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within the said district or territory, as shall be named in the said commission, commanding such witness to appear and testify before the commissioner or commissioners, in such commission named, at a time and place in the subpoena to be stated; and if any witness, after being duly served with such subpoena, shall refuse or neglect to appear, or, after appearing, shall refuse to testify, (not being privileged from giving testimony,) such refusal or neglect being proved to the satisfaction of any judge of the court, whose clerk shall have issued such subpoena, he may thereupon proceed to enforce obedience to the process, or to punish the disobedience, in like manner as any court of the United States may do in case of disobedience to process of subpana ad testificandum, issued by such court; and the witness, in such cases, shall be allowed the same compensation as is allowed to witnesses attending the courts of the United States: Provided, That no witness shall be required to attend at any place out of the county in which he may reside, nor more than forty miles from his place of residence, to give his or her deposition, under this law.(1)
Whenever either of the parties shall apply to any judge of a court of the United States, in the district or territory of the United States, in which the place for taking such testimony may be, for a subpœna duces tecum, commanding the witness therein to be named to appear and testify before the said commissioner or commissioners, at the time and place in the said subpœna to be stated, and also to bring or carry with him, and produce to such commissioner or commissioners, any paper, writing, or written instrument, or book, or other documents supposed to be in the possession or power of such witness, such judge being satisfied, by the affidavit of the person applying, or otherwise, that there is reason to believe that such paper, writing, written instrument, book, or other document, is in the possession or power of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of the court, of which he is a judge, to issue such subpœna duces tecum, accordingly, and, if such witness, after being duly served with such subpœna duces tecum, shall fail to produce any such paper, writing, written instrument, book, or other document, being in the possession or power of such witness, and described in such subpoena duces tecum, before, and to such commissioner or commissioners, at the time and place in such subpoena stated, such failure being proved to the satisfaction of the said judge, he may proceed to enforce obedience to the said process of subpæna duces tecum, or to punish the disobedience, in like manner as any court of the United States may do in case of disobedience to a like process, issued by such court; and when any such paper, writing, written instrument, book, or other document, shall be produced to such commissioner or commissioners, he or they shall, at the cost of the party requiring the same, cause to be made, a fair and correct copy thereof, or of so much thereof as shall be required by either of the parties : Provided, That no witness shall be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of this act, unless his fees for going to, returning from, and one day's attendance at the place of examination, shall be paid or tendered to him at the time of the service of the subpœna.(2)
638. The acts of the legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto. The records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a
(1) Act 24th January, 1827, sec. 1.
(2) Ibid. sec. 2.
certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And such records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are, or shall be taken.(1)
639. All records and exemplifications of office books, which may be kept in any public office of any state, not appertaining to a court, shall be proved or admitted into any other court or office in any other state, by the attestation of the keeper of such records or books, and the seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is, or may be kept; or of the governor, the secretary of state, the chancellor or keeper of the great seal of the state, that such attestation is in due form, and by the proper officer; and such certificate, if given by the presiding justice of a court, shall be farther authenticated by the clerk or prothonotary of said court, who shall certify, under his hand and the seal of his office, that the presiding justice is duly commissioned and qualified; or if the certificate be given by the governor, the secretary of state, the chancellor or keeper of the great seal, it shall be under the great seal of the state in which the certificate is made. And the records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the state from whence the same are, or shall be taken.(2)
All the provisions of the acts of 1790 and 1804, (the two last preceding articles,) shall apply, as well to the public acts, records, office books, judicial proceedings, courts, and offices, of the respective territories of the United States, and countries subject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts, and offices, of the several states.(3)*
640. Any person claiming to be interested in, or entitled to land under a grant or patent from the United States, may apply to the treasury department for copies of papers filed and remaining therein, affecting the
(1) Act 26th May, 1790.—See Craig v. Brown, 1 Pet.C.C.352.—Ferguson v. Harwood, 7 Cr. 408.-Drummond's adm'rs. v. M'Gruder, 9 Cr. 122.-Mills v. Duryee,
7 Cranch 484.-Hampton v. M'Connel, 3
(2) Act March 27th, 1804, sec. 1.
An exemplification of an act of the legislature of a state under the great seal of the state, is evidence, though not attested by the governor, or any other principal officer of the state.-U. S. v. Johns, 4 Dall. 412. See upon this point, Jones v. Maffett, 5 Sergt. & Rawle, 523. Craig v. Brown, 1 Pet. 352. U. S. v. Amedy, 11 Wheaton, 392.
A certificate of an affidavit taken before a magistrate, must state the place where the affidavit was taken, so as to show that the magistrate had jurisdiction to administer the oath. If the place be omitted, it cannot be received as evidence on a bearing before a court of the United States, on a motion to commit on a criminal charge. Nor is such omission helped by the certificate being dated at a place where the magistrate had jurisdiction.-U. S. v. Burr, 96, 98.
A record certified as prescribed by article 639, is proof of the judgment of as high a nature, as the inspection of the record.-Mills v. Duryee, 7 Cr. 484.
The judgment of a state court has the same credit, validity, and effect, in any state, which it has in the state where it was pronounced; and whatever pleas would be good in a suit thereon in such state, and no others can be pleaded in any court in the United States.-Ibid. Hampton v. M'Connel, 7 Cr. 481. Armstrong v. Parsons' Exe. 2 Dall. 302. See Green v. Sarmiento, 2 Pet. C. C. Rep. 74, 155, 484. Mayhew v. Thatcher, 6 Wheat. 129, and see Sergt. Con. Law, 383, for authorities in
title to such land. And the secretary of the treasury shall cause such copies to be made out and authenticated under his hand and seal, for such person, which, so authenticated, shall be evidence equally as the original papers.(1)*
641. Jurors, in all cases to serve in the courts of the United States, shall be designated, by lot or otherwise, in each state, respectively, according to the mode of forming juries therein now practised, so far as the laws of the same shall render such design practicable by the courts or marshals of the United States; and the jurors shall have the same qualifications as are requisite for jurors 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 district from time to time as the court shall direct, so as shall be most favourable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burthen the citizens of any part of the district with such services.(2)
Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in his proper 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 deputy shall, by order of the court where such defect of jurors shall happen, return
(1) Act Jan. 23d, 1823.
(2) Act Sept. 24th, 1789, sec. 29.May 13th, 1800.
In all cases where farther proof is ordered by the supreme court, the depositions which shall be taken, shall be by a commission to be issued from that court, or from any circuit court of the United States.-Rule Sup. Court, 1816.
In all cases of admiralty and maritime jurisdiction, where new evidence shall be admissible in the supreme court, the evidence by testimony of witnesses shall be taken under a commission to be issued from that court, or from any circuit court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories to be filed by the party applying for the commission, and notice to the opposite party, or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross interrogatories within twenty days from the service of such notice. Provided, however, That nothing in this rule shall prevent any party from giving oral testimony in open court, in cases where by law it is admissible.-Ibid. 1817.
Whenever it shall be necessary or proper, in the opinion of the presiding judge in any circuit court, or district court, exercising circuit court jurisdiction, that original papers of any kind should be inspected in the supreme court, upon appeal, such presiding judge may make such rule or order for the safe keeping, transporting, and return of such original papers, as to him may seem proper, and this court will receive and consider such original papers in connexion with the transcript of the proceedings.-lbid.
In case of appeals, where the evidence is so contradictory and ambiguous, as to render a decision difficult, the supreme court will order further proof, in a revenue or instance cause.-The Samuel, 1 Wheat. 9.
When a deposition has been once read in evidence without opposition, it cannot be afterwards objected to as being irregularly taken.-Evans v. Hettich, 7 Wheat.
Depositions in cases pending in the supreme court, can be taken only under a commission. The thirtieth section of the judiciary act of 1789, does not apply to that court.-The Argo, 2 Wheat. 287. The London packet, 2 Wheat. 372. (Art. 634, and seq.)
The supreme court will not award a commission to a foreign country, to take testimony without the commissions being named.-Vanstophorst v. Maryland, 2 Dall.
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 may appoint.(1)
No special jurors shall be returned by the clerks of any of the circuit courts; but in all cases in which it was the duty of such clerks to return special juries, it shall be the duty of the marshal of the district where the circuit court may be held, to return special juries in the same manner, and form, as by the laws of the respective states, such clerks were required to return the same.(2)
The compensation to jurors in civil and criminal cases, (3) shall be, to each grand and other juror, for each day he shall attend in court, one dollar and twenty-five cents; and for travelling, at the rate of five cents per mile from their respective places of abode, to the place where the court is holden, and the like allowance for returning.(4)*
642. When a judgment or decree shall be reversed in a circuit court, such court shall proceed to render such judgment as the district court should have rendered; and the supreme court shall do the same on reversals therein, except where the reversal is in favour of the plaintiff or petitioner in the original suit, and the damages to be assessed, or matter to be decreed, are uncertain, in which case they shall remand the cause for a final decision. And the supreme court shall not issue execution in causes that are removed before them by writs of error, but shall send a special mandate to the circuit court to award execution thereupon.(5)†
(1) Act Sept. 24th, 1789, sec. 29.May 13th, 1830.
(2) Act 29th April, 1802, sec. 30.
(3) Ex parte Lewis, 4 Cr. 433.
* In a suit for land, in which the defendant pleads that the land lies in another state, the court of which has jurisdiction, and issue is joined on this plea, it is not a cause of challenge to the array, that the marshal who returned the jury is a citizen of the state in which the suit is brought. But if the jury be arrayed by an officer interested in the tract of land, for part of which the action is brought, under colour of the same title as the plaintiff's, the court will quash the array.—Fowler v. Lindsey, 3 Dall. 411.
The alienage of a juror in a civil cause in a circuit court, may be cause of challenge before the juror is sworn, but advantage cannot be taken of it after verdict. -Hollingsworth v. Duane, 4 Dall. 354.
An exception to the qualification of a talisman, as a juror, on the ground of his not being an inhabitant of the county, must be taken before he is sworn.-Mima and child v. Hepburn, 7 Cr. 290.
Upon a trial by jury, the court is bound to give an opinion, if required, upon any point relative to the issue.-3 Cr. 298, 4 Cr. 62.
↑ If a judgment be reversed, which has been rendered on a special verdict or case agreed, the court above will proceed to give judgment.-Hudson v. Guestier, 6 Cr. 285, note. But when a judgment is reversed on a bill of exceptions to instructions given to the jury, or because the special verdict is defective, there must be a new trial awarded by the court below, and the supreme court will direct it.Ibid. Lanusse v. Barker, 3 Wheat. 101. Otis v. Walter, 6 Wheat. 592. Chesapeake Ins. Co. v. Stark, 6 Cr. 268. Livingston v. Maryland Ins. Co. 6 Cr. 274.
If the judgment below be for the defendant in a special action of assumpsit, and it is reversed on a bill of exceptions, the supreme court will not assess the damages and render judgment therefor in favour of the plaintiff, although the parties below, after verdict, agree by writing sent up with the record, that in the alternative of reversal, the supreme court may assess the damages and enter judgment therefor.Lanusse v. Barker, 3 Wheat. 101.
If a case be removed from the circuit court, and the supreme court deciding on the merits, reverse the decree, and make a new decree, and issue its mandate requiring only the execution of its decree, the circuit court is bound to carry that decree into execution, and cannot entertain the question whether it have jurisdic
643. In all causes brought before either of the courts of the United States to recover the forfeiture annexed to any articles of agreement, covenant, bond or other specialty, where the forfeiture, breach, or non-performance shall appear, by the default or confession of the defendant, or upon demurrer, the court before whom the action is, shall render judgment therein for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, the same shall, if either of the parties request it, be assessed by a jury.(1)*
644. When in a circuit court judgment upon a verdict in a civil action shall be entered, execution may on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as they may judge proper, be stayed forty-two days from the time of entering judgment, to give time to file in the clerk's office of such court, a petition for a new trial. And if such petition be there filed within such term of fortytwo days, with a certificate thereon from either of the judges of such court, that he allows the same to be filed, which certificate he may make or refuse at his discretion, execution shall of course be stayed to the next session of said court. And if a new trial be granted, the former judgment shall be thereby rendered void.(2)
645. 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 such 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 of cases in demurrer which the party demurring shall specially set down and express, together with his demurrer as the cause thereof. And such courts, respectively, shall, 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
(1) Act 24th Sept. 1789, sec. 26.
(2) Ibid. sec. 18.
tion, although the jurisdiction of the court do not appear in the proceedings.Skillern's exrs. v. May's exrs. 6 Cranch, 267.
If the judgment below, on demurrer, be for the defendant, and the supreme court reverse the judgment, if the plaintiff in error obtain judgment in the court below, it will of course be with costs and in all cases of reversal, if the supreme court direct the court below to enter judgment for the plaintiff in error, the court below will, of course, enter the judgment with the costs of that court.-M'Knight v. Craig's admr. 6 Cranch, 187. Riddle v. Mandeville, 6 Cr. 86.
In joint admiralty suits against several, the decree may be several, or the damages may be apportioned.-Penhallow v. Doane, 3 Dall. 54.
In civil cases, judgment cannot be had against one of several joint defendants, until the others have been served with process, or have been proceeded against as far as the law authorizes, for the purpose of compelling an appearance.-Barton v. Petit, 7 Cranch, 194.
Where the supreme court is equally divided, the decree of the court below is of course confirmed, as to the point of division.-10 Wheat. 26. The Antelope, Etting v. Bank U. S. 11 Wheat. 59.
A verdict for the defendants subject to the opinion of the court upon the points reserved, does not authorize an absolute judgment for the defendants, unless the points reserved and the opinion of the court are stated upon the record.-Smith et al. v. Delaware Ins. Co. 7 Cranch, 434.