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such conditions as such courts respectively shall in their discretion, and by their rules, prescribe.(1)*
646. Where in a circuit court, a plaintiff in an action, originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of five hundred dollars, or a libellant, upon his own appeal, less than the sum or value of (three hundred) fifty dollars, he shall not be allowed, but at the discretion of the court may be adjudged to pay costs.(2)
647. That whenever there shall be several actions or processes against persons who might legally be joined in one action or process, touching any matter in dispute before a court of the United States, or of the territories thereof, if judgment be given for the party pursuing, he shall not thereon recover the costs of more than one action or process, unless special cause for several actions or processes be satisfactorily shown on motion in open court.(3)
Whenever proceedings shall be had on several libels against any vessel and cargo which might legally be joined in one libel, before a court of the United States, or of the territories thereof, there shall not be allowed thereon more costs than on one libel, unless special cause for libelling the vessel and cargo, or parts of cargo, severally shall be satisfactorily shown. And in proceedings on several libels or informations against any cargo, or parts of
(1) Act 24th September, 1789, sec. 32. Course v. Stead, 2 Dall. 22. Mossman v. Higginson, 4 Dall. 12.
(2) Act 24th Sept. 1789, sec. 20.
(3) Act 22d July, 1813, sec. 1.
• The circuit court may grant leave to amend, after a cause has been remanded by the supreme court for a new trial;-Pollard v. Dwight, 4 Cr. 421.—and after a cause has been remanded, the inferior court may receive additional pleas, or admit any amendment in those already filed, although the supreme court have decided those pleas to be bad on demurrer to them.-Marine Ins. Co. v. Hodgson, 6 Cr. 206. The supreme court will not give directions for amendments, but will leave them to the court below,-Shechy v. Mandeville, 6 Cr. 253.-unless in an appeal in some cases of a libel for a forfeiture.-The Caroline v. U. S. 7 Cr. 496, 470. The Adeline, 9 Cr. 244. The Edward, 1 Wheat. 261. The Divina Pastora, 4 Wh. 52. Day v. Chism, 10 Wheat. 449.
A plaintiff may, before verdict, discontinue any count in his declaration, and waive the issue joined thereon.-7 Cranch, 176.
In revenue or instance causes, the circuit court may, upon appeal, allow the introduction of a new allegation into the information by way of amendment.-The Edward, 1 Wheat. 261.
In admiralty proceedings amendments may be made in the circuit court, by adding a new count to the bill, although the district court had exclusive original jurisdiction of the subject matter; the practice being uniform, to permit the parties whenever public justice and substantial merits require it, to introduce new allegations and new proofs: non allegata, allegare et non probata probare.-The Marianna Flora, 11 Wheat. 1. Anonymous, 1 Gallis 22.
The 32d section act 1789, supra, is sufficiently comprehensive to embrace causes of appellate as well as original jurisdiction: and there is nothing in the nature of an appellate jurisdiction which forbids the granting of amendments. The circuit court may allow amendments in revenue causes or proceedings in rem brought by appeal from the district court.-Anonymous, 1 Gall. 22.
In admiralty and maritime causes, amendments, introductive of new causes of action, are within the scope of the general rule, that the party may make new allegations in the appellate court.-The Harmony, 1 Gallis, 123.
By the above 32d section, the circuit court, on appeal from the district court, may amend defects of form, occurring in the court below, which could have been amended there, or may disregard them in giving judgment. But this power does not extend to defects of substance. Such, however, may be amended in the district court, on terms, and this power is more extensive than any possessed by the English courts. But the amendment must be made before final judgment.-Smith v. Jackson, 1 Paine, 486.
cargo or merchandise, seized as forfeited, for the same cause, there shall not be allowed by the court more costs than would be lawful on one libel or information, whatever may be the number of owners or consignees therein concerned but allowance may be made on one libel or information for the costs incidental to several claims: but in case of a claim of any vessel or other property seized on behalf of the United States, and libelled or informed against as forfeited under any of the laws thereof, if judgment shall pass in favour of the claimant, he shall be entitled to the same upon paying only his own costs.(1)
648. If any informer on a penal statute, and to whom the penalty, or any part thereof, if recovered, is directed to accrue, shall discontinue his suit or prosecution, or shall be nonsuited in the same, or if upon trial judgment shall be rendered in favour of the defendant, unless such informer be an officer of the United States, he shall be alone liable to the clerks, marshals and attorneys for the fees of such prosecution; but if such informer be an officer whose duty it is to commence such prosecution, and the court shall certify there was reasonable ground for the same, then the United States shall be responsible for such fees.(2)
649. Where upon a writ of error the supreme court shall affirm a judgment or decree, they shall adjudge to the respondent in error just damages for his delay, and single or double costs, at their discretion.(3)*
(1) Act 22d July, 1813, sec. 2. (2) Act 28th Feb. 1799, sec. 8.
(3) Act 24th Sept. 1789, sec. 24.
* This discretion extends as well to damages as to costs, and the court is not bound in all cases to adjudge damages for delay.―Jennings v. The Perseverance, 3 Dall. 336. Penhallow v. Doane, 1 Dall. 54. Coton v. Wallace, 3 Dall. 304.
In all cases where a writ of error shall delay the proceedings on the judgment of the circuit court, and shall appear to have been sued out merely for delay, damages shall be awarded at the rate of ten per centum per annum on the amount of the judgment.-Rule sup. ct. Feb. 1803.
In cases where there exists a real controversy, the damages shall be only at the rate of six per centum per annum. In both cases the interest is to be computed as part of the damages.-Rule sup. ct. Feb. 1803.
Costs are of course on the affirmance of a judgment,-Montalet v. Murray, 3 Cranch, 247,-and on the dismissal of a writ of error, where the plaintiff in error does not appear.—Ibid.
But costs are not allowed where a writ of error is dismissed for want of jurisdiction in the supreme court.-Ibid. Ingle v. Coolidge, 2 Wheat. 368. Houston v. Moore, 3 Wheat. 433. M'Iver v. Wattels, 9 Wheat. 650.
In cases of reversal, costs are not of course.-Montalet v. Murray, 4 Cr. 47. Riddle v. Mandeville, 6 Cranch, 86. But on the reversal of a judgment of the circuit court, the party in whose favour a reversal is, shall recover his costs in the circuit court.-Rule sup. court, Feb. 7, 1810. M'Knight v. Craig's adm'rs, 6 Cranch, 183.
The costs of a printed case for the use of the supreme court, will not be allowed in affirming a decree by way of damages for delay.—Jennings v. The Perseverance, 3 Dall. 336.
The United States never pay costs.-U. S. v. Hooe, 3 Cr. 92. U. S. v. Barker, 2 Wheat. 395. U. S. v. La Vengeance, 3 Dall. 301.
All parties in the supreme court, not residents of the United States, shall give security for the costs accruing in that court, to be entered on the record.-Rule of court, Feb. 1808, Wheat. Dig. XII.
Upon the clerk of the supreme court producing satisfactory evidence by affidavit, or the acknowledgment of the parties, or their sureties, of having served a copy of the bill of costs due by them respectively in that court, on such party or their sureties, an attachment shall issue against such parties or sureties respectively, to compel the payment of such costs.-Rule sup. ct. Feb. T. 1808.
Each party is bound to pay the clerk his fees for services performed for him, and it is immaterial which party recovers judgment.-Caldwell v. Jackson, 7 Cr. 276.
650. Writs of execution and other final process issued on judgments and decrees, rendered in any of the courts of the United States, and the proceedings thereupon shall be the same, except their style, in each state, respectively, as are now used in the courts of such state saving to the courts of the United States in those states, in which there are not courts of equity, with the ordinary equity jurisdiction, the power of prescribing the mode of executing their decrees in equity by rules of court: Provided, however, That it shall be 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.(1)*
651. Where it is now required by the laws of any state, that goods taken in execution, on a writ of fieri facias, shall be appraised previous to the sale thereof, the appraisers appointed under the authority of the state, may ap praise goods taken in execution on a fieri facias issued out of any court of the United States, in the same manner as if such writ had issued out of a court held under the authority of the state, the marshal, in whose custody such goods may be, shall summon the appraisers, in like manner as the sheriff is, by the laws of the state, required to summon them: and the appraisers shall be entitled to the like fees as in cases of appraisements under the laws of the state; and if, being duly summoned, they shall fail to attend and perform the duties required of them, the marshal may proceed to sell such goods without an appraisement.(2)
652. All writs of execution, upon any judgment or decree, obtained in any of the district or circuit courts of the United States, in any one state, which shall have been, or may hereafter be, divided into two judicial districts, may run and be executed in any part of such state; but shall be issued, and made returnable to the court where the judgment was obtained, any law to the contrary notwithstanding.(3)†
(1) Act 19th May, 1828.
(2) Act March 2d, 1793, sec. 8.
(3) Act 20th May, 1826.
Counsel fees may be allowed as costs, or as damages in the courts of admiralty. -Wheat. 379. Sed vide Archambel v. Wiseman, 3 Dall. 306.
When by the state laws the court may assess damages in cases of default, the circuit courts may adopt the like practice.-Brown v. Van Braam, 3 Dall. 344.
Where an action is brought for a sum certain, or which may be made certain by computation, as on a bill of exchange, judgment for the damages may be entered up by the court without a writ of inquiry.-Rule of court, 1803.
Costs will be allowed on the dismission of a writ of error for want of jurisdiction, if the original defendant, be defendant in error.-Winchester v. Jackson & al. 8 Cranch, 515.
In case of a claim on proceeds in the custody of the court, where other parties are entitled, no costs can be allowed beyond that for which there is a specific lien and the actual charges of the court. No attorneys' fee can be allowed.—The Jerusalem, 2 Gall. 345.
When a cause is removed from a state court to the circuit court, under the act of congress, the plaintiff is entitled to his costs, although he obtain a verdict for less than five hundred dollars.-Ellis v. Jarvis, 3 Mason, 457.
* The act 19th May, 1828, regulating process in the courts does not extend to the state of Louisiana. See sec. 4.
†The supreme court will not quash an execution issued by the court below, to enforce its decree pending the writ of error, if the writ of error be not a supersedeas to the decree.-Wallen v. Williams, 7 Cr. 278.
An insolvent debtor who has received a certificate of discharge from arrest and imprisonment under a state insolvent law, is not entitled to be discharged from execution at the suit of the United States.-U. S. v. Wilson, 8 Wheat. 253.
In judicial sales there is no warranty express or implied. Neither the marshal nor his agent the auctioneer, has any authority to warrant the article sold.-The Monte Allegre, 9 Wheat, 616.
653. Upon the payment of any money into any district or circuit court of the United States, to abide the order of the court, the same shall be deposited in such incorporated bank as the court may designate, and there remain till it shall be decided to whom it of right belongs: Provided, That if in any judicial district there shall be no incorporated bank, the court may direct such money to be deposited according to its discretion: Provided also, That nothing herein shall be construed to prevent the delivery of any such money upon security, according to agreement of parties, under the direction of the court.(1)
All moneys which shall be paid into the circuit and district courts, or received by the officers thereof, in causes pending therein, shall be immediately deposited in the branch bank within the district, if there be one, otherwise in some incorporated state bank, within the district, in the name and to the credit of the court.(2)
No money so deposited shall be drawn from such banks, except by order of the judge or judges of said courts respectively, in term or in vacation, to be signed by such judge or judges, and to be entered and certified of record by the clerk, and every such order shall state the cause in, or on account of which, it is drawn.(3)
If any clerk of such court, or other officer thereof, having received any such moneys, shall refuse or neglect to obey the order of such court, for depositing the same, such clerk, or other officer, shall be forthwith proceeded against by attachment for contempt.(4)*
654. The clerk of the supreme court of the United States, shall forthwith transmit to the clerks of the several circuit courts, the form of a writ of error, to be approved of by any two of the judges of the supreme court, and the clerks of the said circuit courts may issue writs of error agreeably to such forms, as nearly as the case may admit, under the seal of the circuit courts, returnable to the supreme court, in the same manner as the clerk of the supreme court may issue such writs, in pursuance of the act, entitled, “An act to establish the judicial courts of the United States."(5)†
(1) Act April 18th, 1814.
(4) Ibid. sec. 4.
(5) Act 8th May, 1792, sec. 9.
At each regular and stated session of such courts, the clerks thereof shall present an account to such court of all moneys remaining therein, or subject to the order thereof, stating particularly on account of what causes said moneys are deposited, which account and the vouchers thereof, shall be filed in court. If in any district there shall be no branch of the bank of the United States, nor any incorporated state bank, the courts may direct such moneys to be deposited, according to their discretion.-Act 3d March, 1817, sec. 5.
The clerks respectively are entitled to commissions on money deposited in bank under a decree of the court, and subject to its order.—Ex parte Prescott, 2 Gall. 146.
If the proceeds of a vessel and cargo, condemned as prize by the district court be paid into bank to the credit of the circuit court, the district judge cannot in vacation order it to be drawn out and distribute it; if he does, the circuit court will on motion grant a rule upon the persons receiving the money under such order, to return it to court, or on failure, that an attachment shall issue.-The Ariadne, 1 Pet. 455.
† A writ of error should bear test of the term next preceding that to which it is returnable, and a term must not intervene between the teste and return.—Hamilton v. Moore, 3 Dall. 371. In case of error in or omission of the teste, the writ may be amended by the record of the court, showing the duration of the term.-Course v. Heed, 4 Dall. 24. But a writ of error not returned to the term of the court to which it is returnable, is a nullity.-Blair v. Miller, 4 Dall. 21.
A writ of error may issue after the August term, and bear teste of the preceding
A writ of error shall be a supersedeas and stay execution, in cases only where the writ 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 com. plained of, until the expiration of which term of ten days, execution shall not issue in any case where a writ of error may be a supersedeas.(1)*
(1) Act 24th Sept. 1789, sec. 23.
February term, and be made returnable to the next February term.-Blackwell v. Patten, 7 Cranch, 277.
The clerk of the court to which any writ of error shall be directed, may make return thereof, by transmitting a true copy of the record and of all proceedings in the cause, under his hand and the seal of the court.-Rule sup. ct. Feb. 1797.
The original citation, signed by the judge, must be returned with the record, a copy with affidavit of service on the defendant in error is not sufficient.-Wilson v. Daniel, 3 Dall. 401. If the original citation be not returned, the writ of error will be quashed,—Lloyd v. Alexander, 1 Cranch, 365,—or dismissed.—Bailiff v. Tippany, 2 Cr. 406. But if it be suggested that the citation has been served, but not returned by the clerk below, with the writ of error, a citation will be granted. -Field v. Milton, 3 Cr. 514. Fennemore v. U. S. 3 Dall, 360.
A citation not served, is no citation.-Lloyd v. Alexander, 1 Cranch, 365. If the feme plaintiff below intermarry after the judgment, the citation may be served on her husband.-Fairfax v. Fairfax, 5 Cr. 21. Lloyd v. Alexander, 1 Cr. 365.
If the citation have not been served thirty days before the first day of the term, the court will not take up the cause, until thirty days have expired from the time of such service, though the parties appear. Nor will the court take up the cause at that term, without consent.-Welsh v. Mandeville, 5 Cr. 321.
The bringing up with the record of the proceedings in the circuit court, on a writ of error, the charge of the court at large is a practice which the supreme court deems incorrect and has often disapproved.-Conard v. The Pacific In. Co. 6 Pet. 280. 1 Pet. 386. 4 Pet. 291.
The writ of error is not void, because it does not appear on the record that the judge who granted the writ took the security required by law. The presumption is that such security has been taken, the law does not require it to be returned to the supreme court, and should any prejudice happen by the omission, the supreme court may grant summary relief by imposing terms on the other party.—Martin v. Hunter's lessee, 1 Wheat. 363.
The lodging a copy of the writ for the adverse party in the office of the clerk of the court where the judgment was rendered, is a service of the writ, and if not made until after the return day of the writ, it is void; but if the service be made before the return day of the writ, it is good, though the writ be not returned till after the court has closed its session, provided the opposite party appear, for his appearance waives all objections to the irregularity of the return.-Wood v. Lide,
4 Cr. 181.
Where the value in the controversy does not appear on the record, and time is given to the plaintiff in error, defendant below, to prove it by affidavits, the writ of error is not a supersedeas.-Williamson v. Kincaid, 4 Dall. 20.
In all cases where a writ of error shall be a supersedeas to a judgment rendered in any court of the United States, (except that for the District of Columbia,) at least thirty days previous to the commencement of any term of this court, it shall be the duty of the plaintiff in error to lodge a copy of the record with the clerk of this court, within the first six days of the term, and if he shall fail so to do, the defendant in error shall be permitted, afterwards, to lodge a copy of the record with the clerk, and the cause shall stand for trial in like manner as if the record had come up within the first six days; or he may, on producing a certificate from the clerk, stating the cause, and that a writ of error has been sued out, which operates as a supersedeas to the judgment, have the said writ of error docketed and dismissed. This rule shall apply to all judgments rendered by the court for the district of Columbia, at any time prior to a session of this court.-Rule of court, 20, Wheat. Dig.
The return of a copy of the record under the seal of the court certified by the clerk and annexed to a writ of error, is a sufficient return to the writ of error.-Marun v. Hunter, 1 Wheat. 331.
The record should purport to be an entire copy.-Wilson v. Daniel, 3 Dall. 401.