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FEDERAL

PROCEDURE AT LAW

A TREATISE ON THE PROCEDURE IN

SUITS AT COMMON LAW

IN THE

CIRCUIT COURTS OF THE UNITED STATES

ACCOMPANIED WITH, AS A
BASIS OF FEDERAL JUDICIAL PROCEDURE,
A STATEMENT OF THE DUAL SYSTEM OF GOVERNMENT
CREATED BY THE FEDERAL CONSTITUTION AND THE CONSTITUTIONAL
LIMITATIONS IMPOSED UPON THE STATE AND FEDERAL GOV-
ERNMENTS AND THE CREATION OF THE FEDERAL

JUDICIAL SYSTEM AND THE JURISDICTION

OF ALL THE FEDERAL COURTS

By C. L. BATES

OF THE BAR OF SAN ANTONIO, TEXAS
(AUTHOR OF BATES' FEDERAL EQUITY PROCEDURE)

In Two VOLUMES

VOLUME I

CHICAGO
T. H. FLOOD AND COMPANY

1908

137053

MAR 2 1 1951

COPYRIGHT, 1908,

BY

C. L. BATES.

STATE JOURNAL PRINTING COMPANY, PRINTERS AND STEREOTYPERS,

MADISON, WLS.

To the Honorable

ALBERT H. WHITFIELD,

Chief Justice of the Supreme Court of the State of Mississippi,

a jurist of broad and profound learning, an orator of matchless

eloquence, a patriot, pure and simple, a votary of constitutional

government, and a Christian gentleman of scholarly attainments,

this work is respectfully dedicated, as a tribute of respect, at

tachment and esteem.

PREFACE.

The purpose of this work is to state the principles controlling the judicial procedure in suits at common law, in the circuit courts of the United States. There are inherent difficulties in the subject, resulting from the complex basis of that procedure, there being four distinct sources from which its rules and principles are derived, namely, (1) the federal constitution, (2) the English common law, (3) the federal statutes, and (4) the state procedure. The act of conformity adopts the state procedure only “as near as may be"-consistently with the federal constitution and valid laws of the United States.

The great outlines of federal procedure are laid in the constitution, and cannot be overridden by acts of congress adopting state procedure. Among the rights secured by those constitutional provisions is the right to a trial, in suits at common law, by a jury, as that right existed at common law. The federal government is the only government on this continent preserving that right in its full integrity. The states are, in many insidious ways, breaking away from this great guaranty of life, liberty and property—this great fundamental principle of Anglo-Saxon civilization. The jurisdiction, both original and appellate, of the several courts of the federal judicial system, and the nature and character of the judicial remedies and procedure established and pursued in them, arise out of and are limited by the nature of the dual system of government created by the federal consti

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