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district of Virginia,(1) of the district of Alabama,(2) of the District of Rhode Island, (3) of the district of Delaware,(4) of Michigan,(5) of Arkan. sas.(6)
617. Whenever a marshal shall sell any lands, tenements, or hereditaments, by virtue of a 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 executed therefore, by him to the purchaser, the purchaser or plaintiff, at whose suit the sale was made, may apply to the court from which the process issued, setting forth the case and assigning the reason why the title was not perfected by such marshal; and thereupon the court may order the marshal for the time being to perfect the title, and execute a deed to the purchaser, he paying the purchase money and costs remaining unpaid. Where a marshal shall take in execution any lands, tenements, or hereditaments, and shall die, or be removed from office, or the term of his commission expire before sale, or other final disposition made thereof; the like process shall issue to the succeeding marshal, and the same proceedings shall be had, as if such former marshal had not died or been removed, or the term of his commission had not expired: And the provisions in this article contained, shall extend to all the cases respectively which may have happened before the enacting hereof.(7)
618. It is by congress recommended to the legislatures of the several states to pass laws, making it expressly the duty of the keepers of their gaols, to receive, and safe keep therein, all prisoners committed under the authority of the United States, until they shall be discharged by due course of the laws 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 gaols, at the rate of fifty cents per month, for each prisoner that shall, under their authority, be committed thereto, during the time such prisoners shall be therein confined ; and also to support such of said prisoners as shall be committed for offences.(8)
In case any state shall not have complied with the foregoing recommendation, or having complied therewith, shall have withdrawn, or shall hereafter withdraw, in whole or in part, the use of its gaols for prisoners committed under the authority of the United States, the marshal in such state, under the direction of the judge of the district, may hire a convenient place to serve as a temporary gaol, and make the necessary provision for the safe keeping of prisoners committed under the authority of the United States, until permanent provision shall be made by law for that purpose, and he shall be allowed his reasonable expenses therefor, to be paid out of the trea. sury of the United States.(9)
In any state where the jails are not allowed to be used for the imprison. ment of persons arrested or committed under the laws of the United States, or where houses are not allowed so to be used, the marshal, under the direction of the judge of the United States for the proper district, may use other convenient places within the limits of' said state, and make such other provision as he may decm expedient and necessary for that purpose (10)
The judge of any district court of the United States, within whose district any contagious or epidemical disease shall at any time prevail, so as in his opinion, 10 endanger the life of any person confined in the prison of such
(1) Act 21st Jan. 1829.
(7) Act May 7th, 1800, sec. 3.
(9) Resolutions March 3d, 1791,March 3d, 1821.
(10) Act 2d March, 1833, sec. 6.
district, in pursuance of any law of the United States, may direct the marshal to cause such person to be removed to the next adjacent prison where such disease does not prevail, there to be confined, until he may safely be remove ed back to the place of his first confinement; which removal shall be at the expense of the United States.(1)*
619. The respective courts of the United States shall appoint criers for their courts, who shall be allowed two dollars per day; and the marshals, respectively, may appoint such number of persons, not exceeding three, as the judges of their respective courts may determine, to attend upon the grand and other jurors, and for other necessary purposes, who shall be allowed for their services, 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.(2)
620. The fees and compensations of the several officers of the courts, other than those which are directed to be paid out of the treasury of the United States, shall be recovered in the like manner as the fees of the officers of the states, respectively, for like services are recovered.:(3)
621. If any such officer, or his deputy, shall, by reason or colour of his office, wilfully and corruptly, demand and receive any greater fees than those allowed by law, he shall, on conviction thereof in any court of the United States, forfeit and pay a fine not exceeding five hundred dollars, or be imprisoned not exceeding six months, at the discretion of the court before whom the conviction shall be.(4)
OF CIVIL PROCEDURE.
Writs and processes, how tested 622 Compensation to witnesses
633 Forms of writs and proceedings 623 Mode of oral testimony
634 Clerks of court may take bail and Depositions de bene esse may be affidavits, when 624 taken, when, how
635 Circuit courts may appoint commis. Depositions in suits in equity 636
sioners of bail, &c.-when-their Proceedings for bringing witnesses powers, fees
625 before commissioners-per subBail in certain suits by U. S. 626
pena duces tecum
637 Provision for security of bail 627 Authentication of acts of state legisParties may appear in person or by latures and courts
628 Authentication of record and exemImparlance in certain cases
629 plification of office books 639 Consolidation of suits, when 630 Copies of papers, effecting land, in Substitution on death of parties 631
treasury department-evidence 640 Subpænas for witnesses, may run Jurors, how designated, qualificafrom one district into another
tions of, how summoned and rewhen 692 turned-compensation
(1) Act 25th Feb. 1799, sec. 5.-See t. S. against Burr, 351, 358, 366—and 9 Cranch, 80.
(2) Act 21 March, 1799, sec. 7.
Where a state has passed a law pursuant to article 618, making a keeper of a gaol liable to pains and penalties, the marshal is not liable under article 615, for the escape of a debtor from the state gaol to which he has committed him, under civil process from a court of the United States.-Randolph y. Donaldson, 9 Cranch, 86.
The marshal may be directed by the supreme court to return a writ directed to him, by a certain day, and in case of default, to show cause by affidavit.-Oswald v. New York, 2 Dall. 402.
Judgment by supreme and circuit Costs to fall on informer, when 648 court in case of reversal
642 Costs on affirmance of judgment in Judgment to be equitable, in case
649 of penalty of articles of agree- Forms of executions, &c.
650 ment, &c. sum to be assessed by Goods taken in execution to be apjury, when 643 praised, when—how
651 New trial grantable, when
644 Execution when state is divided Proceedings not to be abated, &c. into two districts
652 for want of form, unless demurred Provision relative to money paid to-amendments 645 into court
653 Costs in circuit courts not allowed, Writ of error, form of, supersedeas, when 646 when
654 Costs where actions may be joined 647
Art. 622. All writs and processes issuing from the supreme or a circuit court, shall bear test 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 test of the judge of such court, (or if that office shall be vacant,) of the clerk thereof, which said writs and processes shall be under the seal of the court from whence they issue, and signed by the clerk thereof. The seals shall be provided at the expense of the' United States.(1)*
623. The forms of writs, executions and other processes, except their style, and the forms and modes of proceeding in suits, in those of common law shall be the same in each state respectively as are now (1789) used in the supreme courts thereof; and in those of equity, and in those of admi. ralty and maritime jurisdiction, according to the principles, rules, and usages, which belong to courts of admiralty, respectively, as contradistinguished 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 alterations and additions as the said courts, 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 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 one, the plaintiff shall have his election to take out a capias ad satisfaciendum in the first instance (2)
(1) Act Sth May, 1792, sec. 1.
(2) Act May 8th, 1792, sec. 2.-See the cases of U. S. v. Parker & al. 2 Dall. 373.–Barton v. Petit, 7 Cr. 194.-Pal.
mer v. Allen, ib. 350.- Robinson v. Campbell, 3 Wheat. 212, 221.-Wayman v. Southard, 10 Wheat, 31.
The seal of the supreme 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 UNITED STATES."
The seals of the circuit courts shall be the arms of the United States, engraved on circular pieces of silver of the size of a half dollar, with these words in the margin: in the upper part, “ The seal of the circuit court," and the lower part the name of the district for which it is intended.
All process of the supreme court shall be in the name of the “ PRESIDENT OF THE UNITED STATES. "-Rule Sup, Ct. 2 Dall. 399.
† The practice of the courts of the United States, is not subjected by the foregoing article to the alterations made in the state laws and practice since 1789.Wayman v. Southard, 10 Wheat. 31. Beers & al. v. Haughton, 9 Peters, 330.
The practice of the king's bench and chancery in England, afford outlines for the practice of the supreme court, subject to such alterations as circumstances may render necessary.-2 Dall. 411.-Vattier v. Hinde, 7 Pet. Rep. 252.
The proceedings of the courts of the United States, in cases of admiralty and The forms of mesne process, except the style, and the forms and modes of proceeding in suits in the courts of the United States, held in those states admitted into the Union since the twenty-ninth day of September, in the year seventeen hundred and eighty-nine, in those of common law, shall be the same in each of the said states, respectively, as are now used in the highest court, of original and general jurisdiction 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, according 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 provided for by acts of congress; subject, however to such alterations 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.(1)
624. The clerks of the district and circuit courts in the absence, or in
(1) Act 19th May, 1828.
maritime jurisdiction, are according to the modified admiralty practice in the United States engrafted upon the British practice, and a process constantly used in the admiralty courts of the United States will not be rejected because such process has fallen into dissuetude in England.-Mauro v. Almeida, 10 Wheat. 473.
Hence, the process of attachment may issue to compel appearance both in cases of maritime torts and contracts. It may issue where the defendant has concealed himself, or absconded from the country, and the goods to be attached are within the jurisdiction of the admiralty: It may issue against his goods and chattels, credits and effects, in the hands of third persons.—Ibid.
The remedy by attachment in the admiralty in maritime cases applies even where the same goods are liable to the process of foreign attachment issuing from the courts of common law.-Ibid.
It applies to the case of a piratical capture, and the civil remedy is not merged in the criminal offence.--Ibid.
In case of default the property attached may be condemned to answer the demand of the libellant; and it is not necessary that such property should be specified in the libel.-Ibid.
The attachment issues upon the express order of the judge, and may be issued simultaneously with the monition.-Ibid.
Where the court of admiralty parts with the possession of property, upon bail or stipulation, and it is necessary for purposes of justice, to retake the property into the custody of the court, the proper process against one not a party to the stipulation, but who is alleged to have the actual or constructive possession, is a Fumition, and not an execution in the first instance.—The Gran. Para. 10 Wheat. 497.
The courts of the United States may alter the form of the process of execution used in the supreme courts of the states in 1789, so as to subject to execution lands and other property, not thus subject by the state laws in force at that time.—Bank of U. S. v. Halstead, 10 Wheat. 51.
In a suit against a state, the delivery of a copy of the writ to the governor and attorney general of such state is a good service.-Chisholm v. Georgia, 2 Dall. 419. Huger v. South Carolina, 3 Dall. 339. If the state do not appear after such service, on proclamation being made, the court will grant a rule to show cause, why on non-appearance by a certain day, judgment by default should not be entered against such state.-Oswald v. New York, 2 Dall. 415.
If a party having a right to sue in the supreme court, institute a suit against one confined by process of an inferior court of the United States, an habeas corpus ad repondendum is not necessary to bring the defendant actually into court. An origimal writ, directed to the marshal of the district having charge of the defendant, will require the marshal to detain him, where he is confined, until he give bail.Esparte Bollman and Swartwout, 4 Cr. 97. Nor will the writ of habeas corpus ed respondendum lie where the defendant is confined by process from a state court,
• The Act of 19th May, 1828, does not extend to Louisiana.
case of the disability of the judges may take cognizance of special bail, de bene esse in any action depending in either of said courts; and also the affidavits of all surveyors relative to their reports, and may administer oaths to all persons identifying papers found on board of vessels, or elsewhere, to be used on trials in admiralty causes.(1)
625. The circuit court of the United States holden in any district in which the foregoing provision for taking bail and affidavits in civil causes (in cases where such affidavits are by law admissible) is inadequate, or, on account of the extent of such district, inconvenient, may appoint such discreet persons in different parts of the district as the court shall deem necessary to take acknowledgments of bail and affidavits which shall have like force as if taken before a judge of such court. And any person swearing falsely in and by such affidavit shall be liable to the same punishment as if the affida. vit had been made before such judge.(2)
And such commissioners may take affidavits and bail in civil cases, to be used in the several district courts of the United States, and may exercise all the
powers that a judge of any of the courts of the United States may exercise by virtue of the thirtieth section of the act entitled “ an act to establish courts of the United States.”(3)
Like fees shall be allowed for taking such bail and affidavits as are allowed for the like services, by the laws of the state in which such affidavit or bail be taken.(4)
626. In all cases of suits or prosecutions for the recovery of duties or pecuniary penalties prescribed by the laws of the United States, the persons against whom process may be issued shall be held to special bail subject to the rules and regulations which prevail in civil suits in which special bail is required.(5)*
627. In all cases where a defendant, having procured bail to respond to the judgment in a suit brought against him in any of the courts of the United States, is afterwards arrested in any district of the United States, other than that in which the first suit was brought, and is committed to a gaol, the use of which has been ceded to the United States for the custody of prisoners, any judge of the court, in which the suit is depending, wherein such defendant had so procured bail, at the request and for the indemnification of the bail, may order that such defendant be held in the gaol to which he shall have been committed a prisoner, in the custody of the marshal, within whose district such gaol is, and upon such order duly authenticated, being delivered to the marshal, it is his duty to receive such prisoner into his custody, and him safely to keep, and he is chargeable, as in other cases, for an escape. The marshal shall make a certificate, under his hand and seal, of such commitment, and transmit to the court from which such order issued ; and if required, make and deliver a duplicate thereof to such bail, bis or their agent or attorney, and upon such certificate being returned to the court
(1) Act 8th May, 1792, sec. 10.
(4) Act Feb. 20th, 1812, sec. 2.
* A defendant may be liberated on common bail if he have been discharged by the insolvent law of the state in which the debt was contracted or made payable, and the plaintiff had notice of the defendant's intention to take the benefit of the law.—Read v. Chapman, 1 Pet. C. C. Rep. 404, 484. But he will not be admitted to common bail on the ground of his discharge under an insolvent law of a country where the parties do not reside, and in which the contract was not made or to be performed. -Campbell v. Claudius, Ib. 484. Heyton v. Wilkinson, 1 Hall's L. J. 260. Gill v. Jacobs, 6 Hall's L. J. 117.