« 이전계속 »
PRACTICE AT COMMON LAW IN CIVIL ACTIONS.
§ 360. Common-law practice in general.- Actions at common law are either civil or criminal. The Supreme Court considers the practice of the court of King's Bench in England as affording outlines for its practice at common law. In civil actions at common law the Circuit and District Courts follow in general the practice in the courts of the State where they are held, except in those particulars which are regulated by Federal statute. The Revised Statutes provide, that “the practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts shall conform, as near as may be, to the practice, pleadings and forms, and modes of proceeding existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held, any rule of court to the contrary notwithstanding.": A proceeding begun by an attachment is a civil cause within the meaning of the statute. The phrase “as near as may be” has been held not to mean “as near as may be possible” nor “as near as may be practicable; "5 but to devolve upon the Federal courts the duty of construing and deciding, and to give them the power to reject any subordinate provision in such State statutes, which in their judgment would unwisely incumber the administration of the law, or tend to defeat the ends of justice in their tribunals. The State practice will not be so
$360. 1 Supreme Court Rule 3. 291, 301; Phelps v. Oaks, 117 U. S. 2 U. S. R. S., S 914.
236, 239. 3 U.S. R. S., § 914.
6 I. & St. L. R. Co. v. Horst, 93 U.S. 4 Citizens' Bank v. Farwell (C. C. 291, 301; Phelps v. Oaks, 117 U. 5. 236, A.), 56 Fed. R. 570.
239. See Shepard v. Adams, 168 U. S. 5 L & St. L. R. Co. v. Horst, 93 U. S. 618.