Page:United States Statutes at Large Volume 4.djvu/325



, except the style, and the forms and modes of proceeding in suits in the courts of the United States, held in those states admitted into the Union since the twenty-ninth day of September, in the year seventeen hundred and eighty-nine, in those of common law, shall be in the same in 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 subpœna, 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. Decis. 186.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 persons. 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 it was regularly issued. Ibid.The, provides that the forms and modes of proceeding in courts of equity, and in those of admiralty and maritime jurisdiction, shall be according to the principles, rules and usages which belong to courts of equity, and to courts of admiralty, respectively, as contradistinguished from the 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.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 process 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 court. 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 resident 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 Congress. 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 of 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. He 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.The 14th section of the, authorizes the courts of the United States to issue writs of execution, as well as other writs. Ibid.The 34th section of the, 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, 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 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 practice. Ibid.The statutes of Kentucky concerning executions, which require the plaintiff to endorse on the execution, 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.