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which made the order, such court or any judge thereof, may direct that an exoneretur be entered upon the bail piece where special bail shall have been found, or otherwise to discharge such bail.(1)
The marshal or his deputy serving such order shall therefor receive the same fees, as for the service of an original process, commitment thereon to the gaol, and the return thereof.(2)
In every case of commitment by virtue of such order, the person committed shall, unless sooner discharged by law, be holden in gaol until final judgment be rendered in the suit in which he procured bail, and sixty days thereafter if such judgment 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.(3)*
628. In 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 such courts, respectively, shall be permitted to manage and conduct causes therein.(4)†
629. 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.(5)‡
630. Whenever causes of like nature, or relative to the same question, shall be pending before a court of the United States, or of the territories thereof, such court may make such orders and rules concerning proceedings therein, as may be conformable to the principles and usages belonging to courts, for avoiding unnecessary costs or delay in the administration of jus tice; and accordingly, causes may be consolidated as to the court shall seem reasonable. And if any attorney, proctor, or other person admitted 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 costs unreasonably and vexatiously, such person may be required, by order of court, to satisfy any excess of costs so incurred.(6)
631. Where any suit shall be depending in any court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party who was plaintiff, petitioner, or defendant, in case the cause of action doth by law survive, may prosecute or defend such suit until final judgment; and the defendant or defendants shall answer thereto accordingly; and the court before whom such cause may be depending, shall hear and determine the same, and render judgment as the case
(1) Act 2d March, 1799, sec. 1. (2) Ibid. sec. 2.
(3) Ibid. sec. 3.
(4) Act Sept. 24th, 1789, sec. 35.
The circuit court has no authority to bring up by habeas corpus a defendant confined in a state gaol, by civil process under state authority, in order to surrender him in the circuit court in discharge of his bail, who were bound in recognizance for his appearance there. Nor will it discharge the defendant from his recognizance.-U.S. v. French, 1 Gall. 1.
In the supreme court all evidence on motions for a discharge upon bail, must be by deposition, and not viva voce.-Rule Sup. Ct. Feb. Term, 1795.
†The appearance of the defendant by attorney, cures all irregularity of process.-Knox v. Summers, 3 Cranch, 496; 4 Cranch, 421.-Pollard v. Dwight, 4 Cr. 421.
* The Act of 19th May, 1828, does not extend to Louisiana.
may require. And if such executor or administrator having been duly served with a scire facias from the office 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 estate of the deceased party, in the same manner as if the executor or administrator had voluntarily made himself a party to the suit: And the executor or administrator who shall become a party, shall, upon motion to the court, be entitled to a continuance of the cause until the next term of the 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 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.(1)*
632. Subpoenas for witnesses who may be required to attend a court of the United States, in any district, 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 therefrom.(2)†
(1) Act 24th Sept. 1789, sec. 31.
tapsico In. Co. v. Southgate & al. 5 Pet. 604.
* Whenever pending a writ of error, or appeal in this court, either party should die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily 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 upon 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 defendant in error, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and on hearing, have the same reversed, if it be erroneous. Provided, however, that a copy of every such order shall be printed in some newspaper at the seat of government, in which the laws of the United States shall be printed by authority, three successive weeks, at least sixty days before the beginning of the term of the supreme court then next ensuing.-Rule Sup. Ct. Feb. 1821. Green v. Watkins, 6
The party opposed to the executor, &c. may require the production of the letters testamentary, and contest the fact of executorship, before the order of the court is made for the admission of the executor as a party, but not afterwards, unless the order have been made improperly, and by surprise on the court.-Wilson v. Codman's Exrs. 3 Cranch, 193.
If the administratrix of the plaintiff in whose name the suit had been revived by scire facias upon the death of the intestate, after issue joined, intermarry, and such intermarriage be pleaded puis darrein continuance, the scire facias is thereby abated, but not the original suit; and a new scire facias may issue to revive the original suit, in the name of the husband and administratrix, that she may prosecute the suit to final judgment.—M'Caul v. Lecamp, 2 Wheat. 111.
In real actions the death of either party, before judgment, abates the suit; and if the heirs be made parties by order of the court in which the suit is brought, and judgment be entered against them by default, for want of a plea, upon a summons and count against the original defendant, they may sue out a writ of error and reverse the judgment.-Macker's heirs v. Thomas, 7 Cr. 530. Green v. Watkins, 6 Wheat. 262.
Admiralty suits do not abate by the death of a party.-Penhallow v. Duane, 3 Dall. 86.
† A subpoena will lie (it seems) to the officers of government from the highest to the lowest.-U. S. v. Caldwell, 2 Dall. 333. U. S. v. Cooper, 4 Dall. 341. U. S. v. Burr, 184, 187, 189..
A subpoena duces tecum may issue, if there be reason to suppose that the evidence
633. The compensation to a witness summoned in any court of the United States, shall be, for each day he shall attend court, one dollar and twenty. five cents, and for travelling, at the rate of five cents per mile, from the place of his abode to the place where the court is holden, and the like allowance for returning.(1)
The marshals for the several districts and territories of the United States, shall pay such persons as may have been or shall hereafter be imprisoned on account of inability to give security in a recognizance for their attendance as witnesses 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 process. But such allowance shall be first fixed and certified by the proper judge.(2)
634. 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 equity and of admiralty and maritime jurisdiction, as of actions at common-law.(3)
635. When the testimony of any person shall be necessary in any civil cause depending in any district, in such court, 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 than one hundred miles, before the time of trial, or is ancient, or very 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
(1) Act 28th Feb. 1799, sec. 6. (2) Act May 20th, 1826.
(3) Act Sept. 24th, 1789, sec. 30.
sought thereby is material and ought to be admitted. Such subpoena lies to public officers for papers, &c. in their possession, material to the defence of one charged with crime. But such materiality must appear by affidavit to the satisfaction of the court. If such papers contain matter unessential to the defence, and requiring concealment, that must appear on the return of the subpoena.—Ibid.
Process of subpoena issuing out of the supreme court in any suit in equity, shall be served on the defendant six days before the return day of the process; and if the defendant, upon such service, should not appear at the return day contained in the subpoena, the complainant may proceed ex parte.—Rule sup. ct. Aug. 7, 1796. An attachment will not be granted against non-attending witnesses, though material, who have not been subpoenaed in the cause in which it is applied for, although they were subpoenaed in other causes to the same term.-United States v. Caldwell, 2 Dall. 333.
An attachment against a witness for non-attendance, pursuant to a subpœna, must be served by the marshal, it being the process of the court regularly issuing for the administration of justice.-Ibid. U. S. v. Burr, 365.
The circuit court will discharge a witness attending on subpoena from arrest made under a process from a state court.-Hurst's case, 4 Dall. 387.
If the party, against whom an attachment has issued for contempt, by his affidavit and answers to interrogatories discharge himself of the contempt, no further proceedings can be had against him on the attachment; but if perjury appear, he will be recognised to answer.-U. S. v. Dodge, 2 Gall. 313.
Motions and affidavits for attachment in civil suits, are proceedings on the civil side of the court until the attachments issue, and are to be entitled in the names of the parties; but as soon as the attachment issues, the proceedings are on the criminal side.-U. S. v. Wayne, Wall. 134.
A rule upon a party, to show cause why an attachment should not issue against him for a contempt, must be served personally; but if he evade the service, or other circumstances render it proper, the court will order that service at his last place of abode shall be deemed sufficient.-Hollingsworth v. Duane, Wall. 141.
Before the court will award an attachment against a witness, to compel his attendance, if, from circumstances, a presumption arises against his materiality, an affidavit as to his materiality will be required.-Trial of Smith and Ogden, 9, 80.
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, 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 thereof, 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 being notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel.(1)
In causes of admiralty and maritime 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 to put in, the like notification shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure thereof, if known to the libellant.(1)
And every person so deposing, shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him given, after it shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. Depositions so taken shall be retained by such magistrate, until he deliver them, 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.(1)
Any person may be compelled to appear and depose as aforesaid, in the same manner as to appear and testify in court. And in the trial of any cause of admiralty 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, there 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 had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court, which shall try the appeal, 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, 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, Any court of the United States may grant a dedimus potestatem, to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice.(1)
The circuit court may, according to the usages in chancery, on application thereto made as a court of equity, direct depositions to be taken in perpetuam rei memoriam, relating to matters cognizable in any court of the United States.(1)*
(1) Act Sept. 24th, 1789, sec. 30. See The Samuel, 1 Wheat. 9.
• The authority given by this section to take deposition of witnesses, in the absence of the opposite party, being in derogation of the rules of the common law, is always construed strictly; and all the requisites of the law must be complied with, before such testimony is admissible. The certificate of the magistrate taking the
636. In all suits in equity, it shall be in the discretion of the court, upon the request of either party, to order the testimony of the witnesses therein to be taken by depositions, which depositions shall be taken in conformity to the regulations prescribed by law for the courts of the highest original jurisdiction in equity, in cases of a similar nature, in that state in which the court of the United States may be holden. But nothing herein contained shall extend to the circuit courts which may be holden in those states, in which testimony in chancery is not taken by deposition.(1)*
637. Whenever a commission shall be issued by any court of the United States, for taking the testimony of a witness 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 enjoined and required, upon the application of either of the parties in the proceeding, in which such commission shall have been issued, as his agent, to issue subpoena for such witness, residing or being
(1) Act April 29th, 1802, sec. 25.
deposition is good evidence of the facts therein stated, so as to entitle the deposition to be read to the jury, if all the necessary facts are there sufficiently disclosed. It should plainly appear from such certificate that all the requisites of the statute have been complied with; and no presumption will be admitted to supply any defects in taking the deposition.-Bell v. Morrison & al. 1 Pet. 357.
The provisions of this section are not confined to depositions taken within the district where the court is held.-5 Peters, 604. Patapsco In. Co. v. Southgate & al. See that case for further construction of this section.
The provisions of this section as to depositions de bene esse, does not apply to cases pending in the supreme court, but only in cases in the district and circuit courts. Testimony by deposition can be regularly taken for the supreme court only under a commission issued according to its rules.-The Argo, 2 Wheat. 287.
* In any cause before a court of the United States, such court may, in its discretion, admit in evidence any deposition taken in perpetuam rei memoriam, which would be admissible in a court of the state wherein such cause is pending, according to the laws thereof.-Act Feb. 20, 1812, sec. 3.
In cases of depositions taken by dedimus potestatem, the state laws regulate the notice; if they do not authorize notice to be given to the attorney at law, a deposition taken under such notice, cannot be read in evidence.-Buddicam v. Kirk, 3 Cranch, 297.
Depositions taken under a dedimus potestatem, are never considered as taken de bene esse, but are absolute whether the witness reside beyond the process of the court, or within it. Hence, if a commission be issued by consent, both parties naming commissioners and filing interrogatories, the depositions taken under it are evidence, though the witness reside only thirty-three miles from the place of holding the court.-Sergeant v. Biddle, 4 Wheat, 508.
The court may allow interrogatories or commissions to be filed at any time, a proper case being shown; but will, if circumstances require it, order the interrogatories to be filed previous to issuing the commission, and direct otherwise, specially, the manner of executing the commission.-Cunningham v. Otis, 1 Gall. 166. Letters rogatory, according to the form and practice of the civil law, may be issued by the courts of the United States, for obtaining the testimony of witnesses in a foreign country, where an attempt to take such testimony by commission in the ordinary way, is deemed an interference with the rights of the judicial tribunal in such foreign country.-Nelson v. U. S., 1 Pet. 237.
A commission is sufficiently executed if all the interrogatories be substantially, though not formally answered.-Ibid.
The opening of a deposition taken de bene esse, by the clerk out of court, under the supposition that it was a letter, is a fatal objection to its being read in evidence. -Beale v. Thompson, 8 Cranch, 71.
If depositions be not taken in conformity with the acts of congress, and the rules of the court, they cannot be read in evidence, though taken according to the practice of the state courts, unless the parties waive the objection, or by previous consent have agreed to have them taken and made evidence.-Evans v. Eaton, 7 Wheat. 426.