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States previously quoted.26 Such a writ is not strictly a writ of replevin, although in the nature of the same, and it need not follow the technical provisions of any State practice. 27

It has been said that United States Revised Statutes, Section 602, providing for the continuance of all process, pleadings and proceedings during a vacancy, is a remedial statute, to be liberally construed in aid of its general purpose. 28

Otherwise, the practice concerning writs and process usually followed that in the State courts.29 The Federal court followed a State statute 30 authorizing the issue of a summons at any time within a year after the complaint was filed. 31

$ 455a. Service of process. The Supreme Court has said, speaking of the act requiring a conformity with the State practice in actions at common law : “There can be no doubt, we think, that the mode of service of process is within the categories named in the act.”'1 But where the Federal court adopted a rule regulating the service of process in accordance with the then State practice, it was held that service thus made was good although the State practice had subsequently been amended.” It was so held when the long established practice of the Federal court, concerning service upon towns, differed from that required by the State statute.3

The Revised Statutes make it the marshal's duty to execute, throughout the district, all lawful precepts directed to him and issued under the authority of the United States, 4 and give him and all his deputies the same powers as the sheriff's in the same State and their deputies.5

26 214 U. Ş. 533, quoted 8.150, suprą. See Stern v. Jerome H. Remick & Co., 164 Fed. 781.

27 Stern v. Jerome H. Remick & Co., 164 Fed. 781.

28 U. S. v. Murphy, 82 Fed. 983.

29 Amy v. Watertown, 130 U. S. 301, 304, 32 L. ed. 946, 947; supra, $ 453, infra, 18. 455a.

80 California Code of Civ. Proc., $ 406.

31 Perris Irr. Dist. v. Turnbull, C. C. A., 215 Fed. 562.

$ 455a. 1 Amy v. Watertown, 130 U. S. 301, 304, 32 L. ed. 946, 947.

2 Shepard v. Adams, 168 U. S. 618, 42 L. ed. 602.

3 Elson v. Waterford, 135 Fed. 247.

4 U. S. R. S., $ 787.

5 U. S. R. S.; $788. Deputy United States Marshals in Alaska appointed under the act of May 17, 1884, may execute process issued by United States Commissioners ercising the powers of Justices'


The State practice is usually followed as to the manner of service of process at common law within the district. Where the State practice does not require a writ to be served by a public officer it need not in an action be served by the marshal.? It has been held that, when the laws of the State give such power to a sheriff, the marshal may appoint a person to serve a particular writ or perform any other special service,s that the blank form of a writ, signed and sealed, may be given by the clerk to an attorney ; that the attorney may fill in the writ, in his own handwriting, with the names of the parties, style of action, and date; that the marshal may give the attorney' a blank form appointing a deputy in which the attorney may write the name of the process-server;' and that when the writ as served is indorsed by an attorney not admitted to practice in the Federal court but qualified for admission, the court may amend it without thereby invalidating the service, by substituting another attorney, or by admitting the attorney to practice in such court.10

The State practice is not followed so far as to permit a service of process in another district from that where the action is brought.11

Where the State statute is silent, the Federal court is not bound to follow the State practice concerning exemption from service 12 and the determination of the validity thereof.18 The validity of the service of a summons is not affected because a copy of the complaint, thereto annexed, contains no allegations which show the jurisdiction of the court.1


Courts according to the statutes of
Oregon. Holden v. Williams, 75
Fed. 798. See supra, 8 340.

6 U. S. v. Mitchell, 223 Fed. 805; supra, $$ 163-164c.

7 U. S. v. Mitchell, 223 Fed. 805; contra. Schwabacker v. Reilly, 2 Dill. 127. See Amy v. Watertown, 130 U. 8. 301, 304, 32 L. ed. 946, 947; Hyman v. Chales, 12 Fed. 855; U. S. v. Jailer of Fayette Co., 2 Abb. U. S. 265.

8 Hyman v. Chales, 12 Fed. 855.
9 Jewett v. Garrett, 47 Fed. 625.

10 Ibid.

11 Colosino v. Pittsburgh & L. E. R. Co., 210 Fed. 550; Sewchulis v. Lehigh Valley Coal Co., C. C. A., 233 Fed. 423, supra, $$ 64, 163, 164c, 164d, 166-166b.

12 Kaufman v. Garner, 173 Fed. 550.

13 Kaufman v. Garner, 173 Fed. 550; Higham v. Iowa State Travelers' Ass ’n, 183 Fed. 845. See supra, 88 163, 167a.

14 Goodman v. City of Ft. Collins, C. C. A., 164 Fed. 970.

8 455b. Amendment of writs and process. The Revised Statutes provide that “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 wit, 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 pleading, upon such conditions as it shall, in its discretion and by its rules, prescribe." 1 It has been held: that an amendment may add the date to a writ,s and the signature of the clerk, when it issued from his office, and a description of the defendant in his official capacity; that where the State statute permits a writ of attachment to be amended by the addition of a seal, such a writ may be so amended by the Federal Court after a removal; 5 that an omission in the papers upon which an attachment has been granted may be supplied by an amendment in a case where the State practice does not permit such an amendment; 6 that petitions and bonds on removal are process within the statute and may be amended in a proper case; 7 that amendments of pleadings will

$ 455b. 1V. S. R. S., $ 954. See Parks v. Turner, 12 How. 39, 46, 13 L. ed. 883, 887; Roach v. Hulings, 16 Pet. 319, 10 L. ed. 979; Tilton v. Cofield, 93 U. S. 163, 167, 23 L. ed. 858; Jacob v. U. S., Brock 520, 525; Rosenbach v. Dreyfuss, 1 Fed. 391; U. 8. v. Batchelder, 9 Int. Rev. Rec. 98; Warren v. Moody, 9 Fed. 673; Thomas v. U. 8., 15 Ct. Cl. 242; Russell v. U. S., 15 Ct. Cl. 168, Gulf, C. & 8. F. Ry. Co. v. James, 48 Fed. 148, 150; Am. Alkali Co. v. Campbell, 113 Fed. 398; Great Northern Ry. Co. v. Herron, C. C. A., 136 Fed. 49; U. S. R. S., 88 636, 948, 914, 5595, 5596.

2 Gilbert v. South Carolina I. & W. I. Exposition Co., 113 Fed. 523.

8 Bryan v. Ker, 222 U. S. 107, 113, 56 L. ed. 114.

4 Hastings v. Herold, 184 Fed. 759.

5 Wolf v. Cook, 40 Fed. 432.

6 Bowden v. Burnham, 59 Fed. 752, 754; Erstein v. Rothschild, 22 Fed. 61, 64; Booth v. Denike, 65 Fed. 43, supra, $ 207, infra, $ 470.

7 Kinney v. Columbia Sav. & L. Ass'n, 191 U. S. 78, 48 L. ed. 103; infra, 8 546.

be allowed in all cases authorized by the State statute.8 Amendments are rarely allowed to the plaintiff in penal actions and actions to enforce forfeitures.9

8 456. Writs of prohibition. A writ of prohibition is a writ issuing out of a court of superior jurisdiction, and directed to an inferior court for the purpose of preventing the inferior tribunal from usurping a jurisdiction to which it is not entitled. A writ of prohibition is a civil proceeding even when designed to stop a criminal proceeding.2

The Supreme Court has power to issue writs of prohibition to the District Courts of the United States when proceeding as courts of admiralty. In a similar case a writ of prohibition may issue to the District Court of the United States for the District of Alaska.4 The writ has been issued to forbid the admission of new libellants without the service of process by them. Where the court of admiralty has jurisdiction of the vessel sued and of the subject-matter, the Supreme Court will not interfere to correct an error in the decision, even upon a question as to the validity of a statute.?

The Supreme Court has ordinarily no power to issue a writ of prohibition in any other case, except when necessary for the exercise of its jurisdiction in some matter before it ; 8 or pos

8 Leman v. Baltimore & O. R. Co., 128 Fed. 111.

9 U. $. v. Batchelder, 9 Int. Rev. Rec. 98.

$ 456. 1 High on Extraordinary Remedies, $ 762.

The history of the writ of prohibition is well described in a letter by Professor Theodore W. Dwight to the New York Tribune, in reference to Re Cooper, 138 U. S. 44, 34 L. ed. 993, published Jan. 19, 1891, reprinted in the fourth edi. tion of this treatise, $ 362.

2 Farnsworth v. Montana, 129 U. S. 104, 113, 32 L. ed. 616, 618; Smith v. Whitney, 116 U. S. 167, 29 L. ed. 601.

3 U. S. R. S., $ 688; Ex parte

Phoenix Ins. Co., 118 U. S. 610, 30
L. ed. 274.

4 Re Cooper, 138 U. S. 404, 34 L. ed. 993.

5 Ex parte Indiana Construction Co., 244 U. S. 456.

6 Ex parte Gordon, 105 U. S. 515, 26 L. ed. 953; Ex parte Hagar, 104 U. S. 520, 26 L. ed. 816; Ex parte Pennsylvania, 109 U. S. 174, 27 L. ed. 894; Re Fassett, 142 U. S. 479, 484, 35 L. ed. 1087, 1088; Re Engles, 146 U. S. 357, 36 L. ed. 1004; Re Morrison, 147 U. S. 14, 37. L. ed. 60.

7 Ex parte Pennsylvania, 109 U. S. 174, 27 L. ed. 894.

8 Ex parte Gordon, 1 Black, 503, 17 L. ed. 134; Re Christy, 3 How.

sibly when an application is made by a State, public minister, or consul, but the writ has been granted to prevent a single judge from settling a decree upon a mandate of the Supreme Court under “The Act to protect trade and commerce against unlawful restraints and monopolies.'' 10 When a State is the relator the writ issues only when the respondents are aliens or citizens of another State 11

The Circuit Courts of Appeals cannot issue writs of prohibition, except where that writ is necessary for the efficient administration of the particular jurisdiction for which they are invested ; 12 and when an appeal or writ of error is pending, or an attempt to take such an appeal or sue out such a writ has been made.13 They cannot issue the writ when a writ of error or appeal is merely contemplated 14 nor to prevent a judge from hearing a cause in which it is claimed that he is interested. 15

A Circuit Court af Appeals cannot issue a writ of prohibition to prevent a District Court from acting where the latter has no jurisdiction over the subject matter; 16 since the former court would have no jurisdiction to review such a case. 17 The writ may issue from a Circuit Court of Appeals to prevent a District Judge from granting a new trial after his jurisdiction has expired,18 and from requiring certain persons to become parties to a suit and interplead.19 In both these cases the jurisdiction of the court which issued the writ had been invoked.

292, 11 L. ed. 603; Ex parte Warmouth, 17 Wall. 64, 21 L. ed. 543; Ex parte Graham, 10 Wall. 541, 19 L. ed. 981; Re Massachusetts, 197 U. S. 482, 49 L. ed. 845.

9 Re Baiz, 135 U. S. 403, 34 L. ed. 222.

10 Ex parte U. S., 226 U. S. 420, 57 L. ed. 281.

11 Re Massachusetts, 197 U. S. 482, 49 L. ed. 222.

12 U. S. v. Williams, C. C. A., 67 Fed. 384; Re Paquet, C. C. A., 114 Fed. 437; Zell v. Judges, C. C. A., 149 Fed. 86; Hammond Lumber Co. v. U. S. District Court, C. C. A., 240 Fed. 924.

Fed. Prac. Vol. III-4

13 U. S. v. Williams,' C. C. A., 67 Fed. 384; Re Paquet, C. C. A., 114 Fed. 437; Zell v. Judges, C. C. A., 149 Fed. 86.

14 Zell v. Judges, C. C. A., 149 Fed. 86.

15 Re Paquet, C. C. A., 114 Fed. 437.

16 Hammond Lumber Co. v. U. S. District Court, C. C. A., 240 Fed. 924.

17 See infra, $ 693.
18 U. S. v. Mayer, 235 U. S. 55.

19 Ex Parte Equitable Trust Co., C. C. A., 231 Fed. 571, 594.

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