An Act to establish the Judicial Courts of the United States. — reading text

Two plaintiffs. more plaintiffs or defendants, and one or more of them shall die, if the Surviving cause of action shall survive to the surviving plaintiff or plaintiffs, or plaintiff may against the surviving defendant or defendants, the writ or action shall continue suit. 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.(c) Supreme Court by appeal, the evidence goes with the cause, and it must consequently be in writing. 1 Gallis. C. C. R. 25; 1 Sumner’s C. C. R. 328. (a) When a foreign government refuses to suffer the commission to be executed within its jurisdiction, the Circuit Court may issue letters rogatory for the purpose of obtaining testimony according to the forms and practice of the civil law. Nelson et al. v. The United States, Peters’ C. C. R. 255. See Buddicum v. Kirke, 3 Cranch, 293 ; 1 Cond. Rep. 535. Depositions taken according to the proviso in the 30th section of the judiciary act of 1789, under a dedimus potestatem, according to common usage, when it may be necessary to prevent a failure or delay of justice, are, under no circumstances, to be considered as taken de bene esse. Sergeant’s Lessee v. Biddle, 4 Wheat. 508 ; 4 Cond. Rep. 522. (b) This statute embraces all cases of death before final judgment, and of course is more extensive than the 17 Car. 2, and 8 and 9 W. 3. The death may happen before or after plea pleaded, before or after issue joined, before or after verdict, or before or after interlocutory judgment; and in all these cases the proceedings are to be exactly as if the executor or administrator were a voluntary party to the suit. Hatch v. Eustis, 1 Gallis. C. C. R. 160. (c) In real and personal actions at common law, the death of the parties before judgment abates the suit, and it requires the aid of some statutory provision to enable the suit to be prosecuted by or against the personal representatives of the deceased, where the cause of action survives. This is effected by the 31st section of the judiciary act of 1789, chap. 20. Green v. Watkins, 6 Wheat. 260; 5 Cond. Rep. 87. In real actions the death of either party before judgment, abates the suit. The 31st section of the judiciary act of 1789, which enables the action to be prosecuted by or against the representatives of the  FIRST CONGRESS. Sess . I. Ch . 20. 1789. 91 Sec . 32. And be it further enacted, That no summons, writ, declara- tion, return, process, judgment, or other proceedings in civil causes in Writs shall not abate for de- any of the courts of the United States, shall be abated, arrested, quashed fect of form. or reversed, for any defect or want of form, but the said courts respect- ively shall proceed and give judgment according as the right of thecause and matter in law shall appear unto them, without regarding any imper- fections, defects, or want of form in such writ, declaration, or other pleading, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall Exceptions. specially sit down and express together with his demurrer as the cause thereof. And the said courts respectively shall and may, by virtue of Courts may a- mend imperfec- this act, from time to time, amend all and every such imperfections, de- tions. fects 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 par- ties to amend any defect in the process or pleadings, upon such condi- tions as the said courts respectively shall in their discretion, and by their rules prescribe.(a) Sec . 33. And be it further enacted, That for any crime or offence Criminal a- gainst U. S. ar- against the United States, the offender may, by any justice or judge of rested by any the United States, or by any justice of the peace, or other magistrate of justice of the any of the United States where he may be found agreeably to the usual peace. Act of March mode of process against offenders in such state, and at the expense of 2, 1793, ch. 22. the United States, be arrested, and imprisoned or bailed, as the case Act of July may be, for trial before such court of the United States as by this act 16, 1798, ch. 83. Recognizance has cognizance of the offence.(b) And copies of the process shall be to be returned returned as speedily as may be into the clerk’s office of such court, to- to the clerk's gether with the recognizances of the witnesses for their appearance to office. testify in the case; which recognizances the magistrate before whom the examination shall be, may require on pain of imprisonment. And if such Offender may be removed by commitment of the offender, or the witnesses shall be in a district other warrant. than that in which the offence is to be tried, it shall be the duty of the judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender, and the witnesses, or either of them, as the case may be, to the district in which the trial is to be had. And upon Bail admitted. all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evi- dence, and the usages of law. And if a person committed by a jus- ken. Bail, how ta- t ce of the supreme or a judge of a district court for an offence not pun- ishable with death, shall afterwards procure bail, and there be no judge deceased, when the cause of action survives, is clearly confined to personal actions. Macker’s heirs v. Thomas, 7 Wheat. 530; 5 Cond. Rep. 334. (a) The 32d section of the act of 1789, allowing amendments, is sufficiently comprehensive to embrace causes of appellate as well as original jurisdiction; and there is nothing in the nature of an appellate jurisdiction, proceeding according to the common law, which forbids the granting of amendments. 1 Gallis. C. C. R. 22. If the amendment is made in the Circuit Court, the cause is heard and adjudicated in that court, and upon appeal by the Supreme Court on the new allegation. But if the amendment is allowed by the Su- preme Court, the cause is remanded to the Circuit Court, with directions to allow the amendment to be made. The Mariana Flora, 11 Wheat. 1 ; 6 Cond. Rep. 201. By the provisions of the act of Congress a variance which is merely matter of form may be amended at any time. Scull v. Biddle, 2 Wash. C. C. R. 200. See Smith v. Jackson, 1 Paine’s C. C. R. 486. Ex parte Bradstreet, 7 Peters, 634. Randolph v. Barrett, 16 Peters, 136. Hozey v. Buchanan, 18 Peters, 215. Woodward v. Brown, 13 Peters, 1. (b) The Supreme Court of the United States has jurisdiction, under the constitution and laws of the United States to bail a person committed for trial on a criminal charge by a district judge of the United States. The United States v. Hamilton, 3 Dall. 13. The circumstances of the case must be very strong, which will, at any time, induce a court to admit a person to bail, who stands charged with high treason. The United States v. Stewart, 2 Dall. 345. 92 FIRST CONGRESS. Ses s . I. Ch . 20. 1789. of the United States in the district to take the same, it may be taken by any judge of the supreme or superior court of law of such state. Laws of States Sec . 34. A nd be it further enacted, That the laws of the several states, rules of deci- sion. except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.(a) Parties may Sec . 35. And be it further enacted, That in all the courts of the United manage their States, the parties may plead and manage their own causes personally own cause. or by the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct Attorney of causes therein. And there shall be appointed in each district a meet the U. S. for person learned in the law to act as attorney for the United States in such each district. district, who shall be sworn or affirmed to the faithful execution of his His duties. office, whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be con- cerned, except before the supreme court in the district in which that Compensation. court shall be holden. And he shall receive as a compensation for his (a) The 34th section of the judiciary act of 1799, does not apply to the process and practice of the courts. It merely furnishes a decision, and is not intended to regulate the remedy. Wyman v. Southard, 10 Wheat. 1 ; 6 Cond. Rep. 1. In construing the statutes of a State, infinite mischief would ensue, should the federal courts observe a. different rule from that which has long been established in the State. McKeen v. Delaney’s lessee, 5 Cranch, 22; 2 Cond. Rep. 179. In cases depending on the statutes of a State, and more especially in those respecting the titles to land, the federal courts adopt the construction of the State, where that construction is settled or can be ascertained. Polk’s Lessee v. Wendall, 9 Cranch, 87 ; 3 Cond. Rep. 286. The Supreme Court uniformly acts under a desire to conform its decisions to the State courts on their local law. Mutual Assurance Society v. Watts, 1 Wheat. 279 ; 3 Cond. Rep. 570. The Supreme Court holds in the highest respect, decisions of State Courts upon local laws, form- ing rules of property. Shipp et al. v. Miller’s heirs, 2 Wheat. 316 ; 4 Cond. Rep. 132. When the construction of the statute of the State relates to real property, and has been settled by any judicial decision of the State where the land lies, the Supreme Court, upon the principles uniformly adopted by it, would recognize the decision as part of the local law. Gardner v. Collins, 2 Peters, 58. In construing local statutes respecting real property, the courts of the Union are governed by the de- cisions of State tribunals. Thatcher et al. v. Powell, 6 Wheat. 119 ; 5 Cond. Rep. 28. The courts of the United States, in cases depending on the laws of a particular State, will in general adopt the construction given by the courts of the State, to those laws. Elmendorf v. Taylor, 10 Wheat. 152 ; 6 Cond. Rep. 47. Under the 34th section of the judiciary act of 1789, the acts of limitation of the several States where no special provision has been made by Congress, form rules of the