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CHAPTER VI.

COMMON LAW, CIVIL LAW, AND LAW OF STATE AND NATIONAL COURTS.

II.

I. THE COMMON LAW AND CIVIL LAW AS STATE LAWS. UNITED STATES COURTS ADMINISTER STATE LAWS. III. BUT NOT AS TO FORMS OF PROCESS, UNLESS ADOPTED. IV. PROCESSES OF STATE COURTS MAY BE ADOPTED.

V. RULINGS OF THE COURTS. WHEN FOLLOWED.

VI.

NATIONAL POWERS AND COURTS NOT AFFECTED BY STATE Laws.

I. THE COMMON LAW AND CIVIL LAW AS STATE LAWS.

Though the common law is presumed to exist in most of the States, as to general principles, if nothing be shown to the contrary; yet it is not presumed to exist without statutory changes and modifications."

The extent to which the common law prevails, and the modifications thereof in each particular State, depend upon the local constitution and laws thereof. 3

But as to those States now existing where their were established civil governments and codes, or systems of domestic law, in which the civil law prevailed, as for instance, Louisiana, Texas and Florida, prior to their becoming Territories or States of the Union, the common law is not presumed to prevail therein.4

If, on the trial of a cause elsewhere, the question arises as to the law of one of these States in which the common law is not presumed to prevail, the presumption in such case is, if nothing

'Crouch v. Hall, 15 Ill. 263; Ellis v. White, 25 Ala. 540; Norris v. Harris, 15 Cal. 226; Coburn v. Harvey, 18 Wis. 147; Hamilton . Kneeland, 1 Nev. 40; State v. Cummings, 33 Conn. 260; White v. Knapp, 47 Barb. 549; McDougald v. Carey, 38 Ala. 320; Miles. Collins, 1 Met. (Ky.) 308; Reese v. Mutual Benefit Ins. Co., 23 N. Y. 516, 522; Plumleigh v. Cook, 13

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to the contrary is shown, that the law is the same as in the State where the trial is proceeding.1

If the contrary is insisted upon by either party, those who assert the existence of the law must plead and prove it.

II. UNITED STATES CIRCUIT COURTS ADMINISTER THE STATE LAWS.

We have no national common law, or common law of the United States in their united capacity as a nation. The Federal courts administer the laws of the several States, and of the national Congress; the common law, therefore, when administered in the national courts, is administered as it exists in a more or less modified form in the State, when pertinent to the controversy.4

The circuit courts of the United States are bound to take notice of the general laws of the several States. They are created by Congress to administer the laws of all the States of the Union. in cases to which these laws respectively apply. Their jurisdiction extends to many cases arising under State laws. This State jurisprudence is not a foreign one, to be proven in court in the ordinary manner of proving the laws of foreign countries in courts of justice, but is to be judicially taken notice of in the saine manner by the United States courts as the laws of the United States are by them taken notice of. But this rule of law applies only in law cases, and not to proceedings in chancery."

1 Norris v. Harris, 15 Cal. 226; Monroe v. Douglass, 5 N. Y. 447. But no such presumption arises in regard to the statute laws of another State. McCulloch v. Norwood, 58 N.Y. 562, 567.

2 Monroe v. Douglass, 5 N. Y. 447; Story's Conf. of Laws, § 638; Greenleaf on Evidence, § 486, et seq. It would seem that the same rule which governs the proof of laws of foreign countries in our State courts would also govern the proof of laws of sister States. As to how foreign laws are proved see Hall v. Costello, 48 N. II. 176; Barrows v. Downs, 9 R. I. 446; Greenleaf on Evidence, § 488; Sedgwick on Construct. of Statutes, 93 et seq.; Wharton's Conf. of Laws, § 771 et seq.; Smith's Statutory Law, Chap. 21.

Wheaton v. Peters, 8 Pet. 591: Lor

man v. Clarke, 2 McLean, 568; Van Ness v. Pacard, 2 Pet. 137; People v. Folsom, 5 Cal. 374; see ante, Chap. 5, § I. p 29.

4 Wheaton v. Peters, 8 Pet. 591; Lor. man v. Clarke, 2 McLean, 568; People v. Folsom, 5 Cal. 374; Van Ness v. Pacard, 2 Pet. 137; see ante, Chap. 5, § I. p. 29.

Owings v. Hull, 9 Pet. 607; Carpenter v. Dexter, 8 Wall. 513, 518; Cheever v. Wilson, 9 Wall. 108; Pennington v. Gibson, 16 How. 65, 80; Clark v. Smith, 13 Pet. 195, 203, 205; Piqua Branch Bank v. Knoop, 16 How. 369; Beauregard v. New Or leans, 18 How. 497.

Neves v. Scott, 13 How. 268; U. S. v. Howland, 4 Wheat. 108, 115; Boyle v. Zacharie, 6 Pet. 648, 658; Robinson

And where the statute law of a State renders an unsworn plea of non est factum inadmissible in a State court, the courts of the United States, sitting in such State, will follow the State statute upon that subject. 1

But in cases involving general commercial law, the Federal courts construe the law for themselves, and do not defer to the State court decisions.2

III. BUT NOT AS TO FORMS AND PLEADINGS, UNLESS ADOPTED BY THEM.

Statutes of the States in proprio vigore are of no force so far as regards the forms of suits, modes of proceedings, or pleadings, in courts of the United States. Congress has exclusive authority over these subjects. So far as by act of Congress State laws have been adopted, or under authority of acts of Congress have been adopted by these courts, they are obligatory, and no further. No court, however, of the United States may adopt such as are in conflict with the acts of Congress upon the subject of jurisdiction, forms, practice or proceedings in the courts of the United States.3 A broad distinction exists in this respect as respects statutes which are rules of right and property, and such as go to the remedial forms, proceedings and practices of the courts. The former are the law of the forum of the United States court, in any State, when not in conflict with the national laws or Constitution, and will not only be administered, but will be taken notice of by the courts.4 Thus, State statutes which require suits on bills or notes, in the county where the drawers live, or where the first endorser lives, and similar requirements will be disregarded as utterly incompatible and repugnant to the organization and jurisdiction of the United States courts; and so of State laws requiring the joinder of both drawers and endorsers of bills of exchange in one and the same action, for the law of

. Campbell, 3 Wheat. 212, 222; Livingston v. Story, 9 Pet. 654; Russell v. Southard, 12 How. 139.

1 Bell v. Mayor, etc., of Vicksburg, 23 How. 443.

2 Williams v. Suffolk Ins. Co., 3 Sum. 270; S. C., 13 Pet. 415; Austen v. Miller, 5 McLean, 135; S. C., 13 How. 218;

Browning v. Andrews, 3 McLean, 576.

3 Keary v. Farmers & Merchants' Bank of Memphis, 16 Pet. 89.

Brine v.

Insurance Co., 6 Otto, 627, and approved in Orvis v. Powell (Oct. Term Sup. Ct. of U. S.,1878); 2 Chicago Law Journal, 190.

jurisdiction as to citizens of different States excepts suits for the contents of promissory notes or other choses in action in favor of an assignee, unless the suit might have been brought in such court if no assignment or endorsement had been made except as to foreign bills of exchange. For in such cases it may often occur that the residence and citizenship of these parties are not such as to render suit against them all, in the same action, practicable in the United States court.1

IV. PROCESSES OF STATE COURTS MAY BE ADOPTED.

The processes and practice of the highest State courts of original jurisdiction in proceedings at law are likewise conformed to by the United States circuit courts sitting in the several States, so far as the same are or shall be adopted by the said circuit courts.2 But the power to adopt the same is not vested in a district judge sitting alone, as judge of a circuit court, except in those States where there may be no full circuit court, wherein the district judge and court exercises the functions and jurisdiction as well of the circuit court as of the district court.3

V. RULINGS OF THE COURT. WHEN FOLLOWED.

The construction put upon the constitutions and State laws of the several States, by their own courts, will be mutually respected and followed in the courts of each other, whenever those constructions and laws come under their judicial consideration in matters involving the same points thus adjudicated.4

So, too, as between the national courts and State courts. The former, as a general rule, follow the local decisions of the highest State courts of the State wherein they are sitting, when such decisions are settled and uniform and have become a rule of property, especially so, as to lands, in regard to the constructions of State constitutions, statutes, and unwritten laws, if the same do not conflict with the Constitution, treaties or laws of the

1 Brine v. Insurance Co., 6 Otto, 627, and approved in Orvis v. Powell (Oct. Term Sup. Ct. of U. S., 1878); 2 Chic. Law Journal, 190.

Amis v. Smith, 16 Pet. 303.

• Ibid.

4 Brown . Phillipps, 16 Iowa, 210; Franklin v. Twogood, 25 Iowa, 520; Thompson v. Alger, 12 Met. 428; Sedgwick on Const. of Statutes, 362, 363.

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United States.' But the national courts will not change, as a general principle, with local changes. On the contrary, will, in questions affecting constitutional rights, or remedies of creditors, although involving State constitutions or statutes, judge for themselves, regardless of all such State court constructions as may amount to a denial of remedy; and so, too in matters of contract involving such statutory or constitutional construction.s So, also, State court decisions and constructions of instruments on common law principles, are not binding on the Federal courts as rules of decision. Nor when made in reference to the general commercial law, if in contravention thereof.5

VI. NATIONAL POWERS AND JURISDICTION NOT AFFECTED BY STATE LAWS.

The jurisdiction of the Federal courts cannot be restricted or enlarged by State legislation."

This is the case, too, whether viewed in relation to actions and suits originally brought therein or in reference to such as are first brought in a State court, and are removed to the United States Circuit Court under some of the acts of Congress allowing such removal.

National Powers not Affected by State Laws. State laws cannot control the rightful powers of the national government, or

'Thatcher v. Powell, 6 Wheat. 119, 127; Green v. Neal, 6 Pet. 291, 298; Shelly v. Guy, 11 Wheat. 361, 367; Taylor . Brown, 5 Cr. 234, 255; McKeen v. Delancy, 5 Cr. 22; Massie v. Watts, 6 Cr. 148, 167; Elmendorf v. Taylor, 10 Wheat. 152; McCutchen v. Marshall, 8 Pet. 220; Nesmith v. Sheldon, 7 How. 812; Piqua Branch Bank e. Knoop, 16 How. 369; Parker v. Kane, 22 How. 1; Middleton v. McGrew, 23 How. 45; Bank of Hamilton v. Dudley, 2 Pet. 492; U. S. v. Morri son, 4 Pet. 124; Henderson v. Griffin, 5 Pet. 151; Thompson v. Phillips, Baldwin, 246; Brine v. Ins. Co., 6 Otto, 627; Orvis v. Powell (Sup. Ct. of U. S., Oct. Term, 1878); 2 Chicago Law Journal, 190.

2 Piqua Branch Bank v. Knoop, 16 How. 369.

3 Butz v. City of Muscatine, 8 Wall. 575, 584. Changes will be made, however, if the local decisions have been misconceived. Green v. Neal, 6 Pet.

291.

4 Foxcroft v. Mallett, 4 How. 353. 5 Swift v. Tyson, 16 Pet. 1; Polk v. Wendal, 9 Cr. 87.

Phelps v. O'Brien Co., 2 Dill. 518, and cases in note following.

Phelps v. O'Brien Co., 2 Dill. 512; Insurance Co. v. Morse, 20 Wall. 445; Hobbs v. Manhattan Ins. Co., 56 Me. 417; Hatch v. Chi. R. I. & P. R. R. Co., 6 Blatch. 105.

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