PART 2. do a particular act. Hunt v. Burrel et al., 5 Johns. Rep., 137.

At common law, in actions against several joint defendants, all must be served with process, or those not served must be prosecuted to outlawry, before the plaintiff is authorized to proceed in his action. This inconvenient rule has been variously modified in some of the states, by substituting some other proceeding to compel appearance as equivalent to outlawry. In others, (such, at least, is the case in Pennsylvania and New York,) the rule, as it respects actions arising on contracts, has been abolished altogether, so far as it presents an obstacle to the plaintiff's proceeding to judgment and execution against such of the defendants as are found. And without descending to particulars, it is sufficient to remark, that upon this point the laws of the respective states furnish the rule of proceeding, and determine the force and effects of judgments and executions in suits of this description, in the several courts of the United States, in such states.

In each of the national courts in this state, there is a rule ordaining that, "When the capias has been served on the real party intended, the plaintiff, before or after its return, may amend, of course, any error in the name of the party inserted in the process, giving the defendant notice of such amendment." And by another rule of the circuit and district courts of the northern district, "the court will not entertain a motion to set aside the process or proceedings in a cause on the ground of the misnomer of the party arrested; but will leave him to his remedy by a plea in abatement."1

1Appendix, rules 15, 16, D. C.

As it regards the mode of service and the duty of CHAP. 2. the marshal consequent thereupon, no precise directions can be given applicable to all the districts.

Where by an act of congress, or by the local law and practice, the process in any given case, requires the defendant to be held to bail, or to indorse his appearance upon the writ, it is the duty of the marshal to make an actual arrest, in order to compel a compliance with the exigency of the writ, and in default of such compliance to commit the defendant to prison. But where no such act is required of the defendant, it is sufficient to show him the writ, and to serve him with a copy of it. Thus by the Revised Statutes of the State of New York, when the capias "does not require the defendant to be held to bail, he may indorse his appearance on such writ, or if he refuse to do so, the sheriff may return the writ personally served." And by a rule of the district court of the southern district of New York, "when bail is not required it shall be a sufficient service of the capias or other mesne process in personam for the marshal to show such process to the defendant, or offer to show it, and at the same time leave with him a true copy thereof. In which case the marshal shall indorse his return, 'personally served. The same rules and orders may be taken on filing such return, as if common bail had been filed, or the defendant had indorsed his appearance on such process" The rule of the circuit and district courts of the northern district, is substantially the same.1

But in the circuit court of the southern district, it would seem the defendant in that court is required to indorse his appearance.

That civil process cannot be served on Sunday — but that after a negligent, though not after a volun1Appendix, rule 14, D. C.

PART 2. tary escape, the defendant may be retaken on that day; that no man can be arrested in his own house, provided the outer door be shut-but that if the outer door be open, the officer, having gained admittance, may break an inner door to make an arrest; that the marshal may break open the outer door to retake a prisoner who has escaped, and that bail may do the same to arrest and surrender their principalare principles which it is believed are recognized in all the districts in the Union.

Jail liberties.] "Persons imprisoned on process issuing from any court of the United States, as well at the suit of the United States, as at the suit of any person or persons in civil actions, shall be entitled to the like privilege of the yards or limits of the respective jails, as persons confined, in like cases, on process from the courts of the respective states, are entitled to, and under the like regulations."1

Under this act it is obligatory upon the sheriff to take a bond for the limits from a prisoner committed to his custody in virtue of process issued from a court of the United States, and false imprisonment would lie against him if he should refuse. By it congress have adopted the state laws relative to jail liberties, and the bond has the same incidents and legal effect as a bond taken under the laws of the state. The United States v. Noah, 1 Paine's C. C. R., 368.

According to the construction which has uniformly been given to the acts of congress adopting the state laws in relation to process, and the proceedings thereon, this act is doubtless to be considered as applying only to state laws in force at the time of its passage. It is on this account the more important here to notice an act of more recent date. By Act of January 6, 1800, ch. 4, § 1: 2 Stat. at Large, p. 4.

the act of 19th May, 1828,' it is enacted, "That writs CHAP. 2. of execution and other final process, issued on judgments and decrees rendered in any of the courts of the United States, and the proceedings thereon, shall be the same, except their style, in each state, as are now used in the courts of such state: Provided, however, That it shall be in the power of the courts, if they see fit, in their discretion, by rules of court, so far to alter final process in said courts as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts." In the case of The United States v. Knight (14 Peters, 301), this act was held to embrace the state laws in force at the date of its enactment relative to jail liberties. This, indeed, so far as private suitors alone were concerned, was considered very clear. But the case presented another very highly important question, viz.: whether the act embraced executions and the proceedings thereon issued on judgments in favor of the United States. It was insisted, by the attorney-general, that the United States were never to be considered as embraced in any statute unless expressly named. But the court, admitting this to be the rule in constructing acts of limitation, overruled the objection, using the following humane, just and salutary language. "Without undertaking to lay down any general rule as applicable to cases of this kind, we feel satisfied that when, as in this case, a statute which proposes only to regulate the mode of proceeding in suits, does not divest the public of any right, does not violate any principle of public policy; but on the contrary, makes provisions in accordance with the policy which the government has indicated by many acts of previous legislation, to conform to state laws, in giving to persons impriCh. 68, § 3: 4 Stat. at Large, p. 278.

PART2. soned under their execution the privilege of jail limits; we shall but carry into effect the legislative intent, by construing the 'executions at the suit of the United States, to be embraced within the act of 1828."

SECTION VI.

Of Bail.-In what cases it may be exacted. With the exception of two descriptions of suits (as far as I have been able to discover), the right to hold the defendant to bail, is left by the laws of congress entirely at large, to be determined by the local laws and practice in each district.

It is now well settled by the decisions of the supreme court, that the subject of arrest and bail belongs to the category of procedure. The prospective adoption of the state laws, by the judiciary act, as "rules of decision," does not, therefore, embrace it. It was provided for by the process acts of 1789 and 1792, by which the then existing state laws of procedure were adopted. The policy of these acts has since been extended to the new states; and, so far as final process is concerned, re-asserted with regard to all the states, by the act of May 19, 1828, and again extended by the act of August 1, 1842.

The two descriptions of suits above referred to, in which bail is expressly required by act of congress, are those for duties and those for pecuniary penalties. They are, therefore, both comprehensive and important.

By the collection act of March 2, 1799, it is provided, "that in all cases in which suits or prosecutions shall be commenced for the recovery of duties or pecuniary penalties prescribed by the laws of the United States, the person or persons against whom