Page:Federal Reporter, 1st Series, Volume 8.djvu/676

662 FEDERAL REPORTER. ���and prompt conduct of business merely, the provisions may be gen- erally regarded as directory. Hurford v. Omaha, 4 Neb. 336, 350. �These are some of the cases indicating the prineiple governing the courts in this matter, and the supreme court of the United States bas frequently recognized andenforced these rules in the construction of statutes. iSpea/ke. V. C7. S, 9 Crailoh, 28 ; t/. S., v. Fow^awf, 11 Wheat. 184 ; U. 8. V. Dandridge, 12 Wlieat. 81 ; Sup'rs v. U. S. 4 Wall. 435, See, also, Miller v. Gages, i McL. 436,* The Supreme court of Ten- nessee bas frequently recognized this distinction between mandatory and directory statutes. Mount\.Kestersdn,6 Ca\aA52,e59; Poster v. Blount, 1 Tenn, 342; Atkinson v, Rhea, 7 Humph, 69; Sellars v. Fite, 3 Bax, 125, 131. And in Gregory-^. Burnett, 1 Humph. 60, the stat- ute requiring transcript to be filed 15 days before the sitting of the court was held mandatory, because it especially enacted that if not done the judgment below should be affirmed. �In Jackson v. Wiseburn, 5 Wend. 136, it is said that it is the ordi- nary course of the court, upon cause shown, to enlarge the time to plead or other time prescribed for any purpose by the rules of prac- tice of the court. The rules of practice of the court, being established by the court, may be made to yield to circumstances to promote the ends of justice. But not so as to a statuts : it is unbending, requir- ing implicit obedience as well from the court as its suitors, and the court possesses no dispensing power. But in Kelly v. Moody, 7 Hill, 156, it was said that defaults may be set aside in cases where the practice is regulated by atatute, as well as where it depends on the rules of the court, Indeed, our statutes of jeofails require amend- ments or acts to be done nunc pro tune, in order to save the rights of the parties, without any distinction of that character. We have sev- eral acts of congress as peremptory as the one we are considering which require this, A section of the Revised Statutes says — •' That no summons, writ, declaration, return, process, judgment, or other pro- ceeding in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and mat- �*Consult, also, Henderson v. U. 8. 4 Ct. Cl. 75, 83 ; Limestone Co. v. Rather, 48 Ala. 440; McKune v. Weller, 11 Cal. 49; Wheeler v. Chicago, 24 111. 105; State V. Baltimore Co. 29 Md. 517, 522; Stayton v. Hnling, 7 Ind. 144; Hooker V. Youngyb Covv. 269: Dutton v. Kclsey, 2 Wend. 615; Caldwell v. Albany, 9 Paige, 574; Segmour v. Judd, 2 N. Y. 464; mil v. Draper, 10 Barb. 454,480; People v.Snhermerhorn, 19Barb. 540; Barnes v. Badger, 41 Baib. 98; Pottei's Dwarris, St. 222, and notes; Id. 184; Sedgw. St. &. Const. L. ;i22, and notes; Id. 368; 2 Am. Lavv Reg. (N. S.) 409, and note; Coolev, Const. Lim. 77; 1 Smith, Lead. Cas. 687; 2 Ky. Law Eep. (Maich, 1881.) 106. ��� �