FIERI FACIAS (UPON A JUDGMENT FOR THE PLAINTIFF IN ASSUMPSIT). The President of the United States of America, to the Marshal of the District of GREETING: You are hereby commanded, that of the goods and chattels of C. D., in your district, you cause to be made

lately in the Circuit Court of the United States for the

District of

which A. B.,

recovered against

Circuit and him for his damages, which he had sustained, as well on occasion of the non-performance of certain promises and undertakings then lately made by the said C. D. to the said A. B., as for his costs and charges by him about his suit in that behalf expended, whereof the said C. D. is convicted, as appears to us, of record; and if sufficient goods and chattels of the said C. D. cannot be found in your district, then you are commanded that you cause the said damages to be made of the lands and tenements whereof the said C. D. was seized on the

day of

on

or at any time afterwards, in whose hands soever the same may be; and have that money before the judges of the said court at to render to the said A. B. for his damages aforesaid. And have there then this writ. Witness, &c. In other forms of action, the writ is, of course, to be varied accordingly. And so, where the judgment is in favor of the defendant.

CAPIAS AD SATISFACIENDUM.

By the aid of the preceding forms there can be no difficulty in framing this writ.

It will be found easy, also, to frame the Testatum Fi. Fa., and Ca. Sa., the writ of habere facias possessionem, &c.

WRIT OF SCIRE FACIAS (ON A JUDGMENT IN ASSUMPSIT). The President, &c., to the Marshal, &c., GREETING: Whereas, A. B., lately in the District Court in and for the

of

District

before the judge thereof, by the judgment of the said court, recovered against C. D. for his damages which he had sustained, as well, &c., as for his costs and charges, by him, &c., whereof the said C. D. is convicted, as appears of record: nevertheless, execution of the said judgment yet remains, as wel have received information from the said A. B., and we,1 willing that

'Instead of the usual form, we command you, I have elsewhere used the phrase, you are hereby commanded. In general, the change is easily made without varying the form of the process in other respects. But, as will be seen, it is otherwise with a writ of scire facias. In this instance, therefore, I have retained the accustomed form: not

those things which are just and right should have a due execution, do therefore command you, that, by honest and lawful men of your district, you make known to the said C. D. that he be before the judge of the said District Court, at on the day of to show, if he has or know of any cause, why the said A. B. ought not to have execution against him, of the damages aforesaid, according to the force, form and effect of the said recovery, if he shall think it expedient for him so to do; and have you there the names of those by whom you shall so make known to him, and this writ. Witness, &c.

DECLARATIONS.

The chief design of the following forms is to furnish suitable precedents for the averments which are necessary in the cases to which they relate, to enable the Courts of the United States to exercise jurisdiction. [Vide, supra, 342, et seq.]

1. BY AN ALIEN AGAINST A CITIZEN OF THE UNITED STATES. Circuit Court of the United States for the

A. B., who is a subject of the king (or emperor, or a citizen of the republic) of and an alien, complains of C. D., who is a

citizen of the State of

for that, &c.

2. BY A CITIZEN OF THE UNITED STATES AGAINST AN ALIEN.

A. B., who is a citizen of the State of

who is a subject (or a citizen) of

complains of C. D., and an alien, for that, &c.

3. BY A CITIZEN OF ANOTHER STATE AGAINST A CITIZEN OF THE STATE

IN WHICH THE SUIT IS BROUGHT.

A. B., who is a citizen of the State of D., who is a citizen of the State of

complains of C. for that, &c.

choosing to assume the responsibility of introducing a more extensive modification' Perhaps the most simple and convenient mode of avoiding all embarrassment and incongruity, would be to use the first person singular. This would be in strict accordance with established usage. In England, process runs in the name of the king;

4. BY A CITIZEN OF THE STATE IN WHICH THE SUIT IS BRought, AGAINST

rated by that name, by the said State, and having their principal place of business therein, complain of

or

A. B., who is a citizen, &c. (or a subject, &c.), complains of the

company, citizens, &c. [as above].

6. BY THE FIRST INDORSER OF A PROMISSORY NOTE AGAINST THE MAKER, A. B., who is a citizen of the State of

(or a subject, &c., or a citizen, &c., and an alien), complains of C. D., who is a citizen of the State of (or a subject, &c., or a citizen, &c., and an alien), in custody, &c. For that, whereas the said C. D., on

at

made his certain note in writing, commonly called a promissory note, his own proper hand being thereunto subscribed, bearing date the day and year last aforesaid, and then and there deliv ered the said note to one E. F., who is a citizen of the State of

(or a subject, &c., or a citizen, &c., and an alien), by which said note, he, the said C. D., then and there promised to pay, six months after the date thereof, to the said E. F. or order, the sum of for value received; and the said E. F., to whom or to whose order the payment of the said money in the said note specified, was, by the said note, to be made, after the making of the said note, and before the payment of the said money, in the said note specified, to wit, on

aforesaid, at aforesaid, indorsed the said note, his own proper hand being to such indorsement subscribed, by which said indorsement, he, the said E. F., then and there ordered and appointed the said sum of money in the said note specified, to be paid to the said A. B., and then and there delivered the said note, so indorsed as aforesaid, to the said A. B., of which said indorsement so made as aforesaid, who, when he addresses himself officially to his subjects, always speaks in the plural number. Thus, for example, in proclamations, civil commissions, letters patent, &c., the plural form is always used; and so it comes, of course, to be used in process from his courts. In the state of New York, process issues in the name of the people; and therefore the plural form is adopted. But the President of the United States never uses this form. In the examples above given, for instance, of proclamations, commissions to persons appointed to office, and letters patent, the first person singular is always used. Why, then, should it not also be employed in the process?

the said C. D. afterwards, to wit, on

aforesaid, had notice:

by means whereof, and by force of the statute in such case made and provided, the said defendant then and there became liable to pay to the said plaintiff the said sum of money in the said note specified, when he, the said defendant, should be thereunto afterwards requested; and being so liable, he, the said defendant, in consideration thereof, afterwards, to wit, on last aforesaid, at aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money in the said promissory note specified, when he, the said defendant, should be thereunto afterwards requested. Nevertheless, the said defendant, not regarding his said several promises and undertakings, hath not yet paid the said sum of money, or any part thereof, to the said plaintiff (although often requested so to do); but the said defendant to pay him the same hath hitherto wholly neglected and refused, and still doth neglect and refuse, to the damage of the said plaintiff of dollars, and therefore he brings his suit, &c.

7. BY THE INDORSEE AGAINST A REMOTE INDORSER. The form in this case is precisely like that in the last preceding case, except that the intermediate indorsements are to be set out; which, however, may be done without any averment of the citizenship or alienage of the intermediate indorsers; since it is only necessary in this, as in the preceding case (in addition to showing that the parties to the suit possess the requisite character), to show that the immediate or last indorser, might also, before his indorsement to the plaintiff, have maintained a suit on the note against the defendant.

In like manner, in a suit by an alien who "sues for a tort only in violation of the laws of nations, or a treaty of the United States," the character of the plaintiff, and also the fact that the injury complained of arose in the specified manner, must be distinctly stated; and so in a suit in the District Court against a consul or vice-consul, the official character of the defendant must be averred.

With respect to the mode in which it must be made to appear upon the face of the declaration, that the amount in controversy is sufficient to give the court jurisdiction, the directions in the body of the work will, it is believed, be found sufficient. [Vide, supra, 348, et seq.]

II.

OF PROCEEDINGS BY WRIT OF ERROR.

BOND TO BE EXECUTED BY THE PLAINTIFF TO THE DEFENDANT IN ERROR.

Supreme Court of the United States,

or

Circuit Court of the United States for the District of

Know all men by these presents, That we, A. B., &c., are held and firmly bound unto C. D. in the sum of

dollars,

to be paid to the said C. D., his executors or administrators. To which payment, well and truly to be made, we bind ourselves, and each of us, jointly and severally, and our and each of our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated, &c.

Whereas the above named A. B. hath prosecuted a writ of error to the Supreme Court of the United States, or to the Circuit Court of the United States for the District of to reverse the judgment rendered in the above entitled suit, by the [here insert the name of the court to which the writ of error is directed.]

Now, therefore, the condition of this obligation is such, that if the above named A. B. shall prosecute his said writ of error to effect, and answer all damages and costs' if he shall fail to make good his plea, then this obligation shall be void: otherwise the same shall be and remain in full force and virtue.

Sealed and delivered in the presence of

WRIT OF ERROR TO A CIRCUIT COURT.

United States of America, ss.

The President of the United States, to the judges of the Circuit Court of the United States for the District of

GREETING:

Because in the records and proceedings, and also in the rendition of the judgment of a plea which is in the said Circuit Court, before you, between a manifest error hath hapas by

and

pened, to the great damage of the said complaint appears. We being willing that the error, if any hath

2

'If the writ of error is not a supersedeas (vide, supra, 646), the words damages and may be omitted.

In the former editions of this work, in accordance with what is said in a preceding note, instead of the above formula, commencing with the words, "we being