rules of court, so far to alter final process in said courts as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts."

The fourth and last section of the act directs that its provisions shall not extend to the national courts in Louisiana.1

It may not be useless to pause, here, for a moment, at the close of this general outline, for the purpose of stating with precision its practical result, which may be summed up as follows:

2

In order to determine a question of practice (unless it relates to imprisonment for debt), we are to ascertain, 1, whether it is specifically prescribed by any act of congress; if not, 2, whether it is so by the rules of the court in which it arises; and if not, then finally, we are to inquire what was the practice upon the point in question in the supreme court of the state where the question arises, on the 29th of September, 1789, or if the question arises in one of the states since admitted into the Union, or if it concern final process, what was the practice of the state court on the first of May, 1842. A careful and judicious application of these tests, though the process may in some instances require time and patience, cannot fail to lead to a correct decision.

Having premised thus much, it remains, as far as the nature of the subject will conveniently permit, to lay down more particular directions for the institution of suits, and for their management through the various stages of their progress. But to do this with

1The case of Amis v. Smith (16 Peters, 303), contains an instructive commentary on this act. See, also, the case of Sears v. Eastburn (10 Howard, 187), where it is held that a statute of a state admitted into the Union since 1789, abolishing the action of ejectment and substituting an action of trespass, is binding on the circuit court of the United States in that state.

CHAP. 2.

PART 2. that degree of minuteness which is found in books treating of the practice of a single court, as of the king's bench in England, or of the supreme court of the State of New York, for example, so as to afford a perfect guide in regard to every particular, in every district of the Union, while it would be superfluous, would at the same time be impracticable.

Many things, however, are common to all the circuit and district courts in every state. These I shall endeavor, as far as I am able, to make plain; and shall, moreover, with regard to the two districts, in the State of New York, descend somewhat more into particulars.

SECTION II.

Of the several forms of action.

Suits at law, whether personal, mixed or real, may be maintained in these courts in all the forms of action pursued in the superior courts of the several states embraced within their several respective jurisdictions.

SECTION III.

Of the limitation of actions.

Although acts of limitation embracing particular descriptions of actions, have from time to time been passed by congress, no general statute of limitations has yet been enacted.

Special provision has, however, been made for certain cases. By the act to establish and regulate the post office department, of March 3, 1825, suits against the sureties in the official bonds of postmasters are required to be brought within two years after the default of the principal.1

'Ch. 64, § 3: 4 Stat. at Large, p. 102. But this limitation shall not be considered as running in any state or part thereof, the inhabitants whereof have been, by the proclamation of the president, declared in a state of insurrection, during the time the insurrection shall continue. Act of July 11, 1862, ch. 139: 12 Stat. at Large, p. 530.

By the act of April 30, 1790, for the punishment CHAP. 2. of certain crimes against the United States1 prosecutions for treason or other capital offenses, willful murder and forgery excepted, were limited to three years; and it was also further enacted, that no person should be prosecuted, tried or punished for any offense not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same should be found or instituted within two years from the time of committing the offense, or incurring the fine or forfeiture. In the case of Adams, qui tam v. Wood (2 Cranch, 336), this latter provision was held to be applicable prospectively to penalties and forfeitures imposed by subsequent acts. And although it speaks only of prosecutions by indictment and information, it was held to extend to actions of debt for the recovery of statute penalties.

But by the act of March 26, 1804, the period of limitation for prosecutions for fines or forfeitures arising under the revenue laws of the United States was extended to five years instead of the three years' limitation prescribed by the collection act of March 2, 1799, ch. 22. And by the act of April 20, 1818, relating to the importation of slaves, prosecutions for penalties and forfeitures incurred under it, were also limited to five years.3

By the copyright act of February 3, 1831, prosecutions for any forfeiture or penalty incurred under that act were limited to two years.

By the act of April 10, 1806, suits on marshals' bonds were limited to six years; saving the rights of 'Ch. 9, § 32: 1 Stat. at Large,, p. 119. Ch. 40, 3: 2 Stat. at Large, p. 290. Ch. 91, 9: 3 Stat. at Large, p. 450.

'Ch 16, § 12: 4 id., p. 436.

PART 2. infants, feme coverts, and persons non compos mentis, for three years after the removal of their disabilities.1 And in the case of Montgomery v. Hernandez et al. (12 Wheat., 129), it was held that where after a breach of the condition of a marshal's bond, the proceeding out of which the liability arose, was suspended by appeal whereby the right of action of the party injured was also suspended, the period of limitation did not commence until after the determination of the appeal.

The foregoing are, it is believed, all the provisions to be found in the permanent acts of congress, relative to this subject until the act of February 28, 1839, by the fourth section of which it is enacted "That no suit or prosecution shall be maintained for any penalty or forfeitures, pecuniary or otherwise, accruing under the laws of the United States, unless the same suit or prosecution shall be commenced within five years from the time when the penalty or forfeiture accrued: Provided, that the person of the offender, or the property liable for such penalty or forfeiture shall, within the same period, be found within the United States: so that the proper process may be instituted and served against such person or property therefor."2

The language of this enactment, it will be perceived, is very comprehensive. It seems to have been intended to embrace every description of penalty or forfeiture, imposed by any act of congress, then in force, or which might be subsequently enacted; and every form of prosecution, whether by indictment, information, libel or action of debt, and whether in personam or in rem, for the recovery of such penalty or forfeiture. If this be the true con'Ch. 21, § 4: 2 id., p. 274.

2

Ch. 36, § 4: 5 Stat. at Large, p. 321.

struction of it, it will be seen that it supersedes, and, CHAP. 2. therefore, virtually repeals, all the other enactments above mentioned, except so much of the crimes act of 1790 as relates to other forms of punishment, and the provision relative to suits on marshals' bonds.1

With the exceptions above specified, all actions, whether real, personal or mixed, and whether arising ex contractu or ex delicto, are left subject to the local legislation of the several states, so far as such legislation is applicable: for it has never been doubted that state limitation acts were embraced by that provision of the judiciary act of 1789, by which it is declared that "the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." The laws, then, of each particular state respectively, furnish the general rule of limitation in common law actions, to the national courts, sitting

1 Nevertheless, it was deemed expedient, for some reason, expressly to repeal the provisions of the acts of 1790 and 1804, mentioned in the text, with respect to cases arising under the revenue laws, which, of course, remain subject to the five years' limitation prescribed by the act of 1839. Act of March 3, 1863, ch. 76, § 14: 12 Stat. at Large, 741.

By another act of the same date (ch. 81, § 7: 12 Stat. at Large, 757), it is enacted "that no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from, or exercised by, or under the president of the United States, or by or under any act of congress, unless the same shall be commenced within two years next after such arrest, imprisonment, trespass or wrong may have been done or committed, or act may have been omitted to be done: Provided, That in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act."

'Act of Sept. 24, 1789, ch. 20, § 31: 1 Stat. at Large, p. 173.