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OFFICERS. rights of infants, femes covert and persons non compos mentis, until three years after disability removed.29

Provisions

in case of

The judiciary act of 1789 has the following provisions, in his removal. the event of the removal of the marshal by death or otherwise: "In case of the death of any marshal, his deputy or deputies shall continue in office, unless otherwise specially removed; and shall execute the same in the name of the deceased, until another marshal shall be appointed and sworn; And the defaults or misfeasances in office of such deputy, or deputies, in the meantime, as well as before, shall be adjudged a breach of the condition of the bond given, as before directed, by the marshal who appointed them; and the executor or administrator of the deceased marshal shall have like remedy for the defaults and misfeasances in office of such deputy, or deputies, during such interval, as they would be entitled to if the marshal had continued in life, and in the exercise of his said office, until his successor was appointed and sworn or affirmed: And every marshal, or his deputy, when removed from office, or when the term for which the marshal is appointed shall expire, shall have power, notwithstanding, to execute all such precepts as may be in their hands, respectively, at the time of such removal or expiration of office; and the marshal shall be held answerable for the delivery to his successor of all prisoners which may be in his custody at the time of his removal, or when the term for which he is appointed shall expire, and for that purpose may retain such prisoners in his custody, until his successor shall be appointed, and qualified as the law directs.30

Clerk.

Clerk.] The clerk is appointed by the court, and gives security in the sum of two thousand dollars, in the same manner as the marshal.$1

29 Act of 10 April, 1806. s. 1. 30

2. 3. 4. Ls. U. S. 1006.

s. 28.

31 Act of 24. Sept. 1789. s. 7.

money paid

into court or

received by its officers.

Whenever money is paid into court, or received by the offi- OFFICERS. cers of the court, it does not remain in the hands of the officers Deposit of until the order of the court, whether it be in the circuit or district court, but an act of congress requires that it should be immediately deposited in the branch bank within the district, if there be one, and if not, in some incorporated state bank within the district, in the name and to the credit of the court; and that no money, so deposited, shall be drawn from the bank, except by the order of the judge or judges of such court, 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. At each term of the court, it is the duty of the clerk to present to the court a particular account of all the monies remaining in court, or subject to its order.32

take bail,

The clerks of the district and circuit courts are authorised, Clerk may in the absence or in case of the disability of the judges, to take &c. recognizances of special bail, de bene esse, in their courts.33

sioners.

Commissioners to take affidavits and special bail.] The Commiscircuit courts are authorised to appoint such and so many discreet persons in different parts of the district, as they shall deem necessary, to take acknowledgments of bail and affidavits, and by another act, the commissioners so appointed are required to perform the same duties in the district courts.35 And we shall see under the head of circuit court, that such commissioners are also clothed with the same powers as justices and judges, under the thirtieth section of the act of 1789.

Attornies, &c.] The attorney of the United States, for the Attornies. district, by whom the United States always appear, is appointed in the same manner as the marshal. The other attor

32 Act of 3 March, 1817. Ls. U. S. 1648.

33 Act of 8 May, 1792. s. 10. Ls. U. S. 260.

34 Act of 20 Feb. 1812. s. 1. Ls. U. S. 1214.

35 Act of 1 March, 1817. Ls. U. S. 1622.

TERMS.

Terms.

Court how adjourned.

nies and counsellors of the court are admitted from the same grade in the supreme court of the state.

36

Terms.] The terms of the court of the southern district commence on the first Tuesdays of November, February, May, and August, of each year, and are held at the city hall of the city of New York. Those of the northern district are held at Albany on the third Tuesday of January and second Tuesday of May, and at Utica on the last Tuesday of August. The duration of the terms is not limited by law, and either court may hold special sessions at any time and place, at the discretion of the judge.40

39

In case of the inability of the judge to attend at the commencement of a session, or on the day appointed for the holding a special or an adjourned court, the court may, by virtue of a written order from the judge of the district, directed to the marshal, be adjourned by him, to such day, antecedent to the next stated session of the court, as shall be appointed in the order;41 or if it be a special or an adjourned court, to the next stated term, or to any day prior thereto, appointed in the order. 42 In case of a vacancy by the death of a judge, all process, pleadings and proceedings continue over until the next term after the office is again filled. And in case of contagious sickness, the district judge is authorised to issue his order to the marshal, directing him to adjourn the court to some convenient place within the district; which he is to do, by publishing the order in the newspapers until the commencement of the session.44

43

36 Act of Sept. 24. 1789. s. 3. Ls. U. S. 54.

37 Act of March 3, 1825. Ls. U. S. 1985.

38 Act of 1 Feb. 1826. Ls. U. S. 2015. Act of 2 March, 1821. Ls. U. S. 1813. Act of 1818, ante.

4o Act of 1789. s. 3. Sup. act of 1818. s. 2. sup.

41 Act of 1789. s. 6.

42 Act of 26 March, 1804. Ls. U. S. 941.

43 Act of 1789. s. 6.

44 Act of 25 Feb. 1799. s. 7. Ls. U. S. 565.

SECTION II.

OF THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK.

JURISDIC-
TION.

--

lished.

This court, which belongs to the second 45 of the great cir- When estab cuits into which the United States is divided, was established by the same act of 1789, to which we have before referred, and has, with a short interruption,46 continued to exist from that period without any very material alteration.

tion.

The court, as originally constituted, consisted of two jus- Organizatices of the supreme court of the United States and the district judge of the district; but the number of its justices was afterwards reduced by taking from it one of the justices of the supreme court; and at different times, different justices of that court have been assigned to it; but it now consists of the justice residing within the circuit, and the district judge of the district.47 But it is provided, that in any case of appeal or error, judgment shall be rendered in conformity with the opinion of the presiding judge, and that the district judge shall not give a vote in a matter thus coming up from his own decision, the district judge being allowed to assign the reasons for such decision.48 When but one judge attends, he is authorised to hold the court alone.49

JURISDICTION.

The circuit court has no jurisdiction except what is given Jurisdiction. by some statute;50 and none in cases arising under the laws of

45 Act of 29 April, 1802. s. 4. Ls. U. S. 53. Act of 1802. s. 5.

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JURISDIC-
TION.

General

the United States unless it be so given.51 A party therefore who has acquired rights under the laws of the United States 52 principles by or is charged with any liability for acts performed under their defined. sanction,5 is not entitled to a trial in this forum, unless by the express provision of such laws.

which it is

Particular

heads of jurisdiction.

But where a party is entitled to sue in the circuit court, he is in general entitled to pursue all the remedies for the vindication of his rights which the laws of the state authorise him to pursue in the state courts.54 These appear to constitute the general limits of the jurisdiction of the circuit court.

The common law jurisdiction of the circuit court in civil suits, which is either original or appellate, and depends on the subject matter of the suit or the character of the parties, may be divided under the following heads. 1. It has original jurisdiction of all suits at common law, where the United States, or any officer thereof, under the authority of any act of congress, shall sue. 2. Where the matter in dispute exceeds, exclusive of costs, five hundred dollars, and the suit is between an alien and a citizen of the United States, or between a citizen of this state and a citizen of another state, except it be upon an assigned chose in action, other than a foreign bill of exchange, upon which a suit could not have been brought in the court if no assignment had been made, the court has original jurisdiction; and has also appellate jurisdiction, in such cases without exception, by the removal of actions from the state courts, if the suit be brought there against an alien, or by a citizen of the state against a citizen of another state. 3. It has the like appellate jurisdiction by removal of actions from a state court, where the title of land is concerned, and the parties are citizens of the same101 state, and the matter in dispute exceeds five hundred dollars, exclusive of costs, and the party

51 1 Paine Rep. 45. 5 Cranch. Wheat. Rep. 222. 223. Quere. Is 85. 7 Ib. 504. 5 Ib. 303. he not entitled to the remedies in 525 Cranch. 85. 9 Wheat. Rep. use in the circuit court in 1792? vid. post.

817.

53 2 Wheat. Rep. 1.

42 Mason. Rep. 472. See 3

101 Quere. This state?

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