and petit jurors in,the courts of the TJnited States, the following are hereby declared and established, namely: without duress and coercion, to hare taken up arms, or to have joined any insurrection and rebellion, against the United States; to have adhered to any rebellion, giving it aid and comfort ; to have given, directly or indirectly, any assistance in money, arms, horses, clothes, or any thing whatever, to or for the use or benefit of any person or persons, whom the person giving such assistance knew to have joined, or to be about to join, any insurrection or rebellion ; or to have resisted, or to be about to resist, with force of arms, the execution of the laws of the United States, or whom he had good ground to believe had joined, or was about to join, any insurrection or rebellion ; or had resisted, or was about to resist, with force of arms, the execution of the laws of the United States ; or to have counseled or advised any person or persons to join any insurrection or rebellion; or to resist, with force of arms, the laws of the United States. " Sec. 2. And be it further enacted. That at each and every term of any court of the United States the district attorney, or other person acting for or on behalf of the United States in said court, may move, and the court, in their discretion, may require, the clerk to tender to each and every person who may be summoned to serve as a grand or petit juror, or venireman or talesman, in said court, the fol- lowing oath or affirmation, viz. : ' You do solemnly swear (or affirm, as the case may be) that you will support the constitu- tion of the United States of America; that you have not, without duress and constraint, taken up arms or joined any insurrection or rebellion against the United States ; that you have not adhered to any insurrection or rebellion, giving it aid or comfort; that you have not directly or indirectly given any assistance in money, or any other thing, to any 630 Pbactice isr Cbiminal Oases. PAST 4. person or persons wkom you knew, or had good ground to belieye, had joined, or was about to' join, said insurrection and rebellion, or had resisted, or was about to resist, with force of arms, the execution of the laws of the United States ; and that you have not counseled or advised any person or persons to join any- rebellion against, or to resist, with, force of arms, the laws of the United States.' Any person or per- sons declining to take such oath shall be discharged by the ' court from serving on the grand or petit jury, or venire, to which he may have been summoned. " Sec. 3. And he it further enacted, That each and every . person who shall take the oath herein prescribed, and who shall swear falsely as to any matter of fact embraced by it, shall be held to have committed the crime of perjury, and shall be subject to the pains and penalties declared against that crime." ' The first section of tlie act, it will be seen, merely superadds the specified causes of challenge to those already recognized by law, to be insisted on and proved, as in other cases, at the option of persons having the requisite personal interest to entitle them • to object. The purpose of the second section, investing the district attorney vdth discretionary authority to exact the specified oath, is apparently twofold : first, to secure impartiality on the part of the jurors in proceedings civil and criminal to which the United States are parties ; and, secondly, to enable this officer, as the official representative of the United States, on grounds of public policy, peremptorily to exclude from the national courts, as jurors, the specified classes of persons. The other act, above alluded to, is entitled "An act regulating proceedings in criminal cases, and for other purposes. ' ' The provisions of it requiring recital in this place are contained in the first section, ' Act of June 17. 1863, ch. 103 : 13 Stat, at Large, 430. Pbaoticb IK Criminal Cases. 621 and are also too multifarious and compact to admit c hap. 4. of advantageous abridgnient. They are as follows : "Be it enacted, &c. That every grand jury impaneled before any district or circuit court of tiie United States to inquire into, and presentment make of public offenses against the "United States, committed or triable within- the district for which the court is holden, shall consist of not less than sixteen and not exceeding twenty-three persons. If, of the persons summoned, less than sixteen attend, they shall be placed on the grand jury, and the court shall order the mar- shal to summon, either immediately or .for a day fixed, from the body of the district, and not from the bystanders, a sufScient number of persons to complete the grand jury. And whenever a challenge to an individual grand juror is allowed, and there are not other grand jurors in attendance sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a Sufficient number of persons for that purpose. No indictment shall be found, nor shall any presentment be made, without the concurrence of at least twelve grand jurors. From the persons sum- moned and accepted as grand jurors, the court shall appoint the foreman, who shall have power to administer oaths and affirmations to witnesses appearing before the grand jury." ' ToucMng the maximum and minimum number of jurors to be impaneled, and the minimum number whose concurrence is requisite, the act is only declar- atory of the common law. By an early statute of New York the foreman of a grand jury was empow- ered to administer oaths and affirmations to witnesses. He had no such power at common law, and conse- quently, until the passage of the above mentioned act, it was necessary in the courts of the United States, as in England, that witnesses summoned to -testify before a grand jury "should be sworn in open court. Evidence.] Though it was formerly held that the grand jury ought to find a* bill if probable evidence were adduced in support of it, because it is only an ' Act of March 3, 1863, oh. 86. 622 • Practice ik Okiminal Cases- PAET 4. accusation, against whicli the accused will afterward ' have an opportunity to defend himself, the just and true rule unquestionably is, that to warrant a grand jtiry in finding a bill, the evidence must be such as to convince them of the guilt of the accused. 1 Chit. Cr. Law, 318. With respect to the Mnd ojp evidence which a grand jury may receive, it is to be remarked that it should iji general be such only as is usually denominated legal evidence. It must in its nature be the best of which the case admits, and must be given on oath. A grand jury cannot, therefore, for example, receive in evidence the written examination of a witness in lieu of his parol testimony. A mere office copy of a written document cannot be received instead of the original. And evidence of what third persons have said is inadmissible. Id. In the case of The United States V. Ooolridge (2 Gallis., 364), a witness who professed to have conscientious scruples against taking an oath, but who was not a Quaker, was allowed by the grand jury to give his testimony as a witness;, without being sworn, and the indictment was quashed on this ground.' JRigM of the accused to process to compel the attendance of witnesses in his behalf .~\ By the act of April 30, 1790, it is enatjted that — " Every person or persons, accused or indicted of the crimes aforesaid, shall be allowed or admitted, in his defense, to make any proof that he or they can produce, by lawful witness or witnesses, and shall have the like process of the .court where he or they shall be tried, to compel his, her of their witnesses to appear at his or their trial, as is usually granted to compel witnesses to apjjear on the prosecution against them." " ' The motion to quash was fouifded on the aflSdavit of the witness himself to the fact of his not having been sworn-; hut the court required also the affidavit of the defendant of his belief of the fact. ' Ch. 9, § 29 : 1 Stat, at Large, 118. Pbacxice in Criminal Cases. 623 In tlie case of TJie United States v. Aaron Burr, c hap. 4. the question arose whether Burr, being then under recognizance to appear and answer to an indictment to be preferred against him for a misdemeanor, was entitled to the process of subpoena to summon wit- nesses, before indictment found, to testify in his behalf on the trial. The court decided that he was so entitled ; being of opinion that this right was secured in express terms, by the above cited section, to persons accused of capital offenses, and, upon general principles, the same rule should be applied to other cases. The following is the conclusion of the opinion of the court delivered by Chief Justice Maeshall upon this point : "Upon immemorial usage, then, and upon what is deemed a sound construction of the constitution and law of the land, the court is of the opinion, that any person charged with a crime in the courts of the United States has a right before, as well as after indictment, to the process of the court to compel the attendance of his witnesses. Much delay and much inconvenience may be avoided by this construc- tion ; no mischief which is perceived can be produced by it. The process would only issue when, according to the ordi- nary course of proceeding, the indictment would be tried at the term to which, the subpoena is made returnable; so that it becomes incumbent on the accused to be ready for his trial at that term." Burr's Trial, vol. 1, pp. 177-180.' ' The precise question before the ^eourt was, whether Colonel Burr was entitled to a subpoena ditcea tecum, directed to the president of the United States. It was objected by the attorney for the United States, first, that no subpoena could be issued in behalf of the accused before indictment found, and, secondly, that, no subpoena could properly be issued to the president at any time. The decision of the court upon the first objection is stated in the text ; and the second objection was also held to be groundless. But in Virginia the subpoena duce» tecum issues, not absolutely of course, butj with the leave of the court. This rule of practice the court thought proper to adopt in the case of Colonel Burr, especially as it was proposed to issue this process to the president, and therefore entertained the question of the materiality of the evidence sought. 624 Pbacxicb in Cbiminal Cases. PART 4. Process for the arrest of the dtfendant.'\ Unless the party mdicted is already in custody, or volun- tarily appears in pursuance of a recognizance pre- viously taken, process must issue for the purpose of bringing him into court, ia order to defend himself against the charge.' There are no special regulations prescribed by congress on this subject, but it wiU be useful, nevertheless, briefly to dwell upon it. The authority of the courts of the United States to issue process to bring a defendant into court upon an indictment may well be considered as a power incidental to their criminal jurisdiction ; or it may be considered as expressly conferred by the tour- ' teenth section of the judicial act of 1789, giving to these courts authority to issue writs necessary for the e:^ercise of their jurisdiction. At common law the usual process for this purpose is a writ of capias, or a bench warrant ; and either mode may doubtless be properly used by the courts of the United States. " The capias issues under the seal of the court, in the name of the president of the United States ; is tested when issued by a circuit court, in the name of the chief justice of the United States ; and is signed by the district attorney. It can be executed only within the district. If the defendant is elsewhere, he can be brought within the jurisdiction of the court only by the means already pointed out' for the removal of prisoners from one district to another. The usual practice in England "•For though (says Mr. Chitty) a bill may be prefeWedand found against a person in his absence, this being an ex pa/rte proceeding to which, if present, he could make no opposition, yet in general no indictment can be tried unless he personally appear; a provision founded on a principle of equity in all cases, and the express enact- ment of the statute 28 Edw. in, c. 3, in capital ones that no man shall e condemned without being brought to answer by-due process of law. ' ' In the cases growing out of Burr's expedition, the capias was con- sidered to be the proper process. Burr's Trial, vol. 1, 354, 'See, awte, 613. Peactice in Ceiminal Oases, '625 seems to be to make the process, wliether capias or chap. 4. bench warrant, returnable generally, at the next session of the court, without specifying the time. 4 Chit. Cr. Law, 198. And such a return is understood to mean the next session after the arrest, and not after the teste or date of the process ; and, therefore, the oflficer may justify an arrest after the next ensu- ing session ; though it is the practice to renew the process at every session, if not executed before. 1 Chit. Cr. Law, 342, 343. The more correct practice here undoubtedly is to make the process returnable on a day certain, either in the same or the next session. In England, when the party indicted is already under recognizance, no process can be had against him dxiring the session of the court, "because it is looked upon in law as one day, and the defendant has the whole to make his appearance," 1 Chit. Cr. Law, 342. "In such cases, however," adds Mr. Chitty, "the prosecutor may, if the defendant has not ap- peared, bespeak a bench warrant during the assizes or sessions, which will be issued at the close thereof. If the assizes or sessions are over, and no bench war- rant has been previously applied for, then a warrant from a single judge or justice of the peace may be obtained ; and in order to make the application effectual, it must be grounded upon the certificate of the clerk of assize or the clerk of the peace, that the indictment has been "found against the defendant, upon which the warrant will be granted, or under the before mentioned statutes may either be an affidavit or a certificate." Id. This distinction seems to savor more of technical nicety than of good sense. The sole object of the recognizance is to insure the pres- ence of the accused to answer to the indictment in the event of one being found against him, and such is the condition of the recognizance. The finding of 79 626 Peactice is Crimis-al Cases. PART 4. the bill of indictm|nt furnishes a new and powerful motive for escape ; and it appears to be unwarrant- able, as well as inconsistent, upon a mere fiction of law, thus to jeopard the claims of public justice, and the safety of the bail. The same principle, for aught that is perceived, would forbid the trial, com- mitment for want of sureties, or even the arraign- ment of a person under recognizance, against whom an indictment should be found, though he should be present in court, unless he should voluntarily offer himself for the purpose. No such fiction, it is believed, is recognized, in this respect, in the courts of the United States. In each of the New York dis- tricts there is an express rule of court authorizing the district attorney, "on an indictment found by a grand jury, forthvsdth to sue out a capias, under the seal of the court, for the arrest of the person indicted." IfoUe prosequi.'] The law of England, relative to the power to enter a nolle prosequi, is thus stated by Mr. Chitty [vol. 1, 478] : " During these various stages of the proceedings \i. e., at any time antecedent to the trial], a nolle prosequi may be entered by the attorney-general. The usual occasion of^ granting the stay of prosecution is, either, when in case of misdemeanor, a civil action is depending for the same cause, or any improper and vexatious attempts are made to oppress and injure the defendant, as by repeatedly preferring defect- ive indictments for the same supposed offense ; or, if it be clear that the indictment for a misdemeanor is not sustain- able against the defendant, as if a surgeon be indicted for refusing to be a constable.* It is supposed that the several district attorneys of the United States possess this power. Probably, before exercising it, they would, in general, con-' sider it advisable to state the circumstances of the case informally to the court, for the purpose of Eeactice m Criminal Cases. 637 obtaining its assent, tacit or express, to the pro- c hap. 4. priety of the step. Arraignment.'] By the 4th section of the act of March 3d, 1835, "in amendment of the acts for the punishment of offenses against the United States," it is enacted — " That, whenever any person is indicted for any offense against the United States, whether capital or otherwise, shall, upon his arraignment, stand mute, or will not plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto. And, when the party shall plead not guilty, or such plea shall be' entered as afore- said, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by jury. And, in all trials in capital cases, if the party indicted shall per- emptorily challenge above the number of jurors allowed by law, such excess of challenges shall be disallowed by the court, and the cause shall proceed for trial in the same manner as if challenges had not been made." ' To remedy an expensive abuse, it has been enacted Prisoner • that ' ' no writ shall be necessary to bring iato court brongM •' " into court any prisoner or person in custody, or for remanding landed by him from the court into custody ; but the same shall '^'^^• be done on the order of the court or district attor- ney, for which no fee shall be charged by the clerk or marshal." ° ' Ch. 40 : 4 Stat, at Large, 775. This section supersedes the provi- sions of the 30th section of the Crimes act of 1790, and those of the 14th section of the act of March 3d, 1835. ^ 'Act of February 16th, 1853, § 3 : Appendix. 628 , Practice in Ceimiital Cases. PART 4. CHAPTER V. TEIAL. Rights guaranteed to the accused. The sixth, article of the amendments to the constil- tntion, as already stated, secures to the accused "a right to a speedy and public trial." It entitles him also "to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtain- ing witnesses in his favor, and to have the assistance of counsel for his defense." The judiciary act of September 24, 1789 (ch. 19, sec. 29 : 1 Stat, at Large, 88), directs — " That in cases punishable with death, the trial shall be had in the county where the oflfense was committed, or, where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence.^ And jurors in all cases, to serve in the courts of the United States, shall be designated by lot or otherwise, in each state respectively, according to the mode of forming juries therein now practiced, so far as the laws of the secme shall, render such designation practicable by the courts or marshals of the United States; and the jurors shall have the same qualifications as are requisite for jurors by the laws of the state of which they are citizens, to serve in the highest courts of law in such state, and shall be returned, as there shall be occasion for themj from such parts of the district, from time to time, as the court shall direct, so as shall be more favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burden the citizens of any part of the district with such services." ' But by the act of July 17, 1862 (ch. 189 : 12 Stat, at Large, 589), so much of the foregoing section as, ' See, to the like effect, as to the qualifications and designation of juroM, the act of July 20, 1840, swpra, p. 433. Pbactice in Criminal Cases. 639 in cases ptmisliable with death, requires twelve petit c hap, s. jurors to be summoned from the county where the offense was committed, is repealed. Speedy trial.'] The spirit of this guaranty is easily discerned, and it was designed for practical effect. It enjoins upon the public prosecutor the duty of diligent preparation for the trial, and upon the courts the obligation to require the strict perform- ance of this duty. A failure to fulfill it entitles the accused to his discharge from further imprisonment, either absolutely or upon his own recognizance, or, if he has been admitted to baU, it entitles his sureties to a discharge from further responsibility. It is to be borne in mind, moreover, that this provision was intended for the benefit of the accused, and that it affords no warrant for compelling him to be brought to trial without an opportunity for due preparation.' Copy of the indictment, &c.] A person indicted for treason must have a copy of the indictment, and a list of the panel of petit jurors summoned, and of the witnesses to be produced on the trial to prove the indictment, stating their names and places of abode, delivered to him at least three entire days before the trial ; and, if indicted for any other capi- tal offenses, must have delivered to him such copy of the indictment and list of jurors, two entire days before the trial.' ' It is said to be the settled practice of the English courts, in cases of felony, to try the accused at the same session, and generally on the same day when the indictment is found against him and he is arraigned ; while ID, misdemeanors the practice is otherwise ; and when the defend- ant is not in actual custody, it is said the court has no power to compel him to take his trial at the same session at which he pleaded to the in- dictment. 1 Chit. Cr. Law, 483, 484. No such distinction, it is believed, has ever been made in the courts of this country. * Crimes act of April 30, 1790, ch. 9, § 29 : 1 Stat, at Large, 118. In England the right to have a copy of the indictment is limited to indict- ment for treason, but the time of its delivery, before trial, is longer. The statute (7 W, III, c. 3) gives five days, and the act was interpreted 630 Pkactice ibt Ceimibtal Cases. PAST 4 SigM of defense — Process for witnesses— Assign- ment of counsel.'] The sixth article of the amend- ment to the constitution further ordains, that the accused in all criminal prosecutions shall "have compulsory process for obtaining witnesses in his favor and the assistance of counsel for his defense." The crimes act of 1790, just above cited, contains like provisions in a more amplified form. It was passed, as we have seen, before the full ratification of the amendment, but not being inconsistent with it, the act was not repealed bj it. The 29th section of this act, in addition to the provisions already cited, directs ^ " That eyery person so accused and indicted for any of the crimes aforesaid shall also be allowed and admitted to make his full defense by counsel learned in the law ; and the court before whom such person shall be tried, or some judge thereof, shall, and they are hereby authorized and required immediately upon his request, to assign to such person such counsel, not exceeding two, as such person shall desire, to whom such counsel shall have free access at all reasonable hours; and every such person or. persons, accused or indicted of the crime aforesaid, shall be allowed and admitted in his said defense to make any proof that he or they can produce, by lawful witnesses, and shall have the like process of the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, to mean five days before the arraignment of the prisoner, for then is the time for him to take exception to it by way of a plea or a demurrer. 4 Bla. Com. 351. It was held, also, that the copy ought to include the caption of the indictment. The statute (7 Anne, c. 34) extends the time to ten days, and Requires also a list of jurors and witnesses to be delivered. Id., 353, note. There seems to be good sense, and no more than justice, in the liberal interpretation of the English acts by which the specified number of days is computed from the arraignment ; and the number of days prescribed in the American act seems insufficient, especially if, according to the decision of the late Judge Story, the word " trial" in this act is to receive a strict interpretation, limiting its meaning to a trial by jury. 4 Mason's Eep., 883. Peacticb in- Obimikal Cases. 631 as is usually granted to compel witnesses to appear on the c hap. 5. prosecution against them." This enactment, designed to secure important priv- ileges to the accused, which, are denied by the common law, it will be noticed, applies only to per- sons indicted for offenses comprised by the words * ' any of the crimes aforesaid. ' ' The section of which . it forms a part names only treason and other capital offenses. But the other sections of the act define all the offenses for the punishment of which it was then thought necessary to provide, and it may reasonably be presumed that the enactment was designed to embrace all the offenses defined and declared punish- able by the act. But the catalogue of offenses against the United States has, by subsequent laws, been con- siderably enlarged, and to these new offenses the provision in question is supposed not to extend. I am not aware, however, that any distinction has been made in any of the courts of the United States with respect to any -of the rights conferred on the accused by the act of 1790, between the offenses enu- merated in the act and those subsequently defined. And by a later act, the right to compulsory process for witnesses has been extended in favor of indigent persons. The provision is in the following words : "And he it further enacted, That whenever any indict- ment shall be pending in any court of the United States, and any defendant thereto shall make an affida,vit, setting forth that there are witnesses whose evidence is material to his defense, and that he cannot safely go to trial without them, what he expects to prove by each of them, that they are within the district in which the court is held, or within one hundred miles of the place of trial, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the court in term, or any judge thereof in vacation, may, if it appear proper to do so, order that such witnesses be subpoenaed, if found within the limits 632 Pbacticb in Ceiminal Oases. PART 4. aforesaid; and, in such case, the costs incurred by such process, and the fees of such witnesses, shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States." ' In requiring tlie payment by the United States of the fees of tlie witnesses, the act unquestionably extends to fees for attendance as well as for travel. Another early act directs, that "subpoenas for wit- nesses who may be required to attend a court of the United States in any district thereof may run into any other district, provided, that in civil causes, the witnesses living out of the district in which the court is holden do not live at a greater distance than one hundred miles from. the place of holding the court." ° The limitation imposed by this proviso, with respect to civU cases, the reader will have noticed, is adopted by the act of 1846, above recited, respecting witnesses subpoenaed in behalf of the defendant in virtue of that act. But, with this exception, the process of subpoena in crimiaal cases runs throughout the United States. The petit jury — BigMs of challenge.] Touching the qualifications of jurors, and the mode of desig- nating and summoning them, vide supra, 433." Until the passage of the act of March 3, 1865, ch. 86 (13 Stat, at Large, 500), the right of peremptory challenge in the courts of the United States remained insufficiently defined, as such of my readers as have had occasion to resort for information on the subject to antecedent editions of this work cannot have faUed to observe. This act limits and defines the rightxas follows : •Act of August 8, 1846, ch. 98, § 11 : 9 Stat, at Large, 74. ' Act of March 3, 1793, ch. 23, § 6 : 1 Stat, at Large, 335. ' The act of June 17, 1863, ch. 103, prescribing new causes of chal- lenge and requiring an additional oath, recited supra, 619, it will be Been, embraces petit as well as grand jurors. Peaotiob ih Obiminal Oases. 633 " Sec. 2. And, he it further enacted. That, when the offense chap. s. charged he treason or a capital offense,' the defendant shall be entitled to twenty and the United States to fire perempr tory challenges. On a trial for any other offense in which the right of peremptory challenge now exists the defendant shall be entitled to ten and the United States to two peremp- tory challenges. All challenges whether to the array or panel or to the individual juror for cause or favor shall be tried by the court without the aid of triers." Witli respect, then, to the right of peremptory challenge on a trial for treason or for any crime which, by the laws of the United States, the offender is subject, on conviction, to capital punishment, there is no longer room for doubt. But what are those "other" offenses on arraignment for which "the right of peremptory challenge now exists?" To what law is recourse to be had to ascertain those other offenses, if any such there are ? Certainly not to the laws of the state where the court is held. It must be then to the laws of England. The inquirer will accordingly be naturally led to search the com- mentaries of Sir William Blackstone. He will there find (book 4, pp. 353, 254) what will probably appear to him satisfactory evidence that the right is and has always been limited to cases ol felony : and on turn- ing to ch. Vn, p. 94, of the same book, for a defini- tion of felony, he will find an elaborate and, with all the characteristic perspicacity and precision of the author, somewhat perplexing disquisition on the subject, and the result I have little difficulty in pre- dicting wiU be a conviction that the right of peremp- tory challege in the courts of the United States is limited to treason and capital offenses, and that the enactment in question is accordingly nugatory. The stbolition of triers is undoubtedly an improvement. Ohallenge for cause.] Challenges, for cause, are either to the array ov to the polls ; and challenges 80 634 Peactioe isr Obimistal Cases. JAET4. of both, descriptions are either principal or to the favor. The act of June 17th, 1862, ch. 103. (13 Stat, at Large, 430), prescribing additional principal causes of challenge, has already been re-cited, supra, p. 619 ; and it is not conip9,tible with my design to enter at large into an examination of the various grounds of challenge depending on the common law. Relative to one of the causes of principal challenge, and that of more frequent occurrence than any other, a diversity of opinion lias prevailed in the American courts. I refer to a pre-conceived opinion supposed to have been formed by the juror relative to the merits of the case to be tried, adverse to the challenging party. On the trial of Col. Burr, in the progress 6f which every inch of ground admitting of debate was very earnestly and ably contested, Chief Justice Mab- SHALL declared the rule to be "that a man must not only have formed, but declared an opinion, in order to exclude him from serving on the jury." Burr's Trial, vol. 1, p. 44, and passim. But it has been held by the supreme court of the State of New York, that the formation of an opinion alone is a disqualification, and a principal cause of challenge. On a challenge to the favor, the challenged juror may be examined as to the matter of the challenge, provided it do not tend to his dishonor or discredit. 1 Archb. Pr., 185 ; 1 Cowen's Rep., 432. Separate trial.'] In the case of TJie United" States V. MarcTiant and Qolson (12 Wheat,, 480), whicli came before the supreme court on a certificate of division from the circuit court for the district of Massachusetts, it was decided that when two or more persons are charged in the same iudictment in a court of the United States with a capital offense, they have not, by law, a rigM to be tried sepa- rately, the United States, by their attorney, object- Pbactioe in Cbimikal Gases. 635 ing thereto ; but that the court has a discretionary c hap. 5. power to direct separate trials, not only at the request of the prisoners, but against their wishes. "It is," says the court, "a matter of sound discre- tion, to be exercised by the court, with all due regard and tenderness to prisoners, according to the known humanity of our jurisprudence." Where several are tried jointly, on the same indictment, each individual has a right to the full number of his challenges. But, in England, if they " refuse to join in their challenges, the practice is, on this ground alone, for the court to direct them to be tried separately, in order to prevent the delay which might arise from the whole panel being exhausted. See 1 Chit. Cr. Law, 535, and the authorities cited by him. This practice is commented on and explained by the court in the case of Mar chard and Golson, above cited, but I do not perceive, in the opinion of the court, any distinct recognition of it as applicable to proceedings in the courts of the United States. Bill of exceptions.] It is well settled, in England, that no bill of exceptions lies in capital cases, and, though the authorities are not all agreed upon this point in cases of misdemeanor, the better opinion seems to be that this remedy does not exist in any criminal case. There is no statute of the United States giving a writ of error to revise the judgments of the district and circuit courts in criminal cases, • and, consequently, no bill of exceptions can law- fully be allowed. It is only by means of a certifi- cate of disagreement in opinion upon a question of law between the judges of a circuit court, that a criminal case can be brought under the cognizance of supreme court. Ifeither a writ of error, nor a writ of prohibition, nor a certiorari will lie. Bx parte Gordon, 1 Black, 503. 636 Practice in Cbimijtal Cases. PAKT4. Province and power of the jury.} There is a familiar saying, that, in criminal cases, the jury are the judges of the law as well as of the fact Its freqtient repetition by lawyers, as well as by others, of itself furnishes evidence of its truth in some sense, while the fact that it has become the subject of earnest disputation in our courts, and that judges have expressed conflictiag opinions respecting its true signification, proves that it has been mis- understood. In the case of The United States v. Wilson and Porter, which was an indictment for robbing a mail carrier and putting his life in jeopardy, tried before the circuit court of the United States for the eastern district of Pennsylvania in 1832 (1 Baldw. Rep., 78), the court, in charging the jury, after stating at length the opinions entertained by the court on the various poiuts of law involved in the case, proceeded as follows : "We have thus stated to you the law of this case, under the solemn duties and obligations imposed on us, under the clear conviction, that, in doing so, we have presented to you the true test by which you will apply the evidence to the case ; but you will distinctly understand that you are thei judges both of the law and fact in a criminal case, and are not bound by the opinion of the coni-t ; you may judge for yourselves, and, if you should feel it your duty to differ from us, you must find your verdict accordingly." The court, however, thought proper, nevertheless, strongly to inculcate upon the jury the propriety of "taking the law as given by the court," instead of "making a rule of their own," and solemnly to admonish them, at any rate, not willfully to disre- gard the law, "because obedience to the law is as much the duty of a citizen in the jury box as out of it." The opinion of the court upon the law was unfavorable to the prisoner, and the opinion of the PeacTice iisr Criminal Oases. 637 jury being, it seems, in accordance witli that of tlie chap. 5. court, th.ey returned a verdict of guilty against Wilson, who was tried first, under an order of tlie court directing separate trials. Upon the trial of Porter, the other prisoner, whose case depended on the same q[uestions of law, his counsel, as appears by the report, availing themselves of the liberal doctrines laid down by the court relative to the right of juries, appealed from the court to the jury upon these questions of law, and the court, when it came to charge the jury, speaking of the course adopted by the counsel in this respect, distinctly admitted its propriety. "The .court," said the learned judge by whom the charge was delivered, "cannot but admire the efforts of intellect and eloquence made by the counsel for the prisoner. In going to the verge of their rights, in appealing from the court to the jury, they have acted in the strict line of their duty, from which they are under no obligation to depart." The court, however, thought it prudent not only to repeat and reinforce its cau- tions to the jury, not lightly to disregard the decis- ions of the court upon the law, but to enter into an argument to convince them of the soundness of these decisions. In 1833 an indictment came on for trial before the same court in the case of The United States v. Shine (1 Baldwin's Rep., 510), for passing a counter- feit note of the bank of the United States, in which one of the grounds of defense relied on by the coun- sel for the defendant, in his argument to the jury was the alleged unconstitutionality of the charter of the bank. The court, in its charge to the jury, without, however, repudiating the doctrine which it had laid down in the former case, told them very distinctly that the constitutionality of an act of con- gress which had been decided to be constitutional 638 Practice in Ceiminal Cases. PART 4. by the supreme court of the United States, was not a proper subject for their consideration, and labored with great earnestness to dissuade them from exer- cising the appellate power, which they had been urged by the defendant's counsel to assume. Upon this case I will only remark, that, after an attentive perusal of the argument of the court, I am obliged to confess my inability to discover any difference in principle between these two cases, with respect to the right of juries to judge of the law as well as the fact. The constitution itself is but a law, and the judgment of the supreme court of the United States but the opinion of judges. In the case of The United States v. Battiste (2 Sumner, 240), which was an indictment for a capital offense tried in 1835, Mr. Justice Stoey, in summing up the gase to the jury, took occasion to comment on the maxim in question, and to declare his opinion of it in the following terms : " Before I proceed to the merits of this case, I wish, to say a few words upon a point suggested by the argument of the learned counsel for the prisoner, upon which I have had a decided opinion during my whole professional life ; it is, that ■ in criminal cases, and especially in capital cases, the jury are the judges of the law as well as of the fact. My opinion is, that the jury are no more judges of the law in a capital or other criminal case, upon a plea of not guilty, than they are in every civil case tried upon the general issue. In each of these cases their verdict, when general, is necessarily compounded of law and fact, and includes both. In each they must necessarily decide the law as well as the fact. In each they have the physical power to disregard the law as laid down to them by the court, but I deny that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime that the jury should respond as to the facts, and the court as to the law. It is Practice ik CEiMiiirAL Oases. the duty of the court to instruct the jury as to the law, and c hap. 5. it is the duty of the jury to follow the law as laid down by the court. This is the right of every citizen, and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be the most uncertain, from the different views which different juries might take of it, but in case of error there would be no remedy or redress by the injured party, for the court would not have any right to review the law, as 'it had been settled by the jury. Every person accused as a criminal has a right to be tried according to the law of the land, and not by the law as a jury may understand it, or choose, from wantonness or ignorance or accidental mistake, to interpret it. If I thought that the jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial; but believing, as I do, that evBry citizen has the right to be tried by the law, and according to the law ; that it is his privilege and truest shield against oppression and wrong, I feel it my duty to state my views fully and openly on the present occasion." These views of tlie subject are at once so obvious and so forcible, as in reality to leave little room for doubt as to tbeir soundness. The consequences depicted by the learned judge as likely to result from the actual assumption by juries of the power of deciding the law independently of the court did not escape the acute minded judges of the circuit court of the United States for the eastern district of Pennsylvania, before whom the above cited case of The United States v. Wilson and Potter was tried, and they strongly pressed them upon the attention of the jury, for the purpose of dissuading them from the exercise of their acknowledged right to overrule the court. Is it not a little remarkable that whUe thus employed the judges did not themselves become 640 Practice ik Ceiminai Cases. PAHT4. convinced of the legal fallacy, as as well as the absurdity of the dogma they were laboring to counteract ? The much abused maxim in question is, neverthe- less, true in its proper sense. The jurors are the sole judges of the applicability of the law under which the accused is arraigned, as laid down to them by the court, to the facts, as they appear from the evidence in the case. It is the duty of the court to inform the jury in what the offense in question consists ; and of the jury to determine whether it has been proved. In the faithful performance of this important, responsible and often difficult office, the whole duty of jurors consists, and no enlightened and honest juror will desire to transcend it. To pronounce what the law is, with all its pertinent limitations, qualifications and exceptions, is the exclusive province of the court. There is no difficulty in accounting at once for the origin and popular perversion of this rule. It is a corollary from a human axiom of the common law, invented to mitigate the horrors of a bloody code, by which, among the variety of actions wliich men are daUy liable to commit, no less than one hundred and sixty were declared to be worthy of instant death.' Under such a code, it is no wonder that juries sometimes yielded to the claims of humanity rather than the demands of the law, and that judges were little disposed to interfere with their decisions. Hence the adoption of the maxim that no man shall he twice put in jeopardy of life or limb for the same offense; or, in other words, that a verdict of acqtiittal, after a regular trial on a good indictment, should be deemed final and conclusive in favor of the accused, whatever might in reality be the law or :the facts of the case ; and hence arose the adage, in i^See4Bla. Com., 18. Peactice in Cbimikal Oases. 641 its popular and perverted sense, tliat the jury are c hap, e. the judges of the law as well as of the fact. Along with the great principle from which it was deduced, it was brought by our ancestors as a part of the common law to this country, and has been adhered to as, in its just sense, it is to be hoped it always will be, under our milder codes. But it never was true in England in the sense ascribed to it ta the case of Wilson and Porter, and it is essential alike to the security of the innocent against unjust con- demnation, and of the community against the escape of the guilty, that the interpretation there given to . it should be repudiated as false and mischievous.' CHAPTEE VI. NEW TRIAL. In the case of The United States v. Gilbert and others (3 Sumner, 19), which was an indictment for piracy, the question arose, and was very elaborately discussed both at the bar and by the court, whether, in a capital case, after a regular conviction, upon a sufficient indictment, a court of the United States has authority to grant a new trial. The question was supposed to depend on the true interpretation of that provision of the constitution of the United States (which is but a constitutional recognition of an old and well established maxim of the common law), that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. No doubt was entertaiued, that, had there been a verdict of acquittal, this constitutional inhibition ' The doctrine held by Mr. Justice Stokt, in the case of The United States y. Battiste, has since been emphatically reasserted in a well con- sidered and very able opinion by Mr. Justice Curtis. It is known to the author moreover, that the same opinion was entertained also, with undoubting confidence, by Mr. Justice Thompson. 81 642 Pbacticb in Obimin-al Oases. PAET4. would have afforded a complete protection to the prisoners against a new trial. The question consid- ered and decided was, whether it extended also to cases of conviction. Mr. Justice Stort maintained that it did, and the motion was denied. His honor, Judge Davis, was of the opposite opinion. The argument of Mr. Justice Stoet evinces great learn- ing and deep research, and seems fully to sustain his conclusion that the power in question is never exercised, and is understood not to exist in the English courts. The settled law of England appears . to be, as stated by Mr. Chitty (1 Chit. Cr. Law, 654), that in cases of felony or treason no new trial can in any case be granted ; the only remedy which remains to the defendant in case of his conviction being, that, if the conviction appear to the judge to be improper, he may respite the execution to enable the convict to apply for a pardon. The decisions of the Amer- ican courts seem to have generally been adverse to this doctrine. With regard to the decisions of the supreme court of New York, I doubt whether they warrant the impression of Mr. Justice Stokt that they support the doctrine he maintains. The case of Comstock (8 Wend., 549) was an application in behalf of the people for a new trial, for the alleged misdirection of the judge, after a verdict of acquittal on an indictment for grand larceny, and was in truth too clear for argument. The court, in delivering their opinion, content themselves with briefly quot- ing the English doctrine above mentioned, as sum- marily stated by Mr. Chitty, and deny the motion. But in the case of TTie People v. Stone (5 Wend., 39), the court, after quoting the English rule that a new trial can never be granted in cases of felony or treason, proceed to denounce it in very strong terms as tyrannical and unjust; and then add that this rule "has never been countenanced by our courts, Pbaoticb in Obimikal Cases. 643 and would never be tolerated by our people." Per- c hap, e. haps it is to the habit of considering the subject independently of the constitutional inhibition, that is to be ascribed in- some degree the general preva- lence in this country of an impression in favor of the existence of the power in question. The common law maxim which this inhibition embodies, like other humane maxims of the common law, doubtless had its origin, as already observed, in the more hu- mane spirit awakened by advancing civilization, and shocked by the terrible severity of the ancient penal code of England. It has generally been regarded, therefore, as having reference exclusively to the security of the accused ; and viewing it under this aspect, the mind does not easily reconcile itself to the notion that its spirit would be violated by grant- ing to a man already convicted, and at his request, another chance for his life. The question whether, when, in a capital case, the jury have been discharged by the court from neces- sity, before verdict, the accused can be again put upon his trial, has been differently decided by the courts of the several states.' But the question may be considered as put at rest in the courts of the United States by the decision. of the supreme court in the case of The United States v. Perez (9 Wheat., 579), in which it was decided that courts have a dis- cretionary power, even in capital cases (to be exer- cised, however, with great caution and reserve), to discharge the jury from giving a verdict, and that the prisoner may be tried again for the same offense after the exercise of the power. > See the case of Tile United States v. OObert et al. (3 Sumner's Rep., 19), where the cases on this point are collected and commented by Mr. Justice- Stob-y. 644 Peactice in Ceiminal Cases. PART 4. CHAPTER, VII. JUDGMENT AND EXECUTION. Attainder.] By section 3 of article 3 of tlie con- stitution of the United States, it is declared that "the congress shall have, power to declare the pun- ishment of treason ; but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted." By the crimes act of April 30, 1790, it is declared, "that no conviction or judgment for any of the offenses aforesaid [one of which is treason] shaU. work corruption of blood, or any forfeiture of estate."' Benefit of clergy. \ By the thirtieth section of the same act it is enacted ' ' that the benefit of clergy shall not be used or allowed, upon conviction of any crime, for which, by any statute of the United States, the punishment is or shall be declared to be death." ^Punishment of death, how inflicted, <&c.J By sec- tion thirty-second of the same act it is provided, "that the manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck untU dead." The fourth section of the same act prqvides — " That the court before whom any person shall be con- Ticted of the crime of murder, for which he or she shall be sentenced to suffer death, may, at their discretion, add to the judgment, that the body of such offender shall be delivered to a surgeon, for dissection; and the marshal, who is to cause such sentence to be executed, shall accordingly deliver the body of such offender, after execution done, to such surgeon as the court shall direct, for the purpose afore- said; Provided, That such surgeon, or some other person by him appointed for the purpose, shall attend to receive and ' Ch. 9, § 24 : 1 Stat, at Large, 112. Practice in Ceiminal Oases. take away tlie dead body at the time of the execution of chap. 7. such offender." The nexi) section inflicts a fine of one hundred dol- lars and imprisonment for a term not exceeding twelve months, for rescuing or attempting to rescue the body during its conveyance to the place of dis- section, or from the house of the surgeon. An act passed March 3, 1869, ch. 142 (15 Stat, at Large, 338), prescribes the requisite proceedings to insure the delay of execution of a judgment of con- demnation in a capital case carried for review to the supreme court of the United States. Whipping — Pillory. \ By the act of February 28, 1839, it is enacted, "that the punishment of whip- ping and the punishment of stranding in the pillory, so far as they now are provided for by the laws of the United States, be and the same are hereby abolished.'" Tlace of imprisonment.'] By the act of March 3, 1825, it is enacted — " That in every case where any criminal convicted of any offense against the United States shall be sentenced to imprisonment and confined to hard labor, it shall be lawful for the court by which the sentence is passed, to order the 6g.me to be executed in any state prison, or penitentiary, within the district where such court is* holden ; the use of ^ which prison or penitentiary may be allowed or granted by the legislature of such state for such purposes; and the expenses attendant upon the execution of such sentence, shall be paid by the United States."' And by the act of March 3d, 1835, it is provided — "That whenever any person shall be conyicted of any offense against the United States which is punishable by fine and imprisonment, or by either, it shall be lawful for the ' Ch. 36, § 5 : 5 Stat, at Large, 331. « Ch. 65, § 15 : 4 Stat, at Large, 115. 646 PKACTI033 IN Orimikal Oases. PART 4. court by whicli the sentence is passed, to order the sentence to be executed in any house of correction, or house of reformation for juvenile delinquents, within the state or district where such court is holden, the use of which shall be allowed and authorized by the legislature of the state for such purpose. And the expense attendant on the execution of such sentence shall be paid by the United States.'" Vide, supra, p. 201, " Jails." Imprisoned convicts how to be treated.'] By the act of June 30, 1834, it is enacted — " That whenever any criminal convicted of any oflfense against the United States shall be imprisoned in pursuance of such conviction, and of the sentence thereupon, in the prison or penitentiary of any state or territory, such criminal shall in all respects be subject to the same discipline and treatment as convicts sentenced by the courts of the state or territory in which such prison or penitentiary is situated ; and while confined therein shall be also exclusively under the control of the officers having charge of the same, under the laws of said state or territory." ' 'Ch.40,§5: id., 775. »Ch. 163: 4 Stat, at Large, 739. PART Y. PRACTICE OF THE SUPEEME AND CIRCUIT COURTS OF THE UNITED STATES IN" THE EXERCISE OF THEIR APPELLATE JURISDIC- TION BY WRIT OF ERROR;. AND OF THE SUPREME COURT UPON CERTIFICATE OF DISAGREEMENT OF OPINION BETWEEN THE JUDGES OF THE CIRCUIT COURTS. CHAPTER I. or THE EEMEDY BY WEIT OF EKEOE GENEEALLY, AND EOE WHAT EEEOES IT WILL LIE. Mticli that would otherwise properly find a place here, has already been said in defining the limits of the appellate jurisdiction of the|supreme court and of the circuit courts of the United States. We have seen that the supreme court is empowered, by writ of error in suits at law, and by appeal in suits in equity and in admiralty, to revise the final judg- ments and decrees of the circuit courts, and of the supreme courts of the territories ; and by writ of error, the decisions of the highest courts of the several states, in suits both at law and in equity, in certain cases of rare occurrence, specified in the 26th section of the judicial act of 1789 ; and that the circuit courts are invested with appellate jurisdic- tion over the final judgments of the district courts, by writ of error in suits at law, and by appeal in causes of admiralty jurisdiction. We have seen, 648 Peacticb on" Weits of Eebok. PART B. also, what judgments are to be deemed final, these alone being subject to revisions by writ of error ; when the amount in controversy may be said to exceed $2,000, so as to bring the case within the appellate jurisdiction of the supreme court, — and $50, so as to fall within that of the circuit court, and how this must be made to appear in cases demand- ing it ; to what cases this jurisdiction extends, inde- pendently of the sum in dispute ; what is a suit within the purview of the 25th section of the judi- ciary act ; what shall be held to be one of those cases arising under the constitution, laws or treaties of the United States, described in that section, of which the supreme court, in virtue of it, may take cognizance, and by what evidence the required con- dition must be shown ; in short, whatever concerns the nature and general scope of the appellate juris- diction, as defined by statute, has already been shown in the first part of this work, and chiefly in the 2d chapter. There are, however, some restrictions to which this jurisdiction is, by the judiciary act, subjected, not yet mentioned, and which it is therefore proper here Plea In to notice. The 22d section forbids the reversal of any judgment for error in ruling any plea in abate- ment, other than to the jurisdiction of the court ; or for error in fact.' And the 32d section of the same ' Neither does a writ of error lie to the exchequer chamber or house of lords in England, for errSr in fact. 1 Archb. Pr., 213. But for an error of this description, as where the party, being under age, appears by attorney, or was a married woman at the commencement of the suit, a writ of error lies in the same court. Its use is not to correct errors of judgment, but to enable the court to rectify errors which preceded the judgment. In Picket's Jieirs v. Legerwood (7 Peters, 144), it is said to be resorted to for this purpose in some of the states, and in that case it had been adopted by the circuit court of the United States, and resulted in the allowance of an amendment of the declaration, of vital import- ance, in an action of ejectment: The court held that a writ of error would not lie for the re'Cxamination of sach a judgment. This form Peactice oiT Writs of Eebor. 649 act forbids tlie reversal of any judgment "for any chap. i. defect or want of form, but the courts shall proceed NoT^rsai to give judgment according as the rigM of the case form!^'""" and matter of law shall appear to them, except in these cases only in which advantage shall be taken of ■such defect and want of form by special demurrer."* It may then in general be said that a writ of error can be maintained in the courts of the United States only, for some error in law in matter of ^substance. These errors are either apparent upon the face of the record, or verified by certiorari, upon an allegation of d imi nution ; or, as most frequently happens, are presented by a bUl of exceptions accompanying the record. But a writ of error lies also upon a judg- JErroriies ment of a circuit court, rendered upon a statement ment oi" of facts agreed upon for that purpose without a *g™«*- jury, and incorporated in the record returned to the supreme court. The United States v. Eliason, 16 Peters, 291 ; Stimpson v. The Bait. & Susq. B. B. Co., 10 Howard, 329, 345. The propriety of this practice was carefully reconsidered and discussed in the latter case, and was unanimously reafiirmed. In the previous case of Keene v. Whittaker (13 Peters, 459), a writ of error upon such a judgment was dis- missed ; but the report is very brief, and does not clearly show the ground of the decision. No reason is perceived why this practice should not be held to be admissible on error from the district to the circuit courts. A writ of error also lies to re-examine a judgment Ana on on a special verdict ; but not for the re-examination verdict. of eiuestions not otherwise presented than by a statement signed by one of the judges of the cir- cuit court, purporting to contain a history of the of remedy, it was said, lias long been superseded in England, and, it is supposed, in most of the states of the Union, by summary application to the court on motion. ! Act of Sept. 34, ch. 20: 1 Stat, at Large, 73. ^2 650 Peactice ok Weits of Eeeob. PART 5. trial; but being neither a bill of exceptions nor st special verdict. Buydam v. Williamson et al. 20 Howard, 427. The statement in this case contained a recital of the evidence given on both sides, and of further evidence offered by the plaintiffs, which was objected to by the defendant, and overruled by the court ; to which decision, it was stated, the plaint- tiffs' counsel excepted. The paper concluded as follows: "A verdict was then,, by direction of the court, taken for the plaintiffs for the premises claimed, subject to the opiuion of the court, upon the question of law, with liberty to either party to turn the case into a special verdict or bill of excep- tions." The action was ejectment. After advise- ment, the circuit court gaye judgment for the plaintiffs in conformity with the verdict. No error appearing independently of the statement, the supreme court affirmed the judgment. Mr. Justice Cliffoed, in pronouncing the judgment of the court, gives an elaborate and instructive exposition of the principles and rules pertinent to the case, regulating the practice of the court. In the application of the general rule above stated, as to what constitutes error for which a writ of error will lie, numerous decisions have been made by the supreme court. But, with the excep- tion of such as relate to the amount in controversy, most of which have already been noticed in the first part of this work, generally speaking, they are, or at least were intended to be, in conformity with the rules and principles of the common law ; there being little in the acts of congress rendering these rules and principles inapplicable. The following enumeration of points decided by the supreme court will, nevertheless, be found useful. No one but a party to the record of the judgment is entitled to sue out a writ of error for its revision. Pbactice on Writs of Beeoe. 651 Payne v. Niles (20 Howard, 219), and all the joint chap, i. parties in the court below must join in a writ of error. Wilson^ s Heirs v. The N. T. Life and Fire IriiS. Go., 12 Peters, 140. A writ of error wUl lie upon tlie ground of want of ^^^en^* jurisdiction in the court below, and that, even at fnorwiu the suit of the plaintiflF below. Gapron v. Van Noor- den, 2 Cranch, 126. When the question upon the writ of error arises upon an exception to the decision of the court below upon the admissibility of testi- mony, the party excepting will, it seems, be confined to the specific ground of objection urged at the trial ; and where the purpose for which the evidence is offered is specifically avowed, the court will not look at it in any other point of view, or inquire whether it might not be proper for some other purpose. Hindis Lessee v. LongwortJi, 11 Wheat., 199, 209. Error will not lie to review the decision of a circuit court allowing a new count to be filed in an action of ejectment, alleging a new demise by a lessor not named in the original counts, nor its refusal to allow - costs on leave to amend. Wright v. HollingsworW s Lessee, 1 Peters, 165. The court will not decide questions hot raised by the record, though both par- ties desire it. Bradstreet v. Potter, 16 Peters, 317. On a Writ of error the whole record is to be inspected ; .and if there is a demurrer to evidence, not this • merely, but the declaration must be examined. BanTc of the United States v. Smith, 11 Wheat., 171. The decision of the circuit court overruling a motion to quash an attachment cannot be re-examined on writ of error. Toland v. Sprague, 12 Peters, 300. The question whether there was any evidence to be sub- mitted to a jury cannot be entertained on a writ of error, unless a decision thereon was prayed for in the court below, and an exception regularly taken. Garrard v, Reynolds' Lessee, 4 Howard, 128. The 662 Peactiob ok-Weits os Error. PART 8. court, on a writ of error, can revise evidence only to ascertain its competency in point of law, as tending to prove the fact it was offered to establish. Whether or not the jury drew a correct inference from it, can- not .be considered. Hepburn v. Dubois^ 12 Peters, 345. If, in the progress of the trial of a suit in Lou- isiana, a party has, in fact, had the fall benefit of a peremptory exception, its disallowance, when first oflered, is not a ground of reversal. Phillips v. Pres- ton, 5 Howard, 278. An exception which, in the course of the trial, became wholly immaterial, can- not be assigned for error. PMladelpMa, Wilmington and Baltimore Railroad Company v. Howard, 13 Howard, 307. The departure of the jury from the instructions of the court cannot be corrected on a writ of error. OhesapeaTce and OMo Canal Company V. Knapp, 9 Peters, 641. The provision contained in the 17th section of the patent act off July 4, 1836 (6 Stat, at Large, 124), for the allowance of writs of error and appeals "in all other cases in which the court shall deem it reasonable to allow the same," does not include a suit in equity to set aside an assignment of a patent right. Wilson v. Sanford, 10 Howard, 99. Final process is not a fit subject for a writ of error. Amis v. Smith, 16 Peters, 303. For the correction of an erroneous proceeding under a mandate from the supreme court, a writ of error is the proper remedy. Martin v. Hunter'' s Lessee, 1 Wheat., 304. A writ of error will not, in general, lie for an alleged error in deciding upon an application addressed to the discretion of the court ; and therefore the grant or denial of a new trial is not a ground for a writ of error. Hardenon v. Moore, 7 Cranch, 11 ; Barr v. Grantz's Heirs, 4 Wheat., 213; Blunt' s Lessee v. Smith, 7 Wheat., 248. Nor a refusal to reinstate a cause on motion after dismissal. Welch v. Mandeville, 7 Practice ok Writs of Error. 653 Crancli, 162. Nor the denial of a motion to compel ohap/i. a party to join ia a demurrer to evidence. Young et al. V. Black, 7 Crancli, 565. Nor to reverse a de- cision upon an application to amend. Walden v. Creiff, 9 Wheat., 576 ; OMrocv. Reiniher, 11 Wheat., 280 ; 6 Cranch, 206 ; 1 Mason, 163. Nor for an alleged error in continuing or refusing to continue a cause. Marine Insurance Company of Alexandria v. Hodgson, 6 Cranch, 206 ; Barrow v. Hill, 13 How- ard, 54.' Nor on a judgment of nonsuit voluntarily submitted to by the plaintiff ; but upon a peremptory judgment of nonsuit, granted at the instance of the defendant, and against the will of the plaintiff, a writ of error lies ; the courts of the United States having no authority to order such a nonsuit. Evans v. PJiillips, 4 Wheat., 73 ; supra, p. 449. And so, upon a judgment awarding a peremptory mandamus. Col- umbian Insurance Company v. WTieeltorigM, 7 Wheat., 534. The issue of nul Mel record being an issue of fact, though triable by the court, no writ of error lies to a judgment thereon. 2 Mason, 22. Nor will a writ of error lie merely to review a question of costs. 8%zer v. Many, 16 Howard, 98. After a case has been decided by the supreme court on a writ of error and a mandate issued to the court below, if a second writ of error be sued out, it brings up for review nothing but the proceedings subsequent to the mandate, Boherts v. Cooper, 20 Howard, 367. The act of May 31, 1844, ch. 31 (6 Stat, at Large, 658), authorizing a writ of error m revenue cases without regard to the amount in controvesy, does not include a suit brought against a collector to recover duties paid under protest ; and accordingly, where the judgment was for a sum not exceeding $2,000, ' In this latter case ten per cent damages was awarded on the ground that the writ of error was sued out merely for the purpose of delay. 654 Peacticb oir "Writs of Error. PAETB. the "writ of error was dismissed for want of jurisdic- tion. Mason v. Garrible, 21 Howard, 390. When on appeal or writ of error the cause appears to have been brought before the court by collusion between the parties, in order to obtain a decision for extraneous purposes, it will be dismissed with costs upon the application of third persons whose interests would be affected by the decision. Such proceed- ings are regarded by the court as contemptuous and highly reprehensible. Lord v. Yeazie, 8 Howard, 254 ; Cleveland v. Chamberlain, 1 Black, 419. A motion for a new trial is not a waiver of the right to bring a writ of error. In some of the circuits there is a rule giving to it this effect, but a compliance with it can be enforced only by requiring the party to waive his right on the record, as the condition on which his motion for a new trial shall be heard. United States v. Hodge, 6 Howard, 279. Want of jurisdiction and irregularity of the writ are the only grounds for dismissal. The court will not entertain a motion to dismiss or quash the writ on the ground that no error appears on the face of the record. That is a question to be determined on the regular final hearing. HecTcer v. Fowler, 1 Black, 95. And after a cause has been dismissed on motion for , want of jurisdiction, because it did not appear that the value of the property in question exceeded two thousand dollars, a motion to reinstate the cause on affidavits of value cannot be entertained. SicTimond V. TJie city of Milwaukee etal., 21 Howard, 391. When a writ of error in a suit at common law has been dismissed because it appeared, by the transcript that there was no final judgment in the court below, a motion at the next term, to reinstate the cause, founded on an amended transcript and the certificate of the clerk of the court below, showing that the judgment was final, cannot be entertained. The Practice ok "Writs of Error. 655 writ of error becomes functus officio, and tlie decis- c hap, i. ion of tlie court final at the close of the first term. Rice V. TJie Minnesota and N. W. M. R. Co., 21 Howard, 82. If more than the recinisite sum is claimed in the quod damnum, and there is a general verdict for the defendant, the plaintiff may have a writ of error, though the bill of exceptions relates to items of less amount than such requisite sum. The United States V. W Daniel, 6 Peters, 634.' ' A large portion of the questions decided in the cases cited in the text seem too plain for doubt, and yet many of them, at a large expense to the parties, have had to be decided over and over again, some of them in additional cases not cited. The multiplication of reported decisions seems not to diminish the evil. I would f^^in hope, that, by bringing so large a number of adjudications together mthin a space so limited, I may contribute somewhat to guard my professional brethren against the bewildering illusions that seem so easUy to beset them, as soon as they leave the familiar precincts of the state tribunals, and tread the terra incognita, of the national courts. The foregoing part of this note was contained in the fourth edition. While the present editiflh is passing through the press, my attention has been called to a new work on th-e jurisdiction and practice of the courts of the United States. The first volume, of more than six hun- dred pages, being completed, I have been furnished with a copy of it. The preface thus begins : " The great majority of legal practitioners throughout the United States make the commencement of their pro- fessional employment in the state courts. They study attentively *»«*«*_ But, to many, the'peculiar [sphere of the United States courts remains for years a twra incognita, and when they are called upon at length, in special cases, to advise upon or prosecute causes in which a resort to the national tribunals is desirable, they feel an uncertainty and iindeflniteness in theirjknowledge of this new field." It seems due to the authors of this new work to assurie the learned reader that, so far as I have discovered, in turning over many of the leaves of this first volume, it contains no direct evidence that the authors ever saw this treatise, and that the above quoted passage oughfo accordingly, to be regarded as one of those remarkable coincidences which sometimes surprise us in our journey through life. It is worthy of transcription, moreover, as an " elegant extract ;" though it hardly rises to the dignity of one of the " (jirioBities of literature." Peaotiob on "Weits of Bkeoe. PART 5. CHAPTER II. OF THE FOEM OF THE WEIT, WITHIN WHAT TIME IT MUST BE BROUGHT, AND ITS OPEEATION AS A SUPEESEDEAS. Style of The writ of error, like all other writs from the courts of the United States, runs in the name of Whence it the President. It issues from the appellate court, whether the supreme court or a circuit court. But, in order to avoid the inconvenience of obliging suit- ors throughout the union to apply to the clerk of the supreme court for the writ, this officer was, by an early act, which will be more particularly notiped in the sequel, directed to transmit to the clerks of the several circuit courts, the form of a writ of error from the supreme court, and these clerks were empowered to seal, sign and issue this writ for use within their respective districts. From them, there- fore, the writ is generally if not uniformly obtained. Need not As the Supreme court- has been called upon to be allowed. -, ,■, -,-, „ decide the question whether an allowance of a writ of error is necessary, it is not amiss to say that this formality is not required. It is sufficient to issue it and file it in the office of the clerk of the court to which it is directed. Damdson v. Lanier, 4 Wal- lace, 447. To what The reader will not require to be told that the writ directed, ghould Ordinarily be directed to the court whose judgment is to be reviewed. But although, the appellate jurisdiction of the supreme court over the final judgments and decrees of a state court is limited to those of the highest court in which a decision could be had, yet, if the record has been remitted by such court to another court, the writ may be directed to the latter, and the record be brought thence. Qelston et al. v. Hoyt, 3 Wheat., 246. Peactice on Weits of Eeeoe. 657 The writ, whetlier issuing from tlie supreme chap. 2. court or from a circuit court, and to whatever court Teat and directed, must be tested in the name of the chief '*'"''■ justice, or (if that office be vacant) in the name of the justice next in precedence ; but with respect to the test and return days there is no statutable regu- lation ; nor, as to the test day, is there, to my T*t aa?. knowledge, any judicial decision establishing any rule more definite than this : that it must be some day in term. When issued in vacation it may, I inyaca presume, be tested of any day in the last preceding term; but, as the first day is fixed by law, and known, it is best to test it on that day ; and when in term. issued in term, it ought doubtless to be tested on the first day of that term. With respect, however, to the return day, the Eeturnday. supreme court has at length laid down a definite rule to be observed in all cases. It is not in conflict with any express prior decisions of the court, but in the later decisions to which allusion is here made' it is for the first time declared to be absolute and universal. The rule is this : that on whatever day the writ is in aii cases issued, it shall be made returnable on the jirst aayofthe nezt term. day of the next ensuing term. The Insurance Cottit pany of the Valley of Virginia v. Mordeeai, 21 Howard, 195; Porter v. Foley, id., 393. In the first of these cases the writ was issued on the 18th of October, 1858, and was made returnable on the sec- ond Monday of January, instead of the first Monday of December, then next ; and the day specified in the citation for the appearance of the defendant in error was the same. On motion in behalf of the Eeaeonof defendant in error to dismiss the cause for this rea- son, the court held the writ void, and dismissed it for want of jurisdiction ; founding its decision upon the process act of May 8, 1793 (1 Stat, at Large, 278), by the 9th section of which the clerk of the supreme 83 658 Peactice oij- Weits of Eeeoe. PAET 5. court was required to transmit to the clerks of the several circuit courts, for use in their respective dis- tricts, the form of a writ of error to be approved by two of the judges of that court, which was accord- ingly done, and the first day of the term (next ensu- ing) was made the return day of the writ. The legal return day was held to have been thus fixed under the authority of the act. The reason assigned for the decision, it will be seen, admits of no exceptions to the rule. When the judgment happens to be rendered so shortly before the first day of the term as to render it diflB.cult or impossible to sue out the writ and serve the citation before the return day, it would doubtless be convenient to the party deeming himself aggrieved to be permitted to make his writ returnable on a later day of the term.' But on the oth,er hand, to say nothing of the legal difficulty supposed to be in the way of such a modification of the rule, there are grave objections to it. It would introduce a new element of controversy. How short a time before the term must the judgment be rendered to warrant this departure from the general rule? In strict justice this ought to depend on the particu- lar circumstances attending each case, and the court would be called upon to weigh these circumstances and to conform its decision to them^ The duration of the term, moreover, is uncertain, and the return day selected might happen to be after its termination, and the writ be thus rendered nugatory. In the second of the above cited cases, the writ of error (to revise the judgment of a state court) was issued on ■This would be in accordance with the direction given by Judge Curtis, in his summary directions for suing out writs of error in the appendix to his Digest, and according also to my own prepossessions. The attention of the court was distinctly called to these directions by Mr. Robinson, in opposition to the motion to dismiss the cause ; but, as already stated, such an exception would have been inconsistent with the ground on which the decision was placed. Practice on Writs of Error. 659 the 27tli of December, and made returnable on the c hap, a. 3d Monday of January next ensuing. It was dis- missed on motion ; the court merely referring, briefly, to its decision in the above mentioned case of The Insurance Company of the Valley of Virginia v. Mordecai, as settling the law upon the subject, and conclusive with respect to the case before the court. In this case, it will be seen, the writ was issued dur- ing the term, and made returnable about three weeks later in the same term. It serves, therefore, further to demonstrate the inflexibility of the rule, by remov- ing all doubt with respect to the only class of cases concerning which any doubt could otherwise have possibly been entertained. The writ should have been made returnable, not on a later day in the same term, but on the first day of the next term. The court, in conclusion, said, that, if the plaintiff desired it, he might, in order to save expense, withdraw the transcript, leaving a receipt therefor with the clerk, and use it in connection with a new writ of error. The foregoing observations touching the return day of the writ of error were written for the fourth edi- tion of this work. Since its publication a judicious rule has been made by the supreme court (notwith- standing the ground it felt it to be its duty to assume in the case of The Insurance Company of the Valley of Virginia v. Mordecai, above cited), which to a great extent relieves the subject from the uncertainty which attended it. The above exposition will serve to show the actual predicament of the case when the new rule was made, and for that reason I conclude not to expunge it. The rule prescribes, that, when the final judgment in the court below has been rendered more than thirty days before the first day of the next term of the supreme court, the writ of error and citation, if taken before that day, must be made returnable on 660 Peactice on- Writs of Eeeok. PAET5. that day, and served before; when the judgment was rendered less than thirty days before the first day of the term, the writ of error and citation may be made returnable on the third Monday of the next term and served before that day. See Appendix, rule 37, Rules S. C The test and return days in the several circuit courts are regulated by local usage and rules of court. The rules applicable to all process in the national courts in New York may be seen, supra, p. 338 et seq. statute Before proceeding to the consideration of the tions. remaining subjects of this chapter, it is necessary to bring under review the brief legislative enactments, which, in conferring the appellate jurisdiction, also prescribe in outline the manner in which it is to be exercised. They have been referred to in the first part of this work, for the purpose of defining the scope of this jurisdiction but in order clearly to understand the regulations they enjoin it is import- ant to recite them verbatim. The 22d section of the judicial act of 24th Septem- ber, 1789, enacts — "That final decrees and judgments in civil actions in a district court, where the matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, may be re-exam- ined and reversed, or afiSrmed, in a circuit court holden in the same district upon a writ of error, iuhereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript and assign- ment of errors and prayer for reversal, with a citation to the adverse party, signed by the judge of such district court or a justice of the supreme court, the adverse party having at least twenty days' notice. And upon a like pro- cess may final judgments and decrees in civil actions, and ' But suppose that the judgment was rendered JM«t thirty days before the first day of the next term ? Practice on Weits of Ereoe. 661 suits in equity, in a circuit court, brought there by original chap. a. process, or removed there from the courts of the seyeral states, or removed there by appeal from a district court, ■where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs, be re-examined and reversed or affirmed, in the supreme court, the citation ieing in such case signed iy a judge of such circuit court, or justice of the supreme court, and the adverse party hav- ing at least thirty days' notice. But there shall be no reversal in either court, on such writ of error, for error in ruling any plea in abatement, other than a plea to the juris- diction of the court, or to sjich plea to a petition or bill in equity, as is in the nature of a demurrer, or for any error in fact. And writs of error shall not he brought tut within five years after rendering or passing the judgment or decree complained of, or iu case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as aforesaid, exclusive of such disability. And every justice or judge, signing a cita- tion, or any writ of error as aforesaid, shall tahe good and sufficient security that the plaintiff in error shall prosecute his lorit to effect, and answer all damages and costs, if he fails to mahe his plea good" ' The 23d section of the same act provides — " That a writ of error as aforesaid shall be a supersedeas and stay of execution, in cases only where the writ of error is served iy a copy thereof ieing lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the' judgment or passing the decree complained of. Until the expiration of which term of ten days, executions shall not issue in any Qase where a writ of error may be a supersedeas j ' and ' Ch. 30 : 1 Stat, at Large, 84. But in causes of whatever nature, carried for revision to the supreme court by the United States or by direction of any department of the government, no bond or security is required ; but all costs taxable against the United States are to be paid out of the contingent fund of the proper department. Act of Feb. 31, 1863, ch. 50 : 13 Stafr at Large, 657. * Vide supra, p. 558, note 3. 662 Peactice on Writs of Eebob. PART B. where, upon such writ of error, the supreme or circuit court shall afiarm a judgment or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double casts, at their discretion." The 25tli section of tlie same act, wMch gives the writ of error to the state courts, provides that a final judgment or decree in such courts, in the cases therein specified, "may be re-examined and reversed or affirmed in the supreme courts of the United States, upon a writ of error, the citation being signed iy tJie chief justice, or judge or chan- cellor of. the. court, rendering or passing the judg- ment or decree complained of, or by a justice of the supreme court of the United States, in the same manner, and under the same regulations, and the writ of error 'shall have the same effect as if the judgment or decree complained of had been ren- dered or passed in a circuit court.''' ' The only remaining legislative provision which requires to be noticed in this place is the act of 12th December, 1764 (ch. 3, 1 Stat, at Large, 404), relative to the amount of the security required by the 22d sec- tion of the judicial act. After a recital of the provi- sions of this section, relative to such security, and of the fact that doubts had arisen as to the extent of the security to be required in certain cases, it enacts "that the security to be required and taken on the. signing of a citation on any writ of error which shall not be a supersedeas and stay of execution, shall be ' The reader has already seen that by the act of March 3, 1803, ch. 11 (2 Stat, at Large, 244), the 22d and 23d sections of the judiciary act have been modified by the substitution of an appeal ; subject, however, to the same regulations, in lieu of a writ of error, in cases of equity, and of admiralty and maritime jurisdiction. This modification comprehends all cases arising in the district and circuit courts of the United States. A writ of error still continues to be the only process by which the judg- ments or decrees of a state court can be reviewed by the supreme court of the United States." Peactice on Writs of Ebroe. 663 only to such an amount as, in the opinion of the chap. 2. justice or judge taking the same, shall 6e sufficient to answer all such costs as, upon an affirmance of their judgment or decree, may be judged or decreed to the respondent in error." ' In proceeding to notice those parts of the foresoine: writs of , , . . xj. f. -r o & error to be enactments now requiring attention, I propose, m the bought . first place, to consider that which limits the right to y*""- bring a writ of error to five years ^^ after rendering on passing the judgment or decree complained of." It is important to determine from what date the when the period of limitation is to be computed ; and, to do teghilto this, it becomes necessary to ascertain when, in the '^' sense of the statute, a judgment may be said to have been rendered. No answer appears to have been given to this question by any decision of the supreme court, nor am I aware that it has been decided in any of the circuit courts. But, in the case of Fleet v. Decisions Young, in the court of errors of the state of New courtsof York (11 Wendell, 522), the question was whether or no the -writ of error was barred by the state statute, , the words of which ("after the rendering of the judgment") were essentially the same as those of the act of congress ; and, in order to determine this question, it became necessary for the court to decide ' There is a statutable provision of considerable importance relative to writs of error in criminal cases, prosecuted under the 35th section, which ought not to be passed over in silence, and which is noticed here for the want of a more fit place. The act of July 13, 1866 (ch. 184, sec. 69, 14 Stat, at Large, 173), directs that whenever a writ of error shall be issued for the revision of any judgment or decree in any criminal proceeding where is drawn in question any statute of the United States, in a court of any state, as is provided in the 35th section of the judiciary act of 1789, the defendant, if charged vfith an offense bailable by the laws of such state, Shall not be released from custody until a final judgment upon such writ, or until a bond, with sufficient sureties in a reasonable sum, as ordered and approved by the State court, shall be given ; and if the offense is not so bailable, imtil final judgment upon the writ of error. 664 Peaotice on Wbits op Beeoe. PARTS, whether the statute began to run when the judgment was given, or when the record of judgment was sub- sequently fllfed. The decision, in accordance with an elaborate opinion pronounced by Chancellor Kent, was, that the day on which the judgment was given was the day contemplated by the statute. The same question, under diflterent circumstances, arose in a subsequent case before the supreme court of New York. There had been a motion to set aside the report of a referee, which was denied at the July term, 1840 ; and the judgment record was not filed ' until several months afterward. The court [decided that the denial of the motion to set aside the referee's report was the rendering of the judgment in the sense of the statute, and consequently that the period of limitation then began to run ; Mr. Justice BEOWSOiir, with characteristic perspicacity, observing, that "the record was not the judgment, but only a written memorial of the judgment, which had previously been rendered." Lee v. Tillotson, 4 Hill, 27. It may, I think, with considerable confidence, be presumed, that the supreme court of the United States would arrive at the same conclusion as the New York courts have done. jndgmentB But there remains another question which may and nisi, happen to be one of vital importance. A writ of error will lie for the revision only of final judgments ; and the period of limitation cannot therefore com- mence at the date of an interlocutory judgment. But a final judgment may be either absolute at the time it is given, as a judgment for the defendant, on a demurrer, or for the plaintiff on a plea in abate- ment, to the declaration ; or it may be a judgment nisi, not to become absolute until a future day, the quarto die post, or on the last day of the term, as a judgment upon the verdict of a jury, or by default ; and from what day, in the case of a judgment of the Practice on Writs of Error. 665 latter kind, does the statute begin to run V It is chap. 2. to be considered, that, until the judgment becomes absolute, it remains uncertain, in contemplation of law, and perhaps in fact, whether it will ever become so, and, consequently, whether a writ of error will become necessary. The more reasonable conclusion seems, therefore, to be, that the day on which a judgment becomes absolute is that whence the limi- tation is to be computed. A Vrit of error is not to be deemed " brought, " wntof ^ ' error not until it IS filed in the court to which.it is directed ; ^""gi*'. ' until flledL and therefore, though the writ bear test within five years, if it be not filed within that period, it is barred. Brooks v. Norris, 11 Howard, 204. This is an important case, and it determines another question of practice of considerable interest. The judgment of the court was pronounced by the chief justice, and I shall need no apology for inserting the following extract from it : ' " The -writ of error is not brought in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that remores the record from the inferior to the appellate court, and the period of limitation prescribed by the act of congress, must ' It will be recollected that in the courts of the United States, all trials are at har. Under the nid prius system and common law prac tiee, no order can be entered for judgment on a verdict until the next term of the court in bank, on the return of the postea ; and then the order is nisi, for the purpose of affording the unsuccessful party by motion in arrest, or for judgment non obstante veredicto, or for a new trial, to show cause why the order should not be allowed to become absolute. And a like opportunity is in like manner afforded to the defendant in judgments by default. They are entered nisi on the return of the writ of inquiry, or the report of the clerk. The same reason exists for a like practice, in both cases, in the courts of the United States, and such, doubtless, is their practice in all the districts. In the New Tork districts it is regulated by rule. See Appendix. Rules 30 and 33, of the district court of the northern district, and Eule 6 of the circuit court. 84 Peacticb on Wbits of Ebeoe. PART 6. be calculated accordingly. The day on which the -writ may be issued by the clerk, or the day on which it is tested, is not material in deciding the question. In this case, there- fore, five years had elapsed before the writ of error was brought, and the limitation of time in the act of congress was a bar to the suit." Thestatnte "According to the, English practice, the defendant in taken ad- error must avail himself of this defense by plea. He can- vantage of •* •* . on motion, not take advantage of it by motion ; nor can the court take judicial notice of it, as the limitation of time is not an objection to the jurisdiction of the court. It is a defense which the defendant in error may, or may not, rely upon, as he himself thinks proper. But, according to the established practice of this court, he need not plead it, but may take advantage of it by motion. The forms of proceeding in the English courts of error have not been adopted or fol- lowed in this court. * * * In this case the bar arising from the lapse of time is apparent on the face of the record, and the defendant may take advantage of it by motion to quash or dismiss the writ." Writ of We are, in the next place, to consider that part of error, when .■,,,,■,,■, .in -.. ^perie- the Statute which prescribes the conditions on which a vmt of error shall operate as a supersedeas. It mnst, for this purpose, as we have seen, be sued out, and served by lodging a copy of it in the clerk's oflBce for the adverse party "within ten days, Sundays exclusiTe, after rendering the judg- ment complained of." This regulation is virtually a statute of limitation, and it will be observed that the time from which the limitation is to be recorded, is designated by the same words that are used to fix the time at which the five years limitation is to commence. It would seem to follow, therefore, that the interpretation to be given to these words, ought to be the same in both cases, and I can discern no reason to the contrary. The just conclusion, then, seems to be that in this case as Pbactioe on Wbits of Ereoe. 667 in tlie other, the time of limitation begins to run when c hap. 2. the judgment is given, and has become absolute. There is, moreover, a decision of the supreme court to u relative to the proper time for bringing an appeal, ^j'*™f*|^ which seems to favor this conclusion. The phrase of {^^^^°' • the statute with respect to appeals is, ' ' after passing the decree complained of ;' ' and the word ' ' passing ' ' thus applied to appeals, seems to be, and doubtless was designed to be, equivalent to the term "render- ing" as applied to judgments. In the case of Silshy et al. v. Foot (20 Howard, 290), above alluded to, a "final decision" is stated to have been made in the circuit court, on the coming in of the master's report on the 28th of August, 1854, and an appeal was taken within less than ten days there- after; but the decree was special, and "was not settled or signed by the judge till the 11th of December, 1856;" and, on that day, a second appeal was taken. At the December term of the supreme court, 1857, a motion was made in behalf of the appellee to dismiss the second appeal, on the ground that a prior appeal had already been taken, and the question was, whether or not the first appeal had been taken prematurely, and thereby rendered ineffectual. The court held that it had not ; the decision made in August, 1854, being "the passing of the decree ' ' according to the true interpretation of the act ; the court accordingly dismissed the sec- ond appeal as superfluous.' ' The force of this decision is weakened, however, by the terms in which it is expressed ; or, rather, by the declarations which accompany its annunciation. After stating its decision in the case before it, that an appeal may be regularly taken at any time after the decision is pro- nounced and entered on the minutes by the clerk, and that, if taken within tea days, it wUl stay execution, the court adds : " and we are also of opinion, that, if taken within ten days after the decree is set- tled and signed by the judge, and filed with the clerk, that it is in time to stay the proceedings." It is no great fault of the reporter, there- Peactice ok Writs of Ebeoe. , PAET 5. When a writ of error lias been regularly sued out snperBe- witMu teu dajs after tlie judgment was given in the ed!'wK*" court below, and an execution has nevertheless been issued, a supersedeas may be granted by the supreme court, or by the court below. Btockton et al. V. Bishop, 2 Howard, 74. But where a writ of error, though seasonably issued, has been dismissed, and a second writ of error has been sued out, the court has no power to grant a supersedeas unless the sec- ond writ also was issued within ten days from the date of the judgment. Nevertheless, when a cause is reinstated after dismissal from a writ of error which was a supersedeas, the appellate court may, in its discretion, grant a supersedeas on having the cause again brought before it on a second writ of error, because, when reinstated, it would stand upon the first writ of error. This is the true inter- pretation of the case of Haldeman et al. v. Ander- son, 4 Howard, 640. In the order granted in this case it is erroneously stated to have been made in virtue of the 14th section of the judiciary act of 1789, empowering the courts of the United States to issue writs of seire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary, &c., and agreeable, &c. Hogan et al. v. Ross, 11 Howard, 294. So where fore, that his syllabus is in the following words : " Where an appeal is taken within ten days from the rendition of the decree, it is in time to operate as a supersedeas ; and so, also, if taken within ten days after the decree is settled and signed." With a slight amendment, by the substitution of the words it is regular and will operate, &c, in lieu of the words "it is in time to operate," it is a faithful abstract of the language of the court. So that both of the two appeals, that had been taken in the case before the court, were held to be regular, and each of them a supersedeas, although there was an interval of more than two years between them. It seems to follow, that, with respect to appeals, a like latitude is to be allowed as to the five years' limitation. Practice on- Writs of Error. an appeal was taken in a suit at common law witMn chap. s. ten days after judgment, anH. an execution was nevertheless issued, the appeal being a nullity, it was error in the circuit court to^upersede the exe- cution, on the ground that the party appealing, on discovering his mistake, sued out a writ of error after the expiration of ten days. Saltmarsh v. Tut- Mll, 12 Howard, 387. CHAPTER III. OF THE PEOCEEDING-S FEOM THEIR COMMENCEMENT TO THE EETT7EN INCLUSIVE. When a party deeming himself aggrieved by a piaintiff in judgment against him, which he is entitled to have and sure- reviewed by writ of error, Cdesires to resort to that remedy, the first thing it behooves him to do is to find one or more responsible persons who are willing to become his sureties in the "security" which the statute requires.' The statute is silent as to the form of the security. In England, where the plaint- iflf in error is also required to give security, it is in the form of a recognizance, and is called bail in error ; but the engagement is held to be absolute, the bail not being permitted to exonerate themselves by the surrender of the principal. The established Togivea form, in the courts of the United States, is a bond with one or more sureties, and in a penalty suffi- The cient, when the writ is sued out in season to render "^^^ it a supersedeas, to secure the amount recovered in 1 But, by the act of February 31, 1863, cli. 50 (13 Stat, at Large, 657), the United States are exonerated from giving security upon writ of error, or appeal to the supreme court, prosecuted by them, or on their account, in any case. The act, however, directs the payment in the event of an adverse decision of the costs taxable against the United States; and,, by the act of July 37, 1868, ch. 355 (15 Stat, at Large, 236), the provisions of that act are extended to writs of error and appeals to the circuit courts of the United States. 670 Practice on Writs op Ebroe. PART 5. Writ dle- miBsed for want of. Objection, ■when taken. Tlie cita- tion, what it iB. Its date and return day. Tested in the name of the jndge J and Bigni by Jiim. Bywh jndge. the court below, wlietlier debt or damages and costs, or costs only, together with such costs and damages as may be adjudged against him, should he faU in the appellate cou^;. When not sued out within ten days, a penalty sufficient to cover all such costs as, upon affirmance, may be adjudged against him, is all that is required. This security is indispensable ; and, therefore, where the bond was in a small sum to respond the damages and costs which might be adjudged in the supreme court, it was upon motion ordered that the cause stand dismissed unless the plaintiff iu error should file sufficient security within thirty days after the rising of the court. Cartlet v. Brodie, 9 Wheat., 653. The form of the bond, in order to render it a supersedeas, is prescribed with great minuteness by rule 35. See appendix, rules S. C. But the objection to the sufficiency of the security ought to be taken by way of preliminary motion to dismiss the writ of error for irregularity ; and it is too late to object at the argument upon the merits. Mandemlle et al. v. Riggs, 2 Peters, 482. The "citation" required by the statute is a sum- mons to the adverse party, admonishing him to appear and show cause, if any there be, why the judgment, should not be reversed. The service of it is the "notice" enjoined by the statute. Its proper date is the day on which it is signed ; and the day designated for the appearance of the adverse party, or return day, as it is often called, is the same as that of the writ. It is tested in the name of the judge by whom it is granted, and must be signed by him. If signed by the clerk instead of the judge, it is bad, and the cause wUl be dismissed. The United States v. Hodge, 3 Howard, 534. When the writ is brought for the revision of a judgment of a district court in a circuit court, the citation must be signed by "the judge of such district court, or a Practice on Writs of Error. 671 justice of tlie supreme court;"' and, wlien brought c hap. 3. to review the judgment of a circuit court in the supreme court, the citation must be signed by "a judge at such circuit court or a justi'ce of the supreme court ; " the signature of the district judge in the latter case having been adjudged not to be in accordance with a just construction of the act, and accordingly ineflfectual. Palmer v. Downer, 7 Wallace, 541. Forms for the bond, the writ of error, and the citation, are given in the appendix. The steps to be next taken are, to draw up and Bona to be execute the bond in due form ; ' to obtain a writ of &c. error from the clerk of the circuit court ; to prepare the required " citation ; " and, if the writ of error is to be brought in virtue of the 35th section of the judicial act to reverse the decision of a state court, to prepare a petition addressed to the judge to whom the application is to be made, settuig forth distinctly the facts which are supposed to bring the case within that section, and praying the allowance of the writ and a citation ; " and then, thus armed, to apply to Appiica- the proper judge designated in the 22d and 23d sec- judge. 'But, unless the pecuniary ability of tte sureties is already well known to the judge, they should appear before Mm in person, to the end that he may interrogate them upon this point. And he* would have a right, I suppose, to insist on their answering under oath. Indeed the act seems to contemplate their personal attendance. It requires the judge " to take good and sufficient security ; " though this language was probably suggested by the English practice of taking a recognizance, and in the expectation of the adoption of that prac- tice here. 2 Such a petition is stated to be usual by Judge Cdbtis, in the sum- mary directions for suing out writs of errors and appeals, which he has laid the profession under obligation by appending to his digest ; and the very special nature of the jurisdiction conferred by the 25th section may be a good rea^n for this distinction. In all other respects the pro- ceedings are the same as when the writ of error is directed -to a court of the United States. 672 Pbactice on Weits of Ebeoe. where. PAET 5. tions of the act above recited, to approve the bond, allow the writ, and sign the citation. If the judge is convinced of the suflaciency of the bond, he will indorse upon it his certificate to that effect, and per- fform the other acts required of him. Bond, writ / The bond must be delivered to the clerk of the to be fSed, / court, where the record remains, and this should be I done without unnecessary delay.' So, also, must *^ the writ of error, and a^copy of it for the adverse party, at some time before the return day, and in season for transmission, along with the transcript of the record, to the appellate court ; and, if it is intended to make the writ of error a supersedeas, the copy of the writ must be lodged with the clerk within ten days, Sundays exclusive, after judg- ment. _ It is highly proper, though perhaps not necessary, Ihat this copy should have a descriptive indorsement, showing it to have been so lodged, pursuant to law, for the defendant in error. For any other purpose, except to stay the execution, it has been held to be sufficient, if lodged at any time before the return day. Wood v. Lide, 4 Cranch, 180 ; but it is unwise so to defer it." 7'' 'V ■ But, where the omission to file a bond seemed traceable to misappre- hension on the part of the attorney, it was allowed to be filed nunc pro tunc. Brdbst v. Srobst, 2 Wallace, 96. 2 The lodging of a copy of the writ in the clerk's oflaee, for the defendant in error, is peculiar to our national courts. The 22d section of the judicial act, which gives the writ of error, and also prescribes the formalities to be observed in suing it out, makes no mention of the copies. It is, by the 33d section, that the copy is required, and, as the sole purpose of that part of the section appears to me to have been to regulate the operation of the writ of error as a supersedeas, I cannot but doubt whether it was intended to require this formality, except as the condition on which the writ of error should become a supersedeas. It seems to have been assumed, however, from the outset, that it was requisite in all cases. Judge Curtis, in the appendix' of his digest, mentioned in the last preceding note, advises the deposit in the clerk's oflSce of an additional copy of the writ, and of the citation, as well as of a copy of the bond. Practice ok Writs of Error. 673 The next tMng requiring attention is the proper c hap. 3. service of the citation, without which the writ of citation to error becomes a nullity. The service is to be made how!'^^ by delivering a true copy to the party, his attorney or counsel ; and there must be an affidavit appended to, or indorsed upon the original, showing due ser- vice, and the day on yrhich it was made, which, with the writ, must be filed with the clerk of the court below. A service on the executrix of the deceased attor- nev of record, and also on a member of the bar, who was the former law partner of the deceased attorney, ■n^as held to be nugatory, and the writ of error was accordingly dismissed. Bacon v. Hart, 1 Black, 38. But, when a female is a party to the suit in the court below, and marries after judgment therein, a service on the husband is good. 5 Cranch, 21, note. Service on the attorney of record is good, unless his name as such has been withdrawn hy leave of the court. The United States v. Gurry, 6 Howard, 106. When the writ of error is brought upon a judgment in favor of the United States, the I presume he does not intend to be understood as asserting tliat the delivery of these copies to the clerk is necessary to the regularity of the proceedings, because there is no statute, nor any decision, or gen- eral rule of the court, nor is there any thiirg in the practice of the English court of king's bench requiring it ; nor does he assign any reason for recommending it. For these reasons I have not felt at lib- erty to enumerate it among the requirements of the law. He states also that the copies of the writ and citation remain in the clerk's oflSce. It must, I presume, be for this purpose, therefore, that he enjoins the deposit of them ; and, as a precaution against the possible loss of the original writ and citation in their transmission to the clerk of the appellate court along with the transcript of the record ; it may be worth while to deposit copies of them. This, I imagine, is the view of the subject taken by Judge Cubtis. His laudable purpose was to point out -what it is best to do, whether the law peremptorily exacts it or not ; it is my business, aiao, to show what is, and what is not, abso- lutely indispensable. 85 674 Peacxice on Weits of Eeeoe. PAET5. service must be upon the district attorney of tlie United States. The return. We coBie uow to the auswer or return to be made to the writ of error. The writ is addressed to the judge or judges of the court whose judgment is to be reviewed, and its mandate is to send to the appellate court, under his or their seal, the record and proceedings, with all things concerning the How made. Same ; but this may be done through the clerk by the transmission, under the seal of the court, to the • clerk of the appellate court, of a transcript of the record,' with whatever else is requisite to enable that court to understand correctly, and properly to decide, the questions in controversy ; and the tran- script must be filed before the expiration of the term at which it was returnable, otherwise the writ or appeal is no longer valid. Edmonson v. BloomsMre, 7 Wallace, 306. If there be a biU of exceptions, What it that must of course be included. But the return tain. must also'coutain within itself sufficient evidence, direct or presumptive ' (except with respect to the amount in controversy where that is material), to show that the appellate court has jurisdiction, and that the statute has been complied with in suing out the writ. Copy of ■ The return should, therefore, contain a copy of the bond to show that the required secun^ has been given. This, however, has been held not to be indispensable; and, in the same case, it was also said that if no bond had, in fact, been given, the omission would not vitiate the writ, this part of the ' But where a blank was left instead of the names of the jurors, the omission was held to be immaterial. 9 Cranch. 180. The transcript must be uijrder the seal of the court, else the appellate court has no jurisdiction. Slitz v. Brown, 7 Wallace, 693. The original writ of enor, not a copy of it, must always accompany the transcript. Mussina v. Cavazos, 6 Wallace, 355. Pbacticb on Weits of Eekoe. 675 statute being only directory. Martin v. Suntefs chap. 3. Lessee, 1 Wheat., 304, 861. But tlie reverse of this has been held, or, at least, assumed as unquestion- able in later cases. Thus, in Anson et al. v. The Blue Ridge Railroad Qo. (23 Howard, 1), no bond having been given, the court granted leave to sup- ply fhe deficiency, citing former decisions to the Hke effect. The return of the citation, as we have seen, is Thecua- required by the express terms of the statute, and in several early cases it was accordingly held to be indispensable. But, in Itineray v. Byre (5 How- ard, 295), the reverse was decided, the court observ- ing that the presumption was that a citation had been issued, and it might be proved aliunde. This decision, in conflict with several prior decisions, does not appear to have been followed, and, being also in conflict with the statute, we may, with some confidence, predipt that it will not be. A citation, regularly served, is indispensable to the validity of the .writ, and, unquestionably, it is incumbent on the plaintiff in error, or appellant, to show affirma- tively that this condition has been complied with. Nor can it be doubted that the citation itself, with the evidence of its service accompanying the return, y is the proper mode of showing such compliance. \y/^ See Bacon et al. v. Hart, 1 Black, 38.' ' There is, probably, amon^ the several courts of the United States, a want of uniformity in the formal part of the return. The English form, recommended by its neatness and strict propriety, is as follows : " The answer of (naming the chief justice) to the foregoing writ. The record and process, whereof mention is therein made, follow in these words, to wit : " Then follows a copy of the record, commencing with the placita. See Sellon's Practice. The customary form in New York is (or was) less graceful. See Burril's Forms. 676 Peacticb on Weits o5 Eeboe. PAET5. Within wbat time tlie return ^nst be m4 "*^-i M In croBS appeals one transcript sufficient. Transla- tions. Record to be printed. Witli respect to the tijae allowed in the supreme court for making the return, it is now definitively settled, in accordance with all analogous usage, that it must, in all cases, be made before or during the next term, or if not, that the cause will be dismissed on motion of the defendant in error or appellee, for that reason alone. The Steamer Virginia v. West, 19 Howard, 102 ; Bacon et al. v. Hart, 1 Black, 36 ; Mesa V. The United States, 2 Black, 721. The lim- itation exists independently of the 9th general rule of the supreme court, which, as we shall see in the next chapter, requires the return to be filed, and the cause placed upon the docket (calendar), either by the sixtJi or the thirteenth day ef the term, accord- ing to circumstances, on pain of dismissal. It has been declared by law, that in all cases of appeal duly taken by both parties from the judgment or decree of any district or circuit court to the supreme court, a transcript of the record filed iji the supreme court by either party, on his appeal, may be used on both appeals, and both appeals may be heard as if records had been filed by the appellants in both cases.' When the record contains any docu- ment, paper, testimony or other proceedings, in a foreign language, it must contain also a translation of such document, &c.' The clerk is required, in all cases, to have fifteen copies of the record printed, at the expense of the United States.' ' Act of August 6, 1861, ch. 61, § 1 : 12 Stat, at Large, 319. "Appendix, Rule 11, Rules S. C. ' Rule 10. For further particulars, see these rules. Appendix. Practice on Writs oe Error. 677 CHAP. 4. CHAPTER IV. PEOCEEDIKGS SUBSEQUENT TO THE EETUEK. On the filing of the transcript, the appearance of -'^pp^^"'-. the counsel for the plaintiff in error or appellant is entered. to be entered, and no motion for dismission, except Notice of motion to by special leave of the court, wUl be heard without dismiBs. previous notice to the adverse party, his attorney or counsel. Appendix, Rule 35, S. C. The cause being now in the appellate court, it Diminu- behooves the parties to ascertain whether the return is complete, and if not, to pray a certiorari to the court below to supply the deficiency. Either party may allege, or, as it is usually termed in the reports, suggest diminution ; and formerly it appears to have been the practice to make the suggestion orally. But by one of the general rules of the court the motion for a certiorari must be in writing ; and the facts on which it is founded, if not admitted by the adverse partyj must be verified by affidavit. The rule also requires the motion to be made at the first term.' In the case of Fenemorerv. The United States (3 Eetnmto certiorari Dallas, 360, note), it became a question whether the ^^^i rule authorizing a return to a writ of error to be thecieri. made by the transmission, by the clerk of the court to which the writ of error was directed, of a transcript under his hand and the seal of his office, was to be construed as extending to a certiorari issued upon an I Appendix, Rule 14, S. C. Rules. The practice of tlie supreml^court in this respect is much more simple, and at the same time more effective, than that of the English courts upon writs of error directed to one of the superior courts, where the right to allege diminution appears to be confined to the plaintiff, and where the allegation- is to he made in the form of an assignment of error. The practice of the supreme court nearly resembles the English practice said to be applied to cases bAught for review from an inferior court, in which the plaintiff in error is not allowed to assign diminution for error, but the court directs a, certiorari to issue adinformandum conacientiwm. 678 Peactice os "Wbits of Eekoe. PAET 5. allegation of diminution, so as to authorize a return thereto in the same manner ; and it was the opinion of a majority of the couji; that such ought to be its construction ; and in Stewart v. Ingle etal. (9 Wheat., 526), this practice was sanctioned and confirmed. Bpeciai In the case of Barton v. Petit et al. (7 Cranch, 288), writ, when - \ / /> necessary, a writ of error was brought to reverse a judgment on a bond given to the marshal with condition to have certain goods forthcoming at the day of sale appointed by the marshal ; being goods which he had seized under &fl. fa. issued upon a former judg- ment recovered by the defendants in error against the plaintiflFs in error, which judgment was reversed at the last preceding term of the supreme court of the United States. The ground upon which it was contended that the judgment upon the bond ought to be reversed, was the reversal of the original judg- ment. Under these circum'stances it became a ques- tion in what manner the fact should be verified, that the execution, upon the levy under which the bond had been taken, was issued upon the identical judg- ment which had been reversed. Upon this CLuestion the court was of opinion that a certiorari, upon sug- gestion of diminution, was not the appropriate remedy ; and, moreover, that it would not be regular to receive the certificate of the clerk of the court below, of the dependency of the latter, upon the former judgment. The court therefore ordered a special writ to be framed, applicable to such cases, directed to the clerk of the court below, requiring him to certify, under the seal of the court, the execu- tion recited in the bond on which the second judg- ment was rendered. The case being novel, the court wou^d not permit the plaintiff in error to suffer in consequence of his delay in moving, but remarked that ' ' in future the party must take the consequences Practice on Weits of Ebbok. 679 of his neglect if he should fail to have the execution c hap. 4. certified in time." The appellate jurisdiction of the supreme court from the judgment of the inferior courts of the United States being, as we have seen, limited to cases in y which the matter in dispute exceeds the sum or value Amount in ' _ contro- of two thousand dollars, exclusive of costs, it must verey. always appear upon the return of the writ of error that the cause involves that amount ; and, unless the fact is sufficiently established by the record, it is incumbent upon the plaintiff in error to prove it to the satisfaction of the court.' The supreme court have deemed it necessary, therefore, to adopt the practice of permitting the plaintiff in en or to show. Maybe 'by affidavit, to tlje satisfaction of the court, that the affldayit.'' matter in dispute amounts to the requisite sum or value." So the appellate jurisdiction of the circuit courts from the judgments of the district courts being restricted to cases in which the matter in dispute, exclusive of costs, exceeds fifty dollars, the same necessity for proof aliunde as to the amount in con- troversy, exists in these courts, and the rule of the supreme court being founded in necessity is, it is presumed, followed in a]l the circuit courts. In the case of The United States v. The Brig Union, 4 Cranch, 116 (which, though an appeal, was subject in this respect to the same rules as a writ of error), a witness was introduced and sworn mva voce in open court as to the value, and upon the evidence thus taken, and such further evidence as the record ' It has already been shown {supra, p. 50, et seq.) under what circum- stances the record is to be considered as furnishing this evidence, and, when it is necessary, to resort to proof aliunde. ^ There was formerly a general rule of the court, or rather an early decision of the court, printed among the rules, as rule 13, to this effect, which required noti(!e to the opposite party and entitled him to produce, counter affidavits. But this rule is omitted in the revised rules of 1858, as will be seen by referring to the appendix. 680 Petacticb ok Weits of Erkoe. PART 5. . Amend- ments. Writs of error not amendable. was supposed to aflford, the cause was dismissed for want of jurisdiction, tlie court not being satisfied that the amount in controversy was suflB.cient. On the next day the attorney -general, in behalf of the plaintiffs, moved for a continuance of the cause, and for leave to take affidavits respecting the value in controversy, so as to sustain the jurisdiction of the court, but the motion was denied upon the ground that the parties had once put themselves on trial upon the evidence already adduced, and a decision had been made. The reporter adds, that no objection was made to the xiva voce examination of the witness upon the question of value. It is necessary, in the next place, to inquire to what extent the parties are entitled to relief by amend- ments granted in the appellate court. No amend- ment of a writ of error could be allowed at common law, it being a maxim that all amendments are granted for the support of judgments ; but the design of writs of error is to reverse them. Ld. Raym., 71. JSTor was there in England any statute of jeofails em- bracing writs of error until the passage of a special act with respect to them in the reign of George I. They are not named in the 32d section of the judicial act of 24th September, 1789, and by the late decis- ions of the supreme court it has become a settled doctrine of that court that a writ of error is not amendable. It is only in virtue of the writ that the court can take cognizance of the cause at all, and if the writ is defective, the court has no power to amend it, even by consent of parties. Hodge et al v. Wil- ' Hams, 32 Howard, 87.' ' There are reported cases of very early date in which defects in a writ of error were allowed to be amended or disregarded ; and these cases ought not to be left unnoticed, although the comprebensive and decided language of the court in the case cited in the text seems scarcely to warrant an expectation that they will be followed. In Mosaman v. Pbacticb ok "Writs of Eekok, 681 This principle comprejiends all amendments requi- c hap. 4. site to the maintenance of jurisdiction, and, therefore, no amend- where the amount in dispute, as shown to the record, record was insufficient, the court refused to allow inser- support J- n 1 • ji . jurisdic- tion 01 a claim for interest, which would have in- tio°- creased the amount to the requisite sum. JJdall v. The SteamsMp Ohio, 17 Howard, 17 ; Olney v. The Steamship Falcon, id., 19. And so, if the requisite allegations of citizenship are wanting, the supreme court will not allow them to be inserted. This can be done only in the court below after the cause has been remanded on dismission. Jackson v. AsMon, 10 Peters, 180. But it is otherwise with matters not affecting the jurisdiction of the court. Thus where other it was shown by the certificate of the clerk that there amendable, was a clerical error in the transcript of the record sent to be filed in the supreme court, that court allowed the error to be corrected without the formal- ity of a certiorari. Woodward v. Brown, 13 Peters, 1. And, in a celebrated early case, the supreme court having reversed the judgment of the court below on a demurrer to a plea, the pleadings were amended in accordance with the decision of the court by consent of the parties, and the cause was heard on the amended pleading. Fletcher v. PecJc, 6 Cranch, 87. And where, in a suit brought to recover the amount Elggins (4 Dallas, 12) a blank was left in the writ for the return day. But the writ was regularly tested, and was indorsed by the clerk' "Returnable to February term, 1799." By other indorsements it appeared when it was returned into the office of the clerk of the court below, and, when in the supreme court, a motion was made in behalf of the plaintiff in error to amend by filing the blank on the ground that "there was enough to amend by ; " and the court answered, " Let the amendment be made." In Course v. Stead (4 Dallas, 32), the writ being tested in vacation, was held to be amenable! And in Blalcewell v. Pat' ten et al. (7 Cranch, 377), the writ, issued in September and made return- able at the next February term, was tested of the preceding February term, instead of the [now (jjbselete] August term ; and a' motion to dis- miss or quash the writ on account of this defsct was denied. 86 682 Practice on Writs of Ekeoh. PAET s. of a great number of promissory notes, tlie judgment of the court below had been given for too large a sum, in consequence of the accidental omission of the plaintiff to describe oAe of the notes in this declara- tion, the supreme court allowed a remittitur to be entered for the excess of damages. Barilc of Kentucky V. Ashley et al., 2 Peters, 327. Defector The reports show it to have- happened, in many- Station instances, that the transcript was accompanied either corsd by appearance. ])j a defective citatiou, orhy none at all ; and this we have seen to be a fatal irregularity, if the objec- tion be seasonably made, by motion to dismiss the cause. But it has been held that the objection is to be deemed waived by the voluntary- appearance and implied acquiescence of the defendant in error. The cases by which the rule thus generally expressed has been established, are variant in their circumstances'; and instead of a particular reference to them, for the purpose of more exactly defining the rule, I shall better accomplish this purpose by availing myself of the language of Mr. Chief Justice Taney in one of the latest of these cases, where the rule, with its just qualifications, is laid down, and the reasons on which it rests are stated, with characteristic precision and clearness. The writ was sued out in October, 1856, returnable at the December term next follow- ing ; but the citation was signed by the clerk of the circuit court instead of a judge. The record was filed with the clerk of the supreme court, and the cause was placed upon the docket on the 24th of November ; and on the 4th of December, 1856, the defendant appeared in that court by counsel. At the next term, December, 1857, (the cause, it is pre- sumed, not having been reached on the docket during the first term), a motion was made to dismiss it on account of the insufficiency of the citation. The chief justice, in disposing of the motion, said : Pbacticb ok Writs of Eesob. 683 " The citation is, undoubtedly, irregular in this respect, chap. 4. and the defendant in error was not bound to appear under scope and it, and if a motion had been made at the last term, within t^e^raie" a reasonable time, to dismiss the cause on this ground, it would have been dismissed. But the appearance of the party in this court, without making a motion to dismiss during the first term, is a waiver of any irregularity in the citation, and is an admission that he had received notice to appear to the writ of error. This point was decided in the cases of McDonogh v. Millandon, 3 Howard, 693 ; The United States v. Yulee, 6 id., 605 ; and Buckingham et al. V. McLean et al., 13 id., 150. And these cases have been recognized and affirmed in the case of Carroll et al. t. Dor- sey et al., decided at the present term. " Indeed, any other rule would be unjust to the plaintiff in error, and is not required for the protection of the defend- ant. The latter is not bound to appear unless, he is legally cited, except for the purpose of moving to dismiss. He knows, or must be presumed to know, whether the notice which the law requires has been served on him or not. And if the objec- tion is made at the first term, the plaititiff, by a new writ and proper citation, might bring up the case to the succeed- ing term. But if the defendant does not, by motion at the first term, apprise him of the irregularity of his proceeding in this respect, and of his intention to take advantage of it, the plaintiff is put off his guard by the defendant's appear- ance ; and if the motion iS permitted at the second term, he will be delayed an entire year in the prosecution of his suit, whenever it is the interest of the defendant in error to delay and harass his adversary. "An affidavit has been filed by one of the counsel for the defendant in error, stating that he is the junior counsel in the case, and that he did not make the motion at the last term because the senior counsel was absent in Europe, and the deponent did not wish to decide on the expediency of the motion to dismiss without consulting him; that he expected him to return before the term ended, but the court adjourned sooner than he anticipated, and the senior counsel did not return until the court had finally adjourned / 684 Peacticb ok Weits of Eebob. PART B. to the next term. The facts stated in the affidayit cannot influence the decision of the motion. The absence of one, or of all the counsel employed by one party in the pursuit of other business, furnishes no ground 'for delaying a case in this court -without the consent of the adverse party. The motion comes too late, and is, therefore, oTcrruled." Chaffee v. Hayward, 20 Howard, 308. The observations, near tlie beginning of this quota- tion, that, "if the motion had been made at the last term within a reasonable time, &c., should, at least, serve as a caution against deferring the motion to dismiss, especially after appearance, even during . the first term, and on the other hand it seems per- tinent to suggest that before allowing the plaintiff in error to proceed ex parte in the absence of the defendant in error, to argue the cause, the court doubtless holds itself bound to see that it is regu- larly before the court, and that, unless it should appear from the return that a proper citation had been duly served, it may be presumed the cause would be dismissed. It is proper to add, however, that I have met with no reported decision to this effect. Waiver by The appearance of the defendant in error is no ■umiteSTtr impediment to a motion to dismiss the cause for want of , citatioD. want of jurisdiction, or for any irregularity other than the want of a citation. The United States v. Yates et al., 6 Howard, 605. MotioDB. By one of the rules of the supreme court Friday To be made ' ■' ou Friday, of each Week IS appointed for the hearing of such motions, not required to be put on the docket, as shall be made before the court shall have entered upon the hearing of a cause upon the docket,' and To be in by another rule, all motions are required to be in writing, stating the facts of the case and the object of the motion." ' Appendix, Rule 27, Rules S. C. " Appendix, Rule 6, Rulea S. C. Pkaotice on Writs of Ebeor. 685 The rules are silent with respect to notice of c hap. 4. motions of the adverse party. They are, on Friday, publicly announced, by the counsel oflFering them, and delivered to the clerk ; if, as is usually the case, the opposite counsel is present, no further notice is " required, and the motion may be called up, either at a later hour on the same day, if the counsel for the adverse party consents, or on the next motion day. If counsel has appeared, but is not present, the court expects him to have timely notice, and will, if necessary, give the proper directions for that purpose. If, which rarely happens, the motion is founded on some paper dehors the record, a copy of it is to be furnished to the opposite counsel. The reader has already been made aware, that, in Motione to the practice of the supreme court, the word dismiss ^j^^ble is generally used instead of the common law term quash, to signify the summary disposition of a writ of error or appeal in that court, without inquiring into the merits of the controversy ; and it is well to understand clearly for what causes a motion for this purpose will be granted. In the case of Brooks v. Norris (11 Howard, 204), it was decided that the defendant in error might, in this form, avail him- self of the five years' limitation of the right to bring a writ of error. It has been uniformly held, that a writ of error will.be dismissed on motion for want of appellate jurisdiction of the case; as where the amouAt is insufficient, or the judgment or decree of the court below is not final, or the case is not embraced by the 25th section of the judiciary act when the writ of error is to a state court. And in the case of The Steamer Brigadier-General R. H. StoTces (22 How- ard, 48), a motion was made to dismiss the cause on when not. the ground of a want of jurisdiction in the court below. B ut the motion was denied ; the chief j ustice Peacticb on Writs oe Erbok. PAKT 5. observing, that the question of jurisdiction in tliat court was a proper one for appeal to the supreme court, and for argument when the case should be reached. In HecJcer v. Fowler (1 Black, 95), a like motion was made, on the ground that no error appeared on the face of the record. The court denied the motion, saying, that, where a judgment appears to have been rendered which the party is entitled to have revised in this court, and it is brought here for revision upon proper process duly issued, the case must await the final hearing.' It was inci- dentally said, in this case, also, that "want of juris- diction and irregularity of the writ are the only grounds for dismissal. ' ' We have j ust seen, however, that the lapse of five years before bringing the writ had been adjudged a ground for dismissal, and it is not to be supposed that the court designed to exclude that case. The omission, in direct terms, to include it must either have been inadvertent, or else it must have been intended to include it as an irregularity. The general rules of the supreme court, as we shall see in the sequel, moreover, entitle the defendant in error to a dismissal of the cause upon the failure of the plaintiff or appellee, or, in case of his death, of his representatives, to appear and prosecute the writ or appeal. The result. The result then is, that want of jurisdiction in the appellate court, the statute bar, irregularity in the proeess and non-appearance, are the only grounds on which a writ of error or appeal will be dismissed on motion. canse dia- After a cause has been dismissed for irregularity, miesed . a j j r^to?edlt ^* cannot be remstated at a subsequent term. The sabsequent -^nt of error is then functus officio, and cannot be revived. Rice v. The Minnesota and N. W. JR. B. Co., 21 Howard, 82. ' See, also, Taylor v. Morton, 3 Black, 481. Peactice oh Writs of Eeeoe. 687 We have seen that the statute expressly requires c hap. 4. an assignment of errors and prayer for reversal to Assign- be annexed to the writ of error and returned with it, enor and along with the transcript of the record ; and it is evident that this requirement can be complied with only by filing the assignment with the clerk of the court below, before the transmission of the transcript to the appellate court. At the outset, this clause of the statute appears by the reported cases to have been considered obligatory according to its literal meaning. The assignment of errors was filed with Toijefiied o ° in the the clerk of the court below, and the joinder in the *pp^J'*'® appellate court ; nor is it to be doubted that this may with strict legal propriety stUl be done. But I learn from the best authority, that the more usual practice in the supreme court now is, to defer the assignment until after the return has been made. Indeed, there is an early rule of the supreme court requiring the defendant in error to assign errors at the commence- ment of the term of that court, or as soon thereafter as the record shall be filed with the clerk, '■'■if errors shall not have been assigned in the court ielowy This rule is omitted in the revised rules of 1858, and of course has ceased to operate. It shows, however, that, even at this early date, the statute was not always complied with, — a fault perhaps attributable to the anomaly of requiring errors to be assigned in a cause before it has reached the appellate court. How this anomaly found its way into a statute drawn up with so much ability, and marked by so much skill and learning; or under what views of the subject the supreme court felt itself warranted in permitting the law to become a dead letter, it would be impertinent to inquire. The assignment is entitled in the appellate court, how ,,.,., •• a • i. entitled. and of the term at which the writ of error is return- able. And so of the joinder in error. As none Peactioe on Weits of Beeok. PART 5. but questions of law are subject to revision in tlie , national courts by writ of error, and as these ques- / tions must always appear upon the record, there can rarely, if ever, be occasion for any other than a general assignment of errors or joinder; forms for which are given in the appendix. canses, At the close of the last chapter mention was made when to be ^ KiSe9°^' °^ ^® ^*^ ^^^® °^ *^® supreme court, requiring the .plaintiff in error or appellant, when the judgment or decree to be brought up for review was given thirty days before the term of the supreme court, to see that the record is filed, and the case docketed within the first six days of the term ; and when given less than thirty days before the term, within the first thirty days of the term, on pain of having the cause docketed at the instance of the defendant in error or appellee, and on his motion dismissed, upon the production of the certificate of the clerk of the court below, "stating the cause, and certify- ing that a writ of error or appeal had been sued out and allowed" therein. The rule also declares (rather unnecessarily, I should think), that after such dismissal the plaintiff in error or appellant shall not be entitled to have the record filed, and the cause docketed, unless by order of the court. But, inasmuch as the party defendant may prefer to have the cause heard and decided at once, rather than run the risk of a second writ of error or appeal, the rule further provides that he may, at his option, file a copy of the record, and docket the cause, and it shall then stand for argument at the same term, as it also shall, when docketed by the plaintiff in compliance with the rule. With respect to writs of error and appeals from California, Nevada, Washington, New Mexico and Utah, the rule, as amended by rule 33, substitutes Practice oisr "Weits of Eeeob. 689 sixfy days in lieu of the thirty days, mentioned in c hap. 4. the rule. This rule was designed to prevent delay arising Apparent from negligence, or a desire to protract the proceed- ^'^^^^(J^^ ings, on the part of the plaintiff in error or appel- t^e statute. lant. But it seems, on its face, hardly consistent with the express requirement of the statute, that the adverse party shall have thirty days' notice, especially as the later decisions of the court per- emptorily require the writ of error and citation to be made returnable, in all cases, on the first day of the next term. For whatever may be the date of the judgment or decree, the writ of error or appeal may not be brought until within a few days before the term ; and yet the rule requires the record to be filed, and the cause placed upon the docket, within the first six days qf the term, in all cases where the judgment or decree was given thirty days before its -commencement, and directs that the cause shall stand for argument at the same term. The earlier decisions, in order to secure a compliance with the statute, left it optional with the defendant, when the citation was served less than thirty days before the term, whether the cause should be brought to argu- ment at that [term or continued to the next term ; and there was a general rule to this effect ; and in one case it was said that the citation must in all / cases be served thirty days before the return day of the writ. It may be presumed, however, that the Howrecon- court will hold itself bound, notwithstanding the tilstltute. rule, to allow the defendant or appellee, when he desires it, the full period of thirty days after service of the citation, to prepare for the argument. Besides, the court always continues in session long after the expiration of tha,t period; and the causes being arranged upon the docket, according to the dates of the issues, no writ of error or appeal brought 87 690 Peactice on "Writs of Ekeob. PAET 5. Clerk's certificate necessary. But not if the original writ and citation be produced. Must con- tain the names of the parties in full. Motion to dismiss to be season- ably made. Order of dismissal, nisi during the term. shortly before, a term is likely, moreover, to be reached untLl very late, if at all, during that term. That part of the 9th rule which gives to the defend- ant in error, or appellee, the right to have the cause docketed and dismissed, has given rise to several decisions, most of them relating to the certificate of the clerk of the court below, on which the motion to dismiss is to be founded. ^ Touching this subject the following points have been decided : The certificate must be produced, although the transcript of the record has been lodged by the plaintiff in error, or appellant, with the clerk. Macomi v. ArThstead, 10 Peters, 407; West v. Brasier, 12 id., 101. But the production of the original writ of error and citation supersedes the necessity of a certificate. Amis v. Pearle, 15 Peters, 211. The certificate must name all the parties to the record in full. "A B and others" is insufficient. The "others" must be named. Smith v. QlarJc, 12 How., 21 ; Holliday v. Batson, 4 id., 645. Although the plaintiff in error or appellant has failed to com- ply strictly with the rule, by having the record filed and cause docketed within the times prescribed by the rule, yet, if the record be filed afterward, before the motion to dismiss, the motion will be denied. PicJcetfs Heirs v. Legerwood, 7 Peters, 144. And where a mption on the part of the defendant to dismiss the cause was deferred to the next term after the return term, and then was made simultaneously with a motion by the plaintiff in error to docket the cause, the latter motion was granted. Owens v. Tier- man' s Lessee, 10 Peters, 24. Under the amended rule and the latter decisions, this case, I imagine, is not likely to be followed. A judgment of dismissal under the rule is nisi only during the term, and, when it can be done without substantial injustice to . Practice on "Writs of Error. 691 the defendant, the court may reinstate the cause, c hap. 4. Owin V. Breedlove, 15 Peters, 284.' To bring a case within that part of the rule which certificate to 1)G CiW" relates to cases in which the writ of error or appeal Jf^*^'" was brought thirty days before the return term, the certificate must show with certainty when the judg- ment or decree was rendered ; and, therefore, where the statement was that a final judgment was ren- dered in April term, 1850, of the circuit court, it was held insuflB.cient, because, non constat, that the terin was not continued by adjournment until within thirty days of the commencement of the term of the supreme court, when the motion was made. The certificate should have specified the day on which * the judgment was given. Rhodes v. The Steamship Galveston, 10 Howard, 144. But there is another rule to which it is necessary security for now to advert. It is the 10th of the revised rules, by which the clerk of the supreme court is required, in all cases, to " take of the party a bond, with com- petent security, to secure his fees, in a penalty of two hundred dollars, or a deposit of that amount, to be placed in bank, subject to his draft." And accord- ingly in a case where the clerk, upon the req^uest of the plaintiff in error to docket the cause, declined to do so for want of such bond, the court refused to allow it to be done ; but gave time to the plaintiff to comply with the rule ; in default whereof, the cause was to be docketed and dismissed on motion of the defendant. Owing s v. Tierman's Lessee, 10 Peters, 447. The same rule also directs, that, upon service and non-payment of the clerk's bill of fees, ' TMs case was decided before the rule assumed its present form, but ■would, I presume, still be adhered to, as would probably, also, another decision in harmony with it, that the clerk cannot properly certify the dismissal, until the close of the term. The Banlc of the United States v. Bwan, 3 Peters, 68. , * 692 Practice on Weits of Ekboe. PART B. Death of a party. Call of the docket. an attacliment shall issue against the party, or his sureties, to compel the payment. The party is sub- ject to an attachment independently of the rule, and need not therefore join in the bond. The rule applies to the plaintiff in error or appellant only ; not to the adverse party. "Party," in the rule, paeans the actor, the plaint- iff in error or appellee, who comes into the appellate court voluntarily, not the party defendant. Upon the death of either party to a vfrit of error or appeal, during its pendency in the supreme court, the representatives of the real or personal estate of the deceased party, according to the nature of the case, are entitled to be admitted as parties to the suit. The rule prescribes in detail the conse- quences of their omission to avail themselves of this privilege.' On the second day of the term the court com- mences calling the causes in their order on the docket. If either of the parties is ready for the argument, he will be heard. If neither is ready, the cause shall go down to the foot of the docket, unless good cause to the contrary be shown. No more than ten causes will be called on the same day, including the one, if any, under argument, con- tinued from the preceding day. Ko cause shall be taken up out of its order on the docket, or set down for any particular day, except under special and peculiar circumstances, to be shown to the court. Causes called in their order and put at the foot of the docket, if not again reached during the same term, are continued to the next term." Ss'fsto*' '^° ^^^^ ^^■^^' liO"^ever, an important exception has enceV^eJs ^®®^ ™^^® ^J statute. The act of July 13, 1866, ch. &c. ' 'Appendix, Rule 15, Rules S. C. 'Appendix, Rule 20, Rules S. C. Peactice oiT "Weits op Beeoe. 693 184, § 69 (14 Stat, at Large, 173), directs that "writs cbap. 4. of ejror in criminal cases shall have precedence upon the docket of the supreme court of all cases to which the government of the United States is not a party, excepting only such cases as the court, at their discretion, may decide to he of public importance." A rule has been made in accordance with this Ana so of '' rGVdlU.6 enactment, and comprising also revenue cases and causes, &c. others of public concern. The same rule also permits, with the leave of the two or moro cansea court, two or more causes, depending on the same maybe questions, to be argued together as one cause. See one- Appendix, Rule 34. When a cause has been called at two successive Non-ap- terms, and, on being called at the second term, second " ' term. neither party is prepared to argue it, it shall be dis- missed at the cost of the plaintiff, unless good cause be shown for further postponement.' The plaintiff in error, or appellant, is entitled to Plaintiff to -, -, -. XI 1. open and open and conclude the argument. close. Cross appeals are to be argued together, and the orosa argument is to be opened and closed by the plaintiff in the court below.' If, when a cause is called for argument, there is Non-ap- no appearance for the plaintiff in error, the defend- plaintiff. ant may have him called, and the writ dismissed, or may open the record and pray an affirmance." If there be no appearance for the defendant in Non-ap.- , n J 1 pearance of error, the court may proceed to hear an argument defendant ' •/ sr "in error. on the part of the plaintiff, and give judgment according to the right of the case.\ 'Appendix, Rule 19, Rules S. C. ^Appendix, Rule 23, Rules S. C. 'Appendix, Rule 10, Rules S. C. This fule, and the next, apparently from inadvertence, is silent as to the non-appearance of an appellant. ^Appendix, Rule 17, Rules S. C Peactice ok Writs of Bkeoe. PAET5. In all cases brought before the supreme court by Printed Writ of error, appeal, or otherwise, the parties have argnmentB. ^ ^.^j^^^ ^y. j^^^^^l agreement, within the first thirty days of the term, to submit their cause to the decis- ion of the court, upon printed instead of oral argu- ments, signed by an attorney or counselor of the ^ court, and filed within the time above specified, without regard to the number of the cause on the docket. Twenty copies of the arguments, signed in like manner, are to be filed with the clerk, to be dis- tributed as directed by rule 33. When this has not been done until the cause is called for argument, the cause may, nevertheless, be so submitted by either or both of the parties, pro- vided, that, when a printed argument is ofiered only on one side, it must be filed before the commence- ment of the oral argument on the other side, other- wise the cause will be heard and decided ex parted Printed Printed abstracts, points and authorities in the fomisiied. case, signed by an attorney or counselor of the court, must be filed before the argument will be heard ; and twenty copies thereof are required to be fiied with the clerk by the plaintiff in error or appellant six days, and by the defendant in error or appellee three days, before the case is called for argument. If furnished by the counsel on one side and not on the other, the former will be heard ex parte.'' But the case of Wright et al. v. Sill (3 Black, 544) is stated by the reporter to have been "submitted to the court upon the record, without any argument, written or oral." Possibly, however, briefs containing the points and the authorities relied on may have been submitted. Nnmberof The Same rule directs that no more than two ^^ited!* counsel shall be heard for each party ; and no coun- ' Appendix, Rules 30 and 33, Rules S. C. ' Appendix, Rules 21 and 31, Rules S. C. Practice on "Wkits of Eeeor. 695 sel shall speak more than two hours without special chap. 4. leave granted before the argument is commenced. And the circumstance that the cause involves many points makes no difference with respect to the num ber of counsel. 7 Cranch, 1. But in the case of McCulloch V. TTie State of Maryland (4 Wheaton, 322, note a), which involved a constitutional ques- tion of great importance, and in which the govern- ment had direpted the attorney-general to appear for the plaintiff in error, the rule was dispensed with. These rules contain other regulations relative to the argument of causes, for which I refer the reader to the rules themselves. On affirmance, interest is to be computed on the intereet. judgment of the inferior court from its date, at the rate allowed in the state whence it was brought for review. The same rule is applied to decrees in equity, unless otherwise specially ordered. , < The 23d section of the iudiciary act directs that Bamages " •' onafflrm- upon the affirmance of a judgment or decree,, either ance. in the supreme or a circuit court, "just damages for his delay, and single or double costs, at their discre- 'tion," shall be adjudged to the defendant in error. The language of the act would seem to render it obligatory on the courts, in all cases of affirmance, to adjudge damages, and to give them a discretion- ary power with respect only to costs. But such has not been its practical effect in the supren^e court ; for, according to the 23d rule of that court, it is only when a writ of error, operating as a supersedeas, appears to have been sued out merely for delay, that damages are to be awarded. The rule fixes the amount at tender centum per annum on the amount of the judgment.' The right to recover costs on error or appeal to coflts. the supreme court, on dismissal, on affirmance, and on reversal, is regulated by rules 24 and 30.' ' Appendix. 696 Peacticb oir "Writs of Ekkoe. PAET 5. On dismissal, except for want of jurisdiction, costs On die- are allowed to the defendant in error or appellee, °"°** ■ unless otherwise agreed by the parties. On affirm- On afflrmance, costs are allowed to the defendant in error or appellee, unless otherwise specially ordered. onreverBai. On reversal, costs are allowed in like manner to the plaintiff in error or appellant. United '"' -'■^ ^^^^^ ^° which the United States are a party no aparty*""" costs are allowed for or against them. Mandate on The Same rule requires the clerk, on the dismissal dismissal. » , . -, , ,, 01 a cause, to issue a mandate, or other proper pro- cess, in the nature of a procedendo, to the court below, for the purpose of informing it of the decision, so that the. requisite further proceedings may be Costs to be had ; and if costs are adjudged, the amount is to be inserted, and a taxed bill of items annexed. No argn- , The court will not hear arguments on Saturday 1 on satur- (uuless for Special cause it shall order the contrary), but will devote that day of each week to the other business of the court. ' me'ntfl"&c "^^^ ^^^ fixed upou for adjournment will be • announced ten days before ; and no cause will be taken up for argument or allowed to be submitted during the last three days." Dismissal It may happen to be the mutual desire of the parties ' in vacation. . „ - , to a writ of error or appeal, to have it dismissed in vacation 5 and this they are entitled to have done, on filing with the clerk an agreement to that effect, stat- ing the terms agreed on as to costs, and paying his fees, who will thereupon enter a dismissal. ° The agreement may by signed by the parties, without the concurrence of their attorneys or coun- sel, and the cause will not be re-instated at the ' Appendix, Rule 37, Rules S. C. 'Rule 38. 2 Rule 39. Pbactice on Writs of Eekob. 697 instance of tlie latter, on a representatioli that their chap. 4. lien for costs wonld otherwise be lost. Piatt v. " Jerome^ 19 Howard, 384. In the case of Hudson et al. y. Ouestier (7 Cranch, 1), a rule having been obtained on the first day of term, to show cause why the case (which had been decided ten years before) should not be reheard, the Eehearing. rule was on a subsequent day discharged — the court remarking that "the case could not be reheard after the term in which it had been decided." See, also, 7 Wheat., 58. And in a subsequent case it was said that "no re-argument wUl be granted in any case, unless a member of the court who concurred in the judgment desires it ; and when that is the case it will be ordered without waiting for the application of counsel," Brown et al. v. Aspden et al., 14 Howard, 25. In this case the judgment had been affirmed by an equally divided court, eight judges only being present, and this circumstance was held to make no difference in the applicability of the above men- tioned rule. By the 24th section of the judicial act it is enacted — " That when a judgment or decree shall be reversed, in a judgment circuit court, such court shall proceed to render such judg- tion.^^^™ ment, or pass such decree, as the district court should have rendered or passed; and the supreme court shall do the -same on reversals therein, except where the reversal is in favor of the plaintiff or petitioner in the original suit, and the damages to be assessed, or the matter to be decreed, are uncertain, in which case they shall remand the cause for a final decision. And the supreme court shall not issue exe- cution in causes that are removed before them by writ of error, but shall send a special mandate to the circuft court to award execution thereupon." ' ' Act of 24th September, 1789, ch. 20 : 1 Stat, at Large, 73. 88 ■ ' Peactice on Wbits of Bkboe. PAET 5. And the 25th section of the same act, proTiding for the prosecution of writs of error in certain cases from the state courts to the supreme court, directs that such writs of error "shall have the same effect as if the judgment or decree complained of had been rendered or passed in a circuit court, and the pro- ceeding upon the reversal shall also be the same, except that the supreme court, instead of remanding the cause for final decision, as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution." In the case of The United States v. Sawyer (1 Gallis., 86), the question was discussed whether the exception contained in the second clause of the 24th section of the judicial act, above recited, is appli- cable as well to reversals in the circuit courts as in the supreme court, so as to make it the duty of the former courts, as well as of the latter, upon reversals therein, when further proceedings are necessary, to "remand the cause for a final decision" to the court below. The exception was held not to extend to the circuit courts ; and that a tenire facias de novo might be awarded returnable in the appellate court, to enable it to "render such judgment," &c., "as the district court should have rendered. ' ' No reasonable doubt can be entertained of the soundness of this decision ; but, on the contrary, it will probably occur to the reader, inasmuch as the language of the sec- tion relative to reversals in the circuit courts is im- perative, that "such court shall proceed to render," &c., that it must, therefore, be obligatory upon the circuit courts, in all cases where, upon reversal, resort to a jury is necessary, to award a venire returnable before themselves. But from the reports of subse- quent cases in the circuit court for the first circuit (in which the above mentioned decision was made), Pkacticb ok Writs of Error. and, also, in the circuit court for tlie sscond circuit, c hap. 4. it appears that it is the practice of those courts to direct a venire facias de novo, returnable in the dis- trict or circuit court indifferently, at discretion. After reversals in favor of the plaintiff in the supreme court in error from the circuit court, when the instrumentality of a jury is requisite to settle the rights of the parties, the cause is always to be remanded to the circuit court for a final decision ; and so, also, where the writ of error is from a state court, except, as we have seen, that when the case has been already once remanded, the court may, in its discretion, proceed to a final decision and award execution. Should a case arise in which it should be necessary for the supreme court to exert this dis- cretionary power, the judgment in such case would of course be entered up, and the record thereof remain in the supreme court. ' And so in a circuit ' The design of congress in vesting tlie supreme court with the authority conferred in tliis exception, doubtless was to provide against the possible occurrence of a refusal by a state court to execute a man- date of thesupreme court. And experience has shown that the appre- hension of such an occurrence was not wholly groundless. In the case of Fairfax's Devisee v. Hunter's Lessee (7 Cranch, 603), the court of appeals of Virginia declined to obey the mandate of the supreme court, issued upon the reversal of a judgment of the court of appeals, reversing the judgment of an inferior state court, upon the ground that so much of the twenty-fifth section of the judicial act as extends the appellate j urisdiction of the supreme court to state courts was, in their opinion, unconstitutional and void. To this decision a new writ of error was brought. 1 Wheat., 304. This, therefore, was a case (and so the supreme court pronounced it) falling within the excep- tion, and from the reporter's abstract of the points decided, prefixed to the report of the case, it would seem that the supreme court did pro- ceed to final judgment and award of execution. But from the report itself it does not distinctly appear what course was adopted. The court expressly waived a decision upon the question whether it had authority to issue a mandamus to the court of appeals, to enforce the former judg- ment ; and for aught that appears in the report, the mandate may have been sent to the inferior state court, whose judgment was affirmed, as was done in the case of CUmrk v. Earvoood, 3 Dallas, 343. 700 Pbactice oiT "Writs op Ekrob. PAST 6. court, where, upon a reversal therein, a venire facias de novo is awarded, and a trial had in that court ; the judgment is in like manner perfected in the same court, and execution issued therefrom. But in all other cases of reversal in either court, there is a remittitur to the court b^ow, as from the house of lords in England to the king's bench, accompanied by a mandate to enter such judgment, as, according to the decision of the appellate court, the court below ought to have rendered ; or, if further proceedings are necessary to bring the cause to a final determination, to institute such proceedings. Thus, when the judgment below was upon a special verdict, or case agreed in lieu of a special verdict, the appellate court proceed to give judgment, and merely direct the court below to enter such judgment. Hudson et al. v. Smith, 6 Cranch, 285, note. But, when a judgment upon a verdict for the plaintiff is reversed upon* a writ of error, founded upon a bill of exceptions to the opiniorl of the court below, the direction to such court is to award a venire de novo. Id. And where a judgment upon a special verdict is reversed upon the ground that such special verdict is too defective to enable the. court to give judgment upon the merits, the cause is remanded, with directions to award a venire de'novo. The Ches- apeake Insurance Co. v. Stark, 6 Cranch, 268 ; Liv- ingston et aly. The Maryland Insurance Co., id., 274. Where a judgment in favor of the defendant upon demurrer, drawing into question the validity of a plea to the plaintiff's declaration was reversed, the appellate court holding the plea to be bad, the cause was remanded, with directions to the court below to permit the defendant to plead anew to the action, if he should think proper to do so. McKnight V. Craig's Administrator, 6 Cranch, 183. In like manner, when the judgment of the court below upon Practice on Wbits of Ekeoe. 701 demurrer to tlie defendant's plea was in favor of c hap. *. the plaintiff, and sucli judgment was reversed, the judgment was, that the plaintiff take nothing by hia writ. Tliorndike v. The United 8tat.es, 2 Mason, 1. In the case of Slacum v Pomery (6 Cranch 221), the error relied upon was a defect in the plaintiff' s deola' ration ; and the defect being considered fatal by the supreme court, the judgment of that court was, that the judgment should be arrested, and that the cause should be remanded to the circuit court, with a direc- tion to that effect. In the case of Lanusse v. Barker (3 Wheat., 101), the judgment below was in favor of the defendant upon a general verdict, and the writ of error was founded upon a bill of exceptions taken at the trial. The counsel in the court below had entered into an agreement, which appeared upon the transcript of the record, that, if the judgment should be reversed, judgment should be rendered by the supreme court for some one of several, specified sums, according as that court liight be of opinion that the plaintiff below was entitled to recover the one or the other of such sums. The judgment was reversed, but the court refused to give effect to the agreement, or to direct the circuit court to enter judgment for a specified amount. They considered the agreement as forming no part of the record, and were of opinion, moreover, that to act upon it would be to exercise a power too nearly approaching the province of a jury, and, therefore, merely directed that a tenire de novO' should be issued. Inhere, on a writ of error, it appears that the juris- diction exercised by the circuit court was unauthor- ized, the judgment is reversed, and the cause- remanded with a mandate to dismiss it. OvMen v. Rea, 7 Howard, 729. When the judgment of the circuit court was a rightful judgment of dismissal for want of jurisdiction, the judgment is, affirmed. 702 Peacticb ON" Cbetimcatb of I>isaoeeemekt. PART 6. When tlie appellate jurisdiction does not extend to the case, the writ of error, as we have seen, is simply dismissed. But, when the appellate juris- diction is abrogated or ceases to exist during the pendency of the writ of error, the judgment ia that it be abated^ and, in such case, no mandate is to be sent to the court below, but only a certified copy of the judgment. McNulty v. Batty et al., 10 Howard, 73 ; S. 0., id., 646. CHAPTER V. OF THE PEOCEEDINGS XTPOlir CEBTIFICATE OE DI8- AGEEEMEKT IK OPINION BETWEEN THE JUDGES OF THE CIBCtriT COTTETS. This mode of bringing into action the advisory power of the supreme court is provided for by the "act to amend the judicial system of the United States," passed' April 29, 1802.' This provision has already been recited in the first part of this work, in treating of the jurisdiction of the supreme court. Several judicial decisions, affecting the jurisdiction of the supreme court under it, have also been stated. It embraces criminal as well as civil proceedings ; and extends to all causes in the circuit courts, whether originally commenced therein, or removed thereto from a state court, except that it is inapplica- ble to cases removed by writ of error or appeal from the district court ; becai;ise in such case the district judge is precluded from expressing any opinion. It extends also to every question of law, the deter- mination of which is necessary to the decision of a cause, however it may arise, whether, for example, upon the trial, upon motion in arrest of judgment, upon special verdict, or verdict taken subject to the 1 Crh. 31, § 6 : 3 Stat, at Large, 156. Practice ok Ceetificate op Disageeement, 703 Opinion of the court. But not to questions of fact ; c hap. 5. and, therefore, where one of the questions certified, was whether the evidence was sufiicient to prove an averment in the pleadings, it was held to be inad- missible. Silliman v. The Hudson Hiver Bridge Company, 1 Black, 582. Nor to questions of prac- tice subject to the discretion of the court ; the true rule being that the question must be one, a decision upon which, in the circuit court, would be subject to review on writ of error or appeal. Wiggins et al. V. Or ay et al., 24 Howard, 303; and see, also, Davis V. Braden, 10 Peters, 288 ; and Parker v. Nixon, id., 410. A recurrence to the state of the law before the passage of this act, and a glance at the important changes introduced by it in the organization of the circuit courts, will render the design and necessity of the provision in question sufficiently manifest. Previous to that time, the circuit courts were com- posed of two judges of the supreme court and the district judge of the district where the court was held, and the judges of the supreme court changed their circuits. If all the three judges were present, no division of opinion could take place. If only one judge of the supreme eourt attended, and a division occurred, the cause was continued until next term, when a different judge would attend. Should the same division continue, there would then be the opinion of two judges against t»ne ; and the law provided, that, in such case, that opinion should be the judgment of the court. But the act of 1802 made the circuit courts to consist of one judge of the supreme court and the district judge, and confined the several judges of the supreme court to their respective circuits, so that the same judge constantly attends the same circuit. This great improvement of the pre-existing system, was 704 Practice on Certificate of Disagkeemekt. PABTB. attended )vith this difficulty. The court bein^ always composed of the same two judges, any divi- sion of opinion would remain, and the question would continue unsettled ; and it was to remedy this inconvenience that this mode of proceeding was ittroduced. See the case of TTi& United States v. Daniel, 6 Wheat., 542. It is proper to remark, however, that, in practice, this convenient method of obtaining an authoritative decision upon questions of difficulty and importance is sometimes resorted to, without the actual expres- sion or even formation of hostile opinions between the judges of the circuit court. But it has been justly observed by Mr. Chief Justice Tanet that no party has. a right to ask such a certificate, nor can it be made consistently with the duty of the court, if the judges are agreed and do not think there is sufficient ground for doubt to justify them in submitting the question to the judgment of the supreme court. . The act provides that nothing therein contained shall prevent the case from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits. And, generally, when the question arises upon the trial, the cause may nevertheless prooeed. As, for example, when the question respects the admissibility of evidence, the evidence may be received, reserving the question of its admissibility to be decided, if necessary, upon a certificate of disagreement of opinion. The general rule, with respect to the form and con- tents of the statement to be certified to the supreme court, is, that it must contain so much of the pleadings and evidence as is necessary, in order fully to present the point or points upon which the judges disagree, and that these points must be stated with precision. Thus, in the case of Perkins v. Hart (11 Wheat., 287), the statement was held to be defective, because the Practice on Certificate of Disagreemekt. 705 points, as stated, involved questions of fact, wMcli c hap, s. ought to have been settled by the jury, as well as questions of law. So, in the case of Barnes v. Williams (11 Wheat., 415), the difference of opinion occurred upon a special verdict ; and the statement was held defective in that the special verdict stated the evidence of the fact instead of the/ac^ itself. In the case of Wolf v. Usher (3 Peters, 269), and of Saunders v. Gould, (4 id., 292), the particular point upon which the judges differed was not stated ; but the whole record was sent up, and it was certified merely that the court had differed in opinion, without stating what that difference was ; and on this account the state- ments were held to be defective. In such cases the supreme court refuse to take jurisdiction of the cause, but merely certify the insufficiency of the statement, and remand the cause to the circuit court for further proceedings, according to law. Such, at least, appears to have been the disposition of all the cases with which I have met except one. And, indeed, in the case of PerMns v. Hart (11 Wheat., 237), Judge Washingtok, who delivered the opinion of the court, after pointing out at length the defects in the statements sent up, con- cluded with the following observations : "Were this cause before the court upon a writ of error, the imperfections in the points reserved, which have been noticed, would render it proper to reverse the judg- ment, and to direct a venire de novo to be awarded. Being an adjourned cause, it would be impropeu for this court to give any such direction to the court below." But in the case above cited of Barnes v. Williams (forming the exception above alluded to), Chief Justice Marshall, in delivering the opinion of the court, is stated by the reporter to have con- cluded by saying, that "the case was, therefore, foo 89 706 Pbacticb OS Ceetificate of Disageeembitt. PART 6. imperfectly stated to enable the court to decide the questions upon which the opinions of the judges of the circuit court were opposed," and the cause was remanded to that court, with directions to award a venire de novo. The point upon which the disagreement happens is, "during the same term," to he "stated under the direction of the judges, and certified under the seal of the court, to the supreme court, at their next session to be held thereafter ; and shall, by the said court, be finally decided. And the decision of the supreme court and their order in the premises shall be remitted to the circuit court, and be there entered on record, and shall have effect according to the nature of said judgment and order." With respect to the proceedings upon these state- ments, after they are sent to the supreme court, it is sufficient to say that they are the same with those in cases carried up for revision by writ of error. The parties, as plaintiff' and defendant, respectively, are to be placed on the docket in the same manner in which they stand in the circuit court.' No other points than those upon which the judges of the circuit court differed are to be argued or decided. Ogle v. Lee, 2 Cranch, 33, and many subse- quent cases. A resort to this proceeding does not preclude the parties from afterward bringing a writ of error upon the judgment of the circuit court. Id. i When, upon a certificate of disagreement, the judges of the supreme court are also equally divided, the cause is to be sent back to the circuit court, and thence dismissed. Silliman v. The Hudson River Bridge Co., 1 Black, 582. ' There was a rule of the supreme court to this effect (No. 57), but it seems not to have been included among the rules of that court, as " revised and corrected " in December Term, 1858. See Appendix. PfiACTICB ON OeSTIFICATB OF DiSAGEEEMENT. 707 A form for the certificate is given in the appendix, c hap. 5. The manner in which the certificate ia to be drawn up and settled in the northern district of New York, is prescribed by rule 7 of the circuit court. See Appendix. • ' PART VI. OP CEETAIlSr ANOMALOUS SUBJECTS. CHAPTER I. PEIOEITY OP THE UNITED STATES. This is an important subject, wMch. has led to much, forensic discussion, and many judicial decis- ions ; but which it is believed is in general but little understood. • By the act of 3d March, 1797, "to provide more eflfeetually for the settlement of accounts between the United States and the receivers of public money,'" it is enacted — "That Tvliere any revenue officer or other person, here- after becoming indebted to the United States by bond or otherwise, shall become insolvent, or where the estate, of any deceased debtor, in the hands of executors or adminis- trators, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied ; and the priority hereby established shall be deemed to extend, as well to cases in which a debtor not having sufficient to 'Jay his debts, shall make a voluhtary assign- ment thereof, or in which the estate and effects of an absconding, concealed or absent debtor, shall be attached by process of law, as to cases in which an act of legal bank- ruptcy shall be committed." ' Ch. 20, § 5 : 1 Stat, at Large, 113. 710 Peioeitt of the United States. PARTS. By the collection act of March 2, 1799, it is enacted — " That where any bond for the payment of duties shall not be satisfied on the day it may become due, the collector shall, without delay, cause a prosecution to be commenced for the recovery of the money thereon, by action or suit at law, in the proper court haying cognizance thereof; and in all cases of insolvency, or where any estate in the hands of executors, administrators or assignees shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States, on any such bond or bonds, shall be first satisfied ; and any executor, administrator or assignees, or other person who shall pay any debt due by the person or estate from whom, or for which they are acting, previous to the debt or debts due to the United States from such person or estate being first duly satisfied and paid, shall become answerable in their own person or estate for the debt or debts so due to the United States, or so much thereof as may remain due and unpaid ; and acticAs or suits at law may be commenced against tliem for the recovery of the said debt or debts, or so much thereof as may remain due and unpaid, in the proper court having cognizance thereof; Provided, That if the principal in any bond which shall be gi-«en to the United States for duties on goods, wares or merchandise imported, or other penalty, either by himself or his factor, agent or other person for him, shall be insol- "Vent, or if such principal being deceased, his or her estate and eflFects, which shall come to the hands of his or her executors, administrators or assignees, shall be insufficient for the payment of his or her debts; and if, in either of the said cases, any surety on the said bond or bonds, or the executors, administrators or assignees, of such surety, shall pay to the United States the money due upon such bond or bonds, such surety, his or her executors, administrators or assignees, shall have and enjoy the like advantage, priority or prefer- ence, for the recovery and receipt of the said moneys, out of the estate and effects of such insolvent or deceased principal, as are reserved and secured to the United States ; and shall and may bring and maintain a suit or suits on Peiokity of the. United States. 711 the said bond or bonds, in law or equity, in his, her or their chap. i. own name or names, for the moneys paid thereon. And the cases of insolvency mentioned in this section shall be deemed to extend as well to cases in which a debtor not having suflacient property to pay all his or her debts, shall make a voluntary assignment thereof for the benefit of his or her creditors, or in which the estate and effects of an absconding, concealed, or absent debtor, shall have been attached by process of law, as to cases in which an act of legal bankruptcy shall have been committed." ' The following are the principles which appear to have been established by the judicial constructions which have been given to these enactments, in the numerous cases to which they have given rise. 1. Congress had the constitutional power to enact these regulations, in virtue of their authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or officer thereof. In constru- ing this clause of the constitution, it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems niight be adopted for that purpose, it might be said, with respect to each, that it was not necessary, because the end might be obtained by other means. Congress ffiust possess the cJioice of means, and must be empowered to use any means which are in fact conducive to the exer- cise of a power granted by the constitution. The United States v. Fisher, 2 Cranch, 358. 2. The fifth section, above recited, of the act of 1797, extends to debtors of the United States of every description, and not merely to delinquent " Ch. 23, § 63 : 1 Stat, at Large, 676. 712 Pbiokitt of the United States. PAET 6. revenue officers and persons accountable for public moneys, to which the preceding sections are lim- ited ; while the 65th section of the act of 1799 applies onlj to persons bound for the payment of those duties on imports and tonnage, which are the subject of the act. Id., and Beaston v. TTie BanTc of the United States, 12 Peters, 102. The act of 1797 was, therefore, held to embrace the case of an indorser of a foreign bill of exchange of which the United States were holders. The United States v. Fisher, cited above. 3. These acts create no lien in favor of the United States, but only a priority in payment, limited to the particular cases or states of things specified in the acts, while the debtor is living ; but taking effect generally if he is dead. No transfer of property, in the ordinary course of business, which would otherwise be valid, is therefore affected by them. The United States v. Fisher, 2 Cranch, 358 ; The United States v. Hooe et al., 3 id., 73 ; Conrad v. The Atlantic Insurance Company, 1 Peters, 386 ; Beaston v. BanJc of the United States, 12 id., 102. The priority of the United States, therefore, does not divest a specific lien, whether accompanied by possession or not ; and a fortiori, it does not supersede the rights of a mortgagee. Thus, in the case of Conrad v. The Atlantic Insur- ance Company, above cited, it was held that an assignment of a bill of lading of an outward bound ship, "and of the specie, goods, &c., to be pro- cured thereon and thereby, and any return cargo to be obtained, &c., by the proceeds thereof," ^ as col- lateral security for money loaned on a respondentia bond, was valid and effectual in favor of the assignee against the right of priority of the United States, as to a debt due to them from the assignor. Such a transfer gives to the assignee a right to take and Peioritt of the IJiiriTBD States. 713 hold, the proceeds of the outward bound cargo against c hap, i. any person but the consignee of the cargo, or a pur- chaser from the consignee without notice.' See, also, to the same point, the cases of Harris v. If Wolf, 4 Peters, 147; OonradY. Mcoll, 4 id., 291; Conrad \. The Pacific Insurance Company, 6 id., 262; and The United States v. The Canal Bank, 3 Story's R., 79. The importance of the case of Conrad v. The Atlantic Insurance Company is enhanced by the elaborate review and explanation it contains of the case of Thelluson et al. v. Smith, 2 Wheat., 396. According to the report of that case, it decides that the general lien of a judgment creditor upon the ' lands of his debtor is overreached and displaced by the priority of the United States ; and that to render it valid as against such priority vsdth respect to any poriion of the property of .the debtor, it is necessary to take out an execution and make a levy on such property. The controversy in that case was concern- ing the proceeds of a part of the lands of the debtor called the " Sedgely estate," which had. been sold on a junior judgment in favor of the United States, after he had brought himself within the purview of the acts giving priority to the United States, by an assignment of all his property. ' ' The real ground of the decision," say the court, "was, that the judg- ment creditor had never perfected his title, by any execution and levy on the Sedgely estate ; that he had acquired no title to the proceeds as his property ; and that if the proceeds were to be deemed general funds of the debtor, the priority of the United States to payment had attached against all other creditors ; and that a mere potential lien on land did not carry 1 The case of Oon/rad v. T?te Atlantic Insurance Company, is a highly- instructive one. It involyed several questions of great interest, which were discussed with extraordinary learning and ability, as well at the bar as by Mr. Justice^STORT in pronouncing the opinion of the court. 90 714 Pbioeity of the United States. PART 6. a legal title to the proceeds of a sale made under an adverse execution. "TMs," it is added, "is the manner in wMch this case has been understood by the judges who concurred in the decision ; and it is obvious that it established no such proposition, as that a specific and perfected lien can be displaced by the mere priority of the United States ; since that priority is not of itself equivalent to a lien." This explanation was sufficient in the view of a m'ajority of the court, to relieve the case then before them from any embarrassment arising from the case of Thelluson v. 8mit7i; but I do not understand it, whatever inferences the court might have been willing should be drawn from it, as distinctly implying any • repudiation of the doctrine of that case, as laid down in the reported opinion. On the contrary, the care which the court take to distinguish between specific and general liens, in which latter category they place judgments before an actual levy, would seem to imply an assent to that doctrine. Mr. Jus- tice Johnson, however, who gave a separate opinion, considered the decision of the court in the case before them as overturning the case, or, rather to use his own language, the report of the case of Thelluson v. Smith, and expressed his satisfaction that it did so. And he clearly showed that the special verdict in that case, rightly understood, involved no question of priority at all ; the judgment in favor of the United States not having been obtained until after the assignment of all the debtor' s property, and the sale from which the proceeds in question accrued having been a mere nullity, and being, of course, no impediment to the enforcement of the prior judg- ment. The case of Thelluson v. Smith did not, there- fore, require any decision upon a question of prefer- ence between the United States claiming a priority of payment under the act in question, and a judg- Peioeitt of the TJnited States. .715 ment creditor ; and however doubtful tHs question c hap. i. may have been left by the commentary of the court upon that case in Conrad v. The Atlantic Insurance Company, a decision of it unfavorable to the judg- ment creditor would seem to be little in accordance with the judicial construction in reference to other kindred questions which these acts have uniformly received. In the first reported case which arose under them, it was unequivocally declared that l^biey created no lien in favor of the United States ; and- this declaration has often been repeated and acted upon since. But a judgment creditor surely has a lien in regard to the debtor' s lands, general though it be until rendered specific by an actual levy ; and how can it be displaced by rights falling short of a lien? It is proper to add, however, that in the more recent case of Brent v. The Bank of Washing- ton (10 Peters, 596), the court appear to have con- sidered ,this question still an open one ; for, speak- ing of the priority of the United States, they say '■Ht has never 'been decided that it affects any lien, general or specific, existing when the event took place which gave the United States a claim of priority." In the case of Brent v. The Bank of Washington, it was held, that where the charter of a bank gave to the bank a lien on the stock held by a debtor for the payment of debts due to it, this lien would pre- , vail against the priority of the United States. The report of the case of The United States v. Mott et al. (1 Paine' s C. C. Rep., 188), is not sufficiently exact with respect to dates and some other particu- lars to render it perfectly intelligible. But, judging from the report, it would seem not to have occurred, either to the counsel or the court, that the fact of the defendants having a prior judgment, was a cir- cumstance of any importance at all. The reporter, it appears, considered the case as turning upon a ques- 716 ' Peioeitt of the United States. PART 6. tion of fraud in the assignment, thougli I do not per- ceive in tlie report any ground for such a conclusion. 4. Congress intended to define the insoUency which should bring the debtor within the law ; and, as this term is used in these Etcts, it imports such a general divestment of property as would in fact be equiva- lent to insolvency in its technical sense. It supposes that a]J. the debtor' s property has passed from him. A mere inability of a living debtor to pay bis debts is not sufficient ; but it must be manifested in one of the three modes pointed out in the explana- tory clauses of the acts ; and no evidence can be received of the insolvency of the debtor until he has been divested of his property in one of these modes ; for, while he continues to be the owner and in pos- session of the property, the priority does not attach, though he may in fact be unable to pay his debts. And the " voluntary assignment " of the debtor's "property" mentioned in these acts, means all his • property. Had the legislature contemplated a par- tial assignment, the words, or part thereof, or others of similar import, would have been ad^ed. 3 Cranch, 73 ; Prince v. Bartlett, 8 id., 431 ; Thelluson et al. V. Smith, 2 Wheat., 396 ; 1 Peters, 386 ; 12 id., 103 ; The United States Y. GlarTc, 1 Paine' s 0. C. Rep., 629. When the debtor is divested of his property in one of the modes specified in the acts, the person who becomes vested vdth the title is thereby made a trustee for the United States, and is "bound to pay the debt first out of the proceeds of 'the debtor' s prop- erty, saving, however, the rights of mortgagors and other prior incumbrancers. See, also, as to the duties and liabilities of the assignees of the debtor. Field et al. V. The United States, 9 Peters, 182. 5. Corporations are to be considered persons within the provisions of the fifth section of the act of 1797. Beaston v. Bank of the United States, 12 Peters, 102. Priority oe the UifiTED States. ' , 717 6. The priority of the United States confers no c hap, i. right to take the property of a partner from partner- ship eflfects to pay a separate debt due by such partner to the United States when the partnership effects are not sufficient to satisfy the creditors of the partnership ; it being a well settled rule that the interest of each partner in the partnership prop- erty is his share of the surplus after the partner- ship debts are paid ; and that surplus only is liable to the separate debts of such partner. 7. The priority of the United States attaches as well with respect to debts owing but not yet payable, ■ as with respect to those already payable when the insolvency or death of the debtor occurs. The United States V. The Bank of North Carolina, 6 Peters, 29. 8. In the case of The United States v. ClarJc (1 Paine' s 0. C. Rep., 629) it was held, that an action of assumpsit for money had and received, founded on the right of priority, might be maintained by the United States against the assignee of the debtor, to recover the proceeds of the debtor's property; and that it was not necessary that the debt should first t)e ascertained by a judgment against the debtor. Such an action would, however, of course, require the same proof of indebtedness, and be open to tjie same defense as a suit against the debtor. The suit in that case was against the assignee of a surety in. the paymaster's bond; and it'was held that the debt of the paymaster to the United States * was created by the advances made to him, and was to be considered as having accrued so as to consti- tute the surety a debtor of the United States, as soon as the principal failed to account for the public moneys advanced to him, as required by the condi- tion of his bond; without regard to the time of strik- ing the balance of his account on the treasury books, or to the time of commencing the suit. 718 Impeisoked Debtoks. PART 6. It was also further held, tliat an assignee is not liable until after notice to Mm of the debt due to the United States ; but that such notice need not be given, by the United States, and need only be such as would be suflScient to put a prudent man on inquiry. • It may not be amiss to add, that whatever ground for doubt there m^ have been heretofore, whUe all contracts made in pursuance of the laws regulating the post-office establishment were made with the post- master-general, whether debtors under such contracts came within the operation of these acts, there can be none now, since, by the act of July 2, 1836, all con- tracts of this description are required, thenceforth, to be made "to and with the United States.'" CHAPTBE II. IMPKISONEB DEBTOKS. While the acts of congress, collectively, provide for the liberation of all insolvent debtors imprisoned on executions issuing from any court in the Unitei. States, they divide such debtors into three distinct classes, and prescribe for each a different form of relief. It is proposed to state the provisions now in force, relative to each of these classes. 1. By the act of June 6, 1798, entitled '.'An act pro- viding for the relief of persons imprisoned for debts due to the United States," it is provided (sec. 1) — " That any person imprisoned upon execution issuing from any court of the United States, for a debt due to the United States, which he shall be unable to pay, may at any time after commitment, make application in writing to the secre- tary of the treasury, stating the circumstances of his case, and his inability to discharge the debt; and it shall there- 1 Ch. 270, § 13 : 5 Stat, at Large, 80. Imprisoned Debtoes. 719 upon be lawful ftfr the said secretary to make, or require to chap. 2. be made, an examination and inquiry into tbe circumstances , of the debtor, either by the oath or affirmation of the debtor (which the said secretary, or any other person by him specially appointed, are [is] hereby authorized to administer), or otherwise, as the said secretary shall deem necessary and expedient, to ascertain the truth ; and upon proof being made, to his satisfaction, that such debtor is unable to pay the debt for which he is imprisoned, arijd that he hath not concealed, or made any conveyance of his estate, in trust for himself, or with an intent to defraud the tlnited States, or deprive them of their legal priority, the said secretary is hereby authorized to receive from such debtor, any deed, assignment or conveyance, of the real or personal estate of such debtor, if any he hath, or any collateral security, to the use of the United States; and upon a compliance by the debtor, with such terms and conditions as the said secretary may judge reasonable and proper, under all the circum- stances of the case, it shall be laAvful for the said secretary to issue his order, under his hand, to the keeper of the prison, directing him to discharge such debtor from his imprison- ment under such execution, and he shall be accordingly discharged, and shall not be liable to be imprisoned again for the same debt; but the judgment shall remain good and sufficient in law, and may be satisfied out of any estate which may then, or at any time afterward, belong to the debtor.'" The second section declares false swearing under the act to be perjury, and by reference to an expired act of earlier date superadds the further penalty that "the court, upon the motion of the creditor, shall recommit the debtor to the prison, from whence he .was liberated, there to be detained for the said debt, in the same manner as if the said oath or affirma- ton had not been taken." The third and last section provides "that the ben- efit of this act shall not be extended to any person ' Ch. 49, § 1 : 1 Stat, at Large, 561. 720 Impeisoked Debtoes. PAET6. imprisoned for any fine, forfeiture, or penalty, ~ incurred by a breach of any law of the United States "or for moneys liad and received by any officer, agent, or other person, for their use." By this section, it will be perceived, a very large proportion of those likely to be imprisoned on exe- cution at the suit of the United States, is excluded. 3. For the purpose of providing for the case of persons thus excluded, viz., those 'who should be imprisoned in execution of judgments for fines, for- feitures OT penalties, or for the embezzlement of non- payment, according to law, of money helonging to the United States, the supiplementary act of March 3, 1817, was passed. By this act it is enacted — "That any person imprisoned upon execution for a debt due to the United States, which he shall be unable to pay, if Ms case shall he such as does not authorize his discharge ty the secretary of the treasury, under the powers given him by the act, entitled ' An act proyiding for the relief of per- sons imprisoned for debts due to the United States/ may make application to the President of the United States, and upon proof being made to his satisfaction, that such debtor is unable to pay the debt, and upon a compliance, by the debtor, with such terms and conditions as the president shall deem proper, he may order the discharge of such debtor from his imprisonment, and he shall be accordingly discharged, and shall not be liable to be imprisoned again for the same debt; but the judgment shall remain good and sufficient in law, and may be satisfied out of any estate which may then, or at any time afterward, belong to the debtor." ' The terms of these two acts are unquestionably comprehensive enough to embrace judgment debtors of the United States of every description. But by the act of March 3, 1825, to establish and regulate the post-office department, it is provided, ' Ch. 114 : 3 Stat, at Large, 399. Impkison-ed Debtors. 721 that "the postmaster-general shall be authorized to c eap. 2. discharge from imprisonment any person confined in jail, on any judgment in a civil cause, obtained in behalf of the department : Provided, it be made to appear, that the defendant has no property of any description : And provided, that such release shall not bar a subsequent execution against the property of the defendant.'" Under this act, and until recently, all contracts relative to the concerns of the post-office department were required to be made with the postmaster-gene- ral, and all suits growing out of such contracts were prosecuted in his name. The provision above quoted may, therefore, have been inserted from abundant caution, under the supposition that the description of imprisoned insolvent debtors therein mentioned might not be embraced within the general act giving a like authority to the president and secretary of the treasury. Or, under the system which then prevailed, it may have been deemed expedient to withdraw this particular class of debtors from the power of these functionaries, and to place them under that of the postmaster-general. But by the act ' ' to change the organization of the post-office department," &c., passed July 2, 1836, ' ' all bonds and contracts of postmasters, mail con- tractors and other agents of the post-office depart- ment," are required thereafter to "be made to and with the United States of America." " And by the eighth section of this act, provision-is made for the appointment by the president and sen- ate, of an "auditor of the treasury for the post-office department, whose duty it shall be to receive all accounts arising in the said department, or relative thereto, to audit and settle the same," &c. ' Ch. 64, § 38 : 4 Stat, at Large, 113. = Cli. 270, § 13 : 5 Stat, at Large, 82. 91 722 Impeisoned Dbbtoes. PART 6. Under tMs state of the law, therefore, it may well be questioned whether the provision above cited from the act of 1825, is not superseded. 3. The remaining description of insolvent debtors to be here noticed, consists of those who are im- prisoned on execution not at the suit of the United States. These are provided for by the "act for the relief of persons imprisoned for debt," passed January 6, 1800.' The first section of this act secures to all persons imprisoned on process issuing from the courts of the United States, the like privileges of the yards or limits of the jails in each state, as persons confined in like cases on process from the state courts. The second section enacts : "That any person imprisoned on process of execution issuing from any court of the United States, in civil actions, except at the suit of the United States, may have the oath or affirma- tion, hereinafter expressed, administered to him by the judge , of the district court of the United States, within whose juris- diction the debtor may be confined ; and, in case there shall be no district judge residing within twenty miles of the jail wherein such debtor may be confined, such oath or affirma- tion may be administered by any two persons who may be commissioned for that purpose by the district judge; the creditor, his agent or attorney, if either live within one hundred miles of the place of imprisonment, or within the district in which the judgment was rendered, having had at .least thirty days' previous notice, by a citation served on him, issued by the district judge, to appear at the time and place therein mentioned, if he see fit, to show cause why the said oath or affirmation should not be so administered : at which time and place, if no sufficient cause, in the opinion of the judge (or ^he commissioners appointed as aforesaid) be shown, or doth, from examination, appear to the contrary, he or they may, at the request of the debtor, ' Ch. 4: 2 Stat, at Large, 4. iMPEisoiirED Debtors. 723 proceed to administer to him the following oath or affirma- chap. 2. tion, as the case may be, viz.: 'You solemnly [swear or affirm) that you have no estate, real or personal, in pos- session, reversion or remainder, to the amount or value of thirty dollars, other than necessary wearing apparel; and that you have not, directly or indirectly, give7i, sold, leased, or otherivise conveyed to, or intrusted,any person or persons, with all, or any part of the estate, real or personal, whereof you have ieen the lawful owner or possessor, with any intent to secure the same, or to receive, or expect, any profit or advantage therefrom, or to defraud your creditors, or have caused or suffered to he done, any thing else whatsoever, whereiy any of your creditors may he defrauded.' Which oath or affirmation being administered, the judge or com- missioners shall certify the same, tinder his or their hands, to the prison keeper, and the debtor shall be discharged from his imprisonment on such judgment, and shall hot be liable to be imprisoned again for the said debt; but the judgment shall remain good and sufficient in law, and may be satisfied out of any estate which may then, or at any time afterward, belong to tbe debtor. And the judge or commissioners, in addition to the certificate by them made and delivered to the prison keeper, shall make return of their doings to the district court, with the commission, in cases where a commission hath been issued, to be kept upon the files and record of the same court. And the said judge, or commissioners, may send for books and papers, and have the same authority as a court of record, to compel the appearance of witnesses, and administer to them as well as to the debtor the oaths or affirmations necessary for the inquiry into, and discovery of the true state of the debtor's property, transactions and affairs." Section third provides — " That when the examination and proceedings aforesaid, in the opinion of the said judge or commissioners, cannot be had with safety or convenience in the prison wherein the debtor is confined, it shall be lawful for him or them, by warrant, under -his or their hand and seals, to order the marshal or 724 Imprisoked Debtoes. PABT6. prison keeper to remove the debtor to such other place, convenient and near to the prison, as he or they may see fit ; and to remand the debtor to the same prisqn, if, upon examination or cause shown by the creditor, it shall appear that the debtor ought not to be admitted to take the above recited oath or affirmation, or that he is holden for any other cause." I The foiartli section denounces the pains and penal- ties of perjury for false swearing under the act, and directs that — " In case any false oath or affirmation be so taken by the debtor, the court, upon motion of the creditor, shall recom- mit the debtor to the prison from whence he was liberated, there to be detained for 'the said debt, in the same manner as if such oath or affirmation had not been taken." ' The fifth and last section of this act contains the important provision — " That any person imprisoned upon process issuing from any court of the United States, except at the suit of the United States, in any civil action, against whom judgment has been or shall be recovered, shall be entitled to the privi- leges and relief provided by this act, after the expiration of thirty days from the time such judgment has been, or shall be recovered, though the creditor shoijild not, within that time, sue out his execution, and charge the debtor therewith." This section, it will be seen, is intended to pro- vide for the case of imprisonment of the debtor, on ' This latter clause, and tlie corresponding one in the act of 1798, seem not to have been well considered. During what period after the debtor is " liberated," is he to continue liable, " on motion of the creditor," to be recommitted ? Would not such a recommitment be equivalent to a conviction for perjury — and tha,t without a jury ? It could hardly have been intended to authorize a recommitment except upon evidence which would warrant a conviction on an indict- ment for perjury. Why then direct the debtor to be committed and " detained for the said debt," when provision is made for his punish- ment by imprisonment, as a criminal ? Impbisonbd Debtoes. 725 mesne process, or on surrender by bail, and the c hap, a. omission by the plaintiff to charge Mm in execution. By the supplementary acts of January 7, 1824,' and of April 22, 1824," it is provided that the oath prescribed by the act of 1800 may be administered, either by any judge of the supreme court of the United States or by the district judge for the district in which the debtor may be, or by any person com- missioned by either of such judges, for that pur- pose ; and that the person or persons so commis- sioned shall have full power and authority to issue a citation, directed to the creditor, his agent or attorney, if either live within one hundred miles of the place of imprisonment, requiring him to appear at the time and place therein nfentioned, if he see fit, to show cause why the said oath or affirmation should not be administered ; and further, that, if the creditor or his agent or attorney lives within fifty miles of the place of imprisonment, only fifteen days' notice shall be required; ' Ch. 3 : 4 Stat, at Large, 1. ' Ch. 39 : 4 Stat, at Large, 19. 726 Peocebdikgs for the Mitigation' PART 6. CHAPTER III. OF PEOCEEDIKGS FOK THE MITIGATION OE EEMIS- SION OP EINES, PENALTIES, FOEEEITtTKES AND DISABILITIES. The laws of the United States regulating com- merce aijid navigation, like those of all commercial nations, are necessarily rigorous in their exactions, and highly penal. They require the performance of certain acts, and prohibit certain others ; and inflict forfeitures and penalties for the non-observance of their injunctions, without regard in general to the motives of the offender. But however necessary such a code of legislation may be, in this particular instance, to regulate the conduct of the subordinate ministerial officers of the government, and even the decisions of judicial tribunals, its inflexible enforcement without the right of appeal to some dispensing power, would sometimes lead to intolerable injustice. Congress accordingly, by a series of temporary acts, passed soon after the organization of the government, pro- vided a mode of relief, in such cases, by authorizing the secretary of the treasury, upon a proper appli- cation to him for that purpose, to mitigate or alto- gether to remit the penalties of these laws, when, from the facts of the case first judicially ascer- tained, he shall be of opinion that such penalties "Aa«e been incurred without willful negligence or any intention of fraud.'''' The last of these acts, is that of March [3, 1797.' It was limited to two years, but was declared per- petual by the act of Feb. 11, 1800." It is entitled "An act to provide for mitigating or remitting the forfeitures, penalties and disabilities, accruing in ' Ch. 13 : 1 Stat, at Large, 506. «Ch. 6: 2 Stat, at Larfee, 7. OR Eemissiok of Fikes, etc. 727 certain cases therein mentioned ;" and it is still valid c hap. 3. and operative with, respect to all cases embraced by its terms, except those in which the fine, penalty, or forfeiture does not exceed fifty dollars in amount or value ; for these cases a simpler course of proceeding has been prescribed by a later act, which will be more particularly mentioned in the sequel. The-flrst section of the act of 1797 is as follows : " That whenever any person or persons shall have incurred any fine, penalty, forfeiture or disability,' Or shall have been interested in any vessel, goods, wares or merchandise, which shall have been subject to any seizure, forfeiture or disability, by force of any present or future law of the United States, for the laying, levying, or collecting any duties or taxes, or by force of any present or future act, concerning the regis- tering and recording of ships or vessels, or any act concern- ' ing the enrolling and licensing ships or vessels employed in the coasting trade or fisheries, and for regulating the same, shall prefer his petition to the judge of the district, in which such fine, penalty, forfeiture, or disability shall have accrued, truly and particularly setting forth the circumstances of his case, and shall pray th^t the same may be mitigated or remitted, the said judge shall inquire in a summary manner into the circumstances of the case ; first causing reasonable notice to be given to-the person or persons claiming such fine, penalty or forfeiture, and t© the attorney of the United States, for such district, that each may have an opportunity of showing cause against the mitigation or remission thereof; and shall cause the facts which shall appear upon such inquiry, to be stated and annexed to the petition, and direct their transmission to the secretary of the treasury of the United States, who shall thereupon have power j;o mitigate or remit such fine, forfeiture or penalty, or remove such dis- ability, or any part thereof, if, in his opinion, the same shall ' Such, for example, as the incapacity to hold any office under the United States for the period of seven years, inflicted by the fiftieth sec- tion of the collection act of March 3, 1799 (Ch. 33 : 1 Stat, at Large, 665), for a violation of its provisions. 728 J'ROCEEDIl>rGS FOE tHB MlTIGATIOlfr PAET 6. have leen incurred without willful negligence or any inten- tion of fraud, in the person or persons incurring the same, and to direct the praeecution, if any shall have been insti-' tuted for the recovery thereof, to cease and be discontinued, upon such terms and conditions as he may deem reasonable and just." ' This "act, it will be seen, extends to liabilities incurred by force of all future, as well as existing, laws of the description therein mentioned. With regard to the persons who h&^ve a right to petition, and the time at which such right accrues, the act is sufficiently explicit. It will readily be. seen, also, that in all cases in which, by the act, the secretary of the treasury is authorized to grant relief, he is invested with unlim- ited discretion as to the extent of the relief, and as to the terms and conditions upon which prosecutions, where they have been instituted, shall be stayed or discontinued. He has authority, therefore, to remit as well the share of the^flne, penalty or forfeiture to which the of&cers of the customs or of informers are by law entitled, as that which belongs to the United States. The act contains no limitation in point of time, of the right of petitioning or of power of remission ; but, from the nature of the case, some such limitation must exist. This is a point which has led to very earnest discussion ; but, so far at least as the interests of the officers of the customs or of informers . are concerned, may now be considered as definitely settled by, the case of The United States v. Morris (10 Wheat., 246) ; which, though it relates immedi- ately to a, forfeiture, is doubtless equally applicable to pecuniary fines and penalties. The question in ■ The second section of this act invests the state court with all the powers conferred by the first section, on the district judges of the United States; OH Remission op Fines, etc. 729 that case was, whether by a judgment or decree of chap, a condemnation against property seized for a violation of the non-intercourse laws of the tjnited States, the rights of the officers of the customs to a moiety of the value of such property had become absolute and fixed, so as no longer to be subject to the power of revision by the secretary of the treasury. After a very able argument at the bar, and an elaborate and luminous examination of the question by the court, it was decided that the power of remission continued until the actual receipt of the money arising from the forfeiture 'by the collector for distribution. It will be perceived, however, that this decision, in fixing the limits beyond which the power of remission can no longer be exerted, applies in terms only to the shares of the officers of the customs, and not to the interest of the United States. The question may therefore, perhaps, stUl be considered as open for discussion, whether so far as this interest in con- cerned, the secretary of the treasury may not remit at a still later stage of the transaction. It will doubtless occur to the reader that the rule established by this case authorizes a remission after as well as before a sale, by the marshal of the peti- tioner's property, provided the proceeds have not been paid over for distribution to the collector. It is presumed, however, that the supreme court did not contemplate any interference with the title ac- quired by the purchaser at such sale ; but intended, in case of such subsequent remission, not that the property of the petitioner should be restored, but that the proceeds of it, or such portion thereof as might be remitted, should be paid over to him. In a case highly favorable to the petitioner, and in which there would be danger that the period of grace would elapse before a decision by the secre- . tary of. the treasury could be obtained, probably the 92 730 Peocebdikgs fok the Mitigation PART 6. district judge would consider it his duty to grant an order for a temporary stay of proceedings in the suit against the property or person of the petitioner. Of tJie petition and notice thereof.'] Although the application for relief is to the secretary of the treas- ury, the petition is, by the terms of the act, to be presented, and may with propriety be, as in practice it usually is, addressed to the judge by whom the summary inquiry is to be made. It must truly and particularly set forth the circumstances of the peti- tioner' s cases ; that is, it must state truly and with precision how his liability was incurred, and the cir- cumstances upon which he relies for relief — as his ignorance or misapprehension of the requirements of the law, mistake, accident, misconduct of agents, or the like ; and that he had been guilty of no " will- ful negligence, or any intention of fraud." It does not require all the formal precision usually observed in a bill in equity ; but is very analogous in its nature to such a bill for relief, for example, against a judg- ment at law, and should be framed accordingly. The secretary of the treasury being authorized to direct any prosecution which may be pending to "cease and be discontinued upon sucli terms and conditions as he may deem reasonable and just," it is essential that the petitioner should state whether any and what legal proceedings have teen had in the casej and it is accordingly expressly required, by a rule of each of the district courts in JSTew York, that he shall do so.' It is not required by the act, nor by the rules of either of these courts, that the petition shall be veri- fied by the oath of the petitioner. It is, however, usual in practice to append to it an atfidavit of its truth; and, when this -is done, care should be taken, as in all other cases, that the affi- " Appendix, Rule 96, D. C. N. D. OR Rbsiissiok of Fines, etc. 731 davit be made either before tie judge, or one of chap. 3. the commissioners appointed to take affidavits and acknowledgments of bail, in the district in which the petition is preferred. The act requires the judge, before proceeding to the summary inquiry into the circumstances of the case, to cause ' ' reasonable notice to be given to the person or persons claiming the fine, penalty or for- feiture, and to the attorney of the United States for such district." This language would rather seem to imply the previous presentation of the petition, and an order thereupon, in each case, that such as may be deemed reasonable, be given. This, how- ever, is but matter of form ; and, according to a rule in each of the district courts in TSTew York, the petitioner may give notice, in the first instance, of his intention to present the petition, and then the necessary inquiry takes place at the time of its pre- sentation. This is merely doing by general rule, what it would otherwise be necessary to do by special order in each particular case. In the southern district this notice must be served four days, and, in the northern district, ten days before presenting the petition. As it regards the form of the notice, these rules require the service of "a copy of the petition, with a notice of the time and place of presenting the same." ' The service must ia all Cases be made upon the district attorney ; but, in order to ascertain upon what other persons it must also be made, it is neces- sary to refer to the 91st section of the act of March 2, 1799, "to regulate the collection of duties on imports and tonnage,"' prescribing the manner in_ which fines, penalties and forfeitures are to be dis- tributed. It is true this direction in terms applies 'Appendix, Rule 88, D. C. N. D. 2Ch. 33 : 1 Stat, at Large, 607. 732 Pboceedings foe the Mitigation" PART 6. only to such penalties and forfeitures as may be incurred under that particular act; and that there are other acts of the description enumerated iu the remission act, by which penalties and forfeitures are also inflicted ; but in every instance, as far as I have observed, the provisions of this act relative to the enforcement' and distribution of such penalties and forfeitures are referred to and expressly adopted. But before adverting to the provisions in question of the 91st section of the collection act, it will con- duce to perspicuity in relation to this whole sub- ject, to notice some of the provisions of the two next preceding sections. The eighty-ninth section, among other things, directs that aU penalties, accruing by any breach of the said act, shall be sued for and recovered, vnth costs of suit, in the name of the United States of America. It makes it the duty of the collector, within whose district ' any seizure is made or forfeit- ure incurred, to cause suits for the same to be com- menced vsdthout delay, and prosecuted to effect ; authorizes him to receive from the court, or from the proper officer thereof, the sum or sums so recovered, after deducting all proper charges, to be allowed by the said court, and directs him, on receipt thereof, to pay and distribute the same with- out delay according to law. The ninetieth section directs all vessels and goods condemned in virtue of the said act (and for which bond shall not have been given), to be sold by the marshal after fifteen days' notice, and directs the marshal, within ten days after such sale, to pay over the amount of such sales (deducting all proper * charges allowed by the court) to the clerk, or other . proper officer of the court, to be by him paid to the collector of the district. ' By district it will of course be understood is meant coUection district. OR Kemissiok of Fines, etc. 733 Then comes the ninety-first section, directing the c hap. 3. mode of distribution, as follows : "That all fines, penalties and forfeitures, recovered by yirtue of this act (and not otherwise appropriated), shall, after deducting all proper costs and charges, be disposed O'f as follows : One moiety shall be for the use of the" United States, and be paid into the treasury thereof by the collector receiving the same ; the otlier moiety shallbe divided between and paid in equal proportions to the collector and naval officer of the district, and surveyor of the port, wherein the same shall have been incurred^ to such of the said officers as there may be in the said districts ; and in districts where one only of the said officers shall have been established, the said moiety shall be given to such officer : Provided, Never- theless, that in all cases where such penalties, fines and forfeitures shall be recovered, in pursuance of information given to such collector, by any person other than the naval ofiicer or surveyor of the district, the one-half of such moiety shall be given to such informer ; and the remainder thereof shall be disposed of between the collector, naval officer and surveyor or surveyors in manner aforesaid : Provided, also, That where any fines, forfeitures and penalties, incurred by virtue of this act, are recovered in consequence of any information given by any officer of a revenue cutter, they shall, after deducting all proper costs and charges, be dis- posed of as follows : One-fourth part shall be for the use of the United States, and paid into the treasury thereof in manner as before directed ; one-fourth part for the officers of the customs, to be distributed as hereinbefore set forth; and the remainder thereof -to the officers of such cutter, to " be divided among them agreeably to their pay." ' ' The residue of this section is as follows : "And provided, likewise, That whenever a seizure, condemnation and sale of goods, wares or merchandise, shall take place within the United States, and the value thereof shall be less than two hundred and fifty dollars, that part of the forfeiture which accrues to the United States, or so mach thereof as may be necessary, shall be applied to the payment of the costs of the prosecution : And he it further provided. That if any officer or other person, entitled to a part or share of any of the fines, penalties- 734 Peocbedin'gs por the Mitigation PART 6. It follows, therefore, that notice is, in emry case, to be given to the collector ; and, according to the strict letter of the law, when the fine, penalty or forfeiture has been incurred in a collection district ia which there is a surveyor or naval officer, or both, notice ought to be given to him or them also. It is understood, however, that it has not hereto- fore been the practice of the judge for the southern district of New York, in cases of forfeiture or penal- ties incurred in the collection district of the city of JSTew York, in which there are both a surveyor and a naval officer, to require the service of notice upon these latter officers, but only on the collector. Per- haps, as the collector is made by law the immediate agent in the collection, receipt and distribution of the moneys arising from penalties and forfeitures, and is himself always entitled to a distributive share, it has been considered a sufficient compliance with the spirit of the act to cause him alone to be notified, as the representative as well of the interests of his associates as of his own. According to the terms of the printed rule of that court, one copy of the peti- tion and notice are to be served on the district attor- ney, "and another copy and notice on the persons claiming the fine," &c. It is clear, also, that, when the fine, penalty or forfeiture, is recovered in pursu- ance of information given by an informer or an officer of a revenue cutter, as mentioned in the sec- ■ tion last cited, a literal interpretation of the remis- sion act would require such informer or officer to be notified. The name of the informer or officer should in such cases (when known) be stated in the petition. or forfeitures, incurred in virtue of tliis act, shall be necessary as a ■witness on the trial for such fine, penalty or forfeiture, such officer or other person may he a witness upon the said trial ; but in such case he shall not receive, nor be entitled to, any part or share of the said fine, penalty or forfeiture ; and the part or share to which he otherwise would have been entitled, shall revert to the United States." OE Remission of Fines, etc. 735 In many cases, however, in wMch. information had c hap. 3. thus been given, the petitioner miglit be wholly ignorant of the fact. It is proper, therefore, when a seizure has been made, or a suit for a penalty com- menced, that he should state in his petition, if the fact is so, that he has no knowledge or good reason to believe that such seizure was made or suit insti- tuted in pursuance of information given to the col- lector by' any ;Derson entitled as informer to a share of such penalty or forfeiture. ■ The dtie service of the notice must of course be proved by affidavit made before the judge or a com- missioner. But by far the most difficult and embarrassing part of the proceeding remains to be considered. The judge is required "to inquire, in a summary manner, into the circumstances of the case," and to "cause the facts which shall appear upon such inquiry to be stated and annexed to the petition, and direct their transmission to the secretary of the treasury." It is the duty of the judge, therefore, to decide, from the evidence adduced, what are the facts of the case ; and from the facts thus ascertained, the secretary is to form his opinion whether the petitioner is guilty of "wUlful negligence or any intention of fraud." But, with respect to the .nature of the evidence to be adduced, and the mode by which it is to be obtained, the act is wholly silent. Generally, a judicial inquiry implies a resort to what in law is considered compe- tent and credible testimony as the only means of ascertaining the truth ; and, in the case of The Mar- gar etta (2 Gall., 415), (the only reported case to be met with relative to the duty of the judge under this act), it was held, that such was the necessary import of the provision in question ; and that the oath of the petitioner was, therefore, in its nature incompetent evidence. But it certainly was not intended to 736 PEOCBEDIirGS FOE THE MlTIGAXION PART 6. require of the judge, or of the petitioner, to work impossibilities ; nor could it have been intended so to fetter the benign spirit of this important and neces- sary remedy as to render it illusory or ineflfectual. And, to say nothing of the omission of the legislature to provide the means of compelling the attendance of witnesses, it is to be remembered that in many, perhaps a majority, of cases, the facts upon which the petitioner relies for exculpation are such as, from their very nature, either cannot be, or cannot fairly be presumed to be, known to any one but himself. In such instances, what can the party do more than to give a full explanation of the circumstances, and verify his statement by his own oath ? And if there is nothing suspicious upon the face of his statement, and the district attorney representing the United States, and the officers of the customs having a per- sonal interest in the proceedings, are unable to dis- prove, or in any manner invalidate it, why should it not be adjudged to be true, and, as such, transmitted to the secretary of the treasury? Unquestionably such statements ought to be scanned with a critical and distrustful eye. If there is good reason to be- lieve that others are acquainted with the facts, the petitioner should be required, if possible, to obtain, their testimony ; and, if the explanation is in any degree unsatisfactory, and it can be done without unreasonable delay or hardship, and especially if the district attorney or collector desire it, the petitioner should be required to submit himself to a rigid oral examination under oath. But an inflexible adher- ence, under all circumstances, to the rule laid down in the case of The Margaretta, it is, with great deference, apprehended, would impose an unrea- sonable and unjust restriction upon the remedy pro- vided by this act. OR Eemission op Pines, etc. 737 It is worthy of remark, too, that if the oath of the c hap. 3. petitioner ought to be excluded as evidence, upon the ground that his interest disqualifies him as a wit- ness, the oaths of the officers of the customs ought also to be excluded for the same reason ; and thus the means of arriving at the truth would be greatly abridged. Nor does the course here insisted upon, in fact involve such a departure from established judicial principles and usage, as at first view it may appear to do. It only treats the oath of the petitioner ais prima facie evidence of the truth. Bat it is the familiar practice of courts of equity to grant injunc- tions upon bills of complaint unsupported by any other evidence than the oath of the complainant, and to continue them until the positive denial or disproof of the bill on oath. And, indeed, the principle of adjudging that to be true which is alleged, even without oath, upon the one side, and not denied upon the other; runs throughout the science of pleading, and is uniformly acted upon both in equity and at law. Every decree upon a bill taken pro confesso, and every judgment by default, is founded upon a judicial ascertainment, without proof, of the fact alleged by tie party in whose favor such decree or judgment is pronounced ; and so, when the right of recovery is contested, every essential fact averred by. the plaintiflC, and not expressly denied by the defend- ant, is in like manner adjudged to be true. In each of the judicial districts in New York, the practice has been, and, unless it has recently been changed in the southern district, still is, in conformity with these views. The statemeni of facts.] By the rules of each of the district courts in New York, it is made the duty of the clerk to transmit the facts appearing on the inquiry, together with the petition, to the secretary of the treasury ; his fees are to be paid by the peti- 93 738 Pkocbedings fob the Mitigatios" PART 6. tioner before transmission ; and when several peti- tioners or distinct claimants, not being partners, or several cases or importations are embraced in one petition, the clerk, hy the rules x>t these courts, is entitled to the same fees as if a distinct petition had been presented in each case.' The formalities ■ observed relative to the drawing up and transmission of the statement of facts, proba- bly vary considerably in the several districts. In the northern district of New York an order is made and entered, reciting the fact of the presentation of the petition ; that it satisfactorily appears that reasonable notice has been given to the district attorney, and to the collector by whom the seizure was made (or within whose district the fine, penalty or forfeiture was incurred, &c., as the case may be), that the dis- trict attorney, or collector (or both of them, as the case may be), appeared (or did not appear, as the fact may be), that the judge thereupon proceeded summarily to inquire into the circumstances of the case ; and directing that the clerk annex to the petition-' a statement of the facts appearing upon such inquiry, and transmit the same to the secretary of the treasury. The clerk, under the direction of the judge, then draws up a statement of the facts, annexes it, together with a transcript of the rule tested (after the manner of process), in the name of the judge, and having the seal of the court afiixed to it, to the 'Appendix, Rules 88-91, B. C. N. D. ^ The act in terms requires tlie statement of facts to be annexed to the petition, and transmitted, &c. Perhaps its spirit would warrant the transmission of a copy of the petition instead of the original, and if so, it would be in more strict conformity with legal usage to retain the original in the clerk's office. The literal construction of the act, how- ever, seems to be the safer one. But it is proper that the clerk should at least retain and deposit in his office a copy of the petition, and of the statement of facts. OR Eemission of Fines, etc. 739 petition, and transmits the wliole to the secretary of c hap. 3. the treasury. Warrants of remission.] When the decision of the secretary is in favor of the petitioner, a warrant of remission, nnder the seal of the department, is sent to the clerk of the court whence the statement of facts was received. An exemplification of this war- rant, under the seal of the court, is then furnished by the clerk to the petitioner ; and, provided the case is one to toMch the authority of the secretary extends., hut not otherwise., it constitutes a valid defense against a legal prosecution for the fine, pen- alty, forfeiture or disability remitted. When the decision is adverse to the petitioner, such decision is also, in like manner, transmitted to the clerk. The amendatory act, alluded to at the beginning of this chapter, is that of July 14, 1832.' It is brief, and is as follows : "That, in all cases of fine, penalty, or forfeiture, men- tioned and embraced in the act entitled 'An act to provide for mitigating or remitting the forfeitures, penalties and disabilities, accruing in certain cases therein mentioned,' or in any act in addition to or amendatory of the said act, and not exceding fifty dollars in amount or value, the secretary of the treasury be, and he hereby is authorized, if, in his opinion, the said fine, penalty or forfeiture was incurred without willful negligence or intention, or fraud, to pre- scribe such rules and mode of proceeding, to ascertain the facts, as, in his opinion, may be convenient and proper, without regard to the provisions of the act above referred to ; and upon said facts, so to be ascertained as aforesaid, the said secretary may exercise all tlie power conferred upon him, in and by the said act, as fully as he might have done had said facts been ascertained under and according to the provisions of the said act." • Cli. 233 : 4 Stat, at Large, 597. 740 Of Nattjealization. PABT 6. The sole design of tMs act, it will be obseved, is to dispense in the cases therein specified, with the judicial inquiry prescribed by the original act. Whether the secretary of the treasury has seen fit to prescribe and promulgate prospectively any "rules and modes of proceeding to ascertain the facts;" or whether in each case, on being applied to for information, he indicates what will be required of the petitioner in the particular case ; or, lastly, whether the petitioner is left to follow the dictates of his own judgment in the first instance, relying on his own oath alone, or sujJported by the oaths of others, for the verification of his petition, until the secretary shall either adjudge the evidence sufficient, or pronounce it unsatisfactory, and, in his discretion, either deny the petition absolutely, or indicate the deficiency, and afi"ord to the petitioner an opportunity to supply it, I am not appraised. CHAPTER IV. OF WATUKALIZATION. Among the powers confided by the constitution to congress is that establishing a uniform rule of No^ state naturalization throughout the United States. This tionkwe'!" PO'w^ei" is now well understood to be in its nature • exclusive ; and considered in all its bearings, is cer- tainly one of great importance. In pursuance of it an act was passed at the second session of the first congress. Since that period the subject has repeat- edly occupied the attention of the national legis- lature, until at length a long series of conflicting legislation has involved it in considerable apparent perplexity. This is the more to be regretted on account of the great disadvantage, as it respects the means of obtaining correct information, under which the class of persons labor whose rights it is Ob Natuealizatiok. 741 the object of these laws to regulate ; and on account c hap. 4. of the frequency with which the courts of record of every grade throughout the union are called upon to act upon the subject. So far, however, as it con- cerns merely the conditions of admissionto the rights of citizenship, and the proceedings requisite for that purpose (a clear explanation of which is all that will here be attempted), the law as it previously stood has been much simplified by the last act upon the subject, of May 24, 1828.' The following exposition of the existing law rela- .tive to this subject is believed to be accurate, and it is hoped may prove intelligible and useful. Provision is made for the naturalization only of "free white persons."" Application for this purpose may be made to any to what circuit or district or territorial court of the United p°ica«on' may be states, or to any court of record having a common made. , law jurisdiction, and a seal and clerk or prothono- • tary of any individual state. Act of April 14, 1802.' The applicant must have resided within the limits Previous and under the jurisdiction of the United States for in aii cases at least five years immediately preceding the time of his application ; and must also have resided one year, at least, in the state or territory in which the court to which his application is addressed is sitting.* In proof of such previous residence, the courts are how expressly prohibited from receiving the oath of the applicant, but are directed to require "the oath or > Cli. 116 : 4 Stat, at Large, 310. ^ As to tie description of persons who are to be considered as falling within this designation, see 3 Kent's Commentaries, 8th ed., 36. 2 Ch. 38, §§ 1, 3 : 3 Stat, at Large,* 155. * Id. The act does not, in terms, require such residence to have been during the loMt preceding year. But from the obvious policy of this provision, there is much reason to conclude that such was the intention of congress, and such it is apprehended is its true construction. 742 Of NATUKALIZATIOlir. PART B. Declara- tion of iu- teation to be made hiio years before ad- mission. •affirmation of citizens of the United States;" that is, it is presumed, of at least two citizens ; and the names of these citizens as witnesses of the fact of such residence, and also the place or places, of the applicant's residence. for the last five years, are to be stated in the record to be made of the proceeding by the clerk of the court.' It is proper.now to notice and explain a distinction made by the existing laws between the case of those who arrived in the United States before, and those arriving after the 18th of June, 1812. The first condition of admission imposed by the act of April 14, 1802, above cited, is as follows, viz. : that the applicant shall have declared on oath or affirmation, before one of the courts above mentioned, three years at least before his application for admis- sion, that it was ionajlde his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and partic- ■ I have stated, the latter requirements, of obtaining the testimony of citizens to the fact of residence, and of inserting the names, &c., in the record, as applicable to all cases, upon the authority of the second section of the act of May 24th, 1828 (ch. 106), as upon the whole the safer construction of it ; though it is certainly questionable whether it embraces by far the most numerous class of applicants, viz., those who have come to reside in the United States since the 18th day of June, 1812 ; and of whom, as we shall presently see, a condition is required, which is not exacted of those who came at an earlier date. In effect, however, the question is not very important ; because, by the act of 1802, which governs the rights in this respect, of those who arrive subsequently to 1812, the oath of the applicant cannot be received to prove his residence, but the court is bound to require satisfactory proof, by other evidence. This, it is true, would leave the court at liberty to receive the testimony of aliens, and, if it thought proper, to rely upon the evidence of only one witness. But in regard to a fact in its nature of so much notoriety as the residence of an individual, there would in general be no hardship in requiring the evidence of two citizens to prove it ; and, indeed, to do so, would be but a reasonale exercise of discretion, under the act of 1802, requiring, in general terms, only satisfactory proof. Of Nattjealizatiok. 743 iilarly hj name, the prince, potentate, state or sover- chap. 4. eignty: whereof lie may at the time be a citizen or subject. Bnt by the act of May 26, 1824, this decla- Ma^te^ ration may be made before the cler^ of one of those "recoun , or cleric. courts, as well as before the court itself ; and may be made only two years, instead of three, before the time of admission.' As thus modified, the condition is still obligatory upon those aliens who did not arrive in this country before the the 18th of June, 1812." A compliance with it must therefore be proved at how . the time of the application. The mode of proof is ^""^'*' not prescribed by any law now in force. Where the declaration was made before the court, or the clerk of the court, to which the application for admission is made, doubtless the exhibition of the original record of it would be sufiicient. If it was made before a court, or a clerk of a court, other than that to which the application is made, an exemplification of the record of it, under the hand and seal of the clerk of such court, would be competent, and prob- ably the only competent evidence. But by tlie act of May 24, 1828, those aliens who From aliens arrived in the United States before the 18th of June, ^efore^isia, * Tin nrfivinim ' no previoua 1812, are exonerated from the performance of this requlrea™ Provided, ' Cli. 186, |§ 3, 4 : 4 Stat, at Large, 69. *"• ^ The act of 1803, § 3, also requires that aliens who should arrive in the United States subsequent to the date of its passage, should, if of the age of twenty-one years, report to the clerlt of one of the above men- tioned courts, his or her name, birthplace, age, nation, allegiance, the country whence he or she emigrated, and tbe place of his or her intended settlement ; all which was to be recorded by such clerk ; who was to furnish a certificate of such report, which the alien was required to produce to the court at the time of his application. Those who were under the age of twenty-one or were held in service, were in like man- nerto be reported by their parents, &c. This provision, after undergoing a modification by the act of March 33, 1816, was, together with the, enactment by which it was modified, wholly repealed by the act of May 81, 1838. 744 Of Naturalization. PART 6. Time of arrival and residence, how proved. To te set forth in record of admiBBion. condition: Provided, That the applicant, when he presents himself for admission, shall (in addition to what is above stated as required in all cases), prove, to the satisfaction of the court, that he was residing within the limits and under the jurisdiction of the United States, -before the said 18th day of June, 1812, and has continued so to reside/ We have already seen that the last five years of such residence must be proved by the oaths or aflSirmations of at least two citizens of the United States. But this req[uirement does not extend to the antecedent por- tion of such residence. That is only required in general terms, to be proved "to the satisfaction of the court." This continued residence (as it is under- stood, for the whole period commencing prior to the 18th of June, 1812,) is required to be stated and set forth in the record, together (as above explained), with the place or places of the applicant' s residence for the last preceding five years. By the act of March 13, 1813, it was declared, that no person who should have arrived in the United States,* from and after the termination of the war in which the United States were then engaged with England, should ' ' be admitted a citizen of the United States, who shall not for the continued term of five years next pre- ceding his admission as aforesaid, have resided within the United States, without 'being at any time during the said jive years out of the territory of the United States.'''' This enactment has since been repealed by the act of June 26, 1848 (ch. 72 : 9 Stat, at Large, 240). Before resuming the consideration of what is com- mon with regard to all applicants, it is proper also to notice another distinction made by the laws upon this subject. iCh. 114 : 4 Stat, at Large, 310. - Of Nattjealization. 745 This distinction is one in favor of minors, and is c hap. 4. made by tlie first section of tlie act of May 26. 1824, no previous T , ., ^ _, , declaration already cited. It enacts — required of minors. " That any alien, being a free wliite person, and a minor, under the age of twenty-one years, who shall have resided in the United States three years next preceding his artiyal at the age of twenty-one years, and who shall have con- tinued to reside therein to the time he may make application to be admitted a citizen thereof, may, after he arrives at the age of twenty-one years, and after he shall have resided five years within the United States, including the three years of his minority, be admitted a citizen of" the United States, without having made the declaration required in the first condition of the first section of the act to which this is in addition, three years,' previous to his admission : Provided, Such alien shall make the declaration required therein, at the time of Ms or her admission j and shall further declare on oath, and prove, to the satisfaction of the court, tljat, for three years next preceding, it has been the bona fi'de inten- tion of such alien to become a citizen of the United States ; and shall, in all other respects, comply with the laws in regard to naturalization." According to tMs act, therefore, all aliens, who, at tlie time of tlieir arrival in this country, are not more than eighteen years old, although they may have come since the 18th day of June, 1812, are, after the expiration of five years, provided they are then of the age of twenty- one years, and if not, then^ as soon as they shall have attained the age, entitled to admission, upon the terms prescribed in the pro- viso of the act, without having, 'two years previously, made a declaration of intention, as required of adults who arrive after that date. What ought to be deemed satisfactory proof of a lona fide intention, during the last preceding three years, to become a citizen, ' Altered by a subsequent section of this same act, as we have seen, to two years. 94 746 Of Natuealization. PAET6. Proof of good char- acter, &c., required in all cases. Proofs, &c., how taken. is a question to be decided by the respective courts. It would seem, however, from the nature of the fact to be proved, that the oath of the applicant ought, under ordinary circumstances, to be held sufficient. It remains now to state what is further required of all aliens upon their application for admission to the rights of citizenship. The applicant must prove, to the satisfaction of the court, that during the period of five years next preceding his application, "he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the happiness and good order of the same." Act of April 14, 1802.' He must declare on oath or affirmation, before the court, "that he will support the constitution of the United States, and that he doth entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly by name, the prince, potentate, state or sovereignty, whereof he was before a subject.'" This oath must be recorded by the clerk of the court. In case the applicant " shall have borne any hered- itary title, or been of any of the orders of nobUity in the kingdom or state from which he came," he is further required to "make an express renunciation of his title or order of nobUity." ^ Thi^ renunciation is also to be recorded. The foregoing summary contains all that is re- quired by the laws of the United States to enable an alien to become naturalized. The proofs, oatha and declarations should be made, upon oral examin- ation, according to the ordinary form of proceeding ' Ch. 28 : 2 Stat, at Large, 153. Op Naturalization. 747 in courts of law. But the usual mode is to bring chap. 4. them before the court in the form of affidavits pre- pared beforehand.' ■ In tlie earlier editions of tliis wort tliis form of proof was incau- tiously mentioned, not only as the " usual," but also as " tlie more con- venient mode." But subsequent observation and reflection have more thansulBced to couvinpe me that it is highly objectionable and ought not to be tolerated. The admission of an alien to the rights and privi- leges of American citizenship, is among the gravest and most respon- sible functions of our courts. That it was so regarded by the early congresses, in legislating upon the subject, is evident from the studious care taken to guard against the admission of unworthy persons. Had it been foreseen or apprehended that the act of 1803, as framed, would lead to a practice so little in accordance with its policy, and by which one of its most important provisions is rendered virtually nugatory, it cannot be doubted that additional safe-guards would have been inter- posed for the purpose of preventing a result so much to be deplored. The act requires proof in addition to that of residence, satisfactory to the court, that during the period of five years last past the applicant has demeaned himself as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the happiness and good order of society. The practice of the state courts, in this state at least, is to produce an affidavit subscribed and sworn to by two persons, averring the residence, and describing the character and conduct of the applicant in the words of the act. The afiSdavit being, as it usually is (except the necessary blanks), in print, is presumed to be in due form, and, if I am correctly informed, is not even read to the court. It is simply filed, and the applicant is at once, and, as a matter of course, permitted to take the final oath, and there- upon receives his certificate. Of the character of the witnesses ; of their competency to verify the facts to which they have sworn, the court is, in general, wholly uninformed. They may, themselves, be persons of bad moral character and conduct, having little or no respect for the sanctity of an oath ; they may know nothing of the principles of the constitution ; and they may be utterly regardless of the happiness and good order of the community. They may therefore be grossly incom- petent to j udge correctly of the facts to which they attest, or too unscru- pulous to be worthy of reliance. With such evidence no court has a right to be satisfied, and to receive and act upon it, is not to execute, but to evade the statute. Beyond a question, the witnesses should be sworn to speak the truth, and subjected to a thorough and searching examination; and, unless their evidence be such as, upon a careful scrutiny, to warrant the verdict of a jury aflSrming the truth of all the facts to be established, the application should unhesitatingly be denied. This, without doubt, is what the legislature intended, and the practice 748 Of Natuealization. PART 6. Thejadg- ment con- clusive. ■ The judgment of the court admitting the applicant a citizen of the United States is to be entered as such on record, and, if it is in legal form, is, like every other judgment, conclusive. It is complete evidence of its own validity, and no subsequent incLuiry can be made into the sufficiency of the evidence upon vs^hich it vras pronounced. Spratt v. Spratt, 4 Peters, 393. None of the acts upon this subject now in force provide any compensation to the clerks of courts for the services above specified ; and from the language of some of the provisions, since repealed, allowing a small compensation, to be paid by the applicant, it seems to be inferable that these officers were not which has been substituted for it is a miserable sham. Let us see if it is not so. During the last year the city of New York and human nature have been disgraced by a ferocious mob rioting, through many terrible hours, in bloodshed and havoc. It consisted mainly of foreigners. Among them were doubtless many who had already been naturalized, upon evidence satisfactory to the court, of their morality, loyalty and love of good order. And as to the rest, whose probationary term of five years was probably not yet expired, it may reasonably be presumed that they will, in due time, also become applicants for naturalization. And are they likely to lack witnesses of their qualifications to be received into the American family? By no means. They may find them in abundance among their companions in guilt! No one will deny the importance of the subject, and no true patriot who reflects upon it can faU to desire a radical reform. But the evil has become too inveterate for extirpation, except by means of additional legislation. It is not, and congress has no power to render it, obligatory on the state courts to administer the naturalization laws. Their agency is at most but optional ; and whether it ought any longer to be invoked, is a question well worthy of consideration. No unnecessary obstacles should be interposed to the free admission of the hosts of worthy foreigners who seek a home upon our soil ; but the ruffians and vagabonds who find their way to our shores ought to be sternly rejected. A judicious modification of the laws for this purpose could not .fail to be productive of incalculable benefit, not only to the community, but to the immigrants themselves, by the incentive it would give them to good conduct, and the. salutary restraint it would impose, during the whole period of their piobation. Of Naturalization. 749 considered as having any right to exact fees without c hap. 4. a special authority by law. But for such official services as he is not expressly required to perform, such as furnishing to the alien an authenticated certificate of a previous declaration of intention, to be used in another court, or a like certificate of his naturalization, a clerk might, doubtless, with pro- priety, exact such fees as would be allowed for simi- lar services by the laws of the state ; or, in the absence of any local law applicable to the case, such compen- sation as the court should consider reasonable. It may be useful, in conclusion, to state, that, by the act of March 26, 1804,' it is provided, that when any alien, who shall have complied with the first condition specified in the first section of the act of 1802, and pursued the directions contained in the second section of the same act, shall die, before he is actually naturalized, his widow and cMldren shall widows •' ' and chil- be considered as citizens of the United States, and drenwhen ' to De (Jeem- entitled to all rights and privileges as such, upon ^^ citizens. taMng the oath prescribed iy law. The second section here mentioned, was, as we have said, repealed by the act of 1828 ; and, con- sidering the comparatively onerous nature of its provisions, and the small probability there is that they wUl be complied with in order to secure this contingent advantage to widows and children, it is very obvious that the above enactment, in their favor, has become exceedingly defective. By the fourth section of the act of 1802, .above Minor chii- dren of pcr- cited, it is enacted — "That the children of persons sonsnatu- ' , ralizea to duly naturalized under any of the laws of the United \f^^^^^ States, * * * being under the age of twenty-one years, at the time of their parents being so natural- ized, * * * shall, if" dwelling in the United States, be considered as citizens of the United States." ^ ' Ch. 47, § 3 : 2 Stat, at Large, S93. 750 Of Naturalization. PART 6. This enactment has been supposed, by Chancellor Kent,' to give rise to two questions of considerable interest and importance, viz. : 1. Whether it is prospective in its scope, so as to embrace as well the minor children of persons who should b6 naturalized after the passage of the act, as of persons who had then already been natural- ized ; and, 2. Whether it was intended to apply only to cases in which both parents had been naturalized, or , whether the naturalization of the father alone would be sufficient. It is not my design to enter into a full examina- tion of these questions. But, for the phrase ' ' under anp of the laws," &c., I should have entertained little doubt that the provision in question was intended to be prospective. Such a construction would be in accordance with the liberal spirit of the act, compared with the preceding act 6f 1798, which required fourteen years' previous residence ; and no good reason is perceived for making a distinction in this respect between the children of those who had already been, and those who should afterward be naturalized. The act of 1804, moreover, as we have seen, confers the right of citizenship upon the widows and children of persons, who, having taken the preliminary steps to- entitle them to naturaliza- tion, should die before they were naturalized ; and there would seem to be an inconsistency in giving to an inchoate act, on the part of the father, an efficacy which was not understood to result from its actual consummation by him. But, on the other hand, the phrase "under any of the laws," &c., would cer- tainly seem to refer to the various acts which, from time to time, had previously been passed upon the subject, and which were repealed by this act of ' 3 Kent's Commentaries, 8tli ed., 51. Of Natuealizatiok. 751 1802 ; thus limiting the operation of the enactment c hap. 4. in question to the children of persons naturalized under those acts. If such be the true construction of this provision, the lapse of almost forty years has greatly dimin- ished the importance of the other question, viz., whether the act contemplates the naturalization of both parents as necessary to confer the rights of citizenship on minor children. There seems, how- ever, to be strong grounds for the conclusion that it was the intention of the legislature to declare the naturalization of the father alone sufficient ; and such I understand to have been the impression of the learned commentator above named. APPENDIX. I. Act to Eegttlate Fees and Costs, &c. II. Rules of the Supeeme Courts. III. Rules oe Peactice in Equity. IV. Rules of Practice of the Court of Claims and OF the Supreme Court, Regulating Appeals THEREFROM. V. Rules of the Circuit Court of the Northern District of New York. VI. Rules of the District Court of the Northern District of New York. VII. Practical Forms : . I. In Suits at Common Law. 11. Of Peocbedings by Weit of Eeeor. III. Of Peocebdings to Take Testimony db bene esse. IV. In Cases of Municipal Sbizuee. V. Ceetificate of Division in Opinion. VI. Lettees Eogatoey. VIII. Review of the Case op Nevins v. Johnson. 95 I. Aw Act to Regulate the Fees aitd Costs to be Allowed Clerks, Marshals and Attorneys of the Cirouit and District Courts oe the United States, and for other Purposes. Be it enacted iy the Senate and House of Representatives of the United States of America in Congress assemlled, That in lieu of the compensation now allowed by law to attorneys, solicitors and proctors in the United States courts, to United States district attorneys, clerks of the district and circuit courts, marshals, witnesses, jurors, commis- sioners and printers, in the several states, the following and no other compensation shall be taxed and allowed. But this act shall not be construed to prohibit attorneys, solicitors and proctors from charging to and receiring from their clients, other than the government, such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective states, or may be agreed upon between the parties. Fees of Attorney, Solicitors and Proctors.] In a trial before a jury, in civil and criminal causes, or before referees, or on a final hearing in equity or admiralty, a docket fee of twenty dollars : Provided, That in cases in admiralty and maritime jurisdiction, where the libelant shall recover less than fifty dollars, the docket fee of his proctor shall be but ten' dollars. In cases at law, where judgment is rendered without a jury, ten dollars,- and five dollars where a cause is discontinued. For scire facias and other proceedings on recognizances, five dollars. For each depositioji taken and admitted as evidence in the cause, two dollars and fifty cents. A compensation of five dollars shall be allowed for the services rendered in cases removed from a district to a circuit court by writ of error or appeal. 756 Appendix. — Act Eeoulating Fees akd Costs. For examination by a district attorney, before a judge or commis- sioner, of a person or persons charged -witli crime, five dollars per day for the time necessarily employed. For each day of his necessary attendance in a court of the United States, on business of the United States, when the same shall be held at the place of his abode, five dollars, and the like sum for his attend- ance for each day of the term when the said court shall be held elsewhere. For traveling from the place of his abode to the place of holding any court of the United States in his district, and to the place of any examination before a judge or commissioner, of a person or persons charged with crime, ten cents per mile for going and ten cents for returning. When an indictment for crime shall be tried before a jury, and a conviction is had, in addition to the attorney's fees allowed by this act, the district attorney may be allowed a counsel fee in proportion to the importance and difficulty of the cause, not exceeding thirty dollars. In every case where a district attorney has, during the last six years, prosecuted or defended a suit in which the United States was con- cerned, in a district where the law allows no taxable attorney's fees, and for which he has received no compensation, except his per diem and annual salary, he shall be paid for his ser\dces according to the provisions of this act. For the services of counsel, rendered at the request of the head of a department, such sum as may be stipulated or agreed on. Whenever there are or shall be several charges against any person or persons for the same act or transaction, or for two or more acts or transactions, connected together, or for two or more acts or transac- tions of the same class of crimes or offenses which may be properly joined, instead of having several indictments, the whole may be joined in one indictment in separate counts ; and if two or more indictments shall be found in such cases, the court may order them consolidated. Whenever two or more things belonging to the same person or per- sons are or shall be seized for an alleged violation of the revenue laws, the whole shall be included in one suit ; and if not so included, and separate actions are prosecuted, the court may consolidate them. Whenever two or more indictments, suits or proceedings, are or shall be prosecuted, which should be joined, the district attorney prosecuting them shall be paid but one bill of costs for all of them ; Appendix. — Act Eegulatih'g Fees akd Costs. 757 and if any attorney, proctor or other person admitted to manage or conduct causes in any court of the United States, or of the territories thereof, shall appear to have multiplied the proceedings in any cause before such court, so as to increase costs unreasonably and vexatiously, such person may be required, by order of the co,urt, to satisfy any excess of costs so increased. WhencTer two or more charges are or shall be made, or two or more indictments shall be found against a person, only one writ or warrant shall be necessary to arrest and commit him for trial ; and it shall be sufficient to state in the writ the name or general character of the offenses, or to refer to them only in very general terms. Only one writ or warrant shall be necessary to remove a prisoner from one district to another ; a copy of which may be delivered to the sheriff or jailer from whose custody the prisoner may be taken and another ' copy thereof to the sheriff or jailer to whose custody he may be com- mitted, and the original writ, with the marshal's return thereon, shall be returned to the clerk of the district to which he may be removed. Whenever a prisoner is committed to a sheriff or jailer by virtue of a writ, warrant or mittimus, a copy thereof shall be delivered to the sheriff or jailer as his authority to hold the prisoner, and the original writ, warrant, or mittimus, shall be returned to the proper court or officer with the officer's return thereon. Cleric's feesi] Por issuing and entering every process, commission, summons, capias, execution, warrant, attachment, or other writ, except a writ of venire, summons, or subpcsna for a witness, one dollar. For filing and entering every declaration, plea, or other paper, ten cents. Eor administering every oath or affirmation to a witness, or other person, except a juror, ten cents. For entering any return, rule, order, continuance, judgment, decree or recognizance, drawing any bond, or making any record, certificate, return or report, for each folio, fifteen cents ; and for a copy of any such entry or record, or of any paper on file, not exceeding one folio, ten cents ; and for each additional folio, ten cents. For making dockets and indexes, and for all other services on the trial or argument of a cause, where issue is joined and testimony given, including venire and taxing costs, three dollars. '758 Appendix. — Act Ebgtjlating Pees and Costs. For making dockets and indexes, aiid for all other services in a cause where issue is joined and no testimony given, including taxing costs, two dollars. For making dockets and indexes, and for taxing costs and other services, in a cause which is dismissed, discontinued, or a judgment or decree is made or rendered therein without issue, one dollar. In equity and admiralty causes only, the process, pleadings and decree, and such orders and memorandums as may be necessary to show the jurisdiction of the court and regularity of the proceedings, shall be entered upon the final record; and, in case of an appeal, copies of the proofs, and of such entries and papers on file as may be necessary on hearing of the appeal, may be certified up to the appellate court. For afiBxing a seal of the court to any instrument, when required, twenty cents. For issuing a writ of subposna, twenty-five cents. For every search for any particular mortgage, judgment or other lien, fifteen cents. For traveling from the oflSce of the clerk, where he is required by law to reside, to the place of holding any court required to be held by law, five cents per mile for going and five for returning, and five dollars per day for his attendance. on any such court or courts while actually in session. For searching the records of the court for judgments, decrees and other instruments constituting a general lien upon real estate, and certifying the result of such search, fifteen cents for each person against whom such search is required to be made. For receiving, keeping and paying out money, in pursuance of the requirements of any statute or order of court, one per cent on the amount so received, kept and paid. In cases removed by writ of error or appeal, the clerk's fees for making dockets and taxing costs, shall be but one dollar, and the clerks of the district and circuit courts respectively, ex officio, shall be, and hereby are, authorized and empowered to administer oaths, take acknowledgements, take and certify affidavits and depositions, in the same manner as commissioners, and shall be entitled to the same fees and compensation therefor. Marshal' s fees. ^^ For service of any warrant, attachment, summons, capias, or other writ (except execution, venire, or a summons or sub- posna for a witness), two dollars for each person on whom such service may be made : Provided, That on petition, setting forth the facts on Appendix. — Act Eegulating Fees ajstd Costs. 759 oath, the court may allow such fair compensation for the keeping of personal prope;-ty attached and held on mesne process, as shall, on examination, be found to be reasonable. For serving a writ of subpoena on a witness, fifty cents ; and no further compensation shall be allowed for any copy, summons, or notice for witness. For travel, in going only, to serve any process, warrant, attachment, or other writ, including writs of subpcena in civil and criminal cases, six cents per mile, to be computed from the place of service to the court or place where the writ of process is returned; and if more than one person is served therewith, the travel shall be computed from the court to the place of service which shall be the most remote, adding thereto the extra travel which shall be unnecessary to serve it on the other : Provided, That when more than two writs of any kind in behalf of the same party or parties, to be served on the same person or per- sons, or part of the same persons, are or might be served at the same time, the marshal shall be entitled to compensation for travel on only two of such writs ; and, to save unnecessary expense, it shall be the duty of the clerk to insert the names of as many witnesses in a cause, in such subpoena, as convenience in serving the same will permit. And, in all cases where mileage is allowed to the marshal by this act, it shall be at his option to receive the same, or his actual traveling expenses, to be proved on his oath to the satisfaction of the court. For each bail bond, fifty cents. For summoning appraisers, each fifty cents. For every commitment or discharge of a prisoner, fifty cents. For every proclamation in admiralty, thirty cents. For sales of vessels or other property, under process in admiralty, or under the order of a court of admiralty, and for receiving and pay- ing the money, for any sum under five hundred dollars, two and one- half per centum ; for any larger sum, one and one-quarter per centum, upon the excess. For serving an attachment in rem or a libel in admiralty, two dol- lars; and the necessary expenses of keeping boats, vessels or other property attached or libeled in admiralty, not exceeding two dollars and fifty cents per day; and, in case the debt or claim shall be settled by the parties, without a sale of the property, the marshal shall be entitled to a commission of one per cent on the first five hundred dol- lars of the claim or decree, and one-half of one per cent on the excess 760 Appendix. — Act Eegulatikg Fees and Costs. over fiye hundred dollars : Provided, That in case the yalue of the property shall be less than the claim, then, and in such case, such com- mission shall be allowed only on the appraised value thereof. For serving a writ of possession, partition, execution, or any final process, the same mileage as is herein allowed for the service of any other writ; and for making the service, seizing or levying on property, advertising and disposing of the same by sale, set-ofF or otherwise, according to law, receiving and paying over the money, the same fees and poundage as are or shall be allowed for similar services to the sheriffs of. the several states, respectively, in which the service may be rendered. For serving venires and summoning every twelve men as grand or petit jurors, four dollars, or thirty-three and one-third cents each; and in those states where jurors, by the laws of the state, are drawn by constables, or other oificers of corporate towns or places, by lot, the marshal shall receive for the use of the ofl&cers employed in drawing and summoning the jurors and returning each venire, two dollars, and for his own trouble in distributing the venires, two dollars for each jury: Provided, That in no case shall the fees for distributing and serving venires, and drawing and summoning jurors by township officers, including mileage chargeable by the marshal for such service, at any court, ejiceed fifty dollars. For traveling from his residence to the place of holding court, to attend a term thereof, ten cents per mile for going only, and five dol- lars per day for attending the circuit and district courts when they are both in session, or for attending either of said courts when but one is in session, and for bringing in and committing prisoners and witnesses during the term. For executing a deed prepared by a party or his attorney, one dollar. For drawing and executing a deed, five dollars. For transporting criminals, ten cents per mile for himself, each neces- sary guard, and each prisoner. For copies of writs or papers furnished at the request of any party, ten cents per folio. For holding a court of inquiry or other proceedings before a jury, including the summoning of a jury, five dollars. The marshal of the district of South Carolina shall hereafter be enti- tled to receive a salary of two hundred dollars per annum. Appen-dix. — Act Eegulatin-g Fees and Costs. 761 The respective courts of the United States shall appoint criers for their courts, to be allowed the sum of two dollars per day ; and the marshals are hereby authorized to appoint such a number of persons, not exceeding fiye, as the judges of their respective courts shall deter- mine, to attend upon the grand and other juries, and for other neces- sary purposes, who shall be allowed for their services the sum of two dollars per day, to be paid by and included in the accounts of the marshal, out of any money of the United States in his hands ; the com- pensation to be given only for actual attendance ; and when both courts are in session at the same time, to be paid but for attendance on one court. For expenses while employed in endeavoring to arrest under pro- cess, any person charged with or convicted of a crime, the sum actually expended, not to exceed two dollars per day, in addition to his compensation for service and travel. For disbursing money to jurors and witnesses, and for other expenses, two per centum. For attending examinations before a commissioner, and bringing in, guarding, and returning prisoners charged with crime, and wit- nesses, two dollars per day, and the same for each deputy necessarily attending, not exceeding two. Sec. 2. And be it further enacted, That there shall be paid to the marshal his fees for services rendered for the United States, for' sum- moning jurors and witnesses in behalf of the United States, and in behalf of any prisoner to be tried for a capital offense ; for the main- tenance of prisoners of the United States, confined in jail for any criminal offense ; for the commitment or discharge of such prisoners ; for the expenses necessarily incurred for fuel, lights and other con- tingencies' that may accrue in holding the courts within the district, and providing the books necessary to record the proceedings thereof; Provided, That the marshal shall not incur an expense of more than twenty dollars in any one year for furniture, or fifty dollars for rent of building and making improvements thereon, without first sub- mitting a statement and estimates to the secretary of the interior, and getting his instructions in the premises. Sec. 3. And ie it further enacted. That every district attorney, clerk of a district court, clerk of a circuit court, and marshal of the United States, shall, until otherwise directed by law, upon the first 762 Appenbix. — Acx Eegulatikg Fees and Costs. day of January and July in each year, commencing with the first day of July next, or within thirty days from and after the days specified, make to the secretary of the interior, in such form as he shall pre- scribe, a return in writing, embracing all the fees and emoluments of their respective ofiBces, of every name and character, distinguishing the fees and emoluments received or payable under the bankrupt act, from those received or payable for any other service ; and in the case of a marshal, further distinguishing the fees and emoluments received or payable for services by himself personally rendered, from those received or payable for services rendered by a deputy ; and also dis- tinguishing the fees and emoluments so received or payable for services rendered by each deputy, by name, and the proportion of such fees and emoluments, which, by the terms of his service, each deputy is to receive; and, also, embracing all the necessary office expenses of such officer, together with the vouchers for the payment of the same for the half year ending on the said first day of January or July, as the case may be, which return shall be, in all cases, verified by the oath of the officer making the same. And no district attorney shall be allowed by the said secretary of the interior to retain of the fees and emoluments of his said office, for his own personal compen- sation, over and above his necessary office expenses, the necessary clerk hire included, to be audited and allowed by the proper account- ing officers of the treasury, a sum exceeding six thousand dollars per year, and at and after that rate for such time as he shall hold the office ; and no clerk of a district court, or clerk of a circuit court, shall be allowed by the said secretary to retain of the fees and emolu- ments of his said office, or, in case both of the said clerkships shall be held by the same person of the said offices, for his own personal compensation, over and above the necessary expenses of his office, and necessary clerk hire included, also to be audited and allowed by the proper accounting officers of the. treasury, a sum exceeding three thousand five hundred dollars per year, for any such district clerk, or circuit court, or at and after that rate for such time as he shall hold the office : Provided, That, when the compensation of any clerk shall be less than five hundred dollars per annum, the difference, ascer- tained and allowed by the proper accounting officer of the treasury, shall be paid to him therefrom ; and no marshal shaH be allowed by the said secretary to retain of the fees and emoluments of his office, for his own personal compensation, over and above a proper allow- Appendix.— Act Eegulating Fees and Costs. 763 ance to liis deputies, whicli shall in no case exceed three-fourths of the fees and emoluments received as payable for the services rendered by the deputy to whom allowance is made, and may be reduced below that rate by the said secretary of the interior whenever the return shall show that rate of allowance to be unreasonable, and over and above the necessary oflSce expenses of the said marshal, the necessary clerk hire included, also to be audited and allowed by the proper accounting ofl&cers of the treasury, a sum exceeding six thou- sand dollars per year, or at and after that rate for such times as he shall hold the office ; and every such officer shall, with each such return made by him, pay into the treasury of the United States, or deposit to the credit of the treasurer thereof, as he may be directed by the secre- tary of the interior, any surplus of the fees and emoluments of his office, which his half-yearly return so made as aforesaid shall show to exist over and above the compensation and allowances hereinbefore authorized to be retained and paid by him. And in every case where the return of any such .officer shall show that a surplus may exist, the said secretary of the interior shall cause such returns to be, carefully examined, and the accounts of disbursements to be regularly audited by the proper officers of his department, and an account to be opened with such officer in proper books to be provided for that purpose, and the allowances for personal compensation for each calendar year shall be made from the fees and emoluments of that year, and not other- wise : And, provided further, That nothing in any existing law of congress authorizing the payment of a per diem compensation to a. district attorney, clerk of a district court, or clerk of a circuit court, or marshal, or deputy marshal, for attendance upon the district or circuit courts during their sittings, shall be so construed as to authorize any such payment to any one of those officers for attend- ance upon either of those courts while sitting for the transaction of business under the bankrupt law merely, or for any portion of the time for which either of the said courts may be held open or in session by the authority conferred in that law ; and no such charge in an account of any such officer shall be certified as payable, or shall be allowed and paid out of the money hereinbefore appropriated for defraying the expenses of the courts of the United States. And no per diem or other allowance shall be made to any such officer for attendance at rule days of the circuit or district courts ; and when the circuit court and district courts sit at the same time, no greater 764 Appbn'dix. — Act Kegulating Fees an© Costs. per diem or other allowance shall be made to any such officer than for attendance on one court. The two last proyisos of paragraph one hundred and sixty-seten of the ciyil and diplomatic apprbpriatioii act, approved 'May eighteenth, one thousand eight hundred and forty-two, which require clerks to certify accounts, and confine the marshals, clerks and district attorneys of the northern and southern districts of Kew York to the fees allowed by the state law to clerks, attorneys, counselors and sheriffs, for simi- lar services in the state courts, are hereby repealed. Commissioners' fees.] For administering an oath, ten cents ; taking an acknowledgment, twenty-five cents. Foi hearing and deciding on criminal charges, five dollars per day for the time necessarily employed. For attending to a reference in a litigated matter in a civil cause at law, in equity, or in admiralty, in pursuance of an order of court, three dollars per day. For taking and certifying depositions to file, twenty cents for each folio of one hundred words, and ten cents per folio for each copy of the same furnished to a party on request. For issuing ariy warrant or writ, or any other service, the same compensation as is allowed to clerks for like services. For issuing any warrant under the tenth article of the treaty of the ninth of August, eighteen hundred and forty-two, between the United States and the Queen of the United Kingdom of Great Britain and Ireland, against any person charged with any of the crimes or offenses set forth in said article, two dollars ; and the same sum for any war- rant issued under the provisions of the convention for the surrender of criminals, between the United States and the King of the French, concluded at Washington on the ninth of November, eighteen hun- dred and forty-three ; and for hearing and deciding upon the case of any person charged with any offense or crime, and arrested under the provisions of said treaty or convention, five dollars per day for the time necessarily employed. Witnesses' fees.] For each day's attendance in court, or before any oflBcer pursuant to law, one dollar and fifty cents, and five cents per mile for traveling from his place of residence to said place of trial' or hearing, and five cents per mile for returning. When a witness is sub- poenaed in more than one cause between the same parties in different suits at the same court, but one travel fee and one per diem compen- Appendix. — Act Eegulating Fees and Costs. 765 sation shall be allowed for attendance, to be taxed in the first case disposed of, and " per diem" only in the other causes, to be taxed from that time in each case, in the order in which they may be disposed of. When a witness is detained in prison for want of security for his appearance, he shall be entitled to a compensation of one dollar per day over and above his subsistence. "When a clerk or ^her officer of the United States shall be sent away from his place* of business as a witness for the Government, either with or without papers or books, his salary shall continue ; l^is necessary expenses, stated in items and sworn to, in going, returning and attendance on the court, shall be audited and paid, but no mileage nor other compensation shall in any case be allowed. There shall be paid to such seaman or other person as has been or shall be sent to the United States from any foreign port, station, sea or ocean, by any United States Minister, Charge d' Affaires, Consul, Commander or Captain, to give testimony in any criminal case which has been or may be depending in any court of the United States, such compensation as the court, which had or shall have cognizance of the crime, shall adjudge to be right and proper, not to exceed one dollar for each day the said seaman or person has been or shall be necessarily on the voyage, and arriving at the place of examination or trial, exclusive of sustenance and transportation ; the court to take into consideration, in fixing said compensation, the condition of said seaman or witness ; whether his voyage has been broken up, to his injury, by his being sent to the United States, or not. If said seaman or person has been or shall be tranQ)orted in an armed vessel of the United States, no charge for sustenance or trans- portation shall be made ; if in any other vessel, the court may adjudge what compensation shall be paid to the captain of the said vessel, and the same shall be paid accordingly : Provided, That in no cas^shall transportation and subsistence be allowed at a rate exceeding fifty cents per diem. Jurors' fees.'] For actual attendance at any court or courts, two dollars per day during such attendance. For traveling from their residence to said court or courts, five cents per mile for going and the same for returning. Printers' fees.] For publishing any statute, notice or order required by law, or the lawful order of any court, department, bureau or other person, in any newspaper, forty cents per, folio for the first insertion, 766 Appendix.— Act Regitlating Fees and Costs. and twenty cents per folio for each subsequent insertion. That the compensation herein proyided shall include the furnishing lawful eyidence, under oath of publication, to be made and furnished by the printer or publisher making such'publication. The term folio, in this act, shall mean one hundred words, counting each figure as a word. When there are oyer fifty and under one hun- dred words they shall be counted as one folio, b]^ not when there are less, except when the whole statute, notice or order contains less than fifty words. The bill of fees of clerk, marshal and attorneys, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use or trial in cases where by law costs are recoverable in fayor of the prevailing party, shall be taxed by a judge or clerk of the court, and be included in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cauSe. In cases where the United States are parties, the marshal shall, on the order of the court, to be entered in its minutes, pay to the jurors and witnesses all such fees as they may appear by such order to be entitled to, which sums shall be allowed him at the treasury in his accounts. The fees of the marshals, clerks, commissioners and district attor- neys, in cases where the United States are liable to pay the same, shall be paid on settling their accounts at the treasury, such accounts to be made out and verified by the party under oath, and forwarded to the first auditor of the treasury. In prize cases, where there is a condemnation and sale, the costs, so far, as they are payable and can be paid out of the proceeds of sale, shall be paid on the order of the court upon the 'filing of the taxed bills, iiaking them a portion of the record in the case. No district attorney, marshal or clerk, or their deputies, shall receive any other or greater compensation for any services rendered by him than is provided in this act ; and all acts and parts of acts, allowing to either of them any other or greater fees than is herein provided, are hereby repealed, and to receive any other or greater compensation is hereby declared to be a misdemeanor. And if any ofiQcer hereinbefore mentioned, or his deputy, shall, by reason jor cover of his office, will- fully and 'corruptly demand and receive any other or greater fees than those allowed in this act, he shall, on conviction thereof in any court Appebtdix. — ^AcT Regulating Fees and Costs. 767 of the United States, forfeit and pay a fine not exceeding fire hundred dollars, and be imprisoned not exceeding six months, at the discretion of the court before -whom the conviction shall be had. But this shall not be construed to prohibit this payment of any salary authorized by statute : Provided, That in the State of California and the Territory of Oregon, officers, jurors and witnesses shall be allowed, for the term* of two years, double the fees and compensation allowed by this act, and the same fees allowed by this act, with fifty per cent added thereto, for two years thereafter. That before any bill of costs shall be taxed by any judge or other officer, or allowed by any officer of thd treasury, in farror of clerks, marshals, commissioners, or district attorneys, the party claiming such bill shall prove by his own oath, or some other person haying a knowl- edge of the facts, to be attached to such bill, and filed therewith, that the services charged therein have been actually and necessarily per- formed, as therein stated. That witnesses who are required to attend any term of the court on the part of the United States, shall be subpoenaed to attend to testify generally, on their behalf, and not depart the court without leave of the court or district attorney, under which it shall be their duty to appear before the grand jury or petit jury, or both, as they shall be required by the court or district attorney. M"o writ shall be necessary to bring into court any prisoner or person in custody, or for remanding him from the court into custody ; but the same shall be done on the order of the court or district attorney, for which no fee shall be charged by the clerk or marshal. Sec. 4. And U it further enacted, That if any person shall falsely take an oath or affirmation in relation to any matter authorized by this act, such person shall be deemed guilty of perjury, and, upon conviction thereof, shall suffer the pains and penalties in that case provided. • Sec. 5. And le it further enacted. That all laws and regulations heretofore made, which are incomj)atible with the provisions of .this act, are hereby repealed and abrogated : Provided, nevertheless, That this act shall not be construed to repeal or modify any clause or pro- vision of an act approved the eighteenth September, eighteen hun- dred and -fifty, entitled "An act to amend and supplementary to the act entitled 'An act respecting fugitives from justice, and persons 768 Appendix. — ^Act Eegulating Fees and Costs. escaping from the service of their masters,' approved February twelfth, seventeen hundred and ninety-three." Sec. 6. And be it further enacted, That the act approved Septem- ber twenty-eighth, eighteen hundred and fifty, entitled "An/ act to provide for extending the laws and judicial system of the United States to the state of California," be so amended as to confer on the district court of the state of California jurisdiction in all criminal cases as fully and completely as is conferred by law upon the district or circuit court of the state of New York. Approved February 36, 1-853. 11. Rules of the Supreme Court of the United States, Revised and Coekected at The Decembee Teem, 1858. No. 1. — Clebk. The clerk of this court shall reside and keep the pffice at the seat of the national government, and he shall not practice either as an attorney or counselor in this court, or any other court, while he shall continue to be clerk of this court. The clerk shall not permit any original record or paper to be taken from the supreme court room, or from the ofifice, without an order from the court. No. 2. — ATTOESrETS, &c. It shall be requisite to the admission of attorneys and counselors to practice in this court, that they shall have been such for three years, past in the supreme courts of the states to which they respectively belong, and their private and professional character shall appear to be fair. They shall respectively take the following bath or affirmation, viz. . "I do solemnly swear (or aflSrm, as the case may be), that I will demean myself, as an attorney and counselor of this court, uprightly, and according* to law, and that I will support the constitution of the ■United States." No. 3, — Peactice. This court consider the practice of the courts of King's Bench and of Chancery, in England, as affording outlines for the practice of this court ; and they will from time to time make such alterations therein as circumstances may render necessary. 97 770 Appendix. — Eulbs of the Supeeme Court. No. 4. — Bill of BxcEPTioiirs. Hereafter the judges of the circuit and district courts shall not allow any hill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepted ; and that such matters of law, and those only, shall be inserted in the bill of exceptions, and allowed by the court. No. 5. — Peocess. All process of this court shall be in the name of the President of the United States. When process at common law, or in equity, shall issue against a state, the same shall be served on the goyemor, or chief executive magistrate, and attorney-general of such state. Process of subpoena, issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and if the defendant, on such service of the subpoena, fhall not appear at the retuTn day contained therein, the complainant shall be at liberty to proceed ex parte. No. 6. — Motions. All motions hereafter made to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. No. 7. — Law Libeaet — Confeeence Eoom. 1. During the session of the court, any .gentleman of the bar having a cause on the docket, and wishing to use any book or books in the law library, shall be at liberty, upon application to the clerk of this court, to receive an order to take the same (not exceeding at any one time three) from the library, he being thereby responsible for the due return of the same within a reasonable time, or when required by the clerk. And it shall be the duty of the clerk to keep, in a book for that purpose, a record of all books so delivered, which are to be charged against the party receiving the same. And in case the same shall not be so returned, the party receiving the same shall be respon- sible for, and pay twice the value thereof; as also one dollar per day for every' day's detention beyond the limited time. Appendix. — Rules of the Supreme Court. 771 3. The clerk shall take charge of the books of the court, together with such of the duplicate law books as congress may direct to be transferred to the court, and arrange them in the conference room, which he shall have fitted up in a proper manner ; and he shall not permit such books to be taken therefrom by any one, except the judges of the court. No. 8. — Eeturn to "Writ of Error, &c. 1. The clerk of the court to which any writ of error shall be directed, may make return of the same by transmitting a true copy of the record, and of all proceedings in the cause, under his hand and the seal of the court. 2. No cause will hereafter be heard, until a complete record, con- taining in itself, without referenca aliunde, all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in tibis court, shall be filed. 3. Wheneyer it shall be necessary or proper, in the opinion of the presiding judge of any circuit court, or district court exercising circuit court jurisdiction, that original papers should at any time be inspected in the supreme court, upon appeal, such presiding judge may make such rule or order for the safe keeping, transporting and return of such original papers, as to him may seem proper ; and thia court will receive and consider such original papers in connection, with the transcript of the proceedings. No. 9. — DocKETiiirG Cases. 1. In all oases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, it shall be the duty of plaiuftiff in error or appellant, as the case may be, to docket the cause, and file the record thereof with the clerk of this court within the first six days of the term ; and if the writ of error or appeal shall be brought from a judgment or decree rendered less than thirty days before the commencement of the term, it shall be the duty of the plaintififs in error or appellant to docket the cause and file the record thereof with the clerk of this court within the first thirty days of the term ; and if the plaintiff in error or appellant shall fail to comply with the rule, the defendant in error or appellee may have the cause docketed and dismissed, upon producing the certificate of the clerk of the court 772 Appendix. — Euies of the Supkemb Coukt. wherein the decree or judgment was rendered, stating the canse, and certifying that such writ of error or appeal has been sued out and allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record, after the same shall have been docketed and dismissed under this rule, unless by order of the court. 2. But the defendant in error or appellee may, at his option, docket the cause and file a copy of the record with the clerk of this court ; and if the case is docketed, and a copy of the record filed with the clerk of this court, by the plaintiff in error or appellant, within the periods of time aboye limited and prescribed by this rule, or by the defendant in error or appellee, at any time thereafter during the term, the case shall stand for argument at the term. 3. In all cases where the period of thirty days is mentioned in this rule, it shall be extended to sixty days in writs of error or appeals from California, Oregon, Washington, New Mexico and Utah. [Amended. See Eule 34.] No. 10. — Security for Costs — Prikting Eecobds — ^Attachment FOR Costs. 1. In all cases, the clerk shall take of the party a bond, with com- petent security to secure his fees, in the penalty of two hundred dollars, or a deposit to that amount, to Tie placed in bank, subject to his draft. 2. In all cases, the clerk shall have fifteen copies of the record printed for the court ; and the cost of printing shall be charged to the govern- ment, in the expenses of the court. 3. The clerk shall furnish copies to the printer, shall supervise the printing, and shall take care of and distribute the printed copies to the judges, the reporter and the parties, from time to time as required. 4. In each case, the clerk shall charge the parties the legal fees for but one manuscript copy in the case. 5. In all cases, the clerk shall deliver a copy of the printed record to each party. And in cases of dismission, reversal or affirmance with costs, the fees for the said manuscript copy of the record shall be taxed against the party against whom costs are given, and which charge includes the charge for the copy furnished him. 6. In cases of dismission for want of jurisdiction, each party shall be charged with one-half the legal fees for a copy. Appendix. — Eules of the Supebme Cottet. 773 7. TTpon the clerk's producing satisfactory evidence, by affidavit or acknowledgment of the parties or their sureties, of having Sei-ved a copy of the bill of fees due by them respectively in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties respectively, to compel the payment of said fees. No. 11. — ^TRANSLATION'S. Whenever any record transmitted to this court upon a writ of error or appeal, shall contain any document, paper, testimony or other pro- ceeding, in a foreign language, and the record does not also contain a translation of such document, paper, testimony or other proceeding, made under the authority of the inferior court, or admitted to be cor- rect, the record shall not be printed, but the case shall be reported to this court by the clerk, and the court will thereupon remand it to the inferior court, in order that a traslation may be there supplied an^^ inserted in the record. No. 13. — Evidence. 1. In all cases where further proof is ordered by the court, the depo- sitions which shall be taken shall be by a commission to be issued from this court, or from any circuit court of the United States. 2. In all cases of admirality and maritime jurisdiction where new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken under a commission to be issued from this court, or from any circuit court of the United States, under the direc- tion of any judge thereof; and no such commission shall issue but upon interrogatories to be filed by the party applying for the commis- sion, and notice to the opposite party, or his agent or attorney, accom- panied with a copy of the interrogatories so filed, to file cross-inter- rogatories within twenty days • from the service of such notice: Provided, Jioiuever, that nothing^ in this rule shall prevent any party from giving oral testimony in open court in cases where by law it is admissible. No. 13. — Deeds, &c., not Objected to, &c.. Admitted, &c. In all cases of equity and admiralty jurisdiction heard in this court, no objection shall hereafter be allowed to be taken to the-admissibility of any deposition, deed, grant, or other exhibit found in the record, as evidence, unless objection was taken thereto in the court below, and 774 Appbnbix. — EuLES of the Supreme Court. entered of record ; but the same shall otherwise be deemed to have been admitted by consent. No. 14. — Ceetioeaei. No certiorari for diminution of the record shall be hereafter awarded in any cause, unless a motion therefor shall be made in writing ; and the facts on which the same is founded shall, if not admitted by the other party, be yerified by. afiidavit. And all motions for such certio- rari shall be made at the first term of the entry of the cause ; other- wise the same shall not be granted, unless upon special cause shown in court, accounting satisfactorily for the delay. No. 15. — Death of a Party. 1. Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may volun- tarily come in and be admitted parties to the suit ; and thereupon the cause shall be heard and determined, as in other cases ; and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order, that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if the defendant in error, shall be entitled to have the writ of error or appeal dismissed ; and if the party so moving shall be the plaintiff in error, he shall be entitled to open the record, and, on hearing, have the same reversed, if it be erroneous : Provided, how- ever, That a copy of every such order shall be printed in some news- paper at the seat of government, in which the laws of the United States shall be printed by authority, for three successive weeks, at least sixty days before the beginning of the term of the supreme court then next ensuing. 2. When the death of a party is suggested, and the representatives of the deceased do not appear by the tenth day of the second term next ensuing the suggestion, and no measures are taken by the oppo- site party, within that time, to compel their appearance, the case shall abate. No. 16. — No Appearance op Plaintiff in Error. When there is no appearance of the plaintiff in error when the case is called for trial, the defendant may have the plaintiff called, and Appendix. — Rules of the Supeemb Court. 775 dismiss the writ of error, or may open tlie record and pray for an affirmance. No. 17. — No Appearance of Defendant in Error. Where the defendant in error fails to appear when the cause shall be called for trial,*the court 'may proceed to hear an argument on the part of the plaintiff, and give judgment according to the right of • the cause. No. 18. — No Appearance of Either Party. When a cause is reached in the regular call of the docket, and no appearance is entered for either party, the case shall be dismissed, at the costs of the plaintiff. No. 19. — Neither Party Ready at the Second Term. When a case is called for argument at two successive terms, and upon the call at the second term, neither party is prepared to argue it, it shall be dismissed at the costs of the plaintiff, unless sufficient cause is shown for further postponement. No. 20. — Printed Arguments. 1. In all cases brought here on appeal, writ of error or otherwise, the court will receive printed arguments, without regard to the number of the case on the docket, if the counsel on both sides shall choose 60 to submit the same. But the arguments must be filed within the first ten days of the term, and signed by attorneys or counselors of this court. 2. When a case is reached in the regular call of the docket, and argued orally in behalf of One of the parties, no printed argument will be received unl*s it is filed before the oral argument begins, and the court will proceed to consider and decide the case upon the ex parte argument. [First paragraph amended. See Rule 33.]. No. 21. — Two Counsel — Two Hours — Briefs. 1. Only two counsel shall be permitted to argue for each party, plaintiff and defendant, in a cause. 2. No counsel will be permitted to speak in the argument of any case more than two hours, without the special leave of the court, granted before the argum'ent begins. 776 •' Appebtdix. — Etjlbs of' the St^'ebmb Cotiet. 3. Counsel will not be heard, unless a printed brief or abstract of the case be filed, together with the points intended to be made, and the authorities intended to be cited in support of them arranged under the respective points; and no other book or case [shall] be referred to in the argument. 4. The same shall be signed by an attorney oi^ counselor of this court. 5. If one of the parties omits to file such statement, he cannot be -heard, and the case will be heard ex parte upon the argument of the party by whom the statement is filed. 6. Fifteen printed copies of the abstract, points and authorities, required by this rule, shall be filed with the clerk three days before the cause is called for S,rgument ; nine of these copies for the court, one for the reporter, one to be retained by the clerk, and the residue for counsel. 7. When no counsel appears for the parties, and no printed brief or argument is filed, only one counsel will be heard for the adverse party. But if a printed brief or argument is filed, the adverse party will be entitled to be heard by two counsel. [Sixth paragraph amended. See Eule 31.] No. 33 — ObDBR of AKGUMElfT. The plaintiff or appellant in this court shall be entitled to open and conclude the case. But when there are cross-appeals they shall be argued together as one case, and the plaintiff in the cause below shall be entitled to open and conclude the argument. No. 33. — ^Interest, &c. 1. In cases where a writ of error is prosecuted to the supreme court, and the judgment of the inferior court is affirmed, me interest shaU . be calculated and levied from the date of the judgment below until the same is paid, at the same rate that similar judgments bear inter- est in the courts of the state where such judgment is rendered. 3. The same rule shall be applied to decrees for the payment of money in cases in chancery, unless otherwise ordered by this court. 3. In all cases where a writ of error shall delay the proceedings on the judgment in the circuit court, and shall appear to have been sued out merely for delay, damages shall be awarded at the rate of ten per cent per annum on the amount of the judgment ; and the damages Appendix. — Eules of the Supreme Court. 777 shall be calculated from the date of the judgment in the court below, until the money is paid. No. 24. — Costs. 1. In all cases where a suit shall be dismissed in this court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed to the defendant in error, or appellee, as the case may be, unless otherwise agreed by the parties. 2. In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee, as the case may be, unless otherwise ordered by the court. 3. In all cases of reversal of any judgment or decree in this court, costs shall be allowed in this court for the plaintiff in error or appellant, as the case may be, unless otherwise ordered by the'court. 4. Neither of the foregoing rules shall apply to cases where the United States are a party ; but in such cases no costs shall be allowed for or against the United States. 5. In all cases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue a mandate, or other proper process, in the nature of a 'procedendo, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. 6. When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. No. 25. — OpiIiTIONS OF THE COURT. 1. All opinions delivered by the court shall immediately, upon the delivery thereof, be delivered over to the clerk to be recorded. And it shall be the duty of the clerk to cause the same to be forthwith recorded, and to deliver the originals, with a transcript of the judg- ment or decree of the court thereon, to the reporter, as soon as the same shall be recorded. 2. And all the opinions of the court, as far as practicable, shall be . recorded during the term, so that the publication of the reports may not be delayed thereby. 98 778 Appendix. — Rules op the Supreme Cottet. 3. The original opinions of the court, delivered to the reporter, shall be filed in the office of the clerk of the court, for preservation, as soon as the volume of reports for the term at which they are delivered, shall be published. ISTo. 36. — Call of the Docket. The court, on the second day of each term, will commence calling the cases for argument in the order in which they stand on .the docket, and proceed from day to day during the term in the same order; and if the parties, or either of them, shall be ready when the case is called, the same shall be heard ; and if neither party shall be ready to proceed in the argument, the cause shall go down to the foot of the docket, unless some good and satisfactory reason to the contrary be shown to. the court. The ten causes only shall be con- sidered liable to be called on each day during the term, including the one under argument, if the same shall not be concluded on the pre- ceding day. No cause shall be taken iip out of the order on the docket, or be set down- for any particular day, except under special and peculiar circumstances, to be shown to the coiirt. Every cause which shall be called in its order, and passed, and put at the foot of the docket, shall, if not reached again, during the term it is called, be continued to the next'term of the court. No. 27.— Motion Day. The court will not hear arguments on Saturday (unless for special cause it shall order the cohtrary), but will devote that day to the other business of the court ; and on Friday of each week, during the sitting of the court, motions in cases not required by the rules of the court to be put on the docket shall he entitled to preference, if such motions shall be made before the court shall have entered, on the hearing of a cause upon the docket. No. 28. — Adjournment. The court will at every session announce on what day it will adjourn, at least ten days before the time which shall be fixed upon ; and the court will take up no case for argument, nor receive any case upon printed briefs, within three days next before the day fixed upon for adjournment. Appendix. — Rules of the Supeeme Oouet. 779 No. 29. — ^Dismissing Oases in Vacation. Whenever tlie plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in any appeal, shall at any time hereafter, in vacation and out of term time, by their respective attorneys, who are entered as such on the record, sign and file with the clerk an agreement in writing, directing the- case to be dismissed, and specifying the .terms upon which it is to be dismissed as to costs, and also paying to the clerk any fees that may be due to him, it shall be the d^ty of the clerk to enter the case dismissed, and to give to either party, which may request it, a copy of the agreement filed ; but no mandate or other process is to issue without an order by the court. ADDITIONAL EULES. No. 30. — OosTS ON Kbvbesal. The third paragraph of the twenty-fourth rule of this court is amended, so that it will read as follows : In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, as the case may be, unless otherwise ordered by the court. The costs of the transcript of the record from the 'court below shall be a part of such costs. No. 31.— 1865. The sixth paragraph of the twenty-first rule of this court is amended so as to read as follows : Twenty copies of the abstract, points and authorities required by this rule, shall be filed with the clerk by the plaintiff in error, or appellant, six days, and by the defendant in error or appellee three days, before the case is called for argument. No. 32. The third paragraph of the third rule of this court is amended so as to read as follows : In all cases where the period of thirty days is mentioned in this rule, it shall be extended to sixty days, in writs of error and appeals from Oalifornia, Oregon, Nevada, New Mexico and Utah. No. 33. The first paragraph of the twentieth rule of this court is amended so as to read as follows : 780 Appendix. — IJules of the Supeemb Oottet. In all cases brought here on appeal, writ of error or otherwise, the court will receive printed arguments, without regard to the number of the case on the docket, if the counsel on both sides shall choose so to submit the same within the first thirty days of the term; but twenty copies of the arguments, signed by attorneys .or counselors of this court, must first be filed ; ten of these copies for the court, two for the reporter, three to be retained by the clerk, and the residue for counsel. No. 34. All cases on the calendar, except cases as hereinafter provided, shall be heard when reached, in the order in which they are entered. Criminal cases may be advanced, by leave of the court, on motion of either party. Eevenue cases, and causes in which the United States are con- cerned, which , also involve or affect some matter of general public interest, may also, by leave of the court, be advanced on motion of the attorney-general. Two or more causes, also, involving the same question, may, by leave of the court, be heard together, but they must be argued as one case. No. 35.' Upon filing the transcript of a record brought up by writ of error or appeal, the appearance of the counsel for the plaintifi" in error or appellant shall be entered, and no motion to dismiss, except on special assignment by the court, shall be heard unless previous notice has been given to the adverse party, or the counsel or attorney of such party. No. 36. Supersedeas bonds in the circuit courts must be taken with good and sufficient security that the plaintiff in error or appellant shall ' This rule is numbered by tie Reporter 31 (5 Wallace), and the succeeding rules to 37 inclusive have . correspondent numbers. Rule 37, consequently, is by him numbered 33. I cannot discover any reason for this, and am obliged to believe it _ is a mistake. It may not be amiss also to state that I have thought it advisable to omit the rule amending the second rule by prescribing an additional oath for attorneys and counselors (which if retained would have been numbered 32), and also the rule, made soon after, rescinding this amendment, which' if retained would have been numbered 84. Appendix. — Ettles of the Supeemb Oouet. 781 prosecute his writ of error or appeal to effect, and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including "just damages for delay," and costs and interest on the appeal ; but in all suits where the property in controversy follows the amount of the suit, as in real actions, replevin, and in suits on mort- gages; or where the property is in custody of the marshal, under admiralty process, as in case of capture or seizure ; or where the pro- ceeds thereof, or a bond for the value thereof, is in the custody or con- trol of the court, indemnity in such cases is required only in an amount sufficient, to secure the sum recovered for the use or detention of the property, and the costs of the suit and "just .damages for delay," and costs and interest on appeal. No. 37. » » In cases where final judgment is rendered more than thirty days before the first day of the next term of this court, the writ of error and citation, if taken before, must be made returnable on the first day of the said term, and be served before that day; but in cases where the judgment is rendered less than thirty days before the said first day, the writ of error and citation may be made returnable on the third Monday of said term, and be served before that day. III. Rules of Peaotioe foe the Cotjets of Equity of the United States, [It will be recollected, that, by the process act of 1792, it was ordained that the forms and modes of proceeding in suits in equity should be according to the principles, rules and usages which Belong to courts of equity, subject, however, to such alterations and additions as the courts respectively should, in their discretion deem expedient, or such regulations as the Supreme Court of the United States should think proper from time to time, iy rule, to prescribe to any circuit or disr trict court concerning the same. In virtue of the authority with which the supreme court was thus invested, a set of rules for the reg- ulation of equity practice was promulgated by the supreme court in 1823, Avhich were printed in the earlier editions of this work ; but these have been superseded by the following more full and elaborately devised body of rules adopted in 1842. Although they relate tq a subject not treated of in this work, and notwithstanding the consid- erable space they occupy, the author is of opinion that his professional brethren would not approve of their omission. By the 90th rule, it will be seen, the practice of the high court of chancery in England is adopted in all cases not provided for by these rules, or by such additional rules not inconsistent therewith, as the respective inferior courts may adopt. The only remaining general rules or orders pre- scribed by the supreme court, in virtue of the above mentioned authority, are the body of rules promulgated in 1845, regulating the practice of the courts of the United States in admiralty, and the rules since made in addition thereto. These will be found in ' " Conkling's Admiralty."] I. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers and other pleadings, for issuing and returning mesne and final process and commissions, and for Appbhtdix. — EuLES OB Peactice m Equity. 783 making and directing all interlocutory motions, orders, rules and other .proceedings, preparatory to the hearing of all causes upon their merits. The circuit courts, as courts of equity, shall he always open for the purpose of filing bills, petitions answers, pleas and other pleadings, for issuing and returning mesne and final process and conimissions, and for making and directing all interlocutory motions, orders, rules and other proceedings whatever, preparatory to the hearing of all causes pending therein upon their merits. And it shall be competent for any judge of the court, upon reasonable notice to the parties, in the clerk's ofl&ce, or at chambers, and in vacation as well as in term, to make, direct and award all such process, commissions and inter- locutory orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. II. The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiv- ing, entering, entertaining and disposing of all motions, rules, orders and other proceedings, which are grantable of course, and applied for, or had by the parties or their solicitors in all causes pending in equity, in pursuance of the rules hereby prescribed. III. Any judge of the circuit court, as well in vacation as in term, may, at chambers, or on rule days, at the clerk's office, make and direct aU such interlocutory orders, rules and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the circuit court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary at the next rule day thereafter, unless some other time is assigned by the Judge for the hearing. IV. All motions, rules, orders and other proceedings made and directed at chambers, or on rule days, at the clerk's office, whether special or of course, shall be entered by the clerk in an order book, to be kept at the 784 Appendix. — Rules of Peaoticb in Equity. clerk's office on the day -when they are made and directed, which book shall be open at all office hours, to the free inspection of the parties in any suit in equity, and their solicitors. And, except in cases where personal or other notice is specially required or directed, such entry in the order book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices and other proceedings entered in such order book, touching any and all the matters in the suits, to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders or other proceedings, not requiring personal service on the parties, in their discretion. All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees, for filing bills, answers, pleas, demurrers and other pleadings ; for making amendments to bills and answers ; for taking bills pro confesso ; for filing exceptions, and for other proceedings in the clerk's office, which do not, by the rules hereinafter prescribed, require any allowance or order of the court, or of any judge thereof, shall be deemed motions and applications, grantable of course by the clerk of the court. But the same may be suspended or altered, or rescinded, by any judge of the court, upon special cause shown. VI. All motions for rules or orders and other proceedings, which are not grantable of course, or without notice, shall, unless a different time be assigned by a judge of the court, be made at a rule day, and entered in the order book, and shall be heard at the rule day next after that on which the motion is made. And if the adverse party, or his solici- tor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex pqrte, and granted as if not objected to, or refused, in his discretion. Appendix — Rxjles of Peacticb ik Equity. 785 PEOCESS. VII. The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill ; and, unless otherwise pro- vided in these rules, or specially ordered by the circuit court, a writ of attachment, and if the defendant cannot be found, a writ of seques- tration or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the pur- pose of compelling obedience to any interlocutory or final order or decree of the court. VIII. Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution, in the form used in the circuit court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as for example, for the execution of a conveyance of land, or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice ; and upon affidavit of the plaintiff, filed in the' clerk's oflBce, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attach- ment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or of a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree; IX. When any decree or order is for the ^delivery of possession, upon proof made by affidavit of a demand and refusal to obey tfe decree or order, the party prosecuting the same shall be^ entitled, to a writ of assistance from the clerk of the court. 99 786 Appekdix. — Kttles of Pkactice ik Equity. X. Every person, not being a party in any cause, wlio has obtained an order, or in whose fayor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause ; and every person, not being a party in any cause, against.whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party in the cause. , SERYICE OF PROCESS. XI. No process of subpoena shall issue from the clerk's office in any suit in equity, until the bill is filed in the office. XII. Whenever a bill is filed, the clerk shall issue the process of snbpcena thereon, as of course, upon the application of the plaintifi", which shall be returnable into the clerk's office the next rule day, or the next rule day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the sub- poena shall be placed a memoradum, that the defendant is to enter his appearance in the suit in the clerk's office, on or before the day at which the writ is returnable; otherwise, the bill may be taken pro confesso. "Where there are more than one defendant, a writ of sub- poena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife, defendants, or a joint subpoena against all defendants. XIII. The service of all subposnas shall be by a delivery of a copy thereof,, by the officer serving the same, to the defendant personally, or, in the case of husband and wife, to the husband personally, or by leaving a copy thereof at the dwelling-house, or usual place of abode of each defendant, with some free white person, who is a member or a resident in the family. XIV. Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another subpoena, toties Appendix. — Eulbs of Practice in Equity. 787 quoties, against such defendant, if he shall require it, until due service . is made. XV. The service 'of all process, mesne and final, shall be by the marshal of the district, or his deputy, or some other person specially appointed b/ the court for that purpose, and not otherwise; in the latter case, the person serving the process shall make afiBdavit thereof. XVI. Upon the return of the subpoena, as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. APPEARANCE. XVII. ■ The appearance day of the defendant shall be the rule day, to which the subpoena is made returnable; provided, he has b.een served with the process twenty days before that day; otherwise, his appearance day shall be the next rule day succeeding the rule day when the pro- cess is returnable. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order book, on the day thereof,^by the clerk. BILLS TAKEN PRO CONFESSO. XVIII. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer, or answer to the bill in the clerk's office, on [or before ?] the rule day next succeeding that of entering his appearance ; in default thereof, the plaintiff may, at his election, enter an order (as of course) in the order book, that the bill be taken ^ro confesso; and thereupon the cause shall be pro- ceeded in ex parte, and the matter of the bill may be decreed by the court at the next ensuing term thereof accordingly, if the same can be done without an answer, and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to 788 Appen-dix. — Eules of Pkactice in Equity. obtain a proper decree, shall be entitled to process of attachment against the defendant, to compel an answer ; and the defendant shall not, when arrested upon such process, be discharged therefrom, unless, upon filing his answer, or otherwise complying with such order, as the court or a judge thereof may direct, as to pleading to, or fully answer- ing the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause. XIX. When the bill is taken pro confesso, the court may proceed to a decree at the next ensuing term "thereof, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and aflSdavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. FRAME OF BILLS. XX. f Every bill, in the introductory part thereof, shall contain the names* places of abode, and citizenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows : "To the judges of the circuit court of the United States for the district of : A. B., of , and a citizen of the state of , brings this, his bill, against C. D., of , and a citizen of the state of , and E. P., of , and a citizen of the state of . And thereupon your oratpr complains and says, that," &c. XXI. The plaintiff, in his biU, shall be at liberty to omit, at his option, the part which is usually called the comnlon confederacy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff; also what is commonly called the charging part of the bill, setting forth the matters or excuses, which the Appendix.— EuLES of Practice ik Equity. 789 defendant is supposed to intend to set up by way of defense to the bill; also, what is commonly called the jurisdiction clause of the bill, that the acts complained of are contrary to equity, and that the plaintiff is without any remedy at law ; and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant, by way of defense or excuse, to the case made by the plaintiff for relief. The prayer of the bill shall ask the special relief, to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunction, or writ of ne exeat regno, or any other special order pending the suit, is required, it shall also be specially asked for. XXII. If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And, as to persons who are without the jurisdiction, and may properly be made parties, the bill may pray that process may issue to make them parties to the bill, if they should come within the jurisdiction. XXIII. The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of ihem are known to be infants under age, or other- wise under guardianship, shall state the fact, so that the court may take order thereon as justice may require, upon the return of the process. If an injunction, or a writ of ne exeat regno, or any other special order pending the suit, is asked for in the prayer for relief, that shall be sufficient without repeating the same in the prayer for process. XXIV. Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on "his part, that, upon the instructions given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. 790 Appendix. — Eulbs of Peacticb in Equity. XXV. In order to preyent the unnecessary costs and expenses, and to pro- • mote brevity, succinctness and directness in the allegations of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the sum which is allowed in the state court of chancery in the district, if any there be ; but if there be none, then it shall not exceed the sum of three dollars for every bill or answer. SCANDAL AKD IMPERTINENCE IN BILLS. XXVI. Every bill shall be expressed in as brief and succinct terms a-s it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts or other instruments, in hac veria, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may, on exceptions, be referred to a master by any judge of the court for impertinence, or scandal, and, if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise olrder. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occasioned by the reference. XXVII. Ifo order shall be made by any judge for referring any bill, answer or pleading, or other matter, or proceeding depending before the court for scandal or impertinence, unless exceptions are taken in writing, and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent ; nor unless the exceptions shall be filed on or before the next rule day, after the pro- cess on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as aban- doned, imless the party obtaining the order shall,, without any unnecessary delay, procure the master to examine and report on the same on or before the next succeeding rule day, or the master shall certify that further time is necessary for him to complete the examination. ApPEKDIS. — EULES OF PRACTICE IN EQUITY. 791 AMENDMENTS OF BILLS. XXVIII. The plaintiff shall be at liberty as a matter of course, and wibhoiit payment of costs, to amend his bill in any matters whatsover, before any copy has been taken out of the clerk's, office, and in any small matter afterwards such as filing blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as he may do, of course), after a copy has been so taken, before any answer or plea or demurrer to the bill, he shall pay the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof, free of expense, with suitable references to the places where the same are to be inserted. And, if the amendments are numerous, he shall furnish, in like manner, to the defendant, a copy of the whole bill as amended, and, if there be more than one defend- ant, a copy shall be furnished to each defendant affected thereby. XXIX. . After an answer or plea, or demurrer is put in, and before replica- tion, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court, to amend his bill on or before the next succeeding rule day, upon payment of costs, or with- out payment of costs, as the court, or a judge thereof may, in his dis- cretion, direct. But, after replication filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the Other party, and upon proof, by affidayit, that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not, with reason- able diligence, have been sooner introduced into the bill, and, upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. XXX. If the plaintiff, so obtaining any order io amend his bill after answer or plea or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office, on or 792 Appendix. — Exiles of Pbactice iif Equity. before the next succeeding rule day, he shall be considered to have abandoned the same, and the cause shall proceed, as if no application for any amendment had been made. DEMURRERS AND PLEAS. XXXI. No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel, that in his opinion it is well founded in point of law, and supported by the afiBdayit of the defendant, that it is not interposed for delay ; and if a plea, that it is true in point of fact. XXXII. The defendant may, at any time before the bill is taken for cbnfessed, or afterwards, with the leaye of the court, demur or plead to the whole bill, or to a part of it, and he may demur to part, plead to part, and answer as to the residue; but in every case, in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea, and explicitly deny- ing the fraud and combination, and the facts on which the charge is founded. XXXIII. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the deffendant, they Shall avail him, as far as in law and equity they ought to avail him. XXXIV. If, upon the hearing, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant had good ground, in point of law or fact, to interpose the same, and it was not interposed vexa- tiously or for delay. And upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea of dfemurrer, the next succeeding rule day, or at such otker period, as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably Appendix. — Eules of Practice ik Equity. 793 done ; in default -whereof, the bill shall be taken against him, pro con- fesso, and the matter thereof proceeded in and decreed accordingly. XXXV. If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its dis- cretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. XXXVI. No demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to. XXXVII. No demurrer or plaa shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. xxxvip. If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument, on the rule day, when the same is filed, or on the next succeeding rule day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for the purpose. XXXIX. The rule, that, if a defendant submits to answer, he shall answer fully to aU the matters of the bill, shall no longer apply in cases where he might by plea protect himself from such answer and discoyery. And the defendant shall be entitled in all cases by answer to insist upon all matters of defense (not being matters of abatement, or to the character of the parties, or matters of form), in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar ; and in such answer he shall not be compellable to answer any other matters, than he would be compellable to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or defense. Thus, for example, a bona fide purchaser, for a valuable 100 794 Appendix. — Ettles of PracticJ! ik EQUiit. consideration, -without notice, may set np that defeinse by way of answer, instead of plea, and shall be entitled to the ^ame protection, and shall not be compelled to make any further answer or discovery of his title than he would be in any answer in support of such plea. XL. A defendant shall not be bound to answer any Statement or charge in the bill, unless specially and particnlarly interrogated thereto; and a defendant shall not be bound. to answer any interrogatory in the bill, except those inte];Togatories which such defendant is required to answer ; and where a defendant shall answer any statement or charge in the bill, to which he is not interrogated, only by stating his igno- rance of the matter so stated or charged, such answer shall be deemed impertinent. [Kescinded; see Eiile 93.J XLI. The interrogatories contained in the interrogating part of the bill, shall be divided as conveniently as may be from each other, and num- bered consecutively, 1, 2, 3, &c. ; and the interrogatories, which each defendant is required to answer, shall be specified in a note at the foot of the bill, in the form or the effect following ; that is to say : " The defendant (A B) is required to answer the interrogatories numbered respectively 1, 2, 3," &c. ; and the oflBce copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such defendant shall require to be furnished with a copy of the whole bill. XMI. The note at the foot of the bill, specifying the interrogatcnries which each defendant is required to answer, shail be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill. XLIII. Instead of the words of the bill now in use, preceding the inteiro- gating part thereof, and beginning with the words "To the end, therefore," there shall hereafter be used words in the form or to the effect following : « To the end, therefore, that the said defendants may. AfPEITDIX.— EULBS OF PRACTICE IST EQUITY. 79^ if they can, show why your orator should hot have the relief herehy {)rayed, and ma.f, upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer ; that is to say — "1. Whether, &c. "2. Whetheri"&c. XLIV. A defendant shall be at liberty, by answer, to decline answering any interrogatory or part of an interrogatory, from answering which he might have protected himself by demurrer; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill, from which he might have protected himself by demurrer. XLV. No special replication to any answer shall be filed. But 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 with- out the payment of costs, as the court or the judge thereof may, in his discretion, direct. XLVI. In every case where an amendment shall be niade after ans'w'er filed*, the defendant shall put in a neW and supplemental answer, on or before the next succeeding rule day after that on which the amendment of amended bill is filed, unless the time therefor is enlarged or otherwise ordered by a judge of the court ; and upon his default the like pro- ceedings may be had as in cases of an omission to put in an answer. PARTIES TO BILLS. XLVII. Iii all cases wtere it shall appear to the court thiat persons who might othei-wise be deemed necessary or proper parties to the suit^ cannot be made parties by reason of their being out of the jurisdiction' of the court, or incapable otherwise of being made parties, or because their joinder would oiist the jurisdiction of the court aS' to the parties' 796 Appekdix. — Eules of Pkactice in Equity. before the court, the court may, in their discretion, proceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties. XLVIII. Where the parties on either side are very numerous, and cannot without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court, in its discretion, may dispense with making all of them parties, and may proceed in the suit, having suffi- cient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But in such cases the decree shall be without prejudice to the rights and claims of all the absent parties. XLIX. In all suits concerning real estate, which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the rents and profits, in the^same manner, and to the same extent, as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons, beneficially interested in such real estate, or rents and profits, parties to the suit ; but the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such per- sons to be made parties. L. In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party ; but the plaintiff shall be at liberty to make the heir at law a party, where he desires to have the will established against him. LI. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court, as parties to a suit concerning such demand, all the persons liable thereto ; but the plaintiff may proceed against one or more of the persons severally liable. Appendix.— KuLES of Practice in Equity. 797 LII. Where the defendant' shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within ' fourteen days after answer filed, to set down the cause for argument upon that objection only ; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order book,' in the form or to the effect following (that is to say): "Set down upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed there- with to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled, as of course, to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. LIII. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified, by name or descijption, the parties to whom the objection applies, the court (if it shall think fit) shall be at liberty to make a decree, saving the rights of the absent parties. NOMINAL PARTIES TO BILLS. LIV. Where no account, payment, conveyance, or other direct relief, is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill ; but he may appear and answer at his option ; and if he does not appear and answer, he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. LV. Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his appearance, and plead, demur or answer to the same within the time prescribed therefor by these 798 ^^PPWDix. — EuLE3 OF Practice iif Equixt. rules, the plaintiflf shall be entitled, as of course, upon motion without notice, to such injunction. But special injunctioi^s sha^ be grantg.))le only upon due notice to the other party by the court in term, or by a judge thereof in yacatjon, after a hearing, which may be e^: parte, if the adyerse party does riot appear at tl^e time and place ordered. In every qage, where an injunction, either the common injunction or a special injunctioii, is. awarded in Tacatioi;, it shall, unless previously dissplrpd by, the judge granting the same, continue, until the ne3:t term of the court, or until it is dissolved by some other order of the court. BILLS OF EEVIVOR AND SUPPLEMENTAL BILLS: LVI. Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill l^jf r^yivor, or a bill in the nature of a bill of revivor, as the circum- 8i;^nces of the case mg,y, require, filed by the proper parties entitled tp reviye the s?ime, y^^^ok bill may be filed in the clerk's, ofl&ce at any tjnie,; an,d, upon suggestion of the facts, the proper process of sub- poena shall, as of com-se, be issued, by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause should be shown at the next rule day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course. LVII. Whenever any suit in equity shall become defective from any ev^nt li,^PPeP™g after the filing of the bill (as, for example, by a change of interest in the parties), or for any other reason a supplemental bill, or * ^?,^^ ^^ *-^® nature of a supplement bill may be necessary to be filed in the cause, leave *? file the'sanie may be granted by any judge of the court or on any rule day, -upon proper cause sjiown, and due notice to the other party. And, if leave is granted to file such sup- plemental bill, the defendant shall d^mur, plead or answer thereto, on. the. next succeeding rule day after the supplemental bill is filed in the clerk's office, unless, some other time shall be assigned by a judge pf the court. Appendix.— ExTLES of Pbactice in Equity. 799 Lvin. It shall not be necessary in any bill of revivor, or supplemental bill, to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. LIX^ Every defendant may sWear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or territory. AMEOTDMKN'T OF AlfSWERS. XL. After an answer is put in, it may be amended' as of course, in any matter of form, or b^filling up a blank, or correcting a date, or refer- ence to a document or other small matter, and be resworAat any time befoire a replication is put in, or the cause is^ set down for a hearing upon bill and answer. But, after replication, or such setting down for a hearing, it shall not be amended in any material matters', as by adding new facts or defenses, or qualifying or altering the origi- nal statements^ except by special leave of the court, or of a judge thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by aflB:davit. And, in every case where leave is so granted, the court, or the judge-granting the same, may, in his discretion, require that the same be separately engrossed, and added as a distinct amendment to the original answer, so as to be dis- tinguishable therefrom. EXCEPTIONS TO ANSWERS. LXI. After an answer is filed on any rule day, the plaintiff shall be allowed until the next succeeding rule day to file in the clerk's oflSce exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court or a judge thereof; and> if no exception shall be filed thereto within that period, the answer shall be deemed and' taken to be sufficient. 800 Appendix. — Kules of Practice in Equittc. LXII. When the same fiolicitor is employed for two or more defendants, and separate answers shall be filed, or other proceedings had, by two or more of the defendants separately, costs shall not be allowed for such separate apswerg or other proceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were necessary ot proper, and ought not to have been joined together. LXIIL Where exceptions shall be filed to the answer for insufficiency, within the period prescribed by the rules, if the defendant shall not submit to the same, and file an amended answer on the next succeeding rule day, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule day thereafter, before a judge of the court ; and shall enter, as of course, in the "order book an order for that purpose. And if he shall not so set down the same for a hearing, the excep- tions shall be deemed abandoned, and the answer shall be deemed sufficient; provided, however, that the court, or any judge thereof, may, for good cause shown, enlarge the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. LXIV. If, at the hearing, the exceptions shall be allowed, the defendant shall be bound to put in a full and complete answer thereto on the next. succeeding rule day; otherwise the, plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions ; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, .or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct. . LXV. , If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, the prevailing Appendix. — Rules of Pbactiob in Equity. 801 party shall be entitled to all the costs occasioned thereby, unless other- wise directed by the court, or the judge thereof, at the hearing upon the exceptions. EEPLICATION" AND ISSUE. LXVI. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed suflBcient, the plaintiff shall file the gen- eral replication thereto on or before the next succeeding rule day thereafter ; and in all cases where the general replication is filed, the cause shall be deemed, to all intents and purposes, at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit Jor refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit ; and the suit shall thereupon stand dismissed, unless a court or a judge thereof shall, upon motion for cause shown, allow a . replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. TESTIMONY, HOW TAKEN. LXVII. After the cause is at issue, commissions to take testimony may be taken out in vacation as weU as in terms, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same, in the clerk's office, ten days' notice thereof being given to the adverse party, to file cross interrogatories before the issuing of the commission ; and if no cross interrogatories are filed at the expira- tion of the time, the commission may issue ex parte. In all cases the commissioner or commissioners shall be named by the court, or by a judge thereof. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties, or their agents, with- out filing any written' interrogatories. [Amended ; see Rule 95.] ' LXVIII. Testimony may also be taken in the cause, after it is at issue, by deposition, according to the acts of congress. But in such case, if no notice is given to the adverse party of the time ap.d place of taking 101 802 Appendix.— EuiiES op Pbacticb in Equitt. the deposition, h& shall, upon motioa and affidaTit of the fact, he enti« tied ta a oross-examination of the witness, either under a commission or by a new deposition taken under the acts of congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable. LXIX. Three months, and no more, shall be allowed for the taking of testi- mony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowedi.to be read in evidence at the hearing. Immediately upon the return of the commie-* sions and depositions containing the testimony into the clerk's ofBce, publication thereof may be ordered in the clerk's office by any judge of the court, upon due notice, to the parties, or it may be enlarged, aa he may deem reasonable under all thecircumstanees. But by consent of the parties, publication of the testimony may at any time pass in the clerk's office, such consent being in writing, and a copy thereof entered in the order bookj or indorsed upon the deposition or tes-i timony. TESTIMONY DE BENE ESSE. LXX. After any bill filed, and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's witnesses are aged or infirm, or going out of the country, or that any of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such com- missioner or commissioners as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony. FORM OF THE LAST INTERROGATORY. LXXI. The last interrogatory in the written interrogatories to take testi- mony now commonly in use, shall in the future be altered, and stated in substance thus: "Do you know, or can you set forth, any other matter or thing, which may be a benefit or advantage to the- parties at Appendix. — Ecles of Practigb iisr IJffiFiTT. 803 issue in this cause, or either of themj or thai; m^y he nw-terial to, th^ Buhject of this your examination, or the matters in question in this cause ? if yea, set forth the same fully and at large iji your a,n8wer," GROSS BILL. LXXIL Where a defendant in equity .files a cross bill for discoyery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto, before the original plaintiff shall be com- pellable to answer the cross bill, The answer of t^e original plaintiff to such cross bill may be read and used by the party filing the, cross bill, at the hearing, in the same manner and under the same restrictipns as the answer, praying relief, may now b^ read and used. REFERENCE TO AND PROCEEDINGS BEFORE MASTERS. LXXIII. Erery decree for an account of the personal estate of a testator or intestate shall contain a direction to the master, to whom it is referred' to take the same, to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, unless th& court shall otherwise direct. LXXIV. Whenever any reference of any matter is mad^ to a master to exam- ine and report thereon, the party at whose instance or for whose benefit the reference is made, shaU, cause the same to'be presented to the mas- ter for a hearing on or before the next rule day succeeding the time when the reference was made; if he shall omit to do soi, the adverse par^y shall be at liberty forthwith to cause proceedings to be had before the master, at the cost of the party procuring the reference. LXXV. Upon every such reference, it shall be the duty of the master, as soon as he re?isonably can after the same is bwught: before him, to assign a time and place for proceedings in the same, and to give due ^otipe thereof to each of the partjles or their solicitors; and if eitjbjei; 804 Appendix. — Exiles of Peacticb in Equity. party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or in his discretion to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment ; and it shall be the duty of the master to proceed, with all reasonable diligence, in every Buch reference, and with the least practicable delay ; and either party shall be at liberty to apply to the court or a judge thereof for an order to the master to speed the proceedings, and to make his report, and to certify to the court or judge the reason for any delay. LXXVI. In the report made by the master to the court, no part of any state of facts, charge, affidavit, deposition, examination or answer, brought in or used before him, shall be stated or recited. But such state of facts, charge, affidavit, deposition, examination or answer, shall be identified, specified and referred to, so as to inform the court what state of facts, charge, affidavit, deposition,- examination or answer were so brought in or used. LXXVIL The master shall regulate all the proceedings in every hearing before him, upon every such reference ; and he shall have full authority to examine the parties in the cause upon oath, touching all matters con- tained in the reference ; and also to require the production of all books, papers, writings, vouchers and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office, or by deposition according to the acts of congress, or otherwise, as hereinafter provided; and also to direct the mode in which the matters requiring evidence, shall be proved before him ; and generally to do all other acts, and direct all other inquiries and pro- ceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof, and the rights of the parties. LXXVIII. Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear before the commissioner appointed to take testimony, or before a master or examiner appointed Appendix. — Rules of Practice iir Equity. 805 in any cause, by subpoena in the usual form, wbich may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master or examiner, requiring the attendance of the ■witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court ; and if any witness shall refuse to appear, or to give eTidence, it shall be deemed a contempt of court, which being certified to the clerk's oflBce by the commissioner,^ master or examiner, an attachment may issue thereupon by order of the court or any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to giye testimony in the court. But nothing herein contained shall pre- yent the examination of witnesses, viva voce, when produced in open court, if the court shall in its discretion deem it advisable. LXXIX. All parties accounting before a master shall bring in their respect- ive accounts in the form of debtor and creditor ; and any of the other parties, who shall not be satisfied with the account so brought in, shall be at liberty to examine the accounting party viva voce, or upon interrogatories in the master's office, or by deposition, as the master shall direct. LXXX. All affidavits, depositions and documents, which have been previ- ously made, read, or used in the court, upon any proceeding in any cause or matter, may be used before the master. LXXXI. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interroga- tories, or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examination shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary. LXXXII. The circuit courts may appoint standing masters in chancery in their respective districts, both the judges concurring in the appoint- ment; and they may also appoint a master ^ro hac vice in any partio- 8b6 Appendix. — ^Eules of PbActice m Equity-. ialaJ* case. The compenSattion to be allOTred to every master in (jhancery, for his services in ia.ny J)articulat Case, stall h6 fixed by the fcircttit courts in its discretion, having regard to all the circumstances 'thbreof ; and the compensation shall be charged npoli tad borne by Bueh of the parties in the cause as the court shall direct. The mas- ter Shall not retain his report as security for his compensation j but 'when the compehsatioii is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to' pay the saine, if, upon notice thereof, he does not pay it within the time prescribed by the court. EXCEPTIONS TO REPORT OF MASTER. LXXXIII. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the retutn shall be entered by the clerk in the order book. The parties shall have one month froni the time of filing the report, to file exceptions thereto; and if no eiceptidns are within that period filed by either party, the report shall ^attd Confirmed on the next rule day after the month is expired. If exceptions are filed, they shall- stand for hearing before the court if the court is then in session, or if not, then at the next sitting of the court which shall be held thereafter by adjournment or otherwise. LXXXIV. And in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs— the costs to be fixed in each case by the court, by a standing rule of the circuit court DECREES. LXXXV. Clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or a judge thereof, upon petition without the form or expense of a Appendix, — Rules of Pbactice in Iqcitt. 807 LXXXVL lu drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order ; but the decree and order shall begin in substance as follows : " This cause came on to be heard (or to be further heard, as the case may be) ■ at this term, and was argued by counsel ; and thereupon^ upon consideration thereof, it was ordered, adjudged and decreed as follows, viz. :" [Here insert the decree or order.] GUARDIANS AND PROCHEINS AMIS. LXXXVII. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons, who are under guardianship, or otherwise incapable to sue for themselyes; all infants and other persons so incapable, may sue by their guardians, if any, or by their procheins amis, subject, howerer, to such orders as the court may direct for the protection of infants and other persons. LXXXVIII. Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by coun- sel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the J)arty, or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the supreme court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. LXXXIX. The circuit courts (both judges concurring therein) may make any other and further rules and regulations for the practice, proceedings and process, mesne and final, in their respective districts, not incon- sistent with the rules hereby prescribed, in their discretion, and from time to time alter and 9.mend the same. 808 Appeitdix. — EuLES of Pbactice IK Equity. XC. In all cases, where the rules prescribed by this court, or by the circuit court, do not apply, the practice of the circuit court shall be regulated by the present practice of the high court of chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local conyenience of the district where the court is held, not as positiTe rules, but as furnishing just analogies to regulate the practice. XCI. Whenever under these rules an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof, make solemn affirmation to the truth of the facts stated by him. XCII. These rules shall take effect, and be of force in all the circuit courts of the United States, from and after the first day of August next; but they may be previously adopted by any circuit court in its discretion ; ■and when and as soon as these rules shall so take effect, and be of force, the rules of practice for the circuit courts in equity suit?, pro- mulgated and prescribed by this court in March, 1823, shall hence- forth cease, and be of no further force or effect. And the clerk of this court is directed to have these rules printed, and to transmit a printed copy thereof, duly certified, to the clerks of the several courts of the United States, and to each of the judges thereof. ADDITIONAL RULES. XCIIL— 1850. Ordered, That the fortieth rule, heretofore adopted and promul- gated by this court as one of the rules of practice in suits in equity ' in the circuit courts, be and the same is hereby repealed and annulled. And it shall not hereafter be necessary to interrogate a defendant specially and particularly upon any statement in the bUl, unless the complainant desires to do so, to obtain a discovery. XCIV.— 1854. Ordered, That the sixty-seventh rule, governing equity practice, be so amended as to allow the presiding judge of any court, exercising Appendix. — Eules of Practice in Equity. 809 JTirisdiction, either in term time or yacation, to vest in the clerk of the said court general power to name commissioners to take testimony in like manner that the court or judge thereof can now do by the said sixty-seventh rule. XCV.— 1861. Amendment of Eule 67. Ordered, That the last paragraph in the sixty-seventh rule in equity be repealed, and the rule be amended as follows : Either party may give notice to the other that he desires the evi- dence to be adduced in a cause to be taken orally, and thereupon, all the witnesses to be examined shall be examined before one of the examiners of the court, or before the examiner to be specially ap- pointed by the court, the examiner to be furnished with a copy of the bill, and answer, if any, and such examination shall take place in the presence of the parties, or their agents, by the counsel or solicitors, and the witnesses shall be subject to cross-examination, and which shall be conducted as near as may be in the mode now used in com- mon law courts. The depositions taken upon such oral examination shall be taken down in writing by the examiner in the form of narra- tive, unless he determines the examination shall be by question and answer in special instances, and when completed shall be read over to the witnesses and signed by him in the presence of the parties or counsel, or such of them as may attend ; provided, if the witness shaU 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 ques- tions which may be objected to, shall be noted by the examiner upon the deposition, but he shall not have power to decide on the com- petency, 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 cases of refusal to attend, to be sworn, or to answer mj question put by the examiner, or counsel, or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses, to be produced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or parties, of the time and place of 103 810 Appeitdix. — EuLES ov Peacticb IK Equity. the examination, for sucli reasonable time a's the examiner may fix by order in each cause. When the examination of witnesses before the examiner is con- cluded, 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 writ- ten interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, fpr special reasons satisfactory to the court or judge. XCVL— 1864. In suits of equity for the foreclosure of mortgages in the circuit court of the United States, or in any of the courts of the territories, having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the col- lection of the same, as is provided by the eighth rule of this court regulating equity practice, where the decree is solely for the payment of money. IV. Rules of Pkactice of the Court of Claims and op the SuPEEME Court, REGULATiNa Appeals theeefeom. I. — The Action. Every claim shall be stated in a printed petition addressed to the court, and signed by the claimant or his counsel. And there shall be appended to the petition the post-office address of the claimant and of his counseL ' II. — The Petitiost. The petition will consist of — 1st. The title of the action, wherein shall be set forth the names of all the parties plaintiff. 2d. A plain, concise statement of the facts and circumstances here- inafter enumerated, giving place and date, free from argumentative and impertinent matter. 3d. The prayer, in which the claimant must state distinctly the amount for which he demands judgment, or the relief to which he may be entitled. 4th. The verification as hereinafter required. The claimant may append to his petition, as exhibits, the instru- ments or documents to which it refers ; but such exhibits will not be made evidence thereby, nor the claimant be relieved from proving them should he wish to use them as evidence. The petition must set forth a full statement of the claim, and of the action thereon in Congress, or by any of the departments, if such action has been had, specifying also what person or persons are owners thereof, or interested therein, and when and upon what con- sideration such person or persons became so interested. In every case where the claim is such as is ordinarily settled in any executive department, the petition shall show that application for its allowance has been made to that department, and without success, and its decision thereon. 813 AppENBix-^EtrLES of Peactice of Court of Claims. If the claim be founded upon any law of congress, or upon any regulation of an executive department, the act of congress, and the section thereof upon which the claimant relies, must be stated, and the particular regulation of the department must be specified. If the claim be founded upon any express contract with the gOTemment of the United States, such contract must be set forth in the petition, and, if it be in writing, in the words of the contract. If it be founded upon any implied contract, the circumstances upon which the claim- ant relies as tending to prove a contract must be specified. If it con- sist of several matters or items, each shall be separately stated or articulated. The petition shall also set forth that the claimant, if a citizen of the United States, and the original and every prior owner thereof when the claim has been assigned, has at all times borne true allegiance to the government of the United States ; and, whether a citizen or not, that he has not in any way voluntarily aided, abetted, or given encouragement to the rebellion against the said government. There must be annexed to the petition an affidavit of the claimant, his agent or attorney, stating that no assignment or transfer of said claim, or any part thereof, or any interest therein, has been made, except as in said petition stated ; that said claimant is justly entitled to the amount therein claimed from bhe United States, after allowing all just credits and offsets ; and that he believes the facts as stated in said petition are true. In all cases where the petition of the claimant shall be signed, and the aflSdavit thereto shall be made by the agent or attorney of the claimant, there shall be filed with the petition a regular warrant of attorney, duly executed by the claimant or* claimants to the party so acting on his behalf. And on failure to, file such warrant of attorney the petition will be dismissed. ' III. — ^Depaetments. When a petition is filed the clerk shall transmit a copy thereof to the department or departments having cognizance of the subject- matter of the claim, with a letter stating that such an action has been commenced, and requesting that all the information known to or on file in the department, which may be necessary to protect the interests erf the government, be communicated to this court. Appestdix. — Rules of Practice of Couet of Claims. 813 If no reply be received within one month the clerk shall communi- cate with the head of such department, advising him of such omission to answer. IV. — Femes Covert, &c. When a feme covert is a claimant, her husband must be joined with her as a party plaintiff. And where infants, lunatics, or other persons not sui juris are claimants, the guardian, trustee, committee, or other proper legal representatives duly appointed by the tribunal having jurisdiction of the person or estate of such persons must be made plaintiffs, and their appointment as such, duly certified, be filed with the petition at the commencement of the action. V. — Executors, &c. If the claimant die pending the suit, his proper representatives may, on motion, be admitted to prosecute the claim, upon filing a duly authenticated copy of the letters testamentary or of administration granted to such representatives. VI. — Discovery. When the petitioner cannot state his case with the requisite particu- larity without an examination of papers in one of the executive depart- ments, and has been unable to obtain a sufficient examination of such papers on application, he may file a manuscript petition, stating his claim as far as is in his power, and specifying as definitely as he can the papers he requires in order to enable him to state his claim. The court will thereupon make a special order calling upon the proper department for such information or papers, as it may deem necessary, to be delivered to the clerk of the court to be filed in his office. The manuscript petition may theil be amended, and the amended petition printed and filed, and may occupy upon the docket the place of the original petition. VII. — Orders in Vacation. In vacation ah application for a special order to call upon a depart- ment for papers for such purpose, or for information or evidence, may be made to a judge of the court at chambers. VIII. — Copies of Petitioit. The claimant, when, or within ten days after, he files his petition, shall deliver to the clerk fifteen printed copies thereof for the use of 814 Appekdix. — EuLES of Pbactice of Court op OtAiMSi the judges and the attorney-general. The printed copies must show the clerk's indorsement of the filing of the original, with the date thereof. IX. — Demttekebs and Special Dbfenses. The solicitor shall demur to or traverse the petition within sixty days after the filing of the same, unless, for special cause shown on motion of the court, or to a judge in vacation at chambers, the time be extended ; and he may put in a special defense to the claim at any time before the hearing of the cause. X. — Gboun'ds op Demubbeb. When the solicitor demurs to the petition, he shall set forth the grounds of the demurrer specially in writing, and file the same of record. But, if the ground of demurrer be that the petition does not set forth facts sufilcient to constitute a cause of action, that objection may be stated generally. XL — ^Amendment. After the decision on the special demurrer, the claimant may amend within thirty days, except in cases where the demurrer is sustained on the ground of want of jurisdiction, or legal capacity in the claimant to sue, in which cases the petition shall be dismissed. XII. — OoxrU'TEEOLAIMS, &C. Where a set-oflf, counterclaim, or other special defense on the part of the United States is set up by the solicitor, the grounds of such defense shaU be distinctly set forth in writing, and filed before the hearing of the cause. And the claimant shall, within thirty days after receiving notice of the filing of the same, file his answer thereto in writing, verified by affidavit. XIII.— Fbauds. When the solicitor shall interpose, as a defense to the claim, that the claimant has corruptly practiced, or attempted to practice, a fraud against the United States in the prooi^ statement, establishment, or allowance of any claim, or any part thereof, he shall specify in writ- ing, and file the same of record, the grounds and facts upon which the same is based, and which constitute the fraud, or attempted fraud, alleged against the claimant. And the claimant shall, within twenty Appendix. — Eules of Practice of Ooubt of Claims. 815 days after receiving a copy of such specification and notice of the filing of the same, file his answers to the same, verified by affidavit. XIV. — Dockets. There shall he kept a general docket, in which an abstract of all the proceedings in each case, with reference to the papers filed, shall bd entered. Also a journal or minute-book, in which the proceedings of the court shall be entered. Motions and interlocutory orders, when made in writing, shall not be entered in extenso upon the journal or docket, but an abstract of the same shall be entered, with a reference to the paper filed. There shall also be kept a trial docket, on which the cases for hearing upon testimony shall be entered in the order in which they may be traversed. Cases traversed on the same day shall take precedence according to their seniority. A law docket or list shall also be kept, on which all cases of demurrer, motions for new trials, and aU other motions for hearing, in the order in which th«! demurrers are filed, or the motions made, shall be entered by'the clerk. There shall also be kept a "judgment index," in which an abstract of every final judgment or decree rendered by the court shall be recorded, containing the name or names of the claimants, the number and term of the case, the general docket and page upon which the same is entered, the date and amount of the judgment, the time when the appeal, if any, is entered, the result of the appeal, and the date of remittitur, and the date when certified for payment. XV. — Teial Dockets. 1. The clerk shall keep a docket to be called the " watch book," and the claimant or his counsel may at any time enter his case upon said watch book by a notice' giving its style and number, and stating that the testimony in chief on the part of the claimant has been closedj and directing the case to be entered upon the trial docket for the next succeeding term. 2. All such cases so entered upon the watch book, at least one month prior to the making up of a trial list as hereafter provided, shall be placed upon such trial list by the clerk, and in the order in which they stand upon the watch book. 3. No testimony in chief on the part of the claimant will be admitted after a claimant has placed his case upon the watch book, except by order of the court. 816 Appendix.— Rules of Peacticb of Oouet of Claims. 4. The trial lists referred to -will be made up by the clerk for the tirst Monday of December, the first Monday of February, and the first Monday ot April. 5. The peremptory call of the trial lists will begin on the Tuesday after the first Monday of December, February and April, of each term. A stated number of cases wiU be called each day, and those not ready when called will be stricken off of that trial list or continued for the term, unless, for special cause] shojfn, the court shall order otherwise. 6. Cases in which the counsel reside at a distance may be set down for a day certain, with the consent of the solicitor for the United States, without regard to their position upon the trial docket. 7. All issues of law and motions shall be placed on a law docket, which wUl be taken up on Monday of each week during the term. 8. Cases marked "continued" are to be understood as continued to . the next term of the court, and will be brought on then as if never on the trial list. Cases marked "off" are to be understood as stricken off the trial list, and must be placed by the claimant on a subsequent trial list. Cases marked for February on any subsequent trial list will be placed thereon by the clerk without the action of the claimant. 'XVI. — Feinted Teial List. The clerk shall furnish printed trial and argument lists to the court from time to time, which shall contain the names of parties and the counsel, and the position of each case. XVII. — Couksel. No counsel will be permitted to practice in the court' unless he is a man of good moral character, and has been admitted or licensed to practice in the supreme court of the United States, or in the highest court of the District of Columbia, or in the highest court of some state or territory, of which admission he shall furnish evidence satis- factory to the court. . XVIII. — Claimant in peg. pee. Any claimant may appear in person and manage his own case. XIX. — COMMISSIONEE. The court will appoint permanent commissioners for the taking of , testimony, and special commissioners as circumstances may require. Appendix. — Rules of Practice op Coitet of Claims. 817 Every permanent commissioner shall take an oath, before he enters upon his duties, that he will faithfully discharge them so long as his commission remains in force; and every special commissioner shall take an oath faithfully to discharge his duties. The form of a commission to a permanent commissioner shall be as foUows : CouBT OP Claims, To , of , in the county of and State of : , esquire : Tou are hereby appointed a commissioner, for the term of two years, for the State of , to take the testimony of such ■witnesses as may come before you, to be used in the investigation of such claims as may be presented to this court against the United States. In the performance of this duty you will be guided by the rules of this court. Tou will take no deposition unless by consent of the parries, until it is shown to you, by the return upon the original notice, that the adverse party has been duly notified ; and if he do not appear, you will affix the original notice to your certificate, and return it therewith for the information ol the court. , Cleric. When special commissions are issued, such variations from the above form as may be necessary will be made. The several judges of the courts of record for the time being in the states and territories of the United States are hereby appointed commissioners to take testimony to be used in the investigation of claims before this court, in the counties in which they may respectively reside, during the pleasure of this court ; and this rule shall be a sufllcient commission to each of said judges in the premises. The commissioners appointed by the circuit and district courts of the United States for the purpose of tak- ing testimony are hereby appointed commissioners to take testimony in the circuits or districts for which they are respectively appointed by such courts. XX. — SUBPCENA. The form of a subpoena shall be as follows : CoTJKT OF Claims, To : You are hereby commanded to appear before -, , commissioner ax)pointed by this court to take depositions, on the day of , A. D. 186-, at o'clock in the noon, then and there to testify in the case of against the United States, now pending in this court. Fail not of appearance, at your peril. Dated this day of , A. D. 186-. , Clerk, 103 818 Appendix. — Eulbs of Pbactice oi' Cotjet or Claim3. XXI.— Evidence (by DEPOSiiioiir). The party proposing to take depositions shall cause fifteen days' notice to be given thereof to the attorney-general, or to the claimant or his counsel, as the case may he. The notice must he in writing, and must state the names of the commissioner and of the witnessesy and the day of the month, the hour, and the place of taking the depo- sition, and must be subscribed by the attorney-general or counsel acting for the United States, or by the claimant or his attorney of record. When the claimant proposes to take a deposition, and the witness resides more than five hundred miles from Washington, or where the solicitor proposes to take the deposition, and the witness resides more than five hundred miles from the claimant or his counsel, one day's further notice shall be given for every addi- tional hundred miles. ' Provided, That if the claimant proposes to take a deposition in the city of Washington, three days' notice shall be sufficient. And a like notice by the attorney-general shall be sufficient when the claimant's attorney or his- counsel resides in the city of Washington. Prouided, also, That when the attorney-general, or his assistant, attends in person at the place for taking depositions, the claimant shall not be limited to the examination of the witnesses named in the notice. The same privilege shall extend to the defendants when the counsel for the claimant personally attends. Should the commissioner named in the notice be absent or decline to act, the depositions may be taken before any other person duly qualified to act in the premises. XXII. — ^Evidence (Oeficeb). Whenever it is charged in the petition that a contract has been made or other liability incurred through an officer or agent of the United States other than the head of an executive department, or the chief of - a bureau, the claimant will be required to prove that such person was an officer or agent of the "^nited States, by the certificate of the proper' executive department, or by other legal and sufficient evidence. XXIII. — Evidence (Docttmentaet). The records, papers or documents from an executive department which may be offered in evidence by a claimant must be those which have been transmitted to the court under a regular call for the same. Appekdix. — EuLES OP Peactice of Court of Claims. 819 or otherwise they must be duly certified and authenticated pursuant to the acts of congress in such cases made and provided. And all such papers must be filed vrith the clerk before being printed. XXIV.— Evidence {Duces Tecum). The court may, at the instance of the attorney-general or his assist- ant, grant a rule upon any claimant, his agent or attorney, to produce in court, or before any commissioner, any letters, papers, deeds, docu- ments, or other writings in his possession, or subject to his control, in any way relating to said claim ; and any claimant, his agent or attor- ney, who shall, after due notice, refuse to produce such letters, papers, deeds, documents or other writings, when in his power to do so, shall be subject to attachment for contempt of such order ; and, persisting in such refusal, the court will direct the petition to be dismissed. XXV. — ^Evidekcb (Witnesses). If the witness, having been duly summoned and his fees tendered him, shall fail or refuse to appear and testify before any commissioner, a rule upon him shall be issued, on motion, to show cause why a fine should not be imposed upon him; and, if he fail to show sufiBcient cause, he shall be fined not exceeding one hundred dollars. XXVL— Evidence (Oaths, &c.) AU witnesses shall be sworn or affirmed, before any questions are put to them, to tell the truth, the whole truth, and nothing but the truth, relative to the cause in which they are to testify ; and each witness shall then state his name, his occupation, his age, if, under twenty-one years, his plaice of residence for the past year; whether he has any interest, direct or indirect, in the claim which is the subject of inquiry; and whether, and in what degree, he is related to the claimant. At the conclusion of the deposition, the witness shall state whether he knows of any other matter relative to the claim in ques- tion ; and if he do, he shall state it. The testimony of the witness when completed shall be read over to him by the commissioner, and be signed by him in the presence of the commissioner. XXVII.— Evidence (Deposition). The commissioner shall state, in the caption of the deposition, the cause in which it was taken, the place where taken, the name of the 820 Appendix. — Eules of Peacticb of Court of Claims. witness, the party by whom called, the date, and the names of the parties and counsel present. And in the body of the deposition shall also be shown by whom the witness was examined and cross- examined. XXVIII.— Evidence (Deposition). In his return the commissioner shall show that the deposition was taken under competent authority; that the witness was properly sworn or affirmed ; and that the answers were taken down- by the commissioner, and read oyer to and signed by the witness.' XXIX. — Evidence (Deposition). •The commissioner shall inclose the commission, depositions, and exhibits, if any, in a packet under his seal, and direct the same to the clerk at Washington, and deposit the packet in the post-office, or in an express office, or he may transmit the same by a messenger, whose name shall be by him indorsed upon the packet. XXX. — Evidence (Commissioners' Pees). The commissioner shall not be obliged to certify and forward the depositions taken for either party until his fees for the taking of the same, and the postage, shall have been paid or tendered to him by the party at whose instance the commission issued, which fees shall be such as are now, or may hereafter be, prescribed by congress for the performance of similar duties by commissioners ; and the fees of wit- nesses shall also be such as are now, or may hereafter be, prescribed by congress, and shall be paid by the party at whose instance the witnesses appear. XXXI. — Evidence (Depositions). Depositions shall be taken by oral examination, or they may, with consent of the parties or under an order of the court, or by order of a judge in vacation, be taken by written interrogatories. " Catharine Martin v. The United States. (C. Cls. R., vol. Ill, p. 384.) Per cubiam: " A commissioner should so connect the sheets of a deposition that they could not be tampered with, and should return them sealed together, so that the unbroken seal would be conclusive proof in their favor. He should sign each sheet, and make the witness sign each sheet, and generally he should spare no pains to return to the court the exact evidence he has taken." Appendix. — Rules oe Peactice of Cotjet of Claims. 821 XXXII. — Evidence (Inteeeogatoeies). Where it is proposed to take depositions upon written interroga- tories, they shall be filed at least fifteen days before the issuing of the rule, and notice given of the same, to enable the opposite party to file cross-iaterrogatories. XXXIII. — EviDEKCE (Oeal Examination-). Where a deposition is taken by oral examinations, the questions propounded to the witness shall not be written down in the deposi- tion, but the testimony shall be taken in forin of narrative, and, as nearly as can be, in the words of the witness. But where a question is specially objected to as illegal in form or substance, it shall be written down, and the objection noted by the commissioner. And any question asked upon cross-examination, or re-examination, and the answer thereto, shall be written down, if requested by the party interrogating the witness. XXXIV. — Evidence (Inteeeogatoeies). Where a deposition is taken upon written interrogatories filed, neither the solicitor • for the United States, nor the claimant, his agent, attorney, or any other person, shall be present at the examina- tion of such witness, which fact shall be certified by the commissioner taking the deposition. The commissioner shall, in such cases, pro- pound the interrogatories, and cross-interrdgataries, if any, to the witness in their order, and reduce his answer to writing, as nearly as practicable, in the precise words of the witness. XXXV. — Evidence (Objections). All objections to the notice, or the form and manner of taking oi- returning the testimony, shall be made in writing, and ' filed within thirty days after notice of the filing of any deposition, or they will be considered as waived ; and no other objections to the deposions will be considered on the hearing of the cause than such as would be avail- able in a court of common law if the witness were produced for examination in court. XXXVI. — Evidence (Oedee). When a petition is filed the clerk shall enter, as of course, an order for taking testimony. 823 Appendix. — Rules of Practice of Ooubt op Cla'ims. XXXVII.— Briefs, PiLijfG. The brief of the claimant shall be filed, or a copy delivered to the attorney-general, at least thirty days before the hearing of the cause. XXXVIIL— Briefs (Eequisites). The brief shall contain : 1st. The style of the suit, embracing the names of all the parties, upon what founded, and how the cause was brought into court — whether by original petition, or was referred by one of the houses of congress. 2d. A succinct history of the case, embracing all the leading facts upon which the claim is founded. 3d. An epitome or condensed statement of the evidence adduced by the claimant, with a reference to the pages of the record upon which it is printed. 4th, The argument on the facts. 5th. The argument on matters of law. Where authorities are referred to in the brief, the principle in sup- port of which they are cited shall be stated, or the syllabus or a short extract shall be quoted. The brief of the attorney-general shall conform, as nearly as the cir- cumstances of the case will admit, to the form prescribed for the brief of the claimant, and shall, in the statement or history of the case, specify wherein his view of the facts differs from that contained in plaintiff's brief. The attorney-general's brief shall be filed within twenty days after receiving that of the claimant, unless the time be extended by the court upon cause shown. On^the argument of a motion or demurrer the briefs will be confined to the points of laws arising in the case, a synopsis of the argument, and a citation of the authorities. XXXIX. — Items waived. All items of claim not specified in the brief will be considered as waived. XL. — Pristtikg. The testimony and briefs shall be printed, and furnished to the judges at least one day before the hearing of the case. In all cases where the amount claimed exceeds three thousand dollars each party shall be at the expense of his own printing. In all cases under that amount the printing shall be done, as heretofore, under the direction Appendix. — Eules of Peactice op Cotjbt of Claims. 823 of the clerk. The printed papers required by these rules shall be in small pica type, and in pages known to printers as royal octavo, and the style and number of the case shall be prefixed to all printed papers and to records of evidence. A proper index of the contents and page ehall also be prefixed. XLI. — Notices, Time of. When notice is to be given by the attorney-general to a claimant or his attorney, residing in a territory, or in a state on the Pacific, of any thing done or to be done in any other state, or in the District of Columbia, double time shall be allowed ; and also when notice is to be given to the attorney-general by any claimant or his attorney of any thing done or to be done in a territory, or in a state on the Pacific. XLII. — Notices (Clerk). Whenever a notice is required to be given by these rules by any other person than by the parties, it shall be the duty of the clerk to send such notice by mail as soon as practicable after the paper requir- ing such notice shall have been filed in his ofiB.ce. XLIII. — ^Notices, Peoof of. The clerk's entry on the docket of notice sent shall be prima facie evidence of the service of the notice. XLIV.— Time. In the computation of time mentioned in these rules the day of the service of any notice shall be excluded, and the day on which the party is required-to appear, or on which an act is required to be done, shall be included. XLV. — NoN Pegs, and Discontinuance. If the claimant neglect for six months after issue joined to proceed thereon, the defendants may give notice of a motion to dismiss the petition, returnable in not less than sixty days, or the first Monday of any month during the term. In vacation, a claimant, with the approval of a judge of the court, may discontinue a suit pending by a writing filed of record, signed by himself or his attorney of record ; and thereupon he shall be enti- tled to withdraw any papers filed therein, by filing a descriptive list 834 Appejstdix. — Eules of Peactice of Court of Claims. thereof witli the clerk. But this rule shall not apply to any case in which fraud is chargfed, or a set-off pleaded by the United-States. XLVL— MoTiOKS. All motions submitted to the court shall be in writing, with the style and number of the case to which the motion relates, and signed by the counsel submitting the same ; and in no case shall the clerk be required to enter the motion unless this rule be complied with. A judge will attend at the court room, at 10^ o'clock A. M., of every day, except Monday, to hear motions. All motions must be heard in the first instance before a single judge, except that in cases of impor- tance or doubt he may direct the hearing to be before the court sit- ting in banc, and then they will go upon the law docket. Applications for rules, orders relative to evidence, calls upon the executive departments, motions relating to the trial lists or day docket, must be thus submitted to the single judge in the first instance. After the court sitting in banc take up the day docket, the time of the court will be given exclusively to the trial of cases. A case not then ready will go off for the day, and a motion for postpone- ment must be heard by a single judge on the following morning ; or the case will go upon the law docket, and the motion be heard on the following Monday, as the court may direct. XLVII. — ^Etibbnoe (Witness to be produced before Court). The court will reserve the right to remand «ny case to the docket and order a witness or a claimant to be produced before the court, or one of the judges thereof, and to be re-examined. But the claimant may be produced in the first instance, before the court or one of the judges at chambers, in vacation, and his testimony be thus taken, instead of before a commissioner, and such an examination will be a sufi&cient compliance with this rule. XLVIIL^BVIDENCB (POREIGK DEPOSITIONS). "Where it is proposed to take depositions in any foreign country, they must be taken upon written interrogatories in the manner pro- vided by rule XXXII of the court; and if the moving party be the claimant at the time of filing his interrogatories, he must also file a full and detailed statement of the testimony expected to be given by the witnesses respectively ; and thereupon a special commission will Appendix. — Bttles of Praoticb op Court of Claims. 825 be issued by the court (or by the chief justice, or one of the judges during vacation), to the consul or vice-Consul of the United States at the place designated by the moving party. The taking of such depo- sitions and the manner of proceeding by the commission and parties shall be subject to rules XVI, XXVIII, XXIX, XXX, XXXIV, and XXXV, of this court. XLIX. — Appeals. All applications for an appeal to the supreme court of the United States from any judgment or decree of this court which shall here- after be rendered or made shall be in writing, and be signed by the claimant or his attorney of record, if the appeal be on his behalf; or if taken by the United States, shall be signed by the attorney-genersJ. or his assistant. L. — Appeal in Vacation. Whenever such application for an appeal is made in vacation, the same shall be filed with the clerk of this court, and the date of filing the same shall be by him indorsed upon [it] and noted upon tho record; and such filing shall be deemed the date of the application for an appeal. Regulations prescribed iy the Supreme Court of the United States, at December Term, 1865, under which appeals may be taken from the Court of Claims to said Supreme Court. I. In all cases hereafter decided in the court of claims in which, by the act of congress, such appeals are allowable, they shall be heard in the supreme court-upon the following record, and none other : 1. A transcript of the pleadings in the case, of the final judgment or decree of the court, and of such interlocutory orders, rulings, judgments, and decrees as may be necessary to a proper review of the case. 2. A finding of the facts in the case by the said court of claims, and the conclusions of law on said facts on which the court founds its judgment or decree. The finding of the facts and the conclusion of law to be stated separately and certified to this court as part of the record. 104 826 Appendix.— Rules of Pkactioe of Couet of Claims. The facts so found are to be the ultimate facts or propositions which the evidence shall establish, in the nature of a special verdict, . and not the evidence on which these ultimate facts are founded. (See Burr V. Des Moines Co., 1 Wallace, 99.) II. In all cases in which judgments or decrees have heretofore been rendered, when either party is by law entitled to an appeal, the party desiring it shall make application to the court of claims by petition for the allowance of such appeal. Said petition shall contain a dis- tinct specification of the errors alleged to have been committed by said court in its rulings, judgment, or decree in the case. The court shall, if the specification of alleged error be correctly and accurately stated, certify the same, or may certify such alterations and modifica- tions of the points decided and alleged for error as,- in the judgment of said court, shall distinctly, fully, and fairly present the points decided by the court. This, with the transcript mentioned in Eule 1 (except the statement of facts and law therein mentioned), shall constitute the record on which those cases shall be heard in the supreme court. III. In all cases an order of allowance of appeal by the court of claims, or the chief justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal. Rules of the Circuit Court of the United States fob THE Northern District of New York. [Adopted in 1841.] 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. 11. i 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 coun- ties of Albany and Eensselaer ; 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 pre- Bcribed 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. [Eule IV and V obseleto.] 828 Appendix. — Eules of the Cikcuit Coubt VI. In cases not proTided 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. VIL In cases of opposition of the 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 state- ment 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 neces- sary 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. ADDITIONAL EULES. 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.' X.— 1858. This rule abrogates a former rule constituting the first judges and clerks of counties, commissioners of the court. 'As the 67th rule expregsly directs that "in all cases the commissioner or com- missioners shall be named by'the court or a judge thereof;" this rule being in con- flict with it seems unquestionably invalid. FOR THE NOBTHERN DISTRICT OP NeW YoBK. 829 XL— 1864 This and the next following rule are transcripts of rules 95 and 96 of the district court, which see. XIL The cases and points, and all other papers furnished to the court in calendar causes other than causes for trial before a jury, except the papers sent up from the district courts on appeals in admiralj;y cases, shall be printed on white writing paper, with a margin on the outer edge of the leaf not less than two inches wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long,' and three and a half inches wide. The folios, numbering from the commencement to the end of the papers, shall be printed on the outer margin of the printed page. But the court, or either judge thereof, may, before the papers are printed, and at least ten days before the time for which the cause is noticed, or is to be noticed, for hearing, by written order, dispense with the printing of papers as aforesaid, a copy of which order shall be served on the attorneys of the parties to the suit, interested in such hearing, at least ten days before the day appointed for such hearing. XIIL No cause shall be noticed for trial before a jury, or for hearing, upon pleadings and proofs, or upon a cas6 or bill of exceptions, at the adjourned term in January, in the city of Albany, without leave of the court therefor, granted at the previous stated term. But all causes may be noticed for trial or hearing at the adjourned circuit to be held on the third Tuesday of March, in the city of Utica, the same as at a stated term. XIV.— 1868. Kule 31, of the district court, having been so amended as to permit the defendant or claimant, as well as the adverse party, to any issue ©f fact to notice it for trial, and to bring on the trial in pursuance of 8uch notice, this rule adopts the amendment. See rule 31, as amended. [Th« following rules, relating, as they do, exclusively to one branch of jurisdiction, were numbered as a distinct set from one onward, and are accordingly so numbeied here.] 830 Appendix.— EuLES of the Cibcuit Couet, N. D, N Y. 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. IIL "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 day or other day thereof; or have the cause con- tinued until the next stated session. V. Transcripts of the depositions taken in any cause in the district court, according to law, whether de bene esse under the acts of con- gress, or on commission, and read at the hearing of the cause in that ' court, may be transmitted to the 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 evidences of witnesses examined orally therein, shall be certified and transmitted to, this court, on appeal, along with the transcript of the record and other proceeding's 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 eourt, if they see fit to do so. VI. Ettles of the District Coxjet of the United States in AND FOE THE NoETHEEN DiSTEICT OF Ne"W" YoEK. I. Tlie clerk of this court shall reside and keep his office at Utica, until' otherwise ordered by the court.' 11. Proctors of any circuit or district court of the United States, attor- neys 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 presenta- tion of their licenses to the clerk in vacation, be admitted attorneys and proctors of this court ; and counselors and advocates of any cir- cuit or district court, and counselors of the gaid 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 adrftitted to practice in this court shall, in open court, take either an oath or affirmation of the tenor foUowingj via..: I do solemnly swear (or affirm, as the case may be)' that I will demean myself as attorney (or counselor, solicitor, proctor or- advo- cate, 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 attor- ney, proctor or solicitor has an agent in the supreme court of the state ' By 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. 832 Appekdix. — Rules of the District Couet 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 ofiBce of the clerk, who shall keep a catalogue of the appointments filed, with the names of the attorneys alphabetically arranged; ^nd no person shall be agent unless he is an attorney of this court or of the supreme court of the state.' V. When the attorneys, proctors or solicitors of the adverse parties do not reside within forty miles of each other, service may be made on the agent. VI. If the attorney, proctor or solicitor, not resident in TJtica, has no agent there, either in the supreme court of the state or in this court, . service of all papers and notices may be made as to him, by afiBxing the same in a conspicuous place in the office of the clerk of this court.' VII. When the service is on the agent, or is made by affixing the notice or paper in the clerk's office, it must be double the time of service required where the service is on the attorney, proctor or solicitor. VIII. All notices shall be in writing, and shall be served on the attorney, proctor or solicitor in the cause, or his agent, or by affixing in the clerk's office, and not on the party ; but where a party, who is also an attorney, proctor or solicitor of this court, shall prosecute or defend in person, all notices and other papers shall be served on him in like man- ner, except where the proceeding is by bill, in which case the bill shall be personally served ; and where the object is to bring a party into contempt for disobeying any rule or order of court, the service shall be personal, unless otherwise ordered by the court. IX. Notices and papers may be served on an attorney, solicitor or proctor, during his absence from his office, by leaving the same with ' Since the removal of tlie clerk's office to Buffalo, this rule, it is presumed, U held applicable to that city. FOR THE Northern District of New York. 833 nis clerk in such office, or with a person having charge thereof; or, where no person is to be found in the office, by leaving the same between the hours of six in the morning and nine in the evening, in some suitable and conspicuous place in such office ; or, if the office be not open so as to admit of service therein, then by leaving the same at the residence of the attorney, solicitor or proctor, with some person of suitable age and discretion. X. Where a party, other than an attorney, solicitor or proctor of this court, prosecutes or defends in person, the service of notices and papers may be on such party personally, or by putting the same into the post-office, directed to him or her at his place of residence. And no service of notices or papers in the ordinary proceedings in a cause, shall be necessary to be made on a defendant, who has not appeared therein, except where the defendant is returned imprisoned for want of bail, in which case a copy of the declaration and notice of the rule to plead shall be delivered to him, or to the sheriff or jailer, in whose custody he may be ; and where an exception is entered to bail, and no notice of retainer of attorney to defend is given, notice of such exception shall be delivered to the sheriff or one of his deputies. XL Actions brought for the recovery of any debt, or for damages only, may be commenced, either — 1. By the issuing and service of a capias ad respondendum against persons not privileged from arrest ; 2. By summons against corporations ; or, 3. By filing in the office of the clerk of this court a declaration ; entering a rule in the book of common rules kept by such clerk, requiring the defendant to plead to such declaration, according to the practice of the court; and serving a copy of such declaration and notice of such rule personally on the defendant ; which last mode of commencing an action may be adopted against any person, whether privileged from arrest or not. XII. Upon due proof of the service of a declaration personally upon all the defendants in the cause, their appearance shall be entered by the 105 834 Appendix. — Kttles of the District Oottet clerk in the same manner as if they had indorsed their appearance on a capias ; and their default may be entered for not pleading, and the same proceedings may be had against them, in all respects, as if they had appeared. XIII. All process, if issued in term time, may he tested on any day in that term, and made returnable on any day in the same term, or in the next term ; and if issued in vacation, may be tested on any day in the preceding term, and be made returnable on any day in the next term; and the term shall include every day from the commence- ment thereof until the final adjournment of the court, notwithstand- ing intermediate adjournments. And in any case any stated term shall not be held, process may be tested on the day fixed by law for the commencement of such term. * XIV. Upon the service of a capias ad respondendum, -which does not require the defendant to be held to bail, he may indorse his appear- ance on such writ, or, if he refuse to do so, the officer may return the •writ personally served; and, in either case, it shall be the duty of the clerk, upon the return of the writ, to enter the appearance of the defendant upon whom the same was served ; and proceedings may thereupon be had against such defendant, as if he had actually appeared. XV. "When the capias, has been served on the real party intended, the plaintiff, before or after its return, may amend, of course, any error in the name of the party inserted in the process, giting the defendant notice of such amendment. XVI. The court will not entertain a motion to set aside the process or proceedings in a cause on the ground of the misnomer of the party arrested ; but will leave him to his remedy by a plea in abatement. XVII. No person shall be held to bail on a capias ad respondendum, unless the true cause of action be particularly expressed therein. FOK THE NOBXHEBK DISTRICT OF NeW YoEK. 835 XVIII. The defendant may be held to bail in the cases and in the manner, and subject to the exceptions prescribed by the laws of this state ; and bail may be put in, and the bail piece filed before the return day of the writ, for the purpose of surrendering the principal. XIX. In suits brought against persons accountable for public money, for the recovery thereof, in which the defendant is held to bail, it shall be the duty of the officer making the arrest, to exact a bail bond, con- ditioned for the appearance of the defendant on the return day of the writ, and unless it shall be made to appear that the plaintiff is not entitled by law to judgment at the return term, special bail shall be put in, and the bail, if excepted to, shall justify within two days after the return day of the writ, and before the adjournment of the court at the return term ; otherwise the plaintiff may sue out process upon the bail bond, returnable on any day in the ensuing vacation, and upon the return of such process, served, may proceed to judgment and exe- cution, as of the preceeding term, unless the defendant shall interpose a valid plea, verified by aflSdavit ; and judgement may also be entered in the principal suit in the same manner as if special bail had been put in and perfected. But if, within the time . herein allowed for putting in and perfecting special bail, the defendant shall, by making the oath or affirmation prescribed by law, entitle himself to a continu- ance until the next term, he shall have the same time allowed as is allowed in other cases after the return day of the writ, to put in and perfect such bail. XX. In suits upon bonds for the payment of duties, and in suits brought against persons accountable for public money, for the recovery thereof, the declaration may be filed on the day upon which the writ is return- able and returned, and the district attorney may thereupon move in open court for judgment, and, no plea being interposed, may have final judgment entered instanter. XXI. "When, in suits upon bonds for the payment of duties, and in suits brought against persons accountable for public money, for the recovery thereof, the defendiant interposes a plea, the district attorney may have 836 Appendix. — Rules of the District Court, the cause placed on the calendar, at the same term, without other notice ; and may bring the same to trial when called, unless the court shall continue the cause over at the instance of the defendant. • XXII. In suits in which the United States are plaintiffs, or in which they are interested though not plaintiffs, if the bail to the arrest become special bail, the assignment of the bail bond and the acceptance thereof by the plaintiff's attorney, shall not preclude him from excepting to the suflSciency of such special bail; and the marshal shall still be responsible for good bail, notwithstanding such assignment and accept- ance of the bail bond. XXIII. No plea shall be received in any suit instituted In this court upon a bond executed to the United States for the payment of duties, or, in any suit instituted upon a bail bond taken in consequence of such suit, unless such plea shall be accompanied by an affidavit of the truth of the matters in the plea contained. In seizure cases, the defendant or claimant, instead of specially traversing any or all of the allegations of the information, may plead in substance " that the goods, articles and property, in the said infor- mation mentioned, did not, nor did any, or either of them, or any part thereof, become forfeited in manner and form, as is in the said infor- mation in that behalf alleged," or may otherwise directly and expressly deny, in similar general terms, the forfeiture alleged, which shall be deemed a good plea of the general issue, to such information, and shall put in issue all the allegations thereof. When, in any such seizure case, the defendant or claimant shall, in his plea, make any affirmative 'allegation or allegations of matters of fact, by way of defense or answer to the information therein, the same shall be considered as denied by the district aitorney and the United States, and no replication, either general or special, shall be required or allowed. "Within twenty days after such plea shall be filed and served the United States may amend the information, as of course, and may add new allegations for the purpose of avoiding, explaining or adding to the new matter alleged in sivih plea, and the defendant or claimant shall have twenty days after the filing and service of such amended information to file and serve his plea to the same. FOE THE NOBTHEBN DiSTBICT OF NeW YORK. 837 XXIV. The time for putting in special bail, and giving notice thereof, shall be twenty days irom the day on which the process shall be returnable ; the time for exception and notice thereof, twenty days from the day of notice of bail ; the time of justification, eight days from the day of notice of exception ; and notice of justification shall be given four days before the day of justification. Bail may justify in open court, or before the judge at chambers, or before the clerk, with the right of appeal in the last case to the court, or judge at chambers. XXV. The following shaU be the terms on which proceedings shall be stayed in suits on bail bonds : 1. Putting in and perfecting bail above, and paying the costs of the suit on the bail bond, and of the motion for relief. 2. Pleading issuably, and consenting to place the cause on the calendar, and to proceed to trial at the same term ; or in case of refusal so to plead and consent, the entry of a judgment on the bail bond to stand as security. XXVI. Common rules (or rules of course, without special caiuse shown), and rules by bonsent may be entered in the proper book in the clerk's office in term or in vacation ; the day of entering the same being noted " therein ; and the party may enter such rule as he may conceive him- self entitled to, of course, but at his peril, XXVII. The defendant, having perfected his appearance, may at any time thereafter take a rule against the plaintiff to declare in twenty dayg after service of notice of the rule, or that judgment of discontinuance be entered against him. XXVIII. The rule to plead, to answer, or to join in demurrer, shall be a rule of twenty days ; but the plaintiff shall not be held to accept a plea in abatement after four days from the day of service of the notice of the rule to plead, and a copy of the declaration ; and the rule to join the demurrer to such plea shall be a rule of four days only. 838 Appendix. — Rules op the Disteict Court XXIX. When there shall have been judgment of respondeas ouster, on a demurrer to a plea in abatement, and the plaintiff shall have served the defendant with a notice of such judgment, the defendant shall plead' within four days from the day of service of such notice, or his default in not pleading may be entered. XXX. The party in whose favor a default has been entered may, on any day afterwards in term, have a rule entered for such judgment as is to be rendered by law by reason of such result. In all actions sounding in damages, after judgment for the plaintiff by default or on demurrer, the damages shall be assessed on a writ of inquiry, or by the clerk, as the case may be. XXXI. Fourteen days' notice of trial, and six days' notice of countermand, shall be given in all cases. A party defendant or claimant, as well as the opposite party, may notice any issue of fact for trial, and bring on the trial thereof in pursuance of such notice. The like notice of assess- mbnt and of inquiry (where such notices are necessary) shall also be given, and may be given at any time after default entered, and for any day in term; but no notice of assessment or of inquiry shall be required, except when the defendant shall have appeared by attor- ney, or shall have given notice of his intention to appear and defend the action. XXXII. Rules for final judgment, unless cause to the contrary be shown, shall become absolute upon the expiration of four days in term, after the entry thereof, or, if there shall not be so many days remaining in term, then upon the expiration of the term. XXXIII. Where notice of retainer shall be received before the defendant's default in not pleading has been entered, a copy of the declaration and notice of the rule to plead (unless they shall have been served on the defendant personally) shall be served on the attorney retained, and the rule to plead shall be from the time of such service, and the service of all other pleadings, papers and notices, to be made aifter notice of retainer, shall be on the attorney retained. FOR THE NOBTHEEK DISTRICT OF N"EW YoBK. 839 XXXIV. If the plaintiff shall make default in declaring, then the defendant, or if either party shall make default in answering, then the opposite party, may have the default entered in the book of common rules ; but where the previous service of a notice of a rule, copy of a pleading, or of any other matter, shall be reqnisite,ithe default shall not be entered unless an affidavit of such service shall be filed ; neither shall it be entered until special bail, if required, is put in, and, if excepted to, has justified. XXXV. The defendant's default being duly entered, the plaintifi" shall not be bound afterwards to accept a plea, unless the defendant, as soon as he shall know that the default has been entered, shall file an affidavit of merits, and serve a copy, pay or tender the amount of the costs of default, plead issuably, and consent to go to trial at the next term. XXXVI. The plaintiff may, at any time before the default for not replying shall be entered, if the plea shall be a special plea, or a plea in abate- ment, or within twenty days after service of a copy of the plea, if it shall be the general issue, amend his declaration. After plea, either party may, bfefore default for not answering shall be entered, amend the pleading to be answered ; and, where there shall be a demurrer to a declaration or other pleading, such pleading may be amended at any time before the default for not joining in demurrer shall be entered. The respective parties may amend under this rule of course, and with- out costs, but shall not be entitled so to amend more than once. This rule shall be construed to allow amendments to be made by adding new counts or pleas, but not so as to allow of any amendment to a plea in abatement. XXXVII. In order to amend, a rule for that purpose shall be entered in the clerk's office, which, however, need not specify the amendments ; but a copy of the amended pleading shall be filed ; and the rule to plead or answer, if notice thereof shall have been given, shall be from the day of the service of a copy of the pleading as amended^and on file. XXXVIII. If the defendant shall plead the general issue, the cause shall be at issue, unless thd plaintiff shall, within twenty days thereafter, amend 840 Appendix. — Rules of the District Couet his declaration ; and if either party shall, in pleading in any degree after the plea, tender an issue to the country, and if the opposite party shall not demur to the pleading within twenty days after seryioe of a copy thereof, the cause shall in each of these cases be deemed at issue. XXXIX. Applications made by a party in pursuance of the fifteenth section of the judicial act, to require the opposite party to produce books and writings, must be made upon petition, verified by affidavit, setting forth plainly the facts and circumstances upon which the application is founded ; and in such petition, or in the affidavit thereunto sub- joined, it must be stated that the books or writings, the production whereof is sought, are not in the possession nor uiider the control of the petitioner, and that he is advised by his counsel, and verily believes, that the production of the books or writings mentioned in such petition is necessary to enable him safely to proceed in the prosecution or defense (as the ease may be) of his suit. XL. The petition may be presented to the judge of this court in vaca- tion, as well as to the court in term ; and the order to be made thereon shall be that the party against whom the application is made shall produce the books or writings mentioned in the petition, or show cause, on the day and at the place to be therein specified, why the prayer of such petition should not, be granted. XLI. Such order shall also specify the manner in which such books or writings shall be produced, and may require the party either to pro- duce and deposit the same with the clerk of this court, or to deliver to the petitioner or his attorney copies thereof, verified by oath. XLII. A copy of such petition, together with a copy of the order made thereon, shall be served upon the attorney of the party against whom the order is directed a reasonable time, to be prescribed in the order, before the day therein prescribed for showing cause. XLIII. Commissions to take the examination of witnesses, resident without the district, may issue by order of the court in term, or of the judge FOB THE NOSTHERN DISTRICT OF NeW YoRK. 841 thereof in vacation, in the manner, and subject to the regulations, so far as the same are applicable, mutatis mutandis, prescribed by the Eevised Statutes of this state. XLIV. Such commissions may also be issued by consent. But the agree- ment for that purpose shall be in writing, and filed in the clerk's office ; and the clerk shall, in such case, make an indorsement upon the commission, under his signature, in the following form : Allowed by consent of parties. XLV. When a cause is noticed for trial, a notice thereof, with a note of the issue and of the pleadings, and the attorneys' names, shall be delivered to the clerk on or before the Thursday preceding term; the clerk shall, as early as the following day; have the calendar of causes to be tried made up, arranging them according to the dates of their issues ; and no cause shall be put upon the calendar without the special order of the court, unless the note of issue shall be furnished, as is hereby required. XLVI. For the purpose of summoning and returning jurors to serve upon trials of issues in this court at the terms thereof appointed by law, or which may be appointed by the special order of the judge thereof, to be held in the village of Utica,- the clerk of this court, together with the marshal, or his deputy, resident in Utica, shall, at least fourteen days previous to every such term, repair to the office of the clerk of the county of Oneida, where the clerk of this court, in presence and with the assistance of the said clerk of the county of Oneida, and of the marshal or his said deputy, shall proceed to draw out of the box kept in the said office, containing the names of the jurors of the said county, thirty-six slips of paper ; and the clerk of this court shall immediately thereafter make out and certify, under his hand, a list of the jurors so drawn as aforesaid, with their respective additions and places of abode, and deliver the same to the said marshal, or his said deputy, who shall summon the persons named in such list to serve as jurors. And for the purpose of summoning and returning jurors to serve upon the trial of issues in this court, at the terms thereof appointed 106 842 Appendix.— EuLES of the District Court by law, or whicli may be appointed by tbe special order of the judge thereof, to be held in the city of Albany, the marshal, or his deputy resident in the said city, shall, at least fourteen days preyious to every such term, repair, alternately, from term to term, to the office of the clerk of the city and county of Albany, and to the office of the clerk of the county of Kensselaer, where, in the presence and with the assistance of such clerk, the marshal or his said deputy shall proceed to draw out of the box kept in the said office, containing the names of the jurors of such county, thirty-six slips of paper, and shall imme- diately thereafter make out a list of the jurors so drawn as aforesaid, with their respective additions and places of abode, and shall request such clerk to certify the same, under his hand, and, in case of his refusal so to do, shall certify the same under his own hand, and there- upon proceed to summon the persons named in such list to serve as jurors ; and, in like manner, shall jurors, to serve at the terms of the court appointed by law, or by special order, to be held at other places, be drawn, summoned and returned by the marshal or one of his depu- ties ; and, in these cases, the jurors shall be taken from the counties respectively in which the term of the court at which they are to serve is to be held. At "least six days' notice of the drawing of every jury Bhall be given by the clerk of this court, by affixing such notice upon the outer door of the house where the court for which such jury is to be drawn is to be held. The jurors to serve at any court shall be summoned at least six days previous to the sitting thereof, by giving personal notice to each person, or by leaving a written notice at his place of residence, with some person of proper age. The marshal or his deputy, by whom the jurors are summoned, shall return the list of jurors to the court at the opening thereof, specifying those who were summoned, and the manner in which each person was notified. It shall be the duty of the marshal, or of his deputy, having pos- session of the same, to furnish any person applying therefor, and pay- ing therefor a fee of twenty-five cents, a copy of the list of jurors drawn to attend any court.' ' Since the date of this rule, the clerk having, by successive orders, been required to remove his ofilce, first to the city of Auburn, and next to the city of Buflfalo, the provisions contained in the first paragraph of the rule have been modified accord- ingly. At present, therefore, it is at the clerk's office of Erie county that the presence of the clerk is required ■when jurors are to be drawn. FOK THE NORTHEEir DiSTKICT OF NeW YoEK. 843 XLVII. Whenever it shall be intended to move to set aside a nonsuit or verdict, except for irregularity, a case shall be prepared by the party intending to make the motion, and a copy thereof shall be served within four days after the trial on the opposite party, who may, within four days thereafter, prepare amendments thereto, and serve a copy on the party who prepared the case, who may then, within four days thereafter, serve the opposite party with notice to appear, within a convenient time, before the judge, to have the case and amendments settled. The judge shall thereupon correct and settle the case, as he shall deem to consist with the truth of the facts. The time for set- tling the case must be specified in the notice, and shall be not less than four, nor more than twenty days, after service of such notice. XLVIII. If the party omit to make a case within the time above limited, he ehall be deemed to have waived his right thereto ; and when a case is made and the parties shall omit, within the several times above lim- ited, the one party to propose amendments, and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amendments as proposed. If judgment has been ren- dered upon a verdict, the party intending to move for a new trial shall give four days' notice in writing to the opposite party of any motion to stay execution thereon, and also of the petition intended to be filed pursuant to the 18th section of the act of September Sith, 1789, unless a shorter time be allowed by the court or the -judges. XLIX. General verdicts may be taken subject to the opinion of the court on a case to be made by the party in whose favor the verdict is taken, containing all the evidence given at the trial, the case to be prepared and settled in the manner prescribed in the foregoing rules. L. In cases of exceptions taken, demurrer to evidence or special ver- dict, the party shall not be required to prepare at the trial his bill of. exceptions, demurrer, statement of evidence or special case, or to put in form the special verdict, but shall merely reduce such exceptions 844 Appestdix. — Rules of the Distbict Court to writing, or make a minute to the demurrer to the eyidence, and of the facts found specially by the jury, as the case may happen to be, and deliver it to the judge, or the judge will himself note the points, as he may direct; and the bill, demurrer or special verdict, shall afterwards be drawn up, amended and settled within such times and under the same regulations as are made with respect to cases. LI. A bill of exceptions may, before judgment, be used instead of a case on motion for a new trial, and notice of such motion, together with an order to stay proceedings, and a copy of such bill of. exceptions shall operate to stay all further proceedings until the decision of the court : Provided, that proceedings shall not be longer stayed than if a case had been made. LIT. All questions for argument and all motions shall be brought before the court on jnotion for that purpose, and, if the opposite party shall not appear to oppose, the party making the motion shall be entitled to the rule or judgment moved for, on proof of due service of the notice and papers required to be served by him. LIII. Enumerated motions are motions in arrest of judgment ; to bring on to be argued questions arising on special verdict, case reserved at the trial, case agreed between the parties without trial ; demurrer to evidence or pleadings ; and all motions to set aside nonsuit, verdict or inquisition, for other cause than irregularity only. LIV. Enumerated motions shall be noticed for the JSrst day in term, by a notice of at least eight days, and may be noticed and brought on by either party. When such notice is given by the party whose duty it is to furnish the case, demurrer-books, or other papers on which the motion is founded, such notice shall be accompanied with copies of such papers. LV. Enumerated motions set down for argument shall be placed on the calendar after the causes noticed for trial, and the same rules relative FOE THE NORTHERir DISTRICT OF NeW YORK. 845 to the furnishing of the clerk with notes of issue, &c., and to the making up of the calendar in cases of issues of fact, shall be applica- ble to them also. The date of the issue shall be, in case of motion in arrest of judgment, of special verdict, case reserved at the trial, motion to set aside verdict or nonsuit, bill of exceptions, or demurrer to evidence, the day on which the trial took place ; and in case of demurrer to pleadings, the day on which the joinder in demurrer was received. LVL' The party bringing on the argument shall, at the opening thereof, furnish the judge with a copy of the case, demurrer to evidence, special verdict, or, where the motion is for a new trial upon newly discovered evidence, with copies of the affidavits and other papers, if any, on which the motion is founded or opposed ; or if the motion be in arrest of judgment, with copies of the pleadings, or so much thereof as may be necessary. A note of the points or questions intended to be raised by each of the respective parties shall also, at the same time, be furnished to the judge and to the opposite party. LVIL Whenever an order to stay proceedings shall be granted to enable the party to make a special motion, service of such order, with copies of the affidavits upon which it is granted and notice of the motion, shall operate as a stay of proceedings until the further order of the court. But if the party shall neglect to bring on the motion to be heard during the term, according to his notice, the proceedings shall not be longer stayed, and he shall be liable to pay the costs of attend- ing to' resist the motion. LVIII. No private agreement or consent between the parties or their attor- neys in respect to the proceedings in a cause shall be binding, unless the same shall be reduced to the form of a rule by consent, and entered accordingly in the book of common rules, or unless the evidence thereof shall be in writing, subscribed by the party, or his attorney, against whom the same shall be alleged. LIX. Non-enumerated motions shall be noticed for the first' day of term^ by a notice of at least eight days, accompanied with copies of the 846 Appekdix.— EuiES of the Distbict Court affidavits and papers on which the same shall be made ; and notice shall not be for a later day in term, unless sufficient cause be shown in the affidavits served for not giving notice for the first day. LX. "When a party shall, before motion, offer to comply fully with the terms of the order which it is the practice of the court upon motion in like cases to make, and shall also pay the costs,*lf any, on the same being thereupon taxed and demanded, he shall be entitled to costs from the opposite party, if the motion shall be afterwards made. LXL In all cases where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order shall require such payment or performance, the party whose duty it shall be to comply therewith, shall have twenty days for that purpose, unless otheiwise directed in the order. And where, by the terms of any order, an act is directed to be done instanter, it shall be under- stood to require such act to be performed within twenty-four hours. LXII. Whenever the plaintiff shall have neglected to bring his cause to trial, according to the practice of the court, he may, if he have not before stipulated, tender a stipulation and offer to pay the costs to which the defendant is entitled, up to that time ; and if the defendant shall afterwards move for judgment as in case of nonsuit, he shall pay costs to the plaintiff, except where the plaintiff shall, after demand, have refused to pay the costs as taxed. LXIII. "When on motion for judgment, as in case for non-suit, the plaintiff shall be permitted to stipulate, he shall, within twenty days thereafter, tender a stipulation to the defendant, and shall pay the costs ordered to be paid thereon; and if the stipulation be not tendered, and the costs paid within that time, the defendant on filing an affidavit of such omission of tender and non-payment, may, after the expiration of twenty days, enter judgment as in case of non-suit as of the preceding term. FOB THE NORTHBEN DISTRICT OF NeW YoRK. 847 'lxiv. The provisions contained |in .Title 2d of Chapter 10th of Part 3d of the Revised Statutes of this state, relative to security for costs, shall be taken and held to be rules of this court. - LXV. To effect a surrender of bail, the bail or principal shall produce to the judge two certified copies of the bail piece, on one of which the judge will endorse a committitur, and on the other an order that the plaintiff show cause before him, on such day as he may designate, why the bail should not be exonerated, LXVI. On due proof of the service of such order on the plaintiff or his' attorney, and on proof by the certificate of the marshal or his deputy, to whose custody the defendant has been committed in virtue of such committitur, acknowledged before the judge by such ofiELcer, or proved by the oath of a subscribing witness thereto, if no sufficient cause to the contrary be shown, the judge will indorse an order on the second certified copy of the bail piece, that an ezonereiur be entered. If the plaintiff, or his attorney, upon whom the rule to show cause is served, resides at the time of service more than one hundred miles from the place at which cause is to be shown, such rule shall be served eight days before the time specified therein for showing cause ; in other cases four days shall be sufficient. LXVII. Such certified copy shall be filed, and the clerk shall indorse thereon an exoneretur, and shall also enter in the register of bail the discharge of the bail. LXVIII. Whenever a bail bond shall be taken on the arrest of a defendant, the bail therein may surrender their principal, or he may surrender himself in exoneration of the bail, in the same manner, and with the like effect, as in the case of special bail, except that true copies of the bail b.ond, proved to be such by the affidavit of the marshal or his deputy, or of a subscribing witness, shall be used instead of certified copies of the bail piece. 848 Appendix, — Ettles of the District Court LXIX. In case a defendant who has procured special hail in a suit in this court, shall be afterwards arrested in any other district, and com- mitted to a jail, the use whereof has been ceded to the United States for the custody of prisoners, he may be surrendered at the request of his bail, and in pursuance of the act of congress in such case made and provided, in the manner provided in the foregoing rules for ordinary cases. LXX. All moneys paid into court which any collector of customs is entitled by law to receive, shall, after deducting the costs, be paid over to him by the clerk, upon an order to be entered, of course, for that purpose. LXXI. . All moneys paid into court which are required by law to be deposited in a branch bank of the United States, shall forthwith be deposited by the clerk in the Oneida Bank, in the city of Utica, to the credit of the court.' LXXII. All checks for money so deposited, to be drawn out of the bank, shall be signed by the clerk, as clerk, and such check shall be written on the same paper which contains the order of the judge for that purpose. LXXIII. A book shall be kept by the clerk, in which he shall enter a full and particular account, under the title of each cause depending in the court, of all moneys paid into court in such cause, and of the payment thereof; and such book shall at all times be open to the inspection and examination of the judge of this court, the attorney of the United States, and the marshal of the district ; and any- particular account may also, upon request, be inspected by any person interested therein. LXXIV. All process issued by this court shall be of like form and effect with process issued in like cases by the supreme court of this state, unless otherwise directed by rule. I By. a subsequent order the HoUister Bank in the city of Buffalo was substituted for that mentioned in the above rule. BOB iHB Northern District of New York. LXXV. The marslial, his deputies, and all other persons concerned in the service of any process of this court, are respectively prohibited from becoming bail in any suit depending in this court, unless for the purpose of surrendering the defendant, in which case the surrender shall be made within fourteen days after special bail shall have been put in. , LXXVI. The bond required by law to be executed by the clerk of this court for the faithful performance of his duties as such, shall be recorded in his oflBce, and immediately thereafter deposited in the Branch Bank of the United States in the village of Utica, subject to be delivered, upon the order of the judge, to such person as shall be designated in such order ; and the marshal's bond shall be recorded and filed in the clerk's ofSce. LXXVII. In causes wherein the marshal of the district or his deputy is a party in interest, all process shall be directed and delivered to the sheriflF or under sheriff of the county of Oneida, for the time being, who is hereby appointed, ex officio, in pursuance of the act of congress in such case made and provided, to serve and execute such process. LXXVIII. The clerk of this court, the first judges of each of the counties in this district, the recorder of the city of Albany, and the clerks of each of the said counties, except of the county of Oneida, for the time being shall, ex officio, be commissioners to take afiidavits and acknowledgements of bail in civil causes depending in this court. The officers aforesaid are hereby appointed such commissioners, pursuant to the provisions of the acts of congress authorizing the appointment thereof, and all orders heretofore made for the appoint- ment of such commissioners shall be annulled after the first day of June next. LXXIX. The clerk may tax and certify bills of costs, and sign judgment records. , ' , ' 107 850 Appendix. — Euies of the Distbict Oouet LXXX. On an indictment found by the grand jury, the district attorney may forthwith sue out a capias under the seal of the court, for the arrest of the person indicted. LXXXI. * Where default is made by any party or witness, bound by recog- nizance in any criminal proceeding, the clerk shall immediately issue a scire facias thereon. LXXXII. Where a fine is imposed by the court on any person for any cause, and the party is not thereupon committed, and such fine is not dis- charged previously to the close of the term, the clerk shall issue to the marshal a warrant of , execution, commanding him to levy and make such fine of the goods and chattels, or, in default thereof, of the lands and tenements of the party. LXXXIII. In all cases not provided for by the rules of this court, or by law, the practice of the supreme court of this state, as prescribed by the Kevised Statutes of this state, and by the rules of the said court, shall regulate the practice of this court, so far as the same may be applicable. LXXXIV. Persons summoned to serve as jurors in this court will be dis- charged or excused from serving therein, whenever by the law of this state, it would be the duty of the courts of the state to discharge or excuse such persons from serving therein.' LXXXV. Any issue of fact, which, according to the act of congress of July 7, 1838, entitled "An act to increase and regulate the terms of the circuit and district courts for the northern district of the state of New York," would be triable at a term of the court required by law to be held in any one of the divisions of the said district into which ' This rule is sapeiseded by the act of congress, July 20, 1840, chap. 40, prescribing a rule of practice exactly of the same import for all the courts of the United States. FOR THE Northern District of New York. 851 it is diyided by the said act, may be tried at a term of the court required to be held in any other of the said divisions of the said district, provided the adverse parties or their attorneys, by a stipula- tion in writing, signed by them and filed in the clerk's office, shall enter into an agreement to such effect. DELIVERY OP PROPEETY UKDER SEIZURE, PEN- DENTE LITE. LXXXVI. 1. Applications for the delivery to the claimant of property, seized as forfeited under any law of the United States, may be made at any time after the service of the monition and warrant of arrest. J 2. At least four days' notice of the application shall be given to the district attorney and to the collector of the collection district in which the seizure was made, accompanied by the service on each of them of a copy of the petition for delivery ; unless the application be made in open court, when the district attorney and the collector are present; in which case no previous notice shall be necessary. 3. Unless a claim duly verified shall have already been interposed by the applicant, he shall show, at the time of his application, by his own oath or other evidence, that he is lawfully entitled to appear as claimant in the case. 4. The appraisers shall be sworn faithfully and fairly to appraise the property in question, and make a true report of the value thereof, according to the best of their understanding, without unnecessary delay. 5. Seasonable notice of the time and place appointed by the apprais- ers to make the appraisement shall be given to the district attorney, the collector and the claimant. 6. For the purpose of ascertaining the value of the property to be appraised, the appraisers may examine such persons on oath, and receive such aflSdavits, taken before one of the commissioners of this court (who are hereby authorized to take such affidavits), as they may think proper. 7. On the return of the appraisement to the court, or to 'the judge in vacation, accompanied by a certificate from the collector and naval officer (if there be one), that the duties on the property seized, if any be chargeable thereon, have been paid ; and on satisfactory evidence that the expenses of the appraisement have been paid by the claimant; 852 Appekdix. — Rules of the Disteict Oouet and, on the execution by the claimant of a bond, in confonnity with the statutes of the United States in such case made and provided, before the court; the judge, or the clerk, an order will be granted for the delivery of the property to the claimant. 8. The appraisers shall severally be entitled to be paid, for their services in making an appraisement, three dollars a day for each day necessarily spent in the performance of such services. 9. But whenever, in any case, the value of the property seized shall be agreed upon between the collector and district attorney in behalf of the United States and the claimant, and a certificate in writing, expressive of such agreement shall be signed by them, and filed in the clerk's office, such valuation (in conformity with the practice of the court heretofore) shall have the same validity and effect as if it had been made and reported by appraisers duly appointed for that purpose, SALE OF PERISHABLE PROPERTY. LXXXVII. 1. Application for the sale of perishable property seized as forfeited under any law of the United States, may be made e^iher by the dis- trict attorney in behalf of the United States, or by the claimant, at any time after the service of the monition and warrant of arrest. 2. At least four days' notice of the application, when made by the claimant, shall be given to the district attorney, and to the collector within whose collection district the seizure was made, accompanied by the service of a copy of the petition for the decree or order of sale ; and a like notice shall be given to the claimant, if there be one, or to his proctor or attorney, when the application is made by the district attorney. But when the application is made in open court, and the proctor or attorney of the opposite party is present, no previous notice shall be necessary. 3. When the application is . made by the claimant before a claim duly verified shall have been already interposed, he shall be required to show, at the time of his application, by his own oath, or other evi- dence, that he is lawfully entitled to appear as claimant in the case. 4. The place of sale, and the length of the notice of sale to be given by the marshal (which, unless otherwise specially directed, shall be given in the manner prescribed by the 90th section of the collection act of March 2, 1799, in cases of condemnation), will be determined FOR THE NORTHEEIT DISTRICT OF NeW YoRK. 853 by the court or tlie judge, iu each case, according to its nature and circumstances, and prescribed in the order of sale. 5. When the application for an order of sale is resisted by the oppo- site party, and the propriety of such order appears doubtful, surveyors will be appointed, preliminarily, to examine and report as to the con- dition of the property. / REMISSION OF FINES, PENALTIES, FORFEITUEES AND DISABILITIES. LXXXVIIL Preparatory to the presentation of a petition for the remission n mitigation of any fine, penalty, forfeiture or disability, a copy of such petition, together with a notice of the time and place of presenting the same, shall be served on the attorney of the United States, and another copy with the like notice on the person or persons claiming the fine, penalty or forfeiture, ten days before the time of presenting the petition. LXXXIX. The petition, in addition to the other circumstances of the case, shall state whether any and what Suit has been instituted, and what proceedings have been had for the recovery of the fine, penalty or forfeiture, up to the time of preferring the petition. XC. The clerk, under the direction of the judge, shall prepare a state- ment of the facts relative to the case which appear upon the inquiry, and forthwith transmit the same, together with the petition, to the secretary of the treasury. XCL The fees of the clerk shall be paid by the petitioner before the trans- mission of the petition and statement to the secretary of the treasury; and where there, are several petitioners or distinct claimants, not being partners, or several cases or importations embraced in one petition, the clerk shall be entitled to the same fees as if a distinct petition had been presented in each case. XCIL [This rule prescribed the fees of the marshal for the custody of vessels and other property under seizure in behalf of the United States, 854 Appendix.— Rules of the Disteict Coubx and it is therefore supposed to have teen superseded' by the act of February 26, 1853, ch. 80, which see, supra. The terms of the act do not embrace land seizures, these not being of admiralty jurisdiction ; but the courts will doubtless deem it most discreet, at least, to apply its provisions to such seizures as well as to seizures on navigable waters.] xcm. The clerk is authorized to enter satisfaction of record of any judg- ment rendered in this court in behalf of the United States, on filing an acknowledgment of satisfaction of the same, duly made, by the district attorney. XCIV. [This rule, prescribing the fees of practitioners and the clerk, has been superseded with respect to suits at law and in admiralty, and it is presumed also with respect to suits in equity, by the act of February 26, 1853, ch. 80, which see, supra.'] The following elaborately and carefully devised additional rules doubtless owe their origin to the highly important duties of the court imposed by the Ikteknal Revenue Acts, though the language of most of them comprises, also, cases arising under the antecedent laws regulating commerce with foreign nations. XCV.— December 9, 1863. When a fine or penalty is paid into court, and the whole thereof shall belong to the United States, or one-half thereof shall belong to the government, and the other half thereof to any other party, the clerk shall, as soon thereafter as practicable, unless a stated term of the court shall then be in session, and then as soon as practicable after the end of such term, pay to the proper depositary the amount thereof belonging to the United States ; and every person claiming any portion of such fine or penalty as the discoverer or informer, or prosecutor of the offender incurring such fine or penalty, shall, on or before the first day of the next stated term of the court, file with the clerk of the court his affidavit, and such other papers as he may think proper, showing his right to a moiety of such fine or penalty, which affidavit and papers shall be presented to the court by the clerk on the second day of such term. FOB THE NOETHEEK DiSTEICT OF NbW YoEK, 855 XCVL In cases under the act "to provide Internal Eevenue," &c., the per- son claiming shall file with such affidavit and papers the written con- sent of the collector of the Internal Eevenue for the district in which such fine or penalty was incurred ; that a moiety shall he paid to such claimant, or shall show by affidavit that a copy of such affidavit and papers had been served on such collector at least eight days before the commencement of such term. XOVIL— NoTEMBEE 26, 1867. In aU cases of seizure, where a bond shall have been executed and the property seized returned, in pursuance of the provisions of section forty-eight of the act of June thirtieth, eighteen hundred and sixty- four, entitled " An act to provide Internal Eevenue to support the government, to pay interest on the public debt, and for other pur- poses," and acts amendatory thereof before the filing of the informa- tion against the same, the information shall state the fact of the execution of such bond and the return of said property, and shall set forth in an appropriate form of pleading the substance, terms and conditions of such bond, and the names and residences of the parties executing the 'same. Upon the filing of such an information the clerk shall insert in the process issued thereon to the marshal a condensed and brief general statement of the allegations so made in respect to such bond, includ- ing the names and residences of the parties executing the same, as stated in such information ; and shall also insert a command to the marshal that he summon and give notice to the persons named as the parties executing such bond to appear at the return day of said pro- cess to answer the allegations of the information, and to show cause, if any they have, why such bond should not be enforced against them; which summons and notice shall be served by leaving a copy of such process with each of such parties, if he can be found within the dis- trict, and, if not, by leaving the same at the usual place of abode of Buch party, with some person of suitable age and discretion residing there, at least ten days previous to the day when such process shall be returnable; and such service of such summons and notice, or the publication thereof, as hereinafter provided, shall be sufficient notice of the pendency of the proceedings in court against the property so seized, and upon such bond. 856 Appekdix. — ^EuiiES of the Disteiox Oottet In case the marshal shall be unable for any reason to effect a per- sonal seryice of such process .and summons upon suoh parties, or either of them, or to serve the same at their usual place of abode, as above provided, the same shall be served by publishing a copy thereof three times, at least ten days previous to the day when such process shall be returnable, in each of the newspapers designated by the gene- ral rules of this court for the publication of notices in bankruptcy, required to be published within the county where such seizure was made. In case any such bond shall be taken and property returned, after any information shall be filed against such property, but before the said property shall be seized or arrested by the marshal under the process of the court, such allegation in respect to such bond and return may be made by "way of supplemental information, or informar tion in the nature of a supplemental infoimation, upon which, like statement and commands may be inserted in the proper process to be issued to the marshal in such suit, and like service thereof shall be made, and like proceedings shall be had thereon. The parties named in any information as having executed any such bond may appear and answer such infoimation, and may defend the suit in which such process shall have been issued, and may contest the alleged forfeiture and their liability under such bond. XCVIII.— Maech 2, 1869. [The sole purpose of this rule or order is to regulate 'the publication of the numerous notices, required by liaw, of the marshal. It is designed for his guidance alone, and is of great length.] It is hereby ordered that the following shall be, and the same hereby are, adopted and added to the general rules heretofore adopted and now in force as general rules of this court, and shall constitute additional general rules of practice therein, viz. : XOIX.— August 30, 1869. In order that the United States may be relieved frorn the payment of costs in cases in which an informer should be held liable for the same, and also in order to give to claimants and defendants their proper remedy against such informers, it is hereby provided that' in FOE THE KOETHBBSr DiSTEICT 0^ NeW YOEK. 857 all cases of seizure, and in all other cases prosecuted in the name of the United States, in which any prosecutor, informer or other person shall claim or intend to claim that any share of the penalty, forfeiture or recovery for which the suit in such case is prosecuted will belong to him, as an informer or prosecu- tor, the person so claiming such share shall, within fifteen days after the filing of the declaration or information therein, file with the clerk of this court, a statement, in writing, setting forth that he claims to be the informer or prosecutor who is entitled to a share of the forfeiture, penalty or recovery for which such suit is brought : and no person shall be allowed any share of any penalty, forfeiture or recovery in any such suit who shall not have filed the statement here- inbefore required, in the manner and within the time aforesaid. 0. In all such cases, and in all other cases civil or criminal, in which a moiety or other share of any penalty, forfeiture, fine or recovery is claimed by any informer or prosecutor, the claimant thereof shall serve a copy of his claim and also of his afl&davit and all other papers intended to be used in support thereof, on the Attorney of the United States at least eight days before the commencement of the term at which the same shall be presented to the court for allowance ; and the same shall be presented to the court on the morning of the first day of the term, in order that the same may be heard and determined. In case any such claimant was an ofl&cer or employee of the United States or was in any manner in the pay of the government or any officer thereof, at the time he received, obtained or gave the information upon which he bases his claims, or at a;ny time within six months before he received, obtained or gave such information, he shall in his affidavit state the particulars in respect to such official position or employment or pay, and, in all other cases, he shall state that he was not at the time, or within six months before the time, when he received, obtained or gave .such information, in any such official posi- tion, or employment or in the pay of the United States Government or of any officer thereof. 01. Proceedings in rem for a forfeiture, and in personam for an offense, fine, penalty or debt, may be joined in one information, when having relation to the same transaction or transactions, cause or causes of for- 108 858 Appendix. — ^Eules of the Disteict Ootjbt feiture ; and if not so joined the separate suits prosecuted therefor may, on motion of any party in' interest, be consolidated. If not so joined or consolidated the costs of only one of such suits will, under ordinary circumstances, he taxed against any informer, claimant or other party liahle to costs therein. CII. > No party shall he held to hail on an information in personam, or in a suit brought to recoyer any penalty or forfeiture, without the man- date or order of the judge, except when hail is required by statute ; and to obtain such mandate or order it must be shown, as cause therefor, that the defendant or respondent is a transient person, or that there is reason to believe that the defendant is about to depart out of the jurisdiction of the court. [The following additional rules made in 1860 and subse- quently in some respects modified, relate, it will be seen, exclusively to suits in admiralty, and do not, therefore, come within tlie scope of this work. But on account of their importance, and for the purpose of making the body of rules to which they belong complete, I append tkem.] I. In order to prevent the commencement of suits upon small demands, and the consequent accumulation of costs altogether disproportionate to the sum demanded, the clerk will issue no process for seaman's wages, when the sum sworn to be due to a sole libellant is less than ten dollars, or to several joint libellants is less than fifteen doUars, or for any other demand, when the amotint sworn to be due is less than tweniy dollars, except when specially ordered by the court or the judge thereof, or such judge shall be absent from his place of residence. When the amount recovered shall be less than the sums above named, no costs will, in ordinary cases, be decreed to the libellant unless it shall be shown upon the hearing that such libellants could not have had a complete and perfect remedy in a court of a justice of the peace. n. In suits for seamen's wages, the clerk shall insert in the warrant of arrest and monition, after the words " in a cause of subtraction of wages civil and maritime," the words "and also to answer unto all other POE THE NOBTHEBN DiSTEICT OP NeW YOBK. 859 persons having demands against the said vessel, for wages earned on board thereof, who may choose to make themselves parties to the libel of the said, (naming the libellant or libellants), by way of amendment or supplement, without further process or citation." And all mariners having claims against such vessels may, thereupon, so long as the ves- sel remains in custody, or any proceeds thereof remain in the registry, make themselves parties to such libel or suit, by a petition and proper allegations, by way of amendment or supplement to such original libel, and may have a decree for the payment of their demands as though they were named as parties to the original libel, and no new warrant of arrest or monition shall be issued in favor of any seaman, who, in respect to the demand on which he seeks such process, is entitled to make himself a party to proceedings already commenced ; and no costs shall be allowed to any such seaman who shall, without sufficient excuse, fail to apply to make, himself a party to such I suit oi^ the return day of such a process, or the first court day thereafter. And in order to allow such seamen to make such application, no final order of reference in any case for seamen's wages shall be made until the next court day after the return day of the process issued thereon. III. No warrant of arrest shall issue on behalf of a seaman for wages on board a British or Canadian vessel, where it shall appear that such seaman shipped and was discharged in Canada or elsewhere out of the United States ; or in favor of any subject of Great Britain against any British vessel, until the written consent thereto of the British consul, or an order of the judge therefor, shall have been filed. IV. All decrees for seamen's wages shall direct the amount decreed for such wages to be paid to the libellant in person ; and all checks or orders for the payment of such wages shall be drawn, payable to the order of the seamen to whom such wages shall have been decreed. V. No allowance for the expenses of keeping any ship, or vessel, or other property, beyond the sum of fifty cents per day, or fifteen dol- lars in the aggregate, shall be allowed to the marshal, except upon the affidavit of the shipkeeper or other custodian, stating his employ- ment and service, and the amount he has been actually paid therefor. 860 ApPEiirDix.— Rules op the District Coxjbt and that such payment Was received for sucli service only, and was received wholly for his own benefit, and not for the benefit of any oflScer of the court; and also, that, there is no understanding or intention that the whole, or any part thereof, shall be paid, or in any way disposed of or allowed to the marsjial or his deputy, or for his or their benefit ; and a copy of such affidavit shall be served with the copy of bill of fees or statement of allowance claimed. VI. In collision causes, unless the libel and answer shall respectively state or admit, either positively or upon information and belief, and as fully and accurately as practicable, — 1. The names of the vessels which came into collision, and of their respective m#sters ; 2. The time of the collision, and whether in the night or day time > 3. The name of the officer or person in charge of the deck of the vessel of the party; 4. The place of the collision ; 5. The general course or direction of the vessel of the party, and her direction at the time of the collision ; 6. The state of the weather, and, if in the night, the character of the night in respect to darkness, rain, &c. ; 7. The course and speed of the party's vessel, when the other was first seen ; 8. The lights, if any, carried by her, and their position ; 9. The bearing and apparent distance of the other vessel when«the vessel itself was first seen ; 10. The lights, if any, of the other vessel which were first seen, and their bearing, and their estimated apparent distance at that time ; 11. "Whether any lights of the other vessel other than those first seen came into view before the collision, and the particulars thereof ; 12. The names of the person or persons, if any, stationed and act- ing as lookout on the vessel of the party at the time the other vessel or her light was first seen ; 13. What measures were taken, and when, to avoid the collision, and, particularly, whether any and what change of helm or sails was made for that purpose ; 14. The parts of each vessel which first came into contact, and the manner in which they struck ; FOK THE NOBTHERK DISTRICT OF NeW YoRK. 861 15. The character and extent of the injury, if any, to the party's vessel. The opposite party may, on showing, to the satisfaction of the court, by affidavit or otherwise, that a more full and specific state- ment of the circumstances of the collision mentioned in such libel or answer, in respect to some one or more of the particulars above mentioned, is necessary to the proper preparation of an answer to sucli libel, or t^he proper preparation, on his part, for the final hearing of such cause, or will materially reduce the expenses of procuring testimony for such hearing, may, on motion '(due notice of such motion, with copies of affidavits and papers, other than the files of the court, on which such motion is to be made, having been first served on the opposite proctor at least four days before the day for which such motion is noticed), obtain a special order of the court for the amendment of such libel or answer, in regard to such particulars, within such time, and upon such conditions, and with such conse- quences, in a case of a non-compliance with such order as the court shall prescribe. And an order staying proceedings on any defective libel, or striking out any defective answer, may be made, on a further notice of motion for that purpose, in case any amendment ordered by the court is hot made and filed as required by such order, unless some satisfactory cause for the non-compliance with such order shall be shown. VII. Peaotical Forms, [See Index— Precedents.] I, IN SUITS AT COMMOlSr LAW. [A proper attention to the brief directions which have already been given under the appropriate heads, relative to the forms of process and pleadings, in suits at common law in the courts of the United States, will, it is hoped, in general, be found sufScient to guide the young practitioner in these matters. But it may nevertheless con- duce to his convenience, to illustrate, by a few examples, what is peculiar in these respects to those tribunals.] PEOCESS. CAPIAS IN THE CIKCUIT COUETS. The President of the United States of America, to the Marshal of the District of Greeting : You are hereby commanded that you take , if he shall be found in your district, and him safely keep, so that you may have his body before the Circuit Court of the United States of America, for the District of in the Circuit to be held at ' , in the said District before the judges of the said Court, on tte day of next, to answer unto , in a plea of trespass. [If the defendant is to be held to bail, here insert the ac etiam clause in the usual form.] And have you then there this writ. « • When the court is expressly required by law to be held in some particular building, the process ought to be made returnable there ; but when only the city or village is designated by law, the process is made returnable at such city or village. Appendix.— PEACTiCAii Pokms— Peocess. 863 "Witness, the Honorable , Chief Justice of the Supreme Court of the United States, at , in the s^id District, this day of in the year of our Lord, one thousand eight hundred and , Cleek. capias in the distbict c0uet8. The President of the United States of America, to the marshal of the District of Greeting : You are herehy commanded, that you take , if he shall he found in your District, and him safely keep, 60 that you may have his body before the District Court of the United States of America, for the District of to be held at in the said District, before the judge of the said Court, on the day of next, to answer, &c. [as in the preceding form.] Witness, - Esquire, Judge of the said Court, at in the said District, thi^, &c. [as in the preceding form.] WEIT OF INQUIRY IN THE CIECUIT COUETS. The President of the United States of America, to the Marshal of the District of Geeeting : Whereas, lately in the Circuit Court of the United States of America, for the District of before the judges thereof, at in the said District, by bill, without our writ impleaded being in custody, &c., for that [here insert the declaration] to the damage of the said of as he said, and thereupon he brought his suit, &c. And such proceedings were thereupon had, in the said Circuit Court, before the judges thereof, that the said ought to recover against the said his damages by reason of the premises ; but because it is not known to the said Court what damages the said hath sustained by means of the premises afore- said; therefore, you are hereby commanded, that, by the oaths of twelve good and lawful men of your District, you diligently inquire what damages the said hath sustained, as well by means of the premises aforesaid, as for his costs and charges, by him about his suit in this behalf expended, and the inquisition which 864 ■ ^ippENDix.— Practical Foems— Pbocess. you shall take thereon, do you return to the judges of the said Circuit Court, at in the said District, on under your seal and the seals of those by whose oaths you shall take such inquisition, and have you this writ there at the same time. Witness the Honorable Chief Justice, &c. ClEEK. INQUISITIOK THEEEOM". An inquisition indented, taken at on before me Marshal of the District of by yirtue of the writ to me directed, and to this inquisition annexed, by the oaths of good and lawful men of my District, who being charged and sworn, say upon their oaths that in the said writ named, hath sustained damages occasioned by reason of the premises therein contained, besides costs and charges, six cents. In witness whereof, as well I, the said Marshal, as the jurors aforesaid, our seals to this inquisition have severally put, the day and year aforesaid. The form of the writ of inquiry in the District Courts is the same except in the description of the Court, and the teste. See the form of the capias in the District Courts. The Inquisition is in all respects the same. SXJBPCEM"A TO TESTIFY IN A CIECUIT OE DISTEICT COUET. The President of the United States of America, to Geeetiitg : You are hereby commanded, that, laying aside all business and excuses, you [and each of you] be and appear in your proper persons, before the Circuit Court of the United States, for the Circuit and District of to be held before the judges of the said Court (or, before the District Court of the United States, for the District of to be held before the judge of the said Court), at in the said District, on the • day of by o'clock in the noon of the same day, to testify all arid singular those things which you [or either of you] know in a certain cause now depending in the said Circuit (or District) Court of the United States, between plaintiff, and defendent, of a plea of on the part of the and on that Appendix.— Peactical Forms— Peocess. 865 day to be tried by a jury of the country; and this you shall by no means omit under the penalty upon you [or each of you] of dollars.' Witness, &c. [See the preceding forms.] SUBPCEKA TICKET. To Mr. By yirtue of a writ of subpcena to you direoted, and herewith shown to you, you are personally to be and appear before the Circuit Court of the United States, for the Circuit and District of to be held before the judges of the said Court (or before the District Court of the United States for the District of to be held before the judges of the said Court), at in the said District, on the day of at o'clock in the noon to testify what you linow in a certain case now depending, and then and there to be tried, between plaintiff, and defendant, of a plea of on the part of the ' and this you are not to omit under the penalty of dollars. Dated the day of, &c. SUBPCENA DUCES TECUM. The duces tecum clause differs in no respect from that used in sub- pcenas from the state courts. SUBPCENA ON A WRIT OF INQUIRY. before the Marshal of the said district at in the said District on at o'clock in the noon, to testify, &c. {as iefore) in which said action a writ of inquiry of damages is then and there to be finally executed. And this, &c., {as Iefore.) ' In New York, witnesses who fail to attend court in obedience to a subpcena, in addition to their liability to be punished for a contempt of the court from which the process is issued, and to an action for damages at the suit of the party aggrieved, are subject also to a forfeiture of fifty dollars to such party ; and it is usual, in subpoenas from the state courts, to insert this sum as the penalty of disobedience. 109 Appendix. — Pbactical Foems — Peocess. AFFIDAVIT TO OBTAIK A HABEAS COEPTJS AD TESTIFICAKDUM. Circuit Court of the United States in the .Circuit and District of or District Court of the United States in and for the District of A. B. V. C. D. j District of ss. A. B. of the above named plaintiff, maketh oath and saith, that now a prisoner for debt (or as the case may be) in the custody of the sheriff of (or as the cage may b'e), is a material witness for this deponent at the trial of this cause, without whose testimony, as he is advised by his counsel and verily believes, ;this deponent cannot safely proceed to the trial thereof. HABEAS COEPTJS AD TESTIFICANDUM. The President of the United States of America, to the Sheriff of (or as the case may be), Greetistg : You are hereby commanded that you have the body of now in prison (or as the case may be), under your custody, as it is said, under safe and secure conduct, before, &c. {as in the suipmna) to testify the truth, according to his knowledge, in a certain case now depending, &c. (as in the suipmna) and immediately after the said shall have then and there have given his testimony, that you return him to the said prison (or as the case may be), under safe and secure conduct, and have there then this writ. Witness, &c. {as in the capias.) AFFIDAVIT FOE A DEDIMUS PEOTESTATEM, OE COMMISSIOS-. The requisite contents of this afl&davit depend in some measure upon the ruleS of the respective courts. " According to the laws of New Tork, it is sufiScient in the state courts to show that the cause is at issue, or, that an interlocutory judg- ment has been obtained; that the witness named is material in the prosecution or defense of the suit, and that he is beyond the reach of the process of the court. And the practice in this particular of the District Court for the Northern District of New York, is, as we have Appendix. — Pbactioal Fobms — Process. 867 seen, conformable to that of the Supreme Court of the State. But by the rules of the Circuit and District Courts for the Southern District of New York, the party applying for a commission is required to state what he expects to prove by the witness or witnesses whom he seeks to examine. DEDIMUS PROTESTATEM OR COMMISSIOK. « The President of the United States of America to Greeting : Know ye, that in confidence of your prudence and fidelity, you have been appointed, and by these presents you or any two or more of you, are inyested with full power and authority to examine . on his corporal oath, as a witness in a cause depending in the Circuit Court of the United States, for the circuit and district of (or, in the District Court of the United States in and for the district of ) wherein is plaintiff, and defendant, on the part of the upon the interrogatories annexed to this commission ; and, therefore, you are hereby commanded, that you, or any two or more of you, at certain days and places to be appointed by you for that purpose, do cause the said to come before you, and then and there examine him on oath upon the said interrogatories, and that you take such examination, and reduce the same into writing, and return the same annexed to this writ, closed up under your seals, or the seals of any two or more of you, into the said Circuit (or District) Court, before the judges (or judge) thereof, with all couTenient speed. Wit- ness, &c. {as in the capias.) The interrogatories and cross interrogatories (if any) to ie annexed to the commissiont and the depositions are to ie drawn up in the ustial form. i SITBPCBNA TO COMPEI, THE ATTENDANCE OF WITNESSES BEFORE COM- MISSIONERS. As has been stated in treating of this subject in the Second Part of the preceding work, provisioli is made by act of congress to compel the attendance of witnesses before commissioners acting within the United States by process of subpoena. For this purpose the following form may be used : The President of the United States of America, to Greeting : You are hereby commanded, that, laying aside all business and excuses, you, and each of you, be and appear in your 868 Appekdix. — Practical Foems— Pkocess. "proper persons, before commissioners duly appointed and authorized in virtue of a commission from the Circuit Court of the United States for the circuit and district of (or. District Court of the United States for the district of ) to examine you as a witness in a cause depending in the said Circuit (or District) Court, wherein is plaintiff, and is defendant, on the part of the upon intferrogatories annexed to the said commission, at on the day of at o'clock in the noon, to answer truly all such questions as shall then and there be asked of you upon such interrogatories; and this you, or any of you, shall by no means omit,^ under the penalty upon each of you of dollars. Witness, &c. («s in other cases.) FIEEI FACIAS (UPOK A JUDGMENT FOR THE PLAISTTIFF IK ASSUMPSIT). The President of the United States of America to the Marshal of the District of GREETiifrG : You are hereby commanded, that, of the goods and chattels of C. D., in your district, you cause to be made w'hich A. B,, lately in the Circuit Court of the United States for the Circuit and District of recovered against him for his damages, which he had sustained, as well on occasion of the non-performance of certain promises and undertakings then lately made by the said C. D. to the said A. B., as for his costs and charges by him about his suit in that behalf expended, whereof the said C. D. is convicted, as appears to us, of record; and, if sufficient goods and chattels of the said C. D. cannot be found in your district, then you are commanded that you cause the said damages to be made of the lands and tenements whereof the said C. D. was seia|d on the day of or at any time afterward, in whose hands soever the same may be ; and have that money before the judges of the said court at on to render to the said A. B. for his damages aforesaid. And have there then this writ. "Witness, &c. In other forms of action, the writ is, of course, to be varied accord- ingly. And' so, where the judgment is in favor of the defendant. CAPIAS AD SATISFACIENDUM. By the aid of the preceding forms there can be no difficulty in framing this writ. Appekdix.— Pbaoxical Foems— Peocess. 869 It ■will be found easy, also, to frame the Testatum Fi. Fa., and Ca. 8a., the writ of habere facias possessionem, &c. WEIT OF SCIRE FACIAS (ON A JUDGMENT IST ASSUMPSIT). The President, &e., to the Marshal, &c., Geeeting : Whereas, A. B., lately in the District Court in and for the District of before the judge thereof, by the judgment of the eaid court, recovered against C. D. for his damages which he had sustained, as well, &c., as for his costs and charges, by him, &c., whereof the said C. D. is convicted, as appears of record : nevertheless, execution of the said judgment yet remains, as we' have received information from the said A. B., and we,' willing that those things which are just and right should have a due execution, do therefore command you, that, by honest and lawful men of your district, you make known to the said 0. D., that he be before the judge of the said District Court, at , on the day of to show, if he has or know of any cause, why the said A. B. ought not to have execution against him, of the damages aforesaid, according to the force, form and effect of the said recovery, if he shall think it expedient for him so to do ; and have you there the names of those by whom you shall so make known to him, and this writ Witness, &c. ' Insteaxi of tlie usual fonn, we command you, I have elsewhere used the phrase, yo^t, are hereby commanded. In general the change is easily made without varying the form of the process in other respects. But, as will be seen, it is otherwise with a writ of ttirefadag. In this instance, therefore, 1 have retained the accustomed form : not choosing to assume the responsibility of introducing a more extensive modification. Perhaps the most simple and convenient mode of avoiding all embarrassment and incongruity, would, be to use the first person §ingiUa,r. This would be in strict accordance with established usage. In England, process runs in the name of the king, who, when he addresses himself officially to his subjects, always speaks in the plural number. Thus, for example, in proclamar tlons, civil commissions, letters patent, &c., the plural form is always used ; and so it comes, of course, to be used in process from his courts. In the state of New York, process issues in the name of the people ; and, therefore, the plural form is adopted. But the President of the United States never uses this form. In the examples above given, for instance, of proclamations, commissions to persons appointed to office, and letters patent, the first person singular is always used. Why, then, should it not also be employed in the process t 870 Appekdix.— Pbactical Forms— Deobabations. DECLARATIONS. The chief design of the following forms is to furnish suita- ble precedents for the averments which are necessary in the cases to which they relate, to enable the courts of the United States to exercise jurisdiction. [ Vide, supra, 365, et seq.] 1. By A2Sr ALIEN" AGAIK-ST A CITIZEN OF THE UNITED StATEK Circuit Court of the United States for the Circuit and District of or, District Court of the United States for the district of Of Term in the year District of ss. A. B., w-ho is a sttbject of the king (or emperor, or a citizen of the republic) of and an alien, complains of C. D., who is a citizen of the State of for that, &c. 2. By a CITIZEN OF THE UNITED STATES AGAINST AN ALIEN. A. B., who is a citizen of the State of complains of 0. D, who is a subject (or a citizen) of and an alien, for that, &c. 3. By a citizen of another state against a citizen of the STATE IN which THE SUIT IS BROUGHT. A. B., who is a citizen of the State of complains of C. D., who is a citizen of the State of for that, &c. 4. By a citizen of the state in which the suit is brought, AGAINST A citizen OF ANOTHER STATE. A. B., who is a "citizen of the State of complains of 0. D., who is a citizen of the State of for that, &c. 5. By or against a body corporate. The company, citizens of the State of •, incorpo- rated by that name, by the said State, and .having their principal place of business therein, complain of or, A. B., who is a citizen, &c. (or a subject, &c.); complains of the company, citizens, &c., [as above]. Appendix. — Practical Forms — Declarations. 871 6. By ikE FIRST INDORSBR OV A PROMISSORY NOTE AGAINST THE MAKER. A. B., wlio is a citizen of the State of (or a subject, &c., or a citizen, &c., and an alien), complains of 0. D., who is a citizen of the State of (or a subject, &c., or a citizen, &c., and an alien), iu custody, &c. For that, whereas the said 0. D., on ' at made his certain note in writing, commonly called a promissory note, his own proper hand being thereunto subscribed, bearing date the day and year last aforesaid, and then and there deliv- ered the said note to one E. F., who is a citizen of the State of (or a subject, &c., or a citizen, &c., and an alien), by which said note, he, the said 0. D., then and there promised to pay, six months after the date thereof, to the said E. F. or order, the sum of for value received ; and the said E. F., to whom or to whose order the payment of the said money in the said note specified, was, by the said note, to be made, after the making of the said note, and before the payment of the said money, in the said note specified, to wit, on aforesaid, at aforesaid, indorsed the said note, his own proper han&lieing to such indorsement subscribed, by which said indorsement, he, the said E. F., then and there ordered, and appointed the said sum of money in the said note specified, to be paid to the. said A. B., and then and there delivered the said note, so indorsed as afore- said, to the said A. B., of which said indorsement so made as aforesaid, the said 0. D., afterwards to wit, on aforesaid, had notice : by means whereof, and by force of the statute in such case made and provided, the said defendant then and there became liable to pay to the said plaintiff the said sum of money in the said note specified, when he, the said defendant, should be thereunto afterwards requested; and, being so liable, he, the said defendant, in consideration thereof, afterwards, to wit, on last aforesaid, at aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money in the said promissory note speci- fied, when he, the said defendant, should be thereunto afterwards requested. Nevertheless, the said defendant, not regarding his said several promises and undertakings, hath not yet paid the said sum of money, or any part thereof, to the said plaintiff (although often requested so to do); but the said defendant to pay him the same hath hitherto wholly neglected and refused, and still doth neglect and refuse, to the damage of the said plaintiff of dollars, and therefore he brings' his suit, &c. 872 Appeitdix.— Pbactioal Foems— Pboceedikgs ik Esbob. 7. By THE IITDOESEE AGAINST A EEMOTE INDOBSEB. The form in this case is precisely like that in the last preceding case, except that the intermediate indorsements are to be set out; which, however, may he done without any averment of the citizenship or alienage of the intermediate indorsers; since it is only necessary in this, as in the preceding case (in addition to showing that the parties to the suit possess the requisite character), to show that the immediate or last indorser, might also, before his indorsement to the plaintiflF, have maintained a suit on the note against the defendant. In like manner, in a suit by an alien wlio " sues for a tort only In violation of the laws of nations, or a treaty of the United States," the character of the plaintiff, and also the fact that the injury ooraplained of arose in the specified man- ner, must be distinctly stated ; and so in a suit in the District Court against a consul or vice-consul, the official character of the defendant must be averred. With respect to the mode in which it mlist be made to appear upoii the face of the declaration, that the amount in controversy is sufficient to give the court jurisdiction, the directions in the body of the work will, it is believed, be found sufficient. [^Vide supra, ^TIO, et seq.] II. OF PROCEEDINGS BY WRIT OP ERROR. BOND TO BE EXECUTED BT THE PtAISTTIFF TO THE DEFENDANT IN EEEOE. Supreme Court of the United States, or Circuit Court of the United States for the District of Know all men dy these presents, That we, A. B., &c., are held and firmly bound unto C. D. in the sum of , dollars, to be paid to the said 0. D., his executors or administrators. To which payment, well and truly to be made, we bind ourselves, and each of us, jointly and severally, and our and each of our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated, &c. Appendix.— PfiACTicAL Forms— Peocebdings in Ebeor. 873 "Whereas, the above named A. B. hath prosecuted a writ of error to the Supreme Court of the United States, or to the Circuit Court of the TJnited States for the District of to reverse the judgment rendreed in the above entitled suit, by the [here insert the name of the court to which the writ of error is directed.']. Now, therefore, the condition of this obligation is such, that if the above named A. B. shall prosecute his said writ of error to effect, and answer all damages and costs ' if he shall fail to make good his plea, then this obligation shall be void : otherwise the same shall be and remain in full force and virtue. Sealed and delivered in the presence of WRIT OE ERROR TO A CIRCUIT COURT. United States of America, ss. The President of the United States, to the judges of the Circuit Court of the United States for the District of Greeting : Because in the records and proceedings, and also in the rendition of the judgment of a plea which is in the said circuit Court, before you, between and a manifest error hath hap- pened, 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 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. ' If the writ of error is not a sitpersedeas (vide, supra 666), the words damages and may be omitted. [As to the amount of the penalty vide ibid, and appendix rule 33 of 8. C. Rules.] 110 874 Appendix.— Practical Forms— Peocebdistgs in Error. Witness tlie Honorable Chief Justice of the said Supreme Court, the day of in the year of our Lord one thousand eight hundred and clerk of the Supreme Court of the United States* or clerk of the Circuit Court for the District of citation thereon. United States of America, ss. To Greeting : You are hereby cited and admonished to be and appear at a Supreme Court of the United States to be holden at Washington on the Monday of next, 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 Chief Justice of the said Supreme Court of the United States, this day of in the year of our Lord one thousand eight hundred and Chief Justice (or one of the Justices) of the Supreme Court of the United States. 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 hap- ' 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 attomey-general of the State ; and *' in such case the phraseology is, wherein is plaintiff; and the said Btate of 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. Appendix.— Practical Forms— Peooeedikgs in Eeeob. 875 pened, 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 fuU and speedy justice done to the par- ties 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 according to the laws and customs of the United States, should be done. Witness the Honorable Chief Justice of the Supreme Court of the United States, 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. WEIT OF EEEOE TO A STATE COUET. 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), Gebbting : Because the record and proceedings, and 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 wherein 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 876 Appenbix. — Peaotical Fobms — Pbocbedings in Eeboe. Talidity] ; [or wherein was drawn in question the construction of a clause of the constitution (or of a treaty or statute) of (or of a com- mission held under) the TJunited 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 commis- sion),] a manifest error hath happened, to the great damage of the said as hy 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 com- mand you, if judgment he 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 proceed- ings 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 Chief Justice of the said Supreme Court, the day of , in the year of our Lord, one thousand eight hundred and Clerk of the Supreme Court of the United States, or Clerk of the Circuit Court of the United States for the District of The form of the citation and the proof of service is the same as in the preceding cases, mutatis mutandis. ASSIGSTMENT OF GENERAL EEBOES, IN THE SUPREME COURT, IN A JUDGMENT EOE THE PLAINTIEE IN THE COURT BELOW^ Supreme Court of the United States. CD.) V. > In Error. ■A-. B. ) 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 Appendix. — Practical Foems — Pkoceediitgs in Ekeob. 877 the said C. D., by his attorney, and says that in the record and proceedings aforesaid, there is manifest error hi this, to wit [that the declaration aforesaid, and the matters therein contained, are not sufficient in la\*^ for the said A. B. to have or maintain his afore- said 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 0. 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. Wlieii tlie judgment of the court below is in favor of tlie defendant, omit the allegation of insufficiency of tlie declara- tion, included in brackets. JOINDER IN EREOE. Supreme Court of the United States. A. B. ) . ads. > In Error. C. D. ) And afterwards, to wit, on the first Monday of December in December term, in the year of our Lord one thousand eight hundred and the said A. B., by his attorney, freely comes here into court, and says, that there is no error, either in the record £(.nd proceedings aforesaid, or in the giving of the judgment aforesaid : and he prays that the said Supreme Court of judi- cature, 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 thaj^ 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. 878 Appekdix. — DBPOsrrioirs de bene esse. III. PEOOEEDINGS TO TAKE TESTIMONY DE BENE ESSE. [ Vide, supra, p. 413, et seq.] AFFIDAVIT TO OBTAIN AN OEDEB FOB THE EXAMINATION OF A WITNESS IN BEHALF OF THE PLAINTIFF. [When the application is in behalf of the defendant, there will be no difl3.ctdty in making the required alterations."] Circuit Court of the United States for the Circuit and District of or, District Court of the TTnited States in and for the District of A. B. V. CD. j District of ss.' 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. P., at present of mariner (or as the fact may be), is material and necessary for this deponent in the prose- cution of such cause ; that the saidE. F., lives at more than one hundred miles from where the court, at which this depo- nent expects the said cause will he tried, is appointed hy law to he held {or, IS hound -on a voyage to sea; or is about to go out of the district in which the s,aid cause is pending, and to a greater distance than one hundred miles, as this deponent is informed and verily helieves ; or, is so aged, or, so infirm, as to render it prohahle that he will not he ahle to attend as a toitness at the trial of such cause). And this deponent further says that, as he is informed.and believes, C. D., the above named defendant^ resides at about miles distant from the place where the examination of the said witness is expected to be ' When the deposition is to betaken out of the district in which the suit is pend- ing, 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. Appekdix.— Depositions db bene esse.- 879 taken ; and that as he is also informed and believes, G. H., the attorney of the said C. D., resides at ahout miles from as aforesaid. OBDER THEREON". Circuit [or District] Court, &c., [as in the affidavit.'] A.B. V. 0. D. J Let E. P., the witness named in the above [or within] affidavit, he examined de bene esse before me accordingly, at on the day of at o'clock in the noon. [If either the defendant ol: his attorney resides within one hundred miles of the place of examination, then add] and let days' * notice be given to the said defendant [or, to G. H., the attorney of the said defendant, as either may be nearest, of such examination.] SrOTICE TO THE OPPOSITE PARTY OR HIS ATTORNEY. Circuit [or District] Court, &c., [as alove.] A-B. V. C. D. J Sir, you are hereby notified that E. F. will be exam- ined de iene esse, before me,' at on the day of at o'clock in the noon, as a witness for the above plaint- iff, according to the act of congress in such case made and provided; at which time and place you are entitled by law to be present, and to put interrogatories to the said witness. Dated, &c. J. S. To C. D., the above named defendant, or, (P. G., attorney for the above named defendant.) THE DEPOSITION. Be it remembered, that on the day of one thousand, &c. at -4. B. personally appeared before me, J. S., a ' The act requires a " notification /rom tlie magistrate." It is safer, therefore, that the notice should purport to emanate from, and be signed by him. 880 Appendix. — Depositions de bene esse. commissioner appointed under the laws of the United States to take aflBdavits and acknowledgments of bail (or as the case may be), and made oath (or if the application is made by another in behalf of the party, or on an affidavit made by such party, before a judge of the United States or commissioner elsewhere, then say, application was made to me, J. 8., dc, upon the affidavit of A. B., stating) that he, the said. A. B., was plaintiff in a suit then pending in the Circuit Court of: the United States, for the Circuit and District of (or District Court of the United States, in and for the District of ) wherein C. D. was defendant, that the testimony of B. F., of mariner, was material and neces- sary for him, the said plaintiff, in the prosecution of such suit, and that he, the said E. F., liyed at more than one hundred miles from where the court, at which the said plaintiff , expected the said cause would be tried, was appointed by law to be held (or otherwise as the case may be, according to the affidavit) ; that C. p., the above named defendant, resided at about miles from aforesaid ; and that G. H., his attorney, resided at about miles from aforesaid ; and the said A. B. requested me (or I was requested in behalf of the said A.. B.) that the said E. P. might be examined, according to the directions of the act of Congress in such case made and provided. Whereupon I ordered that the said E. F, should be examined de dene esse before me at [and that days' notice should be given to the said C. D. [or Gr. H.] of such examination, to the end, that he might, if he should see fit, be present at the examina- tion and put interrogatories; and I having satisfactory proof that such notice had been given '] and as well as the said A. B. as the said C. D. (or, if the defendant does not appear "in person, or by attorney, then say, the said A. B.) appearing before me at on this day of I have therefore proceeded with the said examination. And the said E. F., being carefully examined and cautioned, and duly sworn [or affirmed], to testify the truth, the whole truth, and nothing but the truth, saith, &c. [stating clearly every pertinent ' If both the opposite party and his attorney reside more than one hundred miles distant, and no notice is on that account given, the part included in brackets is of course to be omitted. Appen-dix.— Peactical PoRMS-r-MuinciPAL Seizure. 881 declaration of the witness and his replies to the questions put hy, or at tlie instance of either party.] And I do further certify, that the preceding deposition was reduced to writing by me [or by the said E. P. in my presence], and signed by the said E. P., and that I am not of counsel or attorney for either of the parties to the said suit, nor am I interested in the event thereof. J. S. ly. IN CASES OP MUmOIPAL SEIZUEE. IIBELS OF INFORMATION' AND INFORMATIONS. [ Vide, supra, p. 541, et seq.] Inasmiacli as these pleadings are always drawn by public officers, who may reasonably be presumed to be fuUy com- petent to the proper discharge of their duties, and especially as definite forms deemed to be sufficient and appropriate, are probably already in use in the respective districts, the inser- tion of the following precedents under this head may seem to be superfluous. These reasons are certainly sufficient to render it unneces- sary, if not improper, to attempt to give precedents for every case of forfeiture under the laws of the United States. I have accordingly restricted myself to a few cases by way of example. And I trust those I have inserted will at least be worth the space they occupy, for the purpose, if for no other, of assisting the inexperienced general practitioner in acquir- ing clearer and more satisfactory views of the nature of the proceeding to which these pleadings belong. ' Libels of this description, being preferred by a public prosecutor in virtue of his office, are frequently and properly called Libela of Information, in contradis- tinction to libels filed by private persons in ordinary admiralty suits. In some of the reported cases they are loosely called Informations. The correspondent plead- ing, by which suits in cases of seizure on land or on waters not navigable from the ocean by vessels of ten or more tons burden are instituted, on the common law or exchequer side of the court, is properly denominated an Information. For the reasons assigned {ante, p. 486), I abstain from adding precedents especially adapted to -cases of seizure under the Internal Ebventib Acts. In the forms given, the pleader- will find a ready and sufficient guide. Ill 883 Appendix.— Pbactical Foems— Municipal Seizure. commencement of the libel ob infoemation. District Conrt of the United States of America. District of To the judge of the District Court of the United States for the District of A. B., attorney of the United States for the said District of who prosecutes for the said United States, exhibits this his libel of information [or information] against the ship Juno, her boats, tackle, apparel and furniture [or the steamer Helen, her engine, boiler, tackle, apparel and furniture ; or six bales of broadcloths, or, &c.J, and against all persons lawfully intervening for their interest therein. And there- upon, the said A. B. doth allege, articulately propound and give the said judge to understand, that on the day of in the year' at in the District of aforesaid, on waters navigable from the sea by vessels of ten tons or more burden [or on waters not navigable, &c., or on land, as the case may be], C. D., Esquire, collector of customs for the collection district of did seize the aforesaid ship Juno, her boats, tackle, apparel and furniture [or, &c.], and now holds the same in his custody, within the district of aforesaid,' as forfeited to the said United States for the causes hereinafter stated, to wit : 1. For that, &c. [Here set out in distinct articles the matters relied on as grounds of forfeiture.] 2. For that, &c. ' The well known general rule in pleading is that the day is not material ; and the rule is supposed to he applicahle here. But as the true day of the seizure ought to be, and probably always is, communicated by the seizing officer to the district attorney, it is easy, and on some accounts advisable, to state the true day. ' The 32d rule, regulating admiralty proceedings, as we hare seen, requires " the District within which the property is brought " to be stated. This clause doubtless has reference to seizures made on the high seas. Perhaps the allegation in the above form, that the collector "now holds the same in custody, within the district of aforesaid," would be a suffi- cient compliance with this requirement, since the presence of the property is the important point, and implies, moreover,"that it was brought into that district ; but it is better, and very easy, to comply literally with the rule. Appendix.— Peactical Foems— Muistioipal Sbizueb, 883 alleged geottnds of foefeituee foustded on the act of 2 maech, 1821 (cH. 14 : 3 STAT, at lakge, 616), against goods foe hating BEEN IMPOETED FEOM AN ADJACENT FOEEIGN TBEEITOET INTO THE UNITED STATES WITHOUT THE DELIVEET OF A MANIFEST. First. For that heretofore, that is to say, on the day of [some day not later than that on which the seizure is stated to have been made], in the year of our Lord one thousand eight hundred and the merchandise • aforesaid being subject to duty on being imported into the said United States, was imported and brought from some foreign territory adjacent to the said United States, to the said attorney of the United States unknown, into some port or place within the said United States," to the said attorney of the United States unknown, and on board of some unregistered vessel, or some boat, canoe or raft, or in some carriage or sleigh, or by some person ' coming from the said adjacent territory to the said attorney of the United States unknown. Second. For that no manifest of the cargo of the said vessel, boat, canoe or raft, or of the merchandise so brought from such foreign territory was delivered by the master of the said vessel, the person having charge of the said boat, canoe or raft, the conductor or driver ' This is the term used in the act, and mnst, therefore, be coneidered sufficiently exact fijT every case ; though, as descriptive of some sorts of personal property subject to seizure (domestic animals, for example), its use is not in accordance with common usage. ' When the seizure is made ■within the territory of the United States, the place of seizure, as we have seen, determines the jurisdiction without reference to the place where the offense was committed. It is supposed, therefore, to be unneces- sary to allege that the importation was made into the judicial district where' the suit is instituted. * The several modes of importation here named, are those specified in the act. In cases in which it is really unknown in which of these descriptions of vehicle the goods were brought into the United States, it is proper to enumerate them all, so as to adapt the allegation in this respect to the proof, whatever it may be. And if it is further unknown, whether the goods may not have been brought into the United States by some " other person " (than " the master," " person having charge," or the " conductor or driver " of any such vehicle), it is proper, for the same reason, also to add the words " or by some person," as in the text. But when the mode of importation is known, it should be designated, as should also, when known, the other particulars referred to in this precedent as unknown. See, on this point, as to indictments, inter al., 3 Bast, P. C, 651 ; 1 Chit. Cr. Law, 213, 313. ' 884 Appendix.— Pbactical Foems— Muisticipal Seizuee. of the said carriage or sleigh, or other person so coming from the said adjacent territory into the said United States with the said merchan- dise, immediately on his or her arrival within the said United States, at the ofBce of the collector or deputy collector which was nearest the houndary line, between the said adjacent foreign territory and the said United States, or nearest to the road or waters by which such merchan- dise was brought as aforesaid from the. said adjacent foreign territory into the said United States ; but the said master of the said vessel, the person having cliarge of the said boat, canoe or raft, the conductor or driver of such carriage or sleigh, or other person bringing the said merchandise as aforesaid, neglected and refused to^deliver the manifest by law in such case required, at the oflSce of the aforesaid collector or deputy collector, and passed by and avoided such office, against the form of the statute in such case made and provide^. Whereby and by force of the statute in such case made and provided, the said merchandise has become and is forfeited to the uses in the said statute prescribed. Oe thus: First. For that heretofore, that is to say, on the day of ' in the year of our Lord one thousand eight hundred and , the said ten pieces of blue broadcloth being subject to duty, on being imported and brought into the said United States, were imported and brought from an adjacent foreign territory, to wit, from the province of Upper Canada, being the territory of her Britannic Majesty, into the said United States, to wit, into the port of Buffalo, in the said district of on board of an unregistered vessel, to wit, the sloop Sylph [or on board of a certain unregistered vessel, to wit, a certain sloop called the Sylph ; or on board of a certain sloop called the Sylph — ^the same being an unregistered vessel.] Second. For that the master or other person having charge of the said vessel so coming from the said foreign adjacent territory into the said United States, with the said ten pieces of broadcloth, did not, immediately on his arrival within the said United States, deliver a manifest of the cargo or loading of the said vessel, or of the said ten pieces of broadcloth,' at the office of the collector or deputy collector ' These words, " or of the said ten pieces of broadcloth,'' are probably nnneces- sary, as the words in the act, " or of the merchandise so brought," &c., were prob- ably intended to apply only to cases embraced by the preceding clause, " or other person." AppE^iTDix. — Peactioal Foems — Municipal Seizuee. 885 at tlie said port of Buffalo, or at the ofiQce of any collector or deputy collector nearest to the boundary line between the said foreign territory and the said United States, or nearest to the waters, by which the said ten pieces of broadcloth were brought as aforesaid ; and the master or other person having charge of the said vessel, on his arrival as afore- said, did neglect and refuse to deliver the manifest in such case by law required, and did pass by and avoid the ofiBce of the collector or deputy collector, at which such manifest ought to have been delivered contrary to the form of the statutes in such case made and provided. Whereby and by force of the statute in such case made and provided, the said ten pieces of broadcloth became and are forfeited to the uses in the said statutes specified. the like in a suit founded on the same act a&ainst the tessel oe othee vehicle in which goods weee illegally impoeted. First. For that heretofore, that is to say, on the day of in the year of our Lord one thousand eight hundred and , certain goods, wares and merchandise, to wit, ten pieces of woolen broadcloath, being subject to duty on being imported and brought into the United States, were imported and brought in the said steamboat [or in the said schooner, sloop, &c.] which said steamboat [or schooner, &c.] was an unregistered vessel [or in the said boat, canoe, raft, carriage or sleigh], from some foreign territory adjacent to the said United States, to the said attorney of the United States unknown [or from an adjacent foreign territory, to wit, the province of Lower Canada, being the territory of her Britannic Majesty] into some port or place within the said United States to the said attorney, of the United States unknown [or, into the United States, to wit, into the collection district of in the said distrjct of ]. Second. For that the master or other person having charge of the said vessel (or the person having charge of the said boat, canoe or raft, or, the conductor or driver of the said carriage or sleigh,) so coming ^om the said adjacent foreign territory into the said United States, with the said merchanise, did not^ immediately on his or her arrival vnthin the said United States, deliver a manifest of the cargo or load- ing of the said vessel [or the said boat, canoe, raft, carriage or sleigh], or of the said merchandise, at the office of the collector or deputy col- lector nearest to the boundary line between the said foreign territory 886 Appendix. — Pbactical Poems — Mustioipal Seizuee. and the said United States, or nearest to the waters [or road] by which the said merchandise was brought as aforesaid ; and the master or other person haying charge of the said vessel [or the person having charge of the said boat, canoe or raft, or the conductor or driver of the said carriage or sleigh], on his or her arrival as aforesaid, did neglect and refuse to deliver the manifest in such case by law required, and did pass by and avoid the office of the collector, or deputy collector, at which such manifest ought to have been delivered, contrary to the form of the statute in such case made and provided. A¥hereby, and by force of the statutes in such case made and provided, the said ves- sel [or the said boat, canoe or raft], with the said tackle, apparel and furniture of the same [or the said carriage or sleigh, and the said harness and horses (or cattle) drawing the same],' became, and are forfeited to the uses of the said statutes mentioned. COUNT ON THE SAME ACT AGAINST THE VESSEL OE OTHBE VEHICLE AND THE GOODS IMPOETED. ' First. For that heretofore, that is to say, on the day of in the year of our Lord one thousand eight hundred and , the said ten pieces of broadcloth, being subject to duty on being imported and brought into the said United States, were imported and brought on board of the said steamboat [or the said schooner, sloop, &c.], which said steamboat [or schooner, sloop, &c.j was an unregistered vessel [or , on board of the said boat, canoe, or raft, or in the said carriage or sleigh], into the said United States from some foreign territory adjacent to the said United States, to the said attorney of the United States unknown [or otherwise as the case may be ; see the preceding counts on this act], on board of the said vessel [or the said boat, canoe or raffc, or in the said carriage or sleigh], into some port or place within the said United States, to the said attorney of the United States unknown [or otherwise, as the case may be ; see the preceding counts on this act], and the master or .other person having charge of the said vesel [or the person having charge of the said boat canoe or raft, or the conductor or driver of the said carriage or sleigh], so coming from the said adjacent foreign territory into the said United States, with the said ten pieces of broadcloth, did not, &c. [as in the last preceding count.] 1 When merchandise is brought in on horseback, the horse, saddle and bridle are forfeited, and the count is to be framed accordingly. Appekdix. — Peactical Forms— Municipal Sbizttee. 887 Whereby, and by force of the statutes in such case made and provided, the said vessel [or the said boat, canoe or raft], with the said tackle, apparel and furniture of the same [or the said carriage or sleigh, and the said harness and horses (or cattle) drawing the same], and also the said ten pieces of broadcloth, became, and are, forfeited to the uses in the said statutes specified. COUNTS FOUNDED ON THE FOURTEENTH SECTION OF THE ACT OP THE 14th JULY, 1832, ENTITLED "AN ACT TO ALTER AND AMEND THE SEVERAL ACTS IMPOSING DUTIES ON IMPORTS." CH. 227: 4 STAT, at large, p. 583. 1. Against packages, for being made up with intent to evade or defraud the revenue. First. For that heretofore, that is to say, on the day of in the year of our Lord one thousand eight hundred and [some day subsequent to the date of the act, and not later than the day of seizure], the said goods, wares and merchandise, being subject to the payment of ad valorem duties on being imported into the United States, and being composed wholly or in part of wool [or wholly or in part of cotton], were imported in a ship or vessel called the Frances [or in some ship or vessel to the said attorney unknown], from a foreign port or place, ^to wit, the port of Liverpool, in the kingdom of Great Britain [or from some foreign port or place to the said attorney unknown], into the port of in the said collection district. Second. For that afterwards, to wit, on the day of an entry of the said goods, wares and merchandise, duly signed, having been made at the office of the collector o^ customs aforesaid j and a certain invoice [or certain invoices] of the said goods, wares and merchandise having been thereupon produced and left with the said collector, he, the said collector, afterwards, to wit, on the day and year last aforesaid, and at the port aforesaid, according to the statutes of the United States in such case made and provided, caused the packages of the said goods, wares and merchandise to be opened and examined ; and, upon such examination, the packages were then and there found to have been made up with intent to evade and defraud the revenue of the United States, contrary to the form of the statutes in such case made and provided. Whereby, and by force of the statutes 888 Appeitdix. — Peactical Forms — Municipal Seizube. in suchi case made and provided, the said goods, wares and merchan- dise Ijf came and are forfeited to the uses in the said statutes specified. Note. The offense is charged in the foregoing count in the words of the act; which is believed to be sufficient. The terms of the charge are, however, very indefinite, and as the nature of the device supposed to have been resorted to must of course be known to the attorney, it would be more consistent with the general rules of pleading, and it may be added, with fair dealing towg-rds the owner, to specify the device of which it is intended to give evidence at the trial. This may properly be done immediately after the words "with intent to evade and defraud the revenue of the United States," by adding continuously, the words, that is to say; and then proceeding to detail the facts relied on; and concluding as follows : whereby it was intended to evade the payment of tUe duties, or some portion thereof , justly chargeable hy law on the said goods, wares and merchandise, contrary to the form, &c. [as above.] The foregoing and two next succeeding precedents will be found, on comparison, to be more precise in some particulars than the printed forms in use in the district court for the southern district of N"ew York; and yet they are less so than they would have been made but for the desire to avoid the appearance of unnecessary technicality, and the confidence reposed in forms which may be supposed to have received the sanction, express or tacit, of the learned judge of that court. For example, it seems to me proper, if not necessary, to state the name of the person by whom the entry was made, and the character (whether as owner, consignee, agent or factor) in which he acted, so as to show that he had a right by law to make the entry. The rule, 'as we have seen, is, that, although it is in general sufficient to charge the offense in the words of the statute, yet that the count must always be so framed as to show with certainty that .the offense has been committed. But I presume that the allegation that " an entry, duly signed," was made, has been considered to import with' sufficient certainty a valid entry, binding upon all concerned. 3. Against articles contalneld in packages, for not being entered. First. For that certain packages of goods, wares and merchandise, being subject to ad valorem duty on being imported into the United States, and being composed wholly or in part of wool [or wholly or in part of cotton], were imported in a ship or vessel called the Frances Appendix.— Pbactical Forms— Municipal Seizuee. [or in some ship or vessel to the said attorney unknown], from a foreign port or J)lace, to wit, the port of Liverpool,, in the kingdom of Great Britain [or from some foreign port or place to the said attorney nnknown], into the port of in the said collection district. Second. For that afterwards, to wit, on the day of an entry of the said goods, wares and merchandise, duly signed, was made at the ofilce of the collector of customs afore- said, purporting to be a just and true entry of all the goods contained in the said packages ; but which said entry did npt contain the said article [or articles] of goods, wares and merchandise, so seized as aforesaid, nor was any entry thereof at any time made with the said collector. ..And on such entry being made. as aforesaid, a certain invoice [or certain invoices] of the said goods, wares and merchandise was [or were] produced and left with the said collector, who afterwards, to wit, on the day and year last aforesaid, at the port aforesaid, according to the statutes in such cases made and provided, caused the said packages to be examined ; and, upon such examination, the said packages were then and there found to contain the said article [or articles] of goods, wares and merchandise, so seized, as aforesaid, and 60 omitted as aforesaid in the said entry of the said packages, contrary to the form of the statutes in such case made and provided. Whereby, and by force of the statutes in such case made and provided, the said article [or articles] or goods, wares and merchandise, became and is [or are] forfeited to the uses in the said statutes specified. * COUNTS FOUNDED ON THE EIGHTH SECTION OF THE SAME ACT ; FOB FALSE SWEARING BY THE OWNER, IMPOETEB OR CONSIGNEE. First. For that heretofore, that is to ^ay, on the ' day of in the year of our Lord one thousand eight hundred and [some day subsequent to the date of the act and not later than the day of seizure], the said goods, wares and merchan- dise being subject to ad valorem duty on being imported into the Ilnited States, were imported ' in a ship or vessel called the Frances [or in some ship or vessel to the attorney unknown], from a foreign port or place, to wit, the port of Liverpool, in the kingdom of Great Britain [or from some port or place to the said attorney unknown], into the port of in the said collection district. 112 890 Appekdix.— Practical Fobms— Municipal Siiizuee^ Second. For that afterwards, to wit, on the day| of an entry of the said goods, wares and merchandise, &uly signed, was made at the office of the collector of customs aforesaid ; and on sack entry being made as aforesaid, a certain invoice [or invoices] of the said goods, or wares and merchandise was [or were] produced and left with the said collector. Third. For that the said collector, afterwards, to wit, on the day and year last aforesaid, at the port aforesaid, according to the statutes of the United States in such case made and provided, caused the said goods, wares and . merchandise to be inspected by appraisers of mer- chandise, dnly,appomted and commissioned for the purpose of having the actual value thereof, and the number of the yards, parcels or quantities, and such actual value of every of them, appraised, esti- mated and ascertained, as required by the said statutes ; and there- upon the said appraisers then and there, in pursuance of the power and authority conferred upon them by the said statutes, for that pur- pose did call before them one A. B., he, the said A. B., being the owner [or the importer, or the consignee] of the said goods, wares and merchandise, and did then and there, in pursuance of the power and authority aforesaid, examine him, the said A. B., upon oath, touching certain matters and things which the said appraisers then and there deemed material in ascertaining the true value of the said goods, wares and merchandise. Fourth. For that the said A. B., on such examination upon oath, did then and there depose and say, that [here set out the matter sup- posed to be false], wl^ereas in truth and in fact, as the said A. B. then and there well knew [here state in what the falsity is supposed to consist], contrary, &c. Whereby and by force of the statutes, &c. [as in the preceding forms.] COKCLUSIOK OF A LIBEL OR INFOEMATIOSr. Tlie following form is intended to be in conformity with the 22d rule recited, supra, p. 544 : Fifth [or as the case may be]. The said attorney of the United States, on behalf the said United States, saith that all and singular the premises are true. Wherefore, he prays that process in due form of law, may issue against the said goods, wares and merchandise, to enforce the forfeiture thereof, and requiring notice to be given to aU Appendix.^Peactical Forms— Municipal Seizure. 891 persons concerned in interest, to appear and show cause on the return day of the said process, why such forfeiture should not be decreed. A. B., District Attorney of U. S. for theJDistrict of District of WARRANT OF ARREST. [Vide supra, p. 553.] The President of the United States of America, to the Marshal of the District of L. S. Greeting : Whereas a libel [or a libel of information] hath been filed in the District Court of the United States for the District of on the day of in the year of our Lord one thousand eight hundred and by A. B., Esquire, attorney of the United States for the said district, on behalf of the United States of America, against [here specify the property seized], for reasons and causes in the said libel [or information^ mentioned, and praying the usual process and monition of the said court in that behalf to be made, and that all persons interested in the said [goods, wares and mer- chandise, ship Frances, her tackle, apparel and furniture, &c., &c., according to the fact], may be cited in general and special, to answer the premises, and all due proceedings being had that the said [goods, wares, &c., &c.], may, for the causes in the said libel [or information] mentioned, be condemned, and the proceeds thereof distributed according to law ; you are therefore hereby commanded to attach the said [goods, wares, &c., &o.], and to detain the same in your custody until the further or^er of the court respecting the same, and to give due notice to all persons claiming the same, or knowing or having any thing to say why the same should not be condemned as forfeited, and the proceeds thereof distributed, according to the prayer of the said libel [or information], that they be and appear before the said court, to be held in and for the District of on the day of t at o'clock, in the noon of that day, if the same shall be a day of jurisdiction, otherwise on the next day of jurisdiction thereafter, then and theife to interpose a claim for the same, and to make their allegations in that behalf. And what you shall have done in the premises, do you then and there make return thereof, together with this writ. 892 Appendix, — Practical Foems — Municipal Seizube. Witness, the Honorable Judge of the said court, at in the District of this day of in the year of our Lord one thousand eight hundred and 0. D., CUrh. For the mode of executing the warrant. [ Vide, supra, p. 563.] The Notice recites the substance of the libel or information, and calls upon all persons concerned to show cause, &c., in the language of the monition. The Return of the marshal (when he has executed the process), is as follows : " In obedience to the within warrant, I have arrested the [here describe the property, in general terms, as cloths, cassimeres, bales of cloth marli^ed ship Frances, her tackle, &c. ; horses, wagon, sleigh, &c., &c.J, within mentioned, and have cited all persons having or pretending to have any right, title or interest therein, as by the said warrant I am commanded to do. Dated the day of , 18 E. F., Marshal:' CLAIMS AND DEFENSES. CLAIM AND ANSWEE BY THE OWNER. District Court of the United States of America. District of The claim and answer of G. H., owner and claimant of the ship Juno [or as the case may be], to the libel of information [or informa- tion] ' of A. B. in behalf of the United States, against the said ship [or as the case may be]. And now comes G. H. of , " , owner of the ship Juno,, and for answer to the libel of A. B. in behalf of the United States against the said ship, doth allege and propound as follows, to wit : First. That he, the said G. H., is the true and lona fide owner of [or of one-fourth of] the said Juno, her boats, tackle, apparel and fur- niture, and that no other person is the owner thereof. Second. That, &c. * Here follows a distinct reference and response "to each separate article and allegation in the libel." ' For the sake of brevity and convenience, I propose henceforth t» use the appel- l&iiov^ibel alone. Appendix.— Peaotical Foems— Municipal Seizuee. 893 [In the forms of the libel or information hereinbefore given, the fact of the seizure, by the collector, of the property proceeded against, is alleged in the introductory part of the pleading, the articles designated by numbers, commencing with the matters relied on as grounds or causes of forfeiture. This form will be found most convenient, and it accords best with the rule. But the allegation of 'the seizure, no less than the articles, requires an answer. It is in virtue of a valid and subsisting seizure^ alone that the court is empowered to take cog- nizance of the case. There may have been no lawful seizure, and if there has been, it may have ceased to exist.' In such case, the claimant may avail himself pf the fact as a defense, by way of excep- tive allegation to the jurisdiction of the court, thus : it is not true that the said 0. D., in the said libel named, did seize the said ship Juno, her tackle, apparel and' furniture, as in the said libel is alleged and pleaded ; [or, when there has been a seizure followed by an abandon- ment, thus :] it is true that the said 0. D., in the said libel named, did seize the said ship, &c., as above, in the said libel, is alleged and pleaded ; but this respondent doth also further allege and propound, that the seizure so made by the said 0. D. of the said ship, &c., was by him afterwards, and before the filing of the said libel, voluntarily abandoned, and that the said 0. D. does not now hold the same in custody, or any part thereof, as forfeited to the United States, as in the said libel is untruly alleged and pleaded. And of this the said A. B. is ready to make proof, as this honorable court shall direct ; [or, if the proceeding is by information on the common law side of the court, then say : and this the said A. B. is ready to verify] wherefore he' prays judgment whether this court can or will take further cogni- . zance of the action aforesaid, and that the said libel may be dismissed. It is very rare, however, that a prosecution is instituted against property not under actual seizure. In general, therefore, the fact of such seizure, and of its continuance, is to be admitted as follows : That it is true [or that this respondent has heard, and he believes it to be true], that the said C. D., in the said libel named, did seize the said ship Juno, her boats, tackle, apparel and furniture, and now holds the same in custody, as in the said libel is alleged and pleaded.] Then proceed as follows : Third, That it is true that, &c. [here recite the charge contained in the first article of the libel], as in the first article of the said libel is , ■ ^ Supra, ]^. 487. 894 Appendix.— Peactical Poems— MtrificiPAL Seizuee. alleged and pleaded. Or, if the charge is untrue, then say : that it is not true [or this respondent has no knowledge, information or belief], that, &c., as in the first article of the said libel is untruly alleged and pleaded. And if, as generally happens, the case requires it, add: for the truth and fact was and is, and this respondent doth allege and propound? that, &c. [describing the transaction as it was.] When matters partly true and partly erroneous are comprised in one and the same article of the libel, and are so blended as not to admit of convenient separation, the response to such article may be framed thus • That as to the matters contained in the article of the said libel, the same are therein in great part falsely and untruly alleged and pleaded; for the truth and fact was and is, &c. [as above.] Proceed in like manner to answer all the articles of the libel, con- cluding as follows : Fourth, fifth, [or as the case may be.] That all and singular the premises are true. Wherefore the respondent prays that the said ship Juno, her boats, tackel, apparel and furniture [or, &c.] may be restored to him, [Signed] A. B., Respondent. K. S., Proctor \pr Attorney.] On the day of appeared personally, A. B., the above named respondent, and was sworn to the truth of the foregoiiig answer. Before me. . M. T., Clerh \or Commissioner.] THE LIKE WHEN THE CLAIM IS INTERPOSED BT AN AGENT OE CONSIGNEE. District Court of the United States of America. District of The claim and answer of E, F., agent of the owner [or of E. P., the consignee] of the ship Juno, &c., to the libel of A. B., in behalf of the United States, against the said ship, &c. And now comes B. P., of the agent of G. H., of the owner [or comes E. P., of consignee] of the ship Juno, &c., and for answer to the libel of A. B., in behalf of the United States, against the said ship doth allege and 'propound as follows, to wit : AppE]srDix.T,-PEACTicAL FoEMS— MUNICIPAL Sbizuee. 896 First. That the said G. H. is the true and iomfide owner of the said ship Jimo, &o., and that no other person is the owner thereof ; and that he, the said E. P. is duly authorized by the said G. H. to put in a claim in his behalf, to the said ship, in this suit. Second. That, &c. THE LIKE WHEN" THE CLAIM IS INTEEPOSED BY THE MASTEE OP A VESSEL. District Court of the United States of America. District of : The claim and answer of 0. D., master and claimant of the ship Juno, in behalf of G. H., the owner thereof, to the libel of A. B., in behalf of the United States, against the said ship. And now comes ,C. D., master of the said ship Juno, and for answer, &c. [as in the last form]. First. That G. H. of is the true and bona fide owner of the said ship Juno, and that no other person is the owner thereof; and that he, the said C. D., is now the master of the said ship, and as such master, has the possession and is the lawful bailee thereof for the said G. H. Second. That, &c. The foregoing claims and answers, it will be seen, are in tlie form prescribed by the Supreme Court in causes of civil and maritime jurisdiction. The brief, simple form permitted by the rules of the North- ern and Southern Districts of New York, is sufficiently indi- cated in the rule 23, of the former of these courts, which see. BOND KBQUIEBD, BY THE ACT OP 1799, OF THE CLAIMANT ON FILING HIS CLAIM. [ Vide supra, p. 579.] Know all men by these presents. That we,' A. B. and G. H., are held and firmly, bound to the United States of America in the sum of two hundred and fifty dollars [or such other sum as the rules and practice of the court may require], lawful money of the said United States, to' be paid to the said United States, for the payment of which well and ' Ab to the propriety of exactiug a surety in this bond, vide supra, p. 580, 896 Appendix. — Peactical Poems — ^MtririciPAi Seizuee. truly to be made, we bind ourselves and each of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of in the year of our Lord one thousand eight hundred and Whereas, an information [or libel of information], has been filed in the District Court of the. United States of America for the District of , on the day of in the year of our Lord one thousand eight hundred and by J. S., Esquire, attorney of the said United States for the district aforesaid, against [here specify the property proceeded against,] for reasons and causes in the said libel [or information] mentioned, and praying that the same may be condemned as forfeited to the uses in the said libel [or information] specified : And whereas, also, a claim has been filed in the said court, by the said A. B., as owner [or &c., according to the fact] of the said . Now, therefore, the condition of this obligailion is such, that in case the said A. B. shall not support his said claim, if the said A. B. and G-. H., or either of them, or the heirs, executors or administrators of the said A. B. and G. H., or either of them, shall pay all such costs, as by reason of his failure to support his said claim he ought to pay, then this obligation to be void, otherwise to remain in full force and virtue. A.B. G.H. Sealed, &c. EEPLICATIOir. [ Vide supra, p. 578.] STIPULATION POE COSTS AND EXPENSES ON PUTTING IN CLAIM, PUESUANT TO EULB 26 OF THE KULES OF ADMIEALTT PEACTICE. . On the day of in the year of our Lord before A. B., a commissioner duly appointed and empowered to take acknowledgments of bail, affidavits and depositions, &c., within the District of The United States of America against , in a cause of seizure, civil and maritime, moved and prosecuted in the District Court of the United States of America, for the aforesaid district. Which day, appeared personally, E. E., of , as claimant of the said , and produced for sureties G. H., of , Appendix. — Pbactical Forms— Municipal Seiztteb. 897 and I. J., of ; and the said E. P., G. H. and I. J., submitting themselves to the jurisdiction of the said court, bound themselyes, their heirs, executors and administrators, unto the said C. D., in the sum of [the sum directed by the court, by general rule or special order], to pay all costs and expenses which shall be awarded against the saad E. P. in the said cause, by the final decree of the said court, or upon appeal of the appellate court ; and, unless he shall do so, they do hereby severally consent that execution shall issue forth- with against them, their heirs, executors and administrators, goods and chattels, wheresoever the same may be found. E. P. G. H. I. J. Same day, taken and acknowledged before me, A. B., Commissioner. [As to the right of a third person to intervene for his interest in a prosecution for forfeiture, and the manner of exercising this right, &c., &c., see " Conklihg's Admiralty."] PETITION POR THE DELIVEBY OP PEOPBRTT OK BOND, PENDENTE LITE. [^Vide supra, 555; wi& Appendix, Rule 86, D. O. N. D. N. F.] To the Henorable , Judge, of the United States for the district of The petition of A. B. respectfully shows, that he is the owner of [here specify the property seized, as a certain vessel called the , or certain goods, wares or merchandise, to wit, ], lately seized by the collector of the district of , and now in the custody of the marshal, in virtue of process issued from the district court for the said district of And your petitioner now prays your honor to order the said to be delivered to him, upon his executing a bond to the United States, with sureties, according to the statutes in such case made and provided. C, D., Proctor [or attorney]. District of ss. On the day of , 18 , personally appeared before me the above named A. B., and made oath 113 Appendix. — Pbactical Foems — Municipal Sbizube. that lie is the true and lona fide owner of the above men- tioned,* and that no other person is the owner thereof. A. L., CUrh [or Commissioner, dc.} [If a claim has already been actually put in, this oath is unnecessary. The act of Congress, as we have seen, req^uires three appraisers. It is usual for each party to nominate persons for appointment; a selec- tion is then made from the names thus furnished. A notice to each of the appraisers is to be drawn up and signed by the clerk.] NOTICE TO THE APPEAISEES. District Court of the United States for the district of The United States ) Sir : Please to take notice, that you, together with 0. D. and E. F., have this day been appointed an appraiser to appraise the goods [or vessel, &C.J mentioned in the above entitled suit, and you arehereby requested to appear before the said court [or, if the application be made in vacation, before the judge of the said court], at on at o'clock in the noon, to take the oath required by law. Dated 18 • A. L., Clerh To [The oath is also drawn up by the clerk.] APPBAISEES' OATH. [Title of the cause, as in the notice.] We, the subscribers, having been duly appointed appraisers to appraise the goods [or vessel, &c.] mentioned in the above entitled suit, do severally solemnly swear, that we will faithfully and fairly appraise the same, and make a true report of the value thereof, accord- ing to the best of our understanding, without unnecessary delay. Sworn, &c. [either in open court, A. B. or, if in vacation, before the judge]. C. D. E.F, Appeh-dix. — Pbactical Foems— Municipal Seizure. 899 Notice of the time and place of appraisement is to be given by tlie appraisers to the district attorney, the collector and the claimant. In the Southern District of New York, the practice is to do this by posting up a notice of the place (near the U. S. Court Eooms) where the marshal usually posts his notices, in the following form: [Title of the suit as above.] Public notice is hereby given, that we, the subscribers, will proceed to appraise the goods [or, &c.J, mentioned in the above entitled suit, on the day at o'clock in the noon, at the store No. street, in the city of New York. Dated A. B. CD. E.F. But where the district attorney, collector and claimant do not reside on "the spot, this form of notice would certainly be insufSoient. In such case there should be a notice to each by personal service. Accompanying the report, there must be an affidavit of the service of this notice, made before the clerk or a commissioner. • FOEM OF THE APPEAISEES' REPOET. [Title of the cause as above.] We, the subscribers, appraisers duly appointed and sworn in the above entitled suit, repprt that w% have carefully examined the above named goods [or vessel called the ; or, &c.], and that the value thereof is dollars [or, if, as is generally the case, the property in question consists of several distinct parcels or articles, then say, the value thereof is as follows, to wit : and then specify the various parcels or articles, successively, and place opposite to each sum which is appraised]. Dated A.B. CD. E.P. Eule tenth of the rules of practice in admiralty, regulating the right of the ovrner to the delivery to him of the property pendente 900 Appendix.— Pbactical Forms— Mttnicipal Seizuee. lite, like the twenty-sixth rule, designates a stipulation as the form of security to be given; and, like the latter rule, its language is sufficiently general to embrace cases of municipal seizure prosecuted on the admiralty side of the court. "What is there said, therefore, of the security to be given on putting in a claim is equally applicable to the case of a delivery of the ^^voTpertj pendente lite; and a form both of a bond and of a stipulation is accordingly subjoined. BOND FOE VALUE OP PEOPBETY ON DBLIVEET, EEQUIEED BY THE ACT OP .1799. [ Vide supra, 555, et seq.'] Know all men by these presents, that we, A. B. and G. H., are held and firmly bound unto the United States of America, in the sum of dollars [double the amount specified in the condition], to be paid to the said United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs-, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of in the year of our Lord one thousand eight hundred and Whereas, an information [or libel of information], has been filed in the District Court of the United States of America, for the District of , on the day of - in the year of our Lord one thousand eight hundred and , by J. S., Esquire, attorney of the United States for the said District, on behalf of the said United States, against [h,ere specify the property proceeded against], for reasons and causes in the said' libel [or information] mentioned ; and whereas the said is [or are] now in the custody of the marshal of the said district, under the process issued in pursuance of the prayer of the said libel [or information] ; and whereas, the value of the said as appears by the appraisement [or agreement], now on file in the said court is dollars ; now, therefore, the condition of this obligation is such, that in case the said shall, by the sentence, decree or judgment of the said court, be condemned as forfeited, if the said A. B. and Q-. H., or either of them, or the heirs, executors or administra- tors of the said A. B. and G. H., or of either of them, shall thereupon Appendix, — Pkactical Fobms — Municipal Seizure. 901 pay into tlie said court, the sum of dollars,* then this obligation to be void, otherwise to remain in full force and virtue. A. B. G. H. Sealed and delivered in presence of STIPULATION FOE VALUE OP PROPERTY ON DELIVERY PURSUANT TO RULE TENTH.- On the day of in the year of our Lord , before A. B., a commissioner, duly appointed and empowered to take acknowledgments of bail, affidavits and depositions, &c., within the District of The United States of America against in a cause of seizure, civil and maritime, moved and prosecuted in the District Court of the United States of America, for the aforesaid District. Which day, appeared personally, E. P. of as owner of the said , and produced for sureties Gr. H. of , and I. J. of • ; and the said E. P., G. H. and I. J., submitting themselves to the jurisdiction of the said court, bound themselves, their heirs, executors and administrators, unto the said United States, if the said shall, by the final decree of the said court, or upon appeal of the appellate court, be condemned as forfeited, to pay the sum of , being the appraised value of the said .' (Signed) ' E. F. G.H. I. J. Same day, taken and acknowledged before me, A. B., Commissioner. PETITION FOR THE SALE OP PERISHABLE PROPERTY, PENDENTE LITE. [ Vide supra 567 ; and Appendix, Rule 87, D. G. N. D. N. Z.] To the Honorable jiidge of the United States for the District of • ■ There ought to be no engagement to pay costs. If a claim be interposed, it must be accompanied by security for costs. If none is interposed no costs can be adjudged. ' See note to last form. Appendix.— Practical Fobms— Municipal Sbizube. The petition of A. B. respectfully shows, that he is the owner of [here specify the property seized — as a certain vessel called the , or certain goods, wares and merchandise, to wit : ] lately seized by the collector of the district of , and now in the custody of the marshal in Tirtue of process issued from the District Court for the said District of . And your petitioner further shows, that the said is in a perishable condition, so as, in the opinion of your petitioner, to require an immediate sale thereof. Your peti- tioner therefore prays your. honor to order the. same to be sold, a,nd the proceeds thereof to be paid into the said court, to abide the'definite decree and order of the said court. A. B. C. D., Proctor [or Attorney.^ District of ss. On the day of , 18 personally appeared before me, the above named A. B., and made oath to the truth of the foregoing petition. A. L., Clerh [or Commissioner, So.] [When the application is made by the District Attorney, the above form will, of course, be modified accordingly. In England, and probably in some of the districts of the United States, a commis- sion is issued for the survey of the property in question in order to ascertain its condition. But this is not, ordinarily, the practice in the New York Districts. In these districts the usual writ of venditioni exponas, with slight alterations, is used for the sale of perishable property — ^which see,post. To adapt the form given, to this purpose, it is only necessary to change the word "final," before sentence and decree, to interlocutory, and to omit the words "condemned as forfeited," according to law ; and that you have the moneys arising from such Sale, together with this writ, at the next stated [or special] session of the District Court of the United States, to be held for the District of at on the day of and that you then pay the same to the clerk of this court. There- fore, you, the said marshal, are hereby commanded to cause the said to be sold at aforesaid, in the manner and form by law required. And that you have and pay the moneys arising from such sale, pursuant to the aforesaid order or decree ; and have you also then and there, this writ. "Witness, the Honorable judge of the said court, at in the District of this day of in the year of our Lord one thousand eight hun- dred and A. L., Glerh. MAESHAL's EETUESr. In obedience to the within precept, I have sold the within men- tioned , and such sale amounts to which sum I have paid to the clerk of this court, as I am within com- manded. 0. E., U. 8. Marshal 904 Appendix.— Practical Foems — Municipal Seizure. wakeant op eestixution". District of ss. The President of the United States][of America, to the Marshal of the District of [l. s.] Gebeting : Whereas, a libel [or information] has been filed in the District Court of the United States for the District of , on the day of , in the year of our Lord one thousand eight hundred and , by J. A. S., Esquire, attorney of the United States, for the said District, on behalf of the United States ot America, against [here specify the property in question], praying that the same may be condemned as forfeited to, the said United States. And, whereas, the said has been attached by the process of the said court, in pursuance of the prayer of the said libel [or information], and is [or are] now in your custody, in virtue of the said process; and, whereas, also, a claim has been interposed and filed in the said court, by A. B. as owner [or, &c., according to the fact] of the said , and such proceedings have been thereupon had, that by the final sentence and decree of the said court, in this cause made and pronounced, on the day of , eighteen hundred and , the said was [or were] adjudged to belong as claimed, and was [or were] ordered to be restored to the said claimant. Therefore, you, the said marshal, are hereby commanded to release the said from arrest, and deliver and restore the same unto the said A. B. And what you shall have done in the premises, do you make return thereof before the said court of , on the day of , at o'clock, in the noon of that day, if the same shall be a day of jurisdiction, otherwise, oh the next day of jurisdiction thereafter, together with this writ. Witness, the Honorable , judge of the said court, at , in the District of , this day of in the year, &c. A. L., Clerk. maeshal's eetuen. In obedience to the within precept, I have delivered the within mentioned to A. B., the within named claimant, C. E., Marshal. Appendix. — Peaotical Poems— MumoiPAL Seizuee. 905 PETITION" FOB THE EBMISSION OF A FOEFEITUBE. To the Honorable , judge of the District Court of the United States, for the District of The petition of A. B., of , respectfully shows, that he is the owner of [here specify the property seized, as a certain vessel called the , or certain goods, wares and mer- chandise, to wit, ] which have been seized by the collector of customs for the District of , by force of the laws of the United States for laying, levying a^d collecting duties on imports, [or concerning the registering and recording of ships or vessels, or, &c., according to the fact, and if, as will generally be the case, a libel or information has already been filed, then add], and against which -a libel [or information] has been filed in this court, by J. S., Esquire, attorney of the United States for the said District of praying, for the reasons and causes thereiji set 'forth, that the same may be condemned as forfeited to the United States. And your petitioner, being desirous of obtaining a remission of the forfeiture of the said , truly and particularly sets forth the circumstances of his case as follows, to wit: That [here state, with precision and clearness, the facts and circumstances of the case]. Wherefore your petitioner, averring that he had no intention in the premises of violating any law of the United States, prays that your honor will inquire in a summary manner into the circumstances of the case, and cause the facts, which shall appear on such inquiry, to be stated and annexed to this, his petition, and direct their transmission to the Secretary of the Treasury of the United States, to the end that he may remit the said forfeiture, if he shall see fit to do so, upon such terms and conditions as he may deem reasonable and just, •according to the statute in such case made and provided, A. B. J. S., Proctor [or Attorney]. District of ss. On the day of , 18 , personally appeared before ^e; the above named A. B., and made oath that the facts and circumstances set forth in the foregoing petition are true. C. D., ClerJi: [or Commissioner to tahe Affidavits in and for the District of ]. 114 Appendix. — Practical Pokms — Municipal Seizure. PORM OF TRANSMISSION BY THE CLERK TO THE SEOEETART OF THE TREASURY. TJnited States of America District of ss. In the matter of the petition of A. B., ) for the remission of a forfeiture. j The petitioner having on the day of presented to the judge of the said district, the petition hereunto annexed [or a petition, a copy whereof is hereunto annexed J, praying, for the reasons therein set forth, that the said judge would make a summary inquiry into the circumstances of his case, and cause a statement thereof to be transmitted to the Secretary of the Treasury of the TJnited States; and it appearing to the said judge that reason- able notice had been given to the person [or persons] claiming such forfeiture, and to the attorney of the United States for the said District, of the intention of the said petitioner to present his said petition on the said day, by the service on the said person [or persons] of a copy of the said petition, together with a notice of such inten- tion ; the said judge thereupon proceeded to inquire in a summary manner into the circumstances of the case. And the said judge did then and there order and direct, that the facts appearing on such inquiry should be stated and annexed to the said petition, and that the same should be transmitted to the Secretary of the Treasury of , the United States ; all which is accordingly done by these presents. Witness, Esquire, judge of the United States for the District of [l. s.] this day of in the year of our Lord one thousand eight hundred and A. L., Clerk. When the application is for the remission or mitigation of a penalty, there will, it is hoped, be little diflflculty in so modifying the preced- ing forms as to adapt them to such a case. Appendix. — Pbactical Forms. 907 V. CERTIFICATE OF DIVISION" IN» OPINION. [The prinraplea which regulate the structure of this important certificate have already been stated, and the necessity of their exact observance sufllciently inculcated, in an antecedent part of this volume. The questions which may be certified to the Supreme Court, and the circumstances under whijh they may arise, are so various •as necessarily to lead to considerable diversity in the form of the certificate. The intelligent pleader will, however, find little difficulty in adapting a form suitable for any given case, to any other case upon which he may be required to act. The following certificate is copied verbatim from Cranch's Reports, vol. 3, p. 273. The reason assigned by the reporter for inserting it at length is, that the case to which it pertained was the first that had occurred under the act of Congress (then recently passed) by which this remedy is given. The certificate, it will be seen, was drawn up under the direction of Chief Justice Mabsttat.l and the judge of the district of North Carolina ; and it was undoubt- edly framed with much care and deliberation.] " United States of America, ) North Carolina District. , j "At a Circuit Court of the United States, begun and held at Ealeigh, for the District of North Carolina, on Wednesdaj the twenty-ninth of December, in the year of our Lord one thousand eight hundred and twoi and in the twenty-seventh year of American Independence. " Present, the Honorable John Marshall, ) and /■ Esquires, Henry Potter, ) " Robert Ogden, administrator de lords non, with the wiU annexed of Samuel Cvmell, V. "Bicha/rd BlaeUedge, executor of Bdbert Salter, deceased. " State of the pleadings. " This is an action of debt .upon a bond given by the defendant's testator to the testator of the plaintiff, on the 2d day of March, 1775. " The defendant, among other pleas, pleads in bar an act of the General Assembly of the State of North Carolina, passed in the year 1715, entitled 'An act concerning proving wills and granting letters of administration; and to prevent frauds in the management of intes- tate estates;' the ninth section of which is in the following words: "And he it further enacted, That creditors of any persons deceased shall make their -claim within seven years after the death of said debtor, otherwise such creditor shall be forever barred. 908 Appendix.— Pbactical Foems. " To -which plea- the plaintiff replies, in substance, that the plaintiff's testator -was, at his death, a British subject, and the debt -within the true intent and operatio]% of the fourth article of the treaty of peace concluded between the King of Great Britain and the United States. " To this replication the defendant demurs, and the plaintiff joins in demurrer. . » " This case coming on to be argued at this term, it occurred as a question -whether the act of assembly recited in the plea of the defend- ant was, under all the circumstances stated, and the Tarious acts passed by the Legislature of North Carolina, a bar in this action. " On which question the opinions of the judges were opposed. " Whereujwn, on a motion of the plaintiff, by his counsel, that the point on which the disagreement hath happened may, during the term, be stated under the direction of the judges,, and certified undej: the seal of the court, to the Supreme Court to be finally decided,^ " It is ordered, that the foregoing state of the pleading and the fol- lowing statement of facts, which is made under the direction of judges, be certified according to the request of the plaintiff, by his counsel, and the law in that case made and provided ; to wit : " First. That Samuel Cornell, the plaintiff's testator, was, and till his death continued to be^ a subject of the King of Great Britain ; and the defendant's testator was, and till his death continued to be, a citizen of North Carolina. " Second. That the defendant's testator died in the year one thou- sand seven hundred and eighty; and the defendant, in_the same year, was qualified as executor. " Third. That the plaintiff sued out a writ in this suit, on the fifth day of October, in the year of our Lord one thousand seven hundred and ninety-eight. " United States of America, ? North Carolina District, j "IjuWilliam Henry Haywbod, clerk of the Circuit Court for the District of North Carolina, do hereby certify the foregoing to be a true copy from the minutes. Given under my hand and the seal of oflice, at Raleigh, on the fifth day of Januai^, in the year of our Lord one thousand eight hundred and two. «W. H. HAYWOOD, « Clerk." Appeitdix.— Praotical Poems. 909 VI. LETTERS ROGATORY. [The follo-wing form is copied from Peters's 0. C, Rep., p. 236, note. A commission in the usual form had been issued, but the authorities of Havana would not permit it to be executed. Letters rogatory were then substituted, and the testimony sought was obtained.] United States, ) n . District of Pennsylvania,') ^^^' The President of tJie- United States, to any judge- or tribunal having jurisdiction in civil causes at Havana, Grbetikg : Whereas, a certain suit is pending before us in which John D. Nel- son, Henry Abbott and Joseph P. Tatem are the claimants of the schooner Perseverance and cargo, and the United States of America are the defendants ; and it has been suggest'ed to us, that there are witnesses, residing within your jurisdiction, without whose testimony, justice cannot completely be done between the said parties: We therefore request you, that in furtherance of justice, you will, by the proper and usual process of your court, cause such witness or witnesses as shall be named or pointed out to you by the said parties, or either of them, to appear before you, or some competent person by you for that purpose to be appointed and authorized, at a precise time and place by you to be fixed, and there to answer, on their oaths and affir- mations, to the several interrogatories hereunto affixed ; and that you will cause their depositions to be committed to writing, and returned to us under cover, duly closed and sealed up together with these pres- ents. And we shall be ready and willing to do the same for you in a similax case, when required. Witness, &c. VIII. ObSEEVATIOKS on the case of NeVIKS v. JoHJTSOJr, DECIDED IN THE ClECUIT CotJET OF THE UnITED StATES FOE THE SOITTHEEH- DiSTEICT OF NeW YoEK. [ Vide supra, p. 134, n. 1.] Veiy soon after the organization of the constitntioiial government Congress passed "An act to promote the progress of the useful arts," by which a right of "action on the case," in the circmt court, was jgiyen to patentees for the infringement of their rights. This act was followed and super|ieded by a series of acts, all affording a like remedy, but none of them giviiig any remedy in equity, until the act of February 15, 1819, ch. 19. But the English court of chaficery had always possessed jurisdiction for the purpose of restraining the viola- tion of patented rights, iy injunction; and to this purpose, priinarily, it was limited. In the case of Livingston y. Van Ingen (Pkine's K^ 48, 53), in the Circuit Oouri; Of the TTnited States for the Southern District of New York, that court then being conaposed of Mr. Justic6 Livingston and Judge Van NesS, — a bill in equity, praying an injunction to restrain the infringement of a patent, was dismissed, on the ground that the remedy given by the patent act of 1800 was only by "an action on the case;" and that the court accordingly possessed ho jurisdiction in equity over the case. Then came the act of 1819, above cited, by which it was enacted — " 'IJhat the drcuit courts of the tjnited States shall liave original cognizance, as well in equity as at law, of all actions, suits; controversies, and cases, arising under any law of the United States, granting or confirming to authors or inventors the exclusive right to their respective writings, inventions and discoveries ; and upon any bill in equity, filed by any party aggrieved in such pases, shall have authority to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of any authors or inventors, secured to them by the laws of the United States, on such terms and conditions as the said courts may deem fit and reasonable.'' Then follows a proviso, giving an appeal to the supreme court. The act has but one section, and that in the words above recited, without the proviso. , Eeview of the Case op Nevins v. JoHifsoir. 911 It is very clear, therefore, that it was passed for the sole purpose of curing what was regarded as a defect in the existing law. And what was this defect ? Can it be doubted that it was the lack, in the circuit courts, of the power which had been found so beneficial in England, to interpose by injunction, in aid of the courts of law, for the more effectual protection of authors and inventors ? This is the power expressly designated by the act, which also regulates its exercise by enjoining conformity "to the course and principles of courts of equity." Eeferences of this kind have always been considered to point to the courts of that country whence the principles of our jurisprudence are mainly derived. Soon after the passage of this act another case arose in the circuit of the United States for the Southern District of New York. Mr. Justice Thompson having in the mean time succeeded Mr. Justice LiviKGSTOBT. In that case, alluding to the equity jurisdiction con- ferred by the act of 1919, the court said the equity jurisdiction exercised by the court over patents, is " merely in aid of the common law, in order to give more complete effect to the provisions of the statutes under which the patent is granted." Sullivan v. Redfield. Paine's Eep. 44] . On this footing stood this new branch of jurisdiction until the passage of the elaborate patent act of July 4, 1836, ch. 357, repealing aU former acts relating to patents, and re-enacting the above recited sec- tion of the act of 1819, with slight variations of langilage, and these, as far as possible, from expressing or inferring any intent to enlarge the equity jurisdiction conferred by that act. During all this long period of about twenty-eight years, so far as the published reports of the decisions of the courts of the United States show, no one imagined that the jurisdiction in question exceeded the limits assigned to it by the court in the case just cited. But in Mr. Law's useful digest of decisions in patent, copyright and' trades-mark cases, I find the case of Nevins v. Johnson, 3 Blachf., p. 83, stated to have been decided 1853, by the Circuit Court of the United States for the Southern Dis- trict of New York, in which it was held that "the patent act of 1836, § 17, confers jurisdiction in equity upon the circuit courts, irrespective of the right of the plaintiff to an injunction, or of his demand for one ! " The bill in equity alleged an infringement by the defendant for which.it claimed damages, but prayed for no injunction. The bill was demurred to and the demurrer was overruled. The volume of reports from which this digest of the case was taken is not, as I can learn, to be found in Western New York, and a fruitless inquiry was made for it last year in Albany. But the case ia mentioned by Mr. 912 Ebview of the Case of Neviks v. Johnsok. Curtis at t^e close of his learned work on patents : and in a note he gives what appears to be an extract from the reported opinion of the court, assigning the reason for its decision, as follows : " The arrangement of the provisions of see. ^7 may fairly be referred to, as imply- ing that the power to award injunctions was introduced by Congress, rather as auxiliary to the general equity jurisdiction imparted, than as the substantive and primary purpose of the enactment. It bears more the aspect of an incident to the jurisdiction before conferred than a condition of the jurisdiction itself." Of this reason I hare only to ohserve that, if there is any thing in the act which gives it either force or plausibility, the learned reader must discover it for himself. It is true, that, independently of the right to relief by injunction, in suits for the recovery of damages for the violation of patented rights^ as in other cases, the aid of a court of equity may, though very rarely, be required, and may, in strict accordance with the rules and principles belonging to equity jurisdiction, be afforded. And it may be conceded that it was, by the act of 1^19, and the 17th section of the act of 1836, intended to provide for such cases, should any such happen to arise. But is it to be imagined that it was designed to confound the remedies at law and in equity, and permit a patentee whose rights had been infringed to sue either at law, or, at his option, by bill in equity, to re- cover his damages ? If so, why was this monstrous innovation limited to patent cases ? Why not by general enactment extend it to cases of assault and battery, slander, assumpsit, trespass, ejectment, &c., &c. ? for all such cases are cognizable in the courts of the United States at the suit of a citizen of another state, or an alien. But the truth is, the imputation of any such purpose to congress is preposterous, not to say insulting. The broad distinction between the jurisdiction of the national courts at law and their jurisdiction in equity has, from the outset, been distinctly recognized, first in the constitution, and next in the judiciary act of 1789. The 16th section of this act, doubtless from abundant caution, con- sidering that in some of the states the distinction between these forms of remedy was but imperfectly understood, expressly enacts, " That suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate and complete remedy may be had at law." This provision, in truth, was merely declaratory, and so it was said by the supreme court in Boyce's Executors v. Orundy, 3 Peters, 210. And in the early case of RoUnson v. Gamp- iell, 3 Wheat., 312, it was said by that court that, to determine whether there is such remedy at law, reference must be had to the principles Eeview of the Case of Nevins v. Johhsok. 913 of the common law of England ; and this principle is emphatically reiterated in Thompson t. RailroacI, Companies, 6 "Wallace's S. C. Rep., 134. The English lawyer who should resort to the court of chancery, instead of a court of law, to recover damages for the infringement of a patentj would be pronounced an idiot or a madman. And what, under this interpretation of the act, becomes of the " right," expressly secured by the constitution, " of trial by jury, in all suits at common law, where the value in controversy,shall exceed twenty dollars ? " The established remedy for the violation of rights secured by letters patent had, for centuries in England, and always in this'country, been an action at common law. This remedy was expressly given by the first patent act passed by congress, and this provision has been from time to time reiterated, down to the act of 1836, inclusive; and was it the purpose of congress, or if it was, had congress the constitutional authority to put it in the power of a patentee, at his option, to deprive the infringer of his right of trial by jury? The ground on which a party, asking the assistance of a court of equity, is entitled to be heard, is that he "is remediless at law," and although, if the fact be BO, it can hardly fail to be evident from the statement of the case in his bill, yet an express allegation to this effect, called " the jurisdiction clause," has always been necessary in England and the omission of it fatal on demurrer to the bill. So it was in the courts of the United States until the promulgation by the supreme court, in 1842, of rules of practice for the courts of eqiiity of the .United States ; one of the objects of which was, as far as could safely be done, to simplify the forms of pleading and procedure, with a view*to the saving of unneces- sary expenses to suitors. One of these rules (the 21st) relates to 'the structure of bills in equity, and provides that — "The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the common confederacy clause of the bill, averring a con- federacy between the defendants to injure or defraud the plaintiff; also what is commonly caUed the charging part of the bill, setting forth the matters or excuses which the defendant is supposed to intend to set up by way of defense to the bill ; also what is commonly cajled the jurisdiction clause of the bill, that the acts com- plained of are contrary to equity, and that the plaintiff is without any remedy at law, and that the bill shaU not be demurrable therefor." But suppose it clearly appears on the face of the bill that the plaintiff Afls a plain remedy at law— that the injury complained of is one for which redress has always been sought in a court of law, would not the bill be demurrable on this ground ? 115 914 Keview of the Case of Nevins v. Johitsok. It seema incredible that any lawyer haying any acquaintance with the principles of equity jurisprudence, however superficial, should entertain eren a doubt upon this question ; and yet, as we have ■ 6een,lhe circuit court of the United States for the southern district of New York, and that, too, in direct opposition to a previous deci- sion of the same court, has given it a negative answer ! Whether this most extraordinary and inexcusable error has had the effect of a pre- cedent for its repetition in that district I am not apprised ;,but I have learned with surprise and regret that it has been repeated by the judge of the district court for the northern district of New York, sitting alone- in the circuit court for that district, misled, it may charitably be presumed, by a mistaken sense of what was due from him to hisabsent associate, by whom, as presiding judge of the cir- cuit court for the southern district, the decision in the case of Nevins V. Johnson seems to have been pronounced. It is true the district judge refers to what he regards as an implied prayer for discovery con- tained in the bill, and seems to found his decision upon it. But what was the purpose of this, prayer? Not the legitimate purpose of obtaining aid in the prosecution of a suit at law for the recovery of damages for the infringement of his patent, but to assist him in his unlawful resort for redress to a court of equity instead of a court of law. The bill prayed, not for damages, eo nomine, but that the defendants be compelled to account for and pay over to the com- plainant " the profits by them acquired," by the infringement of his patent, which he avers, however, to be his damages ; ■ and this is the prayer which was interpreted as a prayer for a discovery and a valid ground of jurisdiction. ' For an infringement of his patent, the patentee is entitled by law to recover damages or nothing. Jurisdic- tion cannot be acquired by the substitution of a new name. Profits, moreover, are rarely a fit subject of inquiry in determining the sum to be awarded to the patentee. There may be damages to an indefi- nite amount without profits ; and there may be profits without a just claim to more than nominal damages. POSTSCRIPT, " Before tlie introduction of tlie New York Code [valde deflendus /], no lawyer, and, for a considerable number of years afterward, only the young members of tlie profession, were ignorant of the forms of a plea of the general issue, and therefore, in deciding what precedents were likely to be most useful to the practitioner in the courts of the United S^tes (where the English common system of pleading pre- vailed, and happily, has thus far withstood the spirit of innoTation to which the legislatures of so many of the states have yielded), it never once occurred to me that there could be any need of giving forms pf this plea ; and this delusion continued through the successive editions, until it was at length dissipated by a recent incident. A lawyer called in behalf of one of his professional brethren, and informed me that the latter had been employed to defend a suit for the infringe- ment of a patent ; that the defendant denie^ the charge of infringe- ment in toto, alleging that it had been committed, if at all, by another person, and the question was as to the form of denial adapted to the case. I answered that a simple plea of the-general issue was the only proper one. Both these legal gentlemen were highly intelligent, well informed and successful lawyers. Pondering on this incident after the departure of the-ikquirer, and recpllecting the dubious look with which he received this answer, it occurred to me, for the first time, that a young, not to say middle-aged, New York lawyer might never have heard of a plea of the general issue, and was very likely not to have in his library (so largely filled with the countless volumes of reports of decisions upon questions to which the code had given rise) a single book containing a form for this plea, and I accordingly drew up a form and sent it to the gentleman in whose behalf the .inquiry had been made. But even then, while it would yet have been in season to insert the following forms in their proper place, I failed to discern the propriety, and, of cou]*se, to recognize the obligation, of supplying this deficiency. Nor was it until the foregoing pages were 916 POSTSCEIPT. printed that this blindness passed away. I now avail myself of the only mode left to me of repairing the error. It will naturally occur to the reader that it is the more important to do this, because, in a vast majority of cases, probably more than nineteen in twenty, the plea of the general issue, with or without a notice of special matter to be offered in evidence under it, is the only proper plea. GENERAL ISSUE IN ASSUMPSIT. Circuit Court of the United States in and for the Circuit and District of or District Court of the United States in and for the District of. C. D. 1 Of the term of [the last preceding, or the pending ads. > term] in the year one thousand eight hundred and A. B. ) And the said C. D., by G. H., his attorney, comes and defends the wrong and injury, when, &c., and says that he did not undertake or promise in the manner and form as the said A. B. hath above thereof complained against him, and of this he puts himself upon the country, &c. G. H., Attorney for Defendant. Is Debt. — NiU Caption and title of the cause as alove. And the said C. D., by G. H., his attorney, comes and defends the wrong and injury, when, &c., and says that he does not owe the said sum of dollars above demanded, or any part thereof, in manner and form as the said A. B. hath above thereof complained against hini, and of this he puts himself upon the country, &c. G. H., Attorney for Defendant. Ik Debt. — Non est factum. , Caption and title. And the said C. D,, by G. H., his attorney, comes and defends the wrong and injury, when, &c., and says that the said supposed writing POSTSCEIPT. 917 obligatory [or " indenture," or " articles of agreement," as tlie case may be] is not his deed, &c., and of tbis be puts bimself upon the country, &o. G. H., Attorney for Defendant. Ik Debt. — Nul tiel record. Caption and title. And tbe said C. D., by G. H., bis attorney, comes and defends tbe ■wrong and injury, wben, &c., and says tbat tbere is not any record of tbe said supposed recognizance [or, if tbe action be on a judgment, " of tbe paid supposed recovery "] in tbe said declaration mentioned, remaining in tbe court aforesaid, before tbe said justices [or judge] tbereof, in tbe manner and form as tbe said A. B. batb abfive, in bis said declaration, alleged, and tbis be, tbe said C. D., is ready to verify, wberefore be prays judgment if tbe- said A. B. ougbt to bave or maintain his aforesaid action tbereof against him tbe said 0. D., &c. G. H., Attorney for Defendant. Ik CoVEIfANT. Caption and title. And tbe said 0. D., by G. H., bis attorney, comes and defends tbe •wrong and injury, wben, &c., and says tbat tbe said indenture [or "articles of agreement," 'or "deed-poll"] js not bis deed; and of tbis be, tbe said 0. D., puts bimself upon tbe country, &c. G. H., Attorney for Defendant, [In all tbe foregoing cases tbe action arises ex contractu, i. e., it is founded in contract. Tbe following arise ex delicto, i. e., tbey are founded in intentional wrong. Tbey comprise actions "on tbe case," as tbey are denominated in tbe common law,* and trover; and actions of trespass vi et armis, tbe wrong consisting in a direct act of jinlaw- ful invasion of a rigbt of person or property.] GENERAL ISSUE IN CASE OE TROVElC' Title and caption. ■ And tbe said 0. D., by G. H., his attorney, comes and defends tbe wrong and injury, when, &c., and says tbat be is not guilty of tbe 918 POSTSCBIPT. said supposed grievances above laid to his charge, in manner and form as the said A. B. hath above thereof complained against him ; and of this the said 0. D. puts himself upon the country, &c. G. H., Attorney for Defendant. [This is the form of the general issue belonging to an action to recover damages for the infringement . of rights secured by letters patent. The 15th section of the patent act of 1836 enumerates several grounds of defence of which the defendant may avail himself by appending to his plea a notice that he will at the trial offer evidence) of them.] Is Teespass. Title and caption. And that the said C. D., by G. H., his attorney, comes and defends the force and injury, when, &c., and says that he is not guilty of the said supposed trespasses above laid to his charge, or any part^hereof, in manner and form as the said A. B. hath above thereof complained against him ; and of this he j)uts "himself upon the country. 0. p., Attorney for Defendant. [The proper place for these forms would of course have been next following the forms of declarations.] INDEX, A. FAGE, ABATEMENT, of actions, by death, how prevented, 466 of writs of error, 693 pleaa in, not allowable for defect of form, 388 ACTIONS, forms and limitations of, 839 local and transitory 145 where to be brought, 141 ADJOUENMENT*. See Supreme Court, Circuit Courts, District Courts. ADMIRALTY JURISDICTION, in prize and instance cases, vested exclusively in the district courts, 214 held to embrace cases arising on inland waters, 256 enumeration of subjects embraced by it, 354 note 4 relative to, . • , 256 See District Courts. ADVOCATES, See Attorneys, Counselors, &c. AFFIDAVITS, before whom taken, .t.f .•• 471 ALIENS, suits between citizens and, cognizable in circuit courts, 119, 152 but not between aliens, 136 suits by, for torts in violation of laws of nations, cognizable in district courts, • 215 alien executors and administrators entitled to sue, 163 See District Courts. 920 I N- D E X . « PASE. ALIENAGE, where ground of jurisdiction, muSt be averred, 367 AMENDMENTS, ^ statute of, : 466 in cases of seizure, 549 on writ of error, 680 AMBASSADORS. See Public MinisterSi AMOUNT IN CONTROVERSY, appellate jurisdiction of Supreme Court generally dependent on, .... 49, 56 but not in cases arising under 35th section of j udiciary act 30 nor in cases of prize, nor cases arising under revenue laws, or patent or copyright act, &c 54 adjudications, relative to, 186 . jurisdiction of circuits generally dependent on, 119 but not in suits by United States, or oflScer thereof, or in revenue cases, 120 nor for infringement of patent or copyright, 133 nor on debentures, 123 nor by or against bank of United States 123 whether it must be averred, 370 amount claimed held to be amount in controversy, 117 on writ of error and appeal, may be shown and controverted by affidavit,. 679 APPEAL, in what cases it lies to supreme court,. 26-39 to circuit court, ; 184 right of, limited to jmd sentences or decrees, what are final, . . .' 36 to be brought within five years, : 663 cross appeals, translations, record to be printed, 676 APPEARANCE, entry of, for defendant, 355 effect of, in curing irregularities and defects, , . . . 143, 683 ARGUMENT, on writ of error and appeal, rules regulating, 692-695 ARRAIGNMENT, See Criminal procedure. I ]sr D E X . 921 ARREST, ^''™- who are privileged from, 335 place of, 119^ 141 need not be averred, .\ 383 in wrong district cured by appearance without obj ection, 143 in criminal cases, 697-603 ARREST OP JUDGMENlii motions in, 45O ASSESSMENT OF DAMAGES, how made, 334 ASSIGNEES OP CHOSES IN ACTION, restrictions as to suits by 119 ASSIGNMENT OP ERRORS, 687 ATTACHMENT, when granted against witnesses 410 foreign not admissible, 150 ATTAINDER OP TREASON, not to work corruption of blood, 644 ATTORNEY-GENERAL, appointment, powers and duties of, 9 ATTORNEYS, COUNSELORS, &C., of supreme court, admission and.oath of, 7 of circuit courts, 110 of district courts, . , 303 liable to costs of vexatious suits, • 8 B. BAIL IN CIVIL ACTIONS, in what cases it may be exacted, 347 jurisdiction in suits against, (note) 363 BAIL TO THE ARREST, how and by whom taken, ' 350, 351 discharging defendant and mitigating bail, 1 352 proceedings against, in case defendant fails to appear, 353 extent of the liability of, 354 116 922 INDEX. PAGFE. BAIL TO THE ARREST— (Contintied). terms on which suits against will be stayed, 354 filing common bail and entering appearance for defendant, 355 BAIL, SPECIAL, when and how pnt in, 356 who disqualified in becoming, 357 excepting to and jvistifying, 358 surrender by, '. 361 in suits in which judgment may be rendered at return term, 358 jurisdiction of suits against, (note) 363 BAIL IN CRIMINAL CASES, 608 BANK OP THE UNITED STATES, constitntional, empowered to sue in circuit court, 171 BANKING ASSOCIATIONS, may sue and be sued in drcuit court and district court, 174 BILL OP EXCEPTIONS, how framed ; judicial deciraons relative to, 445 BILL OF PARTICULARS, 385 BOND. See Error, writ of ; Seizures. BOOKS AND WRITINGS, courts empowered to require production of; order, how enforced,. . . . 425-433 c. CAPIAS AD RESPONDENDUM, in general use in courts in the United States, 337 whence it issues, to whom directed, style, teste, return, ' 340-345 See Process ; Precedents. CAPIAS AD SATISFACIENDUM, may be issued in first instance, 459 See Process ; Practical Forms. CASE, AGREED, judgment on may be reviewed, 649 CASE, SPECIAL, verdict taken subject to, 444 IKDEX, 923 PAQE. CERTIOEARI FOR DIMINUTION, motion for, to be in writing and on oath, &c., 677 CEETIPICATE OF DISAGREEMENT BETWEEN JUDGES OP CIR- CUIT COURT, act authorizing, its nature and importance, 92 to what cases applicable, 94 proceedings thereon 703-707 See Precedents. CERTIFICATE OF REASONABLE CAUSE OF SEIZURE,.... 501 CHARGE TO THE JURY, hypothetical cases to be excluded from ; instructions, 441, 443 See Jurors. CHOSE IN ACTION, assignee of, incompetent to sue unless, &c., 119, 147, 149 CIRCUIT COURTS, organization of — circuits ICO judges of — interest — disability, 103 courts may be held by either, 105 when by another district judge, 105 judge of Supreme Court to attend once in two years, 105 constitutionality of, (note) 103 allotment of judges, 103 sessions of, in northern district of New York, '. (note) 111 clerk — crier — appointment and fees, 106 attorneys and counselors, 110 special sessions of, 112, 113 adjournment for absence of judges, 114, 115, 116 contagious disease 117 to a distant day < 118 as courts of equity always open 114 powers of judge in vacation, 114 their jurisdiction — ^in what sense they are inferior courts, 134 their original jurisdiction, 118-184 acts of Congress conferring 118-134 in suits wherein the United States, or their officers, are plaintiffs, 118, 151 between a citizen and an alien , 152 between citizens of different states, 153 to alter forms of process, 176 to issue certain writs, grant new trials, and make rules, 174 of suits removed from state courts, 128-134, 166-171 to grant injunctions 175 in revenue causes, &c., 120 924 iij-DBX. FAGE. CIRCUIT COURTS— (CoNTTNTJED). their original jurisdiction — in patent and copyright cases, 164 in suits on debentures 133 by and against the bank of the United States, 171 banking associations, 174 criminal, 178 empowered to issue process to enforce decisions of the consuls, &c., of foreign powers 125 appellate jurisdiction of, from district courts, acts conferring, 184 summary of jurisdiction of, 186 See State Laws ; Habeas Corpus ; Mandamus ; Injunction ; Ne Exeat ; Commission to examine witnesses. practice of, in suits at common law, 333-479 in criminal cases, 595-646 on writs of error, 647-702 CIRCUITS, districts of which they severally consist, 100 [See advertisement to this edition.] CITATION TO DEFENDANT IN ERROR, 673 See Error, writ of. CITIZENSHIP OF A STATE, what constitutes, 153 jurisdiction not defeated by chj,nge of, pendente lite, 164 must be averred 367 pertains to corporations aggregate, 158 CLAIM. See Seizure. COLLECTOR OF CUSTOMS. See Customs, oflBcers of. COMMISSION TO EXAMINE WITNESSES, courts empowered to issue, 14 how sued out and executed, 42I COMMISSIONERS TO TAKE AFFIDAVITS, &0., appointment; powers and duties of, 107 COMMITMENT, of prisoners, 608 INDEX. 935 COMMON LAW, '''^™" confers no criminal jurisdiction on courts of the United States, but regu- lates its exercise, 181 CONCURRENT JURISDICTION, of national and state courts 295-305 CONSOLIDATION OF SUITS, courts empowered to direct, 385 CONSULS, jurisdiction in cases affecting, 363 awards, &c., of, how enforced, 135 Tuaj interpose claims in behalf of their countrymen, 360 certificates of, when evidence, 399 CONTEMPT, power of courts to punish for, defined, 16 CONVICTS, where imprisoned, how treated, juvenile,. 645 COPYRIGHT, suits for violation of, cognizable in circuit courts, .■ 133 subject to review in all cases, 28 note relative to, 134 extended to manuscripts, 134 what is a case arising under, 164 CORPORATIONS AGGREaATE, to be regarded as citizens of the state creating, 168 debtors of, may be summoned as garnishees at the suit of United States, 131 COSTS, when plaintifF, though successful, liable to 147 successful party, in general, entitled to recover, 454 in penal actions and cases of seizure, 455, 456 in separate actions admitting of joinder, 456 in error, 695 security for, 468 clerks of national courts in New Tork authorized to tax, 458 double, when seizor entitled to, 469 regulated by act of 1853, 456, 755 COURT HOUSES, no general provision of law providing for erection of, 200 926 I If D E X . FASE, COURT OF CLAIMS, '^ organization, jurisdiction and practice of, 267-289 COURTS. See Supreme Court ; Circuit Courts ; District Courts ; Court of Claims. CUSTOMS, OFFICERS OF, who are to be deemed, (note) 459 See Seizures. CRIMES AGAINST THE UNITED STATES, whatare, 178-184 CRIMINAL PROCEDURE, 595-646 limitation of criminal prosecutions, 596 arrest, grounds and manner of, 697 warrant of, by whom issued, : 598 to whom directed, 600 examination, bail, commitment and removal of prisoner, 604 habeas corpus in, state judges not empowered to award, 88 bail, 608 better security, 610 surrender, 610 commitment, 611 removal of prisoner, 611 indictment, where preferred, 613 grand jury, qualifications of jurors, &c., 616 causes of challenge to, 617 foreman of, empowered to administer oaths, 631 offenses, where cognizable, ■ 605, 613 the accused entitled to subpoenas for witnesses, 622 subpoenas to run into any other district, 680 process on indictment, 624 nolle prosequi, 626 prisoner entitled to speedy trial, 629 to copy of indictment, 629 arraignment of, 627 entitled to counsel, 630 challenge of petit jurors, causes of, 632 separate trial, , 634 bill of exceptions, does not lie, 635 province and power of the jury, 636 new trial, power of court to grant, 641 attainder and benefit of clergy also forbidden 644 punishment of death, how inflicted, 644 IKDBX. 927 CRIMINAL PROCEDURE— (CoNTimiED). body of convict may be delivered to surgeon for dissection, 644 panishment for rescuing the body, , 645 whipping and piUory abolished, 645 places of imprisonment, 645 treatment of convicts, , , 646 J>. DAMAGES, assessment oE, ; 384 on affirmance in error, 695 DEATH OP PARTIES, suits not to abate by reason of, 466 in error, 693 DEBENTURES, negotiable by indorsement, iudorser liable 122 DEBTORS, PUBLIC, liable to warrant of distress, » 220 evidence against, 399 See Officers of United States. ■ * DEBTORS, IMPRISONED, acts of congress providing for the liberation of, 718-735 DEBTORS, JOINT, non-joinder of, when admissible, 158 DECLARATION, form of, 365 ground of jurisdiction to be stated in, .' 366 consequences of omission, 376 place of arrest need not be averred in, 383 actions may be commenced by, in northern district of New York,. 337 filing, serving, amending, &c., 383 DECREES. See Judgments and Decrees. DEDIMUS POTESTATEM. See Commission to examine wituesseSi 928 IITDEX. PAGE. DEFAULT, judgment by, 383 DEMUERER, 387 demurrer book, 390 to evidence, r 445 DEPOSITIONS, de bene esse, in what oases and how taken, 413 in rei perpetuam memoriam, , 424 See Precedents, Evidence. DIMINUTION, allegation of, 677 DISABILITIES, remission of, 726 DISTRICT ATTORNEYS, appointment, oath, duties, compensation, fees, &c., 211-214 DIVISION OP OPINION. See Certificate of — DISTRICT COURTS, their organization, 188-214 districts, 183 judges of, how appointed ; their oath and tenure of office, 189 clerks, how appointed, to give bond, their oath, their powers, duties, criers, fees, 190-194 special sessions, 194 adjournment in case of non-attendance, &c., of judge, 195 contagious sickness, 117 special provisions concerning, 199 disability or interest of judge, how provided for, 195 may adjourn to a distant day, 117 attorneys, counselors, proctors and advocates of, how admitted, &c., 203 judges of, empowered to hold security of the peace, 17 to grant writs of ne exeat, habeas corpus and injunction, 218 their jurisdiction, 215 legislative acts conferring, 215-224 criminal, ; 215, 235 in admiralty, as instance a«id prize courts, 215, 225 at common law, , 260 prize jurisdiction, extent of, 226 I K D E X . 929 DISTRICT COURTS— (CoNTDTOED). ^^™' their jurisdiction — extent of admiralty jurisdiction, 354 instance jurisdiction comprises seizures, when, 229 seizures cognizable where made, 233 jurisdiction of, exclusive, 238 of marine tofts and contracts, 239 controversy touching the limits of, 240 subjects embraced by it, 254 to what waters it extends, 255 invested with extraordinary jurisdiction, '. 265 their common law jurisdiction — 1, of seizures on land, 260 2, penalties and forfeitures, 261 3, suits by aliens — ^tort — laws of nations, treaties, 262 4, suits by United States, 262 5, suits against consuls, 262 to stay proceedings on warrant of distress, 231 power of, to punish contempts, 16 to grant new trials, 16 to make rules, 17 empowered to enforce awards, &c., of consuls, 125 their practice in suits at common law, 323-479 in cases of seizure, « •••• • 481-594 in criminal cases, 595-646 E. ERROR, WRIT OF, lies only in civil cases, 25 when to the circuit courts, 26 to the district courts, 185, 186 to state courts, 30-48 act of congress giving constitutional, 36 limited to final judgments, what are final, 36 when a supersedeas, 666 to be brought loithinfi/oe years, 663 not deemed to have been brought until filed, 665 when the limitation begins to rtm, 663 summary view of, in what cases, and for what errors and defects it lies, 647-655 whence it issues, and how directed, 656 test and return day, 657 statute regulations concerning, 660 when to be served, 667 not amendable, 680 not abated by death of party, 693 117 930 IKDEX. BEROR, WRIT OP— (Continued). security on suing out, form and amount of, 671 citation, form of, date and return day, 670 on whom to be served and where filed, 673 necessity of, waived by appearance, 683 copy of, to be filed in clerk's office for defendant, 673 return to, when to be made,.. 676 to include citation,.and copy of bond, * 675 may be made by clerk, 674 certiorari for diminution, motion for, 677 assignment of errors and joinder 687 amount in controversy, how mada'to appear, 679 record, when amendable 681 motion to dismiss, to be in writing, - 684 for what causes entertained, 685 cause dismissed cannot be restored, 686 cause, when to be docketed,. 688 motion to dismiss, &c., &c., -691 clerk's fees to be secured, 691 argument, oral or in writing, 692-694 printed briefs, &c.,. 694 interest, damages, costs, 695 dismissal, ,. , 696 rehearing, judgment, execution, 697 ESCAPE, from jail, sheriff, not marshal, liable for, 203 voluntary, marshal punishable for, 206 EVIDENCE, 391-433 legislative acts and records of states, how authenticated, 391 their effect, .' 394 records, &c., of the United States, copies of, evidence, 396 laws, &c., of foreign governments 397 congressional proceedings, 398 consular certificates, copies of, when evidence, 399 in suits against public debtors, 399 judicial decisions affecting, 405 depositions debene esse, 413 when allowable, 415 by whom and in what manner taken and transmitted, 416 how certified, 419 may be taken on commission, 421 depositions in perpetuam rei memoriam, , . 424 production of books and writings, order for, 425 See Witnesses. INDEX. 931 EXAMINATION OF PRISONER, 604 EXCEPTIONS, BILL OP, how framed , 445 EXECtJTION, when it may be issued, 468 form of, and proceedings thereon, 459 right of, against the person regulated by state laws, 460 when to run into other districts, 144 how executed after death, &c., of marshal 307 from supreme court, 331 EXECUTORS AND ADMINISTRATORS, to be deemed real parties, 163 how admitted or compelled to appear 466 F. FEES, act prescribing, 755 FINES, remission of, 736-740 FOREIGN ATTACHMENT, cannot be resorted to in national courts, 150 FORFEITURES, suits for, exclasively cognizable in district courts, 315 not incurred by mere intention to infringe the law, 603 necessity of some provision for the remission of, 736 acts of Congress authorizing, prospective, 737, 738 scope and limitation of the power of, 739 proceedings for, 730-740 warrant of remission, 730 summary proceedings when the value does not exceed $50, 730 FUGITIVES PROM JUSTICE, power to surrender, vested exclusively in the United States, (note 2,) 48 G. GARNISHEES, debtors of a corporation, sued by the United States, may be summoned as such, 131 GRAND JURORS, qualifications of, oath, challenge 616 9S3 INDEX, H. PAGE. HABEAS CORPUS AD StrBJICIBNDUM, power to issue, as defined by judicial act, / 14 couBtructiou of this act, 20, 63 review of reported cases arising under it, 60-76 act of 1833, , 76 of 1843, 77 of 1867, regulating proceedings under, 79 appeal from decision of judge or justice to circuit court and thence to supreme court 81 review of these acts, 81-84 expa/rte Terger, 84 when the writ will not be granted, 87 state judges have no power to issue the writ in cases of imprisonment under the authority of the United States, 88 explanatory note, . 91 for the discharge of soldiers imprisoned for debt, (note) 217 I. IMPBISONMENT, for debt, state laws relative to, adopted, 460 See JaUs ; Criminal Procedure. IMPRISONED DEBTORS, how discharged, 718-725 INDIAN NATIONS, not foreign states, 23 INDICTMENT, See Criminal Procedure. INFORMATION, to what seizures adapted, 541 rules regulating its structure, 544 amendments to, , . 549 See Seizure ; Precedents. INFORMER. See Seizure. INJUNCTION, WRIT OF, not to be granted without reasonable notice, 15 may be issued by any judge of the supreme court, 15 INDEX, 933 FAGS. INJUNCTION, WRIT OF— (Conthtoed). not to a state court, 15 judges of district courts empowered to grant, 176 to stay proceedings on warrant of distress, 321 subpoena on bill for, to stay proceedings at law, bow served wben defend- ant resides out of tbe district, 143 may be granted by a circuit court to stay proceedings at law in same court, 175 and to restrain official acts repugnant to constitution of the United States 176 but not to stay proceedings at law in a state court, 176 INQUIRT,WRIT OF, 384 INSTRUCTIONS TO JURY, power and duty of tbe court in giving, 441 INTERROaATORIBS. See Seizure. ISSUE ROLL, .' 389 J. JAILS, how provided for tbe use of the United States, 201 JAIL LIBERTIES, prisoners on civU process entitled to, according to laws of. tbe state, 845 JEOFAILS, statute of, 464 JUDGES, bow appointed, tenure of office and oath, 5 JUDGMENTS AND DECREES, on\j final, subject to revision, '. 25 which are final, 36, 186 at return term, , 358 judgment by default, 388 - as in case of nonsuit, 390 motion in arrest of, ^ 400 non obstante veredicto, 451 on verdict, rule for, when absolute, 457 lien of, when to cease, 458 in admiralty, to what extent conclusive, 235 in cases of seizure, 233 934 IITDEX. JUDICIAL POWER OF THE UNITED STATES, its scope and in what courts vested, 1 Chief Justice Jay's exposition of, (note) 3 restricted by llth amendment, 4 JURISDICTIOIT, of supreme coxirt, summary of, 97 of circuit courts, summary of, 186 under 25tli section, how made to appear, 39 being limited, must in all cases he shown, 856 dependent both on the constitution and laws, 33, 135 criminal, extent of, 178-184 concurrent, conflict of, 295-305 want of, how taken advantage of, 376-38S See Amount in Controversy ; Aliens ; Citizenship ; Laws of the United States; Treatise; Error, Writs of ; Supreme Court ; Circuit Courts ; District Courts. JURORS, in civil cases, how summoned and returned ; qualification^ of, 433 fees of, 436 challenge, oath, withdrawal of, &c., ■ 439 in criminal cases, 333, 616 See Criminal Procedure. JURY, waiver of trial by, 435 prayer of, instructions to, 441 LAKES AND RIVERS, embraced within the admiralty jurisdiction, 256 LANDS, actions concerning title to, in state courts, when removed to circuit courts, 128 when lying in different districts, 144 LAWS OP A STATE. See State Laws. LEGISLATIVE ACTS, how authenticated, 391 LETTERS ROGATORY, nature and use of, 585 form of, 909 INDEX. 935 X -r^— PAGE. LIBEL AND INFORMATION, to what seizures severally adapted, , 541 rules regulating structure of, 444 amendments to, 549 See Seizure ; Precedents. LIEN, continuance of, determined by state laws, 458 LIMITATION, of civil actions, ■. 339 of criminal prosecutions, ' 596 of suits on seizures, 535 statute of, on writ of error, available on motion, 666 M. MANDAMUS, WRITS OF, courts of United States empowered to grant, 14 supreme court not empowered to issue to " persons holding office,'' 19 empowered to issue it to circuit and district courts, 56 may be issued by circuit courts to district courts, when, 175 will not be granted to control discretionary power, 57 MARSHAL, how appointed, tenure of his office, hia bond and oath, 203-205 powers, duties, fees and emoluments, 205-211 limitation of suits on bond of, 203 his deputies removable by judge, ■ . . . 206 may have attachment to enforce payment of his fees, 211 liability for escape, 206 in case of his death, his deputies to continue in office until, &o., 207 his successor may execute deeds, 207 not responsible for prisoner delivered to jailer, 203 has the power of sheriff, 208 his deputy may appoint a special deputy, 343 to receive instructions from and report to solicitor and attorney- general, » 208, 209 of the supreme court, 10 proceedings against, when defendant fails to appear, 353 his duty in cases of seizure, 553 his liability for property seized, 535 MONEY, payment of, into court, 385 MONITION. See Seizures. 936 INDEX. PAGB. NATUEALIZATION, '••■•• 740-751 judgment of admission conclusive, 748 widows and children, when to be deemed citizens, 749 minor children of naturalized parents to be considered citizens, 749 note relative to, 747 NE EXEAT, WRITS OF, when grantable, 15 NEW TRIAL, courts empowered to grant, in civil suits, 16 after judgment, 453 execution stayed on application for, . . .- 453 practice relative to, in New York districts, 453 motion for, not allowed in first circuit, unless, &c., 454 NISI PRIUS RECORD, inapplicable in national courts, 889 NON OBSTANTE VEREDICTO, motions for judgment, 45Q NONSUIT, courts of United States not empowered to grant, 440 judgment as in case of, 390 NOTICE, ' of rule to declare 364 to plead ; to join in demurrer, 888 of trial, 437 service of, agents, 470 NUL TIEL RECORD, records from other states to be contradicted only by plea of, 394 o. OFFICERS OF THE CUSTOMS, who are to be deemed (note) 489 protected by certificate of reasonable cause, , . 501 ONUS PROBANDI, when cast on claimant, 499 OYER, 385 INDEX. 937 P. PARCHMENT, , ^^™* ^WW required for process, (note) 337 PARTICULARS, BILL OP 385 PARTIES, all persons composing, to possess requisite character, 157 except in the cases of joint liability and of corporations aggregate,. . 159 requisite character of, to be averred 367 one of, to be a citizen ot state where suit is brought,. 157 who are to be considered as constituting, 163 executors and administratore deemed such, 163 determined by legal interest 164 death and substitution of, 466 See Aliens ; Citizenship ; Corporations, Aggregate. PATENT, suits for infringement of, cognizable in circuit courts 133, 164 writ of error and appeal in, to supreme court 28 bill to set aside agreement respecting, not a suit arising under, 164 full costs in, on recovery, 455 PENALTIES, exclusive jurisdiction of suits for, vested in district courts, S15 suits for, to be commenced within five years, 330 remission of, 736 PERISHABLE PROPERTr, sale of, pendente lite, '. 567 PILLORY, punishment of, abolished, 645 PLEAS, in suits at common law, form and requisites of, 387 special, dilatory, in abatement, 388 when verified by oath, in New York districts, 388 See Precedents. PLEADINGS, in supreme court, 331 in circuit and district courts, 364-383 118 938 INDEX. PASB. PEACTICE, as regulated by statute, 323 not affected by changes in, of state courts, 336 power of courts to reg-ulate by rules, 324 rules of, how ascertained, 328 explanatory note relative to, in New York, 338 in criminal cases, ' 595-646 PRECEDENTS, 1. capias ad respondendum in circuit court, 863 2. in district court, 863 8.. writ of inquiry 863 4. inquisition thereon, 864 P 5. subpoenas 864, 865 6. affidavit to obtain habeas corpus ad testificandum, , 866 7. habeas corpus, 866 8. affidavit for commission; 866 9. commission, 867 , 10. subpoenas for witnesses on execution of, .' 867 11. fieri facias, 868 13. capias ad satisfaciendum, 868 13. scire facias 869 14. declaration by an alien against a citizen 870 15. by a citizen against an alien, , 870 16. by a citizen of another state against a citizen of the state in which the suit is brougljt 870 17. by a citizen of the state in which a suit is brought, against a citizen of another state,. ; 870 18. by first indorser against maker , 871 19. by indorsee against remote indorser, 873 20. by alien suing for a tort, 873 21. bond by plaintiff to defendant in error 873 23. writ of error to a circuit court 873 23. citation thereon, 874 24. writ of error to a district court, 874 25. writ of error to a state court, 875 26. assignment i of errors, 876 , 37. joinder in error, 87''' 28. affidavit for examination of witness de bene esse, 878 29. order thereon, 879 80. notice of, 879 81. deposition de bene esse ; 879 , 83. libel or information on seizure, introductory part of, 883 S3. on act of 2d March, 1821, 883 84. on the same act 884 INDEX. 939 PRECEDENTS— (Continued). 35. libel or information on act of 2d March, 1831, 885 36. on the same act ^ 886 37. on 14th section of act of July 14, 1832, 887 38. on the same section '. 888 39. on the 8th section of same act,. 889 40. conclusion of, 890 41. warraat of arrest and monition 891 42. marshaFs return to 893 43. claims and defenses, explanatory observations relative to, 893 44. claim and answer by the owner, 893 45. the like by agent or consignee, 894 46. the like by the master 895 47. bond on interposing claim, 895 48. replication, 896 49. stipulation, 896 50. petition for delivery on bond 897 51. notice to appraisers, 898 52. appraisers' oath, 898 53. appraisers' report, 899 54. bond on delivery, 900 55. s'ipulation 901 56. petition for sale of perishable property, 901 57. venditioni exponas 903 58. marshal's return, ■. 903 59. warrant of release and restoration, 904 60. marshal's return to, 905 61. petition for remission 905 62. clerk's return of proceedings on, 906 63. certificate of division in opinion, ' 907 64. letters rogatory, 909 I of general issue 915 PEIORITT OP UNITED STATES, 709-718 PEISONEES, on civil process entitled to jail liberties, 345 removal of, for trial in criminal cases 611 treatment of, 640 See Convicts ; Criminal Procedure. PRIZE JURISDICTION, vested in the district courts, extent of, 216, 235, 236 in cases of prize appeal direct to supreme court, 20 940 INDEX. • PtQB. PROBABLE CAUSE OF SEIZUEE, certificate of, conclusive, 233 when shown, onus proband! lies on claimant, 499 ^ definition of, 501 PROCESS, in local actions, 145 to be in the name of the president, 340 how tested and made returnable 340 to be sealed and signed by the clerk, • 340 forms of final, used in state courts adopted, 178 except in Louisiana, 328 whether parchment need be used for, (note) 337 whence it issues and to whom directed, '. 340 how executed, 343 in supreme court 319 in circuit and district courts, 337 on indictment, 598 on libel or information, 553 power of courts to alter forms of, 176 service of, on-non-resident, 143 PROCTORS. See Attorneys. PROHIBITION, WRITS OF, may be issued by supreme court, when, 14, 21, 56 PROMISSORY NOTE§, jurisdiction in suits upon, in favor of assignees, restricted, 119, 147 this restriction, when not applicable, 149 . PUBLIC MINISTERS, constitutional grant of jurisdiction of suits affecting 1 original jurisdiction of suits affecting, vested in supreme court, 13 of suits against, exclusive ; of suits brought by, not, 13 process of arrest against, from state court, void and punishable, 320 Q. QUO WARRANTO, courts empowered to issue 14, 15 INDEX. 941 E. REASONABLE CAUSE OP SEIZURE, ^^'**' grant or denial of certificate of, conol usive, 501 RECORDS, of state courts, liow authenticated and efiect of, 391 REHEARING-, when allowable in supreme court, 697 REMISSION. See Fines; Forfeitures; Penalties; Disabilities. REMOVAL OF CAUSES FROM STATE COURT TO CIRCUIT COURT, when permitted 128-134, 166-171 may be enforced by mandamus, 169 application for, when and how to be made, ; 471-479 REMOVAL FROM DISTRICT COURT TO CIRCUIT COURT, in case of disability or interest of district j udge, 196 REMOVAL FROM COUNTY COURT TO SUPREME COURT, not warranted by constitution, 19 REPLEADER, 400 REPLEVIN. See Seizures. REPORTER OP DECISIONS OP SUPREME COURT, appointment, duties and emoluments of, 10 REVENUE CAUSES, subject to review in all cases, • 26 REVENUE OFFICERS. See Officers of the Customs. REVENUE LAWS, held to embrace acts regulating postage, , 36 RULES OP PRACTICE, power of courts to make, 17 of the supreme court, 769 942 INDEX. / FAQI, RULES OP PRACTICE— (Continued). of the courts of equity, 837 of courts of claims, 811 of the circuit court for northern district of New York, 827 of district court, , 831 explanatory note relative to, in New York districts, 838 s. SCIRE FACIAS, authority to issue, 71, l6S See Precedents. SEAMEN, in naval service exempt from arrest for debt, 836 SEARCH WARRANTS, power of judges to issue, 17 SECURITY OP THE PEACE, the several judges authorized to hold to, 17 SEIZURES, ^ under laws of impost, &c., exclusively cognizable in district courts 229 made on navigable waters, are of admiralty jurisdiction 257 where cognizable, 233 . must be valid and subsisting at the time libel or information is filed, 233 decisions upon, conclusive, 238 practice in cases of, ' 481-594 general view of, 481 how made, ,. 486 by whom, 488 in what places made, 491 protection to oiBcer making ; fine for resisting 495 offlcer making, may plead general issue, &c., &c., double costs, 499 entitled to certificate of reasonable cause, 501 onus proband!, probable cause, 501 grounds of, 504-^19 effect of bona fide sale before, 519 what is a sufBcient importation to authorize, 521 not warranted for unavoidable acts and omissions, 523 for concealing 523 for want of marks, &c 524 far want of permit, 524 remedies of the owner for groundless, 524-535 INDEX. 943 SEIZURES— (CoNTnnJED). limitation, of suits founded on 535 provisions of the collection act of 1799, regulating 536 proceedings on, when by libel and when by information, 541 structure of the libel and information, 544 amendment of, 549 See Precedents. process in cases of, 553 condemnations by default, 555 delivery on bond 555 See Precedents. sale of perishaUe goods, 567 claim and defense, 569 See Precedents. what interest in the r«« sufficient 570 claim, by whom made, 570 how put in, 671 objections to , 673 defense, 574 demurrer 576 plea to jurisdiction, 577 in avoidance, 578 of statute of limitations, 579 bond for costs 579 See Pi ecedents. evidence in case of, 583 hearing or trial, 587 decree and execution 588 costs 469, 589 setting aside condemnation, 593 SEIZOR, remedies against, • • • 524-534 SOLDIERS, privileged from arrest for debt under ^20, 336 SPECIAL VERDICT, '. 448 SPECIAL CASES ^^ STATES, grant of judicial power over suits to which they are parties 1 what consti utes within the meaning of the constitution and laws, 153 may be sued by foreign state 2, 33 not by an Indian nation, - ** may sue in equity to restrain obstruction of navigable river, 24 944 INDEX. FAes. STATE LAWS, to be "rules of decision ". in auits at.law, 18 in what sense,. 138 do not, per se, regulate practice, 140 statutes of, how authenticated, 391 BUBPCENA, may run beyond the district to places within 100 ndles, 409 penalty for not obeying, ;..... ; 410 • service of, on nonTesident party to suit in equity, 143 See Precedents. SFIT, what constitutes, 39 ' tO' be brought where defendant resides oris fotind, 119, 141 what is a suit arising under the constitution, &c., i 44, 48 I SUPERSEDEAS. See Error, Writ of. SUPREME COtJET, judges of, nine in numbejyliow appointed, tenure and oath of office, 5 six a quorum, order of precedence 6 empowered to hold to security of the peace, >..... 17 clerk of, appointment, oath, bond,, duties, 6 attorneys and counselors of, conditions, of admission, oath, .: 7 . reporter of decisions of, "to publish decisions within six months, 10 marshal to be appointed by the court,.. .., 10 annual term of, duration,, no quorum, 11 original jurisdiction of, as defined in the constitution and reanilated bv statute 13-32 I K D E X . 945 PAOI. SUPREME COURT— (CoKTiNTJED). appellate jurisdiction of, on writ of error to state court, how made to appear, 39 what cases are within the 25th section 44-48 as dependent on the amount in controversy, 49-56 exceptions to be taken strictly, 54 on writ of error to state court, amount not Important, 56 supervisory power of, by prohibition, mandamus, and habeas corpus 14 power of, to issue writs of ne exeat, injunction and dedjmus potestatum,. . . 14, 15 to grant new trials, 16 to punish contempts 16 to make rules ' 17 advisory power of, on certificate, 93 summary of jurisdiction of, 97 practice of, in original suits, 307-332 practice of, on writ of error, 649-702 cannot take cognizance of political questions, , 24 T. TERRITORIAL COURTS, organization and jurisdiction of, 389-395 TRANSCRIPTS, from books, &c., of the treasury and post-office, evidence, 399 judicial decisions as to form and effect of, 403 TREATIES, what to be deemed a case arising under, 43 TRIAL, notice of, 437 Its incidents, 439-450 waiverwf jury on, > 433 u. UNITED STATES, may maintain a suit on contract without express authority by statute,. . . . 151 no contract against, can be judicially enforced, 152 jurisdietion of suits by, not limited as to amount, 120 119 946 INDEX. Y. PASK. VENDITIONI EXPONAS,; 589 VENIRE FACIAS DE NOVO, ON REVERSAL, 698 VERDICT, SPECIAL 448 W. WARRANT OP ARREST, in cases of seizure, ■. 553 in criminal cases 597 WARRANT OP DISTRESS, officers receiving public moneys liable to, 220 party unjustly imprisoned under, how released, 221 WHIPPING, punishment by, abolished 645 WITNESSES, who are competent 405 process to obtain attendance of, 408 attachment and right of action for not obeying subpoena 410 attendance of, before commissioners, how compelled 421 fees of, 411 persons accused or indicted, entitled to process for, 623 WRIT OP ERROR. See Error, Writ of. EREATA. Expunge " for " at the beginning of paragraph 3, page 105. Substitute " 13-17," for " 76-81," at the end of paragraph 3, page 126. Expunge " and habeas corpus " in the title of Chapter III, Part IV, page 604.