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deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate 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. And any person may be compelled to appear and depose as aforesaid in the same manner as to appear and testify in court. And in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court that probably it will not be in his 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. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court which shall try the appeal, 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 otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. Provided, That nothing herein shall be construed to prevent any court of the united states from granting a dedimus potestatem to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice ; which power they shall severally possess, nor to extend to depositions taken in perpetuam rei memoriam, 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 cquity may, according to the usages in chancery direct to be taken.
31. SECT. XXXL Where any suit shall be depending in any court of the united states, and either of the parties shall die before final judgment, the executor or administrator of such deceased party who was plaintifi, petitioner or defendant, in case the cause of action 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 ex, ecutor or administrator, as the case may require. And if such execui. lor or administrator having been duly served with a scire facias from the office of the clerk of the court where such suit is depending, twenty days beforehand, shall neglect or refuse to become a party to the suit, the court may render judgment against the estate of the deceased party, in the same manner as if the executor or administrator had voluntarily made himself a party to the suit : And the executor or administrator who shall become a party as aforesaid, shall, upon motion to the court where the suit is depending, be entitled to a continuance of the same until the next term of the said court. And if there be two or more plaintiffs or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or aclion shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintifis against the surviving defendant or defendants.
32. Sect. XXXII. No summons, writ, declaration, return, process, judyment, or other proceedings in civil causes in any of the courts of the united states, shall be abated, arrested, quashed or reversed, for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, de. fects, 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 specially sit down and express together with his demurrer as the cause thereof. And the said courts respectively shall and may, by virtue of this act, from time to time, amend all and every such imperfecions, defects and wants of fo...?, other than those only which the party demurring shall express as aforesaid, and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts respectively shall in their discretion, and by their rules prescribe.
S3. Sect. XXXIII. For any crime or ofience against the united states, the offender may, by any justice or judge ofthe united states, or by any justice of the peace, or other magistrate of any of the urited states where he may be found agreeably to the usual mode of process against offenders in such state, and at the expense of the united staies, be arrested, and imprisoned or bailed, as the case may be, for trial before such court of the united states as by this act has cognizance of the offence: And copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recog. nizances of the witnesses for their appearance to testify in the case ; which recognizances the magistiate before whom the examination shall be, may require on pain of imprisonment. And if such commitment of the offender, or the witnesses shall be in a district other 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 ofiender, and the witnesses or either of them, as the case may be, to the ristrict in which the trial is to be had. And upon all arrests in criminal cases, baii 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 rourt, 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 evidence, and the usages of law. And if a person committed by a justice of 'the supreme or a judge of a district court for an offence not punishable with death, shall afterwards procure bail, and there be no judge 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.
34. SECT. XXXIV. The laws of the several states, 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.
35. Sect. XXXV. In all the courts of the united states, the parties may plead and manage their own causes personally or by the assistance of such counsel or attornies at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein. And there shall be appointed in each district a meet person learned in the law to act as attorney for the united states in such district, who shall be sworn or affirmed to the faithful execution of his 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 concerned, except before the supreme court in the districi in which that court shall be holden. And he shall receive as a compensation for his services such fees as shall be taxed therefor in the respedive courts before which the suits or prosecutions shall be. And there shall also be appointed a ineet person learned in the law, to act as attorney general for the united states, who shall be sworn or aflirmed, to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the supreme court in which the united states shall be concerned, and to give his advice and opinion upon questions of law when required by the president ofthe united states, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall by law be provided. (See Post Office and Post Roads 42, and Publie Oficers 25.)
ACT of June 4, 1790. (Vol. I. p. 123.) 36. Sect. I. The act, entitied, “An act to establish the judicial courts of the united states,'* shall have the like force and effect within the state of North-Carolina, as elsewhere within the united states.
Sect. II. The said state shall be one district, to be called NorthCarolina district; and there shall be a district court therein, to consist of one judge, who shall reside in the district, and be called a district judge, and shall hold annually four sessions. (Altered, see list of courts, and postea 86, and seq.]
ACT of June 23, 1790. (Vol. I. p. 126.) 37. Sect. I. The act, entitled, “ An act to establish the judicial courts of the united states,"* shall have the like force and effect within the state of Rhode Island and Providence Plantations, as elsewhere within the united states.
SECT. II. The said state shall be one district, to be called RhodeIsland district: And there shall be a district court therein, to consist of one judge, who shall reside in the district, and be called a district judge, and shall hold annually four sessions.
• See the first ac under this title,
ACT of March 2, 1791. (Vol. I. p. 297.) 38. Sect. II. To the end that the act, entitled, “ An act to establish the judicial courts of the united states,"* may be duly administered within the state of Vermont, it is enacted, That the said state shall be one district, to be denominated Vermont district; and there shall be a district court therein, to consist of one judge, who shall reside within the said district, and be called a district judge, and shall hold annually four sessions. [Altered, see list of courts.]
ACT of April 13, 1792. (Vol. II. p. 51.) 39. SECT. III. At each session of the supreme court of the united states or as soon after as may be, the judges of the supreme court aitending at such session shall in writing subscribed with their names (which writing shall be lodged with the clerk of the supreme court and safely kept in his office) assign to the said judges respectively the circuits which they are to attend at the ensuing sessions of the circuit courts ; which assignment shall be made in such manner that no judge, unless by his own consent shall have assigned to him any circuit which he hath already attended until the same hath been afterwards attended by every other of the said judges. Provided always, That if the public service or the convenience of the judges shall at any time, in their opinion, require a different arrangement, the same may take place with the consent of any four of the judges of the supreme court. [See postea 84.]
ACT of May 8, 1792. (Vol. II. p. 102.) 40. Sect. I. All writs and processes issuing from the supreme or a circuit court, shall bear test of the chief justice of the supreme court (or is that office shall be vacant) of the associate justice text in prece. dence; and all writs and processes issuing from a district court, shall bear test of the judge of such court, (or if that office shall be vacant) of the clerk thereof, which said writs and processes shall be under the seal of the court from whence they issue, and signed by the clerk thereof. The seals shall be provided at the expense of the united states.
41. SECT. II. The form of writs, executions and other process, except their stile and the forms and modes of proceeding in suits in those of common law shall be the same as are now used in the said courts respectively in pursuance of the act, entitled, “ An act to regulate processes in the courts of the united states,”'t in those of equity and in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of equity and to courts of admiralty, respectively, as contra-distinguished from courts of common law ; except so far as may have been provided for by the act to establish the judicial courts of the united states, subject however 10 such alterations and additions as the said courts respectively shall in their discretion deem expedient, or to such regulations, as the supreme court of the united states shall think proper from time to time by rule to prescribe to any circuit or district court concerning the same : Pro
* See the first act under this title.
vided, That on judgments in any of the cases aforesaid, where different kinds of executions are issuable in succession, a capias ad satisfaciendum being one, the plaintiff shall have his election to take out a sapias ad satisfuciendum in the first instance.
SECT. III. is repealed. 42. Sect. IV. The marshal shall have the custody of all vessels and goods seized by any officer of the revenue, and shall be allowed such compensation therefor as the court may judge reasonable : And there shall be paid to the marshal the amount of the expense for fuel, candles, and other reasonable contingencies that may accrue in holding the courts within his district, and providing the books necessary to record the proceedings thereof: And such amount, as also the compensations aforesaid to the grand and petit jurors: To the witnesses summoned on the part of the united states, to the clerk of the supreme court for his attendance ; to the clerks of the district and circuit courts for their travelling and attendance ; to the attorney of the district for travelling to court ; to the marshal for his attendance at court; for summoning grand and petit jurors and witnesses in behalf of any prisoner to be tried for a capital offence; for the maintenance of prisoners confined in gaol for any criminal offence, and for the commitment or discharge of such prisoner; and also the legal fees of the clerk, attorney and marshal, in criminal prosecutions, shall be included in the account of the marshal; and the same having been examined and certified by the court or one of the judges of it in which the service shall have been rendered, shall be passed in the usual manner at and the amount thereof paid out of the treasury of the united states, to the marshal, and by him shall be paid over to the persons entitled to the same, and the marshal shall be allowed two and an half percent. on the amount by him so paid over, to be charged in his future account.
43. SECT. V. In every prosecution for any fine or forfeiture incur. red under any statutes of the united states, if judgment is rendered against the defendant, he shall be subject to the payment of costs : And on every conviction for any other offence not capital, the court may in their discretion award that the defendant shall pay the costs of prosecution : And if any informer or plaintiff on a penal statute, to whose benefit the penalty or any part thereof if recovered, is directed by law to accrue, shall discontinue his suit or prosecution, or shall be nonsuit in the same, or if upon trial a verdict shall pass for the defendant, the court shall award to the defendant his costs, unless such informer or plaintiff be an officer of the united states specially authorized to commence such prosecution, and the court before whom the action or information shall be tried, shall at the trial in open court, certify upon record, that there was reasonable cause for commencing the same, in which case no costs shall be adjudged to the defendant.
44. Sect. VI. The fees and compensations to the several officers and persons herein before mentioned, other than those which are above directed to be paid out of the treasury of the united states, shall be recovered in like manner as the sees of the officers of the states respectively for like services are recovered.