justice may require. Such are the details respecting matters of continuance, intermediate motions, new trials, and other incidental powers respecting the control of the parties, or the situation of the case in the court. Manitowoc Malting Co. v. Feuchtwanger, (E. D. Wis. 1912) 196 Fed. 506. See also Steers v. U. S., (C. C. A. 6th Cir. 1911) 192 Fed. 1, 112 C. C. A. 423, wherein it was held that matter pertaining to the conduct of the trial by the trial judge is not governed by this conformity act.

This section is the successor of the Act of Congress of May 19, 1828, ch. 68, § 1, 4 Stat. 278, which declared that "the forms of mesne process . . . and the forms and modes of proceedings in suits in [certain] courts of the United States . shall be the same . . . as are now used in the highest court of original and general jurisdiction of the" states in which the federal courts are situated. In respect of this statute it was held in Bath County v. Amy, (1872) 13 Wall. 244, at page 250, 20 U. S. (L. ed.) 539, that: "It was a process act, designed only to regulate proceedings in the federal courts after they had obtained jurisdiction; not to enlarge their jurisdiction, . . . It is quite too much to infer from this [statute] an enlargement of jurisdiction, or an adoption of all the powers of the state courts." Section 914 must be construed in the same manner. Sewchulis v. Lehigh Val. Coal Co., (C. C. A. 2d Cir. 1916) 233 Fed. 422, 147 C. C. A. 358.

As to federal practice in actions at law prior to the enactment of the text R. S. sec. 914, see cases cited in notes to R. S. sec. 721, supra, this title, vol. 5, pp. 1217, 1218.

3. Principles Controlling Construction a. In General

State decisions and statutes not conclusive. Notwithstanding this provision neither the statutes of a state nor the decisions of its courts are conclusive upon the federal courts in respect to questions of jurisdiction. Mechanical Appliance Co. v. Castleman, (1910) 215 U. S. 437, 30 S. Ct. 125, 54 U. S. (L. ed.) 272; Southern Photo Material Co. v. Eastman Kodak Co., (N. D. Ga. 1915) 224 Fed. 523.

It is settled that this statute does not require a federal court to follow the state procedure, where to do so would defeat the purpose or impair the effect of any congressional statute. U. S. v. Beaty, (W. D. Va. 1912) 198 Fed. 284.

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The Act leaves to the federal court some degree of discretion in conforming entirely to the state procedure" and to reject, as Congress doubtless expected," any subordinate provisions in such state statutes as would unwisely incumber the administration of the law and tend to defeet the ends of justice. Mani

towoc Malting Co. v. Feuchtwanger, (E. D. Wis. 1912) 196 Fed. 506.

Thus, although this section empowers a federal court to use a similar remedy to that provided by a state statute to enforce its judgments, it does not require the court to follow the method prescribed by a state statute in serving a writ of scire facias to revive a judgment on a nonresident defendant if it deems such method insufficient. Collin County Nat. Bank v. Hughes, (C. C. A. 8th Cir. 1907) 155 Fed. 389, 83 C. C. A. 661.

As to the District Court in Porto Rico it was said prior to the abolishment of the Circuit Court: "We think it was the intention of Congress in the Porto Rican act to require the District Court exercising the jurisdiction of a Circuit Court, in analogy to the powers of the Circuit Courts in the states, to adapt themselves, save in the excepted cases in equity and admiralty, to the local procedure and practice in Porto Rico. This conclusion is in accord with the policy of the United States, evidenced in its legislation concerning the islands ceded by Spain, and secures to the people thereof a continuation of the laws and methods of practice and administration familiar to them, which are to be controlling until changed by law." Perez v. Fernandez, (1906) 202 U. S. 80, 26 S. Ct. 561, 50 U. S. (L. ed.) 942.

b. Constitutional Restrictions The local law and practice cannot be recognized as a rule of procedure in the United States courts if its adoption would be repugnant to the Federal Constitution. Parsons v. Bedford, (1830) 3 Pet. 433, 7 U. S. (L. ed.) 732; McCracken v. Hayward, (1844) 2 How. 608, 11 U. S. (L. ed.) 397; Phillips v. Preston, (1847) 5 How. 280, 12 U. S. (L. ed.) 153; Virginia Coupon Cases, (1884) 114 U. S. 270, 330, 5 S. Ct. 903, 962, 29 U. S. (L. ed.) 185; Cady . Phoenix Fire Ins. Co., (1873) 18 Int. Rev. Rec. 30, 4 Fed. Cas. No. 2,284; Denny v. Brown, (1844) 7 Fed. Cas. No. 3,805; U. S. v. Rathbone, (1828) 2 Paine 578, 27 Fed. Cas. No. 16,121; Lowry v. Mt. Adams, etc., Incline Plane R. Co., (S. D. Ohio 1895) 68 Fed. 827; Hughey r Sullivan, (S. D. Ohio 1897) 80 Fed. 72.

So it has been said that: "It must be held that the body of the local law thus adopted in the general must be construed in the courts of the United States in the light of their own system of jurisprudence as defined by their own constitution as tribunals, and of other Acts of Congress on the same subject." Erstein v. Rothschild, (E. D. Mich. 1884) 22 Fed. 61.

The requirements of this statute apply only to cases of which the court has jurisdiction according to the Constitution and laws of the United States. Goldey v. Morning News, (1895) 156 U. S. 518, 15 S. Ct. 559, 39 U. S. (L. ed.) 517.

8.

4. Clauses in Act Construed "Practice, Pleadings, and Forms and Modes of Proceeding "

In general. All the modes of proceeding in civil causes are governed by this section, except "remedies by attachment or other process against the property of the defendant," and the remedies "by execution or otherwise to reach the property of the judgment debtor," which are governed by sections 915 and 916, infra, pp. 64, 70. Citizens' Bank v. Farwell, (C. C. A. 8th Cir. 1893) 56 Fed. 570, 12 U. S. App. 409, 6 C. C. A. 24. See also Wayman v. Southard, (1825) 10 Wheat. 1, 6 U. S. (L. ed.) 253; Duncan v. Darst, (1843) 1 How. 301, 11 U. S. (L. ed.) 139; Lamaster v. Keeler, (1887) 123 U. S. 376, 8 S. Ct. 197, 31 U. S. (L. ed.) 238; Nazro v. Cragin, (1873) 3 Dill. 474, 17 Fed. Cas. No. 10,062; Koning v. Bayard, (1829) 2 Paine 251, 14 Fed. Cas. No. 7,924; Lane t. Townsend, (1835) 1 Ware (286) 289, 14 Fed. Cas. No. 8,054; Ely v. Hanks, (1858) 8 Fed. Cas. No. 4,430; Wilkinson v. Tilden, (S. D. N. Y. 1883) 14 Fed. 781; Harley v. Lapidus, etc., Co., (C. C. A. 8th Cir. 1914) 216 Fed. 92, 132 C. C. A. 336.

The provisions for uniformity do not extend to modes of procedure established by judicial interpretation of the common law, but only to such as are established by the statutes of the several states. Wall v. Chesapeake, etc., R. Co., (C. C. A. 7th Cir. 1899) 95 Fed. 398, 37 C. C. A. 129.

The personal conduct and administration of the judge in the discharge of his separate functions is neither practice, pleading, nor a form nor mode of proceeding within the meaning of the statute, and a state statute regulating the manner in which the court shall charge the jury is not within this statute. Nudd v. Burrows, (1875) 91 U. S. 426, 23 U. S. (L. ed.) 286. See also to same effect Indianapolis, etc., R. Co. v. Horst, (1876) 93 U. S. 291, 23 U. S. (L. ed.) 898; U. S. Mutual Acc. Ass'n v. Barry, (1889) 131 U. S. 100, 9 S. Ct. 755, 33 U. S. (L. ed.) 60; Lincoln v. Power, (1894) 151 U. S. 436, 14 S. Ct. 387, 38 U. S. (L. ed.) 224; Grimes Dry Goods Co. v. Malcolm, (1896) 164 U. S. 483, 17 S. Ct. 158, 41 U. S. (L. ed) 524, as to the discretion of the court to submit a special verdict, when the state statute requires it to be done upon request; Kennon v. Gilmer, (1889) 131 U. S. 22, 9 S. Ct. 696, 33 U. S. (L. ed) 110, as to granting or refusing a change of venue; Knight v. Illinois Cent. R. Co., (C. C. A. 6th Cir. 1910) 180 Fed. 368, 103 C. C. A. 514.

There are certain powers inherent in the judicial office, and it may be questioned how far the legislative department of the government can impair them or dictate the manner of their exercise. Nudd v. Burrows, (1875) 91 U. S. 426, 23 U. S. (L.

ed.) 286. See also Stroheim v. Deimel, (N. D. Ill. 1896) 73 Fed. 430.

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Disqualification of judge. While this section does not expressly authorize a fed eral court to adopt a state rule as to what. shall constitute a disqualification of a judge, nevertheless it has been held that a judge is justified in adopting as near as may be as his guide on such a question the state rule or statute; and that where under such rule or statute disqualification exists, the judge will decline any further connection with the cause. The right to certify a case to another court because of the disqualification of the district judge was provided for by R. S. sec. 601 (now superseded by the equivalent provision in Judicial Code, § 20, supra, this title, vol. 4, p. 831, and expressly repealed in Judicial Code, § 297, supra, this title, vol. 5, p. 1085). In re Eatonton Electric Co., (S. D. Ga. 1903) 120 Fed. 1010.

Relationship of judge to party.-Where relationship of the judge to parties having an interest in the controversy was declared by a state law to be a disqualification, it was held to be a proper guide to the action of a federal judge sitting in that state. In re Eatonton Electric Co., (S. D. Ga. 1903) 120 Fed. 1010.

In general. The statute expressly ex cepts equity and admiralty causes. Blease v. Garlington, (1875) 92 U. S. 1, 23 U. S. (L. ed.) 521; Watts v. Camors, (1885) 115 U. S. 353, 6 S. Ct. 91, 29 U. S. (L. ed.) 406; Meyers v. Block (1887) 120 U. S. 206, 7 S. Ct. 525, 30 U. S. (L. ed.) 642; Dravo v. Fabel, (1889) 132 U. S. 487, 10 S. Ct. 170, 33 U. S. (L. ed.) 421; Scott v. Armstrong, (1892) 146 U. S. 409, 13 S. Ct. 148, 36 U. S. (L. ed.) 1059; Bills v. New Orleans, etc., R. Co., (1876) 13 Blatchf. 227, 2 Fed. Cas. No. 1, 409; Brooks v. Vermont Cent. R. Co., (1878) 14 Blachf. 463, 4 Fed. Cas. No. 1,964; The Blanche Page, (1879) 16 Blatchf. 1, 3 Fed. Cas. No. 1,524; Hall v. Yahoola River Min. Co., (1873) 1 Woods, 544, 11 Fed. Cas. No. 5,955; Taylor v. Holmes, (1882) 14 Fed. 498; Parkhurst . Hosford, (1884) 21 Fed. 833; Pennsylvania R. Co. v. Allegheny Val. R. Co., (1885) 25 Fed. 115; Pearson v. The Alsalfa, (1890) 44 Fed. 358; Austin v. Riley, (1893) 55 Fed. 833; Laidlaw v. Oregon Ry., etc., Co. (C. C. A. 9th Cir. 1897) 81 Fed. 876, 48 U. S. App. 430, 26 C. C. A. 665; The Westmin ster, (1899) 96 Fed. 766; Calivada Colonization Co. v. Hays, (1902) 119 Fed. 207; United Cigarette Mach. Co. v. Wright, (1904) 132 Fed. 195; In re Barrett, (1904) 132 Fed. 362; Bryant Bros. Co. v. Robinson, (C. C. A. 5th Cir. 1906) 149 Fed. 321, 79 C. C. A. 259; U. S. v. One Trunk, etc., (1907) 155 Fed. 651; Sanderson v. Bishop, (1909) 171 Fed. 769; Van

Deventer v. Lott, (C. C. A. 2d Cir. 1910) 180 Fed. 378, 103 C. C. A. 524.

State statutes abolishing distinction between legal and equitable remedies.— In the federal courts the general rule is that the difference between causes of action at law and in equity is sedulously preserved, that a legal cause of action cannot be maintained in equity, nor may equitable causes of action or equitable defenses avail in actions at law, and this although they are permissible in the state courts of the district and the distinction between the forms of actions at law and suits in equity has been there abolished. Platte Val. Cattle Co. v. Bosserman-Gates Live Stock, etc., Co. (C. C. A. 8th Cir. 1912) 202 Fed. 692, 121 C. C. A. 102, 45 L. R. A. (N. S.) 1137. See likewise Robinson . Campbell, (1818) 3 Wheat. 212, 4 U. S. (L. ed.) 372; Bennett v. Butterworth, (1850) 11 How. 669, 13 U. S. (L. ed.) 859; Thompson v. Central Ohio R. Co., (1867) 6 Wall. 134, 18 U. S. (L. ed.) 765; Whitehead v. Shattuck, (1891) 138 U. S. 146, 11 S. Ct. 276, 34 U. S. (L. ed.) 873; Scott v. Neely, (1891) 14 U. S. 106, 11 S. Ct. 712, 35 Ú. S. (L. ed.) 358; Sheffield Furnace Co. v. Witherow, (1893) 149 U. S. 574, 13 S. Ct. 936, 37 U. S. (L. ed.) 853; Lindsay r. Shreveport First Nat. Bank, (1895) 156 U. S. 485, 15 S. Ct. 472, 39 U. S. (L. ed.) 505; Montejo t. Owen, (1877) 14 Blatchf. 324, 17 Fed. Cas. No. 9,722; La Mothe Mfg. Co. v. National Tube Works Co., (1879) 15 Blatchf. 432, 14 Fed. Cas. No. 8,033; Baltimore, etc., R. Co. v. Hamilton, (1883) 16 Fed. 181; Shampeau v. Connecticut River Lumber Co., (1890) 42 Fed. 760; Johnson v. Merry Mount Granite Co., (1892) 53 Fed. 569; Messinger v. New England Mut. L. Ins. Co., (1894) 50 Fed. 529; Vandervelden v. Chicago, etc., R. Co., (1894) 61 Fed. 54; Wilson, etc., Guano Co. v. Phoenix Ins. Co., (1894) 61 Fed. 192; In re Foley, (1896) 76 Fed, 390; Kosztelnik v. Bethlehem Iron Co., (1898) 91 Fed. 606; Gravenberg v. Laws, (C. C. A. 5th Cir. 1900) 100 Fed. 1, 40 C. C. A. 240; Hill v. Northern Pac. R. Co., (1900) 104 Fed. 754; Hill v. Northern Pac. R. Co., (C. C. A. 9th Cir.) 113 Fed. 914, 51 C. C. A. 544; Pettus v. Smith (C. C. Conn. 1902) 117 Fed 967; Fletcher v. Burt, (C. C. A. 6th Cir. 1903) 126 Fed. 619, 63 C. C. A. 201; McManus v. Chollar, (C. C. A. 5th Cir. 1904) 128 Fed. 902, 63 C. C. A. 454; Tegarden v. Le Marchel, (W. D. Ark. 1904) 129 Fed. 487; Hatcher v. Hendrie, etc., Mfg., etc., Co., C. C. A. 8th Cir. 1904) 133 Fed. 267, 68 C. C. A. 19; Levi v. Mathews, (C. C. A. 4th Cir. 1906) 145 Fed 152, 76 C. C. A. 122; Brown v. Lanyon, (C. C. A. 8th Cir. 1906) 148 Fed. 838, 78 C. C. A. 528; Cook v. Foley, (C. C. A. 8th Cir. 1907) 152 Fed. 41, 81 C. C. A. 237; Gray r. Grand Trunk Western R. Co., (C. C. A. 7th Cir. 1907) 156 Fed. 736, 84 C. C. A.

392; Beatty v. Wilson, (C. C. Kan. 1908). 161 Fed. 453; American Creosote Works v. Lembocke, (S. D. N. Y. 1908) 165 Fed. 809; American Ass'n v. Williams, (C. C. A. 6th Cir. 1908) 166 Fed. 17, 93 C. C. A. 1; Seefeld v. Duffer, (C. C. A. 5th Cir. 1910) 179 Fed. 214, 103 C. C. A. 32; Sturges. Portis Min. Co., (E. D. N. C. 1913) 206 Fed. 534.

So the United States Supreme Court declared, prior to the abolishment of the Circuit Courts, that this section "in terms excludes equity causes therefrom, and the jurisprudence of the United States has always recognized the distinction between law and equity as under the Constitution matter of substance, as well as of form and procedure, and, accordingly, legal and equitable claims cannot be blended together in one suit in the Circuit Courts of the United States, nor are equitable defenses permitted." Scott r. Armstrong, (1892) 146 U. S. 499, 13 S. Ct. 148, 36 U. S. (L. ed.) 1059.

And in another case it says: 'If the defendant have equitable grounds for relief against the plaintiff, he must seek to enforce them by a separate suit in equity." Northern Pac. R. Co. v. Paine, (1887) 119 U. S. 561, 7 S. Ct. 323, 30 U. S. (L. ed.) 513.

Similarly the Circuit Court of Appeals for the second circuit has declared: "It is hardly necessary to state that the law of the remedy is not to be determined by the decisions of the courts of the state in which the action was brought, and that neither the decisions of its courts nor the statutes of New York can confer authority upon the federal courts sitting within that state to exercise equitable jurisdiction in actions at law. State legislatures cannot abolish in the federal courts the distinctions in actions at law and in equity by abolishing such distinctions in their own courts." Goodyear Shoe Machinery Co. v. Dancel, (C. C. A. 2d Cir. 1902) 119. Fed. 692, 56 C. C. A. 300.

And the Circuit Court of Appeals for the ninth circuit states: It is thoroughly settled that it was not the design of this section to abolish, in the federal courts, the distinction between actions at law and suits in equity." Hill v. Northern Pac. R. Co., (C. C. A. 9th Cir. 1902) 113 Fed. 914, 51 C. C. A. 544.

Again, in the fourth circuit the following language is employed: "The distinction between legal and equitable defenses, whatever may be the rule in other jurisdictions, in the courts of the United States is always recognized and jealously guarded. They cannot be mixed. Equitable suits must be on the equity side of the docket, and actions at law on the law side. No principle is better settled in these courts." Levi v. Mathews, (C. C. A. 4th Cir. 1906) 145 Fed. 152, 76 C. C. A. 122.

And in a Circuit Court decision it was

remarked that: "In the courts of the United States the distinction between actions at law and suits in equity is firmly maintained, and it is not competent for the Congress or the state legislature to abrogate such distinction. The federal courts will take cognizance of and enforce newly created statutory rights, but they will do so according to the practice of those courts. Newly created rights which are of a legal nature will be enforced in courts of law, while such rights as are equitable in their nature must be enforced by suits in courts of equity. Hence, if the statute of the state has created new rights of action or grounds of defense which authorize the blending together of legal and equitable rights and remedies in one pleading, while such pleading would be proper in the courts of the state it cannot properly be entertained in a federal court. To permit it would be to disregard the distinction between legal and equitable rights and remedies, which is inadmissible." Jewett Car Co. v. Kirkpatrick Constr. Co., (C. C. Ind. 1901) 107 Fed. 622.

"In all actions at law equitable defenses may be interposed," etc., is the provision in Judicial Code, § 274b, supra, this title, vol. 5, p. 1061. Said section 274b was enacted March 3, 1915, and affects some of the rulings in the foregoing paragraphs of this note. Judicial Code, 274a, enacted at the same time (supra, this title, vol. 5, p. 1059), provides for amendment of pleadings to obviate the objection that the suit was brought on the wrong side of the court.

c. "As Near as May Be "

General doctrine." This section is intended to secure on the law side of the federal courts the practice which prevails in like causes in courts of the states. Its requirement is that such proceeding shall conform as near as may be' to that prevailing in the state courts in like cases.' This section was not intended to require the adoption of the state practice where it would be inconsistent with the terms or defeat the purposes of the legislation of Congress. Luxton v. North River Bridge Co., [1893] 147 U. S. 337, 338, [13 S. Ct. 356, 37 U. S. (L. ed.) 194]; Chappell r. U. S., [1896] 160 U. S. 499, 512, [16 S. Ct. 397, 40 U. S. (L. ed.) 510]. In fact, the language of the statute is itself an indication that the state practice cannot be at all times and under all circumstances com

plied with. It is enough if the federal courts in adjudicating the rights of parties comply with the state practice as near as may be.' State statutes which defeat or encumber the administration of the law under federal statutes are not required to be followed in the federal courts. Mexican Cent. R. Co. v. Pinkney, [1893] 149 U. S. [194] 207, [13 S. Ct. 859, 37 U. S. (L. ed.) 699]. It follows that where the state stat

ute, or practice, is not adequate to afford the relief which Congress has provided in a given statute, resort must be had to the power of the federal court to adapt its practice and issue its writs and administer its remedies so as to enforce the federal law." Hills v. Hoover, (1911) 220 U. S. 329, 31 S. Ct. 402, 55 U. S. (L. ed.) 485, Ann. Cas. 1912C 562; quoted in Buckeye Powder Co. v. E. I. Du Pont De Nemours Powder Co., (D. C. N. J. 1912) 196 Fed. 514.

The elasticity of the phrase "as near as may be " was doubtless intentionally employed to enable the national tribunals to reject such provisions as would unwisely encumber the administration of the law and tend to defeat the ends of justice. Williamson v. Liverpool, etc., Ins. Co., (C. C. A. 8th Cir. 1905) 141 Fed. 54. 72 C. C. A. 542, 5 Ann. Cas. 402; Boston, etc., R. Co. v. Gokey, (C. C. A. 2d Cir. 1906) 149 Fed. 42, 79 C. C. A. 64, 9 Ann. Cas. 384, affirmed (1908) 210 U. S. 155, 28 S. Ct. 657, 52 U. S. (L. ed.) 1002; Hein t. Westinghouse Air Brake Co., (N. D. Ill. 1908) 164 Fed. 79.

"Certainly it was not intended that these statutes were to be adopted with the effect of defeating the jurisdiction of the courts of the United States once lawfully attached under an Act of Congress." Phelps r. Oaks, (1886) 117 U. S. 236, 6 S. Ct. 714, 29 U. S. (L. ed.) 888. See also Stewart v. Dunham, (1885) 115 U. S. 61, 5 S. Ct. 1163, 29 U. S. (L. ed.) 329.

So, also, the courts may in their discretion reject collateral or subordinate provisions of the state practice, pleadings, or forms, which tend to obstruct the administration of justice in any particular case presenting unusual features, without making any standing rule. Hein v. Westinghouse Air Brake Co., (N. D. Ill. 1909) 168 Fed. 766.

Nor will the federal court be governed in all respects in the conduct of the case by the pleadings, forms, and mode of procedure prescribed by the state law, especially with reference to questions pertaining to the method of trial, when inconsistent with federal statutes. Swift v. Jones, (C. C. A. 4th Cir. 1906) 145 Fed. 489, 76 C. C. A. 253.

The qualification, however, contained in this phrase is not to be construed to subvert the command of the statute, but allows only necessary variations from the state methods, growing out of the different organization of the courts, and other similar matters. Lewis v. Gould, (1875) 13 Blatchf. 216, 15 Fed. Cas. No. 8,324.

So where a state practice act provides for but one form of action, which is by summons, it has been said that, while the United States statute which provides that the federal courts shall adopt, as near as may be, the practice in use in the state3 in which such courts are held, would not,

perhaps, supplant the equity practice which prevails in the federal court, it is reasonable to conclude that although a case was instituted by summons, instead of the filing of a bill and the issuing of a subpœna, when the parties and subject matter are brought within the jurisdiction of the court, it is then within the power of the court to retain the cause upon the law or transfer it to the equity docket, as may be necessary in order fully to administer the rights of the parties with reference to the subject matter of the action. Wilson t. Waldo, (W. D. N. C. 1915) 221 Fed. 505.

But in Amy v. Watertown, (1889) 130 U. S. 301, 9 S. Ct. 530, 32 U. S. (L. ed.) 946, the court said that the statute "is peremptory, and whatever belongs to the three categories of practice, pleading, and forms and modes of proceeding, must conform to the state law and the practice of the state courts, except where Congress itself has legislated upon a particular subject and prescribed a rule. Then, of course, the Act of Congress is to be followed in preference to the laws of the state." See also Fullerton v. U. S. Bank, (1828) 1 Pet. 604, 7 U. S. (L. ed.) 280; Sears v. Eastburn, (1850) 10 How. 187, 13 U. S. (L. ed.) 381; Republic Ins. Co. v. Williams, (1872) 3 Biss. 370, 20 Fed. Cas. No. 11,707; Lewis v. Gould, (1875) 13 Blatchf. 216, 15 Fed. Cas. No. 8,324; Oscanyan v. Winchester Repeating Arms Co., (1878) 15 Blatchf. 79, 18 Fed. Cas. No. 10,600; Mutual Bldg. Fund Soc., etc., Sav. Bank v. Bossieux, (1877) 1 Hughes 386, 17 Fed. Cas. No. 9,977; U. S. v. Inlots, (1873) 26 Fed. Cas. No. 15,441; U. S. v. Treadwell, (1883) 15 Fed. 532; Cottier v. Stimson, (1883) 18 Fed. 689; Laird v. De Soto, (1885) 25 Fed. 76; Chamberlain . Mensing, (1891) 47 Fed. 435; Edmunds v. Illinois Cent. R. Co., (1897) 80 Fed. 78; Nederland Life Ins. Co. v. Hall, (C. C. A. 7th Cir. 1898) 84 Fed. 278, 55 U. S. App. 598, 27 C. C. A. 390; Chicago, etc., R. Co. r. Metalstaff, (C. C. A. 8th Cir. 1900) 101 Fed. 769, 41 C. C. A. 669; U. S. v. Davis, (1900) 103 Fed. 457.

Discretion given to courts. These words are construed as leaving to the federal courts some degree of discretion in conforming entirely to the state procedure, and were intended to qualify what would otherwise have been a mandatory provision. "These words imply that, in certain cases, it would not be practicable, without injustice or inconvenience, to conform literally to the entire practice prescribed for its own courts by a state in which federal courts might be sitting." Mexican Cent. R. Co. v. Pinkney, (1893) 149 U. S. 194, 13 S. Ct. 859, 37 U. S. (L. ed.) 699. See also Senior v. Pierce, (S. D. Ia. 1887) 31 Fed. 625.

"The conformity is required to be 'as near as may be 'not as near as may be possible, or as near as may be practicable.

This indefiniteness may have been sug gested by a purpose; it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such state statutes which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in their tribunals." Indianapolis, etc., R. Co. v. Horst, (1876) 93 U. S. 291, 23 U. S. (L. ed.) 898. See also to same effect Palmer v. Allen, (1813) 7 Cranch 550, 3 U. S. (L. ed.) 436; Duncan v. Darst, (1843) 1 How. 301, 11 U. S. (L. ed.) 139; Reeside v. Walker, (1850) 11 How. 272, 13 U. S. (L. ed.) 693; Piquignot v. Pennsylvania R. Co., (1853) 16 How. 104, 14 Ú. S. (L. ed.) 863; Virginia Coupon Cases, (1884) 114 U. S. 270, 330, 5 S. Ct. 903, 962, 29 U. S. (L. ed.) 185; Phelps v. Oaks, (1886) 117 U. S. 236, 6 S. Ct. 714, 29 U. S. (L. ed.) 888; Southern Pac. R. Co. v. Denton, (1892) 146 U. S. 202, 13 S. Ct. 44, 36 U. S. (L. ed.) 942; Mexican Cent. R. Co. v. Pinkney, (1893) 149 U. S. 194, 13 S. Ct. 859, 37 U. S. (L. ed.) 699; Chappell v. U. S., (1896) 160 U. S. 499, 16 S. Ct. 397, 40 U. S. (L. ed.) 510; Shepard v. Adams, (1898) 168 U. S. 618, 18 S. Ct. 214, 42 U. S. (L. ed.) 602; Sanford v. Portsmouth, (1877) 2 Flipp. 105, 21 Fed. Cas. No. 12,315; Fulton v. Gilmore, (1878) 2 Flipp. 260, 9 Fed. Cas. No. 5,154; Bradford v. Bradford, (1878) 2 Flipp. 280, 3 Fed. Cas. No. 1,766; Johnson v. Healey, (1878) 9 Ben. 318, 13 Fed. Cas. No. 7,389; U. S. v. Brawner, (1881) 7 Fed. 86; Lowry v. Story, (1887) 31 Fed. 769; In re Secretary of Treasury, (1891) 45 Fed. 396; Texas, etc., R. Co. v. Nelson, (C. C. A. 5th Cir. 1892) 50 Fed. 814, 2 U. S. App. 213, 1 C. C. A. 688; O'Connell v. Reed, (C. C. A. 8th Cir. 1893) 56 Fed. 531, 12 U. S. App. 369, 5 C. C. A. 586; Walker v. Collins, (C. C. A. 8th Cir. 1893) 59 Fed. 70, 19 U. S. App. 307, 8 C. C. A. 1; Theroux v. Northern Pac. R. Co., (C. C. A. 8th Cir. 1894) 64 Fed. 84, 27 U. S. App. 508, 12 C. C. A. 52; Phenix Ins. Co. v. Charleston Bridge Co., (C. C. A. 4th Cir. 1895) 65 Fed. 628, 25 U. S. App. 190, 13 C. C. A. 58; Mack v. Porter, (C. C. A. 4th Cir. 1896) 72 Fed. 236, 25 U. S. App. 595, 18 C. C. A. 527; Sherry v. Oceanic Steam Nav. Co., (1895) 72 Fed. 565; Hale v. Wharton, (1896) 73 Fed. 739; Ewing v. Burnham, (1896) 74 Fed. 384; Hughey v. Sullivan, (1897) 80 Fed. 72; Edmunds v. Illinois Cent. R. Co., (1897) 80 Fed. 78; Van Doren v. Pennsylvania R. Co., (C. C. A. 3d Cir. 1899) 93 Fed. 260, 35 C. C. A. 282; Kent v. Bay State Gas Co., (1899) 93 Fed. 887; Times Pub. Co. v. Carlisle, (C. C. A. 8th Cir. 1899) 94 Fed. 762, 36 C. C. A. 475; Chicago, etc., R. Co. v. Metalstaff, (C. C. A. 7th Cir. 1900) 101 Fed. 769, 41 C. C. A. 669; Missouri, etc., R. Co. v. Elliott, (C. C. A. 8th Cir. 1900) 102 Fed. 96,