Act of March 3, 1803, ch. 40. 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. Depositions used in case of sickness, death, &c. 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 as usual. dedimus potestatem to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice,[1] 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 equity, may, according to the usages in chancery direct to be taken.
Sec. 31. And be it [further] enacted, That where any suit shall be depending in any court of the United States, and either of the parties shall die before final judgment, Executor or administrator may prosecute and defend. the executor or administrator of such deceased party who was plaintiff, 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 executor or administrator, as the case may require. Neglect of executor or administrator to become a party to the suit, judgment to be rendered. And if such executor 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.[2] 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 Executor and administrator may have continuance. of the same until the next term of the said court. And if there be two or more plaintiffs Two 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 action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed Surviving plaintiff may continue suit. at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.[3]
- ↑ When a foreign government refuses to suffer the commission to be executed within its jurisdiction, the Circuit Court may issue letters rogatory for the purpose of obtaining testimony according to the forms and practice of the civil law.
Nelson et al. v. The United States, Peters’ C. C. R. 255.
See Buddicum v. Kirke, 3 Cranch, 293; 4 Cond. Rep. 522.
Depositions taken according to the proviso in the 30th section of the judiciary act of 1789, under a dedimus potestatem, according to common usage, when it may be necessary to prevent a failure or delay of justice, are, under no circumstances, to be considered as taken de bene esse. Sergent’s Lessee v. Biddle, 4 Wheat. 408; 4 Cond. Rep. 522.
- ↑ This statute embraces all cases of death before final judgment, and of course is more extensive than the 17 Car. 2, and 8 and 9 W. 3. The death may happen before or after plea pleaded, before or after issue joined, before or after verdict, or before or after interlocutory judgment; and in all these cases the proceedings are to be exactly as if the executor or administrator were a voluntary party to the suit. Hatch v. Eustis, 1 Gallis. C. C. R. 160.
- ↑ In real and personal actions at common law, the death of the parties before judgment abates the suit, and it requires the and of some statutory provision to enable the suit to be prosecuted by or against the personal representatives of the deceased, where the cause of action survives. This is effected by the 31st section of the Judiciary act of 1789, chap. 20.
Green v. Watkins, 6 Wheat. 260; 5 Cond. Rep. 8.
In real actions the death of either party before judgment, abates the suit. The 31st section of the Judiciary act of 1789, which enables the action to be prosecuted by or against the representatives of the
Supreme Court by appeal, the evidence goes with the cause, and it must consequently be in writing. 1 Gallis. C. C. R. 25; 1 Sumner’s C. C. R. 328.
