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the proceeding is taken will be followed in the issue and proceedings upon writs of scire facias.
$ 369, Attachment of property.- A Federal statute passed June 1, 1872, provides that “in common-law causes in the Circuit and District Courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the State in which such court is held for the courts thereof; and such Circuit or District Courts may, from time to time, by general rules, adopt such State laws as may be in force in the States where they are held in relation to attachments and other process, provided, that similar preliminary affidavits or proofs, and similar security, as required by such State laws, shall be first furnished by the party seeking such attachment or other remedy." I Most of the Circuit and District Courts have adopted by their rules the State laws in force within their respective districts. It has been held that such a rule need not be in writing; and that the court of review will presume that such a rule has been adopted by the trial court when there is no affirmative showing to the contrary.'
These rules and the statute do not give a Circuit or District Court power thus to acquire jurisdiction over a person not a resident of the district nor served with process therein; 4 but it has been held that an attachment thus levied in a suit begun in a State court without personal service will not be vacated after a removal. It is doubtful whether the writ of attachment can be issued before jurisdiction has been obtained by service of original process. It has been held that the Circuit
36 McKnight v. Craig's Adm’rs, 6 den v. Darden, 4 Woods, 437; AnderCranch, 183, 187; Walden v. Craig, son v. Shaffer, 10 Fed. R. 266; Boston 14 Pet. 147, 151; Kenosha & R. R. Co. El. Co. v. El. G. L. Co., 23 Fed. R. 838; v. Sperry, 3 Biss. 309.
Harland v. U. L. Tel. Co., 40 Fed. R. $ 369, 1U. S. R. S., & 915; 17 St. at 308; Ex parte Railroad Co., 103 U. S. L., ch. 255, p. 197. See Schunk v. 794. Moline M. L. S. Co., 147 U. S. 500. 5 Crocker Nat. Bank v. Pagens
2 See, for example, the Rules of the techer, 44 Fed. R. 705; infra, Ver. U.S. C. C., S. D. N. Y., adopted Oct. milya v. Brown, 65 Fed. R. 149, 383, 11, 1878, and Dec. 29, 1881.
392. Logan v. Goodwin (C. C. A.), 104 6 Chittenden v. Darden, 4 Woods, Fed. R. 490. See also Citizens' Bank 437. See Nazro v. Cragin, 3 Dill. 474; v. Farwell (C. C. A.), 56 Fed. R. 570. Treadwell v. Seymour, 41 Fed. R. 579,
+ Sadlier v. Fallon, 2 Curt. 579; and other cases cited under note 4. Nazro v. Cragin, 3 Dill. 474; Chitten
Court for the Eastern District of New York has power to issue an attachment, and direct the same for service to the marshal of any district in the State.? As a general rule, actual physical possession is necessary to constitute a valid seizure under a writ of fieri facias or a writ of attachment, unless there be garnishee process, when service of papers on the garnishee suffices. Where the State statutes provided for successive levies under successive writs in the order in which the writs were received by the sheriff or other officers, and for a reference to ascertain the amounts and priorities of the several attachments, it was held that a writ of attachment in the hands of the marshal of the United States might be levied sub modo upon property in the hands of the sheriff under a prior levy, without actual seizure by the marshal, but by a constructive seizure; and that the plaintiff, after sustaining his attachment and suit in the Federal court, might have to go into the court from which the first writ of attachment issued, and intervene to obtain the proper relief, and to assert such priority of lien as the laws of the State respecting attachment might permit.' Where the State statute permits a writ of attachment to be amended by the addition of a seal, the writ may be so amended by the Federal court after a removal.10 The Federal court may permit an amendment of the affidavit on which the attachment was issued in a case where the State . practice would not permit such an amendment. The decisions of the Supreme Court of a State construing and applying its attachment laws are, in so far as they are constitutional, rules of decision in the Federal courts in like cases coming from that State. 12
Neither a State nor a Federal court can attach before judgment the property of a national banking association.13 Payment of the debt under attachment or garnishee process from a State court levied subsequent to the commencement of the suit in the Federal court is no defense to the latter, and such
7 Treadwell v. Seymour, 41 Fed. R. 12 Price v. Alder G. Con. Co. (C. C. 579.
A.), 71 Fed. R. 151. 8 Brooks v. Fry, 45 Fed. R. 776. 13 U. S. R. S., $ 5242; Pac. Nat. Bank 9 Brooks v. Fry, 45 Fed. R. 776–778 v. Mixter, 124 U. S. 721; Garner v. 10 Wolf v. Cook, 40 Fed. R. 432. Second Nat. Bank, 66 Fed. R. 369.
11 Erstein v. Rothschild, 22 Fed. R. 14 Wallace v. McConnell, 13 Peters, 61; Booth v. Denike, 65 Fed. R. 43; 136; Rosenstein v. Tarr, 51 Fed. R Bowden v. Burnham, 59 Fed. R. 752, 268; supra, S 9. 754; supra, $ 361.
an attachment and levy have been held inoperative for any purpose. It has been held that after an order has been entered in the Federal court directing the marshal to turn over the attached property to a claimant the sheriff may replevy such property while it is still in the marshal's possession. 16 A writ of error does not lie to an order quashing an attachment.'7
$ 370, Arrests.- The Revised Statutes regulate arrests in civil actions as follows: "No person shall be imprisoned for debt in any State, on process issuing from a court of the United States, where, by the laws of such State, imprisonment for debt has been or shall be abolished. And all modifications, conditions, and restrictions upon imprisonment for debt, provided by the laws of any State, shall be applicable to the process issuing from the courts of the United States to be executed therein; and the same course of proceedings shall be adopted therein as may be adopted in the courts of such State.”1 This statute does not apply to imprisonment for failure to pay a fine? or a penalty;' nor, perhaps, to imprisonment in suits to which the United States is a party,such as a suit to enforce a forfeiture; 5 nor, it has been said, to suits for torts. “When any person is arrested or imprisoned in any State, on mesne process or execution issued from any court of the United States, in any civil action, he shall be entitled to discharge from such arrest or imprisonment in the same manner as if he were so arrested and imprisoned on like process from the courts of such State. The same oath may be taken, and the same notice thereof shall be required, as may be provided by the laws of such State, and the same course of proceedings shall be adopted as may be adopted in the courts thereof. But all such proceedings shall be had before one of the commissioners of the Circuit Court for the district where the defendant is so
15 Mack v. Winslow,59 Fed. R. 316; Gapete, 2 Curt. 94; Moan v. Wilsupra, $ 9.
marth, 3 W. & M. 399. 16 Daniels v. Lazarus, 65 Fed. R. 718; 2 In re Sanborn, 52 Fed. R. 583. supra, & 9.
3U. S. v. Walsh, Deady, 281. 17 Hamner v. Scott (C. C. A.), 60 4 U. S. v. Hewes, Crabbe, 307. But Fed. R. 343. But see Standley v. see U. S. v. Tetlow, 2 Lowell, 159; In Roberts (C. C. A.), 53 Fed. R. 836. re Sanborn, 52 Fed. R. 583, 585.
$ 370. IU. S. R. S., § 900; In re 5 U. S. v. Banister, 70 Fed. R. 44. Bergen, 2 Hughes, 513; Low v. Dur. 6 U. S. ex rel. Deinell v. Arnold, 69 fee, 5 Fed. R. 256; Catherwood v. Fed. R. 987, 992. See Stroheim v.
Deinell (C. C. A.), 77 Fed. R. 802.
held.”? “Persons imprisoned on process issuing from any court in the United States in civil actions, as well at the suit of the United States as at the suit of any person, shall be entitled to the same privileges of the yards of the respective jails as persons confined in like cases on process from the courts of the respective States are entitled to, and under the like regulations and restrictions." The effect of these provisions is to make the practice and proceedings in arrests in civil actions in the Federal, Circuit and District Courts almost exactly similar to those in the State courts held in their respective districts.
The Revised Statutes further provide: “For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a Circuit Court to take bail, or by any chancellor, judge of a Supreme or Superior court, chief or first judge of Common Pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested, imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case. And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.” 10
$ 371. Consolidation at law and in equity.- The Revised Statutes provide that when causes of a like nature or relative
7 U. S. R. S., & 991.
Freeman, 6 Curt. 491; U. 8. v. Knight, 8 U. S. R. S., S 992.
14 Pet. 301; U. S. v. Arnold (C. C. A.), 9 Moan v. Wilmarth, 3 W. & M. 69 Fed. R. 987. For the practice in 399; Gray v. Munroe, 1 McLean, 528; Equity, see SS 261-263. Low v. Durfee, 5 Fed. R. 256; U. S. 10 U. S. R. S., & 1014. See U. S. v. v. Tellow, 2 Lowell, 159; In re Ber- Insley (C. C. A.), 54 Fed. R. 221; U. S. gen, 2 Hughes, 513. But see Duncan v. Sauer, 73 Fed. R. 671. v. Darst, 1 How. 301; In re Watson
to the same question are pending before a court of the United States or of any Territory, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so. This statute has been held to apply to suits in equity as well as at law.? Where a railway company filed a bill in a State court asking that its property be placed in the hands of a receiver, and the trustee of a mortgage upon its property after removal filed a cross-bill in the Federal court to foreclose the mortgage, and then began a foreclosure suit in the State court, which was afterwards removed; the Federal court consolidated all three proceedings. A creditor's bill in which a receiver has been appointed will ordinarily be consolidated with an ancillary foreclosure suit. A bill filed in aid of an attachment may be consolidated with a bill to restrain the enforcement of the attachment; and the latter, if subsequently brought, will then be considered as a cross-bill to the former. The court may refuse to consolidate two foreclosure suits, when the result would be to delay that which was first brought. The court may order several cases involving substantially the same evidence to be tried together, and direct the jury to bring in separate verdicts. This may be ordered in actions of ejectment by the same plaintiff claiming under the same title against several defendants; 8 in two suits against separate defendants for the same injury, although one is an action in tort and the
$ 371. IU. S. R. S., & 921; U. S. v. Wabash, St. L. & P. Ry. Co. v. CenU. P. R. Co., 98 U. S. 569; Andrews tral Tr. Co., 23 Fed. R. 513. v. Spear, 4 Dill. 472; Bank of Alex- 3 Wabash, St. L. & P. Ry. Co. v. andria v. Young, 1 Cranch, C. C. 458; Central Tr. Co., 23 Fed. R. 513. Wolverton v. Lacey, 18 Law R. (N. S.) 4 Toledo, St. L & K. C. R. Co. v. 672; Weide v. Ins. Co. of N. A., 3 Continental Tr. Co. (C. C. A.), 95 Chic. L. N. 353; Wabash, St. L. & P. Fed. R. 497. See Central Tr. Co. v. Ry. Co. v. Central Tr. Co., 23 Fed. R. McGeorge, 151 U. S. 129. 513; Ferrett v. Atwill, 4 N. Y. Leg. 5 Lant v. Kinne (C. C. A.), 75 Fed. Obs. 215; Holmes v. Sheridan, 1 Dill. R. 636. 351; Young v. Grand Trunk Ry. Co., 6 Mercantile Tr. Co. v. Mo., K. & 9 Fed. R. 348; Keep v. Ind. & St. L. T. Ry. Co., 41 Fed. R. 8. R. Co., 10 Fed. R. 454; Davis v. St. 7 Keep v. I. & St. L R. Co., 10 Fed. Louis & S. F. Ry. Co., 25 Fed. R. 786. R. 454. 2 Andrews v. Spear, 4 Dill. 472;