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the truth: and in the case of The Margaretta, 2 Gall. 415, (the only reported case to be met with relative to the duty of the judge under this act,) it was held, that such was the necessary import of the provision in question; and that the oath of the petitioner was therefore in its nature incompetent evidence. But it certainly was not intended to require of the judge or of the petitioner, to work impossibilities; nor could it have been intended so to fetter the benign spirit of this important and necessary remedy as to render it illusory and ineffectual. And to say nothing of the omission of the legislature to provide the means of compelling the attendance of witnesses, it is to be remembered, that in many, perhaps a majority of cases, the facts upon which the petitioner relies for exculpation, are such, as from their very nature either cannot be, or cannot fairly be presumed to be known to any one but himself. In such instances what can the party do more than to give a full explanation of the circumstances and verify his statement by his own oath? And if there is nothing suspicious upon the face of his statement, and the district attorney representing the United States, and the officers of the customs are unable to disprove, or in any manner to invalidate it, why should it not be adjudged to be true, and as such transmitted to the Secretary of the Treasury? Unquestionably such statements ought to be scanned with a critical and distrustful eye. If there is good reason to believe that others are acquainted with the facts, the petitioner should be required, if possible, to obtain their testimony; and if the explanation is in any degree unsatisfactory, and it can be done without unreasonable delay or hardship, and especially if the district attorney or collector desire it, the petitioner should be required to submit himself to a rigid oral examination under oath. But an inflexible adherence, under all circumstances, to the rule laid down in the case of the Margaretta, it is with great deference apprehended, would impose an unreasonable and unjust restriction upon the remedy provided by this act.
'It is worthy of remark too, that if the oath of the petitioner ought to be excluded as evidence upon the ground that his interest disqualifies as a witness, the oaths of the officers of the customs ought also to be excluded for the same reason: and thus the means of arriving at the truth would be greatly abridged. Nor does the course here insisted upon in fact involve such a departure from established judicial principles and usage, as at first view it may appear to do. It only treats the oath of the petitioner as prima facie evidence of the truth. But it is the familiar practice of courts of equity to grant injunctions upon bills of complaint
unsupported by any other evidence than the oath of the complainant, and to continue them until the positive denial or disproof of the bill on oath. And indeed the principle of adjudging that to be true which is alleged even without oath, upon the one side, and not denied upon the other, runs throughout the science of pleading, and is uniformly acted upon, both in equity and at law. Every decree upon a bill taken pro confesso, and every judgment by default, is founded upon a judicial ascertainment, without proof, of the fact alleged by the party in whose favor such decree or judgment is pronounced: and so, when the right of recovery is contested, every essential fact averred by the plaintiff, and not expressly denied by the defendant, is in like manner adjudged to be true.
'In each of the judicial districts in New York, the practice has been, and unless it has recently been changed in the Southern District still is, in conformity with these views.
The statement of facts.] By the rules of each of the district courts in New York it is made the duty of the clerk to transmit the facts appearing on the inquiry, together with the petition, to the secretary of the treasury: his fees are to be paid by the petitioner before transmission; and when several petitioners or distinct claimants, not being partners, or several cases or importations are embraced in one petition, the clerk is entitled to the same fees as if a distinct petition had been presented in each case. Rules 63, 64, D. C. S. D. and Appendir, Rules 97, 98, D. C. N. D. N. Y.
"The formalities observed, relative to the drawing up and transmission of the statement of facts, probably vary considerably in the several districts. In the Northern District of New York, an order is made and entered, reciting the fact of the presentation of the petition - that it satisfactorily appears that reasonable notice has been given to the district attorney, and to the collector by whom the seizure was made, (or within whose district the fine, penalty or forfeiture was incurred, &c. as the case may be)
that the District Attorney, or collector, (or both of them as the case may be) appeared (or did not appear as the fact may be,) that the judge thereupon proceeded summarily to inquire into the circumstances of the case : and directing that the clerk annex to the petition? a statement of the facts appearing upon such inquiry, and transmit the same to the Secretary of the Treasury.
1 The act, in terms, requires the statement of facts to be annexed to the petition, and transmitted, &c. Perhaps its spirit would warrant the transmission of a copy of the petition instead of the original; and if so, it would VOL. IX.-NO. XVIII.
The clerk, under the direction of the judge, then draws up a statement of the facts, annexes it, together with a transcript of the rule, tested, (after the manner of process) in the name of the judge, and having the seal of the court affixed to it, to the petition, and transmits the whole to the Secretary of the Treasury.
Warrant of remission. When the decision of the Secretary is in favor of the petitioner, a warrant of remission under the seal of the Department is sent to the clerk of the court whence the statement of fact was received. An exemplification of this warrant, under the seal of the court, is then furnished by the clerk to the petitioner; and, provided the case is one to which the authority of the Secretary extends, but not otherwise, it constitutes a valid defence against a legal prosecution for the fine, penalty, forfeiture or disability remitted.
When the decision is adverse to the petition, such decision is also in like manner transmitted to the clerk.'
Robinson's Virginia Practice. Since our last number was published we have examined more particularly Mr. Robinson's book of practice in suits at law, in Virginia, and find it to be very faithfully and skilfully made. It is clear and complete in the division of subjects and distribution of materials. The table of contents gives a very distinct view of all the divisions and subdivisions; and answers the purposes of such a table, and also the alphabetical index of matters, as usually given in law books. Many of the subjects treated in the volume are branches of general law, so that it may be consulted by any lawyer out of Virginia for authorities or rules of proceeding, just as we consult Tidd or any other book of English practice. On such subjects Mr. Robinson has cited English decisions and many of those in the courts of the United States and New York, and some few, here and there, from the reports in the other States. Had he referred still more fully to the practice in parallel cases in the other States, it would have enhanced the value and utility of his book, both in and out of Virginia. The practice in regard to setting off dower, for example, involves a great deal of the law of dower. The rules of
be in more strict conformity with legal usage, to retain the original in the clerk's office. The literal construction of the act, however, seems to be the safer one. It is proper however that the clerk should retain and deposit in his office a copy of the petition and of the statement of facts.
pleading again necessarily involves the law on the subject to which the example selected by way of illustration relates. The same remark applies to setting forth the cause of action, to the practice relating to witnesses and evidence, and indeed to many other titles. In all such cases the practice of other States is of some authority and application in Virginia and, vice versa, that of Virginia in other States; and since the object of an elementary treatise is not only tò furnish the reader with the law as understood by the author, but also to give him a clew to the full and satisfactory investigation of each subject for himself, by referring him to all the law, wherever to be found, that will bear upon the subject, we think that Mr. Robinson would have added to the utility of his treatise by extending his inquiries and references to a wider range. Perhaps, however, he supposed that this would have extended his plan too much, his work is now large, the present volume consisting of nearly seven hundred pages; and, besides, when an author has made a work very convenient and useful, and indeed almost indispensable to the profession in bis own State, upon a plan embracing all that is essential in such a work, and has executed it very faithfully and skilfully upon the plan adopted, it is ungenerous and ungrateful to except to it merely because another might have embraced some few additional advantages, and still more so, if it be doubtful, after all, whether the plan is not the best that was practicable. It would, besides, be expecting too much of a lawyer to require him to be more acquainted with the law relating to practice in other States besides his own, especially when the lawyers in such other States do not themselves know any thing more of the practice, in them, than they can collect piecemeal by inquiries of others and by experience. Payne and Duer's work has led the way in this branch of legal learning, by giving a very full view of the practice in New York. Judge Conkling has made a work relating to the practice in the courts of the United States. In the other States the profession are in as much darkness on points of practice as they were in Virginia before the publication of Mr. Robinson's work. He says, ' The lawyer who commences his career in Virginia, is at a loss to discover in what respects the practice varies from the English. Information of this nature he is under a necessity of seeking from others more experienced than himself.' A similar remark applies to all New England, and we believe to all the United States except New York, and now Virginia. The lawyer, in his professional course, is somewhat in the situation of a navigator who trusts to picking up his latitude and longitude from such
vessels as he may speak on his voyage. He is liable to the same inconvenience from the diversity of replies he may get to his inquiries; for, though the leading doctrines may be settled by decisions and the rules of court, the opinions and decisions of different judges at nisi prius upon the same point will vary from each other; and the same judge will forget at one time what he ruled at another; so that in regard to very many points there will in fact be no such thing as authoritative practice; whereas, if the various decisions and customs are collected together, though many of them may be contradictory, the very circumstance of presenting them together in one general view, will tend to the establishment of uniform rules, and a lawyer will be enabled to find out what in fact the practice is, which, until the law and decisions and the usages on the subject are embodied in a volume, it will be quite impossible for him to do. By giving a full view of the practice in any State, therefore, a lawyer renders a very essential service to the profession, and also to the community - to the community, because he contributes to the settling, and the diffusion of a knowledge of the law, so that the community will by this means have a law on many questions on which there was before practically no law at all.
We give below the entire table of contents of this volume, with some few notes.
TABLE OF CONTENTS. INTRODUCTION. Classification of the courts - and jurisdiction of each class.
1. County and Corporation Courts. Jurisdiction in chancery causes. Do. in civil causes at common law. Do. in criminal causes. Limited jurisdiction of corporation courts. Jurisdiction of quarterly sessions. Do. of monthly sessions. Concurrent jurisdiction of quarterly and monthly sessions. Called courts of oyer and terminer. Called courts of examination.
2. Circuit Superior Courts.
Jurisdictiction in chancery causes. Do, as courts of common law. In relation to criminal causes. Amount requisite in actions at law. Where actions may be brought. Cases of habeas corpus. Writs of error and supersedeas. Cases of mandamus. Cases of certiorari. Controversies concerning mills, wills, and the like. Appeals as of right. Writ of prohibition. Removal of cause by consent. Admiralty cases.
Where counties are on water courses. Duration of term. Special jurisdiction of Henrico circuit court.
3. General Court. 4. Supreme Court of Appeals.
Matter must be equal to one hundred dollars. Excluding all costs. Freehold or franchise. Suits for freedom. Session at Lewisburg. Session at Richmond.