§ 426. Where the whole cause, and not a point or points in the cause, has been adjourned from the circuit court to the Supreme Court, the case will be remanded to the circuit court.1

1 Saunders v. Gould, 4 Peters, 392.

CHAPTER IX.

PRACTICE OF THE SUPREME COURT IN CASES OF ITS ORIGINAL JURISDICTION.

§ 427. SERVICE of process at common law or equity, in a suit against a state, is to be made upon the governor or chief magistrate, and the attorney-general of the state.1

§ 428. The delivery of a copy of the subpoena, in an equity suit against a state, to the attorney-general, a copy being also left at the governor's house, and showing the original to the secretary of state, is a sufficient service of the process.2

§ 429. In a suit against a state, the service of process on the governor or chief executive magistrate, and on the attorney-general of the state, is a regular service of the pro

cess.3

§ 430. The subpoena issued on the filing of a bill, in which the State of New Jersey were complainants, and the State of New York were defendants, was served upon the Governor and Attorney-General of New York sixty days. before the return-day, the day of the service and return inclusive. This being irregular, a second subpoena issued,

1 Grayson v. The State of Virginia, 3 Dall. 320; 1 Cond. Rep. 141. 2 Huger v. The State of South Carolina, 3 Dall. 339; 1 Cond. Rep. 144. 3 Chisholm's Ex'rs v. The State of Georgia, 2 Dall. 419; 2 Cond. Rep.

which was served on the Governor of New York only, the Attorney-General being absent. There was no appearance by the State of New York. By the court:-This is not like the case of several defendants, where a service on one might be good, though not on another. Here the service prescribed by the rule is to be on the Governor, and on the Attorney-General. A service on one is not sufficient to entitle the court to proceed. Upon an application by the counsel for the State of New Jersey, that a day might be assigned to argue the question of the jurisdiction of the Supreme Court to proceed in the case, the court said they had no difficulty in assigning a day. It might be as well to give notice to the State of New York, as they might employ counsel in the interim. If, indeed, the argument should be merely ex parte, the court could not feel bound by its decision, if the State of New York desired to have the question again argued. A notice was given by the solicitors for the State of New Jersey to the Governor of the State of New York, dated the 12th of January, 1830, stating that a bill had been filed on the equity side of the Supreme Court, by the State of New Jersey, against the people of the State of New York, and that, on the 13th of February following, the court would be moved in the case for such order as the court might deem proper, &c. Afterwards, on the day appointed, no counsel having appeared for the State of New York, on the motion of the counsel for the State of New Jersey for a subpoena to be served on the Governor and Attorney-General of the State of New York, the court said: As no counsel appears to argue the motion on the part of the State of New York, and the precedent for granting it has been established, upon very grave and solemn argument; the court do not require an ex parte argument in favor of their authority to grant the subpoena, but will follow the precedent heretofore established. The State of New York will be at liberty to contest the proceeding at a future time in the course of the cause, if they shall choose so to do.1

'The State of New Jersey v. The State of New York, 3 Peters, 461.

§ 431. After due service of the subpoena, the state which is complainant has a right to proceed ex parte in a suit against a state; and if, after the service of an order of court for the hearing of the case, there shall not be an appearance, the court will proceed to a final hearing. No final decree or judgment having been given in the Supreme Court against a state, the question of proceeding to a final decree is not conclusively settled in such a case.1

§ 432. In a case depending between the States of Rhode Island and Massachusetts, the senior counsel appointed to argue the cause for the State of Rhode Island, by the legislature, was prevented, by unexpected and severe illness, attending the court; the court, on the application of the attorney-general of the state, ordered a continuance for the term.2

§ 433. The practice seems to be well settled that, in suits against a state, if the state shall neglect to appear, on due service of process, no coercive measures will be taken to compel appearance; but the complainant will be allowed to proceed ex parte.3

§ 434. The State of Rhode Island, on leave granted at January Term, 1838, to amend a bill filed against the State. of Massachusetts, previously; amended the bill at the term of 1839, by inserting in it references to papers filed in 1838. The State of Massachusetts was allowed until 1840 to answer. The rules which govern courts of equity, as to the allowance of time for filing an answer and other proceedings, in suits between individuals, will not be applied by the Supreme Court of the United States to controversies between states of the Union. The parties in such cases must, in the nature of things, be incapable of acting with the promptness of an individual.

1 The State of New Jersey v. The State of New York, 5 Peters, 284. 2 The State of Rhode Island v. The State of Massachusetts, 11 Peters, 227.

3 Commonwealth of Massachusetts v. Rhode Island, 12 Peters, 757. The State of Rhode Island v. The State of Massachusetts, 13 Peters, 23.

§ 435. In all cases within the original jurisdiction of the Supreme Court, the bill or declaration is to be filed in the clerk's office of that court, and a process of subpoena is issued to be served on the defendant sixty days before the return day.1

See Rule 10, Appendix. Pennsylvania v. Wheeling and Belmont Bridge Co., 9 Howard, 647, 11 Howard, 528, 13 Howard, 518.