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Commission to take Testimony.

tions de bene esse, being confined to those taken | pointed by the court; and although they may under the enacting part of the section. Ser- be nominated by the parties, they are not their geant's Lessee v. Biddle et al., 4 Wheat. 508; 4 agents. Ibid. Cond. Rep. 522.

13. A commission was issued in the name of Richard M. Meade, the name of the party being Richard W. Meade. This is a clerical error in making out the commission, and does not affect the execution of the commission. Keene v. Meade, 3 Peters, 6.

14. It is not known that there is any practice in the execution or return of a commission, requiring a certificate, in whose handwriting the depositions returned with the commission were set down. All that the commission requires is, that the commissioners, having reduced the depositions taken by them to writing, should send them with the commission, under their hands and seals, to the judges of the court out of which the commission issued. But it is immaterial in whose handwriting the depositions are; and it cannot be required that they should certify any immaterial fact. Ibid. 8.

15. A certificate by the commissioners, that A. B., whom they were going to employ as a clerk, had been sworn, admits of no other reasonable interpretation, than that A. B. was the person appointed by them as clerk. Ibid. 9.

16. It is not necessary to return with the commission the form of the oath administered by the commissioners to the witnesses. When the commissioners certify the witnesses were sworn, and the interrogatories annexed to the commission were all put to them, it is presumed that they were sworn and examined as to all their knowledge of the facts. Ibid. 10.

17. Circuit court of Pennsylvania.-The plaintiffs issued a commission to take testimony abroad, and the defendant joined in the same, by filing cross-interrogatories: but the plaintiffs afterwards found a witness to prove the facts they desired to establish by the commission, and they abandoned it. The court said: a trial under those circumstances, would be a surprise on the defendant. Le Roy v. The Delaware Ins. Co., 2 Wash. C. C. R. 223.

18. If the cross-interrogatories are not put to a witness examined under a commission to take testimony, the examination of the witness cannot be read on the trial. Gilpins v. Consequa, Peters' C. C. R. 86.

19. It is no objection to a deposition taken under a commission to Holland, that it is in the English language; the commissioners before whom it was taken being Dutchmen, and not stating that they had the assistance of an interpreter. Ibid.

20. It is not an objection to the evidence taken under a commission, that the cross-interrogatories were not put to each witness, immediately after he had answered the chief interrogatories, but were put to him after all the chief interrogatories had been answered by all the witnesses. Ibid.

23. If all the interrogatories which accompany a commission, are substantially, although not severally answered, it is sufficient; and this principle applies as well to the answers given to the interrogatories annexed to letters rogatory, as to answers under a commission. Nelson v. The United States, Peters' C. C. R. 235.

24. Pennsylvania.-The circuit court of the United States will issue letters rogatory, for the purpose of obtaining the testimony of witnesses, when the government of the place where the evidence is to be obtained, will not permit a commission to be executed. Ibid.

25. The testimony of a witness, taken under a commission, directed to five persons, or any one of them, cannot be read in evidence if another person than the commissioner, and who was not named in the commission, assisted in taking the examinations of the witnesses. Willings v. Consequa, Peters' C. R. R. 302.

26. A commission, directed to A, to be executed in one county, cannot be executed by him in another. The commissioner ought to state when and where the commission was executed. He acts under a special authority. The depositions were rejected, being obnoxious to this principle. Bodereau et al. v. Montgomery et al., 4 Wash. C. C. R. 186.

27. If the general interrogatory, under a commission, is not answered, it is a fatal objection to the whole deposition; all the interrogatories must be substantially answered. Dodge v. Israel, 4 Wash. C. C. R. 323.

28. Query, If it is not an objection to a deposition, that it was committed to writing by the witness before he was sworn; and whether exhibits, referred to in a deposition, ought not to be annexed t the commissioners to the deposi tion, or so dugnated by them as to leave no reasonable doubt of their identity? Ibid.

29. If reasonable notice of formal objections to the depositions taken under a commission, be not given, the court may be induced to set aside a verdict or nonsuit rendered in consequence of this objection, without costs. Ibid.

30. Depositions taken under a commission to another state, cannot be read, unless proof be given that a copy of the interrogatories, and a written notice of the rule for a commission, and the names of the commissioners, was served on the opposite party or his attorney, according to one of the rules of the circuit court of Pennsyl vania. Lessee of Rhoads & Snyder v. Selin, 4 Wash. C. C. R. 715.

31. It is no objection to a deposition, that a material part of the evidence comes out under the general interrogatory. Ibid.

32. A commission was issued under a rule to take depositions at Selinsgrove, and was endorsed "commission to Selinsgrove." It should appear by the certificate of the commissioners, or otherwise, that the depositions were taken at the place indicated, or they cannot be read. Ibid. 33. Affidavits to be used as further proof, in 22. Those who execute a commission are ap-causes of admiralty and maritime jurisdiction in

21. A commission is not defectively executed, because the commissioners and their clerk were not sworn. Ibid.

Commitment on a Criminal Charge.-Common Carriers.

the supreme court, must be taken by commis- | bable cause be shown; and I understand probasion. The London Packet, 2 Wheat. 371; 4 Cond. Rep. 162.

34. A deposition taken under a commission is fatally defective, if the general interrogatory, "do you know any thing further, &c., is not an swered. Richardson v. Golden, 3 Wash. C. C. R. 109.

35. If a commission issue to A & B, or either of them, to take the depositions of witnesses, the deposition of A may be taken before B. Lonsdale v. Brown, 3 Wash. C. C. R. 404.

ble cause to be, a case made out by proof, furnishing good reason to believe, that the crime alleged has been committed by the person charged with having committed it. I think this opinion entirely reconciliable with that quoted from Judge Blackstone, where that learned and accurate commentator says, that 'if upon inquiry it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless; in such cases only it is lawful to discharge him; other36. Evidence to establish heirship and pedi- wise, he must be committed to prison or give gree, had been obtained under a commission bail. I do not understand him as meaning to issued for that purpose to France, in an action say, that the hand of malignity may grasp any of ejectment, in which the plaintiffs had reco-individual against whom its hate may be divered the lots of ground for which the suit was rected, or whom it may capriciously seize, instituted. In the course of that trial, a bill of charge him with some secret crime, and put exceptions was tendered by the plaintiffs and him to proof of his innocence. But I undersealed by the court, in which the evidence con- stand that the foundation of the proceeding must tained in the commission was inserted. The be a probable cause, to believe there is guilt; commission and the testimony obtained under it which probable cause is only to be done away were afterwards lost. In an action for mesne in the manner stated by Blackstone. The total profits, brought by the plaintiffs in the ejectment, failure of proof on the part of the accuser, would against the landlord of the defendant in the suit, be considered by that article, as being in itself who had employed counsel to oppose the claims a legal manifestation of the innocence of the of the plaintiffs, but who was not a party to the accused." 1 Burr's Trial, 4. suit on record; it was held, by the supreme court, that the testimony, as copied into the bill of exceptions, was legal and competent evidence of pedigree. Chirac v. Reinecker, 2 Peters, 619.

COMMITMENT ON A CRIMINAL CHARGE.

1. A warrant of commitment, by two justices of the peace of the county of Alexandria, must state some good cause certain, supported by oath. The discharge of the prisoner from confinement, the warrant being illegal, does not prevent the justices proceeding de novo, if the prisoner is really a person of ill name, and who ought to find sureties for his good behaviour. Ex parte Burford, 3 Cranch, 448; 1 Cond. Rep. 594.

2. A person may be committed for a crime by one magistrate, upon an affidavit made before another. Ex parte Bollman and Swartwout, 4 Cranch, 75; 2 Cond. Rep. 33.

3. A magistrate, who is found acting as such, must be presumed to have taken the requisite oaths. Ibid.

5. The power to commit a person for an offence against the law, is necessarily exercised by courts in the discharge of their functions, and is implied in the duties which a court must perform; and the judiciary act contemplates it in this light, It is exercised by every court of criminal jurisdiction; and courts, as well as magistrates, are conservators of the peace. Ibid. 79.

COMMON CARRIERS.

1. The transportation of passengers, or of merchandise, by common carriers, does not necessarily imply, that the owners are not common carriers of bank notes or specie. The nature and extent of that employment or business which the owners expressly or impliedly hold themselves out as undertaking, furnishes the limits of their rights, duties, obligations, and liabilities. Citizens' Bank v. Nantucket Steamboat Co., 2 Story's C. C. R. 16.

2. No person is a common carrier, in the sense of the law, who is not a carrier for hire. It is not necessary that the compensation should be a 4. In the case of the United States v. Aaron Burr, fixed sum; it is sufficient if it be in the nature before the circuit court of Virginia, on a motion, of a quantum meruit, enuring to the benefit of by the attorney of the United States, to commit the owners. Nor is it necessary that the goods the accused on two charges: 1st. For setting on or property should be entered upon a freight list, foot, and providing the means for an expedition or the contract be verified by any written meagainst the territories of a nation at peace with morandum; although both may be important the United States. 2d. For high treason against ingredients in ascertaining the true understandthe United States-Mr. Chief Justice Marshalling of the parties, as to the character of the bailsaid: "On an application of this kind, I cer- ment. Ibid. tainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I ever require that which should absolutely convince my own mind of the guilt of the accused: but I ought to require, and I should require, that pro

3. Where a certain charter, incorporating the Nantucket Steamboat Company, granted a right to run a steamboat "for the transportation of merchandise," and the master thereof, being intrusted with a certain sum of money in bankbills, lost it, or never duly delivered it; it was

Common Law.

13. Where a vessel, by which goods are transported for hire, becomes disabled, it is the duty of the carrier-master to forward the goods by another ship, if practicable; and his duty as carrier is not ended until they are delivered at their place of destination, or are returned to the possession of the owner, or kept safely until the owner can resume them, or otherwise lawfully

held, that the term "merchandise" does not | tween common carriers on land and common apply to mere evidences of value, such as notes, carriers by water. Ibid. bills, checks, policies of insurance, and bills of lading, but only to articles having an intrinsic value, in bulk, weight, or measure, and which are bought and sold; and that, in order to render the company liable, it must be clearly proved, that they had held themselves out to the public as common carriers of bank-bills for hire; and that they had authorized the master to contract on their account and not on his own, for the car-disposed of. Ibid. riage thereof, which in the present case was not See CARRIERS-ante, page 273. established by proof. Ibid.

4. It was also held, that the onus probandi was upon the libellants to make out a prima facie case, in the affirmative; and then the onus probandi of displacing this inference was shifted upon the respondents. Ibid.

5. The knowledge of the owners, that the master carried the money for hire, would not affect them, unless the hire was on their account, or unless the master held himself out as their agent in that business, within the scope of the usual employment and service of the steamboat. Ibid.

6. Where a box of gold sovereigns was shipped on board the ship North America, to be carried for hire from New York to Mobile, and the bill of lading only contained the usual exceptions against perils of the seas," and the ship was wrecked on the "Honda Reefs," and the captain then removed the box from the state-room where it could be locked up, and placed it in the run where the crew had free access, and allowed it to remain there, without personally superintending it, while the wreckers were on board, and the box was lost, and a libel was brought against the captain and owners to recover its value. It was held, that the burden of proof was on the respondents to show, that the loss occurred by a "peril of the seas," and that, failing in this, they were responsible for the loss, however it occurred. King v. Shepherd, 3 Story's C. C. R. 349. 7. Held, also, that the mere fact that the vessel was wrecked, did not vary the liabilities of the owner and master as common carriers, unless the property perished with the wreck, and in consequence of the wrecking; but that they were bound to exert all possible diligence, care, and skill; and that the evidence showed, that the captain was grossly negligent in the present case. Ibid.

8. Held, also, that the captain had no right to abandon the vessel to the care and custody of the wreckers. Ibid.

9. Held, also, that the value of the coins was to be estimated at their worth at Key West at the time when proceedings were there instituted for salvage, with interest from such time. Ibid. 10. The act of God, which would excuse a common carrier for a loss of goods, must be the immediate and not the remote cause of the loss. Ibid.

11. The same rules of law are not applicable to losses under policies of insurance and by common carriers. Ibid.

12. There is no difference in point of law be

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COMMON LAW.

1. The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright. But they brought with them and adopted only that portion which was applicable to their situation. Van Ness v. Pacard, 2 Peters, 144.

2. By "common law," the framers of the constitution of the United States meant what the constitution denominated in the third article, "law;" not merely suits which the common law recognised among its old and settled proceedings: but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were regarded, and equitable remedies were administered: or where, as in the admiralty, a mixture of public law and of maritime law and equity was often found in the same suit. Parsons v. Bedford et al., 3 Peters, 447.

3. There can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs, and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our system by legislative adoption. Wheaton & Donaldson v. Peters & Grigg, 8 Peters, 591.

4. When a common law right is asserted, we look to the state in which the controversy originated. Ibid.

5. When the ancestors of the citizens of the United States migrated to this country, they brought with them, to a limited extent, the English common law as part of their heritage. No one will contend, that the common law, as it existed in England, has ever been in force in all its provisions, in any state in this Union. It was adopted only so far as its principles were suited to the condition of the colonies; and from this circumstance it is seen what is the common law in one state is not so considered in another. The judicial decisions, the usages and customs of the respective states, must determine how far the common law has been introduced, and sanctioned in each. Ibid.

6. The religious establishment of England was adopted by the colony of Virginia, together

Compacts between States.

with the common law upon that subject, as far as was applicable to the circumstances of the colony. Terrett v. Taylor, 9 Cranch, 43; 3 Cond. Rep. 254.

7. The courts of the United States have no common law jurisdiction in cases of libel against the government of the United States. But they have the power to fine for contempts, to imprison for contumacy, and to enforce the observance of their orders. The U. S. v. Hudson & Goodwin, 7 Cranch, 32; 2 Cond. Rep. 405.

8. Certain implied powers must necessarily result to our courts of justice, from the nature of their institution. But jurisdiction of crimes against the state are not among those powers. To fine for contempt, imprison for contumacy, enforce the observance of orders, &c., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others. Ibid.

9. In the case of the United States v. Coolidge, the question made in the circuit court of the United States, for the district of Massachusetts, was, whether the circuit court had jurisdiction over common law offences against the United States. The case in the circuit court was an indictment for forcibly rescuing a prize which had been captured and taken possession of by two American privateers; and when rescued, was on her way, under the direction of the prizemaster and crew, to the port of Salem, Mass. In the supreme court, the attorney-general, Rush, said he had considered the point as decided in the case of the United States v. Hudson & Goodwin, and that it was not his intention to argue it at that time. STORY, Justice, said: 1 do not take the question to be settled in that case. JOHNSON, Justice, said: He considered it to be settled by the authority of that case. WASHINGTON, JUStice, said: Whenever counsel can be found ready to argue it, I shall divest myself of all prejudice arising from that case. LIVINGSTON, Justice, said: I am disposed to hear an argument on the point. This case was brought up for that purpose; but until the question is reargued, the case of the United States v. Hudson and Goodwin, must be taken as law. Mr. Justice Johnson delivered the opinion of the court. Upon the question now before the court, a difference of opinion has existed, and still exists, among the members of the court. We should, therefore, have been willing to have heard the question discussed upon solemn argument. But the attorney-general has declined to argue the cause, and no counsel appears for the defendant. Under these circumstances, the court would not choose to review their former decision in the case of the United States v. Hudson & Goodwin, or draw it into doubt; they will, therefore, certify an opinion to the circuit court in conformity with that decision. U. S. v. Coolidge et al., 1 Wheat. 415; 3 Cond. Rep. 613.

10. The ship registry acts have not changed the common law, as to the mode in which ships may be transferred; but only take from any ship not transferred according to those acts the character of an American ship. Weston v. Penniman, 1 Mason's C. C. R. 306.

11. The terms "usages and principles of law," "courts of law and equity," and "admiralty," as used in the acts of congress, refer to the common law, and not to the civil law, which recognises no line of discrimination between the jurisdiction of courts of law, equity, and admiralty. Baines v. The Schooner James and Catharine, 1 Baldwin's C. C. R. 557.

12. The common law is the basis of the jurisprudence of the states. Ibid. 563.

13. It is a general rule, unless altered by acts of assembly, or usage; and if any exceptions to it are alleged, they must be made to appear. Ibid.

14. In the case of The Town of Pawlet v. Clarke et al. the supreme court said: "we take it to be a clear principle, that the common law in force at the time of the emigration of our ancestors, is deemed the birthright of the colonies, unless so far as it is inapplicable to their situation, or repugnant to their rights and privileges." The Town of Pawlet v. Clarke et al., 9 Cranch, 292; 3 Cond. Rep. 420.

15. No state court is competent to settle the common or statute law of England; nor is this court, (the circuit court of the United States of New Jersey,) at liberty to overlook the settled course of that law, when it is admitted to be the rule by which a case before them must be governed. Waddell v. Martin et al., C. C. of New Jersey. Pamphlet opinion of the court delivered by Mr. Justice Baldwin, October term, 1837, page 8.

16. "Common law," in the constitution of the United States, means the common law of England. The amendment respecting trials by jury: restricts the legislature from granting to an appellate court, in suits at common law, the power to re-examine by a jury, the former decision of another jury, while the judgment below stands unreversed. The U. S. v. Wanson, 1 Gallis. C. C. R. 19.

17. At the date of the act of congress establishing the government of the District of Columbia, the common law of England was in force in Maryland; and of course remained and continued in force in the part of the district ceded by Maryland to the United States. The power to issue a mandamus in a proper case, is a part of the common law; and it has been fully recog nised as in practical operation in a case decided in the court of that state. Kendall, PostmasterGeneral, v. The United States, 12 Peters, 524.

18. There is no principle of the common law which pervades the Union, and exists independently of the laws of the states. Lorman v. Clarke, 2 M'Lean's C. C. R. 568.

19. This rule is found as adopted and modified by the laws and judicial decisions of the respective states. Ibid.

COMPACTS BETWEEN STATES.

1. The compact of 1789, between Virginia and Kentucky, was valid under that provision of the constitution, which declares, that "no state shall, without the consent of congress, enter into agree

Compacts between States.

ment or compact with another state, or with a foreign power:" no particular mode, in which that consent must be given, having been prescribed by the constitution; and congress having consented to the admission of Kentucky into the Union, as a sovereign state, upon the conditions in the compact. Green v. Biddle, 8 Wheat. 1; 5 Cond. Rep. 369.

2. The compact is not invalid upon the ground of its surrendering rights of sovereignty, which are unalienable. Ibid.

3. To bring a case within the protection of the seventh article in the compact between Virginia and Kentucky, it must be shown that the title to the land asserted, is derived from the laws of Virginia, prior to the separation of the two states. Lessee of Fisher v. Cockerell, 5 Peters, 248.

4. The construction of a compact between the states of Virginia and Pennsylvania, is not to be settled by the laws or decisions of either of those states, but by the compact itself. Marlatt v. Silk et al., 11 Peters, 1.

5. The decision of a question of the construction of such a compact, is not to be attested from the decisions of either state, but is one of an in

ternational character. Ibid.

6. It is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between the respective limits, and the boundaries so established and fixed by contract between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights; and are to be treated, to all intents and purposes, as the real boundaries. This right is expressly recognised to exist in the states of the Union, by the constitution of the United States; and is guarded in its exercise by a single limitation or restriction, only requiring the consent of congress. Ibid.

7. The compact between New Jersey and Pennsylvania recognises the right of fishery in riparian owners on the Delaware. Bennet v. Boggs, Baldwin's C. C. R. 60.

8. The plaintiffs, in the circuit court of West Tennessee, instituted an ejectment for a tract of land held under a Virginia military land-warrant, situate south of a line called Mathews' line, and south of Walker's line; the latter being the established boundaries between the states of Kentucky and Tennessee, as fixed by a compact between those states, made in 1820; by which compact, although the jurisdiction over the territory to the south of Walker's line was acknowledged to belong to Tennessee, the titles to lands held under Virginia military land-warrants, &c.; and grants from Kentucky, as far south as "Mathews' line," were declared to be confirmed: the state of Kentucky having, before the compact, claimed the right to the soil, as well as the jurisdiction over the territory, and having granted lands in the same. The compact of 1820 was confirmed by congress. The defendants in the ejectment claimed the lands under title emanating from the state of North Carolina, in 1786, 1794, 1795; before the formation of the state of Tennessee, and grants from the state of Tennessee, in 1809, 1811, 1812, 1814, VOL. I.-32

in which the lands claimed by the defendants were situated, according to the boundary of the state of Tennessee, declared and established at a time when the state of Tennessee became one of the states of the United States. The circuit court instructed the jury that the state of Tennessee, by sanctioning the compact, admitted, in the most solemn form, that the lands in dispute were not within her jurisdiction, nor within the jurisdiction of North Carolina, at the time they were granted; and that, consequently, the titles are subject to the compact: Held, by the supreme court, that the instructions of the circuit court were entirely correct. Poole v. Fleeger, 11 Peters, 185.

9. The seventh article of the compact between Virginia and Kentucky declares, "all private rights and interests of lands within the said district (Kentucky), derived from the laws of Virginia, prior to such separation, shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state (Virginia)." Whatever course of legislation, by Kentucky, would be sanctioned by the principles and practice of Virginia, should be regarded as an unaffected compliance with the compact. Such are all reasonable quieting statutes. Hawkins v. Barney's Lessee, 5 Peters, 457.

10. From as early a date as the year 1705, Virginia has never been without an act of limitation: and no class of laws is more universally sanctioned by the practice of nations, and the consent of mankind, than those laws which give peace and confidence to the actual possessor and tiller of the soil. Such laws have frequently passed in review before the supreme court; and occasions have occurred in which they have been particularly noticed, as laws not to be impeached on the ground of violating private rights. It is impossible to take any reasonable exception to the course of legislation pursued by Kentucky on this subject. She has in fact literally complied with the compact in its most rigid construction. For she adopted the very statute of Virginia in the first instance, and literally gave her citizens the full benefit of twenty years to prosecute their suits, before she enacted the law now under consideration. As to the exceptions and provisos and savings in such statutes, they must necessarily be left, in all cases, to the wisdom or discretion of the legislative power. Ibid.

12. It is not to be questioned, that laws limiting the time of bringing suits constitute a part of the lex fori of every country; the laws for administering justice, one of the most sacred and important of sovereign rights and duties, and a restriction upon which must materially affect both legislative and judicial independence. It can scarcely be supposed that Kentucky would have consented to accept a limited and crippled sovereignty; nor is it doing justice to Virginia to believe, that she would have wished to reduce Kentucky to a state of vassalage. Yet it would be difficult, if the literal and rigid construction necessary to exclude her from passing the limitation act were adopted, to assign her a

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