Page:Federal Reporter, 1st Series, Volume 5.djvu/51

 BROWN V. POND. 8d �adopted by the act of congress. And if such process, unin- dorsed, is an imlawful or prohibited aot under the atate law, and its service can give the state court no jurisdiction over the person of the defendant, it seems to me that the same effect must foUow the service of such process in a similar suit in this court. This is not making the jurisdiction of this court depend upon a law of the state. It is, indeed, making the acquiring of jurisdiction over the person of the defendant depend upon the service of a proper process. But what is proper process is by act of congress left to be determined by the law of the state. I think, therefore, it bas, since 1789, been necessary to indorse the process with a reference to the statuts in order to make it a proper process in such a suit in this court, and to make the service of such ptooess effecitual as Bubjecting the defendant to the jurisdiction of this court. Eev. St. § 954, is, however, relied upon as showing that this defect of process is not fatal to the jurisdiction, but is a defect that may be amended. And when this motion was first presented to the court, and the act of 1872 was alone relied upon by the defendant as making the indorsement nec- essary, and the history of the state statute was not gone into in the argument, this view was acquiesced in by the court, but further examination of the question has brought me to the conclusion that this was erroneous. Section 954 provides that "no summons, writ, etc., in civil causes, in any court of the United States, shall be abated, arrested, quashed, or re- versed for any defect or want of form, but such court shall proceed and give judgment according as the right and matter in law shall appear to it, without regarding any such defect or want of form except those which, in cases of demurrer, the party demurring expressly sets down, together with his de- murrer, as the cause thereof; and such court shall amend every such defect and want of form other than those which the party demurring so expresses, and may at any time per- mit either of the parties to amend any defect in the process or pleading upon such conditions as it shall in its discretion and by its rules prescribe." This is a re-enactment of the twentieth section of the judiciary act of 1789, (1 St. 91.) It ����