Woodward v. Chicago, M. & St. P. R., York v. Washburn, 64 C. C. A. 132, Co. 75 C. C. A. 591, 145 Fed. 129 Fed. 564, pp. 75, 214, 577, p. 68. 216.

Worthington v. Beeman, 33 C. C. A. York City School Dist. v. Aetna Indemnity Co. 131 Fed. 133, p.

A FEDERAL

SUIT AT LAW

CHAPTER I.

A LAWSUIT IN THE FEDERAL COURT.

Prior to 1872 the practice and procedure covering all matters that occur in the progress of a suit at law in which was sought the recovery of money or specific property in the circuit and district courts of the United States were governed by the act of 1793, U. S. Comp. Stat. 1901, p. 685, and embodied in sec. 918, U. S. Rev. Stat., by which the several circuit and district courts of the United States were authorized from time to time to make rules and orders directing the returning of writs and process, the filing of pleadings, the enter ing and making up of judgments, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delay of proceedings; provided such regulations were not to be inconsistent with any act of Congress or such rules of practice as the Supreme Court should prescribe under authority of section 917, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 684, which in Friedenstein v. United States, 125 U. S. 232, 31 L. ed. 740, 8 Sup. Ct. Rep. 838, was recognized, as authorizing the Supreme Court to prescribe rules of practice in suits at common law as well as in equity. Shepard v. Adams, 168 U. S. 625, 42 L. ed. 604, 18 Sup. Ct. Rep. 214; Amy v. Watertown, 130 U. S. 301, 302, 32 L. ed. 946, 947, 9 Sup. Ct. Rep. 530.

The gradual abandonment of common-law actions by the States, and the adoption by them of practice Codes, required the profession to familiarize themselves with two systems of

practice in the law. courts in the same locality; and the practice in the various districts of the Federal system resting upon the discretion of the courts created such uncertainty and confusion in the proceedings in law that some remedy was necessary to ameliorate at least the conditions then existing.

So June 1, 1872, Congress passed an act generally known as the conformity" act, designed to bring about uniformity in State and Federal procedure in common-law causes embodied in section 914, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 684, and in words as follows: "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." Act June 1, 1872. The circuit courts having been eliminated by the judiciary act of 1911, which went into effect January 1, 1912, the act applies, of course, to the district courts only, to which have been transferred all the powers exercised by the circuit courts.

In determining, then, the practice and procedure on the law side of the district courts of the United States, it becomes necessary to discuss section 914, U. S. Rev. Stat., stated above, and to show, if possible, to what extent the Federal judges have considered themselves bound by its provisions in regulating their practice within their several districts, and wherein they have considered themselves bound to conform to the practice of the State in which they were sitting, in like cases.

Again, our inquiry will extend to the exercise of their discretion in adopting the remedies provided by State legislation, which were evidently intended to be conferred on suitors in the Federal courts by enacting sections 914-916, of U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 684.

Section 915 provides that in common-law causes in the circuit and district courts, the plaintiff shall be entitled to similar remedies by attachment or other process against the property of the defendant, which are now provided by the laws of the State in which such courts are held, for the courts

thereof; and such courts may from time to time, by general rules, adopt such State laws as may be in force in the States in which they are held, in relation to attachments and other process: Provided, That similar preliminary affidavits, or proofs, and similar security, as required by such State laws, shall be furnished by the party seeking the attachment, or other remedy. Act June 1, 1872. (See Attachments.)

Section 916 provides that "the party recovering a judgment in any common-law cause in any circuit or district court shall be entitled to similar remedies upon the same, by execution, or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the State in which such court is held, or by any such laws hereafter enacted, which may be adopted by general rules of such circuit or district courts; and such courts may from time to time, by general rules, adopt such State laws as may hereafter be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise." Act June 1, 1872. (See Judgments.)

It is clearly apparent by this act of 1872 Congress was endeavoring to remove the chaotic conditions in Federal practice and procedure (Nudd v. Burrows, 91 U. S. 441, 23 L. ed. 290), and to bring about "as near as may be" some uniformity in State and Federal practice, by fixing the State practice as a standard to which their changes of practice must conform, in similar civil causes. But the law was in effect a mere suggestion, as the use of the words "as near as may be" meant simply, do it if desirable, and was intended to leave entire discretion in the Federal judges as to what they should adopt, follow, or assimilate in the State practice and procedure, or whether they should adopt any part of it. So the bar in any State are still left in doubt as to what is the proper practice on the law side of the Federal courts, for in following State methods they may at any time come in conflict with the court's discretion. However this may be, the enactment has not been without salutary and beneficial effect. It has resulted in abolishing the different forms of common-law actions, and in adopting at least the forms and order of pleading provided by the States in which the Federal courts are sitting.

Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 300, 23 L. ed. 901; Barnet v. Muncie Nat. Bank, 98 U. S. 558, 25 L. ed. 212.

The cases just cited were among the earliest cases construing section 914 after its passage and the effect of the words "as near as may be," and the Supreme Court then, and has since, emphasized the scope of Federal discretion by declaring that the words did not mean as near as may be possible, or as near as may be practicable, but they meant as near as may be necessary in the judgment of the court to advance the ends of justice in the case at bar, or prevent delay in the proceedings. O'Connell v. Reed, 5 C. C. A. 586, 12 U. S. App. 369, 56 Fed. 538, quoting Mexican C. R. Co. v. Pinkney, 149 U. S. 205, 206, 37 L. ed. 703, 704, 13 Sup. Ct. Rep. 859; Shepard v. Adams, 168 U. S. 618, 42 L. ed. 602, 18 Sup. Ct. Rep. 214; Van Doren v. Pennsylvania R. Co. 35 C. C. A. 282, 93 Fed. 269.

It has been frequently said that the words were intended to qualify any mandatory features of the act, and that it was the right and duty of the Federal courts to reject any subordinate provisions of the State statutes, or any rule of their practice which in their judgment would unwisely encumber the administration of the law, or tend to defeat the ends of justice in their courts. Kent v. Bay State Gas Co. 93 Fed. 889, 890.

Again, it is said in Shepard v. Adams, 168 U. S. 618, 42 L. ed. 602, 18 Sup. Ct. Rep. 214, that while it was the intention of Congress to bring about a general uniformity in Federal and State practice in civil cases on the law side of the court, and to confer the advantages of State remedial legislation on litigants in its courts, yet it was clearly intended to reach that uniformity through the discretion of the Federal judges, who are authorized to regulate their own practice. Therefore they may neither adopt nor apply State rules if not considered necessary, nor if considered inconvenient for the advancement of justice or the prevention of delay. Hein v. Westinghouse Air Brake Co. 164 Fed. 79; Id. 168 Fed. 766, 769; Swift & Co. v. Jones, 76 C. C. A. 253, 145 Fed. 492. In Hein v. Westinghouse, supra, p. 769, it is stated that