day laws; 54 of the State where such courts are held; and the construction given to those statutes by the courts of the State which enacted them, so far as they apply, subject to the exceptions already noted. "Statutory modifications of the common law in regard to the rights of husband and wife, as plaintiffs, in actions at law in the courts of a State, are applicable also in the United States courts held in such State, if not inconsistent with the laws of the United States or with the duties which belong to its judges and courts and the powers with which they are clothed." 55 A State statute giving the right to two trials in an action of ejectment will be followed by the Federal courts.56 A State statute providing that an assignee of a cause of action by a written instrument may sue in his own name, although the assignor retains an interest therein, will be followed by a Federal court in an action at common law.57 Where the Federal court had adopted the State practice in serving process, it was held that the State decisions, holding that the sheriff's return was conclusive, must be followed.58 A Federal court refused to follow a State statute giving an attorney a lien upon his client's cause of action, so far as it was construed to require the court to go on and try a cause for the of the State. Lauria v. E. I. Du 54 Bucher v. Cheshire R. Co., 125 U. S. 555, 31 L. ed. 795. 55 The Morning Journal Ass'n v. Smith, C. C. A., 56 Fed. 141, per curiam; Texas & Pac. Ry. Co. v. Humble, 181 U. S. 57, 45 L. ed. 747. 56 Equator M. & S. Co. v. Hall, 106 U. S. 86, 27 L. ed. 114. But see § 376, supra. 57 Dexter, Horton & Co. v. Sayward, 51 Fed. 729, 732. See supra, §§ 453, 454. The right of an assignee of a chose in action to sue in his own name depends upon the law of the forum. Joseph Dixon Crucible Co. v. Paul, C. C. A., 167 Fed. 784. The right of a mortgagee to recover the mortgage debt from a purchaser who had agreed with the mortgagor to pay it, although the deed and mortgage were executed in and covered property solely in New York, where the mortgagee might have sued in a common-law action of assumpsit, was held, when the suit was brought in the District of Columbia, to defend upon the lex fori, and consequently to be maintainable only in a court of equity. Willard v. Wood, 135 U. S. 309, 34 L. ed. 210. See also North Alabama Development Co. v. Orman, 55 Fed. 18; supra, $ 82. 58 Joseph v. New Albany St. & R. M. Co., 53 Fed. 180. See supra, §§ 163, 167a. attorney's benefit after it had been settled by the parties without the satisfaction of his claim.59 § 477d. Notice of lis pendens. The authorities as to how far the State law of lis pendens will be followed are not harmonious. It is the safer practice to comply with the State statutes. This will be sufficient. 3 It has been held in the Second,2 and the Fifth Circuits, that State statutes providing that purchasers without actual notice. of a pending suit are not bound by the proceedings therein unless a notice of lis pendens has been filed in a designated public office, will be followed by the Federal court there held, which will require notice of the pendency of a suit in such a Federal court to be filed in such office so as to bind consequent purchasers. The rule in the Sixth Circuit seems to be otherwise.5 An earlier case in the Sixth Circuit held that because of this doctrine of lis pendens no injunction would be granted to restrain a conveyance of land pendente lite by the defendant to a suit to remove a cloud upon the title thereto, although the complainant had failed to file and record the statutory notice of the pendency of the suit. In New Jersey it has been held that the State statute does not apply to the foreclosure of a mortgage after the mortgagor has been adjudicated a bankrupt 7 and that the District Court of the United States may direct the cancellation of a note of lis pendens in its court there filed in a State office.8 It has been held that the filing of a creditor's bill against an insolvent corporation, in the Federal court, is constructive notice of lis pendens with respect to all property of the corporation in the Federal district; and where the State practice was the 59 Sherry v. Oceanic S. Nav. Co., 72 Fed. 565. § 477d. 1 See Jones v. Smith, 40 Fed. 314; Queens Land & Title Co. v. Kings County Trust Co., 255 Fed. 222. 2 Jones v. Smith, 40 Fed. 314, per Lacombe, J., New York Stat ute. 3 U. S. v. Calcasieu Timber Co., C. C. A., Fifth Ct., 236 Fed. 196. 4 Jones v. Smith, 40 Fed. 314, per Lacombe, J. 5 McCloskey v. Barr, 48 Fed. 130, 132, per Jackson and Sage, JJ. 6 Zander v. Phillips, C. C. A., 213 Fed. 29. 7 Re A. J. Ellis, Inc., C. C. A., 252 Fed. 483. 8 Althaus & Schwartz v. White, D. C. N. J., Sept. 9, 1907, in which the author was counsel. 9 Atlas Ry. Supply Co. v. Lake. & River Ry. Co., 134 Fed. 503. same, that the filing of a bill to set aside deeds, as fraudulent, was notice of lis pendens to all subsequent purchasers or acquirers of encumbrances upon the property,10 at least after the subpoenas had been served upon material defendants. An adjudication of bankruptcy is notice to all the world.11 So is the seizure of a ship upon the filing of a libel in rem in admiralty 12 and the seizure of any other property in a proceeding in rem.13 The custody of receivers is also notice of the pendency of the suit to which they were appointed.14 The Federal courts will refuse to follow any State statutes or decisions which provide that non-resident citizens of other States who hold negotiable paper or chattels beyond the jurisdiction of the court shall have constructive notice of litigation affecting the title or validity of the same.15 A bona fide holder of negotiable paper is not subject to the general doctrine of lis pendens.16 § 478. New Trials. The District courts have power to grant new trials after a trial by jury "for reasons for which new trials have usually been granted in the courts of law.' 1 The power of a Federal court to grant a new trial cannot be enlarged or restricted by a State statute.2 A State statute authorizing a motion for a new trial to be made after the end of the term is not followed. It has been held that a State statute forbidding a new trial for the insufficiency of damages 10 Barstow v. Becket (E. D. Ga. S. D.), 110 Fed. 826. 11 Manson v. Williams, 213 U. S. 453, 53 L. ed. 869, supra, § 186j, infra, Chapter XXXIV. 12 Supra, § 186g, infra, § 565. 13 Supra, § 186g, infra, § 606. 14 Keith Lumber Co. v. Houston Oil Co., C. C. A., 257 Fed. 11. 15 Enfield v. Jordan, 119 U. S. 680, 693, 30 L. ed. 523, 529. 16 Farmers' L. & Tr. Co. v. Toledo & S. H. R. Co., 54 Fed. 759, 772, per Jackson, J. § 478. 1 U. S. R. S., $726; Clark v. Sohier, 1 W. & M. 368; Milliken v. Ross, 9 Fed. 855. 2 Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. ed. 898; Newcomb v. Wood, 97 U. S. 581, 24 L. ed. 1085; Fishbrom v. Chicago, M. & St. P. Ry. Co., 137 U. S. 60, 34 L. ed. 585; U. S. v. Mayer, 235 U. S. 55. But see Travelers' Protective Ass'n v. Gilbert, C. C. A., 55 L.R.A. 538, 111 Fed. 269. 3 U. S. v. Mayer, 235 U. S. 55. See Trafton v. U. S., C. C. A., 147 Fed. 513, 514. Contra Travelers' Protective Ass'n v. Gilbert, C. C. A., 55 L.R.A. 538, 111 Fed. 269. But see infra, § 481. 5 would be unconstitutional as a violation of the Seventh amendment if applied to a Federal court, but that the right to two or more trials of an action for ejectment may be given or taken away by a State statute, which is constitutional even when applied to actions pending when it was passed, and will be followed by the courts of the United States. After one trial in ejectment and an order upon plaintiff's motion for a new trial in a State court, it was held that he could not discontinue and sue in the Federal court." A motion for a new trial must be made or noticed for argument during the term at which the trial took place, or by special leave of the court granted, upon a petition filed within forty-two days after the entry of judgment.10 It has been held that the filing of a motion for a new trial during the term, without any order or recognition by the court concerning it, will not carry the matter over to the succeeding term, so as to give jurisdiction then to hear and determine it.11 In some of the districts the rules shorten 12 or extend 13 the time within which a motion for a new trial may be made. When the time is thus shortened, the entertainment of such a motion after it has expired, but within the term, is not beyond the jurisdiction of the court.14 An extension of the time to so move, can only be given, if at all, by a rule or order extending the term for that purpose or by consent of counsel. When a rule directed, that during the absence of the presiding judge the clerk be 4 Hughey v. Sullivan, 80 Fed. 72. 5 Equator Co. v. Hall, 106 U. S. 86, 27 L. ed. 114. As to costs, see Shreve v. Cheesman, C. C. A., 69 Fed. 785. 6 Campbell v. Iron-Silver Min. Co., C. C. A., 83 Fed. 643. 7 Ibid. 8 Ibid; Equator Co. v. Hall, 106 U. S. 86, 27 L. ed. 114. 9 Hyatt v. Challiss, 55 Fed. 267. But see infra § 554. 10 U. S. R. S., § 987. See supra, § 482; Mann v. Dempster, C. C. A., 181 Fed. 76. 11 Klein v. Southern Pac. Co., 140 Fed. 213. Fed. Prac. Vol. III-18 12 In the Southern District of Florida to findings after entry of judgment. Abbott v. Brown, 241 U. S. 606. 13 In the Southern District of New York for the purpose of taking any action which must be taken within the term of court at which final judgment or decree is entered each term of the court is extended for ninety days from the date of entry of the final judgment or decree." General Rule V. See Hughes v. N. Y. O. & W. R. R., 225 Fed. 568. 14 Abbott v. Brown, 241 U. S. 606. present for the transaction of business and upon such days as there should be business to be transacted the court be opened and a record thereof be entered upon the minutes; an order, that the court be adjourned in accordance with such rule, did not end the term, and the term continued for the purposes of a motion for a new trial until the day fixed by statute for the next term to begin.15 An order granting a new trial may be set aside and the verdict reinstated, at a .subsequent term, 16 and at any time. before the new trial is begun.17 This was done where, in an action for conspiracy against two defendants upon a verdict in favor of one and against the other, a new trial against both had been granted because the trial court was of the opinion that one alone could not be liable, and the Circuit Court of Appeals subsequently reversed the judgment, holding that a recovery against one of them could be sustained.18 After a verdict has been directed in an action at common law and the jury discharged, the trial judge has no jurisdiction, upon a motion for a new trial or otherwise, to admit new evidence, to make new findings on the evidence already given, or to alter the record. 19 The effect of an order granting a new trial is to restore the status of the parties antecedent to the verdict.20 Consequently, the time allowed by a State statute for the commencement of a new suit begins to run anew.2 21 A Federal court cannot when granting a new trial upon the evidence enter judgment for the defendant non obstante veredicto.22 If leave to make the motion be granted at the trial term, the motion may be made at a subsequent term; provided, at least, that judgment was not entered by the trial term.23 It |