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PRACTICE AT COMMON LAW IN CIVIL ACTIONS.
$ 453. Common law practice. In general. Actions at common law are either civil or criminal. The Supreme Court considers the practice of the court of King's Bench in England as affording outlines for its practice at common law. In civil actions at common law the District Courts follow in general the practice in the courts of the State where they are held, except in those particulars which are regulated by Federal statute.?
The Revised Statutes provide, that "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." 3 A proceeding begun by an attachment is a civil cause within the meaning of the statute. So is a proceeding to establish a will under the Missouri statute.5
$ 453. 1 Supreme Court Rule 3. lar subject and prescribed a rule.” Amy v. Watertown, 130 U, S. 301, A substantial compliance with the 304, 32 L. ed. 946, 947; Bradley, J.: statute is sufficient. Hein v. West“The statute of 1872 is peremp- inghouse Air Brake Co., 168 Fed. tory, and whatever belongs to the 766. three categories of practice, plead- 2 U. S. R. S., § 914. ing, form and mode of pleadings, 3 U. S. R. S., § 914, Comp. St. must conform to the State Laws $ 1537. and the practice of the State 4 Citizens' Bank v. Farwell, C. C. Courts, except where Congress it- A., 56 Fed. 570. self has legislated upon a particu. 5 Sawyer v. White, C. C. A., 122
Fed. Prac. Vol. III-1
The phrase “as near as may be” has been held not to mean 'as near as may be possible" nor as near as may be practicable;" 6 but to devoire: upon the Federal courts the duty of construing and deciding, and to give them the power to reject any subordinate provision in such State statutes, which in their judgment would unwisely incumber the administration of the law, to tend to defeat the ends of justice in their tribunals.?
The State practice will not be so far followed as to permit a suit founded upon a right that is purely equitable to be tried upon the common law side of the court
before the Act of March 3, 1915,9 was the State practice followed so far as to permit an equitable defense 10 or an equitable set off, to be pleaded in an action at common law. 11 It has been held that an action brought in a Federal court at common law may, by consent, be transferred to the equity side of the court.12
Fed. 223, 227; Foster v. Rochester, land Boy Gold Min. Co. v. Strickley, S. D. N. Y., Jan’y. 1912.
C. C. A., 116 Fed. 852; Cook v. 6 I. & St. L. R. Co. v. Horst, 93 Foley, C. C. A., 152 Fed. 41, 52. U. S. 291, 301, 23 L. ed. 898, 901; 9 Jud. Code $ 274b, 38 St. at L. Phelps v. Oaks, 117 U. S. 236, 239, 956, ch. 90, § 2, Comp. St. $ 1251b 29 L. ed. 888, 889.
quoted infra, $ 454g. 7 1. &. St. L. R. Co. v. Horst, 93 10 Doe v. Roe, 31 Fed. 97; BenU. S. 291, 301, 23 L. ed. 898, 901; nett v. Butterworth, 11 How. 669, Phelps v. Oaks, 117 U. S. 236, 239, 13 L. ed. 859; Montijo v. Owen, 14 29 L. ed. 888, 889. See Shepard v. Blatchf. 324; Parsons v. Denis, 7 Adams, 168 U. S. 618, 42 L. ed. 602. Fed. 317; Buller v. Slidell, 43 Fed.
8 Fenn v. Holme, 21 How. 481, 16 116; Schoolfield v. Rhodes, 82 Fed. L. ed. 198; Hooper v. Scheimer, 23 153; Davis v. Davis, C. C. A., 72 How. 235, 16 L. ed. 452; Smith v. Fed. 81; Young v. Mahoning CounMcCann, 24 How. 398, 16 L. ed. ty, 51 Fed. 585, 590. See N. Pac. 714; Sheirburn v. De Cordova, 24 R. Co. v. Paine, 119 U. S. 561, 30 How. 423, 16 L. ed. 741; Strother L. ed. 513; Wilcox & Gibbs Guano v. Lucas, 6 Pet. 763, 8 L. ed. 573; Co. v. Phenix Ins. Co., 61 Fed. 199; Swayze v. Burke, 12 Pet. 11, 9 L. McManus v. Chollar, C. C. A., 128 ed. 980; Claggett v. Kilbourne, 1 Fed. 902; Tegarden v. LeMarchel, Black, 346, 17 L. ed. 213; infra, 129. Fed. 487; infra, $ 454g. $$ 454, 477; Goodyear Shoe Ma- 11 Scott v. Armstrong, 146 U. S. chinery Co. v. Dancel, C. C. A., 119 499, 36 L. ed. 1059; Waldo v. Wil. Fed. 692, in which the author was son, C. C. A., 231 Fed. 654. counsel. If the objection is not 12 U. S. v. Wells, 203 Fed. 146. raised upon the trial it will be Contra, Waldo v. Wilson, C. C. A., waived. Union Pac. Ry. Co. v. 231 Fed. 654; infra, $ 454g. Harris, C. C. A., 63 Fed. 800; High