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be due to the original papers if produced and authenticated in court: Provided, That where suit is brought upon a bond or other sealed instrument, and the defendant pleads "non est factum," or makes his motion to the court, verifying such plea or motion by his oath, the court may take the same into consideration, and, if it appears to be necessary for the attainment of justice, may require the production of the original bond, contract, or other paper specified in such affidavit. R. S. 886; 28 U. S. C. 665.

The transcripts from the books and proceedings of the department of the Treasury and the copies of bonds, contracts, and other papers provided for in section eight hundred and eighty-six of the Revised Statutes shall hereafter be certified by the Secretary or an Assistant Secretary of the Treasury under the seal of the Department. Sec. 17, act of July 31, 1894 (28 Stat. 210); sec. 10, act of Mar. 2, 1895 (28 Stat. 809); 28 U. S. C. 666.

The duties of the auditor are now performed by the Comptroller General. See 1646, post.

757. Habeas corpus; power of courts.-The Supreme Court and the circuit and district courts shall have power to issue writs of habeas corpus. R. 8. 751; 28 U. 8. C. 451.

Circuit courts mentioned in R, S. 751 were abolished by secs. 289–291, Judicial Code of March 3, 1911 (36 Stat. 1167), and their powers and duties transferred to the district courts.

Notes of Decisions

In general.-Federal court cannot interfere | (D. C. 1909) 175 F. 230. And see to the with State's administration of criminal law same effect, In re Boles (C. C. A. 1891), 47 by habeas corpus where State makes available Fed. 75; Ex parte Kenyon (C. C. 1878), process adequate to correct trial errors. Fed. Cas. No. 7720; In re Brickley (D. C. Dunn v. Lyons (C. C. A., 1928), 23 F. (20) 1865), Fed. Cas. No. 1387. It appears, 14, certiorari denied (1928), 276 U. S. 622. however, that the District Court for the

Restriction to territorial jurisdiction.--The Northern District of Illinois bas discharged power to issue writs of habeas corpus is re- prisoners confined in Leavenworth prison, ap stricted to the territorial jurisdiction of the parently on the theory that the court imposcourt to which the application is made. The ing the sentence had jurisdiction to inquire general holding is that the Federal courts on habeas corpus into the validity thereof. have no power or authority to issue a writ See Ex parte Gouyet (D. C., 1909), 175 F. of habeas corpus to be sent out of their re- 230; Ex parte Yee Hick Ho (D. C., 1929), spective jurisdictions. Ex parte Gouyet | 03 F. (20) 360.

758. Habeas corpus; power of judges. The several justices and judges of the said courts, within their respective jurisdiction, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. R. S. 752; 28 U. S. C. 452.

See also section 6, act of March 3, 1925 (43 Stat. 940), as amended by act of June 29, 1938 (52 Stat. 1232), as to authority of circuit court judges to grant writs of habeas corpus.

759. Habeas corpus; conditions for issue of writ.—The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify. R. S. 753; 28 U. 8. C. 453.

760. Habeas corpus; application for writ.-Application for writ of habeas corpus shall be made to the court, or justice, or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth in the complaint shall be verified by the oath of the person making the application. R. 8. 754; 28 U. 8. C. 154.

761. Habeas corpus; allowance and direction of writ.--The court, or justice, or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained. R. 8. 755; 28 U. 8. C. 455.

762. Habeas corpus; time of return.--Any person to whom such writ is directed shall make due return thereof within three days thereafter, unless the party be detained beyond the distance of twenty miles; and if beyond that distance and not beyond a distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days. R. 8. 756; 28 U.S. C. 456.

In regard to the duties of a military officer upon whom has been served a writ of habeas corpus, as well as for the forms of return, etc., see the Manual for Courts-Martial and the Army Regulations.

763. Habeas corpus; form of return. The person to whom the writ is directed shall certify to the court, or justice, or judge before whom it is returnable the true cause of the detention of such party. R. S. 757; 28 U. S. C. 457.

764. Habeas corpus; body to be produced.--The person making the return shall at the same time bring the body of the party before the judge who granted the writ. R. S. 758; 28 U. S. C. 458.

765. Habeas corpus; date for hearing.-When the writ is returned, a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning requests a longer time. R. S. 759; 28 U. S. C. 459.

766. Habeas corpus; hearing and disposition. The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require. R. 8. 761; 28 U. 8. C. 461.

Notes of Decisions Persons in custody of military author. | titling them to habeas corpus, where civil ties.--Arrest and detention of petitioners government was not suspended. U. S. ex. rel. without charges by State militia under order Palmer v. Adams (D. C., 1927), 26 F. (20) from Governor to suppress insurrection vio- | 141. lated petitioners' constitutional rights, en

767. Witness fees.—When any clerk or other officer of the United States is sent away from his place of business as a witness for the Government, his necessary expenses, stated in items and sworn to, in going, returning, and attend. ance on the court, shall be audited and paid; but no mileage or other compensation in addition to his salary shall in any case be allowed. R. $. 850; 28 0. 8. C. 604.

That jurors and witnesses (other than witnesses who are salaried employees of the Government, and detained witnesses) in the United States courts, including the District Court of Hawaii, the District Court of Puerto Rico, and the Supreme Court of the District of Columbia, who attend, including those attending before United States commissioners, shall be entitled to a per diem for each day of actual attendance and for each day necessarily occupied in traveling to attend court, or upon the commissioner, and return home, and, in addition, mileage as hereinafter provided. Sec. 1, act of Apr. 26, 1926 (44 Stat. 323); 28 U.S. C. 600a.

Jurors attending in such courts, or before such United States commissioners, shall receive for each day's attendance and for the time necessarily occupied in going to and returning from the same $4, and 5 cents per mile for going from his or her place of residence to the place of trial or hearing, and 5 cents per mile for returning. Sec. 2, act of Apr. 26, 1926 (44 Stat. 323); 28 U. S. C. 6000.

Witnesses attending in such courts, or before such commissioners, shall receive for each day's attendance and for the time necessarily occupied in going to and returning from the same $2, and 5 cents per mile for going from his or her place of residence to the place of trial or hearing and 5 cents per mile for returning: And provided further, That witnesses (other than witnesses who are salaried employees of the Government and detained witnesses) in the United States courts, including the District Court of Hawaii, the District Court of Puerto Rico, and the Supreme Court of the District of Columbia, who attend court or attend before United States commissioners, at points so far removed from their respective residences as to prohibit return thereto from day to day, shall, when this fact is certified to in the order of the court or the commissioner for payment, be entitled, in addition to the compensation provided by existing law, as modified by this Act, to a per diem of $3 for expenses of subsistence for each day of actual attendance and for each day necessarily occupied in traveling to attend court and return home. Sec. 3, act of Apr. 26, 1926 (14 Stat. 324); 2 U. 8. C. 600c.

Jurors and witnesses in the United States courts, or before a United States commissioner, in the States of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming shall receive for each day's attendance and for mileage the same fees as jurors and witnesses as herein provided. Sec. 4, act of Apr. 26, 1926 (44 Stat. 324); 28 U. 8. C. 600d.

All laws or parts of laws in so far as they are in conflict with the provisions of this Act are hereby repealed. This Act to be effective thirty days after its approval. Sec. 5, act of Apr. 26, 1926 (44 Stat. 324).

Provided further, That no part of the sum herein appropriated shall be used to pay any witness more than one attendance fee for any one calendar day, which fee shall not exceed $1.50. Act of Apr. 27, 1938 (52 Stat. 268).

By section 323, act of June 30, 1923 (47 Stat. 413) as continued in force, the per diem fees authorized to be paid to jurors and witnesses were reduced to $3 and $1.50, respectively, for the fiscal years 1933, 1934, 1935, 1936, 1937, and 1938. The reduction of jurors' fees for the fiscal year 1938 was repealed by the act of Aug. 14, 1937 (50 Stat. 647). The reduction of witness fees for the fiscal year 1939 is covered by the last paragraph, supra, which has been repeated in subsequent appropriation acts.

Notes of Decisions In general.--Under fourth paragraph addi-|(1932), 284 U. S. 444, answering question tional amounts paid as compensation or fees certified from (C. C. A., 1931) 52 F. (20) to expert witnesses cannot be allowed or 313. Certiorari denied (1932) 284 U. S. 683. taxed as costs in cases in the Federal courts, Travel.--Mileage for that part only of the and a State statute authorizing courts to tax necessary travel which is within the district expert witness fees as costs, is inapplicable to can be taxed, under first paragraph above. Federal courts by virtue of this section. Ladd & Tilton Bank v. U. S. (C. C. A., 1929), Henkel v. Chicago, St. P. M. & 0. Ry. Co. 30 F. (20) 334.

CHAPTER 14

COURT OF CLAIMS

Jurisdiction :

Burden of proof as to loyalty, 779. (Judicial Claims against the United States, 768. Code, sec. 161.)

(Judicial Code, sec. 145, par. 1, and Calling on departments for information, 780. sec. 148.)

(Judicial Code, sec. 164.) Counterclaims by the United States, 769. Petition must show ground for relief, 781. (Judicial Code, sec. 145, par. 2.)

(Judicial Code, sec. 165.) Claims of disbursing officers, 770. (Judi- Fraudulent claims, 782. (Judicial Code, cial Code, sec. 145, par. 3.)

sec. 173.) Claims of persons erroneously convicted in New trial on motion of United States, 783. United States Courts, 770a.

(Judicial Code, sec. 175.) Civil War claims excluded, 771.

Cost of printing record, 784. (Judicial Code, Judgments for set-off or counterclaim, 772. sec. 176.) (Judicial Code, sec. 146.)

No interest allowed before judgment, 785. Decree in case of loss by a disbursing officer, (Judicial Code, sec. 177.) 773. (Judicial Code, sec. 147.)

Payment of judgment, 786. (Judicial Code, Costs to prevailing party, 774. (Judicial sec. 178.) Code, sec. 152.)

Final judgment to bar further demand, 787. Claims pending in other courts, 775. (Ju- (Judicial Code, sec. 179.) dicial Code, sec. 154.)

Ascertainment of amounts due United States Time limit for filing claims, 776. (Judicial from debtors, 788. (Judicial Code, sec. Code, sec. 156.)

180.) Petitions and verification, 777. (Judicial | Review by Supreme Court, 789. Code, sec. 159.)

Appearance by Attorney General for defense, Dismissal of petition on account of disloyalty, 790. (Judicial Code, sec. 185.) 778. (Judicial Code, sec. 160.)

Reports by departments on pending cases, 791. 768. Jurisdiction; claims against the United States (Judicial Code, sec. 145, par. 1).-The Court of Claims shall have jurisdiction to hear and determine the following matters:

First. All claims (except for pensions) founded upon the Constitution of the United States or any law of Congress, upon any regulation of an executive department, upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable: Provided, however, That nothing in this section shall be construed as giving to the said court jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as “war claims," or to hear and determine other claims which, prior to March third, eighteen hundred and eightyseven, had been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same. Par. 1, sec. 145, act of Mar. 3, 1911 (36 Stat. 1136); 28 U. 8. C. 250.

When any claim or matter is pending in any of the executive departments which involves controverted questions of fact or law, the head of such department may transmit the same, with the vouchers, papers, documents, and proofs pertaining thereto, to the Court of Claims and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been found, the court shall report its findings to the department by which it was transmitted for its guidance and action : Provided, however, That if it shall have been transmitted with the consent of the claimant, or if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter it has jurisdiction to render judgment or decree thereon, it shall proceed to do so, in the latter case giving to either party such further opportunity for hearing as in its judgment justice shall require, and shall report its findings therein to the department by which the same was referred to said court. The Secretary of the Treasury may, upon the certificate of ang auditor, or of the Comptroller of the Treasury, direct any claim or matter, of which, by reason of the subject matter or character, the said court might under existing laws, take jurisdiction on the voluntary action of the claimant, to be transmitted, with all the vouchers, papers, documents, and proofs pertaining thereto, to the said court for trial and adjudication. Sec. 148, act of Mar. 3, 1911 (36 stat. 1137); 28 U. 8. C. 254.

The reference to "this chapter" in sec. 148, set forth above, is to the chapter in the Judicial Code entitled "Court of Claims.”

Notes of Decisions In general.—The court has no jurisdiction United States can be sued only by its conof an informal claim for services rendered to sent, which may be withdrawn by statute at the War Department unless it has been passed any time. Ginochio v. U. S. (C. C. A., 1934), on by the Secretary of War. Philadelpbia 74 F. (20) 42. Boiler Works v. U. S. (1929), 67 Ct. Cl. 311.

769. Jurisdiction; counterclaims by the United States (Judicial Code, sec. 145, par. 2).-The Court of Claims shall have jurisdiction to hear and determine the following matters :

Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, That no suit against the Government of the United States, brought by any officer of the United States to recover fees for services alleged to have been performed for the United States, shall be allowed under this chapter until an account for said fees shall have been rendered and finally acted upon as required by law, unless the proper accounting officer of the Treasury fails to act finally thereon within six months after the account is received in said office. Par. 2, sec, 145, act of Mar. 3, 1911 (36 Stat, 1137); 28 U. S. C. 250.

The duties of the accounting officers of the Treasury are now performed by the General Accounting Office. See 1646, post.

Notes of Decisions

Fees for services.--A suit by an officer of , and the statute of limitations on suit for such the Army to recover difference in Army pay is pay runs from the time such pay becomes due not a suit by an officer of the United States and payable. Thompson v. U. 8. (1934), 79 to recover "fees for services" within the Ct. Cl. 224. meaning of section 145 of the Judicial Code;

770. Jurisdiction; claims of disbursing officers (Judicial Code, sec. 145, par. 8).The Court of Claims shall have jurisdiction to hear and determine the following matters:

Third. The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of loss by capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible. Par. 3, sec. 145, act of March 3, 1911 (36 Stat, 1137); 28 U. 8. C. 250.

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