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FEDERAL PRACTICE

VOLUME III.

CHAPTER XXX.

PRACTICE AT COMMON LAW IN CIVIL ACTIONS.

$ 453. 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 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." 3 A proceeding begun by an attachment is a civil cause within the meaning of the statute. So is a proceeding to establish a will under the Missouri statute. • $ 453. 1 Supreme Court Rule 3. lar subject and prescribed a rule.” Amy v. Watertown, 130 U, S. 301, A substantial compliance with the 304, 32 L. ed. 946, 947; Bradley, J.: statute is sufficient. Hein v. West“The statute of 1872 is peremp- inghouse Air Brake Co., 168 Fed. tory, and whatever belongs to the 766. three categories of practice, plead 2 U. S. R. S., $ 914. ing, form and mode of pleadings, 3U. S. R. S., & 914, Comp. St. must conform to the State Laws & 1537. and the practice of the State 4 Citizens' Bank v. Farwell, C. C. Courts, except where Congress it A., 56 Fed. 570. self has legislated upon a particu. 5 Sawyer v. White, C. C. A., 122

Fed. Prac. Vol. III-1

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;” 6 but to. depoire: 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, to tend to defeat the ends of justice in their tribunals.?

The State practice will not be so far followed as to permit a suit founded upon a right that is purely equitable to be tried upon the common law side of the court 8 nor, before the Act of March 3, 1915,9 was the State practice followed so far as to permit an equitable defense 10 or an equitable set off, to be pleaded in an action at common law.11 It has been held that an action brought in a Federal court at common law may, by consent, be transferred to the equity side of the court.12

Fed. 223, 227; Foster v. Rochester, land Boy Gold Min. Co. v. Strickley, S. D. N. Y., Jan'y. 1912.

C. C. A., 116 Fed. 852; Cook v. 6 1. & St. L. R. Co. v. Horst, 93 Foley, C. C. A., 152 Fed. 41, 52. U. S. 291, 301, 23 L. ed. 898, 901; 9 Jud. Code $ 274b, 38 St. at L. Phelps v. Oaks, 117 U. S. 236, 239, 956, ch. 90, $ 2, Comp. St. $ 1251b 29 L. ed. 888, 889.

quoted infra, $ 454g. 7 1. &. St. L. R. Co. v. Horst, 93 10 Doe v. Roe, 31 Fed. 97; BenU. S. 291, 301, 23 L. ed. 898, 901; nett v. Butterworth, 11 How. 669, Phelps v. Oaks, 117 U. S. 236, 239, 13 L. ed. 859; Montijo v. Owen, 14 29 L. ed. 888, 889. See Shepard v. Blatchf. 324; Parsons v. Denis, 7 Adams, 168 U. S. 618, 42 L, ed. 602. Fed. 317; Buller v. Slidell, 43 Fed.

8 Fenn v. Holme, 21 How. 481, 16 116; Schoolfield v. Rhodes, 82 Fed. L. ed. 198; Hooper v. Scheimer, 23 153; Davis v. Davis, C. C. A., 72 How. 235, 16 L. ed. 452; Smith v. Fed. 81; Young v. Mahoning CounMcCann, 24 How. 398, 16 L. ed. ty, 51 Fed. 585, 590. See N. Pac. 714; Sheirburn v. De Cordova, 24 R. Co. v. Paine, 119 U. S. 561, 30 How. 423, 16 L. ed. 741; Strother L. ed. 513; Wilcox & Gibbs Guano v. Lucas, 6 Pet. 763, 8 L. ed. 573; Co. v. Phenix Ins. Co., 61 Fed. 199; Swayze v. Burke, 12 Pet. 11, 9 L. McManus v. Chollar, C. C. A., 128 ed. 980; Claggett v. Kilbourne, 1 Fed. 902; Tegarden v. LeMarchel, Black, 346, 17 L. ed. 213; infra, 129. Fed. 487; infra, 8 454g. $$ 454, 477; Goodyear Shoe Ma- 11 Scott v. Armstrong, 146 U. S. chinery Co. v. Dancel, C. C. A., 119499, 36 L. ed. 1059; Waldo v. WilFed. 692, in which the author was son, C. C. A., 231 Fed. 654. counsel. If the objection is not 12 U. S. v. Wells, 203 Fed. 146. raised upon the trial it will be Contra, Waldo v. Wilson, C. C. A., waived. Union Pac. Ry. Co. v. 231 Fed. 654; infra, 8 454g. Harris, C. C. A., 63 Fed. 800; High

Ejectment in a Federal Court cannot be sustained upon a title which is purely equitable, although the State practice would have permitted such a suit in the State court.13 Ejectment cannot be sustained upon a land warrant ; 14 nor upon an entry. made with a register and receiver of the land office, although the State Legislature authorizes a suit in such a case 15 An action of ejectment will not lie when the defendant is in possession under a contract, which plaintiff avers to be void, because obtained by a breach of trust.16 Where a deed, contract or sale is void for fraud, an action of ejectment may be maintained by a rightful owner of the property, without resorting to equity to set the same aside.17 In ejectment, it is immaterial which party has the best equitable title.18

A bondholder cannot sue at common law, in a Federal court, to recover damages from a former receiver, who has, by his fraudulent acts, injured the mortgaged property before its sale, although a State court might afford such relief.19 It has been held that a suit by a party to a contract, to compel its performance by a stranger to the same, who has assumed its obligations in a subsequent contract with the promisor, can only be enforced in equity, although the State practice would permit such an action to be maintained at common law.20 The fact that a prayer for an accounting is joined with one for the recovery of the possession of land will not entitle the plaintiff to appeal to a court of equity.21

13 Sheirburn v. De Cordova, 24 How. 423, 16 L. ed. 741; Swayze v. Burke, 12 Pet. 11, 9 L. ed. 980; Fenn v. Holme, 21 How. 481, 16 L. ed. 198; Hooper v. Scheimer, 23 How. 235, 16 L. ed. 452; Smith v. McCann, 24 How. 398, 16 L. ed. 714; Claggett v. Kilbourne, 1 Black, 346, 17 L. ed. 213; Beatty v. Wilson, 161 Fed. 453.

14 Strother v. Lucas, 6 Pet. 763, 8 L. ed. 573; Fenn v. Holme, 21 How. 481, 16 L. ed. 198.

16 Hooper v. Scheimer, 23 How. 235, 16 L. ed. 452.

16 Mead v. Chesbrough Bldg. Co., C. C. A., 151 Fed. 998.

17 Mead v. Chesbrough Bldg. Co., C. C. A., 151 Fed. 998, 1006; Mead v. Gallatin, C. C. A., 151 Fed, 1006.

18 Mead v. Chesbrough Bldg. Co., C. C. A., 151 Fed. 998.

19 Fletcher v. Burt, 126 Fed. 619.

20 Goodyear Shoe Machinery Co. v. Dancel, C. C. A., 119 Fed. 692; in which the author was counsel. But see Willard v. Wood, 135 U. S. 309, 34 L. ed. 210. Contra, Union Mutual Life Ins. Co. v. Hanford, 143 U. S. 187, 190, 6 L. ed. 118, 120.

21 Hipp v. Babin, 19 Howard, 271, 15 L. ed. 633.

In the following particulars the practice at common law in civil cases in the District Courts of the United States is regulated by Federal statutes and decisions, and the State practice is not followed: writs and process; 22 the manner of raising objections to jurisdiction over the person of the defendant; 28 service by publication or without the district ; 24 pleading in actions for the infringement of patents 25 and copyrights; 26 amendments; 27 provisional remedies; 28 abatement and revivor ; 29 consolidation of suits; 80 evidence, testimony and depositions ; 81 selection of juries ; 32 trials; 38 motions for new trials ; 34 the power of the court when setting aside a verdict to enter final judgment; 36 judgments; 36 correction of judgments; 87 costs ; 38 executions and proceedings supplementary

22 Infra, 8 455. But see Stewart v. Justices of St. Clair Co. Court, 47 Fed. 482, 484; Leas & McVitty v. Merrimann, 132 Fed. 510.

23 Meisukas v. Greenough Red Ash Coal Company, 244 U. S., 54 supra, $ 62a.

24 Supra, $ 166.

25 U. S. R. S., $ 4920; infra, $ 454m.

26 U. S. R. S., § 4969; infra, 8 454n.

27 U. S. R. S., 8954; infra, $ 455b.

28 Infra, $$ 470, 471.
29 Supra, $ 220.
30 Infra, $ 472.

31 Supra, chap. XXI. It has been held that $ 11497 of the general code of Ohio, so far as construed by the State courts so as to give a party an unlimited right to call and cross-examine his adversary is not a matter of procedure nor a rule as to the competency of testimony or witnesses; but a mat. ter of trial administration which does not bind the Federal court, American Issue Pub. Co. v. Sloan, C. C. A., 248 Fed. 251, 253. The court in Massachusetts followed

the rule established by the State decision, that the former testimony of a witness. may be introduced to impeach his testimony upon the trial without calling his attention thereto, unless he has been called by the party seeking to impeach him. Am. Agricultural Chem. Co. v. Hogan C. C. A., 213 Fed. 416, 420.

By an Act of Congress the competency of witnesses in civil actions is determined by the State laws 34 St. at L. 618 supra, 8 339.

32 U. S. R. S., $$ 800, 882; infra, $ 473.

33 U. S. v. Oppenheim, 228 Fed. 220; Waldo v. Wilson, C. C. A., 231 Fed. 654; infra, 88 473-476.

34 Infra, $ 478.

35 Slocum v. N. Y. License Co., 228 U. S. 364; McKeon v. Central Stamping Co., C. C. A., 264 Fed. 385.

36 Infra, $ 480,
37 Infra, $ 481.

38 Supra, ch. XXVII. But see
Huntress v. Epsom, 15 Fed. 732;
New Hampshire L. Co. v. Tilton, 29
Fed. 764; Primrose v. Fenno, 113
Fed. 375, 376. It has been said that,

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