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

Writs of venire vices. And writs of venire facias when directed by the court shall issue facias from 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 de- puty 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 pur- pose, to whom they shall administer an oath or affirmation that he will truly and impartially serve and return such writ. And when from chal- lenges 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 cir- Juries 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.31, 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 debene 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. (&) 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.  FIRST CONGRESS. Ses s . I. Ch . 29. 1789. 89 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 depo- sition 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- time causes. libel shall be filed, in which an adverse party is not named, and deposi- tions 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 certifi- cate 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.(b 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 tes- 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, 1 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. (&) 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 h2 90 FIRST CONGRESS. Sess . I. Ch . 20. 1789. Act of March if an appeal be had, such testimony may be used on the trial of the same, 3, 1803, ch. 40. if it shall appear to the satisfaction of the court which shall try the ap- peal, that the witnesses are then dead or gone out of the United States, or to a greater distance than as aforesaid from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, they are unable to travel and appear at court, but not Depositions otherwise. And unless the same shall be made to appear on the trial of used in case of any cause, with respect to witnesses whose depositions may have been sickness, death, &c. taken therein, such depositions shall not be admitted or used in the cause. Provided, That nothing herein shall be construed to prevent Dedimus po- any court of the United States from granting a dedimus potestatem to testatem as take depositions according to common usage, when it may be necessary usual. to prevent a failure or delay of justice,(a) which power they shall seve- rally possess, nor to extend to depositions taken in perpetuam rei memo- riam, which if they relate to matters that may be cognizable in any court of the United States, a circuit court on application thereto made as a court of equity, may, according to the usages in chancery direct to be taken. Sec . 31. Andbeit [further] enacted, That where any suit shall be de- pending in any court of the United States, and either of the parties shall Executor or administrator die before final judgment, the executor or administrator of such deceased may prosecute party who was plaintiff, petitioner, or defendant, in case the cause of action and defend. doth by law survive, shall have full power to prosecute or defend any such suit or action until final judgment; and the defendant or defendants are hereby obliged to answer thereto accordingly; and the court before whom such cause may be depending, is hereby empowered and directed to hear and determine the same, and to render judgment for or against the executor or administrator, as the case may require. And if such ex- Neglect of ecutor or administrator having been duly served with a scire facias from executor or ad- the office of the clerk of the court where such suit is depending, twenty ministrator to become a party days beforehand, shall neglect or refuse to become a party to the suit, to the suit, the court may render judgment against the estate of the deceased party, judgment to be in the same manner as if the executor or administrator had voluntarily rendered. Executor and made himself a party to the suit.(b) And the executor or administra- administrator tor who shall become a party as aforesaid, shall, upon motion to the may have con- court where the suit is depending, be entitled to a continuance of the tinuance. same until the next term of the said court. And if there be two or