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ceeding in suits each of the said states, respectively, as are now used in the highest court, in courts of United States
of original and general jurisdiction of the same, in proceedings in equity, admitted into according to the principles, rules, and usages, which belong to courts of
equity, and in those of admiralty and maritime jurisdiction, according to
The laws of the United States authorize the courts of the Union so to alter the form of the process of execution used in the supreme courts of the states in 1789, as to subject to execution, issuing out of the federal courts, lands and other property not thus subject by the state laws in force at that time. Bank of the United States v. Halstead, io Wheat. 51; 6 Cond. Rep. 22.
A subpæna duces tecum may issue to the President of the United States. i Burr's Trial, 183.
A party cannot be arrested in Pennsylvania, on an attachment from the circuit court in Rhode Island, for contempt, in not appearing in that court after a monition served upon him in Pennsylvania, to answer in a prize cause depending in the court in Rhode Island. Ex parte Graham, 3 Wash. C. C. R. 456.
A writ of error does not lie to an order of the court below to stay the proceedings finally, upon saggestion of the attorney of the United States, in a case to which the United States are not parties; but the court will award a mandamus nisi, in the nature of a procedendo. Livingston v. Dorgenois, 7 Cranch, 577; 2 Cond. Rep. 618.
The marshal of the District of Columbia is bound to serve a subpana in chancery, as soon as he reasonably can; and he will, in case of neglect, be answerable to the plaintiff, who has, in consequence of such neglect, sustained any loss. Kennedy v. Brent, 6 Cranch, 187; 2 Cond. Rep. 345.
On a capias, in assumpsit against three, and one arrested, who gives bail, and non est inventus as to the others, if the party files his declaration and proceeds against the one arrested, he cannot afterwards bring in the others by alias capias, and make them parties to the suit. United States v. Parker, 2 Dall. 373.
An alias capias must be tested, as of the term to which the original writ was returned. Ibid.
A term cannot intervene between the teste and return of a writ of error. Hamilton r. Moore, 3 Dall. 371; 1 Cond. Rep. 168.
If the defendant below intermarries after the judgment, and before the service of the writ of error, the service of the citation upon the husband will be sufficient. Fairfar's Ex’rs v. Fairfax, 5 Cranch, 19; 2 Cond. Rep. 178.
There is no act of Congress which authorizes a circuit court to issue a compulsory process to the district court for the removal of a cause from that jurisdiction before a final judgment or decree is pronounced. If a certiorari should issue in such a case, the district court may and ought to refuse obedience to the writ: and after the cause is thus removed, either party may move for a procedendo, or pursue the cause in the district court, in like manner as if the record had not been removed. But, if instead of taking advantage of this irregularity, the defendant enter his appearance in the circuit coort, take defence and plead to issue, it is too late after verdict to object to the irregularity. The cause will be considered as an original one in the circuit court, made so by consent of parties, even though no declaration de novo should be filed in the circuit court. Patterson v. The United States, 2 Wheat. 221; 4 Cond. Rep. 98.
Whenever, by the state laws in force in 1789, a capias might issue from a state court, the acts of 1789 and 1792, extending, in terms, to that species of writ, must be understood to have adopted its use permanently in the federal courts. United States v. January, 10 Wheat. 66. In a note.
At an early period after the organization of the federal courts, the rules of practice in force in the state courts, which were similar to the English practice, were adopted by the judges of the circuit court. A subsequent change in the practice of the state courts, will not authorize a departure from the rules adopted in the circuit court. Anonymous, Peters' C. C. R. 1.
Whenever, by the laws of the United States, a defendant is to be arrested, the process of arrest employed in the state, shall be pursued. 2 Burr's Trial, 481.
Upon executing a writ of inquiry, in Virginia, in an action of assumpsit upon a promissory note, it is necessary to produce a note, corresponding with that stated in the declaration ; but it is not necessary to prove the note. Sheehy v. Mandeville, 7 Cranch, 208; 2 Cond. Rep. 476.
A party charged with a crime, even before indictment found, may have compulsory process for his witnesses. But his omitting to avail himself of this right is not such negligence as will deprive him of the benefit of having his cause postponed, if his witnesses be absent; but it will justify the court in imposing terms on him. United States v. Moore, Wallace's C. C. R. 23.
The process act of Congress, of 1828, was passed shortly after the decision of the Supreme Court of the United States, in the case of Wayman v. Southard, and the Bank of the United States v. Halsted, and was intended as a legislative sanction of the opinions of the court in those cases. The power given to the courts of the United States, by this act, to make rules and regulations on final process, so as to con. form the same to the laws of the states on the same subject, extends to future legislation; and as well to the modes of proceedings on executions, as to the forms of writs. Ross & King v. Duval et al., 13 Peters, 45.
All proceedings for attachments are on the civil side of the courts, and are to be entitled with the names of the parties, until an attachment issues; after which they are on the criminal side. United States v. Wayne, Wallace's C. C. R. 134.
The courts of chancery of the United States will, under circumstances, order a commission of rebellion, to be returnable forth with. Ibid.
The judiciary act of 1789, ch. 20, does not contemplate compulsive process against any person in any district, unless he be an inhabitant of, or found within, the same district at the time of serving the writ. Picquet v. Swan, 5 Mason's C. C. R. 35.
The act of Massachusetts of 1797, ch. 50, prescribing the modes of serving process,does not apply to a case where the defendant has been an inhabitant, but at the time of the suit brought has his actual domicil in another state or country. lbid.
Under the statute of Massachusetts of 1823, ch. 142, giving relief against fraud to secure attaching creditors, it is not necessary that the second attachment should be returnable to the same term of tho
ments are a lien
the principles, rules, and usages, which belong to courts of admiralty, since 29th Sept. as contradistinguished from courts of common law, except so far as may
1829. have been otherwise provided for by acts of Congress; subject, however,
Subject, howto such alterations and additions, as the said courts of the United States ever, to such respectively shall, in their discretion, deem expedient, or to such regula
alterations, &c. tions 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. Sec. 2. And be it further enacted, That, in any one of the United
Where judgStates, where judgments are a lien upon the property of the defendant, upon the proand where, by the laws of such state, defendants are entitled in the courts perty of the de. thereof, to an imparlance of one term or more, defendants, in actions in fendant. the courts of the United States, holden in such state, shall be entitled to an imparlance of one term.
Sec. 3. And be it further enacted, That writs of execution and other When writs final process issued on judgments and decrees, rendered in any of the of execution and
other final procourts of the United States, and the proceedings thereupon shall be the
cess issued on same, except their style, in each state, respectively, as are now used in judgments, &c., the courts of such state, saving to the courts of the United States in rendered in any those states, in which there are not courts of equity, with the ordinary of the United equity jurisdiction, the power of prescribing the mode of executing their States, &c. decrees in equity by rules of court: Provided, however, That it shall be
Proviso. 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.
of the courts
court as the first attachment. Query, If the plaintiff must, in all cases under that act, sign and make oath to his petition to be admitted to defend against the first attachment, or if he is abroad, it may be done by his agent. Lodge v. Lodge, 5 Mason's C. C. R. 407.
Pennsylvania. Levy and condemnation, under an execution, keep a judgment alive, and preserve the lien without a scire facias. United States v. The Mechanics' Bank, Gilpin's D. C. R. 54.
Where there is a scire facias to revive a judgment, the defendant cannot avail himself of matters of defence which occurred previous to the original judgment. United States v. Thompson, Gilpin's D. C. R. 622.
Laws which relate to practice, process, or modes of proceeding before or after judgment, are exceptions to the 34th section of the judiciary act of 1789, as Congress have legislated on the subject. The Supreme Court of the United States have established the distinction to be this : State laws, which furnish the court a rule for forming a judgment, are binding on the federal courts, not laws for carrying that judgment into execution; that is governed by the acts of Congress, and the rules of practice adopted in pursuance thereto. Thompson v. Phillips, Baldwin's C. C. Ř. 274.
The act of the legislature of Ohio, of February, 1820, relative to proceedings against parties to promissory notes, by which all the parties to a note might be proceeded against in one suit, was a very wise and benevolent law, and its salutary effects produced its immediate adoption into the practice of the courts of the United States, and the suits have, in many instances, been prosecuted under it. Fullerton 1. The Bank of the United States, 1 Peters, 604.
Although the act of the legislature of Ohio, regulating the mode of proceeding in actions on promissory notes, was passed after the making of the note upon which this action was brought, yet the circuit court of the United States for the district of Ohio, having incorporated the action under that statute, with all its incidents, into its course of practice, and having full power by law to adopt it, there does not appear any legal objection to its doing so, in the prosecution of the system under which it has always acted. Yeaton v. Lenox, 8 Peters, 123.
The process act of 1828 expressly adopts the mesne process, and modes of proceeding in suits at common law, then existing in the highest state court, under the state laws; which of course included all the regulations of the state laws as to bail, and exemptions of the party from arrest and imprisonment. In regard, also, to writs of execution, and other final process, and the proceedings thereupon;" it adopts an equally comprehensive language, and declares they shall be the same as were then used in the courts of the state. Beers v. Haughton, 9 Peters, 329.
The circuit court of each district, sit within and for that district, and are bounded by its local limits. Whatever may be the extent of the jurisdiction of the circuit court over the subject matter of suits, in respect to persons and property, it can only be exercised within the limits of the district. Congress might have authorized civil process from any circuit court to have run into any state of the Union. It has not done so. It has not, in terms, authorized any civil process to run into any other district; with the single exception of subpænas to witnesses within a limited distance. In regard to final process, there are two cases, and only two, in which writs of execution can now by law be served in any other district than that in which the judgment was rendered ; one in favour of private persons in another district of the same state;
and the other in favour of the United States, in any part of the United States. Toland 1. Sprague, 12 Peters, 300. Vol. IV.-36
2 A 2
Nothing in this act to be construed to extend to any
Sec. 4. And be it further enacted, That nothing in this act contained shall be construed to extend to any court of the United States now established, or which may hereafter be established, in the state of Louisiana. (a)
APPROVED, May 19, 1828.
purposes. Secretary of Be it enacted by the Senate and House of Representatives of the United the Treasury States of America, in Congress assembled, That the Secretary of the empowered to provide for Treasury be, and he is hereby, empowered to provide, by contract, for building light- building lighthouses and light vessels, and erecting beacons, and placing houses, &c.
buoys, on the following sites and shoals, to wit: At Dice's Head. In the state of Maine, a lighthouse at Dice's Head.
On Nobsque In the state of Massachusetts, a lighthouse on Nobsque point; one on point.
the Point of Flats, at the entrance of Edgartown harbour; a lighthouse
on Dumpling rock, south of the mouth of Aponeganset river. On Nayat In the state of Rhode Island, a lighthouse on Nayat point; and two point, &c.
pyramids or spindles, to wit: one on a reef of rocks, under water, oppo site to Pawtuxet, and one on a reef of rocks, opposite the Punham Rock,
in the northern part of Narraganset bay. Beacon light In the state of Connecticut, a beacon light on or near the Spindle on Spindle Rock, at the mouth of Black Rock harbour. Rock. Two light
In the state of New York, two small lighthouses, to wit: one on the houses north of flats, two miles north of Kinder Hook, upper landing, called the Drowned Kinder Hook, Lands, and one on the point of the island on the west side of the chan&c.
nel, opposite the lower landing. A lighthouse at a proper site, at or near
Portland, on Lake Erie. Two light- In the state of Maryland, two lighthouses; one on Little Walt's Island, houses on Little Watt's Island,
at the south-eastern extremity of Tangier Sound; and the other on Clay Island, at the northernmost extremity of the same sound; and a beacon
light, or a small lighthouse on Point Lookout, in the Chesapeake bay. Lighthouse In the state of Virginia, a lighthouse on Smith's point, at the mouth on Smith's
of the Potomac, in the Chesapeake bay. point.
Light vessel In the state of North Carolina, a light vessel, to be substituted for the to be substitu- lighthouse heretofore directed to be built at the Point of Marsh, at the ted, &c.
mouth of Neuse river. Beacon light- A beacon light, or small lighthouse, at a proper site on Pamptico point; house on Pamp- and one at the south entrance of Roanoake marshes. tico Sound, &c.
Lighthouse in In the state of Alabama, a lighthouse at or near Choctaw point, in Mobile bay, &c. Mobile bay; and an iron spindle on Sand island, on the outer bar of
Mobile bay. Two light- In the territory of Michigan, two lighthouses; one at Otter creek houses, one at Otter creek
point, at the head of Lake Erie, and the other on the Island of Bois point, &c. Blanc, near Michilimacinac.
Lighthouse, In the territory of Florida, a lighthouse at the mouth of St. John's river St. John's river.
Sec. 2. And be it further enacted, That the following sums of money Sums appropriated to be be appropriated and paid out of any moneys in the treasury not otherwise paid from the appropriated, for the purpose of carrying the provisions of this act into treasury.
effect, viz: Lighthouse
For building a lighthouse on Dice's Head, five thousand dollars. on Dice's Head. Lighthouse
For the lighthouse on Nobsque point, three thousand dollars; and for on Nobsque the pier and lighthouse at the entrance of Edgartown harbour, five thouRock, &c.
sand five hundred dollars. Lighthouse, Dumpling rock.
For a lighthouse on Dumpling rock, four thousand dollars. (0) See an act to regulate the mode of practice in the courts of the United States in Louisiana, May 26, 1824, ch. 181, and notes to that act.
on Little Watt's
For a lighthouse on Nayat point, three thousand five hundred dollars; Lighthouse on and for two pyramids or spindles, in Narraganset bay, two thousand dol- Nayat point. lars.
For a beacon-light on or near Spindle rock, at the mouth of Black Beacon-light Rock harbour, six thousand two hundred dollars.
on or near Spin
dle rock. For two small lighthouses in Hudson river, eight thousand dollars. Two light
For a lighthouse at or near Portland, on Lake Erie, five thousand dol- houses in Hudlars; one thousand dollars for removing obstructions in order to make the
Lighthouse light of the lighthouse at the mouth of Genessee river, on Lake Ontario, near Portland. visible at a distance.
For erecting a tower and placing a bell thereon with machinery, near A tower, &c., the lighthouse on Pool's Island, Chesapeake bay, two thousand eight hun- near the Light
Pool's dred dollars.
island, &c. For the lighthouse on Little Watt's island, six thousand five hundred Lighthouse dollars; and for that on Clay island, six thousand five hundred dollars;
Island, &c. and for a beacon-light, or small lighthouse, on Point Look Out, four thousand five hundred dollars.
For the lighthouse on Smith's point, seven thousand five hundred On Smith's dollars.
point. For a beacon-light or lighthouse on Pamptico point, five thousand dol- Beacon-light lars; and for one at the entrance of Roanoke Marshes, five thousand or lighthouse on
Pamptico point, dollars; for a light vesse), to be placed at or near the point of Marsh Shoal, at or near the mouth of Neuse river, six thousand five hundred dollars; this sum to be in addition to the sum already appropriated for 1827, ch. 47. building a lighthouse at the point of Marsh, at the mouth of the said river, for which lighthouse the light vessel is substituted. For a lighthouse at Otter Creek point, five thousand dollars.
Otter Creek For one on Bois Blanc, five thousand dollars.
On Bois Blanc. For one at St. John's river, six thousand five hundred dollars; and for
St. John's one on Choctaw point, six thousand five dollars.
river. For placing four buoys in Hudson river, on the following sites: One Four buoys in on a reef of rocks opposite Van Wee's point; one on a reef of rocks the Hudson rinorth of Constitution point; one on a reef of rocks, the south point of Conner's Hook island; and one on a wreck of a vessel sunk in Haverstraw bay; three hundred dollars.
Two buoys For placing two buoys near the channel, to the eastward of the
the Pea Pea Paich, in the river Delaware, viz: one on the north-east point of Patch in the rithe Pea Patch; and one on a small shoal in the passage, four hundred ver Delaware. dollars.
For spindles or monuments, and buoys, to render the navigation of Spindles, &c. Kennebec bay and river safe, fifteen hundred dollars.
Kennebec bay. For placing a buoy on Killpond bar, in Buzzard's bay, sixty dollars. Buoy on Kille For placing twenty buoys, at proper sites, in the river Teche, in the pond bar
Twenty buoys state of Louisiana, two thousand six hundred dollars.
in Louisiana. For an iron spindle on Sand Island, on the bar of Mobile bay, six hun- Iron spindle dred dollars.
on Sand Island. For five buoys, in the channel, between Key West and the islands to
Five buoys in
the channel bethe westward of it and the main, leading from the Gulf Stream to the tween Key bay of Mexico, seven hundred dollars.
West. For two buoys at the mouth of St. John's river, territory of Florida,
Two buoys at
the mouth of St. one hundred and sixty dollars.
John's river. Sec. 3. And be it further enacted, That the said secretary be empowered as aforesaid, and that the following sums be appropriated and paid as aforesaid, for the purposes hereafter designated, viz :
To build a lighthouse, at a proper site, near St. Mark's harbour, in Lighthouse Florida, the sum of six thousand dollars.
near St. Mark's
harbour. To build a lighthouse on a ledge of rocks,called the Whale’s Back, in the
Lighthouso at harbour of Portsmouth, in the state of New Hampshire, eight thousand Portsmouth. dollars, in addition to the former appropriation for that object.
1827, ch. 47.
Lighthouse near the mouth of Duck creek.
Salaries of the respective keepers of lighihouses.
To build a lighthouse near the mouth of Duck creek, adjoining Delaware bay, the sum of four thousand dollars.
Sec. 4. And be it further enacted, That, from and after the passage of this act, the Secretary of the Treasury be, and he is hereby, authorized and empowered to regulate and fix the salaries of the respective keepers of lighthouses, in such manner as he shall deem just and proper : Provided, The whole sum allowed shall not exceed an average of four hundred dollars to each keeper.
Sec. 5. And be it further enacted, That the sum of five thousand two hundred dollars be, and the same is hereby, appropriated, out of any money in the treasury not otherwise appropriated, in addition to the sums heretofore appropriated, to pay the salaries to the several keepers of the lighthouses within the United States; to be applied under the direction of the Secretary of the Treasury, in conformity to the authority in him vested by the third section of this act.
APPROVED, May 23, 1828.
May 23, 1828. CHAP. LXX.–An Act supplementary to the sereral ucts providing for the
settlement and confirmation of private land claims in Florida. (a) Act of May 8,
Be it enacted by the Senate and House of Representatives of the United 1822, ch. 129.
Act of March States of America, in Congress assembled, That the three claims to land 3, 1823, ch. 29. in the district of West Florida, contained in the reports of the commisThe three
sioners, and numbered four,  eight,  and ten,  excluding from claims to land in the district of the latter the land contained in certificate, and in the plats A. and C., and West Florida, the claims contained in the reports of the commissioners of East Florida, contained in the and in the reports of the receiver and register, acting as such, made in reports of the commissioners, pursuance of the several acts of Congress providing for the settlement numbered 4, 8, of private land claims in Florida, and recommended for confirmation by and 10, exclud said commissioners, and by the register and receiver, be, and the same
. ter the land con- are hereby, confirmed to the extent of the quantity contained in one tained in certi- league square, to be located by the claimants, or their agents, within the ficate, and in limits of such claims or surveys filed, as aforesaid, before the said comthe plats A. and C., &c., con
missioners, or receiver and register, which location shall be made within firmed.
the bounds of the original grant, in quantities of not less than one sec
tion, and to be bounded by sectional lines. No more
Sec. 2. And be it further enacted, That no more than the quantity than the quan
of acres contained in a league square, shall be confirmed within the tity of acres contained in a
bounds of any one grant: and no confirmation shall be effectual until league square
all the parties in interest, under the original grant, shall file with the shall be con- register and receiver of the district where the grant may be situated, a firmed within
full and final release of all claim to the residue contained in the grant: the bounds of any one grant,
and where there shall be any minors incapable of acting within said &c.
territory of Florida, a relinquishment by the legal guardian shall be sufficient; and thereafter the excess in said grants, respectively, shall be
liable to be sold as other public lands of the United States. All the decis Sec. 3. And be it further enacted, That all the decisions made by the sions made by register and receiver of the district of East Florida, acting ex officio, as &c., of the dis- commissioners, in pursuance of an act of Congress, approved the eighth trict of East Flo- of February, one thousand eight hundred and twenty-seven, authorizing rida, as com- them to ascertain and decide claims and titles to lands in the district missioners under act of
aforesaid, and those recommended for confirmation under the quantity Feb. 8, 1827, of three thousand five hundred acres, contained in the reports, abstracts, ch. 9, recom- and opinions, of the said register and receiver, transmitted to the Secremended for confirmation, con
tary of the Treasury, according to law, and referred by him to Congress, firmed. on the twenty-ninth January, one thousand eight hundred and twenty
(a) Soc notes of the decisions of the Supreme Court upon claims and titles to land in the territory of Florida, vol. iii. 709.