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proceed ex parte to hear and decide the same; and the award of them Proceeding* or any two of them, made in writing signed by them or any two of them, shall by them be returned to the office of the clerk of the said court for the county of Washington, within ten days after such hearing, and, a copy thereof shall within ten days after such return be served upon such of the parties as are residents in the District of Columbia; and if such award be not at the session of the said circuit court, in the county of Washington, next after such return of the said award to the clerk's office, be set aside on account of fraud or partiality in the said commissioners, or other cause deemed sufficient in the opinion of the court, the same shall be final and conclusive between the parties, and shall be recorded by the said clerk; and the sum so awarded being paid to the said clerk for the use of the person entitled to receive the same, the said land, mentioned and described in the said award, shall and may be taken and occupied as a turnpike road and public highway forever: and the said commissioners, upon completing the said survey of the said road, shall return a plat and certificate of such survey to the said clerk, and the same being accepted by the said court shall be recorded by the said clerk, and thereupon the road st, laid out shall be taken, used and occupied as a turnpike road and public highway forever; and the said president, directors and company may thereupon proceed to enter upon the same, and shall cause at least twenty-four feet in breadth, throughout the whole length thereof, to be made an artificial road of stone, gravel or other hard substance, of sufficient depth or thickness to secure a solid and tjrm road, with the surface as smooth as the materials will admit, and so nearly level that it shall in no case rise or fall more than an angle of four degrees with a horizontal line; and the said road shall thereafter be kept in good and perfect repair; and wheresoever upon the said road any bridge shall be deemed necessary, the same shall be built of sound and suitable materials. And in case either of the said commissioners die or refuse to act, or become incapacitated, or shall be removed by the court for misconduct, the said court may appoint another in his place, and when in the opinion of the said president and directors, the said road shall be completed to the extent of twenty-four feet in breadth, the same shall be examined by the said commissioners or any two of them; and if in the opinion of them or any two of them, the said road should have been completed to the extent of at least twenty-four feet in breadth, according to the meaning of this act, they shall certify the same to the said court, or the judges thereof out of court, and their certificate being accepted by the said court or any two judges thereof, and recorded, the said president and directors shall and may thereafter erect and fix one gate and turnpike upon and across the said road, to collect the tolls hereinafter granted to the said company; and it shall be lawful for them to appoint such, and so many toll gatherers as they shall deem necessary to collect and receive of and from all and every person and persons using the said road, the tolls and rates hereinafter mentioned, and to stop any person or persons riding, leading or driving any horses, mules, cattle, hogs, sheep, sulky, chair, chaise, phaeton, chariot, coach, cart, wagon, sleigh, sled or any carriage of burden or pleasure, from passing through the said gate, until the said tolls shall be paid, that is to say: For every score Tolls, of sheep, five cents; for every score of hogs, five cents; for every score of cattle, ten cents; and so in proportion for any greater or less number; for every horse or mule with a rider, three cents; for every stage or wagon and two horses, six cents; for either carriage last mentioned with four horses, ten cents; for every led or driven horse or mule, one cent; for every sulky, chair, chaise or carriage of pleasure, with two wheels and one horse, five cents; for every coach, chariot, phaeton or chaise, with four wheels and two horses, nine cents; for any of the said carriages last mentioned with four horses, eleven cents; for every other carriage

A jury to bo summoned for condemning land and materials for the road.

Scales may be erected for ascertaining weights to be brought over the road.

of pleasure, under whatever name it may go, the like sums according [to] the number of wheels and horses, in proportion aforesaid; for every sled or sleigh used as a carriage of pleasure, three cents for each horse drawing the same; for every sled or sleigh used as a carriage of burden, two cents for each horse drawing the same; for every cart or wagon, whose wheels do not exceed four inches in breadth, three cents for each horse drawing the same; for every cart or wagon, whose wheels shall exceed in breadth four inches, and not exceed seven inches, one and an half cents for every horse drawing the same; for every cart or wagon, whose wheels shall be more than seven inches in breadth, and not more than ten inches, one and a quarter cents for every horse drawing the same; for every cart or wagon, the breadth of whose wheels shall be more than ten inches, and not exceeding twelve inches, one cent for every horse drawing the same; and that all such carriages as aforesaid to be drawn by oxen, or to be drawn by part oxen, or to be drawn by mules in whole or part, two oxen shall be estimated as equal to one horse, in charging all the aforesaid tolls, and every mule as equal to one horse.

Sec. 6. And be it further enacted, That in all cases where stone, grav«l, earth, or sand, shall be necessary for making or repairing the said road, and the said president, directors, and company of Georgetown and Leesburg turnpike road cannot agree for the same, with the owner thereof, then, upon application by the said president and directors, or any person authorized by them, to any one of the judges of the said district court, he may, if he see cause, by warrant, under his hand and scal^ command the marshal of the said district, to summon a jury of thirteen disinterested persons, qualified to serve as petit jurors, in the said circuit court, to meet at the place where such materials may be, on some day, not more than ten days after the date of such warrant, and to give the other party five days' notice of the said time and place, if such party be found within the District of Columbia; and if any one of the said jurors should fail to attend at the said time and place, the marshal may immediately summon talesmen in the place of those who are absent, and shall administer an oath to the said jurors and talesmen, as the case may be, justly and impartially to value the said materials and to assess the damage which the owner thereof shall sustain, by the taking thereof by the said president and directors and company of the Georgetown and Leesburg turnpike road, which valuation and assessment of damages, made by the said jurors, or a majority of them, shall be signed by the said marshal and the jurors, or so many of them as shall agree thereto, and be returned by the marshal to the said clerk of the said court for the county of Washington, to be by him recorded, and shall be conclusive between the parties; and a copy thereof shall be delivered to each of the parties who may be resident in the District of Columbia, and the sum so awarded and assessed being paid to the said clerk of the said court, for the use of the party entitled thereto, the said president and directors may proceed to take and carry away the said materials so valued, for the purposes aforesaid; and the said president, directors and company, shall pay the said marshal five dollars for his services in'summoning and empannelling the said jury, and taking and returning said inquest, and two dollars to each of the jurors so sworn.

Sec. 7. And be it further enacted, That for the purpose of ascertaining the weight that may be drawn along the said road, in any wagon, cart, or other carriage of burden, it shall and may be lawful for the said president, directors and company, to erect and establish scales and weights, at or near the gate erected, or to be erected, in pursuance of this act, as they may think proper; and where there may seem reasonable cause to suspect that any cart, wagon, or other carriage of burden, carries a greater weight than is or shall be by law allowable, it shall be lawful for the toll gatherers, or other persons in their service or employment to prevent the same from passing such gate or turnpike, until such cart, wagon, or carriage of burden shall be drawn into the fixed or erected scales, at or near any such gate or turnpike, and the weight or burden drawn therein ascertained by weighing; and if the person or persons driving or having care or charge of any such cart, wagon, or other carriage of burden, shall refuse to drive the same into any such scales for the purpose aforesaid, the person or persons so refusing shall forfeit and pay the said president, directors and company, any sum not less than five dollars, nor more than eight dollars, to be recovered in the manner hereinafter mentioned.

Sec. 8. And be it further enacted, That no wagon or other carriage with four wheels, the breadth of whose wheels shall not be four inches, shall be drawn along the said road with a greater weight thereon than three tons weight; that no such carriage, the breadth of whose wheels shall not be seven inches, or being six inches or more, shall roll at least ten inches, shall be drawn along the said road with more than five tons; that no such carriage, the breadth of whose wheels shall not be ten inches or more, or being less, shall not roll at least twelve inches, shall be drawn along the said road with more than eight tons; that no cart or carriage, with two wheels, the same breadth of wheels as the wagons aforesaid, shall be drawn along the said road with more than half the burden of weight aforesaid; and if any cart, wagon, or carriage of burden whatever, shall be drawn along the said road with a greater weight than is hereby allowed, the owner or owners of such carriage, if the excess of burden -shall be three hundred weight or upwards, shall forfeit and pay four times the customary tolls, for the use of the company: Provided always, That it shall and may be lawful for the said company by their by-laws to alter any or all the regulations herein contained, respecting the burdens or carriages to be drawn over the said road, and to substitute other regulations, if upon experiment such alterations shall be found conducive to the public good: Provided nevertheless, That such regulations shall not lessen the burdens of carriages above described.

Sec. 9. And be it further enacted, That the president and directors of the said company shall keep, or cause to be kept, fair and just accounts of all moneys to be received by them from the said commissioners first herein named, and from the stockholders or subscribers to the said undertaking, on account of their several subscriptions or shares, and of all moneys by them to be expended in the prosecution of their said work, and shall once at least in every year submit such accounts to a general meeting of the stockholders, until the said road shall be completed, and until the costs, charges, and expenses of effecting the same, shall be fully liquidated, paid, and discharged; and if upon such liquidation, or whenever the whole capital stock of the said company shall be nearly expended, it shall be found that the said capital stock will not be sufficient to complete the said road, according to the true intent and meaning of this act, it shall and may be lawful for the said stockholders, being convened according to the provisions of this act, or their by-laws and rules, to increase the amount to be paid on the shares from time to time, to such extent as shall be necessary to accomplish the work, and to demand and receive the increased amount so to be required on such shares in like manner, and under the like penalties as are herein before provided for the original payments, or as shall be provided by their by-laws.

Sec. 10. And be it further enacted, That the president and directors shall also keep or cause to be kept, just and true accounts of all moneys to be received by their collectors of tolls at the turnpike gate on the said road, and shall make and declare a half yearly dividend aforesaid, in some newspaper printed in the District of Columbia, and at the time and place when and where the same will be paid, and cause the same to be paid immediately.

Vol. III.—3 a 2

Regulation! respecting weights to be brought over the road.

Correct accounts to be kept of receipts and expenditures.

Particular account of tolls received to be kept.

Corporation to keep the road in good repair.

Proviso.

Penalties for evading payment of tolls.

Proviso.

Sec. 11. And be it further enacted, That it shall be the duty of the said corporation to keep the said road in good repair, and if by neglect of their said duty, the said corporation shall at any time suffer the said road to be out of repair, so as to be unsafe or inconvenient for passengers, the said corporation shall be liable to be presented for such neglect. before any court of competent jurisdiction, and upon conviction thereof, to pay the United States a penalty not exceeding one hundred dollars, at the discretion of court; and shall also be responsible for all damages which may be sustained by any person or persons, in consequence of such want of repair, to be recovered in an action of trespass on the case, in any court competent to try the same: Provided always, and it is further enacted, That whenever the net proceeds of tolls collected on said road, shall amount to a sum sufficient to reimburse the capital which shall be expended in the purchase cf such land and making such roads, and twelve per cent. interest per annum thereon, to be ascertained by the circuit court of the United States, in and for the District of Columbia, the same shall become a free road, and tolls shall be no longer collected thereon; and the said company shall annually make returns to said circuit court, of the amount of the tolls collected, and of their necessary expenses, so as to enable said circuit court to determine when said tolls shall cease.

Sec. 12. And be it further enacted, That if any person or persons riding in or driving any carriage of any kind, or leading, riding, or driving, any horses, sheep, hogs, or any kind of cattle whatever, on said road, shall pass through any private gate, bars, or fence, or over any private way or passage, or pass through any toll gate, under any pretended privilege or exemption to which he, she, or they, may not be entitled, or do any act or thing with intent to lessen or evade the tolls for passing through the gate established under this act, such person or persons, for every such offence, shall forfeit to the president and directors not less than three, nor more than ten dollars, to be recovered before any justice of the peace, with costs, in the same manner that small debts are recoverable: Provided, That it shall not be lawful for the company to ask, demand, or receive, from, or for persons living on or adjacent to the said road, who may have occasion to pass by said road upon the ordinary business relating to their farms, so far as the same may in its limits extend on the roads respectively, who shall not have any other convenient road or way by which they may pass from one part to another part thereof, any toll for passing on said turnpike.

Approved, July 13, 1813.

Statute I.

July 10, 1813.

President may cause hulks to be sunk for greater security of ports and harbours.

Appropriation.

Chap. XIII.—An Act providing for the further defence of the ports and hurboun cf the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President be, and he is hereby authorized, whenever the same shall be deemed necessary for the defence and security of any of the ports and harbours of the United States, to cause to be hired or purchased, hulks, or other means of impediment to the entrance of the ships or vessels of the enemy, to be sutik with the consent of the proper authority of the state in which such port or harbour may be, and the same to be removed whenever in his opinion it may be done with safety to such ports or harbours.

Sec. 2. And be it further enacted, That to defray any expense which may be incurred under this act, the sum of two hundred and filly thousand dollars be, and the same is hereby appropriated, to be paid out of any moneys in the treasury not otherwise appropriated.

Approved, July 16, 1813.

Statute I. Chap. XIV.—Jin Act concerning suits and costs in courts of the United States.(a)

Be it enacted by the Senate and House of Representatives of tlie "y'

United States of America in Congress assembled, That whenever there when severat

shall be several actions or processes against persons who might legally actions are

be joined in one action or process, touching any demand or matter in TM"„n^ ^ho"i

dispute before a court of the United States or of the territories thereof, might be legally

(a) Decisions in the Courts of the United States, on the law of Costs.

1. The cost of printing a statement of the case for the Supreme Court, was refused to be allowed as part of the plaintiff's costs. Jennings et al. Plaintiffs in Error v. The Brig Perseverance, 3 Dall. 336; 1 Cond. Rep. 154.

2. On a writ of error to the High Court of Appeals of Maryland, the judgment of that court was reversed, and the judgment of the general court of Maryland was affirmed. The mandate of the Supreme Court was directed to the general court, and the costs of the Supreme Court and of the courts of Maryland were allowed to the plaintiff in error. Clarke, Plaintiff in Error v. Harwood, 3 Dall. 342; 1 Cond. Rep. 157.

3. Co9ts arc not to be awarded against the United States. The United States t,. Ilooo ct al. 3 Cranch, 73; 1 Cond. Rep. 458.

4. A judgment for costs, generally, includes all the costs belonging to the suit, whether prior or subsequent to the rendition of the judgment. If new costs accrue, the judgment opens to receive them. Peyton v. Brooke, 3 Cranch, 92; 1 Cond. Rep. 464.

5. Costs were allowed upon the dismission of a writ of error for want of jurisdiction; the oriein.il defendant being also defendant in error. Winchester r. Jackson et al. 3 Cranch, 514; 1 Cond. Rep. 612.

6. Where there appeared some ground for the prosecution, costs were refused. The United States r. La Vengeance, 3 Dall. 297; 1 Cond. Rep. 132.

7. Where a writ of error is dismissed in the Supreme Court for want of jurisdiction, costs are not allowed. Inglee t,. Coolidge, 2 Wheat. 363; 4 Cond. Rep. 155.

8. Each party is liable to the clerk of the Supreme Court for the fees due to him from each party, respectively. Caldwell v. Jackson, 7 Cranch, 276; 2 Cond. Rep. 490.

9. A copy of the record is not a part of the taxable costs of suit, to be recovered by one party against the other; but the party who requests the copy, must pay the clerk for it. Ibid.

10. It is undoubtedly a general rule, that no court can give a direct judgment against the United States for costs, in a suit to which they are a party, either on behalf of any suitor, or any officer of the government. But it by no means follows, from this, that they are not liable for their own costs. No direct suit can be maintained against the United States. But when nn action is brought by the United States, to recover money in the hands of a party, who has a legal claim against them for costs, it would be a very rigid principle, to deny to him the right of setting up such claim in a court of justice, and turn him round to an application to Congress. If the right of the party is fixed by the existing law, there can be no necessity for an application to Congress, except for the purpose of remedy. And no such necessity can exist, when this right can properly be set up by way of defence to a suit by the United States. U. S. r. Ringgold et al. 8 Peters, 150.

11. The United States do not pay costs in any case. The U. S. t,. Barker, 2 Wheat. 395; 4 Cond. Rep. 181.

12. No judgment or decree can be rendered directly against the United States for costs and expenses. The Antelope, 12 Wheat. 546; 6 Cond. Rep. 629.

14. The fees and compensation to the marshal, where the government is a party to the suit, and his fees or compensation are chargeable to the United States, are to be paid out of the treasury, upon a certificate of the amount, to be made by the court, or one of the judges. Ibid.

15. In cases of reversal, costs do not go of course; but in cases of affirmance they do. When a judgment is reversed for want of jurisdiction, it must be without costs. Montalet t. Murray, 4 Cranch, 46; 2 Cond. Rep. 19.

16. The court below, upon a mandamus, on reversal of its judgment, may award execution for the costs of the appellant in that court. Riddle ct al. v. Mandeville et al. 6 Cranch, S6; 2 Cond. Rep. 307.

17. Where the court ordered the costs to be paid of a former ejectment brought by the plaintiffs in the names of other persons, but for their use, before the plaintiff could prosecute a second suit in his own name for the same land; this was not a judicial decision that the right of the plaintiffs in the first suit was the same with that of the plaintiffs in the second suit. It was perfectly consistent with the justice of the case, that when the plaintiffs sued the same defendant in their own name for the same land, that they should reimburse him for the past costs to which they had subjected him, before they should be permitted to proceed further. Rules of this kind are granted by the court to meet the justice and exigencies of cases as they occur; not depending solely on the interest which those who are subjected to such rules may have in the subject matter of suits which they bring and prosecute in the names of others; but on a variety of circumstances, which, in the exercise of a sound discreticn, may furnish a proper ground for their interference. Henderson and Wife v. Griffin, 5 Peters, 151.

18. Where several claims had been filed by the district attorney, and, before any further proceedings in the cause, Congress remitted the forfeiture, on the payment of duties, costs, and charges: Held, that the district attorney of Massachusetts was entitled to seventeen dollars on each claim. Tho Francis, 1 Gallis. C. C. R. 453.

19. In taxing the costs in prize causes, where there are several claims, some of which are disposed of by a final decree of condemnation, while others are suspended by appeal, the practice is to tax the costs and expenses which have accrued, specially, upon each claim so disposed of, as a separate charge against the same, and to add thereto an average proportion of the general costs and expenses which have accrued in reference to all the claims in the cause. The Hiram and the Hero, 2 Gallis. C. C. R. 60.

20. In prize onuses, the allowance or denial of costs rests in the discretion of the court; and where

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