section 914 must be construed to mean that the practice must conform, except

(1) As to matters covered by congressional legislation (Swift & Co. v. Jones, 76 C. C. A. 253, 145 Fed. 492; Ex parte Fisk, 113 U. S. 713-721, 28 L. ed. 1117-1120, 5 Sup. Ct. Rep. 724); matters of jurisdiction (Southern P. Co. v. Denton, 146 U. S. 209, 36 L. ed. 945, 13 Sup. Ct. Rep. 44; Shumaker v. Security Life & Annuity Co. 86 C. C. A. 302, 159 Fed. 113); substituted service of process; charging juries (Nudd v. Burrows, 91 U. S. 441, 23 L. ed. 286; St. Louis, I. M. & S. R. Co. v. Vickers, 122 U. S. 363, 30 L. ed. 1161, 7 Sup. Ct. Rep. 1126); matters relating to the personal administration of the judge (Knight v. Illinois C. R. Co. 103 C. C. A. 514, 180 Fed. 372, and cases cited; Nudd v. Burrows, 91 U. S. 442, 23 L. ed. 290); joinder of equitable and legal causes of action; and actions in rem (Coffy v. United States, 117 U. S. 235, 29 L. ed. 891, 6 Sup. Ct. Rep. 717).

(2) The Federal courts may change any subordinate provision of the State law which they may deem unsuited to their procedure.

(3) They may reject subordinate provisions of the State law governing practice and pleadings, or procedure, or forms which tend to obstruct the administration of justice (St. Charles v. Stookey, 85 C. C. A. 494, 154 Fed. 778, 779; Phenix Ins. Co. v. Charleston Bridge Co. 13 C. C. A. 58, 25 U. S. App. 190, 65 Fed. 632; Lange v. Union R. Co. 62 C. C. A. 48, 126 Fed. 340).

This leaves probably the simple duty of the Federal courts to adhere to the local system designed to produce the issues of law and fact; in a word, the method and order of pleading. Shumaker v. Security Life & Annuity Co. 86 C. C. A. 302, 159 Fed. 112, 113; Brown v. Cumberland Teleph. & Teleg. Co. 181 Fed. 246; Saunders v. Short, 30 C. C. A. 462, 58 U. S. App. 689, 86 Fed. 229; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 300, 23 L. ed. 898; Southern P. Co. v. Denton, 146 U. S. 209, 36 L. ed. 945, 13 Sup. Ct. Rep. 44; Roberts v. Lewis, 144 U. S. 656, 657, 36 L. ed. 582, 12 Sup. Ct. Rep. 781; Merrill v. Rokes, 4 C. C. A. 433, 12 U. S. App. 183, 54 Fed. 452.

Scope of Power to Make Rules of Practice and Procedure, or Follow Those Made.

The quasi legislative power of the courts to make rules governing their practice and procedure, whatever effect such rules may have in the prosecution of the suit or the vindication of the right sought, has been frequently held to be a constitutional or procedure, or to follow one established by State authority, a statutory enactment. We see this power is only limited by the phrase “as near as may be," which, as said, means as near as may be consistent with the ends of justice, and effective in the opinion of the court to prevent delay.

A Federal court may not only establish a rule of practice when no rule exists in the State or Federal courts, but may, independently of any State law or rule, establish its own rules touching the same matter of practice or procedure, so long as the rule thus established is not inconsistent with an act of Congress or a rule established by a superior court. Any rule thus made by these courts may be safely followed without reference to State laws or rules, because it will always be assumed by the appellate court that the rule, though in conflict with State practice or procedure, was the exercise of discretion under the phrase "as near as may be." Shepard v. Adams, 168 U. S. 627, 42 L. ed. 605, 18 Sup. Ct. Rep. 214.

The scope of the power either to establish a rule of practice or procedure, or to follow one established by State authority, has no definite measure; we can only seek the proper practice in precedents established in similar cases; and even then discovered precedents are no infallible guides, though they may be persuasive. Though there may be no Federal rule, the practitioner assumes a risk in following the State rule, however clear and decisive in its directions, for the Federal judge may decline to follow it, because not consistent with his views of justice in the particular case.

While authorities have been conflicting, yet I think what has been said will be apparent in the progress of this work.

It will be observed that section 914, U. S. Comp. Stat. 1901, p. 684, under discussion, requires conformity to State rules. as to pleadings, practice, forms and modes of proceeding exist

ing at the time in courts of record of the State in which the Federal court is sitting, any rule of court to the contrary notwithstanding. The question has occasionally arisen, Would any change in a State rule be operative forthwith in a trial of a cause at law brought in a Federal court after such change? Are the words, "any rule of court to the contrary notwithstanding," mandatory, and do they abrogate any conflicting Federal rule? It may be answered by considering that section 914 only requires the court to adopt or follow, "as near as may be," the practice, pleadings, etc., of the State courts, and therefore, whether they adopt or ignore the State rule, it would only be the exercise of a given discretion from which no redress by appeal would lie. As said above, whether there be a State rule or not, the power to establish one in the particular case, independent of State procedure, is exercised frequently. As has often been decided, section 914 must be construed with section 918. Ewing v. Burnham, 74 Fed. 385; Osborne v. Detroit, 28 Fed. 385; Importers & T. Nat. Bank v. Lyons, 134 Fed. 512; Van Doren v. Pennsylvania R. Co. 35 C. C. A. 282, 93 Fed.

261.

Again, State laws or rules have no force unless adopted by Congress as in the earlier process acts of 1789, 1792, and 1828, or by the courts. In Erstein v. Rothschild, 22 Fed. 61, it is said it was not the intention of Congress to place the practice in the Federal courts under the control of State legislation, and thereby make them, as to their practice and procedure, subordinate State courts. To make a State rule effective in practice in the Federal courts, it must be adopted as such by congressional act, or by an order of the court.

Again, it may be stated that even when adopted by either congressional act or by order of the courts, the latter do not feel themselves bound by the decisions of the State courts in construing or applying the rule. Erstein v. Rothschild, 22 Fed. 64; Wall v. Chesapeake & O. R. Co. 37 C. C. A. 129, 95 Fed. 398; Van Doren v. Pennsylvania R. Co. 35 C. C. A. 282, 93 Fed. 261.

In this uncertainty, may it not be asked why a national code of practice cannot be formulated for the law side as well as the equity side of the court? A code looking to simplicity in plead

ing, and with the view of an expeditious termination of litigation, and especially "forbidding judgments to be set aside or new trials granted on the ground of technical error as to pleading, or procedure, or the misdirection of the jury, or improper admission or rejection of evidence, unless in the opinion of the court, after examination of the whole case, it appears that error complained of has injuriously affected the substantial rights of the parties." I believe that a simple national code embodying these features would soon be adopted by the States at least "as near as may be," and would bring about a practical degree of uniformity in the State and Federal practice much more expeditiously than the vague, uncertain conditions now existing, and which must always exist as long as the practice rests upon the simple discretion of the Federal judges.

CHAPTER II.

JURISDICTION.

I have discussed in my Suit in Equity in the Federal courts, 2d ed. with practical fullness the jurisdiction of the Federal courts: 1st, As to the legal as distinguished from the equitable, 2d, as to Federal as distinguished from State jurisdiction; and I do not deem it necessary to repeat what was there said, as this work, "A Suit at Law in Federal Courts," as stated in the preface, is only intended as a complement to the former work.

Section 723, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 583, providing that if the remedy at law is plain, adequate, and complete, the equity courts shall not take jurisdiction, has been thoroughly construed and illustrated in the former work (Simkins, Federal Equity Suit, 2d ed. pp. 11–34). As to Federal as distinguished from State jurisdiction, beginning with p. 35 to p. 222 of my Suit in Equity, 2d ed., covering thirty-two chapters, you will find every phase of the Constitution and laws of the United States touching the jurisdiction of the Federal courts discussed with reasonable accuracy, to which is added such changes as have been made by the New Judicial Code that went into effect January 1, 1912.

The Jurisdiction Limited.

The jurisdiction of the Federal courts being limited the presumption is against the jurisdiction (Simkins, Federal Equity Suit, 2d ed. pp. 44-47); consequently the petition, bill, or complaint must affirmatively show that the court has jurisdiction, whether it rests upon "a Federal question," "diversity of citizenship," or between citizens of a State and foreign citizens or subjects (Simkins, Suit in Equity, 2d ed. 271). Again in drawing your petition, one must take account of the "territorial jurisdiction" of the Federal courts, which is fully explained in chapters 15 to 20 of my Suit in Equity. Also see p. 270, 2d ed.