each of the said states, respectively, as are now used in the highest court, of original and general jurisdiction of the same, in proceedings in equity, according to the principles, rules, and usages, which belong to courts of 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. Halstead, 10 Wheat. 51; 6 Cond. Rep. 22.
A subpœna duces tecum may issue to the President of the United States. 1 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 parta 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 suggestion 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 of a procedendo. Livingston v. Dorgenois, 7 Cranch, 577; 2 Cond. Rep. 618.The marshal of the District of Columbia is bound to serve a subpœna in chancery, as soon as he reasonably 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 investus 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 Dall. 373.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. 221; 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 be understood to have adopted its use permanently 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 Cond. 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 depirve him of the benefit of having his cause postponed, if his witnesses be absent; but it will justify the court in imposing 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 conform 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 Peters, 45.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 rebellion, 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 v. Swan, 5 Mason’s C. C. R. 35.The act of Massachusetts of 1797, ch. 50, prescribing the modes of serving 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 domicil 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
