PART 2.

In each of the national courts in this state, it is provided by rule, that in cases falling within this provision, the surrender may be made in the same manner as in other cases.1

In the courts for the northern district, it is further provided by rule, in accordance with the present law of the state, that bail to the arrest may surrender the principal, or he may surrender himself, "in the same manner and with the like effect as in case of special bail, except that two copies of the bail bond, proved to be such by the affidavit of the marshal, of his deputy, or of a subscribing witness, shall be used instead of certified copies of the bail piece.

such judgment shall be rendered against him, that he may be charged in execution, which may be directed to, and served by, the marshal in whose custody he is."

1 Rule 69, D. C., N. D.

'Appendix, Rule 68, D. C. A question of jurisdiction occurs relative to suits against bail, and some other suits of a kindred nature, to which it may not be amiss here briefly to advert. The question as it respects bail, is this. Is it competent for the national courts to entertain jurisdiction without regard to the citizenship of the immediate parties, of suits upon bail bonds taken, and recognizances entered into in such courts respectively? In the generality of cases it is true, no such question can arise. Most of the suits in the courts of the United States are prosecuted either by the United States, by officers thereof, serving under the authority of an act of congress, by aliens, or by citizens of other states. In these cases, the bail usually being citizens of the state in which the suit is brought, no impediment to the exercise of jurisdiction exists. But where the plaintiff is a citizen of the state in which the suit is prosecuted (as he may be against an alien, or against a citizen of another state who happens to be "found" in the state of which the plaintiff is a citizen), there would in such case, according to the general rule, be a want of proper parties to a suit against the bail. It would be a suit between citizens of the same state-a case to which the judicial power of the United States (except in a few specific cases arising under the laws of the United States), does not extend. So, too, when the plaintiff, instead of taking an assignment of the bail bond, and prosecuting in his own name, elects to seek satisfaction for the defendant's default in not putting in special bail to the action, against the marshal— and where the latter is consequently obliged to resort to a suit on the bail bond for his indemnity. And so, also, of suits upon bonds for the jail

SECTION VII.

Proceedings from the declaration (inclusive) to the trial; including judgments by default.

The defendant having perfected his appearance, is entitled, by the rules of the national courts in New York, at any time thereafter to take a rule of course against the plaintiff requiring him to declare within liberties, by the marshal or by a citizen plaintiff to whom the bond has been assigned.

To be obliged to resort to the state tribunals in these cases would, to say the least, be inconvenient. Indeed, the inconvenience attending the prosecution of suits against bail, even in a different co-ordinate court, has been considered to be of so serious a nature, as to have led to the adoption of a rule, in England and in New York, requiring such suits to be brought in the same court in which the original action was prosecuted, except in cases where its enforcement would be destructive of the remedy; as where the original suit is in a county court, and the bail resides without the limits of its jurisdiction. And upon this ground alone, proceedings in such suits have frequently been set aside. Burr, 642, 1923; 3 Wils., 348; 8 T. R., 152; 2 Cowp., 396; 13 Johns. Rep., 424. Unless, therefore, it should be clearly shown that a suit brought in a state court, against bail, who had become such in a court of the United States, could not have been sustained in the latter court, we may suppose such suits would be dismissed: and hence the greater practical importance of this question.

If, as is probably generally supposed, the jurisdiction in question exists, it can only be, I apprehend, upon the ground that suits of this nature are to be regarded as mere incidents to the original suits that give rise to them, which the ends of justice require to be prosecuted in the same court; and as such are to be considered as falling within the spirit and intent of the constitutional and legislative provisions, by which the jurisdiction of the courts of the United States is defined. In other words, the jurisdiction in such cases is to be implied, from the grant of jurisdiction over the suits in which they have their origin. This is the view of the subject taken by Mr. Justice WASHINGTON, in the case of Bobyshall v. Oppenhiemer, 4 Wash. C. C., 482. But in the case of Davis v. Packard (7 Peters, 276, 285), the supreme court seems to have taken the opposite view.

There are also other analogous cases; and among these may be mentioned actions against the officers of the court for acts of negligence or misfeasance, whereby the rights of parties litigant are defeated; such as the omission or refusal to return process, false return, escape, &c. The question of jurisdiction with respect to this last ground of action (escape), becomes especially interesting in this state, by reason of the peculiar

CHAP. 2.

PART 2. twenty days after notice of such rule, or, in the courts of the southern district that he be non-prossed, and in the courts of the northern district, that judgment discontinuance be entered against him.1

1. Of the declaration.

Of the formal parts of the declaration, it would be impertinent, for reasons already mentioned, to treat at large.

The common rules of pleading, except where they have been changed by the laws of the states or by rules of court, are in general strictly applicable to proceedings in the national courts. The pleader in these courts must, therefore, have recourse to the same treatises upon this science for direction, that form of the enactment contained in the late Revised Statutes, declaring the liability of sheriffs, for the safe custody of persons committed in virtue of civil process from the courts of the United States. These officers are declared to be "answerable in the courts of the United States.” But as the sheriff is always a citizen of the state, whenever the plaintiff happens to be a citizen, here again, there will, prima facie, be a want of proper parties. This statute contains, moreover, as we have seen, another qualification. The sheriff is to be "answerable in the courts of the United States, according to the laws thereof." But the laws of the United States are silent upon the subject. It is true they declare that the laws of the several states shall be rules of decision when applicable in trials at common law; but the state laws by no means become laws of the United States, in the sense in which these terms are used in the constitution, and in the acts of congress, nor indeed in any proper sense. So that, according to the literal construction of the state law, it would seem to be at least questionable, whether in any case an action for escape from process issued by a court of the United States, can be maintained against a sheriff of the State of New York. Congress, it may be said, may remove this difficulty by yet legislating upon the subject. But, to say nothing of the constitutional impediments in the way of such a course (so far as suits between citizens of the same state are concerned), this could not be done without a departure, in some degree, from a great fundamental principle of our national jurisprudence, that of leaving all controversies properly falling within its scope, to be determined by the lex loci.

1Appendix, Rule 27, D. C., N. D.

he resorts to as his guide in the management of his CHAP. 2. causes in the state tribunals. It is true that many questions of pleading have arisen and been determined in the courts of the United States. But, as with few exceptions, they arose from no peculiarity in the constitution of these tribunals, but are in accordance with the decisions of other courts, proceeding according to the course of the common law, it would be foreign from the design of this work to notice them in detail.

There is, however, one rule applicable to the framing of the declaration in the national courts, of such vital importance as to require it to be impressively stated, and fully explained. For although it was early established and has ever since been uniformly adhered to by the courts, either through inadvertence or misapprehension, it is even yet frequently disregarded by the practitioner. It springs from the peculiar character of these courts; whose jurisdiction while it extends to every species of litigation under every form, is yet so limited as to embrace but comparatively few cases specially circumstanced: whence it results that the legal presumption in regard to them is, (not, as with regard to a court of general jurisdiction, that a cause is within its jurisdiction, unless the contrary appears, but rather,) that a cause is without their jurisdiction till the contrary is shown.

Ground of jurisdiction to be stated.] The fundamental rule, therefore, to which I refer, is this: That the facts or circumstances upon which the jurisdiction over the case depends, must be set forth in the declaration.

In some cases these facts and circumstances cannot fail to appear without any express averment for that purpose: as where the United States are plaintiffs;

PART 2. or where the postmaster-general sues in his own name in virtue of the acts of congress authorizing him to do so; or where the president, directors and company of the bank of the United States are a party. The jurisdiction in these cases, resulting as it does wholly from the character of the parties, and that character being fully indicated by their names, is necessarily manifest. So, too, when the suit is for the infringement of a patent or copyright, or upon a debenture, or a qui tam action for a penalty accruing under the laws of the United States; the jurisdiction in these cases depending, as it does, entirely upon the nature of the controversy, must be manifest from the bare statement of the plaintiff's title.

But in the other classes of cases falling within the judicial power of the United States, the facts or circumstances giving jurisdiction must be expressly stated.

Character of the parties.] Thus in a suit between an alien and a citizen, the alienage of the one, and the citizenship of the other, must be stated. Hodgson et al. v. Bewerbank et al., 5 Cranch, 303; Jackson v. Twentyman, 2 Peters, 136. And so, doubtless, when a state is plaintiff against an alien, the alienage of the defendant must be stated. When the suit is between citizens of different states the citizenship of the parties (so as to show, not only that they are citizens of different states, but also that one of them is a citizen of the state where the suit is brought) must be stated. Brigham v. Cabot et al., 3 Dallas, 382; Abercrombie v. Dupuis et al., 1 Cranch, 343; Wood v. Wagnon, 2 Cranch, 9; Capron v. Van Noorden, id., 126; Winchester v. Jackson et al., 3 Cranch, 515; Strawbridge et al. v. Curtis et al., id., 267; Hope Insurance Company v. Boardman et al., 5 Cranch, 57; Sullivan v.