Page:Federal Reporter, 1st Series, Volume 1.djvu/401

EOSENBACH ». DBHTPUSS. .393 �în tte federal courta. This is, I think, a waiver of the delay �in service. �Two objections, then, are urged against the regularity of the plaintiff's practice : (1) that section 542 of the Code is not applicable to this court; and (2) that the amonded complaint »iates an entirely new cause of action, and on that ground is ûot, witbin the terms of section 542 of the Code, such an amendment as can be made in this way without leave of the court. 1 Stat. 1872, c. 255, § 5, as re-enacted in Eev. Stat. § 914, provides that "the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall con- form as near as may be to the practice, pleadings, and forms and modes of proceeding existing at the time, in like causes, in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrdry notwithstanding. " �I think it is very clear that the mode of amending the com- plaint, as of course, according to section 642 of the Code, cornes within the terms of the statute. It is a matter of "practice, pleading, form and mode of proceeding," nor is there any difficulty in its application growing out of the peculiar organization or powers of the federal courts. Since that statute was passed the plaintiff's first pleading in this court bas beena "complaint," framed according to the prin- ciples of the New York Code, instead of a declaration as at common law, and the defendant's pleading bas been, not a "plea," but an answer, framed according to the Code. For the same reason a demurrer, which is a pleading, should conform to the rules regulating demurrers contained in the state statute. Code, § 488. The demurrer in this case, except as to one of the alleged grounds, was not such a demurrer» �It is, however, objeoted by the defendant's eounsel that Eev. St. § 954, still keeps in force the System of special de- murrerj which formerly obtained in this court, and that it is; inconsistent with, and by necessary implication forbida, the application to the federal courts of the practice of amending the complaint without leave under section 542 of the Code.. ��� �