Chapter CCLV. to further the Administration of Justice
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CHAP. CCLV.— An Act to further the Administration of Justice.June 1, 1872. *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,* That whenever, in any suit orIn proceedings in circuit courts of the United States, when the judges differ, the opinion of the presiding justice or judge to prevail. proceeding in a circuit court of the United States, being held by a justice of the Supreme Court and the circuit judge or a district judge, or by the circuit judge and a district judge, there shall occur any difference of opinion between the judges as to any matter or thing to be decided, ruled, or ordered by the court, the opinion of the presiding justice or the presiding judge shall prevail, and be considered the opinion of the court for the time being; but when a final judgment, decree, or order in such suit or proceeding shall be entered, if said judges shall certify, as it shall be their duty toUpon certificate of difference of opinion, &c., either party may remove the case to the Supreme Court.1802, ch. 31.Vol. ii. p. 106. do if such be the fact, that they differed in opinion as to any question which, under the act of Congress of April twenty-ninth, eighteen hundred and two, might have been reviewed by the Supreme Court on certificate of difference of opinion, then either party may remove said final judgment, decree, or order to the Supreme Court, on writ of error or appeal, according to the nature of the case, and subject to the provisions of law applicable to other writs of error or appeals in regard to bail and supersedeas.
Sec. 2. That no judgment, decree, or order of a circuit or district courtWrits of error, &c., to Supreme Court to be sued out within two years after, &c.; of the United States, in any civil action at law or in equity, rendered after this act shall take effect, shall be reviewed by the Supreme Court of the United States, on writ of error or appeal, unless the writ of error be sued out, or the appeal be taken, within two years after the entry of such judgment, decree, or order; and no judgment, decree, or order of a district court, rendered after this act shall take effect shall be reviewed by a circuit courtto circuit court within one year, &c. of the United States upon like process or appeal, unless the process be sued out, or the appeal be taken, within one year after the entry of the judgment, decree, or order sought to be reviewed: *Provided,* That where a party entitledPersons under disability. to prosecute a writ of error or to take an appeal is an infant, or non compos mentis, or imprisoned, such writ of error may be prosecuted, or197FORTY-SECOND CONGRESS.
Sess. II. Ch. 255. 1872. such appeal may be taken, within the periods above designated after the entry of the judgment, decree, or order, exclusive of the term of such disability. The appellate court may affirm, modify, or reverse the judgment,Power of the appellate court on writs of error, &c. decree, or order brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court as the justice of the case may require.
Sec. 3. That the Supreme Court may at any time in its discretion, andWrits of error may be amended in matters of form, if, &c. upon such terms as it may deem just, and where the defect has not injured and the amendment will not prejudice the defendant in error, allow an amendment of a writ of error, when there is a mistake in the teste of the writ, or a seal to the writ is wanting, or when the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form where the defect has not prejudiced, and the amendment will not injure, the defendant in error; and the circuit and district courts of the United States shall possess the like power of amendment of all process returnable to or before them.
Sec. 4. That a bill of exceptions hereafter allowed in any cause shallBills of exceptions, how may be authenticated. be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause, without any seal of court or judge being annexed thereto; and all process issued from the courts ofProcess when to bear teste. the United States shall bear teste from the day of such issue.
Sec. 5. That the practice, pleadings, and forms and modes of proceedingPractice, pleadings, &c., except in equity, &c., in United States courts to conform to those of State court. in other than equity and admiralty causes in the circuit and district courts of the United States shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of court to the contrary notwithstanding: *Provided, however,* That nothing herein contained shall alter the rules of evidenceRules of evidence not altered. under the laws of the United States, and as practiced in the courts thereof.
Sec. 6. That in common-law causes in the circuit and district courts ofIn common-law causes plaintiffs to have the remedies by attachment, provided by State laws in like cases. the United States the plaintiff shall be entitled to similar remedies, by attachment or other process against the property of the defendant, which are now provided for by the laws of the State in which such court is held, applicable to the courts of such State; and such circuit or district courts may, from time to time, by general rules, adopt such State laws as may be in force in the State in relation to attachments and other process; and the party recovering judgment in such cause shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided by the laws of the State within which said circuitSuch laws to be adopted as rules.Preliminary proofs, &c. or district courts shall be held in like causes, or which shall be adopted by rules as aforesaid: *Provided,* That similar preliminary affidavits or proofs, and similar security as required by such laws, shall be first furnished by the party seeking such attachment or other remedy.
Sec. 7. That whenever notice is given of a motion for an injunction outInjunctions. of a circuit or district court of the United States, the court or judge thereof may, if there appear to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion. Such order may be granted with or without security, in the discretion of the court or judge: *Provided,* That no justice of the SupremeJustices of the Supreme Court not to grant injunctions, except, &c.
Court shall hear or allow any application for an injunction or restraining order, except within the circuit to which he is allotted, and in causes pending in the circuit to which he is allotted, or in such causes at such place outside of the circuit as the parties may in writing stipulate, except in causes198 where such application cannot be heard by the circuit judge of the circuit, or the district judge of the district. Sec. 8. That no indictment found and presented by a grand jury in anyIndictments, &c., not to be affected by defects in matters of form only. district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.
Sec. 9. That in all criminal causes the defendant may be found guiltyIn criminal causes defendants may be found guilty of what offences. of any offence the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged: *Provided,* That such attempt be itself a separate offence. Sec. 10. That on an indictment against several, if the jury cannot agreeWhere there are several defendants the jury may agree upon a verdict as to some, &c. upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly; and the cause as to the other defendants may be tried by another jury.
Sec. 11. That any party or person desiring to have any judgment,Another trial for the others.Security on writs of error, &c., to be given within sixty days, or afterward by permission. decree, or order of any district or circuit court reviewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, may give the security required by law therefor within sixty days after the rendition of such judgment, decree, or order, or afterward with the permission of a justice or judge of the said appellate court.
Sec. 12. That in all criminal or penal causes in which judgment orIn criminal, &c., cases, judgments for fines, &c., may be enforced by execution as in civil cases.Proviso. sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced: *Provided,* That where the judgment directs that the defendant shall be imprisoned until the fine or penalty imposed is paid, the issue of execution on the judgment shall not operate to discharge the defendant from imprisonment until the amount of the judgment is collected or otherwise paid.
Sec. 13. That when in any suit in equity, commenced in any court ofIn equity suits to enforce claims upon property in the district, if there is any absent defendant court may order him to appear, &c. the United States, to enforce any legal or equitable lien or claim against real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer, or demur to the complainant’s bill at a certain day therein to be designated, which order shall be served on such absent defendant, if practicable, wherever found, or where such personal service is not practicable, such order shall be published in such manner as the court shall direct; and in case such absent defendant shall not appear,Orders, how served.Court to have jurisdiction if, &c. plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court in its discretion, and upon proof of the service of publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with processProperty within the district only affected. within the said district, but said adjudication shall, as regards such absent defendant without appearance, affect his property within such district only.
Sec. 14. That when a poor convict, sentenced by any court of thePoor convicts sentenced to pay fine and costs, and imprisoned for thirty days for non-payment may be discharged. United States to be imprisoned and pay a fine, or fine and cost, or to pay a fine, or fine and cost, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and cost, such convict may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such199FORTY-SECOND CONGRESS.
Sess. II. Ch. 255, 256. 1872. fine, or fine and cost, and after notice to the district attorney of the UnitedDischarge of poor convicts. States who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter; and if on examination it shall appear to him that such convict is unable to pay such fine, or fine and cost, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath:
“I doProceedings. solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of (state where oath is administered); and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God.” And thereupon such convict shall be discharged, the commissioner giving to the jailer or keeper of the jail a certificate setting forth the facts.
Sec. 15. That if at any time after such discharge of such convict itIf the convict swears falsely, he may be punished for perjury.1825, ch. 65, § 13.Vol. iv. p. 118. shall be made to appear that in taking the aforesaid oath he swore falsely, he may be indicted, convicted, and punished for perjury, and be liable to the penalties prescribed in section thirteen of an act entitled “An act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes,” approved March third, A.
D. eighteen hundred and twenty-five. Sec. 16. That the fees of the commissioner for the examination andFees of commissioners. certificate provided for in this act shall be five dollars per day for every day that he shall be engaged in such examination. Approved, June 1, 1872.