!'ATUM V. TOWN 011' TAMAROA.
an amendment made by which those privileges were increased, it was to be considered altogether as the charter of the company, and by a reference to the word "charter" the whole charter of the company was to be considered together, whereby the amendment became an integral part pf the original charter, so that by reference to the charter in that Wf1Y the subsequent law incorporated the amendment as well as the original act. Suppose, however, the langnllJge of the law in that case had been to confer all the rights and privileges ofa cha-rter referred to by the' date as part of the description: then it might be said it was somewhat similar to the case now before the court; bnt such was not the language there. If, for instance, this law iuaqrporatmg the town of Tamaroa, had declared that it was ,to ,have anclrights the town of Havana had,without all the referring to a particular act, then, it might be presumed that it refel'red. to existing laws in force at the time that the, oorporate pow ;lrW'as given to the town of Tamaroa. But, inasmuch as the act of iJ;l.corporation in this ease refers to flo particular statute, think'it is scarcely inferable that it was, in the mind of the legislatur to give' 'to ;l the town of Tamaroa the right subscribe to the capital stock of a railroad, and impose, additiona\ burdens on the inhabitants of the town, especially when' the language of the act ,of 1859 limits the power of the town authorities to tax propert;r within the town to not more than one-half of 1 per cent. Can it be fairly inferred, with such a limit upon the authority of the trustees, that legislature intended to say that the town of Tamaroa should have the power to subscribe to the stock of a railroad, and thereby impose a tax on the people of the town, in the face of the express proviso to the act of 1859 defining the powers of the corporation? We think not. Therefore, if it were true that by a strained inference there was such an intention shown in the body of the act,still, there being a proviso ofa limit upon the authorities of the town, which limit would be entirely inconsistent with a power previously given, the limit would control; the proviso would operate npon all previous language in the act. And BO, without going further into this question, we hold thai the plaintiff canllot r81:<JHU. '
and others v.
CITY Oll' DOVER.
(Circuit Oourt, D. New Hamp8hire.
PRACTtCE-AMENDMENT OF WRITS-TERMS.
October 31, 1882.)
While the practice in the state courts may enlarge the power of amendmen t in the federal courts, it cannot diminish such powers as are conferred by acts of congress.
Caverly, Kevil r:t Wooleigh and Mr. Fish, for plaintiffs. Mr. Mugridge, G. L. Roberts 'tt Brother, and Mr. McLane, (speoially,) for defendant. LOWELL, C. J. The writs in this and several other oases were made returnable on the eighth of Ootober, 1882, which was Sunday, and by Rev. St. § 658, the term of the court began on Monday, the 9th. There can be no doubt that the writs were voidable and might be quashed on motion. Three unreported oases in this court,' decided in 1876, are cited which establis.h that point. I am informed that in none of these cases the question argued here, whether such process can be amended, passed. upon by the court. Tn these petition for leave to amend, as well cases the printed briefs as an argument upon the subject. Such a writ was held to be void and not a'lluindablein Wood v. Hill, 5 N. lI. 229, which was followed; Bellv. Austin, 13 Pick. 90; and that'in Brainard v. Mitchell, 5 R. 1. 111. ' The first of these decisions WM explained in Kelly v. Gilman, 29 'N. H.385, as belonging to an exceptional class of cases in which the process was by of the person, and the general rule was said to be that a mistake in the return-day may be amended. cases cited from Massachusetts and Rhode Island the defendants did not appear. If he does appear, though only to move to quash, the law of Masf3acqusettsriow is that the writ may be amended. Hamilton v. Ingraham, 121 Mass. 562; v. Wheeloqk, 1 Gray, 600; Fay v. Hayden, 7 Gray, 41. 'r ,have found no law in New Hampshire precisely like this, but !nmy opinion the defect is a,mendable by the law of this state. See Gen. Laws 1878, c. 226, §§ 8, 9; Kelly v. Gilman, 29 N. H. 384; Tandy v. Rowell, 54 N. H. 384. If the defendant had not appeared justice would require that notice should be served on him. With such service, I have but little doubt or the power of a court of New Hampshire to permit an amendment. But, however this may be, the practice in New Hampshire, while it might enlarge our powers of amendment, cannot diminish those which are conferred upon us by the acts of congress. By Rev. St.