PART 2. CHAPTER II. OF THE PRACTICE OF THE CIRCUIT AND DISTRICT COURTS IN CIVIL ACTIONS AT COMMON LAW, INCLUD- SECTION 1.-As regulated by statute. Several statutable provisions, directly or indirectly relating to the practice of these courts, have already been recited, or referred to, at the commencement of the preceding chapter, and need not, therefore, be here particularly noticed, although it is indispensably necessary that the student should bear them in mind, as equally applicable to this court. Others will be hereafter cited under particular heads to which they respectively relate. But those which constitute the basis of the practice in suits at common law, in both the circuit and district courts, throughout the Union, are the following: The second section of the temporary act of 29th Sept., 1789 (the first section of which has already been given verbatim in the preceding chapter), enacts "That until further provision shall be made, and except where, by this act or other statutes of the United States, is otherwise provided, the forms of writs and executions, except their style, and modes of process and rates of fees, except fees to judges, in the circuit and district courts, in suits at common law, shall be the same in each state respectively, as are now used, or allowed in the supreme courts of the same. And the forms and modes of proceeding in causes of equity and of admiralty and maritime jurisdiction, shall be according to the course of the civil law; and the rates of fees, the same as are or were last allowed by the states respectively in the court exercising supreme jurisdiction in such causes." 'Ch. 21: 1 Stat. at Large, p. 93, 991 Under this simple and highly judicious regulation, CHAP. 2. these courts went into action. At the third session of congress, the forms of process and modes of proceeding in the courts having in the meantime become in some degree settled in conformity with the act just recited, the permanent act of May 8, 1792, usually denominated the Process Act, was passed (the first section of which has also been recited in the preceding chapter), the second section of which is as follows: "The forms of writs, executions and other process, except their style,' and the forms and modes of proceeding in suits, in those of common law, shall be the same as are now used in the said courts, [the supreme, circuit and district courts,] respectively, in pursuance of the act entitled 'An act to regulate process in the courts of the United States;' [the act of 29th September, 1789, above cited,] in those of equity and in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of equity, and to courts of admiralty, respectively, as contradistinguished from courts of common law; except so far as may have been provided for by the act to establish the judicial courts of the United States; subject, however, to such alterations and additions, as the said courts, respectively, shall, in their discretion, deem expedient, or such regulations as the supreme court of the United States shall think proper from time to time, by rule, to prescribe to any circuit or district court, concerning the same: Provided, That on judgments in any of the cases aforesaid, where different kinds of executions are issuable in succession, a capias ad satisfaciendum being 'The words "except their style," must have been inadvertently copied from the first act. In that act they referred to the style of processes (i. e., the name of the authority under which they were issued) in the state courts, and were therefore appropriate and necessary; but as they stand in this act, they refer to process in the courts of the United States, in the style of which it was not intended to make any alteration. They have accordingly been inoperative in practice. PART 2. one, the plaintiff shall have his election to take out a capias ad satisfaciendum in the first instance."1 By the first act, therefore, (of 29th September, 1789,) the then existing systems of practice in the several states were temporarily adopted as the practice of the circuit and district courts, in and for those states respectively; subject, however, to be modified by rules of court: and by the act last recited, the system of practice thus introduced into the courts of the United States, was sanctioned and permanently established, subject, however, to the like power of modification, as circumstances and convenience might require. It is proper here also to say, that subsequent changes in the modes of proceeding in the state courts whether 1Ch. 36: 1 Stat. at Large, p. 275. The power conferred by this act on the supreme court, to prescribe rules of procedure to the circuit and district courts, remained wholly dormant until the year 1822, when a body of rules was framed and promulgated to regulate the practice of the circuit courts in equity. These rules continued in force until 1842, when a more complete set of rules of equity practice was prescribed; and on the 23d of August of that year, an act was passed conferring this power in very comprehensive as well as explicit terms. The enactment here referred to is as follows: "The supreme court shall have full power and authority, from time to time, to prescribe, and regulate and alter, the forms of writs and other process to be used and issued in the district and circuit courts of the United States, and the forms and modes of framing and filing bills and libels, answers and other proceedings and pleadings, in suits at common law, or in admiralty, and in equity pleadings in the said courts, and also the forms and modes of taking and obtaining evidence, and of obtaining discovery, and generally the forms and modes of drawing up, entering and enrolling decrees, and the forms and modes of proceeding before trustees appointed by the court, and generally to regulate the whole practice of the said courts, so as to prevent delays, and to promote brevity and succinctness in all pleadings and proceedings therein, and to abolish all unnecessary costs and expenses in any suit therein." Act of August 23, 1842, ch. 188, § 6: 5 Stat. at Large, p. 516. In the year 1845, the supreme court promulgated another body of rules to regulate the practice in causes of admiralty and maritime jurisdiction. With respect to proceedings at common law this power has never been executed. introduced by the legislature or by the courts them- CHAP. 2. selves, are wholly inapplicable, per se, to the national courts. It is competent for the judges of the latter courts, in the exercise of the large discretionary powers with which they are invested, to adopt such innovations by rule if they think proper: but until so adopted they are wholly inoperative in these courts. With respect to another highly important enactment, adopting the laws of the states (except where the constitution, treaties or statutes of the United States. otherwise require or provide), as rules of decision in trials at common law, in cases where they apply, the operation, as we have seen, is otherwise. This provision is prospective, and questions are to be decided according to the laws of the state in which the court is sitting, as they exist when such questions arise. But to determine with certainty, whether the question falls under the one or the other of these provisions is not always quite easy. The student will, however, find a very able interpretation of them in the cases of Wayman et al. v. Southard et al., 10 Wheat., 1, and the Bank of the United States v. Halstead, 10 Wheat., 51; more full citations of which have been given in the first part of this treatise. The provision of the process act under consideration, it must be observed, is applicable only to the states which composed the Union at the time of its passage. But by an act passed May 19, 1828,1 it was extended to the states subsequently admitted into the Union, and by an act passed August 1, 1842,2 the act of 1828 was extended to the states admitted during the intermediate years. The first section of this act is as follows: 1 Ch. 68: 4 Stat. at Large, p. 278. 2 Ch. 109: 5 Stat. at Large, p. 499. PART 2. "The forms of mesne process, except the style, and the forms and modes of proceeding in suits in the courts of the United States, held in those states admitted to the Union since the twenty-ninth day of September, in the year seventeen hundred and eighty-nine, in those of common law shall be the same in each of the said states, respectively, as are now used in the highest court of original general jurisdiction of the same, in proceedings in equity, according to the principles, rules and usages, which belong to courts of equity, and in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of admiralty, as contradistinguished from courts of common. law, except so far as may have been otherwise provided for by acts of congress, subject, however, to such alterations and additions as the said courts of the United States respectively shall, in their discretion, deem expedient, or to such regulations as the supreme court of the United States shall think proper, from time to time, by rules to prescribe to any circuit or district court concerning the same." The second and third sections contain important provisions applicable to the old as well as new states. They are as follows: Sec. 2. "That, in any one of the United States, where judgments are a lien upon the property of the defendant, and where, by the laws of such state, defendants are entitled in the courts thereof, to an imparlance of one term or more, defendants, in actions in the courts of the United States, holden in such state, shall be entitled to an imparlance of one term." Sec. 3. "That writs of execution and other final process issued on judgments and decrees, rendered in any courts of the United States, and the proceedings thereupon shall be the same, except their style, in each state, respectively, as are now used in the courts of such state, saving to the courts of the United States in those states in which there are not courts of equity, with the ordinary equity jurisdiction, the power of prescribing the mode of executing their decrees in equity by rules of court. Provided, however, that it shall be in the power of the courts, if they see fit in their discretion, by |