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.
§ 948, an.y circuit or district c(.Illrt may, at any time in its
and upon such terms as it may deem allow an amendment of any process returnable to or beiore it, where the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues. ' , I am of opinion that an amendment of these writs will not prejudice defendants; who had due notice to. appear on Sunday, and who did appeal', though under protest, on Monday. IIamptoll v. ROlUe, 15 Wall. 684; Semmes v. U. S. 91 U. S. 21; Mclniffe v. Wheelock, 1; Gray, 600. The question, it must be remembered, is not whether the common law would have called these writs void or voidable, (though if that were the question it might be well maintained that they were voidable only,) but whether the statute ,of the United States is broad which may be amended. enough to include them in the class of Of this there is no doubt. A.s the writs were voidable, I think they should be amended on the terms of the plaintiff, taxing no costs up to the time of the amendment. Amendment on terms within 80 days.
NOTE. 'fhe circuit court may allow an amendment of a writ of error made returnable on a wrong day. Semmes v. U. S.91 U. S. 21; Wool,'idge v. M".. Kenna, 8 FED. REP. 663. A summons which did notissuecaunot be amended by adding a seal and the signattire of the clerk. DWightv. Merritt, 4 FED. REP. 614: S. C. 18 Blatchf. 306: Peaslee v. Habel'stl'o, 15 Blatchf. 472.-[ED.
DbY, Receiver, etc.,
(Circuit U()U1·t, lJ.lndil.ma. October 28, 1882.)
Where t.he mal'llhal is required to serve process in suits other than where the United States requires the serVice, ho has a right to demand his foea in advance of t.he service to beperfonned.
Claypool & Ketcham,
U. 8. Atty.,f6rthe marshal. D. J. The usual process was issued in this case, directed to the marshal, commanding him to summon the defendant. The marshal refuses to s.erve the process until the 'proper fees are paid in advance or a deposlt of money for their security. A rule is
-Reported by Uhas. H.
U. S. AUT.