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TWENTIETH CONGRESS SESS I CH 68 1828
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TWENTIETH CONGRESS SESS I CH 68 1828 279, cess except the style and the forms and modes of proceeding in suits mesne process. in the courts of the United States held in those states admitted into the stylee and the. Union since the twenty ninth day of September in the year seventeen forms and. hundred and eighty nine in those of common law shall be the same in modes of pro. It is not a contempt of court to serve a person with a summons while attending at the place where. the court is held as a party in a cause or as a witness It is a contempt of court to serve process. either of summons or capias in the actual or constructive presence of the court Blight s Ex rs v. Ashley 1 Peters C C R 41, Attachments for the non attendance of a witness on a subpoena must be served by the marshal of the. court although the persons against whom the process is issued reside in a distant county United. States v Montgomery circuit court of the United States 2 Dall 33. An attachment is the usual process to bring a party into court where he has not made a true return. and if he is present in court no such process is necessary but the court may pass an order directing. him immediately to answer interrogatories United States v Greene 3 Mason s C C R 482. Attachments may issue out of the admiralty courts of the United States against the goods or debts of. an absent person so as to make him a party to the suit Bouysson et al v Miller et al Bee s Adm. The admiralty may issue process of attachment to compel an appearance in cases of maritime torts. as well as in cases of contract Manro v Almeida 10 Wheat 473 6 Cond Rep 190. An admiralty court has jurisdiction to proceed by attachment in rem for a tort The Candalero Bee s. Adm Decis 60, The process of attachment may issue whenever the defendant has concealed himself or has absconded. from the country and the goods to be attached are within the jurisdiction of the court of admiralty. It may issue against his goods and chattels and against his credits and effects in the hands of third per. sons Manro v Almeida 10 Wheat 473 6 Cond Rep 190, It seems that an attachment cannot issue without an express order of the judge but it may be issued. simultaneously with the monition and where the attachment issued in this manner and in pursuance. of the prayer of the libel the Supreme Court will presume that it was regularly issued Ibid. The act for regulating processes in the courts of the United States provides that the forms and modes. of proceeding in courts of equity and in those of admiralty and maritime jurisdiction shall be accord. ing to the principles rules and usages which belong to courts of equity and to courts of admiralty. respectively as contradistinguished from courts of common law subject however to alterations by the. courts c This act has been generally understood to adopt the principles rules and usages of the. court of chancery of England Hinde v Vattier 5 Peters 398. Process of foreign attachment cannot be properly issued by the circuit courts of the United States in. cases where the defendant is domiciled abroad or not found within the district in which the process. issues so that it cannot be served upon him Toland v Sprague 12 Peters 300. By the general provisions of the laws of the United States 1 The circuit courts can issue no pro. cess beyond the limits of their districts 2 Independently of positive legislation the process can only. be served upon persons within the same districts 3 The acts of Congress adopting the state process. adopt the form and modes of service only so far as the persons are rightfully within the reach of such. process and did not intend to enlarge the sphere of the jurisdiction of the circuit courts 4 The. right to attach property to compel the appearance of persons can properly be used only in cases in. which such persons are amenable to the process of the circuit court in personam that is where. they are inhabitants or found within the United States and not where they are aliens or citizens resi. dent abroad at the commencement of the suit and have no inhabitancy here Ibid. In the case of a person being amenable to process in personam an attachment against his property. cannot be issued against him except as a part of or together with process to be served upon his. person Ibid, The circuit and district courts of the United States cannot either in suits at common law or equity.
send their process into another district except where specially authorized so to do by some act of Con. gress Ex parte Graham 3 Wash C C R 456, The marshal may have an attachment to enforce the payment of his fees of office against suitors in. the court Anonymous 2 Gallis C C R 101, The court will not dictate to the marshal what return he shall make to process in his hands le. must make his return at his peril and any person injured by it may have his legal remedy for such. return Wortman v Conyngham Peters C C R 241, Congress has by the constitution exclusive authority to regulate proceedings in the courts of the. United States and the states have no authority to control those proceedings except so far as the state. process acts are adopted by Congress or by the courts of the United States under the authority of. Congress Wayman v Southard 10 Wheat 1 6 Cond Rep 1. lThe14th section of the judiciary act of 1789 ch 20 authorizes the courts of the United States to. issue writs of execution as well as other writs Ibid. The 34th section of the judiciary act of 17S9 ch 20 does not apply to the process and practice of the. courts It merely furnishes a rule of decision and is not intended to regulate the remedy Ibid. The process act of 1792 ch 137 is the law which regulates executions issuing from the courts of the. United States and it adopts the practice of the supreme courts of the states in 1789 as the rule for. governing proceedings on such executions subject to such alterations as the courts of the United States. may make but not subject to the alterations which have since taken place in the state laws and prac. The statutes of Kentucky concerning executions which require the plaintiff to endorse on the execu. tion that bank notes of the Bank of Kentucky or notes of the Bank of the Commonwealth of Kentucky. will be received in payment and on his refusal authorize the defendant to give a replevin bond for the. debt payable in two years are not applicable to executions issued on judgments rendered by the courts. of the United States Ibid,280 TWEN rIETH CONGRESS SEss I CH 68 1828. ceeding in suits each of the said states respectively as are now used in the highest court. in courts of, United States of original and general jurisdiction of the same in proceedings in equity.
admitted into according to the principles rules and usages which belong to courts of. the Union equity and in those of admiralty and maritime jurisdiction according to. The laws of the United States authorize the courts of the Union so to alter the form of the process of. execution used in the supreme courts of the states in 1789 as to subject to execution issuing out of. the federal courts lands and other property not thus subject by the state laws in force at that time. Bank of the United States v IHalstead 10 Wheat 51 6 Cond Rep 22. A subpoena duces tecum may issue to the President of the United States I Burr s Trial 183. A party cannot be arrested in Pennsylvania on an attachment from the circuit court in Rhode Island. for contempt in not appearing in that court after a monition served upon him in Pennsylvania to answer. in a prize cause depending in the court in Rhode Island Ex parte Graham 3 Wash C C R 456. A writ of error does not lie to an order of the court below to stay the proceedings finally upon sug. gestion of the attorney of the United States in a case to which the United States are not parties but. the court will award a mandamus nisi in the nature ofa procedendo Livingston v Dorgenois 7 Cranch. 677 2 Cond Rep 618, The marshal of the District of Columbia is bound to serve a subpoena in chancery as soon as he rea. sonably can and he will in case of neglect be answerable to the plaintiff who has in consequence of. such neglect sustained any loss Kennedy v Brent 6 Cranch 187 2 Cond Rep 345. On a capias in assumpsit against three and one arrested who gives bail and non est inventus as to. the others if the party files his declaration and proceeds against the one arrested he cannot afterwards. bring in the others by alias capias and make them parties to the suit United States v Parker 2. An alias capias must be tested as of the term to which the original writ was returned Ibid. A term cannot intervene between the teste and return of a writ of error Hamilton v Moore 3 Dall. 371 1 Cond Rep 168, If the defendant below intermarries after the judgment and before the service of the writ of error. the service of the citation upon the husband will be sufficient Fairfax s Ex rs v Fairfax 5 Cranch. 19 2 Cond Rep 178, There is no act of Congress which authorizes a circuit court to issue a compulsory process to the. district court for the removal of a cause from that jurisdiction before a final judgment or decree. is pronounced If a certiorari should issue in such a case the district court may and ought to refuse. obedience to the writ and after the cause is thus removed either party may move for a procedendo or. pursue the cause in the district court in like manner as if the record had not been removed But if. instead of taking advantage of this irregularity the defendant enter his appearance in the circuit court. take defence and plead to issue it is too late after verdict to object to the irregularity The cause will. be considered as an original one in the circuit court made so by consent of parties even though no. declaration de novo should be filed in the circuit court Patterson v The United States 2 Wheat 2221. 4 Cond Rep 98, Whenever by the state laws in force in 1789 a capias might issue from a state court the acts of 1789. and 1792 extending in terms to that species of writ must he understood to have adopted its use per. manently in the federal courts United States v January 10 Wheat 66 In a note. At an early period after the organization of the federal courts the rules of practice in force in the. state courts which were similar to the English practice were adopted by the judges of the circuit. court A subsequent change in the practice of the state courts will not authorize a departure from. the rules adopted in the circuit court Anonymous Peters C C R 1. Whenever by the laws of the United States a defendant is to be arrested the process of arrest. employed in the state shall be pursued 2 Burr s Trial 481. Upon executing a writ of inquiry in Virginia in an action of assumpsit upon a promissory note it is. necessary to produce a note corresponding with that stated in the declaration but it is not necessary to. prove the note Sheehy v Mandeville 7 Cranch 208 2 Cend Rep 476. A party charged with a crime even before indictment found may have compulsory process for his. witnesses But his omitting to avail himself of this right is not such negligence as will deprive him of. the benefit of having his cause postponed if his witnesses be absent but it will justify the court in im. posing terms on him United States v Moore Wallace s C C R 23. The process act of Congress of 1828 was passed shortly after the decision of the Supreme Court of. the United States in the case of Wayman v Southard and the Bank of the United States v Halsted and. was intended as a legislative sanction of the opinions of the court in those cases The power given to. the courts of the United States by this act to make rules and regulations on final process so as to con. form the same to the laws of the states on the same subject extends to future legislation and as well. to the modes of proceedings on executions as to the forms of writs Ross King v Duval et al 13. All proceedings for attachments are on the civil side of the courts and are to be entitled with the. names of the parties until an attachment issues after which they are on the criminal side United. States v Wayne Wallace s C C R 134, The courts of chancery of the United States will under circumstances order a commission of rebel.
lion to be returnable forthwith Ibid, The judiciary act of 1789 ch 20 does not contemplate compulsive process against any person in any. district unless he be an inhabitant of or found within the same district at the time of serving the writ. Picquet Swan 5 Mason s C C R 35, The act of Massachusetts of 1797 ch 50 prescribing the modes ofserving process does not apply to. a case where the defendant has been an inhabitant but at the time of the suit brought has his actual domi. cil in another state or country Ibid, Under the statute of Massachusetts of 1823 ch 142 giving relief against fraud to secure attaching. creditors it is not necessary that the second attachment should be returnable to the same term of the. TWENTIETH CONGRESS SEss I C 68 1828 281, the principles rules and usages which belong to courts of admiralty since 29th Sept. as contradistinguished from courts of common law except so far as may 1829. have been otherwise provided for by acts of Congress subject however Subject how. to such alterations and additions as the said courts of the United States ever to such. alterations c, respectively shall in their discretion deem expedient or to such regula.
tions as the Supreme Court of the United States shall think proper from. time to time by rules to prescribe to any circuit or district court con. cerning the same, SEC 2 And be it further enacted That in any one of the United ments. mWherearejudg, States where judgments are a lien upon the property of the defendant upon the pro. and where by the laws of such state defendants are entitled in the courts perty of the de. thereof to an imparlance of one term or more defendants in actions in fendant. the courts of the United States holden in such state shall be entitled to. an imparlance of one term, SEC 3 And be it further enacted That writs of execution and other When writs. final process issued on judgments and decrees rendered in any of the ofexecutionand. courts of the United States and the proceedings thereupon shall be the ess issuedn o. same except their style in each state respectively as are now used in judgments c. the courts of such state saving to the courts of the United States in rendered in any. of the courts, those states in which there are not courts of equity with the ordinary of the United. equity jurisdiction the power of prescribing the mode of executing their States c. decrees in equity by rules of court Provided however That it shall be Proviso. in the power of the courts if they see fit in their discretion by rules of. court so far to alter final process in said courts as to conform the same. to any change which may be adopted by the legislatures of the respective. states for the state courts, court as the first attachment Query If the plaintiff must in all cases under that act sign and make.
oath to his petition to be admitted to defend against the first attachment or if he is abroad it may be. done by his agent Lodge v Lodge 5 Mason s C C R 407. Pennsylvania Levy and condemnation under an execution keep a judgment alive and preserve the. lien without a scire facias United States v The Mechanics Bank Gilpin s D C R 54. Where there is a scire facias to revive a judgment the defendant cannot avail himself of matters of. defence which occurred previous to the original judgment United States v Thompson Gilpin s D. Laws which relate to practice process or modes of proceeding before or after judgment are excep. tions to the 34th section of the judiciary act of 1789 as Congress have legislated on the subject The. Supreme Court of the United States have established the distinction to be this State laws which fur. nish the court a rule for forming a judgment are binding on the federal courts not laws for carrying. that judgment into execution that is governed by the acts of Congress and the rules of practice adopt. ed in pursuance thereto Thompson v Phillips Baldwin s C C R 274. The act of the legislature of Ohio of February 1820 relative to proceedings against parties to pro. missory notes by which all the parties to a note might be proceeded against in one suit was a very wise. and benevolent law and its salutary effects produced its immediate adoption into the practice of the. courts of the United States and the suits have in many instances been prosecuted under it Fullerton. v The Bank of the United States 1 Peters 604, Although the act of the legislature of Ohio regulating the mode of proceeding in actions on promis. sory notes was passed after the making of the note upon which this action was brought yet the circuit. court of the United States for the district of Ohio having incorporated the action under that statute. with all its incidents into its course of practice and having full power by law to adopt it there does. not appear any legal objection to its doing so in the prosecution of the system under which it has always. acted Yeaton v Lenox 8 Peters 123, The process act of 1828 expressly adopts the mesne process and modes of proceeding in suits at com. mon law then existing in the highest state court under the state laws which of course included all the. regulations of the state laws as to bail and exemptions of the party from arrest and imprisonment In. regard also to writs of execution and other final process and the proceedings thereupon it adopts. an equally comprehensive language and declares they shall be the same as were then used in the courts. of the state Beers v Haughton 9 Peters 329, The circuit court of each district sit within and For that district and are bounded by its local limits. Whatever may be the extent of the jurisdiction of the circuit court over the subject matter of suits in. respect to persons and property it can only be exercised within the limits of the district Congress. might have authorized civil process from any circuit court to have run into any state of the Union It. has not done so It has not in terms authorized any civil process to run into any other district with. the single exception of subpoenas to witnesses within a limited distance In regard to final process. there are two cases and only two in which writs of execution can now by law be served in any other. district than that in which the judgment was rendered one in favour of private persons in another dis. trict of the same state and the other in favour of the United States in any part of the United States. Toland v Sprague 12 Peters 300,VOL IV 36 2 A2,282 TWENTIETH CONGRESS SEss I CH 69 1828. Nothing in SEC 4 And be it further enacted That nothing in this act contained. this act to be shall be construed to extend to any court of the United States now. construed to ex, tendsto any established or which may hereafter be established in the state of Louisi.
court c ana a,APPROVED May 19 1828, May 23 1828 CHAP LXIX n 2ct to authorize the building of lighthouses and for other. Secretary of Be it enacted by the Senate and House of Representatives of the United. the Treasury States of America in Congress assembled That the Secretary of the. empowered to, provide for Treasury be and he is hereby empowered to provide by contract for. building light building lighthouses and light vessels and erecting beacons and placing. houses c buoys on the following sites and shoals to wit. AtDice sHead In the state of Maine a lighthouse at Dice s Head. On Nobsque In the state of Massachusetts a lighthouse on Nobsque point one on. point the Point of Flats at the entrance of Edgartown harbour a lighthouse. on Dumpling rock south of the mouth of Aponeganset river. On Nayat In the state of Rhode Island a lighthouse on Nayat point and two. point c pyramids or spindles to wit one on a reef of rocks under water oppo. site to Pawtuxet and one on a reef of rocks opposite the Punham Rock. in the northern part of Narraganset bay, Beacon light In the state of Connecticut a beacon light on or near the Spindle. on Spindle Rock at the mouth of Black Rock harbour. Two light In the state of New York two small lighthouses to wit one on the. houses north of flats two miles north of Kinder Hook upper landing called the Drowned. Hook Lands and one on the point of the island on the west side of the chan. nel opposite the lower landing A lighthouse at a proper site at or near. Portland on Lake Erie, Two light In the state of Maryland two lighthouses one on Little Watt s Island. ouses on Litle t the south eastern extremity of Tangier Sound and the other on Clay. c Island at the northernmost extremity of the same sound and a beacon. light or a small lighthouse on Point Lookout in the Chesapeake bay. Lighthouse In the state of Virginia a lighthouse on Smith s point at the mouth. on Smith s,of the Potomac in the Chesapeake bay, Light vessel In the state of North Carolina a light vessel to be substituted for the.
to be substitu lighthouse heretofore directed to be built at the Point of Marsh at the. ted c mouth of Neuse river, Beacon light A beacon light or small lighthouse at a proper site on Pamptico point. ihouse on Pam,tico Sound c,and one at the south entrance of Roanoake marshes. Lighthouse in In the state of Alabama a lighthouse at or near Choctaw point in. Mobile bay c Mobile bay and an iron spindle on Sand island on the outer bar of. Mobile bay, Two light In the territory of Michigan two lighthouses one at Otter creek. houses one at, Otter creek point at the head of Lake Erie and the other on the Island of Bois. point c Blanc near Michilimacinac, Lighthouse In the territory of Florida a lighthouse at the mouth of St John s river.
John sriver SEC 2 And be it further enacted That the following sums of money. priated toPb be appropriated and paid out of any moneys in the treasury not otherwise. paid from the appropriated for the purpose of carrying the provisions of this act into. treasury effect viz, Lighthouse For building a lighthouse on Dice s Head five thousand dollars. on Dice s Head, Lighthousee For the lighthouse on Nobsque point three thousand dollars and for. on Nobsque the pier and lighthouse at the entrance of Edgartown harbour five thou. Rock c sand five hundred dollars, Dumplinthgroek For a lighthouse on Dumpling rock four thousand dollars. a See an act to regulate the mode of practice in the courts of the United States in Louisiana May.


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