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 impartially 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 Jurymen de- deputy shall, by order of the court where such defect of jurors shall happen,, return jurymen de talibus circumstantibus sufficient to complete the pannel; and when the marshal or his deputy are disqualified as aforesaid, jurors may be returned by such disinterested person as the court shall appoint. talibus, &c. Mode of proof, by oral testimony, &c. Vol. I. p. 310. Vol. ii. p. 861. Witnesses living at a distance, &c. Notice to the § 30. That the mode of proof by oral testimony, and 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 equi. ty and of admiralty and maritime jurisdiction, as of actions common law. Aud 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 voyage 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 Depositions de than as aforesaid, before the time of trial, or is ancient, or very bene esse, &c. infirm, the deposition of 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 a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, adverse party or interested in the event of the cause, provided that a notificaof intended de tion from the magistrate before whom the deposition is to be tapositions, &c. ken 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 attorney, as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after notified, not less than at the rate of one day, Sundays exclusive, for every Notice for be- twenty miles travel. And in causes of admiralty and maritime nefit of claim- jurisdiction, or other cases 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 libelled at the time of the capture or seizure of the same, if known to the Examination libellant. And every person deposing as aforesaid, shall be of persons de- carefully examined and cautioned, and sworn or affirmed to tesposing, &c. tify 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 Depositions to be retained, by the deponent in his presence. And the depositions so taken. and delivered shall be retained by such magistrate, until he deliver the same into court, &c. with his own hand into the court for which they are taken, or Vol. i. p. 310. shall, together with a certificate of the reasons as aforesaid, of ralty causes, &c. Vol. iii. p. 2040. pose, &c. peal. trial, in case 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 Persons comaforesaid, in the same manner as to appear and testify in court. pelled to deAnd in the trial of any cause of admiralty or maritime jurisdic- Securing of tion in a district court, the decree in which may be appealed testimony in from, if either party shall suggest to and satisfy the court, that writing, to be probably it will not be in his power to produce the witnesses, used on apthere testifying, before the circuit court, should an appeal be had, and shall move that their testimony be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be Such testimohad, such testimony may be used on the trial of the same, if it ny allowed, on shall appear to the satisfaction of the court, which shall try the death, abappeal, that the witnesses are then dead, or gone out of the Uni- sence, &c. ted States, or to a greater distance than as aforesaid, from the place where the court is sitting; or that, by reason of age, sickness, bodily infirmity, or imprisonment, they are unable to travel and appear at court, but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. Provided, That nothing herein shall be construed to prevent any court of the United States from granting a dedimus potestatem, Dedimus poto take depositions according to common usage, when it may be testatem, acnecessary to prevent a failure or delay of justice; which power usage, &c. they shall severally possess; nor to extend to depositions taken cording to in perpetuam rei memoriam, which, if they relate to matters that Depositions in may be cognizable in any court of the United States, a circuit perpetuam rel memoriam,&c. court, on application thereto made as a court of equity, may, according to the usages in chancery, direct to be taken. death, &c. § 31. That where any suit shall be depending in any court of No abatement the United States, and either of the parties shall die before final in case of judgment, the executor or administrator of such deceased party, Executor, &c. who was plaintiff, petitioner, or defendant, in case the cause of to prosecute action doth by law survive, shall have full power to prosecute or and defend, defend any such suit, or action, until final judgment; and the &c. defendant or defendants are hereby obliged to answer thereto accordingly; and the court before whom such cause may be depending, is hereby empowered and directed to hear and determine the same, and to render judgment for or against the executor or administrator, as the case may require. And if such Neglect of exexecutor or administrator, having been duly served with a scire ecutor or administrator,on facias, from the office of the clerk of the court where such suit scire facias, is depending, twenty days beforehand, shall neglect or refuse to subjects estate become a party to the suit, the court may render judgment to judgment, against the estate of the deceased party, in the same manner as if the executor or administrator had voluntarily made himself a Executor, &c. party to the suit: And the executor or administrator, who shall entitled to become a party as aforesaid, shall, upon motion to the court No abatement where the suit is depending, be entitled to a continuance of the in case of same until the next term of the said court. And if there be two death of one of or more plaintiffs, or defendants, and one or more of them shall joint parties to VOL I. 9 &c. continuance. an action, &c. Writs, &c. not to abate, &c. for want of form, &c. die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants. § 32. That no summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, 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 whatsoever, except those only in Except in ca- cases of demurrer, which the party demurring shall specially set ses of demur- 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 imperfections, 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, and by their rules, prescribe. rer. Courts may amend imper. fections in writs, plead ing, &c. except, &c. to offences against the U. States, &c. Vol. i. p. 310, 556. Return of sance, &c. pro Power of jus§ 33. That for any crime or offence against the United States, tices, judges, the offender may, by any justice or judge of the United States, &c. in relation 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 such court of the United States, as by this act has cognizance of the offence: And copies cess, recogni- of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognisances of the witnesses, for their appearance to testify in the case; which recognisances the magistrate, before whom the examination shall be, may require on pain of imprisonment. And if such commitment of the offender, or the witnesses, shall be in a district other than that in which the offence is to be tried, it shall be the duty of the judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender, and the witnesses or either of them, as the case may be, to the Bail, in crimi- district in which the trial is to be had. And upon all arrests in nal cases, and criminal cases, bail shall be admitted, except where the punishbefore whom, ment may be death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their Bail, in cases discretion therein, regarding the nature and circumstances of not punisha the offence, and of the evidence, and the usages of law. And ble with death, if a person committed by a justice of the supreme, or a judge of whom. a district, court, for an offence not punishable with death, shall Removal of of fenders, witnesses, &c. by warrant, to the district of trial, &c. &c. and before 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. 34. That the laws of the several states, except where the Laws of the constitution, treaties, or statutes, of the United States, shall states, except, otherwise require or provide, shall be regarded as rules of deci- &c. rules of desion in trials at common law, in the courts of the United States, in cases where they apply. cision at com mon law, &c. § 35. That in all the courts of the United States, the parties Management may plead and manage their own causes personally, or by the of causes, in assistance of such counsel or attorneys at law, as by the rules of person, or by attorney, &c. the said courts, respectively, shall be permitted to manage and conduct causes therein. And there shall be appointed, in each Attorney for district, a meet person, learned in the law, to act as attorney for the U. States the United States in such district, who shall be sworn or affirm- in each district, &c. ed, to the faithful execution of his office, whose duty it shall be to Duty of disprosecute, in such district, all delinquents, for crimes and offen- trict attor ces cognizable under the authority of the United States, and all neys. 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. And he shall receive, as a compensation for his Their comservices, such fees as shall be taxed therefor in the respective pensation. courts before which the suits or prosecutions shall be. And Attorney genthere shall also be appointed a meet person, learned in the law, eral for the to act as attorney general for the United States, who shall be United States sworn, or affirmed, to a faithful execution of his office; whose duty Duty of the it shall be to prosecute and conduct all suits in the supreme attorney gencourt, in which the United States shall be concerned, and to eral. give his advice and opinion upon questions of law, when required by the president of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compen- His compen sation for his services as shall, by law, be provided. [Approved, sation fixed September 24, 1789.] by law. Vol. i. p. 94. CHAP. 21. An act to regulate processes in the courts of the United States. § 1. Be it enacted, &c. That all writs and processes, issuing Teste of writs, from a supreme, or a circuit court, shall bear teste of the chief &c. 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 circuit courts, to be pro- Seals to be vided by the supreme court, and of the district courts, by the provided. respective judges of the same. § 2. That until further provision shall be made, and except Forms of where, by this act or other statutes of the United States, is oth- writs, modes erwise provided, the forms of writs and executions, except their of process, &c. style, and modes of process and rates of fees, except fees to judg es, 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 Forms of promodes of proceedings in causes of equity, and of admiralty and ceedings in maritime jurisdiction, shall be according to the course of the ci- miralty, &c. equity and ad Rates of fees. vil law: And the rates of fees, the same as are, or were, last allowed by the states respectively, in the court exercising supreme Proviso; as to different kinds jurisdiction in such causes. Provided, That on judgments in any of executions. of the cases aforesaid, where different kinds of executions are issuable in succession, a capias ad satisfaciendum being one, the plaintiff shall have his election, to take out a capias ad satisfaciendum in the first instance, and be at liberty to pursue the same, until a tender of the debt and costs in gold or silver shall be made. Limitation of this act to the 12th Aug. 1790. Repealed. Vol. i. p. 285. § 3. That this act shall continue in force until the end of the next session of congress, and no longer. [Approved, September 29, 1789.] CHAP. 22. An act to explain and amend an act, entitled "An act for registering and clearing vessels, regulating the coasting trade, and for other purposes." § 1. Be it enacted, &c. That when any goods, wares, or mercrafts, or ves- chandise, of foreign growth or manufacture, shall be unladen sels, convey- from any ship or vessel in virtue of a permit, obtained for that ing foreign goods, lawful purpose, and shall be put into a craft or vessel, with intent to be transported to a landing within the same district, it shall be the &c. to a land- duty of the inspector, or other officer attending the unlading of ing within the such goods, wares, and merchandise, to deliver to the master or to be furnished commander of every such craft or vessel, a certificate of such with a certifi- goods, wares, and merchandise, having been duly entered, and a cate by the in- permit granted therefor; and such certificate shall contain a despector, &c. ly unladen, same district, entry, &c. for scription of all the packages, with their marks and numbers, and shall authorize the transportation and landing of the same, at any landing within the same district, without any further fee or permit, any thing in the said recited act to the contrary notwithstanding. Exemption of § 2. That so much of the twenty-second section of the said licensed ves sels, between recited act, as exempts vessels of less than twenty, and not less twenty and than five, tons burthen, employed between any of the districts of five tons, from the United States, in any bay or river, and having a license from the collector of the district to which such vessel belongs, from entering and clearing for the term of one year, be extended to vessels not exceeding fifty tons: Provided, such vessel shall not have on board goods, wares, and merchandise, other than such as are actually the growth or produce of the United States. one year, ex tended to ves sels not exceeding fifty tons. Vol. i. p. 33. Proviso; as to p. 22. § 3. That so much of an act entitled "An act to regulate the collection of the duties imposed by law, on the tonnage of ships or vessels, and on goods, wares, and merchandises, imported into the United States," as hath rated the ruble of Russia at one hundred cents, be, and the same is hereby, repealed and made null and void. [Approved, September 29, 1789.] Expired. Vol. CHAP. 24. An act providing for the payment of the invalid pensioners of the i. p. 101. United States. Military pen§ 1. Be it enacted, &c. That the military pensions which have sions granted and paid by been granted, and paid by the states, respectively, in pursuance the states, to of the acts of the United States in congress assembled, to the inbe paid by the valids who were wounded and disabled during the late war, shall be continued and paid by the United States, from the fourth day United States for the space of a year. |