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argument,so time of filing referee's report,52 discontinuance,52 opening judgment by default,5suspension of judgment pending writ of error. 54

In following a State statute, the Federal courts usually read the word “county" as “judicial district.” 55 A State statute authorizing an action to be brought in a firm name was not followed in an action at common law in the Federal court there held. A State statute allowing an association consisting of seven or more to sue and be sued in the name of one of its officers, was followed at common law in the Federal court sitting in such State, but not in a Federal court sitting in another State.58

A State statute providing that a county can be sued only in a specified court; 59 or that a foreign corporation cannot sue until it has complied with certain statutory requirements,60 or that an action cannot be brought upon a judgment without leave of the court that rendered it,61 or that a special appearance for the purpose of objection to the jurisdiction is equivalent to a general appearance, or regulating the practice in applying for, and giving the right in certain cases to postponements of trials or to continuances,62 is not binding on a Federal court.

In criminal actions the Circuit and District Courts follow

cannot be ordered at common law. 67 Hoey v. Coleman, 46 Fed. R. 221, Bertha Z. & M. Co. v. Carico, 61 Fed. 224. See supra, & 19. R. 132, 136. For the practice in 58 Chapman v. Barney, 129 U. S. equity, see supra, $ 88.

677, 682. See supra, S 19. 50 Rosenbach v. Dreyfuss, 2 Fed. 59 Cowles v. Mercer County, 7 Wall. R. 23.

118; Lincoln County v. Luning, 133 51 Parker v. Ogdensburg & L C. R. U. S. 529; Chicot County v. SherCo., 79 Fed. R. 817.

wood, 148 U. S. 529. 52 Nussbaum v. Northern Ins. Co., 60 Bank of British N. A. v. Barling, 40 Fed. R. 337; Gassman v. Jarvis, 44 Fed. R. 641; affirmed as Barling 94 Fed. R. 603.

v. British Bank of N. A. (C. C. A.), 53 Brown v. Phila., W. & B. R. Co., 50 Fed. R. 260. 9 Fed. R. 183. But see infra, $ 379. 61 Phelps v. O'Brien Co., 2 Dill. 318;

54 U. S. v. Sturgis, 14 Fed. R. 810. Union Tr. Co. v. Rochester & P, R.

55 Lung Chung v. No. Pac. Ry. Co., Co., 29 Fed. R. 609. 19 Fed. R. 254, 257; Treadwell v. Sey- 62 So. Pac. Co. v. Denton, 146 U. S. mour, 41 Fed. R. 579; Miller's Adm'r 202, 209. Cf. Mexican C. Ry. Co. v. v. Norfolk & W. R. Co., 41 Fed. R. Pinckney, 149 U. S. 194. 431.

63 Texas & Pac. Ry. Co. v. Nelson S6 Adams v. May, 27 Fed. R. 907. (C. C. A.), 50 Fed. R. 418.

the old practice at common law, except in so far as the same has been changed by a Federal statute.64

S 361. Writs and process in general.— The Revised Statutes provide that “all writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof."1 It has been held in the Second Circuit that a rule of State practice which permits an attorney to issue a summons, subpoena, or other process without the seal of the court or the signature of the clerk, will not be followed by the Federal court;? and a summons issued without such seal and signature is void, and cannot be cured by amendment.*

Writs and process which issue from the Supreme Court or a Circuit Court must bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence, and those issuing from a District Court must bear teste of the judge of that court or, when that office is vacant, of the clerk thereof. All process must bear teste from the day of its issue. It has been held that a writ with the proper seal, but wrongly tested, may be amended.

The Supreme Court has power to issue writs of prohibition to the District Courts when proceeding as courts of admiralty and maritime jurisdiction, and power to issue writs of mandamus to any courts appointed under the authority of the United States; and where a State, public minister, consul, or vice-consul is a party, to persons holding office under the authority of the United States. In cases of which the Supreme Court has original jurisdiction, it may issue any writ used in practice at common law, although there is no statutory authority for the same. The Supreme Court, the Circuit Courts of Appeal, the

64 U. S. v. Maxwell, 3 Dill. 275; Contra, Chamberlain v. Mensing, 47 U. S. v. Nye, 4 Fed. R. 888; U. S. v. Fed. R. 435. Reid, 12 How. (U. S.) 361; Erwin v. 3 Dwight v. Merritt, 4 Fed. R. 614; U. S., 37 Fed. R. 470, 488.

Peaslee v. Haberstro, 15 Blatchf. 472. 8 361. 1U. S. R. S., § 911. A notice Contra, Chamberlain v. Mensing, 47 to a garnishee is not process; it may Fed. R. 435. be signed by the marshal; and it 4 U. S. R. S., § 911. need not be signed by the clerk nor 5 U. S. R. S., S 912. bear the seal of the court.

6 U. S. v. Turner, 50 Fed. R. 734. Cohn, 63 Fed. R. 759.

? U. S. R. S., 8 688. See § 362. $ 300.

8 U. S. R. S., $ 688. See 363. 2 Dwight v. Merritt, 4 Fed. R. 614; 9 Kentucky v. Dennison, 24 How. 66. Peaslee v. Haberstro, 15 Blatchf. 472.

Wile v.
See supra,

Circuit Courts, and the District Courts have power to issue writs of scire facias, and all writs, not specifically provided for by statute, which are necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law.10

The Revised Statutes provide that “No summons, writ, declaration, return process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleading, upon such conditions as it shall, in its discretion, and by its rules, prescribe.” Where the State statute permits a writ of attachment to be amended by the addition of a seal, such a writ may be so amended by the Federal Court after a removal.12

It has been held that an omission in the papers upon which an attachment has been granted may be supplied by an amendment in a case where the State practice does not permit such an amendment; 13 that pleas verified before the wrong officer may be corrected by amendment and the proper verification

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10 Ú. S. R. S., S 716; 26 St. at L. 829, Ct. Cl. 168; Gulf, C. & S. F. Ry. Co. $ 12. In Stewart v. Justices of St. v. James, 48 Fed. R. 148, 150; U. S. Clair Co. Court, 47 Fed. R. 482, 484, R. S., SS 636, 948, 914, 5595, 5596. It Judge Philips said: “By this is meant has been said that U. S. R. S., $ 602, the mode of process in the State providing for the continuance of all where the United States Circuit process, pleadings and proceedings Court sits."

during a vacancy, is a remedial statNU. S. R. S., S 954. See Parks v. ute, to be liberally construed in aid Turner, 12 How. 39, 46; Roach v. of its general purpose. U. S. v. MurHulings, 16 Pet. 319; Tilton v. Co- phy, 82 Fed. R. 893. field, 93 U. S. 163, 167; Jacob v. U. S., 12 Wolf v. Cook, 40 Fed. R. 432. Brock, 520, 525; Rosenbach v. Drey- 13 Bowden v. Burnham, 59 Fed. R. fuss, 1 Fed. R. 391; U. S. v. Batch- 752, 754; Erstein v. Rothschild, 22 elder, 9 Int. Rev. Rec. 98; Warren Fed. R. 61, 64; Booth v. Denike, 65 v. Moody, 9 Fed. R. 673; Thomas v. Fed. R. 43; infra, S 369. U.S., 15 Ct. Cl. 242; Russell v. U. S., 15

added on the trial; 14 that an amendment adding to a pleading allegations as to the difference of citizenship between the party may be allowed after judgment; 15 and that, in a suit originally brought in a Federal court, an amendment changing the suit from an action at common law to one in equity cannot be allowed. 16 Amendments are rarely allowed to the plaintiff in penal actions and actions to enforce forfeitures.17

The Revised Statutes make it the marshal's duty to execute, throughout the district, all lawful precepts directed to him and issued under the authority of the United States, 18 and give him and all his deputies the same powers as the sheriffs in the same State and their deputies.19 It has been held at circuit that process, other than subpoenas ad testificandum,20 can only be served by the marshal or his deputy; 21 but that, when the laws of the State give such power to a sheriff, the marshal may appoint a person to serve a particular writ or perform any other special service, and that the blank form of a writ, signed and sealed, may be given by the clerk to an attorney; that the attorney may fill in the writ, in his own handwriting, with the names of the parties, style of action, and date; that the marshal may give the attorney a blank form appointing a deputy in which the attorney may write the name of the processserver; and that when the writ as served is indorsed by an attorney not admitted to practice in the Federal court but qualified for admission, the court may amend it withoui thereby invalidating the service, by substituting another attorney, or by admitting the attorney to practice in such court.23 The Supreme Court has said, speaking of the act requiring a con

14 Bank of Edgfield v. Farmers' C. to the statutes of Oregon. Holden v. M. Co., 52 Fed. R. 98.

Williams, 75 Fed. R. 798. See supra, 15 Maddox v. Thorn, 60 Fed. R. 217. & 340.

16 Hirsh v. Jones, 56 Fed. R. 137. 20 Russell v. Ashley, Hempst. 546; See as to removal cases, infra, & 391. Miller v. Scott, 6 Phila. (Pa.) 484;

17 U. S. v. Batchelder, 9 Int. Rev. Schwabacker v. Reilly, 2 Dill. 127. Rec. 98.

21 Schwabacker v. Reilly, 2 Dill. 127. 18 U. S. R. S., $ 787.

But see Amy v. Watertown, 130 U. S. 19 U. S. R. S., $ 788. Deputy United 301, 304; Hyman v. Chales, 12 Fed. R. States marshals in Alaska appointed 855; U. S. v. Jailer of Fayette Co., 2 under the act of May 17, 1884, may Abb. U. S. 265. execute process issued by United 22 Hyman v. Chales, 12 Fed. R. 855. States commissioners exercising the 23 Jewett v. Garrett, 47 Fed. R. 625. powers of justices' courts according

formity with the State practice in actions at common law: “There can be no doubt, we think, that the mode of service of process is within the categories named in the act;” 24 but where the Federal court adopted a rule regulating the service of process in accordance with the then State practice, it was held that service thus made was good although the State practice had subsequently been amended. Where the State practice requires a summons to run in the name of the State, the summons, if properly tested, need not run in the name of the United States. 26 Where a marshal, who had seized goods under a writ of replevin directing him to deliver them to the plaintiff, permitted the plaintiff's agents to pack them, load them into a car and procure a shipping receipt and bill of lading for the same, it was held that the goods had been delivered to the plaintiff and passed out of the custody of the Federal court, so that the State court might attach them.27

§ 362. Writs of prohibition.— A writ of prohibition is a writ issuing out of a court of superior jurisdiction, and directed to an inferior court for the purpose of preventing the inferior tribunal from usurping a jurisdiction to which it is not entitled. A writ of prohibition is a civil proceeding even when designed to stop a criminal proceeding?

The Supreme Court has power to issue writs of prohibition to the District Courts of the United States when proceeding as courts of admiralty: In a similar case a writ of prohibition may issue to the District Court of the United States for the District of Alaska. Where the court of admiralty has jurisdiction of the vessel sued and of the subject matter, the Supreme

24 Amy v. Watertown, 130 U. S. 301, & 362. 1 High, Ex. Rem., $ 762. The 304

history of the writ of prohibition is 25 Shepard v. Adams, 168 U. S. 618. well described in a letter by Prof.

26 Chamberlain v. Mensing, 47 Fed. Theodore W. Dwight to the New R. 435. It has been held that the York Tribune, published June 29, power of the Federal courts to issue 1891; and reprinted in the second the writ of capias ad satisfaciendum edition of this work in a note to this is derived from the judiciary and section. process acts of 1789, and is not af- 2 Farnsworth v. Montana, 129 U. S. fected by the Illinois statute of June 104, 113; Smith v. Whitney, 116 U. S. 17, 1895. U. 8. v. Arnold (C. C. A.), 167. 69 Fed. R. 987.

3 U.S. R. S., $ 688; Ex parte Phænix 27 Animarium Co. v. Bright, 82 Ins. Co., 118 U. S. 610. Fed. R. 197.

4 In re Cooper, 138 U. S. 404

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