"Any circuit or district court may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process returnable to or before it, where the defect has not prejudiced, and the amendment will not injure the party against whom such process is

sues."

This only allows, however, an amendment of a defective process. If the defect is so serious as to make it absolutely void, and no process at all, then it cannot be amended; as where it is neither signed nor sealed.1

Service

The service of process is as provided by the state statute.15 But in the case of foreign corporations this is subject to the proviso that the corporation must be doing business within the jurisdiction, before process can be served on it. If it is not carrying on business there, service cannot be made upon one of its officers merely because he resides there.16

SAME-ATTACHMENTS

138. The state attachment laws in force on June 1, 1872, and any later ones adopted by rule of court, are available in the federal courts in common-law causes, except as against a nonresident not personally served in the district.

917; "Process," Dec. Dig. (Key-No.) §§ 162-164; Cent. Dig. §§ 224248.

14 Dwight v. Merritt (C. C.) 4 Fed. 614. See "Process," Dec. Dig. (Key-No.) § 163; Cent. Dig. §§ 224–238.

15 Amy v. City of Watertown, 130 U. S. 301, 9 Sup. Ct. 530, 32 L. Ed. 946. See "Courts," Dec. Dig. (Key-No.) § 344; Cent. Dig. § 917. 16 BARROW S. S. CO. v. KANE, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964; Conley v. Mathieson Alkali Works, 190 U. S. 406, 23 Sup. Ct. 728, 47 L. Ed. 1113; St. Louis Southwestern R. Co. v. Alexander, 227 U. S. 218, 33 Sup. Ct. 245, 57 L. Ed. -; Higham v. Iowa State Travelers' Ass'n (C. C.) 193 Fed. 845. See "Courts,"

Dec. Dig. (Key-No.) § 344; Cent. Dig. § 917.

Section 915 of the Revised Statutes 17 provides as follows:

"In common-law causes in the circuit and district courts the plaintiffs 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 court is held for the courts thereof; and such circuit or district courts may, from time to time, by general rules, adopt such state laws as may be in force in the states where 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 first furnished by the party seeking such attachment or other remedy."

But, as seen in a previous connection, the federal courts cannot issue an attachment against a nonresident when he is not found in the district, or when there is no other ground of jurisdiction.18

It is clear from the language of the above section that this adopted simply the attachment laws which were in force on June 1, 1872, and that subsequent attachment laws of the states are not adopted unless the court specially provides therefor by general rule; but under this statute and section 914, the general state practice in relation to attachments is adopted. 19

17 U. S. Comp. St. 1901, p. 684.

18 In re DES MOINES & M. RY. CO., 103 U. S. 794, 26 L. Ed. 461; Big Vein Coal Co. v. Read, 229 U. S. 31, 33 Sup. Ct. 694, 57 L. Ed. -; U. S. v. Brooke (D. C.) 184 Fed. 341; ante, p. 275. See "Courts," Dec. Dig. (Key-No.) § 270; Cent. Dig. § 810.

19 Logan v. Goodwin, 104 Fed. 490, 43 C. C. A. 658; Commonwealth Trust Co. v. Frick (C. C.) 120 Fed. 688. See "Courts," Dec. Dig. (Key-No.) § 346; Cent. Dig. § 918.

SAME-APPEARANCES

139. As to the effect of the defendant's appearance, the federal courts are not bound to follow state statutes prescribing a certain result as flowing from the entry of an appearance; as, for instance, state statutes which provide that a special appearance shall have the effect of a general appearance.

As the practice only conforms "as near as may be," the federal courts have a discretion to disregard this provision of the state court.20

SAME-PARTIES TO COMMON-LAW ACTIONS

140. The rules as to parties to actions are substantially similar to those prevailing in the state courts of the locality, subject to certain exceptions incident to the nature of the federal courts and the character of their jurisdiction.

State statutes allowing parties in real interest to sue in their own names are adopted by the federal courts, subject, always, to the proviso that, if the real interest which they attempt to assert is an equitable interest, they cannot sue in the federal courts in their own names; for, as seen above, equitable titles cannot be asserted in the federal courts on the law side.21

20 Mexican Cent. R. Co. v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699. See "Courts," Dec. Dig. (Key-No.) §§ 341, 345; Cent. Dig. §§ 899, 917.

21 New York Continental Jewall Filtration Co. v. Sullivan (C. C.) 111 Fed. 179; Mead v. Chesbrough Bldg. Co., 151 Fed. 998, 81 C. C. A. 184; Beatty v. Wilson (C. C.) 161 Fed. 453. See "Courts," Dec. Dig. (Key-No.) § 343; Cent. Dig. §§ 915-920.

But an assignee can sue in his own name where the state statute allows it and vests him with the legal title.22

Where a state statute allows a wife to sue in her own name for damages to person or character, the federal statute allows her also.28

Where there is an improper joinder of parties, and the state statute allows the improper parties to be stricken out, the same practice will be followed by the federal courts.24

SAME-PLEADING

141. The pleading in the federal courts is substantially similar to that in the state courts of the locality. Amendments are liberally allowed in case of formal de

fects in a way to enable the courts to administer justice and render decisions according to the very right of the cause.

The forms of action in the state courts on the commonlaw side are adopted by the federal courts. In fact this was the prime object of the passage of the act of June 1, 1872, so as to save the bar the necessity of having to learn and practice two entirely different systems of pleading.25 Hence the state rule as to the effect of a general issue,

22 Albany & R. Iron & Steel Co. v. Lundberg, 121 U. S. 451, 7 Sup. Ct. 958, 30 L. Ed. 982; Nederland Life Ins. Co. v. Hall, 84 Fed. 278, 27 C. C. A. 390. See "Courts," Dec. Dig. (Key-No.) § 343; Cent. Dig. $$ 915-920.

22 Morning Journal Ass'n v. Smith, 56 Fed. 141, 4 C. C. A. 8. See "Courts," Dec. Dig. (Key-No.) § 343; Cent. Dig. §§ 915-920. 24 Perry v. Mechanics' Mut. Insurance Co. (C. C.) 11 Fed. 478; Whitaker v. Pope, Fed. Cas. No. 17,528. See "Courts," Dec. Dig.

(Key-No.) 343; Cent. Dig. §§ 915-920.

25 INDIANAPOLIS & ST. L. R. CO. v. HORST, 93 U. S. 291, 23 L. Ed. 898; Knight v. Illinois Cent. R. Co., 180 Fed. 368, 103 C. C. A. 514. See "Courts," Dec. Dig. (Key-No.) § 342; Cent. Dig. §§ 912, 913.

and what is provable under it, is adopted by the federal

.

The federal courts are liberal in the allowance of amendments. Section 954 of the Revised Statutes 27 provides: "No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe."

It not only acts under this section in liberally allowing amendments, but it also adopts the practice of the state courts in the allowance of amendments in so far as that practice does not conflict with the rights given by the above section. For instance, where the state practice allows it, a new count can be added to the declaration.28

So, too, where a foreign administrator sues in the federal courts without having had a local qualification, he can qual

26 Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. Ed. 579; DUSHANE v. BENEDICT, 120 U. S. 630, 7 Sup. Ct. 696, 30 L. Ed. 810. If a general denial in the state practice puts in issue every material fact, it would put in issue the question of jurisdiction in the federal court. Lindsay-Bitton Live Stock Co. v. Justice, 191 Fed. 163, 111 C. C. A. 525. See "Courts," Dec. Dig. (Key-No.) § 347; Cent. Dig. § 921.

27 U. S. Comp. St. 1901, p. 696.

28 WEST v. SMITH, 101 U. S. 263, 25 L. Ed. 809. See "Courts," Dec. Dig. (Key-No.) § 347; Cent. Dig. § 921.