Gazette of the United-States. (New-York [N.Y.]) 1789-1793, November 11, 1789, Page 244, Image 4
Remainder of the JUDICIAL ACT. (Begun in our laj}.) AND be it further enaflfd, That it shall be the duty of circuit courts, in causes in equity and of admiralty and maritime jurif didtion, to cause the fadls on which they found their sentence or decree,tully to appear upon the record either fronvtheir pleadings and decree ltfelf, or a state of the cafe agreed by the parties, or their council, or if they disagree, by a fluting of the cafe by the court. And be it further enaftcd, That where in a circuit couit, a plain tiff in anadtion, originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of five hundred dollars, or a libellant, upon his own appeal, less than the sum or value of three hundred dollars, he lhall not be al lowed, but at the difcrction of the court, may be adjudged to pay coils. And be it further enaEled, That from final decrees in a diftridl court in daufes of admiralty and maritime jurildidlion, where the matter in dispute exceeds the sum or value ot three hundred dol lars, exclusive of coils an appeal (hall be allowed to the next cir cuit court, to be held in such di ft rift. Provided, nevertheless, that such appeals from final decreesas aforefaid, from the diftridl court of Maine, shall be made to the circuit court next to be holden after each appeal in the diftridl of Maflachufctts. Aud be it further enafled, That final decrees and judgments in civil adlions in a diftridl court, where the matter in dispute ex ceeds the fumorvalue of fifty dollars, exclusive of costs, maybe re-examined, and reversed or affirmed in the circuit court, holden in the fame diftridf, upon a writ of error, whereto (hall be annexe# and returned therewith at the day and place therein mentioned, an authenticated tranfeript of the record, and alignment of errors, and prayer for reversal, with a citation to the adverse party, signed by the judge of such did rift court, or a justice of the Supreme Court, the adverle party having at leall twenty days notice, And upon a like process, may final judgments and decrees in c vil adlions, and suits in equity in a circuit couit, brought there by original pro cess, or removed there from courts of the fever a I States, or remov ed there by appeal from a diftridl court where the matter in dis pute excecds the sum or value of two thousand dolUis, exclulive of costs, be re-examined and reversed or affirmed in the Supreme Court, the citation being in luch cafe finned by a judge of such circuit court, or justice of the Supreme Court, and the adverse party having at lealt thirty days notice. But there lhall be no rc vei sal in either court on such writ of cuor for error in ruling any plea in abatement,other than a plea tothe jurifdidlion of the court, or i'uch plea to a petition or bill in equity, as in the nature of a demurrer, or for any error in fadl. And writs of error (hall not be brought but within five years after rendering or parting the judg ment or decree complaincd of, 01 in cafe the person entitled to such writ of error be an infant./fW-r covert, von combos mentis, or imprifon ed,then within five years as aforefaid, exclusive of the time of such disability. And evei v justice or judge liguing a citation on any writ of error as aforefaid, shall take good and fufiicicnt security, that the plaintiff in error lhall prosecute his writ to cffedl, and an swer all damages and costs if he fail to make his plea good. And be it Jurtherrratledf Tha: a writ of error as afore said shall be afuperfedi i 3 and stay execution .u cases onlv where the writ of error is fer-'ed, by a copy therol being lodged for theadverfe party i n the clerk's office, where the record remains within ten days, Sun days exclusive, after lendeiing the judgment or palling the decree complaincd of until the expiration of which term often days, exe cuitons shall not issue in any cafe where a writ of error may be a fu perfedeas; and whereupon such writ of error the Supreme or circuit court shall affirm a judgment or decree, they Oiall adjudge ordccrec to the respondent in error just damages for his delay, and single or double costs at their difcrction. Andbeitfurther enafled y Thzt when a judgmentor decree shall be re versed in a circuit court,fuch court shall proceed to render such judg ment or pass such decree as the diftridl court should have rendered or parted ; and the Supreme Court shall do the fame on leverfals there in, except where the reverfa) is in favor of the plaintiff, or petitioner in the original suit. and the damages to be afteffed, or m alter to be decreed, are uncertain, in which cafe they shall remand the caiife for a final decision. And the Supreme Court lhall not iflue exe cution in causes that are removed before them by writs of error, but shall fend a special mandate to the circuit coOrt to award exe cution thereupon. And be it further enabled. That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authoi itv exeicifed under the United States, and the decision is against their validity; 6r where is drawn in question the validity of a statute of, or an authority excr cifed under any State, on the ground of their being rcpugnat to the conflitution, treaties or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the confttudlion of any claufc of the conflitution, or of a treaty. 01 sta tute of, or coinmiflion held under the United States, and the de cision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the laid conflitution, treaty} statute or commiftion, may be re-xamined and 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 Chancellor of the Court, rendering or palling the judgment or decree complained of, or by a justice of the Supiemc Court of the United States, in the fame manner and under the fame regulations, and the writ shall have flie fame effedl, as if the judgment or decree complained of had been rendered or parted 111 a'circuit court, instead of remanding the cause for a final deci sion as before provided, may at their difcrction, if the cadfe shall have been once remanded before, proceed to a final decision of the fame, and award execution. But no other error shall be artigned or regarded as a ground of revcrfal in any such cafe as aforefaid, than such as appears on the face ot the record and immediately re fpedls the beforementior.ed qucftionS of validity or conftrudlion of the said conflitution, treaties, commiflions, or authorities in dispute. Andbeit further eifqFitd, That in all cases brought before either oj the couit of the United States to recover the forfeiture annex ed to any articles of agreement, covenant, bond or other speciality, ■where the forfeitarA, breach or non-perfOrinancc lhall appear, by the default or confefrion of the defendant or upon demurrer, the c ourt before whom the adlion is, shall render judgment therein for the plaintiff to recover so much as is due according to equity. And wljeii the sum for which judgment shall be rendered is uncertain, the fame shall, if cither of the parties requefl it, be alfeffed by a jury. And be it further cnafted, That a marshall shall be appointed in and for each diftridl for the term of four years, but shall be remove able from office at pleasure, whose duty it lhall be, to attend the diftridl and circuit courts when fitting therein, and also the Su preme Court in the diftridl in which that court fl.all fit. And to execute throughout the diftridf, all lawful precepts diredled to him, and iffucd under the authority of the United States, and he shall have power to command all necessary aftillance in the execution of liiSdutyj and to appoint as their shall be occasion, one or more deputies, Who shall be removable from office by the judge of the diftridl couit. or the circuit Court fitting within the diftridl, at the pleasure of either, and before he enters on the duties of his office, he shall become bound for the faithful performance of the fame, by himfelf and by his deputies before the judge of the diftridl court to the United States, jointly and severally, with two £ood and fufficient ftneties, inhabitants and freeholders of such diftridl, to be approved by the diftridl judge, in the sum of twenty thousand dollais, and take before said judge, as shall also his deputies, before they enter 011 the duties of their appointment, the follow ing oath of office : tl lA. P. do fo'lemnly fwcar or cffirm ; u that I will faithfully execute all lawful precepts dire&ed to the 41 marshal of the diftrift 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 44 the duties of the office ot marshal (or marfhai's deputy, as the cafe 44 may be) of the diftrift of during my continuance 44 in said office, and take only my lawful lees. So help me God." And be it further enaflcd, That in all causes wherein the marshal or his deputy (hall be a party, the writs and precepis therein shall be directed to such difmterefted person as the court, or any justice or judge, thereof may appoint, and the person so appointed, is hereby authorised to execute and return the fame. And in cafe of the death of any marshal, his deputy or deputies lhall continue in office, unless other wife fpccially removed ; and shall execute the fame in the name of the decealed, until another marshal be ap pointed and sworn : And the defaults or misfeafances in office of the deputy or deputies in themean time, as well as before., ffial) be adjudged a breach of the condition of the bond given, as before diicfled, by the marshal who appointed them ; and the executor or administrator of the deccafed ruarfhal (hall have like icmcdyforthe defaults and misfeafances in office of such deputy or deputies during such interval, as they would be entitled to it the marshal had con tinued in life and in the efcerciie of his said office, until his fuc cefTor was appointed, and sworn or affirmed : And every marshal or his deputy when removed from office, or when the term for which the marflial is appointed (hall expire, shall have power not withstanding to execute all sUch precept* as may be in their hands refpcftivelv at the time of such removal 01 expiration of office; and the hiarfhal (hall be held anl vrerable for the delivery to his fuccefTor of all prisoners Which may be in his custody at the time of his re moval, or when the term for which he is appointed fnall expire, and for that purpose may retain such priloners in his fuccefTor until his fucccffor shall be appointed and qualified as the Jaw diredls. And be it further enabled, That in cases punishable with death, the trial shall be had in the county Ivhere the offence was committed, or where that cannot be done without great inconvenience, twelve petit jurors at leafl shall be summoned from thence. And jurors in all cases to serve in the cOurts of the United States shall be de signated by lot or otherwise in each State refpe&ively accord ing to the mode of forming juries therein now pra&ifed, so for as the laws of the fame lhall render such dcfignation prac ticable by the courts or marihals of the United States; and the jurors shall have the fame ejUalifications as are requisite for ju rors by the laws of the State of which they are citizens, to serve in the highest courts of law of such State, and shall be returned as there shall be occasion for them, from such parts of the diftrift from time to tune as the court (hall dire&, so as shall be moil favor able to an impartial trial, and so as not to incur an unnecefTary expence, or unduly to burthen the citizens of any part of the di ftrift with sUch services. And writs of veJtirefacias when direct ed by the court shall iftue from the clerk's office, and (hall be ser ved and returned by the marshal in his proper person, or by his deputy, or in cafe the marshal or his deputy, is not an indiffer ent 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 depnty shall, by order of the court where such defeffc of jurors (hall happen, return jury men tie talibus circurrjlantibus fufficient to complete the pannel; and when the marshal or his deputy are disqualified as aforefaid, jurors may be returned by such dilintereftad person as the court lhall appoint. And be itfurther etiafied, That the mode of proof by tfral mony and examination of witnefTes in open court (hall be the fame in all the courts of the United States, as well in the trial of causes in equityand of admiralty and maritime jurifdi&ion, as of actions in common law, And when the testimony of a fly person shall be ncccfTary in any civil cadfe depending in any diflrift in any court of the United States, who (hall live at a greater distance from the place of trial than one hundred iViiles 9 or is bound on a voyage to sea, or is about to go out of the United States, or out of such diftritt, and to a greater distance from the place of trial than as aforefaid, before the time of trial, or is ancient or very infirm, the deposition of such person may be taken de bene ejfe 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 superi or court, mayor or chief magistrate of a city, or judge of a county court or court of common picas of any of the United States, not being of cocncil or attorney to either of the parties, or interested in the event of the cause, provided that a notification from the ma gistrate before whom the denofltion is to be taken to the adverse party, to be present at the taking of the fame, and to put interro gatories, if he think fit, be full made out and served on the ad verse 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 oi one day, Sundays exclusive, for every twenty miles travel. And in causes of admiralty and maritime jurifdidlion, 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 aforefaid fhali be taken before a claim be put in, the like notifica tion as aforefaid shall be given to the person having the agency or poflefflon of the property libelled at the time of the capture or seizure of the fame, if known to the libellant. And every per son deposing as aforefaid shall be carefully examined and caution ed, and sworn or affirmed to teftify the whole truth, and (hall fubferibe the testimony by him or her given after the fame (hall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the deposition so taken (hall be retained by such magistrate until he deliver the fame with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforefaid of their being taken, and of the notice if any given to the adverse party, be by him the said magistrate sealed Up and di rected to fueh court, and remain under his seal until opened in court. And any person may be compelled to appear and depose as aforefaid in the fame manner as to appear and teftify in court. And in the trial of any cause of admiralty or maritime jurifdic tioni in a diftritt court, the decree in which may be appealed from, it either party shall suggest to and fatisfy the court that pro bably it will not be in his power to produce the witnefTes there tcftifying before the circuit court (hould an appeal be had, and shall move that their testimony be taken in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the tfial of the fame, if it (hall appear to the fatisfaCfion of the court which shall try the appeal, that the witnefTes are then dead or gone out of the United States or to a greater distance than as aforefaid from the place where the court is fitting, or that by reason of age, sickness, bodily infirmi ty or imprifonmcnt they are unable to travel and appear at court, but not otherwise. And unless the fame shall be made to appear on thetrial of any cause, with refpeft to witnefTes whole deposi tions may have been taken therein, such depositions shall not be aomitted or used inthe cause. Provided, That nothing herein fhali be construed to prevent any court of the United States from grant ing a dedimus potejlatem to take depositions according to common when it maybe necefTuy to prevent a failure or delay of juflice ; which power they lhall severally poflfefs, nor to extend to depositions taken in ferpctuam rei memoriam, which if they relate to matters that may be cognizable in any court of the United States, a circuit court on application thereby made as a court of equity, may, according to the usages in chancery direct to be taken. ; And be it further enaSed, That where any suit shall be depend in <r , n any court of the United States, and cither of the parties (hall die before final judgment, the executor or administrator of such ucccaf d party who was plaintiff,- petitioner or defendant. in cafe tfie cauft of action doth by law survive, shall have f 1 power to prosecute of defend any 'such suit or a'ftion untiH l judgment ; and the defendant or defendants are hereby obliged t answer thereto accordingly ; and the court before whom f ? cafe may be depending is hereby empowered and dire&ed to |T' and determine the fame, and to render judgment for or acainft the executor or administrator, as the cafe may require And ! such executor or administrator having been duly lerved with'l fcire facias f rom the office of the cleikof the court where 1Y suit is depending twenty days beforehand, ihall neglect 0 r refuf to become a party to the suit, the court may render iud-menu gainst the eftateof the decealed party, in the fame manner as if the executor or administrator had voluntarily made himfelf a pa - ty to the suit: And the exccutor or administrator who shall be" come a party as aforefaid, lhall, upon motion to the court where the suit is depending, be entitled to a continuance of the fame until the next term of the said court. And if there be two more plaintiffs or defendants, and one or more of them (halldie if the cause of action lhall survive to the surviving plaintiff or plain' tiffs, or against the surviving defendant or defendants, the wist or action shall not be thereby abated ; but such death fa gelled upon the record, the action shall proceed at the suit of th" surviving plnntiff or plaintiffs against the surviving defendant or defendants. And be it father enafled, That no lummons, writ, declaration return, process, judgment, or other proceedings in civil caules in any of . the courts of the United States, shall be abated, arrelied quashed or revei fed, for any defect or want of form, but the laid courts refpeftively (hall proceed and give judgment according a.< therightof the cause and matter inlaw shall appear unto then without regarding any imperledlions, defers, or want of formin such writ, declaration or other pleading, return, process, judg ment, or course of proceeding whatsoever, except those only i n cases of demurrer, which the party demurring lhall specially fit down and txprefs together with his demurrer as the caufcthereof And the said courts refpcftivly (hall and may, bv virtue of this ast from time to time, amend all and every such imperft&ions, fefts and want of form, other than thole only which the party de murring shall exprefsas aforclaid, and may at any time perni't ei ther of the partu s to amend any defect in the process or pleadiu upon such conditions as the said courts refpeftively lhall in their difcrction, and by their rules preferibe. And be it further enaded, That for any crime or offence agair.!} the United Slates, the oftV»der may. by any jufticeor jud.e of the United States, or by any justice of the peace, or other flrate of any of the United States where he may be found agreea bly to the usual mode of proctfi against offenders infucli State and at the expcnce of the United States, be arrested, and impn fonedor bailed, as the cafe may be, for trial before such courtof the United States as by this ast has cognizance of the offence: And copies of the process shall be returned as speedily as may be into the clerk's office of fuchcourt, together with the recognizan ces of the witnesses for their appearance to teftify in the cafe; which recognizances the magi Urate before whom the examination shaM be, may require on pain of imprisonment. And if such commitment of the offender, or the witnesses shall be in a diftritt other than that in which the offence is to be tried, it shall be the duty of the judge of that diftrift where the delinquent is impri foncd, seasonably to issue, and of the marshal of the famediftrift to execute, a warrant for the removal of the offender, and the wit nesses, of either of them, as the cafe may be, to the diftrift ia which the trial is to be had. And upon allarrefts in criminalca fes, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a diftrift court, who shall exercise their difcrction therein, regarding the nature and circumftanccs of the offence, and of the evidence, and the usages of law. And if a person committed bf a justice of the supreme or a judge of a diftrift court foranof fencenot puuifhable with death, shall afterwards procure bail, and there be no judge of the United States in the diftrift to take the fame, it may be taken by any judge of the supreme, or fupen or court of law of such State. And be it further enafled, That the laws of the several States ex cept 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 U nited States in cases where t .ey apply- And be it further enacted, That in all the courts of the United States,the parties may plead and manage their own causes person ally or by the assistance of such counsel or attornies at law as by the rules of the said courts refpeftively shall be permitted to manage and conduct causes therein. And there shall be appointed in each d ifti ift a meet person learned in the law to ast as attorney for the United States in such diftrift, who shall befworn or affirmed to the faithful execution of his office, whose duty it shall be to pro secute in such diftrift all delinquents for crimes and offences,cog nizable under the authority of the United States, and all civil ac* tions in ivhichthe United States shall be concerned, except befoie the supreme court in the diftrift in which that court shall be hold en. And he shall receive as a compensation for his services iuch fees as shall be taxed therefor in the refpeftive courts before which the suits or prosecutions shall be. And there shall also be appoint en a meet person, learned in the law, to ast as attorney-general for the United States, who shall be sworn or affirmed, to a faith ful execution of his 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 uponquel tions of law when lequired by the President ot the United States, or when requested by the heads of any of the departments, touch ing any matters that may concern their departments, and sna leceive such compensation for his services as shall by law provided. FREDERICK AUGUSTUS MUHLENBERG, Speaker of the House of Rep)efentativfr JOHN ADAMS, Vice-President of the United States, and President of the Sentfa Approved, September 24, 1789. GEORGE WASHINGTON, PrefidtutjJ the United MONITORIAL. EXAMPLES are more powerful to persuade than either precept or force ; and should viituf be universally pra<ftifed by those whom the » or look up to as models, the converts to goo n > would not be so few as they now are : men . c^ ie have a bright exemplar before them. V e known our beloved President to be every 11 a that is great, heroic and magnanimous \V e read his moral precepts —and we have pratfiifing the morality of his writings. tive to the duties of his high station,_ e !1 ® thelefs gives conftantattendance on Divine (hip—nor does he ever permit feculai - break in upon the duties of the Sabbatn. alt love the President—greatly revere ' u '' us then imitate every trait in his chaiac e. is in our power, by copy inghis moral wit" shall find as he cxprefles it, an iiulil ou. ffeen nedtion between duty and advantage— ,j !S a just and religiouslife andconvei iatiori solid rewards, peace and happineiS. L' , Publifked by JOHN b'KNNO, No. 9> near tb. Nr.v-T»'^S*'