sal in either court on such writ of error for error in ruling any plea in

Writs of error abatement, other than a plea to the jurisdiction of the court, or such

limited. plea to a petition or bill in equity, as is in the nature of a demurrer, or for any error in fact. And writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as aforesaid, exclusive of the time of such disability.(a) And every justice or Plaintiff to give judge signing a citation on any writ of error as aforesaid, shall take security..

Act of Decem. good and sufficient security, that the plaintiff in error shall prosecute his ber 12, 1794, writ to effect, and answer all damages and costs if he fail to make his chap. 3. plea good.(6)

Sec. 23. And be it further enacted, That a writ of error as aforesaid Writ of error shall be a supersedeas and stay execution in cases only where the writ a supersedeas. of error is served, by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of. Until the expiration of which term of ten days, executions shall not issue in any case where a writ of error may be a supersedeas; and whereupon such writ of error the Supreme or a circuit court shall affirm a judgment or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double costs at their discretion.(c)

Sec. 24. And be it further enacted, That when a judgment or decree Judgment or shall be reversed in a circuit court, such court shall proceed to render decree re

. such judgment or pass such decree as the district court should have rendered or passed; 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

Supreme court causes that are removed before them by writs of error, but shall send a special mandate to the circuit court to award execution thereupon.

execution but

mandate. Sec. 25. And be it further enacted, That a final judgment or decree

Cases in which in any suit, in the highest court of law or equity of a State in which a judgment and decision in the suit could be had, where is drawn in question the vali- decrees of the

highest court of dity of a treaty or statute of, or an authority exercised under the United

a state may be States, and the decision is against their validity; or where is drawn in examined by the question the validity of a statute of, or an authority exercised under any

supreme court,

on writ of error. State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity,(d) or where is drawn in question the construction of any

(a) An appeal under the judiciary acts of 1789 and 1803, was prayed for and allowed within five years; held to be valid, although the security was not given within five years. The mode of taking the security and the time of perfecting it, are exclusively within the control of the court below. The Dos Hermanos, 10 Wheat. 306; 6 Cond. Rep. 109.

(6) By the act of December 12, 1794, chap. 3, the security required to be taken on signing a citation on any writ of error which shall not be a supersedeas, and stay execution, shall only be for an amount which will be sufficient to answer for costs.

(C) Supersedeas. The Supreme Court will not quash an execution issued by the court below to enforce its decree, pending a writ of error, if the writ be not a supersedeas to the decree. Wallen v. Williams, 7 Cranch, 278; 2 Cond. Rep. 491.

(d) In delivering the opinion of the Supreme Court in the case of Fisher v. Cockrell, 5 Peters, 248, Mr. Chief Justice Marshall said: “In the argument the court has been admonished of the jealousy with which the States of the Union view the revising power entrusted by the constitution and laws to this tribunal. To observations of this character the answer uniformly has been that the course of the judicial department is marked out by law. We must tread the direct and narrow path prescribed for us. this court has never grasped at ungranted jurisdiction, so it never will, we trust, shrink from that which is conferred upon it.”

The appellate power of the Supreme Court of the United States extends to cases pending in the State courts; and the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases by writ of error, is supported by the letter and spirit of the constitution.” Martin v. Hunler's Lessee, 1 Wheat. 304; 3 Cond. Rep. 575. Under the 25th section of the judiciary act of 1789, where the construction of any clause in the con

not to issue


clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or

decree complained of had been rendered or passed in a circuit court, Proceedings and the proceeding upon the reversal shall also be the same, except that on reversal.

the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been

once remanded before, proceed to a final decision of the same, and No writs of award execution. But no other error shall be assigned or regarded as

a ground of reversal in any such case as aforesaid, than such as appears above mention. ed.

on the face of the record, and immediately respects the before men

error but as

stitution or any statute of the United States is drawn in question, in any suit in a State court, the decision must be against the title or right set up by the party under such clause in the constitution or statute ; otherwise the Supreme Court has no appellate jurisdiction in the case. It is not sufficient that the construction of the statute was drawn in question, and that the decision was against the title. It must appear that the title set up depended on the statute. Williams v. Norris, 12 Wheat. 117; 6 Cond. Rep. 462.

If the construction or validity of a treaty of the United States is drawn in question in the State courts, and the decision is against its validity, or against the title set up by either party under the treaty, the Supreme Court has jurisdiction to ascertain that title, and to determine its legal meaning; and is not confined to the abstract construction of the treaty itself. Ibid.

The 2d article of the constitution of the United States enables the Supreme Court to receive jurisdiction to the full extent of the constitution, laws and treaties of the United States, when any question respecting them shall assume such form that the judicial power is capable of acting upon it. That power is capable of acting only when the subject is submitted to it by a party who asserts his right in the form prescribed by law. It then becomes a case. Osborn v. The Bank of the United States, 6 Wheat. 738; 5 Cond. Rep. 741.

The Supreme Court has no jurisdiction under the 25th section of the act of 1789, unless the judgment or decree of the State court be a fipal judgment or decree. A judgment reversing that of an inferior court, and awarding a scire facias'de novo, is not a final judgment. Houston v. Moore, 3 Wheat. 433 ; 4 Cond. Rep. 286.

The Supreme Court has no appellate jurisdiction under the 25th section of the judiciary act, unless the right, title, privilege, or exemption under a statute or commission of the United States be specially set up by the party claiming it in the State court, and the decision be against the same. Montgomery 1. Hernandez, 12 Wheat. 129; 6 Cond. Rep. 475.

It is no objection to the exercise of the appellate jurisdiction under this section, that one party is a State, and the other a citizen of that State. Cohens v. The State of Virginia, 6 Wheat. 264; Cond. Rep. 90.

In order to bring a case for a writ of error or an appeal to the Supreme Court from the highest court of a State within the 25th section of the judiciary act, it must appear on the face of the record : 1. That some of the questions stated in that section did arise in the State court. 2. That the question was decided in the Slate court as required in the section,

It is not necessary that the question shall appear in the record to have been raised, and the decision made in direct and positive terms, ipsissimis verbis ; but it is sufficient if it appears by clear and necessary intendment that the question must have been raised, and must have been decided, in order to induce the judgnient. It is not sufficient to show that a question might have arisen and been applicable to the case, unless it is further shown, on the record, that it did arise and was applied by the State Court to the case. Crowell v. Randall, 10 Peters, 368. See also Williams v. Norris, 12 Wheat. 117; 6 Cond. Rep. 462. Jackson v. Lamphire, 3 Peters, 280. Menard v. Aspasia, 5 Peters, 505. Fisher v. Cockrell, 5 Peters, 248. Gelston v. Hoyt, 3 Wheat. 246 ; 4 Cond. Rep. 244. Gordon v. Caldcleugh et al., 3 Cranch, 268; 1 Cond. Rep. 524. Owings v. Norwood's Lessee, 5 Cranch, 344; 2 Cond. Rep. 275. Buel et al. v. Van Ness, 8 Wheat. 312 ; 5 Cond. Rep. 445. Miller v. Nicholls, 4 Wheat. 311; 4 Cond. Rep. 465. Matthews v. Zane et al., 7 Wheat. 164; 5 Cond. Rep. 265. Gibbons v. Ogden, 6 Wheat. 448; 5 Cond. Rep. 134.

Under the 25th section of the judiciary act of 1789, three things are necessary to give the Supreme Court jurisdiction of a case brought up by writ of error or appeal: 1. The validity of a statute of the United States, or of authority exercised under a State, must be drawn in question. '2. It must be drawn in question on the ground that it is repugnant to the constitution, treaties and laws of the United States. 3. The decision of the State court must be in favour of its validity. The Commonwealth Bank of Kentucky v. Griffith et al., 14 Peters, 46. See also Pollard's heirs v. Kibbe, 14 Peters, 353. M'Cluny v. Sil. liman, 6 Wheat. 598; 5 Cond. Rep. 197. Weston et al. v. The City Council of Charleston, 2 Peters, 449. Hickie v. Starke et al., 1 Peters, 94. Satterlee v. Matthewson, 2 Peters, 380. Wilson et al. v. The Blackbird Creek Marsh Association, 2 Peters, 245. Harris v. Dennie, 3 Peters, 292. M'Bride v. Hoey, 11 Peters, 167. Winn's heirs v. Jackson et al., 12 Wheat. 135; 6 Cond. Rep. 479. City of New Orleans v. De Armas, 9 Peters, 224. Davis v. Packard, 6 Peters, 41.

tioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.(a) Sec. 26. And be it further enacted, That in all causes brought before In cases of

forfeiture the either of the courts of the United States to recover the forfeiture an

courts may give nexed to any articles of agreement, covenant, bond, or other speciality, judgment acwhere the forfeiture, breach or non-performance shall appear, by the de- cording to equi. fault or confession of the defendant, or upon demurrer, the court before ty. 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 Jury to assess which judgment should be rendered is uncertain, the same shall, if either damages when

is of the parties request it, be assessed by a jury.

certain. Sec. 27. And be it further enacted, That a marshal shall be appointed Marshal to be in and for each district for the term of four years, but shall be remova- appointed.

Duration of of. ble from office at pleasure, whose duty it shall be to attend the district

fice. and circuit courts when sitting therein, and also the Supreme Court in

Act of May the district in which that court shall sit.(6) And to execute throughout 15, 1820, ch. the district, all lawful precepts directed to him, and issued under the au- 101, 106, sec. 8. thority of the United States, and he shall have power to command all necessary assistance in the execution of his duty, and to appoint as there shall be occasion, one or more deputies, (c) who shall be removable Deputies refrom office by the judge of the district court, or the circuit court sitting movable by the within the district, at the pleasure of either; and before he enters on the cuit courts. duties of his office, he shall become bound for the faithful performance of the same, by himself and hy his deputies before the judge of the district court to the United States, jointly and severally, with two good and sufficient sureties, inhabitants and freeholders of such district, to be ap- Sureties. proved by the district judge, in the sum of twenty thousand dollars, and shall take before said judge, as shall also his deputies, before they enter on the duties of their appointment, the following oath of office: "I, A.

Oath of marB., do solemnly swear or affirm, that I will faithfully execute all lawful shal, and of his

deputies. precepts directed to the marshal of the district of under the authority of the United States, and true returns make, and in all things well and truly, and without malice or partiality, perform the duties of the office of marshal (or marshal's deputy, as the case may be) of the district of

during my continuance in said office, and take only my lawful fees. So help me God.” Sec. 28. And be it further enacted, That in all causes wherein the

If marshal, or

his deputy, a marshal or his deputy shall be a party, the writs and precepts therein

party to a suit, shall be directed to such disinterested person as the court, or any justice process to be or judge thereof may appoint, and the person so appointed, is hereby directed to a authorized to execute and return the same. And in case of the death by the court. of any marshal, his deputy or deputies shall continue in office, unless Deputies to otherwise specially removed; and shall execute the same in the name of continue in ofthe deceased, until another marshal shall be appointed and sworn: And of the marshal. the defaults or misfeasances in office of such deputy or deputies in the Defaults of demean time, as well as before, shall be adjudged a breach of the condi- duties. tion of the bond given, as before directed, by the marshal who appointed

(nl) Williams v. Norris, 6 Wheat. 117; 6 Cond. Rep. 462.

(0) A marshal is not removed by the appointment of a new one, until he receives notice of such appointment. All acts done by the marshal after the appointment of a new one, before notice, are good ; but his acts subsequent to notice are void. Wallace's C. C. R. 119.

It is the duty of a marshal of a court of the United States to execute all process which may be placed in his hand, but he performs this duty at his peril, and under the guidance of law. He must, of course, exercise some judgment in the performance. Should he fail to obey the exegit of the writ without a legal excuse, or should he in its letter violate the rights of others, he is liable to the action of the injured party. Lise and Fire Ins. Comp. of New York v. Adams, 9 Peters, 573.

(c) A marshal is liable on his official bond for the failure of his deputies to serve original process, but the measure of his liability is the extent of the injury received by the plaintiff, produced by his negligence. If the loss of the debt be the direct legal consequence of a failure to serve the process, the amount of the debt is the measure of the damages; hut not so is otherwise. The United States v. Moore's Adm’rs, 2 Brocken's C. C. R. 317. See San Jose Indiano, 2 Gallis. C. C. R. 311. Ex parte Jesse Hoyt, collector, &c., 13 Peters, 279.

Powers of the them; and the executor or administrator of the deceased marshal shall executor or administrator of

have like remedy for the defaults and misfeasances in office of such dedeceased mar. puty or deputies during such interval, as they would be entitled to if the shals.

marshal had continued in life and in the exercise of his said office, until his successor was appointed, and sworn or affirmed: And every marshal or his deputy when removed from office, or when the term for which the marshal is appointed shall expire, shall have power notwithstanding to

execute all such precepts as may be in their hands respectively at the Marshal's time of such removal or expiration of office; and the marshal shall be power after re- held answerable for the delivery to his successor of all prisoners which moval.

may be in his custody at the time of his removal, or when the term for which he is appointed shall expire, and for that purpose may retain such prisoners in his custody until his successor shall be appointed and quali

fied as the law directs.(a) Trial of cases Sec. 29. And be it further enacted, That in cases punishable with punishable with death, the trial shall be had in the county where the offence was comdeath to be had mitted, or where that cannot be done without great inconvenience, in county.

twelve petit jurors at least shall be summoned from thence.(b) And 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 designation practicable by the courts or marshals Jurors by lot. of the United States; and the jurors shall have the same qualifications Act of May

as are requisite for jurors by the laws of the State of which they are citi13, 1800, ch. 61.

zens, 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 serWrits of venire vices. And writs of venire facias when directed by the court shall issue clerk's office.

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 jurymen de talibus cirJuries de ta.

cumstantibus sufficient to complete the pannel; and when the marshal libus, &c.

or his deputy are disqualified as aforesaid, jurors may be returned by

such disinterested person as the court shall appoint. Mode of proof. Sec. 30. And be it further enacted, That the mode of proof by oral

testimony and examination of witnesses in open court shall be the same Act of April in all the courts of the United States, as well in the trial of causes in 29, 1802, ch.3l, equity and of admiralty and maritime jurisdiction, as of actions at com$ 25,

mon law. And when the testimony of any person shall be necessary in any civil cause depending in any district in any court of the United States, 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 as aforesaid, before the time of trial, or is Depositions ancient or very infirm, the deposition of such person may be taken de bene de bene esse.

esse before any justice or judge of any of the courts of the United States,

(a) If a debtor committed to the State jail under process of the courts of the United States escapes, the marshal is not liable. Randolph v. Donnaldson, 9 Cranch,76; 3 Cond. Rep. 280.

(6) The Circuit Courts of the United States are bound to try all crimes committed within the district, which are duly presented before it; but not to try them in the county where they have been committed. The United States v. Wilson and Porter, Baldwin's C. C. R. 78.

time causes.

or before any chancellor, justice or judge of a 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 of Adverse party the same, and to put interrogatories, if he think fit, be first made out and to be notified. 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 notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel.(a) And in causes Notice in admi. of admiralty and maritime jurisdiction, or other cases of seizure when a ralty and mari. 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 be put in, the like notification as aforesaid shall be given to the person Agent notified. having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person deposing as aforesaid shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the depositions so taken shall be re- Depositions tained by such magistrate until he deliver the same with his own hand retained. 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.(6) And any person may be compelled to appear and depose

Persons may as aforesaid in the same manner as, to appear and testify in court. And be compelled to

appear and teg. in the trial of any cause of admiralty or maritime jurisdiction in a dis

tify. trict court, the decree in which may be appealed from, if either party Appeal al. shall suggest to and satisfy the court that probably it will not be in his lowed. 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.(c) And

(a) The following cases have been decided relating to depositions taken under the provisions of this act:

That the deponent is a seaman on board a gun-boat in the harbour, and liable to be ordered to some other place, and not to be able to attend the court at the time of sitting, is not a sufficient reason for taking his deposition under the act of September 24, 1789, chap. 20.

If it appear on the face of the deposition taken under the act of Congress, that the officer taking the same, was authorized by the act, it is sufficient in the first instance, without any proof that he was such officer. Ruggles v. Bucknor, 1 Paine's C. C. R. 358.

Objections to the competency of the witness whose deposition is taken under the act of 1789, should be made at the time of taking the deposition, if the party attend, and the objections are known to him, in order that they may be removed : otherwise he will be presumed to waive them. United States v. Hair. pencils, I Paine's c. c. R. 400.

A deposition taken under the 30th section of the act of 1789 cannot be made on evidence, unless the judge before whom it was taken, certify that it was reduced to writing by himself, or by the witness in his presence. Pettibone v. Derringer, 4 Wash. C. C. R. 215. See United States v. Smith, 4 Day, 121. North Carolina Cases, 81.

The authority given by the act of 1789, to take depositions of witnesses in the absence of the opposite party, is in derogation of the rules of common law, and has always been construed strictly; and therefore it is necessary to establish that all the requisites have been complied with, before such testimony can be admitted. Bell v. Morrison et al., 1 Peters, 351. The Patapsco Ins. Comp. v. Southgate, 5 Peters, 604. The United States v. Coolidge, 1 Gallis. C. C. R. 488. Evans v. Hettick, 3 Wash. C. C. R. 408. Thomas and Henry v. The United States, 1 Brockeb's C. C. R. 367.

The provisions of the 30th section of the act of 1789, as to taking depositions, de bene esse, does not apply to cases pending in the Supreme Court, but only to cases in the Circuit and District Courts. The Argo, 2 Wheat. 287; 4 Cond. Rep. 119.

Where there is an attorney on record, notice must in all cases be given to him. Ibid. The deposition of a person residing out of the State, and more than one hundred miles from the place of trial, cannot be read in evidence. Bleeker v. Bond, 3 Wash. C. C. R. 529. See Buddicum v. Kirke, 3 Cranch, 293; 1 Cond. Rep. 535.

(0) It is a fatal objection to a deposition taken under the 30th section of the act of 1789, that it was opened out of court. Beale v. Thompson, 8 Cranch, 70; 3 Cond. Rep. 35. (C) Since the act of March 3, 1803, chap. 40, in admiralty as well as in equity cases carried up to the Vol. I.-12

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