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Ejectment in a Federal Court cannot be sustained upon a title which is purely equitable, although the State practice would have permitted such a suit in the State court.13 Ejectment cannot be sustained upon a land warrant; nor upon an entry made with a register and receiver of the land office, although the State Legislature authorizes' a suit in such a case. 15 An action of ejectment will not lie when the defendant is in possession under a contract, which plaintiff avers to be void, because obtained by a breach of trust.16 Where a deed, contract or sale is void for fraud, an action of ejectment may be maintained by a rightful owner of the property, without resorting to equity to set the same aside.17 In ejectment, it is immaterial which party has the best equitable title.18

A bondholder cannot sue at common law, in a Federal court, to recover damages from a former receiver, who has, by his fraudulent acts, injured the mortgaged property before its sale, although a State court might afford such relief.19 It has been held that a suit by a party to a contract, to compel its performance by a stranger to the same, who has assumed its obligations in a subsequent contract with the promisor, can only be enforced in equity, although the State practice would permit such an action to be maintained at common law.20 The fact that a prayer for an accounting is joined with one for the recovery of the possession of land will not entitle the plaintiff to appeal to a court of equity.21

13 Sheirburn v. De Cordova, 24 How. 423, 16 L, ed. 741; Swayze v. Burke, 12 Pet. 11, 9 L. ed. 980; Fenn v. Holme, 21 How. 481, 16 L. ed. 198; Hooper v. Scheimer, 23 How. 235, 16 L. ed. 452; Smith v. McCann, 24 How. 398, 16 L. ed. 714; Claggett v. Kilbourne, 1 Black, 346, 17 L. ed. 213; Beatty v. Wilson, 161 Fed. 453.

14 Strother v. Lucas, 6 Pet. 763, 8 L. ed. 573; Fenn v. Holme, 21 How. 481, 16 L. ed. 198.

16 Hooper v. Scheimer, 23 How. 235, 16 L. ed. 452.

16 Mead v. Chesbrough Bldg. Co., C. C. A., 151 Fed. 998.

17 Mead v. Chesbrough Bldg. Co., C. C. A., 151 Fed. 998, 1006; Mead v. Gallatin, C. C. A., 151 Fed. 1006.

18 Mead v. Chesbrough Bldg. Co., C. C. A., 151 Fed. 998.

19 Fletcher v. Burt, 126 Fed. 619.

20 Goodyear Shoe Machinery Co. v. Dancel, C. C. A., 119 Fed. 692; in which the author was counsel. But see Willard v. Wood, 135 U. S. 309, 34 L. ed. 210. Contra, Union Mutual Life Ins. Co. v. Hanford, 143 U. S. 187, 190, 6 L. ed. 118, 120.

21 Hipp v. Babin, 19 Howard, 271, 15 L. ed. 633.

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In the following particulars the practice at common law in civil cases in the District Courts of the United States is regulated by Federal statutes and decisions, and the State practice is not followed: writs and process; 22 the manner of raising objections to jurisdiction over the person of the defendant; 28 service by publication or without the district; pleading in actions for the infringement of patents 25 and copyrights ; 26 amendments ; 27 provisional remedies ; 28 abatement and revivor ; 29 consolidation of suits; 30 evidence, testimony and depositions ; 31 selection of juries; 32 trials; 38 motions for new trials ; 34 the power of the court when setting aside a verdict to enter final judgment ; 35 judgments; 36 correction of judgments; 87 costs; 38 executions and proceedings supplementary

22 Infra, $ 455. But see Stewart v. Justices of St. Clair Co. Court, 47 Fed. 482, 484; Leas & McVitty v. Merrimann, 132 Fed. 510.

23 Meisukas v. Greenough Red Ash Coal Company, 244 U. S., 54 supra, $ 62a,

24 Supra, & 166.

25 U. S. R. S., § 4920; infra, $ 454m.

26 U. S. R. S., $ 4969; infra, 8 454n.

27 U. S. R. S., $ 954; infra, $ 455b.

28 Infra, $$ 470, 471.
29 Supra, $ 220.
30 Infra, $ 472.

31 Supra, chap. XXI. It has been held that $ 11497 of the general code of Ohio, so far as construed by the State courts so as to give a party an unlimited right to call and cross-examine his adversary is not a matter of procedure nor a rule as to the competency of testimony or witnesses; but a matter of trial administration which does not bind the Federal court, American Issue Pub. Co. v. Sloan, C. C. A., 248 Fed. 251, 253. The court in Massachusetts followed

the rule established by the State decision, that the former testimony of a witness. may be introduced to impeach his testimony upon the trial without calling his attention thereto, unless he has been called by the party seeking to impeach him. Am. Agricultural Chem. Co. v. Hogan C. C. A., 213 Fed. 416, 420.

By an Act of Congress the competency of witnesses in civil actions is determined by the State laws 34 St. at L. 618 supra, $ 339.

32 U. S. R. S., $$ 800, 882; infra, $ 473.

83 U. S. v. Oppenheim, 228 Fed. 220; Waldo v. Wilson, C. C. A., 231 Fed. 654; infra, $$ 473-476.

34 Infra, $ 478.

35 Slocum v. N. Y. License Co., 228 U. S. 364; McKeon v. Central Stamping Co., C. C. A., 264 Fed. 385.

36 Infra, $ 480.
37 Infra, $ 481.

38 Supra, ch. XXVII. But see
Huntress v. Epsom, 15 Fed. 732;
New Hampshire L. Co. v. Tilton, 29
Fed. 764; Primrose v. Fenno, 113
Fed. 375, 376. It has been said that,

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thereto; 39 contempts; 40 the manner of taking exceptions, and reserving objections for review during a trial; 41 bills of exceptions; 42 the determination as to what constitutes a final judgment which is reviewable ; 48 the computation of time within which to sue out writs of error; 44 the practice in suing out writs of error and the proceedings upon them,46 including the power of the court of review in respect to the judgment to be entered upon a reversal.46 “Such proceedings are governed entirely by the acts of Congress, the common law, and the ancient English statutes.'

A Federal court is not bound to follow a State statute providing that the case must be dismissed unless proceedings are therein taken within one year after a reversal by the State Supreme Court.48

The Revised Statutes provide “The several circuit and district courts may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering

in determining who is the successful party, the Federal courts should follow the State statutes and decisions. Scatcherd v. Love, C. C. A., 166 Fed. 53. See $ 408, supra. As to security for costs, see Henning v. W. U. Tel. Co., 40 Fed. 658; O'Brien v. Hearn, 125 Fed. 95; supra, § 425.

39 Supra, $ 427; Kaill v. Board of Directors, C. C. A., 194 Fed. 73.

40 Supra, $$ 428-436. 41 Chicago Great Western R. Co. v. Le Valley, C. C. A., 233 Fed. 384.

42 Consumers Cotton Oil Co. v. Ashburn, C. C. A., 81 Fed. 331, 333; infra, $ 479.

43 Chicago Great Western R. Co. v. Le Valley, C. C. A., 233 Fed. 384.

44 Siegelshoffer v. Penn License Co., C. C. A., 248 Fed. 226.

45 Western Dredging Co. v. Heldmaier, 116 Fed. 179; Francisco v. Chicago & A. R. Co., C. C. A., 149 Fed. 354; Richmond & D. R. Co. v. McKee, C. C. A., 50 Fed. 906; McClellan v. Pyeatt, C. C. A., 50 Fed. 686; Kentucky L. & A. Ins. Co. v. Hamilton, C. C. A., 63 Fed. 93; infra, chapter XXXVI on Writs of Error and Appeals; Farmer v. Atlantic Coast Line R. Co., 205 Fed. 319; McBride v. Neal, C. C. A., 214 Fed. 966; Western Union Telegraph Co. v. Aldridge, 219 Fed. 836.

46 Farmer v. Atlantic Coastline R. Co., 205 Fed. 319, 323.

47 Camp v. Gress, C. C. A., 250 U. S. 308, 318

48 Manitowoc Malting Co. Feuchtwanger, 196 Fed. 506.

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and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings." 49 This authorized those courts to direct that writs, issued from them, shall be returned within a different time than that prescribed by the State laws.50

It has been held that as to the following matters the District Courts will, in civil actions at common law, follow the statutes of the respective states where they are held : form of writ,61 except the teste and signature,62 indorsement of writ, 58 indorsement of summons; 54 the return of process; not when the court otherwise directs; 66 right of assignee to sue in his own name;

personal service of writ and process on individuals 68 and on corporations,69 at least if domestic corpo

56 but

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49 U. S. R. S., 8918, Comp. St. $ 1544.

50 Gokey v. Boston & Maine R. Co., 130 Fed. 992; aff'd Boston & Maine Railroad v. Gokey, 210 U. 8. 155, 52 L. ed. 1002. U. S. v. U. S. F. & G. Co., C. C. A., 186 Fed. 477.

81 Brown v. C. & 0. C. Co., 4 Fed. 770. See Baltimore & O. R. Co. v. Hamilton, 16 Fed. 181. It has been held that a suit in the United States Circuit Court for the penalty provided by the Act of 1885, ch. 164, $ 3, for violation of the provisions of the act relating to alien contracts for labor, may be properly begun by capias in accordance with the State law. U. S. v. Banister, 70 Fed. 44. But see Shepard v. Adams, 168 U. S. 618, 42 L. ed. 602.

52 Infra, $ 455.

53 Brown v. Pond, 5 Fed. 31, 37. But see $ 455, infra. 54 U. S. v.

Rose, 14 Fed. 681. 55 Gokey v. Boston & M. R. Co., 130 Fed. 992; aff'd as Boston & Maine Railroad v. Gokey, 210 U. S. 155, 52 L. ed. 1002.

56 U. S. R. S., § 918; Gokey v. Boston & M. R. Co., 130 Fed. 992;

aff'd as Boston & Maine Railroad v. Gokey, 210 U. S. 155, 52 L. ed. 1002; infra, $ 455.

57 Edmunds v. Illinois C. R. Co., 80 Fed. 78, where the cause of action arose under a Federal statute, the Interstate Commerce Act. Where there no State statute, the suit must be brought in the name of the assignor. Nederland L. I. Co. v. Hall, 84 Fed. 278; Shaffer v. Federal Cement Co., 225 Fed. 893; infra, $$ 454b, 454c.

58 Shampeau v. Connecticut R. L. Co., 37 Fed. 771; Wilson v. Fine, 37 Fed. 789; Amy v. Watertown, 130 U. S. 301, 32 L. ed. 946. See supra, $$ 163-166. So held as to the form of a return of service. Trimble v. Erie El. M. Co., 89 Fed. 51; Wilson v. Hurst, Peters C. C. 441; U. S. v. Lotridge, 1 McLean, 246.

69 Re Louisville nderwriters, 134 U. S. 488, 493, 33 L. ed. 991, 994; Miller's Adm'r v. Norfolk & W. R. Co., 41 Fed. 431; McCormick H. Mach. Co. v. Walthers, 134 U. S. 41, 33 L. ed. 833; Société Foncière v. Milliken, 135 U. S. 304, 34 L. ed. 208. See supra, $$ 164-164d.

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rations; 60 joinder of parties; 61 joinder of causes of action; joinder of defenses; 63 form of pleading ; 64 verification of pleading; 65 time, 66 and manner 67 of service of pleading and amendment of pleading, 68 except as to defects of form; 69 matters that may be proved under the general denial; 70 set off and counterclaim of cause of action at common law; interpleader; 72 notice of trial or of argument ; 73.time of filing referee's report; time of bringing a case on for trial and of entry of judgment for insufficiency of answer; 75 discontinuance; 76 compulsory dismis

71

74

60 Amy v. Watertown, 130 U. S. 30, 32 L. ed. 946.

61 Perry v. Mechanics' Mut. Ins. Co., 11 Fed. 478; Delaware Co. Com’rs v. Diebold s. Co., 133 U. S. 473, 488, 33 L. ed. 674, 680; infra, § 454b. Nonjoinder of husband in action by wife, although the woman is an alien. Morning Journal Ass'n v. Smith, C. C. A., 56 Fed. 141.

62 Castro v. De Uriarte, 12 Fed. 250. But see O'Connell v. Reed, C. C. A., 56 Fed. 531; Bowden v. Burnham, C. C. A., 59 Fed. 752; Holt v. Bergevin, 60 Fed. 1.

63 Cole v. Carson, C. C. A., 153 Fed. 278; Leonard v. Merchants' Coal Co., C. C. A., 162 Fed. 885.

64 U. S. v. Atlantic Coast Line R. Co., 153 Fed. 918.

65 West v. Home Ins. Co., 18 Fed. 622; Cottier v. Stimson, 18 Fed. 689.

66 Ricard Inhabitants New Providence, 5 Fed. 433. But not necessarily as to the return day. Ewing v. Burnham, 74 Fed. 384.

67 Wilson v. Fine, 38 Fed. 789.

68 Rosenbach v. Dreyfuss, 1 Fed. 391. But see U. S. R. S., $ 954; Erstein v. Rothschild, 22 Fed. 61; supra, &$ 208, 211, and infra, $ 454.

69 Manitowoc Malting Co. Muechtwanger, 169 Fed. 983. See $$ 208, 211, supra.

70 Yocum v. Parker, C. C. A., 130 Fed. 770; infra, $ 454e.

71 Partridge v. Felix Mut. L. I. Co., 15 Wall, 573, 21 L. ed. 229; Dushane v. Benedict, 120 U. S. 630, 30 L. ed. 810; Charnley v. Sibley, C. C. A., 73 Fed. 980. Contra, Jewett Car Co. v. Kirkpatrick, 107 Fed. 622, holding to the contrary of the cases in the Supreme Court that no affirmative judgment can be awarded upon a counterclaim. But not of equitable set-off.

Scott v. Armstrong, 146 U. S. 499, 36 L. ed. 1059.

72 Harris v. Hess, 10 Fed. 263. In the absence of statute, interpleader or the bringing in of a new party cannot be ordered at common law. Bertha Z. & M. Co. v. Clarico, 61 Fed. 132, 136. For the practice in equity, see supra, $ 157. Huxley v. Pennsylvania Warehousing & 8. D. Co., C. C. A., 184 Fed. 705.

73 Rosenbach v. Dreyfuss, 2 Fed. 23. But see Osborne v. Detroit, 28 Fed. 385.

74 Parker v. Ogdensburg & L. C. R. Co., 79 Fed. 817.

75 Springs v. James, 172 Fed. 626.

76 Nussbaum v. Northern Ins. Co., 40 Fed. 337; Gassman v. Jarvis, 94 Fed. 603. Where the State statute permitted a plaintiff to dismiss, without prejudice, before the final

V.

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