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

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 v. 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; 5 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 de- cided in the State 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 neces- sary intendment that the question must have been raised, and must have been decided, in order to in- duce the judgment. 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 Ken- tucky 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 Arinas, 9 Peters, 224. Davis v. Packard, 6 Peters, 41.  FIRST CONGRESS. Sess . I. Ch . 20. 1789. 87 tioned questions of validity or construction of the said constitution, trea- ties, statutes, commissions, or authorities in dispute.(«) In cases of Sec . 26. And be it further enacted, That in all causes brought before 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 ac- where 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 re- Jury to assess cover so much as is due according to equity. And when the sum for damages when which judgment should be rendered is uncertain, the same shall, if either the sum is un- of the parties request it, be assessed by a jury. certain. Sec . 27. And be it further enacted, That a marshal shall be appointed Marsha] 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.(&) 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 re- from office by the judge of the district court, or the circuit court sitting movable by the district and cir- 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 by his deputies before the judge of the dis- trict 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. shal, Oath of mar- and of his B., do solemnly swear or affirm, that I will faithfully execute all lawful 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 hisIfdeputy,marshal, or 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 person selected 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 of- fice on the death the 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 ofde- mean 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 (a) Williams v. Norris, 6 Wheat. 117 ; 6 Cond. Rep. 462. (b) A marshal is not removed by the appointment of a new one, until he receives notice of such ap- pointment. 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. Life 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 ; but not so if otherwise. The United States v. Moore’s Adm is, 2 Brocken’s C. C. R. 317. SeeSanJose Indiano, 2 Gallis. C. C. R. 311. Ex parte Jesse Hoyt, collector, &c., 13 Peters, 279. 88 FIRST CONGRESS. Sess . I. Ch . 20. 1789. Powers of the them; and the executor or administrator of the deceased marshal shall executor or ad- ministrator of have like remedy for the defaults and misfeasances in office of such de- deceased 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 com- death to be had in county. mitted, or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence.(6) And ju- rors in all cases to serve in the courts of the United States shall be desig- nated 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 13, 1800, ch. 61. as are requisite for jurors by the laws of the State of which they are citi- zens, to serve in the highest courts of law of such State, and shall be re- turned 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 ser-