of their proportionate sbre of this note,-no snch right exists at law; that the holder of this paper cannot sue the parties to this contract at law. That brings up the question whether this is aD action at law or a bill in chancery. The petition begins: "The said plaintiff, the Farmers' National Bank of Portsmouth, Ohio, states to the court, by way of amended petition, that it is a natibnal banking association;" etc., etc., and goes on and states the facts, and it avers that by reason of these facts the defendant became indebted to the plaintiff, treating it as a paper upon which they could properly sue, and that they had direct legal rights under it and not equitable; and the cpnelusion is a prayer for judgment; and we notice, upon the original petition, that the plaintiff also took the same view of it, for he says: "Issue summons; civil action for money only; claimed, $5,320." We cannot come to any other conclusion than this is an action at law, and that an action at law upon this state of facts cannot be sustained. The demurrer will be sustained, and the petition dismissed.
(Oircuit Court, S. D. New York. --,1880.)
L BmrnoNB.-In the United States courts a summons must issue from the court, and be signed by the clerk, and sealed with the seal of the court. Peasles v. Haberstro, 15 Blatchf. 472. J. AMENDMENT.-In tbose courts a sum.mons cannot be amended by the . subsequent addition of the signature of the clerk, and the seal of the court. Peaale6 v. HabM'stro, BUpra.
Motion to Set Aside Summ6tls. Thomas J. Rn.9h, for plaintiffs. Stewart L. Woodford, Dist. Att'y, for defendant. BLATCHFORD, C. J. In an attempt has been made to commence a suit at common law, in this court, by serving
DWIGHT 'V. MERRITT.
on the defendant a paper purporting to be a summons, in the form prescribed by the of New York for commencing a civil action. It is signed by the plaintiffs' attorney, but is not under the seal of the court, nor is it signed by the clerk of the court. Section 911 of the Revised Statutes of the United States provides that "all writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof. H A summons, or notice to the defendant, for the commencement of a suit, is certainly process, quite as much as a capias or a subpoona to -appear and answer is process. The statute intends that all process shall issue from the court, where such process is to be held to be the action of the court, and that the evidence that it issues from the court and is the action of the court shall be the seal of the court and the signature of the clerk. It is clear that a signature by the plaintiffs' attorney, without a seal, and an issuing from the office of such attorney; cannot be substituted. There is nothing in the provisions of section 914 of the Revised Statutes as to the conformity in practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes in the courts of the United States, to the practice, pleadings, and forms and modes of proceeding in like causes in the state courts, which abrogates the provisions of section 911. The two must be so construed as to stand together. The question here presented was decided by the circuit court for the northern district of New York in Peaslee v. Haberstro, 15 BIatchf. 472, where it was held that the summons must be signed by the clerk and be under the seal of the court, and that section 911 is not inconsistent with or repealed by section 914. The principle of that decision has been generally adopted in applying section 914 to the practice of the federal courts in suits at common law. That principle is that where congress has, by statute, pointed out a specific course of procedure, or has legislated generally upon the subject-matter embraced or involved in the proceed-
ing .sought to be pursued, such legislation must be followeil, although opposed to the forms and modes of proceeding prevailing in the state courts, and established by state statutes. Easton v. Hodges, 7 Biss. 324; Beardsley v. Littell, 14 Blatchf. 102. The defendant moves to set aside the summons, bElcause of the foregoing defects, before appearing generally in the suit; and the plaintiffs ask to be allowed to amend the summons, nunc pro tunc, by having the seal and signature added. It is alleged that the statute of limitations would be a. bar to a. new suit. Power to amend the process is said to be given by sections 948 and 954. That power is power to amend a defect in process, and power to amend a want of form in process. But there must first be 8 process to be amended. There must be something to amend, and to amend by. This paper is no process. The process which can be amended, under the power conferred, is process issuing from the court. This paper never issued from the court. If it had in fact issued from the court and was signed by the clerk, but had no seal, or had a seal but was unsigned, what it had might, perhaps, be accepted as showing that it issued from the court, and the lacking particular might be supplied. In Peaslee v. Haberstro it is said: "If the summons in this case had been signed by the clerk, it could be amended as regards the seal. As it is, there is no summons in the nature of process known to this court." In that case there was no seal and no signature of the clerk, and the summons was set aside. The motion of the defendant is granted, and the motion of the plaintiffs is denied.
MACKAY V. CENTRAL R. CO.
Administratrix, etc. v. CENTRAL R. Co.
November 8, 1880.)
(Oircuit Oourt, S. D. New York.
AmIINISTRATION-POWER TO SUE-'-LAW OF FOREIGN STATE.-An
ad· ministrator in one state cannot recover damages for the benefit of tIle widow and next of kin in the courts and under the authority of a statute of another state. Richardson v. N. Y. OentraJdt. 00. 98 Mass. 85. Woodward v. Micldgan. Southern, etc., R. 00. 10 Ohio St. 121.
SHIPMAN, D. J. The cotnplaint in this case alleges that on April 23, 1874, Louisa S. Machy died, and subsequently letters of administration upon her estate were duly granted to the plaintiff, a resident of the city of New York, by the surrogate of the county of New York; that the plaintiff duly qualified and entered upon the discharge of the duties of said office; that the defendants are a corporation created under the laws of the state of New Jersey, and are common carriers of passengers between the cities of New York and Jersey City, and on April 23, 1874, received Louisa S. Mackay, in New York, into one of their ferry-boats as a passenger, to be transported to Jersey City, and so unskilfully conducted themselves that in consequence of their negligence she fell between the end of the boat and the pier, at Jersey City, and was drowned. The complaint further alleges that by an act of the legislature of New Jersey, passed March 3, 1848, it was provided: .. (1.) Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensned, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, and the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although'the death shall have been caused nnder such cil'cumstances as amount in law to a felony. (2.) Every such action shall be by and in the names of the personal representatives of such deceased person, and the amount recovered. in every