PAROL

PAROL

    27.12.19  

PAROL

More properly parole. A French word, which means literally, word or speech. It is used to distinguish contracts which are made verbally or in writing not under seal, which are called, parol. contracts, from those which are under seal which bear the name of deeds or specialties (q. v.) 1 Chit. Contr. 1; 7 Term. R. 3 0 351, n.; 3 Johns. Cas. 60; 1 Chit. Pl. 88. It is proper to remark that when a contract is made under seal, and afterwards it is modified verbally, it becomes wholly a parol contract. 2 Watts, 451; 9 Pick. 298; 13 Wend. 71.

2. Pleadings are frequently denominated the parol. In some instances the term parol is used to denote the entire pleadings in a cause as when in an action brought against an infant heir, on an obligation of his ancestors, he prays that the parol may demur, i. e., the pleadings may be stayed, till he shall attain full age. 3 Bl. Com. 300; 4 East, 485 1 Hoffm. R. 178. See a form of a plea in abatement, praying that the parol may demur, in 1 Wentw. Pl. 43; and 2 Chit. Pl. 520. But a devisee cannot pray the parol to demur. 4 East, 485.

3. Parol evidence is evidence verbally delivered by a witness. As to the cases when such evidence will be received or rejected, vide Stark, Ev. pt. 4, p. 995 to 1055; 1 Phil. Ev. 466, c. 10, s. 1; Sugd. Vend. 97.
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TRIAL, TRIBUNAL

TRIAL, TRIBUNAL

    27.12.19  

TRIAL, practice., The examination before a competent tribunal, according to the laws, of the land, of the facts put in issue in a cause, for the purpose of determining such issue. 4 Mason, 232.

2. There are various kinds of trial, the most common of which is trial by jury. To insure fairdess this mode of trial lust be in public; it is conducted by selecting a jury in the manner prescribed by the local statutes, who must be sworn to try the Hiatter in dispute according to law, and the evidence. Evidence is then given by the party on whom rests the onus probandi or burden of the proof, as the witnesses are called by a party they are questioned by him, and after they have been examined, which is called an examination in chief, they are subject to a cross-examination by the other party as to every part of their testimony. Having examined all his witnesses, the party who supports the affirmative of the issue closes; and the other party then calls his witnesses to explain his case or support his part of the issue these are in the same manner liable to a cross-examination. In case the parties should differ as to what is to be given in evidence, the judge, must decide the matter, and his decision is conclusive upon the parties so far as regards the trial; but, in civil cases, a bill of exceptions (q. v.) way be taken, so that the matter may be examined before another tribunal. When the evidence has been closed, the counsel for the party who supports the affirmative of the issue, then addressess the jury, by recapitulating the evidence and applying the law to the facts, and showing on what particular points he rests his case. The opposite counsel then addresses the jury, enforcing in like manner the facts and the law as applicable to his side of the case; to which the other counsel has a right to reply. It is then the duty of the judge to sum up the evidence and explain to the jury the law applicable to the case this is called his charge. (q. v.) The jurors then retire to deliberate upon their verdict, and, after having agreed upon it, they come into court and deliver it in public. In case they cannot agree they may, in cases of necessity, be discharged: but, it is said, in capital cases they cannot be. Very just and merited encomiums have been bestowed on this mode of trial, particularly in criminal cases. Livingston's Rep. on the Plan of a Penal Code, 13 3 Story, Const. 1773. The learned Duponceau has given beautiful sketch of this tribunal; "twelve invisible judges," said he, "whom the eye of the corrupter cannot see, and the influence of the powerful cannot reach, for they are nowhere to be found, until the moment when the balance of justice being placed in their bands, they hear, weigh, determine, pronounce, and immediately disappear, and are lost in the crowd of their fellow citizens." Address at the opening of the Law Academy at Philadelphia. Vide, generally, 4 Com. Dig. 783; 7 Id. 522; 21 Vin. Ab. 1 Bac. Ab. h. t.; 1 Sell. Pr. 405 4 Bl. Com. ch. 27; Chit. Pr. Index, h. t. 3 Bl. Com. ch. 22; 15 Serg. & R. 61; 22 Vin. Ab. h. t. See Discharge of jury; Jury.

3. Trial by certificate. By the English law, this is a mode of trial allowed in such cases where the evidence of the person certifying is the only proper criterion of the point in dispute. For, when the fact in question lies out of the cognizance of the court, the judges must rely on the solemn averments or information of persons in such station, as affords them the most clear and complete knowledge of the truth.

4. As therefore such evidence, if given to a jury, must have been conclu-sive, the law, to save trouble and circuity, permits the fact to be determined upon such certificate merely. 3 Bl. Com. 333; Steph. Pl. 122.

5. Trial by the grand assise. This kind of trial is very similar to the common trial by jury. There is only one case in which it appears ever to have been applied, and there it is still in force.

6. In a writ of right, if the defendant by a particular form of plea appropriate to the purpose, (see the plea, 3 Chitty, 652,) denied the right of the demandant, as claimed, he had the option, till the recent abolition of the extravagant and barbarous method of wager by battel, of either offering battel or putting himself on the grand assise, to try whether he or the demandant "had the greater right." The latter course he may still take; and, if he does, the court award a writ for summoning four knights to make the election of twenty other recognitors. The four knights and twelve of the recognitors so elected, together making a jury of sixteen, constitute what is called the grand assise; and when assembled, they proceed to try the issue, or (as it is called in this case) the mise, upon the question of right. The trial, as in the case of a common jury, may be either at the bar or nisi prius; and if at nisi prius, a nisi prius record is made up; and the proceedings are in either case, in general, the same as where there is a common jury. See Wils. R. 419, 541; 1 Holt's N. P. Rep. 657; 3 Chitty's Pl. 635; 2 Saund. 45 e; 1 Arch. 402. Upon the issue or mise of right, the wager of battel or the grand assise was, till the abolition of the former, and the latter still is, the only legitimate method of trial; and the question cannot be tried by a jury in the common form. 1 B. & P. 192. See 3 Bl. Com. 351.

7. Trial by inspection or examination. This trial takes place when for the greater expedition of a cause, in some point or issue being either the principal question or arising collaterally out of it, being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts, and, therefore, when the fact, from its nature, must be evident to the court either from ocular demon-stration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies ou the judgment alone. For example, if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies; in this case the judges shall determine by inspection and examination whether be be the plaintiff or not. 9 Co. 30; 3 Bl. Com. 331; Steph. Pl. 123.

8. Judges of courts of equity frequently decide facts upon mere inspection. The most familiar examples are those of cases where the plaintiff prays an injun ction on an allegation of piracy or infringement of a patent or copyright. 5 Ves. 709; 12 Ves. 270, and the cases there cited. And see 2 Atk. 141; 2 B. & C. 80; 4 Ves. 681; 2 Russ. R. 385; 1 V. & B. 67; Cro. Jac. 230; 1 Dall. 166.

9. Trial by the record. This trial applies to cases where an issue of nul tiel record is joined in any action. If, on one side, a record be asserted to exist, and the opposite party deny its existence, under the form of traverse, that there is no such record remaining in court, as alleged, and issue be joined thereon, this is called an issue of nul tiel record; and the court awards, in such case, a trial by inspection and examination of the record: Upon this the party, affirming its existence, is bound to produce it in court, on a day given for the purpose, and if he fail to do so, judgment is given for his adversary.

10. The trial by record is not only in use when an issue of this kind happens to arise for decision, but it is the only legitimate mode of trying such issue, and the parties cannot put themselves upon the country. Steph. Pl. 122; 2 Bl. Com. 330.

11. Trial by wager of battel. In the old English law, this was a barbarous mode of trying facts, among a rude people, founded on the supposition that heaven would always interpose, and give the victory to the champions of truth and innocence. This mode of trial was abolished in England as late as the stat. 59 Geo. III., c. 46, A. D. 1818. It never was in force in the United States. See 8 Bl. Com. 337; 1 Hale's Hist. 188; see a modern case, 1 B. & A. 405.

12. Trial by wager of law. This mode of trial has fallen into complete disuse; but in point of law, it seems, in England, to be still competent in most cases to which is anciently applied. The most important and best established of these cases, is, the issue of nil debet, arising in action of debt of simple contract, or the issue of non detinet, in an action of detinue. In the declaration in these actions, as in almost all others, the plaintiff concludes by offering his suit (of which the ancient meaning was followers or witnesses, though the words are now refained as mere form,) to prove the truth of his claim. On the other hand, if the defendant, by a plea of nil debet or non detinet, deny the debt or detention, be may conclude by offering to establish the truth of such plea, "against the plaintiff and his suit, in such manner as the court shall direct." Upon this the court awards the wager of law; Co. Ent. 119 a; Lill. Ent. 467; 3 Chit. Pl. 479; and the form of this proceeding, when so awarded, is that the defendant brings into court with him eleven of his neighbors, and for himself, makes oath that he does not owe the debt or detain the property alleged and then the eleven also swear that they believe him to speak the truth; and the defendant is then entitled to judgment. 3 Bl. Com. 343; Steph. Pl. 124. Blackstone compares this mode of trial to the canonical purgation of the catholic clergy, and to the decisory oath of the civil, law. See Oath, decisory.

13. Trial by witnesses. This species of trial by witnesses, or per testes, is without the intervention of a jury

14. This is the only method of trial known to the civil law, in which the judge is left to form in his own breast his sentence upon the credit of the witnesses examined; but it is very rarely used in the common law, which prefers the trial by jury in almost every instance.

15. In England, when a widow brings a writ of dower, and the tenant pleads that the tenant is not dead, this being looked upon as a dilatory plea, is, in favor of the widow, and for greater expedition, allowed to be tried by witnesses examined before the judges; and so, says Finch, shall no other case in our law. Finch's Law, 423. But Sir Edward Coke mentions others: as to try whether the tenant in a real action was duly summoned; or the validity of a challenge to a juror; so that Finch's observation must be confined to the trial of direct and not collateral issues. And in every case, Sir Edward Coke lays it down, that the affirmative must be proved by two witnesses at least. 3 Bl. Com. 336.

TRIAL LIST. A list of cases marked down for trial for any one term.

TRIBUNAL. The seat of a judge; the place where he administers justice; but by this term is more usually understood the whole body of judges who compose a jurisdiction sometimes it is taken for the jurisdiction which they exercise.

2. This term is Latin, and derives its origin from the elevated seat where the tribunes administered justice.
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DEFENCE... DEFENSIVE ALLEGATION

DEFENCE... DEFENSIVE ALLEGATION

    26.12.17  

DEFENCE, torts. A forcible resistance of an attack by force.

2. A man is justified, in defending his person, that of his wife, children, and servants, and for this purpose he may use as much force as may be necessary, even to killing the assailant, remembering that the means used must always be proportioned to the occasion, and an excess becomes, itself, an injury.

3. A man may also repel force by force in defence of his personal property, and even justify homicide against one Who manifestly intends or endeavors by violence or surprise to commit a known felony, as robbery.

HABEAS CORPUS

HABEAS CORPUS

    15.7.17  

HABEAS CORPUS, remedies A writ of habeas corpus is an order in writing, signed by the judge who grants the same, and sealed with the seal of the court of he is a judge, issued in the name of the sovereign power where it is granted, by such a court or a judge thereof, having lawful authority to issue the same, directed to any one having a person in his custody or under his restraint, commanding him to produce, such person at a certain time and place, and to state the reasons why he is held in custody, or under restraint.

2. This writ was it common law considered as a remedy to remove the illegal restraint on a freeman. But anterior to the 31 Charles II. its benefit was, in a great degree, eluded by time-serving judges, who awarded it only in term time, and who assumed a discretionary power of awarding or refusing it. 3 Bulstr. 23. Three or four years before that statute was passed there had been two very great cases much agitated in Westminster Hall, upon writs of habeas corpus for private custody, viz: the cases of Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely drew the line of distinction between civil constitutional liberty, as opposed to the power of the crown, and liberty as opposed to the violence and power of private persons. Wilmot's Opinions, 85, 86.

3. To secure the full benefit of it to the subject the statute 81 Car. II. c. 2, commonly calfed the habeas corpus act, was passed. This gave to the. writ the vigor, life, and efficacy requisite for the due protection of the liberty of the subject. In England this. is considered as a high prerogative writ, issuing out of the court of king's bench, in term time or vacation, and running into every part of the king's dominions. It is also grantable as a matter of right, ex debito justitae, upon the application of any person.

4. The interdict De homine libero exhibendo of the Roman law, was a remedy very similar to the writ of habeas corpus. When a freeman was restrained by another, contrary to good faith, the praetor ordered that such person should be brought before him that he might be liberated. Dig.43, 29, 1.

5. The habeas corpus act has been substantially incorporated into the jurisprudance of every state in the Union, and the right to the writ has been secured by most of the constitutions of the states, and of the United States. The statute of 31 Car. II. c. 2, provides that the person imprisoned, if he be not a prisoner convict, or in execution of legal process, or committed for treason or felony, plainly expressed in the warrant, or has not neglected wilfully, by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, may apply by any one in his behalf, in vacation time, to a judicial officer for the writ of habeas corpus, and the officer, upon view of the copy of the warrant of commitment, or upon proof of denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained, and made returnable immediately before him. And, in term time, any of the said prisoners may obtain his writ of habeas corpus, by applying to the proper court.

6. By the habeas corpus law of Pennsylvania, (the Act of February 18, 1785,) the benefit of the writ of habeas corpus is given in "all cases where any person, not being committed or detained for any criminal, or supposed criminal matter," Who "shall be confined or restrained of his or her liberty, under any color or pretence whatsoever." A similar provision is contained in the habeas corpus act of New York. Act of April 21, 1818, sect. 41, ch. 277.

7. The Constitution of the United State art. 1, s. 9, n. 2, provides, that " the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it and the same principle is contained in many of the state constitutions. In order still more to secure the citizen the benefit of this great writ, a heavy penalty is inflicted upon the judges who are bound to grant it, in case of refusal.

8. It is proper to consider, 1. When it is to be granted. 2. How it is to be served. 3. What return is to be made to it. 4. The bearing. 5. The effect of the judgment upon it.

9. - 1. The writ is to be granted whenever a person is in actual confinement, committed or detained as aforesaid, either for a criminal charge, or, as in Pennsylvania and New York, in all cases where he is confined or restrained of his liberty, under any color or pretence whatsoever. But persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to, a writ of habeas corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356.

10. - 2. The writ may be served by any free person, by leaving it with the person to whom it is directed, or left at the gaol or prison with any of the under officers, under keepers, or deputy of the said officers or keepers. In Louisiana, it is provided, that if the person to whom it is addressed shall refuse to receive the writ, he who is charged to serve it, shall inform him of its contents; if he to whom the writ is addressed conceal himself, or refuse admittance to the person charged to serve it on him, the latlat shall affix the order on the exterior of the place where the person resides, or in which the petitioner is so confined. Lo. Code of Pract. art. 803. The service is proved by the oath of the party making it.

11. - 3. The person to whom the writ is addressed or directed, is required to make a return to it, within the time prescribed; he either complies, or he does not. If, he complies, he must positively answer, 1. Whether he has or has not in his power or custody the person to be set at liberty, or whether that person is confined by him; if he return that he has not and has not had him in his power or custody, and the return is true, it is evident that a mistake was made in issuing the writ; if the return is false, he is liable to a penalty, and other punishment, for making such a, false return. If he return that he has such person in his custody, then he must show by his return, further, by what authority, and for what cause, he arrested or detained him. If he does not comply, he is to be considered in contempt of the court under whose seal the writ has been issued, and liable to a severe penalty, to be recovered by the party aggrieved.

12. - 4. When the prisoner is brought, before the judge, his judicial discretion commences, and he acts under no other responsibility than that which belongs to the exercise of ordinary judicial power. The judge or court before whom the prisoner is brought on a habeas corpus, examines the return and Papers, if any, referred to in it, and if no legal cause be shown for the imprisonment or restraint; or if it appear, although legally committed, he has not been prosecuted or tried within the periods required by law, or that, for any other cause, the imprisonment cannot be legally continued, the prisoner is discharged from custody. In the case of wives, children, and wards, all the court does, is to see that they ire under no illegal restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120.

13. For those offences which are bailable, when the prisoner offers sufficient bail, he is to be bailed.

14. He is to be remanded in the following cases: 1. When it appears he, is detained upon legal process, out of some court having jurisdiction of criminal matters, 2. When he is detained by warrant, under the hand and seal of a magistrate, for some offence for which, by law, the prisoner is not bailable. 3. When he is a convict in execution, or detained in execution by legal civil process. 4. When he is detained fora contempt, specially and plainly charged in the commitment, by some existing court, having authority to commit for contempt. 5. When he refuses or neglects to give the requisite bail in a case bailable of right. The judge is not confined to the return, but he is to examine into the causes of the imprisonment, and then he is to discharge, bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.

15. - 5. It is provided by the habeas corpus act, that a person set at liberty by the writ, shall not again be imprisoned for the same offence, by any person whomsoever, other than by the legal order and process of such court wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R.282.

16. The habeas corpus can be suspended only by authority of the legislature. The constitution of the United States provides, that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion and rebellion, the public safety may require it. Whether this writ ought to be suspended depends on political considerations, of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a military chief, declaring martial law, cannot, therefore, suspend the operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531.

17. There are various kinds of this writ; the principal of which are explained below.

18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies to remove a prisoner to take his trial in the county where the offence was committed. Bac. Ab. Habeas Corpus, A.

19. Habeas corpus ad faciendum et recipiendum, is a writ which issues out of a court of competent jurisdiction, when a person is sued in an inferior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence this writ is frequently denominated habeas corpus cum causa) to do and receive whatever the court or the judge issuing the writ shall consider in that behalf. This writ may also be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to surrender him in his own discharge; upon. the return of this writ, the court will cause an exoneretur to be entered on the bail piece, and remand the prisoner to his former custody. Tidd's Pr. 405; 1 Chit. Cr. Law, 182.

20. Habeas corpus ad prosequendum, is a writ which issues for the purpose of removing a prisoner in order to prosecute. 3 Bl. Com. 130.

21. Habeas corpus ad respondendum, is a writ which issues at the instance of a creditor, or one who has a cause of action against a person who is confined by the process of some inferior court, in order to remove the prisoner and charge him with this new action in the court above. 2 Mod.198; 3 Bl. Com. 107.

22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of a plaintiff for the purpose of bringing up a prisoner, against whom a judgment has been rendered, in a superior court to charge him with the process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.

23. Habeas corpus ad subjiciendum, by way of eminence called the writ of habeas corpus, (q. v.) is a writ directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf. 3 Bl. Com. 131; 3 Story, Const. §1333.

24. Habeas corpus ad testificandum, a writ issued for the purpose of bringing a prisoner, in order that he may testify, before the court. 3 Bl. Com. 130.

25. Habeas corpus cum causa, is a writ which may be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to render him in their own discharge. Tidd's Pr. 405. Upon the return of this writ the court will cause an exoneretur to be entered on the bail piece, and remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law132. Vide, generally, Bac. Ab. h. t.; Vin. Ab. h. t.; Com. Dig. h. t.; Nels. Ab. h. t.; the various American Digests, h. t.; Lo. Code of Prac. art. 791 to 827; Dane's Ab. Index, h. t.; Bouv. Inst. Index, h. t.

SEAL, SEALING OF A VERDICT

SEAL, SEALING OF A VERDICT

    4.7.17  

SEAL, conveyancing, contracts. A seal is an impression upon wax, wafer, or some other tenacious substance capable of being impressed. 5 Johns. R. 239. Lord Coke defines a seal to be wax, with an impression. 3 Inst. 169. " Sigillum," says he, "est cera impressa, quia cera sine impressione non est sigillum." This is the common law definition of a seal. Perk. 129, 134; Bro. tit. Faits, 17, 30; 2 Leon 21; 5 John. 239; 2 Caines, R. 362; 21 Pick. R. 417.

2. But in Pennsylvania, New Jersey, and the southern and western states generally, the impression upon wax has been disused, and a circular, oval, or square mark, opposite the name of the signer, has the same effect as a seal the shape of it however is indifferent; and it is usually written with a pen. 2 Serg. & Rawle, 503; 1 Dall. 63; 1 Serg. & Rawle, 72; 1 Watts, R. 322; 2 Halst. R. 272.

3. A notary must use his official seal, to authenticate his official acts, and a scroll will not answer. 4 Blackf. R. 185. As to the effects of a seal, vide Phil. Ev. Index, h. t. Vide, generally, 13 Vin. Ab. 19; 4 Kent, Com. 444; 7 Caines' Cas. 1; Com. Dig. Fait, A 2.

4. Merlin defines a real to be a plate of metal with a flat surface, on which is engraved the arms of a prince or nation, or private individual or other device, with which an impression may be made on wax or other substance on paper or parchment, in order to authenticate them: the impression thus made is also called a seal. Repert. mot Sceau; 3 McCord's R. 583; 5 Whart. R. 563.

5. When a seal is affixed to an instrument, it makes it a specialty, (q. v.) and whether the seal be affixed by a corporation or an individual the effect is the same. 15 Wend. 256.

6. Where an instrument concludes with the words, "witness our hands and seals," and is signed by two persons, with only one seal, the jury may infer, from the face of the paper, that the person who signed last, adopted the seal of the first. 6 Penn. St. Rep. 302. Vide 9 Am Jur. 290-297; 1 Ohio Rep. 368; 3 John. 470. 12 ohu. 76; as to the origin and use of seals, Addis. on Cont. 6; Scroll.

7. The public seal of a foreign state, proves itself; and public acts, decrees and judgments, exemplified under this seal, are received as true and genuine. 2 Cranch, 187, 238; 4 Dall. 416; 7 Wheat. 273, 335; 1 Denio, 376; 2 Conn. 85, 90; 6 Wend. 475; 9 Mod. 66. But to entitle its seal to such authority, the foreign state must have been acknowledged by the government, within whose jurisdiction the forum is located. 3 Wheat. 610; 9 Ves. 347.

SEAL-OFFICE, English practice. The office at which certain judicial writs are sealed with the prerogative seal, and without which they are of no author-ity. The officer whose duty it is to seal such writs is called "sealer of writs;"

SEAL OF THE UNITED STATES, government. The seal used by the United States in congress assembled, shall be the seal of the United States, viz.: ARMS, pale-ways of thirteen pieces argent and gules; a chief azure; the escutcheon on the breast of the American eagle displayer proper, holding in his dexter talon, an olive branch, and in his sinister, a bundle of thirteen arrows, all proper, and in his beak a scroll, inscribed with this motto, "E pluribus unum." For the CREST: over the head of the eagle which appears above the escutcheon, a glory, or breaking through a cloud, proper, and surrounding thirteen stars, forming a constellation argent on an azure field. REVERSE, a pyramid unfin-ished. In the zenith an eye in a triangle, surrounded with a glory proper: over the eye, these words, "Annuit caeptis." On the base of the pyramid, the numerical letters, MDCCLXXVI; and underneath, the following motto, "Novus ordo sectorum." Resolution of Congress, June 20, 1782; Gordon's Dig. art. 207.

SEALING OF A VERDICT, practice. The putting a verdict in writing, and placing it in an envelop, which is sealed. To relieve jurors after they have agreed, it is not unusual for the counsel to agree that the jury shall seal their verdict, and then separate. When the court is again in session, the jury come in and give their verdict, in all respects as if it had not been sealed, and a juror may dissent from it, if since the sealing, he has honestly changed his mind. 8 Ham. 405; Gilm. 333; 3 Bouv. Inst. n. 3257.

SEALS, matters of succession. On the death of a person, according to the laws of Louisiana, if the heir wishes to obtain the benefit of inventory, and the delays for deliberating, he is bound as soon as he knows of the death of the deceased to whose succession he is called, and before committing any act of heirship, to cause the seals to be affixed on the effects of the succession, by any judge or justice of the peace. Civ. Code, of Lo. art. 1027.

2. In ten days after this affixing of the seals, the, heir is bound to present a petition to the judge of the place in which the succession, is opened, praying for the removal of the seals, and that a true and faithful inventory of the effects of the succession be made. Id. art. 1028.

3. In case of vacant estates, and estates of which the heirs are absent and not represented, the seals, after the decease, must be affixed by a judge or justice of the peace within the limits of his jurisdiction, and may be fixed by him, either ex officio, or at the request of the parties. Civ. Code of Lo. art. 1070. The seals are affixed at the request of the parties, when a widow, a testamentary executor, or any other person who pretends to have an interest in a succession or community of property, requires it. Id. art. 1071.; They are affixed ex officio, when the presumptive heirs of the deceased do not all reside in the place where be died, or if any of them happen to be absent. Id. art 1072.

4. The object of placing the seals on the effects of a succession, is for the purpose of preserving them, and for the interest of third persons. Id. art. 1068.

5. The seals must be placed on the bureaus, coffers, armoires, and other things, which contain the effects and papers of the deceased, and on the doors of the apartments which contain these things, so that they cannot be opened without tearing off, breaking, or altering the seals. Id. art. 1069.

6. The judge or justice of the peace, who affixes the seals, is bound to appoint guardian, at the expense of the succession, to take care of the seals and of the effects, of which an account is taken at the end of the proces-verbal of the affixing of the seals; the guardian must be domiciliated in the plaze where the inventory is taken. Id. art. 1079. And the judge; when he retires, must take with him the keys of all things and apartments upon which the seals have been affixed. lb.

7. The raising of the seals is done by the judge of the place, or justice of the peace appointed by him to that effect, in the presence of the witnesses of the vicinage, in the same manner as for the affixing of the seals. Id. art. 1084. See, generally; Benefit of Inventory, Succession; Code de Pro. Civ. 2e part. lib. 1, t. 1, 2, 3; Dict. de Jurisp. Scelle.

SATISFACTION

SATISFACTION

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SATISDACTION, civil law. This word is derived from the same root as satisfaction; for, in the same manner that to fulfil the demand which is made upon us, is called satisfaction, so satisdaction takes place when he who demands something has agreed to receive sureties instead of the thing itself. Dig. 2, 8, 1

SATISFACTION, practice. An entry made on the record, by which a party in whose favor a judgment was rendered, declares that he has been satisfied and paid.

2. In Alabama, Delaware, Illinois, Indiana, Massachusetts, New Hampshire, Pennsylvania, Rhode Island, South Carolina, and, Vermont, provision is made by statute, requiring the mortgagee to discharge a mortgage upon the record, by entering satisfaction in the margin. The refusal or neglect to enter satisfaction after payment and demand, renders the mortgagee liable to an action, after the time given him by the respective statutes for doing the same has elapsed, and subjects him to the payment of damages, and, in some cases, treble costs. In Indiana and New York, the register or recorder of deeds may himself discharge the mortgage upon the record on the exhibition of a certificate of payment and satisfaction signed by the mortgagee or his representatives, and attached to the mortgage, which shall be recorded. Ind. St. 1836, 64; 1 N. Y. Rev. St. 761.

SATISFACTION, construction by courts of equity. Satisfaction is defined to be the donation of a thing, with the intention, express or implied, that such donation is to be an extinguishment of some existing right or claim in the donee.

2. Where a person indebted bequeaths to his creditor a legacy, equal to, or exceeding the amount of the debt, which is not noticed in the will, courts of equity, in the absence of any intimation of a contrary intention, have adopted the rule that the testator shall be presumed to have meant the legacy as a satisfaction. of the debt.

3. When a testator, being indebted, bequeaths to his creditor a legacy, simpliciter, and of the same nature as the debt, and not coming within the exceptions stated in the next paragraph, it has been held a satisfaction of the debt, when the legacy is equal to, or exceeds the amount of the debt. Pre. Ch. 240; 3 P. Wms. 353.

4. The following are exceptions to the rule: 1. Where the legacy is of, less amount than the debt, it shall not be deemed a part payment or satisfaction. 1 Ves. pen. 263.

5. - 2. Where, though the debt and legacy are of equal amount, there is a difference in the times of payment, so that the legacy may not be equally beneficial to the legatee as the debt. Prec. Ch. 236; 2 Atk. 300; 2 Ves. sen. 63 5; 3 Atk. 96; 1 Bro. C. C. 129; 1 Bro. C. C. 195; 1 M'Clel. & Y. Rep. Exch. 41; 1 Swans. R. 219.

6. - 3. When the legacy and the debt are of a different nature, either with reference, to the subjects themselves, or with respect to the interests given. 2 P. Wms. 614; 1 Ves. jr. 298; 2 Ves. jr. 463.

7. - 4. When the provision by the will is expressed to be given for a particular purpose, such purpose will prevent the testamentary gift being construed a satisfaction of the debt, because it is given diverse intuitu. 2 Ves. sen. 635.

8. - 5. When the debt of the testator is contracted subsequently to the, making of the will; for, in that case, the legacy will not be deemed a satisfaction. 2 Salk. 508.

9. - 6. When the legacy is uncertain or contingent. 2 Atk. 300; 2 P. Wms. 343.

10. - 7. Where the debt itself is contingent, as where it arises from a running account between the testator and legatee; 1 P. Wms. 296; or it is a negotiable bill of exchange. 3 Ves. jr. 561.

11. - 8. Where there is an express direction in the will for the payment of debts end legacies, the court will infer from the circumstance, that the testator intended that both the debt owing from him to the legatee and the legacy, should, be paid. 1 P. Wms. 408; 2 Roper, Leg. 54.

See, generally, Tr. of Eq. 333; Yelv. 11, n.; 1 Swans. R. 221; 18 Eng. Com. Law Rep. 201; 4 Ves. jr. 301; 7 Ves. jr. 507; 1 Suppl. to Ves. jr. 204, 308, 311, 342, 348, 329; 8 Com. Dig. Appen. tit. Satisfaction, p. 917; Rob. on Frauds, 46, n. 15; 2 Suppl. to Ves. jr. 22, 46, 205; 1 Vern. 346; Roper, Leg. c. 17; 1 Roper on Hush. and Wife, 501 to 511; 2 Id. 53 to 63; Math. on Pres. c. 6, p. 107; 1 Desaus. R. 814; 2 Munf. Rep. 413; Stallm. on El. and Sat.

SATISFACTION PIECE, Eng. practice. An instrument of writing in which it is declared that, satisfaction is acknowledged between the plaintiff and defendant. It is signed by the attorney, and on its production and the warrant of attorney to the clerk of the judgments, satisfactio is entered on payment, of certain fees. Lee's Dict. of Pr. tit. Satisfaction.

SATISFACTORY EVIDENCE. That which is sufficient to induce a belief that the thing is true; in other words, it is credible evidence. 3 Bouv. Inst. n. 3049.

CONCLUSION, CONCLUSIVE EVIDENCE

CONCLUSION, CONCLUSIVE EVIDENCE

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CONCLUSION, practice. Making the last argument or address to the court or jury. The party on whom the onus probandi is cast, in general has the conclusion.

CONCLUSION, remedies. An estoppel; a bar; the act of a man by which he has confessed a matter or thing which he can no longer deny; as, for example, the sheriff is concluded by his return to a writ, and therefore, if upon a capias he return cepi corpus, he cannot afterwards show that he did not arrest the defendant, but is concluded by his return. Vide Plowd. 276, b; 3 Tho. Co. Litt. 600.

CONCLUSION TO THE COUNTRY, pleading. The tender of. an issue to be tried by a jury is called the conclusion to the country.

2. This conclusion is in the following words, when the issue is tendered by the defendant: " And of this the said C D puts himself upon the country." When it is tendered by the plaintiff, the formula is as follows: " And this the said A B prays may be inquired of by the country." It held, however, that there is no material difference between these two modes of expression, and that, if ponit se, be substituted for petit quod inquiratur, or vice versa, the mistake is unimportant. 10 Mod. 166.

3. When there is an affirmative on one side, and a negative on the other, or vice versa, the conclusion should be to the country. T. Raym. 98; Carth. 87; 2 Saund. 189; 2 Burr. 1022. So it is, though the affirmative and negative be not in express words, but only tantamount thereto. Co. Litt. 126, a; Yelv. 137; 1 Saund. 103; 1 Chit. Pl. 592; Com. Dig. Pleader, E 32.

CONCLUSIVE. What puts an end to a thing. A conclusive presumption of law, is one which cannot be contradicted even by direct and positive proof. Take, for example, the presumption that an infant is incapable of judging whether it is or is not against his interest; When infancy is pleaded and proved, the plaintiff cannot show that the defendant was within one day of being of age when the contract was made, and perfectly competent to make a contract. 3 Bouv. Inst. n. 3061.

CONCLUSIVE EVIDENCE. That which cannot be contradicted by any other evidence,; for example, a record, unless impeached for fraud, is conclusive evidence between the parties. 3 Bouv. Inst. n. 3061-62.

CERTAINTY, UNCERTAINTY

CERTAINTY, UNCERTAINTY

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CERTAINTY, UNCERTAINTY, contracts. In matters of obligation, a thing is certain, when its essence, quality, and quantity, are described, distinctly set forth, Dig. 12, 1, 6. It is uncertain, when the description is not that of one individual object, but designates only the kind. Louis. Code, art. 3522, No. 8 5 Co. 121. Certainty is the mother of repose, and therefore the law aims at certainty. 1 Dick. 245. Act of the 27th of July, 1789, ii. 2, 1 Story's Laws, 6. His compensation for his servicer, shall not exceed two thousand dollars per annum. Gordon's Dig. art. 211.

2. If a contract be so vague in its terms, that its meaning cannot be certainly collected, and the statute of frauds preclude the admissibility of parol evidence to clear up the difficulty; 5 Barn. & Cr. 588; S. C. 12 Eng. Com. L. R. 827; or parol evidence cannot supply the defect, then neither at law, nor in equity, can effect be given to it. 1 Russ. & M. 116; 1 Ch. Pr. 123.

3. It is a maxim of law, that, that is certain which may be made certain; certum est quod certum reddi potest Co. Litt. 43; for example, when a man sells the oil he has in his store at so much a gallon, although there is uncertainty as to the quantity of oil, yet inasmuch as it can be ascertained, the maxim applies, and the sale is good. Vide generaly, Story, Eq. El. 240 to 256; Mitf. Pl. by Jeremy, 41; Coop. Eq. Pl. 5; Wigr. on Disc. 77.

CERTAINTY, pleading. By certainty is understood a clear and distinct statement of the facts which constitute the cause of action, or ground of defence, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give the judgment. Cowp. 682; Co. Litt. 308; 2 Bos. & Pull. 267; 13 East, R. 107; Com. Dig. Pleader, C 17; Hob. 295. Certainty has been stated by Lord Coke, Co. Litt. 303, a, to be of three sorts namely, 1. certainty to a common intent 2. to a certain intent in general; and, 3. to a certain intent in every particular. In the case of Dovaston.v. Paine Buller, J. said he remembered to have heard Mr. Justice Ashton treat these distinctions as a jargon of words without meaning; 2 H. Bl. 530. They have, however, long been made, and ought not altogether to be departed from.

2. - 1. Certainty to a common intent is simply a rule of construction. It occurs when words are used which will bear a natural sense, and also an artificial one, or one to be made out by argument or inference. Upon the ground of this rule the natural sense of words is adopted, without addition. 2 H. Bl. 530.

3. - 2. Certainty to, a certain intent in general, is a greater degree of certainty than the last, and means what upon a fair and reasonable construction may be called certain, without recurring to possible facts which do not appear; 9 Johns. R. 317; and is what is required in declarations, replications, and indictments, in the charge or accusation, and in returns to writs of mandamus. See 1 Saund. 49, n. 1; 1 Dougl. 159; 2 Johns. Cas. 339; Cowp. 682; 2 Mass. R. 363 by some of which authorities, it would seem, certainty to a common intent is sufficient in a declaration.

4. - 3. The third degree of certainty, is that which precludes all argument, inference, or presumption against the party, pleading, and is that technical accuracy which is not liable to the most subtle and scrupulous objections, so that it is not merely a rule of construction, but of addition; for where this certainty is necessary, the party must not only state the facts of his case in the most precise way, but add to them such as show that they are not to be controverted, and, as it were, anticipate the case of his adversary. Lawes on Pl. 54, 55. See 1 Chitty on Pl. 235 to 241.

COVENANT, COVENANT NOT TO SUE...

COVENANT, COVENANT NOT TO SUE...

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COVENANT, remedies. The name of an action instituted for the recovery of damages for the breach of a covenant or promise under seal. 2 Ld. Raym. 1536 F; N. B. 145 Com. Dig. Pleader, 2 V 2 Id. Covenant, A 1; Bouv. lnst. Index, h. t.

2. The subject will be considered with reference, 1. To the kind of claim or obligation on which this action may be maintained. 2. The form of the declaration. 3. The plea. 4. The judgment.

3.- 1. To support this action, there must be a breach of a promise under seal. 6 Port. R. 201; 5 Pike, 263; 4 Dana, 381; 6 Miss. R. 29. Such promise may be contained in a deed-poll, or indenture, or be express or implied by. law from the terms of the deed; or for the performance of something in futuro, or that something has been done; or in some cases, though it relate to something in presenti, as that the covenantor has, a good title. 2 Saund. 181, b. Though, in general, it is said that covenant will not lie on a contract inpresenti, as on a covenant to stand seized, or that a certain horse shall henceforth be the property of another. Plowd. 308; Com. Dig. Covenant, A 1; 1 Chit. PI.. 110. The action of covenant is the peculiar remedy for the non-performance of a promise under seal, where the damages are unliquidated, and depend in amount on the opinion of a jury, in which case neithor debt nor assumpsit can be supported but covenant as well as the action of debt, may be maintained upon a single bill for a sum certain. When the breach of the covenant amounts to misfeasance, the covenantee has an election to proceed by action of covenant, or by action on the case for a tort, as against a lessee, either during his term or afterwards, for waste; 2 Bl. R. 1111; 2 Bl. R. 848; but this has been questioned. When the contract under seal has been enlarged by parol, the substituted agreement will be considered, together with the original agreement, as a simple contract. 2 Watt's R. 451 1 Chit. Pl. 96; 3 T. R. 590.

4. - 2. The declaration must state that the contract was under seal and it should make profert of it, or show some excuse for the omission. 3 T. 11. 151. It is not, in general, requisite to state tho consideration of the defendant's promise, because a contract under seal usually imports a consideration; but when the performance of the consideration constitutes a condition precedent, such performance must be averred. So much only of the deed and covenant should be set forth as is essential to the cause of action: although it is usual to declare in the words of the deed, each covenant may be stated as to its legal effect. The breach may be in the negative of the covenant generally 4 Dall. R. 436; or, according to the legal effect, and sometimes in the alternative and several breaches may be assigned at common law. Damages being the object of the suit, should be laid sufficient to cover the real amount. Vide 3 Serg. & Rawle, 364; 4 Dall. R. 436 2 Yeates' R. 470 3 Serg. & Rawle, 564, 567; 9 Serg. & Rawle, 45.

5. - 3. It is said that strictly there is no general issue in this action, though the plea of non est factum has been said by an intelligent writer to be the general issue. Steph. Pl. 174. But this plea only puts in issue the fact of scaling the deed. 1 Chit. Pl. 116. Non infregit conventionem, and nil debet, have both been held to be insufficient. Com. Dig. Pleader, 2 V 4. In Pennsylvania, by a practice peculiar to that state, the defendant may plead covenants and under this. plea, upon notice of the special matter, in writing, to the plaintiff, without form, he may give anything in evidence which he might have pleaded. 4 Dall. 439; 2 Yeates, 107; 15 Serg. & Rawle, 105. And this evidence, it seems, may be given in the circuit courts of the United States in that state without notice, unless called for. 2 W. C. C. R. 4 5 6.

6. - 4. The judgmeut is that the plaintiff recover a named sum for his damages, which he has sustained by reason of the breach or breaches of covenant, together with costs.

COVENANT, contracts. A covenant, conventio, in its most general signification, means any kind of promise or contract, whether it be made in writing or by parol. Hawk. P. C. b. 1, c. 27, 7, s. 4. In a more technical sense, and the one in which it is here considered, a covenant is an agreement between two or more persons, entered into in writing and under seal, whereby either party stipulates for the truth of certain facts, or promises to perform or give something to the other, or to abstain from the performance of certain things. 2 Bl. Com. 303-4; Bac. Ab. Covenant, in pr.; 4 Cruise, 446; Sheppard, Touchs. 160; 1 Harring. 151, 233 1 Bibb, 379; 2 Bibb, 614; 3 John. 44; 20 John. 85; 4 Day, 321.

2. It differs from an express assumpsit in this, that the former may be verbal, or in writing not under seal, while the latter must always be by deed. In an assumpsit, a consideration must be shown; in a covenant no consideration is necessary to give it validity, even in a court of equity. Plowd. 308; 7 T. R. 447; 4 Barn. & Ald. 652; 3 Bingh. 111.

3. It is proposed to consider first, the general requisites of a covenant; and secondly, the several kinds of covenants.

4. - 1. The general requisites are, 1st. Proper parties. 2d. Words of agreement. 3d A legal purpose. 4th. A proper form.

5. - 1st. The parties must be such as by law can enter into a contract. If either for want of understanding, as in the case of an idiot or lunatic; or in the case of an infant, where the contract is not for his benefit; or where there is understanding, but owing to certain causes, as coverture, in the case of a married woman, or duress, in every case, the parties are not competent, they cannot bind themselves. See Parties to Actions.

6. - 2d. There must be an agreement. The assent or consent must be mutual for the agreement would be incomplete if either party withheld his assent to any of its terms. The assent of the parties to a contract necessarily supposes a free, fair, serious exercise of the reasoning faculty. Now, if from any cause, this free assent be not given, the contract is not binding. See Consent.

7. - 3d. A covenant against any positive law, or public policy, is, generally speaking, void. See Nullity; Shep. Touchs. 163. As an example of the first, is a covenant by one man that he will rob another; and of the last, a covenant by a merchant or tradesman that he will not follow his occupation or calling. This, if it be unlimited, is absolutely void but, if the covenant be that he shall not pursue his business in a particular place, as, that he will not trade in the city of Philadelphia, the covenant is no longer against public policy. See Shep. Touchs. 164. A covenant to do an impossible thing is also void. Ib.

8. - 4th. To make a covenant, it must, according to the definition above given, be by deed, or under seal. No particular form of words is necessary to make a covenant, but any words which manifest the intention of the parties, in respect to the subject matter of the contract, are sufficient. Sec numerous examples in Bac. Abr. Covenant, A Selw. N. P. 469; Com. Dig. Covenant, A 2; 3 Johns. R. 44; 5 Munf. 483.

9. In Pennsylvania, Delaware, and Missouri, it is declared by statute that the words grant, bargain, and sell, shall amount to a covenant that the grantor was seised of an estate in fee, free from all incumbrances done or suffered by him, and for quiet enjoyment against his acts. But it has been adjudged that those words in the Pennsylvania statute of 1715, (and the decision will equally apply to the statutory language in the other two states,) did not amount to a general warranty, but merely to a covenant that the grantor had not done any act, nor created any incumbrance whereby the estate might be defeated. 2 Bin. 95; 11 S. & R. 111, 112; 4 Kent, Com. 460.

10. - 2. The several kinds of covenants. They are, 1. Express or implied. 1. An express, covenant, or a covenant in fact, is one expressly agreed between the parties and inserted in the deed. The law does not require any particular form to create an express covenant. The formal word "covenant" is therefore not indispensably requisite. 2. Mod. 268; 3 Keb. 848; 1 Leon, 324; 1 Bing. 433; 8 J. B. Moore, 546; 1 Ch. Cas. 294; 16 East, 352; 12 East, 182 n.; 1 Bibb, 379; 2 Bibb 614; 3 John. 44; 5 Cowen, 170; 4 Day, 321 4 Conn. 508; 1 Harring. 233. The words "I oblige;" "agree," 1 Ves. 516; 2 Mod. 266; or, "I bind myself to pay so much such a day, and so much such another day;" Hardr. 178; 3 Leon. 119, Pl. 199; are held to be covenants; and so are the word's of a bond. 1 Ch. Cas. 194. But words importing merely an order or direction that other persons should pay a sum of money, are not a coveiaant. 6 J. B. Moore, 202, n. (a.)

11. - 1. An implied covenant is one which the law intends and implies, though it be not expressed in words. 1 Common Bench Rep. 402; co. Lit. 139, b; Vaugnan's Rep. 118; Rawle on Covenants, 364. There are some words which of themselves do not import an express covenant, yet being made use of in certain contracts, have a similar operation and are called covenants in law. They are as effectually binding on the parties as if expressed in the most unequivocal terms. Bac. Ab. Covenant, B. A few examples will fully explain this. If a lessor demise and grant to his lessee a house or lands for a certain term, the law will imply a covenant on the part of the lessor, that the lessee shall during the term quietly enjoy the same against all incumbrances. Co. Litt. 384. When in a lease the words "grant," 1 Mod. 113 Freem. 367; Cro. Eliz. 214; 4 Taunt. 609; "grant and demise, " 4 Wend. 502; "demise," 10 Mod. 162; 4 Co. 80; Hob. 12; or " demiserunt," I Show. 79 1 Salk. 137, are used, they are so many instances of implied covenants. And the words "yielding and paying" in a lease, imply a covenant on the part of lessee, that he will pay the rent. 9 Verm. 151; 3 Penn. 461, 464.

12. - 2. Real and personal. 1st. A real covenant is one which has for its object something annexed to, or inherent in, or connected with land or other property. Co Litt. 334; enk 241; Cruise, Dig. tit. 32, c. 25, s. 22; Platt. on Cov. 60, 61; 2 Bl. Com. 304. A covenant real, which necessarily runs with the land, as to pay rent, not to cut timber, and the like, is said to be an inherent covenant. Shep. To. 161. A covenant real runs with the land and descends to the heir; it is also transferred to a purchaser. Such covenants are said to run with the land, so that he who has the one is subject to the other. Bac. Ab. Covenants, E 2. See 2 Penn. 507; 10 Wend 180; 12 Mass. 306; 17 Mass. 586; 5 Cowen, 137; 5 Ham. 156; 5 Conn. 497; 1 Wash. C. C. 375; 8 Cowen 206; 1 Dall. 210; 11 Shep. 283; 6 Met. 139; 3 Mete. 81; 3 Harring. 338; 17 Wend. 136.

13. - 2. As commonly reckoned, there are five covenants for title, viz: 1. Covenant for seisin. 2. That the grantor has perfect right to convey. 3. That the grantee shall quietly possess and enjoy the premises without interuption, called a covenant for quiet enjoyment. 4. The covenant against incumbrances. 5. The covenant for futher assurance. 6. Besides these covenants, there is another frequently resorted to in the United Staes, which is relied on more, perhaps, than any other, called the covenant of warranty. See Rawle on Covenants for Title, where the import and effect of these covenants are elaborately and luminously discussed.

14. - 3. A personal covenant relates only to matters personal, as distinguished from real, and is binding on the covenantur during life, and on his personal representatives after his decease, in respect of his assets. According to Sir William Blackstone, a personal convenant may be transformed into a real, by the mere circumstance of the heirs being named therein, and having assets by descent from the covenantor. 2 Bl. Com 304. A covenant is personal in another sense, where the covenantor is bound to fulfil the covenant himself; as, to teach an apprentice. F.N.B. 340, A.

15. Personal covenants are also said to be transitive and intransitive; the former, when the duty of performing them passes to the covenantor's representatives; the latter, when it is limited to himself; as, in the case of teaching an apprentice. Bac. Ab. h.t.

16. As they affect each other in the same deed, covenants may be divided into three classes. 1st. Dependent covenants are those in which the performance, of one depends on the performance of the other; there may be conditions which must be performed before the other party is liable to an action on his covenant. 8 S. & R. 268; 4 Conn. 3; 1 Blackf. 175; John. 209; 2 Stew. & Port. 60; 6 Cowen 296; 3 Ala. R. 330; 3 Pike 581; 2 W. & S. 227; 5 Shep. 232; 11 Verm. 549; 4 W. C. C. 714; Platt on Cov. 71; 2 Dougl. 689; Lofft, 191; 2 Selw. N. P. 443, 444. To ascertain whether covenants are dependent or not, the intention of the parties is to be sought for and regarded rather than the order or time in which the acts are to be done, or the structure of the instrument, or the arrangements of the covenant. 4 Wash. C. C. 714; 1 Root, 170; 4 Rand. 352; 4 Rawle, 26; 5 Wend. 496; 2 John. 145; 13 Mass. 410; 2 W. & S. 227; 4 W. & S. 527; Willis, 157; 7 T. R. 130; 8 T.R. 366; 5 B. & P. 223; 1 Saund. 320 n.

17. - 2d. Some covenants are mutual conditions to be performed at the same time; these are concurrent covenants. When, in these cases, one party is redy and offers to perform his part, and the other refuses or neglects to perform his, he who is ready and offers, has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. 4 Wash. C. C. 714; Dougl. 698; 2 Selw. N. P. 443; Platt. on Cov. 71.

18.- - 3d. Covenants are independent or mutual, when either party may recover damages from the other for the injury he may have received by a breach of the covenants in his favor, and when it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. 2 Wash. C. C. R. 456; 5 Shepl. 372; 4 Leigh, 21; 3 Watts & S. 300; 13 Mass. 410; 2 Pick. 300; 2 John. 145; 10 John. 203; Minor 21; 2 Bibb, 15; 3 Stew. 361; 1 Fairf. 49; 6 Binn. 166; 2 Marsh. 429; 7 John. 249; 5 Wend. 496; 3 Miss. 329; 2 Har. & J. 467; 4 Har. & J. 285; 2 Marsh. 429; 4 Conn. 3.

19. Covenants are affirmative and negative. 1st. An affirmative covenant is one by whicb the covenantor binds himself that something has already been done or shall be performed hereafter. Such L convenant will not deprive a man of a right lawfully enjoyed by him independently of the covenant; 5 as, if the lessor agreed with the lessee that he shall have thorns for hedges growing upon the land, by assignment of the lessor's bailiff; here no restraint is imposed upon the exercise of that liberty which the law allows to the lessee, and therefore he may take hedge-bote without assignment. Dy. 19 b, pl. 115; 1 Leon, 251.

20. - 2d. A negative covenant is one where the party binds himself that he has not performed and will not perform a certain act; as, that he will not encumber. Such a covenant cannot be said to be performed until it becomes impossible to break it. On this ground the courts are unwilling to construe a covenant of this kind to be a condition precedent. Therefore, where a tailor assigned his trade to the defendant, and covenanted thenceforth to desist from carrying on the said business with any of the customers, and the defendant in consideration of the performance thereof, covenanted to pay him a life annuity of 190, it was held that if the words "in consideration of the performance thereof," should be deemed to amount to a condition precedent, the plaintiff would never obtain his annuity; because as at anytime during his life he might exercise his former trade, until his death it could never be ascertained whether he had performed the covenant or not. 2 Saund. 156; 1 Sid. 464; 1 Mod. 64; 2 Keb. 674. The defendant, however, on a breach by plaintiff, might have his remedy by a crossaction of covenant. There is also a difference between a negative covenant, which is only in affirmance of an affirmative covenant precedent, and a negative covenant which is additional to the affirmative covenant. 1 Sid. 87; 1 Keb. 334, 372. To a covenant of the former class a plea of performance generally is good, but not to the latter; the defendant in that case must plead specially. Id.

21. Covenants, considered with regard to the parties who are to perform them, are joint or several. 1st. A joint covenant is one by which several parties agree to perform or do a thing together. In this case although there are several covenantors there is but one contract, and if the covenant be broken, all the covenantors living, must be sued; as there is not a separate obligation of each, they cannot be sued separately.

22. - 2d. A several covenant is one entered into by one person only. It frequently happens that a number of persons enter into the same contract, and that each binds himself to perform the whole of it; in such case, when the Contract is under seal, the covenantors are severally bound for the performance of it. The terms usually employed to make a several covenant are " severally," or " each of us." In practice, it is common for the parties to bind themselves jointly and severally, and then the covenant is both joint and several. Vide Hamm. on Parties 19; Cruise, Dig. tit. 32, c. 25, s. 18; Bac. Ab. Covenant D.

23. Covenants are executed or executory. 1st. An executed covenant is one which relates to an act already performed. Shep. To. 161.

24. - 2d. An executory covenant is one to be performed at a future time. Shep. To. 161.

25. Covenants are obligatory or declaratory. 1st. An obligatory covenant is one which is binding on the party himself, and shall never be construed to raise a use. 1 Sid. 27; 1 Keb. 334.

26. - 2d. A declaratory covenant is one which serves to limit and direct uses. 1 Sid. 27; 1 Heb. 334.

27. Covenants are principal and auxiliary. 1st. A principal covenant is one which relates directly to the principal matter of the contract entered into between the parties; as, if A covenants to serve B for one year.

28. - 2d. An auxiliary covenant is one, which, not relating directly to the principal matter of the contract between the parties, yet relates to something connected with it; as, if A covenants with B, that C will perform his covenant to serve him for one year. In this case, if the principal covenant is void, the auxiliary is discharged. Anstr. 256.

29. Covenants are legal or illegal. 1st. A legal covenant is one not forbidden by law. Covenants of this kind are always binding on the parties.

30. - 2d. An illegal covenant is one forbidden by law, either expressly or by implication. A covenant entered into, in violation of, the express provision of a statute is absolutely void. 5 Har. & J. 193; 5 N. H. Rep. 96; 6 N. H. Rep. 225; 4 Dall. 298; 6 Binn. 321; 4 S.& R. 159; 1 Binn. 118; 4 Halst. 252. A covenant is also void, if it be of immoral nature; as, a covenant for future illicit intercourse and cohabitation; 3 Monr. 35; 3 Burr. 1568; S. C. 1 Bl. Rep. 517; 1 Esp. 13; 1 B. P. 340; or against public policy; 5 Mass. 385; 7 Greenl. 113; 4 Mass. 370; 5 Halst. 87; 4 Wash. C. C. 297; 11 Wheat. 258; 3 Day, 145; 2 McLean, 464; 7 Watts, 152; 5 Watts & S. 315; 5 How. Miss. 769; Geo. Decis. part 1, 39 in restraint of trade, when the restraiut is general; 21 Wend. 166; 19 Pick. 51; 6 Pick. 206; 7 Cowen, 307; or fraudulent between the parties; 5 Mass. 16; 4 S. & R. 488; 4 Dall. 250; 7 W. & S. 111; or third persons; 3 Day, 450; 14 S. & R. 214; 3 Caines, 213; 15 Pick. 49; 2 John. 286 12 John. 306.

31. Covenants, in the disjunctive or alternative, are those which give the covenantor the choice of doing, or the covenontee the choice of having, performed one of two or more things at his election; as, a covenant to make a lease to Titus, or pay him one hundred dollars on the fourth day of July, as the covenantor, or the covenantee, as the case may be, shall prefer. Platt on Cov. 21.

32. Collateral covenants are such as concern some collateral thing, which does not at all, or not so immediately relate to the thing granted; as, to pay a sum of money in gross, that the lessor shall distrain for rent, on some other land than that which is demised, or the like. Touchs. 161; 4 Burr. 2446; 2 Wils. R. 27; 1 Ves. R. 56. These covenants are also termed covenants in gross. Vide 5 Barn. & Ald. 7, 8; Platt on Cov. 69, 70.

COVENANT NOT TO SUE. This is a covenant entered into by a party who had a cause of action at the time of making it, and by which he agrees not to sue the party liable to such action.

2. Covenants of this nature, are either covenants perpetual not to sue, or covenants not to sue for a limited time; for example, seven years.

3. - 1. Covenants perpetual not to sue. These will be considered with regard to their effect as relates, 1. To the covnantee; 2. To his partners or co-debtors.

4. - 1. A covenant not to sue the covenantee at all, has the effect of a release to him, and may be pleaded as such to avoid a circuity of action. Cro. EIiz. 623; 1 T. R. 446; 8 T. R. 486; 1 Ld. Raym 688; S. C. Holt, 178; 2 Salk. 575; 3 Salk. 298; 12 Mod. 415, 548; 7 Mass. 153, 265; 16 Mass. 24; 17 Mass. 623. And see 11 Serg. & Rawle, 149.

5. - 2. Where the covenantee is jointly and severally bound with another to the covenantor, a covenant not to sue him will be no protection to the other wbo may be sued on his several obligations and such a covenant does not mount to a release to him. 2 Salk. 575; S. C. 12 Mod. 551; 8 T. R. 168; 6 Munf. 6; 1 Com. 139; 4 Greenl. 421; 2 Dana, 107; 17 Mass. 623, 628; 16 Mass. 24; 8 Mass. 480. A covenant not to sue, entered into by only one of several partners, cannot be set up as a release in an action by all the partners. 3 P. & D. 149.

6. - 2. Covenant not to sue for - a limited time. Such a covenant does not operate as a release, nor can it be pleaded as such, but is a covenant only for a breach of which the obliger may bring his action. Carth. 63; 1 Show. 46; Comb 123, 4; 2 Salk. 573; 6 Wend. 471.

COVENANT FOR QUIET ENJOYMENT. A covenant usually contained in a lease, by which the lessor covenants or agrees that the tenant shall quietly enjoy the premises leased. 11 East, 641.

2. Such a covenant is express or implied; express, when it is so mentioned in the deed it is implied, either from the words used, or from the conduct of the lessor. The words "grant" or "demise" are held to amount to an implied covenant for quiet enjoyment, unless afterwards restrained by a qualified express covenant. 1 Chit. Pr. 344.

COVENANT TO STAND SEISED TO USES. A species of conveyance which derives its effect from the statute of uses, and operates without transmutation of possession.

2. By this conveyance, a person seised of lands, covenant's that he will stand seised of them to the use of another. On executing the covenant, the other party becomes seised of the use of the land, according to the terms of the use; and the statute immediately annexes the possession to the use. This conveyance has the same force and effect as a common deed of bargain and sale; the great distinction between them is, that the former can only be made use of among near domestic relations, for it must be founded on the consideration of blood or marriage. 2 Bl. Com. 338; 2 Bouv. Inst. n. 2080; 4 Kent Com 480; Lilly's Reg.h. t.; 1 Vern. by Raithby, 40, n.; Cruise, Dig. tit. 32, c. 10; 11 John. R. 337; 1 John. Cas. 91; 7 Pick. R. 111; 1 Hayw.,R. 251, 259, 271, note; 1 Conn. R. 354; 20 John. R. 85; 4 Mass. R. 135; 4 Hayw. R. 229; 1 Cowen, R. 622; 3 N. H. Rep. 234; 16 John. R. 515; 9 Wend. R. 641; 7 Mass. R. 384.

COVENANT FOR TITLE. An assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey. 11 East, 642. See 4 Dall. Rep. 439.

COVENANTEE. One in whose favor a covenant is made.

COVENANTOR. One who becomes bound to perform a covenant.

2. To become a covenantor a person must be sui juris, and intend, at the time of becoming bound, to covenant to perform some act mentioned in the covenant. He can be discharged from his covenant by performance, or, by the act of the covenantee, as the non-performance of a condition precedent, a release, or a rescission of the contract.

COVENANTS PERFORMED, pleading. In Pennsylvania, the defendant may plead covenants performed to an action of covenant, and upon this plea, upon informal notice to the plaintiff, he may give anything in evidence which he might have pleaded. 4 Dall. 439; 2 Yeates, 107; 15 S. & R. 105. And this evidence, it seems, may be given in the circuit court without notice unless called for. 2 Wash. C. C. R. 456.

COUNT

COUNT

    4.7.17  

COUNT, pleading. This word, derived from the French conte, a narrative, is in our old law books used synonymously with declaration but practice has introduced the following distinction: when the plaintiff's complaint embraces only a single cause of action, and he makes only one statement of it, that statement is called, indifferently, a declaration or count; though the former is the more usual term.

2. But when the suit embraces two or more causes of action, (each of which of course requires a different statement;) or when the plaintiff makes two or more different statements of one and the same cause of action, each several statement is called a count, and all of them, collectively, constitute the declaration.

3. In all cases, however, in which there are two or more counts, whether there is actually but one cause of action or several, each count purports, upon the face of it, to disclose a distinct right of action, unconnected with that stated in any of the other counts.

4. One object proposed, in inserting two or more counts in one declaration, when there is in fact but one cause of action, is, in some cases, to guard against the danger of an insufficient statement of the cause, where a doubt exists as to the legal sufficiency of one or another of two different modes of declaring; but the more usual end proposed in inserting more than one count in such case, is to accommodate the statement to the cause, as far as may be, to the possible state of the proof to be exhibited on trial; or to guard, if possible, against the hazard of the proofs varying materially from the statement of the cause of action; so that if one or more or several counts be not adapted to the evidence, some other of them may be so. Gould on Pl. c. 4, s. 2, 3, 4; Steph. Pl. 279; Doct. Pl. 1 78; 8 Com. Dig. 291; Dane's Ab. Index, h. t.; Bouv. Inst. Index, h. t. In real actions, the declaration is most usually called a count. Steph. Pl. 36, See Common count; Money count.

COURT, Courts...

COURT, Courts...

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COURT, practice. A court is an incorporeal political being, which requires for its existence, the presence of the judges, or a competent number of them, and a clerk or prothonotary, at the time during which, and at the place where it is by law authorized to be held; and the performance of some public act, indicative of a design to perform the functions of a court.

2. In another sense, the judges, clerk, or prothonotary, counsellors and ministerial officers, are said to constitute the court.

3. According to Lord, Coke, a court is a place where justice is judicially administered. Co. Litt. 58, a.

4. The judges, when duly convened, are also called the court. Vide 6 Vin. Ab. 484; Wheat . Dig. 127; Merl. Rep. h. t.; 3 Com. Dig. 300; 8 Id. 386; Dane's Ab. Index, h. t.; Bouv. Inst. Index, h. t.

5. It sometimes happens that the judges composing a court are equally divided on questions discussed before them. It has been decided, that when such is the case on an appeal or writ of error, the judgment or decree is affirmed. 10 Wheat. 66; 11 Id. 59. If it occurs on a motion in arrest of judgment, a judgment is to be entered on the verdict. 2 Dall. Rep. 388. If on a motion for a new trial, the motion is rejected. 6 Wheat. 542. If on a motion to enter judgment on a verdict, the judgment is entered. 6 Binn. 100. In England, if the house of lords be equally divided on a writ of error, the judgment of the court below is affirmed. 1 Arch. Pr. 235. So in Cam. Scacc. 1 Arch. Pr. 240. But in error coram nobis, no judgment can be given if the judges are equally divided, except by consent. 1 Arch. Pr. 246. When the judges are equally divided on the admission of testimony, it cannot be received. But see 3 Yeates, 171. Also, 2 Bin. 173; 3 Bin. 113 4 Bin. 157; 1 Johns. Rep. 118 4 Wash. C. C. Rep. 332, 3. See Division of Opinion.

6. Courts are of various kinds. When considered as to their powers, they are of record and not of record; Bac. Ab. Courts, D; when compared. to each other, they are supreme, superior, and inferior, Id.; when examined as to their original jurisdiction, they are civil or criminal; when viewed as to their territorial jurisdiction, they are central or local; when divided as to their object, they are courts of law, courts of equity, courts martial, admiralty courts, and ecclesiastical courts. They are also courts of original jurisdiction, courts of error, and courts of appeal. Vide Open Court.

7. Courts of record cannot be deprived of their jurisdiction except by express negative words. 9 Serg. & R. 298; 3 Yeates, 479 2 Burr. 1042 1 Wm. Bl. Rep. 285. And such a court is the court of common pleas in Pennsylvania. 6 Serg. & R. 246.

8. Courts of equity are not, in general, courts of record. Their decrees touch the person, not lands. or goods. 3 Caines, 36. Yet, as to personalty, their decrees are equal to a judgment; 2. Madd. Chan. 355; 2 Salk., 507; 1 Ver. 214; 3 Caines, 35; and have preference according to priority. 3 P. Wms. 401 n.; Cas. Temp. Talb. 217; 4 Bro. P. C. 287; 4 Johns. Chan. Cas. 638. They are also conclusive between the parties. 6 Wheat. 109. Assumpsit will lie on a decree of a foreign court of chancery for a sum certain; 1 Campb. Rep. 253, per Lord Kenyon; but not for a sum not ascertained. 3 Caines, 37, (n.) In Pennsylvania, an action at law will lie on a decree of a court of chancery, but the pleas nil debet and nultiel record cannot be pleaded in such an action. 9 Serg. & R. 258.

COURT CHRISTIAN. An ecclesiastical judicature, known in England, so called from its handling matters of an ecclesiastical or religious nature. 2 Inst. 488. Formerly the jurisdiction of these courts was not thus Iimited. The emperor Theodosius promulgated a law that all suits (lites) and forensic controversies should be remitted to the judgment of the church, if either of the litigating parties should require it. Fr. Duaren De Sac. Minist. Eccl. lib. 1, c. 2. This law was renewed and confirmed by Charlemagne.

COURT OF ARCHES , eccl. law. The most ancient consistory court belonging to the archbishop of Canterbury for the trial of spiritual causes. It is so called, because it was anciently held in the church of Saint Mary le bow; which church had that appellation from its steeple, which was raised at the top with stone pillars, in the manner of an arch or bow. Termes de la Ley.

COURT OF ADMIRALTY. A court having jurisdiction of all maritime causes. Vide Admiralty; Courts of the United States; Instance Courts; Prize Court; 2 Chit. Pr. 508 to 538.

COURT OF AUDIENCE, Eng. eccl. law. The name of a court kept by the archbishop in his palace, in which are transacted matters of form only; as confirmation of bishops, elections, consecrations, and the like.

COURT OF COMMON PLEAS. The name of an English court which was established on the breaking up of the aula regis, for the determination of pleas merely civil. It was at first ambulatory, but was afterwards located. This jurisdiction is founded on original write issuing out of chancery, in the cases of common persons. But when an attorney or person belonging to the court, is plaintiff, he sues by writs, of privilege, and is sued by bill, which is in the nature of a petition; both which originate in the common pleas. See Bench; Banc.

2. There are courts in most of the states of the United States which bear the name of common pleas; they have various powers and jurisdictions.

COURT OF CONSCIENCE, Eng. law. The name of a court in London. It has equity jurisdiction in certain cases. The reader is referred to Bac. Ab. Courts in London, 2.

COURT OF CONVOCATION, eccles. law. The name of an English ecclesiastical court. It is composed of every bishop, dean, and archdeacon, a proctor for the chapter, and two proctors for the clergy of each diocese in the province of Canterbury, for the province of York, there are two proctors for each archdeaconry.

2. This assembly meets at the time appointed in the king's writ, and constitute an ecclesiastical parliament. The archbishop and his suffragans, as his peers, are sitting together, and composing one house, called the upper house of convocation the deans, archdeacons, and a proctor for the chapter, and two proctors for the clergy, the lower house. In this house a prolocutor, performing the duty of a president, is elected.

8. The jurisdiction of this tribunal extends to matters of heresy, schisms, and other mere spiritual or ecclesiastical causes. Bac. Ab. Ecclesiastical Courts, A 1.

COURT OF EXCHEQUER, Eng. law. A court of record anciently established for the trial of all matters relating to the revenue of the crown. Bac. Ab. h. t.

COURT OF FACULTIES, Eng. eccl. law. The name of a court which belongs to the archbishop, in which his officer, called magister ad facultates, grants dispensations to marry, to eat flesh on days prohibited, or to ordain a deacon under age, and the like. 4 Inst. 337.

COURT, INSTANCE. One of the branches of the English admiralty is called an instance court. Vide Instance Court.

COURT OF INQUIRY. A court constituted by authority of the articles of war, invested with the power to examine into the nature of any transaction, accusation, or imputation against any officer or soldier; the said court shall consist. of one or more officers, not exceeding three, and a judge advocate, or other suitable person, as a recorder, to reduce the proceedings and evidencee to writing, all of whom shall be sworn to the performance of their duty. Art. 91. Gord. Dig. Laws U. S., art. 3558 to 3560.

COURT OF KING'S BENCH. The name of the supreme court of law in England. Vide King's Bench.

COURT MARTIAL. A court authorized by the articles of war, for the trial of all offenders in the army or navy, for military offences. Article 64, directs that general courts martial may consist of any number of commissioned officers, from five to thirteen, inclusively; but they shall not consist of less than thirteen, where the number can be convened, without manifest injury to the service.

2. The decision of the commanding officer who appoints the court, as to the number that can be convened without injury to the service, is conclusive. 12 Wheat. R. 19. Such a court has not jurisdiction over a citizen of the United States not employed in military service 12 John. R. 257. It has merely a limited jurisdiction, and to render its jurisdiction valid, it must appear to have acted within such jurisdiction. 3 S. & R. 590 11 Pick. R. 442; 19 John. R. 7; 1 Rawle, R. 143.

3. A court martial must have jurisdiction over the subject matter of inquiry, and over the person for a want of these will render its judgment null, and the members of the court and the officers who execute its sentence, trespassers. 3 Cranch, 331. See 5 Wheat. 1; 12 Wheat. 19; 1 Brock. 324. Vide Gord. Dig. Laws U. S., art. 3331 to 3357; 2 Story,. L. U. S. 1000; and also the Treatises of Adye, Delafon, Hough, J. Kennedy, M. V. Kennedy, McArthur, McNaghten, Simmons and Tyler on Courts Martial; and 19 John. R, 7; 12 John. R. 257; 20 John. R. 343; 5 Wheat. R. 1; 1 U. S. Dig. tit. Courts, V.

COURT OF PECULIARS, Eng. eccl. law. The name of a court, which is a branch of, and annexed to, the. court of arches.

2. It has jurisdiction over all those parishes dispersed through the province of Canterbury, in the midst of other dioceses. In the other peculiars, the jurisdiction is exercised by commissaries. 1 Phill. R. 202, n.

3. There are three sorts of peculiars 1. Royal peculiars. 3 Phill. R. 245. 2. The second sort are those in which the bishop has no concurrent jurisdiction, and are exempt from his visitation. 3. The third are subject to the bishop's visitation, and liable to his superintendence and jurisdiction. 3 Phill. R. 245; Skinn. R. 589.

COURT PREROGATIVE. Vide Prerogative Court.

COURT, PRIZE. One of the branches of the English admiralty, is called a prize court. Vide Prize Court.

COURT OF RECORD. At common law, any jurisdiction which has the power to fine and imprison, is a court of record. Salk. 200; Bac. Ab. Fines and Amercements, A. And courts which do not possess this power are not courts of record. See Court.

2. The act of congress, to establish an uniform rule of naturalization, &c., approved April 14, 1802, enacts, that for the purpose of admitting aliens to become citizens, that every court of record in any individual state, having common law jurisdiction and a seal, and a clerk or prothonotary, shall be considered as a district court within. the meaning of this act.

COURT, SUPREME. Supreme court is the name of a court having jurisdiction over all other courts Vide Courts of the United States.

COURTS OF THE UNITED STATES. The judiciary of the United States is established by virtue of the following provisions, contained in the third article of the constitution, namely:

2. - "1. The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.

3.- "2. (I.) The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party to controversies between two or more states, between a state and a citizen of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

4. - " (2.) In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as congress shall make.

5. - " (3.) The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crime shall have been committed; but when not committed within any state, the trial shall be at such place or places as congress may by law have directed."

6. By the amendments to the constitution, the following alteration has been made: "Art. 11. The judicial power of the United States shall not be construed to extend to any suit in law or equity, commence or prosecuted against one of the United States by citizens of another state, or citizens or subjects of any foreign state."

7. This subject will be considered by taking a view of, 1. The central courts; an 2. The local courts. Art. 1 The Central Courts of the United States.

8. The central courts of the United States are, the senate, for the trial of impeachments, and the supreme court. The territorial jurisdiction of these courts extends over the whole country.

1. Of the Senate of the United States.

9.- 1. The constitution of the United States, art. 1, 3, provides that the senate shall have the sole power to try all impeachments. When sitting for that purpose, the senate shall be on oath or affirmation. When the president of the United States is tried, the chief justice shall preside and no person shall be convicted without the concurrence of two-thirds of the members present.

10. lt will be proper here to consider, 1. The organization of this extraordinary court; and, 2. Its jurisdiction.

11. - 1. Its organization differs according as it has or, has not the president of the United States to try. For the trial of all impeachment of the president, the preseuce of the chief justice is required. There must also be a sufficient number of senators present to form a quorum. For the trial of all other impeachments, it is sufficient if a quorum be present.

12. - 2. The jurisdiction of the senate, as a court for the trial of impeachments, extends to the following officers, namely; the president, vice-president, and all civil officers of the United States, art. 2, 4, when they shall have been guilty of treason, bribery, and other high crimes and misdemeanors. Id. The constitution defines treason, art.

3, - 3, but recourse must be had to the common law for a definition of bribery. Not having particularly mentioned what is to be understood by " other high crimes and misdemeanors," resort, it is presumed, must be had to parliamentary practice. and the common law, in order to ascertain what they are. Story, Const. 795.

2. Of the Supreme Court.

13. The constitution of the United States directs that the judicial power of the United States shall be vested in one supreme court; and in such inferior courts as congress may, from time to time, ordain and establish. It will be proper to consider, 1st. Its organization; 2dly. Its Jurisdiction.

14. - 1. Of the organization of the supreme court. Under this head will be considered, l. The appointment of the judges. 2. The number necessary to form a quorum. 3. The time and place of holding the court.

15. - 1. The judges of the supreme court are appointed by the president, by and with the consent of the senate, Const. art. 2, 2. They hold their office during good behaviour, and receive for their services a compensation, which shall not be diminished during their continuance in office. Const. art" 3, 1. They consist of a chief justice and eight associate justices. Act of March 3, 1837, 1.

16. - 2. Five judges are required to make a quorum, Act of March 3, 1837, 1; but by the act of the 21st of January, 1829, the judges attending on the day appointed for holding a session of the court, although fewer than a quorum, at that time, four have authority to adjourn the court from day to day, for twenty days, after the time appointed for the commencement, of said session, unless a quorum shall sooner attend; and the business shall not be continued over till the next session of the court, until the expiration of the said twenty days. By the same act, if, after the judges shall have assembled, on any day less than a quorum shall assemble, the judge or judges. so assembling shall have authority to adjourn the said court, from day to day, until a quorum shall attend, and, when expedient and proper, may adjourn the same without day.

17 - 3. The supreme court is holden at the city of Washington. Act of April 29, 1 802. The session commences on the second Monday of January, in each and every year. Act of May, 4, 1826. The first Monday of August in each year is appointed as a return day. Act of April 29, 1802. In case of a contagious sickness, the chief justice or his senior associate may direct in what other place the court shall be held, and the court shall accordingly be ad to such place. Act of February 25, 1799, 7. The officers of the court are a clerk, who is appointed by the court, a marshal, appointed by the president, by and with the advice and the consent of the senate, crier, and other inferior officers.

18. - 2. Of the jurisdiction of the supreme. court. The jurisdiction of the supreme court is either civil or criminal.

19. - 1. The civil jurisdiction is either original or appellate.

20. - (1.) The provisions of the constitution that relate to the original jurisdiction of the supreme court, are contained in the articles of the constitution already cited.

21. By the act of September 24th, 1789, 13, the supreme court shall have exclusive jurisdiction of all controversies of civil nature where a state is a party, except "between a state and it's citizens; and except also, between a state and citizens of other states or aliens, in which latter case it shall have original, but not exclusive jurisdiction. And shall have, exclusively, all such jurisdiction of suits, or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently with the law of nations. And original, but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul shall be a party. And the trial of issues in fact, in the supreme court, in all actions at law, against citizens of the United States, shall be by jury.

22. In consequence of the decision of the case of Chisholm v. Georgia, where it was held that assumpsit might be maintained against a state by a citizen of a different state, the llth article of the amendments of the constitution above quoted, was adopted.

23. In those cases in which original jurisdiction is given to the supreme court, the judicial power of the United States cannot be exercised in its appellate form. With the exception of those cases in which original jurisdiction is given to this court, there is none to which the judicial power extends, from which the original jurisdiction of the inferior courts is excluded by the constitution.

24. The constitution establishes the supreme court and defines its jurisdiction. It enumerates the cases in which its jurisdiction is original and exclusive, and defines that which is appellate. See ll Wheat. 467.

25. Congress cannot vest in the supreme court original jurisdiction in a case in which the constitution has clearly not given that court original jurisdiction; and affirmative words in the constitution, declaring in what cases the supreme court shall have original jurisdiction, must be construed negatively as to all other cases, or else the clause would be inoperative and useless. 1 Cranch, 137. See 5 Pet. 15 Pet. 284; 12 Pet. 657; 9 Wheat. 738 6 Wheat. 264.

26. - 2. The supreme court exercises appellate jurisdiction in the following different modes:

(1.) By writ of error from the final judgments of the circuit courts; of the district courts, exercising the powers of circuit courts; and of the superior, courts of the territories, exercising the powers of circuit, courts, in certain cases. A writ of error does not lie to the supreme court to reverse the judgment of a circuit court, in a civil action by writ of error carried from the district court to the circuit court. The United States v. Goodwin, 7 Cranch, 108. But now, by the act of July 4, 1840, c. 20, 3, it is enacted that writs of error shall lie to the supreme court from all judgments of a circuit court, in cases brought there by writs of error from the district court, in like manner and under the same regulations, as are provided by law for writs of error for judgments rendered upon suits originally brought in the circuit court.

27. - (2.) The supreme court has jurisdiction by appeals from the final decrees of the circuit courts; of the district courts exercising the powers of circuit courts; and of the superior courts of territories, exercising the powers of circuit courts in certain cases. See 8 Cranch, 251 6 Wheat. 448.

28. - (3.) The supreme court has also jurisdiction by writ of error from the, final judgments and decrees of the highest courts of law or equity in a state, in the cases provided for by the twenty-fifth section of the act of September 24th, 1789, which enacts that a final judgment or decree, in any suit in the highest court of law, or equity of a, state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed in the supreme court of the United States, upon a writ of error, the citation being signed by the chief-justice or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the supreme court of the United States, in the same manner, and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a circuit court; and the proceeding upon the reversal shall also be the same, except that the supreme court, instead of remanding the cause for a final decision as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal, in ny such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity, or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute. See 5 How. S. C. R. 20, 55

29. The appellate jurisdiction of the supreme court extends to all cases pending in the state courts and the twenty-fifth section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases by writ of error, is supported by the letter and spirit of the constitution. 1 Wheat. 304.

30. When the construction or validity of a treaty of the United States is drawn in question in the state courts, and the decision is against its validity, or the title specially set up by either party under the treaty, the supreme court has jurisdiction to ascertain that title, and to determine its legal meaning. 1 Wheat. 358; 5 Cranch, 344; 9 Wheat. 738; 1 Pet. 94; 9 Pet. 224; 10 Pet. 368; 6 Pet. 515.

31. The supreme court has jurisdiction although one of the parties is a state, and the other a citizen of that state. 6 Wheat. 264.

32. Under the twenty-fifth section of the judiciary act, when any clause of the constitution or any statute of the United States is drawn in question, the decision must be against the title or right set up by the party under such clause or statute; otherwise the supreme court has no appellate jurisdiction of the case. 12 Wheat. 117, 129 6 Wheat. 598 3 Cranch, 268 4 Wheat. 311; 7 Wheat. 164; 2 Peters, 449; 2 Pet. 241; 11 Pet. 167; 1 Pet. 655; 6 Pet. 41; 5 Pet. 248.

33. When the judgment of the highest court of law of a state, decides in favor of the validity of a statute of a state drawn in question, on the ground of its being repugnant to the constitution of the United States, it is not a final judgment within the twenty-fifth section of the judiciary act if the suit has been remanded to the inferior court, where it originated, for further proceedings, not inconsistent with the judgment of the highest court. 12 Wheat. 135.

34. The words " matters in dispute" in the act of congress, which is to regulate the jurisdiction of the supreme court, seem appropriated to civil causes. 3 Cranch, 159. As to the manner of ascertaining the matter in dispute, see 4 Cranch, 216; 4 Dall. 22; 3 Pet. 33; 3 Dall. 365; 2 Pet. 243; 7 Pet. 634; 5 Cranch, 13; 4 Cranch, 316.

35. - (4.) The supreme court has juris- diction by certificate from the circuit court, that the opinions of the judges are opposed on points stated, as provided for by the sixth section of the act of April 29th, 1802. The provisions of the act extend to criminal as well as to civil cases. See 2 Cranch, 33; 10 Wheat. 20 2 Dall. 385; 4 Hall's Law Journ. 462; 5 Wheat. 434; 6 Wheat. 542; 12 Wheat. 212; 7 Cranch, 279.

36. - (5.) It has also jurisdiction by mandamus, prohibition, habeas corpus, certiorari, and procedendo.

37. - 2. The criminal jurisdiction of the supreme court is derived from the constitution and the act of September 24th, 1789, s. 13, which gives the supreme court exclusively, all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, as a court of law can have or exercise consistently with the law of nations. But it must be remembered that the act of April 30tb, 1790, sections 25 and 26, declares void any writ or process whereby the person of any ambassador, or other public minister, their domestics or domestic servants, may be arrested or imprisoned. Art. 2. The local courts.

38. The local courts of the United States are, circuit courts, district courts, and territorial courts., 1. The circuit courts.

39. In treating of circuit courts, it will be convenient to consider, 1st. Their organization; and, 2d. Their jurisdiction.

40. - 1. Of the organization of the circuit courts. The circuit courts are the principal inferior courts established by congress. There are nine circuit courts, composed of the districts which follow, to wit:

41. - 1. The first circuit consists of the districts of New Hampshire, Massachusetts, Rhode Island, and Maine. It consists of a judge of the supreme court and the district judge of the district where such court is holden. See Acts April 29, 1802 March 26, 1812 and March 30, 1820.

42. - 2 The second circuit is composed of the districts of Vermont, Connecticut and New York. Act of March 3, 183 7.

43. - 3. The third circuit consists of the districts of New Jersey, and eastern and western Pennsylvania;. Act of March 3, 1837.

44. - 4. The fourth circuit is composed of Maryland, Delaware, and Virginia. Act of Aug. 16, 1842.

45. - 5. The fifth circuit is composed of Alabama and Louisiana. Act of August 16, 1842.

46.- 6. The sixth circuit consist of the districts of North Carolina, South Carolina, and Georgia. Act of Aug. 16, 1842.

47. - 7. The seventh circuit is composed of Ohio, Indiana, Illinois, and Michigan. Act of March 3, 1837, 1.

48.-8. The eighth circuit includes Kentucky, East and West Tennessee, and Missouri. Act of March 3, 1837, 1. By the Act of April 14, 1842, ch. 20, 1, it is enacted that the district court of the United States at Jackson, in the district of West Tennessee, shall in future be attached to, and form a part of the eighth judicial district of the United States, with all the power and jurisdiction of the circuit court held at Nashville, in the middle district of Tennessee.

49. - 9. The ninth circuit is composed of the districts of Alabama, the eastern district of Louisiana, the district of Mississippi, and the district of Arkansas. Act of March 3, 1837, 1.

50. In several districts of the United States, owing to their remoteness from any justice of the supreme court, there are no circuit courts held. But in these, the district court there is authorized to act as a circuit court, except so far as relates to writs of error or appeals from judgments or decrees in such district court.

51. The Act of March 3, 1837, provides, " That so much of any act or acts of congress as vests in the district courts of the United States for the districts of Indiana, Illinois, Missouri, Arkansas, the eastern district of Louisiana, the district of Mississippi, the northern district of New York, the western district of Virginia, and the western district of Pennsylvania, and the district of Alabama, or either of them, the power and jurisdiction of circuit courts, be, and the same is hereby, repealed; and there shall hereafter be circuit courts held for said districts by the chief or associate justices of the supreme court, assigned or allotted to the circuit to which such districts may respectively belong, and the district judges of such districts, severally and respectively, either of whom shall constitute a quorum; which circuit courts, and the judges thereof, shall have like powers, and exercise like jurisdiction as other circuit courts and the judges thereof; and the said district courts, and the judges thereof, shall have like powers, and exercise like jurisdiction, as the district courts, and the judges thereof in the other circuits. From all judgments and decrees, rendered in the district courts of the United States for the western district of Louisiana, writs of error and appeals shall lie to the circuit court in the other district in said state, in the same manner as from decrees and judgments rendered in. the districts within which a circuit court is provided by this act."

52. In all cases where the day of meeting of the circuit court is fixed for a particular day of the mouth, if that day happen on Sunday, then, by the Act of 29th April, 1802, and other acts, the court shall be held the next day.

53. The Act of April 29, 1802, 5, further provides, that on every appointment which shall be hereafter made, of a chief justice, or associate justice, the chief justice and associate justices shall allot among themselves the aforesaid circuits, as they shall think fit, and shall enter such allotment on record.

54. The Act of March 3, 1837, 4, directs that the allotment of the chief justice and the associate justices of the said supreme court to the several circuits shall be made as heretofore.

55. And by the Act of August 16, 1842, the justices of the supreme court of the United States, or a majority of the are required to allot the several districts among the justices of the said court.

56. And in case no such allotment shall be made by them, at their sessions next succeeding such appointment, and also, after the appointment of any judge as aforesaid, and before any other allotment shall have been made, it shall and may be lawful for the president of the United States, to make such allotment as he shall deem proper which allotment, in either case, shall be binding until another allotment shall be made. And the circuit courts constituted by this act shall have all the power, authority and jurisdiction, within the several districts of their respective circuits, that before the 13th February, 1801, belonged to the circuit courts of the United States.

57. The justices of the supreme court of the United States, and the district judge of the district where the circuit is holden, compose the judges of the circuit court. The district judge may alone hold a circuit court, though no judge of the supreme court may be allotted to that circuit. Pollard v. Dwight, 4 Cranch, 421.

58. The Act of September 24th, 1789, 6, provides, that a circuit court may be adjourned from day to day, by one of its judges, or if none are present, by the marshal of the district, until a quorum be convened. By the Act of May 19, 1794, a circuit court in any district, when it shall happen that no judge of the supreme court attends within four days after the time appointed by law, for the commencement of the sessions, may be adjourned to the next stated term, by the judge of the district, or, in case of his absence also, by the marshal of the district. But by the 4th section of the Act of April 29, 1802, where only one of the judges thereby directed to hold the circuit courts shall attend, such circuit court may be held by the judge so attending.

59. By the Act of March 2, 1809, certain duties are imposed oil the justices of the supreme court, in case of the disability of a district judge within their respective circuits to hold a district court. Sect. 2, enacts, that in case of the disability of the district judge of either of the district courts of the United States, to hold a district court, and to perform the duties of his office, and satisfactory evidence thereof being shown to the justice of the supreme court allotted to that circuit, in which such district court ought, by law to be holden, and on application of the district attorney, or marshal of such district, in writing, the said justice of the supreme court shall, thereupon, issue his order in the nature of a certiorari) directed to the clerk of such district court, requiring him forthwith to certify unto the next circuit court, to be holden, in said district, all actions, suits, pauses, pleas, or processes, civil or criminal, of what nature or land soever, that may be depending in such district court, and undetermined, with all the proceedings thereon, and all files, and papers relating, thereto, which said order shall be immediately published in one or more newspapers, printed in said district, and at least thirty days before the session of such circuit court, and shall be deemed a sufficient notification to all coucerned. And the said circuit court shall, thereupon, have the same cognizance of all such actions, suits, causes, pleas, or processes, civil or criminal, of what nature or kind soever, and in the like manner, as the district court of said district by law might have, or the circuit court, had the same been originally commenced therein, and shall proceed to hear and deterime the same accordingly; and the said justice of the supreme court, during the continuance of such disability, shall, moreover, be invested with, and exercise all and singular the, powers and authority, vested by law in the judge of the district court in said district. And all bonds and recognizances taken for, orreturnable to, such district court, shall be construed and taken to be the circuit court to be holden thereafter, in pursuance of this act, and shall have the same force and effect in such court as they would have had in the district court to which they were taken. Provided, that nothing in this act contained shall be so construed, as to require of the judge of the supreme court, within whose circuit such district may lie, to hold any special court, or court of admiralty, at any other time than the legal time for holding the circuit court of the United States in and for such district.

60. Sect. 2, provides, that the clerk of such district shall, during the continuance of the disability of the district judge, continue to certify, as aforesaid, all suits or actions, of what nature or kind soever, which may thereafter be brought to such district court, and the same transmit to the circuit court next thereafter to be holden in the same district. And the said circuit court shall have cognizance of the same, in like manner as is hereinbefore provided in this act, and shall proceed to bear and determine the same. Provided, nevertheless, that when the disability of the district judge shall cease, or be removed, all suits or actions then pending and undetermined in the circuit court, in which, by law, the district courts have an exclusive original cognizance, shall be remanded, and the clerk of the said circuit court shall transmit the same, pursuant to the order of the said court, with all matters and things relating thereto, to the district Court next thereafter to be holden in said district, and the same proceedings shall be had therein, as would have been, had the same originated, or been continued, in the said district court.

61. Sect. 3, enacts, that in case of the district judge in any district being unable to discharge his duties as aforesaid, the district clerk of such district shall be authorized and empowered, by leave or order of the circuit judge of the circuit in which such district is included, to take, during such disability of the district judge, all examinations, and depositions of witnesses, and to make all necessary rules and orders, preparatory to the final hearing of all causes of admiralty and maritime jurisdiction. See 1 Gall. 337 1 Cranch, 309 note to Hayburn's case, 3 Dall. 410.

62. If the disability of the district judge terminate in his death, the circuit court must remand the certified causes to the district court. Ex parte United States, 1 Gall. 337.

63. By the first section of the Act of March 3, 1821, in all suits and actions in any district court of the United States, in which it shall appear that the judge of such court is any ways concerned in interest, or has been of counsel for either party, or is so related to, or connected with, either party, as to render it improper for him, in his opinion, to sit on the trial of such suit or action, it shall be the duty of such judge, on application of either party, to cause the fact to be entered on the records of the court, and also an order that an authenticated copy the thereof, with all the proceedings in such suit or action, shall be forthwith certified to the next circuit court of the district, and if there be no circuit court in such district, to the next circuit court in the state, and if there be no circuit court in such state, to the most convenient circuit court in an adjacent state; which circuit court shall, upon such record being filed with the clerk thereof, take cognizance thereof, in like manner as if such suit or action had been originally commenced in that court, and shall proceed to bear and determine the same accordingly, and the jurisdiction of such circuit court shall extend to all such cases to be removed, as were cognizable in the district court from which the same was removed.

64. And the Act of February 28, 1839, 8, enacts, "That in all suits and actions, in any circuit court of the United States, in which it shall appear that both the judges thereof, or the judge thereof, who is solely competent by law to try the same, shall be any ways concerned in interest therein, or shall have been of counsel for either party, or is, or are so related to, or connected with, either party as to render it improper for him or them, in his or their opinion, to sit in the trial of such suit or action, it shall be the duty of such judge, or judges, on application of either party, to cause the fact to be entered on the records of the court; and, also, to make an order that an authenticated copy thereof, with all the proceedings in such suit or action, shall be certified to the most couvenient circuit court in the next adjacent state, or in the next adjacent circuit; which circuit court shall, upon such record and order being filed with the clerk thereof, take cognizance thereof in the same manner as if such suit or action had been rightfully and originally commenced therein, and shall proceed to hear and determine the same accordingly; and the proper process for the due execution of the judgment or decree rendered therein, shall run into, and may be executed in, the district where such judgment or decree was rendered; and, also, into the district from which such suit or action was removed."

65. The judges of the supreme court are not appointed as circuit court judges, or, in other words, have no distinct commission for that purpose: but practice and acquiescence under it, for many years, were held to afford an irresistible argument against this objection to their authority to act, when made in the year, 1803, and to have fixed the construction of the judicial system. The court deemed the contemporary exposition to be of the most forcible nature, and considered the question at rest, and not to be disturbed then. Stuart v. Laird, 1 Cranch, 308. If a vacancy exist by the death of the justice of the supreme court to whom the district was allotted, the district judge may, under the act of congress, discharge the official duties, (Pollard v. Dwight, 4 Cranch, 428. See the fifth section of the Act of April 29, 1802,) except that he cannot sit upon a writ of error from a decision in the district court. United States v. Lancaster, 5 Wheat. 434.

66. It is enacted, by the Act of Februrary 28, 1839, 2, that all the circuit courts of the United States shall have the appointment of their own clerks; and in case of disagreement between the judges, the appointment shall be made by the presiding judge of the court.

67. The marshal of the district is an officer of the court, and the clerk of the district court is also clerk of the circuit court in such district. Act of September 24, 1789, 7.

68. In the District of Columbia, there is a circuit court established by particular acts of congress, composed of a chief justice and two associates. See Act. of February 27, 1801; 12 Pet. 524; 7 Pet. 203; 7 Wheat. R. 534; 3 Cranch, 159; 8 Cranch, 251; 6 Cranch 233. 2. Of the Jurisdiction of the Circuit Courts.

69. The jurisdiction of the circuit courts is either civil or criminal. (1.) Civil Jurisdiction. The civil jurisdiction is either at law or in equity. Their civil jurisdiction at law is, 1st. Original. 2d. By removal of actions from the state courts. 3d. By writ of mandamus. 4tb. By appeal.

70. - 1st. The original jurisdiction of the circuit courts at law, may be considered, first, as to the matter in controversy second, with regard to the parties litigant. (1.) The Matter in Dispute.

71. By the Act of September 24, 1789, 11, to give jurisdiction to the circuit court, the matter in dispute must exceed $500. In actions to recover damages for torts, the sum laid in the declaration is the criterion as to the matter in dispute. 3 Dall. 358. In an action of covenant on an instrument under seal, containing a penalty less than $500, the court has jurisdiction if the declaration demand more than $500. 1 Wash. C. C. R. 1. In ejectment, the value of the land should appear in the declaration; 4 Wash. C. C. R. 624; 8 Cranch, 220; 1 Pet. 73; but though the jury do not find the value of the land in dispute, yet if evidence be given on the trial, that the value exceeds $500, it is sufficient to fix the jurisdiction; or the court may ascertain its value by affidavits. Pet. C. C. R. 73.

72. If the matter in dispute arise out of a local injury, for which a local action must be brought, in order to give the circuit court jurisdiction, it must be brought in the district where the lands lie. 4 Hall's Law Journal, 78.

73. By various acts of congress, jurisdiction is given to the circuit courts in cases where actions are brought to recover damages for the violation of patent and Copyrights, without fixing any amount as the limit. See Acts of April 17, 1800, 4; Feb. 15, 1819; 7 Johns. 144; 9 Johns. 507.

74. The circuit courts have jurisdiction in cases arising under the patent laws. By the Act of July 4, 1836, 17, it is enacted, " That all actions, suits, controversies, and cases arising under any law of the United States, granting or confirming to inventors the exclusive right to their inventions or discoveries, shall be originally cognizable, as well in equity as at law, by the circuit courts of the United States, or any district court having the powers and jurisdiction of a circuit court; which courts shall have power, upon bill in equity filed by any party aggrieved, in any such case, to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of any inventor, as secured to him by any law of the United States, on such terms and conditions as said courts may deem reasonable. Provided, however, That from all judgments and decrees, from any such court rendered in. the premises, a writ of error or appeal, as the case may require, shall lie to the supreme court of the United States, in the same manner and under the same circumstances as is now provided by law in other judgments and decrees of circuit courts, and in all other cases in which the court shall deem it reasonable to allow the game."

75. In general, the circuit court has no original jurisdiction of suits for penalties and forfeitures arising under the laws of the United States, nor in admiralty cases. 2 Dall. 365 4 Dall. 342; Bee, 19. (2.) The character of the parties.

76. Under this head will be considered 1. The United States. 2. Citizens of difrerent states. 3. Suits where an alien is a party. 4. When an assignee is plaintiff. 5. Defendant must be an inhabitant of the circuit. (i.) The United States.

77. The United States may sue on all contracts in the circuit courts where the sum in controversy exceeds, besides costs, the sum of $500 but, in cases of penalties, the action must be commenced in the district court, unless the law gives express jurisdiction to the circuit courts. 4 Dall. 342. Under the Act of March 3, 1815, 4, the circuit court has jurisdiction concurrently with the district court of all suits at common law where any officer of the United States sues under the authority of an act of congress; as where the post-master general sues under an act of congress for debts or balances due to the general post-office. 12 Wheat. 136. See 2 Pet. 447; 1 Pet. 318.

78. The circuit court has jurisdiction on a bill in equity filed b the United States against the debtor of their debtor, they claiming priority under the statute of March 2, 1798, c. 28, 65, though the law of the state where the suit is brought permits a creditor to proceed against the debtor of his debtor by a peculiar process at law. 4 Wheat. 108. (ii.) Suits between citizens of different states.

79. The Act of September 24, 1789, 11, gives jurisdiction to the circuit court in suits of civil nature when the matter in dispute is of a certain amount, between a citizen of the state where the suit is brought, and a citizen of another state; one of the parties must therefore be a citizen of the state where the such is brought. See 4 Wash. C. C. R. 84; Pet. C. C. R. 431; 1 Sumn. 581; 1 Mason, 520; 5 Cranch, 288; 3 Mason, 185; 8 Wheat.'699; 2 Mason, 472; 5 Cranch, 57; Id. 51; 6 Wheat. 450; 1 Pet. 238; 4 Wash. C. C. R. 482, Id. 595.

80. Under this section the division of a state into two or more districts does not affect the jurisdiction of the circuit court, on account of citizenship. The residence of a party in a different district of a state from that in which the suit is brought, does not exempt him from the jurisdiction of the court; if he is found in the district where he is sued he is not within the prohibition of this section. 11 Pet. 25. A territory is not a state for the purpose of giving jurisdiction, and, therefore, a citizen of a territory cannot sue the citizen of a State in the circuit court. 1 Wheat. 91. (iii.) Suits where on alien is a party.

81. The Act of September 24, 1780, 11, gives the circuit court cognizance of all suits of a civil nature where an alien is a party; but these general words; must be restricted by the provision in the constitution which gives jurisdiction in controversies between a state, or the citizens of a state, and foreign states, citizens or subjects; and the statute cannot extend the jurisdiction beyond the limits of the constitution. 4 Dall. 11; 5 Cranch, 308. When both parties are aliens, the circuit court has no jurisdiction. 4 Cranch, 46; 4 Dall. 11. An alien who holds lands under a special law of the state in which he is resident, may maintain an action in relation to those lands, in the circuit court. 1 Baldw. 216. (iv.) When an assignee is the plaintiff.

82. The court has no jurisdiction unless a suit might have been prosecuted in such court to recover on the contract assigned, if no assignment had been made, except in cases of bills of exchange. Act of September 24, 1789, 11; see 2 Pet. 319; 1 Mason, 243; 6 Wheat. 146; 11 Pet. 83; 9 Wheat. 537; 6 Cranch, 332; 4 Wash. C. C. R. 349; 4 Mason, 435; 12 Pet. 164; 2 Mason, 252. It is said that this section of the act of congress has no application to the conveyance of lands from a citizen of one state to a citizen of another. The grantee in such, case may maintain his action in the circuit court, when otherwise properly qualified, to try the title to such lands. 2 Sumn. 252. (V.) The defendant must be an inhabitant of, or found in the circuit.

83. The circuit court has no jurisdiction of an action against a defendant unless he be an inhabitant of the district in which such court is located, or found therein, at the time of serving the writ. 3 Wash. C. C. R. 456. A citizen of one state may be sued in another, it the process be served upon him in the latter; but in such cases) the plaintiff must be a citizen of the latter state, or an alien. 1 Pet. C. C. R. 431. 2d. Removal of actions from the state court's.

84. The, Act of September 24, 1789, gives, in certain cases, the right of removing a suit instituted in a state court to the circuit court of the district. It is enacted by that law, that if a suit be commenced in any state court against an alien, or by a citizen of the state in which the suit is brought, against a citizen of another state, and the matter in dispute exceeds the aforesaid sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, and the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial, into the next circuit court, to be held in the district where the suit is pending, and offer good and sufficient security for his entering in such court, on the first day of its session, copies of the said process against bim, and also for his then appearing and entering special bail in the cause, if special bail was originally required therein, it shall then be the duty of the state court to accept the surety, and proceed no further in the cause. And any bail that may have been originally taken shall be discharged. And the said copies being entered as aforesaid in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process. And any attachment of the goods or estate of the defendant, by the original process, shall hold the goods or estate so attached, to answer the final judgment, in the same manner as by the laws of such state they would have been holden to answer final judgment, had it been rendered by the circuit court in which the suit commenced. Vide Act of September 24, 1789, 12; 4 Dall. 11; 5 Cranch, 303; 4 Johns. R. 493; 1 Pet. R. 220; 2 Yeates, R. 275; 4 W. C. C. R. 286, 344.

85. By the Constitution, art. 3, 2, 1, the judicial power shall extend to controversies between citizens of the same state, claiming lands under grants of different states.

86. By a clause of the 12th section of the Act of September 24th, 1789, it is enacted, that, if in any action conmmenced in a state court, the title of land be concerned, and the parties are citizens of the same state, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, shall state to the court, and make affidavit, if it require it, that he claims, and shall rely upon a right or title to the land, under grant from a state, other than that in which the suit is pending, and produce the original grant, or an exemplification of it, except where the loss of records shall put it out of his power, and shall move that the adverse party inform the court, whether he claims a right of title to the land under a grant from the state in which the suit is pending; the said adverse party shall give such information, otherwise not be allowed to plead such grant, or give it in evidence upon the trial; and if he informs that he does claim under any such grant, the party claiming under the grant first mentioned, may then, on motion, remove the cause for trial, to the next circuit court to be holden in such district. But if he is the defendant, he shall do it under the same regulations, as in the before mentioned case of the removal of a cause into such court by an alien. And neither party removing the cause shall be allowed to plead, or give evidence of, any other title than that by him stated as aforesaid, as the ground of his claim. See 9 Cranch, 292 2 Wheat. R. 378.

87. Application for removal must be made during the term at which the defendant enters his appearance. 1 J. J. Marsh. 232. If a state court agree to consider a petition to remove the cause as filed of the preceding term, yet if the circuit court see by the record, that it was not filed till a subsequent term, they will not permit the cause to be docketed. Pet. C.. C. R. 44 Paine, 410 but see 2 Penning. 625.

88. In chancery, when the defendant wishes to remove the suit, he must file his petition when he enters his appearance; 4 Johns. Ch. 94; and in an action in a court of law, at the time of putting in special bail. 12 Johns. 153. And if an alien file his petition when he filed special bail, he is in time, though the bail be excepted to. 1 Caines, 248; Coleman, 58. A defendant in ejectment may file his petition. when he is let in to defend. 4 Johns. 493. See Pet. C. C. R. 220; 2 Wash. C. C. R. 463; 2 Yeates, 275, 352; 3 Dall. 467; 4 Wash. C. C. R. 286; 2 Root 444; 5 John. Ch. R. 300 3 Harn. 48; 4 Wash. C. C. R. 84. 3d. Remedy by Mandamus.

89. The power of the circuit Court to issue a mandamus, is confined, exclusively, to cases in which it may be necessary for the exercise of a jurisdiction already existing; as, for instance, if the court below refuse to proceed to judgment, then a mandamus in the nature of a procedendo may issue. 7 Cranch, 504; 6 Wheat. R. 598. After the state court had refused to permit the removal of a cause on petition, the circuit court issued a mandamus to transfer the cause.

4th. Appellate Jurisdiction.

90. The appellate jurisdiction is exercised by means of, 1. Writs of error. 2 Appeals from the district courts in admiralty and maritime jurisdiction. 3. Certiorari. 4. Procedendo.

91. - [l.] This court has jurisdiction to issue writs of error to the district court, on judgments of that court in civil cases at common law.

92. The 11th section of the Act of September 24, 1789, provides, that the circuit courts shall also have appellate jurisdiction from the district courts, under the regulations and restrictions thereinafter provided.

93. By the 22d section, final decrees and judgments in civil actions in a district court, where the matter in dispute exceeds the, sum or value of fifty dollars, exclusive of costs, may be reexamined, and reversed or affirmed in a circuit court holden in the same district, upon a writ of error, whereto shall be annexed and returned therewith at the day and place therein mentioned, an authenticated transcript of the record and assignment of errors, and prayer for reversal, with a citation to the adverse party, signed by the judge of such district court, or a justice of the supreme court, the adverse party having at least twenty days notice. But there shall be no reversal on such writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact. And writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of; or, in case the person entitled to such writ of error be an infant, non compos mentis, or imprisoned, then within five years, as aforesaid, exclusive of the time of such disability. And every justice or judge signing a citation or any writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs, if he fail to make his plea good.

94. The district judge cannot sit in the circuit court on a writ of error to the district court. 5 Wheat. R. 434.

95. It is observed above, that writs of error may be issued to the district court in civil cases at common law, but a writ of error does not lie from a circuit to a district court in an admiralty or maritime cause. 1 Gall. R. 5..

96. - [2.] Appeals from the district to the circuit court take place generally in civil causes of admiralty or maritime jurisdiction.

97. By the Act of March 3, 1803, 2, it is enacted, that from all final judgments or decrees in any of the district courts of the United States, an appeal where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars, shall be allowed to the district court next to be holden in the district where such final judgment or judgments, decree or decrees shall be rendered: and the circuit courts are thereby authorized and required, to hear and determine such appeals.

98. - [3.] Although no act of congress authorizes the circuit court to, issue a certiorari to the district court for the removal of a cause, yet if the cause be so removed, and instead of taking advantage of the irregularity in proper time and in a proper manner, the defendant makes the defence and pleads to issue, he thereby waives the objection, and the suit will be considered as an original one in the circuit court, made so by consent of parties. 2 Wheat. R. 221.

99.-[4.1 The circuit court may issue a writ of procedendo to the district court.

Equity Jurisdiction of the Circuit Courts.

100. Circuit courts are vested with equity jurisdiction in certain cases. The Act of September, 1789, 11, gives original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or. the suit is between a citizen of the state where the suit is brought and a citizen of another state.

101. The Act of April 15, 1819, 1, provides, " That the circuit court of the United States shall. have original cognizance, as well in equity as at law, of all actions, suits, controversies, and cases arising under may law of the United States, granting or confirming to authors or inventors, the exclusive right to their respective writings, inventions, and discoveries; and upon any bill in equity filed by any party aggrieved, in such cases, shall have authority to grant injunctions according to the course and principles of courts of equity, to prevent the viola-tion of the rights of any authors or inventors, secured to them by any laws of the United States, on such terms and conditions as the said courts may deem fit and reasonable:.provided, however, that from all judgments and decrees of any circuit courts rendered in the premises, a writ of error or appeal as the case may. require, shall lie to the supreme court of the United States, in the same Maniaer and under the same circumstances, as is now provided by law, in other judgments and decrees of such circuit court."

102. By the Act of August 23, 1842, it is enacted, 5, " That the district courts, as courts of admiralty, and the circuit courts, as courts of equity, shall be deemed always open for the purpose of filing libels, bills, petitions, answers, pleas, and other plead- ings, for issuing and returning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules, and other proceedings whatever, preparatory to the hearing of all causes pending therein upon their merits. And it shall be competent for any. judge of the court, upon reasonable notice to the parties, in the clerk's office or at chambers, and in vacation as well as in term, to make and direct, and award all such process, commissions, and interlocutory orders, rules, and other proceedings, whenever the same are not grantable of course according to the rules and practice of the court."

(2.) Criminal Jurisdiction of the Circuit Courts.

103. The often cited llth section of the Act of the 24th of September, 1789, gives the circuit courts exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where that act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offences cognizable. therein. The jurisdiction of the circuit courts in criminal cases is confined to offences committed within the district for which those courts respectively sit when they are committed on land. Serg. Const. Law, 129; 1 Gallis. 488.

2. Of the District Courts.

104. In treating of district courts, the same division which was made, in considering circuit courts, will here be adopted, by taking a view, 1. Of their organization and, 2. Of their jurisdiction. 1. Of the Organization of the District Courts.

105. The United States are divided into districts, in each of which is a court called a district court, which is to consist of one judge, who is to reside in the district for wbich he is appointed, and to hold annually four sessions. Act of September 24, 1789. By subsequent acts of congress, the number of annual sessions in particular districts, is sometimes more and sometimes less; and they are to be held at various places in the district. There is also a district court in the District of Columbia, held by the chief justice of the circuit court of that district. 2. Jurisdiction of the District Courts.

106. Their jurisdiction is either civil or criminal.

107. - (1.) Their civil jurisdiction extends, 1. To admiralty and maritime causes: the admiralty and maritime jurisdiction, is either the ordinary jurisdiction, which comprehends prize suits; cases of salvage actions for torts; and actions on contracts, such. as seamen's wages, pilotage, bottomry, ransom, materials, and the like; or the extraordinary or expressly vested jurisdiction, which includes cases of seizures under the revenue laws, &c.; and captures within the jurisdiction of the United States.

108.-2. To cases of seizure on land under the laws of the United States, and in suits for penalties and forfeitures, incurred under the laws of the United States.

109.-3. To cases in which an alien sues for a tort, in violation of the laws of nations, or a treaty of the United States.

110. - 4. To suits instituted by the United States.

111. - 5. To actions by and against consuls.

112. - 6. To certain cases in equity.

113. - 1. The admiralty and maritime jurisdiction of the district court is ordinary or extraordinary.

114. - 1st. The ordinary jurisdiction is granted by the Act of September 24th, 1789, It is there enacted, that the district court shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction. This jurisdiction is exclusive. Bee, 19; 3 Dall. 16; Paine, 111; 4 Mason, 139.

115. This ordinary jurisdiction is exercised in,

116. - 1. Prize suits. The Act of September 24, 1789, 9, vests in the district courts as full jurisdiction of all prize causes as the admiralty of England; and this jurisdiction is an ordinary inherent branch of the powers of the court of admiralty, whether considered as prize courts or instance courts, 3 Dall. 16; Paine, 111.

117. The act of congress marks out not only the general jurisdiction of the district courts, but also that of the several courts in relation to each other, in cases of seizure on the waters of the United States, navigable, &c. When the seizure is made within the waters of one district, the court of that district has exclusive, jurisdiction, though the offence may have been committed out of the district. When the seizure is made on the high seas, the jurisdiction is in the court of the district where the property may be brought. 9 Wheat. 402; 6 Cranch; 281; 1 Mason, 360; Paine, 40.

118. When the seizure has been made within the waters of a foreign nation, the district court has jurisdiction, when the property has been brought into the district, and a prosecution has been instituted there. 9 Wheat. 402; 9 Cranch. 102.

119. The district court has jurisdiction of seizures, and of the question of who is entitled to their proceeds, as informers or otherwise; and the principal jurisdiction is exclusive; the question, as to who is the informer, is also exclusive. 4 Mason, 139.

120. - (2.) Cases of salvage. Under the constitution and laws of the United States, this court has exclusive original cognizance in cases of salvage; and, as a consequence, it has the power to determine to whom the residue of the property belongs, after deducting the salvage. 3 Dall. 183.

121. - (3.) Actions arising out of tort's and injuries. The district court has jurisdiction over all torts and injuries committed on the high seas, and in ports or harbors within the ebb and flow of the tide. Vide 1 Wheat. R. 304; 2 Gall. R. 389; 1 Mason, 96; 3 Mason., 242; 4 Mason, 380; 18 Johns. R. 257.

122. A court of admiralty has jurisdiction to redress personal wrongs committed on a passenger, on the high seas, by the master of a vessel, whether those wrongs be by direct force or consequential injuries. 3 Mason, 242.

123. The admiralty may decree damages for an unlawful capture of an American vessel by a French privateer, and may proceed by attachment in ?-em. Bee, 60.

124. It has jurisdiction in cases of maritime torts, in personam as well as in rem. 10 Wheat. 473,

125. This court has also jurisdiction of petitory suits to reinstate owners of vessels who have been displaced from their possession. 5 Mason, 465. It exercises jurisdiction of all torts and injuries committed on the high seas, and in ports or barbors within the flow or ebb of the tide. 2 Gallis. 398; Bee, 51.

126. A father, whose minor son has been tortiously abducted and seduced on a voyage on the high seas, may sue, in the admiralty, in the nature of an action per quod, &c., also for wages earned by such son in maritime service. 4 Mason, 380.

127. - (4.) Suits on contracts. As a court of admiralty, the district court has a jurisdiction, concurrent with the courts of common law, over all maritime contracts, wheresoever the same may be made or executed, or whatsoever be the form of the contract. 2 Gallis. 398. It may enforce the performance of charter-parties for foreign voyages, and by proceeding in rem, a lien for freight under them. 1 Sumn. 551; 2 Sumn. 589. It has jurisdiction over contracts for the hire of seamen, when the service is substantially performed on the sea, or on waters within the flow and reflow of the tide 10 Wheat. 428; 7 Pet. 324; Bee, 199; Gilp. 529. But unless the services are essentially maritime, the jurisdiction does not attach. 10 Wheat. 428; Gilp. 529.

128. The master of a vessel may sue in the admiralty, for his wages; and the mate, who on his death succeeds him, has the same right. 1 Sumn. 157; 9 Mason, 161; 4 Mason, 196. But when the services for which he sues have not been performed by him as master, they cannot be sued for in admiralty. 3 Mason, 161.

129. The jurisdiction of the admiralty attaches when the services are performed on a ship in port where the tide ebbs and flows. 7 Pet. 324; Gilp. 529.

130. Seamen, employed on board of steamboats and lighters engaged in trade or commerce on tide-water, are within the admiralty jurisdiction. But those in ferryboats are not so. Gilp. 532 Gilp. 203.

131. Wages may be recovered in the admiralty by the pilot, deck-hands, engineer, and firemen, on board of a steamboat. Gilp. 505.

132. But unless the service of those employed contribute in navigating the vessel, or to its preservation, they cannot sue for their wages in the admiralty; musicians on board of a vessel, who are hired and employed as such, cannot therefore enforce a payment of their wages by a suit in rem in the admiralty. Gilp. 516.

133. - 2d. The extraordinay jurisdiction of the district court, as a court of admiralty, or that which is vested by various acts of congress, consists of -

(1.) Seizures under the laws of imposts, navigation, or trade of the United States. It is enacted, by the Act of September 24, 1789, 9, that the district court shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, when the seizures are made on waters which are navigable from the sea, by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, when the common law is competent to give it.

134. Causes of this kind are to be tried by the district court, and not by a jury. 4 Cranch, 438; 5 Cranch, 281; 1 Wheat. 9, 20: 7 Cranch, 112; 3 Dall. 297.

135. It is the place of seizure, and not the committing of the offence, that, under the Act of September 24, 1789, gives jurisdiction to the court; 4 Cranch, 443 5 Cranch, 304; for until there has been a seizure, the forum cannot be ascertained. 9 Cranch, 289.

136. When the seizure has been voluntarily abandoned, it loses its validity, and no jurisdiction attaches to any court, uuless there be a new seizure. 10 Wheat. 325 1 Mason, 361.

137. - (2.) The. admiralty jurisdiction, expressly vested in the district court, embraces, also, captures made within the jurisdictional limits of the United States. By the Act of April. 20, 1818, 7, the district court shall take cognizance of complaints, by whomsoever instituted, in cases of captures made within the waters of the United States, or within a marine league of the coasts and shores thereof.

138. - 2. The civil jurisdiction of the district court extends to cases of seizure on land, under the laws of the United States, and in suits for penalties and forfeitures incurred under the laws of the United States.

139. The Act of September 24, 1789, 9, gives to the district court exclusive original cognizance of all seizures made on land, and other waters than as aforesaid, (that is, those which are navigable by vessels of ton or more tons burden, within their respective districts, or on the high seas,) and of all suits for penalties and forfeitures incurred under the laws of the United States.

140. In all cases of seizure on land, the district court sits as a court of common law, and its jurisdiction is entirely distinct from that exercised in case of seizure on waters navigable by vessels of ten tons burden and upwards. 8 Wheat. 395.

141. Seizures of this kind are triable by jury; they are not cases of admiralty and maritime jurisdiction. 4 Crauch, 443.

142. - 3. The civil jurisdiction of the district court extends also to cases in which an alien sues for a tort, in violation of the law of nations, or a treaty of tho United States.

143. The Act of September 24, 1789, 9, directs that the district court shall have cognizance, concurrent with the courts of the several states, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only, in violation of the law of nations, or of a treaty of the United States.

144. - 4. The civil jurisdiction of this court extends further to suits instituted by the United States. By the 9th section of the Act of September 24, 1789, the district court shall also have cognizance, concurrent as last mentioned, of all suits at common law, where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And by the Act of March 3; 1815, 4, it has cognizance, concurrent with the courts and magistrates of the several states, and the circuit courts of the United States, of all suits at common law where the United States, or any officer thereof, under the authority of any act of congress sue, although the debt, claim, or other matter in dispute, shall not amount to one hundred dollars.

145. These last words do not confine the jurisdiction given by this act to one hundred dollars, but prevent it from stopping at that sum: and consequently, suits for sums over one hundred dollars are cognizable in the district, circuit, and state courts, and before magistrates, in the cases here mentioned. By virtue of this act, these tribunals have jurisdiction over suits brought by the postmaster-general, for debts and balances due the general post office. 12 Wheat. 147; 2 Pet. 447; 1 Pet. 318.

146.-5. This court has jurisdiction of actions by and against consuls or vice-consuls, exclusively of the courts of the several states, except for offences where other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is inflicted.

147. For offences above this description formerly the circuit court only had jurisdiction in cases of consuls. 5 S. & R. 545; 2 Dall. 299. But by the Act of August 23, 1842, the district courts shall have concurrent jurisdiction with the circiut courts of all crimes and offences against the United States, the punishment of which is not capital. And by the, Act of February 28, 1839, 5, the punishment of whipping is abolished. See also the Act of 28th Sept. 1850, making appropriations for the naval service, &c.

148. - 6. The jurisdiction of the district court under the bankrupt laws will be found under the title Bankrupt.

149. - 7. The district courts have equitable jurisdiction in certain cases. 150. By the first section of the Act of February 13, 1807, the judges of the district courts of the United States shall have as full power to grant writs of injunctions, to operate within their respective districts, as is now exercised by any of the judges of the supreme court of the United States. under the same rules, regulations, and restrictions, as are prescribed by the several acts of congress establishing the judiciary of the United States, any law to the contrary notwithstanding. Provided, that the same shall not, unless so ordered by the circuit court, continue longer than to the circuit then next ensuing; nor shall an injunction be issued by a district judge in any case, where the party has had a reasonable time to apply to the circuit court for the writ.

151. An injunction may be issued by the district judge under the Act of March 3, 1820, SSSS 4, 5, where proceedings have taken place by warrant and distress against a debtor to the United States or his sureties, subject by 6, to appeal to the circuit court from the decision of such district judge in refusing or dissolving the injunction, if such appeal be allowed by a justice of the supreme court. On which, with an exception as to the necessity of an answer on the part of the United States, the proceedings are to be as in other cases.

152. The Act of September 24, 1789, 14, vests in the judges of the district courts, power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment.

153. Other acts give them power to issue writs, make rules, take depositions, &c. The acts of congress already treated of relating to the privilege of not being sued out of the district of which the defendant is an inhabitant, or in which he is found, restricting suits by assignees, and various others, apply to the district court as well as to the circuit court.

154. Bythe 9th section of the Act of September 24, 1789, the trial of issues in fact in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury. Serg. Const. Law, 226, 227.

(2.) The criminal jurisdiction of the district court.

155. By the Act of August 23, 1842, 3, it is enacted that the district courts of the United States shall have concurrent jurisdiction with the circuit courts, of all crimes and offences against the United States, the punishment of which is not capital.

156. There is a class of district courts of a peculiar description. These exercise the power of a circuit court, under the same regulations as they were formerly exercised by the district court of Kentucky, which was the first of the kind.

157. The Act of September 24, 1789, 10, gives the district court of the Kentucky district, besides the usual jurisdiction of a district court, the jurisdiction of all causes, except of appeals and writs of error, thereinafter made cognizable in a circuit court, and writs of error and appeals were to lie from decisions therein to the supreme court, and under the, same regulations. By the 12th section, authority was given to remove cases from a state court to such court, in the same manner as to a circuit court.

3. The territorial courts.

158. The act to establish the territorial government of Oregon, approved August 14, 1848, establishes the judicial power of the said territory as follows: 9. The judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. The supreme court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum, and who shall hold a term at the seat of government of said territory annually; and they shall hold their offices during the period of four years, and until their successors shall be appointed and qualified. The said territory shall be divided into three judicial districts, and a district court shall be held in each of said districts by one of the just of the supreme court, at such times and places as may be prescribed by law; and the said judges shall after their appointments, respectively, reside in the districts which shall be assigned them The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any case in which the title to land shall in anywise come in question, or where the debt or damages claimed shall exceed one hundred dollars; and the said supreme and district courts, respectively, shall possess chancery, as well as common law, jurisdiction. Each district court, or the judge thereof, shall appoint its clerk, who shall also be the register in chancery, and shall keep his office at the place where the court may be held. Writs of error, bills of exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the supreme court, under such regulations as may be prescribed by law; but in no case removed to the supreme court shall trial by jury be allowed in said court. The supreme court, or the justices thereof, shall appoint its own clerk, and every clerk shall hold his office at the pleasure of the court for which he shall have been appointed. Writs of error and appeals from the final decisions of the said supreme court shll be allowed, and way be taken to the supreme court of the United States, in the same manner, and under the same regulations, as from the circuit courts of the United States, where the value of the property, or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witness, shall exceed two thousand dollars; and in all cases where the constitution of the United States, or acts of congress, or a treaty of the United States, is brought in question; and each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the constitution of the United States, and the laws of said territory, as is vested in the circuit and district courts of the United States writs of error and appeal in all such cases shall be made to the supreme court of said territory, the same as in other cases. Writs of error and, appeals from the final decisions of said supreme court shall be allowed, and may be taken to the supreme court of the United States, in the same manner as from the circuit courts of the United States, where the value of the property, or the amount in controversy, shall exceed two thousand dollars; and each of said district courts shall have and exercise the same jurisdiction in all cases arising under the constitution and laws of the United States, as is vested in the circuit and district courts of the United States, and also of all cases arising under the laws of the said territory, and otherwise. The said clerk shall receive, in all such cases, the same fees which the clerks of the district courts of the late Wisconsin Territory received for similar services.

159. - 10. There shall be appointed an attorney for said territory, who shall continue in office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the president, and who shall receive the same fees and salary as were provided by law for the attorney of the United States for the late territory of Wisconsin. There shall also be a marshal for the territory appointed, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the president, and who shall execute all processes issuing from the said courts, when exercising their jurisdiction as circuit and district courts of the United States; he shall perform the duties, be subject to the same regulation and penalties, and be entitled to the same fees, as were provided by law for the marshal of the district court of the United States, for the present [late] territory of Wisconsin; and shall, in addition, be paid two hundred dollars annually as a compensation for extra services.

160. The act to establish a territorial government for Utah, approved September 9, 1850, contains the following provisions relative to this subject. They are the same in most respects with the preceding. Section 9 of this act provides, " That the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. The supreme court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum, and who shall hold a term at the seat of government of said territory annually, and they shall hold their offices during the period of four years. The said territory shall be divided into three judicial districts, and a district court shall be held in each of said districts by one of the justices of the supreme court, at such time and place as may be prescribed by law; and the said judges shall, after their appointments, respectively, reside in the districts which shall be assigned them. The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction. Each district court, or the judge thereof, shall appoint its clerk, who shall also be the register in chancery, and shall keep his office at the place where the court may be held. Writs of error, bills of exception, and appeals shall be allowed in all cases from the final decisions of said district courts to the supreme court, under such regulations as may be prescribed by law; but in no case removed to the supreme court shall trial by jury be allowed in said court. The supreme court, or the justices thereof, shall appoint its own clerk and every clerk shall hold his office at the pleasure of the court for which be shall have been appointed. Writs of error, and appeals from the final decisions of said supreme court, shall be allowed, and may be taken to the supreme court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, where the value of the property or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witness, shall exceed two thousand dollars, except only that, in all, cases involving title to slaves, the said writs of error or appeals shall be allowed and decided by the said supreme court, without regard to the value of the matter, property, or title in controversy; and except, also, that a writ of error or appeal shall also be allowed to the supreme court of the United States, from the decisions of the said supreme court created by this act, or of any judge thereof, or of the district courts created by this act, or of any judge thereof, upon any writ of habeas corpus involving the question of personal freedom: and each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States; and the said supreme and district courts of the said territory, and the respective judges thereof, shall and may grant writs of habeas corpus in all cases in which the same are granted by the judges of the United States in the District of Columbia; and the first six days of every term of said courts, or so much thereof as shall be necessary, shall be appropriated to the trial of causes arising under the said constitution and laws; and writs of error and appeal, in all such cases, shall be made to the supreme court of said territory, the same as in other cases. The said clerk shall receive in all such cases the same fees which the clerks of the district courts of Oregon territory now rceive for similar services.

161. "There shall be appointed an attorney for said territory, who shall continue in office for four years, unless sooner removed by the president, and who shall receive the same fees and salary as the attorney of the United States for the present territory of Oregon. There shall also be a marshal for the territory appointed, who shall hold his office for four years, unless sooner removed by the president, and who shall execute all processes issuing from the said courts, when exercising their jurisdiction as circuit and district courts of the United States: he shall perform the duties, be subject to the same regulation and penalties, and be entitled to the same fees as the marshall of the district court of the United States for the present territory of Oregon; and shall, in addition, be paid two hundred dollars annually as a compensation for extra sci-vices."