Page:Federal Reporter, 1st Series, Volume 1.djvu/403

 EOSENBACH V. DEEYFUSS. 395 �duced Tinder the act of 1872, adopting the modes of pleading and practice in force in the states. Section 954r, by being brought into the Eevised Statutes, does net perpetuate nor re-establish the System of special demurrers in states whose statutes bave establisbed different and inconsistent rules of pleading. It clearly was not so intended, tbough the statute of which it was the re-enactment was not repealed by the act of 1872; it bad become partly inapplicable to the courts in this state, and so remained since it bas been brougbt forward into the Eevised Statutes as an unrepealed law. �The practice under the Code of giving the party the right, as of course, to serve a new pleading after demurrer or answer, is a part of the State System of. pleading. It is cal- culated to relieve ther courts from hearing many unnecessary arguments on demurrer, and unnecessary motions, and tends to facilitate the disposition of causes, and is entirely appli- cable to the courts of the United States. An amended com- plaint was, tberefore, properly served in tbis case. Lewis v. Gould, 13 BI. C. G. 216; BUls v. R. Co. là. 228; Beardsley V. LitteU, 14 Id, 102, �2. The amended complaint sets forth the same causes of action as the original complaint. Eev. St. § 4963, referred to in the amended complaint, was a re-enactment, almost without change of language, and certainly without change of sense, of St. 1870, c. 230, § 98, referred to in the original complaint, �It is very trne that the last named section was repealed by Eev. St. § 5596, but the later statute being in effect the same law, the error in the original complaint was no more than a mere mistake as to the date of the statute referred to. The case of U. S. v. Claflin, 7 Otto, 546, is referred to as an autbority that a complaint charging a violation of one statute cannot be amended by changing the averment sj that it shall relate to a later statute, because it introduces a new cause of action. �The case bijs no such point or application. In that case the later statute was held to be a criminal statute, and not one giving a civil remedy, and it was held that no civil acLJon ��� �